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An
Islamic Framework of Judicial Conduct
The
position of the administration of justice in Islam is so sublime
and sacred that, in the words of prominent Hanafi jurist Imam
Muhammad Al-Sarakhsi, it is the most important obligation after
the belief in Allah (SWT) and is the highest form of Ibadah or
worship.1 On the other hand, this noble responsibility is so
crucial and delicate that the Holy Prophet Muhammad (SAW) has
described the person entrusted with the task of the
administration of justice as being slaughtered without a knife.2
A judge is supposed to discharge his duties carefully, honestly,
and with full devotion. If he is honest and just in his
decisions, he will be blessed with unimaginable eternal rewards,
and successes in this world as well as in the Hereafter. But if
his conduct is tyrannical, dishonest, and unjust he will not
only incur the anger of Allah (SWT) here in this world, but will
face severe consequences in the Hereafter as well.
The present article deals with the guidelines and instructions
which must be observed by a Muslim judge while dealing with
administration of justice.
Praying to and Seeking Help and Guidance from Allah (SWT)
No one can perform a good deed except with the help and guidance
of Allah (SWT). Every human being is always in need of favor and
guidance, especially a judge who undertakes to perform the
crucial responsibility of the administration of justice. That is
why the jurists said that a judge must perform prayer and seek
guidance and help from Allah (SWT) before starting the hearing
of disputes for decisions.3
When Abdullah Ibn Shirmah was appointed judge of Kufah he went
to the mosque, performed prayer, and said the following words,
weeping till his rag became wet with his tears: “O My Allah!
This is the position that I used to desire and hope to get. Now
when you have afflicted me with it save me from it (i.e., its
evils) and help me in its (just) performance.”4
Dress of a Judge
The appearance of a judge should be in conformity with the high
honor and dignity that goes with his position. If his dress is
not proper and formal, this may lower his position in the eyes
of the litigants.5 No particular dress has been prescribed for
judges; what is required is that it should be clean, dignified,
and simple. It had been the practice of scholars of the Islamic
society that they used to wear dignified dresses, especially a
gown, while going out. The Holy Prophet (SAW) himself used to
wear his best dress along with a gown on certain special
occasions, especially when he used to receive delegates. Al-Mawardi
is of the opinion that a judge, while presiding over a court,
should wear a black gown.6
Equality of Treatment
A Muslim judge is not only under an obligation to do justice to
the litigants while giving a verdict, but is also duty bound to
do justice to them during the proceedings of the case by
treating them with absolute equality. He must maintain this
equality of treatment irrespective of whether the dispute is
between the ruler and the ruled, the rich and the poor, and so
on. The Holy Prophet (SAW) is reported to have said: “Let the
hudud of Allah be applied equally to your relatives and the
strangers. You should not care a bit for the reproach of any
critic whatsoever.”7 This tradition enjoins the Muslim judges
not to discriminate between the litigants on the basis of
relations. A stranger or even an enemy must be treated with
justice, so should a friend or a relative. The Holy Prophet
(SAW) in another tradition has said: “Forgive the shortcomings
of the highly respected people but certainly do not forgive them
in awarding the hudud punishment to them.”8
When it comes to the dispensation of justice, Islam does not
discriminate on the basis of race, color, language, or
socio-economic status. All human beings are equal in the sight
of Allah (SWT) irrespective of their birth. In the same way they
must also be equal in the sight of a judge. The Companions of
the Holy Prophet (SAW) used to strictly observe this principle
of equality among the litigants. Sha´bi narrates the following
event which is an example of the noble attitude of the
Companions (RAA) in this regard:
There was a dispute between Umar Ibn Al-Khattab (RAA) and Ubay
Ibn Ka´b (RAA) regarding a well. They went to Zaid Ibn Harithah
(RAA) for a decision. Zaid (RAA) upon seeing Umar (RAA), the
Caliph, at his door said, “Why didn´t you send somebody to me, O
Ameer Al-Mo´mineen.” Umar (RAA) asked him to decide their
dispute at his home. Zaid (RAA) spread a carpet for Umar (RAA).
Thereupon Umar (RAA) said, “You did injustice in the very
beginning of the proceedings. I would like to sit with my
opponent.” Then Ubay Ibn Ka´b explained his claim to the well
which Umar (RAA) denied. Zaid (RAA) asked Ubay (RAA), “Excuse
the Ameer Al-Mo´mineen from oath.” Umar (RAA) did not agree and
took oath upon his claim, and then swore that he would never let
Zaid (RAA) be a judge until he and an ordinary Muslim are
regarded equal by him.9
The equality of treatment in the administration of justice is so
essential that even a head of the state must be regarded equal
to an ordinary citizen in a court of law. This is because if a
head of the state is given undue respect and special treatment
by a judge, no justice can be expected from such a court. If a
judge is honest in his duties and firmly believes that his
sustenance is in the hands of Allah (SWT) and that he is
accountable to Him only, then no ruler can influence his
decisions.
