SHARIAsource

This decree established by the Abbasid caliph, al-Ṭāʾiʿ li-Allāh (r. 974-991) establishes the role of the Ṣāḥib al-Maẓālim as different from that of the judge. The Ṣāḥib, or officer, is tasked with investigating complaints of injustice in situations where the executive power must intervene.  In this capacity he can search “for types of evidence that are obscure and concealed.” In contrast, the judge must rely only on “solid and plain evidence.”

In this source, Sharīf al-Murtaḍā assumes the opinion of many Shīʿite jurists in a matter of judicial procedure: permitting the judges to rule according to their personal knowledge of a case. Hossein Modarressi comments that knowledge in this context was generally understood to mean instances in which the judge had personally witnessed an event occur. Some jurists also distinguish between knowledge acquired by the senses (ʿilm ḥissī) and knowledge acquired by "guessing" (ʿilm ḥadsī), which perhaps includes circumstantial evidence .

In this source, Ayatollah Khomeini seconds the opinion of many Shīʿite jurists in a matter of judicial procedure: permitting the judges to rule according to their personal knowledge of a case. Hossein Modarressi comments that knowledge in this context was generally understood to mean instances in which the judge had personally witnessed an event occur. Some jurists also distinguish between knowledge acquired by the senses (ʿilm ḥissī) and knowledge acquired by "guessing" (ʿilm ḥadsī), which perhaps includes circumstantial evidence .

In chapter two of Justice and Leadership in Early Islamic Courts, Hossein Modarressi examines procedural differences between criminal and ordinary courts during the ʿAbbāsid period. 

In this excerpt, al-Sharīf al-Murtaḍā (d. 436/1044) cites a number of opinions regarding whether judges are permitted to rule according to their personal knowledge of a case. He focuses specifically on the question of how many additional witnesses are needed alongside a judge’s use of his own knowledge to render a valid verdict. In his chapter on circumstantial evidence in Justice and Leadership in Early Islamic Courts, Hossein Modarressi cites this source to illustrate some Shīʿī jurists’ endorsement of the validity of judicial knowledge.

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 primary sources and other material used in and related to the book.

In this excerpt, ʿAbd al-Karīm Zaydān (d. 2014), an Iraqi scholar, gives a summary of the Ẓāhirī, Shāfiʿī, Ḥanbalī, Ḥanafī, and Mālikī viewpoints on the question of judicial knowledge—that is, whether it is permissible for a judge to rule according to his own knowledge in court—and evaluates their merits. In his chapter on circumstantial evidence in Justice and Leadership in Early Islamic Courts, Hossein Modarressi cites this source to demonstrate the range of opinions held by Sunnī jurists on this issue.

In this literary source purportedly recounting early episodes of judges, Abū Yūsuf (d. 182/798) issues a clever ruling for ʿAbbāsid Caliph Hārūn al-Rashīd, effectively saving his son – a prince – from an accusation of zinā (fornication or adultery) by operation of the “doubt canon,” which requires legal officials to “avoid criminal punishments in cases of doubt.” The doubt here is a judicial knowledge, rather than established evidence by a confession or witnesses. He is rewarded by being made Chief Judge (qāḍī al-quḍāt) of Baghdad.

In these excerpts from his manual on judicial practice, Khaṣṣāf provides an overview of the approach to be taken by the qāḍīto consultation. The qāḍīmay consult jurists present in the city in which he operates. If his opinion agrees with theirs, he can judge accordingly; otherwise he should determine which view he deems closest to the truth. If he disagrees with the jurists of that city, he may consult other jurists outside the city, identify the most appropriate view, and act accordingly. He may also take into account the view of a single jurisconsult when he himself does not have a particular opinion on the issue at hand. If the consulted jurist has greater knowledge of Islamic law (fiqh) than does the qāḍī, and the latter is judicious, he may consider both views and choose the most appropriate and correct as the basis of his judgment. Finally, the qāḍīshould abstain from issuing a verdict that in his opinion is faulty, even if some jurisconsult has endorsed it. In her chapter in Justice and Leadership in Early Islamic Courts, Nahed Samour uses these excerpts to provide a vivid picture of judicial practice and, in particular, of the dynamics of judicial consultations between the judge and jurisconsults in a court setting. Samour concludes that consultations and joint deliberations were perceived as yielding a higher degree of accuracy compared with solitary deliberations.

