By Nahed Samour
Bureaucratization demands regular activities and official duties. These duties are a central aspect of a bureaucratically governed structure. Regularity is important particularly in the application and adjudication of the law so as to minimize arbitrariness.[1] Regularity can create transparency, accessibility, and accountability, and thereby add to adjudicative authority within a bureaucratically established structure.[2]
Times of Adjudication
The times of adjudication were, despite the granted professional and organizational autonomy of the judge, discussed in the adab al-qāḍī literature.
These texts indicated that the judge was in principle free to hold court sessions as often as he saw fit. Qāḍīs probably did not hold court every day, at least we know judge Abū Khuzayma (d. 154/771) in Egypt to have taken less salary on the day he instead of adjudicating washed his clothes, went to a funeral, or engaged in his additional business.[3] Some judges held court sessions “only twice a week.”[4]
As for court holidays, Khaṣṣāf ( d. 261/874) mentioned that during the time of Abū Ḥanīfa (d. 150/767), Saturday was prescribed as a court holiday, while during al-Khaṣṣāf’s time, either Monday or Tuesday was prescribed off, and it was for the qāḍī to ascertain which of these days was to be observed.[5] Religious holidays as well as Fridays were also observed.[6] Court sessions were thus held rather regularly, probably several times a week.
Khaṣṣāf even made recommendations for the court hours during the day. For instance, he did not approve of the administration of justice in the early morning and in darkness.[7] Especially where mosques were used as seats of justice, the timing of obligatory prayer was of help when fixing the working hours of the court. There would be a break for the midday prayer (ẓuhr), perhaps also serving as a lunch break. Then there was another break for the afternoon (῾aṣr) prayer, and either the afternoon (῾aṣr) or the sunset (maghrib) prayers suspended the business of the court for the day.[8]
The timing of adjudication and its regularity was thus a concern dealt with in a way that was probably familiar to the general public. It thereby was ensured that regular service hours of adjudication served those seeking justice. Also, the regularity of the court hours helped to structure the profession and office of the judge.
Spaces of Adjudication
Much more controversy sparked the question of the location of adjudication. The space of adjudication, and thereby spatial authority ascribed to the judge, is crucial for the visual impression of adjudication and the judge. In fact, the actual place of the bureau, or desk, emerged as a key marker for the theory of bureaucratization.[9]
Weberian discussions focused on the separation of the bureau from the private domicile of the official, following the idea that bureaucracy segregates the official activity as something distinct from the sphere of private life.[10] Weber hoped that the distinction between private and public would add to the rationality of the working modus, and that it would reduce arbitrariness and partiality, and de-personalize (judicial) administration.
Muslim jurists, however, instead examined the question of whether the sacredness of the mosque was suitable for adjudication or whether a home or a third space would be more appropriate. During most of Islamic legal history, there was no court building, courthouse or courtroom, that is, any specifically segregated and specified space for adjudication.[11] This was why rather than “court,” the notion of “court session” (majlis al-ḥukm or majlis al-qaḍāʾ) was more precise in capturing the activity of adjudication rather than the place of it. Literally, majlis means a place where one sits. Majlis al-qaḍā’ means the place where the activity of the adjudication (qaḍā’), whose agent is the qāḍī, occurs.[12]
The home of the arbitrator (ḥakam) was probably the early place of dispensing justice from before the coming of Islam.[13] People would seek the arbitrator in his home ad hoc when a problem occurred rather than turning to a state-appointed judge with fixed court session hours.[14] Given that the arbitrator still applied laws after the coming of Islam and next to the qāḍī, the tradition of seeking justice at someone’s home was still prevalent. In fact, homes played an equally important role in both adjudication and teaching.[15] Houses of well-to-do people in Baghdad were divided into a family portion (ḥaram) and the sitting room in which to receive the (mainly male) public.[16] Similarly to the teaching activities, adjudication at the home of the judge could and would take place in their homes.[17] It is also known that adjudication took place at their homes’ doorsteps.[18] Both sites, in and in front of the judge’s house, were presumably open to the litigants and the interested public at all regular day times.
