QADI Throughout Islamic history authority to judge cases between Muslims under the shari `ah was vested in the post of qadi, the single judge of the mahkamah court. Unlike jurisprudents (fuqaha’), qadis did not delve into the sources of the share `ah but referred to recognized law books on subjects considered to fall under religiously sanctioned law. Although the qadi’s jurisdiction was fairly general, certain areas such as serious criminal offenses often came instead under the secular jurisdiction of executive rulers.
Although a kind of hierarchy apparently existed within the judicial branch of Islamic governing authority, no institutions for appeal existed. The ‘Abbasid caliph Harun al-Rashid, around Boo CE, is said first to have recognized the qadi of Baghdad as the qadi al-quddt or “judge of judges.” Such recognition did imply jurisdictional superiority but related more to administrative aspects of mahkamah activities, especially the nomination and appointment of qadis. Originally the qddi alqudat presented potential nominees for the caliph’s consideration; later he assumed the responsibility of making appointments or dismissals himself.
Political breakup within the core Islamic region led to different claims of legitimacy in the appointment of qadis. For example, as early as the establishment of Umayyad authority in Islamic Spain in the mid-eighth century, the post of qadi al -jama `ah was created out of the already existing regional function of the qadi al fund qadi, of a military command district). In time, especially after the Fatimid countercaliphate was founded in 969, the appointment of regional qddis was assumed not only by regimes that rejected the Baghdad caliphs’ responsibility but also by loyal but politically and dynastically distinct provincial regimes.
The process of differentiation was strengthened by the evolution of four different orthodox schools of Islamic law (madhhabs). Each school recognized the others as acceptable interpretations of Islamic law, but the preference of local political authorities might grant precedence to the qadi, of the preferred school. Thus the Tunisian beys appointed qadis. committed to Maliki law-a carryover from pre-Ottoman Hafsid times. In such regions, the Ottoman Shaykh al-Islam would appoint Hanafi qadis. who might serve both in a second string of local mahkamahs, but also alongside Maliki judges on a court (known in Tunisia as the majlis al-shari’i) responsible for deliberating on matters of Islamic law relating to government policies.
Beginning in the 1830s, the reforms of the Tanzimat introduced changes that gradually distinguished the areas of law susceptible to secular codification from Nizamiyah jurisdiction over civil matters (especially contracts for business or credit). Limitation of the qadi’s jurisdiction occurred at varying rates depending on regional political characteristics. At the Ottoman imperial level, conservative reformers around the head of the Tanzimat Council, Mustafa Resid, would have preferred to use a somewhat eclectic model of Islamic legal precedents to design a general civil code (the Mecelle), thus maintaining a framework within which judges trained as qadis could continue in a secularized and partially westernized system. Where the westernizing tendency was strongest, there arose secular alternatives to the mahkamah, together with changes in the secular professional qualifications required of judges.
The clearest case is Egypt during and just after the Tanzimat period. In the 1860s a system of majalis mahalliyah (local councils) assumed jurisdiction over a wide range of cases that–even though not yet covered by specific secular codes-were deemed inappropriate for religious judgment, whether that of the qadi, or of the Jewish or Christian jurisdictions traditionally guaranteed under the Ottoman millet system. Early in this transition to alternative, and then to officially required non-mahkamah jurisdictions, such majalis could include representatives of the Islamic religious community to consult on overlapping areas of law. Increasingly, however, separate jurisdictional authority over most civil and penal matters was extended throughout the Ottoman Empire. However, at least until drastic secular reforms were adopted by the Turkish Republic and imposed in other formerly Ottoman areas in the interwar period, personal status cases (for example, issues of marriage, divorce, and guardianship) remained under the qadis. jurisdiction well into the twentieth century.
BIBLIOGRAPHY
Antoun, Richard T. “The Islamic Court, the Islamic Judge and the Accommodation of Traditions: A Jordanian Case Study.” International Journal of Middle East Studies 12 (198o): 456-467.
Escovitz, J. H. “Patterns of the Appointment of Chief Judges of Cairo during the Bahri Mamluk Period.” Arabica 30 (1983): 147-168. Gibb, H. A. R., and Harold Bowen. Islamic Society and the West. Oxford and New York, 1962. See vol. 1, part 2, pp. 121-133. Schacht, Joseph. “Law and Justice.” In P. M. Holt et al., ed., The Cambridge History of Islam. Cambridge, 1970. See vol. 2, pp. 539568.
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