College of Law ISLAMIC LEGAL THEORY (158000323)

SOAS, University of London LLB/BA

10. Courts and Procedure:

Administration of Justice and Dispute Resolution
Al-Qadā’
~ Legal Authority for al-Qadā’

“… and when you judge between people, you should maintain justice; surely God admonishes
you with what is excellent, surely God is Seeing, Hearing” – Q4:58.

“Judges are of three types, one will go to paradise and two will go to hell. The one who will go
to paradise is he who knows the right and gives judgment accordingly; but he who knows the
right and acts unjustly in his judgment will go to hell, and he who gives judgment based on
ignorance will go to hell”. – (Abu Dawud).

“Islamic law recognizes the importance of adjudication (al-qadā’, pl. al-aqdiyah) for the purpose of
administration of justice. Most classical fiqh manuals have a ‘chapter on adjudication’ (kitāb al-
aqdiyah) covering the Islamic rules on administration of justice. Upholding justice is generally
enjoined in Qur’anic verses such as Q4:58 —‘. . . when you judge between people, you should
maintain justice . . .’, and ahādı̄th such as: ‘Judges are of three types, one will go to paradise and
two to hell. The one who will go to paradise is he who knows the right and gives judgment
accordingly; but he who knows the right but acts unjustly in his judgment will go to hell, and he who
gives judgment based on ignorance will also go to hell’ (Abū Dāwud). The divine sources mainly
enjoin substantive justice while relevant details on judicial procedure were formulated
jurisprudentially by the classical jurists.” - (Baderin, M.A., Islamic Law: A Very Short Introduction
(2021) p. 123).

~ Historical development and nature of

“Muslim jurists traced the development of Islamic administration of justice back to the Prophet’s
practices derived from the judicial authority conferred on him by Qur’anic provisions such as Q4:65
—‘. . . they can have no real faith until they make you [Muhammad] judge in all disputes between
them, and find in their souls no resistance against your decisions, but accept them with full
conviction’, followed by the practices of the orthodox caliphs and rising to its peak during Abbāsid
rule when the judicial processes and institutions were formally established. Western scholars such
as Schacht have argued that ‘the first caliphs did not appoint qādı̄s and in general did not lay the
foundations of what later became the Islamic system of administration of justice’ but that its
foundation was laid during Umayyad rule. That view has been contested by Muslim scholars such
as Zafar Ansari, Muhammad Guraya, and Tāhā Al-Alwānı̄, who note that the administration of
justice started with the Prophet in Madı̄nah and was consolidated in form and procedure under the
Abbāsids. Thus, the processes of administration of justice in Islamic law have never been static or
inflexible but leave room for necessary refinement as the needs of substantive justice demand.
Such refinements are left to the jurists and the relevant state authorities to decide in accordance
with the sharıʿ̄ah from time to time. The jurisprudential rules relate to the appointment and role of
judges, structure of courts, rules of procedure, rules of evidence, appeals and judicial reviews, etc”.
– (Baderin, ibid.).

~ Legal Status of al-Qadā’

- Fard al-kifāyā (communal obligation)

- Fard al-‘ayn (individual obligation)

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SOAS, University of London LLB/BA

“Being mainly procedural, the process of administration of justice under the Shari’ah system, is
covered mostly under Fiqh provisions. Apart from few provisions, for example on the number and
quality of witnesses, and the process of conciliation (Sulh) in marital disputes, the divine sources
mainly cover substantive law while the relevant specific details on the legal process and procedure
were provided by the jurists in their jurisprudential works” – (Baderin, M.A. “Administration of
Justice under the Shari’ah, Common Law and Civil Law Systems: Towards a Better Understanding”
(2010) 2 Malaysian Journal of Syariah and Law, pp. 1-48, at 22).

