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XVII. The Maẓālim Jurisdiction in the Aḥkām Sulṭāniyya of Mawardi

Published online by Cambridge University Press:  15 March 2011

H. F. Amedroz
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Extract

MĀWARDI'S chapter on the office of Ḳāḍi in the Aḥkām Sulṭāniyya, ed. Enger, dealt with in JRAS., 1910, p. 761, is followed by that on Walāyat-al-Maẓālivi; the substanceof this chapter is as follows.

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Journal of the Royal Asiatic Society , Volume 43 , Issue 3 , July 1911 , pp. 635 - 674
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Copyright © The Royal Asiatic Society 1911

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References

page 635 note 1 The distinction in a vizier's powers is explained by Ostrorog, AḤkam Sulṭāniyya, i, 197 ff.

page 636 note 1 For , p. 130, 1. 7, read , as also Cairo, 74, 1. 7.

page 636 note 3 One of them seems to turn on contributory negligence: it is explained in the Liān, viii, 338, 1. 1. The other, which seems akin to the Judgment of Solomon, is described as amounting to a settlement of the law.

page 636 note 3 For the Caliph's zeal and efficiency in this duty see Ṭab. iii, 1736, I. 11, and Mas'ūdi, viii, 21. He used to have the Court warmed for the suitors' convenience (Baihaḳi, , Maḥāsin wa Masâwi, 577, 1. 17)Google Scholar. A decision by him on giving bounty out of the poor rate is mentioned in Hilāl, , Wuzarā, 222Google Scholar.

page 637 note 1 See Lane, 2412c, Aghāni, xvi, 65–6, and Ibn Khali., transl. iii, 611, n. 4. The origin of the league is also stated by Maḳrīzi, , Muḳaffā (Paris, Ar. 2144,191a)Google Scholar, in the life of ‘Abd Allah b. Jad'an, at whose house the Prophet is said to have witnessed the compact. Here the term “Fuḍūl”, said by Lane, 2412°, to be of uncertain meaning, is explained on the authority of al-Zuhri (Ibn Khali., Sl. Eng. ii, 581); the two existing leagues, the Mutaṭayyibīn and the Aḥlāf (Lane, 1902c) having refused from mutual fear to assist a wronged man, the Ḳuraish said:

page 638 note 1 p. 135, 1. 3 a.f., for Cairo, 76,1.6 a.f., reads the sense being that Governors denied justice until it had to be purchased from them, and distributed injustice (al-bāṭil) until it had to be avoided “by the payment of ransom”.

page 638 note 2 “Mahdi” in both texts, but clearly an error, for in both the name appears correctly at the story's close; moreover, Sulaimān b. Wahb was contemporary, not with Mahdi, but with Muhtadi.

page 638 note 3 In an account of ‘Abd al-Malik's coinage in a MS. which is probably part of the Muntaẓam of Ibn al-Jauzi, given on the authority of Waki', d. a.h. 197 (Nawawi, 614), the equivalent of Māwardi's Ṭabari dirham is the jariyya, the Ṭabari there weighing, not four, but nearly five dānaḳ. The text is as follows:—

(BM. Add. 7320, 30b.)

The Tāj. iii, 355, 1. 4 a.f., has

page 640 note 1 That the register in question was that of the Dīwān al-Ṣawāfi, or confiscated estates, is shown by the case before 'Omar.

page 641 note 1 The Ḥisba jurisdiction is the subject of chapter xx (Enger, p. 404).

page 643 note 1 This story is told also by Baihaḳi, , Maḥāsin wa Masāwi, 530Google Scholar. To decide a case against a son is declared permissible to a Ḳāḍi (text, Enger, 128).

page 647 note 1 The divergent views on this question are stated by Goldziher, , Vorlesungen ii. d. Islam, 1910, pp. 58–9Google Scholar. Instances of the practice are given in Kindi, pp. 345, 1. 1, 384, 1. 2, 552, 1. 20, and 584, 1. 8.

page 648 note 1 , see Dozy. The Mafātīḥh al-'Ulūm, 62, has this definition:

page 651 note 1 Id., Ibn al-Jauzi, Adhhiyā, ed. Cairo, 1304, 60.

page 651 note 2 p. 157, 1. 4, for read (Dozy, Supp. i, 60b, sub ).

page 652 note 1 p. 160, 1. 3, for read as Cairo, p. 89, 1. 17, . The story occurs in the Kitāb al-Awā'il of Abu Hilāl al-'Askari, Paris, Ar. 5986, 186b, and in Adhkiyā, 49, on the authority of al-Sha'bi, d. a.h. 104 (Ibn Khali., Sl. Eng. ii, 4).

