The Judge and Jurisprudence

Chapter 5
The Judge and Jurisprudence


This chapter will discuss the complex relationship of judges vis-à-vis jurisprudence. In doing so it will examine the judges’ legal training and qualifications and their role in shaping jurisprudence in their respective societies. Such a comparison will shed light on the judges’ ‘sociology of knowledge’.


The Judge and Legal Scholars


Islamic Law


As already seen, Islamic law looked on judges as masters of procedure who could manage and conduct lawsuits professionally. It is important to note, however, that the conduct of procedures requires a firm technical knowledge in law but not necessarily a theoretical and well-established knowledge of jurisprudence. Therefore, to outline the distinction between legal knowledge and mastery in jurisprudence is in order.


In Islamic law the judge is not identical to the legal scholar, but is rather an official in the service of the community. To put it differently, one can be a judge without being a legal scholar at the same time, while one can be a legal scholar without ever being appointed to a court. The borderline between the two spheres was not at all impermeable because there were famous legal scholars who served as judges in a certain phase of their life. On the other hand, judges could also meet the qualifications expected of legal scholars and enter the noble circle of scholars.


In Islamic law the legal scholar per se is called mujtahid, that is, a person entitled to practice ijtihād. Since ijtihād is the most difficult mental activity, with its own strict methods in Islamic law, only a minority of legal professionals could participate in ijtihād. Consequently the term mujtahid indicates a legal scholar of outstanding abilities and knowledge whose social prestige was very high.


Ijtihād cannot be translated or explained as the interpretation of an existing legal norm, for it is rather the study of the sources of law by approaching them through considerations of language, textual context, history and the aim of Islamic law in general. In other words, interpretatio as understood in Islamic legal tradition differs fundamentally from the interpretative tradition of other legal cultures. In contrast with a civil law legal scholar who interprets an already existing norm to arrive at its meaning, a Muslim legal scholar is very rarely in such a comfortable position. What he is expected to do is to formulate a legal opinion on the basis of the sources of Islamic law. The rules of Islamic law were not revealed by God to Muslims in a complete, developed and finished form; therefore, sharīca rules (akām sharīca) contain only a fragment of legal norms. This is because – according to Muslim theology – God does not expect humans to adjust to a system of norms received in completion in a servile manner, but rather they are required to participate in the process of ‘discovering’ these norms. Obviously, God’s will and the divine rules cannot be identified by the human mind with full certainty; therefore the outcome of such an intellectual activity could lead only to probability but never to certainty (except in ijmāc, when the consensus guarantees the certainty of the norm). In short, interpretation in a Muslim context is not the interpretation of existing legal norms but the interpretation of the sources to identify a legal rule. This complex process of deriving law from the sources is called ijtihād.


It is important to note that no legal scholar has legislative authority since, according to Islamic legal understanding, God is the sole Lawmaker. Therefore, it is not the legal scholar who makes the law – he only recognizes it in the revealed texts (na). Divine law exists independently of the knowledge and work of the legal scholar because it was already determined by God. The legal scholar only recognizes the rule in the sacred texts when he is able to identify it in the revealed sources. Thus the legal norm is the product of the legal scholar’s intellectual activities in so far as he succeeded in discovering it in the sources where it was hidden. In this sense Schacht was right when he called Islamic law ‘jurist’s law’:1 it was truly the most outstanding legal scholars who had all theological, methodological and legal competencies to undertake such a difficult task.


Law thus defined, however, was not sure in the sense that it was not possible to know whether the recognized rule was truly identical with divine law or not. Hence the norm thus produced did not belong to the category of cilm (sure knowledge), but to ann (opinion). As a consequence ann doctrines could never rise to the rank of sure knowledge. This was, however, not a hindrance to formulating and implementing legal rules because according to legal theory cilm was only necessary in the fundamental truths (such as the existence of God, the Prophet’s mission); but concerning other issues God was satisfied with as much as man was capable of achieving. If man is unable to explore divine law entirely, it is sufficient to rely on his own wise decision. Therefore a well-considered opinion is also compulsory in issues of law.2


