Book of Judiciary
Introduction

The office of judge is a communal obligation (farḍ kifāya). Once it becomes an individual duty for a specific person, he must seek it. Otherwise, if someone better qualified is already carrying it out, the less-qualified candidate may accept the post—though another opinion says he may not—and seeking the position is disliked; a further view deems it forbidden. If the available candidate is equal to those already serving, he may accept, and requesting the post is recommended when he is unknown but hopes thereby to spread knowledge, or is in need of a livelihood; in other cases, it is preferable to leave it.

I say: the sound position is that actively seeking it is disliked; Allah knows best. Whether the duty becomes individual or remains communal is assessed town by town.

Requirements for a judge are that he be a Muslim, legally competent, free, male, upright, able to hear and see, articulate, capable, and a mujtahid. That means he must know from the Quran and Sunnah all that pertains to legal rulings: the specific and the general, the concise and the detailed, the abrogating and the abrogated; the mass-transmitted Sunnah and other reports; connected and mursal traditions; the reliability and weakness of narrators; the Arabic language—both vocabulary and grammar; the statements of the scholars from the Companions onward, whether consensus or disagreement; and the various kinds of analogical reasoning. If no one combining all these qualifications can be found and a ruler with effective power appoints a sinner or a mere follower (muqallid), his judgments are valid out of necessity.

It is recommended that the ruler, when appointing a judge, authorize him to deputise others. If he forbids it, the judge may not appoint a deputy. If he gives him unrestricted permission, then, according to the sound view, the judge may deputise only in matters he is unable to handle himself, not in everything.

The deputy must meet the same conditions as a judge, except that if he is delegated for a specific task—such as hearing testimony—it suffices that he know what that task requires. He must judge according to his own ijtihād—or, if he is a muqallid, according to the ijtihād of the scholar he follows—and no stipulation contrary to this is lawful.

If two litigants appoint a man to arbitrate in a case that does not involve the prescribed punishments of Allah, the arbitration is valid in all circumstances, provided he is qualified to be a judge. A second opinion holds it invalid, and a third permits it only when no judge is present in the town.