Question 26. “When you say that a judicial ruling cannot be overturned, does that mean only that a subsequent judge cannot overturn it but that a mufti may continue to give legal opinions contrary to it, just as was the case prior to the judicial ruling, or does the judge’s ruling preempt any legal opinion to the contrary such that the judicial ruling becomes the unanimous law of the case? If you say that the judicial ruling preempts contrary legal opinions, that seems to contradict what the author of the Jawāhir1 says in the Chapter of Judgments regarding the repeal of judicial rulings, where he says:

‘The fourth topic: a judicial ruling, although it must be given effect by other judges, does not displace [111] the rule that applies morally; rather, the latter remains binding in the same fashion as it did prior to the judicial ruling. This is because a judicial ruling does no more than manifest the applicable rule, and it is not an introduction of the rule. Accordingly, it is not permissible for a Mālikī to act upon a ruling from a Ḥanafī judge that awards him a right of first refusal based on the fact that he is the seller’s neighbor (shufʿat al-jār), nor is it permissible for someone who knowingly proffers perjured testimony regarding his marriage to a woman—so the judge, in reliance on the reliability of the witnesses, rules that the woman is the man’s wife and that intercourse with her is permissible—to have intercourse with her, or to persist in his marriage to her.’

This is his text in the Jawāhir. With this language, how can one say that the judge’s ruling preempts the contrary legal opinion when Ibn Shās says that ‘the rule remains binding in the same fashion as it did prior to the judicial ruling’ and that a Mālikī cannot act upon a Ḥanafī judge’s judicial ruling awarding him a right of first refusal on the basis of the fact that he is the seller’s neighbor? Had it been the case that a judicial ruling preempts contrary legal opinions, and the particular case instead becomes one governed by consensus insofar as the judge’s ruling constitutes the law of the case, it would have been permissible for a Mālikī claimant to act upon the grant of the right of first refusal that Ḥanafīs award to neighbors. Accordingly, it is not possible to maintain the view that legal opinions change on account of judicial rulings that contravene them.”

The Answer

It is true that a group of prominent Mālikī jurists have held the belief, as a consequence of the principle Ibn Shās mentioned, that a judge’s ruling in controversial areas of the law does not change the content of the legal opinion that applies to the case. Accordingly, when a judge, for example, rules in a case, and reaches a conclusion of permissibility, a mufti who believes that the conduct at issue is forbidden should continue to opine in respect of that case in accordance with his view prior to the ruling. Therefore, the one who holds to this view says, for example, with respect to someone who believes that property held in common may not become the subject of an endowment, or that endowments are never legally valid [112], that he can continue, even after a judge has ruled that a particular endowment, consisting of commonly held property, or any other kind of endowment, is valid, binding, and has been duly executed, to give legal opinions permitting the sale of that property. This is so because he believes that the judicial ruling prohibits a subsequent judge from repealing the first judicial ruling, but it does not preclude giving legal opinions contrary to the judicial ruling or its secondary effects. So, too, he believes that if a man says to a woman, “If I marry you, you are divorced,” and then he marries her, the fact that a judge then rules that the contract is valid, that the marriage continues in existence, and that the divorce is ineffective, a dissenter may continue to give legal opinions after that judicial ruling that she is forbidden to him in reliance on the legal opinion that considers the man’s conditional divorce to be legally effective.

I believe that this position is contrary to consensus. I have not found the language quoted in al-Jawāhir in any other Mālikī authorities, even though I searched diligently and in great detail in the various legal treatises of our Mālikī colleagues. It appears that his expression, may God be pleased with him, suffers from some overbreadth, and that he intended only one of two questions discussed in the Mālikī school. The first is the case of a judicial ruling whose legal cause had not in fact occurred. In this case, the judicial ruling does not change the applicable legal opinion, like a judicial ruling of divorce in respect of one who did not in fact divorce his wife, either because the witnesses made an error or because they intentionally perjured themselves. Ibn Shās mentioned this case in al-Jawāhir, in this very context, as has already been mentioned. The same principle applies to a case of proportional retaliation (qiṣāṣ) or anything else, anywhere the legal cause is absent in fact. In such cases, the legal opinion that applied prior to the judicial ruling in our view continues to apply as it was prior to the judicial ruling, in contrast to the view of Abū Ḥanīfa.2

The second is a judicial ruling which contravenes universal legal rules, or specific texts [113]. Ibn Yūnus³ said,

