XX. The Office of Kadi in the Ahkam Sultaniyya of Mawardi

H. F. Amedroz

doi:10.1017/S0035869X0004003X

XX. The Office of Kadi in the Ahkam Sultaniyya of Mawardi

Published online by Cambridge University Press: 15 March 2011

H. F. Amedroz

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IN the following pages an attempt is made to present the substance of Māwardi's chapter on the office of Ḳāḍi in his Aḥkām Sulṭāniyya, ed. Enger, Bonn, 1853, pp. 107–28, together with some illustrations of how the rules and requirements there laid down were conformed to in practice. The “crux” of the chapter, ‘Omar's instructions to the Kāḍi, pp. 119–20, has been removed by Professor D. S. Margoliouth (see ante, pp. 307–26), and his help has been forthcoming in the case of other difficulties. Māwardi's entire treatise on Moslem political law is in course of translation by Count Léon Ostrorog, and the merits of the earlier of the two published instalments of the work have been pointed out in the Journal, 1901, p. 906. The later instalment covers chapter v of the treatise, the one immediately preceding that on the office of Kāḍi. That chapter may be taken to represent the Moslem ideal, and it is of interest to consider to what extent the ideal was transmuted into fact. The task is not easy. Of Moslem legal procedure we know but little, the nearest approach to law reports being the notices of judicial proceedings in works dealing with the lives of judges. Such a work is the history of the Ḳāḍis of Egypt by Abu ‘Omar al-Kindi (ob. a.h. 350; B.M. Add. 23,226), now being edited in the “E. J. W. Gibb Memorial” Series by Mr. A. R. Guest, and the edition will include extracts from a ninth century work on the same subject—the Raf' al-Iṣr of Ibn Ḥajar Asḳalāni, Paris Ar. 2149, in which are preserved large portions of the work composed in continuation of that of al-Kindi by Ibn Zūlāḳ, ok a.h. 387, of which no copy is known to exist.

Type: Articles
Information: Journal of the Royal Asiatic Society , Volume 42 , Issue 3 , July 1910 , pp. 761 - 796

DOI: https://doi.org/10.1017/S0035869X0004003X [Opens in a new window]
Copyright: Copyright © The Royal Asiatic Society 1910

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References

^{page 761 note 1} El-Ahkām es-Soulthānīya, Paris, 1901, 1906Google Scholar.

^{page 762 note 1} This MS. has been courteously sent for use at the British Museum by the authorities of the Bibliothèque Nationale. The Museum possesses an abridgment of the work by Ibn Shāhīn, Add. 23,360.

^{page 762 note 2} The text of the passages derived from this source has not been set out, as Mr. Guest's edition will indicate the folios in the case of both the MSS.

^{page 762 note 3} i.e. except in cases involving fixed penalties (ḥudūd) or retaliation (ḳiṣāṣ); see Hidāya, ed. Calcutta, 1831, iii, 321, Hamilton's trans., ed. Grady, p. 341.

^{page 763 note 1} Some holding that the defect can be remedied by signs or by writing (Enger, p. 28).

^{page 764 note 1} p. 111, 1. 1, read , as ed. Cairo, 1298; p. 63, l. 4 a.f., and Shahrastāni, ed. Cureton, p. 155, 1. 11; cf. Goldziher, , Ẓāhiriten, 9, n. 1Google Scholar. He doubts the correctness of this version of the nominee's words. On the nominee, Mu'ādh b.Jabal, cf. Ṭab. i, 1852–3. Yaḥya b. Aktham, when reproached as too young to be Ḳāḍi of Baṣra, instanced the case of Mu'ādh, who was his junior in age when sent to Yaman (al-Jauzi, Ibn, Kitab al-Adlihiyā, ed. Cairo, , 1304, p. 53Google Scholar, and Ibn Khallikān, ed. Būlāḳ, ii, 288, SI. Eng. iv, 35).

^{page 765 note 1} On this sect cf. Shahrastāni, p. 169, and their position on these questions, Ẓāhiriten, 31–5.

^{page 765 note 2} He was told by the Prophet to refrain from deciding in favour of a litigant before hearing his opponent's case. The Prophet's words are differently given by Shahrastāni, p. 155, 1. 5 a.f.

