ADAB AL-Q

Author(s): TANZIL-UR-RAHMAN
Source: Islamic Studies, Vol. 5, No. 2 (JUNE 1966), pp. 199-207
Published by: Islamic Research Institute, International Islamic University, Islamabad
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ADAB AL-QADl
TANZIL-UR-RAHMAN

%Adab
al-Qadz is a termthat is constitutedof twowords 'AdaV
and %QpdV.The word %AdaVliterallymeans civility and decorum.
It indicates modes of behaviour and discipline of the mind and
manner in the conduct of one's life by which he is trained in any
and
or profession.
It sets forth praiseworthy
qualities
to
him
and
shun
demands of
in profusion
of a man
dispositions
those aspects of conduct that are evil.1 %QadY in common parlance,
excellence

means

a 'Judge'.

In modern

legal context,

the word

'Judge' denotes

a person or a body of persons officiallydesignated as judge or

judges, empowered by law to adjudicate and deliver, in any legal
proceeding, civil or criminal judgement, which is final if not
appealed against.2 InMajallah, q?di has been defined as a person
who is appointed by the sultan to adjudicate claims and disputes
In Shar\ a q?di
between people and parties according to Shar?
is a personwho is appointed by the ruler to determine the disputed
rights and liabilities of the litigants, civil or criminal, and to
in the matters

of marriage,
and
divorce, maintenance
to
of
interests
after
the
to
look
and
inheritance,
manage
orphans
as a whole,
therefore,
public trusts. The term 'Adab al-Q?dV\
means the etiquette and the rules of discipline or code of conduct,
adjudicate

which

a judge has

judge.
Islam

to maintain

in the

first and

minister

in the performance

place enjoins a q?di to ad

ye judge between men,
judge with
: 58).
At another place, the Qur'?n
had asked him to
did

indeed make

on earth, so judge thou among men

in truth (i.e.,

justice) and don't follow thou thydesires" (XXXVIII

the Qur'?n

as a

foremost

"And when
justice.
the
justice", says
Qur an (IV
us
that God addressing
tells
the prophet David,
deal out
"O David, We
justice among men.
thee a vicegerent

of his duties

addressing

the believers

in general

: 26). Again,

calls

upon

them

to be always fair in dealing with the affairsofmen. Whenever a

believer is called upon to give evidence he should be particular
that no

indignation

against

a person,

however

provocative

or

justifiable in itself, should incite him to deviate fromthe path

of justice. God bids that justice, which is the highest formof

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TANZIL-UR-RAHMAN

200

Al-Sarakhs? describing qada

piety, be dealt out evenly (V:8).
as the best formof worship has stated "after faith inGod, there is
nothing more

obligatory

In pre-Islamic

Arab

than a just decision."4

society

there

existed

system of

tribal

judiciary. Generally, the head of the tribe used to act as a judge

also
There
of dispute
among his people.
as
act
to
such and decide
in the tribes who used

used

in matters
hakams

to be

the matter

to their
and
wisdom
intelligence,
according
were
in
dis
inter-tribal
also
arbiters
There
custom.5
(hakams)
In the early days of Islam, the contesting parties used to
putes.
laid

before

them

bring their disputes and differences for decision before the

There

Prophet.

hadith quoting the Prophet as saying,

to me and I give decision.
It may happen that

is a famous

"Many of you come

sometimes one party

is more

than the other and thereby

eloquent
Such a person obtains,
his brother.
obtains a decision
against
a
of fire. He ought not
a
in
his
decision
of
favour),
piece
(instead
of
the
duties of qada
to accept
it."6 The
assigning
Prophet,
b. Jabal, inquired of him as to how he would
in cases before him. Mu*adh
the decision
replied:

Yaman

to Mu'adh

proceed

with

"By the guidance of Kit?b Allah". The Prophet said, "If you do
not find anything to guide you inKit?b Allah, what would you do
then ?
from

"

Mu'adh
the Sunnah

replied,
of the

"The

guidance
The
Prophet".

then

would

Prophet

next

be

taken

inquired,

"What would you do if you do not find any provision either in

"
Kit?b All?h or in theSunnah ? Mu'?dh replied, "I would, then,
come

to a decision

by my own

lights".

