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CHAPTER 2

Islam’s Judicial Bazaar

A beautiful woman appealed to the qāḍī. [The qāḍī] found her attractive and therefore sought to marry her. [In response] she said: “I do not wish to marry.” … [S]he then turned to the chief of police [shurṭā] from whom she received the same [response] she had received from the qāḍī. She then turned to the head of the market, from whom she received the same. She then proceeded to [King] David’s chamberlain, yet [once again] the response she received was the same as she had from the others. Consequently, she withdrew her lawsuit and remained at home.¹

It is possible that this passage, taken from ‘Umāra ibn Wathīma’s (d. 902) ninth-century collection of prophetic tales (Qiṣaṣ al-Anbiyāʾ), reflects the author’s understanding of biblical judicial arrangements in his own contemporary terms.² The choice between several judicial figures provides the setting for the pseudo-biblical narrative. As early as the seventh century, Muslim officials, including qāḍīs, police officials, market overseers, and governors fulfilled a judicial role, in a way that exhibited a plurality of overlapping judicial authorities. This feature of Islamic judicial practices was continuous with the practices of the pre-Islamic period and, as such, was the target of later Islamic state reforms.

By the early eighth century, the vast territory between the western frontiers of Central Asia in the east and the Iberian Peninsula in the west had been brought under the sovereignty of a single empire. The administrations of the Eastern Roman and Sasanian Empires had been replaced by that of Islamic government. Although still undergoing a process of consolidation and formation, the Islamic regime sought to introduce new patterns of governance and social organization. These included the creation of a judiciary designed to serve the religious ideology of Muhammad and his followers. But the judicial organization of the Islamic state, like other areas of its administration, did not emerge overnight. Rather, its evolution was gradual and passed through a series of milestones.

The present chapter outlines and discusses the judicial institutions to which Muslims had access during the period of the broader study. A multiplicity of judicial institutions, along with a variety of other judicial practices, is seen here as an expression of a legacy handed down to the Muslims from their pre-Islamic predecessors. In this respect, this chapter, like the previous one, purports to contextualize the discussion that lies ahead. It aims not only to assist in filling in the picture of judicial arrangements but also to bolster the governing theme of this study as a whole: the prevalence of legal pluralism throughout the region and period of our discussion and the ongoing conflicts over social control that revolved around it.

The consolidation of the Islamic state entailed the formation of Islamic jurisprudence, followed by the establishment of the Islamic judiciary. At the same time, however, legal exclusiveness was never fully achieved by the Islamic state, and a diversity of legal authorities continued to persist not only within its own apparatus but also outside it, because of its inability to suppress customary practices. The Islamic state, in other words, was not the sole patron of legal institutions but rather shared its authority with local forces that either represented or supplemented it. Formally speaking, Islamic law was the sole point of reference in the administering of justice. Yet the incorporation into Islamic law of customary practices, the survival of pre-Islamic practices, and the persistence of Jāhilī norms attest to a complex setting that involved much interplay among different sources of law within the broader context of administrative decentralization, social informalism, and legal pluralism.

As in the case of the late Roman and Sasanian Empires, legal pluralism under Islamic rule implied a multiplicity of institutions within a single legal order. But in contrast to John Griffith’s definition of “weak” legal pluralism, different rules and institutions were not necessarily prescribed by a single social order.³ The Islamic state had a limited ability to legislate or to insist upon a uniform implementation of the law. Instead, it sponsored or acted alongside the legal enterprises of jurists and provided the infrastructure for the implementation of the law. Although there was formally only one recognized legal order (the sharī‘a), its exploitation by various social groups introduced a diverse legal setting that, in turn, facilitated a notable institutional variety. These features of diversity and variety formed the background for an ongoing competition among the various power groups, particularly between Muslim jurists, on the one hand, and state bureaucrats and upholders of customary practice, on the other. Here, too, religious ideals were of immense importance, with judicial institutions essentially functioning as the practical application of a theological triumph: the triumph of Islam over pre-Islamic codes of normative behavior.

