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.

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.”.

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.”.

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.”.

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.”.

Muslim, Abu Daud and Al-Nissai reported : Ibn Abbas said, “The Messenger of Allah (saw) judged between the people by oath and witnesses.”.

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.”.

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:

The ahadith indicate that people are motivated to become judges, due to the reward of the judge.

The ahadith make terrified those people who want to become judges if they are not capable.

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.

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.

They prove that the Messenger of Allah (saw) took oaths and witnesses and that they are evidences which can be used in proving cases.

They state types of judges, e.g. Qadi Muhtasib - who establishes justice and fair dealing in the market place.

They state the authenticity of appointing judges, as per Mawardi - Imam ‘Ali and Mu‘adh ibn Jabal.