A judge is supposed to discharge his duties carefully, honestly, and with full devotion. If he is honest and just in his decisions, he will be blessed with unimaginable eternal rewards, and successes in this world as well as in the Hereafter. But if his conduct is tyrannical, dishonest, and unjust he will not only incur the anger of Allah (SWT) here in this world, but will face severe consequences in the Hereafter as well.

The present article deals with the guidelines and instructions which must be observed by a Muslim judge while dealing with administration of justice.

Praying to and Seeking Help and Guidance from Allah (SWT)

No one can perform a good deed except with the help and guidance of Allah (SWT). Every human being is always in need of favor and guidance, especially a judge who undertakes to perform the crucial responsibility of the administration of justice. That is why the jurists said that a judge must perform prayer and seek guidance and help from Allah (SWT) before starting the hearing of disputes for decisions.³

When Abdullah Ibn Shirmah was appointed judge of Kufah he went to the mosque, performed prayer, and said the following words, weeping till his rag became wet with his tears: “O My Allah! This is the position that I used to desire and hope to get. Now when you have afflicted me with it save me from it (i.e., its evils) and help me in its (just) performance.”⁴

Dress of a Judge

The appearance of a judge should be in conformity with the high honor and dignity that goes with his position. If his dress is not proper and formal, this may lower his  position in the eyes of the litigants.⁵ No particular dress has been prescribed for judges; what is required is that it should be clean, dignified, and simple. It had been the practice of scholars of the Islamic society that they used to wear dignified dresses, especially a gown, while going out. The Holy Prophet (SAW) himself used to wear his best dress along with a gown on certain special occasions, especially when he used to receive delegates. Al-Mawardi is of the opinion that a judge, while presiding over a court, should wear a black gown.⁶

Equality of Treatment

A Muslim judge is not only under an obligation to do justice to the litigants while giving a verdict, but is also duty bound to do justice to them during the proceedings of the case by treating them with absolute equality. He must maintain this equality of treatment irrespective of whether the dispute is between the ruler and the ruled, the rich and the poor, and so on. The Holy Prophet (SAW) is reported to have said: “Let the hudud of Allah be applied equally to your relatives and the strangers. You should not care a bit for the reproach of any critic whatsoever.”⁷ This tradition enjoins the Muslim judges not to discriminate between the litigants on the basis of relations. A stranger or even an enemy must be treated with justice, so should a friend or a relative. The Holy Prophet (SAW) in another tradition has said: “Forgive the shortcomings of the highly respected people but certainly do not forgive them in awarding the hudud punishment to them.”⁸

When it comes to the dispensation of justice, Islam does not discriminate on the basis of race, color, language, or socio-economic status. All human beings are equal in the sight of Allah (SWT) irrespective of their birth. In the same way they must also be equal in the sight of a judge. The Companions of the Holy Prophet (SAW) used to strictly observe this principle of equality among the litigants. Sha´bi narrates the following event which is an example of the noble attitude of the Companions (RAA) in this regard:

There was a dispute between Umar Ibn Al-Khattab (RAA) and Ubay Ibn Ka´b (RAA) regarding a well. They went to Zaid Ibn Harithah (RAA) for a decision. Zaid (RAA) upon seeing Umar (RAA), the Caliph, at his door said, “Why didn´t you send somebody to me, O Ameer Al-Mo´mineen.” Umar (RAA) asked him to decide their dispute at his home. Zaid (RAA) spread a carpet for Umar (RAA). Thereupon Umar (RAA) said, “You did injustice in the very beginning of the proceedings. I would like to sit with my opponent.” Then Ubay Ibn Ka´b explained his claim to the well which Umar (RAA) denied. Zaid (RAA) asked Ubay (RAA), “Excuse the Ameer Al-Mo´mineen from oath.” Umar (RAA) did not agree and took oath upon his claim, and then swore that he would never let Zaid (RAA) be a judge until he and an ordinary Muslim are regarded equal by him.⁹

The equality of treatment in the administration of justice is so essential that even a head of the state must be regarded equal to an ordinary citizen in a court of law. This is because if a head of the state is given undue respect and special treatment by a judge, no justice can be expected from such a court. If a judge is honest in his duties and firmly believes that his sustenance is in the hands of Allah (SWT) and that he is accountable to Him only, then no ruler can influence his decisions.