“During the Prophet’s reign, Madinah was small, and the community’s legal problems were few and
uncomplicated. And so there was a need for only one judge (qadi) — the Prophet. But when the
territories ruled by Muslims began to expand, the Prophet began to entrust some of his governors
with judiciary responsibilities and permitted some of his Companions to judge cases. He sent them
to different lands and advised them to seek justice for the people and to oppose inequity. … The
judgments passed by the Prophet were always based on what Allah had revealed to him. In most
cases, the two disputing parties would agree to present their case to the Prophet. After listening to
both sides, he would tell them that he was deciding their case solely on the basis of the externals
(i.e., evidence and testimony). He was careful to explain that his decisions should not be cited in
order to permit what was prohibited or to prohibit what was permitted. He explained the proof and
evidence and the means of defence and denial”. … It should be clear from the historical survey …
that the Shari’ah did not specify a particular juridical framework. Rather, it established the
principles, general foundations, objectives, and sources of legislation. Organizational details (i.e.,
the extent of a judge’s jurisdiction, limitations of his authority in terms of time and place, the
assignment [or lack thereof] of another judge to work alongside him) were to be determined by the
people’s customs, needs, and circumstances. As there is nothing in the Shari’ah that entrusts the
juridical process to an individual or an institution, it was left up to the Muslim leadership to decide.
The responsibility could be spread among several officials or confined to one, as long as the sole
requirement was met: the ruler must ensure that those entrusted with this responsibility meet the
Shari’ah’s conditions”. – (Al-Alwani, T.J., “The Rights of the Accused in Islam” (1994) 11 American
Journal of Islamic Social Sciences, No. 3, pp. 348-64, at 349 & 353).

The Qādī
~ Qualifications:

- Qualification of knowledge
- Qualification of character

“The person who executes judgement deputises for the Muslim ruler (Caliph or king or the
government in authority). It is preferred that he should be courageous in giving judgement and
should also satisfy the condition of being responsible and man of integrity. He should also be a free
man and free from loss of sight, hearing and speech. It is also required that he should be a man of
learning and piety. He must know the principles of Islamic jurisprudence. He should sit wherever it
is suitable for him to hold court. In towns, it is preferable that he (the judge) should hold court in the
mosque building.” - (Al-Andalusi, M.B.A., Tuhfat Al-Hukkam or Gift for the Judges, (trans. Daura,
B.M.,) Zaria: Ahmadu Bello University Press, 1989, p.3 (original work published in 14 th/15th
Century).

“The qādī’s authority is not valid unless he posses the qualifications of a witness and also be a
mujtahid… However, [the qadi] being mujtahid is [merely] a preferred condition, because, for us
(i.e. Hanafīs), contrary to Shāfi’ī, a non-mujtahid may be appointed as qādī”. - (Al-Marghinānī, Al-
Hidayah, Vol. 2., p.112).

“The conditions stipulated for permissibility [as qadi] are that the person be a free, Muslim, major,
male, sane, and adl (probity). They disagreed about his being one of those qualified for ijtihad. Al-
Shafi’I said that it is necessary that he be a mujtahid. … Abū Hanīfa said that the judgement of a
layman is valid”. – (Ibn Rushd, Bidāyat al Mujtahid, (trans. Nyazee) Vol.2, p. 553).

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SOAS, University of London LLB/BA

“In his al-ahkām al-sultāniyyah, al-Māwardı̄ identifies seven basic requirements, combining
knowledge and character, for appointment to the office of qādı̄. With regard to knowledge, he
identifies that the qādı̄ ‘must have knowledge of the laws of the sharıʿ̄ah and his knowledge must
extend to a comprehension of its principles and to the execution of legal decisions based on these
principles’. The jurists differ on whether the qādı̄ has to be a mujtahid, with the Shāfiʿıs̄ , the
Shıʿ̄ahs, and Ibn Quddāmah holding that a qādı̄ has to be a mujtahid, while the Hanafı̄s opine that
a non-mujtahid could be appointed as qādı̄. Imām Mālik held that a qādı̄ has to, at least, be well
versed in Islamic jurisprudence (faqı̄h). Ghulam Azad argues that these different juristic views were
‘correct in respect of the time and circumstances of the aforementioned scholars’. In most Muslim-
majority countries today, a non-mujtahid may only be appointed as a qādı̄ for the lower sharıʿ̄ah
courts where ijtihād is not often required, while a qādı ̄ for the superior sharıʿ̄ah courts must be a
qualified mujtahid and required to exercise ijtihād in necessary cases before him. The qualification
of character and conduct relates generally to piety and probity, with al-Māwardı̄ stating that this
requires a person to be, inter alia, righteous, just, truthful, free from forbidden acts, and equitable
both when sober or angry”. – (Baderin, supra, p. 125). See also: (Al-Mawardi, "Administration of
Justice" in al-Ahkam al-Sultaniyyah, Chapter 6).

