The Judge and the Litigants

Chapter 4
The Judge and the Litigants

When a judge realized that any of the parties had committed azishmānd he noted it in a separate judgment. Such notices cannot be considered simply as orders to conduct the trial because they could affect the final judgment, too. If notices were made three times regarding the same litigant, they lost the lawsuit.1 If it was the plaintiff who hindered litigation, they also had to give a pledge as security, at least according to Zurwāndād.² When co-litigants participated on one side in the lawsuit each of their azishmānds affected all the other co-litigants, therefore colitigants had to face the legal consequences, too.³ This rule itself shows that the function of azishmānd was not to establish liability but to ensure rapid and smooth conduct of the trial and to hinder procedural tricks. The sum of any fine and the pledge had to be deposited at the court. If the party lost the case because of their third azishmānd the sum of the fine and the pledge were received by the other party.⁴ A party committing azishmānd lost their right to take an oath.⁵ There was no appeal against notices passed in azishmānd cases. According to the judgments found in the MHD+A refusal to take an oath6 and contradictory statements of more legal representatives in the lawsuit⁷ qualified as azishmānd.

During private litigation the parties had to stand three steps away from the judge to deliver their statements in order to show respect towards him,⁸ but nothing is known about etiquette the judge had to follow in respect of the parties. By contrast, in criminal procedure no etiquette seems to have been followed by the court since, as seen previously, interrogated persons could be beaten during hearings, tortured between hearings and had neither the right nor the opportunity to defend themselves against physical onslaughts.

Islamic Law

Islamic legal thinking in general and the adab al-qāḍī literature in particular puts emphasis on the correct behaviour of the judges and their neutrality towards the parties. In their effort to draw a picture of a somewhat ideal type of a judge, works of the adab al-qāḍī literature regulate the interactions of the judge with the parties from the beginning till the end of the procedure, going into hair-splitting details. Although the aim was obviously to create a situation in the court room in which the impartiality of the judge was discernible even in his gestures and other symbolic acts, the result was a very ritualistic etiquette which was unlikely to be followed completely in every case of litigation.

Impartiality was considered of vital importance even before works on the adab al-qāḍī came into being. An early text such as Caliph ^cUmar’s letter referred to already highlights: (1) the impartiality of the judge in any trial, making it compulsory even towards noblemen (sharīf); (2) the permissibility, and what is more, preference of peaceful agreements; and (3) the rapid settlement of the disputes of foreigners so that they could go home as soon as possible.⁹ The requirement of impartiality is defined as a prohibition of siding with persons of superior power due to their economic and social status, an issue which can be regarded as a topos of the later adab al-qāḍī literature. It is also important to note the preference for compromise against the judgment of the court, a pre-Islamic tradition going back centuries with the wise ḥākam as a central figure in these arbitrations.

At the beginning, there were no permanent buildings for law courts. Therefore, the venue of adjudication became subject to dispute among legal schools. The Shāfi^cītes expressly prohibited adjudication in mosques, but other schools made no objection against such a practice. According to the Shāfi^cītes it would de-sacralize the mosque if parties in dispute were shouting at each other where other people wished to focus their thoughts on God. By contrast, Abū Ḥanīfa argued that the execution of ḥadd punishments had a force of deterrence which could be more effective if done in a mosque. Instead of the mosque the Shāfi^cītes recommended a ‘proper place’ for adjudication which was comfortable enough with no disturbing circumstances hindering the judge in adjudication. Such a place could be anywhere in the city provided there was a sufficient quantity of food and water, it was not dark and was protected against cold and heat. These conditions were important because otherwise the judge could lose patience and would not proceed properly. The judge’s own house could also be a proper place, which was indeed common practice in the early period. Mosques were particularly favoured by the Ḥanafites, while the Mālikites instead built separate buildings for the judiciary. These buildings did not exist necessarily for long because if a new, non-Mālikite judge was appointed he had it pulled down immediately so that the next Mālikite judge could restore it.10

Authors of the adab al-qāḍī literature particularly stress that the judge had to make his ruling free of all detrimental physical circumstances. He could not be hungry, thirsty, lacking sleep, ill or angry. Moreover, to be able to preserve his reserve and objectivity in respect of women even his sexual desires should be satisfied before the trial.¹¹ The aim of these preconditions was that the judge should pay attention exclusively to his important office and no other issues should burden his attention.