The mosque was a space much more often mentioned for adjudication. From the days of the Prophet, mosques (sing. masjid) played important roles as public spaces in Muslim societies.[19] The mosque functioned as a community house, serving as a place for worship, educational purposes and for the gathering of scholars as well as for the qāḍīs’ sessions of adjudication (sing. majlis).[20] According to Wakī (d. 306/918) most of the judges used mosques as courts for adjudication.[21] Judges would be sitting in a part of the mosque, usually on a prayer rug.[22] As a third place that was neither home nor mosque, judges have made judicial decisions in the marketplace,[23] and even on the roadside.[24]
The juristic debate about the right locality for adjudication was mainly held between Ḥanafīs, Mālikīs, and Ḥanbalīs on the one hand, who argued for the mosque as a place of adjudication, and Shāfi῾īs on the other, who were against adjudication in the mosque.[25] For the former, the mosque was seen as the preferable place of adjudication, especially for the Ḥanafīs.[26] The chief mosque was the place of assembly par excellence, accessible to all and thus guaranteeing public presence. The places of adjudication were also accessible for non-Muslims: Christians, for example, could enter the mosque for litigation; previously, the judges had reserved a day for them in their homes. [27] As for women, no legal restrictions on the appearance before a judge existed. The regular appearance of female litigants before the court seems to confirm this rule.[28] However, some prevailing social norms discouraged some women from appearing in court.[29] Also, non-Arabic (some of them possibly foreign and non-Muslim) speaking litigants would be provided with an interpreter to allow them to seek justice before a qāḍī.[30]
Shāfi῾ī takes a different stand.[31] He recommended that the judge (uḥibbu lil-qāḍī) adjudicate at a location accessible to all. He initially neither mentioned the mosque nor the judge’s home but stressed that the judge’s court session should be held in the middle of the city. But then Shāfi῾ī became more specific and advised the judge not to dispense justice in the mosque, as too many people would be coming for reasons other than what the mosque was built for. The judge should speak justice at an appropriate and comfortable place where the judge would not get quickly tired. Shāfi῾ī added that while he considered adjudication in the mosque to be repugnant (makrūh), he regarded the execution of the ḥadd punishment (largely corporal punishments) in the mosque as even more repugnant. For Shāfi῾ī, this practice went against the sanctity of the mosque, which was a reason for Shāfi῾ī to discourage the use of mosque premises as courts.[32]
Thus, parallel to the discussion of the question of the right locality for adjudication, the question of the right locality for punishment, especially the ḥadd punishment involving corporeal sentences occurred. However, it seemed that the execution of the punishment in the mosque was practiced, as many cases demonstrate. [33]
While Shāfi῾ī was against the mosque as place of adjudication as a widespread practice, it remained unclear if Shāfi῾ī prefers the judge’s home or a third, neutral venue. Shāfi῾ī instead stresses accessibility and the non-sanctified character of a building, providing it with an impartial structure.
The Muslim juristic debate showed that prime considerations for locations at which to hold court were that they be accessible and societally appropriate.[34] Accessibility was key for the office to be held regularly. Being appropriate was important for an official public structure to prevent voyeuristic interests, according to Shāfi῾ī. Muslim scholarly definitions and practices of regular activities, such as official duties, entailed accessibility, publicity, transparency and judicial accountability, and were principally safeguarded on a locally convenient and time-convenient basis. Both a judge’s centrally located home and even more the chief mosque were places that must have been central and easy to locate. The qāḍī’s court, most often held in the chief mosque of the city, served as public space par excellence; no one was legally restricted from filing a complaint, or simply hearing others’ complaints in the mosque.[35]
The bureaucratic authority of the judge benefitted from adjudication organized as an accessible, public, and transparent institution. For a judge to adjudicate in the mosque, the religious implications of his actions were clear, despite the fact that the mosque served as multi-functional place for both devotional and non-devotional functions.
Notes:
[1] Susanne Baer, Rechtssoziologie: Eine Einführung in die interdiziplinre Rechtforschung (Nomos, 2021), 125.
[2] On bureaucracy and the benefit of accountability, see Max Weber, Wirtschaft und Gesellschaft (Tübingen 1980), 562-63.
[3] Al-Kindī, Kitāb al-Wulāh, 363.
[4] Ṭanūkhī, Nishwār al-Muḥādarah, trans. David Margoliouth, The Table-Talk of a Mesopotamian Judge (The Royal Asiatic Society, 1921-1922), 209.
[5] Khaṣṣāf, Adab al-qāḍī, I, 63.
[6] The days of ῾Īd al-Fiṭr celebrating the end of the month of Ramadan and ῾Īd al-Aḍḥā, commemorating Abraham’s willingness to sacrifice his son for God as well as the day of ῾Arafāt (ninth day of the month Dhū’l-Ḥijja). Besides these, the so-called muṭayr were also considered holidays. Khaṣṣāf, Adab al-qāḍī, 47.
[7] Ibid. 47-66.
[8] Ibid. 66.
[9] On the bureau as the origin of the theory of bureaucratization, see Baer, Rechtssoziologie, 126.
[10] Weber, Wirtschaft und Gesellschaft, 552.
[11] Wael B. Hallaq, “The qaḍī’s dīwān (sijill) before the Ottomans,” Bulletin of the School of Oriental and African Studies 61, no. 3 (1998): 418.
[12] Wael B. Hallaq, The Origins and Evolution of Islamic Law (Cambridge: Cambridge University Press: 2005), 59.
[13] Irene Schneider, Das Bild des Richters in der adal al-qadi-Literatur (Peter Lan, 1990), 59 considers the first place of adjudication the home, and then the mosque, while Emile Tyan, Histoire de l’organisation judiciare en pays d’Islam, (Brill, 1960), 75 thinks that from the beginning of Islam, the mosque right away was the place of adjudication.
[14] Schneider, Das Bild des Richters, 59.
[15] Educational activities were often pursued at homes of scholars. See Munir-ud-Din Ahmed, Muslim Education and the Scholars’ Social Status unto the 5th Century Muslim Era (11th Centiry Christian Era) in the Light of Ta‘rīkh Baghdad (Zurich: Der Islam,1968), 135-140 (serving also as place of muftī activities (futya)).