~ Appointment of Female Qādī

“Notably, al-Māwardı̄ and other classical jurists mention a contentious condition that requires
attention in view of contemporary developments, namely that the qādı̄ must be male. Ibn Rushd
states in his bidāyah al-mujtahid that while a majority of jurists hold that being male is a required
condition for the validity of judgeship, Imām Abū Hanı̄fah held that it is permissible to appoint a
woman as a qādı̄ in cases involving financial claims, while Imām Jarı̄r al-Tabarı̄ asserted that it is
permitted for a woman to be a judge in all cases without restriction. The classical majority view on
this point is apparently out of date for contemporary times and most Muslim-majority countries have
adopted the position of Imām al-Tabarı̄ on this point … and appointed female judges at different
judicial levels today”. – (Baderin, 2021, supra, p.126).

“[The jurists] differed about the condition of being male. The majority said that it is a condition for
the validity of [judgeship]. Abū Hanīfa said that is permitted for a woman to be a qādī in cases
involving financial claims. Al-Tabari said that it is permitted to a woman to be a judge in all things
without any restriction”. – (Ibn Rushd, Bidāyat al Mujtahid, (trans. Nyazee) Vol.2, p. 553).

“The differences of opinion arise from the interpretation of a Tradition in which it is reported that
when the Prophet heard that the Persians had enthroned a daughter of the Chosroe as their Queen
he said: ‘Any nation that leaves its affairs in the hands of a woman would not prosper’ [al-
Bukhari]. … On the basis of that Tradition, a petition was brought before the Federal Shariat Court
of Pakistan in 1982 challenging the appointment of women judges as being violative of Islamic law.
In his judgment, the Chief Judge of the Court, Aftab Hussain, CJ, extensively examined the
different opinions of Islamic jurists on the Tradition. The learned judge cited a list of classical and
contemporary Islamic legal works to establish that Imam Ibn Jarir al-Tabari, for instance, supported
the appointment of a woman both as a judge and as a Head of State and that a similar view was
attributed to Imam Malik, which was favoured by the Mâlikî jurists as well. … There is no verse of
the Qur’an that specifically prohibits a woman from being elected to any public office under Islamic
law. The wording of the Tradition itself leaves room for the different opinions that have been
expressed by Islamic jurists concerning its interpretation”. – (Baderin. M., International Human
Rights and Islamic Law (2003) p. 161).
"Many pre-modern Sunni Muslims invoked this [hadith] text to justify the complete exclusion of
women from various public offices. It also appears that, at least in certain contemporary Muslims
societies, this ḥadīth continues to be commonly used to justify exclusion of women from public
office. Given the general desire of even Muslim traditionalists in the modern period to exonerate the
Islamic tradition of openly misogynistic views, however, contemporary Muslim understanding of this
Prophetic report, as well as the question of female participation in public affairs, has undergone

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SOAS, University of London LLB/BA

substantial revision”. – (Fadel, M., “Is Historicism a Viable Strategy for Islamic Law Reform?: The
Case of ʿNever Shall a Folk Prosper Who Have Appointed a Woman to Rule Them’ (2011)18
Islamic Law and Society, pp. 131-176 at p. 139).

 Ansar Burney v Pakistan (1983) PLD FSC, 73.

 Najaat Welfare Foundation v Federation of Pakistan (Shariat Petition No. 25-I of 2022, FSC
Judgement, 28-03-2023)

