adopt the principles of judicial organization of their Roman predecessors: a hierarchical organization in which the head of state acts as the highest judicial figure and delegates his authority to a regional governor, who, in turn, extends this authority to a local magistrate.11 It is commonly acknowledged that a central feature of the development of Islamic administration was the growing independence and localization of qāḍīs around the eighth century. Despite attempts to control the territory notionally under its sovereignty, “inadequate means of communication and inadequate public finances” were the sources of the limits to state authority.12 Consequently, while local qāḍīs enjoyed greater autonomy vis-à-vis the state, they were becoming increasingly dependent on local aristocracies and local religious leaders.13
The response of early Islamic governments, most notably under the Abbasids, was characterized by attempts to achieve greater centralization through an intimate involvement in the appointment of qāḍīs and a clearer definition of the latter’s qualifications and prerogatives. In addition, the judiciary was gradually broken down into separate jurisdictions, thus rendering the qāḍī court limited to questions of religious law. The creation of three offices—the “chief judge,” qāḍī al-quḍāt; the “investigation of complaints,” al-naẓar fī-l-maẓālim; and the office of the “inspection of the markets,” the ḥisba—has been seen in this context. The chief judge sat in the capital of the caliphate and, under the caliph, was the supreme judicial authority.14 The office was meant to erase the previous equality between metropolitan and provincial judges. In addition and, perhaps, more importantly, by establishing this office, the Abbasid caliphate was able to place provincial qāḍīs under stricter surveillance and supervision.15 By the second half of the tenth century, after the Fatimid takeover of Egypt, the office had also taken on a role in imperial politics. The Fatimids appointed their own chief judge in Cairo as part of their attempt to signal political independence. Yet while the Islamic judicial administration in the territories under Fatimid rule came under the authority of the chief judge in Cairo, the qāḍīs outside these territories were officially still under the authority of Baghdad.16
The office of the investigation of complaints has been described as one that was originally established so that litigants could lodge complaints against governmental ill treatment. This also included the miscarriage of justice, particularly by qāḍīs. With time, however, this court of appeal became another form of tribunal that dealt with matters of a secular nature, such as property and commercial affairs.17 The judicial sessions of the maẓālim court were led by a secular dignitary, such as a governor or vizier.18 These figures acted on behalf of the ruler and had access to means of enforcement. As such, the maẓālim court had a crucial advantage over that of the qāḍī, who had to rely on the cooperation of the police (shurṭā) for the enforcement of his decisions. Thus, not only was the qāḍī’s office placed under the control of state bureaucracy; it was also “relegated to a secondary position.”19
The third judicial office introduced by the Abbasids, the “inspection of the markets” (ḥisba), had civil and criminal judicial prerogatives.20 The establishment of this office was a further blow to the qāḍī’s jurisdiction. In the narrow sense, the role of the inspector (muḥtasib) was to address matters of dispute that arose in the market. Yet, in practice, he was entrusted with supervision over the morality of the community and hence claimed judicial sanctions that had thus far been reserved for the qāḍī.21
The prevalent understanding is that the caliphal court, particularly under the Abbasids, sought to reserve for itself the prerogative of appointing qāḍīs by limiting their jurisdiction.22 Although the first to initiate a direct appointment of qāḍīs was the Umayyad caliph Sulaymān ibn ‘Abd al-Malik (r. 714-17),23 the procedure was not formalized until the time of the legal reforms of Hārūn al-Rashīd (r. 786-809). Yet centralization may have only added to the local autonomy of qāḍīs.24 Hence, the first to support this administrative modification were Muslim jurists (fuqahā’) who sought to achieve greater influence over the qāḍī’s office at the expense of local government officials, namely, the governors.25
The growing involvement of legal specialists in the qāḍī’s office, on the one hand, and the caliphal policy of extending direct control over the qāḍī, on the other, is thought to have introduced a better idea as to the qāḍī’s judicial jurisdiction. Throughout the Umayyad period and, to a certain extent, into the early Abbasid period, qāḍīs were simultaneously fulfilling a variety of tasks, such as collecting taxes, acting as storytellers, and even serving as governors. This reality was to be replaced by a stricter definition of what services qāḍīs may and may not perform. With the establishment of the ḥisba and, later, the maẓālim, the qāḍī’s jurisdiction was even further limited to matters pertaining to Islamic law, the sharī‘a.26 As a result, modern scholars hold the view that qāḍīs were increasingly drawn from a background of religious learning and specialized in religious law. Accordingly, the qāḍī may have received his formal appointment from the caliphal court; but in practice, his allegiance to local scholars grew stronger, and the legitimacy of his office relied heavily on their support.27 Here joint membership in a legal school (madhhab) served to consolidate political factionalism.28 It is under circumstances of mixed loyalties to state and local forces that qāḍīs found themselves at the center of conflicting ideological and doctrinal affiliations. By choosing to ally with the state, the qāḍī won its support and was officially able to secure his office. Yet such an allegiance had a price, for not only was the qāḍī’s judicial independence at risk but also his legal and religious integrity.29
Administratively, local qāḍīs are seen as part of a judicial hierarchy, passing on judicial prerogatives to a lower class of judges (nuwwāb) and entrusting them with full or partial jurisdiction over small towns.30 Two (or more) qāḍīs could serve within the same geographical jurisdiction, with each one addressing distinct legal matters, such as penal or family law.31 The height of this specialization is thought to have come about in the ninth century. At the same time, qāḍīs continued to fulfill certain tasks that customarily had been in the hands of their predecessors: supervision of charitable foundations (awqāf), guardianship of orphans, administration of the property of absentees and men who died without heirs, addressing petitions of those seeking to convert to Islam, attending to public works, and participating in public events (Friday prayers, funerals, and announcements of the sighting of the moon that signaled the end of the Ramadan fast).32
S. D. Goitein, referring to the Geniza period (predominantly the High Middle Ages), observed: “The most impressive aspect of Muslim juridical organization, as evidenced in our records, is its strict centralization.”33 This statement clearly corresponds to the picture that emerges from the aforementioned summary of modern scholarship. It is an image characterized by qualities of unity, administrative hierarchy, division of tasks, and centralization. At the center of this image, we find the office of the qāḍī, a developed judicial institution that stemmed from its pre-Islamic precedent, the ḥakam. Whereas the latter was the product of an era of ignorance and chaos, the office of the qāḍī, at the zenith of its formation, served as a manifestation of the ideal society. As such, the qāḍī’s sole source of reference was the sharī‘a. He owed administrative loyalty to the caliphal court and ideological loyalty to Muslim jurists. Furthermore, he was highly trained and specialized and was entirely devoted to his office, thus refraining from assuming other posts.
What seems to be under debate among modern scholars is not the process by which pre-Islamic institutions were replaced by Islamic ones but rather the chronology of this process. Some are inclined to view the evolution of Islamic judicial institutions
