Müller (CH.) - Judging With God's Law On Earth. Judicial Powes of The Qā Ī Al-Jamā A of Cordoba in The Fifth:Eleventh Century

Judging with God's Law on Earth: Judicial Powers of the Q al-jama of Cordoba in the
Fifth/Eleventh Century
Author(s): Christian Mller
Source: Islamic Law and Society, Vol. 7, No. 2, Islamic Law in Al-Andalus (2000), pp. 159-186
Published by: BRILL
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JUDGING WITH GOD'S LAW ON EARTH:

JUDICIAL POWERS OF THE QADi AL-JAMA'A OF CORDOBA
IN THE FIF H/ELEVENTH CENTURY*
MULLER
CHRISTIAN
zu Berlin)
(Wissenschaftskolleg
Abstract
Court cases from al-Ahkdm al-kubrd, afatwC collection compiled by the
Andalusianqddi Ibn Sahl (d. 486/1093), formthe basis for this inquiryinto the
judicial authorityof the qddi al-jamd'a. The article, which deals with both
institutionaland legal aspects of the office, demonstratesthat adherenceto
of thejurisconsults'legal
law duringcourtprocedureandconsideration
procedural
opinionswere requiredto producea judgmentthat was bindingbut potentially
reversible.Thepossibleinfluenceof Malikifiqhon therangeof qdti jurisdictionin
Cordobais testedon a sampleof fifty cases thatoriginatedin the periodbetween
456/1064and464/1072.Thesecases are noteworthyfor theirreliabilityas source
materialandbecausetheywerehandlednot only by the qddial-jamd'abutalso by
otherjudicialmagistrates.
Know that the qadiship is the most powerful and the most venerable
office. The qd4. is the key element of judgment(maddral-ahkldm) and
he is responsible for all aspects of qa.dd'-no matter how large or
small,withoutlimitation.1
IN THISEXCERPTFROMHISRENOWNEDWORKon qadiship and judgment, Tabsirat al-hukkdm, the Maliki jurist Ibn Farhun (d. 799/1397)
quotes the Andalusian qadd Ibn Sahl (d. 486/1093) and his fatwa
collection al-Ahkdm al-kubrd2 on the wide-ranging authority of the
* Thisarticleis therevisedversionof a
paperpresentedto theII JosephSchacht
Conferenceon TheoryandPracticeof IslamicLaw,Granada1997.It drawson my
Gerichtspraxis im Stadtstaat C6rdoba. Zum Recht der Gesellschaft in einer
mdlikitisch-islamischenRechtstradition des 5./11. Jahrhunderts (Leiden, 1999). I
for her help in editingthe conferenceversion,

wish to thankChristaSalamandra
DavidPowersfor his valuablecommentson laterdraftsof the article,and,last but
notleast,theanonymousreadersfor theirsuggestions.
1 Text: I'lam anna khuttata l-qadd'i a'zamu l-khutati qadran wa ajalluhd
khataran wa 'ald l-qddi madaru l-ahkdmi wa ilayhi n-nazaru fi jami'i wujihi lqa.da'imin al-qalili wa'l-kathiri bi-la tahdidin, Ibn Farhun,Tabsirat al-hukkdmfi
usul al-aqdiya wa mandhij al-ahkdm, ed. Taha 'Abd al-Ra'uf Sa'd, 2 vols. (Cairo,
n.d.), vol. I, 93.
2 Ed. R. Nu'aymi, An Edition of Diwdn Al-Ahkdm al-Kubrd by 'Isd b. Sahl
(D.486 A.H./1093 A.D.). Unpublished Ph.D.Thesis, St. Andrews 1978 (hereinafter
"Ahkdm"),which I use with the kind permission of the faculty. I had no access to
? Brill,Leiden,2000
Islamic Law and Society 7,2

160
CHRISTIANMjLLER
qddi. Ibn Farhin reflects the view of later Maliki jurists on how the
office of the qadi was conceived,3 althoughhis representationof the
positionheld by Ibn Sahl is problematic.4
The presentarticleanalyzes the q.d['s jurisdictionduringIbn Sahl's
lifetime on the basis of several dozen court cases transmittedin legal
literature.This case study focuses on Cordoba,the former Umayyad
capital of al-Andalus, which had a long scholarly traditionin Maliki
legal interpretation(fiqh). It investigates how the q.df's role as judge
was definedby legal normsandjudicial practice.The decisive question
in legal termsis whetherand how the Cordovanqd.dial-jarn'a applied
the sacred law of Islam.5 After an introductionto the sources, I will
discuss the office of the q.di al-jamd'a, its majorfields of jurisdiction
and its relationto the otherjudges of Cordoba.
Sources
Ibn Sahl's al-Ahkdmal-kubrd,6which contains more than 600 legal
cases dating from the third/ninthto the fifth/eleventh century,covers
the unpublishededition of the Ahkdmal-kubrdby N. Najjar(Madrid 1974). Several
partial editions prepared by Muhammad 'Abd al-Wahhab Khallaf are sometimes
more precise than Nu'aymi's; but they do not cover the entire work and they quote
each case out of context.
3 On the qddi office in general, the standard work is Tyan, Histoire de
l'organisation
judiciare en pays d'lslam (Leiden, 1960), 100-429.
4 Ibn Farhufn's
statement is composed of different quotations pieced together
without regard for their context. He took the invocation "know that" (i'lam anna)
from Ibn Sahl's initial enumerationof six differentjudicial offices (Ahkdm,6) and
connected it to the latter's statement on the qddi's authority. In this excerpt, Ibn
Farhun omitted Ibn Sahl's assertion that the qddi's authoritywas increased by the
addition of Friday-prayerleadership (sahib al-saldh) (ibid., 7). The assertion that
qddt jurisdiction applies to claims of any amount (min al-qalll wa'l-kathir bi-ld
tahdid) did not originate with Ibn Sahl, but was part of a legal response to a case
from the turnof the fourth/tenthcentury (ibid., 10).
5 This
question, thought to be decided negatively by Schacht once and for all,
cp. Schacht, An Introduction to Islamic Law (5th ed., Oxford, 1982), 76-85, has
recently been reopened for discussion, see, for example, Wael Hallaq, "Model
Shurut Works and the Dialectic of Doctrine and Practice",Islamic Law and Society
2 (1995), 109-34, esp. 109-12; on the link between judicial system and legal
norms, see Baber Johansen, "Wahrheitund Geltungsanspruch:zur Begriindungund
Begrenzung der Autoritat des Qadi-Urteils im islamischen Recht", La giustizia
nell'alto medioevo II (secoli IX-XI). Quarantaquattresima Settimana di studio:
Spoleto 11-17 aprile 1996 (Spoleto 1997), 975-1065.
6 "Al-Ahkam al-kubrd" is the title most commonly used by contemporary
scholars. For the title of this treatise in the Arabic biographical literature, see M.
Khallaf, "Makht.ut'Nawazil Ibn Sahl al-Asadi al-Andalusi' suira li-l waqi' alijtima'i wa-l-iqtisadi fi'l-Andalus fi'l-qarnayn al-rabi' wa-l-khamis al-hijri al-'ashir
wa-l-hadi 'ashar al-miladi",Majallat Ma'had al-Makhtutatal-'arabiyya, 26 (1983),
735-44, esp. 735.

JUDGINGWITHGOD'S LAW ON EARTH
161
many aspects of judicial practicein Cordoba.Unlike other collections

of legal responsa,Ibn Sahl transmittedthe legal proceedingsthatled to
the issuance of fatwas, in addition to the fatwas themselves. His
declaredintentionwas to teach studentshow to issue afatwa for court
and to give them practical examples of fatwd-giving.7 Providing a
carefultransmissionof all importantjudicial facts, al-Ahkdmal-kubrd
served as a textbook for the technical training of judges and
jurisconsults.8
In this collection, Ibn Sahl provides a detailed descriptionof some

fifty court cases that were heard in Cordoba between the years
456/1064 and464/1072. These eleventh-centurycases standout for the
richness of historicaldetail and the vividness of the legal discussions
containedtherein.It would be hardto explain this specific materialas
the theoretical reasoning of some jurists trying to develop the legal
matterof theirtime. Ibn Sahl not only lived at the time that the events
took place, but also participatedin most of the lawsuits as a scribe or
jurisconsult.A considerableproportionof these cases were dealt with
by judicial magistrates(hukkdm,sing. hakim),appointedofficials in the
service of the ruler. Of the fifty cases consideredhere, thirteenwere
heard exclusively by one or two qadls, twenty-three by a market
inspector (sahib al-shurta wa'l-suq), and three by the town inspector
(sahib al-madina).Two cases dealtwith by the q.dil were laterresumed
for differentreasonsby the marketinspector;and in one othercase, the
oppositeoccurred.Thejudge of complaints(sahib al-mazalim)took up
one case of a qcdl, and, in another case, a qddl was called in to
confirm a judgment by the sahib al-mazalim. One case heard by the
marketinspectorwas resumedby the sahib al-mazalim;in four cases
involving the sahib al-mazalimno otherjudges are named.This leaves
of endowments(.sahibal-ahbds).
only one case to the administrator
This detailed sample of cases sheds light on the qddl's jurisdiction
as it relates to otherjudicial magistrates.The selection of eleventhcenturycases for inclusionin al-Ahkdmal-kubrdwas obviously due to
a personallink with Ibn Sahl ratherthan to systematiclegal considerations. The cases collected from the third/ninthand fourth/tenthcentury
by Ibn Sahl are mostly abridgementsof courtcases decidedby the qi.di
al-jama'a Ahmad Ibn Ziyad (d. 312/924)9 and the qddl al-jamd'a
7 Ibn Sahl, Ahkam, 2.
8 Ibn Bashkuwal, Kitdb al-Sila (Cairo, 1966), no. 942, cf. Khallaf, Makhtut,
740.
9 M.Muranyi, "Das Kitdb Ahkdm Ibn Ziydd. Uber die Identifizierung eines
Fragmentsin Qairawan (QairawdnerMiszellaneen V.)", Zeitschrift der Deutschen

