Qadi (Kadi, Kazi)
QADI (KADI, KAZI)
A qadi is the term for a Muslim judge who issues definitive rulings in cases brought by disputants for resolution. The word qadi is derived from the root word q-d-y, meaning "to resolve," "to settle," "to decide."
Judicial practice is seen as an extension of the function of the ruler and is thus indirectly linked to orderly governance. Muslim political theory advocates the appointment of an executive ruler (caliph/imam) as a moral obligation (fard) premised on religious authority. The appointment of judges is thus in keeping with the fulfillment of an obligation according to the classical Sunni legal authorities. Early Shi˓ite authorities argue that the implementation of the rules of the revealed law (shari˓a) is an obligation not subject to rational scrutiny (ta˓abbud) and can only be fulfilled by the designated hereditary religious leader (imam) or his delegated appointees. Only those judges appointed by the legitimate political leader can be deemed to have worthy credentials as appointees to the office of judgeship.
According to the Sunni scholar al-Ghazali, the role of the judiciary (qada) is similar to the process of issuing juridical responsa (fatwa, pl. fatawa), where academic jurists offer learned opinions to questions about the moral status of practices. There is of course a crucial difference between a jurisconsult (mufti) and a judge (qadi). The former only provides information to the questioner as to what the juridical-moral status or value (hukm) of a specific act is, while the primary purpose of the latter is to apply and enforce the established rules by means of the coercive authority held by the ruler, or later devolved upon the modern state.
Across the spectrum of Muslim law schools treatises detailing the ethics of judgeship are in abundance. A high bar is set for qualification as a qadi, requiring candidates to meet an extensive list of prerequisites. The most important of these pre-requisites are that qadis should be knowledgeable of the law and its cognitive disciplines, as well as display moral rectitude as individiuals with impeccable credentials within their society. Classical Muslim authorities see an intimate link between qualification as a judge and possessing the credentials of being a reliable witness (shahada). Those who pass the test to serve as credible witnesses, also in theory qualify as having the credentials to serve as qadis.
Among the earliest judges delegated by the prophet Muhammad to serve in certain regions were the companions Mu˓adh ibn Jabal, who was sent to Yemen, and ˓Itab b. Usayd, who was sent to Mecca. Later successors, notably ˓Umar b. Al-Khattab, gave particular attention to the development of a proto-judicial system. He appointed the famous Shurayh b. al-Harith al-Kindi (d. c. 699/700) as qadi of Kufa. Shurayh was affirmed by the caliph/imam ˓Ali who held him in high esteem, provided him with a monthly stipend, even though he fired him for issuing a wrong judgment, but ˓Ali also later reinstated him. ˓Umar's famous letter to Abu Musa al-Ash˓ari is held out as a model document that enshrines the ideals of judgeship in Islam in which he pleads for equity for all people, rich or poor, and warns against the miscarriage of justice.
Historically, the profession has been dominated by males. Most of the law schools make maleness a prerequisite for being a judge. However, in theory at least, some of the classical schools permit women to be judges, while barring them from deciding cases involving criminal penalties (hudud). However, since there is no explicit directive in the Qur˒an or prophetic tradition that prevents women from holding the office of a qadi, the early juristic viewpoint on this matter reflects the social conditions of patriarchy, where the religious norm is colored by social context.
The situation in modern Muslim nation-states from the twentieth century onward is somewhat different. In many societies where a version of Islamic law is still practiced, such as family law, women do perform the role of qadis. However, the advancement of women to high levels in the profession of judgeship still remains an ongoing struggle.
According to the classical authorities, non-Muslim qadis can only have jurisdiction over fellow non-Muslims, but do not have jurisdiction over Muslim petitioners. Sunni and Shi˓ite authorities do not accept the testimony of non-Muslims against Muslims. Given the parallels between judgeship and testimony, non-Muslim qadis are not viewed as qualified to give verdicts over Muslims. While these practices stem from assumptions of Islamic power and empire, this rule is often ignored in modern multireligious and multiethnic societies that include significant Muslim populations such as India, Malaysia, and Nigeria. Irrespective of Muslim majority or minority contexts, non-Muslim judges do issue binding rulings on Muslim petitioners with little objection from the traditional religious scholars (ulema).
In the premodern period qadis had jurisdiction over an entire gamut of laws ranging from administrative law, torts, and commercial law to criminal law. In several places, especially in North Africa, there were also courts of appeals. However, with the displacement of Islamic law by secular and Western legal codes in the nineteenth and twentieth centuries, the jurisdiction of the qadi is in many instances limited to family law matters; in many places the office has been abolished. On the other hand, in some countries where Islamic law has been reintroduced as the main source of law in the twentieth century, the office of the qadi has been revived.
Powers, David. "On Judicial Review in Islamic Law." Law &Society Review 26, no. 2 (1992): 315–341.
Tyser, C. R., et al., trans. "About a Judge and the Duties of a Judge." In The Mejelle. Kuala Kumpur, Malaysia: The Other Press, 2001.
˓Umar al-Khassaf, Ahmad ibn, and Sadr al-Shahid, ˓Abd al-˓Aziz, trans. Munir Ahmad Mughal, Adab al-Qadi: Islamic Legal and Judicial System. Lahore: Kazi Publications, 1999.
Yaacob, Abdul Monir. "Duties of Qadis in Islamic Law." Journal Undang-Undang IKIM, Institute of Islamic Understanding Malaysia Law Journal 4, no. 1 (January–June 2000): 39–52.