[16] See ibid. 136.
[17] Wakīʽ, Akhbār al-quḍāt, I, 275; According to Wakī῾, Akhbār al-quḍāt, II, 316, Qāḍī Shurayḥ held sessions at home when the weather was cold, when it was warm he sat in the mosque. See Kindī, Kitāb al-Wulāh, 428. The judge started adjudicating at home after the rug he used to hold his court sessions on in the mosque was thrown out by the people.
[18] Wakīʽ, Akhbār al-quḍāt, III, 307.
[19] For an overview, see Robert Hillenbrand’s contribution to the Encyclopedia of Islam on masjids.
[20] On mosques as educational institutions, see, for example, Ahmed, Muslim Education,115-34, who lists 57 mosques in Baghdad during the early and mid-Abbasid period, their precise locations, their local or widely traveled scholars from far-off who used to teach in each mosque, and—in cases where documented—the subject- matters that were taught.
[21] Wakī῾, Akhbār al-quḍāt, I, 145, 162; II, 22, 125, 303, 316, 427, 428; III, 28, 36, 69, 135, 168, 250, 251, 283, 306; al-Kindī, Kitāb al-Wulāh, 378, 443-44. Schneider, Das Bild des Richters, 56.
[22] On the precise location of the judge’s session in the mosque, see, for example, al-Kindī, Kitāb al-Wulāh, 375 (see Ch. 4, I.3.b.bb. on spatial aspects of adjudication).
[23] Wakī῾, Akhbār al-quḍāt, I, 399; III, 206; M. Khalid Masud, “A Study of Wakī‘s (d. 306/917) Akhbār al-Quḍāt,” in The Law Applied: Contextualizing the Islamic Shari‘a: A Volume in Honor of Frank E. Vogel, ed., P. Bearman and others (London 2008), 122.
[24] Wakī῾, Akhbār al-quḍāt, I, 333; Masud, “The Study of Wakī῾’s,” 122.
[25] Schneider, Das Bild des Richters, 56-57.
[26] Khaṣṣāf, Adab al-qāḍī, sec. 79-80, 84-86.
[27] On the accessibility of mosques to Christians, see al-Kindī, Kitāb al-Wulāh, 390, introduced by Qādī Masrūq al-Kindī as innovation.
[28] Female litigants, some even with a demanding manner, it seems, were mentioned regularly in the judicial chronicles. For an overview of the cases they brought to court as litigants, see the table in Mathieu Tillier, “Women before the qāḍī under the Abbasids,” Islamic Law and Society 16, no. 3-4 (2009): 292-93. Their demanding manner might well be indicative about their social class.
[29] Tillier, “Women before the qāḍī,” 281, 297-300. Ritually, they were not expected to enter mosques when they were menstruating. On ritual and social conventions establishing obstacles for women entering mosques, see A. Kevin Reinhart, “When Women Went to Mosques: al-Aydini on the duration of assessments,” in Islamic legal interpretation: Muftis and their fatwas, eds., M. K. Masud, B. Messick and D. S. Powers (Cambridge: Cambridge University Press, 1996), 116-27; Melchert, “Whether to Keep Women out of the Mosque: A Survey of Medieval Islamic Law,” in Authority, Privacy, and Public Order in Islam, eds., B. Michalak-Pikulska and A. Pikulski (Peeters Publishers, 2006), 59-70.
[30] On interpreters as court staff, see Shāfi῾ī, Kitāb al-umm, VI, 220.
[31] Ibid. VI, 214-15.
[32] This debate was further picked up by other schools of law, see Raha Rafii, “The Judgeship And The Twelver Shīʿī Adab Al-Qāḍī Genre, 11-14th Centuries C.E.” (PhD diss., University of Pennsylvania, 2019).
[33] Qāḍī Sa῾īd b. Ibrahīm is only one judge documented who executed punishment in the mosque. See Wakī῾, Akhbār al-quḍāt, I, 162; Masud, “The Study of Wakī῾’s,” 122. On Judge Ibn Abī Layla ordering the execution of the ḥadd punishment in the mosque, see Wakī῾, Akhbār al-quḍāt, III, 135. See also Wakī῾, Akhbār al-quḍāt, III, 415, were the ḥadd punishment was executed by the governor in the mosque.
[34] Hallaq, “The qaḍī’s dīwān,” 418.
[35] Tillier, “Women before the qāḍī,” 281.
(Suggested Bluebook citation: Nahed Samour, Adjudication as Official Duty: Regular Activities in a Bureaucratically Governed Structure, Islamic Law Blog (Feb. 24, 2022), https://islamiclaw.blog/2022/02/24/adjudication-as-official-duty-regular-activities-in-a-bureaucratically-governed-structure/)
(Suggested Chicago citation: Nahed Samour, “Adjudication as Official Duty: Regular Activities in a Bureaucratically Governed Structure,” Islamic Law Blog, February 24, 2022, https://islamiclaw.blog/2022/02/24/adjudication-as-official-duty-regular-activities-in-a-bureaucratically-governed-structure/)