SOCIO-POLITICAL FACTORS OF QADÀ' IN EIGHTH/FOURTEENTH CENTURY SYRIA*

The relationship between theory and practice in Islamic law can be examined in several ways. With regard to the substance of Islamic law one could ask in which way are or can the rulings of the shan'a be applied. Another question concerning the external aspects of the sharVa could be, to what extent do the political situation, the judicial administration, the education system and other socio-political factors allow a sharVa conforming jurisdiction. Qadis who are not qualified, whose competence is reduced by the political rulers or whose judgements are influenced by political interests, are not able to exercise qàdà' in the frame of the sharVa. The examination at hand therefore aims to reconstruct the socio-political background of a number of qadis in eighth/fourteenth century Syria. On the basis of several biographical works containing detailed and authentic descriptions of more than 200 Syrian qàdn it shall be demonstrated that there existed the essential preconditions for exercising qàdâ ' in that time and region. As a result of this study, which possibly throws light on a new aspect of qàdà ' in the Mamluk Empire, one may propose that the qadis, along with other 'ulamà\ form a separate body within the Mamluk state system which on one side appears to be strong enough to resist political encroachments and, on the other, provides for and profits from a high level of legal education.


I. INTRODUCTION
It is a commonplace that qadà 'constitutes one of the institutional elements of Islamic law.Like iftà ' and hisba it is bound to a variety of theoretical and practical preconditions in order to be operative.With regard to the application of law -and this is the essential function of qaâà '-we may assume that a corpus iuris in any legal system is confronted with specific social and political conditions.We even may go further and propose an interdependence between law and society.In the same way as law, that is the totality of ideal norms, determines and influences human acts, so human beings in their turn tend to determine law by interpreting it or by creating new rulings.It is just this dialectical process, which preserves a legal system from growing out of touch with the demands of society.In Islamic law the institution of qadà ' holds an important key position between theory and practice and is, from the theoretical point of view, essential for keeping the above mentioned process in motion.In which way however, did the functioning of qadà ' actually take place in the history of Islamic law?
Attention in this study is not so much directed to the content of judicial decisions, but to the social and political preconditions for the exercise of qadà \ If qadà ' is an integral part of the society, then there must be an administrative and educational infrastructure as well as a climate of tolerance and respect for judicial pronouncements.From this point of view the exercise of qadà' basically depends on three essential factors: 1. Existence of a judicial staff responsible for the Islamic parts of the population.
2. Qualification of the judges in the field of Islamic law.
3. Independence of the judges in a state system, which claims to be nomocratic.
B. JoKiscH AQ.XX, 1999 In order to enter a field which has not yet been the object of researches the study is limited to qadà ' in fourteenth century Syria.It is based on a variety of biographical works and chronicles, particularly the monumental work al-Wàfi bi '1-wafayàt of Khalîl b. Aybak as-Safadï (d. 764/1363), ad-Durar al-kàmina of Ibn Hajar al-'Asqalânï (d. 852/1448) and al-Bidàya wa'nnihàya of Ibn Kathîr (d. 771/1369).As eyewitnesses, they supply authentic material about Syrian judges in the fourteenth century.Although of course not all the material is authentic and the biograms are structured in a somewhat stereotyped way, it is possible to get an idea of the qualities and activities of the judges.

II. EXISTENCE AND DISPERSION OF ISLAMIC JUDGES
In one of his works, al~Maqrïzï' points out that the application of Islamic law in the Mamluk empire has been restricted by another legal system, the Yàsa of the Mongols.According to his reports, the Mamluk hàjib in the middle of the fourteenth century extended his competence to all fields of law.This, however, seems to stand in sharp contrast with what other sources of that time and region show.Apart from the fact that the reports of al-Maqrïzï in this respect may not be regarded as reliable,^ eyewitnesses as as-Safadï, Ibn Kathîr and as-Subki mention a number of facts, which point to the existence of an Islamic administration of justice in Syria.^The most striking fact common to almost all contemporary sources is the high number of Islamic judges.
