The Judicial System In Islam
The judiciary is an independent administrative system in the Islamic government designed to resolve all types of legal disputes among various claimants. The system is structured to assure the establishment of justice among people, stop oppression, and punish the oppressors. The Islamic system follows the directives of God and the Prophet s from the Qur’an and the Sunnah (traditions).
There are specific criteria for a judge applying for a position in the Islamic judicial system. The applicant must be mature, sane, mentally capable and healthy in order to surmount the difficulties and challenges of this job. He must be well educated and informed about the Shari’ah (Islamic rulings and the principles of lawful and unlawful in Islam), as well as be well aware of mundane affairs so as not to be deceived or misinformed. He should have the ability to give verdicts in both worldly and religious spheres. He must be honorable, dignified, honest and with high moral character. He should be a man of upright conduct so that his judgments are well accepted by the parties in dispute.
Islam prescribes a specific code of conduct for judges that should be observed. The following letter sent by the second Caliph,
Omar bin al-Khattab to one of the assigned judges provides the guidelines for all Muslim judges:
“From the second Caliph, Omar bin al-Khattab, the slave of God to Abdullah bin Qais:
Assalamu Alaikum. Judgment among [disputing] people is a precise and obligatory act that should be followed and executed properly. You should [try your best to] understand the people present before you. Furthermore, none will benefit from a right that is not executed.
Give equal consideration and seating arrangements to people in your court so as an influential person may not think to take advantage because of his status. Moreover, a weak person will not lose hope of justice in your court.
The plaintiff must present a proof of evidence. A defendant must take an oath if he rejected and denied the claim of the plaintiff. Disputing people may choose to compromise between one another. However, no compromise is acceptable if it renders an unlawful item lawful or vice versa.
If you pass a judgment one day, but upon reviewing it on the next, you discover that you made a mistake and the right sentence is not what you passed as a verdict, then [reopen the case] and pass the right sentence. You should realize that returning to the right sentence and judgment is [much] better than indulging deeper in falsehood.
Try to understand the confusing matters that have no text of scripture to support them either from the Qur’an or the Sunnah (way of the Prophet s ( and study the resembling rulings, sentences and cases, and after obtaining the proper knowledge, assess your cases. Then choose the most beloved judgment to God and closest to the truth in your eyes.
Offer a chance to a plaintiff who claims a matter that is not currently present by setting a definite time for him to prove it. If such a plaintiff produces his proof of evidence, adjudicate the case in his favor. If not, then judge against his case. All Muslims are trustworthy insofar as the testimony is concerned, except for a person who has been lashed for committing any shameful act in the Islamic society, or a person who is known for false testimonies, or a person who is either a relative or distantly related to the plaintiff. God takes care of all hidden secrets of people and helps you [to judge] by providing evidence. Furthermore, you must not worry, become intolerant, or complain about disputing people in the rightful matters where God rewards you for being patient and is pleased with the results. If a person has a good and pure soul with God, God will [surely] improve the relations of that man with the public.” [3:110]
Every individual in the Islamic society, regardless of his faith or religious affiliation, position or social status, has certain immutable rights, which include the following:
- The right to seek judgment against oppressors. An individual may sue his oppressor in the judicial court.
- The right to have an equal hearing before the judge. This is based on the Hadith of God’s Messenger s ,instructing Ali when he commissioned him as a judge, saying: “Surely, God shall guide your heart and fasten your tongue [to the truth]. When the plaintiff and the defendant sit before you, do not issue a verdict for one until you hear the statement of the other as you heard the first.” Abu Dawood, Hadith no. 3582
The right to be considered innocent unless and until proven guilty. The Messenger of God
“If people are given [judgments] based on their claims, you will see people claiming for
the blood of others and their wealth. However, the defendant must offer an oath.”
Bukhari, Hadith no. 1711 and Muslim, Hadith no. 4277
And in Baihaqi’s version of the tradition, it ends:
‘The evidence must be produced by the plaintiff and an oath must be offered by the defendant.’
The right that mere suspicion does not deprive the suspect from his due process of law and specific rights. For instance,
a suspect must not be tortured by any means, nor subjected to violence, cruelty or hardship
in order to force him to give any confession. God’s Messenger
s forbade this, by extension, when he said:
“God absolves my Ummah [nation] from the following: error, forgetfulness and whatever they are forced to do.”
