Müller (Christian)_Judging With God's Law on Earth. Judicial Powers of the Qāḍī Al-jamā‘a of...

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1/29

Judging with God's Law on Earth: Judicial Powers of the Qāḍī al-jamāʿa of Cordoba in theFifth/Eleventh CenturyAuthor(s): Christian MüllerSource: Islamic Law and Society, Vol. 7, No. 2, Islamic Law in Al-Andalus (2000), pp. 159-186Published by: BRILLStable URL: http://www.jstor.org/stable/3399399 .

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2/29

JUDGING WITH GOD'S

LAW ON EARTH:

JUDICIAL

POWERS

OF

THE

QADi

AL-JAMA'A

OF

CORDOBA

IN

THE

FIF

H/ELEVENTH

CENTURY*

CHRISTIAN

ULLER

(Wissenschaftskolleg

u

Berlin)

Abstract

Court

cases

from al-Ahkdm

al-kubrd,

afatwC

collection

compiled

by

the

Andalusian

qddi Ibn Sahl

(d. 486/1093),

form

the basis

for this

inquiry

nto

the

judicial

authority

of the

qddi

al-jamd'a.

The

article,

which

deals with

both

institutional

and

legal

aspects

of the

office,

demonstrates hat

adherence o

procedural

aw

during

ourt

procedure

nd

consideration

f the

jurisconsults'

egal

opinions

were

required

o

produce

a

judgment

hat was

binding

but

potentially

reversible.

he

possible

nfluence

f

Malikifiqh

on

the

range

of

qdti

jurisdiction

n

Cordobas testedon a sampleof fiftycases thatoriginatedn theperiodbetween

456/1064

and

464/1072.

These cases

are

noteworthy

or their

reliability

s source

material ndbecause

hey

werehandled

ot

only by

the

qddial-jamd'a

utalso

by

other

udicial

magistrates.

Know that

the

qadiship

s

the

most

powerful

and the most venerable

office.

The

qd4.

is the

key

element of

judgment

(maddral-ahkldm)

and

he

is

responsible

for all

aspects

of

qa.dd'-no

matter how

large

or

small,

without

imitation.1

IN

THIS

EXCERPT ROMHIS

RENOWNED

WORK n

qadiship

and

judg-

ment,

Tabsirat

al-hukkdm,

the

Maliki

jurist

Ibn

Farhun

(d. 799/1397)

quotes

the Andalusian

qadd

Ibn

Sahl

(d.

486/1093)

and his

fatwa

collection al-Ahkdm al-kubrd2 on the wide-ranging authority of the

*

Thisarticle

s

therevised

ersion f a

paper

presented

o the II

Joseph

Schacht

Conference

n

Theory

ndPractice f Islamic

Law,

Granada 997.It drawson

my

Gerichtspraxis

im

Stadtstaat C6rdoba.

Zum Recht der

Gesellschaft

in

einer

mdlikitisch-islamischen

Rechtstradition des 5./11.

Jahrhunderts

(Leiden,

1999).

I

wish

to

thankChristaSalamandra

or her

help

in

editing

he

conference

ersion,

DavidPowers

orhis valuable

omments

n

later

draftsof the

article,

and,

ast

but

not

east,

he

anonymous

eaders

or

their

uggestions.

1

Text: I'lam

anna

khuttata

l-qadd'i

a'zamu

l-khutati

qadran

wa

ajalluhd

khataran wa

'ald

l-qddi

madaru l-ahkdmi

wa

ilayhi

n-nazaru

fi

jami'i wujihi

l-

qa.da'i

min

al-qalili

wa'l-kathiri

bi-la

tahdidin,

Ibn

Farhun,

Tabsirat al-hukkdm

i

usul

al-aqdiya

wa

mandhij

al-ahkdm,

ed. Taha 'Abd

al-Ra'uf

Sa'd,

2 vols.

(Cairo,

n.d.),

vol.

I,

93.

2

Ed. R.

Nu'aymi,

An Edition

of

Diwdn Al-Ahkdm al-Kubrd

by

'Isd b. Sahl

(D.486

A.H./1093

A.D.).

Unpublished

Ph.D.Thesis,

St.

Andrews 1978

(hereinafter

"Ahkdm"),which I use with the kind permissionof the faculty. I had no access to

Islamic

Law

and

Society

7,2

Brill,

Leiden,

2000

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3/29

CHRISTIANMjLLER

qddi.

Ibn Farhin reflects the view of laterMaliki

jurists

on how

the

office of the

qadi

was

conceived,3

although

his

representation

of

the

position

held

by

Ibn

Sahl

is

problematic.4

The

present

article

analyzes

the

q.d['s jurisdiction

during

Ibn

Sahl's

lifetime on the basis of several dozen court cases transmitted

n

legal

literature.

This case

study

focuses

on

Cordoba,

the

former

Umayyad

capital

of

al-Andalus,

which had

a

long

scholarly

tradition n

Maliki

legal

interpretation fiqh).

It

investigates

how the

q.df's

role as

judge

was

defined

by legal

normsand

judicial practice.

The

decisive

question

in

legal

terms s whetherandhow

the

Cordovan

qd.di

l-jarn'a

applied

the

sacred law of

Islam.5

After an introduction o the

sources,

I

will

discuss

the

office of

the

q.di al-jamd'a,

its

major

fields of

jurisdiction

andits relation o the other

udges

of Cordoba.

Sources

Ibn

Sahl's

al-Ahkdm

al-kubrd,6

which contains more

than 600

legal

cases

dating

from

the

third/ninth

o

the

fifth/eleventh

century,

covers

the

unpublished

edition of

the

Ahkdmal-kubrd

by

N.

Najjar

(Madrid

1974).

Several

partial

editions

prepared by

Muhammad

'Abd al-Wahhab Khallaf

are sometimes

more

precise

than

Nu'aymi's;

but

they

do

not

cover

the entire work

and

they

quote

each

case

out

of context.

3

On

the

qddi

office in

general,

the

standard work

is

Tyan,

Histoire de

l'organisationjudiciare

en

pays

d'lslam

(Leiden, 1960),

100-429.

4

Ibn Farhufn's tatement is composed of different quotations pieced together

without

regard

for their

context.

He

took

the

invocation "know that"

(i'lam

anna)

from

Ibn

Sahl's

initial enumerationof six different

judicial

offices

(Ahkdm,6)

and

connected

it

to the latter's statement on

the

qddi's

authority.

In

this

excerpt,

Ibn

Farhun

omitted

Ibn

Sahl's

assertion

that the

qddi's authority

was increased

by

the

addition

of

Friday-prayer

eadership

(sahib

al-saldh)

(ibid.,

7).

The

assertion that

qddt jurisdiction

applies

to

claims

of

any

amount

(min

al-qalll

wa'l-kathir

bi-ld

tahdid)

did not

originate

with

Ibn

Sahl,

but was

part

of a

legal

response

to a

case

from

the turn of

the

fourth/tenth

entury

(ibid., 10).

5

This

question, thought

to be decided

negatively

by

Schacht once

and

for

all,

cp.

Schacht,

An

Introduction to Islamic

Law

(5th

ed., Oxford,

1982),

76-85,

has

recently

been

reopened

for

discussion,

see,

for

example,

Wael

Hallaq,

"Model

Shurut Works

and the Dialectic of Doctrine and

Practice",

slamic Law

and

Society

2

(1995),

109-34,

esp.

109-12;

on the link between

judicial system

and

legal

norms,

see

Baber

Johansen,

"Wahrheit

und

Geltungsanspruch:

ur

Begriindung

und

Begrenzung

der

Autoritat

des

Qadi-Urteils

im islamischen

Recht",

La

giustizia

nell'alto

medioevo

II

(secoli IX-XI).