Qadi Abu Yusuf is reported to have said the following words while weeping on his deathbed: “O Allah! You know that I never leaned over to any of the parties to a dispute except in the litigation of a Christian against Caliph Haroon Al-Rasheed. I had decided in favor of that Christian, but I wished the right were on Haroon´s side. O My Allah! Forgive me for this favor towards Haroon Al-Rasheed.”¹⁰

A judge must treat the parties to a dispute with equality in all respects. He must behave with them equally in their seating, in his way of talking to them, and even in his gestures towards them.¹¹ The Holy Prophet (SAW) said: “The one who is tried (by Allah) with the administration of justice among the Muslims must treat them equally in his words and gestures and in their seating."¹² According to another tradition, the Holy Prophet (SAW) said: “The one who is tried (by Allah) with the responsibility of administration of justice must not raise his voice upon one of the litigants if he has not raised it upon the other.”¹³ Umar Ibn Al-Khattab (RAA) wrote in his letter to Abu Musa Al-Ash´ari (RAA): “Treat all litigants equally in the way they take their places in your presence, and in the way you look at them, and in your decision, so that the highly placed person would not expect your favor and the weak would not despair of your fairness.”¹⁴

There should be no discrimination among the litigants in the order of hearing, and those who come first must be heard first. However, people coming from distant places may be given preference over local people so that they can return to their homes in time.¹⁵ Similarly a sick person may also be given a prior opportunity of hearing to save him from discomfort.¹⁶ A female litigant must be given preference over the males. It is advisable for a judge to hear the male and female litigants separately; intermixing in the court may be avoided by fixing different days for the hearing of men and women. However, when the parties to a dispute are of the opposite sexes then there is no other way except to hear them together.¹⁷

Indulgence of a Judge in Trade

It is essential for a judge to refrain from indulging himself in a business other than his duty, especially that of buying and selling. This is because, due to his position of authority, a judge may receive or may be obliged to provide unjustified favors. That is why the Shafi´i and Hanbali jurists said that it is reprehensible (makruh) for a judge to have a business of selling and buying, as it provides an opportunity to the people to bribe him in the form of providing him undue profit so that they can gain his favor in the decision of their disputes. However, if a judge intends to carry on a business he may do so through an agent for such purpose.¹⁸ In one of his letters to the famous judge Qadi Shurayh, Caliph Umar (RAA) said: “Avoid quarrel and harming anyone and don´t sell and buy as long as you are a judge.”¹⁹ Similarly, Umar Ibn Abdul Aziz (RA), in respect of the indulgence of rulers and judges in trade, is reported to have said: “Trading by rulers is corruption for them and distraction for their subjects.” ²⁰ Also: “Trading of rulers is one of the portents of the Day of Judgement.”²¹ Imam Shafi´i (RA) said: “It is reprehensible for a judge to indulge himself in the business of selling and buying because of fear of his partiality and undue kindness to one of the parties to a dispute. If a judge indulges himself in trade it will be very difficult for him to save himself from showing partiality and kindness towards those who have favored him in trade.”²²

If the indulgence of a judge in trade affects his responsibilities as a judge, it is not permissible for him to carry on any sort of business. The famous jurist Al-Simn´ani said: “A judge is a servant of the Muslims; therefore he should not indulge in a business which can divert his attention from his responsibilities. However, if his responsibilities are not affected it is permissible for him to run a side business.”²³

Hanafis and Malikis are of the opinion that only that kind of buying and selling is not permissible for a judge that he does inside his court. As far as his dealing in trade outside his court during his spare time is concerned, it is +permissible for him to do so. They argue on the basis of the fact that the Holy Prophet (SAW) and many of His Companions (RAA) who were also judges used to carry on businesses of buying and selling during their spare time.²⁴ However, if the financial condition of a judge is not enough to meet his essential needs, he may run a side business. This is because in case of unfavorable financial conditions of a judge, if he can earn his livelihood by a permissible and halal business, then this is hundred times better than his earnings by means of forbidden or haram ways.

If a judge can lead a simple life in accordance with the teachings of Islam, he will not need extra money beyond his salary. It is better for him to refrain from indulging in trade because it will create reasonable doubts among the people regarding his capacity to act impartially.

Borrowing Things and Taking Loans

The delicate position of a judge requires that he refrain from unnecessarily mixing with people. He should be very careful in making new relations and dealings with people, as it may prove a hurdle in his honest discharge of duties. This may be the reason why the jurists have advised the judges to refrain from borrowing things or taking loans from the public. However, a judge may borrow things and seek loans from those with whom he had such dealings prior to his appointment as judge.²⁵ If a judge is in the habit of borrowing things and money, it will be very difficult for him to go against the interests of those who oblige him by lending things or money to him.

Attending Parties and Banquets

Another factor which affects the honesty and impartiality of a judge is frequent attendance at feasts and parties. Since the people who invite the judges always use their relationship with them in gaining favor, a judge should not be in the habit of routinely accepting such invitations. Due to this, the Hanafis and Malikis said that a judge must refrain from attending feasts and banquets. He may, however, attend a banquet of marriage (walimah).²⁶

On the other hand, the Shafi´i and the Hanbali jurists are of the opinion that a judge should accept an invitation to attend a banquet because the Holy Prophet (SAW) not only himself attended banquets but also required the Muslims not to refuse such invitations.²⁷ In this regard, the Holy Prophet (SAW) has been reported to have said: “The one who does not accept an invitation (to a banquet) disobeys Allah and His Prophet.”²⁸

However, a judge while attending a banquet must refrain from unnecessary talking and answering questions relating to the cases pending in his court.²⁹ This is because the people, by discussing the cases with him, may affect his mind regarding the decision in such cases.

