The Genre

The adab al-qāḍī genre depicts an overall sophisticated etiquette (adab) that is required of the judge as a distinguished figure of public life who was advised to be aware of his responsibilities in adjudication, towards the community, and before God.

Recommendations of social (e.g. which societal invitations to accept or decline), psychological (e.g. not to judge while in a state of anger, thirst, hunger, etc.) and procedural types (e.g. how to lead court session, hear litigants, and examine the facts of the case, etc.) were given to the judge to conduct himself appropriate to his public position.⁴²¹ The genre thus addresses both extralegal and legal factors that are key in a inclusive analysis of adjudication.

The genre typically contains the requirements and qualifications for judgeship and the rules and ethical norms governing its practice in matters of court procedure, litigation, judgment, and successor review.⁴²² It addresses judicial questions such as which inaugural procedure to follow when a judge assumes office, how a court session (majlis) should be conducted, the composition of the court, its personnel and the place in which court sessions should be held, procedures for hearing complaints and for conducting hearings involving witness testimonies and evidence, the methods to arrive at a legally sound judgment, as well as the conditions for judicial consultation (mushāwara). While the adab al-qāḍī works mainly focus on the role of the judge, they also contain some information on the role of the jurisconsult, mainly to distinguish it from that of the judge.

It is a genre that is rich in normative information and casuistry, often simultaneously discussing substantive and procedural questions of law. The casuistry in Khaṣṣāf’s adab al-qāḍī treatise, for instance, to which we soon will come in detail, focuses on the laws of family, inheritance and property- most likely as those fields that were part of the judge’s daily judicial practice. Excluded are the fields of criminal law (ḥadd, ta῾zīr), tax law (e.g. jizya tax), and international public law (siyār). As litigation was bound to the

421 On the types of recommendations given to judges, see Schneider, Das Bild des Richters (1990), pp.

140-173, particularly pp. 144-147, 173.

422 Until today, the only systematic study of this genre is that of Schneider, Das Bild des Richters (1990), focusing on the qualifications of a qāḍī, his appointment and removal, court procedure, and the qāḍī’s relationship to the ruler. Fyzee, “Adab al-Qāḍī” (1964), and Ziyada, Khaṣṣaf Adab al-qāḍī, Introduction, (1978), have studied single adab al-qāḍī texts of the Ismaʽīlī respectively Ḥanafī school. Tyan in his Histoire de l’organisation judiciare (1960) used the adab al-qāḍī literature to sketch a static and ahistorical judiciary and did not convey the many variations that were due to the authors’ school affiliation, geography and time. Masud/Peters/Powers, Dispensing Justice (2006) edited a collection of articles on the qāḍī in the many periods of Islamic legal history. In their introduction, they offer a brief, but concise survey of the adab al-qāḍī literature, pp.17, capturing the very characteristics of this genre.

strict rules of evidence (shahāda) it was considered not possible for the qāḍīs to undertake criminal investigations, and the political authorities transferred control over most criminal justice responsibilities to the police (shurṭā) and the military governors.

Administrative transgressions were referred to the court of investigation of complaints (maẓālim).⁴²³ Jurisconsults were not confined by any such jurisdictions and could, in principle, be solicited to issue a legal opinion by any of these judicial instances.⁴²⁴

The early Ḥanafī and Shāfiʽī schools of law, considering each other principal intellectual adversaries, were the first to come forth with prominent writers of adab al-qāḍī literature starting in the late 2^nd/8^th century.Ḥanafī jurists and judges were arguably the firsts to write on the conduct of judges. ⁴²⁵ This interest can be explained by the Ḥanafī early rise and their dominant presence in the early Abbasid judiciary.⁴²⁶ The early Ḥanafī dominance in the judiciary also explains their hightened interest in the early authoring of adab al-qāḍī works. Thus, it is no coincidence that a substantial number of (mostly Ḥanafī) adab al-qāḍī authors also were judges.⁴²⁷ Khaṣṣāf, whose seminal adab al-qāḍī work is presented in more detail, was possibly a judge, but for sure was a jurist, possibly a jurisconsult, and prolific author of legal texts who issued legal opinions.⁴²⁸

423 Bligh-Abramski, “The Judicary as a Government Tool” (1992), p. 208-209. See also Chapter Four I.2.a.bb. on further legal actors within the Islamic system.