Quarantaquattresima

Settimana di

studio:

Spoleto 11-17 aprile 1996 (Spoleto 1997), 975-1065.

6

"Al-Ahkam al-kubrd"

is the title

most

commonly

used

by

contemporary

scholars.

For

the title of this

treatise

in the

Arabic

biographical

literature,

see M.

Khallaf,

"Makht.ut

Nawazil

Ibn Sahl

al-Asadi al-Andalusi' suira i-l

waqi'

al-

ijtima'i

wa-l-iqtisadi

fi'l-Andalus

fi'l-qarnayn

al-rabi' wa-l-khamis

al-hijri

al-'ashir

wa-l-hadi 'ashar

al-miladi",

Majallat

Ma'had

al-Makhtutat

al-'arabiyya,

26

(1983),

735-44,

esp.

735.

160




4/29

JUDGING

WITHGOD'S

LAW ON EARTH

manyaspects

of

judicial practice

n Cordoba.Unlike othercollections

of

legal

responsa,

bn

Sahl transmittedhe

legal

proceedings

hat ed

to

the issuance

of

fatwas,

in addition

to the

fatwas

themselves.

His

declared ntentionwas

to teach students

how

to issue

afatwa

for court

and

to

give

them

practical

examples

of

fatwd-giving.7

Providing

a

careful

transmission

of all

important

udicial

facts,

al-Ahkdmal-kubrd

served as

a

textbook

for the

technical

training

of

judges

and

jurisconsults.8

In this

collection,

Ibn Sahl

provides

a detailed

description

of

some

fifty

court

cases that

were

heard

in

Cordoba between

the

years

456/1064

and

464/1072.

These

eleventh-century

ases standout

for the

richness of historical detailand the vividness

of

the

legal

discussions

contained herein.Itwould be hardto

explain

this

specific

materialas

the theoretical

reasoning

of some

jurists

trying

to

develop

the

legal

matter

of their

time.

Ibn Sahl

not

only

lived at the time that the

events

took

place,

but

also

participated

n most

of

the

lawsuits

as a scribe

or

jurisconsult.

A considerable

proportion

of these cases

were

dealt

with

by judicial

magistrates

hukkdm,

ing.

hakim),

appointed

officials

in

the

service

of

the ruler.

Of

the

fifty

cases considered

here,

thirteen

were

heard

exclusively

by

one or

two

qadls, twenty-three by

a

market

inspector

(sahib

al-shurta

wa'l-suq),

and three

by

the

town

inspector

(sahib

al-madina).

Two cases dealtwith

by

the

q.dil

were laterresumed

for differentreasons

by

the market

nspector;

and

in

one other

case,

the

opposite

occurred.

The

judge

of

complaints

sahib

al-mazalim)

ook

up

one case of a

qcdl,

and, in anothercase, a qddl was called in to

confirm a

judgment by

the sahib

al-mazalim.

One

case heard

by

the

market

nspector

was

resumed

by

the

sahib

al-mazalim;

n four

cases

involving

the

sahib al-mazalim

no

other

udges

are

named.This

leaves

only

one case

to the administrator

f endowments

.sahib

l-ahbds).

This

detailed

sample

of

cases sheds

light

on the

qddl's jurisdiction

as it relates to

other

judicial

magistrates.

The selection of eleventh-

century

cases for inclusion

n al-Ahkdm l-kubrdwas

obviously

due

to

a

personal

ink

with Ibn Sahl

rather han to

systematic

egal

considera-

tions. The cases collected fromthe

third/ninth

nd

fourth/tenth

entury

by

Ibn Sahl are

mostly

abridgements

f courtcases

decided

by

the

qi.di

al-jama'a

Ahmad Ibn

Ziyad

(d. 312/924)9

and the

qddl al-jamd'a

7

Ibn

Sahl, Ahkam,

2.

8

Ibn

Bashkuwal,

Kitdb al-Sila

(Cairo,

1966),

no.

942,

cf.

Khallaf,

Makhtut,

740.

9

M.Muranyi,

"Das Kitdb

Ahkdm

Ibn

Ziydd.

Uber die

Identifizierung

eines

Fragments

n

Qairawan (Qairawdner

Miszellaneen

V.)",

Zeitschrift

der Deutschen

161




5/29

CHRISTIAN

MULLER

Muhammad Ibn Zarb

(d. 381/991).10

These earlier cases can

be

used

to

contextualize our

understanding

of the

range

of the

qa.di's

jurisdiction.

Cases

of

non-qadi

magistrates,

however,

are

not

transmitted

for that

early

period,

1

a fact

that renders

any

direct

comparison

between the

jurisdiction

of different

magistrates impossible.

The

office

of

the

qddi-institutional

aspects

From the

time

of the

Umayyad

emirs

and

caliphs,

the

qadi

of Cordoba

was

called

qadi

al-jamd'a. Appointed

and dismissed

directly by

the

ruler,

the

Cordovan

qddi

stood

in the

stream of an Islamic

moral-legal

tradition that

was

several centuries old.12

When

the

qadi

al-jama'a

Ibn

al-Saffar, appointed by the last Umayyad caliph, died in 429/1038, his

successors were no

longer

called

qddi

al-jamt'a,

a title

associated

with

the now

defunct

Umayyad dynasty.13

Beginning

in

448/1056, however,

the

ruling

Banfi Jahwar revived the

old

title,

displaying

their

sovereign

powers

at a time when other

quddt

al-jama'a

(or

variants

of this

title)

were

invested in

several

capitals

of the

ta'ifa-kings.14

Morgenldndischenesellschaft,

48

(1998),

241-60. On

Ahmad bn

Ziyad,

ee

also

M.

Fierro,

"Tres familias andalusi6s

de

6poca omeya

apodadas

Banf

Ziyad",

Estudios

onomistico-biogrificos

de

al-Andalus

V,

ed. M. Marnn and J.

Zan6n

(Madrid

1992),

85-142;

Khushani,

Kitab

al-quddh

bi-Qurtuba,

ed. Ibrahim

al-

Abyari

(Cairo/Beirut, 1982),

204-11,

Qadi

'Iyid,

Tartib

al-maddrik,

ed.

M.

al-

Tanji

et

al.,

8

vols.

(Rabat, 1965-83),

vol.

V, 189,

Ibn

al-Faradi,

Ta'rlkh

'ulamd'

al-Andalus

(Cairo:

al-Dir

al-misriyya

1966),

no.

81,

Ibn

Sa'id,

al-Mughrib

fi

hul

al-Maghrib, ed. Sh. Dayf, 2 vols. (2nd ed., Cairo, 1953-55, 1964), vol. I, 155, no.

97.

10

Qadi

'Iyad,

Tartib, VII, 114-18,

Ibn

al-Faradi, Ta'rikh,

no.

1363,

Humaydi,

Jadhwat

al-Muqtabis,

(Cairo:

al-Dar

al-misriyya

1966),

no.

170, Nubahi,

K. al-

Marqaba

al-'ulyd

(Beirut:

Maktabat

al-tijari

li'l-tiba'a wa'l-tawzi'

wa'l-nashar,

n.d.),

77-81,

Ibn

Sa'id,

Mughrib,

I, 214,

no.

143.

1

Outside the

period

between

456/1064

and

464/1072,

only

five

cases

heard

by

the market

inspector

were

transmitted;

see

Ibn

Sahl,

Ahkdm,

286-87

and

318-19,

471-73,

473-82,

593-95

and 1032-35

(for

the latter case cf.

Marin,

"Law and

Piety:

A

Cordovan

fatwa",

British

Society for

Middle

Eastern Studies

Bulletin,

17

[1990],

129-36),

however,

the

judge

who

investigated

the

tenth-century

heretic

Abu'l-Khayr

was a

market

nspector

and

qadi

of

Ecija,

Ibn

Sahl,

Ahkdm,

1157-60.

