Ruling on referring to tribal customs for judgement
Question

                When a man commits zina with a woman, the tribe offers compensation to the girl’s family in the form of a payment, the amount of which is determined by tribal custom. It may be noted that the tribe helps the man to pay this money. What is the ruling on helping to pay this money if one belongs to the tribe of the one who did it? What is the ruling on taking this money if one belongs to the tribe of the girl? Please note that this town is ruled by a Christian and he does not rule it in accordance with that which Allaah has revealed (sharee’ah), hence the tribes resorted to tribal laws, which also involve ruling by something other than that which Allaah has revealed.
Praise be to Allah.Firstly: 
With regard 
    to this financial compensation, there may be two scenarios: 
1 – When it 
    is paid only where a woman is forced into zina (rape), where the rapist is 
    made to pay the mahr to his victim, or to pay the mahr along with 
    compensation for loss of virginity – if she was a virgin – according to 
    those who say that this is required. The compensation for loss of virginity 
    is the difference between the mahr of a virgin and the mahr of one who was 
    previously married. 
This money 
    must be paid by the rapist, and the hadd punishment must be carried out on 
    him, and it must be given to the victim if it is proven that she was forced 
    into it. 
If that is 
    the case, then there is no problem with it, rather this is the ruling of 
    sharee’ah even if it is in accordance with customs. 
If we assume 
    that they are unable to carry out the hadd punishment, but they can force 
    the rapist to pay the mahr to his victim, then this is acceptable, because 
    if it is not possible to do everything, we should do as much as we can do. 
    Allaah says (interpretation of the meaning): 
“So keep 
    your duty to Allaah and fear Him as much as you can”

    [al-Taghaabun 64:16]
With regard 
    to obliging the tribe to pay the mahr or help in doing so, there is no basis 
    for that. Rather it must be paid from the wealth of the rapist, as stated 
    above. Helping him to pay it means letting the rapist off lightly and 
    encouraging rape. We will discuss the difference between the mahr and the 
    compensation (for loss of virginity) below.                          
    
2 – If that 
    is the procedure that is followed in all cases of zina, with no distinction 
    between cases where the woman is forced into it (rape) and cases where she 
    did it willingly, and the tribe is obliged to help the zaani pay this 
    compensation, and that is regarded as a general ruling that all the tribes 
    refer to, this is like a system of prostitution. The Prophet  (peace and 
    blessings of Allaah be upon him) said:  
“The price 
    of a dog is evil, and the earnings of a prostitute are evil and the earnings 
    of a cupper are evil.” Narrated by Muslim (1568). 
And he said: 
    “The price of a dog, the fee of a soothsayer and the earnings of a 
    prostitute are not permissible.” Narrated by al-Nasaa’i (4293). 
It is 
    obvious that this tribal law, which is known as saloom, is the ruling 
    of Jaahiliyyah which is it is not permissible to judge by or to refer to for 
    judgement, or to help with, because Allaah says (interpretation of the 
    meaning): 
“And so 
    judge (you O Muhammad) among them by what Allaah has revealed and follow not 
    their vain desires, but beware of them lest they turn you (O Muhammad) far 
    away from some of that which Allaah has sent down to you. And if they turn 
    away, then know that Allaah’s Will is to punish them for some sins of 
    theirs. And truly, most of men are Faasiqoon (rebellious and disobedient to 
    Allaah).
50. Do 
    they then seek the judgement of (the days of) Ignorance? And who is better 
    in judgement than Allaah for a people who have firm Faith”

    [al-Maa'idah 5:49, 50] 
“And 
    whosoever does not judge by what Allaah has revealed, such are the Kaafiroon 
    (i.e. disbelievers — of a lesser degree as they do not act on Allaah’s 
    Laws)”

