What if a kāfir judge says to one of us,
‘I order you to divorce your wife’?
On a recurrent basis, Muslims in South Africa are drawn into the extravagant controversy on whether to support the anti-Islamic "Muslim Marriages Bill” baked by the secular lawyers attached to the national government of that country.
In the main, the responses from a constellation of numberless Islamic organizations, groupings, sects, ad hoc alliances, impromptu councils and so, have been of a political nature.
It should be emphasized that, politically speaking, the only true Islamic voice could only be one emanating from a unified leader, from an Emir for all the Muslims of South Africa.
More significantly, however, the issue is, first and foremost, a juristic issue, i.e. an issue of the fiqh, as such to be dealt with by informed fuqahā’, not by every Tom Dick and Harry within the community of Muslims.
Had there been such a unifying leader, he would have consulted such experts in jurisprudence before issuing his own decision on the matter of how to respond to the proposed enactment of the said Bill.
One of the leading scholars of fiqh from currently war-torn Libya is Dr. al-Gharyānī, a recognized ‘ālim respected by all and sundry. He has personally tackled the very same mas’alah confronting the South African Muslims as a result of the proposed Bill.
Let us imagine him being summoned to the offices of the Islamic Emir, receiving his request to shed legal light on the matter, and setting out his reply as per what he himself wrote in one of his books [His actual words are in the main body of the under-mentioned text. My elucidating remarks are found inside square brackets]
Divorce issued by a non-Muslim judge:
Q: Is a divorce issued by a non-Muslim judge in a legal dispute between two Muslims, or between a Muslim husband and his non-Muslim wife, legally binding if the husband is not consenting to such divorce and has never personally pronounced it?
A: A Muslim is not allowed to institute legal proceedings before a non-Muslim judge, since one of the conditions for being a judge is that a person should be a Muslim. This condition is one that is unanimously agreed upon by the people of knowledge in Islam, based on His statement, may He be Exalted: «Allah will not give the kuffār any way against the mu’minūn» (Sūrah an-Nisā’: 141).
Al-Bājī [the great polymath from Islamic Spain] had this to say on the topic: “As for paying regard to the judge’s identity as a Muslim, there is no disagreement among the Muslims that such a requirement is imperative” [Cf. his famous commentary on Al-Muwatta’ titled Al-Muntaqā].
As for Mawāhib al-Jalīl (a luscious commentary by the Makkan savant al-Hattāb on Khalīl's renowned abridgment of Mālikī fiqh), we find therein the following: “If a person who does not meet all the criteria for a political office (wilāyah), including being a Muslim, is appointed to it, no such appointment comes to pass. Likewise, if any one of those conditions of eligibility [including Islam] ceases to subsist during the tenure of such office, the appointment thereto ipso facto falls away”.
[It is common knowledge among all scholars of the Dīn that membership of the judiciary represents a political office or wilāyah].
If a Muslim is embroiled in a legal dispute with other than a Muslim, the two of them are not entitled to take the matter up before a judge who is not the Muslim judge. (Imām) Ash-Shāfi`ī, may Allah the Exalted show mercy to him, said in the book Al-Umm: “Unless the People of the Book and the Muslims engage in litigation with one another. If they do so, no one but a Muslim can rule for or against another Muslim”.
If we turn to Al-Muhallā [= the main work on jurisprudence by the most prominent scholar of the now defunct Literalist (Zāhirī) School], what we unearth in this regard is set out here under: “No one is lawfully permitted to be in charge of the judiciary and the issuing of legal rulings concerning any affair of the Muslims and the non-Muslims who have entered into a covenant of safety with them (Ahl adh-Dhimmah), unless he is Muslim”. (Abū Bakr) Ibn al-‘Arabī [a great Mālikī judge from al-Andalus] said: “We have already clarified that if a legal dispute arises between a Muslim and a non-Muslim covered by a covenant of safety with the Muslims, the judicial determination thereof is reserved for the Muslims. The Ahl adh-Dhimmah have no right to issue judgments in that regard” [Cf. his celebrated commentary on the Qur’ānic āyāt encompassing legal judgments, Ahkām al-Qur’ān]. In Ibn Farhūn’s Tabsirah al-Hukkām [a work consecrated to judicial procedure by the said Mālikī scholar from al-Madīnah], we come across a section of the book under the heading “The prohibition of giving effect to a judgment issued by a judge belonging to Ahl adh-Dhimmah”.