12

Biographies

of

Cordovan

qddis

are included

in

biographical

dictionaries

of

religious

scholars,

such

as the Ta'rikh 'ulamd'

al-Andalus

of Ibn

al-Faradi,

al-Sila

of Ibn

Bashkuwal

or

Tartib

al-maddrik

of

Qadi

'Iyad. Biographical

data on

Cordovan

qddis

are collected

in

Khallaf,

Ta'rikh

al-qadi' fi'l-Andalus

min

al-fath

al-isldmi

ild

nihdyat al-qarn

al-khdmis

al-hijrl

(al-hddi

'ashar

al-milddi)

(Cairo,

1992), 25-131.

13

When

Ibn

al-Saffar

died,

his

contemporaries

believed that the office of

qddi

al-jamd'a

had

come

to

an end. Ibn

Hayyan

in

Qadi

'Iyad,

Tartib,

VIII,

17;

cf.

Maria Jesus

Viguera,

"Los

jueces

de

C6rdoba

en

la

primera

midad

del

siglo

XI.

(Analysis

de

datos)",

Al-Qantara,

5

(1984),

123-45,

esp.

133.

14

There

was a

qadi

al-jamd'a

in

Zaragoza;

in

Toledo he was called

qddi'l-

qu.dh,

M.

Khallaf,

"La

justicia.

Cadies

y

otros

magistratos",

Los reinos

de

162




6/29

JUDGING

WITHGOD'S LAW ON EARTH

The

qddi

al-jamd'a

was thesole

qddi

in the

city

of Cordoba.He had

no

deputy

(nd'ib).

If he

delegated judicial

tasks to

a

proxy

(musta-

khlaf),15

his

is

not documented

n

the cases examined

here.

Among

his

subordinateswere the

administrator

f

endowments

(sahib al-ahbds)

and the

"supervisor

f

inheritance"

sahib

al-mawdrith).'6

Bothlacked

the

authority

o

pass

a

legally

binding

judgment

(hukm).

The afore-

mentioned

udicial

magistrates

hukkdm),

owever,

were neither

depu-

ties nor

proxies

of the

qdadi

l-jamd'a,

but were

appointed

as

officials

by

the

ruler.17

The

qddi al-jamd'a

sat in

judgment

over

lawsuits

brought

orward

by

the

claimant.18

n

Cordoba,

he

qCddll-jamd'a

was not

entitled to

pursue

a

case

ex

officio

without the

necessary

legal

evidence

or

personal

knowledge(see

below). The sources indicate that he

applied

the

procedural

ormsof

Milikifiqh,

which definedthe

legal

conditions

underwhich a

judgment

was

legally

valid. The

qddi

al-jamd'a

held his

sessions

publicly,

either

n

the

Friday

mosque

(jdmi'),

at his own house

or

in

a

smaller

mosque.19

No

Cordovan

qddi

could

not

pass

a

binding udgment

solely

at his

own

discretion.To

pass

a

binding

udgment,

he

judge

asked the

board

of

jurisconsults

(shard)

for their

legal

opinion.20

The

qddi

informed

them of the

legal

facts

in

a

written

report,

called

khitdba,

sealed

in an

Taifas.

Al-Andalusen el

siglo

XI

(Historia

de

Espafa

Menendez

Pidal,

Vol.

VIII-1),

ed.

M.J.

Viguera(Madrid 1994),

171-72.

15

For

the

legal

restrictions

placed

on a

mustakhlaf,

see Ibn

al-'Att.r,

Kitdb

al-

wathd'iq

wa'l-sijilldt,

ed.

P. Chalmeta

and F. Corriente as

Formulario notarial

Hispano-Arabe

por

el

alfaqui y

notario

cordobes

Ibn

al-'AttCir

s. X) (Madrid

1983),

642-43.

16

Cp.

L6vi-Proven9al,

Histoire de

l'Espagne

musulmane,

3

vols.

(Paris/Leiden

1950-1953),

vol.

III,

151-53.

17

The

labeling

of hukkamas

"magistratures

econdaires" as

compared

to the

qddi

al-jamd'a

is

therefore

misleading.

Ibid.,

142-43.

18

The

following

remarkson court

procedure

n Cordoba

are made on the basis

of the cases

examined

here. For

the

early

centuries

of

Islam,

see

also

Johansen,

Wahrheit

und

Geltungsanspruch,

esp.

1014-15;

for

the much

later

Ottoman

qddl,

compare

with

Jennings,

"Limitations of the Judicial Powers

of the Kadi

in

Seventeenth-Century

Ottoman

Kayseri",

Studia

Islamica,

50

(1980),

151-84,

esp.

171-73.

19

See

Khallif,

Ta'rikh

al-qadd',

224-34.

20

This

is a

major

difference from

judicial

practice

in

seventeenth-century

Ottoman

Kayseri,

where

fatwds

were

presentedonly by plaintiffs, see Jennings,

"Limitations",

157,

and

"Kadi,

Court and

Legal

Procedure

n

Seventeenth-Century

Ottoman

Kayseri",

Studia

Islamica,

48

(1978),

133-72,

esp.

134-35.

The Andalu-

sian scholar Abfi

1-Mutarrif l-Sha'bi

(d. 497/1104)

claims

that the

qddi's duty

to

consult

with

jurisconsults

was based

on old

tradition

(sunna),

cf.

Wansharisi,

Kitdb

al-mi'yar

al-mu'rib,

ed.

M.

Hijji

et

al.,

13 vols.

(Rabat/Beirut

1981-1983),

X,

58-59;

cp.

also

Tyan,

Histoire,

231-32.

163




7/29

CHRISTIANMULLER

envelope

(tayy)21

which also contained

copies

of all relevantdocu-

ments. The

jurisconsults

(mushdwarun)

then

issued

a

fatwd

on

the

decision to be taken

n

this

particular

ase.

The

jurisconsults,

as a

rule,

did not

participate

n

the court

proceedings.22

The shaur was

a

well-

established

nstitution

n al-Andalus.23

ts

memberswere

appointed

and

sometimes

dismissed

(unless

they

died

in

office)

by

the ruler

in

consultation with

the

qcdli.

In

the

fifth/eleventh

century,

the

mushd-

warin received a

fixed

salary

provided by

revenues

from

public

endowments.24

The

number of

jurisconsults

was

limited,

although

it

changed

over time.25

The court cases studiedhere mention

at

least two

and not more than

four

jurisconsults

in each

case.

In

one of

Ibn al-

Saffar's

cases

(d.

429/1038),

however,

ten

jurisconsults

participated.26

In mattersof

doubt,

a

qddl

might

consultwith the

jurisconsults

at

any

stage

of

court

proceedings,

but he

was

obliged

to

ask

for

their egal

opinion

on

a

final

judgment

(hukm).

Jurisconsults

ometimes criticized

the

legal

steps

taken

by

a

judge

during

court

proceedings.27

Although

they

had

no

means

to

impose

theirviews

on the

judge, they

had the

authority

o

decide

which

aspect

of

legal

doctrine hould

be

applied

n a

particular

ase.

A

legally

valid

court

decision had to be based

on

the

sacred

law,

including

its rules

of

procedure

and evidence. If a

judge

openly

disregarded

he

legal opinion

of

the

jurisconsults-an

outcome

for which

there is

no

evidence

in our

source-he

risked

seeing

his

21

See Ibn

Sahl,

Ahkam

545,

as well as

70,

194, 247,

348,

etc.

Cf.

Khallaf in

Viguera(ed.), Reinos de Taifas, 175. On the legal proof of a "sealedwriting"(kitab

matwiy),

see

Baji,

al-Muntaqa,

7

vols.

(Rabat:

Dar

al-fikr

al-'arabi,

n.d.),

vol.