Out of the bulk of biographies in the afore mentioned prosopographical works and chronicles 236 judges could be identified exercising the office of qadà ' once or several times in fourteenth century Syria.79 of them were chief judges, particularly in Damascus and Aleppo, and 67 functioned as deputies.Certainly this is only the smaller part of all Islamic judges, because we know from the sources that there are further qàdis, who cannot however be completely identified.If we consider the number of Muslim inhabitants in "* It is a regrettable fact that there are no reliable statistics concerning the population of fourteenth century Syria.According to Ottoman statistics of the sixteenth century Damascus and Aleppo, the greatest cities in Syria, had about 60.000 inhabitants respectively (Lapidus, I., Muslim cities in the later Middle ages, Cambridge, 1967, 79).Supposing that the population of Damascus and Aleppo represented about one fifth of the whole Syrian population, the number of the Syrian inhabitants did not exceed 500.000 at that time.We also have to consider that the population increased and that there was a high rate of mortality because of the plague in the middle of the 14th century.On the other side the number of 236 qadis certainly does not represent the whole number of qadis as can be seen from many judges mentioned incidentally without being completely identifiable.
^ The average length of tenure has been calculated on the basis of 86 qadis about whom we have detailed informations concerning the tenure of office.In order to get the ^ôçK/inhabitants proportion, the average number of 14 has been related to all 236 judges and to a period of 100 years.As mentioned above, we must consider, however, that there are further qadis.So, for example, the chief judges and judges (altogether 169) normaly have 2, sometimes even 3 deputies, but the sources only mention 67 explicitly.Furthermore it is important to know, that most of the judges exercised qadà ' in several places, but it is mainly their judicial activities in Damascus and Aleppo that are described in detail in the sources and therefore have been considered in the abovementioned calculation.As to the law schools, the dispersion of qadis is somewhat different.Whereas the Shâfi'ï qàdis, who represent the vast majority of the judges (55%), came to appear in nearly all towns and villages, the Hanafís, Málikís and Hanbalïs, representing 19%, 13% and 13% respectively, were raised to the bench only in a few towns mentioned above.Hanafí judges are found in 6 towns, Mâlikï and Hanbalî judges in 5 and 3 towns respectively.There was, however, a tendency to reduce the influence of the Shaft'is in favor of the other madhhabs.This tendency to establish parity between the law schools, reflected in the constitutional jurisprudence of al-Qarafl,^"* already became perceptible in thirteenth century Egypt.After the establishment of four chief judges in Cairo in 663/1264 and some years later in Damascus, the monopoly of the Shàfi'ïs and to a certain degree of the Hanafís was removed also in Aleppo,^^ Tarabulus,^^ Hamàt^^ and Hims.^^In 748/1347 Sharaf ad-Dm al-Maqdisi became the first Hanbalî judge in Halab.The first Mâlikï judge in that town, appointed before 767/1366, was Ahmad b.Yàsïn b.Muhammad ar-Rubàhî.The Shâfi'ï judgeship in Safad was coupled with a Hanafí and a Mâlikï one according to some chronicles, ^^ but this is not confirmed by the biographical material.The more or less detailed descriptions in fum' and àdàb al-qàdi literature^^ concerning the preconditions of qadà' seem to postulate a high level of qualification.The emphasis, in the first place, is made on ijtihàd as a high category of qualification, meaning that the qàdis have to be skilled in subjects such as Qur 'àn, hadïth,fiqh, usül, khilàf, 'arabiyya, nahw, etc.A realistic point of view, however, moved the jurists to keep the door open for all those aspirants of qadà' who failed the hurdle of ijtihàd.In fourteenth century Syria it was a generally accepted opinion^^ that only a small number of scholars really deserves the denomination mujtahid and that therefore non-mujtahids too must be allowed to apply Islamic law.Several subcategories of ijtihàd have been developed since the 10 th.century and thence formed the theoretical basis for the actual standard of qualification.
In fact, there existed only a few scholars in fourteenth century Syria who were regarded by their contemporaries as mujtahid.No doubt Ibn Taymiyya, one of the most outstanding figures in that time, belonged to the small circle of mujtahids, but he never assumed the office of qadà '.Among the qàdis we only find one scholar reaching the level of ijtihàd: the renowned chief judge of Damascus Taqfd-Dïn as-Subkï.^^He remained in office for 17 years and represented the Shafi'i madhhab in Syria up to his death in 756/1355.All the other 235 judges, however, were deemed more or less qualified jurists but not mujtahids in the narrow sense of the notion.
