Appellate Review and Judicial Independence in Islamic Law

Mohammad Hashim Kamali
Appellate Review and Judicial Independence in Islamic Law1

Appellate review and judicial independence are interrelated in the sense that
independence can hardly become a reality in the administration of justice unless it
begins within the ranks of the judiciary itself. The judiciary can attain independence
vis-à-vis the executive and other organs of state only when it is assured of the
integrity of its own decision-making process. In other words, independence demands
self-sufficiency and resourcefulness. A judiciary which is equipped with the means to
rectify its own errors, can nurture higher standards of refinement and consequently
aspire to greater public confidence and esteem. Judicial review and independence
can in this way be complementary and mutually supportive. A conflict between them
can, however, arise when the stronger voice in the corrective mechanism becomes so
assertive as to impinge on the freedom of the judges and their ability to formulate
independent judgement.
Opinions differ on whether the Islamic law validates appellate review. While
many have denied that it does, an equally assertive opinion maintains the opposite. A
similar bifurcation of opinion obtains on the issue of independence. The dominant
view is that, unlike the modern constitutions, the Islamic law does not recognise an
independent judiciary, nor does it embody any parallel to the doctrine of separation of
powers. This legal theory empowers the head of the state to control the judiciary and
no effective measures are envisaged to prevent executive interference in judicial
affairs. The opposite view has also found support in the sources to the effect that
Islamic law advocates an independent judiciary; that the theory of ijtihad requires the
judges to be independent in the exercise of personal reasoning. This view also
maintains that the facts of history in this area are, by and large, unrepresentative of
the normative principles of the Shari‘ah.
In the following pages we shall explore these issues. While appellate review in
the classical Islamic law remains the principal theme of this paper, we have treated,
on purely thematic grounds, the independence of judiciary as a secondary topic of
discussion. We shall also discuss ijtihad—a subject essential to both judicial review
and the independence of judiciary. References to historical developments will be
made only to the extent they help to put issues in their proper perspective.
I
As we have said earlier, a group of scholars strongly denies the validity of
appellate review. Many observers have drawn the conclusion that the Shari‘ah does
1
An earlier version of this article was previously published in Islamic Studies 29 (1990) 3: 215-45.
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not vest any superior jurisdiction with the authority to review the decisions of the qadi
(judge). This view calls in its support historical evidence to the effect that no court of
appeal came into being during the lifetime of the Prophet Muhammad (peace be on
him), nor during the ensuing period of the Pious Caliphs (khulafa’ rashidun). A. A.
Fyzee, for instance, comments concerning that qadi that “his judgment was decisive,
there being ordinarily no appeal from it”.2 This is equally the case, according to
another observer, with regard to penal sentences in which “there is no appeal
(murafa‘ah) against the sentence of a qadi. The punishment is executed without delay
or resistance….”3 Al-Nabhani is also categorical in stating that the Islamic Law makes
no provision either for appellate jurisdictions (mahakim al-isti’naf) or cassation courts
(mahakim al-tamyiz), because adjudication of disputes before the court is rendered in
a single instance. “When the qadi has pronounced his decree, it is effective upon
pronouncement, and it is not liable to reversal by the decree of another qadi
whatsoever.”4 Al-Nabhani continues on the same page that once the qadi has
pronounced his decision, neither he himself nor another qadi has the authority to
reverse it. The reason for this is the consensus of Companions. The first caliph Abu
Bakr, his successor ‘Umar ibn al-Khattab, ‘Ali, the fourth caliph, and other
Companions have all adjudicated cases on the basis of their personal reasoning
(ijtihad). They disagreed with one another, but such disagreements have, on no
occasion, affected the validity of their judicial decisions. None of the leading
Companions has reversed the judgment of a fellow Companion on grounds of a mere
difference of opinion and personal judgment.
The basic issue here is not only the inviolability of ijtihad, a matter which will be
elaborated later, but also the view as explained by Ibn Hazm al-Zahiri and others that
all judicial decisions in their relationship to the Shari‘ah are declaratory in character in
so far as they merely declare the application and enforcement of the accepted rules
of the Shari‘ah to particular cases. As such, a judicial decree does not render
permissible what is forbidden prior to adjudication nor does it forbid what the Shari‘ah
has made lawful. When the judge declares the ruling (hukm) of God Most High to be
applicable to a particular dispute, it must be implemented. It is incorrect, in principle,
to set aside the ruling of the sacred Shari‘ah when a competent judge has verified its
application.5
The foregoing statement, however, needs to be qualified in that it is valid only

in so far as the clear injunctions (nusus) of the Qur’an and Sunnah are concerned. Its
validity is limited to such cases where the qadi merely declares the existing law and
ascertains its application to a particular case. It would be less than accurate,
however, to be too dogmatic in generalising the application of this statement to
2
A. A. Fayzee, Outlines of Muhammadan Law (New Delhi: Oxford University Press, 1974), p. 328.
3
Muhammad Iqbal, Siddiqui, The Penal Law of Islam (Lahore: Kazi Publications. 1979), p. 183.
4
Shaykh Taqi al-Din al-Nabhani, Muqadimmah al-Dustur (Kuwait, no publisher named, 1964), section
78 at p. 217.
5
Abu Muhammad ‘Ali Hazm, Al-Muhalla (Cairo: Idarah al-Taba‘ah al-Muniriyyah, 1351 AH), IX, 422; al-
Nabhani, Muqadimmah, p. 218; Siddiqui, The Penal Law, p. 183.
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judicial decisions which are based on personal reasoning (ijtihad). For the mujtahid
(the person who exercises ijtihad), as we shall later elaborate, not only applies the
law which already exists but also makes law when it is deemed to be non-existent or
is in need of clarification and development.
As for the accuracy or otherwise of the view that appellate review has no place
in Islamic law, this, too, is a somewhat sweeping statement and is rather
questionable. There is, on the contrary, ample evidence to show that appellate review
is valid both in theory and practice. Those who maintain that Islamic law proscribes
appellate review”, as Fathi ‘Uthman points out, “have themselves acknowledged the
circumstances in which judicial decisions are liable to reversal under Islamic law.”6
According to another observer, the argument which denies the provision for appeal in
Islam is simply fallacious. “To remove error that leads to evil and injustice is one of
the fundamental teachings of Islam and a foremost function of its administration of
justice.”7
Those who deny the validity of appellate review also refer to the precedent of
the second caliph, ‘Umar ibn al-Khattab. Two cases are cited in particular, both of
which occurred during the caliphate of ‘Umar. In the first of these, it is reported that
the caliph was approached by one of the parties in a dispute already adjudicated by
two prominent Companions, ‘Ali Abu Talib, and Zayd ibn Thabit. When the caliph
heard the nature of their decision, he said that had he himself been the judge, he
would have decided differently. This remark invoked the response: “What is there to
stop you? You are the leader:” To this ‘Umar ibn al-Khattab replied: “Had it been a
question of applying the Book of God and the Sunnah of His Messenger, I would
have intervened, but this is not the case and the decision is based on personal
opinion (ra’y) in which we all stand on the same footing.”8
The caliph thus refused to review a decision which he thought was based, not
on the textual rulings of the Qur’an or Sunnah, but on juristic construction and
personal ijtihad of competent judges. The second of the two cases under discussion
involved a previous judgment of the caliph ‘Umar himself. It is thus reported and
widely known that ‘Umar adjudicated two identical cases of inheritance (known as
himariyyatayn) in which he gave two completely different decisions. In the first
instance, the Caliph disentitled the germane brothers from inheriting with the uterine
brothers as the latter belonged to the class of sharers (dhu’l-furud) and the former to
residuaries (‘asabah). The uterine brothers, who had survived together with the
mother and husband of the deceased, exhausted the estate and nothing was left for
germane brothers. But in a subsequent case ‘Umar ibn al-Khattab granted the
germane brothers a share equal to that of the uterine brothers. When the deprived
6
Fathi ‘Uthman, Al-Fikr al-Qanuni al-Islami: Bayn Usul al-Shari‘ah wa Turath al-Fiqh (Cairo: Maktabah
Wahbah, n.d.), p. 314.
7
Ghulam Murtaza Azad, Judicial System of Islam (Islamabad: Islamic Research Institute, 1987), p.
100.
8
Abu Mu╒ammad ‘Abd Allah ibn Qudamah al-Maqdisi, al-Mughni (Riyad: Maktabah al-Riyad al-
Hadithah, 1401/1981), VI, 180.
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party in the previous case learned of this decision they complained as to why they
were not given a share. To this caliph ‘Umar replied: “That was our judgment then
and this is what we adjudicate now.”9 It is thus concluded once again that a judicial
decision which is based on personal ijtihad cannot be reviewed, not even by the
issuing judge himself.
The general purport of this decision is not disputed in so far as it is taken to

