When the Judge Shall Solicit the Jurisconsult

Islamic law recognizes that some Qur’ānic rulings are definitive and therefore not open to multiple meanings. Yet, it is also acknowledged among Muslim jurists that the authoritative texts of Qur’ān and Sunna in a many ways comprise only probable textual implications, so that jurists from early on were conscious about the tenuous relationship between revelation and interpretation.⁵⁶⁵ Where such epistemological challenges attempting to bridge revelation and interpretion occurred, judicial discretion became centre-piece. These challenges comprised ambiguous language, differing rules, and the the occurrence of cases that were ungoverned by authoritative sources of law, etc.When these textual troubles arose or when there was no appropriate legal text, uncertainty in law manifested itself and necessitated questions on authority: Who had the final say to decide, oppose or challenge understandings of law when legal text and legal reasoning did not produce closure (constraint by text)?

Law produces authorities, and authorities produce law. The scholarly debates of the 9^th century show that uncertainty in law produced a delicate hierarchy of authorities of personae. This is remarkable given that the relationship between judge and jurisconsult was not from the outset one of superior and subordinate. Their roles in adjudication were seemingly distinct: The jurisconsult’s role was to provide advice, information or suggestions on legal reasoning. The actual adjudicative decision-making authority, however, resided solely with the judge. Safeguarding the judge’s autonomy in adjudication while making space for an extrajudicial authority’s legal reasoning sets the scene for re-evaluating legal authority.

564 Falk, Consilia (2006), p. 149-151, refering to the consultative practice of the law faculty of the university of Freiburg, Germany in the 16^th and 17^th century.

565 Tomeh, “Persuasion and Authority” (2010), p. 152.

In some legal systems, adjudication knew the bench of the judges where judicial colleagues could discuss the challenging cases, balance the arguments at hand, build a majority or consensus and then come up with a decision.⁵⁶⁶ The bench allowed for collective consultation, as a gurantee for correct judicial findings.⁵⁶⁷ In the formative period of Islamic legal history, however, adjudication knew only the single judge who alone carried the burden of deliberation and adjudicative decision-making. Courts in Islamic adjudication are presided over by a solitary judge who pronounces judgment on his sole authority. There are no judicial benches in early Islamic judicial history, no assembly of judges and juries. Islamic schools of law were conscious that the judge could be challenged and burdened by the indeterminacy of law, the risk of making a

“wrong” decision and the responsibility that would come with his judgment (in this life and in the Hereafter).⁵⁶⁸ When the answer of what the original intent of Islamic law constituted was not readily conceivable through scripture, Islamic legal scholarship struggled with the role of individual effort of legal reasoning (ijtihād) as an analytic method to derive the rules of law. Where the judge needed to make use of individual effort of legal reasoning, Muslim legal doctrine foresaw a role for the jurisconsult. Thus, extrajudicial legal opinion in adjudication was closely bound up to the scope and limitations of individual effort of legal reasoning. The Ḥanafī and Shāfi῾ī schools of law are particularly interesting in that their respective take on individual effort of legal reasoning (ijtihād) leads them to differently formulate the role of the jurisconsult in adjudication. The scope of action of a jurisconsult was primarily confined to the jurisprudential role assigned to legal reasoning outside authoritative texts - a question that the schools of law diverged on substantially.

566 Ogorek re-constructs a critical debate on the bench (Kollegialprinzip) as discussed in 19^th century Germany. On the one hand, legal scholar Almendingen (d.1827) discussed the bench (Kollegialprinzip) as one instrument of “indirect control” to minimize judicial arbitratriness, see Ogorek, Richterkönig oder Subsumtionautomat? (1986) p. 153. On the other, Bähr (d.1895) himself judge, critically refers to the bench comprised of seven judges of which only one is the judicial rapporteur, actually preparing the verdict. This rather constitutes an “individual character of the collective decision”, Ogorek, Richterkönig oder Subsumtionsautomat? (1986), pp. 333-334. On the history of the judicial bench, see Chapter One, I.1.

567 Jung, Richterbilder (2006), p. 90. Critically on the bench as forum of collective judicial deliberation where judicial responsibility for adjudication in abstracto is collective, while the individual judge carries only minimial personal resonsibility, see Eichenberger, Die richterliche Unabhängigkeit (1960), p. 246:

“Hingegen bleibt er [das Verantwortungsbewußtsein] eingeschlossen in einen Gesamtwillen, der zwar höchste Verantwortung in abstracto tägt, die persönliche Verantwortung aber minimial bemisst“⁵⁶⁷

568 Johansen, “Truth and Validity” (1997); Johansen, “Wahrheit und Geltungsanspruch” (1996), p. 1056-1059.

a. Judicial Consultation

The schools of law agreed on strongly recommending the judge to solicit extrajudicial legal opinions, but in which cases, in which stages of adjudication were the judges to solicit advice from jurisconsults? How is the recommendation to solicit counsel related to the indeterminacy in law? Which normative character did this counsel effectively attain?