Ibn Majah, Hadith no. 2053
The second caliph, Omar bin al-Khattab stated, “A person would not be responsible for his confession, if you inflicted pain upon him or scared him or imprisoned him [to obtain the confession].” Abu Yusuf in his book al-Kharaj
- The right that only the guilty will be punished for what is within their personal responsibility. This means that no one is to be held responsible for the faults of others. Accusation, suspicion, and punishment must be confined to the guilty person and not extended to his family members.
God, the Just, says in the Qur’an:
(Whoever does righteous deed, benefits his own self and whoever does evil, it is against his
own self and Your Lord is never unjust to His servants.)
God’s Messenger s said: “No one should be taken [guilty] for the wrong doing of his brother or father.” Nisa`i, 8:53
Hisbah, Accountability in Islam
Hisbah is the voluntary accountability system in Islam whereby a Muslim enjoins good and forbids evil to enforce the laws of Shari’ah and to discipline those who publicly commit sins, do shameful acts and practice immoral activities, such as selling, promoting, and trading illegal items, monopolization of basic needs of the people, cheating and many other illegal activities. This is done to implement the command of God in the Qur’an: (You are the best nation produced [as an example] for mankind. You enjoin what is right and forbid what is wrong and believe in Allah.) [3:110]
According to this system, investigators monitor voluntarily the public law and order situation and the maintenance of public facilities to protect individuals against physical injuries in public places.
A Muslim should fear accountability and the punishment of God. Many examples of those who proceeded before us are mentioned in the Qur'an: (Cursed were those who disbelieved among the Children of Israel by the tongue of David and of Jesus, the son of Mary. That was because they disobeyed and [habitually] transgressed. They did not forbid one another from the iniquity: evil indeed were the deeds which they did.) [5:78-79]
In the light of the hadith of the Messenger of God s ,every individual in the Islamic society is required to take an active role in the duty of Hisbah according to his abilities. The Messenger of God s said: “Whosoever from among you sees an evil act, must stop it with his hand. If he cannot, he should stop it with his tongue. If he cannot, then he should abhor it in his heart, and that is the weakest [level] of faith.” (Muslim, Hadith no. 78.)
Correcting any criminal act or vice is not allowed if this causes more harm than good and amounts to making the situation worse. One must use wisdom and discretion in enjoining good and forbidding evil.
Most of the human rights mentioned in declarations fall under the above statement, which was delivered in the Farewell Pilgrimage speech of the Messenger of God s to the largest gathering of Muslims at that time. The laws and regulations of Islam were legislated to preserve and defend the rights and deal sternly with violators.
Islamic Declaration on Human Rights
The following is a Declaration issued in Cairo about Human Rights in Islam. It is worth pointing
out that the rights listed in this Declaration are only guidelines and general rules, since obligations
and rights, according to Islam, are interconnected with one another as rings that support one
another. The general principles and the rules of the human rights in Islam are divided into different
categories and further into sub-categories. Therefore, we will only summarize, since elaborating
upon the details would require a lengthy discourse. It is safe to say though that ‘Islam came
to preserve all human rights and to make human beings happier in this life as well as in the
I begin with the Name of God, the Beneficent, Most Merciful
God states in the Glorious Qur'an: (O mankind, indeed We have created you from male and female and made you peoples and tribes that you may know one another. Indeed, the most noble of you in the sight of Allah is the most righteous of you. Indeed, Allah is Knowing and Acquainted.) [49:13]
The member countries of the Islamic Congress Organization, have full faith in God the Creator of all beings, the Grantor of all Bounties, He Who created man in the best form and shape and honored him. God has entrusted man to build, reform and maintain the land He created. God entrusted man to abide by the Divine teachings and obligations and employed everything in the heaven and on the earth for the service of man.
Based on the pure monotheistic faith on which Islam is built, where all mankind is called and invited to worship none besides God, not to associate anything else with God’s worship, and not to set up rivals other than God to be worshiped; that monotheistic belief is the one that built the real foundations of people’s freedom, dignity and integrity and declared the freedom of man from the slavery of another man.
Based on what the eternal Islamic Shari’ah brought forth for man in terms of the preservation of the faith, religion, soul, mind, honor and progeny, and based on the comprehensiveness and moderation of the Islamic Shari’ah in all rulings, verdicts and sentences, where the soul and material matter are miraculously harmonized and the heart [emotions] and the mind [intelligence] are both respected and honored.