Qadi Abu Yusuf is reported to have said the following words
while weeping on his deathbed: “O Allah! You know that I never
leaned over to any of the parties to a dispute except in the
litigation of a Christian against Caliph Haroon Al-Rasheed. I
had decided in favor of that Christian, but I wished the right
were on Haroon´s side. O My Allah! Forgive me for this favor
towards Haroon Al-Rasheed.”10
A judge must treat the parties to a dispute with equality in all
respects. He must behave with them equally in their seating, in
his way of talking to them, and even in his gestures towards
them.11 The Holy Prophet (SAW) said: “The one who is tried (by
Allah) with the administration of justice among the Muslims must
treat them equally in his words and gestures and in their
seating."12 According to another tradition, the Holy Prophet
(SAW) said: “The one who is tried (by Allah) with the
responsibility of administration of justice must not raise his
voice upon one of the litigants if he has not raised it upon the
other.”13 Umar Ibn Al-Khattab (RAA) wrote in his letter to Abu
Musa Al-Ash´ari (RAA): “Treat all litigants equally in the way
they take their places in your presence, and in the way you look
at them, and in your decision, so that the highly placed person
would not expect your favor and the weak would not despair of
your fairness.”14
There should be no discrimination among the litigants in the
order of hearing, and those who come first must be heard first.
However, people coming from distant places may be given
preference over local people so that they can return to their
homes in time.15 Similarly a sick person may also be given a
prior opportunity of hearing to save him from discomfort.16 A
female litigant must be given preference over the males. It is
advisable for a judge to hear the male and female litigants
separately; intermixing in the court may be avoided by fixing
different days for the hearing of men and women. However, when
the parties to a dispute are of the opposite sexes then there is
no other way except to hear them together.17
Indulgence of a Judge in Trade
It is essential for a judge to refrain from indulging himself in
a business other than his duty, especially that of buying and
selling. This is because, due to his position of authority, a
judge may receive or may be obliged to provide unjustified
favors. That is why the Shafi´i and Hanbali jurists said that it
is reprehensible (makruh) for a judge to have a business of
selling and buying, as it provides an opportunity to the people
to bribe him in the form of providing him undue profit so that
they can gain his favor in the decision of their disputes.
However, if a judge intends to carry on a business he may do so
through an agent for such purpose.18 In one of his letters to
the famous judge Qadi Shurayh, Caliph Umar (RAA) said: “Avoid
quarrel and harming anyone and don´t sell and buy as long as you
are a judge.”19 Similarly, Umar Ibn Abdul Aziz (RA), in respect
of the indulgence of rulers and judges in trade, is reported to
have said: “Trading by rulers is corruption for them and
distraction for their subjects.” 20 Also: “Trading of rulers is
one of the portents of the Day of Judgement.”21 Imam Shafi´i
(RA) said: “It is reprehensible for a judge to indulge himself
in the business of selling and buying because of fear of his
partiality and undue kindness to one of the parties to a
dispute. If a judge indulges himself in trade it will be very
difficult for him to save himself from showing partiality and
kindness towards those who have favored him in trade.”22
If the indulgence of a judge in trade affects his
responsibilities as a judge, it is not permissible for him to
carry on any sort of business. The famous jurist Al-Simn´ani
said: “A judge is a servant of the Muslims; therefore he should
not indulge in a business which can divert his attention from
his responsibilities. However, if his responsibilities are not
affected it is permissible for him to run a side business.”23
Hanafis and Malikis are of the opinion that only that kind of
buying and selling is not permissible for a judge that he does
inside his court. As far as his dealing in trade outside his
court during his spare time is concerned, it is +permissible for
him to do so. They argue on the basis of the fact that the Holy
Prophet (SAW) and many of His Companions (RAA) who were also
judges used to carry on businesses of buying and selling during
their spare time.24 However, if the financial condition of a
judge is not enough to meet his essential needs, he may run a
side business. This is because in case of unfavorable financial
conditions of a judge, if he can earn his livelihood by a
permissible and halal business, then this is hundred times
better than his earnings by means of forbidden or haram ways.
If a judge can lead a simple life in accordance with the
teachings of Islam, he will not need extra money beyond his
salary. It is better for him to refrain from indulging in trade
because it will create reasonable doubts among the people
regarding his capacity to act impartially.
Borrowing Things and Taking Loans
The delicate position of a judge requires that he refrain from
unnecessarily mixing with people. He should be very careful in
making new relations and dealings with people, as it may prove a
hurdle in his honest discharge of duties. This may be the reason
why the jurists have advised the judges to refrain from
borrowing things or taking loans from the public. However, a
judge may borrow things and seek loans from those with whom he
had such dealings prior to his appointment as judge.25 If a
judge is in the habit of borrowing things and money, it will be
very difficult for him to go against the interests of those who
oblige him by lending things or money to him.
