Among the judge’s attributes, some are prerequisites for the very permissibility of his appointment. Should a man be invested with the office while lacking any of these, he must be removed and every verdict he has issued is to be annulled.

Other traits are required only for the continuance of his mandate, not for its initial validity. If a judge subsequently loses any of these, he is to be deposed, yet his previous rulings stand—unless they were manifestly unjust. The scholars count hearing, sight, and speech among this second category.

Mālik further stipulates that only one judge hold authority in a given jurisdiction. Al-Shāfiʿī, however, allows two judges in the same city provided each is assigned a distinct sphere of jurisdiction. If their appointment is conditioned on their unanimous agreement in every case, it is invalid. If each is granted full independence, two opinions are reported: one permitting, the other forbidding.

He (Mālik) states: If the two litigants dispute over which judge to approach, they must draw lots before him.

The merits of the judiciary are many and may be found detailed in the legal compendia. Jurists have disagreed over whether an illiterate man may serve as judge. The stronger view is that it is permissible, since the Prophet—peace and blessings be upon him—was himself unlettered. Others hold it impermissible, and both positions are transmitted from al-Shāfiʿī, for it is conceivable that the Prophet’s case was unique, given the impossibility of his imitating others.

There is no disagreement over the validity of the Supreme Imām’s own judgments, and his formal appointment of a judge is a condition for the soundness of that judge’s rulings; I know of no contrary opinion.

Related to this is the question of whether the decision of a person accepted by both litigants, yet holding no official judicial office, is binding. Mālik says it is; al-Shāfiʿī, in one of his two views, says it is not; Abū Ḥanīfah says it is binding provided it accords with the ruling that the city’s official judge would have delivered.

[Chapter Two: Identifying the Sources on Which Judgment Is to Be Based]

As for the scope of his jurisdiction, the jurists agree that the judge rules in every matter of rights—whether they are the rights of Allah or of human beings—and that he serves therein as the deputy of the Supreme Imām. He may contract marriages and appoint guardians of orphans’ estates. Whether he may appoint prayer-leaders for the congregational mosques is disputed, as is his authority to designate a deputy during illness or travel unless expressly authorized. He has no jurisdiction over the affairs entrusted to other governors, but he may impose interdiction upon the prodigal according to those who deem such interdiction lawful.

A further issue: Does a judicial ruling render the property awarded thereby lawful for the successful litigant if, in reality, it is not lawful? All scholars concur that the overt judgment of a judge neither makes the unlawful lawful nor the lawful unlawful. This discussion pertains specifically to property, in light of the Prophet’s—peace and blessings be upon him—statement:

“I am only a human being, and you bring your disputes to me. Perhaps some of you are more eloquent in presenting their plea than others, so I judge in their favor according to what I hear. If I award a man something that is truly his brother’s right, let him not take it, for I have only allotted him a piece of the Fire.”