162
CHRISTIANMULLER
Muhammad Ibn Zarb (d. 381/991).10 These earlier cases can be used to
contextualize our understanding of the range of the qa.di's jurisdiction.
Cases of non-qadi magistrates, however, are not transmitted for that
early period, 1 a fact that renders any direct comparison between the
jurisdiction of different magistrates impossible.
The office of the qddi-institutional aspects
From the time of the Umayyad emirs and caliphs, the qadi of Cordoba
was called qadi al-jamd'a. Appointed and dismissed directly by the
ruler, the Cordovan qddi stood in the stream of an Islamic moral-legal
tradition that was several centuries old.12When the qadi al-jama'a Ibn
al-Saffar, appointed by the last Umayyad caliph, died in 429/1038, his
successors were no longer called qddi al-jamt'a, a title associated with
the now defunct Umayyad dynasty.13 Beginning in 448/1056, however,
the ruling Banfi Jahwar revived the old title, displaying their sovereign
powers at a time when other quddt al-jama'a (or variants of this title)
were invested in several capitals of the ta'ifa-kings.14
Morgenldndischen
Gesellschaft,148 (1998),241-60.OnAhmadIbnZiyad,see also
M. Fierro, "Tres familias andalusi6s de 6poca omeya apodadas Banf Ziyad",

Estudios onomistico-biogrificos de al-Andalus V, ed. M. Marnn and J. Zan6n
(Madrid 1992), 85-142; Khushani, Kitab al-quddh bi-Qurtuba, ed. Ibrahim alAbyari (Cairo/Beirut, 1982), 204-11, Qadi 'Iyid, Tartib al-maddrik, ed. M. alTanji et al., 8 vols. (Rabat, 1965-83), vol. V, 189, Ibn al-Faradi, Ta'rlkh 'ulamd'
al-Andalus (Cairo: al-Dir al-misriyya 1966), no. 81, Ibn Sa'id, al-Mughribfi hul
al-Maghrib, ed. Sh. Dayf, 2 vols. (2nd ed., Cairo, 1953-55, 1964), vol. I, 155, no.
97.
10 Qadi 'Iyad, Tartib, VII, 114-18, Ibn al-Faradi, Ta'rikh, no. 1363, Humaydi,
Jadhwat al-Muqtabis, (Cairo: al-Dar al-misriyya 1966), no. 170, Nubahi, K. alMarqaba al-'ulyd (Beirut: Maktabat al-tijari li'l-tiba'a wa'l-tawzi' wa'l-nashar,
n.d.), 77-81, Ibn Sa'id, Mughrib, I, 214, no. 143.
1 Outside the period between 456/1064 and 464/1072, only five cases heard by
the market inspector were transmitted;see Ibn Sahl, Ahkdm, 286-87 and 318-19,
471-73, 473-82, 593-95 and 1032-35 (for the latter case cf. Marin, "Law and Piety:
A Cordovan fatwa",British Societyfor Middle Eastern Studies Bulletin, 17 [1990],
129-36), however, the judge who investigated the tenth-centuryheretic Abu'l-Khayr
was a marketinspector and qadi of Ecija, Ibn Sahl, Ahkdm, 1157-60.
12 Biographies of Cordovan qddis are included in biographical dictionaries of
religious scholars, such as the Ta'rikh 'ulamd' al-Andalus of Ibn al-Faradi,al-Sila
of Ibn Bashkuwal or Tartib al-maddrik of Qadi 'Iyad. Biographical data on
Cordovan qddis are collected in Khallaf, Ta'rikh al-qadi' fi'l-Andalus min al-fath
al-isldmi ild nihdyat al-qarn al-khdmis al-hijrl (al-hddi 'ashar al-milddi) (Cairo,
1992), 25-131.
13 When Ibn al-Saffar died, his contemporariesbelieved that the office of qddi
al-jamd'a had come to an end. Ibn Hayyan in Qadi 'Iyad, Tartib, VIII, 17; cf.
Maria Jesus Viguera, "Los jueces de C6rdoba en la primera midad del siglo XI.
(Analysis de datos)",Al-Qantara, 5 (1984), 123-45, esp. 133.
14 There was a qadi al-jamd'a in Zaragoza; in Toledo he was called qddi'lqu.dh, M. Khallaf, "La justicia. Cadies y otros magistratos", Los reinos de

163
The qddi al-jamd'awas the sole qddi in the city of Cordoba.He had
no deputy (nd'ib). If he delegated judicial tasks to a proxy (mustakhlaf),15this is not documentedin the cases examinedhere. Among his
subordinateswere the administratorof endowments (sahib al-ahbds)
and the "supervisorof inheritance"(sahib al-mawdrith).'6Both lacked
the authorityto pass a legally binding judgment (hukm). The aforementionedjudicial magistrates(hukkdm),however,were neitherdeputies nor proxies of the qdadial-jamd'a, but were appointedas officials
by the ruler.17
The qddi al-jamd'a sat in judgmentover lawsuits broughtforward
by the claimant.18In Cordoba,the qCddl
al-jamd'a was not entitled to
a
case
without
the
ex
pursue
officio
necessary legal evidence or
The
sources
indicate that he applied
personalknowledge(see below).
the proceduralnormsof Milikifiqh, which definedthe legal conditions
underwhich a judgmentwas legally valid. The qddi al-jamd'aheld his
sessions publicly,eitherin the Fridaymosque(jdmi'),at his own house
or in a smallermosque.19
No Cordovanqddi could not pass a bindingjudgment solely at his
own discretion.To pass a bindingjudgment,the judge asked the board
of jurisconsults (shard) for their legal opinion.20The qddi informed
them of the legal facts in a writtenreport,called khitdba,sealed in an
Taifas. Al-Andalusen el siglo XI (Historia de Espafa MenendezPidal, Vol. VIII-1),
ed. M.J. Viguera (Madrid 1994), 171-72.
15 For the
legal restrictionsplaced on a mustakhlaf, see Ibn al-'Att.r, Kitdb alwathd'iq wa'l-sijilldt, ed. P. Chalmeta and F. Corriente as Formulario notarial
Hispano-Arabe por el alfaqui y notario cordobes Ibn al-'AttCir(s. X) (Madrid
1983), 642-43.
16 Cp. L6vi-Proven9al,Histoire de l'Espagne musulmane,3 vols. (Paris/Leiden
1950-1953), vol. III, 151-53.
17 The labeling of hukkamas "magistraturessecondaires" as compared to the
qddi al-jamd'a is thereforemisleading. Ibid., 142-43.
18 The
following remarkson court procedurein Cordobaare made on the basis
of the cases examined here. For the early centuries of Islam, see also Johansen,
Wahrheit und Geltungsanspruch, esp. 1014-15; for the much later Ottoman qddl,
compare with Jennings, "Limitations of the Judicial Powers of the Kadi in
Seventeenth-CenturyOttoman Kayseri", Studia Islamica, 50 (1980), 151-84, esp.
171-73.
19 See Khallif, Ta'rikh
al-qadd', 224-34.
20 This is a
major difference from judicial practice in seventeenth-century
Ottoman Kayseri, where fatwds were presented only by plaintiffs, see Jennings,
"Limitations",157, and "Kadi, Court and Legal Procedurein Seventeenth-Century
Ottoman Kayseri", Studia Islamica, 48 (1978), 133-72, esp. 134-35. The Andalusian scholar Abfi 1-Mutarrifal-Sha'bi (d. 497/1104) claims that the qddi's duty to
consult with jurisconsults was based on old tradition (sunna), cf. Wansharisi,
Kitdb al-mi'yar al-mu'rib, ed. M. Hijji et al., 13 vols. (Rabat/Beirut 1981-1983),
X, 58-59; cp. also Tyan, Histoire, 231-32.

164
CHRISTIANMULLER
envelope (tayy)21which also contained copies of all relevant documents. The jurisconsults (mushdwarun) then issued a fatwd on the
decision to be taken in this particularcase. The jurisconsults,as a rule,
did not participatein the court proceedings.22The shaur was a wellestablishedinstitutionin al-Andalus.23Its memberswere appointedand
sometimes dismissed (unless they died in office) by the ruler in
consultation with the qcdli. In the fifth/eleventh century, the mushdwarin received a fixed salary provided by revenues from public
endowments.24The numberof jurisconsultswas limited, although it
changedover time.25The courtcases studiedhere mentionat least two
and not more than four jurisconsults in each case. In one of Ibn alSaffar's cases (d. 429/1038), however,tenjurisconsultsparticipated.26
In mattersof doubt, a qddl might consult with the jurisconsults at
any stage of courtproceedings,but he was obliged to ask for theirlegal
opinion on a final judgment(hukm).Jurisconsultssometimescriticized
the legal steps taken by a judge duringcourt proceedings.27Although
they had no means to impose their views on the judge, they had the
authorityto decide which aspectof legal doctrineshouldbe appliedin a
particularcase. A legally valid court decision had to be based on the
sacred law, including its rules of procedureand evidence. If a judge
openly disregardedthe legal opinion of the jurisconsults-an outcome
for which there is no evidence in our source-he risked seeing his
21 See Ibn Sahl, Ahkam 545, as well as 70, 194, 247, 348, etc. Cf. Khallaf in
Viguera (ed.), Reinos de Taifas, 175. On the legal proof of a "sealed writing" (kitab
matwiy), see Baji, al-Muntaqa, 7 vols. (Rabat: Dar al-fikr al-'arabi, n.d.), vol. V,
198.
22 Contrary to Tyan, Histoire, 235. Cordovan fatwas often began with the
formula, "I read and examined what you [viz. the judge] gave us as information"
(qara'tu wa-tasaffahtu ma adrajta ilaynd), Ibn Sahl, Ahkam, 213, 423, etc.; cp.
ibid., 70, 194, 211, etc. The formula may also be a legal device to explain that the
fatwd was based on the facts as presented in writing without any concern for their
truthin reality.
23 Tyan, Histoire, 230-36, Levi-Provencal, Histoire, 127-28, Marin, "Shard et
ahl al-shurd dans al-Andalus",Studia Islamica, 62 (1985), 25-51, Khallaf, Ta'rikh
al-qada', 321-80. The shard is mentioned already in the reign of 'Abd al-Rahman
II (206-238/822-852); cf. Khushani, Qudah, 112. The opinions of jurisconsults
issued in connection with cases heard by the qddl al-jamd'a Ibn Ziyad (d. 312/924)
are mentioned frequentlyin Ibn Sahl, Ahkdm,passim.
24 See Ibn Bassam, al-Dhakhira fi mahasin ahl al-jazira, ed. Ihsan 'Abbas, 8
vols. (Beirut 1978-79), vol. III, 517-18 (a scandal over the mushawarun's
payment).
25
Tyan, Histoire, 231-32.
26 Ibn
Sahl, Ahkdm, 1015-23 (also edited in M. Khallaf, Wathd'iqfi shu'an alhisba (Cairo, 1985), 67-79). The caliph al-Mustakfi (414-416/1024-1025) reportedly raised the numberof mushawarun to 40 (!), which should not be taken literally,
Ibn Bassam, Dhakhira, I, 435.
27
E.g. Ibn Sahl, Ahkam, 346-52.

