Commentary :: Let’s Lose Lawyers (3-4)

In both Roman and Islamic law, legal representation is not limited to court appearances on behalf of a principal. It is more or less the default in everyday life that men and women (and even children), educated and uneducated, rich and poor—all need to be represented by others, and that need is presumed to arise frequently.

In the previous posts, we noted that a slave business-administrator could end up handling too much business on behalf of his or her master such that s/he would need a representative. In his book on legal agents, Shaybānī attempts to solve cases where slaves needed to delegate to other slaves or freemen the task of tending to their master’s business, contemplating situations where the slave is manumitted while engaged in a transaction, and where and when the administrator of business on behalf of the slave is taken off the business.[1]

The slave business-administrator’s power is not absolute. Here is one limitation: While the aim of all procedure is the arrival at a resolution to conflict, and the settlement (i.e., dropping) of a lawsuit (ul) is encouraged, a representative for a court assignment (wakīl bi-l-khuūma) is not allowed to simply settle the case out of court (ul), if his assignment was a court appearance, not a settlement out of court.[2]

Furthermore, slave business-managers are categorically excluded from setting up a manumission procedure for other slaves of their master (mukātaba) and from loaning money on the master’s behalf.[3] The boundaries of the authority of this business-manager (and court proxy) exactly match those separating the interests of the principal and those of his or her representative.

Aside from the slave business-manager, a spouse may represent the other, expressing the absent spouse’s position. Divorce may be initiated by a wife, students of Islamic law know, if she is willing to offset the benefits she drew from the marriage. A husband may, thus, entitle his wife to divorce herself, and while this standard transfer of divorce power is limited to the time and place in which the transfer of authority is given,[4] this unwitnessed “delegation,” if contested, might be contested in the husband’s absence or after his death. In his absence, a husband may also plan to relieve his wife from their marriage once and for all by writing her to convey a final divorce.  She would then be free to marry another without fear of return to her former husband.  If she is too old to menstruate, one month intervals may be specified to demarcate divorce instances, hence relieving the waiting wife within three months.[5]

Representation of, and involvement in trial of, the absent is a commonly contemplated condition, and it is not such an unsafe conjecture to assume that it was a common occurrence. Representatives of the absent are found in cases covering all areas of law. Works of jurisprudence subsequent to Shaybānī’s, which we have been citing, distill a simple principle for faāla (unauthorized (on-the-spot) representation of the absent), which goes something like this: The condition of “ownership” of a property (in cases of sales and rentals, etc.), and more broadly “standing,” in all cases, is said to affect the application but not the establishment of a contract. An unauthorized representative may contract a sale, marriage, or divorce on behalf of the absent, but the contract carries its effect (it becomes nāfidh) only after approval by the owner or the person with standing.[6]

Legal representation is riddled, like all questions of law, with anomalous cases, such as those involving an apostate (murtadd) and those at the borders between Islam’s abode and its neighboring states. For Abū Ḥanīfa, Shaybānī’s mentor, a Muslim employing an apostate (murtadd) to sell a slave is responsible for the sale if the agent is executed (for apostasy); should the agent revert to Islam, he is answerable to the principal. If an apostate delegates his affair to another, and ends up being executed, the delegation is null. An adult male apostate has a weak, not non-existent, legal personality. For Shaybānī, an apostate is analogous to the sick, whose reverting to Islam restores him to his normal status, not unlike someone who was healed after a sickness. Now, should the apostate remain a non-Muslim subject and migrate from Islam’s abode, he is outside of the jurisdiction of Islam’s laws. This does not apply to a female apostate, who remains capable of delegating her affairs and living as a non-Muslim (after being a Muslim) inside Islam’s abode, because she could not be seen as an enemy combatant.[7] The lines of apostasy, treason, and being an enemy combatant are blurred in Shaybānī’s concept of an apostate. For Abū Ḥanīfa, a Muslim may use as an agent a covenanted or dhimmī (i.e., Jew, Christian, or Zoroastrian) to sell wine to another covenanted but may not himself act as an agent for a covenanted to sell wine to another covenanted or dhimmī.[8]

Before wrapping up this analysis and drawing some limited conclusions, let’s make a few points.

  • The normal space for Islamic law to apply is what anafī jurists called “Islam’s Abode.” This is the land where an argument by a Muslim jurist or scholar of the law had validity. In land governed by, say, a Byzantine prince, this was not the case. The latter is called “The Unbelief Abode.” Now, if Islamic law applies to Muslims living even outside Islam’s abode, though to a very limited degree, the presence of a judge or a lawyer would not be expected. For instance, a non-Muslim woman converting to Islam waits three months (or menstrual cycles) before her marriage to her non-Muslim husband (automatically) dissolves.[9] Outside of the Muslim female’s conscience, there is no clear enforcement mechanism available for this law, despite its significant social consequences.
  • For early anafīs, transferring a case from the Abode of Unbelief to the Abode of Islam was deemed unacceptable. Settlements between Muslim and non-Muslim tradesmen in the Abode of Unbelief are presumed operative among the parties after the business has been brought back to Islam’s Abode, that is, unless and until they are contested. Abū Ḥanīfa and Shaybānī were hesitant to reexamine (i.e., ask a Muslim judge to reconsider) these deals or settlements or investigate their validity in Islam’s Abode.[10]
  • Inside Islam’s abode, one aberrant case, that is the apostate, is subject to competing principles. An apostate (murtadd) may exchange then pawn gold or silver objects (hence flirting with usury). But upon reverting to Islam if he chooses to, he is bound by the same rules applying to Muslims and non-Muslims (whether their residence is permanent or temporary) governed by the laws of Islam’s Abode.[11] That is, actions valid, if taken by a non-Muslim (such as the apostate), are deemed invalid, unavailable to him, after reverting to Islam.