“[T]he appointment of female judges is not against the Injunctions of Islam as laid down in the
Quran and Sunnah. … Islam is the only religion which is based upon a revealed book of Allah
in which a substantial portion of beliefs and practices are based on those traditions or Hadiths
which are narrated by female companions of the Holy Prophet (PBUH) in general and by the
wives of the Holy Prophet (SAW) in particular. It is because Allah (SWT) has placed the wives
of the Holy Prophet (SAW) at the highest revered place amongst the companions and … Allah
(SWT) specifically put them under a duty to narrate traditions of the Prophet (SAW) to the
ummah. As a result of this command of Allah, a great portion of our religion, faith, religious
beliefs and practices are transmitted to the Ummah through these highly exalted and revered
ladies, i.e. the Mothers of the Faithful. This is a unique aspect of our religion and tells us the
actual elevated status, whereupon our religion Islam places women. … For the reasons
stated above and those which are stated in earlier judgements of this Court and are referred
herein above, moreover in the light of Article 203B of the Constitution of the Islamic Republic of
Pakistan, 1973, we see no merit in the instant petition, hence it is hereby dismissed in limine”
(par. 6 &10).

See generally:
 Bauer, K., “Debates on Women's Status as Judges and Witnesses in Post-Formative Islamic
Law” (2010) 130 Journal of the American Oriental Society, No.1, pp. 1-21.
 Sonneveld, N., and Lindbekk, M., “Introduction: A Historical Overview of Gender and Judicial
Authority in the Muslim World” in Sonneveld, N., and Lindbekk (ed.) Women Judges in the
Muslim World: A Comparative Study of Discourse and Practice, Leiden: Brill, 2017.

~ Concept of “Kadijustiz” (Negative reference to Islamic judicial practice)

In Terminiello v. Chicago (1949), Mr. Justice Frankfurter, commenting on his own court, said: “This
is a court of review, not a tribunal unbounded by rules. We do not sit like a kadi under a tree
dispensing justice according to considerations of individual expediency.” For Justice Frankfurter,
as for many others, the image of the Islamic law judge, the qadi, is often that of a man sitting
barefoot and turbaned under a tree or in the corner of a mosque dispensing justice off the top of his
head. Even Max Weber, who appreciated that actual Islamic adjudication was neither capricious
nor unrestrained, chose the term Kadijustiz to refer to a type of legal system in which judges have
recourse to a general set of ethical precepts unevenly employed on a case-by-case basis rather
than to a series of rules abstractly formulated and uniformly applied. - Rosen 217.

 See: I.A. Rabb, “Against Kadijustiz: On the Negative Citation of Foreign Law” (2015) 48 Suffolk
University Law Review, 343.

“Muslim procedure is [...] somewhat rigid and formal, for it is designed to be largely “self-acting” and
to leave as little as possible to the discretion of the Qadi (apart from that function of conciliation
which is always his.) This is probably partly to protect the community from any arbitrary use of his
power and partly to protect him from the community’s resentment at unpopular decisions”. –
(Anderson, p.4).

~ The Qadi’s role:

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SOAS, University of London LLB/BA

“He decides in disputes and brings to an end differences and discord by making peace to the
mutual satisfaction of both parties, either by considering possible solutions to the affair, or by
enforcing an irrevocable judgement based on what is obligatory in the situation.” - (Al-Mawardi on
the role of the qadi, trans. Yate 106).

“… the jurists agreed that the qādī adjudicates each right, whether it pertains to the right of God or
to the right of human beings. He is the representative of the head of state for this purpose,
registering marriages and appointing executors … [and] he supervises interdiction of the
prodigal…”.

(Under the early Umayyads i.e. till around 720): Provincial governors were the principal judicial
officers, but they left actual dispute settlement to the kadis. At this point, however, the kadi was
simply the legal secretary to the governor, appointed by him and exercising his delegated authority.
Decisions by the kadi were reviewable by the governor. The kadi replaced the hakim, the triadic
figure whom disputing Arabs had selected by mutual consent to mediate their disputes. Thus at
first the kadi handled only “private” disputes voluntarily brought to him by both parties. This is a
typical pattern of a new central political regime supplanting purely private triadic dispute settlers
with public officials. – (Shapiro).

~ Studies of shari’ah court records (sijīllāt or sijīlls)

“Shari’a court records are among the most important sources available for the social, economic and
cultural history of the Ottoman empire and its provinces, especially from the sixteenth century
onwards. The records contain invaluable material on diverse subjects such as economic
consumption, agrarian relations, personal status, social stratification, crime and local politics”.

