The Cadi’s Jurisdiction: Evolution and Consolidation
The Cadi’s Jurisdiction: Evolution and Consolidation
Abstract and Keywords
The chapter discusses the nature of the cadi’s jurisdiction and cadi’s position within the state administrative structure. Between 705 and 810 cadis acquired responsibility for supervision/administration of various trust funds. While the cadis’ involvement with the management/supervision of waqfs begun during the 730s, the cadis never achieved full control over the waqf institution.
Definitions and Perspectives
Customarily, the nature of the cadi’s jurisdiction has been approached through etymological inquiry into the meaning of the root q.ḍ.y in the Koran. Schacht, for example, has pointed out that in the Koran the verb qaḍā signifies God’s, or the Prophet’s, decrees, while when referring to the Prophet’s judicial activities the terminology is derived from the root ḥ.k.m. As Arzina B. Lalani has pointed out in an illuminating entry in the Encyclopaedia of the Qur’ān, the Koran also includes many ethical injunctions concerning how justice should be dispensed.1 Moving from the Koranic teachings to classical lexicography as studied by Tillier, we observe that the infinitive noun qaḍā’ signifies judgment, and the primary function of the cadi (qāḍī) was to pronounce authoritative decisions regarding disputes brought before him. Tillier concludes the discussion with a powerful, neatly formulated statement:
Étymologiquement, la racine ‘q.ḍ.y’ est étrangère à l’idée de ‘droit’ ou de ‘justice’ et si le qāḍī peut être un juge, ses fonctions sont rarement réductibles à ce que recouvre le terme français, défini comme un ‘magistrate chargé d’appliquer les lois et de rendre la justice’. Traduire ‘qāḍī’ par ‘juge’, c’est attirer de force la cadi musulman dans un univers sémantique qui n’est pas le sien, plaquer sur lui un système référential anachronique.
(p.38) At the end of the discussion Tillier offers his readers the following explanation: ‘C’est pourquoi le mot ‘qāḍī’ sera exclusivement rendu par ‘cadi’ dans cet ouvrage [i.e. his book].’2
Although approached from a different angle, similar conclusions have been reached by students of the Ottoman system of the administration of justice. Gyula Káldy Nagy, writing about the Ottoman cadi, has stated: ‘The authority of the ḳāḍī covered such a large area of responsibility that the full meaning of the title cannot be accurately rendered by the word “judge”.’3 Case studies on the Ottoman judicial system have corroborated Nagy’s statement and depict the Ottoman cadi as a provincial administrator who was also vested with judicial authority, a duality reflected by the Ottoman court records.4 When the broader context of the cadi’s role in medieval and Ottoman Islam is considered, Max Weber’s concept of Kadijustiz must be addressed. Weber has stated:
The ‘rational’ interpretation of law on the basis of strictly formal concepts can be juxtaposed to a kind of adjudication that is primarily bound to hallowed tradition. Individual cases which cannot be unambiguously decided by tradition it either settles by concrete revelation … or … by informal judgments rendered in terms of concrete ethical or other practical concepts, by drawing on ‘analogies’ and by depending upon and interpreting concrete ‘precedents’.
Kadi-justice knows no rational ‘rules of decision’ (Urteilsgründe) whatever, nor does empirical justice of the pure type give any reason which in our sense could be rational.5
(p.39) The Kadijustiz paradigm has been examined by David S. Powers in a case study that involved a paternity dispute in Marinid Morocco of the early 1310s. He also set out to explore the levels of familiarity with the law in Muslim society in general and in that of Marimid Morocco in particular. Powers argues against the stereotype of a cadi as an arbitrary judge unconstrained by the rulers of law.6 When the scope of the discussion is extended, Powers’ conclusions are reaffirmed. Stefan Knost, for example, has made the following observation:
Judges in Ottoman Aleppo c. 1800 were neither automatons who applied procedural rules in a mechanical manner nor Weberian Kadis who decided cases arbitrarily without reference to any legal rules and principles. Judges were not required to follow a single doctrine. They decided each case according to its particularities, using all the legal tools at their disposal.7
While avoiding any reference to Weber’s Kadijustiz paradigm, Lesile Peirce has drawn attention to the social dimension of the law, and implicitly she explains the main flaw in the paradigm:
It was not an ideal of the premodern Ottoman legal system that its justice be blind. Not until the mid-nineteenth century was the idea entertained that the law should encounter the individual as notional entity rather than as a particular combination of social and civil attributes to be scrutinized and entered into the calculus of judgment.8
Peirce’s observations are supported and corroborated by other evidence. Hülya Canbakal, for example, has characterised the Ottoman Ḥanafī law as ‘status-sensitive’ and the application of taʿzīr penalties was related to the social standing of the offender and the severity of the punishment increased as one went down the social ladder. Ḥanafī law of the Ottoman period preserved the classical legacy of its legal school and the cultural bias of al-Kāsānī (d. 1191), concerning how taʿzīr punishments should be applied.9
