Roman rule and the Christians and Jews in the Sasanian Empire.
The available evidence does not indicate the scale of recourse to more than one judicial institution, but it clearly suggests that such behavior was not exceptional. The existence of different judicial institutions within one or more legal orders is illustrative of the social and cultural pluralisms that prevailed under both empires. The choice of individuals to settle their legal disputes and validate their transactions before different institutions suggests their concurrent affiliation with different social circles. A citizen of the Roman Empire did not renounce his civil status when he chose to bring his dispute before a village headman, a landlord, or an individual of pious reputation, rather than before a formal representative of the imperial apparatus.
Yet the choice does reflect his or her simultaneous subordination to both imperial and local legal orders. Whereas judicial choice may have worked to the advantage of litigants, patrons of legal orders did not always welcome it, particularly when it undermined their authority. As the last part of our discussion has shown, such concerns were of particular relevance to the implementation and maintenance of confessional disciplines. The church fathers and the rabbis sought at every opportunity to discourage the use of extra-confessional judicial institutions. Patristic and rabbinic literatures contain concrete positions on this question, a fact that in itself points to the existence of choice, to its use, and to its social significance. Religious exhortations and prohibitions, however, were more than dry prescriptions, as they provided the believers a way to imagine their world through concepts of holiness and worldliness, thus outlining the internal and external realms of their communal affiliation. It is here, in the context of overlapping jurisdictions or semiautonomous social fields, that law served to define social spaces by censoring recourse to extra-confessional legal orders. As we turn in the following chapters to examine legal pluralism in the Islamic period and the attitudes expressed toward this pluralism by various authorities (Muslim and non-Muslim), we should recall that these concerns were already prevalent in the period preceding Islam.
CHAPTER 2
Islam’s Judicial Bazaar
A beautiful woman appealed to the qāḍī. [The qāḍī] found her attractive and therefore sought to marry her. [In response] she said: “I do not wish to marry.” … [S]he then turned to the chief of police [shurṭā] from whom she received the same [response] she had received from the qāḍī. She then turned to the head of the market, from whom she received the same. She then proceeded to [King] David’s chamberlain, yet [once again] the response she received was the same as she had from the others. Consequently, she withdrew her lawsuit and remained at home.1
It is possible that this passage, taken from ‘Umāra ibn Wathīma’s (d. 902) ninth-century collection of prophetic tales (Qiṣaṣ al-Anbiyāʾ), reflects the author’s understanding of biblical judicial arrangements in his own contemporary terms.2 The choice between several judicial figures provides the setting for the pseudo-biblical narrative. As early as the seventh century, Muslim officials, including qāḍīs, police officials, market overseers, and governors fulfilled a judicial role, in a way that exhibited a plurality of overlapping judicial authorities. This feature of Islamic judicial practices was continuous with the practices of the pre-Islamic period and, as such, was the target of later Islamic state reforms.
By the early eighth century, the vast territory between the western frontiers of Central Asia in the east and the Iberian Peninsula in the west had been brought under the sovereignty of a single empire. The administrations of the Eastern Roman and Sasanian Empires had been replaced by that of Islamic government. Although still undergoing a process of consolidation and formation, the Islamic regime sought to introduce new patterns of governance and social organization. These included the creation of a judiciary designed to serve the religious ideology of Muhammad and his followers. But the judicial organization of the Islamic state, like other areas of its administration, did not emerge overnight. Rather, its evolution was gradual and passed through a series of milestones.
The present chapter outlines and discusses the judicial institutions to which Muslims had access during the period of the broader study. A multiplicity of judicial institutions, along with a variety of other judicial practices, is seen here as an expression of a legacy handed down to the Muslims from their pre-Islamic predecessors. In this respect, this chapter, like the previous one, purports to contextualize the discussion that lies ahead. It aims not only to assist in filling in the picture of judicial arrangements but also to bolster the governing theme of this study as a whole: the prevalence of legal pluralism throughout the region and period of our discussion and the ongoing conflicts over social control that revolved around it.
The consolidation of the Islamic state entailed the formation of Islamic jurisprudence, followed by the establishment of the Islamic judiciary. At the same time, however, legal exclusiveness was never fully achieved by the Islamic state, and a diversity of legal authorities continued to persist not only within its own apparatus but also outside it, because of its inability to suppress customary practices. The Islamic state, in other words, was not the sole patron of legal institutions but rather shared its authority with local forces that either represented or supplemented it. Formally speaking, Islamic law was the sole point of reference in the administering of justice. Yet the incorporation into Islamic law of customary practices, the survival of pre-Islamic practices, and the persistence of Jāhilī norms attest to a complex setting that involved much interplay among different sources of law within the broader context of administrative decentralization, social informalism, and legal pluralism.
As in the case of the late Roman and Sasanian Empires, legal pluralism under Islamic rule implied a multiplicity of institutions within a single legal order. But in contrast to John Griffith’s definition of “weak” legal pluralism, different rules and institutions were not necessarily prescribed by a single social order.3 The Islamic state had a limited ability to legislate or to insist upon a uniform implementation of the law. Instead, it sponsored or acted alongside the legal enterprises of jurists and provided the infrastructure for the implementation of the law. Although there was formally only one recognized legal order (the sharī‘a), its exploitation by various social groups introduced a diverse legal setting that, in turn, facilitated a notable institutional variety. These features of diversity and variety formed the background for an ongoing competition among the various power groups, particularly between Muslim jurists, on the one hand, and state bureaucrats and upholders of customary practice, on the other. Here, too, religious ideals were of immense importance, with judicial institutions essentially functioning as the practical application of a theological triumph: the triumph of Islam over pre-Islamic codes of normative behavior.
Islamic Judicial Institutions in Modern Scholarship
Modern scholars tend to outline the Islamic judicial organization in terms of a number of well-defined offices.4 At the top of this structure stood the caliph, the formal successor of Muhammad, who embodied both temporal and spiritual power. The judicial office of the Commander of the Faithful stemmed from the concept that Islam is “the community of Allah,” the umma,5 whose first judicial authority was Muhammad.6 The period of Allah’s messenger served as a model for future generations; consequently, his successors, the caliphs, assumed the supreme position in law-giving and judgment.7 As early as the Umayyad period, the caliph delegated judicial authority to provincial governors, who further delegated judicial prerogatives to local judges (qāḍīs).8 Modern scholars view this structure as part of the evolving administration of the early Islamic state, constituted in the newly conquered territories in accordance with earlier legal traditions—most notably, Roman, Sasanian, and Arabian.9
The Evolution of the Islamic Judicial Organization
According