Scholarly requirements for mujtahids were primarily of a theoretical nature, while legal practice had a subordinate role. There were some differences in detail among some medieval Muslim authors (usayn al-Barī, al-Shīrāzī, al-Ghazālī) concerning the qualifications of the mujtahids but by and large the qualifications can be regarded as generally accepted.3 A legal scholar was not required to be skilled in the field of theology but he had to know the postulates of theology. He had to know all the legally relevant verses of the Qur’ān, the normative adīth and the methods of adīth criticism in order to identify the authenticity of traditions. He had to be familiar with all methods of legal interpretation, primarily with the theory of abrogation; methods to distinguish between general and specific rules; and the rules of rational argumentation. A profound knowledge of the Arabic language was rather important, together with skills in lexicography and grammar, so that he could identify the contents of the text precisely. Although it was not a precondition to know Arabic as a linguist would, a legal scholar had to be able to identify differences of dialect and minor differences recognizable in the use of words which could be of decisive significance. Further, he had to know rules defined by consensus so that he should not take a stand in issues that had been closed with certainty previously. In addition to professional qualifications it was taken for granted that he had to be a Muslim and had to be trustworthy (cādl), although a trained scholar with professional qualifications could exercise ijtihād without being trustworthy.4


Lacking any formal institution in Sunnī Islam, there was no authority that could recognize or name someone a mujtahid. The method way of acknowledgement was the licence to teach (ijāzat al-tadrīs), issued by a professor, which authorized a legal scholar to teach law. But by far such a licence did not make anyone a mujtahid. The acknowledgement of a legal scholar as mujtahid depended on both subjective and objective factors. A subjective factor was the self-assessment of a person who presented himself as mujtahid. Obviously, if an uneducated person projected himself as mujtahid he would become an object of ridicule, thus social control as an objective factor set limits to the rise of self-appointed geniuses. Such a person could easily be defeated in a dispute with legal scholars (al-jadal al-fiqhī), which would ruin his social standing. In addition to legal disputes public opinion also played a controlling role, since a mujtahid had to establish some kind of social esteem for himself – otherwise people would not turn to him with their questions, a neglect reflecting low esteem. It was not necessary, however, for the mujtahid to have disciples who would continue his teaching for generations. Had this been a requirement there would be only four mujtahids in the history of Islamic law, the founders of the four schools. There had been innumerable outstanding legal scholars, particularly at the time of the formative and classical period, whose quality as mujtahid was never challenged by anyone – yet no school of theirs survived in the long run. The inclusion of this requirement would result in the title of mujtahid having to be allocated to these scholars posthumously.5


If someone was accepted as mujtahid, ijtihād was not only his right but also his obligation. Ijtihād was an obligation for the entire Muslim community (far kifāya) which was fulfilled by the mujtahids. As the representatives of the Muslim community in an effort to identify legal rules no mujtahid had the right to retire from ijtihād or to accept the view of another legal scholar without proper investigation. By contrast, a mujtahid had to study the sources and formulate his own legal opinion, which would or would not be identical to those of his colleagues. Should they have the same opinion such a consensus would guarantee a firm knowledge of the otherwise probable opinions of individual scholars. Lacking any consensus, the different legal opinions of scholars were considered as valid; meanwhile nobody could ascertain which (if any) of the doctrines was in accordance with divine law. Therefore, the opinion of the majority of legal scholars was wrong in a sense that was not in conformity with divine rules; but it was impossible to ascertain which opinions those were. Consequently, it was not the legal content of an opinion that guaranteed its validity but the methods applied by the scholar who worded it. If an opinion was formulated according to the established methods of legal exegesis, it was considered a sound legal opinion. Legal disputes were important, therefore, because they were forums that controlled the scholars’ way of interpretation and argumentation.6


Due to the very high standards of qualifications required of a mujtahid, there was a radical decrease in the number of mujtahids from the beginning of the third (ninth) century on. To avoid further loss of mujtahids, requirements were reformulated and at the same time a hierarchy within mujtahids was defined, but it led to some confusion because new terms introduced were not established with clarity. Thus the epithet mulaq was used for an ideal, absolute mujtahid meeting all the requirements. The mujtahid mulaq, however, meant something different for al-Ghazālī and something else again for Ibn Taymiyya. The former understood it as a mujtahid capable of interpreting every field of law but working within the framework of his school, whereas in the interpretation of the latter mujtahid mulaqs were the founders of the four legal schools.7


Another accepted category was the mujtahid fī’l-madhhab, which meant a legal scholar working within the framework of his own school. It is hardly accidental that this category appeared only later because in this period it was impossible to formulate a doctrine fundamentally differing from the teachings of the established schools which would make sense to the title of an independent (mulaq) mujtahid. In other words, from that period on even the most eminent legal scholar could rise only to the rank of mujtahid fī’l-madhhab and could not found an independent school of his own. In addition to distinctions based on general qualifications a distinction by the various fields of law also emerged. As only few could meet the requirement of being a mujtahid in every field of law it was made possible for legal scholars to be mujtahid only in a particular field of law but not in others. Thus, if someone was an expert in the law of inheritance he could be mujtahid in this field but not in others. This authorization with limited competency was called tajzi’at al-ijtihād. Though there were several opponents to the acknowledgement of such competency legal scholars defended it, saying that even the Prophet’s Companions expressed their views only in certain cases and abstained from it deliberately in others.8


