Is it permissible to act as a defense lawyer in our lands? A reputable professor we know of is also a well-known lawyer in the country, and even appears on television because of his reputation. He acts as a defense lawyer for oppressed clients. We would like to ask the brothers if taking on such a role is permissible. Also, does the Hukum Shari’ee differ with regards to acting as the state prosecution (prosecution, district attorney, crown attorney) versus acting as the defense? Furthermore, if the defense lawyer is convinced that his client is in the right, but he finds much difficulty in attaining the just verdict except through un-Islamic means, such as a bribe for example, is this permitted, as long as his intention is to restore the client’s rights?
بِسْمِ اللّهِ الرَّحْمَنِ الرَّحِيمِ
Q1. Is it permissible to participate in an auction (i.e. bringing forth a product to sell, and whoever offers the most money buys it)?
Answer:
The word Muzaayada (auctioning) linguistically means “competing by increasing the price of the product for sale,” and the Istilaahi (common usage) meaning is “announcing a product, and the people continually increase the price against each other, until the last person offering the highest bid takes the item.”
This type of selling is permitted, due to the Hadith narrated by Al-Tirmithi in his Sunan, from Anas Bin Malik (ra) that the Messenger of Allah صلى الله عليه وسلم “…brought (two items) for sale and said ‘Who will buy these (two items)?’ A man said ‘I will take them for one Dirham.’ So the Prophet of Allah صلى الله عليه وسلم said ‘Who will offer more than a Dirham? Who will offer more than a Dirham?’ A man offered two Dirhams, so he sold them to the man.” Al-Tirmithi said that this Hadith is Sahih Hasan, and does not contradict the Hadith of Sufyan Ibn Wahb Al-Kholani (ra): “I heard the Messenger of Allah صلى الله عليه وسلم forbid selling by auction,” since this Hadith is Dha’eef (weak), as it has Ibn Lahee’a in its Sanad (chain of narrators), and he is Da’eef; it also does not contradict the Hadith of Ibn Umar (ra): “The Messenger of Allah صلى الله عليه وسلم forbade any of you to try to sell something after selling it to someone else until they cancel (the agreement), with the exception of spoils of war and inheritance,” since this is referring to after the deal has been concluded, where it is not permissible for someone to come and offer a higher amount at that point; but if the seller has not yet concluded a deal with any particular buyer, then this Hadith does not apply.
Al-‘Ainee said in ‘Umdat Al-Qaari that the opinion of permissibility of auctions is held by Imam Malik, Imam Shafi’ee and the majority of people of knowledge.
13th of Safar, 1430 Hijri
8/2/2009
Q2. Is it permissible to act as a defense lawyer in our lands? A reputable professor we know of is also a well-known lawyer in the country, and even appears on television because of his reputation. He acts as a defense lawyer for oppressed clients. We would like to ask the brothers if taking on such a role is permissible. Also, does the Hukum Shari’ee differ with regards to acting as the state prosecution (prosecution, district attorney, crown attorney) versus acting as the defense? Furthermore, if the defense lawyer is convinced that his client is in the right, but he finds much difficulty in attaining the just verdict except through un-Islamic means, such as a bribe for example, is this permitted, as long as his intention is to restore the client’s rights?
Answer:
As for the role of the lawyer:
1- It is not permissible to act as the state prosecution (prosecution, district attorney, crown attorney), since this role involves representing the state in terms of law and accusations. As long as the state does not implement Islam, representing it is not permitted, and there is no excuse for a state prosecutor to undertake this work. It is Haram.
2- It is permissible to act as a defense lawyer, as long as the focus of the work is defending the oppressed and restoring people’s Islamic rights to them. It is not permissible to defend “rights” dictated by man-made law and not set by Islamic law.
For example, if someone is thrown in prison for speaking the truth, Islam defends him and would free him from prison; therefore, the work of the defense lawyer to remove the oppression from him and free him from prison is Wajib and correct.
In another example, if someone had something stolen from him, Islam would return his stolen goods; therefore, it is permissible for the defense lawyer to represent him and return his stolen goods.
In another example, if someone sells his house for a down payment, and the remainder through a payment plan, but the buyer ends up only paying the down payment, and refuses to pay the remainder or denies owing it, despite the fact that he bought the house and is living in it. In this case, Islam would restore the seller’s rights from the buyer and therefore, it is permissible for the defense lawyer to represent the seller to restore the outstanding amount owing from the buyer.