V,

198.

22

Contrary

to

Tyan,

Histoire,

235. Cordovan

fatwas

often

began

with

the

formula,

"I

read and

examined what

you

[viz.

the

judge] gave

us as

information"

(qara'tu

wa-tasaffahtu ma

adrajta ilaynd),

Ibn

Sahl,

Ahkam, 213, 423,

etc.;

cp.

ibid.,

70,

194, 211,

etc.

The

formula

may

also be a

legal

device to

explain

that the

fatwd

was based on the

facts

as

presented

in

writing

without

any

concern

for their

truth

n

reality.

23

Tyan,

Histoire,

230-36,

Levi-Provencal,

Histoire, 127-28, Marin,

"Shard

et

ahl

al-shurd

dans

al-Andalus",

Studia

Islamica,

62

(1985),

25-51, Khallaf,

Ta'rikh

al-qada',

321-80. The

shard is mentioned

already

in the

reign

of

'Abd

al-Rahman

II

(206-238/822-852);

cf.

Khushani,

Qudah,

112.

The

opinions

of

jurisconsults

issued

in

connection with cases heard

by

the

qddl

al-jamd'a

Ibn

Ziyad

(d.

312/924)

are

mentioned

frequently

n Ibn

Sahl, Ahkdm,

passim.

24

See

Ibn

Bassam,

al-Dhakhira

fi

mahasin ahl

al-jazira,

ed.

Ihsan

'Abbas,

8

vols.

(Beirut

1978-79),

vol.

III,

517-18

(a

scandal over

the

mushawarun's

payment).25

Tyan,

Histoire,

231-32.

26

Ibn

Sahl,

Ahkdm,

1015-23

(also

edited

in

M.

Khallaf,

Wathd'iqfi

shu'an

al-

hisba

(Cairo,

1985),

67-79).

The

caliph

al-Mustakfi

(414-416/1024-1025)

reported-

ly

raised the

number of

mushawarun

to

40

( ),

which

should not be

taken

literally,

Ibn

Bassam,

Dhakhira,

I,

435.

27

E.g.

Ibn

Sahl, Ahkam,

346-52.

164




8/29

JUDGINGWITHGOD'S LAW ON EARTH

decision overturned

by

his

successor. But

jurisconsults

were not

always

unanimous.

Minor

differences

in

thefatwds

appear

in

most of the

cases

examined,

and in

some even

significant

dissent.

If

consultation

gave

rise to substantial

differences,

jurisconsults

could issue a

secondfatwd,

in which

they

explained

their

position

with reference to the literature

on

Maliki

legal

doctrine. There were

different

principles indicating

which

fatwd

of which

jurisconsult

a

qddl

had

to choose in

case

of

prolonged

disagreement.28

Confronted with two

opposing opinions,

the

judge

was

free to

accept

one

opinion

and

disregard

the

others.

It

appears

that

unanimity

of

legal

opinion

was no

prerequisite

for a

judgment

and that

judges

did

in

fact

choose

between

diverging legal

opinions.

But no

general

statement on the

liberty

of choice for

the

qddi

in such cases

can

be made due to the small number of court decisions available.

Jurisconsults sometimes allowed

a

qddl

to decide certain

points

of a

lawsuit at his own

discretion

('al

ijtihddihi).29

To sum

up:

the

qddl

was

concerned with the facts

of

the

case,

and the

mushdwar,

as a

mufti,

gave

his

answer to

the

question

posed

to

him on

the basis of

Maliki

legal

doctrine.

Procedural

law

and

court

proceedings

The

legal

conditions for a

valid and

binding judgment

(hukm)

are an

important aspect

of

qddl jurisdiction.

The

fiqh

rules that are used to

establish

any

material fact

beyond

doubt-necessary

for a

qadd'

decision-are as follows: Any fact about which the qddi has no

personal

knowledge

('ilm

al-qtdd)

has

to

be either

acknowledged

(iqrdr)

by

the

defendant

or

proved by

the claimant

on

the basis of

testimonial evidence

(bayyina).

In

certain fields of law

determined

by

Malikifiqh,

the

claimant

may

take an

oath

that

confirms the

testimony

of the one

witness in

his

favor

(al-yamin

ma'a

shdhid)

to the effect that

28

See Ibn

Farhun, Tabsira,

I,

27 and

65,

for

a

discussion

of whether it is

obligatory

for

the

qddl

to

follow the

majority

of the

jurisconsults

or

the one with

the

highest

legal

reputation.

29

On

ijtihdd

as

scope

for

discretion,

granted

by

the

jurisconsults

to

the

judge,

to

decide

specific

aspects

of the

case in

the form of a court

order

(nazar),

see Ibn

Sahl, Ahkdm,

212, 785;

as

judicial

discretion in

general,

see

ibid.

436, 718, 847,

1016; and

as

independentreasoning, see ibid. 377, 644, 718. This usage of the

term

ijtihdd

for a

judge

is not

to be

confused

with the

concept

of

"independent

reasoning"

or "authentic

scholarly

endeavor" in

legal theory,

that

apply

to the

activities of

a

mufti;

on

the

latter, see,

e.g.

Muhammad Khalid

Masud,

Brinkley

Messick

and David

Powers,

"Muftis,

Fatwas,

and Islamic

Legal Interpretation",

Islamic

Legal Interpretation: Muftis

and

their

Fatwas,

ed. Muhammad

Khalid

Masud,

Brinkley

Messick and David Powers

(Cambridge,

MA,

1996).

165




9/29

CHRISTIAN

MULLER

no second witness

testimony

is

necessary.30

In addition to certain

general requirements,

all witnesses must

be

accepted by

the

qadi

as

men of

integrity

('addla);31

otherwise,

their

testimony

is not

legally

binding.

n

conflictsbetween

people,

the

q.di

has

to

follow

the

principle

of "accusation"

da'wt),

which

means that

he

leaves the

initiative

for

presenting

claims

and

proof

to

the

parties.32

f he

personally

witnesses

a

tort,

he is

allowed

to

take

action,

but should

not

inquire

into

the

hidden

aspects

of the case.33

In

this

sense,

the

qadi

did

not

act

preventively,

as

did

the

police

officer

(.sahib

l-shurta).34

In

judicial

practice,

certain claims

require

the establishment

of a

legal

title

(haqq)

and others do not. Court cases

requiringproof

of a

specific legal

title includedthose

relating

to

reclaiming

an

endowment

(habs),35

he

right

to

buy

back real estateon the

grounds

of

preemption

(shufa),36

or

the annulment of a sale because

the

vendor had been

declared

"incapable

of

conducting

business transactions"

safih).37

n

the

absence of

proper egal

evidence,

a

qddl

would refuse to

give

a

positive

decision

and

might

allow

the

defendant to swear

an

oath

to

establish

his

right.

As

for claims that did

not

require

evidence for

a

qa.dd'

decision,

these included

many

cases on inheritanceand

family

disputes.

Most

family

members,

according

to

Maliki

legal

doctrine,

couldnot

testify

in

favor

of

each

other.38 n cases that

pitted

one

family

30

For the Maliki law of evidence, see Scholz, Malikitisches Verfahrensrecht

(Frankfurt,

1997),

and

Santillana,

Istituzioni di diritto musulmano

malichita

con

riguardo

anche

al

sistema

sciafiita,

2

vols.

(Rome 1926-1938),

vol.

II,

589-630;

for

discussions of

qadd'

bi'l-haqq

and witness

testimony

that are

very

close

to the

Cordovan

setting,

see

Ibn

'Abd

al-Barr,

al-KTfi

fi

fiqh

ahl

al-Madina

al-malikt

(Beirut, 1987),

461-96,

and

Baji,

Muntaqd,

V, 182-224;

see also

Ibn

Farhfn,

Tabsira, I,

240-487,

I,

1-135.

