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Justice and Leadership in Early Islamic Courts

This volume, Justice and Leadership, is a compendium of legal history in the early Islamic period with a focus on the concepts and practices in the judicial discourse of Islam. The volume, which brought different worlds –social, political, and religious– of legal history together, is a beneficial read for students of Islamic law.





Produced in honor of Roy Mottahedeh, a renowned scholar of the intellectual history of the Islamic Middle East, this volume, Leadership and Justice, edited by Instisar A. Rab and Abigail Balbale, brings together new questions and approaches related to the legal landscape in early Islamic history. Drawing upon the divergent sources and research areas, it sets the ground for an interdisciplinary legal approach to understanding how legal procedures function in the early Islamic courts and who the various stakeholders and actors are within them. Focusing on three different contexts in the historical trajectory of Islamic law, it deals with the judicial procedure, the concept of justice, and people and practices. All set within the specific legal contexts, the volume discusses the defining moments in the founding period of Islamic law, then proceeds to explore the “cosmopolitan” contexts of judicial practices set in the early Muslim empires, and finally, delves into an extensive analysis of the “parallel” legal actors in the Islamic West. The volume dwells on the wide array of possibilities in the history –social and political– of judicial procedures in Islam. With separate introductions for each of the three sections, the volume consists of nine fascinating chapters that engage with the distinct problems in Islamic legal history.

Emphasizing theory and practice, the first section of the volume examines various fundamental and legal questions concerning witnesses, evidence, and the political underpinning of judicial procedures, along with the evolution of different debates in the legal discourse in terms of the development of law in Islam. With a focus on the issues of witnesses, Ahmed el-Shamsy provides a “tentative sketch of changes” regarding testimony, its acceptability, and related concerns to legal witnesses “in the aspect of judicial practice over that century” (p. 3). Concerning the distinct characteristics of witness criteria for Muslims and non-Muslims, el-Shamsy’s intervention is in understanding the exclusion and admissibility of the witness in the judicial procedures of the court in the eighth century. To arrive at this problem, el-Shamsy uses many sources and scholarly engagements in both the prophetic and post-prophetic periods to analyze various conflicting interpretations of the exclusion of witnesses.

Dealing with conflicting opinions, he proposes a historical explanation for the issues to demonstrate the possibilities and understand the exclusion in judicial cases in intra-Muslim and non-Muslim contexts. Thus, at a later stage of Islamic law, el-Shamsy argues for the development of formalistic approaches to understanding the position of witnesses. For this purpose, he explores jurisprudential debates that occurred among Shafiite scholars. Then he relates it to the opinions among other prominent schools of jurisprudence in Islam. Taken together, these debates primarily revolve around the “legal authority” of the witness and further complications of the acceptability of testimony by non-Muslims, slaves, and so on.

Hossein Modarressi also explores the issues regarding the concept of evidence. The argument further deals with how circumstantial evidence is considered to be valid like other sources of testimony in judicial procedures. By distinguishing two main differences in the notion of evidence, Modarressi reflects on the role of context, circumstance, and personal knowledge in adjudicating cases in criminal courts. To come up with this particular idea, Moddasseri uses anecdotes from different judicial proceedings. Intisar Rab, in an engagement formed by the social and political history of law, tries to differentiate between various types of interests in the adjudications over cases. Rab sketches out differences between political, social, and legal interests in the law. For this, she uses the case of Bughaybigha, a historical dispute over property and maintenance of trust, to understand nuances in developing a legal canon. Nahed Samour investigates judicial “consultation” to construct a legal and social history and proposes the judge’s role in cooperating with various jury consultants in adjudication matters. For Samour, the concept of Mushawara is a crucial element in critiquing the “adjudication” in Islamic courts. All scholarly engagements in this section deal with the foundation, formation, and establishment of a legal canon in Islam, though yet concentrating on some fragmentary questions.

Yet another exciting section on different takeaways on translation, interpretation, and language in early Islamic legal history, the core of chapters can be synoptically described like this: They explore a distinct kind of judicial affairs in understanding new ways of legal practices and concepts related to it. Mahmood Kooria explores the legal authority of witnesses and the problem of translation. Kooria discusses the issue of language and its importance for adjudication in a non-Arabic context. Kooria uses sources and anecdotes (especially the story of the parrot as translator-witness in court) to reflect on the questions of translator and language. Christiane Lange, to understand the relationship between “heavenly courts and mundane courts,” investigates the prevalent concept of “God as Judge” and gives possible interpretations of it. Lange dwells on the “divine” in the Islamic courtroom and deals with the metaphorical analysis of comparing the “adjudication” with the “day of judgment.” In doing this, Langue deals with the politico-religious interests of the courts. With yet another intriguing approach to the concept of authority, Louise Marlow conducts a study drawing upon the ideas from “literature for princes,” which are focused on the concept of justice. Marlow moots over the questions of interpretations of the law by the ruler’s juristic authority in case of disagreements. For this, Marlow takes a cue from Ibn al-Muqaffa’s conception of the law to discuss the particular case of political authority in interpreting justice.

Two different themes, namely the humor of judges and the concept of Liaan, a legal procedure of mutual cursing, have been discussed in the two chapters of the third and final section of the volume. Employing various anecdotes from history, Maribel Fierro engages with the image of Qadi, as a joking figure. Fierro compares such anecdotes with available ones in other contexts to resolve the question of their inclusion in the biographical accounts of judges and responds to its possible implications in terms of humor and seriousness in the judicial arenas. Delfina Serrano examines yet another legal practice of Liaan in Islamic Spain. She uses different available sources to elaborate on the practices and discusses the changing aspects of the practices and concept of Liaan at various points in the history of Maliki al-Andalus with the vast number of cases in the judicial practices.

This volume, Justice and Leadership, is a compendium of legal history in the early Islamic period with a focus on the concepts and practices in the judicial discourse of Islam. The volume, which brought different worlds –social, political, and religious– of legal history together, is a beneficial read for students of Islamic law.

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