page 653 note 1 For 161, 1. 1, read as Cairo, 90, 1. 4,

page 655 note 1 Described by Maḳrīzi, de Sacy, Chrest. Ar., 2nd ed., i, 132, who translates Maẓālim by “plainte de quelque vexation”; Ostrorog, , Ahkam Soultaniyya, i, 209Google Scholar, has “torts”, restricted in meaning to such as the ordinary Courts are unable to repress. The equivalent “affaire criminelle” given in Prairies d'Or, viii, 21, is scarcely appropriate, yet the term does bear the sense of criminal responsibility. Māwardi, p.106, in dealing with the punishment of rebels and bandits, says that one view of the law was that the effect of repentance after detection was to abrogate the sin, ma'tham, but not the responsibility for the act, maẓālim. The two terms are again contrasted in Baihaḳi, , Maḥāsin wa Masāwi, 535, 1. 11Google Scholar, where a ruler is made to say that he could not hold himself clear of moral blame, ma'tham, for having appointed an unfit person to investigate maẓālim.

page 656 note 1 The story on p. 531 is that given by Māwardi, , supra, p. 643Google Scholar. That on p. 529 tells how Ma'mūn shamed Aḥmad b. Hishām into repairing his wrong done; that on p. 530 (cf. Yāḳūt, , Buldān, iii, 847)Google Scholar contains 'Omar's appreciation of a Nabathœan. Both these are told by Ibn Ṭaifūr, B.M. Add. 23318, 29a and 40b, with two others, 41a, ed. Keller, transl. 46–7. The last of Baihaḳi's stories (p. 532, and, shortly, in Ḥamdūn, Ibn, Tadhkira, B.M. Or. 3179, 187a-b)Google Scholar tells how the seller of a jewel claimed its price from Ma'mūn on the ground that it had been bought for him, and been left unpaid by his agent. The Caliph raised a good defence, but ended in making a politic submission. It is to be noticed that on p. 533, 1. 14, the claimant quotes the passage from 'Omar's, letter of instructions that “the claimant must produce evidence, from the defendant an oath may be exacted” (JRAS., 1910, p. 311)Google Scholar, as though from a legal Magna Charta, and another passage is quoted in the letter of instructions from Ṭāhir b. al-Ḥusain to his son (Ṭab. iii, 1056, 1. 1). Ma'mūn appears again before us in Maẓālim, and not to his advantage, in al-Kindi, ed. Guest, 506. Al-Ḥārith b. Maskīn, attending as Ḳāḍidesignate in Egypt before the official sitting in Maẓālim, was appealed to by the complainant as to the reputation of his wrongdoers. He declared them to be of bad character. The Court sought to evade his testimony, but he persisted. Thereupon he was summoned by Ma'mūn and admitted he had neither suffered at their hands nor had any dealings with them, but said he had spoken from common knowledge (which was, indeed, the legal method of testing credibility of witnesses). Nevertheless Ma'mūn ordered him to leave Egypt for good. This episode is a specimen of the interesting matter added by Mr. Guest to the text of al-Kindi.

page 657 note 1 Hist. d'Egypte de Makrizi, by Blochet, E., 1908, p. 72Google Scholar. Thumal's character is described by Miskawaih, Ibn, Tajārib al-Umam, v, 164Google Scholar, as follows:—

page 658 note 1 The author, Abu Hilāl al-'Askari (Brock, i, 126), was writing in a.h. 395; see Irshād al-Arīb, iii, 135. Ibn al-Zayyāt is mentioned as the first vizier who served three Caliphs. Ibn ‘Ammāra, who appears in Tabari, iii, 1183, as Ibn ‘Ammār, was charged to supervise the falling vizier al-Faḍl b. Marwān, on whose fall Ibn al-Zayyāt became sole vizier. The text is as follows:—

(Paris, Ar. 5986, 183a.)

page 659 note 1 Faraj ba'd al-Shidda, ed. 1904, i, 107–10; a version by Ibn Ḥamdūn (Tadhkira, B.M. Or. 3180, 231b) discloses that the grievance was against Ahmad b. Isrā'il and about landed property. The deficiencies of this edition of the Faraj are as abundant as its inaccuracies. The original MS. is not indicated, but a comparison of Leyden, No. 449 (Cod. 61 Gol.), and of Bodl. Poc., 64, shows how much matter is wanting— inter alia the story of the thirteen millions sought to be exacted from Ibn al-Furāt (Hilāl, , Wuzarā,103–5)Google Scholar.

page 659 note 2 Vol. v, 93. On p. 92 he gives the text of a general letter of instruction by the vizier on the getting in of taxes, as follows:—

page 660 note 1 The grievances so prevalent at Bādūrayā are described as connected with wuḳūf, rusūm, and ḳarāṭīs. Charitable endowments have ever been fruitful in litigation. Rusūm must signify binding usages with regard to taxation, for we find a complaint (Hilāl, 163) that land was assessed on the ordinary footing of the district, astān, whereas it was really a ḳaṭī'a, with a rasm, usage, of old standing. And among the acts of misgovernment of al-Khaḳāni is mentioned (p. 263) that he made a corrupt profit by abrogating usages (isḳāt al-rusūm).On ḳarāṭīs I can find nothing.