uphold the immunity to ijtihad against arbitrary intervention and review. But a literalist
interpretation of this precedent cannot be sustained especially when it rules out
judicial review by the issuing judge himself, a conclusion which is once again based
on the authority of ‘Umar ibn al-Khattab. In a widely known letter that ‘Umar ibn al-
Khattab sent to his judge, Abu Musa al-Ash‘ari, judicial review by the issuing judge
has clearly been validated. We shall have occasion, later to quote from this letter. It
suffices, for the moment, to say that the evidence which proscribes judicial review is
inconclusive and does not warrant the kind of generalisation that some commentators
have attempted. The evidence which we have reviewed only sustains, in broad
outline, the conclusion that judicial decisions which are based on ijtihad are not
reviewable. But to say that appellate review is not recognised at all is unsupported by
evidence.
II
Scholars are divided in their response to the question whether Islamic law
allows an independent status for the judiciary. The precedent of the second caliph
‘Umar and other Pious Caliphs indicates, as Mahmassani observes, that they upheld
and respected the independence of the judicial office.10 There are reports, for
example, that the caliphs, ‘Umar and ‘Ali, appeared before the qadi as parties to
litigation and both desired that they should not be given any preferential treatment in
the court. This precedent sustains the conclusion, as one observer points out, that the
judge can accept a suit against the very person of the head of state and try him in an
open court and that “this feature of the Islamic judiciary is an index of its independent
status.”11 There are also reports, as al-Tamawi points out, that under the Umayyads
(c. 665 – 750 CE) judges enjoyed considerable freedom and were unhindered in
exercise of independent ijtihad.12 Whereas the caliphal office had hitherto combined
judicial functions, the founder of the Umayyad dynasty, Mu‘awiyyah, was the first to
relinquish all his judicial functions to appointed judges.13 Another observer has
qualified this conclusion by saying that during the Umayyad period: “The judiciary was
9
Ibid., VI, 180.
10
Subhi R. Mahmassani, Arkan Huquq al-Insan fi’l-Islam (Beirut: Dar al-‘Ilm li’l-Malayin, 1979), p. 98.
11
Farooq Hasan, The Concept of State and Law in Islam (New York: University Press of America,
1981), p. 43.
12
Sulayman Muhammad al-Tamawi, Al-Sultat al-Thalath fi’l-Dasatir al-‘Arabiyyah wa fi’l fikr al-Siyasi al-
Islami, 2nd edn. (Cairo: Dar al-Fikr al-‘Arabi), p. 401; Muhammad Faruq al-Nubhah, Nizam al-Hukm fi’l
Islam (Kuwait: Matbu‘at Jami‘ah al-Kuwait, 1974), p. 623.
13
Munir al-‘Ajlani, ‘Abqariyyah al-Islam fi Usul al-Hukm (Beirut: Dar sl-Nafa’is, 1405/1985), p. 342.
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fully independent from the executive…but this independence was confined to civil
cases and private wrongs.”14
The emergence and gradual crystallisation of the four schools of law during the
early ‘Abbasid period, around the fourth/eleventh century, imposed new restrictions
on the independence of judges. The establishment of these schools implied that the
law had already been expounded and elaborated to an advanced level. Still the
plurality of legal schools and diversity of their doctrines had given rise to confusion
and disparity in court decisions, which is why it became the official policy of Islamic
governments to adopt one or the other of these schools as their official madhhab.
Thus the judges in Iraq were bound to follow the Hanafi school, whereas in Egypt
they followed the Shafi‘i school, and the Maliki school found followers in the Maghrib.
Consequently, restrictions were imposed on the exercise of independent ijtihad. From
then onwards, judges were expected to follow the doctrines of the established
schools. There were also instances of executive interference in the judiciary; a fact
which explains why several pious scholars like Abu Hanifah, his disciple Zufar, and
Ahmad ibn Hanbal refused to serve as judges under the ‘Abbasids.15
The new restrictions which limited the scope of ijtihad to a particular school
was clearly a departure from the precedent of the early caliphs and an unwelcome
imposition on the freedom of the judges. Al-Mawardi, himself a qadi, found this
unacceptable when he expounded the doctrine and wrote that the judge must
exercise his own ijtihad and in doing so he is not bound to adhere to the rulings of the
school to which he subscribes: should he be a follower of the Shafi‘i school, he is not
bound by the rulings of that school unless his own ijtihad leads him to it; should the
ijtihad he arrives at favours the opinion of Abu Hanifah, then he should act upon it.16
This concern for the independence of ijtihad led the Hanbali jurist, Ibn Qudamah, to
the following conclusion:
It is not permissible (la yajuz) to appoint a qadi on condition that he should

adjudicate according to a particular school. This is the ruling of the Shafi‘ school
and I do not know of any disagreement as to its validity. God Most High has
enacted righteousness as the criterion of justice, and righteousness cannot be
confined to one particular school. Hence if the qadi is appointed on such a
condition, that condition is null and void.17
The ‘Abbasid caliph, Harun al-Rashid, was the first to establish a centralised
judiciary and to appoint the mujtahid, Abu Yusuf (d. 798 CE), as chief justice (Qadi al-
14
Azad, Judicial System, p. 50
15
Al-Tamawi, al-Sultah, pp. 401-403; al-Nubhan, Nizam al-hukm, p. 623; Madkur, al-Qadi’, p. 30; ‘Abd
al-Wahhab Khallaf, al-Siyasah al-Shar‘iyyah (Cairo: al-Matba‘ah al-Salafiyyah, 1350 AH), p. 48.
16
Abu’l-Hasan ‘Ali al-Mawardi, Kitab al-Ahkam al-Sultaniyyah (Cairo: Matba‘ah al-Sa‘idah, 1327/1909),
p. 64.
17
Ibn Qudamah, al-Mughni, IX, 106; Abd Ishaq Ibrahim al-Shirazi, Kitab al-Muhadhdhab (Cairo:
Mustaafa al-Babi al-Halabi, n.d.), II, 308.
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Qudat). Harun al-Rashid is also reported to have relinquished supervision of the

judiciary to Abu Yusuf and he made no judicial appointments without his
recommendation.18 The Qadi al-Qudat (exercised judicial authority (wilayah al-qada’)
in the capacity of a hakim (ruler), not a muwazzaf (task officer). The difference
between the two is that while the former is vested with general authority the latter has
no general powers. Furthermore, in his capacity as head of the judiciary, the Qadi al-
Qudat19 was not a deputy (mu‘awin) to the caliph in judicial affairs, but an officer of
state who was in charge of its judicial branch.
In theory the chief justice and other judges acquire their authority from the
head of the state by way of delegation (wilayah, or tawliyah). Wilayah implies that the
person, to whom authority is delegated in this manner, is vested with total
responsibility and applies his own discretion in the exercise of that authority. This is
partly the reason why it is a condition of appointment to judicial office that candidates
be learned in law and be capable of discharging their duties without asking the Imam
for detailed instructions.20 There are many reports of incidents which show latitude
and independence shown by prominent judges who were obviously anxious for the
independent dispensation of justice.21 A growing tendency is also visible by which the
judges acquired general authority in criminal affairs which were hitherto either
entrusted to the police or exercised by local governors. We also note, as Fathi
‘Uthman elaborates, a gradual separation of powers taking place between the judicial
and other organs of state.22
Notwithstanding some of these positive developments, historical practice on

the independence of judiciary is, on the whole, inconsistent and uninspiring in that for
the most part, the ‘Abbasid rulers impinged on the freedom of the judges. The
executive did not always enforce judicial decrees and often exercised their own
discretionary powers.23 In neither of the two periods (i.e. the Umayyads and the
18
Al-‘Ajlani, ‘Abqariyyah, p. 343; al-Tamawi, al-Sultah, p. 402: al-Nubhan, Nizam al-hukm, p. 624.
19
At a later stage, when the territories of the ‘Abb┐sid state became autonomous, different terms were
used for Qadi al-Quddat. In Andalus (Spain) the chief Qadi, for example, was known as Qadi al-
JamI’ah. See ‘Abd al-Salam Madkur, al-Qadi’ fi’l-Islam (Cairo: Dar al-Nahdah al-‘Arabiyyah, 1964), p.
31.
20
Al-Nabhani, Muqaddimah, p. 206; al-Nubhan, Nizam al-hukm, pp. 624-25.
21
It is thus reported that Abu Yusuf adjudicated a case in which a man sued al-Hadi, the son of Harun
al-Rashid concerning the ownership of a garden. Abu Yusuf was suspicious of the truthfulness of the
witnesses that al-Hadi had produced, upon which he asked al-Hadi to take a solemn oath that his
witnesses were telling the truth. Al-Hadi declined and lost the case (see Fathi ‘Uthman. Al-fikr al-
Qanuni, p. 321). According to another report when Sahnun ibn Sa‘id, the qadi of Qairawan, accepted
the office, he impressed the Amir so much so that the latter guaranteed him absolute independence
and swore three oaths that he would not interfere when Sahnun decided against the state officials or
his personal friends (see Coulson, “Doctrine and Practice in Islamic Law.” Bulletin of the School of
Oriental and African Studies, 1956, 218).
22
Fathi ‘Uthman, al-Fikr al-Qanuni, pp. 304-305, see also Sulaimanu Kumo, “The Rule of Law and
Independence of Judiciary Under the Shar┘‘ah,” Journal of Islamic and Comparative Law (1978)
23
‘Abd al-Hamid Mutawalli, Mabadi Nizam al-hukm fi’l-Islam (Alexandaria: Mansha‘ah al-Ma‘┐rif,
1974), p. 230 ff.
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‘Abbasids) were judges immune from the vagaries of politics and interference in their
affairs.24
The tension between doctrine and practice in the judicial sphere was
highlighted by the late Professor Coulson when he wrote: “Although the duty to judge
with complete impartiality had been laid down in the Qur’an itself, the relationship
between judiciary and executive was usually such as to make the full application of
this principle impossible.”25 Al-Q┐sim┘ has reached a similar conclusion in saying
that the principles of Islamic justice “have not been observed in certain periods of
Islamic history.”26 Under the normative principles of the Shari‘ah, the same author
adds, the judge must enjoy total freedom of action, for he is the champion of the
oppressed. Justice requires that the rights of those, who have been wronged, be
restored and their grievances redressed. The judge must set limits to check the abuse
of power, and this would be impossible unless he enjoys the freedom to do so and to
deal a blow to the wrong-doer if this is what he believes had to be done.27
A judge who is apprehensive about the adverse repercussions of his decisions