    [al-Maa’idah 5:44] 
“Have you 
    not seen those (hypocrites) who claim that they believe in that which has 
    been sent down to you, and that which was sent down before you, and they 
    wish to go for judgement (in their disputes) to the Taaghoot (false judges) 
    while they have been ordered to reject them. But Shaytaan (Satan) wishes to 
    lead them far astray”
[al-Nisa’ 
    4:60] 
“But no, 
    by your Lord, they can have no Faith, until they make you (O Muhammad) judge 
    in all disputes between them, and find in themselves no resistance against 
    your decisions, and accept (them) with full submission”
    [al-Nisa’ 4:65]
And there 
    are other verses which indicate that it is obligatory to refer for judgement 
    to the laws of Allaah and to reject the rulings of Jaahiliyyah that go 
    against them. Allaah has decreed and prescribed that the zaani should be 
    flogged if he is a virgin and stoned if he is a non-virgin, and this applies 
    to both men and women. Every ruling that goes against this is a ruling of 
    jaahiliyyah, which must be rejected and we must strive to abolish it. 
The scholars 
    stated that referring to Bedouin laws and tribal customs that go against 
    sharee’ah is kufr. 
Shaykh 
    Muhammad ibn Ibraaheem (may Allaah have mercy on him) said: The sixth (type 
    of major kufr with regard to referring to laws for judgement) is the law by 
    which many of the heads of Bedouin clans and tribes rule, based on the 
    sayings of their forefathers and their customs which they call their 
    saloom, which they inherited from them and they judge by it and refer to 
    it for judgement in the event of disputes, based on the rulings of 
    Jaahiliyyah or turning away from the rulings of Allaah and His Messenger. 
    There is no power and no strength except with Allaah. End quote from the 
    essay, Tahkeem al-Qawaaneen. 
Shaykh ‘Abd 
    al-‘Azeez ibn Baaz (may Allaah have mercy on him) said in an essay entitled 
    “The ruling on referring for judgement to tribal customs and traditions”: 
From ‘Abd 
    al-‘Azeez ibn Baaz to whoever among the Muslims reads it: may Allaah help me 
    and them to find out the truth and follow it. 
Peace be 
    upon you and the mercy of Allaah and His blessings… 
The reason 
    for this is to answer some questions that have been asked by one of our 
    sincere brothers in the Kingdom. He says that in his tribe, and in some 
    other tribes, there are bad tribal customs for which Allaah has not sent 
    down any authority, such as not referring for judgement to the Book of 
    Allaah and the Sunnah of His Prophet  (peace and blessings of Allaah be 
    upon him), and turning instead to tribal customs and ignorant traditions. 
One of these 
    is the concealment of testimony and not bearing witness out of tribal 
    loyalty, or bearing false witness out of tribal loyalty also. And there are 
    other reasons that may lead some people to go against sharee’ah. 
Because of 
    our duty to be sincere towards Allaah and His slaves, I say – and Allaah is 
    the source of strength: 
The Muslims 
    are obliged to refer for judgement to the Book of Allaah and the Sunnah of 
    His Prophet  (peace and blessings of Allaah be upon him) in all things, 
    and not to man-made laws or tribal customs. Allaah says (interpretation of 
    the meaning): 
“Have you 
    not seen those (hypocrites) who claim that they believe in that which has 
    been sent down to you, and that which was sent down before you, and they 
    wish to go for judgement (in their disputes) to the Taaghoot (false judges) 
    while they have been ordered to reject them. But Shaytaan (Satan) wishes to 
    lead them far astray”
[al-Nisa’ 
    4:60]
“Do they 
    then seek the judgement of (the days of) Ignorance? And who is better in 
    judgement than Allaah for a people who have firm Faith”

    [al-Maa'idah 5:50]
No Muslim 
    should give precedence to the rule of anyone other than Allaah over the rule 
    of Allaah and His Messenger, no matter who he is. Just as worship is for 
    Allaah alone, so too is the judgement or decision, as He says 
    (Interpretation of the meaning): 
“The 
    decision [hukm] is only for Allaah,”

