Whom the Judge is to Consult: A Question of Qualifications?

The question of eligibility (shurūt) of judge and jurisconsult is discussed with the aim to assess if different qualifications are expected of qāḍī and muftī, and if this might help to see how their authority vis-à-vis each other was debated, and consequently, created.

What were the qualifications expected of a judge in the formative legal phase, what of a jurisconsult? What do differences, what do similarities in their qualifications allow us to conclude of their authority vis-à-vis each other?

The adab al-qāḍī writings of Khaṣṣāf and Shāfi῾ī as the earliest normative and therefore main sources of this chapter offer valuable information on qualifications as part of authority building. The question of qualifications were discussed and laid down in juristic scholarship only, no normative state regulations existed. The question of qualification was laid in the hands of the jurists, underlining the largely self-regulatory structure of law and its staff.

458 Rebstock, “A Qāḍī’s Error” (1999), p. 2, with reference to the judge.

a. Eligibility of Judge

The task of a judge was first and foremost to adjudicate in order to terminate a litigational case between parties, and thereby to secure public order. Therefore the judge was appointed by the political authorities.⁴⁵⁹ Literally the term qāḍī comes from the root q-ḍ-y, which means “to determine/ terminate” and “to decide” as as to “carry out one’s duty”.⁴⁶⁰ The term also means “to look into authoritative references, cut off the controversy and bring it to an end ”.⁴⁶¹ Also, it is defined as settling a contradictory case between two parties (bayn al-khusūm), i.e. litigation. ⁴⁶² The importance to produce a final judgment is thereby underlined.

Though the word qāḍī itself is not mentioned in the Qur’ān, the verb qāḍā is mentioned frequently.⁴⁶³

Next to litigation, the judge also had non-litigious tasks to fulfil. They entailed e.g. the supervision of endowments, orphan’s property, prisons, summed up as trusteeship (amanāt) where the judge took the position of a publically trusted official who protected the rights of the weak and the public.⁴⁶⁴ For the fulfillment of the litigious and non-lititious tasks, Muslim legal scholarship gradually established criteria considered necessary that over time were increasingly systematized.

The Ḥanafī and Shāfi῾ī eponyms of the law schools and early prominent jurists though still provided little or no information on the qualifications of the judges.⁴⁶⁵ Neither in Shāfi῾īs Risāla nor in his voluminous Kitāb al-umm, which does contain a chapter on adjudication, do we find reflections on the qualifications of the judge.⁴⁶⁶

459 On caliphal appointment of the Abbasid judge, see Chapter Four, I. 1.a. aa.

460 Ibn Manẓūr, “qaḍā’”, Lisān al-῾Arab, XV, p. 187.

461 Ibn Manẓūr, “qaḍā´”, Lisān al-‘Arab, XV, p. 187.

462 Ibn Manẓūr, “qaḍā´”, Lisān Arab, XV, p. 187-188, Al-Razi, Al-zīnah fil kalimāt islamīyyah al-arabīyyah, II, (1958), p. 138, al-Zayl´I, Sunan al-ḥaqā ´iq sharḥ kanz al-daqā’iq, IV, (1313 A.H.), p. 175.

463 Next to the verb qaḍa, als ḥakama is frequently mentioned. Tentatively, ḥakam is used for the Prophet’s activities in arbitration, while qāḍā occurs frequently in the sense of a sovereign ordinance of God or his Prophet or in connection with the Day of Judgment.Masud/Peters/Powers, Dispensing Justice (2006), p. 7.

464 On the non-litigious tasks of the judge and how they were set apart from other legal actors within the judicial organizational order, see Chapter Four, I.2.a.aa. (2).

465 See also Tillier, Les Cadis (2009), p. 213.

466 See, in contrario, Shāfi῾ī, Kitāb al-Umm, VI, p. 197-198.

Abū Yūsuf, Ḥanafī grand jurist and first Chief Justice (qāḍī al-quḍāt) in Islamic legal history mentions judges in his Kitāb al-Kharāj (Book of Taxes).⁴⁶⁷ Instead of formulating criteria of qualifications for the judge, he recommends that the ruler as delegating judicial power makes inquiries about the morals and the conduct of those he wants to appoint for the judiciary. ⁴⁶⁸ Public standing of the judges thus seems to have played a significant role. Law and morality were intertwined for the question of suitability for the judiciary.

