The judiciary is one of the pillars of state governance. Judges are carefully selected from among legal experts based on stringent standards matching the gravity of their responsibilities. They serve society by enhancing performance and achieving justice with dedication and integrity, ensuring they are worthy of upholding justice.
The judiciary holds significant importance and should only be in the hands of competent individuals, as it is part of the duties of the prophets. Just as they were tasked with preaching and delivering messages, they also judged and resolved disputes. Prophet Muhammad’s mission included guiding people and establishing justice among them.
The caliphs following Prophet Muhammad recognized the crucial role of scholars and judges, honouring and protecting them from interference to ensure justice and uphold the truth. The Rashidun Caliphs have numerous stories where judgments were issued against them, which they accepted and executed willingly.
One notable judge from the Rashidun period was Shurayh ibn al-Harith al-Kindi. According to Al-Dhahabi’s “Siyar A’lam al-Nubala,” Caliph Umar ibn al-Khattab appointed him as a judge in Kufa after being impressed by his intelligence, insight, and fairness. Shurayh served for sixty years, continuing until a year before his death during the rule of al-Hajjaj ibn Yusuf al-Thaqafi.
Dr. Sayed bin Hussein Al-Afani, in his book Moistening the Mouths with Mention of Those Whom God Shelters (2018), narrates that Caliph Umar once bought a horse from a Bedouin and rode it, only to discover a defect shortly after. Umar returned to the Bedouin to ask for his money back, but the Bedouin refused, claiming he had sold it soundly. Umar proposed arbitration, and the Bedouin chose Shurayh ibn al-Harith, who ruled that Umar could either keep the horse or return it as he had taken it. Umar was impressed byShurayh’ss judgment, saying,””Is this not true justice? A decisive word and a fair judgment” and appointed Shurayh as the judge of Kufa.
During the Umayyad period, the judicial structure remained similar to that of the Rashidun era. However, Dr Abdul Basit Haikal, in his book Bab Allah – The Islamic Discourse Between the Two Mills (2017), notes a significant development when Abdul Malik ibn Marwan established the office of the “Chief Grievances Officer” to handle complex cases beyond the regular judges’ capacity.
The judiciary was not separate from the caliph or governors; the caliph, as a jurist, sometimes intervened in disputes, and governors exercised judicial authority as the caliph’s deputies. Judges primarily resolved disputes, while the implementation of judgments remained in the hands of the caliph or his deputies.
During the Abbasid era, significant social, cultural, intellectual, and economic development existed. Arabization, translation movements, urban growth, and city building flourished, integrating various ethnicities within the state. This diversity increased the need for an independent judiciary, prompting the state to employ many judges and provide them with salaries to issue fatwas, judgments, and resolve disputes among the people.
Avoidance of Judicial Positions by Scholars
Caliphs faced repeated refusals from scholars to assume judicial positions due to religious, personal, administrative, or political reasons, leading to frustration among the ruling authorities. This avoidance became a common trend, prompting state officials to oscillate between persuasion and offering incentives.
The phenomenon of avoiding judicial roles dates back to the Rashidun Caliphate and continued in subsequent eras. Even when Abdul Malik bin Marwan established the “Complaints Officer” position for complex cases, the judiciary was not separate from rulers. Notable figures like Imam Abu Hanifa refused these roles despite the pressure.
In his 2016 paper, Judges and Judicial Responsibility in the Early Abbasid Era: Between Dismissal and Resignation, Musa Jawad states that Abu Hanifa claimed he was not fit for the judiciary. Despite Caliph Al-Mansur’s repeated and persistent attempts, including both incentives and threats, to persuade Abu Hanifa, all these efforts ultimately failed.
Jawad summarized the reasons why scholars avoided working in the judiciary into six points, the first of which was fear. Scholars avoided becoming judges due to the severe warnings in the Hadiths, highlighting the great responsibility and strict accountability on the Day of Judgment. This fear of making mistakes led many scholars to avoid taking judicial positions.
Among these hadiths, Abu Huraira (may Allah be pleased with him) said that the Messenger of Allah (peace be upon him) said: “Whoever takes on the role of a judge, or is appointed as a judge among people, has been slaughtered without a knife.” And Ibn Mas’ud (may Allah be pleased with him) reported that the Prophet (peace be upon him) said: “There is no judge who judges between people except that he will be brought on the Day of Judgment, and an angel will take him by the back of his neck at the edge of Hell. If it is said, ‘Throw him,’ he will be thrown into it, falling for forty autumns.”
The second reason is that judges were known for their piety and integrity. If one felt biased, he would resign immediately. For example, a devout judge requested the Caliph Al-Mahdi to relieve him from his duties after one of the parties tried to bribe him with sweet dates, which could only be gathered for the Caliph. Although he refused the bribe, he felt his neutrality was compromised and asked to be removed from his position.