What was the judge expected to do in cases of divergence between his legal opinion and the jurisconsult’s? Was the counsel of an extrajudicial authority normatively designed to restrict or enhance the autonomy of the judge in the adjudicative decision-making process?

I shall thereby connect three fields that I consider key: indeterminacies in law, the

“paradox of authority”⁵⁶⁹, namely the conflict between autonomy and authority, and the jurisconsult as guide or constraint to the judge, as related to the developing methodologies of law in the formative period.

aa. The Ḥanafī School

In one of the very first sections of his work, Khaṣṣāf writes on the role of consultation in adjudication, when it became of relevance for the judge and to what extent the judge was bound by it. Each of Khaṣṣāf’s brief passages is followed by summarized comments and clarifications of legal scholar Jaṣṣāṣ.⁵⁷⁰

(1.) When to Solicit Consultation

First, Khaṣṣāf reiterates the Islamic legal principle that a judge is recommended to solicit extrajudicial counsel before issuing a judgment.

Sec. 17 If the legal scholars (lit. people of jurisprudence, ahl al-fiqh) are present in the city, the judge should consult them.⁵⁷¹

[Jaṣṣāṣ: When they arrive at concurring opinions, the judge shall adjudicate accordingly because judge and jurisconsults have jointly established consensus. If the problem at

569 Raz, The Authority of Law (2009), p. 3.

570 I am following the careful demarcation lines by editor Farhad Ziadeh in setting apart the original statements from Khaṣṣāf from Jaṣṣāṣ’ statements.

571 Khaṣṣāf, Adab al-qāḍī, sec. 17, p. 42.

hand required individual effort of legal reasoning (ijtihād) and consensus (ijmā῾) was arrived at, the joint result shall not be violated].⁵⁷²

As a rule of adjudication, the judge is advised to request consultation from the legal scholars of his city. A judge should reach out to the scholars, a quality Khaṣṣāf later (sec.

107) discusses as a degree of perfection. No further qualification is made as to the contents, laws or difficulties of the cases that require consultation – the legal local scholars’ mere presence in the city suffices to solicit the jurisconsults’ counsel. Khaṣṣāf speaks of jurisconsults in the plural, but it remains open whether he speaks of a series of individual members or a body of scholars, whether the plurality of legal scholarship or one pre-unified legal opinion is meant. The jurisconsults’ authority seemingly is collective authority. Jaṣṣāṣ elaborates on his understanding of judicial and extrajudicial authority concurring in their legal analysis of the case: When the case necessitates individual effort of legal reasoning beyond the legal text (ijtihād), and both judge and jurisconsults arrive at the same legal opinion, they jointly establish a consensus, which the judge should not go against in his judgments. In fact, legal theory only recognized one principle by which a jurist's probable interpretation could become a rule over time:

the institution of consensus (ijmā῾).⁵⁷³ As long as the community of Islamic scholars generated no consensus on a particular question of law, all positions held by qualified interpreters of the law (mujtahids) could only be deemed to be equally correct in practice.⁵⁷⁴ Cleary, joint deliberations are considered better than the solitary deliberations of a judge.

The next two cases take up the much more thorny issue of disagreement between judge and jurisconsults on legal rulings.

572 Jaṣṣāṣ in Khaṣṣāf, Adab al-qāḍī, sec. 17, p. 42.

573 On the methodological relationship of independent legal reasoning (ijtihād) and consensus (ijmā’) see this Chapter Two, V.2.b.

574 Fadel, Adjudication in the Mālikī Madhhab (1995), p. 221, note 24. There was general agreement, even among those who believed there was a "correct" rule for every case, that in the controversial areas of the law, human beings did not have access to which opinion was actually the correct one. Therefore, in practice everyone agreed that all opinions issued by qualified interpreters of the law were equally likely, ultimately, to be the correct rule for the case at hand. See Zysow, The Economy of Certainty (1984), p.

460-1.

Sec. 18 When they disagree in opinion, he shall judge according to what he thinks corresponds more closely with the truth. ⁵⁷⁵

[Jaṣṣāṣ: If the judge is a mujtahid (someone qualified to exercises individual effort of legal reasoning) he is allowed to adhere to his opinion, even if he stands in disagreement with the individual effort of legal reasoning of the jurisconsults.⁵⁷⁶

Sec. 19 If the jurists (fuqahā’) of the city have consensus of opinion concerning an issue and the judge has a different opinion, the judge should not hasten in making his decision.