Attending Parties and Banquets
Another factor which affects the honesty and impartiality of a
judge is frequent attendance at feasts and parties. Since the
people who invite the judges always use their relationship with
them in gaining favor, a judge should not be in the habit of
routinely accepting such invitations. Due to this, the Hanafis
and Malikis said that a judge must refrain from attending feasts
and banquets. He may, however, attend a banquet of marriage (walimah).26
On the other hand, the Shafi´i and the Hanbali jurists are of
the opinion that a judge should accept an invitation to attend a
banquet because the Holy Prophet (SAW) not only himself attended
banquets but also required the Muslims not to refuse such
invitations.27 In this regard, the Holy Prophet (SAW) has been
reported to have said: “The one who does not accept an
invitation (to a banquet) disobeys Allah and His Prophet.”28
However, a judge while attending a banquet must refrain from
unnecessary talking and answering questions relating to the
cases pending in his court.29 This is because the people, by
discussing the cases with him, may affect his mind regarding the
decision in such cases.
So far as a banquet arranged by a person whose case is pending
with the judge is concerned, it is forbidden (haram) for the
judge to attend such a banquet,30 because a banquet by a party
to a dispute is clearly an attempt to bribe the judge. Likewise,
a judge is forbidden from becoming a guest of or hosting any one
of the parties to a dispute which is pending in his court.31
Hassan Basri (RA) has reported the following event in this
regard: “A man stayed with Ali (RAA) as a guest and said to him:
´I intend to file a dispute of mine with you.´ Ali (RAA) refused
to accept his dispute for decision and replied: ´Go back,
because the Holy Prophet (SAW) has forbidden us from hosting
only one of the parties to a dispute.´”32
Therefore, if one of the parties to a dispute is staying with
the judge, he may bias the judge against his opponent. However,
there is no harm if both of parties stay with the judge as his
guests.33 This is because, in such a case, each of the parties
will have an equal opportunity to talk to him in the presence of
his opponent. If one attempts to bias the judge the other may
defend himself. But it is better not to invite them because it
will amount to the proceedings of the case outside the court,
and that is not permissible in any legal system of the world.
Receiving Gifts
The litigants may attempt to bribe those who decide their
disputes by presenting them gifts, as well as to their family
members. The Holy Prophet (SAW) has said: “Allah has cursed the
one who gives or takes bribe.”34 Moreover, the Holy Prophet
(SAW) has himself cursed those who give or take bribe in
decisions of disputes.35 In the light of the above ahadith, it
is quite clear that giving and taking of bribe is an absolutely
forbidden (haram) act. The famous narrator of hadith Abdullah
Ibn Mas´ud (RAA) has been reported to have said: “Taking bribe
in decision is kufr and its taking and giving by people is a
great sin.”36
That is why it has been declared forbidden for a judge to accept
gifts from the parties to a dispute which is being decided by
him.37 However, he may accept gifts from those with whom he has
such dealings prior to his appointment as judge with two
conditions. Firstly, that the person who presents the gift is
not a party to a dispute pending in his court. Secondly, the
value of gift presented shall not be greater than the gifts
presented to him before his appointment as a judge.38
Once a person wanted to present a gift to Umar Ibn Abdul Aziz
(RA), which he refused to accept. The person responded by saying
that the Holy Prophet (SAW) used to accept gifts. The Caliph
replied: “The presents to the Holy Prophet (SAW) were gifts for
him while they are bribe for us.”39
A man used to present a camel´s leg to Umar (RAA) every year.
Once he brought a dispute to his court and said: “O Ameer Al-Mo´mineen!
Decide our dispute as the flesh is separated from the leg of a
camel.” Thereupon Umar (RAA) wrote to all his governors and
judges that they must not accept any gift from anybody.40
It is advisable for a judge, therefore, not to accept any gifts
from anybody.
Hearing the Cases of Relatives
A judge must refrain from hearing the disputes in which one of
his relatives for whom his evidence is not admissible, such as
his parents, children or other relatives, is a party. However,
if he deals with such cases, his judgment will be valid provided
it is against his relatives. Likewise, a judge must not accept
the dispute of a person for hearing with whom he has some
enmity.41 This is to avoid the blame that the judge has favored
his relative or has harmed his enemy. The proper course in such
circumstances is to transfer the case to some other court.
Deciding in a State of Irritability
Since the function of a judge is to decide the disputes of
people and to do justice with them, he must be fully attentive
to his job while sitting in the court. His body and his mind
must be free from any worry, trouble, or discomfort, as this can
divert his attention from his duty and may result in injustice
to one of the parties. That is why the jurists said that a judge
must refrain from deciding disputes if he is in a state of
extreme anger, tiredness, thirst, or hunger etc.42 Abdur Rehman
bin Abu Bakrah narrates that Abu Bakrah once sent a letter to
his son who was then a judge in which he wrote: “Don´t decide
between two persons when you are angry, because I have heard the
Holy Prophet (SAW) saying that a judge should never decide when
he is in a state of anger.”43 The Holy Prophet (SAW) has also
been reported to have said: “When a ruler becomes angry Satan is
imposed upon him.”44
In a state of anger the mind becomes an easy target for Satan.
