The Judicial System

Sources

Judges . The exercise of legal and judicial decision making was at first in the hands of Muslim political rulers representing the khalifah, who in turn represented the authority of the Prophet. The Prophet had exercised the judicial function in his own community exclusively by himself; his initial role on arriving in Madinah had been as judge for the disparate communities of that oasis (Qur’an 4: 58; 5: 42–43, 48–49). Under the khalifahs, judges were originally legal advisers to the governors. When the governors became too busy with other affairs to handle legal cases themselves and when caseloads increased in proportion to the growing number of Muslims and the multiplication of legal problems in a society that was becoming more complex, the governors transferred jurisdiction over legal cases to the legal advisers completely. The legal advisers who became judges were people who were learned in the Shari‘ah (sacred law) and carefully considered it in their rulings. Thus, they served as somewhat of a bridge between the state and the religious community during the early period.

Independent Judiciary . The chronology of the inauguration of the independent judicial system (qada’)is obscure. The Prophet is said to have sent Mu’adh ibn Jabal to serve as judge to part of Yemen, but other traditions make it clear that the office of Mu‘adh, if historical, was a political governorship that included authority over

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judicial matters, not a pure judgeship. Certain traditions attribute the foundation of the judiciary to the Khalifah Umar ibn al-Khattab (634–644), but others state that he was his own judge, which is undoubtedly correct. Probably the first appearance of a separate judiciary may be located in the reign of an early Umayyad, perhaps Mu‘awiyah I (661–680). Judges served at the pleasure of the ruler, but this limit did not necessarily compromise their integrity, for juristic knowledge was respected, and judges sometimes held office for long terms. Quite often a judge was continued in office in spite of a change of government. On the other hand, the idea eventually became widespread that a scholar ought to avoid judicial office because of the taint of the state. Many of the first-ranking scholars of Islam never held such office, but a substantial number did accept judgeships, often reluctantly, probably because of the belief that someone had to do it. Among the well-known scholars who held judgeships were Abu Yusuf (732–798), al-Shaybani (750–805), al-Baqillani (died 1013), ‘Abd al-Wahhab al-Baghdadi (973–1031), ‘lyad ibn Musa (1083–1149), Abu Bakr Ibn al-‘Arabi (1076–1148), al-Baydawi (died 1286), Ibn Khaldun (1332–1406), and Ibn Hajar al-‘Asqalani (1372–1449).

Legal Texts . Although the position of judge in a Muslim court is somewhat analogous to that of a modern judge in a Western court, there are several distinct differences. The law by which the Muslim judge ruled was not built up by cases and precedents, but rather consisted of a body of legal texts elaborated by many different independent scholars over the centuries. While these texts were prescriptive in nature, laying down specific laws to be followed, they also included a huge variety of differing legal opinions on many issues. Over the centuries the body of the law was constantly being renewed by new compositions and compilations. Thus, the judge had a considerable body of texts on which to build his decisions. To some extent, these books of jurisprudence took the place of case precedents and functioned in the same way, as authorities to be cited. The production of such books, once started, has continued throughout Muslim history to the present day. They eventually came to be supplemented by books of religious opinions responding to particular questions, often inquiries by ordinary people. Such opinions are called fatwas and their issuer is a mufti (jurisconsult). A fatwa was never viewed as setting a precedent; rather, it was only a response of a single authority on a single question. It remained for the state to decide whether to put fatwa into force, and such actions were rare, except where the state itself was the inquirer. Nevertheless, fatwas also became commonly cited in judges’ legal opinions, when their sources were disclosed (and often they were not).

Courts . Once a Shari‘ah judge had ruled on a matter, the decision was final in theory. In practice, however, recourse was sometimes had to parallel courts called maza-lim courts, which functioned more directly under the supervision of the government. They also enforced the Shari‘ah but frequently ignored the standards of judicial procedure and evidence set by the Shari‘ah in order to be more immediately effective. Another difference from the modern practice of law, which was also the case in other premodern systems, was that everyone, both plaintiffs and defendants, had to answer for themselves in person; attorneys were not to represent anyone. This provision was made because the purchase of eloquence for representation would not be egalitarian since only the rich would then be well represented (a complaint often made today). A person in a Shari‘ah court could seek legal advice outside the court, but inside it everyone had to represent himself or herself.

Sources

Abu’l-Hasan al-Mawardi, al-Ahkam al-Sultaniyyah: The Laws of Islamic Government, translated by Asadullah Yate (London: Ta-Ha Publishers, 1996); also translated by Wafaa H. Wahba as The Ordinances of Government (Reading, U.K.: Garnet Press, 1996).

J. S. Nielsen, “Mazalim,” in Encyclopedia of Islam, CD-ROM version (Leiden: Brill, 1999).

Émil Tyan, and Kaldy Nagy Gy, “Kadi” Encyclopedia of Islam, CD-ROM version (Leiden: Brill, 1999).

Tyan, Histoire de l’organisation judiciaire en pays d^Tslam, second edition (Leiden: Brill, 1960).