Islamic Judicial Institutions in Modern Scholarship

Modern scholars tend to outline the Islamic judicial organization in terms of a number of well-defined offices.⁴ At the top of this structure stood the caliph, the formal successor of Muhammad, who embodied both temporal and spiritual power. The judicial office of the Commander of the Faithful stemmed from the concept that Islam is “the community of Allah,” the umma,⁵ whose first judicial authority was Muhammad.⁶ The period of Allah’s messenger served as a model for future generations; consequently, his successors, the caliphs, assumed the supreme position in law-giving and judgment.⁷ As early as the Umayyad period, the caliph delegated judicial authority to provincial governors, who further delegated judicial prerogatives to local judges (qāḍīs).⁸ Modern scholars view this structure as part of the evolving administration of the early Islamic state, constituted in the newly conquered territories in accordance with earlier legal traditions—most notably, Roman, Sasanian, and Arabian.⁹

The Evolution of the Islamic Judicial Organization

According to Joseph Schacht, ancient Arab practices of arbitration persisted from the time of the first caliphs until the coming of the Umayyad dynasty.¹⁰ At the same time, the Muslims began to adopt the principles of judicial organization of their Roman predecessors: a hierarchical organization in which the head of state acts as the highest judicial figure and delegates his authority to a regional governor, who, in turn, extends this authority to a local magistrate.¹¹ It is commonly acknowledged that a central feature of the development of Islamic administration was the growing independence and localization of qāḍīs around the eighth century. Despite attempts to control the territory notionally under its sovereignty, “inadequate means of communication and inadequate public finances” were the sources of the limits to state authority.¹² Consequently, while local qāḍīs enjoyed greater autonomy vis-à-vis the state, they were becoming increasingly dependent on local aristocracies and local religious leaders.¹³

The response of early Islamic governments, most notably under the Abbasids, was characterized by attempts to achieve greater centralization through an intimate involvement in the appointment of qāḍīs and a clearer definition of the latter’s qualifications and prerogatives. In addition, the judiciary was gradually broken down into separate jurisdictions, thus rendering the qāḍī court limited to questions of religious law. The creation of three offices—the “chief judge,” qāḍī al-quḍāt; the “investigation of complaints,” al-naẓar fī-l-maẓālim; and the office of the “inspection of the markets,” the ḥisba—has been seen in this context. The chief judge sat in the capital of the caliphate and, under the caliph, was the supreme judicial authority.¹⁴ The office was meant to erase the previous equality between metropolitan and provincial judges. In addition and, perhaps, more importantly, by establishing this office, the Abbasid caliphate was able to place provincial qāḍīs under stricter surveillance and supervision.¹⁵ By the second half of the tenth century, after the Fatimid takeover of Egypt, the office had also taken on a role in imperial politics. The Fatimids appointed their own chief judge in Cairo as part of their attempt to signal political independence. Yet while the Islamic judicial administration in the territories under Fatimid rule came under the authority of the chief judge in Cairo, the qāḍīs outside these territories were officially still under the authority of Baghdad.¹⁶

The office of the investigation of complaints has been described as one that was originally established so that litigants could lodge complaints against governmental ill treatment. This also included the miscarriage of justice, particularly by qāḍīs. With time, however, this court of appeal became another form of tribunal that dealt with matters of a secular nature, such as property and commercial affairs.¹⁷ The judicial sessions of the maẓālim court were led by a secular dignitary, such as a governor or vizier.¹⁸ These figures acted on behalf of the ruler and had access to means of enforcement. As such, the maẓālim court had a crucial advantage over that of the qāḍī, who had to rely on the cooperation of the police (shurṭā) for the enforcement of his decisions. Thus, not only was the qāḍī’s office placed under the control of state bureaucracy; it was also “relegated to a secondary position.”¹⁹

The third judicial office introduced by the Abbasids, the “inspection of the markets” (ḥisba), had civil and criminal judicial prerogatives.²⁰ The establishment of this office was a further blow to the qāḍī’s jurisdiction. In the narrow sense, the role of the inspector (muḥtasib) was to address matters of dispute that arose in the market. Yet, in practice, he was entrusted with supervision over the morality of the community and hence claimed judicial sanctions that had thus far been reserved for the qāḍī.²¹

The prevalent understanding is that the caliphal court, particularly under the Abbasids, sought to reserve for itself the prerogative of appointing qāḍīs by limiting their jurisdiction.²² Although the first to initiate a direct appointment of qāḍīs was the Umayyad caliph Sulaymān ibn ‘Abd al-Malik (r. 714-17),²³ the procedure was not formalized until the time of the legal reforms of Hārūn al-Rashīd (r. 786-809). Yet centralization may have only added to the local autonomy of qāḍīs.²⁴ Hence, the first to support this administrative modification were Muslim jurists (fuqahā’) who sought to achieve greater influence over the qāḍī’s office at the expense of local government officials, namely, the governors.²⁵

