Qadi

Qadi (also known as qaadi, qaadee, qazi, kazi or kadi) () is a judge ruling in accordance with the sharia, Islamic religious law appointed by the ruler of a Muslim country. Because Islam makes no distinction between religious and secular domains, qadis' traditionally have jurisdiction over all legal matters involving Muslims. The judgment of a qadi must be based on ijmah, the prevailing consensus of the ulema, Islamic scholars.

A qadi must be an adult male. He must be a free man, a Muslim, sane, unconvicted of slander and educated in Islamic science. His performance must be totally congruent with Sharia without using his own interpretation. In a trial in front of a qadi, it is the plaintiff who is responsible for bringing evidence against the defendant in order to have him or her convicted. There are no appeals to the judgements of a qadi. He must exercise his office in a public place, the chief masjid is recommended, or, in his own house, where the public should have free access.

A qadi must not receive gifts from participants in a trial and he must be careful in engaging himself in trade. Despite the rules governing the office, Muslim history is full of complaints about qadis. It has often been a problem that qadis have been managers of waqfs, religious endowments.

The origin of the institution of qadi is the old Arab arbitrator, the Hakam, but qualities from officials in areas conquered by Arabs have been added to the structure.

Historical background

The term qadi was in use right from the time of the Prophet Muhammad, and remained the term used for judges throughout Islamic history and the period of the caliphates. While the muftis and fuqaha played the role in elucidation of the principles of jurisprudence and the laws, the qadi remained the key person ensuring the establishment of justice on the basis of these very laws and rules. Thus, the qadi was chosen from amongst those who had mastered the sciences of jurisprudence and law. (1334).]] During the period of the Abbasid Caliphate, the office of the qadi al-qudat (Chief Justice of the Highest Court) was established. Among the most famous of the early qadi al-qudat was Qadi Abu Yusuf who was a disciple of the famous early jurist Abu Hanifa.

The office of the qadi continued to be a very important one in every principality of the caliphates and sultanates of the Muslim empires over the centuries. The rulers appointed qadis in every region, town and village for judicial and administrative control and to establish peace and justice over the dominions they controlled.

The rulers of Muslim India also used the same institution of the qadi (or Kazi). The qadi (kazi) was given the responsibility for total administrative, judicial and fiscal control over a territory or a town. He would maintain all the civil records as well. He would also retain a small army or force to ensure that his rulings are enforced.

In most cases, the kazi (qadi) would pass on the title and position to his son, descendent or a very close relative. Over the centuries, this profession became a title within the families, and the power remained within one family in a region. Throughout India and Pakistan, we now find various Kazi families who descended through their famous Kazi (qadi) ancestors and retained the lands and position. Each family is known by the town or city that their ancestors controlled.

QĀḌĪ. A qāḍī is a judge responsible for the application of Islamic positive law (fiqh). The office originated under the rule of the first Umayyad caliphs (AH 40–85/661–705 CE), when the provincial governors of the newly created Islamic empire, unable to adjudicate the many disputes that arose among Muslims living within their territories, began to delegate this function to others. In this early period of Islamic history, no body of Islamic positive law had yet come into existence, and the first qāḍīs therefore decided cases on the basis of the only guidelines available to them: Arab customary law, the laws of the conquered territories, the general precepts of the Qurʾān, and their own sense of equity. During the later Umayyad period (705–750 CE), a growing class of Muslim legal scholars, distinct from the qāḍīs, busied themselves with the task of supplying the needed body of law, and by the time of the accession to power of the Abbasid dynasty in 750 their work could be said to have been essentially completed. In constructing their legal doctrine, these legal scholars took as their point of departure the precedents already established by the qāḍīs, some of which they rejected as inconsistent with Islamic principles as these were coming to be understood, but most of which they adopted, with or without modification. Thus the first qāḍīs in effect laid the foundations of Islamic positive law. Once this law had been formed, however, the role of the qāḍī underwent a profound change. No longer free to follow the guidelines mentioned above, a qāḍī was now expected to adhere solely to the new Islamic law, and this adherence has characterized the office ever since.

A qāḍī continued, however, to be a delegate of a higher authority, ultimately the caliph or, after the demise of the caliphate, the supreme ruler in a given territory. This delegate status implies the absence of a separation of powers; both judicial and executive powers were concentrated in the person of the supreme ruler (caliph or otherwise). On the other hand, a certain degree of autonomy was enjoyed by a qāḍī in that the law that he applied was not the creation of the supreme ruler or the expression of his will. What a qāḍī owed to the supreme ruler was solely the power to apply the law, for which sanctions were necessary that only the supreme ruler as head of the state could guarantee.