31

See

Ziadeh,

"Integrity

'Addlah)

in Classical Islamic

Law",

Islamic Law

and

Jurisprudence,

ed.

Nicholas

Heer

(Seattle/London,

1990),

73-93.

32

Baber

Johansen,

"VWritd

t

Torture: us communeet

droit musulman

entre

le

Xe et

le

XIIIe

siecle",

De

la

violence,

ed.

F.

HWritier

Paris, 1996),

125-68,

esp.

136.

33

This is

explained by

the

following

anecdote:

A

qadi

of

Cordoba met

a man

in the

street who

carried

a

drum

in

his hand and balanced a vessel on his

head.

The

qddi

wanted

to

destroy

the

illegal

drum and search the

vessel,

presumably

for

additional

illegal

items. But

a

jurist

who

was in

his

company

told him that it was

not his

business,

as

a

qadi,

to search

other

people's

household articles. His

only

task was to

prevent

what

was

obviously

reprehensible

(innama

'alaykd

an

tughay-

yira md zahara min al-munkar), that is, he had to destroy the drum. Khushani,

Quddh,

197.

34

On

these

legal

differences,

see

Johansen,

Verite,

129-32.

35

See

cases

in

Ibn

Sahl,

Ahkam,

52-53,

67-73,

and

969-71.

36

Ibid.,

639-45.

37

Ibid.,

132-34.

38

Baji, Muntaqd,

V, 204-06,

Ibn 'Abd

al-Barr,

Kdfi,

461-62.

166




10/29

JUDGINGWITHGOD'S LAW ON

EARTH

member

against

another,

he

qcddi

ould

grant

he

right

of a corrobora-

tive oath

(al-yamin)

to

one

of the

parties,

invoking

the risk of

punishment

n the

nextworld n case of a false

oath.

The

qddl's

role in

court

was to

guarantee

he

rights

of

any

of

the

parties

concerned.Before

a

legally binding udgment

could

be

passed,

a

defendant was

required

to

appear personally

in court to make

a

statement on the

plaintiff's

claims and

evidence.

This

right,

called

i'dhdr

(lit.

giving

an

excuse),

was

mandatory.

If

the defendant was

absent or

unwilling

to

appear

n

court,

despite

several

summonses,

he

qddi

could either

pass

a

binding

judgment

or,

under certain circum-

stances,

postpone

the

defendant's

right

to

resume

courtaction

(irjd'

al-

hujja).39

If the

defendant did

not

accept

the

claim or

the

evidence

presented by

the

plaintiff,

a

counter-charge midfa')

ensued, which

switched roles in

court. The defendantcould either

present testimony

thatthe

original

plaintiff's

witnesses were

untrustworthy

r

try

to

prove

his

own

claim.

In

the

case

of

such

a

counter-charge,

he

judge

fixed

several

terms

(ajl,

pl.

djdl)

for

both

parties

o

corroborate heir claims.

Thus,

a

lawsuit of

this

type usually

required

more than one court

session.

All

legally

important

acts established

during

he

proceedings,

such

as claims and

evidence,

acknowledgments

r

counter-charges

y

the

defendantas

well as terms ixed

by

the

judge,

were

recorded,

ither

in

the document

presented by

the

plaintiff

or

in

a

separate report

(mah.dar).

The

proceedings

were

certified

by

a minimumof two court

witnesses. Before

passing

his

sentence,

the

q.dd

consulted he boardof

muftis mushdwarun);deally,he wouldfollow theiradvice.

The court

secretary

documented

any

final

judgment

of

the

qd.di

al-

jama'a

in

a

sijill

(court

record).

The

judgment

was executed

by

attesta-

tion of the

q.di

(tanfidh

al-hukm):

beginning

with the

qadd l-jamd'a

of

Cordoba,

Muhammad

b.

Abi

'Isa

(d.

339/950-1),40

all documents

issued

by

qdlss

were

drawn

up by

the

court

secretary.

The

qcddl

checked the

contents of the document and

attested

personally

to the

summoning

(ishhdd)

of

the

witnesses.

Finally,

he

had the document

authenticated

by

witnesses.41

The

judgment

tself was

issued

in

tripli-

cate:

the

original

was

placed

n the

qdadi

egister,

and one

copy

(nuskha)

each

went

to

plaintiff

and

defendant.42

n

al-Andalus,

the

registration

39

On this

Cordoban

udicial practice,

see

below.

40

Khushani,

Quddh,

233-36,

Nubahi,

Marqaba,

59-63,

Ibn

al-Faradi, Ta'rikh,

no.

1253.

41

Ibn

al-'Attar,

Wathd'iq,

642.

42

Text:

sujilat

[...]

sijillan yakana

'ald

thaldthi nusakhin

li-yakuna bi-yadi

l-hdlifi

minhu

nuskhatan wa

bi-yadi

t-tdlibi

nuskhatan ukhrd siwd llati takinu

ft

167




11/29

CHRISTIAN

MULLER

of

court

judgments

in

qddl registers

can

be

traced

back to

the

time of the

qd.dial-jama'a

Muhammad b.

Bashir

(d. 198/813-14).43

The

qddi-register

(diwan

al-q.dl), bearing

his

name and

period

of

office,

was transmitted

from one

qa.di

to

his

successor.44

Only qddls

had the

right

to draw

up

a

register

of

this

kind;

hukkdm did

not.

The

diwdn

al-q.di

must have been

very important

for the

judicial

practice

of

the time.

Recorded in the

q.dd

register

were

all

properties

of

absentees

(amwal

al-ghayb),

bequests

(wasdyd)

and

the

genealogies

of

benefi-

ciaries

of

ahbds

mu'aqqaba

(endowments

for

a

lineal descent

group)45

that

were

subject

to the

supervision

of

the

qddl.46

Revenues

of

public

endowments and the

names of endowed

slaves

working

on the estates

of

Umayyad

rulers also

were listed.47 In

addition

to

the

property

of

orphans

and absentees

deposited

with fiduciaries

by

order of the

q.di,

the

register

contained

records of

debts

that

had

been

confirmed

by

a

court

judgment.48

These

rights

were

not

extinguished by

the death of

either the

debtor or the

creditor,

or

by

the

replacement

of the

qddi

who

had issued

the

judgment.

Once

a

debt was

liquidated,

this

fact

was

entered

in the

register

to avoid

a

second

claim.

In

the

absence

of a

quittance,

a

debt recorded

in

the

court

register

could

be redeemed

only

by

an

additional bill of

receipt

attested

by

two

'adl-witnesses.49 The

registration

of a

debt

in the

dtwdn

al-q.dl,

therefore,

was more than a

non-binding

indicator;

it served as

legal

evidence

for

a debt.

To

avoid

manipulation,

the

register

was

handed over

personally

from

one

qddi

to

his

successor.50

In the

case

of

a

qadd's

sudden

death,

the

register

was

safeguarded

by

the town

inspector

until a successor was named.51 The

d-diwdni,

Ibn

Sahl, Ahkdm,

196.

See

also Ibn

al-'Attar,

Wathd'iq,

131. For a case

in which

the

documents

presentedby

both

parties

contained

the

former hukmof

the

qddl,

see Ibn

Sahl,

Ahkam,

68.

43

Khushani,

Qu.ddh,

75,

and

Nubahi,

Marqaba,

48.

44

Al-Khushani

(d. 361/971-72)

used the

qddi registers

as

a

source

for his

history

of

Cordovan

udges,

Quddh,

141.

45

David S.

Powers,

"The Maliki

Family

Endowment:

Legal

Norms and Social

Practices",

InternationalJournal

of

Middle

East

Studies,

25

(1993),

379-406,

esp.

392-94.

46

Cf.

