Muhammad al-Mawardi: “On Qadis”

Explanation and Analysis of the Document

Al-Mawardi favored Shafi‘i juridical interpretations. As practical matter, this means that Islamic jurists should appeal to four sources, or ussul al-fiqh, in descending order: As always, the Qur’an comes first, followed by the Sunna; the ijma, a word meaning “consensus”; and qiyas, meaning “analogy.” However, in istinbat, or “derivation of laws,” this school places a great deal of emphasis on rigorous application of the principles of law, in contrast to conjecture or speculation. Private judgment is excluded in favor of legal precedent. Jurisprudence by analogy is frowned on, for it can introduce an element of private judgment and speculation. Accordingly, followers of this school are referred to as traditionalists; in contrast, followers of other schools, which do admit private judgment and jurisprudence by analogy are referred to as “people of private judgment.” Although al-Mawardi emphasizes Shafi‘i, he presents various views on many of the conditions listed as requirements for a person to be appointed a qadi. The selections of text presented here deal specifically with appointing qadis, but there are references to the appointment of other positions.

As a whole, the book presents views on a variety of other topics pertaining to Islamic public law. In addition to judges, he includes discussions about the rights, duties, and responsibilities of military commanders, governors, and other public officials. The book provides insights into a wide range of related subjects, such as how to divide the spoils of war, how to fight apostates (those who reject Islam) and rebels, and how to address issues surrounding land reclamation and boundary disputes, taxes, and crime and punishment.

Condition 1

The first condition is twofold: A qadi; must be an adult, and he must be male. While al-Mawardi does not give an exact age at which adulthood is attained, in Abbasid society at that time the age would have been approximately fourteen years old, depending on the onset of puberty. That is the age at which, according to various interpretations of the prophet Muhammad’s sayings, a youth is able to comprehend cause and effect and thereby becomes accountable for his own actions. A younger boy would not be responsible for his actions and therefore could not pass judgment on the actions of others. According to al-Mawardi and the Shafi‘ischool of thought, a qadi also must be male because males have been given faculties of reason and intellect superior to those of females. As support for his position on gender relations, al-Mawardi cites sura 4, verse 38 of the Qur’an: “Men have authority over women because of what God has conferred on the one in preference to the other.” He interprets this verse to refer to intelligence; other interpretations suggest that the verse refers to the marital relationship or to a societal need for hierarchy.

Al-Mawardi does state that a qadi could base a ruling upon the testimony of women, which was another topic of debate among the various schools of Islamic jurisprudence. He notes that the Hanifi school permits female qadis in cases in which women could provide an individual testimony; for example, a woman could be a qadi in family matters but not in financial matters. Al-Mawardi also cites Ibn Jarir al-Tabari (838–923), a historian who also wrote commentaries on the Qur’an. Tabari felt that women should be allowed to serve as qadis as long as their rulings did not contradict the Qur’an or the general consensus of the Islamic community.

Condition 2

According to most interpretations of Islamic law, in order to qualify for legal responsibility, an individual had to have the use of his five senses: sight, sound, touch, taste, and smell. Al-Mawardi states that as the second condition required to become a qadi, a man must possess more than that basic requirement; he must “have sufficient acumen to clarify difficulties and resolve obscure cases.” Additionally, the person must be able to comprehend the difference between right and wrong and to quickly assess a situation in order to make decisions relating to it. In essence, the second condition requires a potential qadi to be free from intellectual defect.

Condition 3

Personal freedom is the third requirement: A qadi could not be a slave. The rights of slaves varied according to their legal status; since Islam encouraged the eventual freedom of slaves, some owners stipulated that upon their death or after a fixed length of time, their slaves would be freed. As al-Mawardi explains, slaves whose freedom was incomplete or those who would eventually be freed but were still slaves did not have the legal standing to provide testimony. Partial slaves likewise had no standing. (Partial slaves were the equivalent of what were known in Europe as indentured servants—servants legally bound to perform service for a specified period of time.) Once a slave had been freed, he could serve as a qadi, except in one special circumstance mentioned by al-Mawardi: Former slaves would not be able to rule in cases relating to a former master, to whom they might feel a sense of obligation or toward whom they might harbor animosity. Al-Mawardi notes that former slaves might have judicial authority because descent is not taken into account in conferring such authority—that is, slavery in one’s past or one’s ancestors’ past was not an obstacle.

