Due Process in Islamic Law
Did medieval Muslim, specifically Sunni jurists, have a conception of due process? While they did not have a term that corresponds to what common law lawyers call “due process,” they elaborated numerous procedural and jurisdictional rules that manifest concern with that constellation of values which is associated with due process and, in the terms of US constitutional law, “ordered liberty.” I am currently finishing up a translation of an important medieval treatise on the powers of various public officials which touches on many of these issues, Shihab al-Din al-Qarafi’s, al-Ihkam fi Tamyiz al-Fatawa ‘an al-Ahkam wa Tasarrufat al-Qadi wa-l-Imam. I have pasted below a particularly interesting discussion on the question of when it is permissible for an individual to determine, unilaterally, whether sufficient legal cause exists to exercise some legal right or privilege, and when that legal right or privilege cannot be exercised without a prior judicial determination that exercise of the right in question is legally justified (Question no. 32 from that book). Any comments or questions would be appreciated.
The Thirty-Second Question
“What are the means by which one knows which legal acts are in need of a prior judicial ruling – meaning, that an individual lacks the unilateral authority to determine the existence of the legal cause – and which legal acts are not in need of a judicial ruling, meaning that an individual does have the unilateral authority to determine the existence of the legal cause and that is sufficient grounds for him to act?”
There are three means by which legal rules that do not require a prior judicial ruling are distinguished from those that do.
The first is when application of that rule requires deliberation, investigation, and exertion of effort from an insightful scholar, a fair arbiter in confirming the existence of its legal cause and the extent of its legal consequence, and there are examples.
The first example is a declaration of divorce on account of the husband’s bankruptcy, because this requires confirmation of the fact of bankruptcy, and whether there is a valid claim for maintenance against this husband such that bankruptcy can terminate  his marital rights? Or, was he someone whose apparent condition is consistent with permanent poverty, as Mālik said: “If she married a man who was an ascetic, she does not have the right to a judicial divorce on account of her husband’s bankruptcy, because her marriage began in that condition.”
The second example is discretionary penalties which require precision in determining the gravity of the crime and the relevant circumstances of the criminal and the victim, so that the punishment can be applied in accordance with these considerations without injustice.
The third example is judicial divorce in the case of a husband who has sworn an oath to abstain from sexual relations with his wife. It requires exertion of effort and precision in determining the nature of that oath which was taken in respect of her: is it one that obliges him to take an action to resume marital relations or not; does his refusal to resume marital relations constitutes harm to the wife or not; if the purpose of that oath was to injure her, should she be divorced from him against his will; or, did it have a beneficial, valid purpose, such that she should not be divorced from him against his will, as would be the case if he swore not to have intercourse with her out of fear that his nursing child might get ill should her milk be ruined were she to become pregnant as a result of intercourse, and similar considerations based on good-faith judgment. 
The fourth example is a man who swears an oath that he will administer a severe beating to his slave. A judgment of manumission against the master’s will in this instance is in need of a judicial ruling because it is not known whether the slave committed a crime that would justify the beating. Application of this rule also is in need of ascertaining whether the threatened beating, if carried out, would in fact rise to the level that the law considers abusive with respect to that particular slave’s circumstances; whether the master, were he to carry out the terms of his oath, would be deemed to be sinful, it being the case that an oath to commit a sin is deemed to be immediately violated, thus resulting in the immediate emancipation of the slave; or, would it be possible for the master to carry out the oath without incurring sin, in which case involuntary manumission would not be required?
The second is when applying the rule to its facts is in need of a judicial ruling and the direct involvement of the rulers because delegating the application of such rules to all people would result in civil strife, hatred, murder, fighting and injuries to life and property, and there are examples.
The first example is the mandatory scriptural penalties. While they are precise in themselves and thus are not in need of careful judgment to determine their amounts, were all individuals entrusted with their enforcement, they would have rashly whipped fornicators and amputated those committing theft, and other crimes, and as a result fanaticism would become intense, fights would break out, and noble individuals would become enraged; civil strife would spread and rancor would become severe. Revelation acted to prevent this risk by delegating these matters to public officials, and the people submitted to them, obeying willingly and unwillingly, and as a result, these great harms have been averted.