This being a matter of fact, it nevertheless appeared to be sufficient for the functioning of the judicial order.More than 90% of the qàdis, whose biograms contain details about their qualification were proficient fiqh experts and familiar with the bulk of prescriptions in the fum' works.It becomes clear that the focal point of the qàdi's education lies in the field of fiqh followed by hadith (30%), usül al-fiqh (18%) and 'arabiyya (15%).Other subjects as nahw, tafsir, qirà 'a, bayàn, farà'id, ta'ríkh, adab, kalàm, mantiq  This tendency is not only confirmed by the existence of more than 100 law colleges alone in Damascus -an-Nu'aym?^ gives a full list of them-but also by the categories and number of the teachers, who formed the intellectual basis of the qàdis.The largest group consists of fuqaha', some of them prominent, like Taj ad-Dîn b. al-Firkah,^"^ his son Burhàn ad-Dïn, an-Nawawï,^^ Ibn 'Abd as-Salàm,26 Ibn al-Wakïl,^^ Zayn ad-Dïn al-Fàriqï,^» Ibn al-'Attàr^^ and numerous teachers who were themselves qàdis?^ The second group concerning hadith teachers underlines the impression that hadith much more than Qur 'an represents an integral part of the qàdi 's education.According to the biographical data, Ahmad b. 'Abd al-Dà'im,^^ Ibn Abï'1-Yusr^^ and al-Hajjar^^ are supposed to be hadith lecturers for not less than 38 judges.-^"^The third and fourth place is held by the usülis^^ and nahwïs^^ respectively.At least 50% of the qadis, in their turn, assumed teaching posts in one or several law colleges in Syria and in some cases the appointment as qàdi was directly connected with the appointment as teacher.We may assume that the accumulation of offices largely contributed to keeping a close connection between theory and practice.
The afore mentioned criteria are suitable, to a certain degree, to indicate the general juristic education of the judges.Biographical reports, however, concerning the works composed, read or memorized by the qàdis give an idea of the concrete legal material with which the judges seemed to be well acquainted.Compared with the impressive multitude of legal literature produced up to that time, it seems to be a rather small selection oífurü' and usül works, that the judges of fourteenth century Syria usually heard or memorized.Certainly there were a few proficient experts who mastered the whole of uml anáfurü\ studied many works and even composed commentaries or other legal works, but that is not the rule with regard to the judges.The general repository of positive law appeared to be, in the Shàfi'ï madhhab, small manuals like the Tanbîh^^ of ash-Shîràzî, the Minhàj aUñlibín of an-Nawawî and the Hàwi of al-QazwM.Other jferM* works are mentioned here and there, but they did not rank among the standard works.Interestingly, in the field of uml al-fiqh the To analyze in which way judicial decisions can be deduced from the basic legal material, is not the subject of this paper.It can be pointed out, however, that at least one third of the Syrian qàdis -and probably much more--was familiar with one or several/z^/z and/or usül works and that this legal material, in one way or another, formed the basis for judicial decisions.

IV. INDEPENDENCE OF gADÂ'
The political and economical independence of the qadis certainly represents one of the essential preconditions of qadà '.In order to carry out their office independently, the judges, in the first place, had to be free of interferences of political rulers who usually tended to influence the judicial decisions in one way or another.Indeed, there is abundant material in the biographical works indicating this conflict between the qadis as part of the 'ulamà' class on one side and the Mamluk rulers on the other.According to some opinions in Western literature^^ the qàdis appeared to be the losers in this conflict, being totally exposed to the intrigues of the Mamluks.
