What can the literature on judges and jurisconsults emanating from the formative Islamic period possibly tell us about their normative and historic encounter in their quest for
authority? What do the sources reveal about a non-quotidian encounter that was, it seems, left ambiguously unregulated, or at least not formalized by law? The exceptional nature of the encounter makes it necessary to integrate many types of source materials that yield many possible answers to a question that seeks to re-construct authority in legal history. This is so because the core primary sources entail many lacunaes that need to be explained by auxiliary sources. It will, steered by the respective primary sources entailed by thick and thin layers of arguments.
Five types of primary material will be employed for this study: (1) The advice literature for judges, or etiquette for judges (adab qāḍī), (2) judicial chronicals (akhbār al-quḍāt), (3) legal compendia, (4) biographical dictionaries (ṭabaqāt), and (5) annals of caliphal rule. Additionally, geographical literature, administrative reports and theological works were consulted where required.
Both the advice literature for judges as well as the judicial chronicles are the core material for the period under study. Though further judicial chronicles exist, like the one of Ibn Tulūn of Damascus, it does not entail information on judges encountering the authority of jurisconsults in the formative period.
The list of primary sources reveals major challenges in reconstructing the history of debating the authority of legal personae. Recourse to one main genre is not possible.
Rather, a multitude of sources, all in themselves challenging, are needed to bring together the many pieces of a historic mosaic. Challenges are posed by the character of mediated sources; the largely prosopographical material; the judge-centered and Iraq-centered perspective, with a centre-province dimension not seldom at the expense of the provinces; and poetry as another highly sophisticated literary genre being used as a critical intervention. I identify five challenges in combining an analytical and historical approach to the question of authority of legal personae.
First, the typology of sources has revealed that a major challenge lays in the fact that no immediate sources are available: no preparatory materials for the judgments or judgments indicate insertions from fatwās requested by the judges or imposed by the jurisconsults on the judges.217 This is noteworthy given that judges were obliged to
217 The judgments of qādīs are rarely available before the sixteenth century; some fairly early judgments are reported in collections of juristic opinions (fatwās) in the early 16th century by muftī al-Wansharīsī see Powers, Law, Society, and Culture in the Maghrib (2002).
document and archive judicially relevant materials, including the judgments – a practice kept record of. 218 Virtually no court documents, no certificates of official appointments of judges or other registers listing recorded documents from this time have survived. All these are known to us only as reproduced narrations in literary documents, biographical or historical material. The value of such literary material is, strictly speaking, restricted because it is paraphrased, sometimes shortened, and at times with focus on a particular item of information, serving the purposes of the paraphrasing writer.219
Some explanations have been given to why these documents might not have survived:
Legal documents needed validation through testimony.220 Later adab al-qāḍī authors both insisted that only legal documents confirmed by witness statements should be considered valid and that judges should be able to recall the legal case in question.221 A ruling on the basis of only present documents was not considered possible. 222 It may have been this procedural question on testimony that gave way to losing numerous legal documents223, among the general historic course of misplaced and lost documents.
Similarly, we neither have fatwās originating from that time that indicate they were written for a judge. It should be mentioned that though this study is also about jurisconsults (muftīs), their textual production of legal opinions (fatwās) do not form an integral part of this study. This is because fatwās, though produced, and probably also collected and circulated from early on224, are not existent anymore and can thus not serve as an immediate source of the formative period. Instead, some fatwās were reiterated, paraphrased or solely referred to in other writings, such as judicial chronicles225 or biographical sources.226 Though later periods contain fatwās that indicate that they were written at the request of a judge227, or entail information that allow the reconstruction
218 For example, Waki῾, Akhbār al-qūḍat, III, p. 237; Kindī, Kitāb al-wulāt wa’l-quḍāt, p. 310.
219 See also Schneider, Das Bild des Richters (1990), p. 174-175.
220 Wakin, The Function of Documents (1972), p. 1-9.
221See Schneider in referring here to the writings of Māwardī and Ibn Abi Dam, Das Bild des Richters (1990), p. 117, omitting references.