Then there are the under-quoted words scooped from the Fatāwā of ar-Ramlī: “He was once asked, ‘Does a judicial pronouncement issued by a woman or by a kāfir have legal effect if they have been forcibly appointed to the judiciary [by a degenerate Muslim ruler], which is the position enounced in the commentary called Sharh ar-Rawdah, namely, that the legal effectiveness of a judicial pronouncement by such a kāfir judge is the logical corollary of what is stated by the author of the basic text commented upon, in consonance with his root position, just as the legal effectiveness of a judicial pronouncement by such a female judge is the necessarily implicit corollary of what is set out in Al-Minhāj, nay, what its author explicitly endorsed in his commentary thereof when he quoted from the formal legal opinions (fatāwā) given by Ibn ‘Abd as-Salām [who is nicknamed the Sultan of the ‘ulamā’], or is the position that neither such pronouncement has legal force, as contended by al-Adhra`ī [a virtuous Shāfi`ī faqīh from Greater Syria] and others, who submitted that such legal ineffectiveness was the outwardly ostensible position, conforming with Al-Minhāj, as the latter text qualified the legal effectiveness of any such pronouncement by the requirement of the judge being a Muslim?’.
His reply to the aforesaid question was as follows, ‘The judicial pronouncement of a (Muslim) woman appointed in terms of the aforesaid scenario is given legal effect to, as per the fatwā issued by Ibn ‘Abd as-Salām, but not the judicial pronouncement of a kāfir thus appointed, due to the crystal-clear differentiation between the two [such a female judge being in fact Muslim]. That is so by virtue of His statement, Exalted is He: «Allah will not give the kuffār any way against the mu’minūn» (Sūrah an-Nisā’: 141). Al-Ghazālī [a great Shāfi`ī jurist in his own right] had in fact said the following in his middle-sized jurisprudential work Al-Wasīt: “The fulfillment of all these conditions has become impossible in our age, as this is an epoch devoid of any independent mujtahid who exercise his own legal reasoning so as to extract the rulings of the Law. The correct stance is thus to give effect to the judicial decisions of any person whom a powerful Sultan has appointed, even if such member of the judiciary happens to be ignorant or morally depraved. The rationale behind such stance is to avoid the impossibility of securing the empowerment of people’s interests”. Ibn as-Salāh [= Imām Abū ‘Amr ‘Uthmān] set out the following clarifying remark in his text on the problematic views which are contained in al-Ghazālī’s Al-Wasīt, i.e. Mushkil al- Wasīt: “What al-Ghazālī mentioned therein concerning the ummah’s unanimous consensus on giving legal effect to the judicial determinations by unjust Caliphs and to the judgments issued by those appointed to settle disputes by such unjust rulers, is construed as applying to such scenario specifically, but it is refuted as regards the situation where the Sultan appoints a kāfir judge, since no legal force is conferred on the judgments issued by a kāfir judge, even in a state of emergency [where there is a scarcity of qualified Muslim judges and a general departure by the leadership of the community from the tenets of justice]”.
Accordingly, the Muslim cannot be subjected to the judicial decisions of a non-Muslim judge.
Holding onto such ruling of the Law, however, is impossible to actualize in respect of present-day Muslims who legally reside, in a way permitted by the sharī`ah, in the lands of kufr [= those ruled, that is, by kuffār]. They are bereft of a Muslim ruler who is capable of executing the Islamic judgments, and relinquishing litigation altogether is not a feasible option, for then people's interests would be voided of protection, people would endlessly squabble with one another without any outlet of redress, mutual injustices would prevail, rights would be laid to waste, and the sanctity of people’s safety would be denied by the reciprocal spilling of blood.
