A Common Justice. Uriel I. Simonsohn
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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