ʿAbd al-Malik⁴ said, “The meaning of Mālik’s statement ‘The judge’s ruling cannot be overturned,’ is limited to rulings that do not contravene the Sunna. If, however, it contradicts it, a subsequent judge should repeal it,” like the case of a slave who agrees to work in exchange for a partial manumission, and the judge rules that this agreement is binding. A subsequent judge should repeal this judicial ruling, and whatever property the slave paid to his master should be returned to the slave, but the slave’s partial manumission remains effective;⁵ [114] or a right of first refusal in favor of the seller’s neighbor in respect of real property, or after partition of real property; or giving judgment on the basis of a Christian’s testimony; or granting inheritance to the paternal or maternal aunt or the clients of descendants; or anything that contravenes the practice of the people of Medina,⁶ not having been held by anyone, save outliers among the scholars; or a judicial ruling that an absolute, triple divorce is only one divorce, and the man who effected it then remarries her, without her first having married another man and either been divorced or widowed from him, another judge may separate them.

These are approximately ten cases which Ibn Yūnus mentions where the legal opinion remains as it was and a subsequent judge should repeal any judicial ruling given in accordance with such rules. There remains the statement of Ibn Shās, the author of al-Jawāhir, “Although we say that another judge should not repeal a judicial ruling that enforces the neighbor’s right of first refusal, a Mālikī is not entitled to exercise this right of first refusal, even if a judicial ruling awards him this right,” even though Ibn Yūnus cited this case for precisely the proposition that a subsequent judge should repeal this judgment, so one can see an evident contradiction between the claims of the two authorities.

If the author of al-Jawāhir intended only these two questions, that is, where the judicial ruling is based on a clear factual or clear legal error, then the claim is valid, although his language, and his inclusion of the claim that another judge should not repeal the first judge’s ruling undermines that conclusion, albeit the only examples he gives were that of the neighbor’s right of preemption and a man whose wife is divorced from him as a consequence of perjured testimony. The fact that these were his only examples suggests that he intended only those two classes of cases, but at the same time, the fact that he also includes derivative claims, based on the principle that another judge should not repeal the first judge’s ruling, contradicts this narrow interpretation of his language. This confusion is not found in other authorities, and in any case, numerous cases from the Mālikī school contradict his language.

The first of these is that of the alms-tax collector:7 if he takes one sheep out of a flock of forty sheep which belong to forty proprietors⁸ in deference to the view of the Shāfiʿī school, our Mālikī colleagues have said that the value of the sheep taken by the alms tax collector is to be borne pro rata [115] by all forty proprietors. They also said, however, that as a matter of their legal opinion, if the alms-tax collector takes the sheep without relying on any legal opinion, and he is not a judge, it is an act of injustice whose loss is not distributed among all forty of the proprietors, but instead the loss remains with the one from whom the sheep was wrongfully taken. Accordingly, their legal opinion changed out of regard to Shāfiʿī doctrine and the interposition of a judicial ruling, a fact which shows that a judge’s ruling preempts contrary legal opinions with respect to that particular case, and renders that particular case as though it were a matter of consensus as a consequence of the judge’s ruling resolving the controversy regarding the rule applicable to that case.

The second of these is in the Mudawwana, where there is a case of two men whose sheep graze together as one flock, one with 11 sheep and the other with 110. The author of the Ṭirāz9 and others said in regard to this case, “The man with the 11 does not owe anything in terms of the alms tax unless the alms-tax collector takes it in reliance on the doctrine of a jurist whom [116] he follows in that question, in which case the two men share its loss pro rata.”¹⁰

The third of these is in regard to the Friday congregational prayer, in respect of which Sanad said, “If the imam has appointed a delegate to lead the Friday congregational prayer, the prayer is not valid unless the delegate of the head of state acts as the prayer leader. This is because whether the Friday congregational prayer is a matter that requires the permission of the imam is a matter of legal controversy, so once a judge has ruled on the question in favor of that view, the Friday prayer can be valid only if the delegate of the imam leads the prayer.”

All of these are examples of legal opinions changing as a consequence of a judicial ruling.

