Is a judge required to be capable of Ijtihad (Independent Legal Reasoning)?
General Chapter
Al-Mughni
Book of Judiciary
Primary text
A judge must be from the people of Ijtihad. This is the position of Malik, Al-Shafi'i, and some Hanafis. The evidence is in the command to judge by what Allah has revealed (Quran 5:49) and what Allah has shown the judge (Quran 4:105), and the command to refer disputes to Allah and the Messenger (Quran 4:59). A hadith states that three types of judges exist: one who knew the truth and judged by it (in Paradise), and two who judge out of ignorance or injustice (in Hellfire). An ordinary person acting by imitation (*taqlid*) judges out of ignorance. Judgment is more stringent than issuing a legal opinion (*fatwa*), as it involves both opinion and enforcement; since an imitator cannot issue a binding fatwa, he certainly cannot serve as a judge.
Supporting text
Some jurists argue that a layperson (*Ami*) may serve as a judge by imitation because the goal is settling disputes, which can be achieved through imitation, similar to accepting the valuation of professional appraisers. However, this is refuted by the Quranic commands directing judgment based on divine revelation and the hadith classifying judges who rule ignorantly as damned.