The growing involvement of legal specialists in the qāḍī’s office, on the one hand, and the caliphal policy of extending direct control over the qāḍī, on the other, is thought to have introduced a better idea as to the qāḍī’s judicial jurisdiction. Throughout the Umayyad period and, to a certain extent, into the early Abbasid period, qāḍīs were simultaneously fulfilling a variety of tasks, such as collecting taxes, acting as storytellers, and even serving as governors. This reality was to be replaced by a stricter definition of what services qāḍīs may and may not perform. With the establishment of the ḥisba and, later, the maẓālim, the qāḍī’s jurisdiction was even further limited to matters pertaining to Islamic law, the sharī‘a.²⁶ As a result, modern scholars hold the view that qāḍīs were increasingly drawn from a background of religious learning and specialized in religious law. Accordingly, the qāḍī may have received his formal appointment from the caliphal court; but in practice, his allegiance to local scholars grew stronger, and the legitimacy of his office relied heavily on their support.²⁷ Here joint membership in a legal school (madhhab) served to consolidate political factionalism.²⁸ It is under circumstances of mixed loyalties to state and local forces that qāḍīs found themselves at the center of conflicting ideological and doctrinal affiliations. By choosing to ally with the state, the qāḍī won its support and was officially able to secure his office. Yet such an allegiance had a price, for not only was the qāḍī’s judicial independence at risk but also his legal and religious integrity.²⁹

Administratively, local qāḍīs are seen as part of a judicial hierarchy, passing on judicial prerogatives to a lower class of judges (nuwwāb) and entrusting them with full or partial jurisdiction over small towns.³⁰ Two (or more) qāḍīs could serve within the same geographical jurisdiction, with each one addressing distinct legal matters, such as penal or family law.³¹ The height of this specialization is thought to have come about in the ninth century. At the same time, qāḍīs continued to fulfill certain tasks that customarily had been in the hands of their predecessors: supervision of charitable foundations (awqāf), guardianship of orphans, administration of the property of absentees and men who died without heirs, addressing petitions of those seeking to convert to Islam, attending to public works, and participating in public events (Friday prayers, funerals, and announcements of the sighting of the moon that signaled the end of the Ramadan fast).³²

S. D. Goitein, referring to the Geniza period (predominantly the High Middle Ages), observed: “The most impressive aspect of Muslim juridical organization, as evidenced in our records, is its strict centralization.”³³ This statement clearly corresponds to the picture that emerges from the aforementioned summary of modern scholarship. It is an image characterized by qualities of unity, administrative hierarchy, division of tasks, and centralization. At the center of this image, we find the office of the qāḍī, a developed judicial institution that stemmed from its pre-Islamic precedent, the ḥakam. Whereas the latter was the product of an era of ignorance and chaos, the office of the qāḍī, at the zenith of its formation, served as a manifestation of the ideal society. As such, the qāḍī’s sole source of reference was the sharī‘a. He owed administrative loyalty to the caliphal court and ideological loyalty to Muslim jurists. Furthermore, he was highly trained and specialized and was entirely devoted to his office, thus refraining from assuming other posts.

What seems to be under debate among modern scholars is not the process by which pre-Islamic institutions were replaced by Islamic ones but rather the chronology of this process. Some are inclined to view the evolution of Islamic judicial institutions shortly after the Arab takeover within the newly conquered lands as replacing the preexisting judicial institutions found there.³⁴ Others choose to advance the chronology, suggesting only a gradual disappearance of pre-Islamic Arabian arbitration institutions.³⁵ Yet the overall image is one of an Islamic administration constantly attempting to tighten its control over shar‘ī judicial institutions.

The centralization of the Islamic judiciary was to come at the expense of preexisting Arabian judicial institutions and practices. Émile Tyan, referring to the nature of the judicial organization under Islam, commented: “It certainly could not be the primitive system of arbitral justice of pre-Islamic Arabia that would prevail.”³⁶ Schacht provided the reason for this development: “The arbitration of pre-Islamic Arabia and of the earliest period of Islam was no longer adequate, and the Arab ḥakam was supplanted by the Islamic qāḍī.”³⁷ Goitein expressed less confidence concerning the “dying out” of pre-Islamic practices: “ḥukm al-Jāhilīyya, judgment according to arbitrary opinion or established local practice, did not disappear immediately … but was replaced only gradually … and, as is well-known, never completely.”³⁸