The medieval legal system (e.g. as portrayed in the writings of Māwardī) (p.40) was not only sensitive to the social standing of the litigants; it was also patriarchal and gender-biased, and women’s access to and use of the court were governed by social norms.10 The congruence between anti-women bias and class preferences is discerned, for example, in the way Halfon ben Menasse, clerk of the Jewish court in Fusṭāṭ (1100–38), recorded two documents dealing with settlement of marriage disputes in 1118 and 1135. The document from 1118 is a transcript of the settlement of Sitt al-Nasab’s marital strife which, although it never transmits her first-person speech, records almost verbatim the speech delivered by her uncle, who represented her at court. The people involved in this dispute belonged to well-off reputable families, while those involved in the 1135 dispute were of lower economic and social standing. The document from 1135 is a transcript of the settlement of the marital strife of Bat Shabbetay, who was unrepresented by any male relative at the court and remained under the full authority of her husband. David Marmer, who has published and discussed these two documents, assumes that Halfon ben Menasse’s brief summary of the 1135 court proceedings reflects his class bias towards the people involved in this case.11
While the rendering of the term qāḍī as judge should be avoided and the complex calculus of judgment guiding the cadi taken into account, the otherness of medieval Muslim society and its legal system must not be exaggerated. The quest for justice and fairness is universal although its meaning varies and the institutional implementation of these values took many forms.12 Ancient concepts and sayings about justice, both on an ethical level and as practical precepts for running the state, have permeated Islamic political writings.13 The (p.41) standards which should guide the administration of justice are exemplified by the text known as Caliph ʿUmar I’s instructions to a cadi. Although this attribution cannot be sustained and the text is more likely a product of the eighth to ninth centuries, it contains ancient elements too. It begins by asserting that jurisdiction (qaḍā’) is a duty and established practice (sunna) and demands that the cadi maintain equality between the powerful (sharīf) and the humble (ḍaʿīf) at his court, and emphasises the expectations of the humble for justice on the part of the cadi. The cadi is encouraged to find the spiritual strength to retract from previous judgment if he reached the conclusion that he had been wrong, since pursuit of justice (ḥaqq) is the ultimate goal.14
The text reflects a developed judicial system well aware of its potential pitfalls and is in line with other texts which emphasise the difficulties inherent in executing judicial duties. These difficulties are embodied in a Prophetic tradition (ḥadīth) transmitted on the authority of Ibn Hurayra (a renowned companion of the Prophet, d. 678), which says: ‘A person appointed as a cadi is like one butchered without a knife.’ Other traditions present the cadi as exposed to the danger that erroneous judgment might result in people’s ruin and incur eternal punishment for him, while just and balanced judgment ensures prosperity for the people and the Hereafter for the cadi. Other traditions, however, powerfully convey the perception that most of the cadis end in Hell since brazen and unjust rulings bring God’s punishment.15 It is very difficult to put this rich ḥadīth literature into a specific historical context, but the notion of legal and social justice permeated the moral imagination of Muslims and became embedded in the vision of how the ideal state should function.16 It is said that the Abbasid caliph al-Manṣūr (754–75) declared that the state, like the throne, rests on four buttresses: a righteous cadi, a chief (p.42) of police who provides justice to the weak in the face of the powerful, a tax collector who conducts himself justly and avoids oppression, and the chief of the secret police, who reliably informs the caliph.17
While literary sources can offer only a general outline of how Muslim concepts on impartiality and justice had evolved, the epigraphic evidence provides a datable basis for such a discussion and the inscription at the Prophet’s Mosque in Medina (752–3) is a crucial piece of evidence. It is a by-product of Abbasid propaganda and proclaims the regime’s political and socio-religious credo but, assuming that propaganda cannot be totally divorced from realities and from people’s expectations, it can be used in the context of the present discussion. The inscription begins by restating the essence of the Abbasids’ political message, or their daʿwa, which mobilised the people to the Book of God and the practice of the Prophet. It also states the need for just judgments, egalitarian distribution of booty (fa’y) and allocation of the tribute (akhmās), for relatives, orphans and the poor.18 Going beyond the inscription and its message, on the political level the notion that justice is a duty permeated the state phraseology and had many manifestations.
