A Joint Burden: Of Interpretation and Adjudication

The burden of interpreting Islamic law is a reoccuring theme in Islamic legal scholarship.

This is not surprising given the law’s character of ius divinum that needs human interpretors to make the law legible. Thus for Muslim jurists, interpreting and adjudication the law were embedded between warnings and collective duty: The difficulty to interpret and apply the law, particularly in situations of indeterminacy, stands in tension with the necessity to interpret and apply the law as a way of ordering society and of dispensing justice. It is this delicate balance within which the rational for consultation should be seen.

This is particularly highlighted by the role of the judge who makes binding and enforceable decisions with automatic consequences for the litigants. Therefore, it is typical for early literature on adjudication starts with both a lauding and a cautioning of the judgeship position. The earliest collections of ḥadīths, biographical dictionaries and judge’s anecdotes recorded in numerous chronicles related to judicial theory and practice included in their chapters on adjudication (al-qaḍā’) traditions that both encouraged the adjudicator to dispense justice while at the same time reminded the judge of the responsibilities before God, and the eschatological dangers that an unjust qāḍī risked running into.³⁸²

Wakī ῾ in his seminal judicial chronicle 9^th century “Akhbār al-qūḍāt” (Reports of Judges) dedicates the first chapter to the ḥadīths attributed to the Prophet or the

Companions which circulated in his epoch on this subject. They focus on the dangers of adjudication and specify the spiritual threat weighting heavy on the qāḍī, as the

following ḥadīth reports:

"There are three types of judges: two are in Hell, one is in Heaven; the two [types] in Hell are those who are learned and judge against their knowledge, and those who are ignorant and judge without knowledge; the [type] in Heaven is learned and judges from his knowledge.”³⁸³

382 See also Rebstock, “A Qāḍī’s Error” (1999), p. 3. Tillier, Les Cadis (2009), p. 626. See also,

symbolically, judge ῾Amr b. Sālem on his ring was engraved “῾Amr b. Sālem fears that if he disobeys God he awaits punishment in the Hereafter”, Wakī῾, Akhbār al-quḍāt, II, p. 307.

383 Al-quḍāt thalātha fa qāḍiyān fi al-nār wa qāḍin fi al-janna. Wakī῾, Akhbār al-quḍāt, I, p. 13-19;

Khaṣṣāf, Adab al-qāḍī, sec. 5, p. 33; al-Tirmidhī, al-Sunan, III, p. 613; Abū Dā’ūd, al-Sunan, III, p. 299;

This tradition includes a clear warning and a threat of sanction for the judges in the Hereafter, once they would be judged themselves. The chances of two to one ending up in hell when judges did not fulfil the expectations to judge according to what they know of the law, made adjudication barely a promising but rather a perilous undertaking.

Similarly, there are reports of the qāḍī finally facing God on the day of judgment, hands tied to the neck, or thrown into paradise by an angel. ³⁸⁴

Another much cited ḥādīth is “Who is made judge is slaughtered without a knife”. ³⁸⁵ It indicates that the metaphorical death of the judge is closely linked to moral responsibility that comes with his profession. These ḥadīths spread probably under the influence of some traditionalists who invited suchlike qāḍīs to apply law rigorously without giving in to the pressures of power, leading to corruption or unsound verdicts, and reminded judges that they were responsable before God and not before the governments. This way, they possibly wanted to hold back those from qāḍī office who were not considered suitable for the task, or burden, of adjudication.³⁸⁶

The very fear of legal malpractice was also captured in the following ḥadīth: After the judge (ḥakam) had died, every legal decision of his is presented to him in his grave; and if any anomaly (khilāf) is found, then he is beaten [so hard] with an iron rod that his grave coughs.”³⁸⁷

The discussions included not only the perils of the qāḍī position but also their countervailing significance. These dual qualities consist, on the one hand, of a firm societal obligation (farḍ kifāya) to produce adjudicators of Islamic law, and on the other, an acknowledgment that engaging in this type of interpretation inevitably exposes the qāḍī to the possibility of (divinely punished) error.

Ibn Māja, Sunan, II, p. 776. Tillier, Les Cadis (2009), p. 627; Ibn Qudāma, ῾Udda, XI, p. 225 and

al-Māwardī, Adab al-qāḍī, I, p.638 ascribed a variant to the Prophet. Rebstock, “A Qāḍī’s Error” (1999), p.