The Ḥanafī work of jurist Khaṣṣāf does not contain a section dedicated specifically to the qualifications for judges. Instead, some criteria appear in a chapter where the author examines cases where the judgment of a qāḍī is not valid:

If a qāḍī dispenses justice between the litigants during time, then when they learn that he is a slave, or non-Muslim (dhimmi), or that he committed the crime (ḥadd) of defamatory accusation of fornication (qadhf), or that he is impious (fāsiq), or blind, or that he allows himself to be corrupted in the exercise of his functions, and this since he was appointed, then his judgment is abrogated (mardūd) and does not need to be implemented (sec.

406).⁴⁶⁹

These negative criteria which make him lose all his competences and authority of office as qāḍī are complemented a little further by a positive definition of virtues which he must possess:

But if the qāḍī is appointed while he is honest (῾afīf) and trustworthy (ma’mūn), and then when he passes his judgment or implements his sentence becomes impious, or goes blind, or gets in a state which does not allow him anymore to adjudicate, all [his

467 This book was commissioned by the caliph, however without any known or explicitly assumed stipulations made by the caliph on commission. On scholar’s writing on the request or rulers and how this affected their authority, see patronage in Chapter Four, III.1.d.

468 Abū Yūsuf, Kitāb al- Kharāj, p. 107. Abū Yūsuf’s further books Ikhtilāf Abī Ḥanīfa wa Ibn Abī Laylā and Kitāb al-āthār each include chapters on adjudication, however without mentioning criteria for

establishing qualifications. Whether Shaybānī as the distinguished early Ḥanafī jurist has written down any clear guidelines for the qualification of the judge is not clear, his Kitāb adab al-qāḍī has not survived and is not included as part in his Kitāb aṣl. Abū l-Wafā’ Afghānī, Introduction to Shaybānī, Kitāb al-aṣl, I, p. 7.

469 Khaṣṣāf, Adab al-qāḍī, sec. 406, p. 354. Tillier, Les Cadis (2009), p. 214.

judgments issued] since he was in that state are abrogated (mardūd) and nul (bātil) (sec.

406).⁴⁷⁰

In section 13 of Khaṣṣāf’s work on the Etiquette of the Judge, Khaṣṣāf directs the reader’s attention to the legal-educational requirements of the judge: When judicial difficulties of inferring legal rules occur, especially in cases where there is no consensus among the Prophet’s companions, it is necessary that the judge can exercise legal reasoning de lege artis. Both Khaṣṣāf and his commentator Jaṣṣāṣ recommend that the judge should belong to the people who can discern and infer rules (ahl tamyīz wa al-naẓar).⁴⁷¹

These short indications on legal reasoning, confirm earlier and forthcoming elaborations in this study on the significance of legal reasoning for judges and evidence legal reflections on the conditions of eligibility for the judiciary. However, they still do not take the form of structured chapters and appear rather in passing in the course of a section dedicated to another subject. In fact, the requirement that the judge should belong to the people capable of discerning and inferring rules is contained in the chapter that deals with how to establish the law in cases ungoverned by authoritative texts, a question that will prove key for the rationale of judicial consultation.

The brief information provided by Abū Ḥanīfa and Khaṣṣāf can be summed up in what became increasingly discussed under the four categories for the eligibility of the judiciary: legal status, moral or religious characteristics, physical integrity and intellectual qualities.⁴⁷² Difference of opinion over the intellectual qualifications, and more precisely legal knowledge of judges, is discussed with particular attention. The criteria of eligibility mirror what was considered essential for the authority to gain access to the position or status of a judge. Competency and superiority as ascribed or claimed are based on personal-bound criteria which (today) include gender, race, religion, age, sexual orientation, ability, class as well as special knowledge or experience and are

470 Khaṣṣāf, Adab al-qāḍī, sec. 406, p. 354. Tillier, Les Cadis (2009), p. 214.

471 Khaṣṣāf, Adab al-qāḍī, sec. 13, p. 40-41.

472 In fact, Tillier considers evidenced only the first three criteria, Tillier, Les Cadis (2009), p. 214- 216, while Schneider counts four conditions, adding educational qualification, Schneider, Das Bild des Richters (1990), p. 232-233.

constitutive for personal (or natural or primary) authority. ⁴⁷³ Complementary, authority as linked to a position, office or rank is highlighted further on in Chapter Four.