A mujtahid is not to be confused with a muftī, although there is a close interrelationship between the two. A muftī is a legal scholar who provides legal advice upon the request of laypeople and judges. This process of giving advice was called futya – the result of which was the legal scholar’s responsum, the fatwā – and the legal scholar was the muftī.9 As a legal opinion could be expressed by a mujtahid it is small wonder that the muftī also had to be a mujtahid; in other words he had to meet the requirements set for a mujtahid. Up to the thirteenth century this was the dominant view; afterwards, however, qualifications set for muftīs started to decline.10


In addition to the intellectual qualifications expected of a muftī the adab al-muftī literature (a literary genre explaining the requirements set for muftīs) established moral and physical qualities for a muftī. Besides the obvious preconditions (adult, Muslim) the requirements of virtuosity, solid ability of judgment, reliability and honest behaviour are underlined. The adab al-muftī literature stresses the importance of physical appearance, proper garments and calm behaviour. A muftī was not to take up a position in an issue if his physical conditions did not enable him to make a calm assessment – for instance, if he was hungry or angry. His appearance and behaviour became particularly important in public hearings (majlis). As the muftī was considered an outstanding intellectual and moral leader of Muslim society, a man of loose morals (fāsiq) could not be a muftī even if his erudition would enable him to act as such. It is worth noting that the doors were wide open for anyone to become a muftī because this job could be claimed for slaves, women, and the deaf and mute – people otherwise excluded from the office of judge.11


The difference between a mujtahid and a muftī is to be discerned in their social functions. A mujtahid was engaged in ijtihād and interpreted the revealed texts in order to identify some doctrines of Islamic law in the framework of a scholarly activity, whereas a muftī answered questions put to him by commoners and judges. In doing so he relied on already identified rules of law; in other words, he utilized his knowledge in fiqh. Obviously, a person could be a mujtahid and a muftī at the same time as the greatest muftīs were also mujtahids. These legal scholars were engaged in ijtihād as mujtahids and gave legal advice as muftīs. Both the mujtahids and the muftīs were private individuals who accomplished their tasks independently of any state or ecclesiastic authority. They were proud of their independence and stressed its importance. According to their ethos only an independent scholar was able to perform the difficult task of ijtihād and legal advice, otherwise political, economic or any other social interest might influence the outcome of their study. The independence of the legal scholars (at least, in theory) is in contrast to the office of the judge, who was considered an official of the state losing his intellectual freedom. Therefore, prominent legal scholars refused any office and secured their livelihood with honourable civic occupation. Some of them, like Abū anīfa, were merchants. Later on, when legal education become more formalized, they also had various jobs in teaching, which resulted in financial dependence on the waqf maintaining the colleges (for more on this subject see the next chapter).


Obviously, the demand for absolute independence was rather an ideal but not reality. Legal scholars, no matter how much they wanted to, could not keep away from the influence of politics – whether as supporters of the Caliphs and rulers or as their opponents. Yet the ideal was clear: to attain the greatest possible independence to guarantee that a legal scholar may dedicate his entire life to the study of law. Therefore, aversion from the judge’s office became a topos of the works of legal theory which was stressed with the help of various anecdotes, too. These stories are about legal scholars who were unwilling to accept the judge’s office and were exposed therefore to physical atrocities. This was the fate, among others, of Ibn Farūk, a scholar from Qairawān, who was chained on the governor’s order and threatened with being thrown from the ceiling of the mosque in order to force him to accept his nomination to the judge’s office. Sanūn, a far more famous scholar from Qairawān, was not tortured, yet after having been appointed to court he made such a gloomy face that no one dared congratulate him, and going home he told his daughter that ‘today your father is slaughtered without a knife’.12 Al-Shīrāzī, the first professor at the Niāmiya Academy, was also kept under house arrest because he refused to accept the judge’s office.13 The legal scholars’ aversion is perhaps best illustrated by the following saying: ‘When Allāh has no more use for a creature, He casts him into the circle of officials.’14


But politics was only one reason why to neglect the office of the qāī; the other was fear of committing mistakes and their consequences. This responsibility was not understood as a liability toward the parties and the authorities (which was narrowed down in practice) but as a responsibility toward God. As Kushānī put it, those scholars who refused the office of the qāī did so ‘in dread of the wrath in the world to come, because their deed would anger Allāh’,15 a way of reasoning being in complete harmony with the understanding of Jewish legal scholars.


