These are to :

1. Settle the disputes between people,
2. Prevent whatever harms the common rights, and
3. Resolve the arguments between people and any person who forms part of the ruling system, be they rulers or employees, the Khaleefah or any other person.

Islam defines that each of these roles are separate parts of the judiciary and that each are undertaken by different types of judges.

It is agreed upon by the four schools of thought (i.e. Hanafi, Shafi‘i, Hanbali and Maliki) that the judiciary is fard kifayyah (sufficient fard) like the Khilafah. Accordingly, if there is no judiciary, there will be no judging by Islam, and the whole Muslim Ummah will be sinful for its absence. However, if there is a functional judiciary, that is fulfilling the role of administration of justice for the people, then the fard has been fulfilled, and the sin is removed from the necks of the Muslims.

The Messenger of Allah (saw) said, “One day from a just Imam is better than worshipping sixty years, and the establishment of one hadud (an Islamic punishment) on the earth is better than rain for 40 years.”

These are some opinions of the distinguished scholars on the issue of the Judiciary:

- Imam Sarkhasi considered that the judiciary is the strongest fard after iman, because it ensures Allah’s (swt) laws are implemented in practice. - Imam Ghazzali said that the judiciary is from the Jihad.

- ‘Abdullah ibn Mas‘ud (ra) said, I prefer to sit as a judge between two people more than to perform 70 years of ibadat.

The basis of the Judiciary is set in three principles :

1) That the application of the Islamic judgement on each and every issue is obligatory,

2) That it is forbidden to follow any Shari‘ah other than Islam, and

3)Any Shari'ah other than Islam is kufr (disbelief) and taghut (falsehood).

It is within the framework of these that the Judicial System of the Islamic State operates, and it is based around these that the definition of the judiciary (‘al-Qadha’) is established from the Shari‘ah.

Thus, the definition and purpose of the judiciary is, “to allow the legitimate judges to provide the opinions about the divine rules on any situation, with the authority to enforce them.”

Evidences for the Legitimacy of the Judiciary The foundation of the judiciary system and its lawfulness are derived from the Qur’an and the Sunnah. As for the Qur’an, Allah (swt) says,

“But no, by your Lord, they will not believe (in truth) until they make you judge of what is in dispute between them and find within themselves no dislike of that which you decide, and submit with full submission.” [TMQ 4:65]

 “Lo! We reveal unto you the scripture with the truth, that you may judge between mankind by that which Allah has shown you.” [TMQ 4:105]

“So judge between them by whatever Allah has revealed, and follow not their desires away from the truth which has come to you.” [TMQ 5:51]

These ayat clearly indicate that it is legitimate to judge between the people and indeed that it is fard (obligatory) to do so, referring only to the system of Allah (swt).

As for the Sunnah, the Messenger of Allah (saw) was himself in charge of the Judicial System and he judged between people. Muslim reported on the authority of ‘A’isha (ra), wife of the Messenger of Allah (saw), that she said, “Sa‘ad ibn Abi Waqqas and Abd ibn Zama‘a disputed with each other over a young boy. Sa‘ad said: Oh Messenger of Allah, he is the son of my brother Utbah ibn Abi Waqqas as he made explicit that he was his son. Look at his resemblance. Abd ibn Zama‘a said: Messenger of Allah, he is my brother as he was born on the bed of my father from his slave-girl. Allah’s Messenger (saw) looked at his resemblance and found a clear resemblance with Utbah, but he said: He is yours O Abd ibn Zama‘a, for the child is to be attributed to one on whose bed it is born, and stoning is for the adulterer.”

This is proof that Muhammad (saw) judged between the people, and that his judgement carried authority to be implemented.

