An Introduction to Islamic Law (11 page)

Whereas the great majority of disputes in industrial societies are nowadays resolved by state-instituted courts of law or arbitration regulated by state law, typically pre-industrial societies, and certainly those of Islam, were only marginally subject to government intervention. To put it slightly differently, in pre-modern Islamic societies, disputes were resolved with a minimum of legislative guidance, the determining factors being informal arbitration and, equally, informal law courts.

Furthermore, it appears to be a consistent pattern that, wherever mediation and law are involved in conflict resolution,
morality and
social ethics are intertwined, as they certainly were in the case of Islam in the pre-industrial era. By contrast, where they are absent, as they are in the legal culture of Western and, increasingly, non-Western modern nation-states, morality and social ethics are strangers. Morality, especially its religious variety, thus provided a more effective and pervasive mechanism of
self-rule and did not require the marked presence of coercive and disciplinarian state agencies, the emblem of the modern body-politic.

In speaking of the “legal system,” it would be neither sufficient nor even correct to dwell on the
law court as the exclusive vehicle of conflict resolution. In any system, what goes on both outside the court and prior to bringing litigation before it are stages of conflict resolution that are just as significant to the operation of the legal system as any court process. This is particularly true in closely knit social structures, such as traditional Islamic societies, where groups tended to manage conflicts before they were brought before a wider public forum, mainly the law court. It was within these groups, from Malaya to Morocco, that the initial operation of the legal system began, and it was through the continued involvement of such groups that the Muslim court was able to accomplish its task of conflict resolution. For, as we shall see, it was inconceivable for the Muslim court in particular to process claims regarding disputes without
due consideration of the moral sensibilities and communal complexities of the social site from within which a dispute had arisen.

Disputes occurring prior to and outside the court’s involvement thus centered in the various small communities which made up Muslim societies. The
extended family, the clan and the tribe constituted the core and kernel of social existence, even when they happened to be intersected by other social orderings. Small villages predominantly consisted of these units, but in towns and cities other units of social coherence shared the demographic landscape. The neighborhood, an important unit of social organization, constituted a sort of corporate group that was at times based on kinship, but at others on religious or other unifying ties. The neighborhoods of the Christians, Jews, immigrant communities (Armenians, Maghrebites, Franks), as well as the guilds of the tanners, soap-makers, porters, physicians, copper merchants and the like, were fixed presences in Muslim cities. Each neighborhood consisted of dozens, even hundreds, of families and houses, with shops, public facilities, a house of worship, a school, a public bath, a public fountain, and several small streets or alleys connected to a main road. The neighborhood was usually contained within walls, with guarded gates at the points leading to the main roads of the city.

It was the extended family that constituted the unshakable foundation of social existence and, as such, its members always stood in a relationship of solidarity with each other. The family not only constituted an economic unit of production, but provided lifetime security for its members. The family, in other words, defined much of human relationships, and made an investment not only in the well-being of its individual members but also in ensuring their moral and legal compliance; for “it was commonly accepted that they could suffer when a member of the group offended . . . In the words of a Malay text, ‘Parents and children, brothers and sisters, share the same family fortune and the family repute. If one suffers, all suffer.’”
¹

Even before the appearance of corporate
professional guilds under the
Ottomans of the fifteenth and sixteenth centuries (guilds which further enhanced the inner groups’ dynamics of mediation and conflict resolution), the extended family, clan, religious communities, neighborhoods and the various loosely organized professions all provided extensive social networks for informal conflict resolution. Many private disputes, such as spousal discord and disagreements over joint family property, were often
mediated by the head of the household or an authoritative figure in the clan or neighborhood.
Village imams, as well as the elders of nomadic, semi-nomadic and settled tribes, commonly appear in court records as having intervened as arbitrators in disputes prior to the arrival of the case before the judge. As much under the Ottomans as under the
Malayan Laws of 1667 (
Dato Sri Paduka Tuan),
village elders were to report to authorities any and all crimes that might disrupt public order or the life of the community
. But these elders also played a crucial role in mediation and conflict resolution. Indeed, many court cases in which the claimants’ evidence was inconclusive were resolved (often at the recommendation of the judge) by such mediators during the process of litigation, and before the judge passed sentence. At times, the “
PEACEMAKERS
” would be relatives of the claimant and/or defendant or simply residents of the same neighborhood. At others, these peacemakers were officials of the court, specifically appointed to carry out this particular task. Cases were often dismissed by the judge when mediators from within or without the court were successful in settling the dispute
.