So far as a banquet arranged by a person whose case is pending with the judge is concerned, it is forbidden (haram) for the judge to attend such a banquet,³⁰ because a banquet by a party to a dispute is clearly an attempt to bribe the judge. Likewise, a judge is forbidden from becoming a guest of or hosting any one of the parties to a dispute which is pending in his court.³¹ Hassan Basri (RA) has reported the following event in this regard: “A man stayed with Ali (RAA) as a guest and said to him: ´I intend to file a dispute of mine with you.´ Ali (RAA) refused to accept his dispute for decision and replied: ´Go back, because the Holy Prophet (SAW) has forbidden us from hosting only one of the parties to a dispute.´”³²

Therefore, if one of the parties to a dispute is staying with the judge, he may bias the judge against his opponent. However, there is no harm if both of parties stay with the judge as his guests.³³ This is because, in such a case, each of the parties will have an equal opportunity to talk to him in the presence of his opponent. If one attempts to bias the judge the other may defend himself. But it is better not to invite them because it will amount to the proceedings of the case outside the court, and that is not permissible in any legal system of the world.

Receiving Gifts

The litigants may attempt to bribe those who decide their disputes by presenting them gifts, as well as to their family members. The Holy Prophet (SAW) has said: “Allah has cursed the one who gives or takes bribe.”³⁴ Moreover, the Holy Prophet (SAW) has himself cursed those who give or take bribe in decisions of disputes.³⁵ In the light of the above ahadith, it is quite clear that giving and taking of bribe is an absolutely forbidden (haram) act. The famous narrator of hadith Abdullah Ibn Mas´ud (RAA) has been reported to have said: “Taking bribe in decision is kufr and its taking and giving by people is a great sin.”³⁶

That is why it has been declared forbidden for a judge to accept gifts from the parties to a dispute which is being decided by him.³⁷ However, he may accept gifts from those with whom he has such dealings prior to his appointment as judge with two conditions. Firstly, that the person who presents the gift is not a party to a dispute pending in his court. Secondly, the value of gift presented shall not be greater than the gifts presented to him before his appointment as a judge.³⁸

Once a person wanted to present a gift to Umar Ibn Abdul Aziz (RA), which he refused to accept. The person responded by saying that the Holy Prophet (SAW) used to accept gifts. The Caliph replied: “The presents to the Holy Prophet (SAW) were gifts for him while they are bribe for us.”³⁹

A man used to present a camel´s leg to Umar (RAA) every year. Once he brought a dispute to his court and said: “O Ameer Al-Mo´mineen! Decide our dispute as the flesh is separated from the leg of a camel.” Thereupon Umar (RAA) wrote to all his governors and judges that they must not accept any gift from anybody.⁴⁰

It is advisable for a judge, therefore, not to accept any gifts from anybody.

Hearing the Cases of Relatives

A judge must refrain from hearing the disputes in which one of his relatives for whom his evidence is not admissible, such as his parents, children or other relatives, is a party. However, if he deals with such cases, his judgment will be valid provided it is against his relatives. Likewise, a judge must not accept the dispute of a person for hearing with whom he has some enmity.⁴¹ This is to avoid the blame that the judge has favored his relative or has harmed his enemy. The proper course in such circumstances is to transfer the case to some other court.

Deciding in a State of Irritability

Since the function of a judge is to decide the disputes of people and to do justice with them, he must be fully attentive to his job while sitting in the court. His body and his mind must be free from any worry, trouble, or discomfort, as this can divert his attention from his duty and may result in injustice to one of the parties. That is why the jurists said that a judge must refrain from deciding disputes if he is in a state of extreme anger, tiredness, thirst, or hunger etc.⁴² Abdur Rehman bin Abu Bakrah narrates that Abu Bakrah once sent a letter to his son who was then a judge in which he wrote: “Don´t decide between two persons when you are angry, because I have heard the Holy Prophet (SAW) saying that a judge should never decide when he is in a state of anger.”⁴³ The Holy Prophet (SAW) has also been reported to have said: “When a ruler becomes angry Satan is imposed upon him.”⁴⁴

In a state of anger the mind becomes an easy target for Satan. Therefore, whenever a judge becomes too angry he should stop hearing the case till he cools down. Otherwise, he is very likely to do injustice to the litigant who provoked him. That is why Qadi Shuryh (RA), an eminent judge of the Islamic judicial history, used to leave his court in case of anger or extreme hunger.⁴⁵

Although, in the above-quoted traditions, a judge is forbidden from giving decisions only in a state of anger, Muslim jurists have enumerated other factors too that affect the competence of a judge for giving decision, such as extreme grief, tiredness, thirst, hunger, fear, etc.⁴⁶ Indeed, all these factors can divert the attention of a judge away from the proceedings of the case. The famous scholar Ibn Daqiq has said in his work Ahkam Al-Akham:

