We use cookies to enhance your experience on our website. By continuing to use our website, you are agreeing to our use of cookies. You can change your cookie settings at any time. Find out more Qāḍī - Oxford Islamic Studies Online
Select Translation What is This? Selections include: The Koran Interpreted, a translation by A.J. Arberry, first published 1955; The Qur'an, translated by M.A.S. Abdel Haleem, published 2004; or side-by-side comparison view
Chapter: verse lookup What is This? Select one or both translations, then enter a chapter and verse number in the boxes, and click "Go."
:
  • Previous Result
  • Results
  • Highlight On / Off
  • Look It Up What is This? Highlight any word or phrase, then click the button to begin a new search.
  • Next Result

Qāḍī

By:
Joe W. Bradford
Source:
The [Oxford] Encyclopedia of Islam and Law What is This? An English-language legal reference for scholars of Islamic studies and Western engaged readers presenting the history and development of Islamic Law.

Related Content

Qāḍī

The office of the qāḍī (judge) is based in the pre-Islamic Arab institution of the tribal arbitrator (ḥakam) and in the Prophet’s elevation, by Qurʾānic decree and communal agreement, to the position of the ultimate resolver of disputes among the people of Medina (4:48–59, 5:48, 33:36). Ḥadīths provide further guidance on the implementation of justice and the adjudication of disputes, describing the position of qāḍī by name and warning of its great responsibility. During the rule of the first four caliphs and the early decades of the Umayyad dynasty, judges were individuals respected as ḥakams and appointed by the caliphs or the regional governors. Initially a judge presided over his garrison city (miṣr), with judicial authority later extending to adjoining rural areas. Early judges played a broad administrative and governing role, including collecting taxes, but in the later Umayyad period their duties narrowed to adjudicating legal disputes. A number of revered early scholars served as judges under the Umayyads, including al-Ḥasan al-Baṣrī (d. 728) and al-Zuhrī (d. 742). Judges were paid a salary from the state treasury.

Under the early ʿAbbāsid caliphate, the office of qāḍī was further centralized. The caliph Hārūn al-Rashīd (d. 809) instituted the office of the chief judge (qāḍī al-quḍāt) in Baghdad, charging the position with overseeing the appointment and dismissal of judges empire-wide. Through at least the mid-tenth century, when ʿAbbāsid central authority collapsed, appointments were made centrally from Baghdad and often involved assigning non-local judges to regional courts. During the middle ʿAbbāsid period, the judge’s duties expanded to include supervising the notarization of documents (often the majority of court activity), overseeing the care of orphans and their trusts, as well as the increasingly mammoth task of supervising endowments (waqf). The later Ottoman and Mughal empires succeeded in retaining central control over appointing judgeships, often assigning non-locals to provincial offices. In the Ottoman state this was overseen by the Shaykh al-Islām, under the Mughals by the head of the chancellery (ṣadr al-ṣudūr).

The relationship between the ʿulamāʾ as a class apart from the state and the state office of qāḍī was fraught in the early Islamic period. ʿUlamāʾ in the ninth and tenth centuries often scorned judgeship as a subordination of piety to state interests and serving on the ruler’s payroll, and rejecting the office especially among the ahl al-ḥadīth was a topos. But this belied an increased willingness to serve as judges by the late tenth century. While later ʿulamāʾ might avoid serving as a judge for pietistic reasons or to avoid its burden, they were more likely to see serving as judges as part of their duty and a valuable employment opportunity.

Eventually, a genre of literature built up surrounding the qāḍī profession and the precedents set therein, that of “etiquette of the judge” (adab al-qāḍī). These books were offered as models for judges to follow and guides in court procedure, thought it is far from clear that they reflected actual practice. The most famous and influential adab al-qāḍī works were those of the Ḥanafī al-Khaṣṣāf (d. 874), of the Shāfiʿī judge of Baghdad, al-Māwārdī (d. 1058), and those of the Mālikī scholar Ibn Farḥūn (d. 1358).

Despite variations in the judge’s duties throughout and across Islamic civilization, the position centered on the adjudication of disputes. Unlike the faqīh (jurist) or the muftī (scholar offering legal opinion), the qāḍī retained not only the power to interpret and express what the law is, but also the authority to order its application to specific cases through the executive authority of the sovereign ruler.

The appointment of a judge is considered in the Sharīʿah to be a farḍ kifāyah (a collective duty) on the populace of any particular area. This obligation, however, is contingent on the presence of a legitimate and sovereign ruler (imam or sultan), the right to appoint and dismiss judges being his sole privilege. While the public did not have a direct say in the appointment of the judge, the sultan or imam was largely reliant on public opinion in shaping the pool of candidates from which the judge was chosen.

