and Abd al-Rahman ibn al-Qasim ibn Abd al-Rahman (30) did not take wages for it. They said: We do not take wages for being just between two people. The Shafi'i scholars said: If he is not personally obligated, it is permissible (31) for him to take a stipend for it, but if he is personally obligated, it is not permissible except in case of need. The correct view is that it is permissible to take a stipend for it in all cases, because when Abu Bakr (may Allah be pleased with him) assumed the caliphate, they allocated a stipend (32) for him of two dirhams every day (33). This is also based on what we mentioned: that Umar provided a stipend to Zayd, Shurayh, and Ibn Mas'ud, and ordered the allocation of a stipend (34) for those who took charge as judges. Furthermore, people are in need of it, and if the allocation of a stipend were not permissible, the judiciary would be paralyzed and rights would be lost. As for taking it as a wage (isti'jar), it is not permissible. Umar (may Allah be pleased with him) said: It is not appropriate for the judge of the Muslims to take wages for the judiciary (35). This is the school of al-Shafi'i, and we know of no disagreement regarding it. This is because it is an act of worship (qurba) restricted to those who are of the people of worship, so it is like prayer. Also, because a person does not perform it on behalf of another, but rather it occurs from himself, so it is like prayer; and because it is an indeterminate task. If the judge does not have a stipend and says to the two litigants: I will not judge between you until you fix a stipend for me, it is permissible. It is also possible that it is not permissible.
Section: If the Imam is in a land, he must send judges to the provinces other than his own. The Prophet (peace and blessings of Allah be upon him) sent Ali as a judge to Yemen, and he also sent Mu'adh ibn Jabal to Yemen. He said to him: "By what will you judge?" He replied: By the Book of Allah the Almighty. He asked: "And if you do not find it?" He replied: By the Sunnah of the Messenger of Allah (peace and blessings of Allah be upon him). He asked: "And if you do not find it?" He replied: I will exercise my own ijtihad (reasoning). He said: "Praise be to Allah who has granted success to the messenger of the Messenger of Allah in that which pleases the Messenger of Allah."
(30) Abd al-Rahman ibn al-Qasim ibn Abd al-Rahman al-Bakri, from the descendants of Abu Bakr al-Siddiq, a reliable imam and jurist, one of the younger generation of the Followers (Tabi'in). He died in Hawran in the year 126 AH. Siyar A'lam al-Nubala 6/5, 6. (31) Omitted from B. (32) In M: "al-rizq". (33) See what was recorded by al-Bukhari in the chapter: "A man's earnings and his work with his own hands," from the Book of Transactions (Sahih al-Bukhari 3/74); al-Bayhaqi in the chapter: "What is disliked for the judge regarding buying and selling," from the Book of Judicial Etiquette (Al-Sunan al-Kubra 10/107); and Ibn Sa'd in Al-Tabaqat al-Kubra 3/185. (34) Omitted from the original (al-asl). (35) Recorded by Abd al-Razzaq in the chapter: "Is a stipend taken for the judiciary?" from the Book of Transactions (Al-Musannaf 8/297), and Ibn Abi Shaybah in the chapter: "On the judge who takes a stipend," from the Book of Transactions and Judgments (Al-Musannaf 6/505). (36) In the original, A, and M: "fi" (in).