The legal maxim “
AMICABLE SETTLEMENT
is the best verdict” represents a long-standing tradition in Islam and Islamic law, reflecting the deep-rooted perception, both legal and social, not only that arbitration and mediation are integral to the legal system and the legal process but that they even stand paramount over court litigation, which was usually seen as the last resort. In a society that viewed as sacrosanct all family relations and affairs, disputes involving intimate and private matters were kept away from the public eye and scrutiny. For every case that went to court – and these were countless – many more were informally resolved at the local level, with the intervention of the
elders, the
imam, the household matriarch, or others of equal prestige and authority. Informal mediation was also necessary in order to avoid the escalation of conflict. In communities that heavily depended on group solidarity and in which the individual was defined by his or her affiliation to larger group-units, private disputes had great potential for becoming “expandable into political disputes between competing groups.”
²
If the sanctity of family was paramount, it was so also because it constituted an integral part of a larger consideration, namely, the maintenance of social harmony. Attending to and eliminating disputes at the most local level preempted the escalation of disputes that might have disrupted such harmony
.

In
chapter 1
, we noted the role Muslim judges played in resolving disputes through informal arbitration and through the court process. Like arbitration, the court process was never remote from the social world of the disputants. It was embedded in a social fabric that demanded a
moral logic of social equity rather than a logic of winner-takes-all resolutions. Restoring parties to the social roles they enjoyed before appearing in court required social and moral compromise, where each party was allowed to claim at least a partial gain. Total loss was avoided wherever possible, and was usually only countenanced when a litigant had caused an irreparable or serious breach of social harmony and the moral code.

In this system, judges cared less for the application of a logically consistent legal doctrine or principle than for the creation of a compromise that left the disputants able to resume their previous relationships in the community and/or their lives as these had been led before the dispute began. But even when this was not possible, and even when the victim recovered all damages, the wrongdoer was also usually allowed a partial recovery of his moral personhood, for, by the informal nature of the Muslim court, the parties and their relatives, neighbors and friends were allowed to air their views in full and without constraint, defending the honor and reputation of one litigant or the other.

Such a collective and public expression permitted even the loser to retain some moral dignity, for this defense explained and
justified
the compelling circumstances under which wrongdoing had taken place. This amounted to a moral exoneration that could, in the community’s imagination, border on the legal. For although the actual legal punishment here may have been inevitable, the circumstantial compulsion under which the wrongdoing occurred left the loser and, particularly, his relations (who were both the moral extension and moral predicate of the culprit and who would have to leave the court to resume their communal lives) able to retain sufficient dignity to allow them to function in the normative and morally structured social world. The moral foundations of such a reinstatement constituted the means by which the court – with its socially oriented structure – fulfilled one of its chief tasks, namely, the preservation of social order and harmony.

Social equity, which was a major concern of the Muslim court, was defined in moral terms, and it demanded that the morality of the weak and underprivileged be accorded no less attention than that attributed to the rich and mighty. As the former undoubtedly saw themselves (and were seen) as equal members of the moral community, the court had to afford them the same kind of treatment it did the latter, if not even more
attentively. It was particularly the court’s informal and open format that permitted the individual and defenders from within his or her micro-community to argue their cases and special circumstances from a moral perspective. But it was also the commitment to universal principles of law and justice that created a legal culture wherein everyone expected that injustices against the weak would be redressed and the wrongdoing of the powerful curbed. This was an expectation based on a centuries-long proven practice where peasants almost always won cases against their oppressive overlords, and where Jews and Christians often prevailed in court not only over Muslim business partners and neighbors but also against no less powerful figures than the provincial governor himself.

The Muslim court thus afforded a sort of public arena for anyone who chose to utilize that space for his or her defense. The highly formalized processes of the modern court and its structure of legal representation (costly and tending to suppress the individual voice of the
litigants, let alone their sense of morality) were unknown to Islam. So were lawyers and the excessive costs of litigation that prevent the weak and the poor from pressing their rights. The Muslim court succeeded precisely where the modern court fails, namely, in being a sanctified refuge within whose domain the weak and poor could win against the mighty and affluent. A case in point was
women. Considerable recent research has shown that this group received not only fair treatment in the Muslim court but also even greater protection than other groups. Taking advantage of largely unrestricted access to the court in litigating pecuniary and other transactions, women asserted themselves in the legal arena in large numbers and, once there, they argued as vehemently and “volubly” as men, if not more so.
³
Protected by a moral sense of honor and sanctity, they asserted their rights and privileges within the court as well as outside it. And when legal doctrine proved restrictive toward them – as it sometimes did – they developed strategies in response that were recognized and accommodated in the law court
.

That the court was embedded in both society and social morality is attested to by the nature of the court’s social constitution, on the one hand, and by the legal-mindedness of the very society the court was designed to serve, on the other. The
qadi
himself was typically a creature of the culture in which he adjudicated disputes. Embedded in the moral fabric of social relations, he could have no better interest than to preserve
these relations. If mediation and arbitration sought to achieve social equity and to preserve the individual’s sense of morality, the
qadi
had to absorb these imperatives into his court and accommodate them within a normative legal framework. Every case was considered on its own terms, and defined by its own social context. Litigants were treated not as cogs in the legal process, but as integral parts of larger social units, structures and relations that informed and were informed by each party to a case.

