The Qādī ( Arabic القاضي, DMG al-qāḍī , decision maker, judge ') is a legal scholar according to the Islamic political doctrine who primarily performs judicial functions on behalf of the caliph and is guided by the system of norms of the Sharia . In modern Arabic, the term is used for any type of state-appointed judge, even if their decisions are not based on Sharia law, but on positive law .
Through the mediation of the fairy tale collection Thousand and One Nights , the term was also adopted into German in the form of Kadi at the end of the 17th century. Colloquially, it stands for judges, for example in the phrase “pull / go / pull in front of the cadre”. The sociologist Max Weber used the term “Kadijustiz” as a paradigm for irrational jurisprudence that is not tied to formal criteria. However, this concept has nothing in common with the Muslim ideas about the ideal approach to Qādī, such as those developed in the Adab-al-Qādī literature.
Beginnings of the Qādī office
The Qādī office was only created in post-prophetic times. Although Mohammed was also considered a legal authority in Medina , his position corresponded more to that of an ancient Arabic ḥakam ("justice of the peace"). Evidence of Muhammad's judicial function is not only provided by the Sīra (biography of Muhammad), but also by the Koran , in which - as a divine revelation - it is specified that Mohammed should be consulted as a judicial authority in disputes among Muslims (see sura 24 , verses 47-56) .
Although there is news that the first three caliphs started Qādīs, these reports are viewed with skepticism by scholars, as there are no authentic sources about administrative life from the early days. One finds oneself on safe ground only in the Umayyad period. The Umaiyad caliphs used Qādīs to relieve themselves of the jurisprudence and therefore resorted to legal scholars who were well versed in questions of jurisprudence and the interpretation of legal sources - initially the Koran and Sunna . The Qādīs among the Umayyads, who as religious scholars always interpreted the law according to religious norms, played an essential part in the formation and development of Fiqh ; their legal finding and judgments were already processed in the first legal books in the 9th century. The Qādī was primarily concerned with questions that were already mentioned in the Koran and also in the traditional Sunna of Muhammad and his companions ( Sahāba ) and thus represented part of the religion: marriage and divorce law, general family law, inheritance law, sales and contract law and the regulations associated with pious foundations ( waqf ).
Another basis of the jurisprudence was the Qādī's own legal view (opinionio) : Raʾy and the independent research and application of already available sources ( Idschtihād ). In Islamic law, however, it is controversial to what extent the Qādī may apply the established teachings of one or more schools of law in the form of Taqlīd .
In the late eighth century, the Abbasid caliph Hārūn ar-Raschīd introduced the new office of Qādī al-qudāt , who acted as a kind of "chief judge", probably following the Sassanid model (so E. Tyan) in Baghdad . His main task was to appoint and monitor the Qādīs in the provincial cities of the Islamic Empire. The importance of the office is supported by the fact that the authors of the annalistic historiography give the names of the Qādīs in each province and city year after year. Under the Fatimids and Mameluks , all the relevant schools of law were represented in the Qādī offices of the provinces and exercised their madhhab- bound and independent legal doctrine-based jurisdiction.
The first Qādīs were used by the Ottomans around 1300. Bayezid I , who found their payment insufficient, determined that they should receive two percent of each inheritance and two akçe for each written document. The district over which the jurisdiction of a Qādī extended was called Qadā '(hence the modern Turkish term kaza for "district"). Qādīs were also sent to the large islands such as Chios , Rhodes , Mytilene , Paros , Andros and Samos . In the Ottoman Empire, dhimmīs also often turned to the Qādī courts, although Christians and Jews had their own jurisdiction.
Qādīs in Medieval Spain
In Islamic Spain , the Qādī usually did not judge the disputes presented to him alone, but formulated his judgments in cooperation with other legal scholars who stood by him as advisors. Such an advisory scholar was called Faqīh muschāwar (faqīh mušāwar) . An old collection of legal cases, which has only been available to research for a few years, documents that the Qādī Ibn Ziyad, Ahmad ibn Mohammed ibn Ziyad al-Lachmi (in office until 925 in the reign of Abd ar-Rahman III. In Córdoba) at least had eleven such legal advisors. Such legal scholars were also used in the sensational blasphemy trial against Hārūn ibn Habīb around the middle of the 9th century. During this process, they each gave their own judgment on the case, from which the ruler then selected the one that seemed to him the most correct.
The main office of justice in Islamic Spain was called Qādī al-dschamā'a ( qāḍī al-ǧamā'a ; "judge of the community", a civil judge in the capital Cordoba ). For certain tasks, he appointed agents with special tasks: the estate administrator, the administrator of pious foundations, executors of wills, etc.
