Chapter Two. Normative Advice: Consultation as a Result of Uncertainty in Law
VII. Conclusion: Uncertainty in Law Creates Authorities
The normative context of advice brought to light that sociolegal questions of who makes the law cannot be divorced from legal theoretical questions of the authoritative status of law. In this sense, uncertainty produces authorities in law.
Judicial consultation thus can be seen as both a consultative as well as a participative activity.779 It is consultative in the sense of having to exercise legal reasoning and it is participative in the sense of contributing to a consensus. This underlines one of the key findings of this chapter, namely that consultation is firmly linked to legal theory. Or, differently put, that the authorities in law are conditioned to the authority of the Law.
Muslim jurists debated how to overcome uncertainty, and what the scope of legal reasoning beyond the authority of the text can possibly be. For legal philosopher S.
Shapiro, “under conditions of uncertainty, it is normal to seek out experts and defer to their recommendations”780- even when the one seeking out is an expert him or herself.
When the judge faces cases of uncertainty, and the advice emanates from a highly reliable source, the judge of his own accord and by deliberating meticulously can commit himself to accept as true the recommendation of the expert.781 Muslim jurists saw consultation as a professional necessity.782
Similar to other scholars critical of the dogma of the binding force of law , Muslim legal jurists never thought that deduction would be the exclusive tool of legal interpretation to overcome uncertainty. They experienced gaps, conflicts and ambiguities throughout the whole of the evolving legal system, and ijtihād became a necessary though variously conceptionalized part of routine legal work in the formative period of Islamic law.
779 Badry, Die zeitgenössische Diskussion um den islamischen Beratungsgedanken (1998), p. 174, speaking of political participation though.
780 Shapiro, “Authority” (2002), p. 423.
781 Shapiro, “Authority” (2002), p. 423.
782 See also the Consultative Council of European Judges considers the quality of adjudication to be based on efficiency, legitimacy and ethics. As one element of ethics, the exchange of ideas is considered crucial by the working group of the Consultative Council of European Judges (CCJE) in 2008.See Alt, “Qualität der Rechtsprechung“, Betrifft Justiz 2009, 28ff, quoted by Eckertz-Höfer, “Vom guten Richter“ (2009), p.
740.
Without any form of legal reasoning, Muslim jurists knew that otherwise they would not be able to interpret the law.783
Muslim jurists realized that law, when ungoverned by revelation and auxiliary text, had its basis in probability. Uncertainty was accompanied by interpretation of revelation by individuals, which could well lead to different results. Thus, to derive the law from sources that were probable (as the Arab technical term ẓann would have it), or indeterminate or uncertain (the Anglo-American terminology), the jurisconsult was foreseen to act as guide or as control to the judge, depending on the school of law. Thus, the authorities in law were related to the authority of law (and vice-versa). The role and the authority of the jurisconsult was referred back and tied to the role of legal reasoning beyond text in legal theory. While following the advice and authority of a jurisconsult was not a magic cure to indeterminacy, both guidance and control meant that the burden of judicial risk-taking (and the pending punishment in the Hereafter) was shared between judge and jurisconsult, whether jointly (according to the Ḥanafī understanding) or in a more asymmetrical way (according to Shāfi῾ī).
This chapter showed how the jurists of the schools of law have given different normative answers on when and why the judge is to request a legal opinion. The schools took a different stance on whether a jurisconsult’s opinion was to be considered a recommendation that the judge was free to adopt (the jurisconsult acting as a guide) or whether the jurisconsult’s advice was to minimize subjective elements in adjudication (the jurisconsult acting as a constraint to the judge). While the Ḥanafī recommendation to consult was articulated to guide the judge, the Shāfi῾ī’s shift from an initial recommendation to an order also signals a shift adding control to the jurisconsult as a guide.
As in the normative elaborations there was no imperative, no coercive element at any point, the judge was left to autonomously decide for himself whether he considered the jurisconsult’s reasons and authority to be persuasive enough to be followed.