can hardly be effective in translating the ideals of legal theory into his day-to-day
decisions. Similarly, an effective mechanism for judicial review cannot be expected to
function in an environment where rulers and governors have the power not only to
appoint and dismiss judges but even have the power to exercise judicial powers
themselves. The irregularities practiced by the rulers eventually tainted the vision of
the common people as well as the intellectual leaders with the result that the legal
theory was itself affected by the exigencies of practice. The legal theory has
consequently followed a course which falls short of giving full expression to the
Qur’anic ideals of impartial justice. It is not surprising, therefore, to find that modern
constitutional law in the present-day Islamic countries which proclaim judiciary as an
independent organ of the state is in greater harmony with the Qur’an than the
compromising statements of many Muslim scholars made during the last few
centuries.
A look at the Qur’anic text, which envisages the possibility of disputes arising
between the ruler and the ruled, would confirm the need for an independent judiciary
in an Islamic polity. The text in question enjoins upon the believers: “Obey God and
obey the Messenger and those who are in charge of affairs among you. Should you
dispute over something, then refer it to God and to the Messenger” (4: 58). This text
is clear on the point that both the ruler and the ruled are subject to the ordinances of
Shari‘ah. It is also implied in this text that the people are entitled to disagree with their
24
Al-Tamawi, Al-Sultah, p. 403.
25
N. J. Coulson, “Doctrine and Practice in Islamic Law” Bulletin of the School of Oriental and African
Studies, 1956, 218.
26
Zafir al-Qasimi, Nizam al-hukm fi’l-Shari‘ah wa’l-Tarikh (Beirut; Dar al-Nafa’is, 1977), p. 131.
27
Ibid., p. 185.
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leaders.28
In the event of a disagreement, the final arbiter between them is, as the text
provides, the law of God and the ruling of His Messenger. To facilitate the proper
implementation of this text, there must, as Asad and al-Khalidi have both observed,
be an independent judiciary with full powers to adjudicate between the citizen and the
state.29 This may take, as al-Khalidi further observes on the same page, the form of
the historical Mazalim with powers to adjudicate cases involving the state officials or it
may take some different form. In either case, “it is essential that the head of state
should have no powers to dismiss or replace the leading judges in the lands.”30
Furthermore the Islamic constitutional theory is explicit on the point that the
community may depose the head of state in the event of manifest aberration or loss
of mental and physical capacity. The judiciary may thus be called upon to discharge
the most sensitive task of impeaching the head of the state and declaring him
disqualified. This would be almost impossible unless the judiciary is fully independent
and the judges enjoy total security of office.
III
The jurists are generally in agreement on the point that the qadi has the
authority to review his own decision, if it appears to him, upon reflection, that it is
defective. This is, however, no judicial review in the sense in which this expression is
commonly understood. Under the Islamic law, the qadi may himself initiate reviewing
a case or he may do so upon the request of one of the parties. Once again, the
position differs under modern law where appellate review is normally requested by
the aggrieved party or the state prosecution. It is interesting to note that when the
judge himself reviews his own decision it is referred to in Arabic as i‘adah al-nazar,
that is reconsideration, rather than appellate review (al-isti’naf).31
Modern statutory law in the Islamic countries of the Arab Middle East and
beyond, regulates appellate review under the general heading of al-ta‘n fi’l-ahkam,
that is protest or expression of discontent against court decision. The Egyptian Law of
Appeals and Criminal Procedure (qanun al-murafa‘at wa’l-ijra’at al-jina’iyyah), that is
Law No. 13, 1968, for example, divides appellate review into the two main types, i.e.
ordinary and extraordinary. The ordinary form of ta‘n also occurs in two forms, namely
al-mu‘aradah (lit. objection) and al-isti’naf (appeal) The extraordinary form of
appellate review is once again of two types, namely i‘adah al-nazar (reconsideration)
and reversal (al-naqd).
28
Fathi ‘Uthman, al-Fard fi’l-Mujtama‘ al-Islami (Cairo: Shirkah Mutabi‘ al-I‘lant al-Sharqiyyah,
1382/1962), p. 30
29
Muhammad Asad, The Principles of State and Government in Islam (Los Angeles: California
University Press, 1961), p. 66; Mahmud ‘Abd al-Majid al-Khslidi, Qawa‘id Nizam al-hukm fi’l-Islam
(Kuwait: Dar al-Buhuth, 1400/1980), p. 211.
30
See al-Khalidi, op. cit., p. 211.
31
‘Abd al-Karim, Nizam al-Qada’ fi’l-Shari‘ah al-Islamiyyah (Baghdad: Matba‘ah al-‘Ani, 1404/1984), p.
275.
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The main difference between the ordinary and the extraordinary forms of
appellate review is that the latter must be based on specified grounds, whereas the
ordinary review can be initiated by virtue of a mere demand by the defendant who
need not specify any legal grounds for his request. If the request for review is
addressed to a higher court, it is referred to as al-isti’naf (appeal), but if it is
addressed to the issuing judge himself, whether of a higher or lower court, it is called
al-mu‘aradah or objection. This latter can only happen, under Egyptian law, in the
case of the person who is absent during court proceedings and then requests the
court for a review of its own decision.
In the case of extraordinary appellate review, the appellant or his counsel

specifies a defect in the initial decision and demands a review in the form of either
reconsideration or reversal.32
In the ordinary review, the review tribunal exercises the same powers as the
court which issues the decision in the first instance and may review all aspects of the
case. In the extraordinary review, however, the review tribunal can only consider the
defects which are specified in the appeal.33
Appellate review power (al-isti’naf) is the normal form of review which applies
to decisions that are not final under the law. It takes place before a separate tribunal
and a judge who has not participated in the initial decision. This form of appellate
review by the head of state or by his representative is validated by the Islamic law
and the ‘ulama’ of all legal schools agree upon this.34
The cassation review (al-ta‘n bi’l-naqd) which either confirms or reverses the
decision of the appeal court is an extraordinary form of review which is peculiar to
final decisions. It is only applicable to situations and defects which are often specified
in the statute. Islamic law also validates this form of review and specifies the grounds,
as are elaborated below, on which it may be founded.35
Finally, the appellate review referred to as i‘adah al-nazar (reconsideration) is

carried out by the same tribunal that issues the decision in the first place. It is
normally a final decision which is not subject to review. It will be noted that the works
of Muslim jurists of the various schools, for the most part, contemplate this type of
review, be it by the issuing judge or by another judge who represents the authority of
the head of state.36
32
Farid Muhammad Wasil, al-Sultah al-Qada’iyyah wa Nizam al-Qada’ fi’l-Islam, 2nd edn., (Cairo.
Matba‘ah al-Amanah, 1983), pp. 257-60; ‘Abd al-Mun‘im al-Sharqawi, al-Murafa’at al-Madaniyyah wa’l-
Tijariyyah, Sharh al-Qanun Raqam 13, 1968 (Cairo: Dar al-Nahdah al-‘Arabiyyah, 1976), p. 5 ff.
33
For details, see Ahmad Abb’l-Wafi’, “Tahkim al-Ikhtiari wa’l-Ijbari”, Mawsu‘ah al-Qada’ wa’l-Fiqh li’l-
Duwal al-‘Arabiyyah (Cairo: Al-Dar al-‘Arabiyyah li’l-Mawsu‘at al-Qanuniyyah, vol. 59, 1980), p. 286 ff.
34
Wasil, al-Sultah, p. 262.
35
Ibid., p. 265.
36
Ibid., p. 269.
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Modern legislation on appellate review is, broadly speaking, based on the

analysis that the judiciary must be equipped with a review mechanism whereby the
appeal judges have powers to confirm or reverse the decision of the lower court. In
the case of reversal, the review tribunal must issue a new decision while having
powers to look into all aspects of the case under review. Once the appeal court has
issued a decision, it should be subject to no further comprehensive review, although a
restricted review under specified conditions should still be possible.37 This is usually
the function of the cassation court (mahkamah al-naqf wa’l-ibram) which has powers
only to confirm or reverse the appeal court decision. Appellate review at this level is
concerned mainly with the points of law. In the event of reversal, the cassation court
may issue a correct decision to replace the decision it has reversed. This is not,
however, a trial court and it does not hold a fresh hearing but decides on the basis of
existing evidence. Should there be a need for enquiry into the grounds of the lower
court decision, the cassation court normally refers the case back to the appeal court
to look into the points that are specified.38
IV
In Islamic legal theory the judge represents the authority of the Im┐m (head of
the state) and exercises power in the capacity of his wakil (representative). The
contract of wakalah (representation) is, in principle, open to stipulation at the behest
of the principal party (muwakkil), that is the Imam, in such ways as he deems to be in
the best interest of the community. But even when the Imam appoints a judge, he
does not forfeit his right to act as a judge himself because administration of justice is
one of the basic obligations of the Imam. When the Imam acts a judge he is, in
theory, subject to precisely the same rules as are applicable to the qadi in regards to
stating the grounds of his decision and admissibility of witnesses, etc. The majority of
the jurists have held that in his capacity as muwakkil, the Imam has the right to
remove the qadi from office. The Shafi‘ites and some Hanbalites have added that
removal must be on the grounds of public interest (maslahah). For the Imam has
appointed the judge in pursuit of public interest and so long as the judge discharges
his duties with competence, the Imam is not entitled to remove him.39
The Shari‘ah law doctrine of takhsis al-qada’ (specification of justice)