^{page 765 note 3} p. 112, 1. 3, for read .

^{page 768 note 1} p. 116, 1. 13, for read, as Cairo, 67, 1. 3, .

^{page 769 note 1} p. 118, 1. 9, for read, as Cairo, 67 ult., .

^{page 769 note 2} p. 119, 1. 4, for Cairo, 68, 1. 12, reads, .

^{page 771 note 1} p. 124, 1. 1, for Cairo, 70, 1. 3 a.f., reads .

^{page 771 note 2} p. 124, 1. 2 a.f., for Cairo, 71, 1. 10, reads .

^{page 772 note 1} p. 126, 1. 4, omitted, Cairo, 72, 1. 1.

^{page 772 note 2} p. 127, 1. 9, for Cairo, 72, 1. 18, reads .

^{page 773 note 1} The sense requires that (p. 128, 1. 5) should be read

^{page 773 note 2} These traditions are collected in various forms by Ibn 'Abd al-Ḥakam, ob. a.h. 257, (B.M. Stowe Or. 6, 88^b).

^{page 774 note 1} Ḳutaiba, Ibn, 'Uyūn al-Akhbār, ed. Brockelmann, , i, 87, 1. 1Google Scholar.

^{page 774 note 2} Ib. 47, 1. 7.

^{page 774 note 3} Kindi, 135^a.

^{page 774 note 4} Ib. 142^b.

^{page 774 note 5} Ibn 'Abd al-Ḥakam, 93^b, 1. 16; Kindi, 163^b.

^{page 774 note 6} Kindi, 188^a. Another version of the saying is that the former would then appear with the prophets, but the Ḳāḍis with the rulers (Ibn Khall, i, 312; SI. Eng. ii, 16. It is the contemplative as against the active ideal of life.

^{page 775 note 1} Ibn Ḥajar, 27^b.

^{page 775 note 2} Ib. 28^b, and Ibn Khall, ii, 553, Sl. Eng. iv, 593.

^{page 775 note 3} See the opening words of his “Instructions”, ante, p. 311.

^{page 775 note 4} A late instance at Baghdad was that of the Shafeite jurist Abu 'Ali b. Khairān. On his refusal, a.h. 310, the vizier 'Ali b. 'Isa, himself a man of great piety, blocked and set a guard on his door, and Ibn Zūlāk relates that an envoy from Egypt saw children brought to see the sight. After some twenty days popular comment made the vizier relent. Abu 'Ali had a reason for his refusal, for he objected to his school acting as Kāḍi, holding the Ḥanifite to be the more fit—perhaps because of their broader views on Ijtihād. His words were:

(Dhahabi, Or. 48^*, 125^a).

^{page 776 note 1} Ibn Ḥajar, 53^a 98^b, 106^a, and 114^a.

^{page 776 note 2} Ib. 41^b.

^{page note 3} Nevertheless the deputy, Ibn Walīd (a.h. 334–6), having procured in appointment from Mustakfi, disclosed it during his absence, and bribed al-Ikhshīd's vizier, Muḥammad b. 'Ali b. Muḳātil, to get it confirmed. Ibn Harawān's fury at this news was cut short by death (Ibn Ḥajar, 52^b). An earlier deputy, Ibn Zabr, did even worse. His second term of office, a.h. 320, is noticed in 'Arīb, 186, where his name is miswritten. Both he and the above-mentioned Ibn Walīd bore similar names, 'Abd Allah b. Aḥmad; the latter had procured a nomination as Kāḍi, and being on bad terms with Ibn Badr, then in office, he handed this to Ibn Zabr to use as he pleased. He got it confirmed, and then entered on a fourth term of office, terminated a month later by his death (ib. 51^b). Ibn Zabr was indeed a man of resource, as appears from an earlier passage about him. As ḳāḍi of Damascus he was attending the vizier 'Ali b. 'Isa on his visit there during his second term of office (a.h. 314–16), and having to explain the people's outcries against himself on their passage through the town he said the cause was high prices. But the vizier dismissed him, and refused to appoint him to Egypt. Thereupon he at Baghdad, in the pretended character of a Khurāsān pilgrim, disclosed a dream in which the Caliph's ancestor 'Abbās had appeared engaged in erecting a structure which the vizier, as 'Abbās complained, persistently demolished. This he procured a friend to hand in as a Maẓālim matter; it thus came to the knowledge of Muḳtadir, who dismissed the vizier, and Ibn Zabr's appointment to Egypt followed forthwith. Hilāl al-Ṣābi, either from ignorance or imperviousness, makes no mention of this story in his account of the vizier's fall from office (Wuzarā, 314–16), but it was no unlikely ground for the Caliph to have acted on having regard to the nature of the story on which he had previously been induced to dismiss Ibn al-Furāt (ib. 265–7).

