Can American Imams Issue Binding Rulings?

When I was studying Islam in Medinah, the question of this article was one that burned deep into my mind.

We learned the difference between the statement of a mufti and the ruling of a qāḍī. Muftis can tell questioners what they must do with respect to worship and living. But if someone does not feel their fatwa is appropriate for their situation, they might visit another mufti. The qāḍī primarily concerns himself with rights, labels, and the consequences thereof. And once their decision is made, it is considered binding upon all involved. If someone doesn’t like a decree, they would be sinful for discarding it. It was like the difference between a professor of law and an actual judge on the bench.

In an Islamic country, that judge’s decree may be enforced with the help of police, financial institutions, and so forth.

But what about in America? Could any of that, even just the ruling, be issued? Would I, as a future imam, be liable and tasked for this?

I remember asking that same question to one of the senior American students of knowledge. He plainly said, “You may have to.”

That answer perplexed me. But how could I when I don’t have the authority? Was I supposed to call up a judge in Saudi Arabia every time a divorce case came to me? Could that judge’s rulings apply to a land where he has not been appointed to decide between? Should I ask the king himself or a prince or an embassy to appoint me as a judge?? Lots of questions like this swirled in my mind.

And while the primary reason I wanted to understand the answer was from a legal Sharia perspective, I also knew I might need a proper process to point people to when they would inevitably say, “You can’t do that! You don’t have the right!” If they assumed what I doubted. After all, in Muslim countries, no one would think to go to a masjid imam for a divorce when all he does is lead prayers, teach children Quran, and maybe read a Friday sermon that was issued by an Islamic ministry.

When studying fiqh, we learn about judicial matters and judgments, rulings of Islam that seemed largely unpracticable in the American context. We were studying reminders of what would be possible and beneficial in an Islamic country with unhindered Islamic courts.

The quḍāt judges of such courts receive the authority to make their pronouncements from appointment by the sulṭān or imām, executive authority. The Muslim ruler is charged with setting up Sharia courts with qualified justices who will strive to objectively issue the ruling of Allah in any dispute presented to them. But with no Muslim ruler, those appointments could not be made. Right?

For the American masjid, the imam may be a volunteer who simply steps into that position for the duration of a prayer because he knew the most Quran. For other masajid, the imams are appointed by a board of volunteers of varying backgrounds, and each masjid is its own entity. No Islamic ministry authorized by any government gave any acknowledgment to that masjid leadership, whether religious, financial, or logistical.

So, these imams and communities are completely disconnected from the only authority that could grant such agency.

But this is not the first time in post-hijrah Islamic history that we have seen such situations.

During the Reconquista, Muslims in Spain found themselves without that same recognized Islamic central authority appointing judges. The predominant legal school in Andalus and the Maghrib was of course the Maliki madhab. Hence, their scholars were the first to codify the Islamic qā`idah maxim, which is repeated most often in their works:

جماعة [عدول] المسلمين تقوم مقام القاضي

jamā`at [`udūl] al-muslimīn taqūm maqam al-qāḍī

The community of [just] Muslims stand the position of judge[1]

But what does this principle mean?

It means the recognized trusted community leaders, even if devoid of an empowered emir, has the collective power to be that needed and otherwise absent qāḍī judge. In practice, they would acknowledge someone, or some persons among themselves, as that judge for their disputes – whether one judge or a jury of several. The word jamā`at in this case refers to the trustworthy people of knowledge, even if only one exists. Al-Ṣāwī al-Maliki (d. 1241 ah) wrote:

“فإن لم يكن حاكم فجماعة المسلمين العدول يقومون مقامه في ذلك، وفي كل أمر يتعذر فيه الوصول إلى الحاكم العدل، والواحد منهم كاف“

“If there is no ruler, then the trustworthy Muslim jamā`at takes his place in that, in every matter where reaching the just ruler is not feasible, and one from among them is sufficient.” [Buġyat al-Saalik, v 2, p45][2]

There is no restriction, from a pure fiqh perspective, of what such justices may rule on. Al-Wansharīsī al-Maliki (d. 914 ah) stated,

“أحكام الجماعة الذين تستند إليهم الأمور عند عدم السلطان نافذ منها كل ما جرى على الصواب والسداد في كل ما يجوز في حكم السلطان.”

“The rulings from the jamā`at that the affairs are given to when the sultan is absent are executed from them; everything given correctly and accurately in all that it is permissible for the sultan to judge in.” [al-Mi`yār 1/102]

And from the other schools, I have chosen a small selection of quotes from many.

