As the Islamic State of the Prophet ﷺ expanded, new officials of state were appointed to manage the ever-growing tasks especially in the new provinces. Once Yemen had joined the state under Bādhān ibn Sāsān, the Prophet ﷺ appointed separate judges to the province notably Ali ibn Abi Talib and Mua’th ibn Jabal. The judiciary was therefore a centralised institution in the time of the Prophet ﷺ, a situation which continued throughout the time of the Rightly Guided Caliphs and beyond although sometimes this was devolved to the governor if he was qualified. Al-Sallabi says, “Among these [governors] were some whom ‘Umar [ibn a-Khattab] kept as judges as well as appointing them as governors, as he did with Mu‘awiyah, and some from whom he took away the role of judge and limited them to their role as governor, as he did with al-Mugheerah and Abu Moosa al-Ash‘ari.”[1]

This appointment of judges by the central government does not mean judicial independence was absent from the state. Sovereignty in an Islamic State is to the sharia, so judges would settle disputes according to the law, and not through political pressure from either the caliph or any other Amir.

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.”[2]

During the caliphate of Mu’awiya, Usaid bin Zubair[3] Al-Ansari, was the governor (‘Amil) of Al-Yamamah, and Marwan wrote to him saying that Mu’awiyah had written to him, saying that any man who had something stolen from him had more right to it wherever he found it. Then Marwan wrote saying that to me (Usaid).

I wrote to Marwan saying that the Prophet had ruled that if the one who bought it from the one who stole it is not guilty of anything (and did not realize that it was stolen goods), then the owner has the choice: If he wishes, he may buy it from the one who bought it from the thief, or if he wishes he may go after the thief. Abu Bakr, ‘Umar and ‘Uthman also passed judgment along these lines.

Marwan sent my letter to Mu’awiyah, and Mu’awiyah wrote to Marwan (saying): “Neither you nor Usaid are in a position to tell me what to do, rather I am the one who tells you what to do because I am superior in rank to you, so do what I tell you.” Marwan sent the letter of Mu’awiyah to me, and I said: “I will not judge according to Mu’awiyah’s opinion as long as I am the governor.”[4]

The most famous example of judicial independence is that of 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 Al-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 as Feldman mentions.

Qadi Shurayh famously ruled against Ali ibn Abi Talib when he was caliph in the case of the Jewish man who stole Ali’s armour. The Jew said, “The Amir al-Mu’minin 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.”[5]

Notes

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[1] Al-Sallabi, ‘Umar ibn al-Khattab, his life and times,’ vol.1, p.496

[2] Noah Feldman, ‘The Fall and Rise of the Islamic State,’ Princeton University Press, 2008, p.6

[3] The hadith mentions the name as Usaid ibn Hudair but this is a mistake as Al-Albani points out in his book As-Silsilah As-Sahihah https://shamela.ws/book/9442/1108#p1

[4] Sunan an-Nasa’i 4680, https://sunnah.com/nasai:4680

[5] Jalal ad-Din as-Suyuti, ‘History of the Khalifahs who took the right way,’ translation of ‘Tarikh al-Khulafa,’ Ta Ha Publishers, p.139