- What is the Wiliyat Al-Mazalim?
- Immunity from prosecution
- Mazalim in the Sunnah
- Is it the caliph or a separate qadi who deals with the mazalim?
- Who appoints the Qadi Al-Mazalim?
- Who removes the Qadi Al-Mazalim?
- Institutions of Mazalim in the Rightly Guided Caliphate
- Mazalim under Abu Bakr As-Siddiq
- Mazalim under Umar ibn Al-Khattab
- Mazalim under Uthman bin Affan
- Mazalim under Ali ibn Abi Talib
- Notes
The Islamic ruling system is underpinned by a number of principles (القَواعِد) which are derived from the Qur’an and Sunnah. These principles will map to one or more formal institutions (أَجْهِزَة) within the state which are necessary to meet the demands of a society in a specific time and place.
Israr Ahmed (d.2010) says, “Since we cannot recreate as such the Islamic Order as it functioned during the age of the Rightly Guided Caliphate, we must adopt the following principle: we should take the principles and ideals from the model of the Prophet Muhammad ﷺ and the Rightly Guided Caliphs (RAA), and then incorporate these principles and ideals in the political institutions that have been developed in the contemporary civilized world as a result of the process of social evolution.”[1]
What is the Wiliyat Al-Mazalim?
One of the principles of the Islamic ruling system is “Removing Maẓālim” (plural: مَظالِم singular: مَظْلِمَة) which literally means removing oppression but in its istilahiyya (technical) meaning refers to removal of state oppression. The principle is shortened in the literature to maẓālim and the institution itself maybe called a Mahkamat (court), Diwan (Department) or Wiliyat (government function). Regardless of the term used the underlying principle is the same.
Al-Rifa’i has described the maẓālim as ‘a specialized jurisdiction that operates side by side, yet separately, from the regular judiciary in order to adjudicate disputes and grievances wherein one or both parties possesses influence and power that may arise from holding a government position or other sources of influence.’[2]
According to Muhammad Salam Madkur, the maẓālim jurisdiction ‘is a judicial office that ranks above those of the qadi and the muhtasib and combines a degree of executive power with judicial authority in order to settle grievances brought before it by members of the public against government officials, governors and rulers, princes, army commanders and the judges themselves.[3]
Muhammad Al-Massari says, “The ummah’s holding the ruler accountable…is not sufficient and the obligation is not waived if the head of state, his assistants, the governors, and the rest of the state’s ruling apparatus are not subject to the rulings of the judiciary, and are isolated from appearing in disputes before a judge who decides on the dispute. The fact that sovereignty belongs to the Sharia, and authority belongs to the ummah, stipulates that the head of state, like all Muslims, is subject to the judiciary, unlike some contemporary systems, which stipulate that the head of state is inviolable. He is not subject to the law, nor to appearing before the courts. Rather, he is not punished for the crimes he commits. Islam does not permit this, but rather makes it a departure from the Sharia, and the Almighty’s saying:
يَا أَيُّهَا الَّذِينَ آمَنُوا أَطِيعُوا اللَّـهَ وَأَطِيعُوا الرَّسُولَ وَأُولِي الْأَمْرِ مِنكُمْ ۖ فَإِن تَنَازَعْتُمْ فِي شَيْءٍ فَرُدُّوهُ إِلَى اللَّـهِ وَالرَّسُولِ إِن كُنتُمْ تُؤْمِنُونَ بِاللَّـهِ وَالْيَوْمِ الْآخِرِ ۚ ذَٰلِكَ خَيْرٌ وَأَحْسَنُ تَأْوِيلًا
“O you who have believed, obey Allah and obey the Messenger and those in authority among you. And if you disagree over anything, refer it to Allah and the Messenger, if you should believe in Allah and the Last Day. That is the best [way] and best in result.”[4]
This verse guides the way out if a dispute occurs between the subjects and those in authority, or in a ruling of the Sharia, and it is referred to Allah and His Messenger ﷺ. This verse explains some very important constitutional issues, including:
1- People have the right to dispute with the ruler.
2- It is necessary for there to exist in the Islamic State system a free body independent of the influence of the people and the influence of the rulers, to decide disputes in accordance with the highest law: the law of Allah and His Messenger.
3 – The ruling of this body must be decisive for the dispute once and for all, that is, it must have final finality in itself, so it does not need approval or approval from any other party at all, but rather it should be implemented on everyone: the head of state, the ministers, the members of the Shura Council and those below them.
This body, to which the ummah’s disputes with the rulers are referred, is the Mahkamat Al-Mazalim (Court of Grievances), which has the authority to look into any mazlima, whether it is related to persons from the state apparatus, or related to the head of state’s violation of the provisions of Sharia, or related to the meaning of a text of legislation in the constitution and the law. All other legal rulings are within the state’s adoption, or related to the imposition of a tax, or otherwise.[5]
As Muhammad Salam Madkur mentions this particular government function is not solely judicial and contains an element of executive power which in modern times maps to the functions of an upper house. Al-Mawardi mentions this power in his definition of the Mazalim.
“He investigates any abuse of power by rulers towards their subjects, and brings them to account for the injustice of their actions; this is a necessary part of investigation and is not dependent upon a petition from a plaintiff.”[6]
Immunity from prosecution
As Al-Massari highlights, the president in a democratic republican system enjoys immunity from prosecution while in office. This is to prevent the unauthorised abuse of power by an unelected judiciary who could become more powerful than the elected executive. Such an exemption is necessary in democratic systems because sovereignty is to human beings. In the Islamic system, sovereignty is to the law i.e. sharia in which everyone no matter what their position or rank in society, are required to obey.
C.A. Nallino (d.1938) an Italian orientalist and Professor of The History and Institutions of Islam, at The Royal University of Rome in 1919, wrote “While these universal Monarchs [caliphs] of Islam possessed, like any other Mussulman [Muslim] sovereign, limitless executive and judicial powers, they were destitute of legislative powers; legislation in the proper sense of the word could be nothing less than the divine law itself, the sceria [sharia], of which the only interpreters are the ulama or doctors.”[7]
Wael Hallaq says, “The ruler himself was also expected to observe not only his own code but, more importantly, the law of the Sharīʿa. As a private person, he remained, like any common Sharīʿa subject, liable to any civil claim, including debts, contracts, and pecuniary damages. Likewise, he was punishable for infractions of the Sharʿī penal laws and Qurʾānic ḥudūd —the reasoning in all these domains being grounded in the assumption that all Muslims, weak or strong, are equal in their rights to life and property and in their obligations toward one another. In the Sharīʿa, the sultan and his men enjoyed no special immunity.”[8]
“Whenever [Umar ibn Al-Khattab] was in need, he would go to the Head (Sahib) of the Bait ul-Mal (State Treasury) and ask for a loan. Sometimes he would face financial difficulties, so the Sahib of the Bait ul-Mal would come to him to collect, and would oblige him to pay it, and Umar would be evasive to him. Then he would receive his stipend and pay him back.”[9]
The Sahib of the Bait ul-Mal was Zayd ibn Arqam who was appointed by Umar.[10]
Compare this to today where many of the Muslim rulers use the state treasury like their personal bank account.
Mazalim in the Sunnah
All the principles of the ruling system existed in the Islamic State of the Prophet Muhammad ﷺ but most were only made into formal institutions much later during the Umayyad and Abbasid Caliphates. Institutions such as the Wazirate and Diwan Al-Mazalim were only formalised during the Abbasid period, and codified by Al-Mawardi (d.1058CE) in his famous book Al-Ahkam Al-Sultaniyyah.