Muslims living in such a context, therefore, cannot dispense with the need to submit to judgments.
However, the judgments which are passed on them is those countries are judgments based on pure authority and political hegemony, as such distinguished from judgments based on an Islamically legitimate judicial office. In the works penned by ar-Rūyāni [a Shāfi`ī jurist and judge from Tabarestan, who authored Rawdah al-Ahkām wa-Zīnah al-Hukkām] and al-Māwardī [the versatile master from al-Basrah, likewise a Shāfi`ī ,whose writings in one of his areas of specialization, political science, included the seminal Al-Ahkām as-Sultāniyyah, Tashīl an-Nazar wa-Ta`jīl az-Zafar and Qawānīn al-Wizārah], may Allah the Exalted have mercy on both of them, one finds corroboration of what we have just stated. The pair of them, in fact, has stressed what follows with regard to the custom followed by Muslim rulers, at some points in time, to appoint a judge from Ahl adh-Dhimmah to pass rulings on Muslims in legal disputes: “That is mere political mastery and hegemony. It is not the appointment to a judicial or similar office in terms of the Law” (Cf. Mughnī al-Muhtāj, a revered text on Shāfi`ī fiqh by al-Khatīb ash-Shirbīnī).
A consequential spin-off of the fact that those are judgments based on mere political authority and factual rule, rather than judgments issued by an Islamically appointed judiciary, is that they are not binding on those concerning whom they have been pronounced, unless and until they personally and voluntarily abide by them. In addition, the Muslims are not bound to initiate recourse to such decision-makers by the institution of legal proceedings before them.
By virtue of the aforesaid, if, in one of the lands of kufr, a judgment is passed by a non-Muslim judge over a Muslim ordering the latter to divorce his wife, and this Muslim litigant does not intend to divorce her nor has pronounced any divorce against her, the said order issued by the non-Muslim judge is not binding on him, inasmuch as the order of such non-Muslim judge is not classifiable as a “legal judgment” in the eyes of Islam, given that the kāfir cannot be legitimately appointed over a Muslim in the Law, as he lacks one of the essential prerequisites for eligibility to that post (= being a Muslim), and Allah knows best.
One of the essential requirements for being a judge in legal disputes involving Muslims is the judge’s profession of Islam. A kāfir is excluded at source, even if he is one enjoying a pact of safety extended to him by the Muslims.
That has been the practice of Muslims throughout the brightest phases of their history.
In our darkest historical ages, concessions had to be made for ignorant and morally depraved Muslim judges being appointed by unjust Muslim rulers, and even for the appointment of Muslim females to the judiciary, but not for the appointment thereto of kāfir judges, regardless of the prevailing devolution from Islamic ideals.
That was so even in times of emergency.
Muslims living in countries ruled by kuffār cannot dispense altogether with participation in the legal process and the administration of “justice”. However, when they do so, they do not submit to what Islam recognizes as being true “judicial decisions” validated by the establishment of a valid office (wilāyah) to that effect, only to determinations emanating on the basis of the pure authority of existing political hegemony by kuffār within their lands.
Because of the nature of such pronouncements deriving their authoritative imprint from mere political force, their binding character is not existent per se, but is dependent on the Muslim subject accepting to be bound thereby in a matter which concerns the Muslim’s own life.
If that condition is missing, as with the instance of an unwilling Muslim being ordered by a kāfir judge to divorce a wife he has taken as spouse in the Name of Allah, he is not bound by such order, and the woman still remains his wife in the eyes of Allah for all intents and purposes.
The Muslim Marriages Bill is thus undiluted kufr, and directly contravenes the fiqh as championed by all the four madhāhib of Ahl as-Sunnah. A Muslim eager to support it is free to do so, but he should then accept the fact that is adhering to kufr in that connection.
We would like to add, to what the venerable Dr. al-Gharyānī has highlighted, that it is possible, in such countries as South Africa, to regulate legal disputes between Muslims, in respect of most spheres of life, in terms of the sharī`ah of mercy, through the utilization of the arbitration mechanism.