No matter where the trial was held, the judge had a separate carpet which kept him at a distance from the parties, both physically and symbolically. The cushions on the carpet served exclusively the judge’s comfort. On the day of the trial the judge had to appear in a clean and particularly nice garment, with shawl and turban, the latter supplemented with a cap exclusively preserved for judges (qalansuwa). Further, he was expected to be groomed (hair combed, nails clean) and to make himself suitable for an appearance in public with a perfume of ‘non-disturbing’ fragrance. The judge had to take his seat facing the entrance so that he could see all who entered.¹² When someone entered the court room the judge had to remain seated, just nodding his head so that he would show nobody any favour by a greeting. According to an anecdote, reflecting rather an ideal and not necessarily a real situation, Caliph al-Mahdī got involved in a lawsuit with one of his governors and turned to a court. When he entered the room the judge bowed his head but remained seated, but at the end of the proceeding he stood up and politely greeted him. The Caliph told him that he would have immediately dismissed him from his office had he greeted him thus upon entry and would have done the same had the judge not greeted him at the end of the trial.¹³

The parties had to be seated in front of the judge on their own carpet as it was required by respect shown towards the qāḍī. Men had to kneel, but women had to be seated cross-legged. The seriousness of the ceremonial attitude is indicated by the fact that authors of the adab al-qāḍī literature discussed the question of whether a judge greeted only by one of the entering parties should reciprocate only in the direction of the person honouring him or greet both parties. Obviously, during the sometimes heated debates not everyone cared for the observance of the court etiquette with minute precision. It is shown by the fact that a litigant disturbing the order of procedure and cursing his adversary could be warned orally; condemned to beating either with a stick or a shoe; or, in more serious cases, locked up in jail. Such measures were made by the judge at his own discretion, depending on the seriousness of the act and in keeping with the social status of the parties. As the freedom of the judge was not limited in this respect, reports on actual lawsuits show that beating by stick could last even as long as blood started to flow. As a curious example a case is known where one of the parties died because of such measures. Now it is understandable why authors of the adab al-qāḍī works often stress that a judge should not be angry or lose his temper during a procedure.14

Though in principle both men and women could participate in the trial at the same time, judges were rather advised to mark a day of hearing of men and women separately. The trial opened with the statement of the parties, but it was up to them which of them presented their request first. If the parties could not agree on the order of presentation it was decided by drawing lots, or the judge sent them away until they could agree in this issue.¹⁵

The personal observations of the anthropologist Lawrence Rosen made during his field work in Morocco prove that this traditional way of the procedure has not changed significantly even up to the end of the twentieth century. The parties are let into the room by a uniformed guard, who also functions as interpreter for Berbers not speaking Arabic. The parties greet the judge but there is not much time for formalities because the guard rapidly guides them to their place. At the judge’s first question the parties start shouting, everyone wanting to tell their own version first, while there is no patience for listening to the other party. Sometimes the judge lets them shout freely so that he can continue the procedure after the overheated emotions are let out. If this is not productive court assistants rush in and hold the shouting people fast, who, after being divested of the possibility of indispensable gesticulation, keep quiet. In this respect there is no difference between men and women because both genders speak out about what they want to say with equal vehemence. The court scribe takes notes of the parties’ statements amid these somewhat chaotic conditions and draws up the protocols. Despite these somewhat turbulent circumstances the judge has full control over the situation and is capable of closing down the case with spectacular rapidity, quite often passing more than ten judgments within a single forenoon.16

What the field work of an anthropologist could prove for a scholar dealing with contemporary societies, literary tradition could do the same for students of the past. Therefore, studying the Qābūs-nā