The
qadi
’s accommodation of
litigants-as-part-of-a-larger-social-relationship was neither the purely customary mode of negotiation (prevailing in the pre-trial stage) nor the black-and-white, all-or-nothing approach (mostly prevailing in systems where the judge is socially remote from the disputants). Rather, the
qadi
mediated a dialectic between, on the one hand, the social and moral imperatives – of which he was an integral part – and, on the other, the demands of legal doctrine which in turn recognized the supremacy of the unwritten codes of morality and morally grounded social relations.

Yet the
qadi
was not the only socially linked official in the court. All other functionaries, most notably the witnesses and the court officials, shared the same social and moral landscape. Much of the work of the court related not only to the investigation of events but also, and perhaps more importantly, to that of the moral integrity of the persons involved in litigation or in these events.

One of the
qadi
’s primary duties was to recruit court officials (called
CERTIFYING-WITNESSES
) who possessed moral integrity and who themselves were in turn charged with the task of assessing the moral worth of people involved in a particular litigation, primarily situation-witnesses appearing on behalf of the litigants. The function of certifying-witnesses, who were fixtures of the court (unlike situation-witnesses), would have been rendered impossible without local knowledge of existing customs, moral values and social ties. Impossible not only because the knowledge of others would be inadequate and insufficient but, more importantly, because the credibility of the testimony itself – the bedrock of adjudication – would cease to be both testable and demonstrable. For moral trustworthiness – the foundations of testimony – constituted a personal moral investment in social ties. To lie meant in effect to risk these ties and, in turn, to lose social prestige, honor and all that was productive of life’s networks of social obligations.

Each case was inscribed into the minutes of the court, and attested at the end of the minute by certifying-witnesses whose number ranged from two to several. Although these witnesses, retained and paid by the court, hailed usually from the higher social classes – some of them being prominent jurists and provincial magnates – other witnesses who accompanied
the litigants obviously represented the entire spectrum of social classes in the wider population, particularly the lower strata. Their attestation at the end of each record summing up the case amounted not only to a communal approval of, and a check on, court proceedings in each and every case heard by the court, but also a depository of communal memory that guaranteed present and future public access to the history of the case. In many ways, therefore, these witnesses functioned as community inspectors of the court’s business, ensuring the moral integrity of its procedures, just as their counterparts, the court’s legal experts (usually
mufti
s), ensured the soundness of the application of law
.

Like judges and certifying-witnesses, the
scribe of the court (who wrote down the minutes of court proceedings) was also a member of the local community and himself a jurist of some sort. His ties to the community enhanced the already strong connections between the court and the society which the court was designed to serve. The scribe was instrumental in preserving social and legal continuity between court and society (and it was oftentimes the case that senior scribes were appointed as deputy-
qadi
s)
.

Litigants and consumers of the law appeared before the
qadi
without ceremony and presented their cases without needing professional mediation, for Islamic law had no lawyers. The litigants spoke informally, unhampered by anything resembling the discipline of the modern court. They presented their cases in the way they knew how, without technical jargon. This was possible because in the Islamic system of justice no noticeable gulf existed between the court as a legal institution and the consumers of the law, however economically impoverished or educationally disadvantaged the latter might be. Yet, it was not entirely the virtue of the court and
qadi
alone that made this gap virtually nonexistent, for some credit must equally be given to these very consumers
. Unlike modern society, which has become estranged from the legal profession in multiple ways, traditional Muslim society was as much engaged in the Shar
i system of values as the court was embedded in the moral universe of society. It is a salient feature of that society that it
lived
legal ethics and legal morality, for these constituted the religious foundations and codes of social praxis. To say that law in pre-modern Muslim societies was a living and lived tradition is merely to state the obvious
.

If law was a lived and living tradition, then people knew what the law was. In other words,
legal knowledge was widespread and accessible, thanks to the
mufti
and other
legists who were willing to impart legal knowledge free of charge, and nearly at any time someone wished to have it. The social underdogs thus knew their rights before approaching the court, a fact that in part explains why they won the great majority of
cases in which they happened to be plaintiffs. Their counsels were neither lawyers who spoke a different, incomprehensible language, nor higher-class professionals who exacted exorbitant fees that often made litigation and recovery of rights as expensive as the litigated object.

But the spread of the legal ethic and legal knowledge in the social order was also the function of a cumulative tradition, transmitted from one generation to the next, and enhanced at every turn by the vibrant participation of aspiring law students, the greater and lesser
mufti
s and the imams, and by the occasional advice that the judge and other learned persons dispensed while visiting acquaintances, walking in the street or shopping in the market. Thus when the common folk appeared before the court, they spoke a “legal” language as perfectly comprehensible to the judge as the judge’s vernacular “moral” language was comprehensible to them
. Legal norms and social morality were largely inseparable, one feeding on and, at the same time, sustaining the other. As much a social as a legal institution, the Muslim court was eminently the product of the very community which it served and in the bosom of which it functioned
.