ISLAMIC JUSTICE: COURTS, JUDGES AND LAWS

ISLAMIC COURTS

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marriage Nikah
Qadis (cadis) preside over court cases, make rulings and decide punishments, making decisions based on passages from the Qur’an, the Hadiths and legal texts of the school. Rulings are called itjihad . Beginning in 19th century, in some places, an “acceptance on authority” ( taqlid ) of the ruling was ratified by the ijma ---the Islamic equivalent of an upper court appeal.

In theory a person taken to Islamic court for breaking a Sharia law appears before a cadi, or judge, and he (or she) is given a chance to defend himself and face his accuser. Decisions are rendered by the qadi not a jury. Punishment is supposed to be meted out by the qadi under terms that are clearly defined by the legal school used.

Evidence has traditionally been in the form of oral testimony, with the credibility of the testimony often weighed on the status and reputation of the witness. Morals charges usually require witnesses. In conservative Islamic courts women were barred from courtrooms and have to testify through a special window or by closed circuit television. Their testimony is technically was worth half that of a man.

Ruqaiyyah Waris Maqsood, a British Muslim, told the BBC: “What is important is that judges are highly educated in Islamic law and jurisprudence, and this is an area where some damage was done during the colonial periods when Islamic schools of law were closed down with a great loss of knowledge and expertise which is only now being repaired slowly. The problem is that it is all too easy for an individual judge to make some pronouncement or invoke some penalty without full knowledge of the background of Sharia and the spirit behind the various laws and penalties. [Source: Ruqaiyyah Waris Maqsood, BBC, September 3, 2009]

Websites and Resources: Islam Islam.com islam.com ; Islamic City islamicity.com ; Islam 101 islam101.net ; Wikipedia article Wikipedia ; Religious Tolerance religioustolerance.org/islam ; BBC article bbc.co.uk/religion/religions/islam ; Patheos Library – Islam patheos.com/Library/Islam ; University of Southern California Compendium of Muslim Texts web.archive.org ; Encyclopædia Britannica article on Islam britannica.com ; Islam at Project Gutenberg gutenberg.org ; Islam from UCB Libraries GovPubs web.archive.org ; Muslims: PBS Frontline documentary pbs.org frontline ; Discover Islam dislam.org; Sharia (Islamic Law): Oxford Dictionary of Islam oxfordislamicstudies.com ; Encyclopædia Britannica britannica.com ; Wikipedia Wikipedia ; Sharia by Knut S. Vikør, Oxford Encyclopedia of Islam and Politics web.archive.org ; Law by Norman Calder, Oxford Encyclopedia of the Islamic World oxfordislamicstudies.com ; Sharia Law in the International Legal Sphere – Yale University web.archive.org ; 'Recognizing Sharia' in Britain, anthropologist John R. Bowen discusses Britain's sharia courts bostonreview.net ; "The Reward of the Omnipotent" late 19th Arabic manuscript about Sharia wdl.org; Qur’an (Quran, Koran) and Hadith: Quran translation in English alahazrat.net ; Quran in Easy English, Urdu, Arabic and 70 other languages qurango.com ; Quran.com quran.com ; Al-Quran.info al-quran.info ; Quranic Arabic Corpus, shows syntax and morphology for each word corpus.quran.com ; Word for Word English Translation – emuslim.com emuslim.com/Quran ; Digitised Qurans in the Cambridge University Digital Library cudl.lib.cam.ac.uk ; Sunnah.com sunnah.com ; Hadith – search by keyword and by narrator ahadith.co.uk

Qadis and Muftis

Qadis are Islamic judges. They sometimes acts like bureaucrats and magistrates and are often prominent members of society who also do things like decide how inheritance money will be divided after someone dies. Sometimes they are imam who preach at the local mosque. Sunni judges are known following Islamic law to the letter. Shia judges are more lenient in the ways they interpret the law. Sufis are known for taking a more relaxed view of Sharia.

A mufti is an Islamic legal expert or juriconsultant. They began as assistant to judges. Today many are high ranking legal experts. In many cases they are the ones are consulted or are authorized to adapt laws to new circumstances . They also are allowed to issue fatwas.

Fatwas


anti-tobacco fatwa issued in 1890

A fatwa is an Islamic opinion or decree. They can be issued on all sorts of things: divorce, Ramadan practices, blasphemy and dogs. The most well known one is the one was against Salman Rushdie. Fatwas are usually made by top clerics but this is not always the case. Some Muslim extremists, including Osama bin-Laden, who lack the training of qualified muftis, feel free to issue fatwas, some them calling for death sentences and holy wars against foreigners. This has lead to rival opinion and confusion. In most cases however, lower level authorities defer to their superiors.