424 See Chapter Four III.3. where the scope of the muftī’s activities is defined precisely by wide competence and not by jurisdictions.

425 See the bibliographers and scholars Ibn Nadim (d.385/995), Ḥajjī Khalīfah (d.1067/1657). According to Ibn al-Nadīm’s (d. 385/995) bibliographical survey Al-Fihrist, the first Ḥanafī author of adab al-qāḍī was judge Ḥasan b. Ziyād al- Lu’lu’ī (d. 204/819 or 829), whose work is no longer extant (Ibn al-Nadīm, 1970, I, p. 201). Ḥajjī Khalīfa’s (d. 1067/ 1657) bibliographical work considers Abū Yūsuf (d. 182/ 798), the first chief judge of the Abbasid Empire, the first author of the genre Ḥajjī Khalīfa, Kashf, p. 219. His work is not existant either, but Khaṣṣāf quotes from this book ( sec. 275), explicitly mentioning the title. Also, Muḥammad al-Shaybanī (d. 189/805), famous jurist, colleague of Abū Yūsuf later judge first in Raqqa (Iraq) and later in Khuraṣā (Iran) under caliph Harūn al-Rashīd, has also written on adab al-qāḍī, quoted several times by Khaṣṣāf. In the ninth century, judge Ibn Samāʽa Tamīmī (d. 233/847; on him see al-Nadīm 1970, II, p. 508), al- Khaṣṣāf (d. 261/874, see analysis in this chapter) and Al-Qaysī (d. 278/891) were also among the firsts. See also, Schneider, Das Bild des Richters (1990), p. 149.

426 Tsafrir, The History (2003), p. 28. See Chapter Four, I.1.b. and Chapter Four II.1.e. for a detailed discussion of Ḥanafī presence in adjudication and spread of Ḥanafī thought in scholarship.

427 Amongst the earliest authors that also were judges are Ḥasan b. Ziyād al-Lu’lu’ī (d. 204/819), GAS, I, p.433; Abū ῾Ubayd al-Qāsim (d. 223 oder 224/ 837), see GAL G.1., p. 106ff, S.1., p. 166-167; Ibn Khallikān, Wafayāt, IV, p. 60-62 on Qāsim’s adab qāḍī work; Abū Ḥāzim Qāḍī (d. 292/ 905), al-Khaṭīb al-Baghdādī, Tārīkh Baghdād, XI, p. 62-64, Ibn al- Qāṣṣ (d. 335/ 946), GAL G.1, p. 180; S.1, p.

306; GAS, I, p. 496-497. For an extensive list of adab al-qāḍī authors who also were judges, see Schneider, Das Bild des Richters (1990), p. 171; El-Shafi, “Judicial Training” (2003), p. 182.

428Ibn Abī al-Wafā’, Al-Jawahir , I, p. 142; Concise overview of Khaṣṣāf’s biography see See Hennigan, The Birth of an Institution (2004), p. 5.

Shāfi῾ī jurists started into the judiciary only around 200 years after the Ḥanafīs (i.e.

around the 4^th/10^th century), and thus barely any adab al-qāḍī works from the early Abbasid period exist. However, Shāfi῾ī himself (d. 820), eponym of the school, authored a piece on the etiquette of the judge within his renowned legal compendium Kitāb al-umm (The Exemplar) that became the model explanations in this field for his school.

Once judges with Shāfi῾ī school affiliation became increasingly appointed to the judiciary, their interest in authoring adab al-qāḍī treatises visibly rose.⁴²⁹ The link between this judicial genre and judicial practice thus can be evidenced.⁴³⁰

Other schools of law, like the Mālikī or the Hanbalī, did either not author adab al-qāḍī works because they cautioned against the burden of adjudication and/or where not influential enough to have their jurists attain judicial positions.⁴³¹ This (lack of) literature explains why this study largely focuses on Ḥanafī and Shāfi῾ī elaborations.