Ibn

Sahl, Ahkam,

9.

On

the

registration

of

bequests,

see also

ibid.,

232-

33

(one

case).

47

Ibid.,

1015 and 1115

(also

edited

by

M.

Khallaf,

Wathd'iq fi

ahkam al-

qadd' al-jind'i al-andalusL [Cairo, 1980], 74-76).

48

Ibn

Sahl,

Ahkam,

873-78

(several

cases).

49

Ibid.,

877,

on

a

case of

missing

acquittal

in the

qidl

register:

man kCna

'alayhi

fi

diwdni

l-qudCiti

malun

lam

yusqi.thu

anha

illa

l-bard'atu l-thabitatu

bi'l-

bayyinati

-'adlati.

5u

Khushani,

Quddh,

145.

51

Ibid.,

204.

168




12/29

JUDGING

WITHGOD'S

LAW

ON EARTH

new

qddi

checked the

register

andheldhis

predecessor esponsible

or

missing

payments.52

The

appointment

f a new

qddi

had considerable

mplications

or

the

administration

f

justice.

The new

qddi

al-jamd'a

had

to reassess the

witnesses of

current

awsuits-and

might

reject

them as

unqualified.

n

one

case,

the

ruler took

advantage

of this

procedure

when the

well-

known

scholar,

Baqi

b.

Makhlad

d.

276/889),

was

confronted

with a

large

number

of

testimonies

by

hostile

uqaha'.

To

prevent

a

judgment

against

Baqi,

the

ruler dismissed

the

acting qddi al-jamd'a,

whose

successor

was not

bound

to

the testimonies

hatwere never

renewed

by

the

witnesses.

Thus,

under

the new

judge

no

lawsuit

ensued.53

When

the

qddi

al-jamc

a

Ibn

Siraj54

died

suddenly

in

464/1072,

the market

inspector

ook overa lawsuitandreassessedthewitnesses.55

The

longer

a

qcddi

tayed

in

office,

the

more his

power

to

accept

or

reject

witnesses

nfluenced

he

judicial

ife

of the

city.

If

people

objected

to

a

qdd's

decision

or

wanted

to renew

cases

that

he

had

rejected,

hey

had

to wait

for

his

successor.56

A new

qadi might accept

a lawsuit

which

had

been

rejectedby

his

predecessor

as

unjustified.

Therefore,

t

is

probably

more

than

a

coincidence

hat

a

manclaimed the inheritance

share of

his

absentee cousin

shortly

after the death of the

qddi

al-

jamd'a,

Ibn

Siraj,

who had

deposited

this

sharewith

a

third

person

as

fiduciary.57

In some

situations,

the

intrinsic

powers

of

a

qddi

to

monopolize

jurisdiction

ed

to

the

establishment

of

qdid

dynasties

hat

might

rule a

particularown.58 nCordoba,however,the presenceof the Umayyad

52

Ibid.,

173-75.

53

Ibid.,

153-54. On

details

of this

complex

case,

see

M.

Fierro,

"La

heterodoxia

en

al-Andalus durante

el

periodo

omeya",

Madrid:

I.H.A.C., 1987,

80-

88,

esp.

84-85.

54

On this

patronym,

see

Elias

Teres,

"AntroponimiaHispano,rabe

(Reflejada

por

las

fuentes

latino-romances) (IIa

parte),

ed.

J.

Aguade,

C.

Barcelo

and

F.

Corriente,

Anaquel

des

Estudios

Arabes 2

(1991),

13-34,

esp.

18,

note 199.

55

Ibn

Sahl,

Ahkam,

827-30,

also edited

by

Khallaf,

Wathd'iq i

ahkcm

qada'

ahl al-dhimma

i'l-Andalus

(Cairo,

1980),

60-65,

with

Khallaf's

summary gnoring

important

aspects

of

the

proceedings,

ibid.,

25-26.

6

See

Khushani,

Quddh,

183-84,

on the succession to

Sulayman

b.

Aswad

in

the

year

273/886.

57

It

was

known

that

the

absentee

heir had died

previous

to the

division of the

estate, a fact that excluded him from inheritance. For the case, see Ibn Sahl,

Ahkim,

627-29.

'58

For

al-Andalus,

see

Fierro,

"The

qadi

as a

ruler",

in

"Saber

religioso

y

poder politico

en

el

Islam",

Actas

des

Simposio

International

(Granada,

15-18

octubre

1991),

Madrid, 1994, 71-116,

and M.L.

Avila,

"Cargos

hereditarios

en la

administraci6n

udicial

y religiosa

de

al-Andalus",

in

ibid.,

27-37,

and

appendix

with

genealogical

charters.

169




13/29

CHRISTIANMULLER

rulers imited the

qcdl's

influence.It is truethatmembersof the same

few

families

frequently

were

appointed

as

qddi

al-jamd'a,

but

they

never

succeeded

in

founding

a

dynasty

of officeholders. Even after a

long

period

in

office,

as

during

the

third/ninth

nd

fourth/tenth

entu-

ries,

it was

the

Umayyad

ruler

who

chose the

next

qddi al-jamd'a.

In

429/1038,

at the

beginning

of Jahwarid

rule,

the

last

qddi

al-jamd'a,

Ibn

al-Saffar,

who had been

appointed

by

the

Umayyad

caliph,

was

unsuccessful in

his

attempt

o

designate

his

grandson

as

his

successor

in

office.59

Jahwar

settled

with the

city's

notables

on

the

new

qddi,

Muhammad

b.

Dhakwan,

previously

market

police-officer

(sahib

al-

shurta

wa'l-suq).60

To limit the

religiousauthority

of

the

new

qc.di,

he

was not

invested

with

leadership

of

the

Fridayprayer.61

rom

that

date

onwards,

the

political

power

of the Cordovan

qddi

did not

pose

any

serious threat o the

ruling

Banu

Jahwar,

who

appointed

and

deposed

Cordovan

q.dis

at will.

The

qc.di's

udgment

The

legal

functionof

a

q.di judgment

s best

understood s

binding

but

potentially

reversible

n

character.

Any

ratified

courtdecision

is

legally

valid,

irrespective

of its

conformity

to the

law.

Otherwise no court

judgment

would have the

affect of

settling

a

conflict.

62

To

revise a

valid

judgment,

it had to be annulled

(fusikha)

by

another

udgment.

This

holds truefor

qadi judgments

as

well as for those of

magistrates.63

There are three circumstances n which a judgmentmay be reversed:

first,

if the

issuingjudge

lacked

proper

urisdictionalauthority;

econd,

if the

original

udgment

s

challenged

on

the

grounds

of a

point

of

law;

and

third,

f

it is

challenged

on

the

grounds

of

new

evidence,

that

s,

as

a

question

of

fact.64

59

Ibn

Sa'id,

Mughrib,

I,

159,

no.

101,

Qadi

'Iyad,

Tartib,

VIII,

17.

60

Ibn

Sa'id,

Mughrib,

I, 70,

no.

14,

and

Ibn

Bashkuwal,

Sila

no.

1150,

both

cite

Ibn

Hayyan

(d. 469/1076);

although they

differ

regarding

who

invested

the

qddi,

both

agree

that the decision

was

unanimous.

61

See

Ibn

Bashkuwal, Sila,

no.

1390,

Qadi

'Iyad,

Tartib,

VIII,

13

(regarding

the new

.sdhib

al-salah

wa'l-khutba

Ibn

Makki,

who

died

437/1045

while still in

office).

62

See Scholz, Verfahrensrecht, 26-31.63

For

a

judgment by

the sahib al-shurta

wa'l-suq

that

was

annulled

by

a

qddi,

see

Khushani,

Quddh,

127;

for

the annulment

of

qddl

judgments,

see

below.

64

Cf.

David S.