    [al-An’aam 6:57]
Referring 
    for judgement to anything other than the Book of Allaah or the Sunnah of His 
    Messenger  (peace and blessings of Allaah be upon him) is one of the 
    greatest of evils and the most abhorrent of bad deeds, but as to whether the 
    one who does that is a kaafir, that is subject to further discussion. Allaah 
    says (interpretation of the meaning): 
“But no, 
    by your Lord, they can have no Faith, until they make you (O Muhammad) judge 
    in all disputes between them, and find in themselves no resistance against 
    your decisions, and accept (them) with full submission”
    [al-Nisa’ 4:65]
So there is 
    no faith for the one who does not refer for judgement to Allaah and His 
    Messenger  (peace and blessings of Allaah be upon him) with regard to 
    the fundamentals of religion and its minor issues and with regard to 
    disputes concerning rights and duties. Whoever refers for judgement to 
    anything other than Allaah and His Messenger has referred for judgement to 
    the Taghoot (false judges). 
Based on 
    this, the tribal Shaykhs must not judge among the people according to tribal 
    customs that have no basis in Islam and for which Allaah has not sent down 
    any authority. Rather they must refer any disputes among their tribes to the 
    sharee’ah courts. There is no reason why they should reconcile between 
    disputants in ways that do not go against sharee’ah, so long as they consent 
    to that and there is no compulsion, because the Prophet  (peace and 
    blessings of Allaah be upon him) said: “Reconciliation between Muslims is 
    permissible, except a reconciliation that forbids something that is 
    permitted or permits something that is forbidden.” And all the tribes should 
    not agree to anything but the rule of Allaah and His Messenger … End quote 
    from Majmoo’ Fataawa wa Maqaalaat al-Shaykh IbnBaaz (5/142). 
The Standing 
    Committee for Issuing Fatwas was asked: What is the ruling if two men argue 
    and refer for judgement to customary laws, and each of them chooses someone 
    they think is of good character, and they agree to whoever among the tribal 
    Shaykhs they choose to judge between them, and they sit before him and each 
    of them states his case against the other. If it is a simple case, he rules 
    usually rules that the one who is in the wrong should slaughter an animal 
    and invite his opponent to the feast; and if it is a serious case he gives a 
    judgement of al-janbiyyah, which in the past meant that they would strike 
    him on the head with a sharp instrument until his blood flowed. But nowadays 
    they pay the janbiyyah in money and they call this reconciliation. This is 
    something that is widespread among the tribes and they call it a madhhab, 
    and if you do not approve of what they do, they call you qaati’ al-madhhab 
    (one who has forsaken the madhhab). What is the ruling on this? 
Answer: The 
    Muslims must refer for judgement to Islamic sharee’ah, not to tribal laws. 
    What you have mentioned is not a reconciliation in the true sense, rather it 
    is referring for judgement to customary principles. Hence they call it a 
    madhhab, and they say of the one who does not agree with the ruling that he 
    has forsaken the madhhab. Their calling it a reconciliation does not alter 
    the fact that it is referring for judgement to Taghoot (false judges). The 
    ruling that they stipulate, of slaughtering an animal or striking the head 
    with a sharp instrument until the blood flows is not a shar’i ruling. 
Based on 
    this, the tribal Shaykhs should not judge between people in this manner, and 
    the Muslims should not refer to them for judgement, until they (the Shaykhs) 
    turn away from that to Islamic laws. Today – praise be to Allaah – the 
    authorities have appointed judges who judge between the people and resolve 
    their disputes in accordance with the Book of Allaah and the Sunnah of His 
    Messenger  (peace and blessings of Allaah be upon him) and who solve 
    their problems in ways that do not go against the laws of Allaah, may He be 
    exalted. So there is no excuse for anyone to refer for judgement to false 
    judges, after the appointment of scholars of Islam to whom they may refer 
    for judgment and who judge in accordance with the law of Allaah. 
And Allaah 
    is the Source of strength. May Allaah send blessings and peace upon our 
    Prophet Muhammad and his family and companions. 
The Standing 
    Committee for Academic Research and Issuing Fatwas. 
‘Abd-Allaah 
    ibn Qa’ood, ‘Abd-Allaah ibn Ghadyaan, ‘Abd al-Razzaaq ‘Afeefi and ‘Abd 
    al-‘Azeez ibn Baaz. End quote. 
As that is 
    the case, it is not permissible for you to take part in his judgement or to 
    pay the money or take it. Rather you must disavow yourself of that, and you 
    must advise these people and explain to them the seriousness of what they 
    are doing by passing judgements that are not in accordance with sharee’ah. 
    They have no excuse for that, even if their governor is a Christian who does 
    not apply the rulings of Allaah. They have to advise one another and strive 
    to apply the rulings of sharee’ah as much as they can; whatever they are 
    unable to apply, it is not permissible for them to invent rulings for it, no 
    matter what interests they think may be served by that, otherwise they will 
    be sinners who are introducing jaahili ways into Islam. 
Secondly: 
The majority 
    of Maaliki, Shaafa’i and Hanbali fuqaha’ are of the view that if a woman is 
    forced into zina (raped), then the rapist must pay a mahr equal to that of 
    her peers. 
If she was a 
    virgin, is she entitled to compensation for loss of virginity along with the 
    mahr? 
Some of the 
    fuqaha’ are of that view, and it was narrated from Ahmad (may Allaah have 
    mercy on him), but the well known view of the Hanbalis is that compensation 
    for loss of virginity is not required, and the one who is forced into zina 
    can only take a mahr equal to that of her peers. The Maalikis also pointed 
    out that this mahr is not to be paid collectively by the male relatives of 
    the rapist, because zina is a deliberate action, it is not something that 
    can happen by mistake.  
The Hanafis 
    differed from that and did not impose a mahr for a woman who is forced into 
    zina, whether she was a virgin or not. 
This was 
    also narrated from Ahmad (may Allaah have mercy on him), and was the view 
    favoured by Shaykh al-Islam Ibn Taymiyah, who said concerning the mahr:  it 
    is khabeeth (evil). 
Thirdly: 
If he forced 
    her to commit zina and he destroyed the barrier between the urethra and 
    vagina, then he must pay the mahr and also compensation, but there was a 
    difference of opinion as to the amount. The Hanafis and Hanbalis say that it 
    is one-third of the diyah, and the Shaafa’is say that it is the full diyah. 
    The Hanafis agree with them if he destroys the barrier between the urethra 
    and vagina and she can no longer control her urine.  
See 
    al-Mabsoot (9/53), al-Muntaqa by al-Baaji (7/77), al-Taaj 
    wa’l-Ikleel (8/342), Mughni al-Muhtaaj (4/75), al-Mughni 
    (7/209, 8/373), al-Insaaf (8/306-308), al-Mawsoo’ah al-Fiqhiyyah 
    (5/297, 21/95). 
Conclusion: 
    The mahr which is paid to the woman who is forced into zina (raped), and the 
    mahr and compensation for loss of virginity which is paid to a virgin who is 
    forced into zina, must be paid from the wealth of the zaani and not by his 
    male relatives, and it must go to the woman who was forced into zina, not to 
    her relatives. As for the woman who willingly commits zina, she is not 
    entitled to anything. 
All of this 
    comes after zina has been proven and the hadd punishment has been carried 
    out. This makes clear the difference between what is narrated in sharee’ah 
    and the ruling of tribal customs. 
And Allaah 
    knows best.