The qualifications that a qāḍī must possess are stated in the law, although the law is not uniform on this subject. The minimal requirement upon which all the jurists agree is that a qāḍī possess the same qualifications as a witness in court, that is, that he be free, sane, adult, trustworthy, and a Muslim. Some require that he also possess the qualifications of a jurist, that is, that he be well versed in the law, while others regard those qualifications as simply preferable, implying that a person may effectively discharge the duties of the office without being well versed in the law. This latter position presupposed that a qāḍī who is not learned in matters of law would consult those who are before reaching a decision. Indeed, consultation was urged upon the learned qāḍī as well, since even the learned are fallible and can profit from the views of others. Those consulted did not, however, have a voice in the final decision making. The Islamic court was a strictly one-judge court and the final decision rested upon the shoulders of a single qāḍī.

The jurisdiction of a qāḍī was theoretically coextensive with the scope of the law that he applied. That law was fundamentally a law for Muslims, and the internal affairs of the non-Muslim, or dhimmī, communities living within the Islamic state were left under the jurisdictions of those communities. Islamic law governed dhimmīs only with respect to their relations to Muslims and to the Islamic state. In actual practice, however, the jurisdiction of a qāḍī was hemmed in by what must be regarded as rival jurisdictions, particularly that of the maẓālim court and that of the shurṭah. The former was a court (presided over by the supreme ruler himself or his governor) that heard complaints addressed to it by virtually any offended party. Since Islamic law did not provide for any appellate jurisdiction but regarded the decision of a qāḍī as final and irrevocable, the maẓālim court could function as a kind of court of appeals in cases where parties complained of unfair decisions from qāḍīs. The maẓālim judge was not bound to the rules of Islamic law (fiqh), nor for that matter was he bound to any body of positive law, but was free to make decisions entirely on the basis of considerations of equity. The maẓālim court thus provided a remedy for the inability of a qāḍī to take equity freely into account. It also made up for certain shortcomings of Islamic law, for example, the lack of a highly developed law of torts, which was largely due to the preoccupation of the law with breaches of contracts. In addition, it heard complaints against state officials. The shurṭah, on the other hand, was the state apparatus responsible for criminal justice. It too provided a remedy for a deficiency in the law, namely the incompleteness and procedural rigidity of its criminal code. Although in theory a qāḍī exercised a criminal jurisdiction, in practice this jurisdiction was removed from his sphere of competence and turned over entirely to the shurṭah, which developed its own penalties and procedures. What was left to the qāḍī was a jurisdiction concerned mainly with cases having to do with inheritance, personal status, property, and commercial transactions. Even within this jurisdiction, a particular qāḍī's jurisdiction could be further restricted to particular cases or types of cases at the behest of the appointing superior.

The principle of delegation of judicial powers not only allowed the supreme ruler to delegate these powers to a qāḍī; it also allowed qāḍīs to further delegate them to others, and there was in principle no limit to this chain of delegation. All persons in the chain, except for the supreme ruler or his governor, bore the title qāḍī. Although in theory the appointment of a qāḍī could be effected by a simple verbal declaration on the part of the appointing superior, normally it was accomplished by means of a written certificate of investiture, which obviated the need for the appointee to appear in the presence of the superior. The appointment was essentially unilateral rather than contractual and did not require acceptance on the part of the appointee in order to be effective. It could be revoked at any time.

The Abbasids created the office of chief qāḍī (qāḍī al-quḍāh), whose holder acted primarily as adviser to the caliph in the appointment and dismissal of qāḍīs. Later Islamic states generally retained this office, while granting to its holder the authority to issue appointments and dismissals in his own name. The Mamluk state, which ruled Egypt and Syria from 1250 to 1516 CE, introduced the practice of appointing four chief qāḍīs, one for each of the Sunni legal schools (madhhabs).

Although the primary responsibility of a qāḍī was a judicial one, he was generally charged with certain nonjudicial responsibilities as well, such as the administration of religious endowments (waqfs), the legitimization of the accession or deposition of a ruler, the execution of wills, the accreditation of witnesses, guardianship over orphans and others in need of protection, and supervision of the enforcement of public morals (ḥisbah).