authorises the Imam to specify the jurisdiction of the existing courts or to create new
ones as he deems necessary for efficient administration of justice.40 It is generally
agreed that setting up of appellate tribunals with both general or specialised authority
37
Cf. Zaydan, Nizam, p. 279-81.
38
In the case of Afghanistan, for further information on the jurisdiction of the cassation court, see the
present writer’ book, Law in Afghanistan: A Study of the Constitution, Matrimonial Law and the
Judiciary (Leiden E. J. Brill, 1985), pp. 224 et passim.
39
Muhammad ibn Ahmad ibn Rushd al-Qurtubi, Bidayah al-Mujtahid wa Nihayah al-Muqtasid, 5th edn.
(Cairo: Mustafa al-Babi al-Halabi, 1401/1981), II, 461; Ibn Hazm, al-Muhalla, IX, 435; Zaydan, Nizam,
pp. 51-74; al-Nubhani, Muqaddimah, p. 216.
40
Al-Mawardi, al-Ahkam al-Sultaniyyah, pp. 60-61.
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and defining their jurisdictions, fall within the purview of the Shari‘ah-oriented policy
(siyasah shar‘iyyah); takhsis al-qada’ being merely an instrument of such a policy.
The doctrine of siyash equips the head of state with discretionary powers to take all
steps which are deemed necessary to secure benefit (maslahah) for the people and
establish good government.41 “There is nothing in Islam,” as Khallaf has observed,
“against establishing a judiciary consisting of specialised and well-defined spheres of
jurisdiction, a judicial order in which the administration of justice is ensured by
guarantees in respect of the enforcement of court decisions, independence of
judiciary, and the nature of its relations with the other organs of state.”42 Matters
pertaining to court organisation, are, for the most part, procedural in character and
there is no definitive text in the Shari‘ah to proscribe appellate review. Hence, the
discretionary powers of the head of state in this area remain, by and large,
unrestricted.43 Lastly, it has been correctly observed that modern statutory legislation
on appellate review in the present-day Islamic countries is generally in agreement
with the Shari‘ah and falls within the scope of siyasah shar‘iyyah.44
V
An appellate jurisdiction, known as Diwan al-Mazalim, was established under
the ‘Abbasids and was vested with power to receive and adjudicate complaints
against government officials. It was also authorised to review the decisions of judges
upon appeal by the aggrieved parties. The origin of this jurisdiction can be traced
back to the time of the Prophet (peace be on him) who appointed Rashid ibn ‘Abd
Allah to adjudicate complaints against government officials. But during the Umayyad
period, the caliph himself sat in court on certain days to hear complaints and
adjudicate on appeals.45 Toward the middle of the ‘Abbasid period, the Mazalim
jurisdiction was separated from the office of the caliph and was put under the
supervision of the judge of Mazalim. It was a powerful tribunal which combined, in al-
Mawardi’s phrase, “the justice of the qadi with the power of the sovereign.” Unlike the
other courts, the Mazalim was a general jurisdiction which was, on the whole, not
amenable to specialisation (takhsis). Since the judge of Mazalim looked into
complaints against all departments of government and adjudicated all disputes, its
jurisdiction could not be limited, except that it was restricted to a certain area. Unless
the jurisdiction of the judge of Mazalim was confined to a certain area, he had powers
to adjudicate all disputes.46 The basic purpose of the creation of the Mazalim
jurisdiction was to ensure government under the rule of law, so that the abuse of
41
For detail on Siyasah Shar‘iyyah see present writer’s article “Siyasah Shar‘iyyah or the policies of
Islamic Government”, the American Journal of Islamic Social Sciences, 6 (Sept. 1989), 59-81.
42
‘Abd al-Wahhab Khallaf, al- Siyasah Shar‘iyyah (Cairo: al-Matba‘ah al-Salafiyyah, 1350 AH), p. 50.
43
Fathi ‘Uthman, al-Fikr al-Qanun┘, p. 309.
44
45
For details on the Mazalim jurisdiction see al-Mawardi, al-Ahkam, p. 64 ff, Al-Nubhani, Muqaddimah,
p. 209.
46
Al-Nubhani, Muqaddimah, p. 213, al-Tamawi, al-Sultah, p. 418.
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power by influential persons and state dignitaries may not escape the law, merely
because of their ability to resist it.47 The Mazalim was first and foremost an
administrative tribunal which looked into disputes between the citizen and the state.
But it was also a high court of appeal which entertained appeal against the decisions
of judges. It is, therefore, not surprising that many observers have considered the
Mazalim as a high court of appeal (mahkamah al-isti’naf) and an integral part of the
judiciary.48 Furthermore, the very establishment of this jurisdiction is reflective of the
need that the judiciary must enjoy full powers and be able to act independently to
ensure government under the rule of law. The creation of this tribunal as the most
powerful judicial authority of the ‘Abbasid state also warrants the conclusions that a
high court of appeals has actually found a distinctive place in the organisational
structure of the Islamic judiciary.
VI
The basic norm of Shari‘ah in regard to judicial decrees issued by
knowledgeable judges of upright character is that they are valid and enforceable
without delay, because judicial decrees are designed to settle and bring to an end
disputes among people. Once a decision is properly formulated and issued, the court
is presumed to have fulfilled its duty. The application of this norm is also deemed to
be in harmony with the need to maintain and promote public confidence in court
decisions.49 By virtue of the same principle, it may be added that Islamic public law
proceeds on the assumption that justice, in order to be effective, must be swift and
that justice delayed can often mean justice denied.
The concern for public credibility and confidence need not, however, be over-
emphasized at the expense of appellate review. A somewhat specious argument has
been advanced to the effect that appellate proceedings and review undermine the
credibility of court decisions. This might have been true if appellate review was to be
confined, as many have maintained, to review by the issuing judge himself. But no
necessary conflict need to arise between the ideal of stability in court decision
(mabda’ istiqrar al-ahkam), and an effective appellate review (mabda’ al-isti’naf) when
the authority to carry out the latter is exclusively vested in a separate tribunal.50 The
case is perhaps more accurately stated by saying that an internal corrective
mechanism within the ranks of the judiciary, if anything, enhances public confidence
and credibility in court decisions.
VII
The Qur’an and the Sunnah admit, in principle, the possibility of error in judicial
decisions, even when they are made by the recipients of divine revelation. The
47
Al-Tamawi, al-Sultah, p. 413.
48
Fathi ‘Uthman, al-Fikr al-Qanuni, pp. 312-13.
49
Cf. Madkur, al-Qada’, pp. 57-70; Wasil, al-Sultah, p. 276.
50
‘Uthman, al-Fikr al-Qanuni, p. 310.
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Qur’an, for example, refers to an incident in which the Prophet David adjudicated a
dispute over the ownership of some sheep. The relevant Qur’anic passage (38: 20—
26) indicates that David rushed to pass a judgment on the basis of a mere claim
without giving the defendant an adequate opportunity to present his case. This
manner of adjudication, as the text runs, was erroneous and, therefore, invoked
God’s admonition which was communicated to David, as the Qur’an tell us, in the
following terms: “O David, we have made you a vice-gerent in the earth, so judge
among people with truth and follow not the (vagaries) of desire (hawa).”
The Qur’an likewise speaks of differential understanding and judgement of the

same dispute by two prophets-cum-judges, namely David and Solomon. We are thus
informed that each rendered a decision concerning a dispute over the destruction of
agricultural crops belongings to one of the disputants by the straying sheep of the
other. The Qur’anic text (21: 78—79) then continues to praise both for their wisdom
and knowledge but adds the phrase that: “We gave Solomon the right understanding
of the issue.”
The Prophet Muhammad (peace be on him) is widely known to have made the
following statement in which the clearly admitted the possibility of error occurring in
his own adjudication:
I am but a human being. When you bring a dispute to me, some of you may be
more eloquent in stating their cases then others. I may consequently adjudicate
on the basis of what I hear. If I adjudicate in favour of someone something that
belongs to his brother, let him not take it, for it would be like taking a piece of
fire.51
No one is therefore immune from error which is an ever-present possibility in

judicial decisions. A gross error of judgment which leads to miscarriage of justice
must therefore be rectified. This is precisely the position that the Shari‘ah advocates
as we shall presently elaborate.
When the judge issues an erroneous decision despite his attempt at rendering
a correct one through self-exertion and ijtihad, the decision so arrived at is deemed to
be valid and enforceable. An error in ijtihad d, in other words, affects neither the
credibility of the judge nor his integrity; his good intention and effort are still
commendable and worthy of reward, as we read in the following hadith:
When a judge exerts himself and gives a right decision, he will have a double
reward, but if he errs in his judgment after exerting himself he will still merit a
reward.52
51
Abu Dawud al-Sijistani, Sunan Abu Dawud, Eng. Trans. Ahmad Hasan, 3 vols. (Lahore: Ashraf
Press, 1984) III, 1016, hadith no. 3576.
52
Ibid., III, 1013, hadith no. 277.
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On the authority of this hadith and other supportive evidence, the ‘ulama’ have
reached the conclusion that judicial decisions which are based on sound ijtihad are
not reviewable merely on grounds of a different view that another judge might take of
the same issue. The issuing judge himself is, however, at liberty to correct his own
error and amend his initial ijtihad. In the event, however, where the error consists of a
departure from the clear principles of Shari‘ah, the decision is open to review, not only
by the issuing judge, but also by the head of state and other judges who represent his
authority.53 But if the error which originates in the personal reasoning of the judge
amounts to a gross error of judgment of a kind that could not be the result of sound
ijtihad and leads to a manifest miscarriage of justice, then the decision is reviewable
and may be reversed on the analysis that it represents a departure from the justice
ordained by God and His Shari‘ah. It is then necessary to declare the erroneous
decision invalid through a review procedure, for it neither collapses nor becomes
automatically invalid unless it is set aside by another judge.54
The right of appeal also emerges from the Qur’anic text (4: 59) in which it is
laid down that when the people dispute the decision of those who are in charge of
affairs, the matter should be referred to God and to the Messenger. Now, if a party
challenges the court decision and pleads that the law has not been properly applied,
there ought to be a court of appeal to review the case and determine the validity of
such an appeal.55
VIII
One of the widely quoted authorities in support of appellate review in Islamic
law is a letter that the second caliph, ‘Umar ibn al-Khattab, wrote to one of his judges,
Abu Musa al-Ash‘ari. This letter, although open to interpretation in parts, is
nevertheless clear on the necessity of correcting an erroneous decision, be it by the
adjudicating judge himself or by other judges. In this letter the caliph refers to justice
as a firm obligation (faridah muhkamah) under the Shari‘ah and asks the judge, al-
Ash‘ari, to:
Use your own understanding and judgment when disputes are placed before
you….let all men be equal in your sight, in your court and in your judgement so
that the strong may not hope to swerve you into injustice, nor is the weak let to
despair of your justice. The burden of proof lies on the shoulders of the plaintiff
and the oath is upon the denying party. Compromise is permissible among
litigants unless it renders into halal (lawful) what is forbidden (haram) or forbids
what is lawful. And let not a judgment that you have rendered yesterday and then
upon reflection and reconsideration you find that it was incorrect—deter you from
returning to truth. For truth is timeless and returning to truth is better than
53
Zaydan, Nizam, p. 277.
54
Cf. Wasil, al-Sultah, p. 278; Zaydan, Nizam, p. 83.
55
Cf. Azad, Judicial System, p. 104.
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continuing in falsehood….56
Several conclusions have been drawn from this letter and they are not always
in agreement. Some of the obvious conclusions drawn are that the head of state is
entitled to issue instructions to the judges and there need be no conflict between the
independence of the judiciary and the right of the head of state (or those who
represent him, such as a superior judge) to advise, consult and instruct the judges as
and when necessary and appropriate. Indeed the caliph is duty bond to supervise the
affairs of the judiciary and take all measures which are beneficial for an efficient
administration of justice.57
The letter under discussion is self-evident to the effect that the issuing judge
may review his own decision and correct any error that he may detect at any stage
prior to enforcement. There is, however, disagreement on the point whether the
contents of this letter also accommodate appellate review by another judge. The
Hanafi jurist, al-Sarakhsi, has reached the conclusion that either the issuing judge or
another judge may review the initial judgment. This letter, according to al-Sarakhsi,
indicates that when an error becomes apparent to the qadi, it is for him to reverse his
own decision and he should not allow loss of face to deter him from doing so. The
same author continues:
When the qadi’s decision is brought before another qadi, following the former’s
death or departure form office, and the latter disagrees with it, if it be a matter in
which the jurists are in disagreement, then according to ijma‘ the decision is not
reviewable in matters that are open to ijtihad. If the second judge reverses the
decision, he would have acted contrary to ijma‘. But if the initial decision is in
clear violation of the text and ijma‘ then it is reversible.58
Al-Sarakhsi thus clearly visualizes that a judicial decision may be reviewed either by
the issuing judge himself or by another judge.
There is also a difference of opinion as to whether caliph ‘Umar’s letter