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 primary sources and other material used in and related to the book.

In these excerpts from his manual on judicial practice, Khaṣṣāf provides an overview of the approach to be taken by the qāḍīto consultation. The qāḍīmay consult jurists present in the city in which he operates. If his opinion agrees with theirs, he can judge accordingly; otherwise he should determine which view he deems closest to the truth. If he disagrees with the jurists of that city, he may consult other jurists outside the city, identify the most appropriate view, and act accordingly. He may also take into account the view of a single jurisconsult when he himself does not have a particular opinion on the issue at hand. If the consulted jurist has greater knowledge of Islamic law (fiqh) than does the qāḍī, and the latter is judicious, he may consider both views and choose the most appropriate and correct as the basis of his judgment. Finally, the qāḍīshould abstain from issuing a verdict that in his opinion is faulty, even if some jurisconsult has endorsed it. In her chapter in Justice and Leadership in Early Islamic Courts, Nahed Samour uses these excerpts to provide a vivid picture of judicial practice and, in particular, of the dynamics of judicial consultations between the judge and jurisconsults in a court setting. Samour concludes that consultations and joint deliberations were perceived as yielding a higher degree of accuracy compared with solitary deliberations.

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 primary sources and other material used in and related to the book.

In these excerpts from his manual on judicial practice, Khaṣṣāf provides an overview of the approach to be taken by the qāḍīto consultation. The qāḍīmay consult jurists present in the city in which he operates. If his opinion agrees with theirs, he can judge accordingly; otherwise he should determine which view he deems closest to the truth. If he disagrees with the jurists of that city, he may consult other jurists outside the city, identify the most appropriate view, and act accordingly. He may also take into account the view of a single jurisconsult when he himself does not have a particular opinion on the issue at hand. If the consulted jurist has greater knowledge of Islamic law (fiqh) than does the qāḍī, and the latter is judicious, he may consider both views and choose the most appropriate and correct as the basis of his judgment. Finally, the qāḍīshould abstain from issuing a verdict that in his opinion is faulty, even if some jurisconsult has endorsed it. In her chapter in Justice and Leadership in Early Islamic Courts, Nahed Samour uses these excerpts to provide a vivid picture of judicial practice and, in particular, of the dynamics of judicial consultations between the judge and jurisconsults in a court setting. Samour concludes that consultations and joint deliberations were perceived as yielding a higher degree of accuracy compared with solitary deliberations.

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 primary sources and other material used in and related to the book.

In these excerpts from his manual on judicial practice, Khaṣṣāf provides an overview of the approach to be taken by the qāḍīto consultation. The qāḍīmay consult jurists present in the city in which he operates. If his opinion agrees with theirs, he can judge accordingly; otherwise he should determine which view he deems closest to the truth. If he disagrees with the jurists of that city, he may consult other jurists outside the city, identify the most appropriate view, and act accordingly. He may also take into account the view of a single jurisconsult when he himself does not have a particular opinion on the issue at hand. If the consulted jurist has greater knowledge of Islamic law (fiqh) than does the qāḍī, and the latter is judicious, he may consider both views and choose the most appropriate and correct as the basis of his judgment. Finally, the qāḍīshould abstain from issuing a verdict that in his opinion is faulty, even if some jurisconsult has endorsed it. In her chapter in Justice and Leadership in Early Islamic Courts, Nahed Samour uses these excerpts to provide a vivid picture of judicial practice and, in particular, of the dynamics of judicial consultations between the judge and jurisconsults in a court setting. Samour concludes that consultations and joint deliberations were perceived as yielding a higher degree of accuracy compared with solitary deliberations.

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 primary sources and other material used in and related to the book.