Admittedly, now and then disobedient qàdis have been made compliant by the political rulers, but in the long run, it appears to have been the other way round.Qàdis as well as other 'ulamà' were heavily involved in economical and political affairs attacking illegal taxes^^ or preventing attemps to confiscate endowment properties.Exposed to a considerable pressure the poütical rulers in several cases made concessions and issued decrees supporting the interests of the 'ulamà'.'^ The most important instrument of controlling the qàdi's activities was the traditional right of the sultans to appoint and dismiss the judges.The biographical sources make clear, however, that the actual use of that instrument in fourteenth century Syria may not be overemphasized.In fact, the political impact on qàdà ' by way of appointment or dismissal was rather limited.The following points possibly confirm this opinion: AQ.XX, 1999 SOCIO-POLITICAL FACTORS OF QADÀ ' 511 as a rule, had to be members of the fuqahà' class {ta'if at al-fuqahà').This not only confirms the qualification of the judges, but also suggests that the political rulers to a certain extent were prevented from arbitrary appointments.The formulation «somebody introduced someone into the fuqahà' class», frequently used in the sources,'*^ makes clear that there were distinct boundaries between different groups in the Mamluk society and that the fuqahà ' formed one of them.As has already been noted, the fuqahà' were connected with each other by a variety of educational as well as family ties forming a coherent unity.This is not to say that the lawyers constituted a homogeneous bloc of sharVa experts unanimously conspiring against the political rulers.In fact, iht fuqahà' class was divided into subgroups represented by the four law schools, which sometimes violently competed with each other.So in a letter of Najm ad-Dm at-Tarsüsí directed to the Sultan it is reported"^^ that the Hanafí chief judge in Damascus was striving for a monopoly of the Hanafís in the Mamluk Empire at the expense of the other law schools.The general contentiousness among the lawyers can be observed in a lot of disputes recorded in the chronicles.But in spite of these rivalries occuring also within the law schools the boundaries between the ahl ad-dawla and the fuqahà ' proved to be strong enough to impede encroachments from the political side.The specific structure of the fuqahà ' class very often enabled the lawyers to preselect the candidates, who afterwards were appointed by the sultans.
2. It is a fact to be traced back to the very beginning of Islam that the political rulers are entitled to appoint the judges.On the other hand, we frequently observe the phenomenon that the candidates refused to accept the appointment, be it that they felt unqualified, be it that they feared to be involved into mundane affairs.This reserve also can be ascertained in fourteenth century Syria where 16 persons, that is about 7%, refused to become judges after the appointment.The poMtical rulers had the right of appointment, but they generally were not allowed to force the candidates to accept the appointment.
3. In the same way as the political rulers were entitled to appoint the judges, the qàdi% in their turn had the right to appoint the deputies.In other terms, at least 25% of the qàdi% Usted in this study have not been appointed by the sultans and governors but by the judges and chief judges.As mentioned above, we have to consider that the number of 67 most probably doesn't reflect B.JOKISCH AQ.XK, 1999 the real number of deputies, because every judge normally had 2, sometimes even 3 deputies.This would mean that there were 340-510 deputies instead of 67 deputies mentioned explicitly in the sources.
4. In 4 cases the Shàfi'ï chief judges in Damascus extended their competence by appointing not only deputies but also independent judges.So 'Ala' ad-Dïn al-Qunawî appointed Abu Bakr b. ash-Sharîshî in Hims."^Somewhat earlier Muhammad b. *Abdalhaqq b. îsà was appointed by Taqfd-Dm as-Subki in the same town."^^His son, Taj ad-Dîn as-Subkï, chose his relative Qutb ad-Din as-Subkï to become judge in Ba'labakk."^^In Husbán it was Badr ad-Dîn al-Hakkârî who was appointed by al-Balqim."^^ 5.More than half of the qàdis were related with at least one another qadi in Syria.No doubt nepotism played an important role in selecting the candidates.It becomes clear that qada ' tended to be the preserve of influential families each dominating or co-dominating a certain region in Syria.So in Damascus it was the scholarly dynasty of the Subkïs followed by the Akhnà'îs, Qazwînîs, Sharîshîs and Banu Jamâ*a who mostly assumed the office of qadà ' for the Shâfi*î madhhab.Some Hanafí qàdis in Damascus belonged to the Kufri family whereas the Maqdisis, Murdàwïs, Banû Hamza and Banû Munajjà dominated the Hanbalï jurisdiction.In Aleppo it was the Banû Hirmàs for the Shàfi'ïs and the Banû *Adïm for the Hanafîs who controlled qadà' for their madhhab respectively.In a third town, Hamàt, the Bàrizîs possessed the monopoly of qadà' for the Shàfi'îs.
Out of all law schools represented in Syria, only the Màlikîs didn't succeed in establishing a powerful qàdi family and this certainly accounts for the weak position of that madhhab in the judicial administration.
Altogether we have 106 cases, in which members of the fuqahà* class -and not the political rulers-appointed the judges or prepared the ground for an appointment.On the other hand, there are only three qadis being compelled to assume the office and 9 qadis who were appointed after a new ruler had seized power.