Powers,

"On Judicial

Review in

Islamic

Law",

Law

&

Society

Review

(1992),

315-41. Pace

Powers,

ibid.

324,

the

Cordovan cases

suggest

that

the

grounds

for

reconsideration

were

not restricted to

questions

of

law,

but also

included

the

presentation

of

new

facts,

see

below.

170




14/29

JUDGING


With

regard

to the first

circumstance,

the

jurist al-Baji

(d.

474/1081)

listed

the

qualities

that are

essential for a

qCdi.65

Half a

century

later,

the

Cordovan

judge

Ibn Rushd

(d. 520/1126)

systematically

differen-

tiated the

legal

consequences

of

a

q.di's

lacking personal qualities:

he

enumerated

the

qualities

that

are

necessary

for a valid

appointment,

others

necessary

to exercise

the

charge,

and

yet

others that are

not

necessary

but

recommended

for

a

qddi.

An

invalid

appointment

results

in unconditional annulment of

all

judgments;

if a

qddl

lacks

the

qualities

to

exercise his

office,

all

judgments

issued after the

proclama-

tion of his

incapability

should

be

annulled;

however,

if he lacks

only

those

qualities

that are recommended

for the

office,

his

judgments

should not be invalidated

on

grounds

of

lacking jurisdictional

authority.66

Regarding

the second circumstance

(questions

of

law),

the

judg-

ments of a

qd.di

may

be reviewed

by

his successor.67

Usually,

however,

only

a clear

and obvious

injustice

(jawr

bayyin)

will lead to the

annulment

of a

judgment.68

The

qd.di

al-jamd'a

Ahmad Ibn

Ziyad

(d.

312/924)

dealt

with

several

requests

to overturn the

judgments

of

his

predecessor

Ibn Salma

(d.

289/902).69

A

general

revision

of all

decisions issued

by

this

upright

but

juridically inexperienced

qddl,70

however,

was never

considered.

We do

not know the extent to

which

earlier

qddl

judgments

were reversed

by

succeeding

qddis. Generally

speaking,

the

revision

of a

qada'

judgment

was carried

out

only

when a

qddi

was

regarded

as

unjust

(min

ahl

al-jawr).

The difference between lack of

jurisdictional authority

and a case-

by-case

consideration of

judgments

was

the

issue of debate in the case

of

the former

minister Ibn

al-Saqqa',

whom the ruler

Abi'l-Walid b.

Jahwar

had

invested

with the ahkam

al-qadd'

(qddl

jurisdiction)

of

Cordoba for

a

year

and a half

beginning

in

447/1055.

After his

assassination in the

year

455/1063,

Ibn

al-Saqqa's judgments

were

accepted by

the

q.ddi

of

Toledo,

but

were

generally

annulled

by

the

qd.di

of

Badajoz.

In

Cordoba,

some

legal experts upheld

the

validity

of Ibn

65

Baji,

Muntaqd,

V,

182.

66

Ibn

Rushd,

al-Muqaddamat

l-mumahadddt,

vols.,

ed. S. A. Urab

Beirut

1988),

II,

258-59.

See now

Alfonso

Carmona

Gonzales,

"Le Mal6kisme t les

conditions equisespour1'exercicede la judicature,"n this theme ssue, 122-58,

esp.

140.

67

On Islamic

uccessor

eview,

ee

Powers,

"Judicial

eview,"

17-24.

68

See

Ibn

al-'Attar,

Wathd'iq,

636-37;

cp.

Scholz,

Verfahrensrecht,

437-38.

69

Ibn

Sahl,

Ahkam,

145-46,

682-83,

695-96,

709-10.

70

He was

characterized as

"rajul

sdlih

qalil

al-'ilm",

Ibn

al-Faradi, Ta'rikh,

no.

1141.

171




15/29

CHRISTIANMULLER

al-Saqqa's judgment holding

that a woman who had been sold as a

slave was

in

fact free.

They argued

that Ibn

al-Saqqa'

n

this

case had

ruled

according

to

the

law

of

evidence

and had

consulted

with the

fuqahd'

of

the

city.

Other

urisconsults

recommended

a

general

annul-

ment of all

his

judgments

since

he

was

regarded

as

unjust

(min

ahl al-

jawr

wa'l-i'tidd').71

he

jurists

who

upheld

Ibn

al-Saqqa'sudgment

did

so because

they

considered his

exercise of office to have been

valid,

notwithstanding

heir

opinion

of his

person.

In

an

action

against

the

minister's

ast will and

testament,

ll

the

jurisconsults

ecommended he

confiscationof

property

hathe

had

acquired

n

office.

His

heirs should

inherit

only

the

property

hat he

owned before

rising

to

power.72

The

absence

of

an

entry

for

Ibn

al-Saqqa'

in

any

of the

relevant

biographical

dictionaries

uggests

thathe was not

regarded

as a

proper

qa.di

of the

city

of

Cordoba.73

With

regard

o the

eight-yearperiod

considered

here,

I

am

not

aware

of

any

other

case

in

which

a

qadi judgment

was

reversed

on

grounds

of

law. In

one inheritance

dispute,

however,

a

qddi

ratified

an amicable

settlement,

.e. a decision

not

based

on

legal

evidence;

subsequently,

he

settlement was

disregarded

by

one of

the

parties.

When

the

opposing

side

complained

to

the

market

nspector,

most

jurisconsults

opted

to

annul

any

settlement hat contradicted

egal

rules.

Only

the

prestigious

jurist

Ibn

'Attib

(d.

462/1069)74

held that no ratified

settlement

should

be annulled.

That

brings

us

to

the thirdcircumstance

n which

a

judgmentmight

be reversed,

namely,

on the

ground

of new evidence.A

legally

correct

judgmentmay conceivably

be revised

if new

witness

testimony

contra-

dicts the

winning

party's

corroborative

ath. The Milikis

were

not

as

strict

about the

authority

of

a

judgment

as

the Hanafis.75

According

to

Maliki

egal

doctrine,

a

q4di may

easily

revokehis own

judgment

rujui

'an

qadd')

if

he realizesthathe made

a

mistake,

so

long

as his decision

does not contradict the unanimous

opinion

of the

jurisconsults.

71

For

this

case,

see Ibn

Sahl, Ahkdm, 261-64,

also

cited in

Wansharisi,

MiXar,

IX,

220-22.

72

Ibn

Sahl, Ahkdm,

728-30.

73

This

is corroborated

by

the

fact that

Ibn

Sa'id avoided the

expression

"q.dr'

and

referred

to Ibn

al-Saqqa's

office

as "ahkdm

al-qa.dc"',

Ibn

Sa'id,

Mughrib,

I,

161, no. 104.

74

Ibn

Bashkuwal,

Sila,

no.

1194,

Qadi

'Iyad, Tartib,

VIII, 131-34,

also Ibn

Farhin,

al-Dibdj

al-mudhdhahab

i

ma'rifat

a'ydn

'ulamd'

al-madhhab,

2

vols.,

ed.

M. al-Ahmadi

(Cairo, n.d.),

II,

241-42.

75

For

the

Hanafis,

see Baber

Johansen,

"Le

jugement

comme

preuve.

Preuve

juridique

et

v6rite

religieuse

dans le

Droit

Islamique

hanefite",

Studia Islamica 72

(1990),

5-17,

esp.

13-15.

172




16/29

JUDGING


Contrary

to the annulment

by

a

successor,

this

mistake

need not

be of

a

grave

nature and

may

be connected with the witnesses

in the case

(amr

al-shuhud)

as

well as with internal

aspects

of the claim

(bdtin

qissat

al-

tdlib).76

A

q.dfi's ability

to

revoke

his

own

judgment

was

justified

with

reference

to

an

alleged

writing by

the second

Caliph

'Umar

to

his

governor

in

Iraq,

Abf Mfsa al-Ash'ari: "It is not forbidden to

you

to

withdraw a

qa.da' judgment

of

today,

if

you

withdrew

your

comprehen-

sion of it

and

were

guided rightfully

to

this

by your

good

sense.

