Main Works

The role of extrajudicial authority in adjudication, from the eighth to the tenth century, was mainly a debate between Ḥanafīs and the Shāfiʽīs. It is a debate between two schools of law of which one, the Ḥanafīs, during the eighth and ninth centuries, was closely linked to the Abbasid caliphate, controled the administration of justice and occupied the most important judgeships in the centre of the Empire, Iraq, the eastern provinces and was spreading its influence further westwards into Egypt. The Shāfiʽī school of law was barely represented in the judiciary in the Abbasid Empire during the ninth century.⁴⁴⁸ The latecomers to the judiciary consequently were also latecomers in producing adab al-qāḍī works.Yet, through its school eponym Muḥammad Idrīs al-Shāfi῾ī and his legacy, the Shāfi῾ī school increasingly came to shape the legal theory of Islamic law (uṣūl al-fiqh), and through its increasing popularity amongst the scholars also reached the judiciary.

Ḥanafī and Shāfi῾ī adab al-qāḍī works on the authority of judge and jurisconsult therefore are particularly instructive. The following two treatises belonging to the genre of adab al-qāḍī can be considered the main existant sources for the normativity of advice in the early period of Islamic law: Khaṣṣāf’s (d. 261/874) Adab al-qāḍī (Etiquette of the Judge) for the Ḥanafī school of law and Shāfi῾ī’s (d. 204/820) Kitāb al-umm (translated as The Motherbook, or The Examplar) for the Shāfi῾ī school.

446 Masud, “Adab al-muftī”, Encyclopedia of Islam (3).

447 Motzki, “Religiöse Ratgebung” (1994), p. 13.

448 It is the tenth century that sees the rise of the Shāfiʽī judges in Iraq, Egypt, Syria and Khurasān.

Khaṣṣāf, a 9th century jurist, represents the Ḥanafī school position on adjudication.

Khaṣṣāf’s greatest contribution to the theme of adab al-qāḍī is the detailed account he gives of the administration of justice in the early formative Islamic period, along with his legal analysis and decisions he provides for various legal cases related to, for example, oaths, witnesses, but also to substantial questions such as debts and wills, largely what we today call “private” law. In the first part of his work (sections 17-129), Khaṣṣāf elaborates on the theory of adjudication, the qualifications of the judge and the responsibility that comes with this position. It is in this first part that Khaṣṣāf discusses the relationship of the judge vis-à-vis the jurisconsult. While his treatise on the Etiquette of the Judge (adab al-qāḍī) addresses the norms of adjudication, it had no imperative character.⁴⁴⁹ Rather, his manual was meant to serve as a guide to the judge in his everyday adjudication, and was also employed as teaching material for future judges. ⁴⁵⁰

Over the centuries, Khaṣṣāf’s adab al-qāḍī became one of the most commented upon and considered representative for Ḥanafi school positions on adjudication. The treatise of Khaṣṣāf has survived only as shortened and summarized pieces of information within larger works of commentary. The version used for this study is entailed in the earliest commentary by Jaṣṣāṣ (d. 370/981), a known Ḥanafī jurist and adherent of the

“rationalist school” (ahl al-ra’y)⁴⁵¹, containing principally clarifications supporting Khaṣṣāf’s positions, enriched with additional legal opinions from leading Ḥanafī scholars as well as references to Qur’ān and Sunna, rather than opposing material. This is also why it is not always feasible to discern where the original statement of Khaṣṣāf ends and the commentary of Jaṣṣāṣ starts. I will follow the editor F. Ziadeh in his attempt to distinguish between original text and commentary and slightly set apart Khāṣṣāf’s statements from Jaṣṣāṣ comments. The commentary itself entails indications that it was based on teaching materials from the teaching circles it was used in. Elaborations of his earliest commentator Jaṣṣāṣ will therefore serve to clarify Khaṣṣāf’s thoughts.

For the Shāfiʽī school of law, no one less than its eponym Muḥammad Ibn Idrīs al-Shafiʽī (150-204 /767-820), wrote the first treatise on adab al-qāḍī in a chapter on adab al-qāḍī

449 Not all law or legal norms impose or proscribe specific behaviour or legally binding rights and obligations. Normativity must not be conflated with imperativity.

450 On Khaṣṣāf’s adab al-qāḍī as used for teaching purposes, Schneider, Das Bild des Richters (1990), p.170, Masud, “Adab al-Qāḍī“, Encyclopedia of Islam (3).

451 Spies, “Djaṣṣāṣ”, Encyclopedia of Islam (2); Schacht, “aṣḥāb al-ra’y”, Encyclopedia of Islam (2).

in his doctrinal law book, Kitāb al-umm (The Exemplar). While later Shāfi῾ī jurists interpreted and expanded on Shāfi῾ī’s writing on the judge and consultation, they all referred to his foundational, though brief, section.⁴⁵²

Kitāb al-umm is a multivolume compilation of rules of mainly positive law (furūʽ).⁴⁵³ The work follows the usual format for legal compendia of its time: It starts with matters of ritual, such as prayer and ritual purity, moving to transactional matters, such as divorce, contract, and land tenure. Shāfi῾ī’s explanations on adjudication and the judge’s etiquette stood for a long time alone in his school as Shāfi῾ī thought was not represented in the judiciary. Thus, when Shāfi῾ī wrote his treatise he was possibly less affected by a close relation with judges but rather by his thoughts on legal theory that were to make him prominent.

Unlike Khaṣṣāf’s work which deals in its entirety with recommendations for judges, Shāfi῾ī’s The Etiquette for the Judge and what is Preferable for the Judge (Adab al-qāḍī wa mā yustaḥabbu lil qāḍī) is a relatively short passage and comprises not more than seven concrete aspects⁴⁵⁴: 1. Adjudication at an accessible location, 2. no judicial secretary, 3. adjudication in the midst of the city, 4. no adjudication in the mosque but at a generally well accessible location, no enforcement of punishment in the mosque, 5. no adjudication while in the state of anger, 6. no business, 7. no disturbances of the litigation process, 8. participations at festive meals⁴⁵⁵, 9. visits of the sick, memorial service of the dead, reception for the returning traveller⁴⁵⁶, 10. [Judicial] Consultation.⁴⁵⁷

The respective texts are taken as exemplary of a dominant strand within Ḥanafī and Shāfi῾ī legal thought, notwithstanding that school opinion showed a variety of intra-school diversity and disagreement. However, it is fair to say that few other jurists’ works on adjudication have enjoyed as many commentaries as Khaṣṣāf’s adab al-qāḍī for the Ḥanafī school or Shāfi῾ī’s Kitāb al-umm for the Shāfi῾ī school.

452 See for instance prominent later Shāfi῾ī scholar Māwardī (d. 1058), Kitāb al-aḥkām al-sulṭānīyah;

Nawawi (d. 1277), Ādāb al-fatwā wa-al-muftī wa-al-mustaftī.

453 Kitāb al-umm is conveyed through Rabī῾ b. Sulaymān al-Murādī (d. 270/ 884), one of Shāfi῾ī’s pupils during his time in Egypt. He is generally considered as the sole compiler and transmitter of Kitāb al-umm, see Halm, Ausbreitung der shafiitischen Rechtsschule (1974), p. 236; Schneider, Bild des Richters (1990), p. 11. Lowry, “Shāfi῾ī“ (2010), p. 236.

454 Shafi῾ī, Kitāb al-umm, VI, p. 214-220.

455 Shāfi῾ī, Kitāb al-umm, VI, p.220.

456 Shāfi῾ī, Kitāb al-umm, VI, p. 220.

457 Shāfi῾ī, Kitāb al-umm, VI, p. 219.