Therefore, whenever a judge becomes too angry he should stop
hearing the case till he cools down. Otherwise, he is very
likely to do injustice to the litigant who provoked him. That is
why Qadi Shuryh (RA), an eminent judge of the Islamic judicial
history, used to leave his court in case of anger or extreme
hunger.45
Although, in the above-quoted traditions, a judge is forbidden
from giving decisions only in a state of anger, Muslim jurists
have enumerated other factors too that affect the competence of
a judge for giving decision, such as extreme grief, tiredness,
thirst, hunger, fear, etc.46 Indeed, all these factors can
divert the attention of a judge away from the proceedings of the
case. The famous scholar Ibn Daqiq has said in his work Ahkam
Al-Akham:
In the text of this tradition, deciding a dispute is forbidden
only in the state of anger because it causes disturbance of
mind, which may result in an improper perusal of the cases, or
it may affect the competency of a judge concerning the decision
of disputes. The jurists, by way of analogy, have extended this
provision to all those factors that may disturb the mind of a
judge like hunger and thirst, etc. And perhaps anger is
specially mentioned in the traditions because of its severity of
effect on the human mind and the difficulty in overcoming it.47
The above quoted opinion regarding the other factors which can
disturb the mind of a judge has also been supported by the
following tradition of the Holy Prophet (SAW), narrated by Abu
Sa´eed Al-Khudri (RAA): “A judge should never give a decision
except when he is well satiated and has quenched his thirst.” 48
According to Imam Shafi´i: “It is reprehensible (makruh) for a
judge to give a decision in the state of hunger, tiredness, or
mental uneasiness because it changes his mind and heart.”49
Since the responsibilities of a judge are very delicate, he must
refrain from giving decisions when he is upset due to any cause,
as he may not be able to do justice to the litigants in such a
state.
Consultation with Scholars
It is desirable (mustahab) for a judge to decide the dispute
after consulting scholars (Ulama). It has been reported that the
Righteous Caliphs used to decide disputes after consulting the
senior Companions of the Holy Prophet (SAW). These senior
Companions (RAA) were considered great scholars of that age.
Therefore, scholars of Islamic Law should be present in the
court whom the judge may consult for decision of the disputes
filed in his court.50
The famous Maliki jurist Ibrahim bin Farhun is of the opinion
that it is essential for a judge to decide cases in the presence
and with the consultation of Ulama, as the Holy Prophet (SAW)
was required by Allah (SWT) to consult his Companions (RAA) in
deciding different matters. Hassan Basri (RA) says that though
the Holy Prophet (SAW) was not in need of consulting his
Companions, Allah (SWT) commanded him to do so in order that his
act may become a Sunnah (legally binding precedent) for the
coming Muslim rulers.51
One of the Shafi´i jurists Abu Ishaq Al-Shirazi opines that
presence of Ulama in the court is a desirable (mustahab)
practice that enables the judge to consult them whenever he
needs their help.52 Ibn Qudamah is of the opinion that these
jurist-consults must be from all the schools of thought.53 The
famous Hanafi jurist Alauddin Al-Kasani says that though the
presence of Ulama in the court is mustahab, it is not proper for
a judge to consult them in the presence of the litigants; if he
does so they will accuse him of being ignorant, and so the judge
must consult the scholars after adjourning the court.54 Abdullah
bin Shirmah has said:
Do have association with Ulama because if you are right they
will praise you and if you are wrong they will correct you. And
do not keep company with those who are ignorant because if you
are right they will never praise you and if you are wrong they
will not correct you. Where you are ignorant they will deal with
you harshly and if they testify for you they will not benefit
you.55
Although in our legal system there is no provision for the
presence of jurists in the court, it is indeed very proper, even
essential, for today´s judge to consult his seniors amongst the
judges and lawyers.
Expediting the Proceedings
When the case is fully heard from both the sides of the dispute,
i.e., after both parties have been given an equal opportunity to
present their evidence and to argue their pleas, a judge is
under an obligation to pronounce judgement and to execute it
without unnecessary delay. A judge who delays decision without
reasonable grounds is considered a sinner. It was the
established practice of the Holy Prophet (SAW) that he would
decide the disputes very expeditiously and, in most cases, would
pronounce his judgement in the very first hearing.56
However, a judge may withhold judgement for a reasonable time in
case there is some hope of compromise between the parties to a
dispute,57 which is highly desirable. According to the Qur´an:
And if two parties of the faithful fight each other, then make
peace between them but if one of them transgress against the
other then fight those who transgress till they return to
Allah´s command. But when they return then make peace between
them with justice and be equitable. Surely God loves the
equitable. (Al-Hujurat 49:9)
The person who makes an effort for compromise between disputing
parties will be blessed with great rewards in the Hereafter
No good is there in most of their secret counsels except one who
commands charity or fair dealing or making peace between men.
And as to him who does this seeking the approval of Allah, We
will then give him great rewards. (Al-Nisa 4:114)
There are great many instances in the hadith literature where
the Holy Prophet (SAW) encouraged the disputing parties to
arrive at a settlement, and decided on the basis of compromise.