17.

384 Wakī῾, Akhbār al-qudāt, I, p. 19-21; See Ibn Abī Shayba, al-Muṣannaf, IV, p. 540;VI, p. 419; Ibn Ḥanbal, al-Musnad, I, p. 430; Ibn Māja, al- Sunan, II, p. 775. Further on these ḥadīths see Tyan, Organisation judiciaire (1960), p. 322. Tillier, Les Cadis (2009), p. 627.

385 Man ju῾ila qāḍi-an fa qad ḍubiḥa bi ghayr sikkīn, Wakī῾, Akhbār al-quḍāt, I, p. 7-13; al-Kindī, Al-wulāt wal quḍāt, p. 471. See Ibn Abī Shayba, al-Muṣannaf, IV, p. 542; Ibn Ḥanbal, al-Musnad, II, p. 230, 365;

Abū Dā’ūd, al-Sunan, III, p. 298; al-Tirmidhī, al-Sunan, III, p. 614; Ibn Māja, al-Sunan, II, p.774; Khatībī, Tar’īkh Baghdad, VI, p.151; Tillier, Les Cadis (2009), p. 626.

386 Schneider, Das Bild des Richters (1990), p. 182.

387 Wakīʽ, Akhbār al-quḍāt, I , pp. 31-32, on this qāḍī, see Ibn Ḥajar, Tahdhīb, VIII, p. 226 ( nr. 418), p.

236, as cited and translated by Zaman, Religion and Politics (1997), p. 154.

Parallel to these warnings, early literature also dealt with the communal obligation (farḍ kifāya) of adjudication, as a task that serves the community, was a collective duty upon the community and as such irrenounceable.³⁸⁸ Adjudication was considered communal as the office of the judiciary had the aim to do justice by ensuring that people are accorded the rights to which they are entitled. The judge not only had to interpret laws that originated in revelation, but also had to decide cases in order to maintain public order.

These two central aspects, terminating litigation through a decision based on revelation and securing public order were central elements of adjudication as accepted by all schools of law. ³⁸⁹ Thus, despite the warnings against the risks of getting it wrong in adjudication, the office of qāḍī was overall approved of as a general good.

The communal obligation is also reflected in the title of “qāḍī al-muslimīn”³⁹⁰, qāḍi of the Muslims and at the service of the Muslims, and not of the ruler as shown by “qāḍī amīr al-mu῾minīn,” (judge of the Commander of the Faithful, i.e. judge of the caliph) as a title that was also in circulation, albeit much more rare.³⁹¹ M. Tillier proposes not to translate the qāḍī title as the term “judge of the Muslims” (in the sense of excluding non-Muslims), but judge of the Muslim people, in opposition to the ruling power. For him, the term stresses the relationship of the judge with the people, and that the judge was bound by the laws of the Muslim people.³⁹² More precisely though, Muslim judges did not only adjudicate cases of Muslim litigants but of all those subjects in the Empire that sought their services, regardless of their religion: Muslim judges also gave rulings over Christian litigants, when asked to. In a judicial chronicle by Kindī it was asked if judge Khayr b. Nu‛aym used to adjudicate for the Christians on the doorsteps of the mosque.

The recorded answer was that all judges reserved a day in their homes for the Christians.

Kindī then added that the first to have Christians enter the mosque for their litigations was Muḥammad b. Masrūq, a Ḥanafī judge from the Iraqi city of Kufa, who was appointed judge of Egypt by caliph al-Rashīd under in 177 A.H.. ³⁹³ The passage refers not only to Christians as litigants before Muslim judges, but also to the changing place of adjudication, shifting gradually from the judge’s home to the mosque. The place of adjudication for Christians thus cannot be per se understood as a a different treatment but

388 Masud/ Peters/Powers, Dispensing Justice (2006), p. 19.

389 Al-Zuhayli, Ta'rikh (1995), p. 11-19. Rebstock, “A Qāḍī’s Error” (1999), p. 2.

390 See for instance, Shāfi῾ī, Kitāb al-umm, IV, p.61.

391 Tillier, Les Cadis (2009), p. 616-620.

392 Tillier, Les Cadis (2009), p. 619.

393 Kindī, Kitāb al-Wulāh, p. 390.

rather reflects a changing conception of what the right place of adjudication is, a debate assessed in Chapter Four regarding the bureaucratization of the judiciary as an official duty, reflecting aspects of communality and (religious and worldly) accountability of judging in the mosque.³⁹⁴

