QĀḌĪ

QĀḌĪ . A qāḍī is a judge responsible for the application of Islamic positive law (fiqh ). The office originated under the rule of the first Umayyad caliphs (ah 40–85/661–705 ce), when the provincial governers of the newly created Islamic empire, unable to adjudicate the many disputes that arose among Muslims living within their territories, began to delegate this function to others. In this early period of Islamic history, no body of Islamic positive law had yet come into existence, and the first qāḍī s therefore decided cases on the basis of the only guidelines available to them: Arab customary law, the laws of the conquered territories, the general precepts of the Qurʾān, and their own sense of equity. During the later Umayyad period (705–750 ce), a growing class of Muslim legal scholars, distinct from the qāḍī s, busied themselves with the task of supplying the needed body of law, and by the time of the accession to power of the Abbasid dynasty in 750 their work could be said to have been essentially completed. In constructing their legal doctrine, these legal scholars took as their point of departure the precedents already established by the qāḍī s, some of which they rejected as inconsistent with Islamic principles as these were coming to be understood, but most of which they adopted, with or without modification. Thus the first qāḍī s in effect laid the foundations of Islamic positive law. Once this law had been formed, however, the role of the qāḍī underwent a profound change. No longer free to follow the guidelines mentioned above, a qāḍī was now expected to adhere solely to the new Islamic law, and this adherence has characterized the office ever since.

A qāḍī continued, however, to be a delegate of a higher authority, ultimately the caliph or, after the demise of the caliphate, the supreme ruler in a given territory. This delegate status implies the absence of a separation of powers; both judicial and executive powers were concentrated in the person of the supreme ruler (caliph or otherwise). On the other hand, a certain degree of autonomy was enjoyed by a qāḍī in that the law that he applied was not the creation of the supreme ruler or the expression of his will. What a qāḍī owed to the supreme ruler was solely the power to apply the law, for which sanctions were necessary that only the supreme ruler as head of the state could guarantee.

The qualifications that a qāḍī must possess are stated in the law, although the law is not uniform on this subject. The minimal requirement upon which all the jurists agree is that a qāḍī possess the same qualifications as a witness in court, that is, that he be free, sane, adult, trustworthy, and a Muslim. Some require that he also possess the qualifications of a jurist, that is, that he be well versed in the law, while others regard those qualifications as simply preferable, implying that a person may effectively discharge the duties of the office without being well versed in the law. This latter position presupposed that a qāḍī who is not learned in matters of law would consult those who are before reaching a decision. Indeed, consultation was urged upon the learned qāḍī as well, since even the learned are fallible and can profit from the views of others. Those consulted did not, however, have a voice in the final decision making. The Islamic court was a strictly one-judge court and the final decision rested upon the shoulders of a single qāḍī.

The jurisdiction of a qāḍī was theoretically coextensive with the scope of the law that he applied. That law was fundamentally a law for Muslims, and the internal affairs of the non-Muslim, or dhimmī, communities living within the Islamic state were left under the jurisdictions of those communities. Islamic law governed dhimmī s only with respect to their relations to Muslims and to the Islamic state. In actual practice, however, the jurisdiction of a qāḍī was hemmed in by what must be regarded as rival jurisdictions, particularly that of the maẓālim court and that of the shurṭah. The former was a court (presided over by the supreme ruler himself or his governor) that heard complaints addressed to it by virtually any offended party. Since Islamic law did not provide for any appellate jurisdiction but regarded the decision of a qāḍī as final and irrevocable, the maẓālim court could function as a kind of court of appeals in cases where parties complained of unfair decisions from qāḍī s. The maẓālim judge was not bound to the rules of Islamic law (fiqh ), nor for that matter was he bound to any body of positive law, but was free to make decisions entirely on the basis of considerations of equity. The maẓālim court thus provided a remedy for the inability of a qāḍī to take equity freely into account. It also made up for certain shortcomings of Islamic law, for example, the lack of a highly developed law of torts, which was largely due to the preoccupation of the law with breaches of contracts. In addition, it heard complaints against state officials. The shurṭah, on the other hand, was the state apparatus responsible for criminal justice. It too provided a remedy for a deficiency in the law, namely the incompleteness and procedural rigidity of its criminal code. Although in theory a qāḍī exercised a criminal jurisdiction, in practice this jurisdiction was removed from his sphere of competence and turned over entirely to the shurṭah, which developed its own penalties and procedures. What was left to the qāḍī was a jurisdiction concerned mainly with cases having to do with inheritance, personal status, property, and commercial transactions. Even within this jurisdiction, a particular qāḍī' s jurisdiction could be further restricted to particular cases or types of cases at the behest of the appointing superior.

The principle of delegation of judicial powers not only allowed the supreme ruler to delegate these powers to a qāḍī ; it also allowed qāḍī s to further delegate them to others, and there was in principle no limit to this chain of delegation. All persons in the chain, except for the supreme ruler or his governor, bore the title qāḍī. Although in theory the appointment of a qāḍī could be effected by a simple verbal declaration on the part of the appointing superior, normally it was accomplished by means of a written certificate of investiture, which obviated the need for the appointee to appear in the presence of the superior. The appointment was essentially unilateral rather than contractual and did not require acceptance on the part of the appointee in order to be effective. It could be revoked at any time.

The Abbasids created the office of chief qāḍī (qāḍī al-quḍāh ), whose holder acted primarily as adviser to the caliph in the appointment and dismissal of qāḍī s. Later Islamic states generally retained this office, while granting to its holder the authority to issue appointments and dismissals in his own name. The Mamluk state, which ruled Egypt and Syria from 1250 to 1516 ce, introduced the practice of appointing four chief qāḍī s, one for each of the Sunni legal schools (madhhabs ).

Although the primary responsibility of a qāḍī was a judicial one, he was generally charged with certain nonjudicial responsibilities as well, such as the administration of religious endowments (waqfs ), the legitimization of the accession or deposition of a ruler, the execution of wills, the accreditation of witnesses, guardianship over orphans and others in need of protection, and supervision of the enforcement of public morals (ḥisbah ).

See Also

Islamic Law.

Bibliography

Schacht, Joseph. An Introduction to Islamic Law. Oxford, 1964.

Tyan, Emile. "Judicial Organization." In Law in the Middle East, vol. 1, edited by Majid Khadduri and Herbert J. Liebesny, pp. 236–278. Washington, D. C., 1955.

Tyan, Emile. Histoire de l'organization judiciaire en pays d'Islam. 2d ed. Leiden, 1960.

Bernard G. Weiss (1987)