For instance, in the dispute between Ka´b bin Malik (RAA) and
Abdullah bin Abi Hadrad (RAA), the Holy Prophet (SAW) decided
the case on the basis of a compromise, with the condition that
Ka´b (RAA) should remit half of his debt and Abdullah (RAA)
should pay half of it.58 On another occasion, the Holy Prophet
(SAW) decided a dispute between a Hadrami and a Kindi regarding
a piece of property on the basis of compromise.59
Since the efforts for compromise between the litigants is a
Sunnah of the Holy Prophet (SAW), a judge, before pronouncing
judgement, should try his utmost to make the litigating parties
end their dispute by way of an equitable compromise that is
acceptable to both. If a judge delays his judgment for this
virtuous purpose then he will not be regarded a sinner, but will
rather be rewarded by Allah (SWT).
Although a judge should encourage the litigants to dispose of
their conflict by making a compromise, he is never allowed to
compel any of the parties to do so by way of unnecessarily
delaying judgement.60 Likewise, it must be kept in mind that
compromise is not permissible when the case concerns the rights
of Allah (SWT) — or huquq Allah — but it is permissible only
when the case concerns the rights of human beings — or huquq al-ibad.
Therefore, delaying judgement for the purpose of compromise in a
dispute pertaining to rights of Allah (SWT) is altogether
invalid.61
However, there is no harm in a reasonable delay of proceeding
caused by the adjournment granted on the request of one of the
parties for the arrangement of his evidence.62 In this regard
Umar (RAA), in his letter to Abu Musa Al-Ash´ari (RAA), said:
Grant that person a respite who claims that he has the proof of
his right which cannot be provided right away. Allow his claim
if he brings his proof, otherwise decide against him. For this
is better in order to remove doubts, clarify obscurities, and
attain excuse.63
Imam Mohamad Al-Sarakhsi, while elaborating upon the above
statement, said:
This statement proves that a judge shall adjourn the proceedings
in favor of any of the parties to a dispute for a period that is
enough for arrangement of evidence. If the plaintiff claims that
he has the proof, the judge should adjourn the proceedings to
enable him to provide his evidence. Because he may not have
brought the proof at the first hearing under the conception that
the defendant will not deny his claim because of its truth. When
the plaintiff has established the proof upon his claim and the
defendant asks for adjournments to rebut the plaintiff´s
evidence, the judge must grant him respite because he is
commanded to maintain equality between both the parties.
However, adjournment of proceedings in favor of one party must
not be injurious for the other, because the speedy proceedings
are injurious for the one who defends while delay proves harmful
for the one who has proof upon his claim.64
So for as the duration of adjournment is concerned, some jurists
are of the view that it is preferable to leave the matter to the
discretion of the judge. He should himself fix the duration of
adjournment according to the circumstance of the particular
case. Others are of the opinion that such duration must not be
beyond three days, as this is too long a delay in the
proceedings.66 Due to a number of factors, however, the limit of
three days is hardly practicable in our times. Adjournment for
about a couple of weeks in normal cases, therefore, is quite
reasonable.
In granting adjournments to a party, a judge is not required to
seek the consent of the other party. This is because the request
for adjournment of proceedings for a reasonable time is the
recognized right of both the litigating parties.67 However, it
is not valid for a judge to adjourn the proceedings on the
demand of a party whose intention is to delay the proceedings
and harm his opponent by such delay and to escape the execution
of the law.68
Endnotes
1. Mohammad Al-Sarakhsi, Al-Mabsut (Beirut: Dar Al-Fikr, n.d.)
16:59.
2. Mohammad bin Majah, Sunan Ibn Majah (Cairo: Dar Ihya Al-Kutub
Al-Arabiyah, n.d.) 2:774; Ali bin Al-Dar Qutni, Sunan Al-Dar
Qutni (Multan: Matba´ Nashar Al-Sunnah, n.d.) 4: 204.
3. Abu Ishaq bin Abi Al-Dam, Adab Al-Qada (Bagdad: Matba´ Al-Irshad,
1974) 28. Abu Al-Hassan Al-Mawardi, Adab Al-Qadi (Bagdad: Matba´
Al-Ani , 1972) 1: 218.
4. Ibn Al-Hiban, Ikhbar Al-Qudat, 3: 37.
5. Ibrahim bin Farhun, Tasirat Al-Hukkam (Cairo: Matba´ Mustafa
Al-Halabi, 1958) 1:72.
6. Abu Al-Hassan Al-Mawardi, Adab Al-Qadi (Baghdad: Matba´ Al-Ani,
1972) 2: 262.
7. Mohammad bin Majah, Sunan Ibn Majah (Cairo: Dar Ihya Al-Kutub
Al-Arabi, n.d.)
8. Abu Dawud bin Al-Ash´ath, Sunan Al-Mustafa (Beirut, Dar Al-Fikr,
n.d) 4:13.
9. Mohammad Al-Sarakhsi, Al-Mabsut, op. cit., 16:73; Ahmad bin
Hajar Al-Asqalani, Al-Talkhis Al-Habir (Lahore: Al-Matba´ Al-Athariyah,
n.d.) 4:186.
10. Mohammad bin Abidin, Rad Al-Muhtar (Beirut: Dar Al-Fikr,
1966) 4: 485.
11. Ali Al-Tarablasi, Mu´in Al-Hukkam (Cairo: Matba´ Mustafa Al-Halabi,
1973) p. 22.