Many qualified potential candidates either refused to accept the judgeship position or had to be pressured into office. For instance, qāḍī Qāsm b. Maʽn was threatened with seventy-five strikes before he eventually accepted his appointment as judge.³⁹⁵ His predecessor, qāḍī Sharīk (96-177 or 179, 711- 793/795) tried to negotiate himself away from qāḍī position by telling the caliph that he had bad mouth smell, to which the caliph replied he should simply chew a gum.³⁹⁶ Famously, Abū Ḥanīfa, school eponym of the Ḥanafīs, was said to have endured torture and imprisonment for his refusals to become qāḍī, even before the reign of the Abbasids.³⁹⁷ The well-known reluctance of scholars to accept appointments was possibly linked to them not wanting to associate themselves with an unjust, impious or illegitimate state power³⁹⁸, a theme reoccurring regardless of the actual rulers in power. M.Q. Zaman however argues that the reports of not accepting official appointments or of pious distrust of associating with the rulers must be assessed with caution.³⁹⁹ It does not follow from such attitudes that the scholars who held them considered the state, or its rulers, to be illegitimate⁴⁰⁰: “to be wary of the corrupting influences of power is not the same thing, after all, as regarding power itself to be illegitimate”. ⁴⁰¹ Nor does the refusal to become a qāḍī, for instance, necessarily signify a disapproval of the concrete ruling power: there were stories about the position of the judge being declined even in the time of the pious caliphʽUmar I.⁴⁰² Thus it is not without interest to note that at least some of the persons listed in the chain of transmitters

394 On (failed) codification, Chapter Four, II.

395 Wakīʽ, Akhbār al-quḍāt, III, p. 177.

396 Wakīʽ, Akhbār al-quḍāṭ, III, p. 174.

397 For a discussion of this and his antipathy toward the ruling authorities and censure of judges like his rival Ibn Abī Laylā who cooperated with them, see Yanagihashi, “Abū Ḥanīfa,” Encyclopedia of Islam (3).

For more on the ambivalent relationship of scholars, such as Abū Ḥanīfa’s, with the state, see Chapter Four, III.1.c. and d.

398 Zaman, Religion and Politics (1997), p. 154. Masud/Peters/Powers, Dispensing Justice (2006), p. 10.

399 Zaman, Religion and Politics (1997), p. 154.

400 See Crone, Slaves on Horses (1980), pp. 61-3, on the scholars regarding the state as illegitimate.

However, Crone does not in concreto refer to the refusal of scholars to accept official, or judicial, appointments.

401 Zaman, Religion and Politics (1997), p. 154.

402 Kindī, al-Qudāt, p. 302; Wakīʽ, Akhbār al-quḍāt, I, p. 16, Khoury, “Zur Ernennung von Richtern“

(1981), p. 203.

(isnāds) of ḥadīths which warn of the perils of the qāḍī’s position, were themselves judges.⁴⁰³

The hādīths offer additional interpretations: van Ess considers that these ḥadīths reflect a part of social reality in Iraq of the second/ eighth century. The circulation of these traditions would express tensions comparing some non-Arab (mawālī) scholars and the Arab qāḍīs who had tendency to treat them disrespectfully in the course of trials: “The scholars took their revenge by making comments on the ignorance of some of those that managed law officially. They turned to the responsibility of the judge and underlined the fact that a wrong judgment, arrived to it by bad will

of the qāḍī or his lack of competence, could cost him his salvation.”⁴⁰⁴

Another interpretation was offered by Wensinck, who favors the motif of “refused dignity” in which not only prophets but also judges refused their appointments, so that their acts could be seen as humility and discretion, ultimately raising the public standing of judges. ⁴⁰⁵

M. Tillier offers an additional approach. He principally sides with the interpretation of stressing the judge’s responsibility to dispense justice, and the ḥadīths being employed to scare those who do not feel firm enough for adjudicative practice and the burden of justice. He argues that it is also plausible that these traditions serve to elevate the position of the judges. More than anything, these ḥadīths link qāḍīs directly with divinity.⁴⁰⁶ It is