It

is said that

the Prophet

placed his hand on his breast and said, "Thank Allah Who
the true light to my

principles
tions of
generally

representative

and made

him adhere

showed
to the

to which
A number of other tradi
I am agreeable."7
are also narrated
the Prophet
but barring
few they
deal more with the moral aspect of human conduct than

rules of the administration

of justice.
the particular
Ab?
a
to
set
not
Bakr could
up
get time
separate branch of judiciary.
the functions of a q?dt as well.
The wall performed
It was only

with

during the time of 'Umar that the judiciary came to be separated

and judicial powers
from the executive.
appointed
Q?dts were
letter of Omar,
were assigned to them.8 The
said to have been
written
tinctly

for the first time dis

al-Ash'ari,
by him to Ab? Mosa
the
of
down
of justice
administration
in
principles
lays

Islam? Ibn Qayyim, while discussing the letter in his book

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?l

ADAB AL-QAt?

Vlam-aUMuwaqqY?n has considered the principles contained in

the said letter to be the basis of the Islamic administrationof
justice and a code for the q?di.9
The rightof appointing a q?di vests in a sultan. It is rather
obligatory

on him to appoint

q?dis.10

He

may,

however,

delegate

his power to a w?li of a province. The appointing authoritymust

see that a highly eligible person alone is put into the officeof a
confers a post on some one
Prophet enjoins, "He who
in preference to a better qualified person, betrays the trust placed
The

q?di.

in him by God, His Prophet and theMuslim Community."11 It is

enjoined that : A q?di must be a sane,wise, just and honestMuslim ;
he

should

fully conversant

be

with

the

correct

and

procedure

law ;must be capable of deciding disputes according to the tenets

of the Shar

; he must not be a minor

; he must not be hot-tempered,

blind or deaf ; and he must possess the necessary qualifications of

a witness.12
Whether
a q?di

a woman

is a controversial

is considered
question

to be appointed
competent
schools
different
the
among

Islamic law. M?lik, al-Shafi'i and Ahmad b. Hanbal

to be of the opinion

that a woman

are reported

to hold

is incompetent

as
of

the post

of a q?di, while Ab? Han?f ah takes a differentview. According to

can be appointed
to act as a q?di only in those
in
a
is held as admissible
woman
matters wherein the evidence
of
law, viz., in cases other than those of hud?d and qis?s. Al-Tabarl
the latter a woman

is competent
is said to be of the opinion that the qada of a woman
is in
a
woman
that
in all matters.
view of the former
The
the
from
its support
to hold the post of a q?dt draws
competent

according to them,
is a part of im?mah, for which
fact that qada
In this respect, the contrary view of
is not eligible.13
is more liberal.
and al-Tabari
Ab? Hanifah
that a q?di be a
necessary
considers it absolutely
Al-Shafi'i
mujtahid, i.e., capable of exercising independent and original think
a woman

ing in legal questions, whereas

is merely
considered
mujtahid

according

to Ab?

commendable.

Hanifah,

The

to be a

post-classical

view is that ifq?di is a mujtahid, it is merely preferable but not

indispensable.14What is really required of him is that he ought
to be, beyond all doubt, a person of high integrityand trust

worthiness.

He

must possess

wisdom,

intelligence

and deep

ledge of the provisions of fiqh and sunnah.

While

coming

to decisions

in cases before him, a q?di

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know

has to

202

TANZIL-UR-RAHMA?

bear inmind both the commandmentsof God and the teachings of

the Prophet. Where there is no hadith applicable to the point,
the q?di has to relyon the ijma of the Companions. If he findsa
difference of opinion among them on the point in question he
should choose the best view. If the q?di finds an ijma of
In the event of differ
he must decide accordingly.
the Successors,
he must choose the best
ence of opinion
among the Successors,
a
must
not
he
seek a fatw?.
case
After
he is
In
view.15
mujtahid
to the case, he must come to the decision
in
getting one suitable
accordance
Where

with

that fatw?.l?
there is no nass or clear text either from the Qur'ln

or

the Sunnah (of the Prophet and his Companions by ijma), a q?di
ought to resortto ijtih?d employingqiy?s. The fearof committing
error must
ijtih?d

not deter

commits
A

harm done.

error,
q?d?s

him

from

according

this

to reach

endeavour

If a q?di

recourse.

to Ab?

there

Han?fah,

in his
is

no

the truth by employing

the process of ijtih?d is a sufficientcredit forhim. It is said that

that in resorting to ijtih?d there

the Prophet told *Amr b. al-'?s
two rewards, one for the effort of ijtih?d and the other for
If in
achieving what was attempted, by having recourse to ijtih?d.
that process some error creeps in, there is no sin laid upon him.17

were

A
should

should be

court-room
be

so arranged

theQiblah.1*

seat
The q?d?s
spacious and open.
as to have the faces of the litigants towards

may
q?di, while entering the court-room,
give a general
salutation to all present
in the court. After taking his seat, no
should take place between him
salutation
offering of a particular
If someone,

and the litigants.