165
decision overturned by his successor. But jurisconsults were not always

unanimous. Minor differences in thefatwds appear in most of the cases
examined, and in some even significant dissent. If consultation gave
rise to substantial differences, jurisconsults could issue a secondfatwd,
in which they explained their position with reference to the literature on
Maliki legal doctrine. There were different principles indicating which
fatwd of which jurisconsult a qddl had to choose in case of prolonged
disagreement.28 Confronted with two opposing opinions, the judge was
free to accept one opinion and disregard the others. It appears that
unanimity of legal opinion was no prerequisite for a judgment and that
judges did in fact choose between diverging legal opinions. But no
general statement on the liberty of choice for the qddi in such cases can
be made due to the small number of court decisions available.
Jurisconsults sometimes allowed a qddl to decide certain points of a
lawsuit at his own discretion ('al ijtihddihi).29 To sum up: the qddl
was concerned with the facts of the case, and the mushdwar, as a
mufti, gave his answer to the question posed to him on the basis of
Maliki legal doctrine.
Procedural law and court proceedings
The legal conditions for a valid and binding judgment (hukm) are an
important aspect of qddl jurisdiction. The fiqh rules that are used to
establish any material fact beyond doubt-necessary
for a qadd'
decision-are
as follows: Any fact about which the qddi has no
personal knowledge ('ilm al-qtdd) has to be either acknowledged
(iqrdr) by the defendant or proved by the claimant on the basis of
testimonial evidence (bayyina). In certain fields of law determined by
Malikifiqh, the claimant may take an oath that confirms the testimony
of the one witness in his favor (al-yamin ma'a shdhid) to the effect that
28 See Ibn Farhun, Tabsira, I, 27 and 65, for a discussion of whether it is
obligatory for the qddl to follow the majority of the jurisconsults or the one with
the highest legal reputation.
29 On ijtihdd as scope for discretion, granted by the jurisconsults to the judge,
to decide specific aspects of the case in the form of a court order (nazar), see Ibn
Sahl, Ahkdm, 212, 785; as judicial discretion in general, see ibid. 436, 718, 847,
1016; and as independent reasoning, see ibid. 377, 644, 718. This usage of the
term ijtihdd for a judge is not to be confused with the concept of "independent
reasoning" or "authentic scholarly endeavor" in legal theory, that apply to the
activities of a mufti; on the latter, see, e.g. Muhammad Khalid Masud, Brinkley
Messick and David Powers, "Muftis, Fatwas, and Islamic Legal Interpretation",
Islamic Legal Interpretation: Muftis and their Fatwas, ed. Muhammad Khalid
Masud, Brinkley Messick and David Powers (Cambridge,MA, 1996).

166
CHRISTIANMULLER
no second witness testimony is necessary.30In addition to certain

general requirements,all witnesses must be accepted by the qadi as
men of integrity ('addla);31otherwise, their testimony is not legally
binding.In conflictsbetweenpeople, the q.di has to follow the principle
of "accusation"(da'wt), which means that he leaves the initiative for
presentingclaims and proof to the parties.32If he personallywitnesses
a tort, he is allowed to take action, but should not inquire into the
hidden aspects of the case.33 In this sense, the qadi did not act
preventively,as did the police officer (.sahibal-shurta).34
In judicial practice, certain claims require the establishmentof a
legal title (haqq) and others do not. Court cases requiringproof of a
specific legal title includedthose relatingto reclaimingan endowment
(habs),35the rightto buy back real estate on the groundsof preemption
(shufa),36 or the annulmentof a sale because the vendor had been
declared"incapableof conductingbusiness transactions"(safih).37In
the absence of properlegal evidence, a qddl would refuse to give a
positive decision and might allow the defendantto swear an oath to
establish his right. As for claims that did not require evidence for a
qa.dd'decision, these included many cases on inheritanceand family
disputes. Most family members, according to Maliki legal doctrine,
could not testify in favor of each other.38In cases thatpittedone family
30 For the Maliki law of evidence, see Scholz, Malikitisches

Verfahrensrecht
(Frankfurt, 1997), and Santillana, Istituzioni di diritto musulmano malichita con
riguardo anche al sistema sciafiita, 2 vols. (Rome 1926-1938), vol. II, 589-630; for
discussions of qadd' bi'l-haqq and witness testimony that are very close to the
Cordovan setting, see Ibn 'Abd al-Barr, al-KTfi fi fiqh ahl al-Madina al-malikt
(Beirut, 1987), 461-96, and Baji, Muntaqd, V, 182-224; see also Ibn Farhfn,
Tabsira, I, 240-487, I, 1-135.
31 See Ziadeh, "Integrity('Addlah) in Classical Islamic Law", Islamic Law and
Jurisprudence,ed. Nicholas Heer (Seattle/London,1990), 73-93.
32 Baber Johansen, "VWritd
et Torture:ius communeet droit musulmanentre le
Xe et le XIIIe siecle", De la violence, ed. F. HWritier
(Paris, 1996), 125-68, esp. 136.
33 This is explained by the following anecdote: A qadi of Cordoba met a man
in the street who carrieda drum in his hand and balanced a vessel on his head. The
qddi wanted to destroy the illegal drum and search the vessel, presumably for
additional illegal items. But a jurist who was in his company told him that it was
not his business, as a qadi, to search other people's household articles. His only
task was to prevent what was obviously reprehensible(innama 'alaykd an tughayyira md zahara min al-munkar), that is, he had to destroy the drum. Khushani,
Quddh, 197.
34 On these legal differences, see Johansen,Verite, 129-32.
35 See cases in Ibn Sahl, Ahkam, 52-53, 67-73, and 969-71.
36 Ibid., 639-45.
37 Ibid., 132-34.
38
Baji, Muntaqd, V, 204-06, Ibn 'Abd al-Barr,Kdfi, 461-62.

167
memberagainstanother,the qcddiwould grantthe right of a corroborative oath (al-yamin) to one of the parties, invoking the risk of
punishmentin the next world in case of a false oath.
The qddl's role in court was to guaranteethe rights of any of the
partiesconcerned.Before a legally bindingjudgmentcould be passed,a
defendant was required to appear personally in court to make a
statement on the plaintiff's claims and evidence. This right, called
i'dhdr (lit. giving an excuse), was mandatory.If the defendant was
absentor unwilling to appearin court,despite several summonses,the
qddi could either pass a binding judgment or, under certain circumstances,postponethe defendant'srightto resumecourtaction (irjd'alhujja).39 If the defendant did not accept the claim or the evidence
presented by the plaintiff, a counter-charge(midfa') ensued, which
switched roles in court. The defendantcould either presenttestimony
thatthe originalplaintiff'switnesses were untrustworthyor try to prove
his own claim. In the case of such a counter-charge,the judge fixed
several terms (ajl, pl. djdl) for both partiesto corroboratetheir claims.
Thus, a lawsuit of this type usually required more than one court
session. All legally importantfacts establishedduringthe proceedings,
such as claims and evidence, acknowledgmentsor counter-chargesby
the defendantas well as termsfixed by the judge, were recorded,either
in the document presented by the plaintiff or in a separate report
(mah.dar).The proceedingswere certifiedby a minimumof two court
witnesses. Before passing his sentence,the q.dd consultedthe boardof
muftis(mushdwarun);ideally, he would follow theiradvice.
The court secretarydocumentedany final judgmentof the qd.dialjama'a in a sijill (courtrecord).Thejudgmentwas executedby attestation of the q.di (tanfidhal-hukm):beginningwith the qaddal-jamd'aof
Cordoba, Muhammad b. Abi 'Isa (d. 339/950-1),40 all documents
issued by qdlss were drawn up by the court secretary. The qcddl
checked the contents of the document and attested personally to the
summoning (ishhdd) of the witnesses. Finally, he had the document
authenticatedby witnesses.41The judgmentitself was issued in triplicate:the originalwas placedin the qdadiregister,and one copy (nuskha)
each went to plaintiff and defendant.42In al-Andalus,the registration
39 On this Cordoban
practice, see below.
40 Khushani, Quddh,judicial
233-36, Nubahi, Marqaba, 59-63, Ibn al-Faradi,Ta'rikh,
no. 1253.
41 Ibn al-'Attar,
Wathd'iq,642.
42 Text:
sujilat [...] sijillan yakana 'ald thaldthi nusakhin li-yakuna bi-yadi
l-hdlifi minhu nuskhatan wa bi-yadi t-tdlibi nuskhatan ukhrd siwd llati takinu ft