^{page 777 note 1} Ibn Ḥajar, 105^b and 51^a.

^{page 777 note 2} Kindi, 206^a.

^{page 777 note 3} Ib. 176^a.

^{page 777 note 4} Engaged in the conquest of Egypt and named governor a.h. 47 (Tab. i, 3404; ii, 84).

^{page 777 note 5} Ibn Ḥajar, 22^a.

^{page 777 note 6} Ib. 12^a.

^{page 778 note 1} (Ibn Ḥajar, 104^a and Ibn Shāhīn, 81^a 1.5), .

^{page 778 note 2} Kindi, 158^{a, b}.

^{page 778 note 3} Ibn Ḥajar, 44^a.

^{page 779 note 1} Proleg, . Not. et Extr., xix, 456 nGoogle Scholar. In a note to his translation of Ibn Khallikān, iv, 50, he says, speaking of the 'Udūl class: “According to the Moslem law of testimony none but persons noted for integrity and piety can be received either as witnesses in a court of justice or as witnesses to bonds and deeds.” By the former class must be intended witnesses to matters of fact, an aspect of the matter which I hope in the future to consider.

^{page 779 note 2} Kindi, 174^a, 175^a and 178^a.

^{page 779 note 3} Ibn Khali, ii, 288, Eng. iv, 35, from Khaṭīb Baghdādi.

^{page 779 note 4} Ibn Ḥajar, 50^b.

^{page 779 note 5} Ib. 130^b; Ibn Shāhīn, 102^a 1. 1.

^{page 779 note 6} al-Jauzi, Ibn, Muntaẓam, Berlin, 9436, 63^aGoogle Scholar.

^{page 780 note 1} Nishwār, Paris Ar. 3482, 85^a. In Tab. iii, 1534 is recorded the death in a. h. 250 of a Ḳāḍi of Baṣra, Ibrāhīm al-Taimi, perhaps al-Tamīmi, and probably identical with the Ibrāhīm summoned by Mutawakkil from Baṣra for the post of Ḳāḍi as stated in the following extract from the Tadhkira of Ibn Ḥamdūn. In that text, which is far from accurate, the nisba also reads al-Taimi.

(B.M. Or. 3180, 222^a)

We have here another commendation of the nolo judicari; nevertheless, Ibn Abi-1-Shawārib must have accepted office, and from Mutawakkil, for on his death, a.h. 244 (Athīr, vii, 55), he was succeeded as Chief Ḳāḍi of Baghdad by his son Ḥasan (called Ḥusain, ib. 118; ob. a.h. 261, ib. 192; and cf. Ṭab. iii, 1684), and he again by another son, 'Ali, first at Samarra and then at Baghdad; ob. 283 (Shāhīn, Ibn, 32^b, 64^b; Irshād al-Arīb, ii, 260–1Google Scholar). 'Ali's son 'Abd Allah was a Ḳāḍi at Baghdad (Dhahabi, Or. 48^*, 280^b), and his son Muḥammad al-Aḥnaf acted as his deputy, both dying in 301 (ib. 16^a), and another son, Ḥusain, was Ḳāḍi there in 317 ('Arīb, 139). Ḥusain's son Muḥammad, who was removed by Mu'izz al-Daula on an Alide's advice (see infra), is noticed by Ibn Ḥajar, 107^b, and Ibn Shāhīn, 84^a, where the advice is attributed to a dream on the authority of Ibn al-Ṣābi. He died in 347 (Athīr, viii, 393), so that the date 352 given for Mu'izz al-Daula's action (ib. 407) is too late. The last-mentioned Abu-1-Ḥasan Aḥmad succeeded al-Akfāni as Chief Ḳāḍi in a.h. 405. Some of the two dozen judicial issue are thus accounted for.