in his discretion,

may

in particular,

does

salute

al-sal?m

reply waalayk?m

and

him,

he,

say nothing

more.19

q?di
is desirable

ought to conduct his day's business

that before entering the court-room,

four rak'ahs

of nafl prayers

in administering

from God

seeking

in open court.
he offers

wisdom

It

two or

and courage

justice.20

A q?di must not engage himself in his judicial work during a

state of anger and fury.21 He must abstain from such engagements
state. He
till he regains his normal
is, likewise, forbidden to act
when
A

he has overfed
q?di

compromise

should
between

or is hungry.22
lend his support
themselves.

to the parties

No

compromise,

in effecting
however,

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a
can

ADAB AL-Q?tf
be allowed to be made
a har?m

into

ah initio null

if it has the effectof turninga hal?l act

a

Such

one.23

203

compromise,

if effected,

would

be

and void.

In Islamic

law powers,

duties

and rules of conduct

connected

with the officeof qada have not been laid out in a regular form.
They were laid out and defined by differentCaliphs in their time
as and when

The

required.

have

principles

been deduced

from the

cases laid before, and decided by, different q?dts of their time
were

and approved
and usage.
accepted
by long practice
of
of the attainment of the objective
jurists, in pursuance
elaborate
and
instructions
have also laid down general

which
Muslim

justice,
rules which

arc

be

al-Sarakhsi's

al-Mabs?tt

Margh?nanf s al-Hid?yaK
s Shar?x

Hillf

are termed
These
by a q?d?.
work of
found in any comprehensive

observed

and can be

"'Adah al"Q?dT\
fiqh, e.g.,

to

aUIsl?m,

al-K?s?nfs

the works

for instance,

W?sit?,

on Ahk?m

al-Hukkam

sKanz

al

Raddal-Muht?r

also deal with

al-qada

by Abu

al-Daqa?qt

and theOttoman Majallah.

-'Abbas

Lis?n al-Hukk?m by Abu

Shihnah, Mu?n-al-Hukkam

al-San?i\

Ibn Rushd's Bid?yat al-Mujtahid% al

al-Nasaff

by Ibn ?bidin, theFat?w?-i-?lamgtri

Besides,

Badai'

Ahmad

this subject,
al
Bakhtiyar

-Wal?d known as Ibn ai

by Muhammad

al-Husayni,

al-Qada

ft -Isl?m by 'Arifal-Kindi,TarV?h al-Qada fi -1sl?m byMahmad

-Isl?m by Sayyid Muhammad

fi
al-Qada
book on the subject,
most
exhaustive
the
and, perhaps,
Sangalch?
known as Ibn Q?d?
Isr?'il
b.
JamV
by Muhammad
al-Fus?layn
the
In the following pages we intend to summarize
Sam?wanah.
b. Muhammad

rules

b. Urn?s,

enumerated

al-Mabs?t

in the above works

with

special

reference

to

of al-Sarakhsi.24

of his
show no fear or favour in the exercise
q?d? should
not
must
be
influenced
He
his
duties.
of
or
powers
performance
or resentments
of the parties
concerned.
by feelings, aspirations
A

This would deter him from doing justice and make him incur the
displeasure ofGod. If a q?di, afterdelivering judgement,finds in
that he has erred in coming to
Sunnah or Ijma
the light of Qur'an,
a decision,
incumbent upon him to revise his earlier
it becomes
inasmuch as reversion to truth is better than the reten
decision,
tion of falsehood.
If a qadi finds himself hesitant or reluctant to come to a deci
sion on certain points involved in the case before him, he should

postpone his decision till he is definiteand clear about them,

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204

TANZIL-UR-RAHMAN

The

role of a q?di must be such as to enhance the prestige

the litigants, and to make

of the court, to impress
from
their proper
them desist
exceeding
limits, but he must not
behave in a manner which may deter the litigants from presenting
of arguments.
their cases with an unintimidated
exposition
to any litigant, however
A q?dt should
give no precedence
and

dignity

in life may be. However,

and
travellers
high or low his station
be
off
far
persons hailing from
given precedence.
places may
of a complaint before him, should
A q?dt, on the presentation
in support
give enough time to the plaintiff to produce his witnesses
the
defendant
of his claim and on the close of the plaintiff's case,
of meeting the plaintiff's case.
be provided the opportunity
a
a
case
should allow neither haste
In the process of deciding
q?di
nor delay.
affects adversely the defendant's defence, while
Haste
should

delay prejudices the plaintiff. The procedure and the time should

be

as

far as

possible

evenly

balanced

the

between

contesting

parties.
of a case and the appearance
of
A q?dx, on the presentation
the parties before him, must acquaint
himself, first, with the facts
of the case. He should, then, proceed to give a patient hearing to
He should carefully listen to the
the parties and their witnesses.