He should get the opinion of other legal scholars in writing and request their counsel.

Then he should arrive to his best-possible opinion and act accordingly. ⁵⁷⁷

[Jaṣṣāṣ: Consensus of one local legal community does not prevent the judge from exercising individual efforts of legal reasoning. Consensus in his own city does not prevent the judge from seeking consultation from jurisconsults in other cities. After he has heard the opinions from the cities, he shall discern (naẓara) and act accordingly. And he is not required to write to all cities, as this prevents the implementation of adjudication. If he were to write to all cities, he would not be able to adjudicate anymore.]⁵⁷⁸

It is key that disagreement on points of law between judge and jurisconsult are decided in favor of the judge. The judge is encouraged to follow his own legal reasoning and decide according to what he considers “corresponds more closely with the truth” (sec. 18). The backing of the judge to hold on to his legal reasoning is qualified by Jaṣṣāṣ in a critical way, namely that the judge himself is qualified to exert legal reasoning, i.e. is a mujtahid (sec. 18). In this case the verdict is left to the judge, and his judicial autonomy is not to be submitted to the authority of the jurisconsults. As a rule of adjudication, the qualified judge should adjudicate according to what he considers to be the best judicial option (sec. 19). When disagreement between judge and the local scholars acting as jurisconsults occurs, you have two equally sound and valid legal opinions that differ in result: the judge’s and the jurisconsults’. The consensus of the jurisconsults of the city

575 Khaṣṣāf, Adab al-qāḍī, sec. 18, p. 42.

576 Jaṣṣāṣ in Khaṣṣāf, Adab al-qāḍī, sec.18, p. 42.

577 Khaṣṣāf, Adab al-qāḍī, sec. 19, p. 42.

578 Jaṣṣāṣ in Khaṣṣāf, Adab al-qāḍī, sec. 19, p. 42.

requires the judge to reconsider his opinion, but do not compel him to change his opinion. The judge is not pushed into adopting another opinion, if no persuasive arguments are presented by the jurisconsults. The consensus of the local scholarly community does not trump over the judge’s deliberations: the judge maintains his autonomy and has the final say over adjudicative rulemaking. Instead, the judge is advised to continue to meticulously deliberate, and not rush for a decision and request opinions also from outside the local legal environment they all are accustomed to (sec.19). Legal consultation in oral or written form was on par.⁵⁷⁹

It emerges that consultation is closely linked to consensus, a key method of Islamic legal theory⁵⁸⁰, a point that will refered to again in underlining the link between consultation and legal theory⁵⁸¹: In matters that are not bound by consensus, legal reasoning (ijtihād) is needed to fill the gap of a missing text. This interpretive activity, for its part, shall be accompanied by the consultation with other jurists. If they concur in opinion, the judge shall adopt this joint consensus between judge and jurisconsults. If they dissent in opinion, however, the judge shall deliberate, balance the arguments and decide according to what he considers to be the right decision. This possibility is only open, however, if the judge himself belongs to the people who can exercise ijtihād. Then he shall follow his own opinion which is valid because it was arrived at according to sound methodology. Hence, consensus between judge and jurisconsults, once established, shall not be violated by the judge. But the consensus of the jurisconsults, does not prevent the judge from seeking further for the more appropriate result, i.e. for engaging in further consultation or make his decision.

In the previous three statements (sec. 17, 18, 19), the judge was advised to consider consultation but adhere to his opinion, if reached on the basis of sound ijtihād and if he considers his opinion closer to the truth. These two requirements indicate two large fields of indeterminacy in law: What is the basis for sound legal reasoning (ijtihād) in the

579 On the written requests for judicial consultation see, for instance, the story of qāḍī Makhẓūmī of the city of Basra, Wakī῾, Akhbār al-quḍāt, II, p. 142, see Chapter Three, I.3.a. On written requests during the times of the Umayyads, see Crone/Hinds, God’s Caliphs (1986), p. 46-47. On governeurs seeking written advice of judges, see Schneider, Das Bild des Richters (1990) p. 111 with further references. Badry, Die

Diskussion um den islamischen Beratungsgedanken (1998), p. 173 with further examples of written consultation during Islamic legal history.

580 See Schneider, Das Bild des Richters (1990), p. 222.

581 See in this on consultation and consensus, Chapter Two, V.2.b.aa. (2.)

absence of authoritative sources of law, and how can you assess if your interpretation and application of law “corresponds more closely with the truth”? This question on sound interpretation in the face of indeterminacy in law shall be key and returned to soon.

The following statement of Khaṣṣāf is significant for assessing the authority and autonomy of the judge vis-à-vis the jurisconsults precisely when the judge has no own opinion on the case at hand to defend against the jurisconsults.