“IT IS NOW OVER TWENTY-FIVE YEARS since historians began to use Ottoman shari’a court
records systematically as a source for the history of the Middle East. During this period the group of
sources known as the sijillat (sg. sijill) have become the most important evidence in our possession
for social and cultural history from the beginning of the sixteenth century to the beginning of the
twentieth century. It is now inconceivable for a scholar studying Ottoman society, culture or
economy, to ignore the sijill. Hundreds of books and articles have appeared in which the authors
make extensive use of court records from the Balkans, through the Mashriq and Maghrib, to the
Arabian peninsula” - (Ze’evi, D., “The Use of Ottoman Sharia Court Records as a source of Middle
Eastern Social History: A Reappraisal” (1998) 5 Islamic Law and Society, No. 1, pp.35-56 at 35).

“It is also an established fact the in 1913 [a] Shari’ah Court was officially established in Ede, now in
Oyo State. It is recorded that the first Qadi of the Court was one Sindiku (Siddiq). He was so very
proficient in Arabic language that he even recorded the court proceedings in Arabic language” -
(Doi, A.R., Islamic in Nigeria, Zaria: Gaskiya Corporation Ltd, 1984, p. 213.)

~ A revered and dreaded position

o Ibn Mas’ud is reported to have said: “That I administer justice for one day is preferable to me
than seventy years of worship”. (Ibn Farhun)

o “He who is appointed as a judge has been slaughtered without a knife” (Abu Dawud).

o “When a judge exerts himself and gives a right decision, he will have a double reward, but if he
errs in his judgment after exerting himself he will still merit a reward”. - Hadith

“The peculiar position of the qadi and his dependence on the truthfulness of witnesses gave rise to
the saying, “The qadi is the prisoner of the witness” (asīr al-shāhid). The type of error that results

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College of Law ISLAMIC LEGAL THEORY (158000323)
SOAS, University of London LLB/BA

from a testimony that is invalid, untrue or revoked is commonly dealt with in a separate chapter in
the lawbooks”. – (Rebstock, 26).

Judicial Procedure

“Although judicial procedure is normally classified as adjectival law, there are substantive
jurisprudential rules and principles regulating it under Islamic law. Judges are enjoined by relevant
provisions of the Qur’an and the sunnah to always discharge justice fairly but the details of the
procedure are not provided in these sources. The early Muslim jurists thus laid down evidential and
judicial procedures in Islamic law to facilitate the realization of substantive justice as generally
prescribed by the shari’ah The traditional substantive rules and principles of Islamic judicial
procedure are, therefore, not sacrosanct but have evolved over time in response to the need for the
realization of substantive justice” – (Baderin, M., “Islamic Substantive Law in Context (2014) at
[Link]).

Caliph Umar’s letter to Abu Musa al-Ashari “on the eve of his appointment as Qadi outlines the
functions and responsibilities of a Muslim judge and is equally relevant even today. Among other
things, he said in the letter” (reproduced from Doi: Shari’a: The Islamic Law, 14-15).

“Try to understand the depositions that are made before you because it will be useless to
consider a plea that is not valid. Consider all equal before you in the court and (consider them
equal) in giving your attention to them so that the highly placed people may not expect you to be
partial and the humble may not despair of justice from you. The claimant must produce evidence.
And oath must be taken from the defendant. It is permissible to have compromise among Muslims
but not an agreement through which Haram (unlawful) would be turned to Halal (lawful) and vice
versa.
If you have given judgement yesterday and today you may arrive to a correct opinion upon re-
thinking, you must not feel prevented from retracting from your first judgement, because justice is
primeval, and it is better to tract than to continue in error. Use your own individual judgement about
matters that perplex and about which neither an answer is found in the Qur’an and the Sunnah.
Know the similitude and weigh the issues accordingly (here Abu Musa is asked to use individual
judgement and arrive to a logical conclusion through the use of Qiyas and Ijtihad). If one brings a
claim, which he may or may not be able to prove, decide a time-limit for him. If he produces
evidence within the time-limit set (by you), you should allow his claim, otherwise you are at liberty to
give judgment against him. This is the best way to forestall or clear any possible doubt. All Muslims
are acceptable as witnesses against each other, except those who have received a punishment
(earlier) provided by the Shari’ah, and those who are proved to have given false witness, and those
who are suspected partially on the ground of client status or relationship, because Allah, praised be
His name, forgives one because of taking oaths and postpones punishments in the face of the
evidence. Avoid weariness, fatigue and annoyance at the litigants. Allah will grant you a great
reward and give good reputation for establishing justice in the courts of justice.”
- Preliminary stage of trial
- Substantive stage of trial