The third reason is that the judiciary must be independent to avoid interference in their rulings, enabling them to enforce decisions justly, even against those in power, thus preventing pressure to issue biased judgments. This naturally elevates the judges’ stature among people and makes rulers hesitant to dismiss them.
The fourth reason is their commitment to knowledge, research, and teaching. Scholars prioritized their educational and preaching roles over judicial ones. Sources do not indicate that scholars sought judicial positions from the state; instead, the state requested them to take these roles. Many accepted these positions after much hesitation, as their primary concern was the pursuit of knowledge.
The fifth reason is that scholars warned each other against taking up judicial roles. For instance, Mak-hul stated he preferred execution over becoming a judge. The more worthy a scholar was for the judiciary, the more he despised it. Jowad mentioned that some fled to other countries to avoid becoming judges. Abu Qilabah said, “If a swimmer falls into the sea, how long can he swim?” Al-Fudayl ibn Iyad advised, “If a man assumes the judiciary, let him allocate a day for judgment and a day for weeping.”
The final reason Jowad mentioned is the fear of judges accepting bribes, even though such cases are rare. Judges who received bribes were immediately dismissed. They believed that gifts and offerings to judges led to corruption and negatively impacted judicial integrity.
Judicial Independence
Abu Yusuf witnessed the Abbasids’ rise to power over the Islamic world in 750 AD while still in his youth. The Abbasids recognized the critical importance of the judiciary in stabilizing the state, as it was one of the four pillars highlighted by Caliph Abu Ja’far al-Mansur, the second Abbasid caliph.
Imam al-Kawthari mentions in his introductions that Caliph al-Mansur insisted on having the absolute authority to appoint and dismiss judges. Al-Nabahani Andalusi, in Al-Muraqaba Al-Ulya Fi Man Yastaheq Al-Qadha Wal-Futya, notes that the judiciary had declined during the reigns of Yazid bin Abdul Malik and his son al-Walid until the Abbasids came to power, emphasizing the judicial system and selecting prominent scholars for judicial roles.
The Abbasids benefited from the judicial administration and organization of their predecessors and added many improvements. For instance, during the reign of Harun al-Rashid, the Abbasids were the first to create the position of “Chief Judge” (Qadi al-Qudat), akin to a Minister of Justice, who appointed, dismissed, held accountable, and supervised judges in various regions, thus establishing an independent judiciary.
While some prominent imams refrained from assuming judicial roles, others, known for their piety and knowledge, saw it necessary to manage public affairs, ensure justice, and protect the weak from the strong. There is a rich record of these judges during the Abbasid era, led by Imam Abu Yusuf Yaqub ibn Ibrahim ibn Habib ibn Khunais al-Ansari al-Bajali. His great ancestor was Jabila al-Ansari, the father of the renowned companion Habib ibn Jabila, who wished to participate in the Battle of Uhud with the Prophet Muhammad but was deemed too young by the Prophet. He later took part in the Battle of the Trench and subsequent battles.
The Hanafi School of Thought
Al-Hajawi mentioned a statement by Abu Hanifa in his book “Al-Fikr Al-Sami in the History of Islamic Jurisprudence,” outlining his methodology in both jurisprudence and judiciary. He said, “I follow the Book of Allah, and if I do not find [guidance], then the Sunnah of the Messenger of Allah (peace be upon him). Suppose I do not find it in the Book of Allah or the Sunnah of the Messenger. In that case, I take the sayings of his companions … I take the saying of whomever I wish among them and leave whomever I wish among them, and I do not depart from their sayings to the sayings of others. However, if it reaches the [senior] Tabi’in like Ibrahim Al-Nakha’i, Al-Sha’bi, Ibn Sirin, and others … they were people who made their own Ijtihad, and so I make my own Ijtihad as they did.”
Based on this, Abu Hanifa and his school adopted seven principles for deriving rulings: the Quran, the Sunnah, the sayings of the companions, Qiyas (analogical reasoning, which is applying a verdict from a known case to a new case due to a common cause), Istihsan (juridical preference), Ijma (consensus), and valid, non-corrupt custom.
Jurisprudential schools began to take shape, especially the Maliki and Hanafi schools, as well as the Awza’i school in Syria and the Al-Layth bin Sa’d school in Egypt. Shortly after these events, the Shafi’i and Hanbali schools emerged. These schools, which were based on the principles of the Quran and Sunnah, the Ijtihad of the companions and Tabi’in, and the Ijtihad of their founders, became the primary sources for producing scholars of Sharia and jurisprudence, including judges such as Abu Yusuf Al-Ansari.