validates a review of the initial decision in the same case or in other similar cases
which are subsequently encountered. According to one interpretation the initial
decision remains enforceable and may neither be reviewed nor reversed. The judge
may, however, subsequently review his earlier ijtihad in a similar case. This is
56
Al-Mawardi, al-Ahkam al-Sultaniyyah, pp. 59-60; Ibn Qayyim al-Jawziyyah, I‘lam al-Muwaqqi‘in ‘an
Rabb al-‘Alamin, ed. Muhammad Munir al-Dimashiqi (Cairo: Idarah al-Taba‘ah al-Muniriyyah, n.d.), I,
85-86. There is a slight variation in the wording of the letter in the sources consulted. I have therefore
quoted only those parts on which the sources are consistent. An English translation of this letter also
appears in Khalid M. Ishaque, “Al-Ahkam al-Sultaniyah: Laws of Government in Islam,” Islamic Studies,
4 (1965), 289.
57
Burhan al-Din Ibrhim ibn ‘Ali Ibn Farhun, Tabsirah al-hukkam fi Usul al-Adqiyah wa Manahij al-
Ahkam (Cairo: Mustafa al-Babi al-Halabi 1356/1937), I, 77; al-Qasimi, Nizam al-Hukm, p. 185; Zaydan,
Nizam, p. 75.
58
Shams al-Din al-Sarakhsi, al-Mabsut (Beirut: Dar al-Ma‘rifah, n.d.), XVI, 62.
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considered to be the preferable of the two views on the analysis that ijtihad can be
erroneous but the court decision which is based on it remains enforceable. This is the
conclusion that Ibn Qayyim al-Jawziyyah has drawn, as he paraphrases the relevant
part of the letter as follows:
When you wish to carry out fresh ijtihad in a subsequent case, let not your initial
ijtihad deter you from doing so. For ijtihad is liable to change and the first ijtihad is
no impediment to a variant ijtihad in a similar case, if you are convinced of its
validity and truth. For truth commands priority at all times.59
Ibn al-Qayyim then continues, on the same page, to suggest this interpretation by a
reference to caliph “Umar’s own decision:
‘Umar rendered different decisions in two similar cases and in each case he
followed what he believed to be the truth. He did not allow his first ijtihad to deter
him from attempting a fresh ijtihad in the second case, nor did he allow the
second to be used as a ground for reversing the first decision. The leading ‘ulama
have accepted both of these as basic guidelines in their expositions.
It thus appears that Ibn al-Qayyim has read caliph ‘Umar’s letter in the light of
his precedent whereby the caliph did not review his own decision in the same case.
This would mean that the judge may only review his previous ijtihad in a subsequent
case, but should not interfere with the decision he has already declared.
Notwithstanding such differences of interpretation, it should be clearly stated that
judges have the authority under Islamic law to review their own decisions, whether
such decisions are flawed by personal but erroneous reasoning, or a departure from
the clear injunctions of the Shari‘ah. Furthermore, the basic validity of appellate
review should not have been questioned at all. For the jurists of the various schools
have, as we shall elaborate, spoken at length on grounds of appellate review and
principles which regulate this subject. To dispute the basic validity of appellate review
would thus appear superfluous. Besides, when one looks at the history of
government in Islamic lands, one finds that appellate review has always been
available in practice and a two-tiered system of adjudication was in existence even
during the lifetime of the Prophet (peace be on him) and ever since. More recently,
since the beginning of constitutional reforms, a three-tiered system of adjudication
has become a normal practice in Islamic countries.60
IX
Appellate review in Islamic Law is regulated by a set of both general principles
and specific guidelines, many of which have gained acceptance in the form of legal
maxims (qawa‘id kulliyyah). The specific guidelines which regulate appellate review
are designed so as to identify the grounds on whose basis a judicial decision may be
59
Ibn Qayyim, I’lam, I, 94-95.
60
Cf. Fathi ‘Uthman, al-Fikr al-Qanuni, p. 310; Zaydan, Nizam al-Qada’, p. 275.
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reversed. And yet it should be noted at the outset that there is little unanimity on the
details of the application of these principles. While a broad outline of agreement can
be ascertained, the legal schools tend to differ in the precise exposition of these
principles, which may be outlined as follows:
(1) That ijtihad is not reversible by its equivalent (al-ijtihad la yunqad bi-mithlih).
When a judge renders a decision which is based on his sound reasoning and ijtihad,
neither the same nor any other judge is entitled to reverse it by means of a fresh
ijtihad. For the two instances of ijtihad are deemed to carry equal force and there is in
theory, no basis for one to justify reversal of the other provided that the two instances
of ijtihad are both sound and appropriate (sahih, maqbul) in that they are both in
accord with the requirements of ijtihad, neither is reversible regardless as to whether
they are both rendered by the same judge or by different judges. For if one such
ijtihad were to be allowed to set aside the other then there is no reason, as al-└mid┘
expounds, why the second and the third in the series should not be subject to
reversal as well. To accept this would amount to a chain-event (tasalsul) which would
violate the public interest (maslahah) as it would prevent termination of disputes
among people, cause confusion and undermine public confidence in courts
decisions.61
In the event where one judge reverses the judicial decree of another while both
decisions are based on ijtihad the second decision becomes itself liable to reversal.
For judicial decrees in matters which are open to ijtihad become binding and
enforceable and this opinion has been supported by ijma‘ since the period of the
Companions and Successors.62 Hence when the case at issue is brought before a
third judge, the latter is duty bound, as the Maliki jurist al-Qarafi has stated, to reverse
the second and confirm the first decisions, because reversing the initial decision was
an error in the first place and it must be rectified.63 To give an example, supposing a
judge evaluates and determines a certain pronouncement of divorce (talaq), which is
not self-evident, to have amounted to a final divorce (talaq ba’in) and the matter is
brought before another judge who reaches the conclusion that it was a revocable
divorce (talaq raj‘i) and consequently reverses the first decision. Since both of these
conclusions are based on personal reasoning and ijtihad, the first decision remains
valid and the second decision is itself liable to reversal. By the same token supposing
the first judge himself subsequently changes his opinion and reaches a different
conclusion while his initial decision has already been implemented, the initial ijtihad
remains valid and effective, but the judge is at liberty to adjudicate a similar case on
the basis of his subsequent ijtihad. Both the judgments are, in other words, valid in
61
Sayf al-Din al-Amidi, al-Ihkam fi Usul al-Ahkam, ed. ‘Abd al-Razzaq ‘Afifi (Beirut: Al-Maktab al-Islami,
1402/1982), IV, 232, Shihab al-Din al-Qarafi, Kitab al-Furuq (Cairo: Dar al-Kutub al-‘Arabiyyah, 1346
AH), IV, 43; Ibn Qudamah al-Maqdisi, al-Mughni, IX, 57; Zaydan, Nizam al-Qada’, p. 267.
62
Zaydan, Nizam al-Qada’, p. 267; Wasil, al-Sultah al-Qada’iyyah, p. 266.
63
Al-Qarafi, al-Furuq, IV, 43; Zaydan, Nizam, p. 268.
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their own right and neither invalidates the other.64
A look at the juristic expositions of the madh┐hib (legal schools) on the subject
of ijtihad and the qualifications that the mujtahid must possess reveals a dual concern
that the ‘ulama’ have exhibited. We note, on the one hand, the emphasis that is laid
on the competence of the scholar-mujtahid and the high qualifications that are
attached to this rank.65 We also note the concern the ‘ulama’ have shown to
guarantee that ijtihad must remain independent and inviolable. These are the
concerns which lie at the root of the ‘ulama’’s resistance to judicial review, which is
why I now propose to examine them in further detail.
A mujtahid is a person who is capable, by virtue of his vast knowledge, to