Withdrawing

to the

rightful

is better than

insisting

on the vain."77

Having

said

this,

I have

encountered

only

one case in

which

a

judgment

was reversed

on

grounds

of new

evidence,

and this

case

was

brought

to the

market

inspector

rather than to

a

q.dl.

The case involved

a farmer who claimed

joint

ownership

of certain land and oxen. The

defendant

was

granted

the

right

to

swear that

he was

the sole owner of

land and

oxen.

A court

decision

ruling

out

further claims or actions

was

ratified.

Subsequently,

however the farmer

produced

witnesses

testifying

to

the

defendant's

repeated

acknowledment of their

joint

ownership

of the

land

and oxen.

Subsequently,

the

jurisconsult

Ibn

'Attab held that the earlier

judgment

should be reversed and the farmer

should be

required

to swear

that

he had been

unaware of

the

testimonial evidence

in his favor when

compelling

the

defendant to take

an

oath for

his

claim.78

In the absence

of

parallel

cases tried

by

a

qdl,,

we

cannot

know,

whether

a

qddl

in

the first instance

would have

passed

a

judgment

on the basis of the

defendant's

oath,

which then

could have become

subject

to reversal. But since the

qddl

dealt with

inheritance

disputes

and other

family

matters that did

not

always

involve

witness

testimony,

the

possibility

of the

revision of a

judgment,

based on

oath,

in the

light

of new

testimonial

evidence

cannot be ruled

out.

Another,

slightly

different

aspect

of the revision of

judgments

is the

so-called

"postponement

of

pleading" (irjd'

al-hujja).

Here the

judge

issues a

judgment against

an

absentee,

but

grants

him the

right

to

appear

in

court at

a later date. In such a

case,

it

is conceivable that a

defendant

would

produce

evidence that

might

lead to the

rejection

of

the

76

Ibn al-'Attar,Wathd'iq,635-36.77

Text:

la

yamna'ukdqadd'un qadaytaha l-yawmafa-rdja'ta fihi

'aqlakd

wa-

hudita

fihi

li-rushdika

an

tarji'a

fihi

fa-inna r-ruju'a

ild

l-haqqi khayrun

mina

t-

tamddi 'ald

l-batili,

ibid;

see also

Powers,

"Judicial

Review,"

320;

cp.

Scholz,

Verfahrensrecht, 32-36,

on a

qddi's

being

bound to his

own

judgment.

78

On this

action,

see Ibn

Sahl,

Ahkdm, 716-18;

the

case is

reduced

to a

question-and-answer

ituation

in

Wansharisi,

Mi'ydr,

VI,

525.

173




17/29

CHRISTIAN

MULLER

claimant's

witnesses

and

eventually

require

a

different

decision

by

the

judge.

The

"postponing

of

pleading"

was based

on

the

idea

that

the

right

of

an

absentee to

be heard in court

(i'dhdr)

could be

postponed

if

he was

too far

away

to be summoned

to

court;

but a

legally

valid

judgment

could

be

issued

against

him in the

meantime.79

The

granting

of the

irjd' al-hujja

was ratified

by

the

judge,

together

with

his

judgment against

the absentee. Common

practice

in

Cordoba,80

he

irjd'

al-hujja

nevertheless was contested

among

later

Malikis.81

In

one

fifth-century

case,

the revision of a

court

decision

was

claimed

under such circumstances:

The

qddi

Ibn

Siraj

ordered

the

division of a

jointly

owned

vineyard

when one of the

co-owners

was

absent;

he

recorded

this

decision as a

judgment

(hukm)

based on testi-

monial

evidence.

Several

years

later,

the former

partner

returned to

Cordoba

where he

approached

the

qddl

Ibn

Manzir

(d. 464/1072).

Claiming

that the division

had

resulted

in the

neglect

of

his

plot

of

land,

he

demanded that it be canceled. Some

jurisconsults

argued

that the

division

(qisma)

was reversible

because

Maliki

doctrine teaches that

a

judicial

division

of

property generally

has

not

the

legal

quality

of a

binding

judgment

(hukm).

At

least

one

jurisconsult

objected

that this

particular

division was

binding,

because it

had

been

decided

by

a

hukm.

The

qddl

Ibn Manzir

decided to

ratify

the

initial

judgment

(hukm)

because it had

been based on

unchallenged

witness

testimony.82

It

seems

unlikely

that there

existed

a

hierarchy

of

appeal among

the

different

courts in

Cordoba.83 From

the

above-mentioned case of

the

violation of a

qdi'

s settlement in an inheritance

dispute,

it is not clear

whether a

market

inspector

had

the

authority

to

annul a

qddl

judgment,

even if

he

wished

to

do so. A

qddi

could annul

a decision made

by

a

market

inspector

on the

grounds

of

a unanimous

jurists'

vote.84 The

judge

of

complaints

(sahib

al-maztlim)

dealt with some cases

formerly

heard

by

a

qddl al-jamd'a

and also

had

the

power

to

annul a

qddi

79

Cp.

my Gerichtspraxis,

02-05,

Farhat .

Ziadeh,

"Compelling

efendant's

Appearance

t

Court n Islamic

Law",

slamicLaw and

Society,

3

(1996),

305-15,

esp.

312.

80

Ibn Sahl considered he

irjd'

al-hujja

o

be a

principle

asl

ma'mul),

ee

Ahkdm,

33,

also

Wansharisi,

Mi'ydr,

X,

90-91,

cf.

my Gerichtspraxis,

04,

note

19;

irjd'

al-hujja

s

also

cited in

Ziadeh,

"Compelling,"

12;

for

examples

rom

Cordovanegalopinions, ee IbnSahl,Ahkdm, 48, 352,442, 563, 618, 628, 631,

637,

639,

641.

81

Ibn

Farhun,

Tabsira, ,

99-100.

82

Wansharisi,Mi'yar,

VIII,

118-19.

83

This

supports

Powers'

argument gainst

he

term

"appeal"

n this

context,

see

"Judicial

eview," 15-17,

324and337-38.

84

Khushani,

Quddh,

127.

174




18/29

JUDGING

WITHGOD'S

LAW

ON EARTH

judgment.

But his

jurisdiction

was not

superior

o that of the

qddl.

In

one

case,

claimants recovered

usurped

land in a mazdlim

court;

subsequently,

hey

tried to

confirm

their

rights through

a

qd.di

decision

on the same

legal grounds.85

uch

a claim

makes

sense

only

if a

qcdli

judgment

had in fact

greater

authority

than that of a

judge

of

complaints.

Three

ormer

udges

of

complaints

became

quddt

al-jamd'a

later in their

respective

careers.86 From the

Cordovan

cases we

conclude

hat

the

judge

of

complaints

dealt with cases that

could

not be

satisfactorily

ecided

by

the

qadi.87

The

range of qadi urisdiction

In Cordoba,urisdictionn mattersof Malikifiqhwas nottheexclusive

preserve

of the

qdadal-jama'a.

Various

udicial

officials

(hukkdm)

lso

appliedfiqh

regulations

in

court

proceedings

and as a basis of their

judgments.

This

is

not the

place

to examine the

range

and limits of this

"magistratal"

urisdiction,

but

its

mere

existence

in

the field of sacred

law

requires

a definitionof

the

q.di's jurisdiction

hat

goes

beyond

its

assumed

correspondence

with shari'a

jurisdiction

that is

opposed

to

siydsa jurisdiction.88

Bearing

in mind what has been said

regarding

procedural

nd evidentialrules

necessary

or the

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