Citation for Maḥkamah

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MLA

Christelow, Allan . "Maḥkamah." In The Oxford Encyclopedia of the Islamic World. Oxford Islamic Studies Online. Jan 22, 2022. <http://www.oxfordislamicstudies.com/article/opr/t236/e0489>.

Chicago

Christelow, Allan . "Maḥkamah." In The Oxford Encyclopedia of the Islamic World. Oxford Islamic Studies Online, http://www.oxfordislamicstudies.com/article/opr/t236/e0489 (accessed Jan 22, 2022).

Maḥkamah

Meaning a “place of judgment,” the term maḥkamah has come to refer to all forms of law court in the Arabic-speaking world. In traditional Islamic settings, emphasis was placed on the individual judge, for instance the qāḍī or the amīr, rather than on the institution. Often there was no specialized building that might be referred to as a court; judges heard cases in marketplaces, mosques, private dwellings, or the audience chambers of palaces. Sometimes the judge was assisted by a consultative council (majlis) made up of legal scholars. Discrete judicial institutions with their own distinct space emerged gradually in response to increases in the volume of cases, the complexity of the judicial apparatus, the emphasis on record-keeping, and the independence of the judiciary.

Beginning in the nineteenth century, westernizing indigenous regimes and European colonial administrations accelerated this process of institutionalization, eventually creating complex integrated structures of courts under the supervision of a central ministry of justice. This process was accompanied by the substitution of European for indigenous bodies of law (not only sharīʿah but also qānūn, ʿādāt, and ḥukm), especially in criminal, commercial, and administrative matters. Only personal status law remained Islamic, and even here, the local qāḍī's court was made subject to a European-style hierarchy of appellate courts and centralized regulation. With independence from colonial rule and the spread of nationalism in the mid-twentieth century, the personal status courts in many Islamic countries lost their separate identity and became, at least in theory, fully integrated into national court systems under such rubrics as maḥkamah juzʿīyah (Egypt) or Area Court (northern Nigeria). In most cases, however, they continued to apply the sharīʿah.

Of the various types of court within a national system, it is the qāḍī's court (whatever its official bureaucratic appellation) that has the most bearing on the daily lives of ordinary people through its jurisdiction over marriage, divorce, guardianship, inheritance, and minor civil cases. It also provides notarial services of the ʿudūl (sg., ʿādil) or certified witnesses. The qāḍī's maḥkamah is likely to employ a scribe, a doorkeeper or usher, and sometimes specialists with technical knowledge in matters frequently brought before the court. Sometimes a professional legal representative (wakīl) may appear in the court with or on behalf of a client. Many observers have noted that the people who appear in the qāḍī's court are frequently poor and often female. This court is the forum in which they pursue their negotiations over rights and obligations, no matter how apparently trivial.

The close integration of the qāḍī's court with popular life, and the fact that other courts tend to be identified with a distant, alien bureaucratic state, have contributed to demands voiced by Islamist political movements in the late twentieth century for a re-Islamization of the law, especially in criminal matters. These calls for re-Islamization, however, tend to emphasize the content of the law, demanding replacement of Western-style codes by the sharīʿah, rather than challenging the bureaucratic structure and style of modern courts.

See also LAW, subentry onCOURTS; and Qāḍī.]

Bibliography

  • Azmeh, Aziz al-, ed.Islamic Law: Social and Historical Contexts. London, 1988.
  • Azra, Azyumard, and Arskal Salim, eds. Sharīʿah and Politics in Modern Indonesia. Singapore, 2003.
  • Christelow, Allan. Muslim Law Courts and the French Colonial State in Algeria. Princeton, N.J., 1985.
  • Hill, Enid. Maḥkamah! Studies in the Egyptian Legal System. London, 1979.
  • Peletz, Michael G.Islamic Modern: Religious Courts and Cultural Politics in Malaysia. Princeton, N.J., 2002.
  • Rosen, Lawrence. The Anthropology of Justice: Law as Culture in Islamic Society. Cambridge, U.K., 1989. Study of the relation of courts to their cultural environment in Morocco.

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