Literary sources provide an insight into how cadis in real-life situations perceived their role in the administration of justice. Tawba ibn Namir, who served as cadi of Fusṭāṭ between 733 and 738, was very concerned that his wife’s inquisitiveness about his work might imperil the integrity of the judicial process. On pain of divorce he forbade her to enquire about his work. This rather harsh conversation adversely affected their otherwise ideal marriage.19 Other eighth- to ninth-century cadis were concerned that intercession (shafāʿa) might lead to perversion of justice and resisted any attempts by state officials to interfere in lawsuits adjudicated at their courts, even at the cost of being removed from their post, while other cadis adopted uncompromising attitude towards the rulers.20 Ibrāhīm ibn Isḥāq, for example, who was (p.43) appointed by the governor al-Sarī ibn al-Ḥakam to the post of cadi and preacher in 819, used to reprove the authorities by saying: ‘You punish for illicit sex while you yourself indulge in it, you execute a thief while you yourself steal, you put [people] to death because of wine while you yourself consume it.’ He was a severe judge who relinquished his post because of al-Sarī ibn al-Ḥakam’s attempt to influence his judicial decisions. The governor asked him to resume his duties, but he refused, saying ‘no intercession [is allowed] in the judicial process’.21
Ibrāhīm ibn Isḥāq’s criticism of the authorities was couched in moral terms and unfocused. The defiance of other cadis was overtly and unmistakably political, and the most remarkable example is, perhaps, the cadi al-Ḥārith ibn Miskīn’s confrontation with the caliph al-Ma’mūn, who came to Egypt in 832 to suppress rural rebellions and to investigate their causes. The hearings took place in Fusṭāṭ at the Ancient Mosque, where the cadi referred to the two tax collectors in Egypt as oppressors, using the strong term ẓulm. The hearing broke into uproar and al-Ma’mūn, who was told that the cadi enjoyed popular support and that his view reflected that of the people, invited al-Ḥārith ibn Miskīn to a private session. The cadi was asked whether he had been in any way wronged by these two tax collectors and he said no. Then he was asked how he could accuse them of oppression. His answer touched at the very core of the debate about legitimisation of political power. Al-Ḥārith ibn Miskīn said that he had never met al-Ma’mūn, but he testifies that he is the caliph, and that although he did not participate in his raids (meaning apparently the summer raids on Byzantium), he bears witness that they took place. He was immediately detained, and later exiled to Baghdad.
Al-Ḥārith ibn Miskīn’s response implies that when a regime presents itself as legitimate and pretends to rule properly it bears the burden of proof. Legitimacy is not accorded but won, and a regime must earn it for itself in order to be beyond reproach. In Baghdad he was subjected to the inquisition (miḥna) over whether the Koran was the ‘created’ or ‘uncreated’ word of God, and having failed to give the right answer he suffered lengthy imprisonment.22
(p.44) In 851, the Abbasid caliph al-Mutawakkil re-appointed al-Ḥārith ibn Miskīn cadi in Fusṭāṭ. This appointment was part of a broader but gradual policy of dissociation of the regime from the miḥna and the doctrine that the Koran was the ‘created’ word of God. It must be pointed out that the imposition of the miḥna had grave consequences for the administration of justice since court witnesses who failed to acknowledge the doctrine of the ‘createdness’ of the Koran were barred from testifying at the cadi’s court.23 Although al-Ḥārith ibn Miskīn owed his re-appointment to the caliph, he demonstrated his independence vis-à-vis the regime in a very subtle way: while presiding at the court he wore a black woollen cloak (kisā). Black was the Abbasid regnal colour, but the cadi and the wider public understood well the symbolic messages conveyed by the cadi’s choice of a woollen garment. In this case, a black silk cloak would be out of question since silk signified disputed, though not explicitly forbidden, luxury. A good-quality black linen cloak would be expected of a cadi, but al-Ḥārith ibn Miskīn chose wool, the fabric of the poor and the one preferred by the ascetics. At the visual-symbolic level his choice of colour proclaimed the legitimacy of the regime, while the choice of the fabric manifested his independence vis-à-vis state authority. The issue of al-Ḥārith ibn Miskīn’s attire while serving as cadi was brought to the attention of the caliph, who was not satisfied with al-Ḥārith ibn Miskīn’s choice of a black over-garment and insisted that he must wear the standard insignia of the cadi’s office (khilaʿ). Eventually, at local level, a compromise was worked out between the cadi and the governor and al-Ḥārith ibn Miskīn settled for a Yemeni-made garment.24
Al-Ḥārith ibn Miskīn proved to be strict and unyielding as ever, even when the personal economic interests of the Abbasid family in Egypt were at stake. Eventually, he was dismissed for the second time, following his ruling against the agent of the caliph’s mother, who had seized a house from its owner. The agent complained to Baghdad and in response a quite remarkable (p.45) letter was sent to the local government (3 September 854). The letter begins by stating that the cadi was, from the days of the caliph al-Ma’mūn, known for being ill-disposed towards the Abbasids, but the main point is the claim that the agents who managed the urban and rural properties of the caliph’s family enjoyed legal immunity and the cadi must revoke his ruling. This is a rare example of Muslim ruling circles, whether caliphs or sultans, claiming ex-judicial status for their economic interests and the personnel responsible for them. On the textual level, the Abbasid claims are bolstered through the frequent use of Abbasid royal titles. The agents are referred to as agents of the Commander of the Faithful and the royal properties as the ‘rights’ (ḥuqūq) of the Commander of the Faithful.25
Al-Mutawakkil’s nomination of al-Ḥārith ibn Miskīn reflected a permanent dilemma of rulers as to who should be appointed to the post of cadi. On the one hand, the rulers were interested in people of integrity who would be respected both personally and as representatives of the regime. An honest cadi meant an honest government, but such people were not easily manipulated. Important though al-Ḥārith ibn Miskīn’s uncompromising integrity was, his ability to confront the rulers also reflected the long evolution of the judicial institution headed by the cadi. The beginnings were, however, quite different and the evolutionary process was slow and complex.
