Others choose to advance the chronology, suggesting only a gradual disappearance of pre-Islamic Arabian arbitration institutions.35 Yet the overall image is one of an Islamic administration constantly attempting to tighten its control over shar‘ī judicial institutions.
The centralization of the Islamic judiciary was to come at the expense of preexisting Arabian judicial institutions and practices. Émile Tyan, referring to the nature of the judicial organization under Islam, commented: “It certainly could not be the primitive system of arbitral justice of pre-Islamic Arabia that would prevail.”36 Schacht provided the reason for this development: “The arbitration of pre-Islamic Arabia and of the earliest period of Islam was no longer adequate, and the Arab ḥakam was supplanted by the Islamic qāḍī.”37 Goitein expressed less confidence concerning the “dying out” of pre-Islamic practices: “ḥukm al-Jāhilīyya, judgment according to arbitrary opinion or established local practice, did not disappear immediately … but was replaced only gradually … and, as is well-known, never completely.”38
The Sources’ Bias
Plausible as modern interpretations may appear, we should recall that they are largely based on a limited body of sources. These were composed in different periods and were often used for advancing specific agendas.39 Moreover, it is essential to stress that medieval prescriptive accounts, such as the adab al-qāḍī literature (see below), sought to perpetuate an ideology that was meant to denigrate the pre-Islamic period. In contrast to the chaotic pre-Islamic era, Muslim proponents endeavored to introduce, through the framework of the umma, features of social order and stability within a monotheistic setting.40 In order to promote this new ideology, there was a need to constantly undermine Jāhilī values and institutions by labeling them as pagan and anarchistic.41 Thus, for example, the term ṭāghūt, denoting (among other things) pre-Islamic Arabian deities, was a derogatory term used in the Islamic period to refer to customary Arabian legal practices.42 The dialectic between the pre-Islamic past and the Islamic present became more pronounced in the case of judicial institutions. Here the role of the judiciary came to be of particular importance as a central means for implementing the proper conduct of Islamic life according to Allah’s will. Thus, one way of treating medieval Islamic sources is less as accounts of a real society than as those of an ideal one.
We should remember that the authors of medieval accounts were legal scholars. Prescribing norms, they sought to portray an image of an ideal legal order.43 The most explicit testimony to the views of Muslim jurists can be found in legal treatises, which systematically outlined legal principles and regulations in accordance with their respective legal affiliation (madhhab). Admittedly, these treatises make reference to arbitration (taḥkīm) as a legitimate form of Islamic adjudication. Yet when we examine arbitration principles closely, we find that, for the most part, Muslim jurists, irrespective of their legal affiliation, tended to allow this form of legal resolution in very few instances, rendering it significantly inferior to the qāḍī’s authority.44
The efforts of Muslim legal scholars to dominate legal institutions can be seen in the composition of numerous treatises of anecdote collections and of judicial etiquette manuals (adab al-qāḍī).45 The latter were composed by legal scholars of all doctrinal affiliations in order to codify a series of regulations for qāḍīs to follow.46 Adab al-qāḍī authors were legal theorists and practicing judges who often maintained close relationships with political powers.47 Their works reveal their preoccupation with two particular matters: general rules regarding the judiciary and judicial conduct; and judicial procedures such as testimony, swearing oaths, and issuing documents. Thus the professional pre-requisites of the qāḍī’s office are outlined as follows in al-Khaṣṣāf’s (d. 874) Kitāb Adab al-Qāḍī:
[I]t is not permitted to anyone to assume the office of the qāḍī until he masters the Scriptures, the normative legal custom [instituted by the Prophet] [sunna], independent reasoning [ijtihād], subjective opinion [ra’y], and investigation [naẓar]. This is since [though] he may be able to master the text of the Scriptures and the legal custom, he [may] not possess the [skills of] argumentation, investigation, and locating the derivative institutes of the law [furū‘] in their theoretical foundations [uṣūl]. [In that event] he will not be able to pass sentence.48
Procedural concerns can be seen in the discussion over testimony: “The testimony of a eunuch is permissible since he is a man, and it is included in his words: ‘Get two witnesses out of your own men’ (Q. 2:282). And it is told about ‘Umar (the second caliph, r. 634-44) that he permitted the testimony of ‘Alqama the eunuch without disapproval on the part of any of the companions.”49
From a historical perspective, the value of this literature goes beyond the technical information that it contains. An examination of the contents of adab al-qāḍī works exposes the norms and patterns of practice that Muslim jurists sought to establish. Although Islamic law has developed over time, the relevance of this literature has persisted because of its theoretical and normative character.50
The attempt to dominate a means of social control, through which an ideological outlook could be transmitted, is exemplified by the case of medieval Muslim preachers and storytellers. Jonathan Berkey, in his study on popular preachers in medieval Islam, has convincingly shown how state bureaucrats and religious scholars sought to control the activities of popular preachers.51 Berkey’s analysis is noteworthy for the present analysis, as it illustrates a case in which social control was channeled through a literary discourse. It concerns preachers and storytellers, who, like jurists, played a crucial role in answering questions concerning proper behavior and practice.52
Muslim jurists tended to stress the impeccable qualities of the qāḍī. The ideal judge was to avoid state appointment.53 By highlighting cases in which individuals sought to escape judicial appointment, the authors of these works depicted the ideal scholar as a man of great piety, who appears in contrast to those who accept state employment.54 There appear to be numerous anecdotes of this type referring to scholars who sought to escape judicial office.55 The recurring theme of scholars escaping an appointment to the qāḍī’s office makes it plausible that such anecdotes were not meant only to discourage scholars from assuming temporal offices but also to encourage judges to seek appointment by sources other than the state. A variety of case studies dealing with the office of the qāḍī in provincial towns such as Timbuktu, Nishapur, Tyre, Tripoli, and Damascus attest to the control of local urban elites over local judicial institutions.56 Here it is worth recalling that these elites were dominated by Muslim scholars who insisted on a monopoly over judicial appointments. In sum, the contents of medieval accounts should be taken with a grain of salt. This indispensable source material notwithstanding, far too many indications suggest that the authors of Islamic legal literature were themselves active participants in the very system that they were observing.57
Informality and Diversity: The Endurance of Pre-Islamic Customary Practices in the Classical Period
Early Islamic literature offers a very limited idea as to the type of judicial options that were available to Muslims. The impression of a formal and centralized judicial structure is enhanced not only by the sources’ insistence on presenting such a judicial organization but also by their silence with respect to customary judicial practices. The fact that many of those who adhered to customary law were illiterate could be seen as one reason that “the literary classes” chose to ignore them and their practices.58 While custom (‘urf or ‘ada) had been incorporated into Islamic jurisprudence and its principles had been applied in Islamic courts, its institutional manifestations were never acknowledged.59 As a rule, however, it would be an error to draw a rigid line between shar‘ī