In the text of this tradition, deciding a dispute is forbidden only in the state of anger because it causes disturbance of mind, which may result in an improper perusal of the cases, or it may affect the competency of a judge concerning the decision of disputes. The jurists, by way of analogy, have extended this provision to all those factors that may disturb the mind of a judge like hunger and thirst, etc. And perhaps anger is specially mentioned in the traditions because of its severity of effect on the human mind and the difficulty in overcoming it.⁴⁷

The above quoted opinion regarding the other factors which can disturb the mind of a judge has also been supported by the following tradition of the Holy Prophet (SAW), narrated by Abu Sa´eed Al-Khudri (RAA): “A judge should never give a decision except when he is well satiated and has quenched his thirst.” ⁴⁸

According to Imam Shafi´i: “It is reprehensible (makruh) for a judge to give a decision in the state of hunger, tiredness, or mental uneasiness because it changes his mind and heart.”⁴⁹

Since the responsibilities of a judge are very delicate, he must refrain from giving decisions when he is upset due to any cause, as he may not be able to do justice to the litigants in such a state.

Consultation with Scholars

It is desirable (mustahab) for a judge to decide the dispute after consulting scholars (Ulama). It has been reported that the Righteous Caliphs used to decide disputes after consulting the senior Companions of the Holy Prophet (SAW). These senior Companions (RAA) were considered great scholars of that age. Therefore, scholars of Islamic Law should be present in the court whom the judge may consult for decision of the disputes filed in his court.⁵⁰

The famous Maliki jurist Ibrahim bin Farhun is of the opinion that it is essential for a judge to decide cases in the presence and with the consultation of Ulama, as the Holy Prophet (SAW) was required by Allah (SWT) to consult his Companions (RAA) in deciding different matters. Hassan Basri (RA) says that though the Holy Prophet (SAW) was not in need of consulting his Companions, Allah (SWT) commanded him to do so in order that his act may become a Sunnah (legally binding precedent) for the coming Muslim rulers.⁵¹

One of the Shafi´i jurists Abu Ishaq Al-Shirazi opines that presence of Ulama in the court is a desirable (mustahab) practice that enables the judge to consult them whenever he needs their help.⁵² Ibn Qudamah is of the opinion that these jurist-consults must be from all the schools of thought.⁵³ The famous Hanafi jurist Alauddin Al-Kasani says that though the presence of Ulama in the court is mustahab, it is not proper for a judge to consult them in the presence of the litigants; if he does so they will accuse him of being ignorant, and so the judge must consult the scholars after adjourning the court.⁵⁴ Abdullah bin Shirmah has said:

Do have association with Ulama because if you are right they will praise you and if you are wrong they will correct you. And do not keep company with those who are ignorant because if you are right they will never praise you and if you are wrong they will not correct you. Where you are ignorant they will deal with you harshly and if they testify for you they will not benefit you.⁵⁵

Although in our legal system there is no provision for the presence of jurists in the court, it is indeed very proper, even essential, for today´s judge to consult his seniors amongst the judges and lawyers.

Expediting the Proceedings

When the case is fully heard from both the sides of the dispute, i.e., after both parties have been given an equal opportunity to present their evidence and to argue their pleas, a judge is under an obligation to pronounce judgement and to execute it without unnecessary delay. A judge who delays decision without reasonable grounds is considered a sinner. It was the established practice of the Holy Prophet (SAW) that he would decide the disputes very expeditiously and, in most cases, would pronounce his judgement in the very first hearing.⁵⁶

However, a judge may withhold judgement for a reasonable time in case there is some hope of compromise between the parties to a dispute,⁵⁷ which is highly desirable. According to the Qur´an:

 And if two parties of the faithful fight each other, then make peace between them but if one of them transgress against the other then fight those who transgress till they return to Allah´s command. But when they return then make peace between them with justice and be equitable. Surely God loves the equitable. (Al-Hujurat 49:9)

The person who makes an effort for compromise between disputing parties will be blessed with great rewards in the Hereafter

No good is there in most of their secret counsels except one who commands charity or fair dealing or making peace between men. And as to him who does this seeking the approval of Allah, We will then give him great rewards. (Al-Nisa 4:114)

There are great many instances in the hadith literature where the Holy Prophet (SAW) encouraged the disputing parties to arrive at a settlement, and decided on the basis of compromise. For instance, in the dispute between Ka´b bin Malik (RAA) and Abdullah bin Abi Hadrad (RAA), the Holy Prophet (SAW) decided the case on the basis of a compromise, with the condition that Ka´b (RAA) should remit half of his debt and Abdullah (RAA) should pay half of it.⁵⁸ On another occasion, the Holy Prophet (SAW) decided a dispute between a Hadrami and a Kindi regarding a piece of property on the basis of compromise.⁵⁹

Since the efforts for compromise between the litigants is a Sunnah of the Holy Prophet (SAW), a judge, before pronouncing judgement, should try his utmost to make the litigating parties end their dispute by way of an equitable compromise that is acceptable to both. If a judge delays his judgment for this virtuous purpose then he will not be regarded a sinner, but will rather be rewarded by Allah (SWT).