The First Cadis
When a diachronic approach is adopted, it is possible to follow the evolution of the judicial system from its early beginnings to its reconstruction under the Fatimids. The notion that ʿUmar I created the Muslim judicial system by appointing cadis permeates Arabic literary sources. Ibn al-Khayyāṭ (d. 844 or 854), for example, provides a list of cadis appointed by ʿUmar I, and Abū Zurʿa (d. 894), the historian of Damascus, writes in the same vein. He traces the beginning of Damascus’s judicial system to ʿUmar I and elaborates upon the history of the judicial institutions in his native town under the Umayyads.26 In line with these claims, Ibn ʿAbd al-Ḥakam’s and (p.46) Kindī’s remarks about the beginnings of the administration of justice in early Muslim Egypt fall within a familiar pattern. According to them, the first cadi was nominated in 643 but he died after three months and the post was offered to Kaʿb ibn Ḍinna, who declined the appointment, explaining that his pagan past prevented him from accepting the nomination. Kaʿb ibn Ḍinna’s pagan past involved two elements: occupational prestige and familial ties. In pre-Islamic times he had served as a ḥakam (arbitrator), and he was the son of the daughter of Khālid ibn Sinān al-ʿAbsī, who, allegedly, was a prophet in the Jāhiliyya. Kindī’s text also refers rather enigmatically to Kaʿb ibn Ḍinna’s close relations with the Berbers in Fusṭāṭ, who claimed that Khālid ibn Sinān al-ʿAbsī was sent to them (to preach?). Furthermore, in the Jāhiliyya, Khālid ibn Sinān al-ʿAbsī was in charge of a holy fire cult. According to another version of the events, Kaʿb ibn Ḍinna actually served for two months as cadi since his refusal to take the post was rejected by ʿAmr ibn al-ʿĀṣ, who claimed that one must obey ʿUmar I, the Commander of the Faithful, who being informed about Kaʿb ibn Ḍinna’s reasons for turning down the post accepted his refusal, and allowed him to quit the post.27
These accounts can be considered as typifying themes that are common in literary sources which depict a total rupture between a pre-Islamic Arab pagan past and Islam and portray ʿUmar I as a strong centralist ruler who initiated a range of administrative policies. This historiographical tendency has brought some modern scholars to doubt whether the post of cadi existed in the first decades after the Prophet’s death, pointing out that the sources are patchy and contradictory. The whole issue has been re-examined by Tillier, who concludes that the sources provide a rather coherent picture of the early judicial system and one must take into account that there were regional variations in the way cadis were appointed.28
To what extent the early beginnings of an Islamic judicial system can be reconstructed from documentary sources is a matter of debate, which focuses (p.47) on documents of the dhikr al-ḥaqq type published recently by Yūsuf Rāġib and reinterpreted by Bruning. These documents are private contracts which record a claim (ḥaqq) held by one of the involved parties against the other. The nature of the claim can vary, but the legal phraseology which refers to the debtor and the amount of the debt is standard.29 Rāġib has published such documents, which refer to obligations undertaken within an agricultural context, flooding of the basins, and contain the phrase ‘sanat qaḍā’ al-mu’minīn’ and refer to Hijrī years 42 and 57 (662–3 and 676–7). Rāġib’s translation ‘l’ère de la jurisdiction des croyants’ is challenged by Bruning, who has suggested a different reading: sunnat qaḍā al-mu’minīn. He has also pointed out that there are also shorter versions of this formula, which should be understood as referring to the normative procedure of the believers, which he perceives as indicating ‘a strong sense of legal community among Muslims in early Sufyanid Egypt’.30
Valuable and supportive as the papyri evidence indicating the existence of early legal practices is, for the nature of the cadi’s jurisdiction one must go back to literary sources. Ibn ʿAbd al-Ḥakam’s and Kindī’s accounts of the judicial system in early Muslim Egypt are, however, marked by an inextricable interweaving of history and discourse. The discourse is Islamic and projected backward onto the seventh century in an attempt to give an Islamic aura to the fuzzy and amorphous beginnings of the administration of justice in Egypt. Therefore, one must be cautious about Kaʿb ibn Ḍinna’s explanation that his pagan past hindered his involvement in the Islamic administration of justice, which implies that already in those early years a clear-cut division between Jāhiliyya and Islam existed and that some people were aware of the (p.48) fact that their pagan past impeded their ability to play a meaningful role in the social life of the new religion. The explanation put forward by Kaʿb ibn Ḍinna seems to be more a literary motif than a reflection of early seventh-century religious and social realities.31