Ibn  ʿᾹbidīn al-Ḥanafī (d. 1252 ah) states:

“وأما بلاد عليها ولاة كفار فيجوز للمسلمين إقامة الجمع والأعياد، ويصير القاضي قاضياً بتراضي المسلمين، فيجب عليهم أن يلتمسوا والياً مسلماً.”

“And as for lands over which are disbelieving [rulers], then it is permissible for the Muslims to establish jumuahs and Eids, and the qāḍī justice becomes a justice by the acceptance of the Muslims, and it is obligatory upon them to find a Muslim leader.” [Ḥāshiyah 4/308]

From the Shafi`Madhab, Imam al-Juwayni (d. 478 ah) wrote regarding the necessity of judges, no matter the time or place,

“فإذا خلا الزمان عن السلطان وجب البدار على حسب الإمكان إلى درء البوائق عن أهل الإیمان… وإذا لم یصادف الناس قواما بأمورهم یلوذون به فیستحیل أن یؤمروا بالقعود عما یقتدرون علیه من دفع الفساد، فإنهم لو تقاعدوا عن الممكن عم الفساد البلاد والعباد.”

“If a time is absent of a sultan, then it becomes immediately obligatory as possible to repel the misfortunes from the people of faith… and if the people have not found a leader of their affairs that they can take recourse to, then it is impossible that they be commanded to retreat from what they are able to do of repelling vice, because if they recoil from doing what is indeed possible, then corruption will overwhelm the lands and the servants.” [Ghiyāthī p. 387]

From the Ḥanābilah, Qāḍī Abū Ya`lā (d. 458 ah) stated:

“ولو اتفق أهل بلد قد خلا من قاض، أجمعوا على أن قلدوا علیهم قاضیا نظرت، فإن كان الإمام موجودا بطل التقلید، وإن كان مفقودا صح، ونفذت أحكامه علیهم.”

“If the people of a land without a judge agree and come together to put before themselves a judge, then look: if there is a sultan, then such appointment is null; but if there is no sultan, then it is valid, and his judgements over them are executed.” [al-Ahkam al-Sultaniyah, 73]

Now recall what Imam al-Juwaini said about preventing fasād. When masajid and imams are ignorant of their own abilities and responsibilities, they refuse to give a hearing to those in dispute, whether marital – as is most common – or business related. This often leads to parties in those disputes feeling despair, like they are in perpetual sin, or in wrong and abusive lopsided or unsuitable relationships (financial or marital) that they can never escape.

Sometimes they will go to manmade courts to settle their disputes – even if they feel like they are hypocrites for doing so. In the worst of cases, especially marital, they may even renege the deen, or flee their marital homes. At “best”, they may remain in such binds, but feeling miserable. Even if they hold onto Islam, it often leads their children to feel a long-lasting grudge from the observed trauma. They perfectly embody the sentiment of the woman who came to Allah’s Messenger ﷺ and said:

يَا رَسُولَ اللَّهِ … مَا أَعْتِبُ عَلَيْهِ فِي خُلُقٍ وَلا دِينٍ ، وَلَكِنِّي أَكْرَهُ الْكُفْرَ فِي الْإِسْلَامِ.

O Messenger of Allah, [my husband], I do not fault him for his character or religiosity, but I hate to be ungrateful after Islam. 

The Prophet ﷺ asked her if she was willing to give back the mahr. Once she affirmed this, he called upon her husband and commanded him to accept that and pronounce divorce, undoing their marriage. He did not tell her to be patient, nor did he even ask the husband’s opinion.

No person is forced to remain in a marriage against their will, man or woman. How could they when you are not even allowed to be compelled into a marriage against your will? Proper Islamic courts understand this. As part of due process and efforts to preserve the marriage and family, they might prescribe marriage counseling or arbitration, but ultimately, if she persists in her demands, she has a right to dissolution.

But is all this based on wishful thinking and desire to construe a kangaroo court to wipe away the crocodile tears of women who may themselves share great blame in the deterioration of such marriages?

Two primary evidences support the validity of this principle. The imams quoted above hinted at both:

The first evidence is in the fact that executive leadership positions are often obtained by community acknowledgement of such leadership. In classical texts, this often takes the form of

بيعة أهل الحل والعقد

The pledge of community leaders and representatives (e.g. scholars, generals, governors, nobles, etc)

For jamā`at al-Muslimīn taqūm maqam al-qāḍī, this is a similar appointment by community leaders, even if they are simply “movers and shakers”, khateebs, an acknowledged shura, etc.