Shāfi῾ī’s legal compendium Kitāb al-umm shows that adab al-qāḍī has emerged as a part of Islamic legal literature not only in monographic treatises like Khaṣṣāf’s renowned Ḥanafī treatise on adab al-qāḍī but also in the books of substantive law (fiqh) were adab al-qāḍī are dealt with next to the laws of rituals (῾ibadāt) and substantial law (furū῾). It

429 In fact, early Shāfi῾ī jurists barely produced any thoughts on the adab al-qāḍī. Shāfi῾ī’s explanations were were followed only by Al-Iṣtiḥārī (d. 300/913), almost one hundred years after Shāfi῾ī. He is followed by Muḥammad al-Qaffāl al-Shāshī (d. 395/976). Schneider thus argues that a Shāfi῾ī adab al-qāḍi tradition started as late as in the fourth/ tenth century, precisely when the Shāfi῾ī school of law took its definitive contours: Just when the second Shāfi῾ī author al-Iṣṭahrī issues his adab al-qāḍī work at the end of the third/ninth century, the first appointment of the Shāfi῾ī judge, Ibn Surayi (d. 306/918) occurs (Schneider, Das Bild des Richters (1990) p. 150-151 with further references.The Shāfi῾ī’s thus made significant contributions to the development of the adab al-qāḍī genre in parallel to their development of school doctrines. Earlier shorter texts entitled adab al-qāḍī written by al-Shāfi῾ī (d. 204/820), al-Qāsim ibn Sallām (d. 224/ 839), Ibn al-Ḥaddād al-Miṣrī (d. 354/965), al-Māwardī (d. 450/ 1058). See El-Shafi,

“Judicial Training” (2003) p. 182 refering to Ibn Abi Dami Al-Hamawi’s Adab al-Qaḍī (ed. Mustafa Zuhayli), Damascus 1975.

430 Schneider, Das Bild des Richters (1990), p. 151.

431 Mālikī and Ḥanbalī works of adab al-qāḍī were rare but existed as well. The Mālikī school produced works despite the bibliographies of Ibn Nadīm and Ḥajjī Khalīfa not mentioning any Malikī works. The early work of Abū ῾Abd Allāh Aṣbagh ibn al-Farraj (d. 225/ 839) is not extant anymore. He was followed by Ibn Shabtūn al-Lakhmī (d. 321/924), El-Shafi, “Judicial Training” (2003),p. 182. Ḥabīb b. Naṣr b. Sahl (d. 287/900), student of legal scholar Saḥnūn und chief justice of the petitions court (mazālim) at Qayrawān (Morrocco), solicited legal opinions from leading legal scholars Saḥnūn (d. 240/ 854) or Ibn

῾Abdūs (d. 260/ 870). These legal questions (masā’il) were compiled by Ibn Saḥnūn (d. 256/870) in a book with the titel adab al-qāḍā’ resp. al-quḍāh. Ḥabīb b. Naṣr himself has also compiled his questions to Ibn Saḥnūn in the book Kitāb al-aqḍiya. Muranyi, Materialien (1984), p. 65, 80; Schneider, Das Bild des Richters (1990), p. 150-151; Surty “ the Ethical Code” (2003), p. 150.

The Hanbalī adab al-qāḍī works started appearing in legal (fiqh) compendia in the mid 4^th/10^th century, see Ḥirāqī (d. 339/945), Mukthaṣar, pp. 226; Ibn Qudāma (d.620/1223), Al-Mughnī, IX, pp. 34; Ibn Qayyim al-Jawziyya (d. 751/1350) Ṭuruq al-Ḥukmiyya fi’l Siyāsa al-Shar῾īyya. Only few Hanbalis were appointed as judges.

was not rare to see doctrinal law books containing a chapter devoted to adab al-qāḍī, often preceded by chapters on adjudication, court procedure and witness testimony. To study the law thus also meant to study who adjudicates the law. Relevant sections can also be found in the literature of ḥadīth and in the genre of ikhtilāf (disagreements amongst jurists), where the emphasis is on the traditions on judges respectively on the differences between the various schools on matters of substantive and procedural law.⁴³²

Though basic principles were held in common, each law school developed its own principles of judicial reasoning, substantive legal doctrines, and guidelines for judges.

