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Sep 29, 2018 33 tweets 6 min read Twitter logo Read on Twitter
So with all this appalling #KavanaghHearing stuff, I figured I'd lull myself to sleep by tweeting a thread on the inherent virtue jurisprudence of Islamic law in it's appointment and regulation of judicial appointees.
So first, what does a judge do? A Qāḍī’s (Arabic word for judge) basic function is to resolve disputes and allocate rights to litigants.
The Qāḍī retains not only the power to interpret and express what the law is, but the authority to order it be applied by the executive.
In order to be appointed, the candidate for a judicial position had to possess be a free Muslim of legal capacity, be of sound mind, and possess high moral probity (ʿAdāla).
Remember these are rules written in a not too distant past when things were different, so they stipulated he be free - i.e. not a slave - else he be bound to someone who has control over him.
If a person were in debt or in the long term employ of another, the same applied.
Gender was an issue debated as well, with most early jurists making it a condition that a judge be a male, while the likes of Abu Hanifa, al-Tabari, and Ibn Hazm disagreed.
These debates rely heavily on medieval concepts of women’s access to education as well as the population’s overall literacy at that time. In my opinion, the arguments of those in favor of female judges are perhaps stronger and more universal.
one qualification that all jurists spent the most time discussing, it was a judge’s moral probity. Known in Arabic as ʿAdāla, it is a condition of general ethical conduct and virtue both before and after appointment.
In fact I know of no time restriction for this. The person nominated for appointment should have a stellar record. There is no "boys will be boys" excuse for being a crappy person in the past.
The basis of stipulating moral probity is the verse "Oh you who believe, when a sinner comes to you with news, then clarify it."
﴿ يَا أَيُّهَا الَّذِينَ آمَنُوا إِنْ جَاءَكُمْ فَاسِقٌ بِنَبَإٍ فَتَبَيَّنُوا ﴾ [الحجرات: 6].
This verse indicates an a priori necessity to investigate claims surround morality and upright character.
Moral probity was generally defined as: a character intrinsic to one's self that obliges one to maintian mindfulness of God, abstain from major sin and minor sin, and avoid morally suspect behavior even if permissible. (Tabsira 1/259)
In fact, the condition that a judge not be appointed unless he is known for this level of high moral probity is one there is consensus of all Muslim scholars.
What this means is that when you have more than one possible candidate of equal qualification, the ones whose probity is suspect are disqualified.
The only nuance to this is when an immoral person is appointed and there is no way to remove them, do their rulings maintain legal weight and the power of law? The majority of scholars said no, because they weren't issued with the proper pre-requisites
A minority allowed the immoral man to be a judge, but only the LEAST immoral one of the bunch, so that there is at least someone with higher probity than the others ending disputes
So what are these three things?
Major sins? Minor sins? Morally suspect actions? Let's talk about it a bit.
Obviously the most major sin of all in Islam is to associate others alongside God in worship (shirk). The assumption however is that the judge is already a Muslim, but were he known to commit such an act after Islam he would be disqualified.
Additionally, the major sins of Islam have a rule: Any act for which there is a prescribed punishment for in this life, or a divine retribution for in the hereafter.
So for example, adultery and fornication are sins that fulfill both. They are punished by stoning or flogging in this life, and in Hell there are specific punishments such as roasting in a pit at the lowest part of hell.
Another major sin in Islam is consumption of intoxicants. Those that are caught for public drunkenness are flogged publicly, and in the next life they'll drink from a river of pus.
Any form of sexual assault that results in penetration would be a major sin that results in stoning, lashing, or both.
Sexual assault that does not included penetration is one of those sins that is left to the Court's discretion to punish as it sees fit.
If public enough of a crime, the judge can order the same punishment as fornication or adultery to be implemented as a deterrent for other people that may engage in the same thing.
It should be mentioned that one definition of major sins is that it is every act that is followed by mention of being cursed by God, earning his anger, or deserving hell. (Majmu al-Fatawa 11/650)
That said, it's important to recall this verse here
(إِنَّ الَّذِينَ يَرْمُونَ الْمُحْصَنَاتِ الْغَافِلَاتِ الْمُؤْمِنَاتِ لُعِنُوا فِي الدُّنْيَا وَالْآخِرَةِ وَلَهُمْ عَذَابٌ عَظِيمٌ)
[Surat An-Nur 23]
Indeed those that accuse chaste, heedless, believing women are cursed... this life and the next, and they will have a painful punishment."
A priori are those that accost women sexually, as acts against them are worse that statements against them, and usually result from the lack of value men place on women.
Minor sins are those things that don't have a specific punishment for in this life or the hereafter, but are nevertheless prohibited.
For example the Hadith "The eye fornicates, and it's fornication is looking..." (Bukhari/Muslim)
So while looking at someone one shouldn't is forbidden, there's no specific punishment ethereal or earthly for it.
Lastly are those things that are morally suspect, even though they may be permitted. For example, one may fine out with colleagues from work, and unbeknownst to her a co-worker order an alcoholic beverage.
While it is permissible to dine in a restaurant, it may become morally suspect to remain there when alcoholic beverages are being served in proximity, even if it's not at the same table.
This is a very elastic category and one that is based on custom more than text, but nonetheless draws questions about ones own actions simply due to the environment.