Other Evidences of the Judiciary in Sunnah

1. Abu Daud, Tirmidhi, Nissai, and Ibn Majah reported : Buraida said, The Messenger of Allah (saw) said, “The judges are three, two of them will go to the Hellfire and one will go to the Paradise. One knows the truth and he judges with it - he is in the paradise, one knows the truth and doesn’t judge by it, he will go to the Hellfire. The other doesn’t know the truth and judges between the people with ignorance - he will go to the Hellfire.”
2. Ahmad and Abu Daud reported : Ali (ra) said the Messenger of Allah said, “Oh Ali, if two people come to ask you to judge between them, do not judge to the first one until you hear the word of the second one in order that you may know how to judge.”
3. Bukhari, Muslim and Ahmad reported : Umm Salamah said, “Two men disputed about the inheritance and came to the Messenger of Allah (saw), neither having any proof. He (saw) said : Both of you bring your dispute to me and I am a man like you and one of you may have more eloquent speech, so I may judge in his favour. And if I judge for him something that does not belong to him and I take it as a right from his brother, he should not take it because whatever I give to him it will be a piece of Hellfire in his stomach and he will come bowing his neck on the Day of Judgement. Both of the men cried, and one man said, I give my share to my brother. The Prophet (saw) said go now together and divide the inheritance between you and seek the right from both of you and each one of you say to the other ‘May Allah forgive you’, and permit him what he takes in order for both of you to be rewarded.”
4. Baihaqi, Darqutni and Tabarani reported : The Messenger of Allah (saw) said, “Whoever Allah tests by letting him become a judge, should not let one party of a dispute sit near him without bringing the other party to sit near him. And he should fear Allah by his sitting, his looking to both of them and his judging to them. He should be careful not to look down to one as if the other was higher, he should be careful not to shout to one and not the other, and he should be careful of both of them.”
5. Muslim, Abu Daud and Al-Nissai reported : Ibn Abbas said, “The Messenger of Allah (saw) judged between the people by oath and witnesses.”
6. Mawardi, in ‘The Etiquette of the Judge’, vol.1, p.123 : “The Messenger of Allah (saw) appointed judges in the Islamic State; one of them was Imam Ali, one was Mu‘adh ibn Jabal and one was Abu Musa al-Ash‘ari.”
7. Muslim reported : Abu Hurayrah said, “The Messenger of Allah (saw) passed by a heap of food, as he put his hand inside it his fingers got wet, so he said to the vendor: What is this? He said : It was dampened by the rain O Messenger of Allah. He (saw) said : Why don’t you put it on the top so that people can see it? He who cheats us is not one of us.”

All these ahadith clearly state the authenticity of judging and explain from different angles some of the elements of the Judicial System of the Islamic State:

1. The ahadith indicate that people are motivated to become judges, due to the reward of the judge.
2. The ahadith make terrified those people who want to become judges if they are not capable.
3. The ahadith show us the usul (source) of disputing and the usul of judging, e.g. the Messenger of Allah (saw) told ‘Ali not to judge until he heard the statement of both parties. They show that we must have a court where both parties sit together and that the judge must listen to both parties. He said fear Allah at the way you look at them, talk to them and the way you judge between them.
4. They show the foundation of appointing a representative. Because of the saying, ‘Be careful of those with good tongues’; so it is permissible to appoint someone to speak on your behalf.
5. They prove that the Messenger of Allah (saw) took oaths and witnesses and that they are evidences which can be used in proving cases.
6. They state types of judges, e.g. Qadi Muhtasib - who establishes justice and fair dealing in the market place.
7. They state the authenticity of appointing judges, as per Mawardi - Imam ‘Ali and Mu‘adh ibn Jabal.

In the history of the Islamic State, it was famous for its administration of justice, and its ability to protect the rights of the people, and this was the case in all the different fields of life, from personal to political.

There are two people who are responsible for the implementation of Islam in such a manner - the Khaleefah and the qadi (judge). The Khaleefah executes the Islamic rules and implements them over the people, while the judge derives the Islamic verdicts for the different situations from their sources (i.e. the Qur’an, the Sunnah, and whatever derives from them) and presents them for application.

Accordingly, the judiciary is one of the fundamental pillars of the Islamic State and it is upon this that the ruling system depends for the implementation of Islam in the political life. There has always been in the Islamic State a judiciary which administers justice, and judges who would judge between the people to ensure that Islam was constantly adhered to.

This system of judiciary is nothing alien to Islam; indeed it derives from the Islamic ‘aqeedah and forms an integrated part of the Islamic way of life, complementing the other Islamic systems, like the Economic (Iqtisad) and Ritual (Ibadat) systems, making a perfectly functioning whole.

Human beings are limited in knowledge and are fallible. They are prone to error and subject to prejudice. Islam does not leave the legislation of justice to the whims and fancies of human beings as is the case in the West. Instead the permission to make laws is only for Allah (swt) the creator of mankind and the One Who knows human beings the best. Who do you think is best qualified for this task? Allah (swt) says,

“The rule is to none but Allah.” [TMQ 6:57]

Thus you can rest assured that in an Islamic court, factors such as the judge being friends with the accused, or having had a bad day, have no bearing on the severity of the punishment he chooses to administer.