12. Ahmed Al-Baihaqi , Al-Sunan Al-Kubra (Beirut: Dar Al-Fikr,
1325 A.H.) 10:35; Ali Al-Dar Qutni , Sunan Al-Dar Qutni (Multan:
Matba´ Nashr Al-Sunnah, n.d.) 4:205.
13. Ahmed Al-Baihaqi, Al-Sunan Al-Kubra (Beirut: Dar Al-Fikr,
1325 A.H.) 10:35l; Alauddin Al-Muttaqi, Kanz Al-Umal (Hyderabad,
India: Dar Al-Ma´arif Al-Nizamiyah, 1312 A.H.) 3: 208.
14. Ahmad Al-Baihaqi, Al-Sunan Al-Kubra (Beirut: Dar Al-Fikr,
1325 A.H.) 10:150, Muhammad Al-Sin´ani, Subul Al-Salam (Egypt:
Matba`at Mustafa Al-Halabi, 1930) 4: 162.
15. Mohammad Al-Sarakhsi, Al-Mabsut (Beirut: Dar Al-Ma´arifah,
n.d.) 16:80. Muhammad Al-Khurashi, Sharh Al-Khurashi (Beirut:
Dar Al-Fikr, 1958) 7:153; Shamsuddin Al-Sharbini, Mughni Al-Muhtaj
(Beirut: Dar Ihya Al-Thurath Al-Arabi, 1933) 4:412; Abdullah bin
Qudamah, Al-Mughni (Riyadh: Maktabah Al-Riyadh Al-Hadithah, n.d.)
9:83.
16. Shamsuddin Al-Sharbini, Mughni Al-Muhtaj (Beirut: Dar Ihya
Al-Turath Al-Arabi , 1933) 4: 412.
17. Alauddin Al-Kasani, Badai ´a Al-Sanai´a (Beirut: Dar Al-Kitab
Al-Arabi, 1910) 7:13; Muhammad Al-Khurashi, Sharh Al- Khurashi
(Beirut: Dar Al-Fikr, 1958) 7: 153.
18. Mohammad bin Idris Al-Shafi´i, Al-Umm (Egypt: Al-Matba´ Al-Amiriyah,
1324 A.H.) 6:201; Yusuf Al-Namri, Kitab Al-Kafi (Riyadh;
Maktabah Al-Riyadh Al-Hadithah, 1978) 2:95; Abdullah bin Qudamah,
Al-Mughni (Riyadh: Maktabah Al-Riyadh Al- Hadithah, n.d.) 9: 79.
19. Mohammad Al-Syuti, Jawahir Al-Uqud (Egypt: Matba´ Al-Sunnah
Al-Muhammadiyah, 1955) 2: 357.
20. Muhammad Al-Khurashi, Sharh Al-Khurashi (Beirut: Dar Al-Fikr,
n.d.) 7: 150.
21. Ibid.
22. Dr. Abdul Karim Zaydan, Nizam Al-Qada (Amman: Mu´asasat Al-Risalah,
1989) 64.
23. Ibid.
24. Mohammad Al-Sarakhsi, Al-Mabsut (Beirut: Dar Al-Fikr n.d.)
16:77. Muhammad Al-Khurashi, Sharah Al-Khurashi (Beirut: Dar Al-Fikr,
n.d.) 7: 150.
25. Ibrahim bin Farhun, Tabsirat Al-Hukkam (Cairo: Matba´
Mustafa Al-Halabi, 1958) 1:31; Mohammad Al-Usuti, Jawahir Al-Uqud
(Egypt: Al-Matba´ Al-Sunnah Al-Mohammadiyah, 1955) 2: 357.
26. Mohammad Al-Sarakshi, Al-Mabsut (Beirut: Dar Al-Ma`arifah
n.d.) 16:82. Mohammad bin Al-Jazzi, Qawanin Al-Ahkam Al-Shar´ah
(Beirut: Dar Al-`Elim Li Al-Malay´in, 1979) 285
27. Ibrahim Al-Shirazi, Al-Muhazzab (Egypt: Dar Ihya Al-Kutub
Al-`Arabiah, 1276 A.H) 2:292; Abdullah bin Al-Qudamah, Al-Mughni
(Riyadh: Maktabat Al-Riyah Al-Hadithah, n.d.) 9: 79.
28. Muslim bin Al-Hajjaj, Sahih Muslim (Cairo: Al-Matba`at Al-Misri
ah, 1930 9: 237.
29. Ali Al-Trablasi, Mu´in Al-Hukkam (Egypt: Al-Matba`at Al-Mymaniyah,
1310 A.H.) 17.
30. Kamaluddin bin Al-Humam, Fath Al-Qadir (Beirut: Dar Al-Fikr,
1970) 5:468; Abu Bakar Al-Sayyid Al-Bikri, I´anat Al-Talibini
(Egypt: Al-Matba`at Al-Khayriyah, 1320 A.H.) 4:421.
31. Alauddin Al-Kasani, Badi´a Al-Sanai´a (Beirut: Dar Al-Kitab
Al-`Arabi, 1328 A.H.) 7:9. Ibrahim bin Farhun, Tabsirat Al-
Hukkam (Cairo: Matba`at Mustafa Al-Halibi, 1958) 1:46; Abdullah
bin Al-Qudamah, Al-Mughni (Riyadh: Maktabat Al- Riyadh Al-Hadithah
n.d.) 9:82.
