MUSLIM SOCIAL ORDER--I
Justice in Early Islam
Islam, a religion based on democratic and socialist principles has laid great emphasis on the equality and brotherhood of man, which could not be achieved without imparting equitable and impartial justice to all. The Great Prophet of Islam has from the very beginning, stressed this vital moral aspect and the high standard attained in the administration and application of justice during the early Islamic period, effaced from memory the proverbial justice of Nausherwan.
Even before the advent of Islam, a practice known as Half-al-fudul (the oath of voluntary justice) was prevalent among the Arabs, in which the chivalrous volunteers of the order sided with the oppressed even at the risk of their lives, and were not contented until full justice was done. This organization which was a terror for the criminals and the tyrants continued functioning upto the Omayyad Caliphate. Other methods of obtaining redress in pre-Islamic Arabia were (I)through local tribunal composed of tribal elders from which there was no appeal. (2) through Rahins (Soothsayers) from which there was no appeal,an institution similar to that of the Oracle of Delphi (Greek) (3) through arbitration by notable chieftains. This was the most important method of deciding complicated cases and inter-tribal feuds. The Chieftains of Bani Tamim, acted for generations as arbitrators for the whole of Arabia. During the early Islamic days, the Prophet who was noted for his piety, honesty and integrity throughout Arabia, served as the supreme judge for Muslims. The highest appeal lay with him and his judgment was considered as final in all controversial matters. On his migration from Mecca to Madina he laid down certain rules and regulations for the guidance of the Muhajreen and Ansar which may be taken as the basis of the constitution of the first Islamic State. After mentioning the confederal units of the Muhajirs and Ansars in the preliminary chapters, he deals with the importance of maintaining high standards of justice in an Islamic State. The Prophet appointed a special Court of Law when both parties were Jews and such cases were decided according to the rules laid down in the Taurat. According to Kara-lev Skij, during the Caliphate of Hazrat Abu Bakr such courts were established to decide cases between non-Muslims.
The Prophet had nominated Naqibs and Arifs for the Muslims of Medina, even before his arrival there. Naqibs who represented 12 tribes, were responsible for maintaining peace and order in their area. Arifs worked-under Naqibs. The final appeal in disputes lay with the Prophet, who was the supreme judge.
Muaz bin Jabal was appointed by the'Prophet of Islam as the first Qazito al-Janed in al-Yemen. Muaz had a farewell audience with the Prophet, which occupies an important place in the history of Islamic jurisprudence. The Prophet enquired "How will you decide the cases?"
"I shall decide according to the Book of God", replied Muaz,
"And if there is nothing on the subject in the Book of God", asked the Prophet.
"Then according to the practice (Sunnah) of the Apostle of God", replied Muaz.
"And if there is nothing in the practice of the Apostle of God?" enquired the Prophet.
Then I will use my own judgment added Muaz.
Thereupon the Apostle of God said, "Praise be to God who enabled the envoy of the Apostle of God to say what has satisfied him (Prophet)"
In ancient Semitic laws, if a man killed the daughter or son of the other, his son or daughter was to be killed. But Islam changed this law and the Prophet of Islam differentiated between intentional and accidental murders and motive was made the determining factor in awarding punishments.
The revision of judgments was allowed and during the Caliphate of Hazrat Omar people were at liberty to complain against the highest authorities at the time of Haj, when people assembled in Mecca from distant corners of the Islamic world. Hazrat Omar showed no softness toward the highest State official if he was found guilty, the higher the position the stricter and severer was Omar's scrutiny of his conduCt' .
When Hazrat Ali was appointed judge of Yemen, the Prophet instructed him that he should not decide the case without taking the statements of both the parties. "The burden of proof", said the Prophet, "lies with the claimant and the defendant who denies the claim, must deny on oath". This principle of law is followed by all courts at the present time. Qazi Shurayh made an important amendment in the witness laws. Formerly all witnesses appeared together, He suggested that witnesses should appear separately before the Qazi. Qazi Shurayh who was appointed by Hazrat Omar as the supreme judge of Iraq imparted impartial justice for about 75 years and is reputed to have been one of the most brilliant legal luminaries of the Islamic world. The Prophet had appointed paid judges and Attab bin Asid, Qazi of Mecca who was paid 30 Dirhams per month was one of them, Hazrat Omar, the second Caliph of Islam fixed handsome salaries for the Qazis so that they might be free from temptations and corruption.
Jails, too, were constructed by Hazrat Abu Bakr and his successors. The first court building was constructed by Hazrat Osman, and was called Darul Qada.