Price Fixing
The principle of removing mazalim has its origins in the sunnah where the Prophet ﷺ referred to price fixing as a mazlima (مَظْلِمَة). He ﷺ said,
أَنَّ رَجُلاً، جَاءَ فَقَالَ يَا رَسُولَ اللَّهِ سَعِّرْ . فَقَالَ ” بَلْ أَدْعُو ” . ثُمَّ جَاءَهُ رَجُلٌ فَقَالَ يَا رَسُولَ اللَّهِ سَعِّرْ فَقَالَ ” بَلِ اللَّهُ يَخْفِضُ وَيَرْفَعُ وَإِنِّي لأَرْجُو أَنْ أَلْقَى اللَّهَ وَلَيْسَ لأَحَدٍ عِنْدِي مَظْلَمَةٌ
A man came and said: “Messenger of Allah, fix prices.” He said: “(No), but I shall make du’a.” Again the man came and said: “Messenger of Allah, fix prices.” He said: “It is but Allah Who makes the prices low and high. I hope that when I meet Allah, none of you has any claim on me for doing wrong (mazlima) regarding blood or property.”[11]
Price fixing is unjust state intervention in the free market. This affects the entire society and so in his ﷺ role as a ruler-prophet he forbade this practice, and used the term mazlima for this type of societal injustice. The Prophet ﷺ could not commit a mazlima because he is infallible (مَعْصُوم ma’sum) so no separate institution to address mazalim was required in his ﷺ time. If any mazlima was committed by any government official or some societal injustice occurred, he ﷺ would deal with it directly in his capacity as a ruler. This also applies to future caliphs who have the authority to address mazalim directly, unless there is a conflict of interest with them and their families.
Bribery
The Messenger of Allah ﷺ appointed a man from the Azd tribe called Ibn al-Utbiyya, to collect the Sadaqat of Banu Sulaim. When he came back, the Messenger of Allah ﷺ asked him to render his account. He said: “This wealth is for you (i.e. for the public treasury) and this is a gift (presented to me).” The Messenger of Allah ﷺ said: “Why did you not sit in the house of Your father and your mother until your gift comes to you, if you are truthful.” Then he addressed us.
“As for what follows, I appoint a man from among you to a job in which Allah has appointed me, and he comes and says, ‘This is your wealth and this is a gift that has been given to me.’ Why doesn’t he stay in the house of his father and mother until his gift comes to him, if he is truthful?
By Allah, none of you takes anything from it unjustly, except that he will meet Allah Almighty carrying it on the Day of Resurrection. I will surely know one of you who will meet Allah carrying a camel that is bellowing, or a cow that is mooing, or a sheep that is bleating.” Then he raised his hands until the whiteness of his armpits was visible, then he said, “O Allah, have I conveyed the message?”
The narrator said: “My eyes have seen it and my ears have heard it.”[12]
This is a clear act of one of the tax collectors receiving a gift which in reality is a bribe from the tribe of Banu Sulaim. This is a mazlima. The Prophet ﷺ immediately addressed this publicly to establish the rule on the forbiddance of bribery among all of society but in particular government officials. Renaming a bribe to a gift doesn’t make it halal as the Prophet ﷺ made clear.
In modern times all major western cooperations and governments have registers where any gifts from suppliers or party donations must be registered. This is a fairly recent phenomenon in the west, but in Islam it was addressed in the 7th century.
Is it the caliph or a separate qadi who deals with the mazalim?
The function of mazalim is in origin a judicial function, and so during the Rightly Guided Caliphate it was performed by a separate qadi (judge) if the case at hand was related to the caliph in some way. If there was no conflict of interest, then the caliph would intervene directly to address the mazlima since the bay’ah contract assigns him executive and judicial powers (hukm). The caliph cannot pass a judgement on a case in which either he or his family is implicated in some way as this is the antithesis of justice. This practice continued throughout the Umayyad and Abbasid periods.
In modern governing structures the executive would address many of the issues that a traditional mazalim court would deal with via laws and policies. This is why the mazalim principle maps to an upper house (Senate or Dar Al-’Adl) in today’s systems in addition to the judicial functions of a supreme court and appellate court.
Umar’s limiting of the marriage dowry (mahr)
When Umar ibn Al-Khattab was caliph he wanted to adopt a law which would limit the marriage dowry (mahr) for women. So one day Umar delivered a khutbah (sermon) and said: “Do not give more than forty uqiyahs[13] in dowries to women, even if she is the daughter of Dhu al-Qissah – i.e., Yazeed ibn al-Husayn[14]. Whoever gives more than that, I will seize the extra amount and put it in the Bayt ul-Mal (State Treasury).”
A woman objected to that and said, “You do not have the right to do that!” Umar asked, “Why not?” She said, “Because Allah, the Exalted, Almighty says:
وَآتَيْتُمْ إِحْدَاهُنَّ قِنطَارًا فَلَا تَأْخُذُوا مِنْهُ شَيْئًا ۚ أَتَأْخُذُونَهُ بُهْتَانًا وَإِثْمًا مُّبِينًا
“And if you have given one of them a Qintar[15], take not the least bit of it back; would you take it wrongfully without a right and with a manifest sin?”[16]
‘Umar replied, “A woman is right and a man is wrong.”
According to another report, Umar said: “O’ Allah, forgive me! Everyone has more knowledge of religion than ‘Umar.” Then he went back and ascended the minbar and said: “O’ people, I used to forbid you to give women more than four hundred dirhams in their dowries, but now whatever anyone wants to give of his wealth of his own accord, let him do so.”[17]
Umar removed the mazlima directly without the need for a separate qadi as part of his executive power relating to adoption of laws.
This level of accountability present in the Rightly Guided Caliphs is what sets them apart, and makes them an example to emulate for any leader today or in the future. The Prophet ﷺ said,
فَعَلَيْكُمْ بِسُنَّتِي وَسُنَّةِ الْخُلَفَاءِ الرَّاشِدِينَ الْمَهْدِيِّينَ عَضُّوا عَلَيْهَا بِالنَّوَاجِذِ
“I urge you to adhere to my sunnah and the sunnah of the Rightly-Guided Caliphs and cling stubbornly to it.”[18]
Umayyads
Hugh Kennedy describes the judicial powers of the caliphs. “The evidence of the pre-ninth century, such as it is, suggests that the caliph did, at that stage, have the position of ultimate and supreme judge and did have the power in certain circumstances to make and decide law. It comes from letters and poems of the period. The role of the caliph as judge was supported in the Qur’ān where God tells David: ‘We have appointed you caliph on earth so judge among the people with truth’ (38.25). The poets of the Umayyad court took it for granted that the caliph was a judge. In the words of the great Umayyad poet Farazdaq (d. c.729), the caliphs were ‘imams of guidance and beaters of skulls’. Another poet, Ahwas, said of the caliph Sulaymān that he had been appointed by God ‘so judge and be just’; and Jarīr, the great rival of Farazdaq as court poet, said, ‘He is the caliph, so accept what he judges for you in truth’. Abd al-Malik held formal courts acting as qādī and a page would recite poetry on legal justice before business got underway.”[19]
Abdul-Malik ibn Marwan (r.692-705CE)
Khair ibn Nu’aym, a former qadi was appointed as a secretary (katib) in the Diwan Al-Rasa’il (Office of Correspondence) for the Umayyad caliph Abdul-Malik ibn Marwan. Abdul-Malik reassigned him from his executive office and reappointed him as a qadi.
“When the order was presented, they returned Khair ibn Nu’aym to the judiciary. Abd al-Malik ibn Marwan came to [Khair ibn Nu’aym] to sue his cousin. [Abdul-Malik] sat on his couch and [Khair ibn Nu’aym] said to him, “Stand up with your cousin!”
[Abdul-Malik] said, “It seems you have taken offense at us for appointing you as a secretary (katib) after having served as a judge.”
