4. THE PROCEDURE AND ORGANIZATION OF THE SHARIA JUDICIARY

While the underlying assumptions about the nature of man and society in certain areas of the Sharia may be found to be questionable by modern sociologists and psychologists,¹⁶ the original Islamic approach to the area of litigation was surprisingly modern.

These rules were not only accepted in theory but were strictly adhered to in practice during the life-time of the Prophet and his Four Caliphs. During the rule of Omar, the second caliph, when Islam expanded into a vast empire, he issued orders to the walis (governors) and qadis of different regions on the observance of these rules, and one of these orders addressed to Abu Musa Ashari in 636, has become a landmark in legal history.¹⁸

Bearing in mind the atrocious conditions of injustice in the other areas of the world in those days, this aspect of Mohammad's mission was truly remarkable,¹⁹ and it has been observed that this more than anything else was a factor in the appeal and expansion of Islam in its early days (cf. Tabatabaei, 1967: 388–389, 548 ff.; Saleh, 1969: 212–214).

However, in the subsequent years during which the substantive part of the Sharia underwent so astonishing a development, little attention was paid to its procedural and organizational aspects obviously because, as we said before, practical considerations were of no significant concern to the jurists.²⁰

Following an old ground-rule, “Upon the claimant is the (burden of) proof (bayyina) and upon the defendant, the oath (of denial),” which is mentioned in the letter of Omar and which is a correlate of the second principle mentioned above, the Sharia procedure from the very beginning followed a simple but rigid course: after the plaintiff presented his claim, the qadi questioned the defendant; if he accepted it, the case was over; if he denied it, the qadi asked the claimant to produce evidence; if he failed, the qadi would then order the defendant to take an oath if the plaintiff so demanded; if the defendant refused to take the oath, verdict was issued against him if, according to some schools, the plaintiff took an oath; but if the defendant did take the oath, the case was dismissed – reserving the right of the claimant for a new trial.

To this procedural rigidity we must add another feature which reduced the role of the Sharia courts still further. The term bayyina used in the ground-rule mentioned above is a general term which means “evidence.” In practice however it was narrowed down by three qualifications. First, the word came to mean almost exclusively “witness” or, more exactly, “oral testimony;” second, like the qadi himself, the person whose testimony was to be accepted as evidence had to meet a number of religious and moral qualifications which could not be found in the ordinary persons; and third, in certain cases the requirements of proof were so demanding that they were practically impossible to meet. For instance, to prove an offence of fornication (zina), the claimant was required to present to the court the testimony of four upright male eye-witnesses to the very act of carnal conjunction.

These were then the basic features of the Islamic procedural law. Throughout history it remained unchanged and was applied with primary emphasis “not so much on arriving at the truth as on applying certain formal rules” (Schacht, 1964: 195; Tyan, 1955: 236–278; Coulson, 1964; 124–127). Corresponding to such a formalistic procedure was, of course, a similar judiciary organization which, likewise, had a promising beginning but an abortive development.

In the beginning of Islam, “the office of judge was exercised by the Prophet personally” (Ibn Khaldun, 1958, I: 452). The first significant development in the direction of the differentiation of the judiciary from the executive took place during the rule of Omar, who appointed several judges in different parts of the Empire and on that occasion issued his above mentioned order.²¹

Important as this was as a beginning, it was yet far from an independent judicial organization.

Under the Abbasid caliphs, however, both of these features changed; and with that came an incoherent dualism which has marked the Islamic judiciary up to the present day.

As a part of their effort for total Islamization of the Empire, the Abbasid caliphs paid a much greater attention to the function of qadi, making it a rule that only specialists in the Sharia were appointed, and they were appointed not by the provincial governors but from the centre of the Empire, and as an independent functionary of the Caliphate. Following this policy there came another development. As part of the general effort to adopt features of the Sassanid administration, Harun or-Rashid (786-809) created the office of Qadil Qodat (chief qadi) which corresponded almost exactly to the Zoroastrian Mubadan-Mubad (priest of priests).²² The Qadil Qodat not only functioned as an important counsellor to the caliph, but also had the authority to appoint and dismiss the provincial qadis. ²³

These developments had two interrelated implications. They meant, first, a growing independence of the judiciary from the executive and second, a greater freedom of the qadis to adhere strictly to the rules of the Sharia, whose faithful application they considered an expression of their exclusive allegiance to Allah.

Structurally a Sharia court consisted of (1) a single qadi, (2) the litigants or their delegates (vakils), (3) witnesses and occasionally a clerk (katib or mozakki). There was no hierarchy of courts or judges as such, although as a matter of course “cases of extreme importance were taken to eminent mojtahids of whom there never was a large number...” (Curzon, 1892, I: 453); and finally, following the simple procedure discussed above, there was no public prosecutor nor professional lawyer. But whereas this simple form remained the same throughout the centuries, there developed, especially in the two rival Safavid and the Ottoman Empires, certain religio-administrative functions which were indirectly related to the judiciary system.²⁴