Although a judge should encourage the litigants to dispose of their conflict by making a compromise, he is never allowed to compel any of the parties to do so by way of unnecessarily delaying judgement.⁶⁰ Likewise, it must be kept in mind that compromise is not permissible when the case concerns the rights of Allah (SWT) — or huquq Allah — but it is permissible only when the case concerns the rights of human beings — or huquq al-ibad. Therefore, delaying judgement for the purpose of compromise in a dispute pertaining to rights of Allah (SWT) is altogether invalid.⁶¹

However, there is no harm in a reasonable delay of proceeding caused by the adjournment granted on the request of one of the parties for the arrangement of his evidence.⁶² In this regard Umar (RAA), in his letter to Abu Musa Al-Ash´ari (RAA), said:

Grant that person a respite who claims that he has the proof of his right which cannot be provided right away. Allow his claim if he brings his proof, otherwise decide against him. For this is better in order to remove doubts, clarify obscurities, and attain excuse.⁶³

Imam Mohamad Al-Sarakhsi, while elaborating upon the above statement, said:

This statement proves that a judge shall adjourn the proceedings in favor of any of the parties to a dispute for a period that is enough for arrangement of evidence. If the plaintiff claims that he has the proof, the judge should adjourn the proceedings to enable him to provide his evidence. Because he may not have brought the proof at the first hearing under the conception that the defendant will not deny his claim because of its truth. When the plaintiff has established the proof upon his claim and the defendant asks for adjournments to rebut the plaintiff´s evidence, the judge must grant him respite because he is commanded to maintain equality between both the parties. However, adjournment of proceedings in favor of one party must not be injurious for the other, because the speedy proceedings are injurious for the one who defends while delay proves harmful for the one who has proof upon his claim.⁶⁴

So for as the duration of adjournment is concerned, some jurists are of the view that it is preferable to leave the matter to the discretion of the judge. He should himself fix the duration of adjournment according to the circumstance of the particular case. Others are of the opinion that such duration must not be beyond three days, as this is too long a delay in the proceedings.⁶⁶ Due to a number of factors, however, the limit of three days is hardly practicable in our times. Adjournment for about a couple of weeks in normal cases, therefore, is quite reasonable.

In granting adjournments to a party, a judge is not required to seek the consent of the other party. This is because the request for adjournment of proceedings for a reasonable time is the recognized right of both the litigating parties.⁶⁷ However, it is not valid for a judge to adjourn the proceedings on the demand of a party whose intention is to delay the proceedings and harm his opponent by such delay and to escape the execution of the law.⁶⁸

Endnotes

1.        Mohammad Al-Sarakhsi, Al-Mabsut (Beirut: Dar Al-Fikr, n.d.) 16:59.

2.        Mohammad bin Majah, Sunan Ibn Majah (Cairo: Dar Ihya Al-Kutub Al-Arabiyah, n.d.) 2:774; Ali bin Al-Dar Qutni, Sunan Al-Dar Qutni (Multan: Matba´ Nashar Al-Sunnah, n.d.) 4: 204.

3.        Abu Ishaq bin Abi Al-Dam, Adab Al-Qada (Bagdad: Matba´ Al-Irshad, 1974) 28. Abu Al-Hassan Al-Mawardi, Adab Al-Qadi (Bagdad: Matba´ Al-Ani , 1972) 1: 218.

4.        Ibn Al-Hiban, Ikhbar Al-Qudat, 3: 37.

5.        Ibrahim bin Farhun, Tasirat Al-Hukkam (Cairo: Matba´ Mustafa Al-Halabi, 1958) 1:72.

6.        Abu Al-Hassan Al-Mawardi, Adab Al-Qadi (Baghdad: Matba´ Al-Ani, 1972) 2: 262.

7.        Mohammad bin Majah, Sunan Ibn Majah (Cairo: Dar Ihya Al-Kutub Al-Arabi, n.d.)

8.        Abu Dawud bin Al-Ash´ath, Sunan Al-Mustafa (Beirut, Dar Al-Fikr, n.d) 4:13.

9.        Mohammad Al-Sarakhsi, Al-Mabsut, op. cit., 16:73; Ahmad bin Hajar Al-Asqalani, Al-Talkhis Al-Habir (Lahore: Al-Matba´ Al-Athariyah, n.d.) 4:186.

10.     Mohammad bin Abidin, Rad Al-Muhtar (Beirut: Dar Al-Fikr, 1966) 4: 485.

11.     Ali Al-Tarablasi, Mu´in Al-Hukkam (Cairo: Matba´ Mustafa Al-Halabi, 1973) p. 22.

12.     Ahmed Al-Baihaqi , Al-Sunan Al-Kubra (Beirut: Dar Al-Fikr, 1325 A.H.) 10:35; Ali Al-Dar Qutni , Sunan Al-Dar Qutni (Multan: Matba´ Nashr Al-Sunnah, n.d.) 4:205.