[Abdul-Malik] stood up and did not sue.”[20]
Judicial independence existed throughout Islamic history. Abdul-Malik thought that Khair ibn Nu’aym would give him preferential treatment since he appointed him but this was not the case. Abdul-Malik had to refer his dispute with his cousin to a separate qadi since there would be a conflict of interest in him passing judgment himself.
Al-Mawardi says, “The first to assign a specific day for the investigation of claims by those who had suffered wrong actions — without actually taking part directly himself — was ‘Abd al-Malik ibn Marwan. If the latter had to deal with some problem, or if he needed an executory judgement, he would hand it over to his Qadi Abu Idris al-Awdi; the litigants would accept his judgements out of fear of ‘Abd al-Malik ibn Marwan who was aware of the circumstances and reasons for the decision. Thus Abu Idris was actually conducting the cases and ‘Abd al-Malik was giving the orders.”[21]
Umar ibn Abdul-Aziz (r.717-720CE)
The Umayyad Caliph Umar ibn Abdul-Aziz spent his entire rule personally removing the mazalim and injustices which had been perpetrated for decades against the people by Banu Umayyah.
When Umar bin Abdul-Aziz was a young man, he went to his father’s stables to see one of the horses when a horse suddenly struck him in the face causing him a head wound. As his father was wiping away the blood, he said to Umar, “If you were to be the one with the scar (ashajj), then you would be the happiest of all the Umayyads.” This is because Umar bin al-Khattab used to say, “There will be among my offspring a man with a scar (ashajj) on his face who will fill the earth with justice, just as it was filled with injustice and oppression.”[22]
There are many mazalim that Umar ibn Abdul-Aziz redressed. One of the famous incidents is related to Islamic rule in central asia.
The illegal occupation of Samarkand
Qutaybah bin Muslim was the campaign commander and governor-general in Central Asia who conquered Samarkand in the year 93AH/711-12CE under Al-Walid ibn Abdul-Malik.[23] Instead of following the methodology of offensive jihad he simply invaded the city and turned it into a garrison town.
When Umar bin Abdul-Aziz came to power the people of Samarkand saw an opportunity to gain justice so they met with the Central Asian governor Sulayman Abi as-Sarri and said, “Qutaybah has betrayed and wronged us by seizing our town. Allah has shown us justice and equity, therefore if we are allowed, we would like to send a delegation to the Amir al-Mu’minin to complain of our injustices and if we are within our rights, he will address our needs.”
Sulayman granted their request and a delegation of men represented their case to the Caliph. After speaking with the delegation Umar bin Abdul-Aziz wrote to Sulayman saying, “Indeed, the people of Samarkand have come complaining to me of the injustices inflicted upon them, stating that Qutaybah has unjustifiably stationed his army in the town in their midst and forced them to leave. Therefore, when my letter reaches you, appoint a tribunal to judge and settle the dispute between Qutaybah and the people of Samarkand. If the judgment of the tribunal goes against the army chief and his men are asked to vacate, they must do so at once and the people may return to the way they were before Qutaybah appeared on the scene.”
Sulayman appointed Jumay’a bin Hadir as the Qadi Mazalim over the case. Jumay’a ruled in favour of the people of Samarkand saying, “Sudden attack on them without warning was unlawful,” and the Muslim army had to withdraw. After witnessing this justice, Samarkand and neighbouring Soghd decided against fighting a war with the Muslims and agreed to live side by side with them under Islamic rule. Their influential scholars said, “We have mixed and lived side by side with those people. They are peaceful with us and we are with them. Should you decide that we are to return to war, it would be futile and we do not know whom the victory will belong to. We would only be bringing hostility upon ourselves.”[24]
Abbasids
Al-Mansur (r.754-775CE)
The second Abbasid Caliph Al-Mansur had a dispute with his wife, and this incident was referred to the Egyptian Qadi Ghawth ibn Sulayman. It seems Al-Mansur’s wife had a condition added to the marriage contract that Al-Mansur couldn’t take another wife which he agreed to, and this was the basis of the dispute. In the court Al-Mansur was forced to sit with his wife’s representatives on the floor rather than on the raised cushions where the Qadi sat. This is another example of judicial independence in the caliphate.
Al-Kindi narrates the incident. “Ghawth ibn Sulayman stayed in Egypt for twenty-three years after he was dismissed from his position as a judge in the year 144 AH. This was because a dispute arose between Umm al-Mahdi (Mansur’s wife) and Abu Ja’far (Mansur). Umm Musa bint Yazid ibn Mansur ibn Abdullah al-Himyariyya said, ‘I will not be satisfied except with the judgment of Ghawth ibn Sulayman.’
So he was taken to Iraq until he judged between him and them, and then he returned to Egypt.
I heard Ghawth ibn Sulayman say: “The Amir ul-Mu’mineen, Abu Ja’far, sent for me, and I was brought to him. He said to me: ‘O Ghawth, your Himyarite woman [Mansur’s wife] has brought a dispute before you regarding her [marriage] conditions.’
I said: ‘Would the Amir ul-Mu’mineen be pleased to make me a judge over her?’ He said: ‘Yes.’
I said: ‘Judgments have conditions, so will the Amir ul-Mu’mineen accept them?’ He said: ‘Yes.’
He said: ‘The Amir ul-Mu’mineen orders her to appoint a representative (wakil) and have two free servants testify to his appointment, whom the Amir ul-Mu’mineen will appoint as equals to himself.’
So he did, and she appointed a servant and sent with him her dowry [marriage] document. The two servants testified to her representation. I said: ‘The representation is complete. If the Amir ul-Mu’mineen sees fit to treat the opponent equally in his session.’
So he [Al-Mansur] got down from his bed and sat with the opponent. The agent handed me the dowry document, and I read it to him. I said: ‘The Amir ul-Mu’mineen acknowledges what is in it?’ He said: ‘Yes.’
I said: ‘I see in the document certain conditions by which the marriage contract between you was concluded. Do you think, Amir ul-Mu’mineen, if you had proposed to her and not stipulated this condition, would they have married you?’ He said: ‘No.’
I said: ‘So with this condition, the marriage contract was concluded, and you are more deserving of fulfilling her condition.’
Al-Mansur said: ‘I knew when you seated me in this session that you would rule against me.’
I said to him: ‘Give me a great reward and release me [from the position of qadi].’
Al-Mansur said: ‘Rather, your reward is from the one in whose favor you ruled i.e. his wife.’
Then he ordered a cloak and a gift for me.
Then Abu Ja’far ordered Ghawth to be appointed to judge between the people of Kufa. Ghawth said to him, ‘O Amir ul-Mu’mineen, this country is not mine, nor do its people belong to me. If I call for someone with a need to litigate, and no one comes, will you permit me, O Amir ul-Mu’mineen, to return to my country?’
He said, ‘Yes.’
So Ghawth sat down to judge, then he called out after that, and the opponents stopped coming to him so he departed for Egypt.”[25]
Al-Ma’mun (r.813 – 833CE)
It is narrated that the Abbasid caliph Al-Ma’mun used to personally sit in the Mazalim Court on Sundays. On one such day a woman in rags confronted him complaining that her land had been seized.
Al-Ma’mun then asked her: “Against whom do you lodge a complaint?” She replied: “The one standing by your side, al-’Abbas, the son of the Amir of the Believers.” Al-Ma’mun then told his Qadi, Yahya ibn Aktam, (while others say that it was his wazir Ahmad ibn Abi Khalid), to hold a sitting with both of them and to investigate the case – which he did in the presence of al-Ma’mun. When the women raised her voice and one of the attendants reprimanded her, al-Ma’mun said: “Leave her, for surely it is the truth which is making her speak, and falsehood which is causing him to be silent,” and he ordered that her land be restored to her.[26]
If the mazlima of stealing the women’s land had been committed by anyone else other than the caliph’s son, then Al-Ma’mun would have passed judgement on the issue directly. However, because his son had stolen the land he had to appoint a separate qadi to redress the mazlima.
