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:
Byron Cannon
Source:
The Oxford Encyclopedia of Islam and Women What is This? A single source for accurate overview articles covering the major topics of scholarly interest within the study of women and Islam.

Qāḍī

Throughout most of Islamic history, judicial authority over Muslims has rested with the qāḍī, or judge, who referred to the Sharīʿah law. Caliph Hārūn al-Rashīd (d. 809 CE) was the first to recognize the qāḍī of Baghdad as the qāḍī al-quḍāt or “judge of judges.” Such recognition of a presumed jurisdictional hierarchy also implied systematic appointments of qāḍīs throughout the caliphal realm. In time, appointments were made by local dynasts who sometimes rejected the qāḍī of Baghdad's legitimacy. Regional differentiation was accompanied by gradual recognition of four “orthodox” schools of Islamic law. Although each recognized the legitimacy of the others, authorities might grant precedence to the qāḍī of a locally “preferred” school. Potential problems surfaced in Syria and Egypt when the Fāṭimids recognized four chief judges, two representing Fatimid Shīʿī heterodoxy. When the Ayyūbids assumed control, they eliminated the Shīʿī judges and removed the Mālikī judge as well, giving to a Shāfiʿī Qadi al Qudat the responsibility of appointing all qāḍīs.

Generally speaking, a qāḍī 's position as a “simple” judge did not invite individual contribution to the growing corpus of Islamic fiqh. Some exceptions occurred, however, as in the case of Qāḍī ʿIyād (d. 1149), a North African Mālikī judge who composed a major work (Al-shifā’ah bi taʿrīf huqūq al-muṣṭafa [Recognition of the Rights of the Chosen One], usually referred to as Al-shifāʿah), that became a highly popular legal “manual” of morals for Muslims.

During the early modern period, trends toward providing essentially secular definitions of key areas of law began to affect the traditional jurisdiction of the qāḍī. The historic experience of the Ottoman Empire and its successor states in the Middle East provide something of a prototype. Beginning in the 1830s, Ottoman Tanzimat decrees gradually reduced the qāḍīs’ jurisdiction over areas of law susceptible to secular codification. Conservative Tanzimat Council reformers tried to develop a somewhat eclectic model of Islamic provisions as a general civil code (the Mecelle) to be applied in a partially secularized court system. Such changes led to a need for totally different professional qualifications than those possessed by the qāḍīs. This was the case in Egypt, where a system of majālis maḥallīyah (local councils) heard many cases deemed inappropriate for judgment in the qāḍī  's court. Originally, such majālis included ʿulamāʿ to consult on overlapping areas of law. Until drastic secular reforms were imposed by the First Turkish Republic and adopted in other formerly Ottoman areas in the interwar period, personal status cases—including a wide range of issues involving women's legal status—remained under the qāḍīs’ jurisdiction well into the twentieth century. In Egypt, the post of qāḍī al-quḍāt in Cairo also continued until 1947. Eight years later the early Nasser regime moved to abolish all remnants of the maḥkamah jurisdiction.

While a wide spectrum of measures have been adopted by various Islamic countries to redefine and redirect judicial authority traditionally vested in the qāḍī, debates over personal status law, particularly laws affecting the rights of women, continue. Questions of not only appropriate jurisdiction, but also the social and cultural objectives of family law, are inextricably linked to women's interests in Sharīʿahtic provisions for, for example, rights of individual testimony, inheritance, and marriage and divorce law (including child custody and polygamy).

Nothing in Islamic law specifically proscribes a woman's right to appear before the qāḍī, either to represent her own interests or to serve in some auxiliary status, such as agent (amīn) for another woman. Cultural tradition, however, seems to have mitigated against such in-court appearances by women of higher social status. Such litigants were most often represented by a legally recognized delegate, or wakīl.

Although cases of women being appointed as maḥkamah judges appear to have been rare, there are different legal points of view on the question. Whereas the Shāfiʿī school's early opposition to such appointments appeared in Abū al-Ḥasan al-Māwardī's (tenth century CE) work, followers of Abū Hanifa traditionally recognized the right of women qāḍīs to settle cases in which women have the right of testimony.

Contemporary circumstances vary from region to region. Whereas two women were appointed as qāḍīs in Malaysia in 2010, steps to do the same in Kenya in 2011 led to open debate as to whether such measures fit in with efforts to reform the overall justice system.

Bibliography

  • Agmon, Iris. Family and Court: Legal Culture and Modernity in Late Ottoman Palestine. Syracuse, N.Y.: Syracuse University Press, 2006.
  • Shaham, Ron. “Judicial Divorce at the Wife's Initiative: The Sharīʿah Courts of Egypt, 1920–1955.” Islamic Law and Society 1, no. 2 (1994): 217–257.
  • Shehada, N. Y. “Uncodified Justice: Women Negotiating Family Law and Customary Practice in Palestine.” Development 47 (2004): 103–110.
  • Sonbol, Amira. “Women in Sharīʿah Courts: A Historical and Methodological Discussion.” Fordham International Law Journal 27 (2003): 225–253.
  • Tillier, Mathieu. “Women before the Qadi under the Abbasids.” Islamic Law and Society 16 (2009): 280–301.
  • 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

© 2019. All Rights Reserved. Cookie Policy | Privacy Policy | Legal Notice