made before him, "as it often happens

the tip of the tongue of the witnesses
to Ab? Hanifah
and
It is said that, according
under examination."
a q?di must not converse with a witness
Muhammad
al-Shyb?nl,
before him for deposing.
He
should hear care
when he appears
statements

of the witnesses

that the truth hovers

on

the witness deposes and take it down with accuracy.

fully whatever
is stated to have said, "There
is no harm if a
Ab? Y?suf, however,
as
to
witness
It is
the
how
he
should
counsels
depose.
q?di
the witness
that on appearance
is overawed
the
by
possible
of the court and that he
grandeur
advised
truth unless
by the q?di"
is worthiness

evidence

and befitting

proper
a witness.

is not able
He

to speak out the

that to give

maintains

and worthiness
It is
has got to be helped.
if a q?di on such occasions
lends support to

A q?di, on the occasion

of a party taking oath, must counsel
him properly. He must, for the purpose, appoint an appropriate
or some other solemn place.
like the court-room,
mosque
place

should administer the special oath only after offeringhigh

praises to Almighty God in a manner that the party taking th?

He

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205

ADAB AL-QXpl
oath may,

at heart, be impressed with

of the occasion

the solemnity

and theMajesty of God and therebymay find the path of truth.

RULES

THAT

BY A Q?Ql

TO BE FOLLOWED

INCUMBENT

ARE

A q?di is bound to observe the following rules :

(0 He should be dressed properly. Prior to Ab? Y?suf
being elevated to the officeof the chief justice therewas
no prescribed dress for a q?di. AbQ Y?suf prescribed
the

consisted
of a long gown
thereafter,
a turban
on
the
shoulders
and
open

dress which,

with wide

sleeves

ends ofwhich lay on both shoulders. The chief justice

a shawl,

to used wear
(ii)

should maintain

He

over

to one

in addition,
an

the

attitude

other.

He

of giving no preference
should, in fact, treat all

must make
respect.
in front of him. His
sit in court
in every

equally
parties

or deeds, must

in words

respect,

the contesting
treatment and

He

to all.

be shown

equally

(iti) He should accept no gift fromthe litigants.

(iv) He must not go to any feasts provided by the litigants.
must

(v) He

not

or in chambers,

in private

talk,

to one

party alone.

(vi) He should not sit in judgement over the cases of his

relations, such as his father, grandfather, son, grandson
or wife, and of his partner, friend or hireling.

{vii) He should not allow the litigantsto enter his house.

WHAT

A Q?DI

AVOID

SHOULD

A q?di should avoid the followingacts, deeds and things,which

have been termed by fuqah?* as detestable (makr?h) :
(i) A q?di should not inviteto a feast any one of thedisput
ing parties.
the parties,

(ii) A

He
is, however, permitted
in case of necessity,

to invite

both

q?di should not be harsh with the witnesses. His

harshness
truth.
while

may

he

Likewise,
the witnesses

however,

put

in the way

stand

should

are

certain

not

deposing
questions

of

stating the
too often,

their

intervene
before
by way

him.

He

can,

of obtaining

clarificationsof the points involved. The ijma permits

a q?di to go to the length of rebuking a witness, ifand

when

necessary,

(ni) In case the q?di is a party in a litigation he should np?

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20?

TANZIL-UR-RAHMAN
a personal appearance
in court. He
may appoint
agent to represent and act for him in court in his defence
or otherwise, as the case may be.

make

WHAT A Q?PJ MUST AVOID

The followingare the rules regardingthose acts which a q?dt
must

refrain from committing

(1) A q?dt should refrainfrom advising any of the parties

before him. He
should abstain
the suit contesting
in a manner
that may
favour one to the

to

from acting

should not hinder and stop

prejudice of the other. He

to hinder

or cause

or

in court to make

forward

stop any of the parties

coming
an admission or confession in

the case before him.