Who appoints the Qadi Al-Mazalim?
In principle the caliph holds the power to appoint and dismiss all judges including the Mazalim judges. This is necessary to maintain an executive counterbalance to the judiciary. As we saw in the Umayyad and Abbasid examples previously, despite the caliph appointing the qadi, this didn’t influence the decision of the qadi and in fact many times they ruled against the caliph. This is because the principle of judicial independence exists within the Islamic ruling system.
With regards the Mazalim judges it’s possible for the caliph to delegate the appointment and dismissal of these judges to a committee within the Dar Al-’Adl which acts in a similar manner to an upper house like a senate. Feldman makes a similar proposal when discussing the Islamic legislature that it “could be a court exercising Islamic judicial review to shape and influence laws passed in its shadow.”[27]
This delegation of appointment is similar to the caliph delegating the appointment of governors to the people of the province or their representatives in the regional assembly through elections.
Who removes the Qadi Al-Mazalim?
The caliph has the executive power to dismiss all judges, but in practice the position of a qadi was a life-long appointment. Unlike other political appointments such as wazirs and governors, the judges generally remained in place under different ruling factions and dynasties, and even under rebel leaders such as Al-Mukhtar in Kufa.
The most famous example of this is Shurayh (d.78 AH/697 CE), the chief justice of Kufa who was first appointed by Umar ibn Al-Khattab. Shurayh was kept in his position until he died. He was the judge under the reign of Uthman, Ali, Hasan, Mu’awiya, Yazid, Al-Mukhtar, Abdullah ibn Al-Zubayr and Abdul-Malik ibn Marwan. Across the political spectrum and under multiple caliphs they kept him in his position because it was an established precedent that the ‘ulema should maintain their independence.
Noah Feldman describes this situation, “It [the law] was analyzed, discussed, applied, discovered, and (an outsider would say) made by the members of a distinct social-political grouping known as the scholars, or in Arabic ‘ulama. From this scholarly class came not only theologians and other intellectuals but the appointed judges who decided concrete cases and independent jurists who opined as to the meaning of the law. Through their near monopoly on legal affairs in a state where God’s law was accepted as paramount, the scholars-especially those of them who focused on law-built themselves into a powerful and effective check on the ruler.”[28]
Muhammad Al-Massari says, “In order to ensure that sovereignty remains for the Sharia, and authority for the ummah, it is imperative that it is not permissible to remove the judges of the Court of Grievances by the head of state, because the Caliph is removed from the caliphate in certain cases, in which he departs from the caliphate, so he becomes no longer obligated to be obeyed and must be removed, and the Court of Grievances is the body that has that power and not Other than that, if the power to dismiss grievance judges is in the hands of the head of state, then she will not be able to dismiss him, as he may hasten to dismiss the judges before they dismiss him, and that would obstruct the rulings of the Sharia from being implemented in any respect, and disrupting the rulings of the Sharia, even by one rule, is not permissible. Therefore, keeping the power to dismiss the judges of the Mahkamat Al-Mazalim in the hands of the Caliph was a means of disrupting the provisions of Sharia law in any aspect, and it is absolutely forbidden. The legal principle “the means to haram is haram” (الوسيلة إلى الحرام محرمة), which is deduced from the Almighty’s saying:
وَلَا تَسُبُّوا۟ ٱلَّذِينَ يَدْعُونَ مِن دُونِ ٱللَّهِ فَيَسُبُّوا۟ ٱللَّهَ عَدْوًۢا بِغَيْرِ عِلْمٍۢ
˹O believers!˺ Do not insult what they invoke besides Allah or they will insult Allah spitefully out of ignorance.[29]
derives a hukm that it is forbidden for the power to dismiss the judges of the Mahkamat Al-Mazalim to remain in the hands of the Caliph.
The Caliph, in his capacity as head of state, is subject to the rulings of the Mahkamat Al-Mazalim. Thus, the arbitrariness of the head of state in his use of his authority and powers is guaranteed, and the nation becomes able to dispute with the state before the Mahkamat Al-Mazalim to remove the injustices that fall upon the subjects from the mazalim of the ruling apparatus. Thus, the dominance and sovereignty of the Sharia is truly confirmed, and the authority is thus achieved. The ummah is truly and truthfully, not just an image or form.”[30]
The Mazalim judges should therefore be lifelong appointments and their dismissal handled by other Mazalim judges as part of a committee within the Dar Al-’Adl. Abdul-Qadeem Zallum (d.2003) says, “The caliph is allowed to give the (head) Qadi al-Mazalim or the Qadi al-Qudah (Chief Judge) the power to remove the Qadi al-Mazalim, reprimand, remove or transfer him. If he did so, they would have the mandatory power to remove, account and reprimand the Qadi al-Mazalim.”[31]
Institutions of Mazalim in the Rightly Guided Caliphate
Since the Mazalim is a judicial/executive function it maps to multiple institutions in modern times.
- Supreme Court
- Appeals Court
- Upper House
In the time of the Rightly Guided Caliphs these formal institutions did not exist but the functions did. Traditional judicial rulings involving the caliph took place by separately appointed judges as mentioned above. Appeals against judgements also existed, and Sharia committees advised and debated on legislation via shura.
Since no formal titles existed for most government posts except that of ‘amil (worker), we need to look at the functions of these positions in order to derive the activities and individuals of the Mazalim.