We believe, according to Islam, that basic rights and public freedoms are an integral part of the Islamic belief and religion. None has the right, initially, to prevent them fully or partially. We also believe that none has the right either to violate these rights or ignore them. These basic rights are divine and heavenly, having been revealed to the Prophets of God in all Scriptures. In fact, God commissioned the last of His Prophets to mankind, Muhammad y who completed the missions and the Message of all previous Prophets and Messengers, with these essential rights as well. Observing these essential rights is a type of worship while neglecting such rights or infringing upon them is an evil act, according to Islam. Every individual is responsible, individually, to adhere to these rights. The Ummah (nation) collectively is also responsible for these rights.
Based on the above, the member countries of the Islamic Congress Organization declare the following:
All of humanity is, in essence, one big family. They are united under the banner of all being servants to God and they are the children of the Prophet Adam. All people are equal in terms of human dignity and honor. All people are also equal in terms of responsibility. No race, color, language, sex, religious belief, political affiliation, social status or any other grouping serves as a factor that differentiates them. The true and sound belief is the only assurance and guarantees to ensure the growth of this human integrity for human integration.
The best humans are those who are the best to all others. There is no preference for one over the other except for piety [righteousness] and good deeds.
Life is a gift from God. It is protected for every human being. All members of the society, and all states and countries, must act to protect this right against all types of aggression. No life shall be claimed without a due legal reason.
It is unlawful to use methods and tools that have the potential to wipe out the human race.
Maintaining and preserving human life is a legal obligation.
Man’s physical safety is respected. None has the right to attack his safety. Furthermore, none has the right to touch this safety without a legal reason. The state must assure this right.
While using force, or in the event of armed conflict, it is illegal [unlawful] to kill those who do not have an active role in the actual fighting. Elderly people, women, children, wounded persons and the sick all have the right to be treated [and protected]. [Prisoners of war] have the right to be fed, sheltered and clothed. It is illegal to mutilate the bodies of the dead war victims. Prisoners of war must be exchanged. Families that are separated due to wars are entitled to be reunited.
It is forbidden to cut [or pull] trees, destroy the crops and dairy animals, and destroy buildings and other civil facilities for the enemies by shelling or blowing them up, etc.
Every human being is entitled to his integrity, honor and reputation, during his life and after his death. The State and society must protect the remains and the burial places [cemeteries] of the deceased.
The family is the basic unit in the society. Marriage is the basis for building and forming a family. Men and women are entitled to marriage. No restrictions should be set to restrict them from marriage based on race, color or nationality.
The society and the state must act to remove all barriers for marriage. Further, they should attempt to make it easy, as well as to protect and care for the family unit.
Men and women are equal in terms of human integrity and honor. She is entitled for equal rights and duties. She is entitled for her own civil personality, financial independence and she has the right to maintain her name and surname.
Men must take care of all financial needs of their families and must provide all possible care and protection.
Every child born has the right upon his parents, society and the state, of: custody, upbringing, material care, educational care and moral attention. The fetus and the mother must also be provided special care.
Parents and guardians have the right to choose the type of up- bringing they like [or prefer] for their children. However, the interest and the future of the children must be taken into consideration in the light of moral and Shari’ah values and principles.
Parents have their own rights towards their children. Relatives also have their own rights among themselves in accordance with the Shari’ah laws and principles.
Every individual has the right to practice his full rights in terms of all commitments. If the individual is no longer qualified to practice his rights, fully or partially, a Wali [guardian] must be assigned instead.
Education is an entitlement afforded to all and seeking it is a duty. Offering and providing education is a duty that is incumbent on the society and the state. The state must secure the means of delivering education and assure a variety of educational media to serve the interest and the welfare of the members of the society. Education should also enable man to learn about Islam (as a religion and way of life) the universe and how to utilize materialistic means for the benefit and welfare of humanity.
Every human being is entitled to education from the various educational organizations such as the family, school, universities, the media etc. They shall offer the suitable worldly and religious education and training in an integrated and balanced fashion that strengthens his personality and his faith in Almighty God and his respect to rights and duties of man.
Man must follow and obey Islam (submission to God) which is the natural innate religion (revealed to all messengers of God). Therefore, no one has a right to force others or compel them to do anything against their nature. Furthermore, no one has the right to exploit one’s poverty, weakness or illiteracy to change his religion or to become atheist.
Man is born free. None has the right to enslave, humiliate, conquer or exploit him. There should be no slavery other than the slavery to Almighty God. All types of colonization and imperialism are fully banned. Colonization is the worst type of slavery. Suffering people have the right to liberate themselves from colonization. Such people have the right to determine their own destiny. All other people must support the fair and just cause of fighting against all types of colonization and occupation of all types. All people have the right to preserve their independent state and personality and have the control over all natural resources.