If you are a victim of crime and are poor while your opponent is wealthy, this will have no effect whatsoever on the verdict of the court. While you are allowed to appoint a representative to speak on your behalf, there are no vast sums of money at stake. The objective of the courts is solely to establish justice, not to make money. Therefore, it does not matter who presents your case, or how persuasively he speaks, but it is up to the judge to ascertain the facts and evaluate them.

In Islam, only definite evidence of guilt is sufficient for the administration of a sentence. Accordingly, there is no concept of a jury, whose members may disagree between themselves on the verdict, purely on the basis of their own personal discretion.

Circumstantial evidence, which is inconclusive and subject to different interpretations is not enough. All evidence is presented to a judge who is expert in jurisprudence, and he imposes punishment according to laws from Islam. Thus only those proven to be criminals are punished. Criminals for whom no conclusive verdict is possible will not escape the punishment on the Day of Judgement.

Given the above framework of the two Judicial systems, let us compare the treatment of common crimes that we are most worried about in this society.

1. Mugging : You have probably suffered this at least once in your life, or know someone who has suffered it.

British Legal System : The sentence is discretionary, depending on the crime, but is commonly punished by community service.

Islamic Judicial System : Once guilt is ascertained, the judge will consider the severity of the crime and perform ijtihad (i.e. extracting the rule from the Qur’an and the Sunnah). This may range from public humiliation to death, if the mugging led to death.

2. Burglary : Burglary is extremely common in Britain. No doubt, you are afraid that your house may have been burgled if you are away for any period of time.

British Legal System : The sentence is discretionary, depending on the crime, but is commonly punished with imprisonment.

Islamic Judicial System : Burglars will have their hand cut off, provided they fulfil the seven conditions for this punishment. They are not permitted to have it surgically replaced.

3. Rape : There is a rape in Britain on average every 2.5 hours. Many more go unreported, and in most cases the perpetrator is known to the victim.

British Legal System : The sentence is discretionary, but the punishment ranges from a fine to life imprisonment. Commonly, the period of imprisonment is below 10 years.

Islamic Judicial System : The punishment can be death, depending on the circumstances.

Drugs Abuse : This is extremely common amongst all ages, particularly the youth. It is often seen as a harmless habit. Perhaps you are worried about a child or relative. If not, you probably should be.

British Legal System : The punishment depends on the nature of the drug, and the quantity possessed. Alcohol is legal. For ‘soft’ drugs like marijuana, offenders are usually just cautioned, but ‘hard’ drug abusers (like cocaine, heroin) may be imprisoned.

Islamic Judicial System : Offenders are publicly flogged 80 lashes.

Fornication & Adultery : With the emphasis in our society placed on relationships and sexual freedom, you would be justified in fearing for the conduct of young or indeed older Muslims who are subject to its influence.

British legal System : Both of these are legal, whether done between members of the opposite sex or the same sex ( i.e. homosexuality). In fact, if you were to criticise these you would be blamed for intolerance and discrimination.

Islamic Judicial System : Fornication is punished by flogging 100 lashes. Adultery and homosexual fornication are both punished by public execution.

The objective behind the administration of justice in Islam is to act as a deterrent, to reform offenders and to secure society. As you can see, the nature of sentences in the Islamic Judicial System ensure that these objectives are achieved. History bears witness to this - only about 200 hands are recorded to have been cut in the entire history of the Islamic State!

In the West, however, up to 70% of convicted prisoners re-offend once they are released, and the rates of crime are hardly indicative of a successful deterrent.

One of the fundamental problems in the West is the complete contradiction of the ideology that is pushed upon the people. On the one hand, they are told that freedom is the basic right of the individual. This, however, is an open license to commit crime. When this is combined with the concept of democracy, the contradiction becomes apparent. For democracy is a system of making laws - devices to restrict freedom. The result of this conceptual mish-mash is chaos!

The justice which the Islamic State’s Judicial System proffers will offer you peace of mind, security and confidence that your rights will not be abused. After the checks and balances of personal taqwa and the effect of public opinion, the last level of regulation - the Islamic Judicial System guarantees that the world will be free from the exploitation and corruption of man-made law, and the rising tide of crime that complements it.