13.     Ahmed Al-Baihaqi, Al-Sunan Al-Kubra (Beirut: Dar Al-Fikr, 1325 A.H.) 10:35l; Alauddin Al-Muttaqi, Kanz Al-Umal (Hyderabad, India: Dar Al-Ma´arif Al-Nizamiyah, 1312 A.H.) 3: 208.

14.     Ahmad Al-Baihaqi, Al-Sunan Al-Kubra (Beirut: Dar Al-Fikr, 1325 A.H.) 10:150, Muhammad Al-Sin´ani, Subul Al-Salam (Egypt: Matba`at Mustafa Al-Halabi, 1930) 4: 162.

15.     Mohammad Al-Sarakhsi, Al-Mabsut (Beirut: Dar Al-Ma´arifah, n.d.) 16:80. Muhammad Al-Khurashi, Sharh Al-Khurashi (Beirut: Dar Al-Fikr, 1958) 7:153; Shamsuddin Al-Sharbini, Mughni Al-Muhtaj (Beirut: Dar Ihya Al-Thurath Al-Arabi, 1933) 4:412; Abdullah bin Qudamah, Al-Mughni (Riyadh: Maktabah Al-Riyadh Al-Hadithah, n.d.) 9:83.

16.     Shamsuddin Al-Sharbini, Mughni Al-Muhtaj (Beirut: Dar Ihya Al-Turath Al-Arabi , 1933) 4: 412.

17.     Alauddin Al-Kasani, Badai ´a Al-Sanai´a (Beirut: Dar Al-Kitab Al-Arabi, 1910) 7:13; Muhammad Al-Khurashi, Sharh Al- Khurashi (Beirut: Dar Al-Fikr, 1958) 7: 153.

18.     Mohammad bin Idris Al-Shafi´i, Al-Umm (Egypt: Al-Matba´ Al-Amiriyah, 1324 A.H.) 6:201; Yusuf Al-Namri, Kitab Al-Kafi (Riyadh; Maktabah Al-Riyadh Al-Hadithah, 1978) 2:95; Abdullah bin Qudamah, Al-Mughni (Riyadh: Maktabah Al-Riyadh Al- Hadithah, n.d.) 9: 79.

19.     Mohammad Al-Syuti, Jawahir Al-Uqud (Egypt: Matba´ Al-Sunnah Al-Muhammadiyah, 1955) 2: 357.

20.     Muhammad Al-Khurashi, Sharh Al-Khurashi (Beirut: Dar Al-Fikr, n.d.) 7: 150.

21.     Ibid.

22.     Dr. Abdul Karim Zaydan, Nizam Al-Qada (Amman: Mu´asasat Al-Risalah, 1989) 64.

23.     Ibid.

24.     Mohammad Al-Sarakhsi, Al-Mabsut (Beirut: Dar Al-Fikr n.d.) 16:77. Muhammad Al-Khurashi, Sharah Al-Khurashi (Beirut: Dar Al-Fikr, n.d.) 7: 150.

25.     Ibrahim bin Farhun, Tabsirat Al-Hukkam (Cairo: Matba´ Mustafa Al-Halabi, 1958) 1:31; Mohammad Al-Usuti, Jawahir Al-Uqud (Egypt: Al-Matba´ Al-Sunnah Al-Mohammadiyah, 1955) 2: 357.

26.     Mohammad Al-Sarakshi, Al-Mabsut (Beirut: Dar Al-Ma`arifah n.d.) 16:82. Mohammad bin Al-Jazzi, Qawanin Al-Ahkam Al-Shar´ah (Beirut: Dar Al-`Elim Li Al-Malay´in, 1979) 285

27.     Ibrahim Al-Shirazi, Al-Muhazzab (Egypt: Dar Ihya Al-Kutub Al-`Arabiah, 1276 A.H) 2:292; Abdullah bin Al-Qudamah, Al-Mughni (Riyadh: Maktabat Al-Riyah Al-Hadithah, n.d.) 9: 79.

28.     Muslim bin Al-Hajjaj, Sahih Muslim (Cairo: Al-Matba`at Al-Misri ah, 1930 9: 237.

29.     Ali Al-Trablasi, Mu´in Al-Hukkam (Egypt: Al-Matba`at Al-Mymaniyah, 1310 A.H.) 17.

30.     Kamaluddin bin Al-Humam, Fath Al-Qadir (Beirut: Dar Al-Fikr, 1970) 5:468; Abu Bakar Al-Sayyid Al-Bikri, I´anat Al-Talibini (Egypt: Al-Matba`at Al-Khayriyah, 1320 A.H.) 4:421.

31.     Alauddin Al-Kasani, Badi´a Al-Sanai´a (Beirut: Dar Al-Kitab Al-`Arabi, 1328 A.H.) 7:9. Ibrahim bin Farhun, Tabsirat Al- Hukkam (Cairo: Matba`at Mustafa Al-Halibi, 1958) 1:46; Abdullah bin Al-Qudamah, Al-Mughni (Riyadh: Maktabat Al- Riyadh Al-Hadithah n.d.) 9:82.