Qualifications of a Qāḍī

Most schools of law are in agreement that only a qualified judge can be appointed. While these qualifications were not present in the early Islamic period, they eventually crystallized and centered on four broad areas. The first of these areas of qualification are legal: the individual must be free, Muslim, male, have legal capacity, be of sound mind, and possess high moral probity (ʿadālah). The qualifications of gender and ʿadālah, are the most frequently debated in legal scholarship. Gender was hotly debated, especially in the early Islamic period. While most scholars stipulated that the judge be male, Abū Ḥanīfah (d. 767) permitted women to hold judicial positions in financial disputes. Differing with the vast majority of Muslim scholars, al-Ṭabarī (d. 923) and Ibn Ḥazm (d. 1064) allowed their appointment in all areas of adjudication. Moral probity seems to be the mainstay of coverage for a judge’s qualifications. Almost all Muslim scholars spent considerable time elaborating what constitutes high moral probity and how it applies to the judge. ʿAdālah, enshrined in general ethical conduct and virtue, was seen as a must both before and after appointment of the judge. Any lapses in this area were possibly impeachable offenses and could, if discovered to have been present while presiding over the court, open the judge’s rulings up to review and retrial. The chief judge of Damascus in the early 1300s was removed from his post, for example, after an assembly of ʿulamāʾ found that he had violated his Shāfiʿī school’s rules on sentencing by having a man who had insulted him lashed two hundred times.

The second area focused on moral qualifications such as piety, virtue, and responsibility. Physical integrity was the third, covering things such as the candidate having sound sensory perception, that is, hearing, sight, and speech.

Lastly, the candidate must possess certain intellectual qualifications, such as intelligence and sufficient juristic acumen. In fact, significant voices within the Shāfiʿī, Mālikī, Ḥanbalī, and, to a lesser extent, Ḥanafī schools stipulated that he reach the level of ijtihād. This latter qualification evoked wide discussion and would have an effect on how courts were formed.

In addition to the debate over whether a candidate must posses the unrestricted ability to derive law from the substantive sources of Islamic law, Muslim scholars also debated the crucial question of whether he must adhere to one of the canonical schools of Islamic law in his rulings. Sometimes legal practice and judge culture created conventional restraints. By the 1300s Mālikī judges in North Africa were expected to rule according to the main opinion (mashhūr) of the Mālikī school in all cases. Scholars also discussed whether the ruler could specify the madhhab used by the judge. It was at this juncture that politics and religious authority at times collided and at times colluded, when the sultan favored the implementation of one school over others. This gave rise to jurisdictional debates, and how variant schools of Islamic law comingled in the same or neighboring jurisdictions. Only the Ḥanafī school allowed a judge to accept an appointment on the condition that he rule according to a specific madhhab. Fortunately for proponents of centralization, the major bureaucratizing states of the early modern period, the Ottoman and Mughal empires, identified with the Ḥanafi school.

Debate over the requirement of ijtihād capacity for judgeship proved complex and layered. That it was often more theoretical and ideal than realistic is reflected in fantastic statements like that attributed to Ibn Ḥanbal that only a scholar who had memorized hundreds of thousands of ḥadīths could serve as a judge. More plausible positions came from scholars like Imām al-Ḥaramayn al-Juwaynī (d. 1085), one of the paragons of the Shāfiʿī school. He tersely summarized the qualifications of a judge as no more than the requirement to be a standard muftī. This effectively stipulated realistic legal acumen and the ability to issue religious opinion but did not require the capacity for ijtihād. This position allowed for lesser scholars of the canonical schools to qualify as judges, as the rubric of issuing fatwās allows for variant levels of specialization in the various areas of law, with the lowest level of muftī doing no more than providing rulings by consulting the legal position of his madhhab.

With jurisdiction stemming from discussions on the qualifications of the judge, the topic of arbitration arose as well, addressing the predicament of a Muslim populace which did not fall under the jurisdiction of any judge appointed by a sovereign Muslim ruler. Since the judge derived his legitimacy from appointment by the sultan as well as fitting the qualifications mentioned above, the natural progression of thought in books of Islamic law was to discuss the impeachment (ʿazl) of the judge when any of the inverse of the above qualifications were found.