403 For the tradition “one who is made a judge, is slaughtered without a knife”, such individuals include:

ʽAbd al-ʽAzīz b. ābān (d. 207/ 822-3), qāḍī of Wāsit (Wakīʽ, Akhbār al-quḍāt, I, p.12, on him, see Tar’īkh Baghdad, X, pp. 442-447); Ibrāhīm b. Muḥammad Taymī (d. 250/ 864), qāḍī of Basra, Khatīb al-Baghdadi, Ta’rīkh Baghdad, VI, p. 151; on him ibid., pp. 150-152); Ismāʽīl b. Isḥāq (d. 282/ 895) (Wakīʽ, Akhbār al-quḍāt, p. 9; on him Khatib al-Baghdadi, Ta’rīkh Baghdad, VI, pp. 284-90); and perhaps others.

Another tradition on the perils the qāḍī is exposed to features Muʽādh b. Jabal (d. 17-18/ 638-39), the Prophet’s Companion who is said to have been sent as qāḍī to Yemen, and Shurayḥ (d. 78/697), the legendary qāḍī of ʽUmar I, see Wakīʽ, Akhbār al-quḍāt, I, pp. 19-20.; on Shurayḥ, see Tyan, L’Organisation (1960), I, pp. 101-103. Sharīk b. ʽAbdallāh (d. 187/ 803; on him, Khatib al-Baghdadi, Ta’rīkh Baghdad, IX, pp. 279-295) appears in variants of the tradition which states that two out of every three qāḍīs are in hell (Wakīʽ , Akhbār al-quḍāt, I, pp. 13-15.; on Sharīk b. ʽAbdallāh, see ibid., III, pp.

149-75); and ʽIsā b. Hilāl al-Ṣālīḥī, a third century (?) qāḍī of Ḥimṣ figures in the isnād of a tradition which states that “after the judge (ḥakam) had died, every legal decision of his is presented to him in his grave;

and if any anomaly (khilāf) is found, then he is beaten [so hard] with an iron rod that his grave coughs”

(Wakīʽ, Akhbār al-quḍāṭ, I, pp. 31-32, on this qāḍī, see Ibn Ḥajar, Tahdhīb, VIII, p. 226 (nr. 418), p. 236).

So these traditions did not make people averse to occupying the position of judge. Zaman, Religion and Politics (1997), p. 154.

404 van Ess, “La liberté du juge basrien” (1985), p. 27.

405 Wensinck, “The refused dignity” (1922), p. 492.

406 Tillier, Les Cadis (2009), p. 629 refering also to some of the ḥadīths Wakī῾ cites linking the awards of adjudication with satisfying God.

the law which they have to apply and it is for its application they will have to be accountable.

Whether these warning ḥadīths are indeed authentic is yet another question that is is difficult to ultimately answer. M.Tillier goes back to trace the origins and the circulation of these ḥadīths, trying to find out by whom and with what credibility the hādiths were being put into circulation. ⁴⁰⁷ Significantly though, while most explanations about the authenticity and origins of these ḥadiths remain speculative, the very fact that they circulated and were included in all literature on adjudication nourishes the fact that they were given some thought and considered a relevant piece of information for the coming generations of judges.

The debate about cautioning the judge on the judgeship position is important in a significant way: The judge cannot deny, cannot refuse to recognize the truth about extralegal factors, or about his own desire, emotion, opinion, or intention, and this is precisely why he feels, or ought to feel the painful anxiety about judgeship.⁴⁰⁸ These are exactly the extralegal factors addressed by the literature of adab al-qāḍī (Etiquette of the Judge) that are central to this genre.⁴⁰⁹

These reports and the scholarship cautioning the judges point to the jurists' growing awareness of the twofold vulnerability of a qāḍī, of material and moral temptations as possible sources of injustice.⁴¹⁰ Externally, there were the potential pressures of power, assuming the qāḍī to be an instrument of the highest powers of the state, and an object of corruption and bribery on the part of the litigants. ⁴¹¹ Internally, there was the fear of dispensing justice and of commitig an error (or sin) – consequences of the consciousness that the judge was fallible and subject to the law, in this world and in the Hereafter.⁴¹²

407 Tillier, Les Cadis (2009), p. 627-629.

408 Duncan Kennedy describes the opposite for the US-American context: Most judges in the USA, he says, are engaged in denial, refusing to admit that they are subjects to extralegal factors such as desires or emotions, with the aim to prevent or get rid of exactly the anxiety as documented in Muslim legal literature. Kennedy, “Judicial Ideology” (1996), p.806. On the idea that the legal actors in a given legal culture can engage in collective denial with respect to the true nature of legal institutions is one with a long pedigree in legal history and sociology, see Kennedy, “Judicial Ideology” (1986), p. 813, referencing Maine, Ancient Law (1861), p. 76-77.

