The Princeton Encyclopedia of Islamic Political Thought

judge

A judge is an appointed official (qadi) who presides over Islamic judicial courts. A judge is responsible for determining the application of Islamic law in individual cases brought to the courts of Islamic law.

The office of the qadi was first institutionalized during the Umayyad dynasty. An Arab-Islamic precursor to this office, however, can be found in the role of arbitrator (ḥakam). In pre-Islamic Arabian society, disputes between two parties were often settled by a mutually appointed ḥakam—a role the Prophet Muhammad filled during his time in Medina. Muhammad and his immediate successors in the early and mid-seventh century seem to have appointed ḥakams to arbitrate on the leader’s behalf. By the late seventh century, the Islamic Empire had expanded considerably, and Umayyad rulers introduced an array of bureaucratic innovations designed to facilitate the administration of justice. Among them was the systematic appointment of judges (though the precise dates of the first appointments are difficult to determine). Umayyad caliphs directly appointed a judge to each province to adjudicate court cases in that area. The judge was a delegate of the state and subject to removal at any time. Islamic jurisprudence was still in its infancy, and judges of that period ruled at their discretion, though informed by Qur’anic injunctions and Arab and local customs. As legal scholarship flourished and became more methodologically systematized in the eighth and ninth centuries, ruling authorities regularly began to appoint judges who were trained in jurisprudence.

Abbasid caliphs regularly chose judges from among an emerging class of jurists or legal specialists (fuqahā’). Such scholars often hesitated or even refused to accept such an appointment, as many jurists were uncomfortable with executing judgment on an individual—a role said to belong to God—and particularly with doing so as an instrument of the state, not to mention the moral dangers involved in the temptation to take bribes or to make decisions in favor of the caliph or other powerful and influential members of the government or society. The position of judge was often understood to be a corrupting influence for both political and economic motives. During the Abbasid era, a formal theoretical framework for legal decisions began to take shape, but the judge remained answerable to the political authority and ran the risk of losing his position if he made decisions counter to the ruler’s political program. Although theoretically in an independent position as representative of the law, in practice the judge was appointed and could be dismissed by the caliph or sultan and so was beholden directly to the ruler and indirectly to other influential members of the government. This tension between holding a state-appointed office and following the guidelines of an independent scholarly discipline continued into the modern era. Accusations of injustice leveled against judges are not uncommon in the historical record, but occasionally judges skillfully managed the complexities of the office. The sources refer to a good judge as maḥmūd al-sīrah, or “of praiseworthy behavior,” and some of the most esteemed scholars of Islamic history also served as judges of the state, such as Ibn Rushd, known in the West as Averroes (d. 1198), and al-Asqalani (d. 1449).

In most premodern contexts, the authority of the judge was solely vested in his personage, and judges heard cases in diverse places, including marketplaces and private homes, rather than in a building reserved for the purposes of adjudication. The judge’s authority was not only reserved to the jurisdiction to which he was appointed but also limited with regard to types of cases. A judge had no power to initiate an investigation or to bring an individual to trial, unlike the police (shurṭa), who had their own courts. Instead, the judge arbitrated cases brought before him by two or more willing parties seeking resolution of a question or dispute. Such cases were almost entirely related to civil and religious law. Criminal law cases typically fell to the police or, when deemed a more serious threat to public order, the caliph’s court.

In the Umayyad and Abbasid eras, a judge often held other positions simultaneously, such as that of a professor of law, treasurer, tax official, or even chief of police (ṣāḥib al-shurṭa). As government officials, judges typically worked in tandem with other public offices to preserve public order. Various assistants facilitated the judge’s work, particularly a notary-witness (shāhid ‘adl), who was responsible for legally verifying admitted testimonies or documents, and a scribe (kātib), who kept official court records. Occasionally, a judge would enlist the assistance of other specialists to give their legal opinions (fatwas) on a given matter. Such fatwas, however, were neither decisive nor binding from a legal standpoint since the judge retained full authority to issue the final verdict (ḥukm). In addition to adjudication, the judge oversaw pious endowments and the inheritance of estates and saw to the well-being of orphans and other disadvantaged persons in his jurisdiction.

Legal scholars of the early and classical period debated what qualifications a judge should have and urged caliphs to make appointments based on certain criteria. It was almost universally agreed that a judge should be a free, male Muslim known to be just, intelligent, and knowledgeable of the law. Notably, some Hanafi legal scholars believed women were eligible to serve as judges in some types of cases. Other qualifications occasionally mentioned include being wise, modest, and free of certain physical disabilities that might impede performance, such as deafness or blindness.

In theory, the classical Islamic judiciary contained neither a judicial hierarchy nor appellate courts, though the Abbasid caliph Harun al-Rashid (r. 786–809) established an enduring custom of appointing a chief judge (qāḍī al-quḍāt or, as it came to be known in Muslim Spain and North Africa, qāḍī al-jamā‘a) for the capital city. The chief judge functioned on the level of a vizier and was responsible for appointing judges to the provinces, yet he did not represent a higher court to which appeals could be made. The decision of any judge was final. In practice, however, several avenues existed for rulings to be overturned; the most obvious among them was the maẓālim (injustices) court. Established in the Abbasid era, the maẓālim court was a venue in which complaints of injustice or corruption (be it against a vizier, judge, or otherwise) were presented directly to the caliph. Islamic law was not necessarily authoritative in a maẓālim court—though the latter’s existence was often justified in terms of the shari‘a. In the court’s early days, the caliph himself judged cases in which the interests of the state were paramount. In later centuries, caliphs often appointed a vizier or judge to act as judge of the maẓālim court. David Powers, in his article “On Judicial Review in Islamic Law,” has shown that other means also existed by which rulings could be overturned. In addition to the right of a judge to overturn his own rulings, a process of “successor review” existed among the judges. Upon taking office, a newly appointed judge would review the court records of the previous incumbent. Any prior rulings on record could be overturned by the incoming judge.