(2) A q?dt should not, in court, indulge in laughter or

He

humour.

not known

language
(3) A

should

a party to the suit in a

not address

to the other party of the suit.

or seek advice from someone

should not consult

q?d?

in court.

present

Neither

to the suit.

parties
consulted

should he consult

one of the

the party not

to accuse the q?dt

It would

dishearten

lead that party

and might
in the case.
its (party's)
opponent

of favouring

(4) A q?dt should not, in court, engage himself in making

purchases
(5)

indeed,
A q?dt

in court,
while
He,
affair.
other
in
any
indulge
in no event, accept
any
should,
is reported to have said, "Accursed
or

sale.

Prophet
and the receiver

of bribe".

the effect that bribe-giver

go

to Hell.

Bribery

may

be in the form of waqf,

may

There
and

sadaqah,

not,

bribe.

The

is the giver
is another hadith to

bribe-taker

assume

should

different

both

would

forms.

It

sale with nominal

price (bay muh?rabah). The object of all these offer

or indirectly, is to seek the favour of the

in general
of had?yah
the acceptance
Although
q?d?.
a q?d? must abstain from it, inasmuch as
is permissible,
ings, directly

itmay be suspected of being a bribe and the high office

Khass?f, a great mujtahid

q?d? may be tarnished.
was
of the opinion
of the fourth century of Hijrah,
that a person accepting a present before being inducted

of

t9 ttieoffice of a q?d?, must refuse to accept the gif?

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ADAB AL-Q?pl

20?

The normal acceptance

after taking charge of the ofBce.
of a gift from near relations is, however, not prohibited.

NOTES
1.

Lane,

Lexicon,

Arabic-English

2.

Pakistan

Penal

3.

Ottoman

Majallah,

I960,

Code,

Sec.

London,

s. v.

1863,

1785

OlJjl ?a
CS^JI
^UJI"

?U*1"!JJ fr <^*->4^

fr~*JJ*ai

4. Al-Sarak?s?, S&ams al-D?n (d. 482 A.H.)

XVI : 59.

al-Mabs??t, Cairo,

d>/A
u??,yJI
& ?aj JUJ -?b (jlOfl-A**
5.
6.

*?rif al-Kind?,

Adab*

Kitab

Sunan,

Al-Nasa'I,

-lsl?m,

fi

Al-Qaaa'

i^o?

19.

Sec.

1324 A.H.

Cr*cH1* 'Uall?l11

"obL?l

1361 A.H.,

Damascus,

6.

al-Qa$?\

7. AbO Da'??d, Sunan, Kit?b al-Qad?, Bob Ijtih?d al-Ra'y fi '/-?a^ \

8. Ibn KhaldQn, The Muqaddimah, English Translation by Franz Rosenthal,
New York, 1915, 1: 452.
9.
10.
11.

Ibn Qayyim,

Vl?m

Al-K?s?ni,

al-Sanai',

AUSunan

Al-Bayhaq?,

Lahore,

Hamilton,
13.

Al-MSward?

al-Kubr?,

450

(d.

; Ottoman

Al-Ahk?m

A.H.),

61-2; Ibn Rustid (d. 595 A.H.),

II : 460.
14.
15.
16.

Hidayah,

Al-MarghinSn?,

Ibid.,

; 118.

Majallah,

Secs.

al-SultUn?vah,

1792-94.

Cairo.

1298

A.H.

Bid?yat al-Mujtahid, Cairo, 1379 A.H..

Translation

English

Kanpur,

Fat?w?-i-'?lamgiri,

; 1.

English Translation by Charles

Hid?yah,
334

1957 A.D.,

VII

1355 A.H.,

Hyderabad,

(d. 593 A.H.),

12. Al-Marghin?n?

1328 A.H.,

Cairo,

., 1: 30-1.

1314 A,

Delhi,

al-Muwaqq?in'

Badai'

n.d.,

by Charles

Hamilton,

334.

: 143-44.

III

144.

17.

AbG

18.

Fat?w?-i-'?lamg?r?,

D?'Ud,

19.

J&td., 147.

20.

Ibid.,

Sunan,

Karachi),

(K?rkk?na-i-Tij?rat-i-Kutub,
op. cit.,

III

p. 503.

; 144.

147.

21. Al-Bukh?r?, Sah\h%

Kit?b al-Ahkam, Chap.

jL??
22.

FatUw?-i-'?lamgiri,

op.

23.

AbG

B?b

n.d.,
24.

Da'??d,
p.

Sunan,

cit., III
fi

}*>jJJuj\piUJI

-Sulh;

(K?rkhana-i-Tiisrat-i-Kutub,

506).

Al-Sarakks?,

al-Mabs?t,

Ja

: 150.

op. cit., XVI,

59-94,

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Karachi),