formulate his own opinion and judgment, in accordance with the Shari‘ah regarding a
particular issue despite the difference of opinion that may exist on the matter. The
opposite of mujtahid is muqallid, that is a person who imitates others and adheres to
the ruling or opinion of a school or individual scholar.66 Thus by virtue of his erudition
in the Shari‘ah and knowledge of the customs and conditions of society, the qadi-
cum-mujtahid is presumed to be competent not only to ascertain the law pertaining to
a particular issue but also to pronounce his own opinion, in the absence of a clear
text, as to what the law ought to be. The qadi-cum-mujtahid in this case partakes of
the function of legislator. Indeed Islamic Law is for the most part an embodiment of
the views and conclusions of individual mujtahids. It is undoubtedly a sensitive task
and although he is well advised to consult others and always remain in touch with his
environment, it is he alone, in the final analysis, who is responsible for his ruling. He
must, therefore, be able to discharge his duty free of interference and be protected
against the adverse repercussions of his judgment.
According to the Hanafi jurist, al-Marghinni, the candidate for judicial office
must fulfil two requirements, namely that he possesses the qualifications necessary
for a witness, and that he should be a mujtahid. In a subsequent passage, however,
the same author adds: the correct view of the school is that being a mujtahid is a
condition of priority (shart al-awlawiyyah) but not an essential requirement. Hence a
muqallid may be appointed as qadi if no mujtahid could be found the same author
adds that al-Shafi‘i has held that it is not permissible to appoint a muqallid to judicial
office.67 According to the Shi‘ite jurist, al-Hilli, the jurists of the Ja‘fari school are
unanimous to the effect that no muqallid may be appointed as qadi‘.68 The Malikites
(and the Hanbalites) have held that the candidate must be a jurist (faqih) who has
64
Cf. ‘Ali al-Din al-Kasani, Bada’i‘ al-Sana’i‘ fi Tartib al-Shara’i‘, (Cairo: Matba‘ah al-Jamaliyyah,
1328/1910), VII, 5.
65
For details on the conditions of ijtihad see present writer’s Principles of Islamic Jurisprudence (Kuala
Lumpur: Pelanduk Publications, 1989), p. 473 ff.
66
Cf. Azad, Judicial System, p. 23.
67
Burhqn al-Din al-Marghinani, al-Hidayah (Delhi: Mataba‘ah Mujtaba’i, n.d. ), II, 131.
68
For this and further detail on Shi‘ah law see Muhammad Sangalaji, Qada dar Islam (Tehran:
Chapkhanah-i-Danish, 1347 AH), p. 46 ff.
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thorough knowledge of Shari‘ah and of the precedent and opinion of his

predecessors, while also soliciting counsel from those who have a say in the matter.69
There are thus two opinions, both of which are essentially in agreement, that
the qadi must be a mujtahid. The concessionary stance that is taken by the Hanafites
and others takes into consideration the inherent difficulty that is encountered in the
precise definition and identification of a mujtahid, and the shortage of such highly
qualified persons to fill the ever-increasing number of judicial posts.
The jurists of all schools agree that the qadi must exert himself personally to
formulate his own ijtihad, that he must avoid founding his judgment on the opinion of
others, unless he is convinced of the merit of such opinion. According to the Hanafi
jurist, al-Kasani: “It is not permissible for the qadi to base his decision on the ijtihad or
opinion of others with which he himself is not in agreement.”70 The first recourse in
the formulation of ijtihad must always be to the Qur’an and the Sunnah. If the judge
finds a ruling in these sources he must apply it as there is no need for ijtihad, but if he
finds none he should resort to the ruling of ijma‘ and failing to find the necessary
guidance there, he should apply his own ijtihad. As already indicated, ijtihad consists
mainly of the considered opinion (ra’y) of the learned mujtahid which may in turn take
a variety of forms, such as analogical reasoning (qiyas), consideration of public
interest (istislah or maslahah), juristic preference (istihsan) and so forth. These are
primarily rationalist doctrines which derive validity from the indications that are found
in the Qur’an and the Sunnah. The ‘ulama’ of jurisprudence (usul al-fiqh) have
expounded at length the methodology which ensures accuracy in the exercise of
these varieties of ijtihad. While recommending recourse to some of the more
disciplined and regulated varieties of ijtihad such as qiyas, the ‘ulama’ have
discouraged an over-reliance on personal opinion, or ra’y. Al-Shafi‘i has highlighted
the relevance of qiyas to ijtihad so much so that to him the two are synonymous. Al-
Shafi‘i, in other words, limits the scope of ijtihad to only one form of ijtihad and that is
qiyas.
Notwithstanding the significance of qiyas and the fact that qiyas is regarded as
the main bastion of ijtihad, it is generally agreed that the scope of ijtihad is much
wider than qiyas. Next to qiyas, it is perhaps consideration of public interest (isti╖l┐h)
which plays prominent role in the formulation of ijtihad.71 The textbooks of u╖┴l al-fiqh
elaborate on a range of other topics such as presumption of continuity (isti╖╒┐b),
blocking the means (sadd al-dhar┐’i‘), etc., which are once again different
69
Sahnun ibn Sa‘id, al-Mudawwanah al-Kubra (Cairo: Matba‘ah al-Sa‘idah, 1323 AH), XII, 149;
Zaydan, Nizam, p. 248; Azad, Judicial System, p. 12.
70
Al-Kasani, Bada’i‘, VII, 4; Ibn Qudamah, al-Mughni, IX, 40-41; Zaydan, Nizam, p. 248.
71
For details on istislah see present writer’s article “Have we neglected the Shari‘ah law Doctrine of
Maslahah?”, Islamic Studies 27 (1988), 287-304.
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manifestations of the one and the same phenomenon of ijtihad.72
(2) That a ruling which opposes the text and consensus is reversible (yunqad al-
hukm al-mukhalif li’l-nass wa’l- ijma‘): It is a recognised principle of Islamic law that
decisions are liable to reversal when they depart from the clear text of the Qur’an the
Sunnah, or the explicit ruling of ijma‘.73 A variant version of the same principle is
recorded by many prominent jurists including al-Qarafi, and Ibn Farhun. It is thus
stated that “a ruling/decision is reversible when is opposes the ijma‘ the legal maxims
(qawa‘id), obvious analogy (qiyas jali), and text (nass).”74 It will thus be noted that the
standard version of this principle, as shown above, focuses on text and ijma‘ and
leaves out the added elements, namely qawa‘id and qiyas which appear in the variant
version. A departure from the last two would accordingly not justify reversal of a
judicial decision. The other point to be noted in the variant version is the order of
priority which is the reverse of that of the standard version. This order of priority is
supported by both Imams, Abu Hanifah and Malik. In rendering this principle, the two
Imams have given overall priority to ijma‘. A judicial decision is thus reversible only
when it is contrary to the ruling of ijma‘. For most of the nusus (textural rulings) are
speculative and open to interpretation. It is ijma‘ which eliminates doubt and offers a
more reliable basis on which to ascertain the law.75 Ibn Qudamah summarises the
views of the leading ‘ulama’ when he writes:
When a case is adjudicated by one judge and then brought upon appeal (rufi‘at)
before another judge and it appears to the latter that the judgment is erroneous:
[in such a case] if the error consists of a departure from the clear injunction (nass)
of the Qur’an, the Sunnah or ijma‘, the decision must be reversed. This is the
view of al-Shafi‘i, who has added that the decision is reversibly only if it violates a
self-evident text. Imam Malik and Abu Hanifah have stated that the ruling is
irreversible unless it violates the ijma‘…they have reasoned their position in that it
is possible that there might be a disagreement of interpretation over the meaning
of a text. Abu Thawr and Dawud [al-Zahiri] have on the other hand, held that
judicial decisions may be reversed when they are found to be erroneous in all
cases. For ‘Umar, may God be pleased with him, wrote to Abu Musa al-Ash‘ari….
Our position is that reversal is valid only when the decision violates the text or
ijma‘.76
While elaborating on the views of Abu Thawr and Dawwd al-Zahiri, Ibn
Qudamah refers to caliph ‘Umar’s letter in which he authorised his judge, al-Ash‘ari,
72
There is a chapter on each of these in present writer’s Principles of Islamic Jurisprudence. Chapters
XV and XVI, pp. 377-406 are devoted to istishab and sadd al-dhara’i‘ respectively.
73
Al-Marghinani, al-Hidayah, II, 141; al-Mughni, IX, 56; Zaydan, Nizam, p. 270; Madkur, p. 63; Wasil,
al-Sultah al-Qada’iyyah, p. 264.
74
Shihab al-Din al-Qarafi, al-IAkam fi Tamyiz al-Fatawa ‘an al-Ahkam wa Tassarrufat al-Qadi wa’l-
Imam, ed. ‘Abd al-Fattah Abu Ghaddah (Halab [Syria]: Maktaba al-Matba’at al-Islamiyyah,
1387/1967), p. 128; Ibn Farhun, Tabsirah, I, 55.Cf.
75
Madkur, al-Qada’, p. 64.
76
Ibn Qudamah, al-Mughni, IX, 56.
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to retract and reverse “a decision which you gave yesterday and then you find, upon
reflection, that it was erroneous.” In issuing this instruction, as Dawud al-Zahiri,
maintains, the caliph “Umar did not specify the nature of the error nor its relationship
to the text or ijma‘. The conclusion is thus drawn, by Abu Thawr and Dawud, that any
substantive error which causes miscarriage of justice would be sufficient to warrant
reversal of a judicial decision.
It will be noted further that departure form a textual ruling (nass) constitutes a
ground of reversal only when the text in question is self-evident in that it requires no
interpretation. For when a text is open to interpretation, it is also open to ijtihad and
one ijtihad does not over-rule the validity of another.77 The proponents of the variant
rendering of the principle under discussion have made similar stipulations in that
departure from legal maxims, obvious analogy (qiyas jali) and nass justifies a reversal
only when there is neither opposing nor a preferred view concerning the meaning of
the maxim or the result of the analogy in question—so that the issue is not one of
preference of one ruling to another.78 Al-Qarafi further explains the position of the
Maliki school with regard to ijma‘ that “ijma‘ is infallible and it only admits what is
known to be the truth.” There are, Al-Qarafi adds, instances in the Shari‘ah where a
ruling is either contrary or anomalous to the text (nass) and yet it is validated by ijma‘.
This is the case, for example, with regard to certain transactions such as salam
(advance sale in which delivery is postponed to a future date) and ijarah (lease and
hire). Both are anomalous as they involve sale of objects which do not exist at the
time of contract. There are textural rulings of a general character which invalidate
these transactions, but there are specific rulings in the text which validate them. The
ijma‘ has settled such instances of apparent conflict and has upheld the validity of
these transactions. It is, therefore, the ijma‘ which is to be given priority as a more
reliable criterion for ascertaining the rules of Shari‘ah.79
This discussion may be concluded by illustrating a decision which may be