The second example is the division of battlefield spoils. Their proportions are known, as are the legal causes giving rise to entitlement, except that humans are by nature excessively covetous and competitive in their desire for precious things. Accordingly, every individual desires to have for himself precisely what every other individual desires, thus leading to the same harms mentioned previously in the first example. Accordingly, revelation prevented this by delegating the distribution of battlefield spoils to public officials. These matters, even though they are not amenable to resolution via a judicial ruling, are of a type that they require the intervention of public officials, and I mentioned it for that reason in order to draw attention to why their involvement is needed, and the appropriateness of this example to this discussion.
The third example is the collection of the poll-tax from non-Muslims, and the land tax due in respect of conquered land and other lands, which revenues are the property of the Muslim community. Had the management of these public funds been left to the individual members of the community, disorder would obtain, and a baneful end would result.
The third is when there is a substantial conflict between the claims of God and the claims of human beings. This conflict necessitates a judge, because the judge is God’s deputy, sublime is He, on His earth, in succession of the Prophet Muḥammad, may God bless him and grant him peace. Accordingly, when he originates a judicial ruling  in a circumstance which accepts it, his ruling becomes the designated rule for that case, and submission to it is obligatory, and there are examples.
The first example involves someone who manumits half of his slave. The remaining portion is not to be mandatorily manumitted in the absence of a judicial ruling because of the conflict among the claim of God, sublime is He, to manumission; the right of the owner in his property; and the right of the slave to work for himself. In addition, there is substantial dispute whether the master can be compelled to complete the manumission.
The second example is mandatory manumission of a slave whom his master mutilated. This involves a claim of God, sublime is He; the claim of the master; and, the claim of the slave, as was the case in the first example. If a judge rules, his decision becomes the rule to be followed and whatever contradicts it becomes invalid, with peace returning to the people and rights being clarified.
The third example is the sale of a slave whom a bankrupt debtor has manumitted. This requires a judge on account of the conflict among the claims of the creditors to the slave, insofar as he is property; the claim of God, sublime is He, to manumission; and, the claim of the master to a right to be free of claims against him or to obtain an act of piety through manumission, to say nothing of the substantial dispute as to the rule that applies in this case. Indeed, al-Shāfiʿī’s disagreement reached the point that he rejected the opposing view sternly, saying “A debt is a generic obligation while manumission concerns a specific  slave, so there is no conflict.” Accordingly, manumission does not become invalid in his view because the specific and tangible quality of the slave precludes his treatment as the equivalent of an intangible debt.
But, if a judge rules for the validity of the sale, his ruling becomes the rule governing the case. Accordingly, title to the slave vests in the purchaser as a result of the ruling; the master who attempted to manumit the slave obtains the right to reacquire the slave if he repurchases him; and, the purchase price is used to satisfy the bankrupt’s creditors. With the judicial ruling, all parties to the dispute are satisfied with what issued from the judge, God’s lieutenant, sublime is He, and the lieutenant of God’s messenger.
These three circumstances are what necessitate the intervention of a judge or public officials. If none of these circumstances is present, the rule follows its legal cause, whether or not a judge rules in accordance with it. In accordance with this principle, legal rules fall into one of three categories: those which result from their legal causes by virtue of consensus and are not in need of a judicial ruling because none of the three reasons that give rise to the need for a judicial ruling are implicated by application of the rule; those which are in need of a judicial ruling as a matter of consensus by virtue of the fact their application necessarily involves one of the three aforementioned circumstances that require a judicial ruling ; and those subject to disagreement, “Is it part of the first category or is it part of the second?”, by virtue of the fact that they give the impression that they might or might not include one of the three factors that give rise to the need for a judicial ruling. Accordingly, because of the uncertainty as to whether these factors are present, there is uncertainty as to whether a judicial ruling is required in advance of applying that rule.