In the areas that came under Christian rule in the course of the Reconquista , the Muslims, as Mudejares, had the right to take their own Qadis. For example, after Jacob I of Aragón had taken the city of Xàtiva , he stipulated in a document in 1251 that the Muslims there should appoint their own Qādī and four adelantados . The office of chief qadis for the lands of the Crown of Aragon was in Saragossa . The Qādī's office in the Kingdom of Aragon had two sides: on the one hand, the Qādī was the representative of Muslims and an instrument used by the Christian authorities to rule them; on the other hand, it was also a fortress of Islamic religion and culture. The Qādīs in Valencia , which were mostly used by the crown, mostly came from the Bellvis family.
The Qādī stand in Yemen
In northern Yemen , the term “Qādī” acquired a special meaning in the early modern period. Here it not only referred to people who had themselves received training in religious law and performed judicial functions, but also their own social class, which was located below the Sayyids . In the case of the Yemeni Qādīs, the Qādī status was not necessarily linked to an office, but could also indicate the descent from a Qādī family that was closely related to the Zaidite Imam . While the Sayyids considered themselves to be descendants of the Prophet Muhammad , the Qadis claimed to be descendants of South Arabian tribes that go back to Qahtan . Unlike the Sayyids, they could not become imams themselves, but they could hold ministerial, judicial and administrative offices. Together with the Sayyids they lived in protected enclaves on tribal territory, which were known as "Hijar" ( hiǧar , singular hiǧra ).
The Qādī according to the Islamic state doctrine
Duties of the Qādī
- the resolution of legal disputes, either voluntarily through reconciliation ( ṣulḥ ) or compulsory through judgment (ḥukm bātt) .
- demanding the performance owed from the debtor and forwarding the same to the obligee after the obligation has been established either through acknowledgment (iqrār) or through evidence (baiyina) .
- the establishment of guardianship (walāya) for persons who are incapacitated because of mental illness (ǧunūn) or minority (ṣiġar) , and the limitation of the legal capacity of persons for whom this is deemed appropriate due to wastage or insolvency in order to protect the property of other persons.
- the supervision of the pious foundations by preserving their share capital (uṣūl) and increasing their profits (furū ') , by confiscating their income and using it for the intended purposes. If there is a person in charge of oversight, he has to oversee them. If there is no such person, it is his job to do it himself.
- the execution of legacies (waṣāyā) according to the will of the testators. When the beneficiaries are individually specified, enforcement consists in enabling these persons to take possession of the bequeathed property. If they are not specified individually, it consists in looking for suitable people.
- the marriage of widows to husbands of equal age if they do not have a legal guardian but marriage has been proposed to them.
- the imposition of hadd sentences on persons guilty of such offenses.
- overseeing the affairs of his district by preventing attacks on streets (ṭuruqāt) and public places (afniya) and removing annoying additions and buildings. He can take the initiative himself, even if there is no plaintiff.
- the examination of his witnesses (šuhūd) and secretaries (umanāʾ) and the selection of his deputies.
- the equal treatment of the strong and the weak, high and low people, without following his whims.
Requirements for assuming the Qādī office
According to al-Māwardī, the Qādī office can only be assumed by those who meet seven requirements:
- he must be a man, that is, masculine and of age. The necessity of the male sex is derived from Sura 4:34 .
- he must be able to judge (ṣaḥīḥ at-tamyīz) , wise (ǧaiyid al-fiṭna) and far from absent-mindedness and carelessness and be able to clarify the problematic and solve the puzzling through his intelligence.
- he must be free, that is, he must not be a slave .
- he must belong to Islam, that is, be a Muslim. This is derived from Sura 4: 141: "God will never give the unbeliever a means to stand above the believer" (Translator H. Bobzin ).
- he must have integrity ('adāla) , that is, be credible, chaste and unquestionable and be able to control his emotions.
- he must be able to see and hear.
- he must know the norms of the Sharia (al-aḥkām aš-šar'īya) . This knowledge must include its basics (uṣūl) as well as its practical legal applications (furū ') . Among the foundations that he needs to know include four things: 1) the Book of God, that is, the Koran , for its various rules of interpretation (eg. Abrogation ), 2) the Sunnah of God's Messenger, engaged in the Hadith manifests , 3.) the interpretations of the ancestors (salaf) including the things on which they agreed or differed opinions, so that he can follow their consensus and, in the event of their dissent , seek his own judgment, i.e., practice ijtihād , 4. ) the rules of inference by analogy .
The Hanbali scholar Ibn Hubaira (d. 1165) stated that, with the exception of Abu Hanifa, all the other founders of the law school saw the qualification of ijschtihād as a prerequisite for assuming a Qādī office. For his time he wanted this to be understood in such a way that the Qādī, if he belongs to a school of law, must at least know the doctrines of all other schools of law in order to be able to comply with the majority opinion in disputes.