reversed on grounds of violating the text. Supposing that the qadi validates
remarriage between an estranged couple whose first marriage was dissolved by a
triple talaq. The court thus grants them permission to remarry following an intervening
marriage which remains unconsummated. Such a decision would have violated the
text of the hadith which prescribes the consummation of the intervening marriage.
And, finally, an example of violating ijma‘ would be for the judge to validate a
temporary marriage (mut‘ah) on grounds of the evidence which, although available in
the sources, has been over-ruled and an ijma‘ of the Companions has subsequently
materialised which proscribes mut‘ah. A judicial decree which violates this ruling of
ijma‘ is therefore reversible.80
(3) That the ‘ulama’ generally agree on the point that the qadi may not adjudicate
77
Cf. Wasil, al-Sultah, p. 266.
78
Al-Qarafi, al-Ihkam, p. 128.
79
Ibid., p. 128–29.
80
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a dispute in which he is either a party or has a personal interest. The test that is
applied here, according to the majority opinion, is that the q┐╔┘ may not adjudicate a
case wherein one or both of the parties are persons for whom the q┐╔┘ himself
cannot be a witness.81 A variant opinion has been recorded, from D┐w┴d al-╙┐hir┘
and others, which does not adopt being witness as a test per se as they maintain that
being a judge is different from being a witness in that judicial decisions are based on
identifiable causes whereas this is not a requirement in testimony. Be that as it may,
the basis of the principle under discussion is the ╓ad┘th which provides that
“testimony is not admissible of an opponent nor a person about whom there is
doubt.”82
The text in this hadith is deemed to be comprehensive in that it precludes all

persons, who are suspected of bias, from being either a witness or a judge.83 There is
an ijma‘ to the effect that the father may not be a witness for his son nor vice versa,
neither may the mother be a witness for her daughter and vice versa. But beyond this
the ‘ulama‘ have differed as to the position of other relatives including the spouse and
the brother. According to Imam Abu Hanifah and Malik the testimony of the spouses
for one another is inadmissible whereas Imam al-Shfi‘i has held it to be valid.84
The next question to be addressed here is whether the decision of a qadi, in

cases involving his close relatives, is automatically reversible even if it is found to be
valid in principle. The answer to this question is in the affirmative. All that is needed is
to establish the nature of the relationship or the standing of the qadi vis-à-vis the
parties involved, there remaining no need for a detailed review of the decision itself.85
For judicial decisions must not only be valid but also seem to be valid so that public
confidence in them is not undermined.
(4) That unjust decision of judges of ill-repute are reversible (tunqaa ahkam
quddat al-jawr wa’l-su’ idha kanat ja’irah): This is primarily a ruling of the Maliki
school, and it maintains that only the manifestly oppressive decisions of a judge of
questionable character and reputation are reversible. According to yet another Maliki
view, the decisions of such a qadi are generally liable to review and reversal. The
Maliki school also maintains the basic position that is common to all schools, whereby
decisions of a qadi who is known for competence and upright character are not
reversible. Whereas the majority merely specify the grounds on which decisions may
be reversed, the Malikis take this step further by saying that decisions which are
manifestly oppressive are liable to review and reversal.86 A decision is oppressive
when it is known that the judge has deliberately abandoned the truth, or has
81
Ibn Rushd, Bidayah, II, 464; al-Shirazi, Muhadhdhab, II, 304.
82
Ibid. Ibid., II, 472.
83
Ibid., II, 472.
84
Ibid., II, 464.
85
Cf. Zaydan, Nizam, p. 272.
86
Zaydan, Nizam, p. 270; al-Nubhan, Nizam al-hukm, p. 650; Madkur, al-Qada’, p. 64.
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neglected to ascertain that the evidence on which his decision is based was reliable.87
The main weakness of this Maliki ruling, as Zaydan points out, is that when a
judge is notorious for oppressive decisions, this is sufficient to warrant his removal
from office so as to protect the people against harm. Similarly when judicial decisions
are found to be manifestly oppressive they ought to be reversible regardless of the
reputation of the judge.88 This might explain why the majority of jurists have not
adopted this principle.
(5) That the decisions of a qadi who lacks adequate knowledge and fails to consult
others, according to yet another Maliki doctrine, may be reviewed and confirmed
when they are sound but reversed if found to be manifestly erroneous and there is no
disagreement about that (khata‘an bayyinan lam yukhtalaf fih).89 Consultation is,
however, no substitute for knowledge. For it is held that the decisions of a judge with
scanty knowledge are reviewable even if he solicits counsel and advice from the
learned.90
It will be further noted that the Maliki stipulated that the candidate for judicial
office must be a faqih and learned in the Shari‘ah. The fact that the foregoing
provision contemplates a person who is lacking in knowledge because as Madkur
pointed out, it takes into account the circumstances where such a person may be
appointed due to necessity.91 It is for the head of state to ascertain whether the qadi
in question is scanty of knowledge or fails to consult the learned.92
Consultation being a Qur’anic principle is strongly recommended; the qadi

must consult the learned and encourage them to attend his court frequently. If
impropriety is feared and there are complaints, the head of state may assign a
jurisconsult to sit with the qadi to advise him.93 It will be noted here in passing that the
requirements of consultation have become institutionalised in the Shari‘ah courts of
many Islamic countries whereby one or two jurisconsults muft┘ are normally
appointed to advise and assist the qadi in court decisions.94
(6) That grounds of appellate review specified by the jurists may be outlined as
follows:
(a) When the court decision is based on a cause which is in reality non-existent;
87
88
89
Ibn Farhun, Tabsirah, I, 73; Zaydan, Nizam, pp. 272–73.
90
Madkur, al-Qada, p. 64, quoting al-Dusuqi wa al-Dardir; Sharh al-Kabir ‘ala Mukhtasar al-Khalil, IV,
152.
91
92
93
94
In the case of Afghanistan, details on the court organization can be found in present writer’s Law in
Afghanistan, p. 213 ff.
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for example when a decision is based on perjury, as cause/ground whose existence

is alleged but is not true.95
(b) When a serious fault comes to light in the evidential basis of the decision. It
becomes known, for example, that the witnesses were unreliable and failed to fulfil
the requirements of admissibility. The reason being that the Shari‘ah does not permit
judicial decisions to be based on questionable grounds.96
(c) When the evidence on which the decision is based is contrary to obvious
facts.97
(d) When the new evidence comes to light after adjudication. Ibn Rushd raises the
question whether it is permissible for the qadi to admit evidence after the issuance of
judgment. The same author continues to write that the ‘ulama’ are in disagreement
but the best view of the Maliki school is that such evidence is permissible in matters
pertaining to the Right of God, or public rights, such as crimes and penalties, but not
admissible in regards to the Right of Man, that is private litigation and civil claims.98 It
is one of the recognised grounds of appeal when the defendant proffers evidence
which was unknown to him prior to adjudication.99
(e) When the decree adversely affects the right of someone who is not a party to
the dispute.100
(f) When the decree is beyond the specified jurisdiction of the court.101
(g) When there is irregularity in procedure such as when the court decision is
based on a mere claim and issued prior to granting the defendant an opportunity to
state his case. If this is deliberate, the decision must be reversed, otherwise a review
is granted so as to rectify the irregularity.102
The judge must specify the grounds of his decision and the authority on which
it is founded. A judicial decision which fails to indicate these is reviewable according
to the Hanafis. The Shafi‘is are basically in agreement with the Hanafis.103 The
Shafi‘is jurist Ibn Abi’l-Dam confirms that the cause of the decision (sahib al-hukm)
must be indicated, but if the decision is based on the confession of the defendant and
the qadi merely states that the necessary proof has been supplied to his satisfaction,
95
96
Ibid., p. 268 referring to Taqi al-Din al-Subki’s al-Ashbah wa’l-Naza’ir, I, 461.
97
‘Uthman, al-Fikr al-Qanuni, p. 314.
98
For further details see Ibn Rushd, Badiyah, II, 475.
99
‘Uthman, al-Fikr al-Qanuni, pp. 314-15.
100
Ibid.
101
Ibid.
102
Ibid., p. 314.
103
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it is sufficient. If the evidence, in other words, is self-explanatory, then a specific

statement by the qadi as to the grounds of the decision is not required, but such a
statement is required when this is not the case.104
The ‘ulama’ are in disagreement as to whether the qadi may adjudicate on the
basis of his personal knowledge without any further evidence. Only the Hanafis permit
this provided that such knowledge is founded on observed facts during adjudication
and trial itself. When, for example, the qadi incidentally hears a person speaking to
another and confesses to something. The Hanafis permit adjudication on the basis of
personal knowledge of the qadi outside the prescribed offences, known as the hudud.
The Hanafis have also held that in case the qadi issues a decision which is based on
his personal knowledge and later it transpires that he had confused the facts, then
such a decision is liable, to review and may be reversed.105
As stated earlier, a judicial decree must originate in the personal judgment and
ijtihad of the qadi himself. When this is not the case and the qadi issues a decision
which disagrees with his own judgment, his decision is reviewable; for example, when
the judge conforms to the wishes of another person of influence, or when he adopts
the ijtihad of another person contrary to his own beliefs. The judge must always act
upon his own conviction. This rule is, however, primarily addressed to the qadi who is
also a mujtahid. But if the judge happens to be a (muqallid), who follows the rulings
of the school to which he belongs, then his decision is reviewable only if it disagrees
with the dominant ruling of that particular madhhab (legal school).106
The jurists are in agreement that a judicial decision which is manifestly