222 See Wakin, The Function of Documents (1972), p. 1-15, p.12.
223 Schneider, Das Bild des Richters (1990), p. 117.
224 Motzki, “Religiöse Ratgebung” (1994), p.13.
225 See for instance the fatwā of jurist Mālik to judge al-Mufaḍḍal, Al-Kindi, Kitāb al-Wulāh, p. 387. See Chapter Three, I.3.c and Chapter Three, I.3.d.
226 See Motzki, Die Anfänge der islamischen Jurisprudenz (1991), p. 221 with references to biographical dictionaries.
227 See for example some legal responses in the the fatwa collection of jurisconsult al-Wansharīsī (d.
1508), Powers, Law, Society, and Culture in the Maghrib (2002).
that they must have been written for judges228, or at least for a legally knowledgeable addressee229 none of this is available to us for the formative period.
Instead, we need to base our research and our conclusions from mediated sources that mostly paraphrase or refer to the textual productions of judges and jurisconsults of that time that were rarely copied verbatim, or their correspondence with each other. This means that the information is transmitted, and that the transmission of information needs to be critically assessed, whenever the existence of auxiliary source material allows us to.
In evaluating the evidence, questions of authenticity and credibility need to be posed, as well as who followed which interests by inserting the respective information and how it was framed. As far as scholarly debates have already critically investigated the sources under study here, reference will be made to these arguments.
A recurring challenge seems to be that some passages in the sources might present an idealized image of the qāḍī and his work. Given that many authors of the adab al-qāḍī genre, the judicial chronicles and the legal compendia were either judges or close to the judiciary at point in their lives, the picture conveyed might portray the qāḍī’s own ideas about their status and role in adjudication. In other words, what claims to be evidence about the situation which existed in early Abbasid times might merely be a statement of what the scholars (often of a later time) thought should have been the case.230 This possibility seems especially marked when we are dealing with works of the adab al-qāḍī type which are explicitly concerned with how things should be, rather than how they were in practice (even though the writings were likely to have been inspired by judicial practice).
Second, much of historical information is prosopographical information: Judicial and historical annals as well as biographical dictionaries are by nature narrative sources that provide names and details of dignitaries and functionaries, such as judges or scholars.
This type of information readily lends itself to a prosopographical study, or “collective biographies”. Early in the 20th century, European historians used the prosopographical
228 Masud/Messick/Powers, Islamic Legal Interpretation: Muftis and their Fatwas (1996), p. 24.
229 For instance, ῾Aṭā b. Abi Rabbaḥ, mufti of Mecca, was consulted in the late first century A.H./ seventh century C.E. by the learned and the lay, see Motzki, Die Anfänge der islamischen Jurisprudenz (1991),p.
221.
230 Kassassbeh, The Office of Qāḍī (1990), p. 34.
approach as a method of ‘seeing behind’ the traditional historical narrative.231 The prosopographical approach highlights the biographies and careers of historical figures to give an additional layer of explanation for their course of action.232 There is no way one can cover early Islamic legal history without the prosopographical approach as it delivers all the information omitted in annals, yet needed to figure out the persons involved in the course of history.233
The prosopographical approach has its weaknesses. It leads to a rich history of (mostly) scholars (Gelehrtengeschichte) but the biographical information conveys a static image, generalizes, and leaves little space to learn about developments- neither how the relationship of legal personae changed towards each other, nor how the law transformed.
Also, prosopographical organizing principles give names and their biographies preference over thematic cohesion.234
Also, scholar of Islamic history Patricia Crone, though considering the prosopographical approach crucial to tackle early Islamic history, considers prosopographical information to be “gossip”: “[T]he vast amount of information [in accompanying narratives] is gossip which cannot be used for what it asserts, only for what it conveys, primarily the background and status of the persons gossiped about.” 235 While one certainly does not have to go as far Crone in dismissing all biographical information as gossip, it remains uncontested that it is information delivered by third persons whose interests need to be reflected. Often, as mentioned before, people are added to the list of a school to enlarge the number of its followers, and information on that person might be engrandized to highten his reputation ex post, just as severe criticism might be voiced to damage the credibility as a scholar. This only stresses that each genre needs to be complimented by other sources of information, if possible, and to combine Islamic prosopographical approach with the theme-related research on authority of legal personae.
231 Cobb, “Community versus Contention” (2001) p. 106. For a fruitful discussion of the advantages and potential pitfalls of such an approach, see Stone, “Prosopography” (1971), pp. 46-79.
