Legal practice in medieval Islam

Western jurisprudence has provided a number of different answers to the question of the nature of the law, variously finding its source to lie in the orders of a political superior, or in the very nature of the universe itself. For Islam this same question admits of only one question which the religious faith supplies. Law is the command of God. Since law can be only be the pre-ordained system of God’s commands or Shari’a, jurisprudence is the science of understanding and ascertaining that law. Shari’a law had come into being as a doctrinal system independent of and essentially opposed to current legal practice.

Organization of the Islamic state under the Umayyads was not based upon any firm separation of the executive and judicial functions. Settlements of disputes of a private nature was a specific duty delegated to a judge. The judges came to have a general judicial competence, and by the end of the Umayyad period they had become the central organ for the administration of law.

With the accession to power of the ‘Abbasid dynasty and its declared policy of implementing the system of religious law currently being worked out by the scholar-jurists, the status of the judiciary was greatly enhanced. Henceforth the judges became inseparably linked with Shari’a law which it was their bounden duty to apply. Organized as a profession under the authority of a chief judge, they were no longer the spokesmen of a law which represented the command of the district governor but now owed allegiance exclusively to God’s law. But the Shari’a courts never attained that position of supreme judicial authority independent of political control. Although judges may have been appointed by the chief judge, the judiciary held office only during the pleasure of the political authority, as indeed did the chief justice himself, and their character of political subordinates was responsible for a serious limitation on their powers of jurisdiction which existed from the outset.

The factor which seriously impaired the efficiency of the Shari’a courts was the system of procedure and evidence by which they were bound. On the basis of the initial presumption attached by the law to the facts (e.g. the presumption of innocence in a criminal case or the presumption of freedom from debt in a civil suit) the parties of litigation were allotted to the roles of plaintiff and defendant respectively, the former being the party whose assertion ran counter to this presumption, the latter the party whose assertion was supported by it. Upon the plaintiff fell the burden of proof, and this burden could shift many times in the course of the same suit. Whether on an intermediate or the ultimate issue the burden of proof was always the same; the plaintiff had to produce two male adult Muslims to testify orally to their direct knowledge of the truth of his claim. Written evidence was not acceptable and any form of circumstantial evidence was totally inadmissible. Some limited exceptions were recognized – in certain cases one witness might be sufficient if the plaintiff also took an oath confirming his claim and the testimony of women might be acceptable (though two women were usually required to take the place of one man) – but in all cases the witness had to possess the highest quality of moral and religious probity. Where the plaintiff failed to discharge this rigid burden of proof, the defendant was offered the oath of denial. Properly sworn on the Qur’an such an oath secured judgment in his favour; if he failed to take it, judgment would be given for the plaintiff provided, in some circumstances, he himself took an oath. The rigidly formalistic and mechanical nature of Shari’a procedure left little or no scope for the exercise of any discretion by the judge in controlling proceedings before him.

Criminal law was the obvious sphere where political interests could not tolerate the cumbersome nature of Shari’a procedure. Jurisdiction here mainly belonged to the police, the delegate who exercised it being alternatively called the official in charge of crimes. These courts considered circumstantial evidence, heard the testimony of witnesses of dubious character, put them on oath and cross-examined them; they imprisoned suspects, convicted them on the basis of known character and previous offences, might make the accused swear the oath by a local saint instead of on the Qur’an, and in general could take such measures to discover guilt, including the extortion of confessions, as they saw fit.

Enough has now been said to indicate that Shari’a law, however strong its religious force as providing an ideal and comprehensive code of conduct for the individual, can form only a part of the Islamic legal system. Islamic legal practice was based on a dual system of courts. Islamic government has never meant, in theory or in practice, the exclusive jurisdiction of Shari’a tribunals.

(a) Answer the following questions:

1) What was the system of procedure in the Shari’a courts like?

2) What was the system of procedure in the police courts like?

(b) Explain the meaning of the following words and expressions:

- official in charge of crimes

- circumstantial evidence

- the oath of denial

- burden of proof

- written evidence

- supreme judicial authority

- judiciary

- spokesmen of a law

- judicial competence

TASK 4. Study the text below, making sure you fully comprehend it. Where appropriate, consult English-Russian dictionaries and/or other references & source books on law.