Now one must place the judges in this cobweb of intellectual environment in order to understand their relationship to jurisprudence and legal scholars. Al-Māwardī in his al-Akām al-Sulāniyya w’al-Wilāyāt al-Dīniyya dedicated a separate chapter to the issue of the administration of justice. In this he enumerated seven preconditions for the judge’s office:


1. adult male


2. sound mind


3. free personal status


4. Islam


5. justice and integrity


6. a proper functioning of the organs


7. knowledge of the sources and rules of law.


As far as the first precondition is concerned only al-abarī challenged it: according to him women could take up that office in the same right as men. Free personal status was important to exclude slaves from the office of judge because they were exposed to their masters’ will and, therefore, it was impossible for them to pronounce an independent judgment. Al-Māwardī stresses that otherwise personal status was no obstacle to studying law and freedom was no precondition to issuing legal opinion. The sixth precondition was disputed since Mālik considered the appointment of a blind man to the office of judge as valid, but majority opinion rejected this. According to al-Māwardī the knowledge of legal sources included familiarity with the rules of the Qur’ān, abrogation, general and specific rules and grammar, whereas familiarity with the prophetic tradition required knowledge of adīth literature and methods of adīth criticism. In addition to these a judge should know the rules of consensus and analogy, too. This broad scale of requirements actually does not differ from the qualifications expected of a mujtahid and al-Māwardī particularly stressed that if a judge was not sufficiently qualified to formulate his autonomous opinion he was also unsuited to passing judgments and, therefore, a decision made by such a judge was null and void.16


Al-Jaā had similar opinion a century earlier. According to him a judge had to be able to identify rules on the basis of the sources with the help of his mastery in jurisprudence. Should he have difficulties he had to ask for advice from a mujtahid with proper scholarly training. Al-Shāficī also stressed the importance of legal advice and highlighted that judges should continually consult a mujtahidmuftī.17 Simnānī, a legal scholar living in the eleventh century and acting as head of the secret service of Niām al-Mulk, demanded that judges be familiar with both uūl al-fiqh and furūc al-fiqh.18 Ibn Rushd shared his grandfather’s view, who demanded the judge have the qualifications for ijtihād.19


Bearing in mind this intellectual context it is small wonder that the ability of independent reasoning was emphasized by al-Māwardī. In his view a judge’s own ijtihād was more important than the doctrine of the school he belonged to. According to his own words when a Shāficīte judge concluded contrary to the doctrine of his own school but agreed with the view of Abū anīfa he had to follow the latter because preference should be given to his own understanding, and imitation (taqlīd) was expressly prohibited.20 According to a then minority view a judge was not entitled to deviate from the teachings of his school but had to follow them. Although al-Māwardī refused this, nevertheless the new approach became predominant during the subsequent centuries, as demonstrated by W. B. Hallaq. Ibn Abī al-Dam already informs us that since there were no longer any mujtahids the qualifications set for mujtahids could not be expected of the judges either. In the fourteenth century a judge had to be a muqallid, passing judgments following the doctrines of his school, and that too by considering the mashhūr opinion – that is, the most acknowledged and applied legal doctrine.21


In the Islamic West this process took place somewhat earlier since it was already acknowledged at the turn of the eleventh and twelfth centuries in Andalusia that a muqallid could function as judge but was not empowered to contradict the teachings of his school.22 Should he wish to do so he could pronounce a judgment in a particular case following another but not mashhūr doctrine of his school; but that, too, on the advice of a muftī called upon before passing the judgment. The judge’s dependence on the muftī is indicated by the fact that muftīs became permanent figures in court rooms in order to ensure the smooth running of continuous advising towards the end of the classical period. The al-Fatāwā al-Hindiyya recalls the view of some jurists who went so far as to state that the judgment of an ignorant and foolish judge was valid if it rested on the fatwā of a muftī.23


Legal advice for judges was not an invention of the later centuries since numerous scholars of the formative and classical period mentioned it. Al-Shāficī emphasized its importance just as much as his disciple Muzanī did. Al-Māwardī traced advising back as far as the Prophetic times, referring to the Prophet’s practice of asking for advice from the people of Medina. Next, following his practice, Abū Bakr and cUmar also asked for the opinion of the Prophet’s Companions in legal matters. According to al-Māwardī the judge could ask for a legal opinion from any muftī, irrespective of whether or not they belonged to the same madhhab as he did. In cases difficult to decide he was not only entitled to acquire several opinions but he was also advised to do so and to make his decision after having considered them. In selecting from among the legal opinions presented to him a judge should make his choice along scholarly considerations – but social status, rank and other non-legal elements had to be disregarded since women and slaves could also be masters of law.24


