Explanation of the author's statement: "And if two parties appoint a man suitable for judgment to rule between them, his ruling is executed in matters of wealth, hudud, li'an, and others"
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The Shaykh : The author (may Allah have mercy on him) says "And if two parties appoint" This is today's lesson "And if two parties appoint a man suitable for judgment to rule between them, his ruling is executed in matters of wealth, hudud, li'an, and others" "Appoint" means we made him a judge. The appointment of a judge other than a formal judge is established in the Qur'an. Allah the Exalted said: [An-Nisa 4:35] So the principle of appointment is established by the Qur'an. Likewise, 'Umar and Ubayy ibn Ka'b (may Allah be pleased with them both) appointed Zayd ibn Thabit to judge between them, and he ruled between them. The author's statement "if two parties appoint" is by way of example. So if four parties appoint a man, it is permissible; it is permissible. And his statement "if two parties appoint a man": the word "man" is a descriptive attribute, meaning it is not a restrictive condition. It would be valid if a woman ruled, or if two women appointed a woman, for there is nothing wrong with that, and it is permissible. So if it were assumed that a woman has knowledge, trustworthiness, and expertise, and two men appointed her to judge between them, and she ruled between them, there is nothing wrong with it. What is the obstacle? Because this authority is not a general authority, such that we would say it must be male. Rather, it is two parties or litigants who agreed that the judge between them would be this woman. This appointment resembles reconciliation in some respects. Okay, he said "if two parties appoint a man suitable for judgment" If one of the litigants appointed the other. Now, what we understood from the author's words "two parties appointed a man" is that there is a claimant and a respondent, and a judge. But if one of the claimants appointed the other, is that permissible or not?
The questioner : It is not permissible.
The Shaykh : No, the correct view is that it is permissible. The correct view is that it is permissible. Okay, and although the apparent meaning of the author's words is that it is not permissible, the correct view is that it is permissible. So if a man claimed something against a person, and that person said to him, "Appoint yourself; I am willing for you to rule for me or against me," what is the obstacle? There is no obstacle. If someone says there is an obstacle because the claimant has ruled for himself, since he is the one who made the claim, we say that a person's state may differ when appointing a judge from his state when making a claim. He may claim something against a person and then say, "I have no objection; I appoint you." Undoubtedly, he will retract his claim. He will retract either because he is shy and modest, or because he fears Allah the Mighty and Majestic and dreads ruling by other than the truth, unlike the claim. In any case, there is no obstacle to one of the litigants saying to the other, "You are the judge." And if he made him a judge for himself or against himself, there is nothing wrong with it. The author said "a man suitable for judgment" meaning that the ten qualities of a judge are present in him. The ten qualities of a judge are present in him, because no one is suitable for judgment except one who possesses those qualities. And this condition that the author stipulated is open to scrutiny on its face. The difference between the appointed judge and the one appointed by the ruler is clear. The appointed judge only rules in a specific case for a specific litigant; his authority is not general, such that we would say the previous conditions must be met. As for the judge appointed by the ruler, his ruling is general; people resort to him whether they appointed him or not. As for the appointed judge, he looks into a specific case for a specific litigant. So how do we stipulate the ten conditions? If two men say, "We are satisfied with this man, even if he is a slave," how can we say the ruling is not valid? If these two litigants say, "We are satisfied to appoint him, even if he is blind," what is the obstacle? If these two litigants say, "We are satisfied to appoint him, even if he follows a scholar without knowing his evidence," what is the obstacle? Because the utmost in this is that they are satisfied with him as a reconciler between them, or like a reconciler between them. For this reason, the Shaykh al-Islam Ibn Taymiyyah stated this issue and said "It is not required in the appointed judge what is required in the judge" And the difference between them, as I said, what is it? That the judge is appointed by the ruler, so his judgment is an authority. As for this one, he is appointed by a specific litigant in a specific case, so