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The Criterion for Distinguishing Legal Opinions from Judicial Rulings and the Administrative Acts of Judges and Rulers

By Shihab al-Din Ahmad ibn Idris al-Qarafi al-Maliki; Translated by Mohammad Fadel

Summary

Scholars of Islamic law can find few English language translations of foundational Islamic legal texts, particularly from the understudied Mamluk era. In this edition of the Tamyiz, Mohammad Fadel addresses this gap, finally making the great Muslim jurist Shihab al-Din al-Qarafi’s seminal work available to a wider audience. Al-Qarafi’s examination of the distinctions among judicial rulings, which were final and unassailable, legal opinions, which were advisory and not binding, and administrative actions, which were binding but amenable to subsequent revision, remained standard for centuries and are still actively debated today.

Publication Information

Introduction

Question 1. “What is the essence of a judicial ruling that a judge issues, and that is unassailable?”

Question 2. “How can it be said that God, sublime is He, gave anyone the power to create rules that bind God’s servants? And does anyone other than God, sublime is He, originate rules? Is there an equivalent to this in the revealed law of Islam (al-sharī‘ a) or something else from it which may give some comfort or clarification on this issue?”

Question 3. “Can you provide an analogy from the universal rules of law (al-qawā‘id‘), in addition to what you have already mentioned, which could further clarify the previous point?”

Question 4. “The difference between the mufti and the judge is now clear, but what is the difference between them and the administrative acts and decrees of the imam, the head of state (al-imām al-a‘Ẓam) of the Muslim community?”

Question 5. “If the judge’s ruling is an origination, is it mental speech or audible speech?”

Question 6. “If the judge’s ruling is mental speech, is it a report concerning the content of God’s rule, sublime is He, that is amenable to acceptance or rejection, or is it an origination of God’s rule, that is amenable to neither?”

Question 7. “What is the difference between an origination and a report?”

Question 8. “Is the word that evinces a judicial ruling an origination or a report? And is there a difference between the word that evinces it and the words used by a witness? When the judge says, ‘Bear witness against me that . . .’ is that similar to the witness saying to the judge ‘I testify before you that . . .’?”

Question 9. “Are statements like ‘I sold’ or ‘I purchased’ or ‘You are divorced’ the linguistic equivalent of a witness’s statement ‘I testify that such-and-such . . .’ or are they rather the linguistic equivalent of the judge’s statement ‘Bear witness against me that . . .’?”

Question 10. “If words are the origination, are all words capable of serving as an origination or not?”

Question 11. “If the judge’s ruling is an origination of the divine rule, is it possible that any of the five ethical qualifications may be used in a judicial ruling inasmuch as God’s laws encompass all five qualifications?”

Question 12. “If the word is an origination, must the word signifying the intended meaning occur simultaneously, as is the case with divorce, or is a delay in communication or calling witnesses to attest to it harmless with respect to the legal effect?”

Question 13. “Are the scholars in agreement with respect to the occurrence of origination, or is it a matter of controversy? If it is controversial, explain it, and what is the correct position?”

Question 14. “Does origination occur as a result of a word’s original, denotative meaning in the Arabic language as posited by the Arabs, or is it a matter of linguistic convention?”

Question 15. “Are mental speech and audible speech equivalent in this regard, or is this particular to audible speech?”

Question 16. “What is the difference between the judge’s ruling in a matter that is governed by consensus—since it is unassailable—and his ruling in a controversial area of the law, for that ruling, too, is unassailable? Consensus exists for both propositions. Is there one legal cause preventing a challenge of the judicial ruling in both cases, or are there several? If it is consensus, then the cause is one in both cases, but if there is another cause, what is it?”

Question 17. “When a judge gives a judicial ruling based on a controversial rule of evidence, like the testimony of a group of children, or one witness and the oath of the claimant, or based on customs whose legal relevance is controversial, like the habit of husbands with respect to the maintenance of their wives—‘Is this a custom that places the burden of proof on the wife or not?’—does the judicial ruling encompass the controversial rule of evidence or not? ....

Question 18. “Is it conceivable that a judge could make a judicial ruling that is based on a controversial rule of substantive law if the source for the decision is a matter of agreement, or is it inconceivable that he would rule in accordance with a controversial rule of substantive law except on account of contradictory and different sources for the rule, since by stipulation we are concerned with controversial rules? ....

Question 19. “The statement of the jurists ‘When a judge rules in a controversial area of the law, his ruling is unassailable,’ does that encompass the bases of the ruling that are the subject of legal interpretation and resolve whether they are or are not a valid indicant of God’s law? ....

Question 20. “Some jurists say that the reason judicial rulings based on controversial issues are unassailable is because were such judicial rulings to be rejected on the basis of a contrary legal opinion, disputes would not come to an end. Is that the reason for their unassailability, or is it because of something else?”