page 661 note 1 Al-Minhāj al-Maslūḳ fi Siyāsat al-Mulūk, Cairo, 1327, brought to my notice by Professor Margoliouth. Apart from the anecdote here given the contents of its chapter on Maẓālim are copied from Māwardi. The author, ‘Abd al-Rahmān b. ‘Abd Allah, I cannot identify.

page 664 note 1 Ibn al-Athīr, viii, 302, where Nāṣir al-Daula the Hamdanid, then in power at Baghdad, is described as performing the duties of the office, including the infliction of ḥudūd. The passage appears more fully in what is evidently al-Athīr's, Ibn authority, the Tajārib al- Umam, vi, 74Google Scholar, thus:—

In Egypt in the time of Manṣūr the ḥudūd were inflicted by the Ṣāḥib al-Shurṭa (Kindi, 119).

page 665 note 1 Paris, Ar. 5903, 9b, in the notice of Sharīk sub a.h. 177. The Isnād make it probable that the MS. is a part of the Muntaẓam of Ibn al-Jauzi, rather than of his grandson's work, the Mir'at al-Zarnān.

page 666 note 1 This Ḳāḍi had ordered a man who neglected to attend a Maẓālim summons to be flogged in the mosque (Kindi, 439, 1. 16).

page 667 note 1 The efficacy of the oath is illustrated by a case which Aḥmad b. Ṭūlūn, following ‘Omar's example, referred to the decision of the Ḳāḍi Bakkār. The litigant was sworn by Allah, as was customary, whereupon his opponent asked that he should be sworn, further, on the head of the Amīr; and this he refused. Bakkār was aghast, but the incident did the man good service in the eyes of the Amīr (Kindi, 511, 1. 12).

page 667 note 2 Abu Muḥammad 'Abd Allah b. Abi Zaid 'Abd al-Raḥmān, noticed by Dhahabi, Ta'rīkh al-Islam, B.M. Or. 48, 212b, who says that he composed the Risāla when aged 17 years. The publication is First Steps in Muslim Jurisprudence (Russell & Suhrawardy, 1906), pp. 61–5Google Scholar.

page 667 note 3 MS. Ahlwardt Cat. vii, 309, No. 8321. For the author see Wust., No. 153 and Brock, i, 523–4. The text is as follows:—

(Berlin, We. 1100, fol. 13b.)

page 668 note 1 No mention of advocacy in Moslem legal procedure is known to me: had it existed it would assuredly have furnished anecdote in Adab literature. Wakīlseems to be the equivalent of “attorney”, in its strict sense of alter ego. A claim by al-Mādarā'i to be represented by his Wakīl was rejected by the Ḳāḍi Ibn Ḥarb, on the ground that he would be incompetent (as would be likewise an attorney) to depose on oath in his stead (Kindi, 530). The gain to judicial decisions from the arguments and criticism of advocates is unquestionable. A Ḳāḍi of great repute in Egypt held, soon after the Fatimide conquest, that a child born of infidel parents, whose mother had adopted Islām, was not a Moslem. Popular outcry made him reverse his decision, which the text says was contrary to both Shafeite and Shi'a doctrine (Kindi, 586). The Ḳāḍi was a Malikite, but no diverging view of the law on this head is suggested in the Hidāya. It may be that some Shāhid in attendance should have reminded him of the law, for, apparently, judgments were read over to them, and they could raise objection (Kindi, 593). One case is indeed recorded where a Shāhid cross-examined a witness closely on his evidence, but his object was to vindicate a previous and conflicting decision by a rival Ḳāḍi in the case, as against the proposed judgment (Kindi, 588). And the only apparent sanction to support his action was the right (which the Shāhids at times exercised) of refusing to attend a tribunal—in fact, of going on strike.

(B.M. Or. 48, 104a).

page 671 note 1 The MS. of this work (Paris, Ar. 3482) is now being edited by Professor D. S. Margoliouth.

page 672 note 1 Mānādhiris thus identified as the son of Justān (murdered by his uncle Wahsūdhān in 349, Ibn al-Athīr, viii, 395) who figures on DrMarquart's, “Probable Pedigree of the Sallāri and Rawwādi Rulers of Ādharbījān and Ganza” (JRAS. 1909, p. 174)Google Scholar, and, further, as the father of Shāh, Khusru (JRAS. 1905, p. 472)Google Scholar, and the spelling of the name there quoted from Ibn Khaldūn, B.M. Add. 23272, 254b, is thus justified. The name Bākālījār, too, borne by the late Buwayhid ‘Imād al-Dīn, is in his case often written Bākālinjār, but against the name on the margin of the Ḥadā'iḳ, B.M. Or. 3786, 65a, is a gloss in an ancient hand, , which negatives the other form.