A Common Justice. Uriel I. Simonsohn
Читать онлайн книгу.
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