Appointing of Judges According to the Islamic Fiqah, Romano-Germanic and Common Law Legal Systems

Abstract

Among the most important factors that influence the freedom and independence of the judiciary is the method of recruiting and appointing judges and the methods appointing have been determined for them, and these methods are very different, but the understanding of these differences and the discovery of necessary reforms are very helpful in solving judicial corruption, which in the Islamic judicial system, qualified judges are usually appointed by the Caliph and sometimes appointed by the Caliph's representative. Also, in exceptional cases, they can be appointed by the senior judge, dominated person (rebellious Amir) and the infidel ruler, and their dismissal is also related to the Caliph, and the reason behind this is to preserve the independence of the judiciary and be free from any kind of pressure, coercion and illegitimate requests in their work and affairs, but in the in those law-system countries which are influenced by the common law, judges are usually appointed from among experienced lawyers. The position of a judge is considered a kind of reward because appointed person has done the job of a lawyer in the courts for a long time and has gained experience that is why they have this authority. But in Romano-Germanic law system, the judges are appointed from among the university students. The purpose of this applied and comparative study and writing is the selection and appointment of judges according to the Islamic jurisprudence, the system of selection and appointment of judges in the United States representing the Common Law, and the selection of judges in France representing the Romano-Germanic. This study and research use the bibliographic and descriptive method, where the freely appointment of judges by judicial in the law system of America and the method of appointment are the important discussions. In the federal system of the United States, according to the federal constitution, each state has special laws that accept and determine the general organization of forces and the conditions and methods of selecting judges based on their political and philosophical views. The judicial organization of one state will be different from the judicial organization of another state. Unlike the United States of America, judges in France are selected from among the students of high schools (universities). The difference is that the judges of the general courts are national Judiciary School students and judges of administrative courts are mainly selected and recruited from among senior expert students and also from general law students who have studied in the National Administrative school, and after theoretical and theoretical lessons, they complete their work-study stage in the French State Council, which then divides their employment with a large institution (Dewan of Accounts), which is led by the National Administrative Seminary. People with high marks in the exam are recruited to the French Council of State, who will then continue to work as judges in the courts.