Back More
Salem Press

Table of Contents

See Also

Al-Māwardī’s “On Qāḍīs”: Document Analysis

Milestone Documents in World History

Al-Māwardī’s “On Qāḍīs”: The Full Text

by Al- Māwardī

Nobody may be appointed to the office of qāḍī who does not comply fully with the conditions required to make his appointment valid and his decisions effective. They are seven in number.

1. The first condition is that he must be a man. This condition consists of two qualities, puberty and masculinity. As for the child below puberty, he cannot be held accountable, nor can his utterances have effect against himself; how much less so against others. As for women, they are unsuited to positions of authority, although judicial verdicts may be based on what they say. Abu Hanīfa said that a woman can act as qāḍī in matters on which it would be lawful for her to testify, but she may not act as qāḍī in matters on which it would not be lawful for her to testify. Ibn Jarīr at-Tabarī, giving a divergent [shādhdh] view, allows a woman to act as qāḍī in all cases, but no account should be taken of an opinion which is refuted by both the consensus of the community and the word of God. “Men have authority over women because of what God has conferred on the one in preference to the other,” meaning by this, intelligence and discernment. He does not therefore, permit women to hold authority over men,

2. The second condition is intelligence, the importance of which is universally recognized. It is not enough to have the intelligence which qualifies for legal responsibility [taklīf], that is to say, the use of the five necessary senses. He must also have discriminating judgment and great perspicacity, be far from forgetfulness and negligence, and have sufficient acumen to clarify difficulties and resolve obscure cases.

3. The third condition is freedom, since the slave, having no authority over himself, cannot have authority over others. Moreover, since his state of slavery makes his testimony unacceptable, all the more does it prevent his holding authority and giving valid judgments. The rule is the same for one whose freedom is incomplete, such as the slave whose liberation will be completed by the death of his master [mudabbar] or by contract [makātab], or the partial slave. But the state of slavery does not prevent a man from giving juridical rulings [fatwā] or from relating traditions, since neither of these involves the exercise of authority. When freed, he can act as qāḍī, though bound by the obligations of patronage [walā’], because descent [nasab] is not taken into account in conferring judicial authority.

4. The fourth condition is Islam, because this is a necessary condition for the right to testify and because of the word of God, “God will not give the unbelievers the advantage over the believers.” It is not lawful for an unbeliever to exercise judicial authority over Muslims or over unbelievers. Abū Hanīfa said that an unbeliever may be appointed to dispense justice among his coreligionists. Though it is common practice for rulers to appoint unbelievers in this way, it is an appointment as chief or head and not an appointment conferring judicial authority. His decisions bind them because they voluntarily submit to him, not because he has binding authority over them, and the Imam does not assent to his rulings in judgments rendered by him among his coreligionists. If his people do not resort to his jurisdiction, they are not compelled to do so, and they will then be subject to Islamic judicial authority.

5. The fifth condition is rectitude [‘adāla], which is a requirement for any position of authority. This means that a man speaks truth, is manifestly trustworthy, virtuously refrains from forbidden things and avoids sin, is beyond suspicion, can be trusted in both approval and anger, and conducts himself as befits a man like him in both religious and worldly matters. The fulfillment of all these requirements constitutes rectitude, which qualifies him to testify and to exercise authority. If any of these qualities is lacking, he may neither testify nor exercise authority; his words shall not be heard nor his judgment executed.

6. The sixth condition is soundness of sight and hearing, so that by their means he may determine rights, distinguish between plaintiff and defendant, and differentiate between those who affirm and those who deny in such a way that the difference between truth and falsehood may be clear to him and that he may know the speaker of truth from the liar, If he is blind he is disqualified to exercise authority, but Mālik considers that a blind man may be a qāḍī just as he can bear witness. As to deafness, there are the same differences of opinion as for the Imamate. Soundness of limb is not a requirement, though it is for the Imamate. A chronic invalid may therefore sit as qāḍī, although freedom from physical defects gives greater dignity to those exercising authority.

7. The seventh condition is that he must be learned in the rules of the Holy Law, his knowledge covering both general principles and specific applications.

The sources of the roles of the Holy Law are four:

1. Knowledge of God’s book, so that he has a sound understanding of the rules contained in it, both abrogating and abrogated, both precise and equivocal, both general and specific, and both unexplained and clearly interpreted.

2. Knowledge of the authentic tradition [Sunna] of the Prophet of God, may God bless and save him, of his words and his deeds, how they were transmitted, by many or by few, which are genuine and which false and which refer only to a specific occasion and which are of general application.

3. Knowledge of the interpretations of the first generation of Muslims, whether unanimous or divergent, conforming to the consensus or exercising independent judgment [ijtihād] in cases of disagreement.

4. Knowledge of analogy, the method used to deduce implicit consequences from explicit and agreed principles, so as to attain the knowledge required to settle law-suits and to distinguish true from false.

If he masters these four sources of the rules of the Holy Law, he becomes a mujtahid in religion, and is allowed to act as muftī or qāḍī, and may be asked to act in either capacity. But if he is deficient in them or in any part of them, he cannot be a mujtahid and may not act as muftī or qāḍī, and if despite this he is appointed as a judge and gives decisions, whether right or wrong, his appointment is invalid and his decisions, even if they are sound and just, are rejected, and the sin for whatever he adjudges falls both on him and on the one who appointed him as qāḍī.

Essential Quotes

“As for the child below puberty, he cannot be held accountable, nor can his utterances have effect against himself; how much less so against others. As for women, they are unsuited to positions of authority, although judicial verdicts may be based on what they say.”

(Condition 1)

“The slave, having no authority over himself, cannot have authority over others. Moreover, since his state of slavery makes his testimony unacceptable, all the more does it prevent his holding authority and giving valid judgments.”

(Condition 3)

“The fourth condition is Islam, because this is a necessary condition for the right to testify and because of the word of God, “God will not give the unbelievers the advantage over the believers.” It is not lawful for an unbeliever to exercise judicial authority over Muslims or over unbelievers.”

(Condition 4)

“The sixth condition is soundness of sight and hearing, so that by their means he may … distinguish between plaintiff and defendant, and differentiate between those who affirm and those who deny in such a way that the difference between truth and falsehood may be clear to him and that he may know the speaker of truth from the liar.”

(Condition 6)

“The sources of the rules of the Holy Law [include] … knowledge of analogy, the method used to deduce implicit consequences from explicit and agreed principles.”

(Condition 7)

Citation Types

Type
Format
MLA 9th
Māwardī, Al-. "Al-Māwardī’s “On Qāḍīs”: The Full Text." Milestone Documents in World History, edited by Brian Bonhomme & Cathleen Boivin, Salem Press, 2010. Salem Online, online.salempress.com/articleDetails.do?articleName=mdwh_112b.
APA 7th
Māwardī, A. (2010). Al-Māwardī’s “On Qāḍīs”: The Full Text. In B. Bonhomme & C. Boivin (Eds.), Milestone Documents in World History. Salem Press. online.salempress.com.
CMOS 17th
Māwardī, Al-. "Al-Māwardī’s “On Qāḍīs”: The Full Text." Edited by Brian Bonhomme & Cathleen Boivin. Milestone Documents in World History. Hackensack: Salem Press, 2010. Accessed December 14, 2025. online.salempress.com.