32. Abdullah bin Al-Zayla´i, Nasb Al-Rayi (Egypt: Dar Al-Mamun,
1938) 4:73. Nuruddin Al-Haythami, Majma Al-Zawayyid (Egypt:
Maktabat Al-Qudsi, 1352 A.H.) 4:46
33. Kamaluddin Al-Humam, Fath Al-Qadir (Beirut; Dar Al-Fikr,
1970) 5: 468. Yusuf Al-Namr, Kitab Al-Kafi (Riyadh: Maktabat
Al-Riyadh Al-Hadithah, 1978) 2: 953.
34. Abu Dawud bin Al-Ash´ath, Sunan Al-Mustafa (Egypt: Matba`at
Al-Sa`adah, 1950) 3:409; Muhammad bin Majah, Sunan Ibn Majah
(Cairo: Dar Ihya Al-Kutub Al-Arabiyah, n.d.) 2:775.
35. Mohammad bin Surah, Al-Jama´i Al-Sahih (Cairo: Mataba´at
Mustafa Al-Halabi, 1973) 3: 622; Al-Imam Ahmad bin Hanbal,
Masnad Imam Ahmed, (Egypt: Dar Al-Ma´arif, 1949) 15: 212.
36. Ali Al-Haythani, Majma´a Al-Zawayyid (Eypt: Matba`at Al-Qudsi,
1353 A.H.)
37. Mohammad Al-Sarakhsi, Al-Mabsut (Beirut: Dar Al-Ma`arifah,
n.d.) 16:82, Ibrahim bin Farhun, Tabsirat Al-Hukkam (Cairo:
Matba`at Mustafa Al-Halabi, 1958) 1: 82; Shamsuddin Al-Ramli,
Nihayat Al-Muhtaj (Egypt: Al-Matba`at Al-Bayhiyah, 1304 A.H.)
8:95; Abdullah bin Qudamah, Al-Mughni (Riyadh: Maktabat
Al-Riyadh Al-Hadithah n.d.) 9:77.
38. Kamaluddin bin Al-Humam, Fath Al-Qadir (Beirut: Dar Al-Fikr,
1970) 5:467; Muhammad Al-Khurashi, Sharh Al-Khurashi (Beirut:
Dar Al-Fikr, (n.d.) 7: 151; Shamsuddin Al-Ramli, Nihayat Al-Muhtaj
(Egypt: Al-Matba`at Al-Bayhiyah, 1304 A.H.) 8:95; Abdullah bin
Al-Qudamah, Al-Mughni (Riyadh; Maktabat Al-Riyadh Al-Hadithah,
n.d.) 9:77.
39. Abu Al-Walid bin Shahnah, Lisan Al-Hukkam (Cairo: Matba`at
Al-Mustafa Al-Halabi, 1973) 17.
40. Ahmad Al-Bayhaqi, Al-Sunan Al-Kubra (Beirut: Dar Al-Fikr,
1325 A.H.) 10:138.
41. Abu Al-Hassan Al-Mawardi, Adab Al-Qadi (Baghdad: Maktabat
Al-`Ani, 1972) 4:413; Abu Bakar Al-Sayyid Al-Bikri, I´anat Al-Talibin
(Egypt: Al-Matba` at Al-Khayriyah, 1320 A.H.) 4: 25.
42. Mohammad Al-Sarakshi, Al-Mabsut (Beirut: Dar Al-Ma`arifah,
n.d.) 16:78. Ibrahim bin Farhun, Tabsirat Al-Hukkam (Cairo:
Matba`at Mustafa Al-Halabi, 1958) 1:35; Shamsuddin Al-Ramli,
Nihayat Al-Muhtaj (Egypt: Al-Matba`at Al-Bayhiyah, 1304 A.H.)
8:94; Abu Mohammad bin Hazm, Al-Muhallah (Beirut: Dar Al-´Afaq
Al-Jadida n.d.) 9: 395.
43. Ahmed bin Hajar Al-Asqalani, Fath Al-Bari (Cairo: Matba`at
Al-Qahiriyyah, 1978) 13:117. Muslim bin Al-Hajjaj, Sahih Muslim
(Cairo: Al-Matba`at Al-Misriyah, 1930) 12: 15.
44. Ahmed bin Hanbal, Masnad Al-Imam Ahmed, (Egypt: Dar Al-Ma`arif,
1949) 15:214, Nuruddin Al-Haythami, Majma´a Al-Zawayyid (Egypt:
Maktabat Al-Qudsi, 1353 A.H.) 4:19.
45. Ahmed Al-Bayhaqi, Al-Sunan Al-Kubra (Beirut: Dar Al-Fikr,
1325 A.H.) 10:106.
46. Mohammad Al-Sarakhsi, Al-Mabsut (Beirut: Dar Al-Fikr, n.d.)
16:83; Abu Muhammad Al-Khurashi, Sharh Al-Khiralshi (Beirut: Dar
Al-Fikr n.d.) 7: 181.