The practice of appointing advisors (mushāwarūns) alongside the court became widespread in the Mālikite school, particularly in Hispania and in the Maghreb. The advisors constituted a separate body (shūra) whose members were appointed by the ruler, usually upon the advice of the judge. The mushāwarūns received a monthly salary from the public treasury. The number of advisors was fixed and a new member could be admitted to the body if an existing member died. Those who were not members of the shūra usually gave legal opinion to private individuals and to merchants (ahl al-sūq). Advice was given in writing following the request of the judge in which he presented all facts that had been proven and also attached the documents that had been produced. The muftīs studied the case and made their proposal about the judgment. When legal opinions differed the judge was free to make his choice from among them. The mushāwarūns did not participate in the procedure personally because they were not present during the proceedings. There was no particular demand for it either, since the conduct of the procedure was the job of the judge even if the advisors happened to be present. Their relief from personal attendance enabled them to be members of several shūras, even in remote cities, at the same time.25 The proceeding judge could not only ask for the opinion of the muftīs appointed to his court but could turn to others as well. It is known that a judge of Marrakesh asked for the opinion of Ibn Rushd, the famous scholar of Cordova. The judges consulted more legal experts, particularly before deciding on capital punishment, in order to avoid hasty judgments.26


Now it is clear from what has been said so far that there is an obvious difference between the judge and the muftī. In addition to the already mentioned differences in qualifications the muftī did not deal with proving facts, but took them for granted; on the other hand, it was the task of the judge to clarify the factual situation and to consider evidence. Moreover, the judge’s judgment was always particular and pertained only to a certain case, whereas the fatwā was general in a sense that it could be applied also in similar cases. Perhaps the most important difference was that the muftī’s opinion was not compulsory – it contained only his interpretation of law, whereas the judgment was legally binding for the parties. When the judgment rested on a fatwā it would be compulsory for the parties –not as a fatwā but as a judgment of the court.27 It is, however, important to emphasize that there was no rigid borderline between the two functions because a judge was not excluded from studying jurisprudence if he could meet the qualifications established for a legal scholar. Should he meet all requirements he could participate in the scholarly discourse, not as a judge ex officio but as a legal scholar.


As seen above, a judge adjusted himself to the activities of the muftī, relied on his advice and had a subordinate intellectual role compared to the muftī. On the other hand it is important to note that the judge also limited the muftī’s freedom. In theory, a legal scholar could modify or withdraw his formal legal opinion provided he found new textual proof which encouraged him to do so. By contrast, if one of his legal opinions provided the basis for a judgment he could no longer modify or withdraw it: legal advice given to a judge could not be subsequently modified, even if later the scholar would have developed an entirely different position, because a judgment thus produced is irrevocable.28


The reason for this seems obvious: to achieve a certain level of legal security. It is in the interest of society in general and the parties in particular that a legal dispute be settled with certainty; otherwise the entire legal world would be ruined. By guaranteeing the legal scholar could change his mind the freedom of jurisprudence was secured; meanwhile the finality of a judgment provided legal security for society and operability for the legal system. With this clever solution both legal scholars and judges could find their proper place in the Islamic legal system, working together and not against each other.


Now it is clear that profound changes are necessary in the Western interpretation of the office of the qāī, surrounded by a kind of romantic overtone and sense of cultural superiority. The qāī is an emblematic figure of Islamic law whom many see as an official sitting under a palm tree, deciding irrationally and subjectively, acting with discretional competency and making decisions just as he pleases. This was the opinion of Justice Frankfurter, among others, a famous United States judge who expounded this view in the Terminiello v. Chicago case.29 A member of the British appellate court, Lord Justice Goddard, expressed a similar view.30


These views are not isolated but ultimately go back to Max Weber. We can summarize his views on qāī jurisdiction as follows:


1. It was an administration of justice by an official exposed to the ruler who could freely interfere into the procedure any time.


2. The judge decided through his own will and discretion both in procedural and substantive questions.


3. People should feel honoured that a judge dealt with their case at all.31


Coulson agreed with Weber in respect of political influence coming from the ruler and his high-ranking officials. According to Coulson political influence was possible because the judiciary was not independent but subordinate to the government. Judges appointed by the Caliph were unable to pronounce and implement decisions against members of the political elite.32 Bryan S. Turner also agreed with some of Weber’s claims, although with qualifications.33