Every human being has the right to move about freely by choosing the suitable residence for himself within his own country or state, or even outside his country. However, if a man is unsafe [in his country] he has the right to seek asylum to another country. The country that is providing asylum must protect such a person unless the reason of this asylum involves a punishable crime.
The state and society must ensure work for every capable person. Every individual must enjoy the freedom to choose the most suitable job that guarantees his interest, and the interest of the society. A worker must enjoy his right in safety and security, and all social welfare insurance and guarantees. A worker must not be assigned to do what he is unable to do. A worker must not be forced against his will to do certain things. A worker must not be exploited or harmed. A worker, male or female, without any distinction, is entitled to fair wages. No delays should be made in the payment of wages. A worker must enjoy [annual] vacation, promotions, incentives and other monetary items he is entitled to receive. A worker is obliged to devote his time and effort with perfection to his job. If a dispute between the worker and the employer arises, the state must intervene to resolve such dispute, remove the oppression, do justice, and force the disputing parties to take and accept the just judgment without any bias.
Each individual has the right to an honest and lawful income. No monopolization of goods, cheating or any act of deception, harming himself or others and usury are allowed. In fact, all above items are legally forbidden.
Each individual is entitled to lawful ownership. In addition, an individual is allowed to enjoy the rights of ownership provided no harm is caused to one’s own soul or others or the society at large. [Private] Ownership is not to be removed except for public interest and for an instant and fair substitution. No wealth [or ownership] confiscation is done without a legal and lawful reason.
Each individual is entitled to benefit from his actual material production, literal production, artistic production or technical production. Also, each individual is entitled to protect his literary or financial interests resulting from his production, provided that this production does not contradict the laws of Shari’ah.
Each individual is entitled to live in a clean environment in terms of pollution and moral corruption. Such environment must permit the individual to morally build his character. Both the society and the state must ensure and provide this right to the individuals.
The society and the state must provide every individual with [suitable and necessary] health care and social care by availing all public facilities, within the available means.
The state must ensure decent living conditions for the individuals and their dependents. This right encompasses boarding, decent and proper clothing, proper education, medical care and all other essential or basic needs.
Each individual is entitled to life and security in the society as relates to his self, religion and faith, family honor, dignity and family members and his financial belonging.
Each individual has the right to be independent with his own affairs in terms of housing, family, finance and communications. No spying or surveillance may be maintained against anyone. No defaming is allowed to anyone. In addition, others must protect individuals against all unlawful inferences.
The privacy of houses and dwellings are insured. Entry to private homes must be with consent of their occupants. Private housing should not be demolished, confiscated or their tenants evicted without any legal reason.
All individuals – the ruler and the ruled – should enjoy equal legal rights.
All individuals have access to seek judicial judgment for their complaints.
Crime and punishment are based on Shari’ah injunctions.
Every accused is innocent until proven guilty. A fair trial is necessary where all assurances are given for full defense.
No one is to be arrested or his freedom be restricted, exiled or punished without adequate legal action. Individuals must not be subjected to physical or psychological torment or any other humiliating treatment. No one may be subjected for medical experimentation without his consent, provided that it does not amount to the detriment of his health. Furthermore, it is not permitted to empower executive authority to issue exceptional laws.
It is forbidden to take any person as a hostage for any purpose and in any form.
Each individual is entitled to express his opinion, if it does not contradict Shari’ah laws and principles.
Each individual is entitled to enjoin good and forbid evil in agreement with Shari’ah laws and principles.
Media and information are vital for the society. Media must not be exploited, or abused or used attack the dignity of the Prophets of God, or to practice any immoral or corrupt deeds. In addition, all issues that cause disunity within the society, moral decay, danger or disbelief are also banned.
It is not allowed to generate national hatred or sectarianism or any other type of discrimination.
Guardianship is a trust that must not be betrayed. This is fully forbidden to ensure the basic human rights.
Each individual is entitled to participate in the public administration of his country, either directly or indirectly. Similarly, all individuals are entitled for public offices based on Shari’ah laws and regulations.
All rights and freedoms listed in this Declaration are comprehensible within the framework of Shari’ah laws and principles.
Shari’ah laws and principles are the only source for the interpretation or clarification for any article of this Declaration.
Cairo, 5/8/1990 Accepting and determining the above stated rights is the correct path to build a true Islamic society that maybe described as follows: (The following are adapted from The Islamic International Declaration for Human Rights.)