168
CHRISTIANMULLER
of court judgments in qddl registers can be traced back to the time of the
qd.dial-jama'a Muhammad b. Bashir (d. 198/813-14).43
The qddi-register (diwan al-q.dl), bearing his name and period of
office, was transmitted from one qa.di to his successor.44 Only qddls
had the right to draw up a register of this kind; hukkdm did not. The
diwdn al-q.di must have been very important for the judicial practice of
the time. Recorded in the q.dd register were all properties of absentees
(amwal al-ghayb), bequests (wasdyd) and the genealogies of beneficiaries of ahbds mu'aqqaba (endowments for a lineal descent group)45
that were subject to the supervision of the qddl.46 Revenues of public
endowments and the names of endowed slaves working on the estates
of Umayyad rulers also were listed.47 In addition to the property of
orphans and absentees deposited with fiduciaries by order of the q.di,
the register contained records of debts that had been confirmed by a
court judgment.48 These rights were not extinguished by the death of
either the debtor or the creditor, or by the replacement of the qddi who
had issued the judgment. Once a debt was liquidated, this fact was
entered in the register to avoid a second claim. In the absence of a
quittance, a debt recorded in the court register could be redeemed only
by an additional bill of receipt attested by two 'adl-witnesses.49 The
registration of a debt in the dtwdn al-q.dl, therefore, was more than a
non-binding indicator; it served as legal evidence for a debt. To avoid
manipulation, the register was handed over personally from one qddi to
his successor.50 In the case of a qadd's sudden death, the register was
safeguarded by the town inspector until a successor was named.51 The
d-diwdni, Ibn Sahl, Ahkdm, 196. See also Ibn al-'Attar, Wathd'iq, 131. For a case
in which the documentspresentedby both parties contained the former hukmof the
qddl, see Ibn Sahl, Ahkam, 68.
43 Khushani, Qu.ddh,75, and Nubahi, Marqaba, 48.
44 Al-Khushani (d. 361/971-72) used the qddi registers as a source for his
history of Cordovanjudges, Quddh, 141.
45 David S. Powers, "The Maliki Family Endowment:Legal Norms and Social
Practices", InternationalJournal of Middle East Studies, 25 (1993), 379-406, esp.
392-94.
46 Cf. Ibn Sahl, Ahkam, 9. On the registration of bequests, see also ibid., 23233 (one case).
47 Ibid., 1015 and 1115 (also edited
by M. Khallaf, Wathd'iqfi ahkam alqadd' al-jind'i al-andalusL [Cairo, 1980], 74-76).
48 Ibn Sahl, Ahkam, 873-78 (several cases).
49 Ibid., 877, on a case of missing acquittal in the qidl register: man kCna
'alayhi fi diwdni l-qudCitimalun lam yusqi.thu'anha illa l-bard'atu l-thabitatu bi'l-
bayyinatil-'adlati.
5u Khushani, Quddh, 145.

51 Ibid., 204.

169
new qddi checked the registerand held his predecessorresponsiblefor

missing payments.52
The appointmentof a new qddihad considerableimplicationsfor the
administrationof justice. The new qddi al-jamd'a had to reassess the
witnesses of currentlawsuits-and mightrejectthem as unqualified.In
one case, the ruler took advantage of this procedurewhen the wellknown scholar, Baqi b. Makhlad(d. 276/889), was confrontedwith a
large numberof testimoniesby hostilefuqaha'. To preventa judgment
against Baqi, the ruler dismissed the acting qddi al-jamd'a, whose
successorwas not boundto the testimoniesthatwere neverrenewedby
the witnesses. Thus, underthe new judge no lawsuit ensued.53When
the qddi al-jamc'a Ibn Siraj54died suddenly in 464/1072, the market
inspectortook over a lawsuit andreassessedthe witnesses.55
The longer a qcddistayed in office, the more his power to accept or
rejectwitnessesinfluencedthejudiciallife of the city. If peopleobjected
to a qdd's decision or wantedto renew cases thathe had rejected,they
had to wait for his successor.56A new qadi might accept a lawsuit
which had been rejectedby his predecessoras unjustified.Therefore,it
is probablymore thana coincidencethata man claimedthe inheritance
share of his absentee cousin shortly after the death of the qddi aljamd'a, Ibn Siraj,who had depositedthis sharewith a thirdperson as
fiduciary.57
In some situations, the intrinsic powers of a qddi to monopolize

jurisdictionled to the establishmentof qdid dynastiesthatmight rule a
particulartown.58In Cordoba,however, the presenceof the Umayyad
52 Ibid., 173-75.
53 Ibid., 153-54. On details of this
complex case, see M. Fierro, "La
heterodoxia en al-Andalus duranteel periodo omeya", Madrid:I.H.A.C., 1987, 8088, esp. 84-85.
54 On this patronym, see Elias Teres, "AntroponimiaHispano,rabe (Reflejada
por las fuentes latino-romances) (IIa parte), ed. J. Aguade, C. Barcelo and F.
Corriente,Anaquel des Estudios Arabes 2 (1991), 13-34, esp. 18, note 199.
55 Ibn Sahl, Ahkam, 827-30, also edited
by Khallaf, Wathd'iqfi ahkcm qada'
ahl al-dhimmafi'l-Andalus (Cairo, 1980), 60-65, with Khallaf's summaryignoring
importantaspects of the proceedings, ibid., 25-26.
6 See Khushani, Quddh, 183-84, on the succession to Sulayman b. Aswad in
the year 273/886.
57 It was known that the absentee heir had died previous to the division of the
estate, a fact that excluded him from inheritance. For the case, see Ibn Sahl,
Ahkim, 627-29.
'58 For al-Andalus, see Fierro, "The
qadi as a ruler", in "Saber religioso y
poder politico en el Islam", Actas des Simposio International (Granada, 15-18
octubre 1991), Madrid, 1994, 71-116, and M.L. Avila, "Cargos hereditariosen la
administraci6njudicial y religiosa de al-Andalus", in ibid., 27-37, and appendix
with genealogical charters.

170
CHRISTIANMULLER
rulerslimited the qcdl's influence. It is true that membersof the same

few families frequently were appointed as qddi al-jamd'a, but they
never succeeded in founding a dynasty of officeholders. Even after a
long period in office, as duringthe third/ninthand fourth/tenthcenturies, it was the Umayyad rulerwho chose the next qddi al-jamd'a. In
429/1038, at the beginning of Jahwaridrule, the last qddi al-jamd'a,
Ibn al-Saffar, who had been appointed by the Umayyad caliph, was
unsuccessful in his attemptto designate his grandsonas his successor
in office.59 Jahwarsettled with the city's notables on the new qddi,
Muhammadb. Dhakwan,previously marketpolice-officer (sahib alshurta wa'l-suq).60To limit the religious authorityof the new qc.di,he
was not investedwith leadershipof the Fridayprayer.61Fromthatdate
onwards, the political power of the Cordovan qddi did not pose any
serious threatto the ruling Banu Jahwar,who appointedand deposed
Cordovanq.dis at will.
The qc.di'sjudgment
The legal functionof a q.di judgmentis best understoodas bindingbut
potentiallyreversiblein character.Any ratifiedcourtdecision is legally
valid, irrespective of its conformity to the law. Otherwise no court
judgment would have the affect of settling a conflict. 62To revise a
valid judgment, it had to be annulled (fusikha) by anotherjudgment.
This holds truefor qadijudgmentsas well as for those of magistrates.63
There are three circumstancesin which a judgment may be reversed:
first, if the issuingjudge lacked properjurisdictionalauthority;second,
if the originaljudgmentis challengedon the groundsof a point of law;
and third,if it is challengedon the groundsof new evidence, thatis, as
a questionof fact.64
59 Ibn Sa'id,
I, 159, no. 101, Qadi 'Iyad, Tartib, VIII, 17.
60 Ibn Sa'id, Mughrib, I, 70, no. 14, and Ibn
Bashkuwal, Sila no. 1150, both
Mughrib,
cite Ibn Hayyan (d. 469/1076); although they differ regarding who invested the
qddi, both agree that the decision was unanimous.
61 See Ibn Bashkuwal, Sila, no. 1390, Qadi 'Iyad, Tartib, VIII, 13 (regarding
the new .sdhib al-salah wa'l-khutba Ibn Makki, who died 437/1045 while still in
office).
62 See Scholz,
Verfahrensrecht,426-31.
63 For a
judgment by the sahib al-shurta wa'l-suq that was annulled by a
qddi, see Khushani,Quddh, 127; for the annulmentof qddl judgments, see below.
64 Cf. David S. Powers, "On Judicial Review in Islamic Law", Law &
Society
Review (1992), 315-41. Pace Powers, ibid. 324, the Cordovan cases suggest that
the grounds for reconsideration were not restricted to questions of law, but also
included the presentationof new facts, see below.

171
With regard to the first circumstance, the jurist al-Baji (d. 474/1081)
listed the qualities that are essential for a qCdi.65Half a century later,
the Cordovan judge Ibn Rushd (d. 520/1126) systematically differentiated the legal consequences of a q.di's lacking personal qualities: he
enumerated the qualities that are necessary for a valid appointment,
others necessary to exercise the charge, and yet others that are not
necessary but recommended for a qddi. An invalid appointment results
in unconditional annulment of all judgments; if a qddl lacks the
qualities to exercise his office, all judgments issued after the proclamation of his incapability should be annulled; however, if he lacks only
those qualities that are recommended for the office, his judgments
should not be invalidated on grounds of lacking jurisdictional
authority.66
Regarding the second circumstance (questions of law), the judgments of a qd.dimay be reviewed by his successor.67 Usually, however,
only a clear and obvious injustice (jawr bayyin) will lead to the
annulment of a judgment.68 The qd.di al-jamd'a Ahmad Ibn Ziyad (d.
312/924) dealt with several requests to overturn the judgments of his
predecessor Ibn Salma (d. 289/902).69 A general revision of all
decisions issued by this upright but juridically inexperienced qddl,70
however, was never considered. We do not know the extent to which
earlier qddl judgments were reversed by succeeding qddis. Generally
speaking, the revision of a qada' judgment was carried out only when a
qddi was regarded as unjust (min ahl al-jawr).
The difference between lack of jurisdictional authority and a caseby-case consideration of judgments was the issue of debate in the case
of the former minister Ibn al-Saqqa', whom the ruler Abi'l-Walid b.
Jahwar had invested with the ahkam al-qadd' (qddl jurisdiction) of
Cordoba for a year and a half beginning in 447/1055. After his
assassination in the year 455/1063, Ibn al-Saqqa's judgments were
accepted by the q.ddiof Toledo, but were generally annulled by the qd.di
of Badajoz. In Cordoba, some legal experts upheld the validity of Ibn
65
Muntaqd,V, 182.
66 Baji,
IbnRushd,al-Muqaddamat
3 vols., ed. S. A. Urab(Beirut
al-mumahadddt,
1988), II, 258-59. See now Alfonso CarmonaGonzales,"Le Mal6kismeet les
conditionsrequisespour1'exercicede la judicature,"in this themeissue, 122-58,
esp. 140.
67 OnIslamicsuccessorreview,see Powers,"JudicialReview,"317-24.
68 See Ibn al-'Attar,

Wathd'iq,636-37; cp. Scholz, Verfahrensrecht,437-38.
69 Ibn Sahl, Ahkam, 145-46, 682-83, 695-96, 709-10.
70 He was characterized as
"rajul sdlih qalil al-'ilm", Ibn al-Faradi, Ta'rikh,
no. 1141.