The Head of the State in Islam was never considered above the law. The British conception that. the king can do no wrong, has never been accepted in Islam and legal action could be taken against the highest authorities. The Holy Prophet, himself, entertained claims made against him and personally appeared in several civil suits filed against him. It has been proved by historical records that such great Caliphs as Hazrat Omar and Ali as well as several autocratic Caliphs of the Omayyad and Abbasid dynasties were summoned into the courts of the Qazi and no regard for their exalted position was shown. On the contrary Hazrat Omar and Ali resented the ordinary respect if shown to them by the Qazi.
The administration of justice in Islam was made easy due to the sanctity attached to the law in Islam in addition to the sanction of the Government. According to Islam the principal law giver is the Almighty God who is Omniscient and Omnipresent, He delivers His commands and ordinances through His Apostle (Prophet) and the Holy Book (Quran). The sinner among Muslims has to take into consideration both the moral (Divine) and physical (Governmental) sanctions before committing a sin. The dread of punishment in this world and the hereafter keeps him away from sins and he thinks twice before committing them.
The classical sermon given by the Prophet in his farewell pilgrimage in the 10 A.H., contains the fundementals of Human Rights, when he said that the three elementary rights of man namely Life, Property and Honour will be duly respected in Islam. The Prophet's judgment in various controversial matters, between tribe and tribe, Muslims and non-Muslims, forms the land-mark of the history of jurisprudence. He was equally relied upon by his friends and foes. Even his deadliest enemies the, Quraish of Mecca had given him the title of al-dmin (Trusted) and never questioned is integrity of character. He was kind and just even to his enemies.
Hazrat Abu Bakr Sjddiq, the first Caliph of Islam kept up the noble traditions of his master and ensured impartial justice in his fast expanding Empire. Addressing the people after his election as the first Caliph of Islam he delivered a memorable speech: "Now I have been elected your Caliph, although I am no better than you. Co-operate with me if I am right; set me right if I go astray. Truth is atrust, falsehood is a treason. The weak among you shall be strong with me, till his right has been vindicated and the strong among you shall be weak with me, till I have taken what is due from him. Obey me as long as I obey God and His Prophet. When I disobey Him and His Prophet then, obey me not", The principles enunciated above formed the skeet anchor of his justice. Hazrat Omar was appointed the Chief Qazi of his Caliphate, but people had grown so honest in their public dealings that not a single case was brought before him for one year. Zaid bin Sabit, Hazrat Ali, and Hazrat Osman acted as Honorary Khatibs. The Caliphate of Hazrat Omar forms the golden epoch of the administration of Islamic justice, The second Caliph of Islam is particularly known for his impartial justice. Justice during his reign was administered by Qazis who were appointed by the Caliph and were free from the control of the Governors. He ·was the first man who separated the judiciary from the executive, thus ensuring free and impartial justice. "The judge was named and is still named", says Von Hammer, the Hakim-us-Sharaa, i.e, ruler through the law, for law rules through the utterance of justice, and the power of the Governor carries out the utterances of it. Thus the Islamic adiministration, even in its infancy, proclaims even in word and in deed the necessary separation between judicial and executive; power".' Such separation of executive from the judiciary has not been attained by any of the most civilized sfates of modern times, The administration of justice during his time was perfectly impartial and the Caliph himself set an example by carrying out the orders of the Qazi.
The letter written by the second Caliph to Abu Musa Ashaari, detailing the fundamental principles of justice is an invaluable piece of jurisprudence which can favourably be compared with the Roman law. The Caliph took particular care to enforce the equality of justice. In the eyes of the law all are equals.. He personally visited several courts in order to have practical experience of their working. Once he had to attend the court of Qazi Zaid Bin Sabit as a defendant. On the arrival of the Caliph in the court, the Qazi stood up as a mark of respect. Hazrat Omar objected to it saying that it was against the conventions of the court and took his seat by the side of the plaintiff. The case proceeded on and in the end the Caliph had to give his statement on oath, but the Qazi exempted him from doing so. Again the Just Caliph extremely resented this preferential treatment to his person and warned him,''Unless you consider an ordinary man and Omar as equals, you are not fit for the post of a Qazi"
Jablah bin Al-Aiham Ghassani was the ruler of a small Staet in Syria. He was converted to Islam and one day, when he was offering Haj, a part of his gown was trampled upon by a poor Arab. Jablah gave him a slap. The Arab, paid him back in the same coin. The infuriated Jablah hurried to the Caliph and wanted that the Arab should be severely dealt with. The Caliph told Jablah that he had already received justice. Thereupon Jablah added, "Had he done such an insult to me in my country, he would have been hanged". The Caliph replied calmly, "Such was the practice here in pre-Islamic days but now the pauper and the prince are equals before Islam".