he resembles a reconciler between two litigants. The author said "his ruling is executed in wealth" How in wealth? For example, what? For example, what? "His ruling is executed in wealth." You owe me one hundred dirhams, and the second says, "I have nothing." He says, "Okay, who do you want? Shall we go to the judge?" He says, "No, we are not going to the court; we will be exposed. Who do you want to rule between us?" He says, "I am satisfied for so-and-so to rule between us." So they went to so-and-so, and he ruled between them according to what the Shari'ah requires. Is it permissible or not? It is permissible, and the ruling is executed. Okay, if they agreed that he would rule between them, and then one of them retracted and refused after they had agreed that so-and-so would rule between them. One of them said to the other, "I have retracted, and I want the judge to rule between us." Yes, does he have that right? We say this is looked into. If he has begun the judgment, he does not have the right to retract. If the appointed judge has begun the judgment, he does not have the right to retract. Why? Because he may retract if it becomes clear to him from the appointed judge's words that the right is against him. But if it is before that, there is nothing wrong with it. If it is before they resort to the court, meaning before they reach the place of judgment, there is nothing wrong with it in this case. In any case, we say if the appointed judge has begun the case, there is no retraction. And before he begins the case, retraction is permissible. Okay "and his ruling is executed in hudud" Is there a hadd that occurs between litigants? The answer is yes, such as the hadd of false accusation of adultery. The hadd of false accusation of adultery occurs between litigants. A man falsely accused a man of adultery, and the accused claimed against him that he falsely accused him. He said, "I never falsely accused you." He said, "Who will rule between us?" He said, "So-and-so." So they went to so-and-so, and he ruled on the false accusation, and that the accuser is to be flogged eighty lashes if the accused is a married man, or given a discretionary punishment if the accused is not a married man. Is it executed or not? It is executed. Okay, what does he contradict now? We say if it is executed, how do we execute it? The same appointed judge carries out the execution. He carries out the execution, whether in the house of the accused or the house of the accuser. It is not possible to carry it out publicly, because that would lead to manipulation and chaos. Okay, his ruling is also executed in li'an. Li'an has passed us; its example is that a man falsely accuses his wife of adultery, and may Allah protect us from that. He says she committed adultery. This does not escape from cases. The first case is that she admits it. The second case is that she denies it and brings witnesses. The third case is that she denies it and does not bring witnesses. The fourth case is that she remains silent; she neither admits nor denies. Do you understand? The first case: if she admits, he says she committed adultery, and she admitted it. Mustafa said she committed adultery, and she admitted it. What do we do? We establish the hadd against her. We establish the hadd of adultery against her. She denied it and did not bring witnesses. We say to him, either you perform li'an, or the hadd of false accusation of eighty lashes is established against you. She denied it, but he brought witnesses. The hadd is established against her. She remained silent. She remained silent. What do we do? On the stronger view, we establish the hadd against her, due to the saying of Allah the Exalted:[An-Nur 24:8] and so on. And it was said she is imprisoned until she admits, or performs li'an, or he brings proof. Okay, in any case, a man falsely accused his wife of adultery, so she demanded of him, "O Allah, prove it, or I demand that the hadd of false accusation be established against you." He said, "To whom do you want us to resort to rule?" She said, "We resort to so-and-so, and we appoint him." So they appointed him, and he ruled li'an between them. Is it permissible or not? It is permissible. He said "and li'an and others".
The questioner : ... Okay.
The Shaykh : Yes.
The questioner : ... the judge?
The Shaykh : What is the need for a judge? This man is the judge. Okay, he says "and others" What are the others? Like marital rights, for example, like inheritance, like deposits, like pledges, like endowments. Everything. The important thing is that if they appointed a man, this appointed judge becomes like the judge appointed by the ruler. His ruling is executed in everything.
And if you fear dissension between the two, send an arbitrator from his people and an arbitrator from her people.
وإن خفتم شقاق بينهما فابعثوا حكما من أهله وحكما من أهلهاThe questioner : It is not permissible.