Ali ibn Abi Talib was a qadi for the Prophet ﷺ in Yemen and it’s clear that he continued to hold this position throughout the rule of Abu Bakr, Umar and Uthman. Even though Ali wasn’t the formal head of the judiciary, we can extrapolate that he was certainly a wazir, and as a wazir he automatically had the power of a Mazalim judge. Al-Mawardi says, “If he is among those who have control over the generality of affairs, like wazirs and amirs, he does not need to have a specific appointment (taqleed) to this office, since the general nature of his authority (wiliyah) gives him jurisdiction in this.”[32]
With regards to Ali, Al-Sallabi says, “Ali was a prominent member of the shura committee of Umar’s state; indeed, he was the main consultant. Umar acknowledged Ali’s virtue, understanding of Islam and wisdom, and he had a good opinion of him. It is proven that he said concerning him: ‘The best of us in judiciary matters is Ali.’[33] Ibn al-Jawzi said: ‘Abu Bakr and Umar (ra) used to consult him, and Umar used to say[34]: “I seek refuge with Allah from a problem that Abu al-Hasan (‘Ali) cannot handle.”’[35]
Muhammad Al-Massari says, “Someone does not say that the Mahkamat Al-Mazalim did not exist at that time, but rather the truth is that it existed and was effective, and the Companions’ jurists, who are well-known and famous, were its judges. The same was true of the Shura Council, as it was composed of senior Companions, although there was significant overlap between the two bodies since administrative arrangements and procedural formalities had not yet fully developed.”[36]
Mazalim under Abu Bakr As-Siddiq
Ali stopping Abu Bakr going out for battle
It is related that ‘Aishah said, “My father went out with his sword unsheathed; he was mounted on his riding animal, and he was heading towards the valley of Dhil-Qissah ‘Ali ibn Abi Talib came, took hold of the reins of Abu Bakr’s riding animal, and said, “Where are you going, O Caliph of the Messenger of Allah?” The question was rhetorical, for ‘Ali knew very well that Abu Bakr planned to lead his army into battle. “I will say to you what the Messenger of Allah ﷺ said on the Day of Uhud,” ‘Ali went on. By this statement, ‘Ali was referring to what had happened on the Day of Uhud: When Abu Bakr wanted to engage in a duel-to-the-death with his son ‘Abdur-Rahman (who was still a disbeliever), the Prophet ordered him to draw back his sword and to return to his place. ‘Ali went on to say, “Draw back your sword and do not bring upon us the tragedy of your death. For by Allah, if we become bereaved of you, (the nation of) Islam will not have an organized system of rule (rather, due to the apostate problem, chaos will break out).” Abu Bakr acquiesced to ‘Ali’s demand and returned to Al-Medina.”[37]
Abu Ubaidah and Umar – his two wazirs
Abu Bakr on his death bed said, “I wish that on the day of Saqifat Bani Sa’idah, that I had thrown the matter upon the neck of one of the two men (meaning Umar and Abu Ubaydah) so that one of them would have become the Amir [of the Believers] and I would have been his wazir.”[38]
Umar ibn Al-Khattab and Abu Ubaydah ibn Al-Jarrah who were both from the Ashratul-Mubashireen (10 promised Jannah), were the wazirs to Abu Bakr As-Siddiq when he was the caliph. Tabari narrates,
لَمَّا وُلِّيَ أَبُو بَكْرٍ، قَالَ لَهُ أَبُو عُبَيْدَةَ: أَنَا أُكْفِيكَ الْمَالَ– يَعْنِي الْجَزَاءَ- وَقَالَ عُمَرُ: أَنَا أُكْفِيكَ الْقَضَاءَ: فَمَكَثَ عُمَرُ سَنَةً لا يَأْتِيهِ رَجُلانِ
“When Abu Bakr was appointed, Abu Ubaidah said to him: ‘I will take care of finance (Al-Mal) for you (meaning the taxes), and Umar said: ‘I will take care of the judiciary (Al-Qadaa’) for you.’ So Umar remained for a year without two men coming to him.”[39]
Therefore, Abu Ubaidah had the portfolio of finance meaning he was the Treasury Secretary, although such a title didn’t exist at the time. Umar was the head of the judiciary which included the role of Qadi Al-Mazalim (Judge of Unjust Acts) who investigates acts of injustice related to the government. This is understood from Umar’s speech: أَنَا أُكْفِيكَ الْقَضَاءَ “I will take care of the judiciary (Al-Qadaa’) for you.” The word الْقَضَاءَ is Mutlaq (unrestricted) due to the Alif Lam and therefore includes the Mazalim role.
We can also see a practical example of Umar’s and Ali’s Mazalim role in the following incidents.
Abu Bakr’s salary
A short while after Abu Bakr as-Siddiq (ra) was appointed as Caliph, Umar ibn al-Khattab (ra) and Abu Ubaidah ibn al-Jarrah (ra) were walking in Medinah when they met Abu Bakr (ra) carrying garments on his shoulders and going to the marketplace to trade. Umar asked Abu Bakr, “What are you doing?” Abu Bakr replied, “I am going to trade.” Umar said: “After you became responsible for all the Muslims!?” Abu Bakr said, “But I have to feed my family.” So Umar said, “Let’s go and we will pay you an allowance.”[40]
Umar and Abu Ubaidah decided to pay Abu Bakr 250 dinars a year and a daily allowance of half a sheep in food.
Sometime later Umar was walking in Medinah when he came across a group of women. He asked them “What are you doing?” They replied, “We are waiting for the Caliph.” Abu Bakr did not turn up for office that day so Umar went searching for him and found him in the marketplace trading again.
Umar grabbed the hand of Abu Bakr and said, “What are you doing?” Abu Bakr replied, “The allowance you gave me is not enough.” Umar said, “Fine, we will increase it for you.” Abu Bakr said, “I want 300 dinars a year and a daily allowance of a whole sheep in food.” Umar said, “No. We are not going to give you that.” Ali intervened and said, “Give it to him.” Umar said, “You think so?” Ali replied, “Yes.” So Umar said, “We agree.”
Abu Bakr then stood on the minbar in the masjid and called the sahaba. He said, “You have paid me 250 dinars a year and a daily allowance of half a sheep in food, and that wasn’t enough for me. So Umar and Ali have given me an increase to 300 dinars a year and a daily allowance of a whole sheep. Do you agree?” The sahaba replied, “We agree.”[41]
Only a qadi with judicial mazalim powers can impose a judgement on the caliph. The judiciary in Islam is separate to the executive branch and has both institutional and decisional independence.
Ali’s intervention indicates he was a wazir with some mazalim powers as well.
Overturning Abu Bakr’s executive order to grant land to Influentials from Banu Tamim
‘Uyaynah ibn Hasan and al-Aqra’ ibn Habis were influentials from the tribe of Banu Tamim, a large and powerful tribe located in Najd (Eastern Saudi Arabia). It is upon them that the following verse in Surah Al-Hujjurat was revealed:
إِنَّ ٱلَّذِينَ يُنَادُونَكَ مِن وَرَآءِ ٱلْحُجُرَٰتِ أَكْثَرُهُمْ لَا يَعْقِلُونَ
“Indeed, most of those who call out to you ˹O Prophet˺ from outside ˹your˺ private quarters have no understanding ˹of manners˺.”[42]
Muhammad ibn Ishaq and others said: “This verse was revealed about some uncouth people from Banu Tamim. A delegation of the Banu Tamim went to see the Prophet ﷺ. They entered the mosque and called the Prophet ﷺ who was in his private apartment (hujra): ‘O Muhammad, come out to meet us, for our praise is nice while our censure is nasty.’ Their shouting annoyed the Prophet ﷺ and so he came out to see them. They said: ‘O Muhammad, we have come to brag to you.’ Allah ta’ala revealed about them: ‘Indeed, most of those who call out to you ˹O Prophet˺ from outside ˹your˺ private quarters have no understanding ˹of manners˺.’ Among these people were al-Aqra’ ibn Habis, ‘Uyaynah ibn Hasan, al-Zibriqan ibn Badr and Qays ibn ‘Asim”.[43]
‘Uyaynah ibn Hasan and al-Aqra’ ibn Habis came to Abu Bakr and said: “O Caliph of the Messenger of Allah ﷺ, there is some swampy land where no grass grows and it is of no use. Why don’t you give it to us to cultivate it, so that perhaps there will be some benefit in it after today?”
Abu Bakr said to those who were around him[44], “What do you think of what they said, if it is swampy land that is of no use?” They said, “We think that you should give it to them, so that perhaps there will be some benefit in it after today.”
So he gave it to them and wrote a document for them stating that it was theirs. He wanted ‘Umar to witness it, but he was not among the people, so they went to ‘Umar and asked him to bear witness.[45] They found him applying pitch to a camel of his and said, “Abu Bakr has asked you to bear witness to what is in this document. Shall we read it to you or will you read it?” He said, “I am as you see I am, if you wish you can read it and if you wish you can wait until I am finished and I will read it myself.” They said, “No, we will read it.”
So they read it and when Umar heard what was in the document, he took it from their hands, then he spat on it and wiped it (i.e., obliterated what was written). They complained about that and said something bad. He said, “The Messenger of Allah ﷺ used to be kind to you, when Islam was in a weak position at that time. Now Allah has made Islam strong, so go and work hard. May you never succeed if you graze your flocks in that land!”