Substantive Basis for Adjudication

Once appointed, what is the source of the judge’s rulings? While significant camps in all schools of law required each judge to qualify as a mujtahid (one capable of ijtihād), most scholars only made it requisite to possess legal acumen in one of the canonical schools of jurisprudence (al-madhāhib al-arbaʿah). So, while the judge qua mujtahid could in theory rely on the generalities of the Qurʾān and sunnah, Ottoman administration of the judiciary required judges to rule by the main opinion of the Ḥanafī school unless sultanic edict specified otherwise. The Mughal Empire followed a similar policy. There remained leeway in the Ottoman system, however, and especially in provincial areas judges drew heavily from the choice opinions and judgments issued by numerous scholars of the Ḥanafī school (and at times in the absence of intra-school precedent, those of the other canonical schools).

As the position of the judge developed further, holders of the office could be separated from the more esoteric and theoretical discussion of Sharīʿah law. Lower level judges relied on applying the normative rulings of their respective schools, while judges of greater repute, longer service, and higher office functioned in a hybrid role of determining what the law is (by engaging in some degree of ijtihād) and how the law is to be implemented. This allowed the law to be created within the court system by the creation of new precedent and, if substantiated, a break with court tradition. Senior scholars vaunted their mastery of tradition and responses to novel problems, like the Ḥanafī Mullā Khusrū (d. 1480) in Istanbul and the Shāfiʿī Shaykh al-Islām Zakariyyā al-Anṣārī (d. 1520) in Cairo, often held chief judgeships. But in the Mamluk and Ottoman periods ʿulamāʾ also complained about the ignorance of most judges and their dependence on consulting more learned ʿulamāʾ for assistance in difficult cases. By the tenth century it had become standard for all courts in North Africa to have two advisor jurists, called mushāwirs, working with the judge.

Discussions of judicial practice generally deemed the rulings of judges theoretically unreviewable by other judges. A statement from the caliph ʿUmar equated the opinion (raʾy) of any one judge with that of another, and it was widely accepted that every mujtahid was assumed to be correct in his ruling (kull mujtahid muṣīb). Yet, in fact, judicial abuses could be remedied, particularly when a judge was replaced. There was also the possibility of appeal to a higher authority within the courts, such as appeals to maẓālim (injustices) courts, which first arose under the early ʿAbbāsids in Baghdad primarily to address wrongdoing by officials. Held under the aegis of the caliph or sultan but generally staffed by select ʿulamāʾ, maẓālim courts became a venue for appealing problematic rulings and ranged from Mamluk Egypt to Mughal India.

Unlike the maẓālim institution, the office of chief judge related more to the administration of the judiciary than to jurisdictional superiority. The chief judge was expected to review the rulings issued by his subordinates, monitor their performance and that of their delegates, and appoint judges throughout the realm. One illustrative case was the chief judge of Cairo in the early 1500s controversially affirming the decision of a Shāfiʿī judge to commute the stoning of a couple who had initially confessed to fornication but later recanted. If the system of internal judicial review failed, then an appeal to the sultan or caliph could be made.

The Qāḍī in the Modern Period

Since the beginning of substantial administrative reforms by most Muslim states circa 1800, the office of the qāḍī has had its course determined by two trends that predated contact with Europe—namely the bureaucratization of the ʿulamāʾ and the codification of the Sharīʿah, and two brought on by this contact—namely the adoption (or imposition) of Western legal codes and the absorption of Sharīʿah courts into new secular, civil law judiciaries. The fate of the institution of the Sharīʿah court and ʿulamāʾ-cum-qāḍīs has depended primarily on the colonial experience of different regions and states.

Where colonial powers directly took over the administration of justice at all levels, such as in India, change was drastic. In 1765 an agreement with the cowed Mughal Empire left British judges in charge of Sharīʿah courts in much of India. They applied what emerged as Anglo-Muhammadan law with the help of ʿulamāʾ advisors (maulvis) until that position was abolished in 1864, and British judges assumed all court duties. Today, Pakistan allows space for a small number of traditionally trained ʿulamāʾ on the country’s Federal Shariat Court, while all other courts are presided over by common law judges.

In other areas, like French and British Africa, local Sharīʿah courts were left intact but integrated into the hierarchy of colonial court systems. In Indonesia, Dutch rule left the country with a parallel Sharīʿah/civil law court system. The judges for the country’s Sharīʿah courts are trained in the State Islamic Institutes.