32.     Abdullah bin Al-Zayla´i, Nasb Al-Rayi (Egypt: Dar Al-Mamun, 1938) 4:73. Nuruddin Al-Haythami, Majma Al-Zawayyid (Egypt: Maktabat Al-Qudsi, 1352 A.H.) 4:46

33.     Kamaluddin Al-Humam, Fath Al-Qadir (Beirut; Dar Al-Fikr, 1970) 5: 468. Yusuf Al-Namr, Kitab Al-Kafi (Riyadh: Maktabat Al-Riyadh Al-Hadithah, 1978) 2: 953.

34.     Abu Dawud bin Al-Ash´ath, Sunan Al-Mustafa (Egypt: Matba`at Al-Sa`adah, 1950) 3:409; Muhammad bin Majah, Sunan Ibn Majah (Cairo: Dar Ihya Al-Kutub Al-Arabiyah, n.d.) 2:775.

35.     Mohammad bin Surah, Al-Jama´i Al-Sahih (Cairo: Mataba´at Mustafa Al-Halabi, 1973) 3: 622; Al-Imam Ahmad bin Hanbal, Masnad Imam Ahmed, (Egypt: Dar Al-Ma´arif, 1949) 15: 212.

36.     Ali Al-Haythani, Majma´a Al-Zawayyid (Eypt: Matba`at Al-Qudsi, 1353 A.H.)

37.     Mohammad Al-Sarakhsi, Al-Mabsut (Beirut: Dar Al-Ma`arifah, n.d.) 16:82, Ibrahim bin Farhun, Tabsirat Al-Hukkam (Cairo: Matba`at Mustafa Al-Halabi, 1958) 1: 82; Shamsuddin Al-Ramli, Nihayat Al-Muhtaj (Egypt: Al-Matba`at Al-Bayhiyah, 1304 A.H.) 8:95; Abdullah bin Qudamah, Al-Mughni (Riyadh: Maktabat Al-Riyadh Al-Hadithah n.d.) 9:77.

38.     Kamaluddin bin Al-Humam, Fath Al-Qadir (Beirut: Dar Al-Fikr, 1970) 5:467; Muhammad Al-Khurashi, Sharh Al-Khurashi (Beirut: Dar Al-Fikr, (n.d.) 7: 151; Shamsuddin Al-Ramli, Nihayat Al-Muhtaj (Egypt: Al-Matba`at Al-Bayhiyah, 1304 A.H.) 8:95; Abdullah bin Al-Qudamah, Al-Mughni (Riyadh; Maktabat Al-Riyadh Al-Hadithah, n.d.) 9:77.

39.     Abu Al-Walid bin Shahnah, Lisan Al-Hukkam (Cairo: Matba`at Al-Mustafa Al-Halabi, 1973) 17.

40.     Ahmad Al-Bayhaqi, Al-Sunan Al-Kubra (Beirut: Dar Al-Fikr, 1325 A.H.) 10:138.

41.     Abu Al-Hassan Al-Mawardi, Adab Al-Qadi (Baghdad: Maktabat Al-`Ani, 1972) 4:413; Abu Bakar Al-Sayyid Al-Bikri, I´anat Al-Talibin (Egypt: Al-Matba` at Al-Khayriyah, 1320 A.H.) 4: 25.

42.     Mohammad Al-Sarakshi, Al-Mabsut (Beirut: Dar Al-Ma`arifah, n.d.) 16:78. Ibrahim bin Farhun, Tabsirat Al-Hukkam (Cairo: Matba`at Mustafa Al-Halabi, 1958) 1:35; Shamsuddin Al-Ramli, Nihayat Al-Muhtaj (Egypt: Al-Matba`at Al-Bayhiyah, 1304 A.H.) 8:94; Abu Mohammad bin Hazm, Al-Muhallah  (Beirut: Dar Al-´Afaq Al-Jadida n.d.) 9: 395.

43.     Ahmed bin Hajar Al-Asqalani, Fath Al-Bari (Cairo: Matba`at Al-Qahiriyyah, 1978) 13:117. Muslim bin Al-Hajjaj, Sahih Muslim (Cairo: Al-Matba`at Al-Misriyah, 1930) 12: 15.

44.     Ahmed bin Hanbal, Masnad Al-Imam Ahmed, (Egypt: Dar Al-Ma`arif, 1949) 15:214, Nuruddin Al-Haythami, Majma´a Al-Zawayyid (Egypt: Maktabat Al-Qudsi, 1353 A.H.) 4:19.

45.     Ahmed Al-Bayhaqi, Al-Sunan Al-Kubra (Beirut: Dar Al-Fikr, 1325 A.H.) 10:106.

46.     Mohammad Al-Sarakhsi, Al-Mabsut (Beirut: Dar Al-Fikr, n.d.) 16:83; Abu Muhammad Al-Khurashi, Sharh Al-Khiralshi (Beirut: Dar Al-Fikr n.d.) 7: 181.