I give you examples of these three categories in what follows. An example from the first category are all ritual observances; all matters that are universally prohibited, such as drinking grape juice once it becomes intoxicating; matters that are controversially prohibited, such as the meat of carnivores; the rules regarding the purity of bodies of water for purposes of ritual washing; the obligation to repay debts, and to restore deposits and misappropriated items to their true owners; and other such things. An example of the second category is declaring a debtor to be insolvent after finding that his debts exceed the value of his property; judicial divorce of the wives of missing persons and others; and judicial dissolution of marriages on account of the husband’s bankruptcy or abuse of or injury to the wife, and similar things.
There are several examples of the third category, those controversial cases with respect to whether a judicial ruling is required in advance or not.  The first is taking possession of misappropriated property from the one who took it wrongfully if the true owner is missing; does this need a judicial ruling, or can an individual take possession of it from the person who took it wrongfully? The scholars are divided on it. The second is someone who manumits his share in a slave. Ibn Yūnus said, “Our colleagues agree that he immediately becomes manumitted after his value is determined by an expert appraiser without any need for a judicial ruling, because that is what is found in the Prophetic report.” Others, however, have said that a judicial ruling is needed. The third is manumission of a slave when he comes into the ownership of a master who is his relative, and he is free and solvent. The well-established rule of the Mālikīs is that this does not require a judicial ruling, but it has been said that there must be a judicial ruling. The fourth is manumission as a consequence of a master’s abuse of his slave. Ibn Yūnus said, “Mālik said, ‘Manumission in this case arises only after a judicial ruling,’ while Ashhab said, ‘No judicial ruling is required; it follows immediately from its legal cause.’”  The fifth is rescission of a contract of sale after both parties to the contract swear oaths. The sixth is nullification of a marriage after both parties swear oaths (if someone accepts this view). There should be added to this discussion as well the question of the Friday Congregational Prayer, even though the controversy does not involve its need for a judicial ruling, but rather permission of the head of state, but that is not a judicial ruling.
The reason for the controversy with regard to each of these examples is the presence of conflicting factors, and the supposition that they are in need of a judicial ruling because of the presence of the legal causes giving rise to the need for a judicial ruling, and also the supposition that they are independent of and lacking the factors that give rise to the need for a judicial ruling. 
This in summary provides a principle for when something needs a judge’s ruling and when it does not – the existence of the legal cause being sufficient – and the different categories into which legal rules fall in respect of this principle. A summary of the reasons for this is provided comprehensively along with examples so that the jurist becomes capable of deriving from those examples the answers to other cases, having now become aware of the secret of this question. 
 This is known as īlāʾ. In Mālikī jurisprudence, a husband who swears such an oath is required, by judicial order if need be, to break his oath and resume marital relations with his wife, upon pain of judicial divorce if he refuses. Here, al-Qarāfī is pointing out several reasons why a woman must bring a claim of īlāʾ to the court rather than simply conclude, based on her own reasoning, that her husband has undertaken this oath. First, the oath might not, in fact, be an oath to abstain from marital relations; second, if it was undertaken for a valid reason, such as one related to the husband’s health or a child’s health or the like, it is not subject to judicial censure; and third, if in fact it turns out that the husband took the oath maliciously, then the wife is entitled to automatic divorce, without giving the husband an opportunity to break the oath and resume marital relations.
 According to Mālikī jurisprudence, a slave who is abused by his master is entitled to a judicial declaration of freedom.
 For al-Shāfiʿī, the debt owed to the creditors in this case is generic, and can be satisfied with money, whereas the slave’s right to emancipation is particular and unique to him (or her). Accordingly, in his view, the slave should be manumitted and the creditors be obliged to seek repayment from the debtor out of his other property, whether in his current possession or gained in the future.
 Ashhab b. ʿAbd al-ʿAzīz b. Dāwūd al-Qaysī (d. 204/819), an Egyptian student of Mālik and who, along with Ibn al-Qāsim, was one of the most important transmitters and expositors of Mālik’s legal doctrines. .