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More from @joebradford

Oct 1, 2018
Planning a course on Riba (interest) in classical Islamic thought and modern transactions. In this thread I'll be tweeting out the topics in no particular order, later I'll collate them all and put out a curriculum. #RibaCourse
Definition of Riba, primary texts, history of it's use and subsequent prohibition
Rationale behind prohibition of each type
Read 28 tweets
Sep 27, 2018
Is a lot of nuance that goes into dealing with complex social issues.
How do we talk about abuse? How do we talk about the roles of people involved in an abusive situation?
It is entirely unproductive for us to never address the roles that each individual plays in uncovering, counseling, & even adjudicating instances of abuse.
These things must be discussed but in a tone & a manner that speaks to those who would play a parts in the three roles here.
They need to know about the ethics values and processes that go into treatment of abuse. This is all preemptive information that specialist must be empowered with in order to appropriately deal with situations they face
Read 12 tweets
Sep 18, 2018
This is a very good article about the benefits of pre-marital counseling.
In this thread I'll mention a few other things I think people considering marriage need to consider…
Find a pre-marital counseling program offered by a LICENSED practitioner who is TRAINED in a SPECIFIC method of pre-marital counseling.
Let me explain a little more what I mean by these capitalized word.
LICENSED: A license provides a baseline. It sets a standard. You can know that your counselor has experience and education in the GENERAL field which isn’t guaranteed with unlicensed providers.
Read 13 tweets
Sep 3, 2018
This is a good video on the general difference btw religious studies & theology by
@andrewmarkhenry on Religion for Breakfast.
He touches on a few points I'd like to expand on a little
Dif btw religious studies & theology:
- a Muslim theologian would ask "Why do we reject idolatry?" Then substantiate this from primary texts.
- a religious studies scholar specialized in Islam would say "What in 7th century Arabia gave rise to Muhammad rejecting idolatry?"
Note that the Muslim theologian is not primarily concerned with historical questions, but textual ones; the religious studies scholar the opposite.
For the former, history is not a primary cause for theology/belief, revelation is. Meaning each field is based on diff assumptions.
Read 13 tweets
Aug 21, 2018
I'd like to add 3 points here:
1 - This is one position taken by scholars, and it's related directly to the manner in which the Islamic calendar is determined: Is it a local calendar or one that corrects based on global sighting?
2 - There is an impetus for Arafa and Eid alAdha being connected, as is narrated from Aisha in Bayhaqi's Ma'rifah, in Tirmidhi's Sunan, as well as others that "Arafah is the day you stand at Arafah and Adha is the day you sacrifice." As well as "Arafa is the day the Imam stands."
3- The problem here is not a crisis of difference, as this has always existed. Ibn Hajar famously records one incident in Inbā al-Ghimr. The problem is two-fold; a crisis of knowledge and of character.
Read 7 tweets

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