The first criterion established by Muslim legal scholarship concerns the legal conditions regarding the personal status of the judicial candidate. The qāḍī can neither be slave, nor a non-Muslim (dhimmī). It is therefore, a contrario, that he needs to be free and of Muslim belief, and by extension, of legal capacity, of age and male gender.The judicial office holder must be of full age and free because otherwise the qāḍī will not be legally responsible for his actions. ⁴⁷⁴ Moreover, he must be a Muslim, since a non-believer cannot be placed in authority over Muslim believers. However, Abu Ḥanīfa holds that a non-Muslim may act as a judge in his own community.

Some criteria were not explicitly mentioned or elaborated in Khaṣṣāf but shaped the legal debates elsewhere. There was a debate, for instance, on the condition that the holder of the qāḍī’s office must be male, since women were considered incapable of carrying out the duties of a public position. The position that only men can serve as judges was held by Shāfi῾īs and Ḥanbalīs.⁴⁷⁵ Fadel argues that these debates were in fact debates about acts of power, as Muslim jurists were unanimous in allowing women to interpret the law and issue legal opinions.⁴⁷⁶ School eponym Abū Ḥanīfa is quoted by jurist Māwardī as being of the opinion that women may lawfully act as judges in matters where their evidence is valid.⁴⁷⁷ Similarly, Khaṣṣāf’s commentator Jaṣṣāṣ (d. 980) put forth that who is not admitted as a witness may not become a judge (sec. 406).⁴⁷⁸ Thus, Hanafīs generally held that women’s adjudication was permissible.⁴⁷⁹ However, they excluded adjudication over crimes possibly resulting in ḥadd punishments (Qur’ānically prescribed, largely corporal punishments). The Ḥanafī distinguished jurist Ṭabarī (d. 923

473 In contrast to personal authority, when authority is linked to a position (such as office or rank), institution or organization, authority is qualified as positional, or abstract, formal or secondary authority, Gukenbiel, “Autorität”, p. 29. This type of authority (Amtsautorität) will be discussed in Chapter Four, I.4.On personal authority, Gukenbiehl, “Autorität“ (2001), p. 29, here with added criteria.

474 Levy, The Social Structure of Islam (1957), p. 339.

475 Al-Māwardī, al-Aḥkām al-sulṭāniyya, p. 107-8; id., Adab al-qāḍī, I, p. 625-8; Ibn Qudāma, al-Mughnī, XIV, p. 12-13; Tillier, “Women before the Qāḍī” (2009), p. 287.

476 Fadel, “Two Women, one Man“, (1997), p. 196.

477 Al-Māwardī, al-Aḥkām al-sulṭāniyya, p. 107-8; idem., Adab al-qāḍī, I, p. 625-8.

478 Jaṣṣāṣ, in Khaṣṣāf, Adab al-qāḍī, sec. 406, p. 354.

479 The Ḥanafī understanding of equating women judges with women witnesses was that both were similar in that both exercise power over litigants. Because a woman when testifying against a litigant excercises power over that litigant, there is no reason to believe she cannot exercise power over that same litigant in the capacity of a judge, Fadel „Two Women, one Man“ (1997), p. 2003, note 37, Tyan, Histoire de l’organisation (1960), p. 162.

C.E.), however, held, that women can adjudicate disputes in all areas of the law.⁴⁸⁰ He argues that if women were allowed to issue tolegal opinions in all areas of the law, then a fortiori their rulings of law must be valid too.

Second come moral and religious criteria of suitability. They are expressed by Khaṣṣāf in the requirements of the judicial candidate being honest and reliable, qualities that stand in opposition to corruption (rashwa) and defamatory accusation of fornication (qadhf).⁴⁸¹ Piety and integrity are considered very important moral and religious criteria, as well as fear of God, virtue, patience and sense of responsibility. The close link between the function a person fulfils and the virtues he must possess is a recurring theme, and known also in the Western history of philosophy and jurisprudence.⁴⁸² For instance, philosopher Alasdair Macintyre prominently argues in favour of virtue ethics. According to Macintyre, and similar to Khaṣṣāf and Shāfi῾ī, a good judgment emanates from a good character that builds on habits and knowledge.⁴⁸³ For Muslim jurists, piety became the hallmark of the learned religious elite in general and of the jurists ( fuqahā’). Hallaq states that the importance of piety in Muslim (legal) culture cannot be overemphasized, either at this early time or in the centuries to follow, calling for justice and equality before God.⁴⁸⁴