The discourse covering the first cadis of Egypt in an Islamic aura is cohesive and consistent, and Sulaym ibn ʿItr (appointed cadi in 660 by the caliph Muʿāwiyya) is, in contrast to Kaʿb ibn Ḍinna, presented as the prototype of an Islamic cadi. He belonged to the class of a few thousand Arabs who took part in the monumental events associated with the establishment and consolidation of Muslim power in the Middle East. He is described as having been a cadi in the army of ʿAmr ibn al-ʿĀṣ (qāḍī al-jund) and participated in the conquest of Egypt. In addition, he is depicted as a pious Muslim who performed three complete recitations of the Koran each night and also reported on ʿUmar I’s ritual and devotional practices.32
From the very beginning of the administration of justice the cadi was a paid official appointed by the state, and proclamation of judicial directives by early caliphs was considered normative conduct. Ninth-century writings depict how early caliphs shaped the scale of punishment which, eventually, came to be considered binding. Ibn Ḥabīb (d. 853), for example, claims that ʿUmar I whipped his son for storing alcohol, and ordered the stoning of a sorcerer and a woman for infringement of sexual mores.33
(p.49) When the motifs typical of the late Muslim discourse on the formation of Islam are put aside, the reports about Sulaym ibn ʿItr’s term in office do reveal the social dimension of administration of justice in traditional medieval society. Caliphal authority and guidance were not enough, and the cadi searched for authoritative and socially acceptable endorsements for the way he conducted his judicial business. Sulaym ibn ʿItr is credited as being the first cadi who wrote down his rulings in inheritance cases, while military chiefs (shuyūkh al-jund) signed these documents.34 The involvement of the officer class, or the tribal leadership, exemplifies both the tribal and the military character of the Arab-Muslim conqueror society, a trait also reflected by Muʿāwiya’s instructions to Sulaym ibn ʿItr as to how to compensate injured victims of violent crimes. The cadi was supposed to apply the collective responsibility of the agnate solidarity group (ʿāqila) for paying blood money (ḍiya) to the victims. Sulaym ibn ʿItr was ordered to record the details of the injury suffered by a person and to notify in writing (qiṣṣa) the head of the office of payments (ṣāḥib al-dīwān) about the amount of the compensation he imposed on the perpetrator’s ʿaqila group. When the office made payments to the Arab-Muslim population, the injured person was supposed to receive compensation in three yearly instalments from the kinsmen (ʿashīra) of the perpetrator.35
In 717, another case of blood-money involving group responsibility was brought to the attention of the caliph ʿUmar II by the cadi ʿIyāḍ ibn ʿUbayd Allāh. In this case, a protégé (mawlā) of an unspecified Arab group killed a woman when riding and his mawālī comrades refused to bear any responsibility as his ʿāqila group. The text explicitly states that the perpetrator was not on the payroll of the dīwān and reproves the mawālī for their duplicity since they would have demanded compensation had they suffered injury. The caliph, in the letter to the cadi, reminded him that the mawālī have no recollections of their genealogies (ansāb), alluding to the futility of the ʿāqila concept in this case. He ordered the cadi not to leave a case involving (p.50) blood-money owed to a Muslim unresolved and to pay the blood-money for the killed woman himself and to collect it from the reluctant mawālīs.36
The case illuminates a social process that by the first decades of the eighth century was in full swing: the incorporation of non-Arabs into Arab-Muslim society through patronage and, possibly, Islamisation. However, the application of Arab tribal concepts to people of diverse origins unrelated by blood relations proved to be difficult, if not impractical. In the long run, Islamisation and the growing number of mawālīs rendered the tribal structure of the early Arab-Muslim society obsolete and created a Muslim society in which the Arabs were just one of the ethnic groups that it contained and, in regions such as Persia and North Africa, a minority. The tempo and scope of this process are difficult to date, but, during the first half of the eighth century, Arab tribal structure in Fusṭāṭ was still pervasive and the cadi Tawba ibn Namir al-Ḥaḍramī (733–8) was very aware of Arab tribal sensitivities and their potential implications for the judicial process. He did not accept the testimony of an Arab belonging