Sometimes the political influence on fatwas is more behind the scenes. The Grand Sheik (leader) of Al Azhar, for example, is regarded by many as the top Islamic authority in the Sunni Muslim world. His declarations and opinions on matters ranging from Israel to birth control are given much weight. The only catch is that he is appointed by the Egyptian government and his statements often convey the views of the Egyptian government.

Large numbers of fatwas have traditionally been issued during Ramadan. This custom has become more intense in the Internet Age. IslamOnline, a Cairo-based website created by Yusef Qaradawi, a popular Islamist preacher on the satellite channel al-Jazeera, issues more than 300 a day in Arabic and English, along with questions and responses, during Ramadan.

History of Islamic Legal System

Arthur Goldschmidt, Jr. Wrote in “A Concise History of the Middle East”: “At the dawn of Islamic history, the administration and enforcement of i the law was handled by the caliphs and their provincial governors. Greater complexity of society led to more specialization, and they began to appoint Muslims who knew the Quran and the sunnah (of the caliphs as well as of Muhammad) to serve as quadis or "judges." As the judicial system evolved, an aspiring qadi at first got his training under an experienced master jurist. The schools were instituted in the big city mosques for the training of one (or more) of the various legal rites. The training schools for propagandists of Isma'ili Shi'ism and later the madrasahs founded by the Seljuks and other Sunni dynasties became centers for training judges and legal experts. Students would read the law books and commentaries under the guidance of one or several masters. When they had memorized enough of the information to function as qadis, they would receive certification to practice on their own. [Source: Arthur Goldschmidt, Jr., “A Concise History of the Middle East,” Chapter. 8: Islamic Civilization, 1979, Internet Islamic History Sourcebook, sourcebooks.fordham.edu /~\]


sharia law departmnet at Al-Azhar University in Cairo, one fo the world's oldest universities

“Various other judicial offices also evolved; the mufti ("jurisconsult"), who gives authoritative answers to technical questions about the law for a court or sometimes for individuals; the shahid ("witness"), who certifies that a certain act took place, such as the signing of a contract; and the muhtasib (market inspector), who enforces the Shari'ah in public places. It is interesting to note that the Muslim legal system had and still has no lawyers; that is, opposing parties are not represented by attorneys in court cases. Muslims felt that an advocate or attorney might well enrich himself at the expense of the litigant or the criminal defendant. There were also no prosecutors or district attorneys. In most cases the qadi had to decide on the basis of the evidence presented by the litigants and the witnesses, guided by relevant sections of the Shari'ah and sometimes by the advice of a mufti. /~\

“The caliph was supposed to assure that justice prevailed in the ummah not by interpreting the Shari'ah, but by appointing the wisest and best qadis to administer it. True, many of the Umayyad caliphs flouted the Shari'ah in their personal lives, but its rules remained valid for the ummah as a whole. We must always distinguish between what an individual can get away with doing in his home (or palace, or dormitory room) and what he can do in public, in the possible presence of a police officer. But no Umayyad or Abbasid caliph could abolish the Shari'ah or claim that it did not apply to him as to all other Muslims. When the caliphs could no longer appoint qadis and other legal officers, the various sultans and princes who took over his powers had to do so. When the caliphate could no longer serve as the symbol of Muslim unity, then everyone's common acceptance of the Shari'ah bridged the barriers of contending sects and dynasties to unite Islam. Even when the Crusaders or Mongols entered the lands of Islam and tried to enforce other codes of conduct, Muslims went on following the Shari'ah in their everyday lives. And, to a degree that may surprise some Westerners, they still do. You can go into a bazaar (covered market) in Morocco and feel that it is, in ways you can sense even if you cannot express them, like bazaars in Turkey, Pakistan, or thirty other Muslim countries. A Sudanese student greets me with the same salam alaykum ("peace to you") that I have heard from Iranians and Algerians. The common performance of worship, observance of the Ramadan fast, and of course the pilgrimage to Mecca are all factors unifying Muslims from every part of the world.” /~\

Training for Islamic Scholars

Islamic scholars and judges are generally trained at madrasahs. Most madrasahs are set up for boys, middle school age and above. Students generally arrive after they had attended a maktab or kuttab (Islamic schools for younger children), and had learned Arabic even if it wasn't their first language and had memorized all or large parts of the Qur’an.


Shia mullah studying at a library in Qom, Iran

In these madrasahs students study things like Arabic grammar and early Islamic history but the core of the curriculum is learning to interpret the Qur’an and the hadiths and understanding the principals of Muslim beliefs and jurisprudence. Instruction typically consists of listening to teachers lecture on texts, with students expected to memorize the texts and understand them. Sometimes students are required to demonstrate they have read a certain text and if they do they receive a certificate, saying they have learned it.