Abu Yusuf, a student of Abu Hanifa, embraced these principles and adopted them as his methodology later on. He became known for his extensive knowledge of the Sunnah and the Hadith of the Prophet Muhammad (peace be upon him) compared to his peers. He was recognized for his sharp intelligence in collecting, reading, and understanding the Hadith with their chains of transmission and texts and identifying their defects and authenticity, all within a single session.
Chief Judge Abu Yusuf Al-Ansari
Abu Yusuf Al-Ansari grew up in the early 2nd century AH / 8th century AD in Kufa, which, along with Basra, served as one of the two competing capitals of Iraq before Baghdad was built in 767 AD. He lived in extreme poverty, possessing nothing of worldly goods, but he was drawn to knowledge from a young age, despite his parents’ objections due to poverty and the need for a job that would provide an income.
In the book Akhbar Abi Hanifa wa Ashabihi by Al-Saymari, it is mentioned that Abu Yusuf said: “I was seeking hadith and fiqh while I was poor and in need. One day, my father came when I was with Abu Hanifa, and I went with him. He said, ‘My son, do not extend your leg with Abu Hanifa, for Abu Hanifa’s bread is roasted, and you need to earn a living.’ So, I refrained from seeking knowledge extensively and preferred to obey my father. Abu Hanifa noticed my absence and asked about me. When I attended his session after my absence, he asked me what kept me away. I said, ‘Earning a living and obeying my father.’ When I wanted to leave, he handed me a bag and said, ‘Use this.’ I found 100 dirhams in it. He said, ‘Stay in the study circle, and if this runs out, inform me.’ I stayed in the circle, and after a short period, he gave me another 100 dirhams and continued to support me without me ever asking or informing him of my needs until I became self-sufficient.”
Thus, Abu Yusuf accompanied Abu Hanifa from childhood for over thirty years until his teacher died in 768 AD. This companionship was a kind of intense passion. However, Abu Hanifa was not the only teacher for Abu Yusuf. Kufa, where the fourth caliph Ali ibn Abi Talib (may Allah be pleased with him) was buried, was teeming with knowledge and scholars, home to more than 1,500 Companions and thousands of their followers and scholars. Abu Yusuf met Imam Anas bin Malik, Muhammad bin Ishaq, and many prominent scholars from Hijaz.
There is no doubt that Abu Yusuf was influenced by the methodology of his teacher, Abu Hanifa, in jurisprudence, which was a unique approach. Sheikh Muhammad Abu Zahra, in his History of Islamic Jurisprudence and Contemporary Islamic Doctrines, said about him: “He came to them with a method in juristic thinking that was unprecedented, or at least no one took as much in it with independence in thinking and uprightness in perspective.”
Abu Yusuf’s Judiciary Method
Abu Yusuf Al-Ansari is considered the most prolific and diligent scholar among the founders of the Hanafi school, surpassing his teacher and peers like Zufar ibn al-Hudhayl and Muhammad ibn al-Hasan al-Shaybani, known as the companion of Abu Hanifa, among others. He authored numerous works in Islamic jurisprudence, including Al-Athar on legal evidence, “Ikhtilaf Ibn Abi Layla wa Abi Hanifa” on the differences between Ibn Abi Layla and Abu Hanifa, Al-Radd ala Siyar al-Awza’i on the response to Al-Awza’i’s legal positions, and Kitab al-Kharaj, his famous treatise on financial rulings written during his tenure as Chief Judge. The introduction of this treatise indicates that he did not flatter Caliph Harun al-Rashid or anyone else. He authored many other books, some of which have survived, while others have been lost in the annals of history.
In the introduction of his book Al-Kharaj, we see in Abu Yusuf’s advice to Harun al-Rashid the general features of his methodology and vision in the judiciary. He says: “This is what Abu Yusuf wrote to the Commander of the Faithful, Harun al-Rashid … Do not delay today’s work until tomorrow, for if you do, you will lose it … Shepherds will be accountable to their Lord just as the shepherd is to his Lord. So, uphold the truth in what God has entrusted to you … I advise you, O Commander of the Faithful, to safeguard what God has entrusted you with and to care for what He has placed under your responsibility … If the shepherd neglects this, he will lose it. If he is distracted by other matters, his downfall will be faster and more harmful to him … Beware of neglecting your subjects, lest their Lord takes His right from you.”
These guidelines were a precise method followed by Abu Yusuf in his judicial duties, ensuring the justice of judges and witnesses before their appointment. Notably, Abu Yusuf held many jurisprudential opinions that differed from his teacher, Abu Hanifa, on fundamental and subsidiary issues, which is a testament to his extensive independent reasoning.
