The Judicial Policy of Umar

Lessons from Umar ibn al-Khattab – Umar’s Letter to the Judges

I noted in my previous article on Umar ibn al-Khattab RA that he is considered as the founder of Fiqh (Islamic jurisprudence/ Islamic judicial system) by most historians of Islamic history. This credit is due based on the fact that he, being one of the closest companions of the Prophet Muhammad PBUH, not only had a very nuanced understanding of the of the divine laws and Sunnah (tradition & practices of the Prophet PBUH), but also on many occasions reasoned with the Prophet on his decisions of battlefield and administrative nature. This approach of his later become the founding principle of Qiyas (Analogical Reasoning) for determining rulings on newly encountered matters in Fiqh (Jurisprudence).

Umar is considered as one of the most astute administrators amongst his ‘preceding and succeeding caliphate peers’, whose passion for justice prevailed over all his decisions and actions. He is reported to have said: “account yourself before you are brought to account and measure your actions before they are measured”, and “let not the fear of people influence you in making decisions and passing judgments, but let it be your fear of God”.? Within a few years of taking on the mantle of the caliphate, he expanded the realm of the nascent Muslim state in all four directions. He soon realised that an effective administration of this rapidly growing state could not be achieved if all decisions were to be made from the seat of power in Medina. He quickly embarked on the path of establishing a governance structure that would decentralize and democratize (relative to those times) the power base. He believed that concentration of power leads to its abuse and distancing the leader of the state from its people.

In pursuant of an effective and efficient governance of the growing realm of the Muslim state he divided the governance structure into four branches: the executive, the judiciary, the legislature, and the military. ?The independence of judiciary is amongst the most striking departure from the precedence of the past as the role of a judge was more often than not held by the ruler himself. Thus, the office of judge was one of the positions that came under the caliphate. However, Umar subordinated that office to his carefully handpicked deputies and appointed them as judges for the various provinces of the state. ?

Upon appointing the first unit of judges to different provinces, he wrote this famous letter: (reproduced here from the English translation of Muqaddimah by Abd al-Rahman Ibn Khaldun – one of the greatest social scientists of the Middle Ages, and considered by many to be the father of historiography, sociology, economics, and demography studies).

“The office of judge is a definite religious duty and a generally followed practice.

Understand the depositions that are made before you, for it is useless to consider a plea that is not valid.

Consider all the people equal before you in your court and in your attention, so that the noble will not expect you to be partial and the humble will not despair of justice from you.

The claimant must produce evidence; from the defendant, an oath may be exacted.

Compromise is permissible among litigants, but not any agreement through which something forbidden would be permitted, or something permitted forbidden.

If you gave judgment yesterday, and today upon reconsideration come to the correct opinion, you should not feel prevented by your first judgment from retracting; for justice is primeval, and it is better to retract than to persist in worthlessness.

Use your brain about matters that perplex you and to which neither Quran nor Sunnah seem to apply. Study similar cases and evaluate the situation through analogy with them.

If a person brings a claim, which he may or may not be able to prove, set a time limit for him. If he brings proof within the time limit, you should allow his claim, otherwise you are permitted to give judgment against him. This is the better way to forestall or clear up any possible doubt.

All Muslims are acceptable as witnesses against each other, except such as have received a punishment provided for by the religious law, such as are proved to have given false witness, and such as are suspected (of partiality) on (the ground of) client status or relationship, for God, praised be He, forgives when sworn testimony is rendered and postpones (punishment) in face of the evidence.

Avoid fatigue and weariness and annoyance at the litigants.

For establishing justice in the courts of justice, God will grant you a rich reward and give you a good reputation.

Farewell.”

From this brief, simple yet deeply insightful letter have been derived numerous procedural incidents for the administration of justice ever since it came into being. ?Allama Shibli Nomani – an eminent thinker, scholar, and one of the architects of modern Islamic education in India and founder of Shibli National College, Azamgarh (UP, India) in 1883, condensed them in eight principles, reproduced as under:

1. The Judge, in view of his position as judge, should treat all persons alike.

2. The burden of proof lies, as a rule, on the plaintiff.

3. If the defendant has no proof or witnesses, he should be made to take an oath.

4. The parties to a suit can compromise in all cases except (when) such compromise is opposed to the law.

5. The Judge can revise his own judgment of his own will.

6. A date should be fixed for hearing a suit.

7. If the defendant does not defend himself, the case may be decided ex-parte.

8. Every Muslim is fit to give evidence, except one who has been judicially punished or about whom it has been proved (that) he has borne false witness.

Umar knew that carrying out these responsibilities from his Judges required the highest level of integrity, courage, and probity. He, therefore, ensured that these men were highly paid regular salaried employees of the state so as to avoid any temptation on their part. He also knew that for their decisions to be given credibility and respect, the judges had to be, and appear, respectable men whose dignity was to be guarded by high pay among others. After all he prohibited them from indulging in trade and any other economic activities that would lead them into conflict of interest or compromise of justice.

Umar was very concerned about fairness and extremely strict with the administration of justice. Equality before the law was highly upheld. For him the strength and credibility of the judicial system was dependent on by the justice it dispenses. He practiced what he preached. He himself appeared before judges in minor disputes with the local people.

One such incident is reported when a plaintiff (a commoner) lodged a suit against him in the court in Medina. Umar thus appeared as a defendant. When the judge showed him honour, ‘Umar said, “This is your first injustice”. He then sat down beside the plaintiff. The plaintiff had no valid proof and Umar denied the charge. According to procedure the plaintiff desired that Umar be put under oath. The judge requested the plaintiff to waive his right of oath on the ground that Umar was a man of dignity, being the commander of the faithful (head of the state). Umar was annoyed by this partiality upon which he is reported to have addressed the judge: “If ‘Umar and any other man are not equal in your eyes, you are not fit for the post of a judge”.

The essence of these principles in judicial procedures are followed even today in most courts of law across the world.