The second factor concerns the society itself. In the Islamic State you are in an environment which is based around and propagates only the Islamic values and emotions. There will be no media influences tempting you away from obedience to Allah (swt), nor will the non- Islamic ambitions held by people around us here, like success at all costs or increasing of status, affect us. You will find yourself surrounded by people who look down upon actions contradictory to Islam and who praise those which accord with it.

These will all create a public opinion against committing crime that will act as a check against those who are tempted to do so.

As a Muslim, you appreciate that your belief in Islam, and the notion of obedience to your creator Allah (swt), causes you to behave in a certain way. Your taqwa (fear of Allah) will motivate you to leave what is prohibited (haram), and do what is obligatory (fard). Thus it will automatically help to prevent you and other Muslims around you from committing crimes, like theft, mugging, drug abuse etc. - these are all haram.

For the Muslim, the issue thereafter becomes not weighing up the risks of committing a crime for which there is a possibility of being caught. Instead it is a matter of facing the punishment of the Hellfire, which Allah (swt), the All-Knowing, All-Seeing, prepares for those who go astray!

If on the other hand, you take a look at how the unique Judicial System of the Islamic State operates, you will see that the courts are not the sole factor in curbing the tide of crime. Rather they are the last line of defence. You would see how the State guarantees your rights, and ensures that justice is the only arbiter in your disputes.

With the legal world being so full of technical jargon, loopholes in the law and ‘old boy networks’, your chances of successfully presenting your claims on your own are practically zero. Thus, you need a barrister or solicitor to act on your behalf. But, to your expense, to attain the services of one will cost you money...a lot of money. And the more money you have to spend, the better the lawyer you can buy.

So what if you don’t have more money to spare, and the criminal who robbed your house has used all the earnings from his illicit endeavours to buy the best that the legal profession has to offer? In this industry you will learn very quickly that the evidence in a case is not the deciding factor of the verdict, but it is only one of a variety of the tools that the lawyer makes use of in achieving the outcome he has been paid to produce. It seems that justice does not figure highly on his list of priorities! The bottom line is this. In the quest for getting your legitimate rights....money talks!

With regards to the question of deciding the verdict in your case, this is left up to twelve randomly selected members of the general public - the jury. The evidence is presented to them (eloquently or not depending on how much your lawyer cost), and they weigh it up according to their own opinions. But consider these points:

1. If you came across 12 people in the street, how many of them would you trust? After all, the jury members themselves may be criminals, racist, sexist, liars, cheats...
2. The jury probably know nothing about the details of legal process, the science of forensics or the intricacies of police procedures. Yet they have to judge the evidence according to these bases!

All in all, given some of these facts about the British judicial system, is it any surprise that you don’t have confidence in it?

How safe do you feel walking in the streets of your local area? Do you worry when you are travelling around on your own? What about your mother, or your sister? When you are out, are you concerned about the empty house you have left behind?

If so, it would not be an unusual thing. Crime is a major problem in Western society, with there being 5.6 million officially reported crimes per year in Britain. It is continually on the increase to the extent that nobody can feel secure anymore about their property, honour or even their lives. In fact, such concerns have become part and parcel of everyday life.

However, this dangerous tendency cannot be left entirely unchecked, lest society spirals into an abyss of disorder and chaos. It is for this reason that the institution of the judiciary exists, as a means of dealing with and eradicating crime. But are you confident with the British legal system, for example, in curbing and regulating crime?

In the West, if criminals are caught, the punishment administered is at the discretion of the judge. He, a limited human being just like yourself, is the one who evaluates the severity of the crime, and taking into consideration the opinions of previous judges, gives the sentence that he chooses. Thus, you can see that people who have committed the same crime might receive entirely different punishment.

This is why a 15 year old rapist was ordered by the courts to pay a fine of £500, while a man was fined £1200 for dropping an empty packet of crisps!

Imagine you were victim to one of the more common crimes, such as burglary. In the unlikely event that the perpetrators were caught, how well do you think you would fare in the prosecution? Let us examine some of the possible eventualities.

Ideally speaking, the case would consist of the plaintiff, the defendant, the judge and the evidence. The purpose of the whole affair would be to ascertain the truth of the guilt or innocence of the accused, and to punish or release him accordingly. However, in the British judiciary there are many more factors which impede this objective....