172
CHRISTIANMULLER
al-Saqqa's judgment holding that a woman who had been sold as a

slave was in fact free. They arguedthat Ibn al-Saqqa'in this case had
ruled according to the law of evidence and had consulted with the
fuqahd' of the city. Otherjurisconsultsrecommendeda general annulment of all his judgmentssince he was regardedas unjust(min ahl aljawr wa'l-i'tidd').71Thejuristswho upheldIbn al-Saqqa'sjudgmentdid
so because they consideredhis exercise of office to have been valid,
notwithstandingtheir opinion of his person. In an action against the
minister'slast will and testament,all thejurisconsultsrecommendedthe
confiscationof propertythathe had acquiredin office. His heirs should
inherit only the propertythat he owned before rising to power.72The
absence of an entry for Ibn al-Saqqa' in any of the relevant
biographicaldictionariessuggests thathe was not regardedas a proper
qa.di of the city of Cordoba.73
With regardto the eight-yearperiodconsideredhere, I am not aware
of any othercase in which a qadi judgmentwas reversedon groundsof
law. In one inheritancedispute, however, a qddi ratified an amicable
settlement,i.e. a decision not basedon legal evidence;subsequently,the
settlementwas disregardedby one of the parties. When the opposing
side complained to the marketinspector, most jurisconsults opted to
annul any settlementthat contradictedlegal rules. Only the prestigious
jurist Ibn 'Attib (d. 462/1069)74held that no ratifiedsettlementshould
be annulled.
That bringsus to the thirdcircumstancein which a judgmentmight
be reversed,namely, on the groundof new evidence. A legally correct
judgmentmay conceivablybe revised if new witness testimonycontradicts the winning party's corroborativeoath. The Milikis were not as
strict about the authorityof a judgmentas the Hanafis.75According to
Malikilegal doctrine,a q4di may easily revokehis own judgment(rujui
'an qadd') if he realizes thathe made a mistake,so long as his decision
does not contradict the unanimous opinion of the jurisconsults.
71 For this
case, see Ibn Sahl, Ahkdm, 261-64, also cited in Wansharisi,
MiXar,IX, 220-22.
72
Ibn Sahl, Ahkdm, 728-30.

73 This is corroborated the fact that Ibn Sa'id avoided the
by
expression "q.dr'
and referred to Ibn al-Saqqa's office as "ahkdm al-qa.dc"', Ibn Sa'id, Mughrib, I,
161, no. 104.
74 Ibn Bashkuwal, Sila, no. 1194, Qadi 'Iyad, Tartib, VIII, 131-34, also Ibn
Farhin, al-Dibdj al-mudhdhahabfi ma'rifat a'ydn 'ulamd' al-madhhab, 2 vols., ed.
M. al-Ahmadi (Cairo, n.d.), II, 241-42.
75 For the Hanafis, see Baber Johansen, "Le
jugement comme preuve. Preuve
juridique et v6rite religieuse dans le Droit Islamique hanefite", Studia Islamica 72
(1990), 5-17, esp. 13-15.

173
Contrary to the annulment by a successor, this mistake need not be of a

grave nature and may be connected with the witnesses in the case (amr
al-shuhud) as well as with internal aspects of the claim (bdtin qissat altdlib).76A q.dfi's ability to revoke his own judgment was justified with
reference to an alleged writing by the second Caliph 'Umar to his
governor in Iraq, Abf Mfsa al-Ash'ari: "It is not forbidden to you to
withdraw a qa.da'judgment of today, if you withdrew your comprehension of it and were guided rightfully to this by your good sense.
Withdrawing to the rightful is better than insisting on the vain."77
Having said this, I have encountered only one case in which a
judgment was reversed on grounds of new evidence, and this case was
brought to the market inspector rather than to a q.dl. The case involved
a farmer who claimed joint ownership of certain land and oxen. The
defendant was granted the right to swear that he was the sole owner of
land and oxen. A court decision ruling out further claims or actions
was ratified. Subsequently, however the farmer produced witnesses
testifying to the defendant's repeated acknowledment of their joint
ownership of the land and oxen. Subsequently, the jurisconsult Ibn
'Attab held that the earlier judgment should be reversed and the farmer
should be required to swear that he had been unaware of the
testimonial evidence in his favor when compelling the defendant to take
an oath for his claim.78 In the absence of parallel cases tried by a qdl,,
we cannot know, whether a qddl in the first instance would have
passed a judgment on the basis of the defendant's oath, which then
could have become subject to reversal. But since the qddl dealt with
inheritance disputes and other family matters that did not always
involve witness testimony, the possibility of the revision of a judgment,
based on oath, in the light of new testimonial evidence cannot be ruled
out.
Another, slightly different aspect of the revision of judgments is the
so-called "postponement of pleading" (irjd' al-hujja). Here the judge
issues a judgment against an absentee, but grants him the right to
appear in court at a later date. In such a case, it is conceivable that a
defendant would produce evidence that might lead to the rejection of the
76 Ibn al-'Attar,Wathd'iq, 635-36.
77 Text: la yamna'ukdqadd'un qadaytaha l-yawmafa-rdja'ta fihi 'aqlakd wahudita fihi li-rushdika an tarji'a fihi fa-inna r-ruju'a ild l-haqqi khayrun mina ttamddi 'ald l-batili, ibid; see also Powers, "Judicial Review," 320; cp. Scholz,
Verfahrensrecht,432-36, on a qddi's being bound to his own judgment.
78 On this action, see Ibn Sahl, Ahkdm, 716-18; the case is reduced to a
question-and-answersituation in Wansharisi,Mi'ydr, VI, 525.

174
CHRISTIAN
MULLER
claimant's witnesses and eventually require a different decision by the

judge. The "postponing of pleading" was based on the idea that the
right of an absentee to be heard in court (i'dhdr) could be postponed if
he was too far away to be summoned to court; but a legally valid
judgment could be issued against him in the meantime.79 The granting
of the irjd' al-hujja was ratified by the judge, together with his
judgment against the absentee. Common practice in Cordoba,80the irjd'
al-hujja nevertheless was contested among later Malikis.81
In one fifth-century case, the revision of a court decision was
claimed under such circumstances: The qddi Ibn Siraj ordered the
division of a jointly owned vineyard when one of the co-owners was
absent; he recorded this decision as a judgment (hukm) based on testimonial evidence. Several years later, the former partner returned to
Cordoba where he approached the qddl Ibn Manzir (d. 464/1072).
Claiming that the division had resulted in the neglect of his plot of land,
he demanded that it be canceled. Some jurisconsults argued that the
division (qisma) was reversible because Maliki doctrine teaches that a
judicial division of property generally has not the legal quality of a
binding judgment (hukm). At least one jurisconsult objected that this
particular division was binding, because it had been decided by a
hukm. The qddl Ibn Manzir decided to ratify the initial judgment
(hukm) because it had been based on unchallenged witness testimony.82
It seems unlikely that there existed a hierarchy of appeal among the
different courts in Cordoba.83 From the above-mentioned case of the
violation of a qdi' s settlement in an inheritance dispute, it is not clear
whether a market inspector had the authority to annul a qddl judgment,
even if he wished to do so. A qddi could annul a decision made by a
market inspector on the grounds of a unanimous jurists' vote.84 The
judge of complaints (sahib al-maztlim) dealt with some cases formerly
heard by a qddl al-jamd'a and also had the power to annul a qddi
79 Cp. my Gerichtspraxis,402-05, FarhatJ. Ziadeh,"CompellingDefendant's
Appearanceat Courtin IslamicLaw",IslamicLawand Society,3 (1996), 305-15,
esp. 312.
80 Ibn Sahl consideredthe irjd' al-hujjato be a principle(asl ma'mul),see
Ahkdm,633, also Wansharisi,Mi'ydr,X, 90-91, cf. my Gerichtspraxis,404, note
19; irjd' al-hujjais also cited in Ziadeh,"Compelling,"
312; for examplesfrom
Cordovanlegal opinions,see Ibn Sahl,Ahkdm,348, 352, 442, 563, 618, 628, 631,
637, 639, 641.
81 IbnFarhun,Tabsira,I, 99-100.
82 Wansharisi,Mi'yar,
VIII, 118-19.
83 This supportsPowers'argumentagainstthe term"appeal"in this context,
see "JudicialReview,"315-17,324 and337-38.
84 Khushani, Quddh, 127.

175
judgment.But his jurisdictionwas not superiorto that of the qddl. In

one case, claimants recovered usurped land in a mazdlim court;
subsequently,they triedto confirmtheirrights througha qd.didecision
on the same legal grounds.85Such a claim makes sense only if a qcdli
judgment had in fact greater authority than that of a judge of
complaints.Threeformerjudges of complaintsbecamequddtal-jamd'a
later in their respective careers.86 From the Cordovan cases we
concludethatthejudge of complaintsdealt with cases thatcould not be
satisfactorilydecidedby the qadi.87
Therange of qadijurisdiction
In Cordoba,jurisdictionin mattersof Malikifiqh was not the exclusive
preserveof the qdadal-jama'a.Variousjudicial officials (hukkdm)also
appliedfiqh regulations in court proceedings and as a basis of their
judgments.This is not the place to examine the range and limits of this
"magistratal"jurisdiction,but its mere existence in the field of sacred
law requiresa definitionof the q.di's jurisdictionthat goes beyond its
assumed correspondencewith shari'a jurisdictionthat is opposed to
siydsa jurisdiction.88Bearing in mind what has been said regarding
proceduraland evidentialrules necessaryfor the soundnessof a qa.d'sentence and its possible annulment,we may now examine the qddl's
jurisdictionin Cordobawithin the setting of court cases between the
years 456/1064 and 464/1072. Although these cases are not representative and do not cover all aspects of contemporaryqddi jurisdiction,
they constitutethe only currentlyavailablesourcebearinguponjudicial
practice-apart fromthe evidence of legal theory.
Two principles defining the range of qddi jurisdiction overlapped
and intertwinedin judicial practice. First, Muslim, and more specifically, Cordovanlegal doctrine reserved some fields of law for qddljurisdiction.Second, thefiqh rules of evidence placed substantialconstraintson the qddi's authorityto investigate the hidden aspects of a
case (see above), while guaranteeingthe full legality of his judgments
to establish certain legal rights. These two principles-which sometimes clashedwith one another-limited the q.d4's role in crimeprevention. In defining the range of q.di judicial authority,Ibn Sahl refers to
85 Cf. Ibn Sahl, Ahkam, 504-06.
86 Ibn Bashkuwal, Sila, nos. 672, 682 and 1150 (also Qadi 'Iyad, Tartlb [ed.
Rabat], VIII, 87).
87 For cases
involving the judge of complaints, see my Gerichtspraxis, 333-62.
88 On the tension
between sharl'a jurisdiction and siydsa jurisdiction, see
Schacht, Introduction, 54, and Tyan, Histoire, esp. 446-51 and passim.