The lack of certainty in law and the fact that uncertainty is part and parcel of any legal system, opens the gate for the dangers often dismissively called a “Kadi-Justiz”, i.e. an
783 On legal realist H. Wechsler and his understanding that without policy, jurists would not be able to interpret the law, Kennedy The Canon (2006), p. 314.
adjudication leading to arbitrary results.784 For example, U.S. Supreme Court Justice Felix Frankfurter, in his dissent in Terminiello v. Chicago, addressed the limits on the Supreme Court’s extent of inquiry and stated: “This is a court of review, not a tribunal unbounded by rules. We do not sit like a kadi sitting under a tree dispensing justice according to considerations of individual expediency.”785 The image is meant to suggest that, in the Islamic context, the law is arrived at in an unprincipled manner that reflects the whim of the qāḍī more than the demands of a rationally cohesive legal system. This depiction entered not only US-understandings of Islamic adjudication. Similarly, the President of the German Federal Administrative Court stated that because there is no certainty in law and because certainty cannot be attained, judges are not allowed to resort to arbitrariness. “[Uncertainty] allows no Kadi-Justice, allows no adjudication that leads to a random and arbiterary result.786
Much of this blameworthiness may be laid upon Max Weber who wrote that “Kadi-justice knows no rational ‘rules of decision’ and therefore no accountability.787 J.
Makdisi describes the resulting image of Islamic judiciary, diplomatically as “truly mistaken”.788 F. Ziadeh, scholar of Islamic law and editor of Khaṣṣāf’s Adab al-qāḍī work, reproaches justice Frankfurter that if he had read Khaṣṣāf instead of Weber, he would not have “fallen into this error.”789
Weber’s remarks on “Kadi-Justiz” were made at a time of greater confidence in a process of judicial law-making and judicial law-applying, or differently put, at times that did not
784 President of the German Federal Administrative Court Eckertz-Höfer, “Vom guten Richter“ (2009), p.
734. US-American Justice Frankfurter in Terminiello v. Chicago, 337 U.S. 1, at 11; 69 S.Ct. 894, 899 (1949).
785 In his dissenting opinion, Justice Frankfurter in the case Terminiello v. Chicago attached the preference of the majority to find a federal claimhad been pleaded in the lower state courts, Terminiello v. Chicago, 337 U.S. 1, at 11; 69 S.Ct. 894, 899 (1949). Similarly, eminent US-American legal scholar Pound dimissively said:
„The oriental cadi administrating justice at the city gate by the light of nature tempered by the state of his digestion.” Pound, “Decadence” (1905), p. 21.
786 Eckertz-Höfer, “Vom guten Richter“ (2009), p. 734. “Diese fehlende und nicht herstellbare Determiniertheit erlaubt den Richtern indes keine Beliebigkeit. Sie erlaubt keine Kadi-Justiz, keine Rechtsprechung auf ein beliebiges, gewillkürtes Ergebnis hin.“ She then refers to the German Görgülü case as an example of Kadi-Justiz, of judges taking an evidently subjective, here racist, stance. Regrettably, Kadi-Justiz thus has become a generic term, and has migrated to describe law entirely divorced from text.
The case in point went from the German lower family court to the European Court of Human Rights (EGMR No.74969/01, Urt. v. 26.2.2004, NJW 2004, 3397) and back to the German Federal Constitutional Court (BVerfGE 111, 307).
787 Weber, Wirtschaft und Gesellschaft (1980), p. 477.
788 Makdisi, “Legal Logic and Equity in Islamic Law” (1985), pp. 63-5, here at p. 64.
789 Ziadeh, “Integrity” (1990), p. 80.
see the consciousness for uncertainty in law in the common and civil law world.790 But even today, the recourse to “Kadi-Justice” obscures the fact that Muslim jurists were much more conscious about the uncertainty of law, as would believe in many circles of the academy. A look into Khaṣṣāf’s and Shāfi῾ī’s work would have illustrated how conscious judges were about the complexities of the law and the juridical challenges in the face of gaps, ambiguities and conflicts of the law.
790 Glenn, Legal Traditions of the World (2004), p. 187.