It was Joseph Schacht who first challenged such simplified views and refuted some of Weber’s claims.34 During the past two decades scepticism has increased due to the works of David Powers, Lawrence Rosen, Farhat Ziadeh and Irene Schneider. The anthropologist Rosen dedicated years to field work in Morocco and modified the Weberian theses based on his own observations; but Rosen’s results reflect the present conditions and not those of the classical period.35 By contrast, the works of Farhat Ziadeh and Irene Schneider pertain to the classical period, and their conclusions drawn from the study of legal sources do not differ from the experiences of the present observer – although we must bear in mind that works on adab literature may pertain rather to the ideal and not to the real situation.36 Studying late medieval Moroccan legal practice based on the fatwā collection of al-Wanshārisī, David Powers reached a similar conclusion.37


It is clear now that some of Weber’s theses should be qualified. Weber was right in saying that the judges were not independent of political influence. The opinion of contemporaries did not greatly differ from this; one should only recall the legal scholars’ aversion to entering into the service of political authority as judges and the numerous cases in which judges were dismissed by political considerations upon the will of the ruler.38 But this was the ruler’s only chance to interfere in the business of the judiciary since personal interference in a particular process was unthinkable.


By contrast, Weber’s claim concerning discretionary judgments with little or no reliance on jurisprudence should be challenged. As seen above, a judgment was (or at least should have been) based on jurisprudence which was guaranteed either by the judge himself (provided he met the required qualifications) or by legal scholars appointed alongside him as advisors. At the same time the judge guaranteed impartiality and the ‘due process of law’, the importance of which was emphasized time and again in the adab al-qāī literature. Therefore, Weber was not right in saying that Kadijustiz ‘erstrebt “materiale” Gerechtigkeit, nicht formale Regelung eines Interessenkampfes … und entzieht sich daher in ihren Chancen der Berechenbarkeit’.39 By contrast, as we have seen, litigation was very formal and it was the qāī’s responsibility to implement formal rules of procedure; however it was not his responsibility to establish the material truth, being exposed to the testimony of the parties and witnesses.


What may have misled Weber concerning the incalculableness of a judgment is legal pluralism, unknown to European legal practice. It is true that the same case could lead to different legal solutions and judgments, depending on both subjective and objective factors. To recall only the most important among them:


• It was decisive to the outcome to which legal school the judge and the parties were affiliated.


• It was of importance, too, how an advising muftī responded to the queries of the judge and, if more muftīs were involved, which opinion the judge followed.


• It was important whether the judge was only a muqallid or was qualified enough to engage in ijtihād.


• If the judge was a muqallid, he was authorized to base his judgment on the generally accepted view of his school (mashhūr) or to follow a minority opinion if it was better suited to arrive at a just judgment.


Therefore, there were a lot of choices to be made, the outcome of which was influenced by the judge’s personal qualifications, both professional and moral. All these could produce a misleading picture of chaos and arbitrary judgments. But reality was different. Since the boundaries of the legal schools became settled during the centuries there was unlikely to be a Mālikite judge in cIrāq or a anafite one in Andalusia. Moreover, since the judge had to follow the mashhūr opinion of his school – which could be neglected in favour of another, lesser known opinion only exceptionally – the outcome of the procedure was not as unpredictable as it seemed to Weber. In addition, selecting from among a variety of legal doctrines required a profound knowledge of legal literature and jurisprudence; otherwise a judge was unable to find the proper doctrine should he be dissatisfied with the mashhūr opinion. Such a selection was, therefore, an intellectual activity and not an arbitrary decision as Weber wanted us to believe – although, obviously, it was not free of some subjective considerations. Moreover, qāīs had to deal with the cases brought to their tribunals and to judge the cases as soon as possible. The situation is, therefore, just the opposite as Weber understood it and was not ‘eine weitgehend freie Gnade, ein Privileg im Einzelfall’.40


Weber’s Kadijustiz fits more appropriately to the maālim courts, the members of which were nominated and dismissed by the ruler’s own discretion; which was not bound to follow the strict procedural laws of the sharīca; and where judgments were not based on the legal advice of sharīca experts. Already Schacht has pointed out that features attributed by Weber to the qāī court fit more appropriately the ‘weltliche Rechtssprechung der politischen Gewalten’,41 although his wording is not clear enough. But it stands to reason to think, as Irene Schneider does, that his wording refers to the maālim courts.42 Therefore, if there is any merit in upholding this Weberian term it should be reformulated as maālim justice; but mōbed justice is another possible candidate since the Sasanian legal machinery was more patrimonial than that of the Caliphate.


Jewish Law


There is no such fragmentation among legal professionals in Jewish law as in Islamic law because Rabbis incorporated the functions of judges, muftīs and mujtahids in one person.