The Sources’ Bias

Plausible as modern interpretations may appear, we should recall that they are largely based on a limited body of sources. These were composed in different periods and were often used for advancing specific agendas.³⁹ Moreover, it is essential to stress that medieval prescriptive accounts, such as the adab al-qāḍī literature (see below), sought to perpetuate an ideology that was meant to denigrate the pre-Islamic period. In contrast to the chaotic pre-Islamic era, Muslim proponents endeavored to introduce, through the framework of the umma, features of social order and stability within a monotheistic setting.⁴⁰ In order to promote this new ideology, there was a need to constantly undermine Jāhilī values and institutions by labeling them as pagan and anarchistic.⁴¹ Thus, for example, the term ṭāghūt, denoting (among other things) pre-Islamic Arabian deities, was a derogatory term used in the Islamic period to refer to customary Arabian legal practices.⁴² The dialectic between the pre-Islamic past and the Islamic present became more pronounced in the case of judicial institutions. Here the role of the judiciary came to be of particular importance as a central means for implementing the proper conduct of Islamic life according to Allah’s will. Thus, one way of treating medieval Islamic sources is less as accounts of a real society than as those of an ideal one.

We should remember that the authors of medieval accounts were legal scholars. Prescribing norms, they sought to portray an image of an ideal legal order.⁴³ The most explicit testimony to the views of Muslim jurists can be found in legal treatises, which systematically outlined legal principles and regulations in accordance with their respective legal affiliation (madhhab). Admittedly, these treatises make reference to arbitration (taḥkīm) as a legitimate form of Islamic adjudication. Yet when we examine arbitration principles closely, we find that, for the most part, Muslim jurists, irrespective of their legal affiliation, tended to allow this form of legal resolution in very few instances, rendering it significantly inferior to the qāḍī’s authority.⁴⁴

The efforts of Muslim legal scholars to dominate legal institutions can be seen in the composition of numerous treatises of anecdote collections and of judicial etiquette manuals (adab al-qāḍī).⁴⁵ The latter were composed by legal scholars of all doctrinal affiliations in order to codify a series of regulations for qāḍīs to follow.⁴⁶ Adab al-qāḍī authors were legal theorists and practicing judges who often maintained close relationships with political powers.⁴⁷ Their works reveal their preoccupation with two particular matters: general rules regarding the judiciary and judicial conduct; and judicial procedures such as testimony, swearing oaths, and issuing documents. Thus the professional pre-requisites of the qāḍī’s office are outlined as follows in al-Khaṣṣāf’s (d. 874) Kitāb Adab al-Qāḍī:

[I]t is not permitted to anyone to assume the office of the qāḍī until he masters the Scriptures, the normative legal custom [instituted by the Prophet] [sunna], independent reasoning [ijtihād], subjective opinion [ra’y], and investigation [naẓar]. This is since [though] he may be able to master the text of the Scriptures and the legal custom, he [may] not possess the [skills of] argumentation, investigation, and locating the derivative institutes of the law [furū‘] in their theoretical foundations [uṣūl]. [In that event] he will not be able to pass sentence.⁴⁸

Procedural concerns can be seen in the discussion over testimony: “The testimony of a eunuch is permissible since he is a man, and it is included in his words: ‘Get two witnesses out of your own men’ (Q. 2:282). And it is told about ‘Umar (the second caliph, r. 634-44) that he permitted the testimony of ‘Alqama the eunuch without disapproval on the part of any of the companions.”⁴⁹

From a historical perspective, the value of this literature goes beyond the technical information that it contains. An examination of the contents of adab al-qāḍī works exposes the norms and patterns of practice that Muslim jurists sought to establish. Although Islamic law has developed over time, the relevance of this literature has persisted because of its theoretical and normative character.⁵⁰

The attempt to dominate a means of social control, through which an ideological outlook could be transmitted, is exemplified by the case of medieval Muslim preachers and storytellers. Jonathan Berkey, in his study on popular preachers in medieval Islam, has convincingly shown how state bureaucrats and religious scholars sought to control the activities of popular preachers.⁵¹ Berkey’s analysis is noteworthy for the present analysis, as it illustrates a case in which social control was channeled through a literary discourse. It concerns preachers and storytellers, who, like jurists, played a crucial role in answering questions concerning proper behavior and practice.⁵²