In Introduction to the Study of Jurisprudential Schools, Ali Gomaa states that Abu Yusuf agreed with his teacher when he knew the evidence for the ruling through independent reasoning, not imitation. He also disagreed with him when the evidence showed a different ruling. Therefore, their agreement was not a sign of Abu Yusuf blindly following Abu Hanifa, but rather an instance of independent reasoning aligning with independent reasoning.
Because he was a distinguished scholar in the fields of Hadith, Fiqh, linguistics, the Quran, and Sharia, with an exceptional ability for interpretation and issuing fatwas, and as a graduate of Abu Hanifa’s school, Caliph Harun al-Rashid appointed him as the Chief Judge. He was the first to hold this title in Islamic history, entrusting him with the entire judicial institution of the Abbasid state and granting him the authority to appoint and dismiss judges in various regions and oversee grievance cases.
Unsurprisingly, Abu Yusuf Al-Ansari had significant opinions on reforming the judicial system structurally and methodologically, with a primary focus on the integrity of judges. Al-Khairabiti mentioned him in the book Al-Durra Al-Ghara’ in Advice to Sultans, Judges, and Emirs: “If the judge is unjust, all his rulings are rejected.” This is a well-known issue among scholars: whether a morally corrupt individual can serve as a judge. Some scholars believe his moral failings can be overlooked if the judge’s rulings are just and proper. However, Abu Yusuf insisted on the judge’s integrity and uprightness, rejecting the idea of a morally corrupt person serving as a judge.
Just as he is strict about the integrity of the judge and rejects their rulings if they are corrupt, he is also stringent about the integrity of the witness. He does not rely solely on public endorsements of their piety and justice; instead, he investigates them secretly to verify the witnesses’ truthfulness before making a decision in the case.
Waki’ al-Qadi mentioned in his book “Akhbar al-Qudat” that two litigants came to him, and one of them brought witnesses. “He named them after the imams of the mosques who were known for their integrity. When they testified before Abu Yusuf, he inquired about them and found them credible, which was done secretly.”
Abu Yusuf also rejected the testimony of those who exaggerated in their speech. It was mentioned in the book “Tabyin al-Haqa’iq Sharh Kanz al-Daqa’iq” with the commentary of Shalabi by Fakhr al-Zayla’i that al-Fadl ibn al-Rabi’ came to testify in Abu Yusuf’s presence in a case. However, Abu Yusuf rejected his testimony. Al-Fadl complained to Caliph Harun al-Rashid, and when Abu Yusuf was asked why he rejected the testimony, he said, “I once heard him say to the Caliph: ‘I am your slave!’ If he is truthful in being a slave, then a slave’s testimony is not accepted, and if he is lying, then the testimony of a liar is not accepted. If he does not mind lying in your presence, he will not mind lying in mine either.” The Caliph excused him for this reasoning.
Abu Yusuf adhered strictly to the text, prioritizing it over any established customs, especially when they conflicted. Therefore, he did not give much importance to the saying, “People have always done it this way.”
Al-Maghrawi explains this point in the Encyclopedia of the Stances of the Salaf in Doctrine, Method, and Education, stating that most people follow practices prohibited by the Prophet Muhammad (peace be upon him). Instead, one should adhere to the Qur’an, the Sunnah, and sound analogies, as relying on popular practices is not always justified, especially if those emulated did not practice them. It is agreed among Muslims that if a Sunnah of the Prophet is established, one must follow it over any other opinion.
To facilitate the work of judges and witnesses, Abu Yusuf accepted the use of remote written testimony. This involves witnesses to a crime or incident testifying before a local judge when they cannot reach the presiding judge on the same day. The local judge then sends this written testimony to the presiding judge, who must accept it, as explained by Al-Barkati in the Rules of Jurisprudence.
Imam Malik agreed with Abu Yusuf Al-Ansari on this matter, although they differed on the permissible distance. Some Hanafi scholars insisted on limiting the distance, a view also supported by Shafi’i and Ahmad in one aspect.
In summary, Abu Yusuf established a robust judicial institution that only accepted upright judges, monitored their performance, and sought to improve daily operations. He ensured that judges wore distinct attire, received fixed salaries suitable for their circumstances, and created a Court of the Chief Judge in Baghdad with a clear organizational structure, including roles such as the usher, clerk, judgment reviewer, and record keeper, akin to an archive. His significant contribution was ensuring the judiciary’s independence from early Abbasid caliphs, making judicial appointments exclusive to the Chief Judge.
Thus, we see a significant development in the judiciary’s methodology and institution during the time of Abu Yusuf Al-Ansari, a disciple of Abu Hanifa. He was the first Chief Judge in Islamic history, ensuring a separate ministry for judicial affairs and an archive for records, marking an essential evolution that influenced subsequent eras.
