Jurisconsults Consulting in Judicial Cases

Consultation as found in the books addressed to judges on judicial etiquette (adab al-qāḍī) refers to a judge’s consultation with experts of law on particular issues or cases.

When mushāwara includes jurists, then it is almost automatically linked to them giving

361 Abū ʽUbayd al-Qāsim b. Sallām, Kitāb al-amwāl, ed. Muḥammad Ḥamīd al-Fiqī, Cairo, 1353, pp. 171-172 paras 467-474), as cited by Zaman, Religion and Politics (1997), p. 87, note 61.

362 The consulted jurists were al-Layth b. Saʽd, Mālik b. Anas, Sufyān b. ʽUyayna, Mūsa b. Aʽyan, Ismaʽīl b. ʽAyyāsh, Yaḥyā b. Ḥamza, Abū Isḥāq al-Fazārī and Makhlad b. Ḥusayn.

363 Zaman, Religion and Politics (1997), p. 87, note 61.

364 Nuwayrī, Nihāya, VI, p. 78 as cited and translated into German by Badry, Die zeitgenössische Diskussion um den islamischen Beratungsgedanken (1998), p. 87.

365 Nuwayrī, Nihāya, VI, p. 78.

366 Nuwayrī, Nihāya, VI, p. 79 where he writes about istibdād, rejection of consultation and mentions further examples of Umayyad military general al-Muhallab b. Abī Ṣufra and 6^th century minister Buzurghmir refusing consultation. Badry, Die zeitgenössische Diskussion (1998), p. 87 with further references.

legal opinions (fatwās). Any question posed to an individual learned jurist or a body of jurists and answered by him/her/them, is considered a fatwā.

This is different from a qāḍī who employs an expert of another field. The qāḍī may employ experts, such as those on inheritance questions (perhaps similar to the iudex non calculate idea as this expertise required good calculation skills) or those with special knowledge of buildings or women’s bodies.³⁶⁷ This was considered knowledge outside the sphere of the law, knowledge that the judge was not expected to have. In contrast, the question under study here, addresses the legal issues the judge directs to the jurisconsult that fall right in the central field of judicial competency, i.e. knowledge that the judge qua judge himself ought to have.

A central aspect of early debates circled on the question of addresses of consultation:

Who shall solicit consultation before making a decision? Obviously, the Prophet was the first addressee of revelation. Early Qur’anic exegets focused on the question in how far verse 3: 159, explicitly addressing the Prophet can be extended to others, like judges, or is exclusively meant for the Prophet.³⁶⁸ Famous scholar and later qāḍī of Basra Ḥasan al-Baṣrī (d. 110/ 728) is reported to have argued that the verse, though addressed to the Prophet, is adoptable in concreto, and without much explanation, to the judges:

According to Baṣrī, the Prophet was in no need to solicit consultation but that he nevertheless did so, so that consultation becomes imitated by judges, so that it becomes a Sunna.³⁶⁹ The example of the Prophet instructed to solicit consultation shows that even when you are in a most priviledged position of being guided by God³⁷⁰, consultation is preferable. Seeking consultation is thus not per se a question of (inferior) knowledge, to touch upon a question that will be dealt with in greater detail later on.

But the very fact that the Prophet was advised to request counsel continued to cause some debate. Jaṣṣāṣ, the same who commented on Khāṣṣāf’s adab al-qāḍī work, in his Qur’ānic exegisis (tafsīr) asks what purpose would consultation have (addressed to the

367 These tasks were ususally delegated by the qāḍī to specific persons. Schneider, Das Bild des Richters (1990), p. 153. Surty, “The Ethical Code” (2003), p. 159.

368 Ṭabarī, Jāmi῾ al-bayān, IV, p. 152-153. Schneider, Das Bild des Richters (1990), p. 108.

369 Wakī῾, Akhbār quḍāt, II, p. 52-53 on the authority of Suyān b. ῾Uyayna, Ibn Shubruma, Ḥasan al-Baṣrī; Ṭabarī, Jāmi῾ al-bayān, IV, p. 152-153; Jaṣṣāṣ, Kitāb aḥkām al-Qur’ān, II, p. 48; Van Ess, Theologie und Gesellschaft (1992), II, p. 45, Schneider, Das Bild des Richters (1990), p. 108, Badry, Die zeitgenössische Diskussion (1998), p. 88.

370 Ṭabarī, Jamī῾al-bayān, IV, p. 152.

Prophet in the Qur’ānic verses) if it would not be needed, as Baṣrī said. For Jaṣṣāṣ, consultation needs to be seriously taken into consideration.³⁷¹ If meant only to charm the consultant without giving any effect to their legal opinion on the decision-making result, it could have a detrimental effect on the relationship between advice seeker and giver, and surely not result in respect. This is why Jaṣṣāṣ did not concur with Ḥasan al-Basrī who said the Prophetic examples was there to merely be a role model for the judges, not because the Prophet himself needed consultation. Instead, consultation much rather stood for benefitting from the aid of the opinion of others (istiẓhār). As a representative of the rationalists (aṣḥāb al-ra’y) who sees the solution not only in text but also in reasoning, Jaṣṣāṣ prefers consultation as means of joint decision-making.³⁷²

Both Baṣrī and Jaṣṣāṣ established that the Qur’ānic verses applied not only to the Prophet but also to the judge, and Jaṣṣāṣ stressed the need to consult not only as a way to involve others, but also to aid in the decision-finding process.

