Recourse to Unjust Judge with Respect to Imam Khomeini’sFatwa in Tahrir al-Vassilah

Cruelty and injustice in adjudication mean passing unjust judgement as a result of negligence or destructive intentional conduct, and an unjust judge is the arbiter making mistakes in the court amidst the turbulent atmosphere of passing a verdict. Many components and elements are involved in the judge’s failure, one of which is lack of the capacity for legal reasoning and inference of religious laws in him along with other preconditions for fatwa (a nonbinding legal opinion on a point of Islamic law given by a qualified jurist) and judgment. In the meantime, the role of the government and ruling system in appointing such a judge shall not be ignored either, because in such system, the scare and power with the judge will make all his trials cruel in the end even if he is mujtahid (qualified to exercise ijtihad in interpretation of Islamic law). Unjustness, though, is not exclusive to the government of unjust rulers and it may happen in just governments as well. This paper has been developed according to Imam Khomeini’s fatwa in his Tahrir al-Vassilah in which he says only fully qualified jurists endowed with the capacity of legal reasoning and inference of religious laws and with full knowledge on secondary issues of Islam deserve the right to pass a legal judgement. Upon full study of the issue, the paper has discussed admissibility and inadmissibility of the recourse to such a judge. Therefore, the paper has studied recourse to unjust judge and based on step-by-step arrangement, i.e. from recourse to consorting and finally acting upon the verdict he has passed, all have been considered by Imam Khomeini has religiously forbidden