Condition 4

Based on the Qur’an and according to all schools of Islamic thought, in order to be a qadi, a man had to be a Muslim. Al-Mawardi quotes the Qur’an (sura 4, verse 140), which says that God will not give unbelievers an advantage over believers. Other verses of the Qur’an list a hierarchy of other religions, with the other Abrahamic religions (Judaism and Christianity) being considered above those outside the Abrahamic tradition. Al-Mawardi notes that Abu Hanifa had said that a non-Muslim might be appointed as judge of his coreligionists but the non-Muslim judge’s rulings would be binding only insofar as his coreligionists accepted them.

Condition 5

The fifth requirement of a person serving as a qadi is rectitude; that is, the qadi had to display a sense of justice and truth in both word and deed. Islam details various sins and forbidden actions, such as drinking alcohol, engaging in sexual relations outside of marriage, and eating forbidden foods such as pork; Muslims had to avoid such actions in order to be considered morally upstanding. Furthermore, the community had to view the individual as truthful and trustworthy. The individual had to be free of emotional bias in the cases over which he presided; he could not have a familial or business connection to either party in the case. A person who met all these requirements had the moral character necessary for a qadi.

Condition 6

Al-Mawardi holds that to be a qadi, a man could not be blind or deaf, since sight and hearing were necessary in differentiating between people giving legal testimony. He notes that Maliki thought permitted a blind person to serve as a qadi because the same person would be allowed to testify. Al-Mawardi notes further that there were the same differences of opinion on whether deafness was a bar to becoming a qadi as there were regarding whether it was a bar to being an imam. (Imam, in this context, refers to the caliph.) He states that in both cases deafness constituted too great a handicap. He does not, however, feel that other physical disabilities should exclude a person from consideration for qadi, though he notes that “freedom from physical defects gives greater dignity to those exercising authority.”

Condition 7

Finally, a qadi had to have knowledge of Islamic law. Al-Mawardi here lists the sources of Islamic law. First is the Qur’an, Islam’s sacred text. Qadis had to have a thorough education that had enabled them to develop an advanced understanding of the Qur’an’s rules for proper living. Not all topics contained in the Qur’an are clear, and a qadi had to have sufficient knowledge to clarify the ambiguous portions of Islamic law. Certain verses of the Qur’an limit certain other verses; these are said to abrogate those other verses.

The second source of Islamic law is Sunna, customs and practices based on Muhammad’s life, as recorded in the Hadith. For issues regarding daily life, not all possible scenarios are addressed in the Qur’an, and therefore Muslims look to Muhammad’s life for guidance. Stories of Muhammad’s life were originally transmitted orally, but during the first and second centuries of Islam, religious scholars compiled those anecdotes into structured texts. The two best known and most detailed were complied by al-Bukhari and Muslim ibn al-Hajjaj (ca. 817–875). Each anecdote is preceded by a list of honorable and reliable people, reaching back to Muhammad, who passed the story down. The list typically read something like this: “Person A heard from Person B that Person C saw the Prophet Muhammad do X.” This list is the anecdote’s proof of authenticity.

In addition to knowing the various Hadith, it was important for a qadi to have knowledge of the Hadith-based rulings of previous leaders and judges. When issuing a ruling, judges could either follow a particular school of law or, when faced with conflicting possible rulings, could offer their own interpretation in a process of independent analysis known as ijtihad. However arrived at, earlier judges’ interpretations comprise a third source of Islamic law. Finally, the fourth source is the qadi’s personal knowledge of analogy—his ability to compare one crime and punishment with another in order to ensure fairness and equality in his rulings.

A man who has mastered these four sources would become a religious authority, or a mujtahid, and could become a qadi or a mufti (a scholar who interprets Islamic law and can issue pronouncements but who does not preside over legal cases). Al-Mawardi notes that if someone were appointed as a qadi but did not meet all the requirements, his appointment would be invalid and his rulings and judgments rejected. Moreover, when a qadi was wrongfully appointed, both he and the person who appointed him would be held accountable for any problems that his rulings create.