Question 21. “Is an actual controversy among the master jurists a condition for the unassailability of a judicial ruling, or is it sufficient that the case be one in which controversy could occur among the master jurists, even in the absence of actual controversy?”

Question 22. “Is it the case that a judge is permitted to rule only in accordance with that view of the law which he views to be preponderant, just as the master jurist is not permitted to give a legal opinion except in accordance with what he believes to be preponderant? Or may he rule in accordance with one of the views found in the law, even if it is not, in his opinion, the weightier view?”

Question 23. “When you say, ‘The judge’s ruling is an origination in the mind, and a vow, too, is an origination of a rule that had not existed in the texts of revelation,’ do you mean that they are therefore equal in that both are originations and both are related to particular, not universal, law? Does that mean that there is a difference between them or that they are the same?”

Question 24. “A master jurist, if he is a judge, gives legal opinions in accordance with his own views, and he gives judicial rulings in accordance with his own views. Accordingly, both reports are the result of his own interpretive efforts, so what is the difference between the two, particularly when there is an unprecedented case for which no prior legal opinion or judicial ruling has ever been given? ....

Question 25. “What is the difference between the conduct of the Messenger of God, may God bless him and grant him peace, when he gives a legal opinion and when he communicates (al-tablīgh) God’s revelation to the people, and his conduct as a judge (al-qad.ā’) and head of state (al-imāma)? ....

Question 26. “When you say that a judicial ruling cannot be overturned, does that mean only that a subsequent judge cannot overturn it but that a mufti may continue to give legal opinions contrary to it, just as was the case prior to the judicial ruling, or does the judge’s ruling preempt any legal opinion to the contrary such that the judicial ruling becomes the unanimous law of the case? If you say that the judicial ruling preempts contrary legal opinions, that seems to contradict what the author of the Jawāhir1 says in the Chapter of Judgments regarding the repeal of judicial rulings...

Question 27. “Is a judicial ruling indicated sometimes by way of an express statement of correspondence, at other times by indirect statements, and yet other at other times by implication, like other concepts, or is it indicated only by an express statement of correspondence? ....

Question 28. “Can a mufti repeal a judicial ruling or can only another judge repeal it? What about the jurists’ statement ‘The judge’s ruling in matters of legal controversy is not denied or repealed’; does that apply particularly to judges, or does it apply to both judges and muftis?”

Question 29. “What is the cause for repealing judicial rulings in the four examples: contravention of consensus, universal legal rules, manifest analogy, and express text? What are some examples of these?”

Question 30. “What is the difference between a judicial ruling, a judge’s fact-finding, and the enforcement of a judicial ruling? Does a judge’s fact-finding qualify as a judicial ruling or not? If we say that fact-finding is a judicial ruling, is it the judicial ruling itself, or something that necessitates it outwardly? ....

Question 31. “Does the judge’s tacit acquiescence with respect to a particular matter before him constitute a judicial ruling affirming that matter or not? ....

Question 32. “What are the means by which one knows which legal acts are in need of a prior judicial ruling— meaning that an individual lacks the unilateral authority to determine the existence of the legal cause—and which legal acts are not in need of a judicial ruling, meaning that an individual has the unilateral authority to determine the existence of the legal cause and that is sufficient grounds for him to act?”

Question 33. “What gives a person the capacity to originate rulings in controversial areas of the law, such that it is obligatory to enforce them and not permissible to repeal them? ....

Question 34. “What is the meaning of the jurists’ statement ‘Every person is authorized to repeal his own judgment and is authorized to repeal the judgment of another if that other is not qualified to give judgment’? ....

Question 35. “The jurists’ statement, ‘If the witnesses retract their testimony, it does not lead to the repeal of the judicial ruling,’ is problematic, because confirming a judicial ruling that lacks a factual foundation is contrary to consensus, and in this case the legal cause has not been established in light of the fact that the witnesses have retracted their testimony....

Question 36. “Some of the actions of judges have resulted in confusion in the minds of jurists regarding whether or not they are judicial rulings. Which judicial acts are not judicial rulings such that others are authorized to change or contradict them, if their opinion so requires? ....

Question 37. “What is the meaning of ‘the doctrine (madhhab) of Mālik’ and the ‘doctrines’ of the other master jurists that those who are not master jurists may legitimately follow? ....

Question 38. “What does it mean when we say in our legal opinions ‘wiping the entirety of the head is obligatory when performing ablutions,’ ‘singing is forbidden,’ ‘the meat of predatory birds is permissible to eat,’ and other controversial legal opinions like these? ....

Question 39. “Which rules, found in the doctrines of alShāfi‘ī, Mālik, and others that were founded on customs and usages which were current at the time those master jurists made such rulings, continue to be valid today? ....

Question 40. And it consists of important practical reminders which a mufti should keep in mind when answering people’s questions about the law. I will discuss ten of them, with God’s permission, sublime is He.

Translator’s Introduction