Thus, the work of the defense lawyer to remove oppression and to restore Islamic rights to their owners is a correct act.
On the other hand, if the “legal right” is set by man-made law, and contradicts Islamic law, then it is not permissible to defend these rights:
For example, if someone owns shares in a joint stock company (or a PLC/LLC) – which we already know is formed on a Baatil (invalid) contract – and, when the time comes to distribute the dividends to the shareholders, someone notices that his share of the dividends is less than what it should be. In this case, it is not permissible to represent this client, since this “right” is set by man-made law, and contradicts Islamic law. The company structure is Baatil (invalid) and everything that is produced by this company, including profits/dividends, is rejected by Islamic legislation. Therefore, it is Wajib upon the Muslim to remove himself from such a company structure.
In another example, if someone had deposited his money in a bank and was earning a set amount of interest on it, but when the bank paid out the interest amount, he found that he received less than what was owing to him of interest. In this case, it is not permissible to represent this person and restore his “rights” to him, since this “right” is set by man-made law, which permits Riba banks, and contradicts Islamic law. Therefore, it is Wajib upon the Muslim to cancel this Riba contract with the bank.
Thus, the work of a defense lawyer is valid if it is for the purpose of removing oppression, and restoring an established Islamic legal right to the rightful owner. In contrast, it is not permissible to work as a defense lawyer if this lawyer will fight for rights established by man-made laws that contradict Islamic legislation.
As for a defense lawyer that – according to Islamic law – takes illegal measures to restore established Islamic legal rights to their owners, such as bribery – even if his intention was to restore people’s rights through this act, this is not permissible. Bribery is Haram, regardless of whether the end goal is just or unjust. This is because Islamic evidences that forbid bribery are not based only on a legislative reasoning (‘Illah) of attempting to achieve unjust goals. These evidences are also general (‘Aam), and not specific (Khaas) to unjust goals alone. This is clear in the following texts:
It is narrated in Ahmed, Abu Dawood, Al-Tirmithi and Ibn Majah, that Abdullah bin ‘Amr (ra) said: The Messenger of Allah صلى الله عليه وسلم said: “May the curse (La’nah) of Allah be on the one bribing and the one accepting the bribe.” It was also narrated by Ahmed that Thawban said: “The Messenger of Allah صلى الله عليه وسلم cursed the one bribing, the one accepting the bribe, and the Raa’ish, meaning the one who acts as a mediator between the two.” These Ahadith are general (‘Aam) and incorporate all forms of bribery, whether done with the intention of seeking justice or seeking injustice. These texts are also not based on a legislative reasoning (‘Illah) that the impermissibility of bribery is due to an intent of seeking unjust goals; the texts do not mention any sort of legislative reasoning (‘Illah) at all, and such reasons (‘Illal) cannot even be derived from any other text related to the topic either.
Therefore, a defense lawyer is not permitted to bribe anyone, even if his intentions were to enable the restoration of people’s rights during – what he perceives to be – difficult circumstances otherwise.
29th of Safar, 1430 Hijri
24/02/2009
Q3. It was written in The Social System of Islam, in the chapter “Looking at Women” as follows:
“Whenever someone wants to marry a woman, he has the right to look at her but not in seclusion (Khalwah). Jabir said that the Messenger of Allah صلى الله عليه وسلم said: “If a man proposed to a woman and he is able to look at whatever would encourage him to marry her, let him do so” (narrated by Al-Haakim and he said it is Sahih on the conditions of Muslim).
And it was written at the bottom of the page:
“This means, Believing men must lower their gaze, except the ones proposing who have the right to not lower their gaze in order for them to look at the women they seek to propose to.”
What is meant here by “the one proposing”? Is this before or after the engagement? If it is before the engagement, is it referring to someone looking at this girl and that girl until he chooses one, or is it only for someone who has decided to propose to a specific girl?
Answer:
In the Arabic language, when the word “ITHa” (if – إذا) is attached to a past tense verb, then it is referring to undertaking an action, and also refers to the ruling on the action (i.e. both prior to undertaking the action and while undertaking the action). So, it refers to both situations: in action and in ruling, unless there is a conjunctive evidence (Qareena) that specifies only one of the two, then only one is taken.