In principle the same applies to dismissals.We have 229 cases in which qadis left the office for one reason or another but only in 11 cases the dismissals have been pronounced on political grounds.So, for example, in 709/1309,759/1358 and 792/1390 some qadis have been removed from office because of the change of power.On the other hand, in 156 cases the tenure of qadà ' ended because of death, voluntary resignation or promotion.Ten judges have been dismissed because of injustice and many other qadis have been involved in the procedure of dismissal.With regard to the remaining 52 cases we don't have any information about the reasons of dismissal, but the afore mentioned figures may be taken as representative for the low extent of political interference.
Apart from appointments and dismissals there is another aspect of qadà' concerning the qàdi's economic dependence.Usually the judges were paid regular salaries and this also applies to the qadis of fourteenth century Syria,"^^ even though in one case the sultan refused to pay the salaries."^^With regard to the considerable amount of the salaries one should suppose that bribery was a common means to obtain a profitable qadi post.Nevertheless, the sources remain silent about such a practice, although this certainly doesn't reflect the whole truth.What we definitely know is that some judges waived the salary and exercised qadà' gratuitously.^^Other qadis remained economically independent in so far as they exercised a lucrative profession in addition to qadà'.^^ The jurisdictional activities of Muslim scholars extended to a variety of legal fields as appears from fatâwà collections^^ and other documents.^^This most B. JOKISCH AQ.XX, 1999 probably applies to the qàdis as well.It is clear that the prosopographical literature hardly provides material about the substance of judicial pronouncements.Nevertheless, there can be observed a tendency as to which areas of the law are concerned and, particularly, which fields of the law attracted the attention of the political rulers.Whereas the large majority of the cases concerning deviation from the madhhab opinion,^"^ apostasy,^^ endowment^^ and other fields of the law^^ is ruled by the qàdis independently, only in some few cases the political rulers were involved.These being extraordinary cases of particular public interest makes one believe that the bulk of judicial decisions dealing with day-to-day issues was free from any political influence.
V. CONCLUSION The main purpose of this study was to demonstrate that there existed an efficient judicial system in fourteenth century Syria entirely determined by Islamic law.On the basis of numerous biographical sources and chronicles it has been proved that the essential preconditions of qadà\ that is number, qualification and independence of the judges, have been fullfilled to a considerable extent in that time and region.Although this is only a short study requiring further, more detailed examination, we may propose that there was a clear tendency towards the application of Islamic law in a judicial frame.Altogether 236 judges, chief judges and deputies dispersed all over Syria have been detected in the sources.Most of them represented the Shâfi'î madhhab followed by the Hanafis, Hanbalis atid Mâlikîs.Almost all of them were trained in Islamic law in at least one of the numerous law colleges in Syria and many of them memorized or were familiar with the most important ^rw' and usül works current at that time.The fact that many qàdis in the same time assumed teaching posts in a law college suggests a close connection between theory and practice.The appointment of the judges, in theory a prerogative of the political rulers, in fact was in the purview of the qàdis themselves.Whereas in 106 cases the appointment was influenced by the qàdis in one way or another, only in 12 cases arbitrary decisions of the political rulers are noticeable.Other restrictions Shâfi'îs tended to exceed the madhhab boundaries reclining in the first place upon the Mukhtasar of the Màlikï Ibn al-Hijib, an uml work which obviously was deemed authoritative in that time by all law schools except the Hanafis.Only in the second place they made recourse to the Minhàj of the Shàfi'ï al-Baydàwï (d.692/1293).The Hanafis and Màlikïs usually read, heard or memorized the Hidàya of al-Marghinànî and the Muwatta' of Malik b.Anas respectively.Most of the Hanbalï judges were well acquainted with Hanbalï works as the MuqnV of Ibn Qudàma or the Muharrar of Majd ad-Dïn b.Taymiyya, but they sometimes tended to study or comment works of other law schools as well.The vast fum' spectrum of Hanbalï fiqh works resulting from a considerable openness to other law schools blured the madhhab boundaries anyway.B. JoKiscH AQ.XX, 1999

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Consejo Superior de Investigaciones Científicas Licencia Creative Commons Reconocimiento 4.0 Internacional (CC BY 4.0) http://al-qantara.revistas.csic.esAQ.XX, 1999 SOCIO-POLITICAL FACTORS OF QADÁ' 513 The average length of tenure in cities or towns other than Damascus or Aleppo amounts to 23 years and this number even increases if we consider the Hanafis, Hanbalîs and Milikîs only.