176
CHRISTIANMULLER
the teaching of former Cordovanjurists and judges. The jurisconsult

Muhammadb. 'UmarIbn Lubaba(d. 302/914-15) reservedthe following fields of law for the qddi without excluding him from others:
supervision of bequests (wasdyd) and endowments (awqdf), release
(itldq)from guardianship,restrictionson legal capacity(tahjir),judicial
divisions (qism), inheritance (mawdrlth) and the supervision of
orphans and their property.89The exclusive authorityof the qddl in
these fields was justified by the teaching of Malik and his disciple, Ibn
al-Qasim.90In practicalterms these fields of jurisdictionwere closely
connectedto registrationin the diwdn al-qd.dl.91At the same time, the
qddt's exclusive authorityto pass judgment in other fields of the law
was disputed. The opinion of Ahmad b. Yahya b. Abi 'Isa (d. 297/
909),92 reserving cases of talio (qisds) to the qddl, was probably

common practice in the third/ninth century. Later, this view was
supported by the qddl al-jamd'a Ahmad b. Baqi b. Makhlad (d.
324/936) and others.93But in the fifth/eleventhcentury,homicideswere
dealt with by the town inspector (sahib al-madina) on behalf of the
ruler,94and Ibn Sahl was opposed to the earlierview that cases of talio
should be referred exclusively to the qddi.95 According to a later
Andalusian source, however, hudad cases should be reserved for the
qdd.96 In this regard, Ibn Sahl quoted a fatwd from the turn of the
fourth/tenthcentury stating thatjudicial officers (saldttn) transferred
their hudid cases to the qddl.97In the year 464/1072, the case of the
Toledan heretic Abfi'l-Hatimwas presentedto the Cordovanqddl Ibn
Manzurand, after the latter's sudden death, was decided by the ruler
himself.98
89 Cf. Ibn Sahl,Ahkam,10. Comparealso the synopsisof Ibn Farhun,which
is basedon IbnSahlandotherauthorities,Tabsira,I, 94.
90 Ibn Sahl,Ahkdm,8.
91 Ibid., 9.
92 Ibn al-Faradi, Ta'rikh, no. 61, Qadi
'Iyad, Tartib, V, 160.
93 IbnSahl,Ahkdm,10. Fortalio cases heardby qddi al-jamd'aIbnZiyad,see

ibid., 1127-41.For Ahmadb. Makhlad,see Ibn al-Faradi,Ta'rikh,no. 103, Qadi
'Iyad, Tartib, V, 200.
94 IbnSahl,Ahkam,1141-46(thecases of al-TubniandRahimaIbn
Shuhayd).
95 Ibid., 10-11.
96 al-Jarsifi, Risala fi'l-hisba, ed. 1. L6vi-Proven9alin: Trois traites
hispaniquesde hisba (Cairo,1955), 123, cp. IbnFarh.un's
quotationsarguingfor
theqjddiscompetencein hadd-cases,Tabsira,1, 18.
97 Ibn Sahl, Ahkam, 9.
98 Ibid., 1150-57 (also editedby Khallaf,Thaldthwathd'iqfi muhdrabatalahwa'wa'l-bid'afi l-Andalus(Cairo,1981), 111-24),cf. M. I. Fierro,"Elproceso

contraIbn Hatimal-Hulaytuli(afos 457/1064-464/1072)",Estudiosonomdstico6 (1994), 187-215,esp. 197.
biogrdficosde al-Andalus(Madrid/Granada)

WITHGOD'SLAWON EARTH
JUDGING
177
In my analysis of the court cases heard between 456/1064 and

464/1072, I will first deal with cases from the legal fields described as
the exclusive preserve of qddl jurisdiction, such as inheritance,
endowments and the legal rights of orphans. In order to characterize the
qd.d's jurisdictional preserve, special attention will be paid to the legal
evidence presented in each case as well as to those cases touching these
fields of law that were dealt with by other judges.
During the period under consideration, the Cordovan qi.dls Ibn Siraj
(448/1056 to 456/1064), Ibn Baqi (456/1064 to ca. 461/1069) and Ibn
Manzur (d. 464/1072) dealt with several lawsuits concerning the legal
validity of inheritance, as well as disputes over whether and how to
divide inherited property. Consider the following four cases:
1. Following the assassinationof Ibn al-Saqqain 455/1063, witnesses
testified thatthe formerministerhad acquiredhis wealth throughabuse
of office. When his inheritance and bequest were contested, the
presidingqddi al-jamd'a, Ibn Siraj,ruled that only propertybelonging
to Ibn al-Saqqi' before his rise to power shouldbe treatedas partof his
estate,subjectto inheritance.99
2. A widow quarreledwith her husband'soffspring over some carpets
thathe had depositedoutsideher dwelling.Were these carpetsdomestic
utensils, and, therefore,her personalproperty,or did they belong to her
husband?In the absenceof witness testimony,the jurisconsultsreferred
to local custom ('urf) to decide which party should swear an oath in
supportof its claim.?00
3. In an inheritance dispute between a widow and her husband's
relatives (see above), the qddi al-jamd'a, Ibn Baqi, negotiated an
amicable settlement.When the deceased's relatives did not honor the
settlement,the widow turnedto the marketinspector,Ibn Harish.10
4. The wazir Ibn 'Amir, died, leaving two sons, one in Cordoba, the
otherin Seville. The Cordovanheir demandedthat the q.dl al-jamtn'a,
Ibn Baqi, divide the land that they had inherited. The qddi had
witnesses confirmthe bordersof the propertyand the absence of the
99 IbnSahl,Ahkam,728, see also Khallif,"Wathiqafi ightisabIbnal-Saqqa"',
Awrdq, 5-6 (1982-3), 99-104, and D. Wasserstein, "Toledan Rule in Cordoba",
IsraelOrientalStudies,13 (1993),259-62.
100 IbnSahl,Ahkam,388, also Wansharisi,
Mi'ydr,III,412. Theqddlwas Ibn
Manziir.
101 Ibn Sahl, Ahkam, 843-47 (the amicable settlement is dated Safar 457/
January 1065).

178
MULLER
CHRISTIAN
brother.Ibn Baqi consultedwith his jurisconsults,who disagreedas to
whether it was necessary to summon the brotherto Cordova before
issuing a judgment. Was the distance between Seville and Cordoba
shortenough for the defendantto appearin courtor sufficiently distant
thathis rightof legal hearing(i'dhdr) shouldbe postponed?102
Not all inheritance cases and subsequent disputes, however,

belonged to the preserve of the qddi: In one instance, a person died
leaving heirs, some of whom lived in a house that formed part of the
estate, while others did not. Since the house was too small to divide
among the heirs, those who did not live in the house asked their coheirs to leave the house so that it would command a better price. The
heirs living in the house refused to comply, and the case was presented
to the market inspector (sahib al-shurta wa'l-suq).103 I do not know
whether this lawsuit was preceded by a formal qdid decision corroborating the death of the deceased, the number of his heirs and the identity
of his property. One general reason for testimony regarding the number
of heirs was the legal requirement that any person had the right to be
heard at court (i'dhdr) in a matter in which he was involved.
Inheritance as a method of property transfer was involved in many
other lawsuits which were presented not only to the qc.d of Cordoba
but also to the judge of complaints (sahib al-mazalim), the market
inspector (sahib al-shurta wa'l-suq), or to the town inspector (sahib almadina). A legal claim to inherited property could be accepted only
through the legal proof of the testator's death and the number of his
heirs. To show how these legal subjects became entangled in practice, I
will mention some of the cases involving proof of inheritance that were
presented to judges other than the qi.d of Cordoba.
In a dispute over real estate claimed as an endowment (habs), the
judge of complaints demanded that the present owners, who had
bought the estate from the heirs of the first buyer, substantiate his
inheritance by witness testimony.104 Another case was heard by the
market inspector (sahib al-shurta wa'l-suq): the plaintiff sued his uncle
to share the costs of his aunt's maintenance during her twelve-year stay
in his father's house. He had to substantiate his father's death and inheritance, his heirs and the fact that he, the son, was their representative
102 Ibid., 615-16 (the case can be dated between Rabi' II and JumadaII
219.
1068),cf. Mtiller,Gerichtspraxis,
460/February-March
103 IbnSahl,Ahkam,
730-32.
104 Ibid.,69 (the case is dated464/1072).

179
in court (wakil).105In a case broughtbefore the sahib al-mazdlim,the

plaintiffs claimed that the formerruler, 'Abd al-Malik b. Jahwar,had
usurpedland in a nearbyvillage; the plaintiffshad to substantiatetheir
father's ownership (milk) of the land, as well as his death and
inheritance.106
The legal proofof the testator'sdeathand the numberof
his heirs also played a role in a case againstthe widow of the deceased
Ibn Labib dealt with by the town inspector (sahib al-madina) (see
below). In anothercase, an entrepreneur(musta'mil)demandedthatthe
marketinspectorsell some hand mills includedin the inheritanceto a
fugitive weaver to whom he had advancedmoney for some pieces of
cloth that were never delivered. He had to presentwitness testimony
establishing the death of the father and the number of heirs. The
jurisconsults disputed whether the testimony given was sufficient,
because the absent weaver had to be alive at the time of his father's
death in order to inherit.107Anothercase was broughtto the qddi aljamd'a: A gardenwas leased to a cultivatorfor twelve years, at which
time a man claimed that he was a descendant of the beneficiary for
whom the gardenhad been designatedas an endowment.The qddi aljamd'a Ibn Baqi asked the plaintiff to present witness testimony
substantiatinghis claim that he and his motherwere the only heirs of
his father.108
These cases demonstratethat inheritancewas involved in a great

varietyof cases thatfell underdifferentjurisdictions.However,it is not
clear that testimonial proof of an inheritance and heirs had to be
corroboratedin the presence of a qddi, as suggested by the insistence
that inheritancewas part of qddi jurisdiction. In theory, testimony
relatingto an inheritancecould be given by witnesses,withouta q.di.
Inheritance cases concerning minor orphans and absentee heirs
were, in general, dealt with by the qddi al-jamd'a. If a fatherdid not
appointa legal guardian(wasiy) for his childrenbefore his death, this
was done by the qddi al-jamd'a,109 who also could dismiss the
guardian.110There is no reason to believe that any other judicial
magistrateperformedthis function on behalf of the qddi or the ruler.
The qddi al-jamd'a was also responsible for the shares of absentee
heirs, which he disposited with a third person as fiduciary. But a
105 Ibid., 374-78
(the father died in Sha'ban459/July 1067).
106
107
108
109
110
Ibid., 504-06. The Banf Jahwarwere expelled from Cordobain 461/1069.

