The Muhtasib is the judge who investigates all cases, in the absence of an individual litigation, involving the rights of the public that do not involve the Hudud (proscribed punishments) and criminal acts.

This article is the definition for the judge of the Hisbah, and it is taken from the narration regarding the heap of the food, since the Messenger (pbuh) found dampness in the heap of the food and ordered that it should be placed on top of the food so that the people could see it. Accordingly, these were the general rights of the people that the Messenger (pbuh) was looking into and judged upon by ordering the moist food to be placed on the top of the heap in order to remove any cheating. This encompasses all of the rights which are of this type, and does not encompass the Hudud and criminal acts, since they are not of this nature, and because the origin here is the disputed issues between people.

There is no court of appeal, and no court of cassation, so the judiciary, as far as the method by which the cases are treated, is of a single level. If the judge pronounced a verdict, it would become binding, and it cannot ever be annulled by the verdict of another judge unless he ruled by other than Islam, or contradicted a definite text from the Quran, Sunnah or Ijmaa’ of the companions, or it became clear that he gave a verdict that contradicted the reality of the situation.

This article explains that the ruling of a judge cannot be annulled, neither by himself nor by any other judge. The evidence that the ruling of the judge is not annulled is that the companions had an Ijma’ upon it. Abu Bakr (ra) ruled in the issues according to his Ijtihad, and Umar (ra) differed with him and did not annul his rulings, and Ali (ra) differed with Umar (ra) in his Ijtihad and did not annul his rulings, and Ali (ra) disagreed with both Abu Bakr (ra) and Umar (ra) and did not annul their rulings. The people of Najran came to ‘Ali (ra) and said “O leader of the believers, the judgement is in your hands and your pardon is with your own tongue”. He said: “Woe to you, Umar was rightly guided and I will not reverse a judgement pronounced by Umar.” It has been reported that Umar (ra) judged that in the shared inheritance, the rights of brothers from the father’s side are abrogated. He then ordered that they have a share, and then said “That sentence applies to that case and this sentence applies to this one”, and he executed both sentences despite the contradiction. This was mentioned by Ibn Qudamah in Al-Mughni and Al-Bayhaqi from Al-Hakam Bin Mas’ud Al-Thaqafi. He also judged differently in relation to the grandfather and he never reversed any of the earlier sentences, as is mentioned by Al-Bayhaqi in Al-Sunan Al-Kubra.

As for what has been reported about Shurayh (the judge) having judged in the case of two paternal cousins, where one of them was one of the mother’s brothers, that the estate should go to the brother, this was referred to Ali (ra) who said “Bring him to me”. When he came he said to him “Where in the Book of Allah did you find this?" He said Allah (swt) says,

“But those of [blood] relationship are more entitled [to inheritance] in the decree of Allah.” (TMQ 8:75), so ‘Ali (ra) said to him “Allah also says

“And if a man or woman leaves neither ascendants nor descendants but has a brother or a sister, then for each one of them is a sixth.” (TMQ 4:12), and he then reversed his ruling as is mentioned in some narration. Ibn Qudamah replies to this in Al-Mughni in the chapter of the judiciary saying “It is not confirmed that Ali reversed his ruling, but if it was confirmed it may be that Ali was certain that he contradicted the text of the Quran in the verse which he mentioned and ,therefore, he voided his ruling”. It is confirmed that the companions used to rule in issues according to their Ijtihad and that the Khalifah used to differ with them in their Ijtihad in the eras of Abu Bakr (ra), Umar (ra) and ‘Ali (ra), and none of them would annul the rulings of the other. And it is confirmed that Umar (ra) ruled by opposite and different rulings in single issues, and would execute all of the rulings and not reverse the first ruling by the second one even though they were contradictory, and it is confirmed that he said regarding this “That sentence applies to that case and this sentence applies to this one” (mentioned by Ibn Qudamah in Al-Mughni and Al-Bayhaqi from Al-Hakam b. Mas’ud Al-Thaqafi). This indicates the irreversibility of the judge’s rulings. Ibn Qudamah said in Al-Mughni: “As for if his Ijtihad changed without contradicting a text or an Ijma’, or if his Ijtihad differed from the Ijtihad of those before him, he should not reverse it just because it is different, for the companions have an Ijma’ on that”.