In this excerpt from his manual on judicial practice, Khaṣṣāf (d. 260–1/874–5) discusses the qualifications that ought to be present in a qāḍīand the procedures that he must follow to issue a valid judgment. “After listing the Quran, the Sunna of the Prophet, consensus, the precedent of the Prophet’s Companions and their followers (tābiʿūn), and personal discernment as valid bases for the qāḍī’s judgments, Khaṣṣāf adds that if jurisconsults are present in the city, the qāḍī might also consult them. If his opinion accords with theirs, he can issue a judgement accordingly; alternatively, he might use his own reasoning if their views do not converge. If his own view disagrees with all of theirs, he may write to other jurisconsultsin other cities and judge accordingly. In her chapter in Justice and Leadership in Early Islamic Courts, Nahed Samour uses this passage to point to the presence of other professional figures in court, such as jurisconsults (muftīs), who, by virtue of their juridical knowledge, compete and cooperate with the qāḍīin judicial consultations.

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 primary sources and other material used in and related to the book.

In this text, Muḥammad b. Khalaf Wakīʿ (d. 306/917) records a brief version of the proceedings of the Case of Bughaybigha: a dispute between the Umayyad caliph al-Walīd b. Yazīd (Walīd II) and ʿAlī’s great-grandson ʿAbd Allāh b. al-Ḥasan over the title to the spring of Bughaybigha and the surrounding farmland. In her chapter on land and leadership in early Islamic societies in Justice and Leadership in Early Islamic Courts, Intisar Rabb uses Wakīʿ’s account as the basis of her narrative of the events. She also cites several sources alongside the case to analyze the role of judicial knowledge as one of many disfavored legal canons in early Islamic law.

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 primary sources and other material used in and related to the book.

Ibn Ḥārith al-Khushanī recorded the following case as a ḥikāya, an anonymous report: A Christian appeared before the judge Aslam b. ʿAbd al-ʿAzīz, petitioning to be executed. The anecdote offers insight into the historical role of judges during a period of religious dissent in the Umayyad Caliphate, while the author's narrative voice demonstrates past judicial approaches to rationality, humor, and violent penalization. 

This text is part of Maribel Fierro, The Judges of al-Andalus, forthcoming.

This Country Profile provides a basic overview of the legal history and institutional structures of Mongolia (Mongol Uls), based on research produced by GlobaLex at NYU Law School and the Library of Congress. Under Mongolia's Constitution, Islamic law (sharīʿa or fiqh) has no legal status. 

This Country Profile provides a basic overview of the legal history and institutional structures of New Zealand, based on research produced by GlobaLex at NYU Law School and the Library of Congress. Under New Zealand's Constitution, Islamic law (sharīʿa or fiqh) has no legal status. 

Biography of Mālikī jurist Yaḥyā b. Yaḥyā al-Laythī (152/769–234/848).

This source is part of the Online Companion to the print edition al-Muwaṭṭaʾ, the Royal Moroccan Edition: The Recension of Yaḥyā Ibn Yaḥyā al-Laythī (Harvard Series in Islamic Law), edited and translated by Mohammad Fadel and Connell Monette (PIL/HUP, 2019).

This document is a beyānnāme, or declaration, sent by the Ottoman reʾīsül-kuttāb (chief scribe) to Britain's ambassador to the Ottoman Empire, justifying the Ottoman declaration of war on Russia by explaining Russia's violation of treaty obligations. The document gives insight into eighteenth-century Ottoman attitudes to international law and its relationship with Islamic law. Its use of the phrase naḳż-ı ʿahd (breaking the treaty), which has its origins in a specifically Qurʾānic context illustrates one way in which war was legitimized within the Ottoman Empire. Other phrases used in the beyānnāme demonstrate how Ottoman legal plurality functioned within a martial context. 

Chapters on nominate contracts (endowment, sales, options, barter/ mu‘āwaḍa, hire and lease, partnerships -shirka, muzāra‘a, musāqāt, muḍāraba-, reward/ju‘āla, deposit, fungible and non-fungible loan, agency, financial and personal guaranty, assignment, settlement, pledge, gift), shuf‘a, wills, inheritance, marriage and divorce, mahr, and alimony took almost all of its substance from prominent Shi’i fiqh treatises. Other chapters (classification of properties, easement, usufruct, general rules of obligations and contracts, nationality, registration of civil status, domicile, engagement, guardianship, and evidence) are mainly influenced by Swiss and French Civil Codes and Swiss Code of Obligations.