^{page 781 note 1} The process of qualifying is described in the case of Ibn Badr: a document (maktūb) was produced to which the new Shāhid bore witness (Ibn Ḥajar, 106^a, and cf. Adhkiyā, 54).

^{page 781 note 2} Dhahabi, Or. 48, 19^a.

^{page 781 note 3} Kindi, 156^a, 158^a.

^{page 781 note 4} Ib. 185^b.

^{page 781 note 5} Ib. 190^b.

^{page 781 note 6} Ib. 201^b.

^{page 781 note 7} Ib. 193^a.

^{page 782 note 1} Kindi, 214^a.

^{page 782 note 2} Ib. 155^a.

^{page 782 note 3} Ib. 158^a.

^{page 782 note 4} 'Uyūn al-Akhbār, i, 91, and fuller, Baihaḳi, Maḥāsin tea Masāwi, 621.

^{page 782 note 5} Nishwār, 80^a and, on that avithority, Adhkiyā, 54.

^{page 782 note 6} Ibn Ḥajar, 28^a.

^{page 783 note 1} Kindi, 174^a.

^{page 783 note 2} Ib. 192^b.

^{page 783 note 3} Ibn Ḥajar, 50^a.

^{page 783 note 4} Ib. 106^a.

^{page 783 note 5} Ibn 'Abdoun, ed. Dozy, 294–6.

^{page 783 note 6} Ibn Ḥajar, 128^a.

^{page 783 note 7} Adhkiyā, 51.

^{page 783 note 8} Ibn Abi Uṣaibi', i, 196, 1. 7 a.f.

^{page 784 note 1} Ṭab. iii, 2165, 1. 1.

^{page 784 note 2}

(B.M. Or. 5769, 150^a, and differently, ib. 134^a).

^{page 785 note 1} Kindi, 167^b.

^{page 785 note 2} Ib. 185^a and 192^b.

^{page 785 note 3} Ib. 214, and more fully, Ibn Ḥajar, 33^b–34^b.

^{page 785 note 4} Ibn Ḥajar, 107^a.

^{page 785 note 5} Ib. 41^b.

^{page 786 note 1}

(Paris Ar. 2149, 46^a 48^a).

^{page 786 note 2} Kindi, 214^b, and as to Yūnus, Ibn Khall, ii, 553, SI. Eng. iv, 591.

^{page 786 note 3} Kindi, 164^b.

^{page 787 note 1} Ibn Ḥajar, 136^b.

^{page 787 note 2} Kindi, 141^a.

^{page 787 note 3} 'Uyūn al-Akhbār, i, 35. Later he sought to avoid being Ḳāḍi at Baṣra, but his competitor, no less unwilling, propounded a successful dilemma to the Governor, and Iyās was chosen (Ibn Khali, i, 102, Sl. Eng. i, 234). The dilemma is attributed to another in 'Uyūn, i, 85, 1. 14. Iyās, early in life, proved a match for the Ḳāḍi at Medina, ib. 93–4.

^{page 788 note 1} 'Uyūn al-Akhbār, i, 34. 'Omar b. Abd al- 'Azīz specified five qualities as requisite, ib. 81.

^{page 788 note 2} Ib. 86.

^{page 788 note 3} Ṭab. iii, 2212–14.

^{page 788 note 4} Hilāl, Wuzarā, 99.

^{page 788 note 5} Ib., Introd., ii, quoting Nishwār, 75^a.

(B.M. Or. 3180, 201^b) .

^{page 791 note 1} Ibn Ḥajar, 100^a.

^{page 791 note 2} Kindi, 150^a.

^{page 791 note 3} Ibn Ḥajar, 106^a.

^{page 791 note 4} Kindi, 200^a 202^b, and 211^b.

^{page 792 note 1} The two were not identical, and in ḥubs the ultimate charitable object seems to have been preceded by benefits to individuals. It is said of the Ḳāḍi under Baibars—