oppressive, whether deliberate or otherwise, is basically null and void and therefore
liable to reversal, initially by the issuing judge himself, who must alert the parties to
seek a review, failing which the Imam or his representatives are duty bound to
reverse it.107 In the event when an oppressive decision is implemented, if it is
intentional, such as where bribery or personal prejudice is involved, the qadi must
personally bear its consequences. If the decision has inflicted corporeal punishment,
the qadi is liable, according to the majority of the jurists, with the exception of the
Hanafis, to just retaliation, that is in cases where retaliation is deemed to apply. Some
jurists, including Imam al-Haramayan al-Juwayni have upheld the same ruling in the
event of serious neglect of duty, such as failure of the qadi to inquire into the
admissibility of witnesses. This, in their view is quasi-intentional (shibh al-‘amd) and
entails personal liability. If the decision inflicts a financial loss, in cases of both
intentional and quasi-intentional miscarriage of justice, the qadi bears personal
liability. If the qadi is unable to pay, the state must indemnify the injured party for the
losses. The judge must be removed from office and punished for misconduct. He is
104
Shihab al-Din Abu Ishaq Ibrahim al-Hamawi (known as Ibn Abi’l-Dam), Kitab Adab al-Qada’, ed.,
Mustafa al-Zuhayli, 2ndn., (Damascus: Dar al-Fikr, 1402/1982), p. 488.
105
Madkur, al-Qada’, p. 69; al-Nubhani, Nizam al-Hukm, p. 468.
106
Ibid., p. 63.
107
Wasil, al-Sultah, p. 279; Zaydan, Nizam, p. 84.
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also disqualified from holding judicial office in future and his testimony is inadmissible
even after repentance. Only the Zaydi jurists are inclined to permit his return to
judicial office after repentance but only if his reappointment is approved by the Imam.
This ruling has been partially qualified in that in all cases of intentional miscarriage of
justice, it is incumbent on the Imam to remove the qadi from office, whereas in quasi-
intentional and erroneous cases, the Imam exercises discretion in accordance with
the requirements of public interest (maslahah).108
In the event where miscarriage of justice is attributable to someone other than

the qadi himself, such as perjury which has survived due to inquiry and cross-
examination (tazkiyah), especially where the witnesses of probity or tazkiyah have
affirmed the upright character of the witnesses of proof. In all cases of perjury the
witnesses of proof in the first place but also the witnesses of probity are liable to
retaliation or financial compensation as the case may be.109
The ╓anabal┘ jurist, Ibn Qayyim al-Jawziyyah, further points out that liability
for compensation falls on the shoulders of the witnesses of probity in cases where
such witnesses exist, for they have prompted the qadi into a wrong decision,
otherwise it falls on the shoulders of the qadi, for the latter has neglected to ascertain
the reliability of witnesses.110 Imam Malik has held that liability for financial
compensation is to be borne by the witnesses whereas Imam Shafi‘i has held that
either the judge or the Imam must bear liability but the witnesses are not liable to
compensate for financial loss except in cases of diyyah (blood-money) for injuries.111
Thus if the judge orders mutilation of the hand on the charge of theft and then it turns
out that the witnesses were liars and profligates (fasiq), the diyyah for limb in this
case must be paid by the public treasury (bayt al-mal). The reason given is that the
Shari‘ah has forbidden the testimony of such witnesses, therefore, to hold them
responsible for its consequences is not proper. The position is different with regard to
witnesses who retract their testimony and confess that they have lied, because in this
case the witnesses are fully responsible and bear the consequences in respect of
both retaliation (qisas) and blood-money (diyyah).112
The Hanafis and some later ‘ulama’ (al-muta’akhkhirun) have held, on the
other hand, that responsibility (daman) for miscarriage of justice falls on the shoulders
of the party in whose favour the decision is made (i.e. the mahkum lah) both in
criminal and financial matters. This view opposes the majority opinion which
maintains that crimes and torts should not be treated on the same footing. The
majority maintain that in criminal offences, the makum lah is liable to retaliation
(qisas) only if he carries out the sentence personally while knowing that the decision
108
Ibid., pp. 280–82; Madkur, al-Qada’, p. 61.
109
Muhammd al-Khatib al-Sharbini, Mughni al-Muhtaj (Beirut: Dar al-Fikr li’l-Taba‘ah wa’l-Nashr wa’l-
Tawzi‘, n.d.), IV, 6; Wasil, al-Sultah, p. 280.
110
Ibn al-Qayyim, I’lam, IV. 226.
111
Ibn Rushd, Bidayah II, 476; Ibn Qayyim, I’lam IV, 226-27.
112
Ibn Qudamah, al-Mughni, IX, 255–56; al-Sharbini, Mughni al-Muhtaj, IV; 6.
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was wrong. The jurists are unanimous in their opinion to the effect that direct action
(mubasharah) constitutes a more reliable basis for criminal liability than causing
something through indirect involvement (tasabbub).113 With regard to the pure Right
of Men such as in contracts and property, the damage caused by an oppressive
judicial decision is to be remedied by reversing the decision and restoring the status
quo ante which prevailed before the implementation of the decision in question. Thus
if the qadi had authorised the dissolution of marriage, the parties shall be reunited, or
if property or other assets such as inheritance changes hands because of a wrong
decision, the property itself, or its equivalent, must be restored to the original owner. If
the party concerned is unable to pay, the plaintiff is entitled to compensation from the
state.114
The Hanafi jurist Al-Kasani has stated that in criminal offences which fall under
pure Right of God (haqq Allah al-khalisah) such as the prescribed (hadd) penalties of
theft and adultery, if the judicial order has already been enforced, the state is liable for
compensating the injured party, not the qadi. In matters where the Right of God (haqq
Allah) and Right of Man (haqq al-Adami) combine, such as retaliation in homicide and
bodily injuries, only the state, not the qadi, is liable to the payment of blood-money
(diyyah). For the qadi acts not for himself, but in his capacity as representative (na’ib,
wakil) of the Imam, and only the latter, that is the principal party, is responsible for the
errors of his representative. To this, al-Kasani further adds that owing to frequency of
his decisions, the qadi may make numerous errors and it would amount to prejudice
(ijhaf) if he were to be personally responsible for payment of diyyah.115
Conclusion
The evidence is overwhelming to the effect that Islamic Law validates appellate
review, especially in cases where the court decision departs from the clear injunctions
of the Qur’an, the Sunnah and ijma‘. To maintain that appellate review is not
recognised is a gross overstatement and simply unacceptable. The law is equally
clear on the point that judicial decisions which are based on sound ijtihad are not
reviewable. The leading schools of law are all unanimous on this. The only addition
here comes from the Maliki jurists who maintain that decisions which are manifestly
oppressive may be reviewed and reversed. It is not unknown, even in classical
Islamic law, that strict adherence to qiyas (analogy), itself a variety of ijtihad, could
lead to severity and unfair results. To overcome the strictures of qiyas, the jurist/judge
is authorized to resort to juristic preference (istihsan) in which case the ruling of qiyas
may be abandoned in favour of an alternative ruling which offers a more equitable
solution. This analysis would lend support to the Maliki doctrine, which is, in any case,
totally harmonious with the Qur’anic ideals of impartial justice.
113
Wasil, al-Sultah, p. 281; Madkur, al-Qada’, p. 69.
114
Al-Kasani, Bada’i‘, VII, 16; Ibn al-Qayyim, I’lam, IV, 227; Wasil, al-Sultah, pp. 281–82; Zaydan,
Nizam, p. 84.
115
Ibn al-Qayyim, I’lam, VII, 16; Zaydan, pp. 84–85.
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Classical Islamic law is also explicit on the point that the judge may review his
own decision prior to enforcement. The inherent validity of this principle is beyond
challenge, as it is also in harmony with the Hadith of the Prophet (peace be on him),
earlier quoted, which clearly admits the possibility of error in ijtihad. Nevertheless,
while the principle under discussion might have commanded greater validity at a time
when there were no appellate tribunals, the situation has changed since. Appellate
review has now, on grounds of good policy, been exclusively entrusted to separate
courts. And yet there need be no conflict between the classical and modern law. For a
provision could always be inserted in the statute to ensure that prior to proceeding
with an appeal, the appeal court asks the lower court judge as to whether he wishes
to review his own judgment. If so, this should be made possible, otherwise the review
procedure should be allowed to take its course.
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Appellate Review and Judicial Independence in Islamic Law

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Appellate Review and Judicial Independence in Islamic Law

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Appellate Review and Judicial Independence in Islamic Law1

The foregoing statement, however, needs to be qualified in that it is valid only

The general purport of this decision is not disputed in so far as it is taken to

It is not permissible (la yajuz) to appoint a qadi on condition that he should

Qudat). Harun al-Rashid is also reported to have relinquished supervision of the

Notwithstanding some of these positive developments, historical practice on

A judge who is apprehensive about the adverse repercussions of his decisions

In the case of extraordinary appellate review, the appellant or his counsel

Finally, the appellate review referred to as i‘adah al-nazar (reconsideration) is

Modern legislation on appellate review is, broadly speaking, based on the

The Shari‘ah law doctrine of takhsis al-qada’ (specification of justice)

The Qur’an likewise speaks of differential understanding and judgement of the

No one is therefore immune from error which is an ever-present possibility in

There is also a difference of opinion as to whether caliph ‘Umar’s letter

their own right and neither invalidates the other.64

A mujtahid is a person who is capable, by virtue of his vast knowledge, to

thorough knowledge of Shari‘ah and of the precedent and opinion of his

manifestations of the one and the same phenomenon of ijtihad.72

This discussion may be concluded by illustrating a decision which may be

The text in this hadith is deemed to be comprehensive in that it precludes all

The next question to be addressed here is whether the decision of a qadi, in

Consultation being a Qur’anic principle is strongly recommended; the qadi

for example when a decision is based on perjury, as cause/ground whose existence

it is sufficient. If the evidence, in other words, is self-explanatory, then a specific

The jurists are in agreement that a judicial decision which is manifestly

In the event where miscarriage of justice is attributable to someone other than

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