See also

Islamic law

Bibliography

Schacht, Joseph. An Introduction to Islamic Law. Oxford, 1964.

Tyan, Emile. "Judicial Organization." In Law in the Middle East, vol. 1, edited by Majid Khadduri and Herbert J. Liebesny, pp. 236–278. Washington, D. C., 1955.

Tyan, Emile. Histoire de l'organization judiciaire en pays d'Islam. 2d ed. Leiden, 1960.

Religious and judicial roles

In the Islamic world, under constitutional government, such as Turkey, where sharia is not the basis for the legal system, the term qadi is still used to identify judges or magistrates. However in countries where some shariah law is enforced, such as Saudi Arabia, the qadi is the judge who rules under the Islamic laws enforced.

In countries that practice a hybrid legal system such as Egypt, a qadi makes an initial ruling in all civil and criminal matters. In Pakistan, where there is a dual legal system of the regular courts and the Shariah courts, the qadis (kazis) are appointed in the latter case who rule according to the shariah law. In some Islamic countries, the position of qadi, formerly reduced to simply being responsible for the initial hearing of cases or even abolished in the process of Westernization, has been recently reinstated, as in some Islamic provinces of northern Nigeria. When it involves a severe penalty, his decision has to be approved by a Mufti, certainly in capital punishment cases, to ensure that verdict is in compliance with the Islamic law.

In Turkey, qadis were appointed by the Veliyu l-Emr. With the reform movements, secular courts have replaced qadis, but they formerly held wide ranging responsibilities: :... During Ottoman period, [qadi] was responsible for the city services. The charged people such as Subasi, Bocekbasi, Copluk Subasisi, Mimarbasi and Police assisted the qadi, who coordinated all the services." [From History of Istanbul Municipality, Istanbul Municipality (in Turkish).]

In the Ottoman empire, a Kadiluk – the district covered by a kadı – was an administrative subdivision, smaller than a Sanjak.

Mayotte governorship

On the island of Mayotte, one of the Comoro Islands, the title qadi was used for Umar who governed it from 19 November 1835 to 1836 after its conquest by and annexation to the Sultanate of Ndzuwani (Anjouan).

Spanish derivation

Alcalde, one of the current Spanish terms for the mayor of a town or city, is derived from the Arabic al-qaḍi ( قاضي,), "the judge." In Al-Andalus a single qadi was appointed to each province. To deal with issues that fell outside of the purview of sharia or to handle municipal administration (such as oversight of the police and the markets) other judicial officers with different titles were appointed by the rulers.

The term was later adopted in Portugal, Leon and Castile during the eleventh and twelfth centuries to refer to the assistant judges, who served under the principal municipal judge, the iudex or juez. Unlike the appointed Andalusian qadis, the alcaldes were elected by an assembly of the municipality's property owners. Eventually the term came to be applied to a host of positions that combined administrative and judicial functions, such as the alcaldes mayores, the alcaldes del crimen and the alcaldes de barrio. The adoption of this term, like many other Arabic ones, reflects the fact that, at least in the early phases of the Reconquista, Muslim society in the Iberian Peninsula imparted great influence on the Christian one. As Spanish Christians took over an increasing part of the Peninsula, they adapted Muslim systems and terminology for their own use.

See also

List of Islamic terms in Arabic

House of Kadies Al-Kadi Saudi House

Cadilesker

Tel el-Qadi, ("Mound of the Judge"), Arabic name of Tel Dan, Israel

Kadiluk, Ottoman administrative unit ruled by a Kadi

Notes

References

"Qadi," LookLex Encyclopaedia (formerly Encyclopedia of the Orient).

Bekir Kemal Ataman, "Ottoman Kadi Registers as a Source of Social History." Unpublished M.A. Thesis. University of London, University College London, School of Library, Archive and Information Studies. 1987.

Imamuddin, S. M. Muslim Spain: 711–1492 A.D.: A Sociological Study. Leiden, E. J. Brill, 1981.

O'Callaghan, Joseph F. A History of Medieval Spain. Ithaca, Cornell University Press, 1975. ISBN 0-8014-0880-6

Özhan Öztürk (2005). Karadeniz (Black Sea): Ansiklopedik Sözlük. 2 Cilt. Heyamola Yayıncılık. İstanbul. ISBN 975-6121-00-9

"Mayotte", WorldStatesmen

Category:Gubernatorial titles