They went to Abu Bakr and started to complain, saying, “By Allah, we do not know if you are the caliph or ‘Umar!” He said, “No, he could have been the caliph if he had wanted to be.” Then Umar came, and he was angry. He stood over Abu Bakr and said, “Tell me about this land that you gave to these two. Is it your own land or does it belong to all the Muslims?” He said, “No, it belongs to all the Muslims.” He said, “Then what made you give it to these two only and not to all the Muslims?” He said, “I consulted these people who were around me and that is what they advised me to do.” He said, “If you consulted those who were around you, did you consult all the other Muslims, and were they pleased with it?” Abu Bakr (ra) said, “I told you that you were more qualified for this role than I, but you insisted.”[46]
Again, only the Qadi Al-Mazalim can overturn a policy or executive order of the caliph. In this case the land was public property belonging to all the Muslims and so according to Umar all the Muslim representatives in Medina should have been consulted. In modern times this would be conducted through the Majlis Al-Nawwab (House of Representatives). Abu Bakr agreed that Umar was correct in his judgement and submitted to it.
Mazalim under Umar ibn Al-Khattab
Zayd ibn Thabit – Head of the Judiciary
Umar appointed Zayd ibn Thabit as the head of the judiciary during his caliphate.[47]
When Ubayy ibn Ka‘b made a claim against Umar with regard to a garden which Umar did not know about, they appointed Zayd ibn Thabit to judge between them. They went to Zayd in his house and when they entered, Umar said, “We have come to you so that you may judge between us.” Zayd moved to let Umar sit in the best seat — and according to another report, Zayd brought out a cushion and gave it to him, saying, “Here you are. O Ameer al-Mu’mineen.” Umar said, “You have been unfair in your judgement at the outset, O Zayd. Rather let me sit with my opponent,” and they both sat in front of him.[48]
Umar had to swear an oath, and Zayd said: “Let the Ameer al-Mu ‘mineen off.” Umar said, “Why should he let the Ameer al-Mu’mineen off? If something belonged to me I would be entitled to it by virtue of my oath, otherwise I would not lay claim to it. By the One besides Whom there is no other god, this garden is mine and Ubayy has no right to it.” After the case was settled [which Umar won], he gave the garden to Ubayy as a gift. It was said to Umar, “Why didn’t you give it to him before the oath?” He said, “I feared that if I did not swear the oath, the people would not swear oaths for their rights after me, and that would become the norm.”[49]
Similar to Umar in Abu Bakr’s caliphate, Zayd ibn Thabit had the power of Mazalim so would judge on issues related to the caliph where there was a conflict of interest. In this case since the claim was against Umar himself an independent judge had to be appointed to decide the case.
Ali ibn Abi Talib – Head of Appeals Court
Ali had the portfolio of judiciary by virtue of being a wazir and a qadi of Medina, which included the role of a Qadi Al-Mazalim. Part of the functions of the Mazalim are to act as an appeals court for judgements which are not in conformity to the sharia both textually and in reality.
It should be noted that in origin once a judge passes a verdict it cannot be overturned. It can only be appealed and annulled if the judgement contradicts the sharia or the reality on which it was based was misunderstood.
Al-Sallabi mentions “If a judge passes a ruling concerning some case, then he changes his view on that issue afterwards after studying it further, he cannot go back and change his ruling. It is also not permissible for a judge after him to overrule the judgement he passed.
It was narrated that Salim ibn Abi al-Ja‘d said, If ‘Ali were to have undone a judgement that had been passed by ‘Umar, he would have undone his judgement concerning the people of Najran. ‘Ali had written down the treaty between the people of Najran and the Prophet ﷺ, then their numbers increased at the time of ‘Umar until he feared for the people concerning them. Then a disagreement arose between them and they came to ‘Umar and asked him for compensation, so he compensated them. Then they regretted it and something happened among them, so they came to him and asked him to let them off, but he refused to do so.
When ‘Ali became caliph, they came to him and said, ‘O’ Ameer al-Mu’mineen, you interceded for us and wrote a treaty with your right hand.’ ‘Ali said, ‘Woe to you! ‘Umar was right in what he did.’ Umar refused to undo the first judgement that he had passed concerning them, and after ‘Umar had died, ‘Ali refused to undo the judgement that ‘Umar had passed concerning them .”[50]
An insane woman who committed zina
“An insane woman who had committed zina was brought to ‘Umar. He consulted the people then he commanded that she be stoned. ‘Ali ibn Abi Talib passed by and said: ‘Take her back!’ Then he came to ‘Umar and said, ‘Do you not know that the Pen has been lifted…?’ and he quoted the hadith[51]. At the end of it Umar said, ‘Yes.’ ‘Ali said, ‘Then why should she be stoned? Let her go.’ And ‘Umar started to say takbeer.[52]
The reality of the woman’s mental health was misunderstood by Umar so his judgement was overturned by Ali.
A woman who married during her ‘iddah
“A woman who had gotten married during her ‘iddah[53] was brought to Umar, so he separated her from the man she married, took her mahr (dowry) and put it in the public treasury and said: ‘I do not allow a mahr in a marriage that is invalid.’ He also said: ‘You two should never marry again.’
News of that reached ‘Ali and he said: ‘If they were unaware of the ruling, she may keep the mahr because he was intimate with her, but they should be separated, and when her ‘iddah ends, he will be like any other suitor.’
Umar addressed the people and said: ‘Misjudgements are to be reviewed in accordance with the Sunnah, and Umar judged according to the view of ‘Ali.’”[54]
The sharia rule was applied incorrectly by Umar so his judgement was overturned by Ali.
Muhammad ibn Maslama
Imam Ibn al-Mubarak narrated in al-Zuhd, in which he said: Sufyan ibn Uyaynah told us on the authority of Musa ibn Abi Isa, who said:
Umar ibn al-Khattab came to the drinking place of Ibn Haritha and found Muhammad ibn Maslama. Umar said: “How do you see me, Muhammad?” He said: “By Allah, I see you as I like, and as those who love good for you like. I see you strong in collecting wealth, chaste in it, just in distributing it, and if you deviate, we will treat you fairly as an arrow treats a wound.” Umar said: “Huh?” He said: “And if you deviate, we will treat you fairly as an arrow treats a wound.” He said: “Praise be to Allah who has placed me among a people who treat me fairly when I deviate.”[55]
Muhammad bin Maslama was the right hand man of Umar when dealing with the governors, and effectively a wazir with this portfolio i.e. Diwan al-’Ummal (Department of Governors Affairs) although such a formal title did not exist, the function existed.
Al-Sallabi says, “Muhammad ibn Maslamah al-Ansari was appointed by ‘Umar to check on the governors and to examine any complaints that were made against them. The role of Muhammad ibn Maslama was that of a general inspector in the caliphate. He checked on how the governors were doing their job and brought to account those who were falling short ‘Umar sent him to check on the senior governors, investigate complaints, to meet the people and listen to them, and to transmit their opinions of their governors directly to Umar. Muhammad ibn Maslamah also had some helpers.”[56]
Imposing kharaj tax on the sawad agriculture lands in Iraq
After the conquest of Iraq, Umar initially wanted to divide the sawad agricultural land among the Muslim army as the Prophet ﷺ had done during his lifetime. There was no standing army at this time, and so soldiers received their compensation through ghaneema (war booty) and land.
Umar ordered that the sawad land be counted. It was found that a man would be affected by three farmers, so he consulted with them [sahaba] about that, and Ali ibn Abi Talib said to him: “Leave them alone, so that they may be a source of support for the Muslims.”[57]
Mu’adh ibn Jabal, another judge and member of the shura council agreed with Ali and warned ‘Umar against dividing the land. Mu‘adh said: “By Allah, the consequences of that will not be good, for if you divide it, all these lands will come under the people’s control but eventually it will end up in the hands of one man or one woman. Then after them there will come people who will engage in a great deal of jihad, but they will not find anything (because all the land will already have been conquered — their jihad will be in self-defence). So think of something that will benefit all the Muslims, now and later on.”[58]
Two other members of the shura council Zubair ibn Al-Awwam and Bilal disagreed with this approach of imposing a kharaj tax and wanted the lands divided. In the end Umar agreed with Ali and Mu’ath and so he left the farmers on their land and sent Uthman ibn Hunaif in charge of them [as a land surveyor]. He imposed on them forty-eight, twenty-four, and twelve [dirhams].[59] In other words Umar imposed a kharaj land tax which would become a permanent revenue for the Islamic state for generations to come.
