Judicial Bureaucracy: Revisiting Modern Theory for the Study of Islamic Law

By Nahed Samour

Surely, Max Weber was wrong with his assumptions about Kadi-Justice (kadijustiz).[1] He is rightly criticized as a modernization theorist, placing a protestant work ethics at the centre of progress in the modern West, which was picked up to explain a “global envy” of the West and an obsession to imitate it, encouraging other regions to abandon their ways of engaging with their traditions. Returning to Max Weber to understand parts of the Islamic legal tradition thus does not come without risks. However, my interest in the inner-workings of the judiciary, and how professionalization and bureaucratization of Islamic judges emerged, can benefit from other particular experiences, such as those of 20th century Germany, without imitating but never opting against learning from the histories of this world. This contribution is meant to explore modern theory without falling into the traps of the falsehoods of modernization theory. The aim is to explain how Islamic adjudication emerged and found acceptance amongst the population it adjudicated.[2]

Western theories largely addressed bureaucratization as part of the advent of the bureaucratic state of the Enlightenment in the eighteenth century in Europe[3] and as the working modus of the modern state.[4] However, bureaucratization in Islamic political history is a well-known subject.[5] The Islamic use of bureaucratic rather than personal administration to govern had already begun under the Umayyads (r. 41-132/661-750) and possibly even earlier. Despite the recurrent nepotism and corruption among state officials, the early Abbasids (r. 132-247/750-861) can be said to have brought bureaucratic administration to a new level of regularity, familiarity and even independence within society.[6] The bureaucratization of the judiciary would thus fit into a time of overarching bureaucratization tendencies.

Bureaucratization could be one way to explain the rise of Islamic courts in the vast Abbasid administrative empire of the early 2nd/8th century. The idea of bureaucratization is to “advance the development of more complex and differentiated legal institutions and activities” and to reduce autonomy of the individual and the institution.[7] The task of settling legal disputes needed “administrative efficiency” instead of ad hoc steps.[8] A bureaucratized apparatus routinized some tasks, so that officials no longer needed to make working decision every time anew. In fact, this “reiterative authority”[9] is the familiar regime of habit, where through repetition of a series of processes (producing documents and filing being central to these), the bureaucracy establishes its authority. One way to understand bureaucratization is formulating procedural rules and working methods, and securing professional commitments and principles of standards that ultimately create legitimacy.[10]

Max Weber developed five constitutive elements of bureaucratization that can be used to examine the status of the Abbasid judicial bureaucratization. 1) The principle of fixed and official jurisdictional areas, which are generally ordered by higher political authorities through laws or administrative regulations. 2) Regular activities as official duties required for the purposes of the bureaucratically governed structure. 3) Office hierarchy and levels of graded authority as a firmly ordered system of super- and subordination in which there is a supervision of lower offices by higher ones. 4) Bureaucracy based upon written documents (the “files”), which are preserved. To accomplish this, a staff of subaltern officials and scribes is necessary and these officials actively engage in a “public” office, along with the respective apparatus of material and the files to make up a “bureau.” 5) Official activity demands the full working capacity of the official.[11]  Can we apply any of these elements of bureaucratization to the Abbasid case to analyse the workings of the judiciary? Does the Abbasid example provide evidence for a judicial bureaucratic system, with or beyond Weber’s categories, to shape the authority of the judge? Did bureaucratization create systematized legal rules, leading to a judiciary perceived as just?[12]

In my next post, I will analyze the question of regularity in adjudication, with respect to time and space in early Abbasid adjudication.


[1] For a critical biography on Max Weber’s view on Islam and Kadijustiz, see Serdar Aslan, “Max Weber (1864-1920) (Bibliographie),” Islam Akademie, June 13, 2017, https://www.islam-akademie.de/islamwissenschaften/bibliographie-terminologie/341-max-weber-1864-1920-bibliographie. On how Kadijustiz wrongly became a metaphor for judicial arbitrariness and formal rationality, without being substantiated by historic scholarship, see also Intisar A. Rabb, “Against Kadijustiz: On the Negative Citation of Foreign Law,” Suffolk University Law Review 48 (2015): 343-77.

[2] Nahed Samour, “A Critique of Adjudication: Formative Moments in Early Islamic Legal History,” in Justice and Leadership in Early Islamic Courts, eds., Intisar A. Rabb and Abigail Krasner Balbale (Cambridge, MA: Harvard Harvard University Press, 2018), ,44-66; Nahed Samour, “Autoritäten im Recht – Islamische Justizforschung,” in Wege zur Rechtsgeschichte, eds., Thomas Pierson, Peter Oestmann and Thorsten Keiser (Böhlau Verlag: forthcoming 2022), 320-37.

[3] F. Ranieri, “Vom Stand zum Beruf,” Ius commune 13 (1985): 83-105; Dietrich Rueschemeyer, “Comparing Legal Professions Cross-nationally: From a Professions-centered to a State-centered approach,” American Bar Foundation Research Journal (1986): 438.

[4] Susanne Baer, Rechtssoziologie: Eine Einführung in die interdiziplinre Rechtforschung (Nomos, 2021), 123.

[5] For a treatment of administrative bureaucracy in Islamic history, see Paul Heck, The Construction of Knowledge in Islamic Civilization (Brill, 2002), 60-79.

[6] Paul Heck, “The Role of Law in ‘Abbasid Political Thought. From Ibn al-Muqaffa‘ (d. 139/756) to Qudāma b. Ja‘far (d. 337/948),” Academia.edu (2004): 86.  Administrative bureaucracy rose to a high level under Abbasid government secretaries (kuttāb), the Barmakids, under the reign of caliph al-Mahdī.  See Hugh Kennedy, The Early Abbasid Caliphate: A Political History (Routledge 1981), 101, 117.

[7] On bureaucracy as a response to complexity in administration, see Max Weber, Wirtschaft und Gesellschaft (Tübingen 1980), 560; S. N. Eisenstadt, The Political System of Empires (New York: Free Press of Glencoe, 1963), 137-38; Baer, Rechtssoziologie, 125.

[8] Similarly, Noel J. Coulson, A History of Islamic Law (Edinburgh University Press, 1964), 28.

[9] Ilana Feldman, Governing Gaza: Bureaucracy, Authority and the Work of Rule,  1917-1967 (Duke University Press, 2008), 14-20. Feldman uses “reiterative authority” to show how the authority of writing produces the authority of bureaucracy.

[10] Hans Albrecht Hesse, Berufe im Wandel: Ein Beitrag zum Problem der Proffessionalisierung (Enke 1972), 125.

[11] Weber, Wirtschaft und Gesellschaft, 126-30, 551-52, 553-79.

[12] On the relationship of bureaucratization and the legal professionals see, Rueschemeyer, “Comparing Legal Professions,” 107.

(Suggested Bluebook citation: Nahed Samour, Judicial Bureaucracy: Revisiting Modern Theory for the Study of Islamic Law, Islamic Law Blog (Feb. 17, 2022), https://islamiclaw.blog/2022/02/17/judicial-bureaucracy-revisiting-modern-theory-for-the-study-of-islamic-law/)

(Suggested Chicago citation: Nahed Samour, “Judicial Bureaucracy: Revisiting Modern Theory for the Study of Islamic Law,” Islamic Law Blog, February 17, 2022, https://islamiclaw.blog/2022/02/17/judicial-bureaucracy-revisiting-modern-theory-for-the-study-of-islamic-law/)

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