As for what has been narrated from the message of Umar Bin Al-Khattab (ra) to Abu Musa from his words “Do not allow a judgement you passed yesterday, which you reviewed and gained the right guidance, to prevent you from returning to the truth, for the truth is Qadim (old), and to return to the truth is better than to continue with the falsehood” as reported by Al-Bayhaqi in Al-Sunan from Sa‘id Bin Abi Burdah, and Khatib Al-Baghdadi in Al-Tarikh from Sa‘id Bin Abihi, and Al-Daraqutni from Abu ’l-Malih Al-Hathali, what was intended in the letter was if you passed a judgement yesterday and then realised that it was wrong, do not let this stop you from changing it and passing a different judgement in another case. It does not mean that you should annul yesterday’s judgement. That is why Umar (ra) said “to return to the truth” and he did not say to reverse your judgement. To return to the truth means to abandon the wrong opinion and adopt the right one. Therefore, the letter does not serve as evidence that it is permissible to annul a judgement. This is why in Islam there is nothing called judicial precedent. In other words, there is no place to say that in such and such a case the judgement would be so and so. If a certain verdict was passed on a particular case, that verdict does not oblige anyone else to judge accordingly. It is rather permitted to pass a different judgement on a similar case by a different judge if he thinks that the new ruling is more correct. As for the case itself, the rule of Allah (swt) would have been applied to it, ,therefore, the judge would be forbidden from annulling that rule or changing it. This is why there are no courts of appeal in Islam, and nor there is any court of cassation. The judiciary, from the point of view of process, should be of the same level. The Shari'ah principle states: “Ijtihad is not annulled by another Ijtihad.” So no Mujtahid could serve as an authoritative source for another Mujtahid, and thus it would be forbidden to have courts that annul the judgements of other courts.

However if the judge did not rule by the Islamic Shari’ah rules, and ruled by Kufr, or by what contradicts a definite text from the Quran, Sunnah or Ijma’ of the companions, or what contradicts the reality of the situation, such as giving a ruling of Qisas as a result of killing someone, and then the real killer became apparent, then in these situations and similar the rule of the judge is nullified. This is due to the words of the Messenger of Allah (pbuh)

 » مَنْ أَحْدَثَ فِي أَمْرِنَا هَذَا مَا لَيْسَ فِيهِ فَ هُوَ رَد «

“Whoever introduces into this matter (Islam) of ours something which does not belong to it, then it is rejected” (reported by Al-Bukhari and Muslim from Aishah(ra)). And it is reported by Abu Dawud from Jabir

 فَجُلِدَ الْحَدَّ، ثُمَّ أُخْبِرَ أَنَّهُ مُحْصَنٌ  أَنَّ رَجُلاً زَنَى بِامْرَأَةٍ، فَأَمَرَ بِهِ النَّبِيُّ « » فَأَمَرَ بِهِ فَ رُجِمَ

“A man committed fornication with a woman, so the Messenger (pbuh) commanded that he be lashed, then he was told that he was married, and so he commanded that the man be stoned.” and Malik Bin Anas reported in Al-Muwatta

“A woman who gave birth to a six-month baby was brought to ‘Uthman Bin ‘Affan and he ordered that she be stoned. Ali said to him: she does not deserve that since Allah said in His Book: “And his gestation and weaning [period] is thirty months.” (TMQ 46:15) and He said “Mothers may breastfeed their children two complete years for whoever wishes to complete the nursing [period].” (TMQ 2:233) which means that the pregnancy can be six months, and so she is not to be stoned. ‘Uthman sent for her, but found that she had already been stoned.” And ‘Abd Al-Razzaq reported from Imam Al-Thawri “if a judge ruled in contradiction to the Book of Allah, or the Sunnah of the Messenger of Allah (pbuh) , or something agreed upon, then the judge after him should nullify it”.