The fourth of these is the case of the seller and the purchaser swearing oaths affirming their contradictory claims regarding the terms of a contract: does this entail an immediate cancellation of the contract, on the theory that no proper contract had been formed, or does the contract remain in effect until a judge rules that it has been canceled? A derivative issue that arises out of this controversy is whether each of the parties [117] has the right to perform the contract in conformity with the other party’s statement, until there is a conclusive judicial ruling resolving the controversy. In this latter instance, the legal opinion which permits one party to perform the contract in conformity with the other party’s statement changed on account of a judicial ruling insofar as this option lapses upon a judicial ruling.11

The fifth of these is in the Mudawwana, regarding a man who manumits his slave while he is bankrupt, and at a later date, comes into wealth. In this case, the slave’s value is to be appraised and the former bankrupt must pay that sum of money over to his creditors, unless there had already issued a judicial ruling freeing him from the obligation to pay the slave’s value, in which case he is not bound to pay the slave’s estimated value to his creditors. Accordingly, Mālik had first given a legal opinion requiring an appraisal and payment of that sum to the creditors; he then gave another legal opinion contrary to his first on account of a prior judicial ruling relieving the former master from this obligation. Thus, the judicial ruling changed Mālik’s legal opinion.¹²

The sixth of these is in the Mudawwana, in the First Chapter of Manumission, regarding creditors of a bankrupt who manumitted his slaves but whose creditors repudiated his act of manumission; neither the creditors nor the master have the right to sell the manumitted slaves until the matter is brought before a judge. If, however, the master sells them, or the creditors sell them, and then the matter is brought before a judge after the master becomes solvent, the sale is rescinded and the manumission becomes effective on account of the subsequent occurrence of solvency. If the judge, however, had sold them, and then the owner who had manumitted them purchases them after becoming solvent, they are legally his slaves, despite his earlier manumission of those same slaves.13 [118]

In this case the legal opinion changed as a result of the judge’s sale of the slaves, something that necessitates an implied judicial ruling that they had remained enslaved and that the initial attempt at manumission failed. The legal opinion applicable to the creditors’ sale of the slaves as well as that of the owner’s sale of the slaves was that the sale automatically becomes rescinded upon the subsequent solvency of the bankrupt, whereupon the manumission becomes immediately effective. In the two cases, however, there is a sale, and in both cases, there is a claim of the creditors, and in both cases, there is the occurrence of solvency after bankruptcy, so there is no difference explaining the change in the legal opinion applicable to the case other than the intervening judicial ruling.¹⁴

In the seventh of these cases, Mālik said,

If the quantity of dates on a tree are estimated and found to be sufficient to justify imposition of the alms tax, but when they are harvested they turn out to be less than the estimated amount, the difference between the estimated amount and the amount harvested is ignored, because the estimator (al-khāriṣ) has the status of a judge, and his estimate of the quantity is final and conclusive; however, had the dates not been estimated, and it turns out that, at the time they are harvested, they are less than the minimum amount required to justify imposition of alms tax, then no alms tax is due.15

In both cases, the harvested quantity of dates is less than the legal minimum, but Mālik concluded that alms tax was due in the first case because the estimator’s ruling entailed a judicial ruling that the quantity of the dates that would be harvested exceeded the legal minimum [119]. Mālik’s legal opinion, therefore, changed on account of the intervening judicial ruling, despite the discovery of a factual error in the ruling. Because we are speaking more generally about the case of a judge whose ruling is not based on an obvious factual error, a fortiori such a judgment would produce a change in the applicable legal opinion.

The eighth of these is that which Ibn Yūnus reports on the authority of a group of our colleagues in the Chapter on the Reclamation of Uncultivated Land: “If two persons began to dig two wells such that each of them owns one of the wells, and after a dispute between them regarding the extent of land adjoining each well necessary to protect each well from the other, a judge rules that there is no harm arising from the location of the two wells, but later, harm is ascertained, the injured party will not be entitled to remove the harm, that is, the other well, for his right to claim that the other well is causing harm to his well lapsed on account of the judicial ruling.”¹⁶

Their statement “his right has lapsed” is a legal opinion. Accordingly, the legal opinion changed on account of the judicial ruling. Had it not been for the judicial ruling, he would have been permitted to ward off the harm from himself, and we all would have given him such a legal opinion. Therefore, if the legal opinion changes, despite clear evidence that it was based on a mistake, a fortiori it changes when the judicial ruling is not obviously mistaken. This case, and the prior case of the estimated quantity of dates with respect to calculating alms tax, would not have been the subject of controversy among our colleagues were it not for the fact that the judicial rulings had been based on factual errors. Were there agreement, however, that no factual errors had been committed, there would have been unanimous agreement that the legal opinion should change [120]; the only controversy is whether such a ruling should be overturned because its factual basis is subsequently discovered to have been erroneous. It is clear, then, that there is no controversy that a judicial ruling whose factual basis is not obviously erroneous results in a change in the applicable legal opinion on account of the intervening judicial ruling.

