Judicial Authority and Qāḍīs' Autonomy under the ʿAbbāsids

Abstract

As Joseph Schacht argued in the 1950s, the office of qāḍī began in the Umayyad period as that of a "legal secretary" to provincial governors. Documentary evidence from Egypt confirms that governors were indeed regarded as being the highest judicial authority in early Islam, and that their legal powers far surpassed that of any other judge. In large cities, governors appointed and dismissed qāḍīs at their will; decisions taken by qāḍīs' were could be swiftly overruled by political authorities. Although the Abbasids reformed and centralised the judiciary in the second half of eighth century AD, qāḍīs were still subordinate to reigning rulers and unable to impose judgements that displeased the caliph or his main representatives. The increasing political and social influence of scholars and the development of classical schools of law eventually changed this situation. Relying on a body of both narrative and legal literature, this paper addresses the qāḍīs' attempts to resist political rulers' interference with the judiciary by asserting themselves as true representatives of the shariʻa. It argues that Ḥanafi legal literature, dating from the ninth and tenth centuries AD, gradually elaborated a theory on the relationship between the qāḍī and the ruler; this theory was instrumental in doing away with political infringement on the judicial prerogative. This theory was soon incorporated into adab literature, whose stories of rulers entirely subjugated to the rule of law became a new political model.

The People of the Pen: Self-Perceptions of Status and Role in the Administration of Empires and Polities

“…Under influence of the increasing status of religious and legal scholars (ʿulamaʾ) and the rise of transregional law schools, qadis resisted political interference with the judiciary and developed discourses on judicial autonomy. 38 The Abbasid administrative and scribal traditions would continue to set standards for many administrations in later centuries, despite sometimes far-reaching changes in the political arena after the disintegration of the Abbasid caliphate in the middle of the tenth century. In the Eastern part of the former caliphate, for example, Daylamites from the Southern Caspian shores took over large parts of Iran and Iraq including the Abbasid capital Baghdad.…”

Front Matter

“…26 See Finer,History of Government,vol. i,38 for his first brief description of the 'palace the spatial and institutional structures of the court. The presence at court of either a single ruling lady, or a multitude of women had a powerful impact on succession as well as on the organization of the court.…”

“…This will allow me to rely on my specific knowledge rather than on more general reading, only, and, at the same time, show the peculiarities of and the differences between specific rulers. Inevitably, this approach will not reveal 38 The concept is problematic, but as defined by: G. Therborn, The Ideology of Power and the Power of Ideology (London, 1980) 2, I take it to mean thought forming conscious action; thus, it may resemble faith and, indeed, religion.…”

“…36 Modern critics have presented state-or civilization-based comparison in similar terms, as rephrasing ethnic and national clichés and, in its worst form, as serving as an 'intellectually refurbished form of eurocentrism' .37 Anthropologists, at the forefront of the cultural turn and abhorring evolutionism, broadly rejected the goal of systematic comparison held by their predecessors. 38 Exceptional among these critics, Clifford Geertz developed his own form of smaller-scale comparison. On the basis of his close familiarity with Morocco and Indonesia Geertz disentangled the varieties of Islam in these different cultures and combined comparison with a densely textured description of cultural practices.39 Geertz's intelligent middle way suggests that comparison should not be discarded without careful consideration; the models presented by Goldstone and Lieberman, too, underline the strength of the comparative perspective.…”

“…47 A point well made in Susan Stanford Friedman, 'Why not compare?' , in: Felski and Friedman,eds.,Comparison: Theories,Approaches,Uses,[34][35][36][37][38][39][40][41][42][43][44][45][36][37] duindam object of research is framed in a regional or global tour d'horizon, yet comparison is not pursued either systematically or symmetrically. 48 Asymmetrical comparison tends to reconfirm clichés (French 'absolutism' , the Prussian Beamtenstaat, Sultanic omnipotence) because it mostly relies on outdated scholarship.…”