Adab al-qāḍī works were thus heavily intertwined with the respective school doctrine, and the distinctiveness of the schools was also reflected in the normative stand on requesting and incorporating extrajudicial legal opinions.

The authors of adab al-qāḍi treatises were not only all scholars and teachers, many of them were also judges at one point in their lives. Thus, it can be solidly assumed that judicial practice, teaching and scholarly engagement with adjudication and its relation to extrajudicial authority informed their writings. These multiple perspectives have contributed to the richness and distinct value of this genre in the formative period of Islamic law, offering a corpus of legal theory together with minute details of court practice. Some of the existing adab al-qāḍī works have attained the format of manuals, revealing the originating contexts of discussions, and pedagogical questions and answers.⁴³³ Their purpose was thus arguably to serve as teaching material⁴³⁴ and to provide orientation for the profession of the judge. This can be particularly said for the Ḥanafī adab al-qāḍī literature, given the Ḥanafī dominance in the centre of the Abbasid Empire and the urge to keep recruiting for the judiciary from amongst them.⁴³⁵

The adab al-qāḍī material is primarily of normative value, and yet is informed by the realities of the judges. The nature of the material thus is ambiguous: The significance of

432 On ḥadīth works that deal with adjudication see Abū Dāwūd, Sunan, II, p. 113ff; Bukhārī, Saḥīḥ, VIII, p. 104ff; Ibn Māja, Sunan, II, p. 774ff; Muslim, Saḥīḥ, V, p. 128ff; Tirmidhī, Saḥīḥ, I, p. 248ff; Mālik b.

Anas , Muwaṭṭa, II, p. 719ff; Ibn Abī Shayba, Kitāb al-Muṣannaf, VII, p. 133-134, 239, 263, 280f; On ikhtilāf works see for instance Ibn Rushd, Bidāya, II, pp. 459. Schneider, Das Bild des Richters (1990), p.

148.

433 Schneider, Das Bild des Richters (1990), p. 166; Masud/Peters/Powers, Dispensing Justice (2006), p.

16-17.

434 Schneider, Das Bild des Richters (1990), p. 169-173.

435 Tsafrir, The History (2004), p. 70-85.

the adab al- qāḍī literature lays less in being sources of information about actual court procedure.⁴³⁶ Nor is their role limited to ideal codes of conduct for qāḍīs.⁴³⁷ The adab al-qādi literature is more than a mere collection of job-specific instructions, it rather contains regulations of all aspects of the judiciary. Its recommendations have a normative character, not withholding that some have an idealtypical character. Schneider underlines the relation between adab al-qāḍī genre and judicial practice: The adab al-qāḍī literature represents reflected judicial reality⁴³⁸ (and is thus a literature that is not unconnected to practice) while it also is an attempt to normatively shape the role of the judiciary. As Masud, Peters and Powers state, advising to use these sources with caution:

“[A]lthough the adab al-qāḍi texts contain important information about court practice, they are not reports of court practice” ⁴³⁹ (italics in the original). For the purpose of this study, the value of the adab al-qāḍī works lays in the understanding of the Islamic judiciary of its time and school, and how its law-making authority is construed in light of concurring extrajudicial authority.

This source material is a choice necessitated by the earliest existant literature on judges that simultaneously contains information on their relation with jurisconsults. This also explains why this chapter, and largely the overall work, takes a judge-centered perspective on the question under study.

There are three points that I think are worth pointing out on overall significance of the adab al-qāḍī literature:

One, the very fact that the genre of adab al-qāḍī per se emerged deserves to be highlighted. There is no equivalent genre in the European legal tradition.⁴⁴⁰ Among the early treatises on adab al-qāḍī mentioned above, contributions by three of the Sunni schools are evident, and the existence of a substantial number of books over the course of Islamic legal history on the theme of adab al-qāḍī indicates the importance attached to adjudication as an institution and its practice in the early Muslim society.⁴⁴¹

436 Ziyada treats adab texts as a valuable source of information about actual court procedure, especially witness testimony and evidence, Ziyada, Khaṣṣāf, Introduction to Adab al-qāḍī (1978).

437 Fyzee, “The Adab al-Qāḍī” (1964), p. 120 (with respect to the Ismaʽīlī Qāḍī Nuʽmān); Tyan, Histoire de l’organisation judiciare (1960), p. 9. Tyan considers the rules “laid down in these works have, to a great extent, only a theoretical character”, p. 160.