47. Mohammad bin Daqiq, Ahkam Al-Ahkam (n.p.: Matba`at Al-Sharq,
1324 A.H.) 4:168.
48. Ahmad Al-Bayhaqi, Al-Sunan Al-Kubra (Beirut: Dar Al-Fikr,
1325 A.H.) 10:106.
49. Ahmed bin Hajar Al-Asqalani, Fath Al-Bari (Cairo; Matba`at
Al-Qahirah, 1977) 13:117.
50. Kamaluddin bin Al-Humam, Fath Al-Qadir (Beirut: Dar Al-Fikr,
1970) 5:467.
51. Ibrahim bin Farhun, Tabsirat Al-Hukkam (Cairo: Matba`at
Mustafa Al-Halabi, 1958) 1:29.
52. Ali Al-Shirazi, Al-Muhazzab (Cairo: Matba`at Mustafa Al-Halabi,
1960) 2:297.
53. Abdullah bin Qudamah, Al-Mughni (Riyadh: Maktabat Al-Riyadh
Al-Hadithah, n.d.) 9:52.
54. Alauddin Al-Kasani, Bada´i Al-Sana´i (Beirut: Dar Al-Kutub
Al-`Arabiyah, 1910) 7:12.
55. Ibn Al-Hiban , Akhbar Al-Qudat, 3: 104.
56. Mohammad bin Ashur, Maqasid Al-Shari´ah (Tunis: Al-Matba`at
Al-Fanniyah, 1366 A.H.) 219.
57. Mohammad Al-Sarakhsi, Al-Mabsut (Beirut: Dar Al-Ma`arif, n.d.)
16:61; Ahmad Al-Dardir, Al-Sharh Al-Kabir (Cairo: Dar Ihya Al-Kutub
Al-`Arabiah, n.d.) 4:152; Ibrahim Al-Bajuri, Hashiyat Al-Bajuri
(Egypt: Matba`at Al-Sa`adah, 1910) 2:389; Abdullah bin Qudamah,
Al-Mughni (Riyadh: Maktabat Al-Riyadh Al-Hadithah, n.d.) 9:53.
58. Muslim bin Al-Hajjaj, Sahih Muslim (Cairo: Al-Matba`at Al-Misriyah,
1930) 10:220; Ahmad Al-Nasai, Sunan Al-Nasai (Cairo: Al-Matba`at
Al-Misriyah, 1932) 8:239.
59. Ahmad Al-Asqalani, Fath Al-Bari (Egypt: Al-Matba`at Al-Qahiriyah,
1978) 13:134; Muslim bin Al-Hajjaj, Sahih Muslim (Cairo: Al-Matba`at
Al-Misriyah, 1930) 12: 4.
60. Ibrahim bin Farhun, Tabsirat Al-Hukkam (Cairo: Matba`at
Mustafa Al-Halabi, 1958) 1:39.
61. Mohammad bin Al-Qayyam, A`l~m Al-Muwaqi`§n, (Egypt: Matba`at
Al-Kulliyat Al-Azhariah, 1968) 1:108.
62. Mohammad Al-Sarakhsi, Al-Mabsut (Beirut: Dar Al-Ma`rifah,
n.d.) 16:63, Ibrahim bin Farhun, Tabsirat Al-Hukkam (Cairo:
Matba`at Mustafa Al-Halabi, 1958) 1:28, Ibrahim Al-Shirazi, Al-Muhazzab
(Cairo; Matba`at Mustafa Al-Halabi, 1960) 2:302; Mohammad bin
Al-Qayyam, Alam Al-Muwaqi´in. (Egypt: Matba`at Al-Kulliyat Al-Azhariyah,
1968) 1:110.
63. Ali bin Al-Dar Qutni, Sunan Al-Dar Qutni (Multan: Matba`at
Nashar Al-Sunnah, n.d.) 206, Ahmad Al-Bayhaqi, Al-Sunan Al-
Kubra (Beirut: Dar Al-Fikr, 1325 A.H.) 4:150.
64. Mohammad Al-Sarakhsi, Al-Mabsut (Beirut: Dar Al-Ma`rifah,
n.d.) 16:63.
65. Ibid.; Mohammad bin Al-Qayyam, Alam Al-Muwaqi´in (Egypt:
Matbu´at Al-Kulliyat Al-Azhariyah, 1968) 1:110.
66. Ibrahim bin Furhun, Tabsirat Al-Hukkam (Cairo: Matbu´at
Mustafa Al-Halabi, 1958) 1: 47; Ibrahim Al-Shirazi, Al-Muhazzab
(Cairo: Matbu´at Mustafa Al-Halabi, 1960 ) 2:302.
67. Ibrahim bin Farhun, Tabsirat Al-Hukkam (Cairo; Matbat
Mustafa Al-Halabi, 1958) 1: 47.
68. Mohammad bin Al-Qayyam, Alam Al-Muwaqi´in (Egypt: Matba`at
Al-Kulliyat Al-Azhariyah, 1968) 1: 110
Written By: Shaukat Hayat (Tanzeemi Islami)
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