.Thus, a qāḍī cannot be an impious person (fāsiq), defined as “the one who moves away from a right behaviour” (istiqāma), “who leaves the order of God and moves away from the right way” (ṭarīq al-ḥaqq), involving a multitude of what was considered improper behaviour.⁴⁸⁵

480 Mawārdi, Al-Ḥāwī al-kabīr, vol. XVI, p. 156. Despite the theoretical recognition of women serving as judges in Ḥanafī law, Tyan found only one female judge in Islamic pre-modern history: Thaml/Thumal (mother of caliph Muqtadir) was appointed at the maẓālim court in 306/918-19, under caliph al-Muqtadir, Tyan, Histoire de l’organisation judiciaire, (1960) p. 162; see also Ibn al-Jawzī, al-Muntaẓam VIII, p.12; El-Cheikh, “The Qahramāna in the Abbasid Court” (2003), p. 52-53; Tillier, “Women before the Qāḍī” (2009), p. 287.

481 Tillier, Les Cadis (2009), p. 214.

482 See MacIntyre, After Virtue (1984), particularly, pp. 181-182, on Aristotle’s description of exercise of virtue leading to the achievement of the human telos. On the relationship of virtue and justice, see Resnik/Curtis, Representing Justice (2011), pp. 8-12. Regarding the importance of virtues for authority in Islamic (legal) history, and with explicit reference to MacIntyre, see Asad, “The Idea of an Anthropology of Islam” (1984), p. 14-15; Ziadeh, “Integrity” (1990), p. 92; Zaman, Ulama in Contemporary Islam (2002), p. 195.

483 MacIntyre, After Virtue (1984), particularly, pp. 181.

484 Hallaq, Origins (2005), p. 180.

485 Ibn Manẓūr, Lisān al-῾Arab, V, p. 129 ; Tillier, Les Cadi (2009), p. 215. In his comment of the work of Khaṣṣāf, the jurist al-Jaṣṣāṣ (d.370/980-81) maintains that it is possible to qualify in concrete terms “fāsiq”

as a members of a faction (asḥāb al-῾aṣabiyya), the brigands (quṭṭā῾ al-ṭuruq), the thieves, the fornicators

A criterion that seems indispensable is that the qāḍī should be of honourable character.⁴⁸⁶ Integrity (῾adāla) is emphasized as a necessary characteristic for a person to assume public office, and it applies to the caliph, as well as to the judge and to the court witness.⁴⁸⁷ This might find its echo in the idea that there is a tendency among Muslims to locate authority in righteous individuals as opposed to self-evidently true texts.⁴⁸⁸

Possibly, the focus on moral and religious integrity was given so much weight with the debate on the burden of adjudication in mind. After all, the cautions of the judge mark the first lines of every treatise on adjudication. The demand for integrity is likely to reflect the fear and threat to not be able to do justice to the responsibilities of adjudication. It is a reminder that such a task risks the dangers of all sorts of corruption (moral and financial), bribery and fraud. Explicitly, the fate in the Hereafter of a judge misspeaking justice and being lured and attracked by the ills of corruption were themes brought in by the (theological) opponents of the learned to the career of judge.

The call for integrity as an ethical standard is surely also an appeal for professionalism, a way to assure a correct functioning of and within the judicial system, and a precondition for the suitability of judicial candidates regarding the responsibilities of the judicial office.⁴⁸⁹

The third criterion is that of physical integrity: The qāḍī must be a person of sound eyesight and hearing, a precondition for good understanding and perception in adjudication. Khaṣṣāf mentions this in the negative, by considering void the judgment of a blind judge.⁴⁹⁰ Succeeding jurists affirmed physical health regarding vision (baṣar),

(aṣḥāb al-fujūr bi al-nisā’), but Khaṣṣāf seems to equally include in this category homosexuals (qawm

Lūṭ), the singers, the pigeon lovers, the players of chess, those who drink wine or are surrounded by wine (nabīdh), and those who you would refuse their testimony. Tyan, Histoire, de l’organisation judiciaire, (1960),p. 166; Khadduri, The Islamic Conception of Justice (1984), p. 149 sees in fisq the contrary to

“justice“. See also Schneider, Das Bild des Richters (1990), p. 232. Tillier, Les Cadis (2009), p. 215.

Ziadeh, “Integrity” (1990), p. 75.

