Justice Beyond Identity: Why It Is Wrong To Believe That Only A Muslim Should Judge Other Muslims; Refutation Of Islamist Terror Ideologues' Arguments - Part One

By Grace Mubashir, New Age Islam 26 August 2025 The notion that only Muslims should judge Muslims was predominantly constructed in the twentieth century and is generally associated with Islamist movements that engage in identity politics. There was no such rigid line earlier. The early Muslim societies managed diversity and diverse groups in a manner that encompassed diverse communities, legal traditions, and judges of diverse backgrounds. Major Points: 1. In early Muslim governments, legal institutions and courts differed greatly. Some were clerical courts administered by qadis, and others were in the control of governors, tax farmers, or sultans. Judges tended to be selected on their loyalty, administrative abilities, and their capacity to keep people in line, instead of any regard for religion. 2. The Prophet would sometimes provide non-Muslims with a say in his judgments. He gave Jews the option to be judged under the Torah in certain circumstances, respecting their autonomy. What this implies is that the priority was justice and regard for other legal systems, not merely giving Muslim judges the ability to preside over Muslim cases. 3. At the core of Islamic legal ethics is the Quranic requirement to uphold justice, regardless of who you are and to whom you owe loyalty. ----- The Islamists' Argument in Today's World Certain Islamist groups nowadays assert that Muslim judges alone must decide cases relating to Muslims, particularly those relating to marriage, divorce, inheritance, or religious trust. Their reasoning is straightforward: only a Muslim understands the Qur'an in its entirety, the Hadith, and the laws of Islamic law, and only a Muslim judge can properly apply these laws. In their view, having only Muslim judges serves to maintain their religious identity and confines problems within the community. In India, where religion and law blend, the argument has previously been employed to prevent changes or oppose court rulings on matters of personal law. When Muslim family law has been adjudicated by non-Muslim judges, Islamist voices have protested, claiming such judges are "outsiders" and not qualified. But such a statement has serious implications. If we say that a judge of a specific religion can hear cases of that religion alone, then the courts will be divided on religious grounds. Hindus would insist on Hindu judges, Christians would insist on Christian judges, Sikhs would insist on Sikh judges. The notion of one uniform system of justice would be wrecked. The Indian Constitution guarantees that everyone is equal before the law. It doesn't mention that the judges should be of a particular religion. A judge's profession is founded on knowledge of law, honesty, and justice, not religion. Additionally, Islamic history also supports this Islamist concept. Non-Muslims were part of the government and even legal affairs since the days of the Prophet Muhammad and the great Muslim empires. The Qur'an itself places more emphasis on justice over individual identity. This essay considers history, theology, and ethics and compares these with the Indian constitutional framework. It illustrates how the presumption that Muslim judges alone can decide Muslim cases is not only untrue but harmful to Islam as well as India. Where the Claim Arose: A Modern Invention The idea of Muslim judgment being reserved for Muslims only did not start from early Islamic practice. It is mostly a twentieth-century phenomenon associated with contemporary Islamist politics. Movements like Jamaat-e-Islami, led by Abul A'la Maududi and others like Sayyid Qutb in Egypt, propagated this view as part of an umbrella movement for Muslim identity and against Western colonialism. They felt that Muslims should only be tried by Muslims. It was not all about Islamic traditional law; it was also about resisting non-Muslim governments, particularly the British and French colonial governments. This sentiment began during a period of political instability and carried on to subsequent debates when Muslim minorities were ruled by non-religious laws. But history tells us otherwise. The early Muslim societies were much more tolerant of diversity, pragmatic, and adaptable than the contemporary Islamist demand for exclusivity. The Prophet Muhammad's Example of Welcoming Everyone When Prophet Muhammad moved to Medina, he became the leader of a city with many different groups. Medina had Muslims, Jews, and tribes that believed in many gods. To help everyone get along, the Prophet created the Constitution of Medina — one of the first written agreements in Islamic history. The article stated that Jews and Muslims were in the same political community. It stated in categorical terms: "The Jews have their religion and the Muslims have theirs." Both communities could have their own traditions and laws, but they were together in defending one another and in being citizens. The Prophet was also mindful of the autonomy of non-Muslims. In disputes with Jews, he sometimes allowed them to opt for judgment under the Torah, their scripture. This indicates that justice was not an issue of imposing Muslim judges on all, but an issue of ensuring that things were equitable and respecting various traditions. The Prophet himself was stressing ability over background. In one popular Hadith, he cautioned: "If a task is entrusted to those who are unfit for it, then wait for the result." (Sahih Bukhari). The implication is obvious: a judge's ability is determined by his capability and impartiality, not religion. This prophetic model itself refutes the Islamist claim. Justice, not exclusivity, was the guiding principle. Caliphal Practices: Non-Muslims in Courts and Administration When the Prophet passed away, the caliph leaders continued his concept of inclusiveness. Caliph Umar ibn al-Khattab, for instance, was famous for advocating for the rights of Christians and Jews. When Christians and Jews were treated unjustly by Muslims, Umar intervened to ensure they received justice. He never mentioned that only Muslims could address such issues. Later on, during the times of the Umayyads and the Abbasids, Jews and Christians frequently occupied key positions in administration, finance, and justice. The state legitimised their rulings in matters of the community. The Ottomans developed a system called millet. Every religious group — Muslims, Christians, Jews, Armenians — had their own courts and their own judges to handle personal affairs. Their rulings were valid under imperial law. At the same time, non-Muslims enjoyed access to state courts, where judges of various persuasions existed. There was no strict law which would have prevented non-Muslim judges from being valid. Indian Mughal emperors also followed the