A Common Justice. Uriel I. Simonsohn

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 and non-shar‘ī judicial institutions in a way that would imply the wholesale adoption of strict customary or shar‘ī legal principles.⁶⁰ Instead, customary practice not only found its way into the sharī‘a but also thrived outside of its realm in the form of customary judicial institutions. Thus, rather than turning to a qāḍī, individuals might have chosen to settle their disputes or validate their transactions through the oversight of a variety of figures, whose legitimacy was drawn from their reputation and from personal ties to the litigants.

      Notions of holiness also contributed to fostering relations of trust among individuals. This was the case, for instance, of the supernatural authority attributed by Arab tribesmen to members of holy families, who trace their authority to an ancestral background linked to a prophet or a saint.⁶¹ Thanks to their holy reputation, such figures were found presiding over tribal arbitrations.

       Pre-Islamic Arabian Judicial Institutions

      Modern scholars seem to agree that the Muslims established their legal administration in the conquered territories based on past traditions. Yet the question of their main source of inspiration remains unresolved. Schacht’s well-known emphasis on Iraq as the cradle of Islamic law has been countered on a number of grounds.⁶² Patricia Crone has strongly argued against what she describes as Schacht’s overemphasis of the adoption of foreign elements in Iraq and his disregard for the influence of Roman, Syrian, and Egyptian provincial practices, noting that “Schacht never discussed the possibility that Roman law was transmitted to Islam through Umayyad Syria.”⁶³ Although Crone agrees that the heritage of Roman administrative paradigms cannot be denied, she argues that provincial customary practices supplemented formal ones and should therefore be taken into account in the search for the origins of Islamic models.⁶⁴

      Modifications of perceptions are indeed in order, but a stronger point needs also to be made about the role of pre-Islamic Arabia. Further challenge to Schacht’s ideas has come from the direction of Harald Motzki’s study of ‘Abd al-Razzāq’s (d. 826) Muṣannaf,⁶⁵ in which he claims that it is possible through a method of assessing authenticity and forgery in early Islamic traditions “to venture back in to the first/seventh century.”⁶⁶ Similarly, Wael Hallaq argues for the need to place greater weight on the role of pre-Islamic Arabian society: “It was these societies and cultures that provided the larger context in which Islam, as a legal phenomenon, was to grow.”⁶⁷ Accordingly, the Qur’an and early traditions should be partially viewed as a reconfiguration of Arabian customary practices.⁶⁸ It is not surprising, therefore, to find among the early qāḍīs men who had first served as arbiters in the pre-Islamic period.⁶⁹ The first generations of Muslim judges were most likely able to rule based on the only system that they were familiar with: customary Arabian practices. This presumption receives further support through the idea that the first Muslims who settled outside Arabia chose to sustain their tribal organization.⁷⁰

      Regardless of whether the origins of Islamic legal institutions are to be traced to Arabia, to the Fertile Crescent, or to Iraq, there is good reason to closely consider Arabian models. Pre-Islamic Arabian society consisted of both sedentary and nomadic groups and therefore had to create laws that would serve tribal, agricultural, and commercial needs alike.⁷¹ The image of judicial practices that emerges from pre-Islamic Arabia is one of an “elaborate legal system with more of an institutional framework.”⁷² It attests to a mixture of overlapping judicial institutions of diverse forms and sources of authority.