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DAVID S. POWERS: For a thousand years, from 800 to 1800, the Islamic judicial system was a source of stability in Muslim societies across the world. Everywhere that Muslims lived in substantial numbers, there would be a judge and a court in which Muslims could come to reconcile their differences. There was no public prosecutor. Rather, individuals would bring their grievances to the judge or qadi. There were also no lawyers. The litigants would appear in court and would present their case to the qadi directly.
For example, in the 14th century in North Africa, a married woman came to court and told the qadi that her mother and her brother were refusing to share with her certain properties that belonged to her. The qadi summoned the mother and the brother into the court and asked them to respond to the complaint. If they acknowledged the complaint, then the judge would issue a judgment in favor of the girl who brought the complaint to him. If they denied the complaint, then the judge would have to determine who was the plaintiff and who was the defendant.
There was no public prosecutor, and there were no lawyers. An aggrieved individual would approach the qadi and tell him about a complaint. The qadi would then summon any other parties who were involved in this complaint, and he would ask them for their version of the facts. In all cases, the burden of proof was on the plaintiff. The primary form of evidence in a qadi court was the oral testimony of upright witnesses, although witness testimony was frequently supplemented by written documentation.
The burden of proof might shift in the middle of a case. If the witness testimony supported the claim of the plaintiff, the qadi would then asked the defendant to bring his own witness testimony, if he had any.
In many instances, the testimony of the witnesses was inconclusive. And in these cases, the qadi would resolve the dispute by offering the oath to one of the two parties to the dispute. He would offer the oath to the litigant with whom the presumption of truth lay. And if that litigant swore the oath, the case would be decided in his favor. Based upon my examination of hundreds of such cases, I have come to the conclusion that, in most instances, the oath was a very effective mechanism for determining the truth of a particular case.
This was the procedure in simple cases. But cases were not always simple. In complex cases, or in cases that involved important members of the community, it was common for judges to seek the assistance of expert Muslim jurists called muftis. These muftis were the graduates of the madrasa system that I had just described a minute or so ago. They were the most outstanding jurists within the community.
And so when a qadi was faced with a difficult case, he would make a summary of the facts of the case, and send that summary to the mufti. The mufti received the request for a fatwa and then retired to his library, studied the case. And within a couple of days, or perhaps as long as a week, he would issue an opinion or recommendation that he then returned to the qadi. This expert opinion or recommendation was called a fatwa.
A fatwa was not binding on the qadi. It had only persuasive authority. But it appears that, in most cases, the qadi would accept the recommendation of the expert jurist and issue his judgement accordingly.
Students of muftis would collect the fatwas that were issued by their teachers, and would compile them in collections of expert legal opinions. Thus we have, for example, the fatwas of Ibn Rushd, a great Maliki jurist who lived in Andalus the loose in the 11th century. And we have the fatwas of Ibn Taymiyyah that were issued in Egypt. And we have other fatwa collections that were issued in different parts of the Muslim world.
These fatwas were usually crafted with great skill and care. And they are windows into the minds of Muslim jurists. Through the act of composing a fatwa, the mufti created a character for himself. And in most instances, the character that he created for himself was a securer of justice. He sought to be a secure of justice.
Based upon my study of hundreds of these texts, I have come to the conclusion that this portrait is an accurate one. I am repeatedly struck by the humanity of these jurists and by their efforts to produce a decision that was just and equitable.
Let me give you an example. Toward the end of the 14th century, a dispute arose in Thlemcen in North Africa, between two jurists, one of whom was a sharif, or descendant of the prophet, while the other was a Berber. Angry words were exchanged. The sharif taunted the Berber. Eventually, the Berber jurist called the sharif a dog, the son of a dog. Standing behind the Berber jurist was his son, who added for good measure, a dog, the son of a dog, to the first grandfather.
The people who witnessed this dispute understood that the Berber jurist and his son had committed slander of the prophet because a sharif is, by definition, a descendant of the prophet. And to say that a sharif is a dog, the son of a dog to the first grandfather is to impugn the prophet himself.
The penalty for slander of the prophet is death. The dispute made its way first to a qadi and then to a mufti. The penalty for slander of the prophet is death by stoning.
The community of Thlemcen became divided into two factions. On the one hand were those people who called for the stoning of the Berber jurist and his son. On the other hand was a faction of people who argued that innocent blood should not be shed.
The dispute made its way first to a qadi and then to a mufti. The mufti wrote a long and detailed fatwa in which he acknowledged the sanctity of sharifs, descendants of the prophet, but managed somehow to find a technical loophole that enabled him to dismiss the case.
But before he was done, he summoned the two men who had engaged in this argument into his chambers, and he sat down with them. They replayed the angry conversation. And at each point, the mufti instructed the two men on what they should have said to one another and how they should have related to one another. And he reminded the sharif that his own father, a famous jurist who was no longer alive, had written a text on the forgiveness of sins in which he had written that, although sharifs enjoy a special status within Muslim society, they are in fact no better than anyone else.
In this manner, I think, the mufti was telling the sharif that he had failed to live up to the legacy and to the values of his own father. And this was the ultimate punishment that would be meted out in this particular case.
Unlike the opinion of a mufti, which was only persuasive, a judgment issued by a qadi was binding, and could not be reversed under any circumstances, unless it could be determined that the qadi had based his judgment on a mistaken interpretation of the Quran or the [INAUDIBLE] of the prophet or on a faulty analogy. There was no system of hierarchical appeal in the Muslim world as there is in the West. However, it was the responsibility of every new judge upon assuming office to review the judgments of his predecessor and to determine whether or not any mistakes of law had taken place. If they had taken place, the new judge was empowered to reverse the decisions of his predecessor. And so we have in Islamic law not a system of hierarchical appeal but a system that has been called successor review.
What becomes clear to me as an historian, after reading hundreds of fatwas, is that in Muslim society in the 14th century and the 15th century, an extremely high value was placed on the reasoned justification of a judgment. This belies the stereotype common in the West about qadi justice and about judges who dispense justice off the tops of their heads without reference to any legal principles.
What is Islamic law? Explore the history as David S. Powers explains the origins, concepts, and misconceptions of Islamic law.
This video is part 6 of 7 in the What is Islamic Law? series.