In the Second Temple period the relationship between the courts and legal scholars was complicated because there was no homogenous Jewish jurisprudence, different religious groups having their own understanding of law. Competition between the Sadducees and the Pharisees in jurisprudence made it impossible for judges to develop a neutral position because both the Sadducees and Pharisees were present in the Sanhedrīn. In other words, judges embodied the differences between these groups. Consequently, a Sadducee judge would naturally support the legal interpretation of the Sadducees and attack the position of the Pharisees, whereas a Pharisee judge would act to the contrary. Therefore the outcome of cases depended on the composition of the court, which determined whether the majority would follow the interpretation of the Sadducees or that of the Pharisees. This is why competition for membership in the Sanhedrīn was so important for both the Sadducees and the Pharisees. Concerning local courts this fragmentation was of little or no importance.


The destruction of the Second Temple fundamentally changed this situation as it resulted in the monopoly of the Pharisee legal interpretation in the rabbinic courts. Consequently, the previous legal pluralism was limited to differences inside the rabbinic movement. Regardless of their internal fragmentation, the fact that judges came from the intellectual elite of rabbinism determined the relationship between jurisprudence and legal practice. The Rabbi acting as a judge did not depend on the advice of legal scholars since he was a legal scholar per definitionem. It is important to note that it was not the judge who met all the required qualifications established for a legal scholar, but rather it was the Rabbi (that is, a legal scholar) who acted also as a judge – which is a tiny but essential difference.


Now it is clear that Rabbis had different attitudes toward the office of the judge from that of their Muslim colleagues. There is no such aversion, resistance and disdain as observed among Muslim legal scholars. Not that Jewish scholars were enthusiastic about it; by contrast, they considered the judicial function an earthy undertaking taking time and energy away from their more important task and mission, the study of the Torāh. Since this world was considered a place of decayed morals, where the pious suffer, to engage in the business of this world was no attractive alternative.43 In addition, Rabbis were afraid of the responsibility of a judge. This responsibility was not of a material nature since Rabbis absolved themselves from financial responsibility for erroneous judgments. Responsibility was exclusively moral in nature, and they were afraid of its consequences. This idea is expressed in a saying attributed to Rava’, according to which he wishes to leave the law court as free of guilt as he had arrived there.44 Despite these essential reservations magistracy was not refused but attempts were made to satisfy its requirements.


At this point the question emerges why the Rabbis did not protest against being appointed to a court and accepted the nomination in the end. As seen previously, Muslim scholars’ aversion was fuelled by political considerations – being afraid to lose their independence once entering the service of the state. By contrast, when rabbinic thinking emerged as the leading interpretation of law there was no longer any Jewish state and, therefore, no legal scholar was forced to represent the interests of any state. Moreover, since both the Romans and the Parthians (and later their successors, the Sasanians) guaranteed limited religious and legal autonomy for Jews, by taking official responsibility on themselves they participated in managing the autonomy they gained from their masters. In so doing they joined the respective leaders of the Jewish community, the nāśī in Palestine and the rēsh galūta’ in Babylonia. Although the relationship between the scholars and the nāśī/rēsh galūta’ was at times problematic – burdened with internal struggles for power – at the same time to cooperate with them was something different from entering into the service of the Caliph.


Another problematic issue was the casual interference of the non-Jewish state in the daily legal practice of the Jews. For example, Iranian Jews had no power to execute capital punishment and the Persian government controlled it very strictly. If someone died during the execution of corporal punishment (flogging) the case was immediately investigated by Iranian officials. Therefore, the rēsh galūta’ did not follow rabbinic legal interpretation in this respect and ordered blinding instead of capital punishment, which was not in accordance with ‘academic’ jurisprudence – but he could hardly disregard political reality.45


Since both the rēsh galūta’ and the Rabbis represented Jewish autonomy their cooperation was essential for the Babylonian community. Historically, however, the initial cooperation between the rēsh galūta’ and the Rabbis (Shamū’el) was increasingly replaced by rivalry and hostility. The rēsh galūta’ even jailed Rav, one of the most famous legal scholars of his age, because he did not implement the law as it was demanded by the rēsh galūta’. Thus in the third century the rēsh galūta’ was unambiguously the leader of the Babylonian Jewry. The relationship with the rēsh galūta’ divided the Rabbis: there were some who accepted his leading role and took up his service, whereas others did not. Rabbis in the service of the rēsh galūta’ wore a distinguishing badge on their clothing in order to show their status symbolically. The ‘judges of the rēsh galūta’’ had great influence both in religious and legal issues. The resistance of the Rabbis of the Academies did not mean any serious problem for the rēsh galūta’ until he could realize his will through loyal Rabbis and the armed forces obedient to him (which included even Goth mercenaries). The Academies, however, demanded ever greater independence for themselves, hence their relationship with the rēsh galūta’ became pitched around the issue of who was entitled to appoint the leader of the Academy. During the third century the heads of the majority of the Academies were appointed by the rēsh galūta’ but the Academies protested against such a practice. The permanent dispute around the issue ultimately led to an ever greater autonomy achieved by the Academies but their status varied according to space, time and school. For instance, the Academy of Nahardea was under the influence of the rēsh galūta’ in the third century, whereas the Academy of Pumbedita enjoyed relative independence and remained the centre of resistance against the rēsh galūta’ in the next century. The rēsh galūta’ and his opponent Rabbis came to terms only in the fifth century, when the persecutions under Yazdagerd II and Pērōz were hitting both sides.46