409 On the adab al-qāḍī literature and the anxieties of adjudication, Chapter Two IV.1.

410 Coulson, “Doctrine and Practice” (1956), p. 212; Rebstock, “A Qāḍī’s Error” (1999), p. 13.

411 Wensinck, “The refused dignity” (1922) p. 497.

412 Rebstock, “A Qāḍī’s Error” (1999), p. 13.

Yet, all these warnings against adjudication need to be counter-balanced with a particularly prominent ḥadīth that encourages all jurists in engaging in de lege artis of legal reasoning. The ḥadīth counters the dangers of adjudication and simultaneously underlines the significance of any jurist’s consciousness in dealing with juridical law-making: “If a jurist exerts efforts and arrives at a correct ruling, he will be rewarded twice. If he arrives at an erroneous ruling, he will be rewarded once.”⁴¹³ The tradition applies to anyone who exercises the art of interpreting the law, and thus applies to all qualified judges and jurisconsults. Jurists were likely to make errors and to become culprits of injustice, but this ḥadīth shows that unintentional error was not to be sanctioned. The report encourages jurists to exercise their legal reasoning. It also signals that there existed a consciousness for the risks and dangers of juridical law-making, yet focuses on the sound efforts, and less on the actual result, promising reward in both the correct and the erroneous result. For the judge this means that the burden of adjudication, first elevated to raise consciousness of what it means to dispense justice, was mitigated again: adjudication lege artis, as difficult as its methods might in itself be, can be a reward-bringing undertaking.

For jurisconsults, the adab al-muftī literature, which only emerged in the 10^th century and thus around two centuries later than the literature on judges⁴¹⁴, also emphasized caution for muftīs: There is a strikingly parallel discussion of underlining the communal obligation to produce interpreters of the law, and a simultaneous consciousness and acknowledgement of the perils of error in interpretation.⁴¹⁵

Despite their nonbinding and informational qualities, fatwās often had a significant impact on the law, and it is in this light that Masud, Messick and Powers suggest that the

“burden of the muftī as a human interpreter of God’s law may be seen as even greater than that of the judge”.⁴¹⁶ This statement is contested by Rebstock who recalls that “the qāḍī’s judgment had to be just in a social sense, true in a religious sense, and correct in a

413 Abu Dawud, Sunan, III, p.1013, hadith no. 3567; Al-Bukhari, al-Sahih, VIII, p.157.

414 On adab al-muftī (the etiquette for jurisconsults) and possible reasons for its late emergence, see Chapter Four III.2.e.

415 Masud/Messick/Powers, Islamic Legal Interpretation: Muftis and Their Fatwas and (1996), p. 15 refering to 13^th century Shafi῾ī scholar al-Nawawi, Adab al-fatwā, p. 13-14.

416 Masud/Messick/Peters, Islamic Legal Interpretation: Muftis and Their Fatwas (1996), p. 19 refering to14th century scholar Ibn al-Qayyim al-Jawzīyya, I῾lām al-muwaqqi῾in,I, p. 38;

formal sense.”⁴¹⁷ He disputes the statement of the muftī’s burden in interpreting Islamic law and instead argues that “[t]he legitimacy of his [the judge’s] judgment rested on his correct application of prescriptions that were regarded as being of divine origin. This responsibility put him into a singular position within Islamic society. No one else, not

formal sense.”⁴¹⁷ He disputes the statement of the muftī’s burden in interpreting Islamic law and instead argues that “[t]he legitimacy of his [the judge’s] judgment rested on his correct application of prescriptions that were regarded as being of divine origin. This responsibility put him into a singular position within Islamic society. No one else, not

Im Dokument Judge and Jurisconsult - Coercive and Persuasive Authority in Islamic Law (Seite 94-101)