The former Ottoman world has been greatly shaped by the empire’s legal reforms of the late nineteenth century. The Ottoman Empire and Egypt of the late 1800s issued new legal codes, some based on the Ḥanafī school (like the MECELLE), some on selection from across the madhhabs (like the Ottoman Family Law), and some imported from French law. By 1900 the Sharīʿah courts presided over by ʿulamāʾ/qāḍīs were limited to issues of family law and some torts. All other issues were heard in new Nizāmiyye courts, presided over by both Muslim and non-Muslim judges educated according to the civil law traditions. European powers even selected judges to adjudicate cases involving their interests. Qāḍīs applying Sharīʿah-based family law continued to preside over Sharīʿah courts in Egypt until 1956, and they continue to work today in some former Ottoman territories like Lebanon. Syria’s reforms proved the most comprehensive. Since 1953 judges there are entirely produced from the county’s civil law school.

Iran and Saudi Arabia present the clearest cases of continuity with pre-modern Sharīʿah judgeship. In Iran, in the mid 1990s the court system was overhauled to return to one in which all courts are presided over by ʿulamāʾ/qāḍīs applying Sharīʿah law. Judges are graduates from law schools, but any ʿulamāʾ who reach the post-doctorate level of mujtahid can also serve as judges. In Saudi Arabia, judges are all classically trained ʿulamāʾ. Despite efforts to standardize practice by the Ministry of Justice, qāḍīs in the country’s predominantly Sharīʿah-court legal system continue to assert their right, as mujtahids, to rule in each case according to their best understanding of the Qurʾān and the sunnah.

[See also COURTS; LEBANON; MECELLE; SAUDI ARABIA; and TALFīQ/TAKHAYYUR].

Bibliography

Primary Sources

  • ʿAwwā, Salīm, al-. Uṣūl al-Niẓām al-Jinā’ī. Cairo: Nahḍat Miṣr, 2006.
  • Ibn al-Jawzīyah. Al-Ṭuruq al-Ḥukmiyyah. Riyadh: Dār Ālam al-Fawā’id.
  • Ibn Ḥazm. Al-Muḥalla biʾl-āthār. Beirut: Dār al-Ufuq al-Jadīdah.
  • Juwaynī, Imām al-Ḥaramayn, al-. Nihāyat al-maṭlab fī Dirāyat al-Madhhab. Jeddah: Dār al-Minhāj.
  • Al-Zarkashī, Muḥammad Bahādur. Kitāb al-Qaḍā’. Ed. J. W. Bradford. Medina: Islamic University of Medina, 2009.

Secondary Sources

  • Coulson, N. J. “The State and the Individual in Islamic Law.” The International and Comparative Law Quarterly 6, no. 1 (1957): 49–60.
  • Fadel, Mohammed. Adjudication in the Maliki Madhhab—A Study of Legal Process in Medieval Islamic Law. Ph.D. diss., University of Chicago, 1995.
  • Fadel, Mohammed. “The Social Logic of Taqlīd and the Rise of the Mukhtaṣar.” Islamic Law and Society 3, no. 2 (1996): 193–233.
  • Guenther, Alan. “Hanafi Fiqh in Mughal India: The Fatāwá ʿĀlamgīrī.” In India’s Islamic Tradition, 1711–1750, edited by Richard Eaton. Oxford: Oxford University Press, 2003.
  • Hallaq, Wael B. “The ‘qāḍī's dīwān (sijill)’ before the Ottomans.” Bulletin of the School of Oriental and African Studies 61, no. 3 (1998): 415–436.
  • Jennings, R. C. “Kadi, Court, and Legal Procedure in 17th C. Ottoman Kayseri: The Kadi and the Legal System.” Studia Islamica 48 (1978): 133–172.
  • Makdisi, J. “Legal Logic and Equity in Islamic Law.” The American Journal of Comparative Law 33 (1985): 63–92.
  • Masud, Muhammad Khalid, Rudolph Peters, and David Powers, eds. Dispensing Justice in Islam: Qadis and their Judgments. Leiden, Netherlands: Brill, 2006.
  • Powers, D. S. “On Judicial Review in Islamic Law.” Law & Society Review 26, no. 2 (1992): 315–341.
  • Rebstock, U. “A Qāḍī’s Errors.” Islamic Law and Society 6, no. 1 (1999): 1–37.
  • Rosen, L. “Equity and Discretion in a Modern Islamic Legal System.” Law & Society Review 15, no. 2 (1980–1981): 217–246.
  • Previous Result
  • Results
  • Highlight On / Off
  • Look It Up What is This? Highlight any word or phrase, then click the button to begin a new search.
  • Next Result
Oxford University Press

© 2017. All Rights Reserved. Privacy policy and legal notice