In short, contrary to their Muslim colleagues, some of the Rabbis did not consider being in the service of the rēsh galūta’ shameful because of political considerations but because of an internal struggle between them and the rēsh galūta’. Since both the rēsh galūta’ and the Rabbis wanted to be the leaders of the Babylonian Jewry, the emergence of the conflict was perhaps inevitable. The rēsh galūta’ tried to win over some of the Rabbis partly by appointing them into his own court and partly by vindicating the right to appoint the heads of the Academies for himself. It is not to say, however, that Jewish scholars were not divided on the issue of relationships with political authority, too. Though according to their world view being in the service of the political authority meant giving up the legal scholar’s intellectual and existential independence, such persons can be found in as good numbers among the Rabbis as among the mujtahids. It is important to note, however, that swapping sides in itself did not result in losing social and scholarly prestige. This aspect was primarily present in Jewish law: recall the life of Shamū’el, the outstanding third-century legal scholar who not only cooperated with the rēsh galūta’ but also kept up a friendly relationship with the Persian king. And though his behaviour and compromises (such as his principle dīna demalkūta dīna) were criticized by many, no one ever doubted his scholarship and eminence in jurisprudence. By contrast, Muslim legal scholars entering state service as officials were condemned by their colleagues because they were turning their back on their common scholarly ethos and giving up intellectual freedom.


In struggling to ensure their independence, Rabbis were more fortunate then their Muslim colleagues because Jewish Academies were at the same time law courts, too. Here a Rabbi could preserve his independence while remaining in touch with both legal practice and jurisprudence. This is an important aspect which distinguishes Jewish legal culture from its Islamic counterpart, since no madrasa was allowed to function as a law court. Therefore, a Muslim legal scholar had nowhere to withdraw to and could refuse the judge’s office as the only possible alternative. By contrast, the Academies ensured an institutional background for Jewish Rabbis, where they could remain independent from politics, study law and participate in everyday legal practice.


Another important question is what moved Rabbis to step out of their own academic world and spend their time on unimportant issues of society. Since Babylonian Jews were mainly poor people the majority of cases brought to the law courts were about a few pieces of onion and date-palms.47 Although these were in fact not matters of major importance, nevertheless they were produced by Jewish community life. Therefore, Rabbis, participating in the daily life of the community, contributed to the survival of the Jewish community either in the Babylonian Diaspora or within the boundaries of the Roman Empire. Moreover, by actively taking part in communal life Rabbis were able to promote their ideal and encourage its realization. Since the relationship between the Rabbis and Jewish society was contradictory and burdened by mutual aversion, social appreciation alone did not prove to be sufficient. The law court was the forum where the Rabbis could assert their influence institutionally. To illustrate: although Rabbis elaborated their ideas about marriage they could not assert them because marriage in Jewish law was a contract of private parties in which the cooperation of the Rabbis was not necessary. By contrast, divorce required the cooperation of the Rabbi as judge who could therefore assert his own views of marriage through judgments. In addition he could also determine this way which marriages were valid and what the legal status of the successors were, issues of importance for a community struggling for survival.48


Important as it was to manage everyday legal practice, to study law was the Rabbis’ most important duty. In this respect the rabbinic ethos did not differ from that of the Muslim scholars. As seen previously, mujtahids had to make every effort to decipher legal norms contained in some way or other in the na texts. Jewish legal scholars had a similar task since Biblical law, too, contained only part of the necessary norms. It was, therefore, the task of the Jewish legal scholars to establish the halakah with the help of well-defined legal methods and continuous scholarly dispute. Independently of its practical consequences the study of the Torāh became a value in itself in Talmudic times.49


Things did not change in the post-Talmudic period. The study of law remained the most important field of knowledge, while disciplines such as theology, philosophy and logic were absent from the syllabus. Legal scholars considered academic jurisprudence more important than legal practice, even though they were engaged in it. A Mesopotamian judge was not proud of being capable of performing his complex task but because people came to his town from as far away as Europe to study the Talmūd with him.50


It is clear now that Rabbis also exercised ‘ijtihād