This is similar to the qaidah of “the arbitrator is like a judge” [المحكَّم كالحاكم], because disputing individuals came to that person and trusted him for deciding the fate of their dispute. They made him their own temporary judge and bound the fate of their dispute to his decision.

The second evidence is ḍarūrah necessity to have such position. Without it, many Muslims would be at a loss to resolve their disputes in lands where unbelievers rule with manmade laws and courts. And many rulings of Islam would be limited to books if we had to wait for the Mahdi and Isa ibn Maryam (as) before putting into practice! Thus, this ruling is a necessity for securing common welfare and repelling evils and harms.

A hallmark of ḍarūrah is often that people resort to it anyway, even without the explicit permission from the Lawgiver and `ulema.

What do I mean by that?

Take for example, if someone was on the verge of starvation, and the only option they had to feed themselves was haram food. Many would automatically say “I may be sinful, but I need to live!” and they would eat what Allah normally forbids anyway even before given the rukhṣah concession. The same when saying a word of blasphemy when under torture, just as `Ammār ibn Yāsir instinctively did even before the ayah was revealed giving Muslims concession to do so, and before the Prophet ﷺ instructed him thus.

And this is exactly what we find with this qaidah.

Even without the Maliki scholars, and all three other madhabs acknowledging this qaidah in their own ways, the necessity of it, and its common sense, is put into practice automatically. This is so, as disputants often come to community leaders asking for decision between them, or properly reaching and navigating the dissolution of their marriage.

Thus, the evidences for this maxim are all the evidences of the necessity and benefits of Shariah law, and how leaders may be acknowledged.

The validity of this maxim and the rulings subsequently issued through it are not impacted if one party to the dispute refuses to acknowledge that authority. The full weight of the Sharia and all its objectives stand against them. 

As a reminder, quḍāt justices are generally sought when fatwā is not enough.

• Business disputes. I have seen cases where there was dispute over whether the capital given from one to another was business loan (therefore deserving reimbursement) or an investment, with assumed risk. Also, whether or not a restaurant sale was valid due to a biased appraisal.
• Voiding or upholding a business contract – again, if fatwa does not suffice.

But it is no secret that issues of family law constitute the vast majority of cases where imams may be called upon to wear the hat of a qāḍī. Anecdotally, those issues are nearly always raised by the woman. The man’s recourse to ending a marriage is in his hands and on the tip of his tongue, but a woman often requires a greater power.[3] Usually by the time it comes to the imam, they have exhausted most other possibilities, or the couples’ problems have unraveled far beyond mere issues of communication and understanding, but have entered the realm of contempt and harm.

• Recalcitrance [عضل] of the default walī for marriage. It is rarely enough for an imam or mufti to say “it’s haram for you to prevent your marriage-ready daughter from marrying a compatible man of good or similar deen and character”. But sometimes, investigation must be done, speaking to that wali, and then decree must be issued, either affirming his wilayah, moving it to the next default wali, or the qāḍī assuming the wilayah of nikah himself.
• Validating or voiding a marriage contract, if contracted without the guardian wali’s permission, or without witnesses, or with a non-Muslim, or if the woman’s previous divorce was not overseen Islamically. Or voiding a single condition of a contract.
• The status of a mahr when there is dispute of its amount and having been paid or not. An imam may also order a couple to renegotiate the mahr, such as what I witnessed when inflation brought the value of an unpaid 35 year old mahr (pre-Gulf War Iraq) down from $20,000 to $5.
• Property disputes. This may especially be the case after a couple separate and intentions need to be investigated for items large and small.
• Annulment or dissolution (faskh) of a marriage when a partner is unable or unwilling to fulfill the foundational expectations of a marriage contract. For example, desertion, incarceration, refusal to support or be intimate, etc.
• Upholding a marriage condition. For example, a couple both recall verbal agreement that he cannot take a second wife. He took a second wife. She then comes to the imam who then, as a qadi, gives her a choice to decide the fate of her marriage – either invoking her original condition and dissolving the marriage or letting it go as if it never was.
• Dissolution of a marriage when the husband refuses to pronounce divorce or accept khul`ah, yet admits the marriage provides no benefit for anyone. In many of these cases, the husband often admits he intends to punish the woman (see Quran 2:231) or “leave her hanging” (مُعلَّقة) which is also prohibited. 
• Perhaps most contentious is dissolution by faskh in cases of continuous abuse. A woman is often first asked if she is willing to give up her mahr as a hasty way to enacting khul`ah so that the specifics of the marriage and her accusations against the husband can be avoided. But if her husband is being truly harmful, there is sufficient literature in our scholastic legacy to warrant a dissolution of the marriage even without her giving up a cent. 
• Settling child custody (حضانة الأولاد).
• The status of a marriage after a civil divorce or perceived talaq pronouncement. Was it, or not? Three or one? Drunken rage or not? What if they disagree? What if imams disagree? Thus, a formal decree and certificate may be requested for documentation and settling the matter.
• Tafseeq, or the label of being a fasiq, one whose testimony is disallowed. A qadi could also make takfeer. This may be especially pertinent when there is a dispute over marriage status, financial rights, or custody after a spouse has left Islam – Allah protect us – or to disinherit someone. 
• Inheritance disputes! Unfortunately, these often completely bypass imams and often go straight to the courts. 