486 Levy, The Social Structure of Islam (1957), p. 339.

487 Ziadeh, “Integrity” (1990), p. 75.

488 Graham, “Traditionalism in Islam” (1993), p. 495-522; Jackson, Islamic Law and the State (1996), p.

xxxi-xxii.

489 Integrity is mentioned as part of ethical professional standards of the judiciary as laid down, for example, in the UN Bangalore Principles of Judicial Conduct, issued 2002. On ethical professional standards in the international, European and German context, Eckertz-Höfer, “Vom guten Richter” (2009), p. 739-740.

490 With this argumentation caliph al-Rashīd removed from office judge Wakī῾ b. al- Jarrāḥ, Wakīʽ, Akhbār al- Quḍāt, III, p. 184.

hearing (sam῾) and speech (nutq) as condition for being able to assess the evidence being brought to the judge.⁴⁹¹

The fourth qualification, and by far the most discussed in today’s literature, is that of legal knowledge. The fact that it is not explicitly as one of the required qualifications (shurūṭ) and yet is mentioned in different variants in the texts on adjudication, make it a controversial point. Arguably, knowledge is amongst the most significant criteria for the establishment of authority, as it can establish superiority towards the non-knowledgeable.

M. Tillier states that moral and intellectual qualifications were mentioned, but that legal knowledge was not constitutive for the office of qāḍī. ⁴⁹² He refers to the elaborations of jurist and judge al-῾Anbarī on the sources of law for adjudication: First of all comes the Qur’ān; then it is the Sunna of the Prophet, consensus of the leading jurists (fuqahā’), and finally ijtihād in consultation with the leading scholars (ahl al-῾ilm).⁴⁹³ Al-῾Anbarī then goes on to clarify that because judicial decisions of his time are less based on Qur’ān and Sunna, and much rather on independent legal reasoning (ijtihād), it is important that the qāḍī be a pious man, smart and of knowledge (῾ilm) – in this order of importance.⁴⁹⁴ I. Bligh-Abramski refers to this same passage of al-῾Anbarī but argues that when al-῾Anbarī wrote to caliph al-Manṣūr that ijtihād was the basis of many judicial decisions, he by implication excluded anyone who is not a scholar (῾ālim).⁴⁹⁵ Legal reasoning (ijtihād) could not be exercised without legal knowledge.⁴⁹⁶ Legal knowledge, accordingly, was definitely required for the position of the judiciary.

For M. Tillier, however, the scholarly knowlege of Qur' ān and Sunna, eventually does not form part of the necessary and fundamental qualities. Instead, he says, al-῾Anbarī stresses the consultation of other scholars. For Tillier, “religious knowledge” is thus considered important, however not raised to the supreme rank of qualities of the qāḍī, since it is first of all his moral virtues – especially its strength of character – and his understanding of social manners and of human behaviours which allows the judge to speak justice.⁴⁹⁷

491 See for instance Māwardī, Adab al-qāḍī, pp. 107-109; Rebstock, “A Qāḍī’s Error” (1999), p. 8.

492 Tillier, Les Cadis (2009), p. 191.

493 Wakīʽ, Akhbār al-quḍāt, II, p. 101. On al-῾Anbarī’s treatise, see this Chapter Two, II.3.

494 Wakī῾, Akhbār al-quḍāt, II, p. 101. Bligh-Abramski, “The Judiciary as a Government Tool” (1992), p.

205-206.

495 Bligh-Abramski, “The Judiciary as a Government Tool” (1992), p. 209.

496 On the legal qualifications needed for legal reasoning (ijtihād), see this Chapter Two, V.1.b.

497 Tillier, Les Cadis (2009), p. 191.

M. Tillier concedes that since al-῾Anbarī was an emminent legal scholar and qāḍī himself, one cannot assume that he underestimated and undervalued the importance of legal knowledge as such. But much rather that knowledge is something that can always be brought in by seeking consultation.⁴⁹⁸

The reference to al-῾Anbarī indeed stresses the necessity of advice of scholars for good adjudication. The stipulation to consult, coming out of the mouth of a legal scholar and a judge, shows that both for scholarly and adjudicative, professional reasons, judicial

The reference to al-῾Anbarī indeed stresses the necessity of advice of scholars for good adjudication. The stipulation to consult, coming out of the mouth of a legal scholar and a judge, shows that both for scholarly and adjudicative, professional reasons, judicial

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