Were one to say, “All that these cases show is that a subsequent judge should not repeal the prior judicial ruling, not that the legal opinion governing the case has changed?” we would say that “repeal of a judicial ruling is the responsibility of another judge, not that of the mufti. The mufti in these cases, according to everyone, is to report the content of God’s ruling, sublime is He, that the petitioner can do this or that the petitioner cannot do that, or that he is obliged to pay alms tax or that he is not. Is this anything other than a pure legal opinion?” Indeed, there is no meaning to the concept of legal opinions other than saying, “This is lawful,” or “This is forbidden,” or “This is obligatory,” or “This is not obligatory,” or “This is permissible,” or “This is not permissible,” and similar statements. So, this is a change in the legal opinion without doubt, not mere restraint in repealing a judicial ruling.

The ninth of these is in the Mudawwana, “Neither an injured animal nor a male goat is satisfactory for the discharge of the alms-tax obligation; however, if the alms-tax collector believes that it is, then it is sufficient.” [121] He gave the legal opinion that payment of an injured animal or a male goat is sufficient to discharge the obligation of the alms tax after the alms-tax collector takes the animal in question, and that if the alms-tax collector does not take the animal in question, that is, if the animal in question is paid voluntarily, then it does not discharge the obligation of the alms tax.17 This is a change in the legal opinion on account of the judicial ruling, because the alms-tax collector, in Mālik’s view, has the status of a judge.

The tenth of these is when Sanad said in the Chapter of Commingling, “If there are three associates, each of whom owns 40 sheep, and three sheep are taken from one of them, he can only recoup the value of two-thirds of a sheep from his partners because only one sheep is due on 120 sheep, of which he owes one-third and the other two, two-thirds. But, if the three sheep were taken in reliance on the view of those who give no effect to commingling, such as Abū Ḥanīfa, then he can recoup from each of his associates one sheep.” So, the legal opinion has changed based on the judicial ruling. This is not an instance of refusing to repeal a judicial ruling, because repeal of a judicial ruling is something only a judge can do. As for a scholar saying, “You can recoup” or “You cannot recoup,” that is nothing other than a legal opinion.¹⁸

There are very many similar cases to these in the Mālikī school, and I have sought to draw attention with this selection of cases only to make the desired point, namely, that this issue, as I believe, is a matter of consensus. In light of these examples, how is it possible for someone to persist in denying this point or to maintain the view that the legal opinion governing a case is unchanged by a judicial ruling? It has already been stated that God, sublime is He, has appointed judges as His delegates with authority to originate particular rulings in the context of disputes governed by a controversial rule.

Accordingly, when a judge rules [122], with the permission of God, sublime is He, and his ruling is validly attributable to God, sublime is He, that ruling of the judge is a specific textual indicant from God, sublime is He, arriving on the tongue of His delegate, who is His delegate on earth and the successor of His Prophet with respect to that particular case. It therefore becomes obligatory to exclude this case from the domain of the dissenter’s legal opinion with respect to that particular dispute. The revealed indicant that the dissenter relies upon with respect to that case is universal, while this indicant from the judge is particular to some members of the genus which would otherwise be subsumed under the universal indicant relied upon by the dissenter. Accordingly, there is a conflict involving this member of this class between the particular indicant—the one provided by the judicial ruling—and the universal indicant which the dissenter believes applies to all members of the class. Priority, however, must be given to the particular indicant over the universal textual indicant, in accordance with what has been established in theoretical jurisprudence.

This principle is the secret which explains why another judge should not repeal prior judicial rulings, nor should a dissenter express opposition to the prior judicial ruling, not what some of the jurists believe, namely, that judicial rulings are unassailable only to put an end to conflict and dispute. A jurisprudential principle supports the argument that we made earlier, while what they believe lacks any jurisprudential principle to support it, and that which is supported by a jurisprudential principle is superior to that which relies only on prudential considerations. Even if we grant the validity of their argument, the two, the prudential argument and the jurisprudential principle, work together to strengthen the rule that judicial rulings are unassailable, whether by a subsequent judge or by a mufti holding a contrary view. Arguments may overlap, except that one ought not to ignore that explanation which the principles of jurisprudence support, unless there is a countervailing consideration outweighing it [123].