Sec. 20 When there is a problem and he consults with one legal scholar, he can follow the scholar’s opinion, in case the judge has no opinion on this matter.⁵⁸²

[Jaṣṣāṣ: If a judge has an opinion, he cannot follow someone else’s opinion. Take the example of the direction of prayer (qibla): When you see someone praying in the wrong direction, you cannot follow him. If you have an opinion, and belong to the people of ijtihad, you cannot follow someone else’s recognizably wrong opinion. But if he has no opinion on this matter, he can adopt the opinion of the legal scholar. If he does not know where the qibla is, he looks in which direction the people are praying and follows them.]⁵⁸³

The rule of adjudication was that the judge is not advised to change his opinion when he has a valid one, i.e. when he knows how to exercise legal reasoning- and even less so when the extrajudicial opinion is recognizably wrong, so Jaṣṣāṣ. No following, conformism, or acceptance of a position when erroneous indication is given, is authorized. Again, the qualified judge’s autonomy to deliberate and decide is not touched upon.

Here, however, Khaṣṣāf is clear that when the judge has no opinion and, importantly, has no indication for the erroneousness of the solicited opinion, he is encouraged to adopt another’s legal opinion. Jaṣṣāṣ clarifies that if the judge does not belong to the people of ijtihād, he not only needs to seek consultation but also needs to adopt the legal opinion of extrajudicial authorities.

582 Khaṣṣāf, Adab al-qāḍī, sec. 20, p. 42.

583 Jaṣṣāṣ in Khaṣṣāf, Adab al-qāḍī, sec. 20, p. 42-43.

The only time a judge is advised to adopt a jurisconsult’s opinion, is when he himself has none. When the judge does not have an opinion of his own in a case that causes him difficulties to deliberate upon (sec. 20), Jaṣṣāṣ here refers to leading Ḥanafī legal scholar and judge Abū Yūsuf. Abū Yūsuf says that where the judge has no opinion of his own, the opinion of the other person becomes like his own opinion. His decision in the absence of his own opinion and basing his opinion on the opinion of another person is like giving decision with his own opinion. Thus, when the judge had no opinion of his own, he was advised to adopt the jurisconsult’s opinion and turn it into his own. The judge is not asked to submit to the authority of the jurisconsult, but asked to turn the jurisconsult’s opinion into an own, autonomous decision – a construction to safeguard the previously established principle of adjudicative autonomy.

But what when the judge has exerted his own legal reasoning, and yet is conscious that the person he is consulting is the better jurist? Should he follow his opinion because of the other’s wider knowledge or repute?

Sec. 21 When the man he is consulting is better at legal reasoning (afqah) than the judge, yet the judge can discern (between the two possible positions of) the problem, he has to discern (naẓara). He has to adjudicate according to what is closer to what is correct. ⁵⁸⁴

[Jaṣṣāṣ: The judge should discern and choose between the two possibilities, according to what is closer to what is correct, even when he has to leave his own opinion and follow the legal scholar’s opinion. When he discovers that the legal scholar’s opinion is closer to the truth, he cannot go back to his opinion.]⁵⁸⁵

The answer is that the judge is not freed from making his own deliberations. The careful reasoning, the discernment of legal methods and arguments are indispensable for adjudicative obligations. But the key question is how the judge was to deal with two equally sound and valid legal reasonings that lead to different results: his legal opinion and the advice of the jurisconsults. Was he simply to follow his own, the judge’s opinion, or the equally valid opinion of the jurisconsult, even if leading to a different result?

Khaṣṣāf is clear in his advice: The judge shall discern the legal opinions and then decide according to what is closer to what is deemed correct. (sec. 21) But the judge is not

584 Khaṣṣāf, Adab al-qāḍī, sec. 21, p. 43.

585 Jaṣṣāṣ in Khaṣṣāf, Adab al-qāḍī, sec. 21, p. 43.

submitting to the jurisconsult’s authority, as he is not asked to do away with his deliberations and to give up his own opinion. He maintains his autonomy in face of extrajudicial authority and adopts the jurisconsults’ opinion as his own. ⁵⁸⁶ Accepting the jurisconsult’s advice is not crafted in a way to circumvent the judge’s own evaluational judgment, and thus autonomy. Circumventing the evaluational judgment of the judge

submitting to the jurisconsult’s authority, as he is not asked to do away with his deliberations and to give up his own opinion. He maintains his autonomy in face of extrajudicial authority and adopts the jurisconsults’ opinion as his own. ⁵⁸⁶ Accepting the jurisconsult’s advice is not crafted in a way to circumvent the judge’s own evaluational judgment, and thus autonomy. Circumventing the evaluational judgment of the judge

Im Dokument Judge and Jurisconsult - Coercive and Persuasive Authority in Islamic Law (Seite 133-194)