same. Hindu rulers and judges were appointed to government and judicial positions by Akbar and subsequent rulers, and their appointments had an impact on Muslims, too. Justice was not reserved for Muslims. History suggests a pattern of practical thinking and openness — not exclusion. The Qur'anic Vision: Beyond Identity to Justice The Islamist argument fails the religious test. The Qur'an frequently instructs believers to be just, even if it is against themselves or their relatives. "O believers! Stand firm in justice as witnesses to Allah, even if against yourselves, your parents, or your closest relatives." (Qur'an 4:135) "Do not let hatred for a people bar you from being just. Be just; that is nearer to righteousness." (Qur'an 5:8) These verses show that justice is more than religion, family, or community. Fairness and doing what is right are what is important, not the judge's religious affiliation. If the extremists were right, Muslims who reside in countries such as India, America, and Europe would never receive justice from non-Muslim judges. This would imply that millions of Muslims would not be under the protection of the law. But the Qur'an teaches us that Islam is not a religion of a specific group of people, but for all. To say that only Muslim judges can provide justice makes this all-encompassing notion smaller and exclusive. Practical Refutation: Why It Won't Work in India India contains the third-largest population of Muslims in the world, with over 200 million of them. They reside in a politically pluralistic, diverse, and constitutionally run secular political order. If citizens would accept the Islamist rationale, then Muslim judges would rule cases for Muslims alone. But the logic would not stop there. Hindus would demand the same, and in the same way, Christians, Sikhs, and others would. The judicial system would split into discrete systems. The notion of equal justice before the law — a fundamental component of Indian democracy — would disintegrate. Indian courts have frequently considered Muslim personal law cases. In the classic Shah Bano case (1985), the Supreme Court ruled that a Muslim divorcee was entitled to alimony under common law. Islamist leaders were against it, contending that non-Muslim judges would not be able to interpret Sharia. Muslim women, however, felt that the ruling was just for their rights. In the case of triple Talaq (Shayara Bano, 2017), the Supreme Court held that instant divorce is against the principles of the Constitution. The judges were non-Muslims, yet they delivered a judgment upholding the honour of Muslim women. To say that these decisions are invalid because the judge happens to be a non-Muslim is to withhold justice from the people who need it. Indian courts have safeguarded Muslim institutions like waqf properties from being taken and misused. Most of these rulings were passed by non-Muslim judges. Without their assistance, Muslim property would have been jeopardised. The Indian reality renders the Islamist argument impossible. Justice depends on the law and the honesty of the judge, and not on their religion. Ethical Refutation: Justice as God's Attribute Islamic morality lays great stress on justice as an integral aspect of religion. The name of God is Al-Adl, The Just. The Prophet appointed judges on merit and honesty, not religion. The true Islamic viewpoint is not who you are, but what you do. An unjust Muslim judge is less Islamic than a just non-Muslim judge, because justice is a holy virtue. History bears witness that Islamic civilisation blossomed when it was open, inclusive, and connected with other cultures. Exclusivism and identity politics are recent inventions, not authentic Islamic principles. Global Perspective: How Muslim Minorities Live with Secular Judges Muslims are minorities in all nations with secular regimes. They report to non-Muslim judges on a daily basis. In Britain, Muslim divorces and child custody are decided by family courts. The judges do not have to be Muslims, but refer to Islamic scholars in most cases. Muslims approach secular judges in the US and Europe, who ensure that their rights are given due protection under the law. In South Africa, Muslim family law issues typically fall into ordinary courts. In 2009, non-Muslim judges passed a ruling on polygamy in Muslim marriages, and the Muslim population accepted it as equitable. In Southeast Asia, Malaysia and Indonesia, and Singapore all possess a mixed system where civil courts and Sharia courts exist side by side. Appeals usually lie within secular judges, regardless of religion. None of these communities follows the Islamist religion. Muslims everywhere are subject to and trust judges who are not Muslim. Why the Islamist Argument Fails Historically inaccurate: Early Islam integrated non-Muslims into laws and governance. Theologically weak: The Qur'an prioritises justice over identity. Almost impossible: In multicultural nations like India, limiting judges by religion would be against fairness. Unethical: True Islamic Ethics Are Based On Justice And Not Exclusivity The notion that Muslim cases should be decided by Muslim judges is a misperception — generated by modern politics, not Islam. For Indian Muslims, the future is not to be apart but to be together. Instead of rejecting non-Muslim judges, the community needs to interact more with the courts — through educating more Muslim judges and lawyers, and through educating the community about the inclusive practices in Islamic history. Religious leaders must highlight how the Prophet and the caliphs respected diversity. Believers in secular courts make democracy more robust and protect minority rights. Both the Indian Constitution and the Islamic teachings both support the idea of justice to all, irrespective of who they are. Conclusion: Justice Beyond Identity From the Prophet's Medina to the Abbasids, from the Ottoman millet system to Mughal India, history is a witness that Islamic justice was never discriminatory. It was pragmatic, adaptable, and open. Contemporary Islamist demands that Muslims judge Muslims alone are not only anti-constitutional but also un-Islamic. They dismiss history, theology, and ethics. In India, Europe, Africa, or Southeast Asia, Muslims have been judged fairly by non-Muslim judges. To deny this fact is to deny both Islamic history and democratic values. The Qur'an itself states: "Do not let hatred of a people prevent you from being just. Be just; that is nearer to righteousness." (Qur'an 5:8). Justice is what sustains societies. Justice is what Islam demands. Justice is what the Indian Constitution guarantees. And justice, and not identity, must be the foundation of the judiciary. ---- A regular columnist for NewAgeIslam.com, Grace Mubashir is a PhD scholar in Islamic Studies at Jamia Millia Islamia and freelance journalist. 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