For example, the Ayah:
يَا أَيُّهَا الَّذِينَ آَمَنُوا إِذَا قُمْتُمْ إِلَى الصَّلَاةِ فَاغْسِلُوا وُجُوهَكُمْ وَأَيْدِيَكُمْ إِلَى الْمَرَافِقِ وَامْسَحُوا بِرُءُوسِكُمْ وَأَرْجُلَكُمْ إِلَى الْكَعْبَيْنِ
“Oh you who Believe, if you stand for Salat, wash your faces and your hands up to the elbows, rub over your heads, and wash your feet up to the ankles” [5:6],
where “…if you stand” means that if you want to pray Salat then you should go and perform Wudhu, and does not mean that if you get up and actually perform Salat that you should then go perform Wudhu after, because Wudhu comes before Salat.
Hence, the Hadith “If a man proposed to a woman…” includes the actual engagement, as well as the rule regarding proposal – meaning someone who has the intent to propose.
But connecting the intention to propose with the rule regarding proposal is conditional on a serious decision to undertake the action (of proposal), otherwise the rule does not apply to the action. This is why the majority of the Fuqahaa – the Maliki’s, the Shafi’i’s and the Hanbali’s – said that the person wanting to propose can only do so under the condition that he truly wishes to marry her, and is openly seeking her acceptance, or knows that she will accept his proposal, or he believes that acceptance is most likely. The Hanafi’s stopped at only the intent to propose, and not the latter.
In conclusion, the person here who is permitted to look is the one proposing, in action or in ruling. The meaning of “in ruling” is that he is serious in his desire to propose to the woman; this is not referring to the person who is looking at one woman, then the next, in order to choose one. This is because “If a man proposed to a woman…” is referring to – as we previously clarified – the man who is proposing, in action or in ruling, to a specific woman, and is not referring to the man who wishes to just continue looking without serious intent to propose, in action or in ruling.
This is a matter that Allah سبحانه وتعالى knows the truth of within us, and nothing is hidden from Him. Therefore, if looking at a woman is not based on serious intent to propose, in action or in ruling, then this person will be accounted for such an action on the Day of Judgment, and Allah سبحانه وتعالى is severe in punishment.
9th of Rabee’ Al-Thaani, 1430 Hijri
04/04/2009
Q4. It is recorded in Sahih Al-Bukhari, in The Book of Al-Jizyah, in the chapter of expelling the Jews from the Arabian Peninsula, narrated by Abu Hurairah (ra) who said: “While we were in the Masjid, the Prophet صلى الله عليه وسلم came out and said: ‘Set forth to the Jews,’ so we set out until we reached Bayt Al-Madraas (a building where the Jews taught the Torah), then he صلى الله عليه وسلم said to them, ‘Become Muslim, and you are safe, and know that this land belongs to Allah and His Messenger. I wish to expel you from this land, so whoever (wants to sell some of their precious belongings), then he should do so, otherwise know that this land belongs to Allah and His Messenger’.”
This Hadith has confused us. We see from the Hadith that the Jews had their own schools, so some of us understood that this is only related to the Jews that were isolated, such as Bani Quraydha or Khaybar, where it is not a problem that they have their own schools. But some of us derived that it is more accurate that these were Dhimmis (Ahl Al-dhimma) from those left over after the events of Bani Quraydha and Khaybar, which means that it is permitted to allow private schools for Dhimmis and this is the problem! Please clarify this matter.
Answer:
The subject of Al-Madraas
You strayed into the topic of whether this is related to Dhimmis or the Jews, which led you to become confused about the Hukum of whether or not they were Dhimmis, linking this to the permissibility of allowing private schools for Dhimmis.
The matter is simpler than that. The matter is not related to schools, but rather is related to permitting Dhimmis to teach their religions. The word “Al-Madraas” is an attachment to their place of worship, where they teach their Torah and scriptures, and it is permitted for the Dhimmis to teach their religions amongst themselves. This is different from schools as we know them today.
To clarify the matter, it was stated in Al-Qamoos Al-Muheet that the word “Madraas” has two meanings: The first meaning is a place where Jews read their Torah. The second meaning is a place where they gather for their celebrations to eat and drink.
It was also stated in Lisaan Al-Arab that the word has two meanings: The first meaning is a place where they gather for their celebrations to pray in. The second meaning is a day where they eat and drink.
So you can see that a Madraas is no more than an attachment to their places of worship, where they teach their religion amongst themselves, or it is a day on which they eat and drink (such as celebration for them) or something similar. In either case, it has nothing to do with schools as we know them today.
12th of Ramadhan, 1430 Hijri
01/09/2009