In this excerpt from his treatise on judicial practice, the Shāfiʿī jurist Abū al-Ḥasan al-Māwardī (d. 450/1058) addresses about twenty-five legal issues pertaining to the role of translation and translators in Muslim courts. He then subdivides these issues into four major categories, namely:(1) the legal status of translation, where he investigates the question whether translation should be considered testimony (shahāda) or a simple report (khabar) and outlines the divergence between Shāfiʿī and Abū Ḥanīfa on the subject; (2) the status of the translator as the father or son of the litigant or as a woman; (3) the identity of one litigant as a foreigner; and (4) the identity of both litigants as foreigners. Māwardī then derives the eligibility requirements for translators in court from the eligibility requirements for witnesses, implying similarity between the two roles. Māwardī thus concludes that the fathers and sons of litigants may not act as translators in court. Likewise, women’s translation may be used only in monetary lawsuits (iqrār bi-l-amwāl), in which they must also be accompanied by the translation of another woman and a man. Women may not serve as translators in marriage-related cases (iqrār al-ḥudūd wa-l-manākiḥ), with the exception of cases concerning adultery, in which a woman may serve alongside at least three other translators. In his chapter in Justice and Leadership in Early Islamic Courts, Mahmood Kooria uses this passage to point to a shift in the Shāfiʿī view on the status of translators and testimony, with Mawārdī expanding the Shāfiʿī treatment of this topic considerably.
This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts, ed. Intisar A. Rabb and Abigail Krasner Balbale(ILSP/HUP 2017)—a collection of sources and other material used in and related to the book.