~ Evidence

“The main duty of a judge in any legal system is to try to establish the truth of any case before the
court and the best means of doing so is through evidence, as judges are not normally privy to the
events that gave rise to the case before them. Under Islamic law, evidence is known as al-bayyinah
and the two main methods of procuring evidence are through witness testimony (shahādah) and
defendant’s confession (iqrār). Other alternative methods of evidence on which the jurists hold
different views are circumstantial evidence (qarā’in), oath (qasam), and use of the judge’s personal
pre-trial knowledge (ilm al-qādı̄) about issues before the court. Ibn Rushd notes that ‘A judgment

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College of Law ISLAMIC LEGAL THEORY (158000323)
SOAS, University of London LLB/BA

may be based on (one or more) of four things: testimony, oath, refusal to take an oath and
confession. It may also be based on a combination of these.’” – (Baderin, supra, 2021, p.128).

“A judgement may be based on (one or more of) four things: testimony, oath, refusal to take an
oath and confession. It may also be based on a combination of these things” – Ibn Rushd, Bidayah,
p.556.

o Article 76 of the Majallah: “Evidence is upon he who claims; the oath is upon he who
denies”. (Hadith)

~ mudda`ī - mudda`ā `alayhi

~ da’wah – da’wah sahīhah
~ maqāl – jawāb
~ Iqrār – inkār – yamīn al-inkār
~ Bayyinah - Istishāb

“Typical of the action in Islamic law is a very sharp distinction between the parts of the plaintiff
(claimant) on whom the onus of proof lies, and the defendant whose statement, confirmed by the
oath, holds good, that is to say, in whose favour the presumption operates if there is no proof. It is
therefore of great importance that these parts should be assigned correctly. Because the stringent
rules of Islamic law as regards evidence bring it about that no proof can be offered in many
lawsuits, the problem of deciding who is plaintiff and who defendant often amounts to deciding
whose statement holds good, in whose favour the presumption operates. It is not always possible
to give an unqualified answer to this question; very often each party raises claims against the other,
and then both have to take the oath...” – (Schacht, 191).

“In reality the mudda`i is the party on whom lies the burden of proof, and the only adequate
definition is something along these lines: the mudda`i is he whose averment lacks both any normal
legal presumption or any special circumstantial presumption in favour of its truth; and the mudda`a
`alayhi is he whose averment is supported by one or other of these presumptions”. – (Anderson;
Rosen, 226-7).

~ Witnesses:

 quality of `adl (being just/integrity).

 screening the witnesses: tazkiyat ash-shuhūd – ta’dīl
 Other personnel include: wakil (‘agent’ representing a party); `udūl (‘notaries) muftis
(counsellors)

 As a judge, the Prophet said:

“I am a human being like you; when you bring your disputes to me it is possible that one of you
may present a more persuasive proof than the other and I would decide for him on the basis of
what I hear from him. If I have granted a right to a person that actually belongs to his brother,
he should not take anything from it, for surely I have carved out for him a share in hell-fire”
(Hadith).

~ Appeals

“Classical Islamic law apparently constitutes an exception to the finding that legal systems in
complex societies invariably possess hierarchical appellate structures. The prevailing wisdom
among Islamicists for over half a century has asserted that there are no appellate structures in
Islamic law, that the decision of a judge is final and irrevocable, and that a judgment may not be
reversed under any circumstances. The exceptional nature of Islamic law has been explained by

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SOAS, University of London LLB/BA

Martin Shapiro as a function of the absence of hierarchy in the Islamic religious community. [...] I
argue that Shapiro has been poorly served by Islamicist scholarship...” - (Powers 315)

[T]he basic validity of appellate review should not have been questioned at all. For the jurists of the
various schools have [...] spoken at length on the grounds of judicial review and principles which
regulate this subject. To dispute the basic validity of appellate review would thus appear
superfluous. Besides, when one looks at the history of government in Islamic lands, one finds that
judicial review has always been available in practice... – (Kamali, 68).