232 Kunkel, Herkunft und Stellung der römischen Juristen (2001), p.x
233 Crone, Slaves on Horses: the Evolution of the Islamic Polity (1980), p. 16-17.
234 Van Ess, Theologie und Gesellschaft (1992), I , p. X.
235 Crone, Slaves on Horses: the Evolution of the Islamic Polity (1980), p. 16-17. The quote starts in the following way: “To the extent that the pages of the Muslim chronicles are littered with names,
prosopography is of course nothing but a fancy word for what every historian of that period finds himself to be doing…”
Third, the material is largely judge-centered. The period chosen for the strengthening of judiciary and the simultaneous nascent consolidation of the schools necessitates sources that bring in a judge-centered perspective. Material on judges was largely written by judges. Also, existent judicial chronicles and the Etiquette of the Judges literature emerged as early as the 2-3/9th century and thus precede existent fatwa collections and Etiquette of the Jurisconsult literature of the 13th century considerably and therefore explain the dominance of judge-centered literature. Many constellations in there were described and analyzed from the perspective of the judge, with a focus on best practice adjudication. Thus, there is a visible concern not to harm the central role of the single judge, and with generally mimimalizing the role of the jurisconsult – though the role of the jurisconsults’ impact differed considerably according to the school of law the author belonged to. The authors of the judge-centered literature belonged, regardless of whether they were judges at point or not, to the class of scholars, nevertheless. Thus, it would be difficult to open up a dichotomy between judges and scholars, as the judiciary was largely recruited from the legal scholarly class, and after his removal from office, must judges would return to their scholarly career, if they had not held on to while adjudicating.
Fourth, the material on the development of the judicial system is predominantly Iraq-centered. This is especially true for the main judicial chronicle of Wakī῾ Akhbār al-quḍāt and the comprehensive chronicles of early Islamic and Abbasid history: The geographical focus of scholarly writing is on Iraq. Many scholars’ focus on Iraq becomes evident even prior to the accession of the first Abbasid caliph Abū al-Saffāḥ at the Iraq city of Kafka in 132/749. Iraq thus became not only the centre of Abbasid Empire though it was already previously one of Islamic learning centers par excellence. Diverse circles of learning evolved into influential schools of law, theology and philosophy, attracted many students and scholars who came to take part in what developed into an Islamic culture of learning, withIraq considered the cradle of learnedness.236
The provinces that were covered next to Iraq were of interest because of their wealth, such as Egypt in the West. In this sense, Kindī’s detailed judicial annals sticks out as a
236 On the learning culture in the teaching circles, see Chapter Four, III.
valuable exception237, providing material from the province of Egypt and highlighting the relationship between center and, if not periphery, then province.
An interest in relating Abbasid legitimacy does not necessarily exclude the provinces.
But when it is wedded to Abbasid imperial history, such an historical vision accords little room for consistent information. Often, information on the provinces in the larger annals is much shorter and thus less detailed. In this way, these early narratives of imperial history tend to obscure the local history of many provinces, leaving terse information to analyze.238
Significantly, with Kindī’s account on Egypt a valuable counter-narrative to Abbasid judicial administration can be recalled, showing how it were local scholars in general, and jurisconsults in particular who challenged the judges sent from the capital Baghdad to Egypt, in both procedure and substance of law. With this, an important centre-province tension is added to the work.
The spotty regional coverage of the Islamic sources is a feature common to most provinces of the caliphate; some areas like North Africa received even less notice than Syria.239 This can be largely explained by the fact that the early narrative sources served, even though not explicitly, to establish a line of caliphal legitimacy. In such a view of the history of the Muslim community, stress is given to the precedents, rise, and triumph of the Abbasid caliphate, which liked to portray itself as restoring justice by implementing God’s law for the common good of the community. This conception of Abbasid legitimacy had consequences for the writing of history: The early chroniclers lived and wrote in a world where early Islamic history was “Abbasid history”.240 With the documentation produced from a largely Iraq-centered point of view, it largely gives way to a Abbasid narrative. This however, does not mean that critical aspects are entirely omitted. In fact, it is poetry that is used most often to critique the judges, and inter alia, the judicial system in place, as the next point shows.