The one who has the power to nullify these rulings is the judge of the Madhalim.

It is permissible to vary the grades of courts in respect to the type of cases. Some judges may thus be assigned to certain cases of particular grades and other courts to be authorised to judge the other cases.

Its evidence is that the judiciary is delegated by the Khalifah and it is just like proxy, with no difference between them. The judiciary is one form of proxy, and it is permitted for proxy to be general or specific. Therefore, it would be permitted to appoint a judge to deal in specific cases only, and prohibited from dealing with any other ones. It is permitted to appoint another judge to look into all sorts of cases including those mentioned, even in the same location, or to look into cases other than those mentioned. Therefore, it is permitted to have various levels of courts, and Muslims had this in the first era. Al-Mawardi wrote in his book entitled Al-Ahkam Al-Sultaniyyah: “Abu ‘Abd Allah Al-Zubayr said: ‘The leaders here in Basra used to appoint a judge at the central mosque, and they called him the judge of the mosque. He used to judge in disputes involving amounts below twenty Dinars and two hundred Dirhams, and he used to impose maintenance (Nafaqah). He would not exceed his boundaries and nor the duties entrusted to him’”. The Messenger of Allah (pbuh) delegated others on his behalf in the judiciary in a single case such as when he delegated Amr b. Al-‘As, and he delegated others on his behalf in the judiciary in all of the cases in a particular province as he did when he delegated ‘Ali b. Abi Talib (ra) over the judiciary in Yemen. This indicates that it is permitted to have a specific and general judiciary.

The judge can only give a verdict in a court session, and any evidence and oaths can only be considered in the court session.

Its evidence is what is narrated by ‘Abd Allah Bin Al- Zubayr who said,

» أَنَّ الْخَصْمَيْنِ يَ قْعُدَانِ بَ يْنَ يَدَيِ الْحَكَمِ  قَضَى رَسُولُ اللَّهِ «

“The Messenger of Allah (pbuh) commanded that the two litigants sit in front of the judge (between his hands) .” (reported by Ahmad and Abu Dawud with the wording from Abu Dawud). This narration explains the form in which judgement is carried out and it is a lawful form in itself. There must be a specific form in which the judicial process be conducted, which is for the two disputing parties to sit before the ruler, and this would be the court session. Therefore, this is a condition for the validity of the judicial process i.e. it is imperative that there be a specific assembly where the judgement is to be conducted for it to be a valid judgement and this would be for the two disputing parties to sit before a ruler. This is supported by the narration of Ali (ra) when the Messenger of Allah (pbuh) said to him:

 يَا عَلِيُّ، إِذَا جَلَسَ إِلَيْكَ الْخَصْمَانِ فَلاَ تَ قْضِ بَ يْ نَ هُمَا حَتَّى تَسْمَعَ مِنَ الآخَرِ « » كَمَا سَمِعْتَ مِنَ الأَوَّلِ

“O ‘Ali, When two litigants sit in front of you, do not decide till you hear what the other has to say as you heard what the first had to say.” (reported by Ahmad), which also explains the specific form with his words

 إذَا جَلَسَ إيليكَ الخَصْمَا ي ن

“when two litigants sit in front of you”. So the court session is a condition for the validity of the judgement, and in the same manner it is a condition for the consideration of the oaths, due to the words of the Messenger (pbuh)

 » وَلَكِنَّ الْيَمِينَ عَلَى الْمُدَّعَى عَلَيْهِ «

“and the oath is upon the one who was accused (defendant)” (agreed upon from Ibn Abbas), and he would not have this attribute, the attribute of being accused, except in a court session. In the same manner, there would be no consideration for evidence unless given in a court session, due to the words of the Messenger (pbuh)

 » الْبَ يِّ نَةُ عَلَى الْمُدَّعِي «

“The onus of proof is upon the claimant (plaintiff)” (reported by Al-Bayhaqi with an authentic chain as Ibn Hajar said), and this attribute would not be given except in the court session.