Deterrence by Judicature

Judicature was practised by all countries of the world since days immemorial. Not a single country or a community, in whatever shape it was formed, would have lived without a judge to settle disputes and pass judgements on offenders.

In pre-Islamic the Arabs practised this system and the judge was called a ruler. The same nomenclature was also given by the Romans to the judge in ancient days. Calling a judge a ruler in ancient communities was based on a historical basis. It was custom then that the supreme ruler was also the judge and whenever a competent judge was found and appointed, he was to derive his authority from the ruler.

At the advent of Islam, the Prophet Muhammad was ordered to investigate and settle disputes. In the Quran God told the Prophet "But no, by Lord; they believe not until they make thee a judge of what is in dispute between them, then find not any strainess in their hearts as to that which thou decidest and submit with full submission".[Surat Al-Nisa' : 65.] There are other Quranic verses all of which are carrying the same meaning.

When Islam spread out and disputes and differences multiplied, the Prophet Muhammad appointed judges, among them were the Imam Ali Abou Talib and Maaz Ibn Jabal, both of whom were sent to Yemen. This system was later followed by the Umayyad and Abbaside Caliphs.

Under Islam, there were certain conditions required for a man to hold the post of a judge. These conditions aimed at protecting the judge from deviation. Among these conditions were the following:

  1. 1 - The judge should have been of good repute ;
  2. 2 - He ought to be well versed in all the Islamic laws and able to use his discretionary judgement.
  3. 3 - During the Abbaside reign, a chief justice Abou Yusuf, was given the authority to appoint other judges and asked to supervise their conduct, and dismiss them if this was found necessary

  4. 4 - Some judges were appointed to hear only certain cases or to serve certain localities. Umar Ibn Al Khattab was quoted as having ordered one of his judges to "discourage people from coming to me complaining of minor things". It was reported that the princes of Basra had appointed judges each one covering a certain locality to hear cases involving 200 or 20 dinars, or less:

  5. 5 - More than one judge were allowed to hear a case. This was the viewpoint of the Hanafites, the Hanbalis and some of the Shafei Sect :
  6. 6 - Verdicts could have been attacked even before the same judge who had passed them.

In "Risalatul Qada", Umar Ibn Al-Khattab, giving directives to a judge, said : "If you have found that a sentence which you have passed the same day was unjust, you have to set it right later. Justice is a deep- rooted virtue and to resort to fairness is better than to continue to be in the wrong." It was also allowed that one would attack a verdict before a judge who was senior in rank than the judge who had passed it. when Ali Ibn Abi Talib was in Yemen, he passed a sentence in a certain case. Dissatisfied, the adversaries appealed to the Prophet Muhammad, but the Prophet circumstantiated Ali's judgement.

It was also possible that a sentence would be Reversed for its contradiction to the law, i.e., its contradiction to the unanimity of scholars' views or to the well-established rules, or to the clear text and analogy.

In the history of Islam, all the criminal and civil law suits were within the general jurisdiction of the judicature. But when the State spread out, certain congnizances were separated from general concurrent jurisdiction, among which were that of epostulations, which resemble the civil judicature of our present times, and the "Al Hisbah" jurisdiction which was based on the principle of enjoining good and forbidding evil. With these two jurisdictions excluded, the judicial jurisdiction remained general. Criminal and civil judicial jurisdiction was distinguished by the deep doctrinal study and correct application of law. If the complaints council desired to apply a religious principle or make a thorough investigation of a certain case by hearing witnesses or receiving statements under oath, it was only the judge who had the auditory to administer justice though the authority seemed to be that of the complaints caretaker or the "Al-Muhtasib".

In Islam, the role of the criminals judge was not confined only to the application of law, but he had to play a social part in combating crime, especially in cases of prescribed sentences. It was within his power to pass a severe or a light sentence or to choose the penalty he deemed fit. The judge was also allowed to go beyond the set punishment and to pass even a death sentence if he was convinced that the defendent was so dangerous that he would not be deterred if only the prescribed sentence was passed on him.