Hazrat Omar was very strict in the enforcement of impartial justice and did not spare his near and dear ones if they were at fault. Once his own son Abu Shahma was reported to have drunk wine. The Caliph flogged his son with his own hands, till he died, and the remaining strips were delivered on his corpse. He awarded a similar punishment to his brother-inlaw. The history of the world can hardly produce greater respect for justice.
Hazrat Ali was the greatest Mujtahid (Jurist) of early Islam. He solved the knotty problems and cases which defied solution. He was the principal adviser on religious, legal and constitutional matters during the reign of the first two Caliphs. Once two women were brought before him who were quarrelling over an infant child -each claiming it. Hazrat Ali ordered that the child should be cut into pieces. The real mother was overwhelmed with grief and renounced her claim. Hazrat Ali awarded the child to the real mother and punished the other woman.
When Hazrat Ali was Caliph, he was summoned to the court of a Qazi, A Jew had filed a suit against him and claimed the Caliph's armour. The Caliph called at the court and stood by the side of the claimant (Plaintiff) and did not tolerate any consideration for his exalted position.. The claimant (Jew) produced several witnesses in support of his claim. The Qazi enquired from Hazrat Ali whether he had anything to say in his defence. The Caliph replied in the negative and the Qazi decided the case in favour of the Jew and awarded him the armour which the Caliph had actually purchased from him. The Jew was much struck with the impartial judgment of the Qazi and returned the armour to the Caliph, saying, that the Caliph had actually purchased the armour from him (Jew). He had filed the suit in order to test the impartiality of the Caliph and his court which magnificently stood the test. Hazrat Omar used to say ahaut Hazrat Ali, "God forbid we may not be confronted with any controversial problem which Ali might not solve"
Hazrat Omar bin Abdul Aziz the Omayyad Caliph was known for his piety and justice. During his short Caliphate of 29 years, he re-orientated the administration of justice on a sound footing. Even the claim of an ordinary citizen was recognised against the most powerful members of the Omayyad dynasty. The proverb that the goats and wolves roamed about together had become true during his reign.
Imam Abu Hanifa was the greatest legal mind of Islam, but he declined to associate himself with the Omayyad and Abbasid Caliphates which had been converted into monarchies and he had to pay a high price for this refusal. Once the Abbasid Caliph Mansur offered him the high post of the Grand Qazi of his vast Empirer The Imam` bluntly. replied: "supposing a complaint is lodged against you in my court and you want that the case should be decided in your favour, otherwise you would throw me in the river. Then please rest assured that I would prefer to be drowned in the river rather than decide against justice". This out spoken curt reply silenced the Caliph for the time being. But on another occasion, Mansur again offered this high post to the Imam. The Imam again refused the job saying that he was not fit for that. The Caliph shouted out, "You are a liar". The Imam replied calmly, "you have verified my contention. A liar is unfit for the host of a Qazi". The Caliph was nonplussed by this logical reply and swore that the Imam would have to accept the post of Grand Qazi. The Imam too swore that he would not. The whole Durbar was stunned by the boldness of Imam.
The Imam was known for his great learning and legal brain throughout the Islamic world. The Caliph privately consulted him on controversial issues and his judgments were highly respected by all. Once there had been some dispute between the Abbasid Caliph Mansur and his wife Hurrsl Khatun. Khatun wanted the matter to be referred to Imam Abu Hanifa. The Imam was summoned by the Caliph and his wife also sat behind the curtain. The Caliph asked the Imam, "How many wives are allowed in Islam at a time"?
"Four", replied the Imam.
Mansur cried out to his wife, "Did you listen what the Imam has said"?
The Imam added at once, "But there is one condition. a man is permitted to marry more than one wife, provided he is capable of imparting justice and granting equal rights to all of his wives".
The last part of the Imam's reply went against the interests of the Caliph. On reaching home, in the evening, he found a man waiting for him with a bag of guineas and a letter of thanks from the wife of the Caliph. The Imam returned the money with a word that it was his duty to speak the truth without having any consideration for fear or favour.
Qazi Abu Yusuf,a pupil of Imam Abu Hanifa was appointed the Grand Qazi of the Abbasid Empire during the reign of the celebrated Harun-ar-Rashid. On several occasions he delivered judgments against the interests of Empress Zubaida, the favourite wife Of the Caliph, without caring for the consequences.
Such was the high standard of justice maintained during the period of early Islam, which has hardly any parallel in the long history of jurisprudence.
Copied from 'THE ISLAMIC SCHOLAR'