47.     Mohammad bin Daqiq, Ahkam Al-Ahkam (n.p.: Matba`at Al-Sharq, 1324 A.H.) 4:168.

48.     Ahmad Al-Bayhaqi, Al-Sunan Al-Kubra (Beirut: Dar Al-Fikr, 1325 A.H.) 10:106.

49.     Ahmed bin Hajar Al-Asqalani, Fath Al-Bari (Cairo; Matba`at Al-Qahirah, 1977) 13:117.

50.     Kamaluddin bin Al-Humam, Fath Al-Qadir (Beirut: Dar Al-Fikr, 1970) 5:467.

51.     Ibrahim bin Farhun, Tabsirat Al-Hukkam (Cairo: Matba`at Mustafa Al-Halabi, 1958) 1:29.

52.     Ali Al-Shirazi, Al-Muhazzab (Cairo: Matba`at Mustafa Al-Halabi, 1960) 2:297.

53.     Abdullah bin Qudamah, Al-Mughni (Riyadh: Maktabat Al-Riyadh Al-Hadithah, n.d.) 9:52.

54.     Alauddin Al-Kasani, Bada´i Al-Sana´i (Beirut: Dar Al-Kutub Al-`Arabiyah, 1910) 7:12.

55.     Ibn Al-Hiban , Akhbar Al-Qudat,  3: 104.

56.     Mohammad bin Ashur, Maqasid Al-Shari´ah (Tunis: Al-Matba`at Al-Fanniyah, 1366 A.H.) 219.

57.     Mohammad Al-Sarakhsi, Al-Mabsut (Beirut: Dar Al-Ma`arif, n.d.) 16:61; Ahmad Al-Dardir, Al-Sharh Al-Kabir (Cairo: Dar Ihya Al-Kutub Al-`Arabiah, n.d.) 4:152; Ibrahim Al-Bajuri, Hashiyat Al-Bajuri (Egypt: Matba`at Al-Sa`adah, 1910) 2:389; Abdullah bin Qudamah, Al-Mughni (Riyadh: Maktabat Al-Riyadh Al-Hadithah, n.d.) 9:53.

58.     Muslim bin Al-Hajjaj, Sahih Muslim (Cairo: Al-Matba`at Al-Misriyah, 1930) 10:220; Ahmad Al-Nasai, Sunan Al-Nasai (Cairo: Al-Matba`at Al-Misriyah, 1932) 8:239.

59.     Ahmad Al-Asqalani, Fath Al-Bari (Egypt: Al-Matba`at Al-Qahiriyah, 1978) 13:134; Muslim bin Al-Hajjaj, Sahih Muslim (Cairo: Al-Matba`at Al-Misriyah, 1930) 12: 4.

60.     Ibrahim bin Farhun, Tabsirat Al-Hukkam (Cairo: Matba`at Mustafa Al-Halabi, 1958) 1:39.

61.     Mohammad bin Al-Qayyam, A`l~m Al-Muwaqi`§n, (Egypt: Matba`at Al-Kulliyat Al-Azhariah, 1968) 1:108.

62.     Mohammad Al-Sarakhsi, Al-Mabsut (Beirut: Dar Al-Ma`rifah, n.d.) 16:63, Ibrahim bin Farhun, Tabsirat Al-Hukkam (Cairo: Matba`at Mustafa Al-Halabi, 1958) 1:28, Ibrahim Al-Shirazi, Al-Muhazzab (Cairo; Matba`at Mustafa Al-Halabi, 1960) 2:302; Mohammad bin Al-Qayyam, Alam Al-Muwaqi´in. (Egypt: Matba`at Al-Kulliyat Al-Azhariyah, 1968) 1:110.

63.     Ali bin Al-Dar Qutni, Sunan Al-Dar Qutni (Multan: Matba`at Nashar Al-Sunnah, n.d.) 206, Ahmad Al-Bayhaqi, Al-Sunan Al- Kubra (Beirut: Dar Al-Fikr, 1325 A.H.) 4:150.

64.     Mohammad Al-Sarakhsi, Al-Mabsut (Beirut: Dar Al-Ma`rifah, n.d.) 16:63.

65.     Ibid.; Mohammad bin Al-Qayyam, Alam Al-Muwaqi´in (Egypt: Matbu´at Al-Kulliyat Al-Azhariyah, 1968) 1:110.

66.     Ibrahim bin Furhun, Tabsirat Al-Hukkam (Cairo: Matbu´at Mustafa Al-Halabi, 1958) 1: 47; Ibrahim Al-Shirazi, Al-Muhazzab (Cairo: Matbu´at Mustafa Al-Halabi, 1960 ) 2:302.

67.     Ibrahim bin Farhun, Tabsirat Al-Hukkam (Cairo; Matbat Mustafa Al-Halabi, 1958) 1: 47.

68.     Mohammad bin Al-Qayyam, Alam Al-Muwaqi´in (Egypt: Matba`at Al-Kulliyat Al-Azhariyah, 1968) 1: 110.