Again here we see the role of Ali as a Qadi Al-Mazalim intervening in government policy and resolving the dispute among the sahaba. Mohammad Al-Massari comments on this, “This is the procedure followed by the Imam of Guidance, the Rightly Guided Caliph, and the Amir ul-Mu’mineen, Umar bin Al-Khattab, when there was a dispute and conflict over how to deal with the lands of Egypt, Iraq, and other countries conquered by force. The Imam decided that its neck should be locked up for the Muslim treasury forever, so that it could be spent on the mujahideen, the borders, and other sources of the nation, while a group of conquerers led by Al-Zubayr and Bilal, may Allah be pleased with them all, insisted on the necessity of dividing it specifically among the warriors, as is the case. The same applies to all other spoils. The opposition believed that Umar’s procedure violated the legal text. The dispute was not over which of the two measures was closer to achieving the interest. That is, the dispute was not political, that is, over how to deal with what is permissible. Rather, it was a dispute over the legitimacy of one of the state’s systems, i.e. one of its laws!
Judgment actually came to a group of the Companions’ jurists, and the matter settled on the legitimacy of Umar’s understanding, so he issued his order to the horizons, and that procedure became the applicable law, and Al-Zubair, Bilal, and their opposition colleagues could not help but submit and surrender, even if a group of them, headed by Bilal, remained in their opposition. And their criticism of Umar, and Umar was praying to Allah to suffice him with Bilal and his companions!”[60]
Mazalim under Uthman bin Affan
Uthman left Zayd ibn Thabit as head of the judiciary in Medina[61], and Ali continued as a judge in Medina[62] and a wazir as he was during the caliphate of Umar.
Ali rules against Uthman’s policy of discouraging Hajj Al-Tamattu and Hajj Al-Qiran
There are three types of hajj:
1- Hajj al-Tamattu means “To benefit”. This is where a pilgrim performs Umrah first and then enters a state of ihram again for Hajj.
2- Hajj al-Qiran means “To combine”. This is where a pilgrim combines both Umrah and Hajj into a single pilgrimage with one ihram.
3- Hajj al-Ifrad means “To be singular”. This is where a pilgrim performs only Hajj and does not perform Umrah.
Marwan bin Al-Hakam narrated that “I saw Uthman and Ali. Uthman used to forbid people from performing Hajj Al-Tamattu and Hajj Al-Qiran. When Ali saw (this act of `Uthman), he assumed Ihram for Hajj and `Umra together (Hajj Al-Qiran) saying, “Lubbaik for Umra and Hajj,” and said, “I will not leave the sunnah of the Prophet ﷺ on the saying of anyone.”[63]
In another narration ‘Ali said to Uthman, “What is your opinion about a matter which the Messenger of Allah ﷺ did but you forbid it?” Thereupon Uthman said: “You leave us alone,” whereupon he (‘Ali) said: “I cannot leave you alone.” When ‘Ali saw this, he put on Ihram for both of them together (Hajj Al-Qiran).[64]
Imam Nawawi (d.1277CE) explains, “Umar and Uthman used to forbid it [Tamattu and Qiran] as a form of recommendation, not prohibition. They only forbade it because Hajj Al-Ifrad is better.”[65]
In relation to Ali’s statement, “I cannot leave you alone” Imam Nawawi explains that “It includes spreading knowledge, making it apparent, debating with the rulers and others about verifying it, and the obligation to advise the Muslim in that. This is the meaning of the saying of Ali: “I cannot leave you.”
As for Ali’s declaration of their two rites, it may be used as evidence by those who prefer the Qiran, and those who prefer the Ifrad responded to him by saying that he only declared their two rites to clarify their permissibility, so that the people, or some of them, would not think that the Qiran and the Tamattu’ are not permissible, and that the Ifrad is obligatory. And Allah knows best.”[66]
Mohammad Al-Massari comments on this incident. “As for ‘Ali’s opposition to Uthman, as has been recorded in Sahih Muslim and so its extraction is Sahih. ‘Ali, may Allah be pleased with him, was not a regular person, but rather he was from the ruling apparatus. At that time, he was also the most knowledgeable of the Sahabah with the greatest understanding and absolutely the strongest judgment from among them. As such, he was by necessity, the Qadi Al-Mazalim as he had also been during the days of Abu Bakr and ‘Umar, possessing the mandatory power or jurisdiction to declare the invalidity of the adoptions of the caliph. This is one angle.
From another angle, the matter of worships are individual affairs which do not impact upon the public system and are not from the matters that the caliph has a right to adopt in, so as not to beleaguer the Ummah and afflict it with prohibited distress and hardship. The adoption of Uthman in respect to that, regardless of the validity of its content or its invalidity, was invalid from this consideration, unless it had been issued from him by way of non-binding advice and instruction, in which case there would not have been a problem in origin. As such, whoever wishes to follow it can do so and whoever wishes to act contrary to it can do so.”[67]
Mazalim under Ali ibn Abi Talib
Qadi Shurayh was first appointed by Umar as the Chief Justice of Kufa. He continued in his post until he died in 78 AH/697 CE. Ali moved the capital of the caliphate to Kufa and so Shurayh was effectively head of the judiciary during his rule.
Shurayh rules against Ali in his dispute with the Jew
The Qadi Shurayh said: When Ali was setting out to Siffin (for battle), he found that he was missing a coat of armour of his. When the war was over and he returned to Kufah, he came across the armour in the hands of a Jew. He said to the Jew, “The armour is mine; I have not sold it or given it away.” The Jew said, “It is my armour and it is in my hand.” He said, “Let us go to the Qadi.” … Shurayh said, “Speak Amir al-Mumineen.” He said, “Yes. This armour which the Jew has is my armour; I did not sell it nor did I give it away.” Shurayh said to the Jew, “What do you say?” He said, “It is my armour and it is in my possession.” Shurayh said, “Do you have any evidence Amir al-Muminin?” He said, “Yes. Qanbar and Al-Hasan (Ali’s son) will witness that the armour is mine.” Shurayh said, “A son’s witness is not acceptable on behalf of his father.” Ali said, “A man from the Garden (referring to Al-Hasan), and his testimony is not acceptable? I heard the Prophet ﷺ saying, ‘Al-Hasan and Al-Hussein are the two lords of the youth of the people of the Garden.’”[68]
The Jew said, “The Amir al-Muminin brought me before his Qadi, and his Qadi gave judgement against him. I witness that this is the truth, and I witness that there is no god but Allah and I witness that Muhammad is the Messenger of Allah, and that the armour is your armour.”[69]
As we saw previously with Umar, since the dispute involved the caliph, a separate judge had to be appointed to pass judgement.