Islamic Qādī literature
Qādī biographical collections
The importance of the judge and the Qādī office in Islamic society has contributed to the development of a literature that is cultivated by both historiography and legal literature. In the historiography and local history of Islamic provinces, the independent branch of biographical literature emerged, which dealt exclusively with the work of the judges. These books were called Achbār al-qudāt ( aḫbār al-quḍāt ; "Reports (of) the judges"). In a chronological order of their exercise of office one recorded not only anecdotes but also legal judgments that were significant for the Qādī in question or even later authoritative for comparable cases. The oldest work of this genre comes from the historian and jurist Wakī ' (d. 918 in Baghdad), who was himself a Qādī. A generation later, al-Chushanī (d. 971), who emigrated from Kairouan to Andalusia, wrote his biographical work on the Qādīs of Cordoba. Around the same time, the work of the Egyptian local historian al-Kindī (d. 971), who biographically described both the governors and the judges of Egypt up to his time, was written.
In legal literature, it was again the Islamic jurists (fuqahāʾ) who defined the Qādī's rules of conduct, his dealings with plaintiffs, defendants and witnesses as early as the late 8th century. Around the 10th century, the written, but not uniformly formulated and valid genre of adab al-qādī literature, in which the rules of conduct for judges are described, developed in legal literature . A student of Abū Hanīfa , Abū Yūsuf , who died in Baghdad in 798 and who took over the Qādī office of Baghdad under the caliphate of al-Hadi (785-786) and held it until his death, is said to have been the first who has written a treatise under the title Adab al-Qādī .
The oldest work in this genre that has survived as a print goes back to Haitham ibn Sulaimān al-Qaisī, who died in 888, a representative of the Hanafi school of law in North Africa Ifrīqiya and was published on parchment in 1970 as a unique copy . It bears the title Adab al-qāḍī wa-l-qaḍā ' (" Rules of conduct of the judge and the judiciary"). In addition to the rules of the procedural rules, the Adab-al-Qādī literature contains moral and ethical instructions that a Qādī must follow when exercising his office. According to the Islamic view, the Koran and the traditional legal practice of the prophet naturally have a normative character.
Other officials with judicial duties in Islamic countries
Both in the Islamic East and in the Islamic West, the chief Qādīs or the rulers - the caliphs or emirs - appointed various other officials with judicial tasks in addition to the provincial Qādīs, whose administration they supervised themselves. These included:
- The Sāhib al-madīna ( ṣāḥib al-madīna ; "governor"). Its main job was to maintain public order in the city; he worked with the police ( šurṭa ). For example, the mayor took action when a police investigation was required to solve a murder case. In these cases, and in the case of other transgressions, he was not authorized to apply the Shari'a -legal penalties ( ḥadd , Pl. Ḥudūd); because for their execution both the legal opinions of the advisory assembly, the shūrā and the judgment of the qādīs were necessary.
- The Sāhib asch-shurta wa-s-sūq ( ṣāḥib aš-šurṭa wa-s-sūq ; "Market overseer , market governor") also called Muhtasib , who was appointed by the respective ruler and not by the Qādī. Its main task was to ensure order and justice in the markets, to prevent weight manipulation by the sellers and to control trade in all areas. In this capacity, he was also able to act as a judge with his own judgment in disputes.
- Sāhib al-mazālim ( ṣāḥib al-maẓālim ; "Overseer of legal complaints "): Parallel to the aforementioned judicial organizations and the Qādī office, there was another jurisdiction, the so-called mazalim courts , which were based on the absolute power of the ruler and his governors were based. They investigated abuse of office by authorities against citizens, abuses in tax collection and exercised general oversight over the state administration. Judgments from Qādī courts could be heard again and reversed by these courts. Their function was comparable to a petition court. With the establishment of this court, criminal proceedings have gradually been withdrawn from the powers of the Qādī jurisdiction.
- Paul Gerhard Dannhauer: Investigations into the early history of the Qāḍī office. Diss. Bonn 1975.
- Gy. Káldy Nagy: "Ḳāḍī. Ottoman Empire" in The Encyclopaedia of Islam. New Edition Vol. IV, p. 375.
- Raif Georges Khoury: On the Appointment of Judges in Islam from the Beginning to the Rise of the Abbasids. In: HR Roemer and A. Noth (eds.): Studies on the history and culture of the Middle East. Festschrift for Bertold Spuler on his seventieth birthday. Brill, Leiden 1981, p. 19 ff.
