Question 28. “Can a mufti repeal a judicial ruling or can only another judge repeal it? What about the jurists’ statement ‘The judge’s ruling in matters of legal controversy is not denied or repealed’; does that apply particularly to judges, or does it apply to both judges and muftis?”

The Answer

Repeal of a judicial ruling can take place only from one who has the authority to make a decision in the matter that is subject to repeal, and the authority to originate a ruling in the controversial areas of the law is vested in judges. Accordingly, the repeal and the invalidation of judicial rulings are left to them as well. Because a mufti cannot originate a judicial ruling, he cannot repeal one, just like a trustee in charge of another’s property has the authority to originate contracts involving his ward’s property and so may rescind them. So, too, because the ward cannot originate contracts, he cannot rescind them. Likewise, for a woman: because she cannot originate her own marriage contract, she cannot terminate it. So, too, for a slave: because he may not marry without his master’s consent, he may not terminate his marriage contract without his master’s consent, unless the master has given him authority to marry, in which case he has the authority to divorce; because his master granted him authority to marry, he acquired the authority to originate marriage contracts and to terminate them by divorce [127].

This rule—that one lacking the power to make a contract lacks the power to terminate it—is one with many particular applications, and the Shāfiʿīs have used it against us Mālikīs regarding the case of the conditional divorce prior to marriage or ownership, when a man says, “If I marry you, you are divorced,” or “If I purchase you, you are free.” They said, “He did not own the rights of marriage, so he cannot possess the right to divorce,” or “He did not have the power to originate a divorce, so he cannot enter into a conditional divorce.” They make the same argument with respect to manumission, even though both the husband and the master of a slave each have the right to originate divorces and manumissions as a general rule by consensus when they have rights of marriage and ownership of the slave as a matter of fact.

A mufti, however, insofar as he is a mufti, lacks any of the powers necessary to originate a judicial ruling in the fashion that has been delegated to judges in any case, as has already been explained; accordingly, he lacks the power to repeal a judicial ruling in any case. This is no different from the fact that a woman has no right to marry herself in any case and so she lacks the power to divorce herself in any case. Accordingly, it has become manifest that everything a mufti does involves giving legal opinions, without repealing or judging in the fashion that has been delegated to judges, even though it is a kind of legal judgment insofar as it is based on a comprehensive interpretation of the textual indicants of revelation, like the judge’s translator, as has previously been set out in explaining the difference between a judge and a mufti, and that the judge originates rulings while the mufti is effectively a translator of God’s speech to humanity [128].