438 Schneider, Das Bild des Richters (1990), p. 252.

439 Masud/ Peters/ Powers, Dispensing Justice (2006), p. 17.

440 I owe this comparative information to Gerhard Dilcher, Professor emeritus of (European) Legal History, Frankfurt/Main.

441 Surty, “The Ethical Code” (2003), p. 151.

Two, adab al-qāḍī manuals emerged without state involvement, despite the fact that the state created the framework for the administration of justice.⁴⁴² Possibly more important than the concrete norms for the correct behavior of the judge, I take it, is the fact that the genre as such signals that professional and ethical standards are tasks of the self-responsibility and self-control of the judiciary, and not the task of the state. ⁴⁴³ The creation of authority was left to the legal personae to sort out.

Three, the overall function of the adab al-qāḍī genre was possibly an acknowledgement that it was not sufficient for qāḍīs to be merely bound by the law (or, the authoritative texts of Qur’ān and Sunna). The adab al-qāḍī elaborations were meant to not overwhelm judges with cases of doubt in adjudication and to not merely refer them to their forum internum.⁴⁴⁴ Much rather, the recommendations entailed were to assist judges with a manual that addresses the questions of adjudication under uncertainty. Moreover, given the plurality of adjudicative law, or the messy state of adjudicative law as caliphal secretary Ibn Muqāffa’ would put it, the manuals offered a scholarly means to harmonize the law throughout the entire empire in the absence of a codified law.⁴⁴⁵

Significantly, there is a parallel literature on the Etiquette for the Jurisconsult (adab al-muftī) entailing guidelines for the jurisconsult as the interpretor of God’s law. In this legal literature the muftī was advised to be aware of his responsibilities in issuing fatwās, towards the Muslim community, and before God. The adab al-muftī works outlined the qualifications for iftā’ (fatwā-giving) and the rules and ethical norms governing its practice. They provided muftīs with precautionary measures to prevent abuse of iftā’ by unqualified individuals and dishonest petitioners.

442 On the judicial framework provided by the caliphate, see Chapter Four I.1.

443 This was strikingly different, for example, in the Roman Empire where Emperor Hadrian decided to grant the advice of a jurisconsult to a judge the effect of a law, and was thus binding. In this case the political authority interfered to sort out questions of authority between judge and jurisconsult. See Kaser, Das römische Privatrecht (2008), p. 210; ibid, Römische Rechtsgeschichte (1978), p. 179;

Sohm/Mitteis/Wenger, Institutionen (1949) p. 95; Wieacker, Recht und Gesellschaft in der Spätantike (1964), pp. 48-49; Wiacker, “Respondere ex auctoritate principis“ (1985), pp. 71-94; Honoré,“The Severan Lawyers“ (1962), pp. 228-229, 231; Fögen, Römische Rechtsgeschichten (2002), pp. 199-206; Tuori, “The ius respondendi and the Freedom of Roman Jurisprudence” (2004).

444 Similarly Eckertz-Höfer, “Vom guten Richter” (2009), p. 739 arguing for the standardizing of professional ethical judiciary principles within the European Union.

445 See Eckertz-Höfer, “Vom guten Richter“ (2009), p. 739. See also Chapter Four, III. on Ibn Muqaffā’’s evaluation of the adjudication of that time and his plea for codifying the law in the Abbasid Empire.

However, it was only as late at the 10^th century, that adab al-muftī works emerged⁴⁴⁶, and thus considerably later than the same genre for judges. Precisely because the majority of the muftīs acted in non-governmental capacity, many questions on the qualifications and practices of muftīs were systematically addressed and formalized considerably later than for the qāḍī’s. Instead, the authority of the muftī was wholly a matter of scholarly reputation, his competence in legal theory. It was the knowledge acquired through the study and understanding of law that granted the jurists the privilege to issue legal opinions.⁴⁴⁷ As the adab al-muftī emerged only after the period under study, this work necessitates a focus on the earlier emerging adab al-qāḍī which consequentially brings with it a judge-centred perspective on the entire approach of this work.