to the northern Arab tribal groups against one belonging to the southern tribal groups and vice versa. In such disputes he delegated the cases to the tribal leaders for arbitration.37 Obviously, the cadi hesitated to grapple with tribal identities and solidarity, but this account also throws light on the evolution of Islamic law and court procedures. The notion that testimony is a legal requirement and an essential element in the cadi’s court took root, and when the cadi felt unable to meet this standard he preferred other alternatives. Apparently, at that time, a dual (or parallel) system of administration of justice and conflict resolution existed and the arbitration option implemented by socially prestigious tribal notables was available. The cadi, as the caliph’s/state’s appointee, administrated the law, which was evolving and shaped through processes that were taking place both from above and in the ranks of the cadis.
During the first decades of the eighth century the guidance of the caliph in legal matters was constantly sought, and ʿIyāḍ ibn ʿUbayd Allāh frequently asked the caliph for advice (he served for nineteen months [717–19] under (p.51) ʿUmar II). One of these cases involved a mother who had bequeathed one third of her property to her son, including slaves, and stipulated that they should be set free upon his death. One of these slaves injured a person, who was entitled to compensation (ʿaql) of 70 dīnārs, which the cadi tried to collect from the reluctant owner. ʿIyāḍ ibn ʿUbayd Allāh’s wrote to ʿUmar II about the case and the caliph upheld cadi’s decision to impose the payment on the owner and stipulated that otherwise the slave would be handed to the injured person as compensation. Eventually, a family member of the owner paid the money.38
The position of the cadi as a state official was probably enhanced by investing him with additional non-judicial responsibilities. Sulaym ibn ʿItr, for example, was also entrusted with the function of qaṣaṣ, which is usually understood as storytelling/preaching. From the beginning it was a political institution, and Ibn Ḥajar (1372–1449) traces its origin to the aftermath of the struggle between ʿAlī and Muʿāwiya. After the Battle of Ṣiffīn (July 657), ʿAlī prayed and vilified his opponents, while Muʿāwiya’s response involved the introduction of the qaṣaṣ, which was delivered after dawn and sunset and contained a positive political message: preaching for Muʿāwiya and the Arab population of Syria. Ibn Ḥajar maintains that there were two form of qaṣaṣ: one intended for the common people and another for the elite. The qaṣaṣ for the commoners was more a storytelling affair, while the one for the elite was imbued with political messages and this reorientation of the qaṣaṣ was Muʿāwiya’s innovation. The political form of the qaṣaṣ took place after the morning prayer and involved glorifying God and extolling the caliph and his family, his supporters and the army, and defamation of opponents. While placing the origin of the political form of qaṣaṣ in the context of the Battle of Ṣiffīn and its aftermath makes sense, the distinction between its supposed two forms seems doubtful. One would expect any regime to be interested in conveying its political messages to and galvanising support from the people and the elite alike.
The renowned Egyptian Shāfiʿī jurist and historian al-Quḍāʿī (d. 1062) stated that Sulaym ibn ʿItr served as cadi and qāṣṣ (storyteller/preacher) for 37 years, and that he used to lift his arms while performing. Other reports (p.52) claim that he was the first preacher to have stood on his feet when delivering sermons and that he was criticised for deviating from the traditional sitting posture of the preacher.39 Important though the post of preacher/storyteller might have been, during the Umayyad period the most frequent extension of judicial responsibilities was the dual appointment to the post of cadi and commander of the police.40 The merging of these two posts goes back to the early years of Muʿāwiya’s rule, when extensive administrative responsibilities were entrusted to officials. Maslama ibn Mukhallad, Egypt’s governor in the early 660s, for example, was invested with political and fiscal responsibilities, and his area of authority also included North Africa.41 Nevertheless, in the long term, the post of cadi acquired a separate judicial identity and the practice of investing him with additional functions became less common and, eventually, ceased. Actually, the process that truly shaped the nature of the cadi’s post did not take place from above, but rather from the ranks of the cadis, and had enduring consequences: cadis extended the sphere of their authority by assuming new, extra-judicial financial supervisory responsibilities.