237 Ibn Ṭulūn’s The Judges of Damascus (Quḍāt Dimashq) is also one of these rare exceptions, with little relevance to this work though, as no encounters of judges with other legal personell are documented.
238 With reference to Syria, see Cobb, “Community versus Contention” (2001), p. 104.
239 Cobb, “Community versus Contention” (2001), p. 103.
240 Cobb, “Community versus Contention” (2001), p. 104. These ideas are explored with greater depth in El-Hibri, Reinterpreting Islamic Historiography (1999); see also the ʽAbbāsid (Manṣūrid) dynastic concerns expressed in ʽAbbāsid historical writing on the ʽAbbāsid revolution: Lassner, Islamic Revolution and Historical Memory (1986); idem., “The ʽAbbasid Dawla: An Essay on the Concept of Revolution in Early Islam” (1989), pp. 247-70.
Fifth, judicial and general Abbasid annals are interspersed with the literary genre of poetry. The annalists included poetry as a critical intervention and gave room to poets, who were “the journalists and commentators of the day”.241 Thus, judicial annals included poems which are anything but ‘marginal’ but of direct relevance for understanding the local ideological currents and intellectual responses to Abbasid hegemony. Poetry included sharp criticism of some judges, their personal lifestyle (debauchery), real or rumoured bribery. But anecdotes that once made sense to early Islamic contemporaries as part of a larger tale now seem to puzzle us today. They can be full of analogy, and include insults that are today not directly recognized as such (e.g., guardian of the pigeons is used to depict a liar).242
The survey of the sources raises further fundamental methodological questions.
This work highlights the exceptional encounters of judge and jurisconsult rather than the more quotidian course of adjudication. Crucial for all historical research is the question whether the evidence represents a particular point of view which can be used as the basis of a generalization, or whether the circumstances it reports are unique. This becomes particularly important when the main challenge is to answer how to use a non-quotidian encounter as the basis of a generalization on authority of judge and jurisconsult.
Was the task of writing a judicial chronicle considered to capture the habitual and standard or the extraordinary and the atypical? Wakī῾ explicitly documents that he wanted to record the non-quotidian.243 While Kindī and other authors do not make similar statements and do not qualify the character of the events, the documented encounters of judge and jurisconsult are in fact rare. Is the information recorded because it was considered noteworthy as a non-typical event? But can you record the non-typical without also illustrating the typical course of litigation, adjudication, or a judicial career?
Even when Wakī῾ intended to cover the unusual, he made recourse to the reoccurring, like the details of judicial appointment, judicial bureaucracy or the locality of adjudication244. Some events were mentioned as having happened for the first time, were then considered to have established a tradition from then on, like the archiving of materials by judges or the employment of staff to the judge.245
241 Ziadeh, “Integrity“ (1990), p. 85. See in the case of capital punishment I Kufa, Chapter Four, I.3.e.
242See in the case of capital punishment I Kufa, Chapter Four, I.3.e.
243 Wakī῾, Akhbār al-quḍāt, I, p.5.
244 See the detailed reports of the judicial office, Chapter Four, I.
245 See the details of judicial bureaucracy, Chapter Four, I.3.
The question remains how the non-quotidian can shed light on wider legal contexts and systems of the law. How do we give single events wider meaning so that they can contribute to our understanding of Islamic legal authorities? In other words, to what extent can the study of Abbasid judges and jurisconsults contribute to our understanding of authority making in the formative period of Islam? How do we extrapolate from the pecularities of few historical experiences and a limited number of theoretical elaborations on legal authorities to make some observations or conclusions on authority in Islam? This question has been raised by microhistorians, who have asked how we can profit from an intentional “reduction of the scale of observation”246 to highlight the potential of microhistory. The process of microanalysis is based on magnifying a circumscribed body of historical data in the hope of revealing new components, patterns, and connections247 - on authority as a gradually developing question that essentially answers the question of who makes the law.
With all primary sources being usually fragmentary, ambiguous and difficult to analyze and interpret, this project poses no exception. The source material is full of gaps, making
With all primary sources being usually fragmentary, ambiguous and difficult to analyze and interpret, this project poses no exception. The source material is full of gaps, making