Muslim jurists tended to stress the impeccable qualities of the qāḍī. The ideal judge was to avoid state appointment.⁵³ By highlighting cases in which individuals sought to escape judicial appointment, the authors of these works depicted the ideal scholar as a man of great piety, who appears in contrast to those who accept state employment.⁵⁴ There appear to be numerous anecdotes of this type referring to scholars who sought to escape judicial office.⁵⁵ The recurring theme of scholars escaping an appointment to the qāḍī’s office makes it plausible that such anecdotes were not meant only to discourage scholars from assuming temporal offices but also to encourage judges to seek appointment by sources other than the state. A variety of case studies dealing with the office of the qāḍī in provincial towns such as Timbuktu, Nishapur, Tyre, Tripoli, and Damascus attest to the control of local urban elites over local judicial institutions.⁵⁶ Here it is worth recalling that these elites were dominated by Muslim scholars who insisted on a monopoly over judicial appointments. In sum, the contents of medieval accounts should be taken with a grain of salt. This indispensable source material notwithstanding, far too many indications suggest that the authors of Islamic legal literature were themselves active participants in the very system that they were observing.⁵⁷

Informality and Diversity: The Endurance of Pre-Islamic Customary Practices in the Classical Period

Early Islamic literature offers a very limited idea as to the type of judicial options that were available to Muslims. The impression of a formal and centralized judicial structure is enhanced not only by the sources’ insistence on presenting such a judicial organization but also by their silence with respect to customary judicial practices. The fact that many of those who adhered to customary law were illiterate could be seen as one reason that “the literary classes” chose to ignore them and their practices.⁵⁸ While custom (‘urf or ‘ada) had been incorporated into Islamic jurisprudence and its principles had been applied in Islamic courts, its institutional manifestations were never acknowledged.⁵⁹ As a rule, however, it would be an error to draw a rigid line between shar‘ī and non-shar‘ī judicial institutions in a way that would imply the wholesale adoption of strict customary or shar‘ī legal principles.⁶⁰ Instead, customary practice not only found its way into the sharī‘a but also thrived outside of its realm in the form of customary judicial institutions. Thus, rather than turning to a qāḍī, individuals might have chosen to settle their disputes or validate their transactions through the oversight of a variety of figures, whose legitimacy was drawn from their reputation and from personal ties to the litigants.

Notions of holiness also contributed to fostering relations of trust among individuals. This was the case, for instance, of the supernatural authority attributed by Arab tribesmen to members of holy families, who trace their authority to an ancestral background linked to a prophet or a saint.⁶¹ Thanks to their holy reputation, such figures were found presiding over tribal arbitrations.

Pre-Islamic Arabian Judicial Institutions

Modern scholars seem to agree that the Muslims established their legal administration in the conquered territories based on past traditions. Yet the question of their main source of inspiration remains unresolved. Schacht’s well-known emphasis on Iraq as the cradle of Islamic law has been countered on a number of grounds.⁶² Patricia Crone has strongly argued against what she describes as Schacht’s overemphasis of the adoption of foreign elements in Iraq and his disregard for the influence of Roman, Syrian, and Egyptian provincial practices, noting that “Schacht never discussed the possibility that Roman law was transmitted to Islam through Umayyad Syria.”⁶³ Although Crone agrees that the heritage of Roman administrative paradigms cannot be denied, she argues that provincial customary practices supplemented formal ones and should therefore be taken into account in the search for the origins of Islamic models.⁶⁴

Modifications of perceptions are indeed in order, but a stronger point needs also to be made about the role of pre-Islamic Arabia. Further challenge to Schacht’s ideas has come from the direction of Harald Motzki’s study of ‘Abd al-Razzāq’s (d. 826) Muṣannaf,⁶⁵ in which he claims that it is possible through a method of assessing authenticity and forgery in early Islamic traditions “to venture back in to the first/seventh century.”⁶⁶ Similarly, Wael Hallaq argues for the need to place greater weight on the role of pre-Islamic Arabian society: “It was these societies and cultures that provided the larger context in which Islam, as a legal phenomenon, was to grow.”⁶⁷ Accordingly, the Qur’an and early traditions should be partially viewed as a reconfiguration of Arabian customary practices.⁶⁸ It is not surprising, therefore, to find among the early qāḍīs men who had first served as arbiters in the pre-Islamic period.⁶⁹ The first generations of Muslim judges were most likely able to rule based on the only system that they were familiar with: customary Arabian practices. This presumption receives further support through the idea that the first Muslims who settled outside Arabia chose to sustain their tribal organization.⁷⁰

Regardless of whether the origins of Islamic legal institutions are to be traced to Arabia, to the Fertile Crescent, or to Iraq, there is good reason to closely consider Arabian models. Pre-Islamic Arabian society consisted of both sedentary and nomadic groups and therefore had to create laws that would serve tribal, agricultural, and commercial needs alike.⁷¹ The image of judicial practices that emerges from pre-Islamic Arabia is one of an “elaborate legal system with more of an institutional framework.”⁷² It attests to a mixture of overlapping judicial institutions of diverse forms and sources of authority.