Of course, imams do not have civic institutions enforcing their decrees. To aid this, ulema generally allow disputant individuals to pursue their Sharia rights through local courts. But that is only up to where their Sharia rights end, and not a penny more.

And unfortunately, there are many cases where people would like to come to the imam for judgment, but they live in absolute fear of the other party whom they want their rights – or separation – from. These fears exist not only in our masjid communities, but outside as well. It is important for communities to know of available resources, such as shelters, in worst case scenarios.

In Muslim countries, the judges who decide these matters of dissolution, custody, debt, freezing accounts, recalcitrance, contempt, and more, often have the luxury of not having to face parties to a court when children are dropped off and picked up from weekend school, or we line up for isha prayers.

Your imams not only perform all these acts[4], but address these very same parties every Friday from the minbar and even try to fundraise from those parties at the end of the year. They work to shield the rest of the community from the drama they witness behind the scenes and shield their own families from bringing home any of the frustration and bitterness that may rub off on them from warring parties. 

These processes often happen behind closed doors and take a great many hours of investigation and research. 

Masjid boards have a duty to their congregations of ensuring that imams are properly trained in Islamic jurisprudence (fiqh and its uṣūl), especially matters of divorce. Because your congregations will come to those imams and ask them to judge and issue decrees. Sponsor their continued education if necessary. It will pay back dividends.

Your communities must have a system of handling the most contentious of marital and business disputes, based upon proper fiqh so that the leaders do not issue improper rulings that may later be challenged.

If the imams are unqualified, then your masjid should know to direct disputing partners to any of the many Islamic arbitration and judicial counsels that have sprung up in North America, or have an agreement with the nearest Islamic center with a qualified sitting faqeeh.

Support your imams who are taking on these cases despite the risks involved. Some cases risk distancing prominent community members who are party to a court or “in the corner of” one of the disputants. Not to mention the misconceptions about the Shariah viability of such cases. 

Despite the validity of the imam being an actual Sharia judge, the lack of courthouse, courtroom, judicial robes, bailiff, secretary, gavel, and decor makes people forget this. But we have to remember, even the Messenger of Allah ﷺ did not have many of these formal trappings. For community members who have either approached their imam or been called by an imam to speak on a judicial matter, it is no less serious before Allah. Imagine ignoring such a call, rebuking one, or even threatening the qāḍī imam in the process, as many of us have experienced. And while I’ve yet to hear of an imam assaulted by an angry [ex] husband, I and others have experienced such threats and seen snakes in our dreams. 

Lastly, imams have a solemn duty to take their time in issuing true and unbiased fatwa and decrees. 

One thing I remember learning in a chaplaincy workshop was the concept of “dual relationships” that ministers often assume. You cannot be too chummy or personal with anyone. For some, it comes naturally, but not for all. You may someday find them in your office sitting across from a victim of their oppression, while they expect you to judge in their favor because she occasionally puts a plate of biryani or baklava on your desk, or he gives you front row seats to sporting events, or they donate large sums to the masjid.

All the threats of being a Sharia judge apply to us when disputes reach us – but also the guarantees should we be sincere and hardworking. When in doubt, consult other imams on situations, procedures, and decree templates. When in grave doubt, consider referring the dispute to someone more knowledgeable or less connected to the involved parties.

And Allah knows best, and may He exalt the mention of His Messenger Muhammad and grant him peace, and all who follow his guidance and example until the Day of Judgment.

Related:

Selecting Members For Masjid Boards : Ideal Muslim Leadership

What Is An Imam Worth? A Living Wage At Least.