Ibid., 629-39, abridged in Wansharisi,Mi'ydr, X, 88-92.
Ibn Sahl, Ahkam, 969-70.
See, e.g., ibid., 728.
See ibid., 193-96.

180
CHRISTIANMULLER
dispute over the sum deposited also could be taken to the market
inspector.In one of these cases (see above), a qcdi al-jama'a deposited
money with a fiduciaryon behalf of an heir. When the qadl al-jamd'a
died, a cousin of the heir turnedto the marketinspector,claiming that
he was the only survingagnate ('asaba) of the deceased entitledto the
inheritanceshare.11
A widow indicted for stealing money from an inheritance was
subject, however, to trial by the sahib al-madina, who put her under
house arrest.This treatmentwas severely criticizedby the jurisconsult
Ibn 'Attab,because the inheritanceconcernedan orphanwhose rights
are protectedby the qddi.112Two lawsuits concerning the rights of
"orphans"(theirmothermight still be alive), however, were obviously
not resolvedby Islamiclegal doctrine,buthad to be decidedby political
jurisdiction:When a man died, he appoined a legal guardianfor his
minorchild. Subsequently,this legal guardianwas replacedby another,
who sued the first guardianin the ma.zdlimcourtin an effort to recover
capital invested by the deceased in a tradingpartnership(qirdd) with
the first guardian.The first guardianclaimed that the capital had been
lost in a business transaction,therebyabsolving him of liability.113In
the other case, the division of an estate was impededby the discovery
that the deceased, a woman by the name of 'Ula, had, while she was
still alive, acknowledgedhaving a second husbandin Ja6n, of whom
no one was aware. This case, which involved a missing heir was
presented to the sahib al-mazdlim. The claimants, the mother and
brotherof a minorheir, needed the judge's consent to sell the minor's
inheritanceshareto cover the costs of his maintenance.114
It is clear thatnot every case relatingto an inheritancefell underthe
jurisdictionof the qddl.In practice,the formallegal distinctionbetween
inheritance cases and other cases may have been restricted to the
establishmentof such rights. Disputes over, and claims for, a share in
an inheritancewere presentednot only to the qd.dibut also to the market
inspector,perhapsbecause the case was connectedto a claim relating
to a commercial transaction. Complicated cases that could not be
resolved accordingto the rules offiqh (e.g., when the numberof heirs
11 On a similar claim for deposited money that was also heard by the market
see Ibn Sahl, Ahkam,611-12.
inspector,
112 Ibid., 718-27.
113 Ibid., 193-96, Wansharisi,
Mi'ydr, VIII, 213-15, legal response also ibid.,
IX, 468-69. Cp. A. Udovitch, Partnership and Profit in Medieval Islam (Princeton,
1970), 239 and 241.
114 Ibn Sahl, Ahkdm, 245-51.

181
was not known) could be broughtto the judge of complaints(sahib almazdlim)for resolutionby politicaljurisdiction.
A similar division of judicial labor existed in the field of pious
endowments.Claims for the existence or restorationof an endowment
were presentedto the qddt al-jamd'a.In one such case, a man created
an endowmentbut subsequentlyrevoked his act and sold the property.
Some fifty years later,the founder'sheirsreclaimedthe propertyon the
basis of the originalendowmentdeed. In response,the presentowners
producednot only the sale documentbut also a documenttestifying to
the founder's intention to revoke the endowment, which he had
established out of fear (taqiyyatan) of expropriation. Both parties
thereforepossessed a legal title to the land. The solution proposedby
the qc.dlwas unacceptableto both parties,who turnedto the sdhib almazdlimfor revision underspecial authorityof the ruler.115
In a similar
case, a man designateda gardenas an endowment,but later sold it to
cultivators,who possessed a legally binding sale contract.Nevertheless, the Cordovan qatd Ibn Zarb (d. 447/1055)1l6
subsequently
restoredthe gardenas an endowment;undeterred,the beneficiariesnow

leased the gardento its formerownersin a twelve-yearcontract.When
the lease expired,the heirs of the initialplaintiffclaimedthe propertyas
an endowment.117
Endowmentdisputeswere also broughtto the marketinspector.In
one dispute,certainheirs had successfully claimed a landedestate as a
pious endowmentin the marketinspector'scourt,but could not present
testimonial evidence establishing all of its boundaries. The present
owners,therefore,did not have to leave the property.Subsequently,the
claimants took the case to the sdhib al-mazalim, who followed Ibn
Sahl's legal opinion holding that the property be cleared from its
presentinhabitants.118
The qddl al-jamd'a's responsibilityfor the endowmentsof the city
went beyondjudgmentson individualcases. He was responsiblefor the
distributionof revenues from those pious endowments that were administeredpublicly ratherthan by the founder'sfamily.l19Every year,
115 Ibid., 67-73.
116 IbnBashkuwal,Sila, no. 1472,IbnSa'id,Mughrib,I, 161, no. 104.

117 IbnSahl,Ahkam,696-71.
118 The case of the sahib al-shurtawa'l-siq Ibn Harishis describedat ibid.,
52-53.
119 Ibid.,961-63 (a family endowmentbecomessubjectto publicsupervision
afterits line of beneficiariescomesto an end).

182
CHRISTIANMULLER
contracts of lease for endowed property were auctioned publicly in the

presence of the qa.d al-jamd'a and his legal counselors.120The qa.di aljamd'a might issue a judgment that granted a general reduction of the
stipulated lease in case of economic decline or natural disaster.'12 But
the everyday affairs of endowments under public supervision were
administered by the sahib al-ahbds, who, in Umayyad times, was
appointed by the qdadial-jamd'a; this may have changed subsequently.122 It was the sahib al-ahbcas, not the qtdi, who asked the jurisconsults about a woman living in an endowment established for
virtuous women who wanted to remain there with her new husband.123
The decision obviously did not require a hukm, which the saChibalahbds was not authorized to issue. In a case of attachment for unpaid
rent, the sa.hib al-ahbds administrating the dwelling sued the leaseholder in the qddi court.124
In cases involving economic transactions, the q.dl al-jamr'a played a
much smaller role than the market inspector, at least during the period
under consideration.125 Ibn Baqi presided over two cases in which
buyers claimed major defects ('uyab) in recently purchased estates and
sued to recover damages. One case was complicated by the experts'
disagreement over the gravity of the defects.126 In the other case, the
new owner of the property had already reconstructed parts of the
building when the defects became known to him.127 Other claims
concerning defects in real estate were presented to the court of the
market inspector,128 which meant, at least in theory, that he had been
specially authorized (taqdim) to hear these cases by the qddl or the
ruler.129 All these cases fell within the domain of contract law,
120 Ibid.,604 and 974.
121 For a
judgment of this nature by the qddl al-jamd'a Ibn Bishr in the year
407/1016, issuedagainstthe declaredwill of somejurisconsults,see ibid., 101523.

122 Khushani,Qudah, 126, Ibn al-Faradi,Ta'rikh,no. 1385, Ibn Bashkuwal,
Sila, no. 684. With the exception of Ibn al-Faradi, Ta'rikh, no. 1257, the office of
sihib al-ahbds is always specified with the name of the qddl al-jamd'a whom he
served. Ibid., nos. 1053, 1184, 1396. 1538, 1540. In Jahwaridtimes, the sahib alahbds Ibn Makki (d. 474/1081) held the office of the marketinspector ([ahkam] alshurta wa'l-siq), Ibn Sahl, Ahkdm, 1003-04, Ibn Bashkuwal, Sila, no. 1210.
123 Ibn Sahl, Ahkam, 1004-05.
124 Ibid., 879-80 (the qadl al-jamt'a Ibn Bartal [d. 394/1003-04]).
125
Cp. Ibn Sahl's statement that the market inspector's main activities were in
the market,Ahkdm,6.
126 Ibid., 583-84.
127 Ibid., 579-82.
128 See ibid., 572-76 and 577-79.
129 Cp. ibid., 7.

183
accordingto which the seller is obligated to provide the sale object in

adequatecondition;failure to do so might lead to cancellationof the
contract.130
The q.ddial-jama'aIbn Baqi, on the otherhand,also dealtwith three

differentcases aimedat the reversalof a legally bindingcontract.In the
first case, a fathersold some real estate to a thirdparty.Subsequently,
the seller's sons challenged the sale on the ground that their father
previouslyhad been declaredincompetentto conduct business affairs
(saflh).131In the second case, a son had sold his share of a jointlyowned vineyardduringhis father'sabsence. Afterhis return,the father
claimed the right of preemption(shufa) to recover this sharefrom the
buyers,who were absentat the time of the lawsuit.132The thirdcase of
a claim to reverse a legally binding contract in the a qddil's court
involved a woman who grantedsome credit to her husband,who subsequentlydivorcedher. Following the divorce, the woman demanded
early repaymentof the debt. The man, however, insisted on fulfillment
of the contract.133
It is noteworthythat none of these qddl cases on the
reversalof a legally binding contractwas based on a claim for breach
of contractbut ratheraimed at a higher legal principlenot fixed in the
contract.
Two maintenance questions pertaining to the propertyrights of
absenteeswere broughtto the qa.d. The first concernedthe claim of an
umm walad for immediate manumission because her owner had not
supportedher duringhis absence,which had lasted for severalyears.'34
(In contrastto this case, a "normal"female slave who had no children
turned,in similarcircumstances,to the marketinspectordemandingto
be sold to somebodyelse.)135The second case of maintenanceinvolved
a penniless man whose son had settled in the Maghribyears earlier.
The man demandedthat the q.dd al-jamr'a Ibn Baqi sell his son's real
estate in Cordobato providesustenancefor himself and his wife.136
130 A claim of defect
('ayb, pl. 'uyab) is based on a contract and differs from a
claim of "damage",which is based on the legal principle "la darara wa aidirara"
and never linked to a contract. On the latter, see Akel Kahera and Omar Benmira,
"Damages in Islamic Law: Maghibi Muftis and the Built Environment (9th-15th
CenturiesC.E.)", Islamic Law and Society 5 (1998), 131-64.
131 Ibn Sahl, Ahkam, 132-34.
132 Ibid., 639-45.
133 Ibid., 782-87.
134 Ibid., 266-68. According to Maliki legal doctrine, an umm walad was to be
manumittedautomaticallywith the death of her master.
135 Ibid., 611-12.
136 Ibid., 636-38.