Political history similarly created preceding normativity. Instructions for the professional group of judges to seek consultation reach back to before the Abbasids, and know a line of caliphal (Umayyad) precedence. In the second/eighth century, Umayyad caliph ῾Umar b. ῾Abd al-῾Azīz is documented as having announced five qualities of a qāḍī which were transmitted to us in two different versions with few divergences. According to the account of al-Jāḥiẓ, the Umayyad caliph would have it that a qāḍī needs to know precedents (mā qabla-hu), be unselfish, to show patience (ḥilm) with the lititgants, to refer to the authority of the Imams (i.e. caliphs) and, most important to our study, to ask for advice of the scholars. ³⁷³

According to the version of Ibn Qutayba, the qāḍī must make inquiries before acting, request the opinion of the scholars, not give in to desire, be just with the litigant and follow the example of the Imams (i.e. caliphs). ³⁷⁴ Though the authenticity of ῾Umar’s

371 Jaṣṣāṣ, Kitāb aḥkām al-Qur’ān, II, p. 49-50. Badry, Die zeitgenössische Diskussion um den islamischen Beratungsgedanken (1998), p. 78.

372 Jaṣṣāṣ, Kitāb aḥkām al-Qur’ān, II, p. 49-50. Badry, Die zeitgenössische Diskussion um den islamischen Beratungsgedanken (1998), p. 78.

373 Jāhiz, al-Bayān wa al tabyin, p. 150, reprinted by Ibn ῾Abd Rabbih, al-῾Iqd al-farīd, I, p. 84, as cited by Tillier, Les Cadis (2009), p. 187

374 Ibn Qutayba, ῾Uyūn al-akhbār, I, p. 101.

letter was later questioned³⁷⁵, it remains nevertheless of relevance that both transmissions consider the judge seeking consultation as a key quality for the adjudicative profession.

There is evidence of the judge being joined by legal scholars as consultants, perhaps when particularly renowned consultants were part of the adjudication process: When judge Sa῾d b. Ibrāhīm (d. 127/ 744-5) took over adjudication in the city of Medina³⁷⁶, he did so in the presence of two renowned legal scholars next to him, namely al-Qāsim b.

Muḥammad (d. 106/ 724) and Sālim b. ῾Abdallāh (d. ca 106/ 724).³⁷⁷ Similarly judge Muḥāribb d. Dithār (d. 116/734) of the city of Kufa³⁷⁸ was consultated by al-Ḥakam (b.῾Utayba, d. 115/ 733) and Ḥammād (b. Abī Sulaymān, d. 120/ 737-8).³⁷⁹

Judicial consultation thus knows normative and empirical precedence, and yet still leaves open many questions in its conception and application. The term consultation (mushāwara) implies a mutual, bilateral and reciprocal consultative activity, so that one could assume a joint, possibly symmetrical form of exchange of ideas leading to a decision.³⁸⁰ Yet, judicial mushāwara does not seem have the back-and-forth movement of thoughts and ideas that we expect to find in a reciprocal activity³⁸¹, at least there is no documention or instruction for the type of dialog they should lead. In how far judge and jurisconsult were meant to jointly deliberate about or whether the judge was rather to unilaterally receive the advice is something we can only speculate about.

As joint deliberation, consultation could be seen as a mutual deliberative process of coming to a consensus, or a means of legitimation in the spheres of politics and law. It could then be also understood as a decentralized, demonopolized participative process that can possibly lead to a consensus. As a unilateral advice, however, it could rather function as a means of control over matters that are of critical importance to the community. But the intriguing question is what if those jointly consulting, however, do not come to a consensus.

375 Some contemporary scholars question the authenticity of ῾Umar b. Abd al- Aziz’ letter, see for instance Cook, Early Muslim Dogma (1981), p. 124-136.

376 Wakī῾, Akhbār al-quḍāt, I, pp. 150-167. He was judge in Medina under caliph Yazīd b.῾Abd al-Malik (d.724). Wakī῾ though does not mention that Sa῾d b. Ibrahīm was consulted.

377 Ibn Qudāma, Mughnī, IX, p. 51. On both these eminent legal scholars see Schacht, Origins (1950), pp.

36-39. Badry, Die zeitgenössische Diskussion (1998), p. 146.

378 On judge Muḥāribb b. Dithār see Wakī῾, Akhbār al-quḍāt, III, p. 25-26.

379 Wakī῾, Akhbār al-quḍāt, III, p 30; Ibn Quḍāma, Mughnī, IX, p. 30.

380 The Arabic prefix mu- stands for a reciprocal activity.

381 Weiss, “Text and Application” (2008), p. 385.