In this environment, many social realities, ugly and otherwise, are handled lawyer-free.  It is not a stretch of metonymy to see the case of the slave market-agent as archetypal of the class of legal representatives, who include relatives, business-partners, neighbors, among others. The slave market-agent is the ideal representative because he is properly bridled. He is not prone to developing interests that diverge from those of his client-master. The restrictions on the activities and authorization of the slave market-agent thus exemplify the restrictions placed on a legal agent.  These restrictions, once again, come from the function a legal representative fulfills. The legal representative expresses the interests of the principal. Hence, a slave may not marry himself, based on an authorization to represent his master (a matter reserved for the master) and may not set up manumission procedures for himself or for another slave of his master. The point behind these rules is that a clear distinction needs to be drawn between the interests of principal and agent. The same logic runs in all cases, where business partners are barred from acting on their partner’s behalf, when it becomes obvious that they acted in their own interest, just as a judge may not benefit himself with his activities as a representative of others, and just as a nuptial representative, for anafīs at least, may also not prioritize his own interests over those of the daughter or sister he represents.

One last note before we conclude. Taking each of us to be a lay proctor representing oneself and those close to us seems to move in the opposite direction of a development to which Howell A. Lloyd (relying on Gaines Post, d. 1987) drew attention when he mentioned that medieval assemblies transferred the idea of a proctor in private matters “into the conducts of public affairs” whereby the representatives “could perform whatever those principals or constituents were competent to do as if the latter had been present.”[12] Our suggestion is a step toward taking, rather than abdicating and delegating, responsibility.


The lawyer in the title of this series is plainly broader in scope than the lawyer-advocate. And when lawyers are on the receiving end of criticism, one thinks of judges just as one thinks of lawyers who represent clients. They are equally vulnerable to the criticism that they may be indistinguishable from ideologues and interest groups. Are all lawyers really bad? On the one hand, I ache to live in a time in which an outlaw made it to the top of the US federal government, then sustained this unlikely position, amply relying on lawyers, including a two-time Attorney General with the antiquated-sounding name “William Pelham Barr.” With this, one may ask, rhetorically, whether one needs to make the case that modern lawyers don’t truly represent and uphold the cause of justice. Today people are rumored to avoid lawyers and assume that the “filthy wealthy” use them more frequently and to immoral ends. In a capitalist society, law naturally protects capital. And it doesn’t help lawyers’ reputation and standing that some of them are themselves capitalists of note. And on and on.

On the other hand, critics of lawyers are conflicted about the need for this stratum of authority. Can they be done without?—no one can be sure. In my view, the lawyerly clique is not presumptively more corrupt than the rest of its society. If lawyers appear to some an ecclesiastical caste, something reminiscent of religion’s fallen authority, the metaphor (carrying skepticism of authority overall) will likely extend to medical doctors. (I am one skeptical patient who frequently wonders whether my doctors bite off more than they can chew.)  It is, perhaps, the fact that lawyers have interests of their own that are separate from those of their clients that makes them most vulnerable to reasonable criticism. But one may also not forget that the nature of the interests of clients themselves are at work.

One irony would be that, if you were to say “let’s lose the lawyers” (or, instead of lose, use that one syllable, four-letter-verb many of us already have in mind reading this), you might need to act like a lawyer long enough to split a hair. Otherwise, you are in for an accusation of inciting violence. You would need to say that you said what you said, but you were only repeating something you heard. You heard, or read, Shakespeare saying it in Henry VI; you heard it said by Dick the Butcher, one of the Bard’s characters in the play.[13] Dick the Butcher wanted to “kill the lawyers,” because they would, if allowed, work to recreate the old regime and defeat Jack Cade, the rebel whom Dick followed. Any new regime needs to get rid of the priests of the old order. “Let’s lose the lawyers” is, thus, shorthand for “let’s reform our current regime and not allow its old iteration to return.”


Notes to part 3:

[1] M.b.H. Shaybānī, Al-Mabsut/Al-Asl vol. XI, at376-381 (Qatar Religious Endowments Ministry/Ibn Hazm Publications ed. 2012) (c. 804-805) (on agency/wakāla).

[2] Id. at 209.

[3] Shaybānī, vol. IX, supranote 1, at 167 and 169.

[4] Shaybānī, vol. IV, supra note 1, at 578.

[5]Id. at 394.

[6] Imam al-Kāsānī, Badā’i‘ al-ṣanā’i‘ vol. VI, at 573-582 (Dar al-Kutub al-Ilmiyya ed. 1990) (c. 1191).

[7] Id. at 269.

[8] Id. at 270.

[9] Shaybānī, vol. IV, supra note 1, at 460. For similar cases and scenarios see id. at 460-464.

[10] Shaybānī, vol. XI, supra note 1, at 154-156.

[11] Shaybānī, vol. III, supra note 1, at 35.

[12] Howell A. Lloyd, Constitutionalism, in The Cambridge History of Political Thought 1450-1700 273 (Cambridge University Press 1991).

[13] See William Shakespeare, The Second Part of Henry the Sixth act 4, sc. 2: Jack Cade says: “I thank you, good people: there shall be no money; all shall eat and drink on my score; and I will apparel them all in one livery, that they may agree like brothers, and worship me their lord.” Then Dick the Butcher delivers the famous line: “The first thing we do, let’s kill all the lawyers.”

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