The first stage of instruction, which lasts several years, consists of learning the legal code of the Sharia school to which the madrasah is affiliated. Many students go no further than this, but by this time have learned enough to get jobs in the legal profession. Student who go onto to higher levels study principals in which their are multiple interpretations and are still debated. Some write theses on points of law. Those that finishs this stage are qualified to be qadis (judges) or mufti (legal consultants).

Madrasah curriculum in many places is standardized and based on standard textbooks. A distinction is made between “revealed science” and “rational sciences." The revealed sciences include the study of Arabic philosophy, Qur’an and Prophetic tradition, orthodox law and theology. The rational sciences are primarily the study of Arabic language and grammar. As a rule the madrasahs reject modernity and teach a curriculum that is little changed from the 11th century.

Some Islamic schools teach extremist Muslim ideology, anti-Semitism and anti-Americanism. Poor and easily influenced, the students are often cast the West is an evil place with uncaring, decadent people who have manipulated the world in ushc as to cause their problems.

Justice in Arabia in 1890

In “Justice in Arabia” (c. 1890), Colonel L. du Couret wrote: “After the evening prayer, I took my way to the Tower, calling by the way on Seid-Ahmed, with whom in our late ramble I had arranged for an early meeting. "Sidi," said I, addressing him, "I was going to avail myself this evening of your invitation to visit you whenever convenient to myself; but Seid-Abd' el-Rahman having sent word that he expects me after the evening prayer, I called to say that I must defer that pleasure until another time." "It so happens," rejoined Seid-Ahmed, "that I, too, am going to the Tower; for tonight the Nagib sits there in judgment. Every second night after the last prayer, the Nagib dispenses justice to the Marebeys, and this is an evening for the session of a messhouar [tribunal]." [Source: Eva March Tappan, ed., “The World's Story: A History of the World in Story, Song and Art,” (Boston: Houghton Mifflin, 1914), Vol. III: Egypt, Africa, and Arabia, pp. 529-533]

“I proceeded with him to the Tower, where we found the Nagib seated upon his cushions at the door of the vestibule. There, surrounded by his chiefs and a crowd of retainers, he rendered important decisions while smoking his chicha. The audience was a large one, for Seid-Abd' el-Rahman was very popular with his people, owing in great measure, to his accessibility to all. Mussulman, Sabian, or Jew, provided only he was of the country, enjoyed the privilege of access to him at all times to state his case, on which the Nagib at once rendered justice by a decree based upon equity as well as common sense. Seid-Ahmed took the place reserved for him among the members of the tribunal, while for myself, after the interchange of the usual compliments, the Nagib ordered a chibouque to be brought, which he lighted and presented to me with his own hands. Curious to witness an example of the justice of the country, I took up the most convenient position for seeing and hearing, as the audience commenced.

“There were women who complained of ill treatment on the part of their husbands; men who accused their wives of frailty; divisions of inheritance to adjust; thefts and frauds to punish; among all which cases there were two particularly remarkable for the judgments rendered upon them. The first of these cases was one between a katib and a fellah,—that is, a writer and a peasant,—the wife of the latter having been taken away from him by the former, who maintained that he had a claim upon her. The woman declined to acknowledge either the one or the other of them as her husband, or, rather, she acknowledged them both—a view of the case which rendered it decidedly embarrassing. Having heard both sides and reflected a moment, the Nagib said, addressing the claimants, "Leave this woman here, and return in half an hour"; on which the katib and fellah made their salutations and retired.

“The second case was between a fekai and a zibdai, or, in other words, a fruiterer and a butter merchant—the latter very much besmeared with butter; the former clean. The fruiterer said, "I had been to buy some butter from this man, and drew out my purse full of money to pay for the butter he had put in my goulla, when, tempted by the sight of the coins, he seized me by the wrist. I cried "Thief!' but he would not let me go; and thus have we come before you—I squeezing my money in my hand, and he grasping my wrist with his. And now, by Muhammad, our great Prophet, I swear that this man lies in saying that I have stolen his money, for that money is truly mine."

“The butter merchant said, "This man came to buy a goulla of butter from me, and when I had filled it he said, "Hast thou change of an abumathfa [Spanish piaster]?' I searched my pocket, from which I drew out my hand full of money, which I placed upon the sill of my shop, from which he snatched it, and was going off with my butter and my money, when I seized him by the wrist and cried, "Thief!' but in spite of my cries, he refused to return my property to me, and I have brought him hither in order that you may judge between us. And now, by Muhammad, our great Prophet, I swear that this man lies in saying that I have stolen his money, for that money is truly mine."

“The Nagib caused the complainants to repeat their charges twice, but neither of them varied from his first statement. Then said he, after a moment's reflection, "Leave this money here and return in half an hour"; on which the fruiterer, who had all along kept his hold of the money, deposited it in a wooden bowl, brought by one of the guards—and both complainants, having made their salutations, retired.