Notes
[1] Dr. Israr Ahmad, ‘Khilafah in Pakistan: What, Why & How?’ Lahore Markazi Anjuman Khuddam-Ul-Qur’an, 2006, Second Edition, p.24 https://tanzeem.org/wp-content/uploads/files/pdf/english-books/Khilafah_in_Pakistan.pdf
[2] Al-Rifa’i, al-Qada’ al-Idari, 85
[3] Muhammad Salam Madkur, al-Qada’ fi’l-Islam, I, 141-also quoted in Bayati, al-Nizam al-Siyasi, 286
[4] Holy Qur’an, Surah An-Nisaa, ayah 59
[5] Prof. Muhammad bin Abdullah Al-Massari, ‘Accounting the Rulers,’ Third Edition, 2002CE 1423H https://www.renascencefoundation.com, Chapter: ‘The nation’s monitoring of the rulers and holding them accountable’
[6] Abu l-Hasan al-Mawardi, The Laws of Islamic Governance, translation of Al-Ahkam as-Sultaniyah, Ta Ha Publishers, p.121
[7] C.A. Nallino, ‘Notes on the nature of the caliphate in general and on the alleged Ottoman Caliphate,’ a translation of ‘Appunti sulla natura del Califfato in genere e sul presunto Califfato Otttomano,’ Printed at the press of the foreign office, Rome 1919, p.7
[8] Wael B. Hallaq, ‘The Impossible State: Islam, Politics, and Modernity’s Moral Predicament,’ Columbia University Press, p.68
[9] Ibn Sa’d, Tabaqat, https://shamela.ws/book/1686/887
[10] Muhammad As-Sallaabi, ‘Umar ibn al-Khattab, his life and times,’ vol.1, p.480
[11] Sunan Abi Dawud 3450, https://sunnah.com/abudawud:3450
[12] Agreed upon. Sahih al-Bukhari 6979, https://sunnah.com/bukhari:6979 ; Sahih Muslim 1832c, https://sunnah.com/muslim:1832c
[13] Uqiyah = 40 dirhams. 1 dirham approx. £1.28. 40 Uqiyah = 40×40 = 1600 dirhams approx. £2,048
[14] One of the nobility
[15] Qintar: A weight of varying measures in different periods of Muslim history. One opinion is a Qintar (300Kg of gold) = £29million. This is for mubaalagah (hyperbole) meaning no limit.
[16] Holy Qur’an, Surah Al-Nisaa’, ayah 20
[17] Muhammad As-Sallaabi, ‘Umar ibn Al-Khattab, his life and times,’ vol.1, p.215
[18] Sunan Ibn Majah 42, https://sunnah.com/ibnmajah:42
[19] Hugh Kennedy, ‘Caliphate – The History of an idea,’ Basic Books, 2016, p.81
[20] Muhammad ibn Yusuf al-Kindi, Kitab Al-Wulah wa Kitab Al-Qudah (The Book of Governors and the Book of Judges), https://shamela.ws/book/12831/250#p1
[21] Abu’l-Hasan al-Mawardi, ‘Al-Ahkam as-Sultaniyah,’ (The Laws of Islamic Governance), Ta Ha Publishers, p.118
[22] Dr. Ali Muhammad As-Sallabi, ‘Umar bin Abd al-Aziz,’ Darussalam, p.55
[23] al-Tabari, ‘The History of Al-Tabari’, State University of New York Press, Volume 24, p.94
[24] Dr. Ali Muhammad As-Sallabi, ‘Umar bin Abd al-Aziz,’ Darussalam, p.149
[25] Muhammad ibn Yusuf al-Kindi, Kitab Al-Wulah wa Kitab Al-Qudah (The Book of Governors and the Book of Judges), https://shamela.ws/book/12831/264#p1
[26] Abu’l-Hasan al-Mawardi, ‘Al-Ahkam as-Sultaniyah,’ (The Laws of Islamic Governance), Ta Ha Publishers, p. 128
[27] Noah Feldman, ‘The Fall and Rise of the Islamic State,’ Princeton University Press, 2008, p.147
[28] Noah Feldman, ‘The Fall and Rise of the Islamic State,’ Princeton University Press, 2008, p.6
[29] Surah Al-An’am, ayah 108
[30] Prof. Muhammad bin Abdullah Al-Masari, ‘Accounting the Rulers,’ Third Edition, 2002CE 1423H https://www.renascencefoundation.com, Chapter: ‘The nation’s monitoring of the rulers and holding them accountable’
[31] Abdul-Qadeem Zallum, ‘The Ruling System in Islam,’ translation of Nizam ul-Hukm fil Islam, Khilafah Publications, Fifth Edition, p.222
[32] Abu l-Hasan al-Mawardi, ‘The Laws of Islamic Governance,’ translation of Al-Ahkam as-Sultaniyah, Ta Ha Publishers, p.116; https://shamela.ws/book/22881/125
[33] Sahih al-Bukhari 4481, https://sunnah.com/bukhari:4481
[34] Suyuti, History of the Caliphs, https://shamela.ws/book/11997/139
[35] Al-Sallabi, ‘Ali ibn Abi Talib,’ vol.1, p.245
[36] Muhammad Al-Massari, Obedience to the rulers (Uli l-Amr): Its limits and restrictions
[37] Al-Bidaayah Wan-Nihaayah (2/319) quoted in Al-Sallabi’s Biography of Abu Bakr Siddiq, p.380
[38] Al-Tabari, ‘The History of Al-Tabari’, translation of Ta’rikh al-rusul wa’l-muluk, State University of New York Press, Vol. 11, p.149
[39] Al-Tabari, https://shamela.ws/book/9783/1699
[40] From the state treasury (Bait ul-Mal)
[41] Dr Ali Muhammad As-Sallabi, ‘The Biography of Abu Bakr As-Siddeeq’, Dar us-Salam Publishers, p.271
[42] Holy Qur’an, Surah Al-Hujjurat, ayah 4
[43] Alī ibn Ahmad al-Wāhidī, Asbāb al-Nuzūl, translated by Mokrane Guezzou, 2008 Royal Ahl al-Bayt Institute for Islamic Thought, p.139
[44] The senior sahaba were his advisors
[45] The Mazalim (upper house) will pro-actively check government policy to ensure no injustices are performed
[46] Dr Ali Muhammad As-Sallabi, ‘Umar ibn al-Khattab, His Life and Times,’ Vol.1, International Islamic Publishing House, p.149
[47] Ibid, p.496
[48] Ibid, p.507
[49] Ibid, p.517
[50] Ibid, p.509
[51] Sunan Abi Dawud 4398, https://sunnah.com/abudawud:4398
[52] Al-Sallabi, ‘Umar ibn al-Khattab, his life and times,’ vol.1, p.522
[53] waiting period after death/divorce of husband
[54] Al-Sallabi, ‘Ali ibn Abi Talib,’ vol.1, p.249
[55] Ibn Al-Mubarak, Zuhd, https://shamela.ws/book/13028/534
[56] Al-Sallabi, ‘Umar ibn al-Khattab, his life and times,’ vol.2, p.82
[57] Abu Ubayd, Kitab Al-Amwal, https://shamela.ws/book/12999/154#p1
[58] Al-Sallabi, ‘Umar ibn al-Khattab, his life and times,’ vol.1, p.454
[59] Abu Ubayd, Kitab Al-Amwal, https://shamela.ws/book/12999/154#p1
[60] Muhammad Al-Massari, Obedience to the rulers (Uli l-Amr): Its limits and restrictions
[61] Al-Tabari, Vol. 15, Op.cit. p.256
[62] Sallaabee, ‘The Biography of Uthman bin Affan,’ p.212
[63] Sahih al-Bukhari 1563, https://sunnah.com/bukhari:1563
[64] Sahih Muslim 1223c, https://sunnah.com/muslim:1223c
[65] Imam Nawawi, Sharh Sahih Muslim, https://shamela.ws/book/1711/1846#p1
[66] Imam Nawawi, Sharh Sahih Muslim, https://shamela.ws/book/1711/1847#p1
[67] Mohammad Al-Mass’ari, Al-Haakimiyah Wa Siyaadat ush-Shar’i
[68] Jami’ at-Tirmidhi 3768, https://sunnah.com/tirmidhi:3768
[69] Jalal ad-Din as-Suyuti, ‘History of the Khalifahs who took the right way,’ translation of ‘Tarikh al-Khulafa,’ Ta Ha Publishers, p.139
Islamic Civilization 