A society which is developed on the concept of justice, where no one is superior on the basis of origin, race, color or language. Man must be safe against suppression, oppression, humiliation and slavery. God, the Creator of all the creation has honored man over all his creation: (And We have certainly honored the children of Adam and carried them on the land and sea and provided for them of the good things and preferred them over much of what We have created, with [definite] preference.) [17:70]
A strong family system is the basis of society. It provides stability and progress. God says in the Qur’an: (O people, verily we created you from a male and a female....) [49:13]
A society where the governor and the governed are equal before Shari’ah (Islamic jurisprudence). Since the Shari’ah is divinely ordained, no discrimination is allowed in such a society.
A society in which authority and power are a trust, and where the ruler attains goals within the framework of Shari’ah.
A society in which every individual believes that Almighty God is the true Owner of the entire creation, and that everything in His creation is employed for the benefit of His creatures. Everything that we have is a gift from God. The Almighty states in the Qur'an: (And He has subjected to you whatever is in the heavens and whatever is on the earth – all from Him. Indeed in that are signs for a people who give thought.) [45:13]
A society which grants equal opportunities to all individuals according to their skills and potential. Such individuals will be accountable before their community about their performance in this world and before their Creator in the Hereafter. God’s Messenger s said: “Each one of you is a shepherd and each is responsible for those under his care. A leader is a shepherd, and is responsible for his citizens. A man is a shepherd of his family, and he is responsible for them. A woman is a shepherd in her husband’s home, and she is responsible for whatever is under her care. A servant is a shepherd of his master’s wealth, and he is responsible for whatever is under his care. Each one of you is a shepherd and each one of you is responsible for whatever is under his care.” (Bukhari, Hadith no. 853 and Muslim, Hadith no. 1829)
It is a society in which both the ruler and the ruled stand equally in judicial courts during the judicial procedures.
It is a society where every person reflects the consciousness of the community. Each individual has a right to file a legal suit against any criminal who committed a crime against the general population. He may also solicit the support of others in this process and it is an obligation on all the witnesses of the crime to help him and not to shy away during the proceedings for justice.
The characteristics of human rights in Shari’ah (Islamic Jurisprudence) are as follows:
- Human rights according to Islamic Shari’ah are Divine. These do not stem from other human beings who are influenced by whims, desires, interests and personal ambitions.
- Human rights are correlated with the Islamic faith and belief. They are protected and preserved by Divine judgment. Therefore, any violation of these rights is, in the first place, a violation against the Divine Will of God, and entails punishment in the Hereafter, as well as worldly punishment.
These human rights are comprehensive and commensurate to the nature of human beings. They agree with human innateness and coincide with his weakness, power, poverty or richness, dignity and humiliation.
- These human rights are applicable to each person under the Islamic jurisdiction, regardless of color, race, religion, language or social status.
- These human rights are constant. These are not adaptable at any time or place and under any condition or circumstances. Neither individuals nor society can alter these human rights.
- These rights are sufficient to establish a society that grants its individuals a decent and honorable life. These rights are a mercy from Almighty God, the Lord of all worlds and they are for the entire humanity at large. Human rights also serve to preserve political, social, moral and economic rights of humanity.
- Human rights, however, are restricted and not absolute. These rights are compatible with the basic Shari’ah laws and principles. They are not detrimental to the interest of the society and its welfare. For instance, the freedom of opinion and speech is guaranteed for every individual. All individuals are entitled to speak out saying the truth without hesitation. All have the right to provide and offer reasonable advice to others, so long as this advice is in the public’s interests. Advice may be given in the spheres of worldly affairs or religious affairs alike. There are certain restrictions, however, that must not be exceeded...otherwise it will result in a chaotic situation in the society. The following are some of these restrictions:
- This freedom of objective dialogue should be based on wisdom and good advice. Almighty God states in the Qur'an:
- (Invite to the way of your Lord with wisdom and good instruction, and dialogue with them in a way that is best. Indeed, your Lord is most knowing of who has strayed from His way, and He is most knowing of who is [rightly] guided.) [16:125]
- Adhere at all cost to the essential principles of the Islamic faith such as the belief in the existence of God, the reality of the Message of God’s Messenger s and all other related issues.
- Avoiding the use of such freedom in any way that is offensive to others... regardless whether the offense is worldly or religious, such as defaming people, scandalizing them and revealing their secrets. Such unlawful acts will spread harm and evil among people in the Islamic society or any other society. Almighty God states in the Qur’an: (Indeed, those who like that immorality should be spread [or publicized] among those who have believed will have a painful punishment in this world and the Hereafter. And Allah knows and you do not know.) [24:19]