The expansion of the cadi’s role beyond the judicial sphere was initiated by the cadi ʿAbd al-Raḥmān ibn Muʿāwiya (appointed in 705), who held the post in addition to that of commander of the police. He was the first cadi to have supervised the money belonging to orphans, and, like Sulaym ibn ʿItr, he worked via the existing social system. He co-opted the tribal chiefs to record the moneys belonging to the orphans of their tribes (amwāl al-yatāmā), while he kept these records and supervised the funds. How he manage to wrest powers from the tribal chiefs is not explained, but apparently the combination of military, or semi-military, powers and judicial authority (p.53) gave him the necessary leverage. In the context of the evolving role of the cadi, ʿAbd al-Raḥmān ibn Muʿāwiya’s deeds had a far greater impact than those of his predecessor ʿÅbis ibn Saʿīd, who was involved in digging a canal and increasing the salaries paid by the office of payments. In the long term, the cadi’s involvement in such activities became atypical.42
The newly established supervisory authority of the cadi went hand in hand with the slow formation of his judicial identity and growing expectations of justice and impartiality. The fusion of these two trends is illuminated by events that took place in 732 which involved the cadi Yaḥyā ibn Maymūn, who was notorious for being indifferent to the corrupt ways of his clerks, who demanded bribes for writing down his rulings. In line with standard practice since 705, he managed the property of an orphan, who upon maturity complained both to his tribal leader and to the cadi, but to no avail. People from his tribe provided testimony on the orphan’s behalf stating that he had been harshly treated, but the cadi remained unmoved. The orphan, in an attempt to draw attention to his plight, sent the cadi some lines of poetry, for which he was imprisoned. The case somehow reached the attention of the caliph, who ordered the governor of Egypt to dismiss the cadi and also set clear guidelines for appointing cadis. The gist of the account can be found in the caliph’s address to the governor: ‘You should choose a cadi for your army who is virtuous, scrupulous, pious and blameless.’43
This example of an arrogant cadi unaware of the people’s expectations of justice also offers us a glimpse into the social make-up of Arab-Muslim society in Fusṭāṭ, which still maintained its military character. Although the tribal structure was powerful and the cadi had co-operated with a tribal leader to appropriate the legacy of an orphan, the authority of the caliph is depicted as overriding, and he was attentive to local opinion and keen to preserve the integrity and image of the institutions for which the government was responsible. Eventually, in the early years of Abbasid rule, the state came to control orphans’ moneys. In 750, on the orders of the caliph al-Manṣūr, these funds were transferred to the local treasury and each transaction was duly recorded. (p.54) During the 790s, the cadi Muḥammad ibn Masrūq al-Kindī, who had come to Fusṭāṭ from Baghdad, was falsely accused of trying to transfer this money to Baghdad. He was greatly disliked by the local elite, who had a vested interest in dealing with funds of this sort and in keeping the money in Egypt.44
What really was at stake is revealed by the discussion of how these funds should be invested and profiteering avoided. The practice grew up of investing the orphans’ moneys in urban and agricultural properties, but how payments to the orphans should be made was contested. The problem preoccupied the cadi ʿAbd al-Raḥmān ibn ʿAbd Allāh al-ʿUmarī (801–9), who came to Egypt from Iraq and is described as a Mālikī jurist. He entrusted the management of this type of money to a trustee, who rendered payments to orphans from the profits from his investments and deducted the sums from the capital sum (aṣl al-māl/uṣūl) under his management. Eventually, he claimed the capital for himself, saying that he had fulfilled his obligations towards the orphans through the payments he had made from the profits. The cadi punished him by publicly shaming him, but he did not yield up any of the money. Another account states that al-ʿUmarī was the first cadi to create a special deposit (tābūt al-quḍā, the cadis’ coffer) within the Treasury for various types of funds: orphans’ moneys, absent persons’ moneys and legacies with no legal heirs. One is left to guess whether there was any connection between these two deeds of the cadi, who became disillusioned with the way these funds were handled and preferred to play things safe by depositing them in the Treasury. This prevented the skimming off of the profits, but in the long run depleted the capital because of a lack of investment.45
Problems relating to the management of the orphans’ monies persisted, and the cadi Harūn ibn ʿAbd Allāh (appointed 833) invested great effort in stemming corruption and mismanagement. Vast sums of money were handled by court trustees, and many people were involved in dealing with this type of money, while the cadi had difficulties in even knowing these people, let alone effectively supervising them, especially if he was a foreigner whose term in office was short.46
(p.55) The cadis’ involvement in supervising how orphans’ monies were managed can be seen as a reflection of Koranic injunctions which emphasise honest dealings with this type of money and warn wrongdoers of God’s punishment. To what extent orphanage was a serious social problem in pre-Islamic Arabia and Muslim society in Fusṭāṭ remains unknown. One must bear in mind that there was apparently a considerable age difference between men and women at the time of their first marriage.47 Furthermore, orphanage was defined as absence of the father, and given the age difference at first marriage and the fact that men died on the battlefield and on business trips, or abandoned their families, the phenomenon of fatherless children may have been quite widespread. On the other hand, one can imagine that a widow with children from her first marriage remarried and that these children lived with her in the new family setting but were defined as orphans. One should also not rule out the fact that many divorcees or widows did not remarry and so the property of their minor children came under the cadi’s control.48 In any case, it can be argued that Koranic ethics were the driving force behind the attention paid to the welfare of orphans, but this line of argument is less applicable in explaining the cadi’s involvement in the supervision of pious endowments (waqf, pl. awqāf/ḥubs, pl. aḥbās).