- Christian Müller: Legal practice in the city-state of Córdoba. On the law of society in a Malikite-Islamic legal tradition of 5/11. Century. In: Studies in Islamic Law and Society. Ed. by Ruud Peters and Bernard Weiss. Vol. 10. Brill, Leiden 1999.
- Annemarie Schimmel : Caliph and Qadi in late medieval Egypt. Leipzig 1943.
- Irene Schneider: The image of the judge in the "Adab al-Qādī" literature. Frankfurt 1990.
- Irene Schneider: The characteristics of the ideal qāḍī justice - Critical remarks on Max Weber's categorization of Islamic jurisprudence. In: Islam. 70 (1993) 145-159.
- Fuat Sezgin : History of Arabic Literature. Cape. Fiqh. Bd.IS391ff. Brill, Leiden 1967.
- E. Tyan: Histoire de l'organization judiciaire en pays d'Islam 2nd edition. Leiden 1960.
- E. Tyan: "Ḳāḍī" in The Encyclopaedia of Islam. New Edition Vol. IV, pp. 373b-374b.
- Cf. Schneider: "The characteristics of the ideal-typical qāḍī justice". 1993, pp. 145-159.
- See Harald Motzki: "The emergence of law" in Albrecht Noth and Jürgen Paul (eds.): The Islamic Orient. Outlines of its history. Ergon, Würzburg, 1998. pp. 151-172. Here p. 156.
- Cf. Dannhauer: Investigations into the early history of the Qāḍī office . 1975, pp. 16-35.
- Cf. Káldy Nagy: "Ḳāḍī. Ottoman Empire" in EI² Vol. IV, p. 375a.
- Cf. Eugenia Kermeli: "The Right to Choice: Ottoman Justice vis-à-vis Ecclesiastical and Communal Justice in the Balkans, Seventeenth-Nineteenth Centuries" in Andreas Christmann and Robert Gleave (eds.): Studies in Islamic Law. A Festschrift for Colin Imber . Oxford University Press, Oxford, 2007. pp. 165-210. P. 186.
- See Kermeli: "The Right to Choice". 2007, pp. 165f.
- See Reinhart Dozy : Supplément aux dictionnaires arabes . 3. Edition. Brill, Leiden, GP Maisonneuve et Larose, Paris 1967. Vol. 1, p. 801: faqīh mušāwar
- Cf. Miklós Murányi : Das Kitāb Aḥkām Ibn Ziyād. In: Journal of the Deutsche Morgenländische Gesellschaft 148 (1998) 241-260.
- See Müller: Judicial practice in the city-state of Córdoba. 1999, pp. 135-141.
- See LP Harvey: Islamic Spain, 1250–1500. University of Chicago Press, Chicago, 1990. pp. 107 f, 126 f.
- Entry alcalde. In: Real Academia Española : Diccionario de la lengua española , 22nd edition, Madrid: Espasa-Calpe, 2001, ISBN 84-239-6813-8 , online version .
- See Bernard Haykel: Revival and Reform in Islam. The Legacy of Muhammad al-Shawkani . Cambridge 2003. p. 4.
- Cf. al-Māwardī: al-Aḥkām as-sulṭānīya. Ed. Aḥmad Mubārak al-Baġdādī. Dār Ibn Qutaiba, Kuwait, 1989. pp. 94-95. Digitized and the engl. Translated by Asadullah Yate digitized version and Abū Ya'lā Ibn al-Farrāʾ: Al-Aḥkām as-Sulṭānīya . Ed. Muḥammad Ḥāmid al-Faqī. 2nd edition Maktab al-I'lām al-Islāmī, Cairo, 1985. p. 65, also reproduced verbatim in Muḥammad 'Abd al-Qādir Abū Fāris: al-Qāḍī Abū Ya'lā al-Farrāʾ wa-kitābu-hū al-Aḥkām as-Sulṭānīya. 2nd edition. Mu'assasat ar-Risāla, Beirut, 1983. pp. 373 f. Digitized
- Cf. al-Māwardī: al-Aḥkām as-sulṭānīya. Ed. Aḥmad Mubārak al-Baġdādī. Dār Ibn Qutaiba, Kuwait, 1989. pp. 88-90 digitized and the engl. Translation by A. Yate digitized
- Cf. Yaḥyā ibn Muḥammad Ibn Hubayra: al-Ifṣāḥ 'an ma'ānī ṣ-ṣiḥāḥ. Ed. Abū-'Abdallāh Muḥammad Ḥasan Muḥammad Ḥasan Ismā'īl aš-Šāfi'ī. 2 vols. Beirut: Dār al-Kutub al-'ilmiyya 1417/1996. Vol. II, p. 279.