[T]he tendency of Western scholars to associate the notion of appeal with hierarchical structures
may reflect a cultural bias that obscures underlying similarities between Western and non-Western
cultures and their respective legal systems. – (Powers, 317)

The classical legal position teaches that a judge’s decision, when based on the proper legal texts
and fulfilling the necessary procedural conditions of judgment, is binding and may not be reversed.
It should be noted, however, that this legal formulation leaves open the possibility of reversing a
decision that fails to meet these conditions. – (Powers, 322).

o “Whoso judges not according to what God has sent down - they are the unbelievers. -
Q5:44.
o “And remember David and Solomon, when they gave judgment in the matter of the field
into which the sheep of certain people had strayed by night; We did witness their
judgment. To Solomon we inspired the understanding of the matter; to each we gave
judgment and knowledge....” – Q21: 78-9.

“The right of appeal to a higher forum is recognised under Islamic law. Abu Yusuf was the first Qadi
al-Qudat (Chief Justice) in the administration of Islamic justice. He was appointed during the rule of
the Abassid Caliph, harn al-Rashid in Baghdad in the eight century and could hear appeals and
review the decisions of other judges throughout the Islamic Empire. Islamic jurisprudence thus
provides for the principles of appeal and revision of judgements. This is under the Islamic legal
principle of murafa’ah which exists in the Islamic legal system of many Muslim States.” - (Baderin,
International Human Rights and Islamic Law, 109).

Arbitration/Mediation/Conciliation

~ Tahkīm, Sulh, Wasātah

- Pre-Islamic Arabia
- Role of Muhammad before Prophethood
- The Battle of Siffin Arbitration 657CE

~ Sahib al-Mazalim

[Mawardi on the role of the mazalim official, 126]: “He is able to refer litigants to the arbitration
of trusted persons -- if the former become very troublesome -- in order that they may resolve
the differences to the satisfaction of both parties. The Qadi, however, is not able to do this
unless the litigants agree.”

~ Sulh: ‘amicable settlement’, conciliation

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College of Law ISLAMIC LEGAL THEORY (158000323)
SOAS, University of London LLB/BA

- Muslihun (those who help negotiate compromise/reconciliation):

“Whether the people who helped negotiate compromise (collectively called muslihun and never
mentioned by name) were actually part of the court can be questioned. Often litigants reported to
the court that muslihun had negotiated sulh between them, indicating that this compromise had
been accomplished away from the court. Other times the litigants reported that, after they had
come to court, muslihun had negotiated sulh between them. At least in the latter case, encouraged
both by the court and by Islamic law, sulh can be considered “official”. Muslihun who abetted this
process were probably drawn from [...] friends of both parties and neutrals who happened to be at
hand and deserve to be considered participants in the procedure of the court. [...] Sulh was a
frequent solution to cases at the Kayseri court and the muslihun performed a useful function. – (R.
Jennings, Kadi, ‘Court and Legal Procedure in 17th Century Ottoman Keysari’, Studia Islamica 48
(1978) 148.)

Modern Reforms in Administration of Justice under Islamic Law

“The non-sacrosanct nature of judicial procedure rules under the shari’ah is reflected, for example,
in Saudi Arabia’s enactment of a new Law of Procedure before Shari’ah Courts in 2000 containing
266 articles and a new Law of Criminal Procedure in 2001 containing 225 articles. Most of the
provisions in both laws would not necessarily be found in traditional fiqh manuals but are based on
modern procedural norms that ensure an effective administration of justice in modern times. There
have been similar endeavours by other Muslim-majority countries showing that there is broad
flexibility with the shari’ah in formulating rules of procedure for a better administration of justice
under Islamic law as this falls mostly within the realms of fiqh rather than the substantive provisions
of the Qur’an and the sunnah, per se. – (Baderin, M., (2014) supra at p. xxxii).

~ Examples:

- Saudi Arabian Law of Procedure before Shari’ah Courts 2000

- Saudi Arabian Law of Criminal Procedure 2001
- Saudi Arabian Law of Evidence 2021