The Shaykh : No, the correct view is that it is permissible. The correct view is that it is permissible. Okay, and although the apparent meaning of the author's words is that it is not permissible, the correct view is that it is permissible. So if a man claimed something against a person, and that person said to him, "Appoint yourself; I am willing for you to rule for me or against me," what is the obstacle? There is no obstacle. If someone says there is an obstacle because the claimant has ruled for himself, since he is the one who made the claim, we say that a person's state may differ when appointing a judge from his state when making a claim. He may claim something against a person and then say, "I have no objection; I appoint you." Undoubtedly, he will retract his claim. He will retract either because he is shy and modest, or because he fears Allah the Mighty and Majestic and dreads ruling by other than the truth, unlike the claim. In any case, there is no obstacle to one of the litigants saying to the other, "You are the judge." And if he made him a judge for himself or against himself, there is nothing wrong with it. The author said "a man suitable for judgment" meaning that the ten qualities of a judge are present in him. The ten qualities of a judge are present in him, because no one is suitable for judgment except one who possesses those qualities. And this condition that the author stipulated is open to scrutiny on its face. The difference between the appointed judge and the one appointed by the ruler is clear. The appointed judge only rules in a specific case for a specific litigant; his authority is not general, such that we would say the previous conditions must be met. As for the judge appointed by the ruler, his ruling is general; people resort to him whether they appointed him or not. As for the appointed judge, he looks into a specific case for a specific litigant. So how do we stipulate the ten conditions? If two men say, "We are satisfied with this man, even if he is a slave," how can we say the ruling is not valid? If these two litigants say, "We are satisfied to appoint him, even if he is blind," what is the obstacle? If these two litigants say, "We are satisfied to appoint him, even if he follows a scholar without knowing his evidence," what is the obstacle? Because the utmost in this is that they are satisfied with him as a reconciler between them, or like a reconciler between them. For this reason, the Shaykh al-Islam Ibn Taymiyyah stated this issue and said "It is not required in the appointed judge what is required in the judge" And the difference between them, as I said, what is it? That the judge is appointed by the ruler, so his judgment is an authority. As for this one, he is appointed by a specific litigant in a specific case, so he resembles a reconciler between two litigants. The author said "his ruling is executed in wealth" How in wealth? For example, what? For example, what? "His ruling is executed in wealth." You owe me one hundred dirhams, and the second says, "I have nothing." He says, "Okay, who do you want? Shall we go to the judge?" He says, "No, we are not going to the court; we will be exposed. Who do you want to rule between us?" He says, "I am satisfied for so-and-so to rule between us." So they went to so-and-so, and he ruled between them according to what the Shari'ah requires. Is it permissible or not? It is permissible, and the ruling is executed. Okay, if they agreed that he would rule between them, and then one of them retracted and refused after they had agreed that so-and-so would rule between them. One of them said to the other, "I have retracted, and I want the judge to rule between us." Yes, does he have that right? We say this is looked into. If he has begun the judgment, he does not have the right to retract. If the appointed judge has begun the judgment, he does not have the right to retract. Why? Because he may retract if it becomes clear to him from the appointed judge's words that the right is against him. But if it is before that, there is nothing wrong with it. If it is before they resort to the court, meaning before they reach the place of judgment, there is nothing wrong with it in this case. In any case, we say if the appointed judge has begun the case, there is no retraction. And before he begins the case, retraction is permissible. Okay "and his ruling is executed in hudud" Is there a hadd that occurs between litigants? The answer is yes, such as the hadd of false accusation of adultery. The hadd of false accusation of adultery occurs between litigants. A man falsely accused a man of adultery, and the accused claimed against him that he falsely accused him. He said, "I never falsely accused you." He said, "Who will rule between us?" He said, "So-and-so." So they went to so-and-so, and he ruled on the false accusation, and that the accuser is to be flogged eighty lashes if the accused is a married man, or given a discretionary punishment if the accused is not a married man. Is it executed or not? It is executed. Okay, what does he contradict now? We say if it is executed, how do we execute it? The same appointed judge carries out the execution. He carries out the execution, whether in the house of the accused or the house of the accuser. It is not possible to carry it out publicly, because that would lead to manipulation and chaos. Okay, his ruling is also executed in li'an. Li'an has passed us; its example is that a man falsely accuses his wife of adultery, and may Allah protect us from that. He says she committed adultery. This does not escape from cases. The first case is that she admits it. The second case is that she denies it and brings witnesses. The third case is that she denies it and does not bring witnesses. The fourth case is that she remains silent; she neither admits nor denies. Do you understand? The first case: if she admits, he says she committed adultery, and she admitted it. Mustafa said she committed adultery, and she admitted it. What do we do? We establish the hadd against her. We establish the hadd of adultery against her. She denied it and did not bring witnesses. We say to him, either you perform li'an, or the hadd of false accusation of eighty lashes is established against you. She denied it, but he brought witnesses. The hadd is established against her. She remained silent. She remained silent. What do we do? On the stronger view, we establish the hadd against her, due to the saying of Allah the Exalted:
But it will prevent punishment from her if she gives four testimonies [swearing] by Allah
ويدرؤ عنها العذاب أن تشهد أربع شهادات باللهThe questioner : ... Okay.
The Shaykh : Yes.
The questioner : ... the judge?
The Shaykh : What is the need for a judge? This man is the judge. Okay, he says "and others" What are the others? Like marital rights, for example, like inheritance, like deposits, like pledges, like endowments. Everything. The important thing is that if they appointed a man, this appointed judge becomes like the judge appointed by the ruler. His ruling is executed in everything.