184
CHRISTIANMULLER
The positionof the qi.di al-jama'ain Cordobamustbe seen not only

from a legal perspectivedefining qa.da'jurisdictionbut also within the
wider frameworkof the city's manyjudicial institutions.In looking for
functional differences between the qddl al-jama'a and otherjudicial
magistratesin Cordoba,we see that the marketinspectordealt with a
numberof disputes in which the parties presentedwitness testimony
thatwas eithercontradictoryor insufficient.In some of these cases, the
marketinspectorrejectedthe witnesses on the groundsthat they lacked
These
credibility('adala) or harboredenmity towardthe defendant.137
cases had to be decided by the judge, although no legal title (haqq)
could be established accordingto the norms of evidence pertainingto
the sacred law. In legal terms, they could be described as "settling
controversy"(fasl al-khuswma).
In cases heardby qdids, legal problemsresultingfrom unacceptable
or incomplete witness evidence were of minor importance.Also, the
qd.didid not deal with civil torts,nor was he primarilyconcernedwith
breachof contract.His primarytask was to establish legal entitlement
using the methods of the sacred law, and to sanction these rights by
issuing a judgment.In cases in which witness testimony had substantiated opposing rights, the qddi might conclude the action without a
judgmentin favor of eitherparty,as happenedin the above-mentioned
dispute over real estate that was claimed to be an endowment. If the
claimant's witnesses were unknown to a qddi or his court witnesses,
the qhdi might give the claimantpermissionto choose a differentjudge
(hakim) in town.138If a qddi believed that a claim was baseless, he
would not initiate an action and the case would not be presentedto the
jurisconsults (and thus would leave no trace in our source).139This
being said, I find a crucialdifferencerelatingto evidence in inheritance
disputes. In these disputes, hardly any action was corroboratedby
testimonial evidence, except for the general statementconfirmingthe
deathof the personconcernedand the names and numbersof the heirs;
evidence which could be given by strangersin the form of "hearsay
137 See for
exampleibid.,577-79,wherethe defendantobstructedthe testimony
of paymentto preventa claimfor majordefectsin the vineyardsold. See also the
disputeover a cistern,ibid., 736-41, and the rejectionof a witness in a dispute
betweenneighborsconcerningdamagesto a wall, ibid., 1071-73.On cases involvTraditionand Civil Jurisdiction
ing the marketinspector,see my "Administrative
of the Cordovansahib al-ahkdm",Al-Qantara (forthcoming).

138 Ibn Sahl, Ahkam, 31, with a case of the qddi al-jamd'a Ahmad Ibn Ziyad
(d. 312/924). Also cited by Ibn Farhu.n,Tabsira, I, 58, thus pointingto the
of thiscase.
importance
139 In case of rejection,the otherpartywas not summonedat all, Ibn Sahl,
Ahkdm, 19; also cited in Ibn Farhuin,Tabsira, I, 54, and Nubahi, Marqaba, 194.

185
testimony"(shahdda bi'l-samd'). This observationmay be explained

by the fact thatM&likifiqhprohibitstestimonyin favor of nearrelatives
and othersdependenton a claimant.Therefore,in inheritancedisputes,
qd.disandjurists often recommendedan amicable settlement.Alternatively, a qddi might decide to allow one partyto swear the oath corroboratingits claim; the oath was consideredsufficientproof on which to
base a judgment.The decision as to which partyshould be grantedthe
rightto swearthe oathwas often determinedby local custom('urf).
A judgment, accordingto Maliki legal doctrine,must be based on
witness testimony,on an acknowledgment,or, in certaincases, on the
oath of the claimant(see above). Clearly,however, not every decision
issued by Cordovanqddls met the requirementsof the law of evidence.
At the same time, we cannotbe surethatthe qddiwas the only judge in
Cordobato issue qadd' judgments,despite the close semanticrelation
between the terms qddi and qadd'. Maliki legal theory allows the
supremeauthority(imam)who installsthe qdadito authorizehis officers
to act as qddi in defined areas.140The sources indicate that judicial
authoritiesotherthanthe qddiheardcivil cases in the early centuriesof
Islam.141In Cordoba, some fatwds issued in connection with cases
heardby the marketinspectorIbn Harishoptedfor a hukmbi'l-qadiyya
without explicitly requiringa transferto the qddi. To reopen a lawsuit
with anotherjudge, it was necessary to reproduceand reexamine all
relevantlegal evidence,which may have been a burdenfor many plaintiffs.142Since a judgment's resistance to amendmentdepends on its
evidential basis and its compliance with proceduraland substantive
law as interpretedby the jurisconsults,a decision by the marketinspector would be as safe as that of any qddi, as long as he was regardedas
possessing the required integrity ('adl). Yet we do not have any
indication that the market inspector of Cordoba passed qadd' judgments thathad the same legal and moral authorityas judgmentsof the
qadl al-jamd'a.143Clearly, a qddi judgment was valued higher than
judgments by other judicial magistrates, as indicated by the case in
which two plaintiffs recovered their propertyrights in land that had
been usurped by the former ruler of Cordoba, 'Abd al-Malik Ibn
140 Cf.
Baji, Muntaqd, V, 226.
141
Hiroyuki Yanagihashi, "The Judicial Functions of the sultan in Civil Cases
according to the Malikis up to the Sixth/Twelfth Century," Islamic Law and
Society, 3 (1996), 41-74.
142 Ibid., 50,
citing al-Azdi (d. 606/1209).
143 On this, see
my forthcoming article "Administrative Tradition and Civil
Jurisdictionof the Cordovansdhib al-ahkam".

186
CHRISTIANMULLER
Jahwar;the plaintiffs sought a qddt's corroborationof the judgment

issued by the judge of complaints (sahib al-mazdlim), Ibn Adham.
Whereas some jurisconsults allowed such a procedure, Ibn Sahl
opposed it, on the grounds that the judgment of Ibn Adham was
binding on the q.dl, and a qddi judgmentwould not create a different
legal situation; only if there were a substantially new and different
claim for the land shouldthe qa.dideal with the matter.44
Due to his generalauthorityfor qadd'judgmentsand his capacityto
register them as legally binding in his dlwan, the qdli al-jamat'aof
Cordobawas in an excellent positionto preserveand upholdlong-term
legal rights. No wonder many of the cases preservedin al-Ahkdmalkubrdfell within the fields of inheritance,bequestsand endowments,or
concernedthe propertyof minors,orphansand absentees.The qddl aljamd'a was part of a judicial system in which various judges complementedeach otherby theiradherenceto Malikilegal doctrine.Unlike
other officials, the qdi'ds jurisdictionalauthoritycould be terminated
only by dismissal; it could not be temporarilyinterruptedby the interference of the ruler in a particular case. The cases examined here
indicate that although the role played by the qdid al-jamd'a in
Cordovansociety was not exactly the role accordedto him by Islamic
legal theory, he nevertheless served as a guarantorof an "Islamic
jurisdiction"in a particularhistoricaltime andplace.
144 Ibn Sahl, Ahkdm, 505-06.


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many aspects of judicial practicein Cordoba.Unlike other collections

In this collection, Ibn Sahl provides a detailed descriptionof some

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M. Fierro, "Tres familias andalusi6s de 6poca omeya apodadas Banf Ziyad",

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JUDGINGWITHGOD'S LAW ON EARTH

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JUDGINGWITHGOD'S LAW ON EARTH

decision overturned by his successor. But jurisconsults were not always

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no second witness testimony is necessary.30In addition to certain

30 For the Maliki law of evidence, see Scholz, Malikitisches

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JUDGINGWITHGOD'S LAW ON EARTH

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5u Khushani, Quddh, 145.

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new qddi checked the registerand held his predecessorresponsiblefor

In some situations, the intrinsic powers of a qddi to monopolize

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rulerslimited the qcdl's influence. It is true that membersof the same

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JUDGINGWITHGOD'S LAW ON EARTH

68 See Ibn al-'Attar,

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al-Saqqa's judgment holding that a woman who had been sold as a

Ibn Sahl, Ahkdm, 728-30.

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Contrary to the annulment by a successor, this mistake need not be of a

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claimant's witnesses and eventually require a different decision by the

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judgment.But his jurisdictionwas not superiorto that of the qddl. In

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the teaching of former Cordovanjurists and judges. The jurisconsult

909),92 reserving cases of talio (qisds) to the qddl, was probably

93 IbnSahl,Ahkdm,10. Fortalio cases heardby qddi al-jamd'aIbnZiyad,see

98 Ibid., 1150-57 (also editedby Khallaf,Thaldthwathd'iqfi muhdrabatalahwa'wa'l-bid'afi l-Andalus(Cairo,1981), 111-24),cf. M. I. Fierro,"Elproceso

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In my analysis of the court cases heard between 456/1064 and

Awrdq, 5-6 (1982-3), 99-104, and D. Wasserstein, "Toledan Rule in Cordoba",

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Not all inheritance cases and subsequent disputes, however,

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in court (wakil).105In a case broughtbefore the sahib al-mazdlim,the

These cases demonstratethat inheritancewas involved in a great

Ibid., 504-06. The Banf Jahwarwere expelled from Cordobain 461/1069.

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