Al-Shafi'i fiqh hearing


“When they were gone, the Nagib quitted his seat at the door of the vestibule and went up into the fourth story of the tower, taking with him the woman and money in dispute. At the appointed moment he returned with them, and went calmly back to his seat. The parties interested were all present, and the katib and fellah were called up. "Here," said the Nagib, addressing the katib, "take thy wife and lead her away, for she is thine truly." Then, turning to his guards and pointing to the fellah, he said, "Give this man fifty blows of a courbash on the soles of his feet." The katib walked off with his wife, and the guards gave the fellah fifty blows of a courbash on the soles of his feet.

“Next came the fruiterer and the butter merchant in their turn. "Here," said the Nagib to the fruiterer, "here is thy money; verily did you take it from your own purse, and never did it belong to him by whom are you accused." Then, turning to his guards and pointing to the butter merchant, he said, "Give this man fifty blows of a courbash on the soles of his feet." The fruiterer walked off with his money, and the guards gave the butter merchant fifty blows of a courbash on the soles of his feet.

“When the court had risen, I asked the Nagib how he ascertained that the woman was the wife of the katib, and the money the property of the fruiterer. "Nothing more simple," replied he. "You saw how I went up into the fourth story with the woman and the money. Well, when we arrived there, I ordered her suddenly to clean my inkhorn, when, like one accustomed to that work, she at once took it, drew out the cotton from it, washed it properly, replaced it on the stand, and filled it with fresh ink. Then said I to myself, "If you were the wife of the fellah, you never could have cleaned an inkhorn like that; you must be the wife of the katib.'" "Good!" said I, bowing in token of assent. "So much for the woman. And how about the money?" "The money was quite another business," replied the Nagib, smiling with a self-satisfied expression, as he leered at me with a look full of artfulness and craft. "You must have remarked how buttery the butter merchant was and how greasy his hands were in particular. Well, I put the money into a vessel of hot water, and upon examining the water carefully I could not find that a single particle of grease had come to the surface. Then said I to myself, "This money belongs to the fruiterer, and not to the butter merchant; for, had it belonged to the latter, it must have been greasy, and the grease would have shown on the surface of the water.'"

“At this I bowed very low, indeed, and said: "In good faith I doubt whether the great King Solomon himself could have rendered a decision with more sagacity and wisdom." Until then I had always looked upon the tales related to us in the "Arabian Nights" as mere fictions; but on witnessing the delivery of these two judgments, I felt convinced that some of them at least were founded on facts. Of course they are worked up into romances, but they have a basis of reality.”

Muslim Law and Women

Questions about Muslim laws that affect women have traditionally been decided by male clerics. But in some places there are women muftias , overseen by male muftis. One such group ruled that a husband is not obliged to pay his wife's travel expenses if she goes to her parents house without her permission and that trimming one's nails during menstruation is not advisable and decided that the question of whether high heels are allowable required more thought an analysis.

According to Muslim law males and a women's testimony in court, at least on financial matters, hold's half the weight of a man's testimony. Women have traditionally been barred from courtrooms and had to testify through a special window.


Mahkamah sharia courthouse in Aceh, Indonesia


According to Muslim law males receive twice as much in inheritance as females. Under the current system daughters inherit half of what sons gets and if a daughters only the only heir a proportion of the money goes to male relatives not the daughters because according to Islamic tradition men are responsible for taking care of their female relatives. Muslim law also says the blood money for a woman is half that of a man.

See Marriage Contract, Divorce Under MUSLIM MARRIAGE, POLYGAMY, WEDDINGS, THE MARRIAGE CONTRACT AND DIVORCE factsanddetails.com .

Image Sources: Wikimedia Commons

Text Sources: Internet Islamic History Sourcebook: sourcebooks.fordham.edu “World Religions” edited by Geoffrey Parrinder (Facts on File Publications, New York); “ Arab News, Jeddah; Islam, a Short History by Karen Armstrong; A History of the Arab Peoples by Albert Hourani (Faber and Faber, 1991); Encyclopedia of the World Cultures edited by David Levinson (G.K. Hall & Company, New York, 1994). Encyclopedia of the World’s Religions” edited by R.C. Zaehner (Barnes & Noble Books, 1959); Metropolitan Museum of Art, National Geographic, BBC, New York Times, Washington Post, Los Angeles Times, Smithsonian magazine, The Guardian, BBC, Al Jazeera, Times of London, The New Yorker, Time, Newsweek, Reuters, Associated Press, AFP, Lonely Planet Guides, Library of Congress, Compton’s Encyclopedia and various books and other publications.

Last updated September 2018

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