While charity is part and parcel of the Koranic teachings, the concept of endowment is not Koranic. Koranic notions of, and terminology surrounding, charity were, however, grafted onto the waqf institution. The current scholarly discussion of waqf is broad and diversified, and Benjamin Jokish, for example, characterises monotheistic religions as compatible in this respect, ‘forming something like [a] spiritual alliance’, and proving to be ‘quite similar in structure’. According to this line of argument, the existence of a pious endowment system in Islam comes as no surprise. Jokish nevertheless perceives waqf as an institution that mirrors Byzantine precedents and (p.56) Byzantine imperial legislation.49 The notion that waqf was influenced by the Byzantine system of endowment prevails in the literature and the Islamic institution of endowment is perceived as a marker of continuity between the world of Late Antiquity and Islam.50
Going beyond the parameters of monotheistic religions, the notion and practice of endowment were not alien to ancient Middle Eastern civilisations, the Graeco-Roman world or Sasanian Iran.51 The human quest for eternal life, commemoration and charitable drive transcend the pagan/monotheistic divide, and the same is true for socio-judicial forms. Belief in an afterlife with a heaven and a hell was part of Zoroaster’s teaching, and the performance of rites for the departed became central for Zoroastrians and manifested their piety. Charitable foundations established through bequests financed commemorative services for the dead, while others were set up for the maintenance of the sacred fires. Zoroastrian charitable foundations created for good and pious causes also served to commemorate the soul of the founder, who sought gratitude and acknowledgement for his deed from the beneficiaries of the foundation.52
Important though parallel notions of endowment in other civilisations are, direct influence of Persian or Byzantine concepts of endowment on Islam remains unclear. Waqf, therefore, must be studied within the parameters of Islam and evolving early Muslim society and law. Islamic tradition perceives the pious endowment institution as an internal development and attributes its origin to the Prophet and his Companions. Some reports claim that the properties of the Jews of Medina, who were expelled by the Prophet and killed, were dedicated by Muḥammad in favour of the Muslim community. ‘Umar I is quoted as saying that, when he made his share of land in Khaybar (an oasis populated by Jews who had surrendered to Muḥammad in 628) a (p.57) waqf, he had acted on the advice of the Prophet himself. ‘Umar I is also credited with the decision to declare most of the agricultural land in Iraq waqf for the benefit of Muslims, thereby turning the peasants into serfs. It was also he who finally rejected the claim of Fāṭima, Muḥammad’s daughter, against her father’s estate. In doing this he upheld the ruling of his predecessor, Abū Bakr (632–4). Both of them relied on a saying of ‘Å’isha, Muḥammad’s wife, who had repeated the Prophet’s words that no one would inherit anything from him and that what he had left would be ṣadaqa (meaning charity or waqf) for the Muslim community. ʿAlī is credited with turning his vast rural holdings in the Ḥijāz into endowments, and the origin of familial endowments, meaning an endowment in favour of the founder’s family, supposedly goes back to the 690s.53
When one turns to legal literature a more coherent picture of the development of waqf emerges, but the beginnings nevertheless remain hazy. Schacht has noted a strong link between the pious endowment institution and the holy war embodied in the ḥabs fī sabīl Allāh (endowment for God) concept. Mālik and other early eighth-century Mālikī jurists, for example, permitted the endowment of movables, including horses, for the holy war, and such endowments were established in Ṭarsūs on the Muslim–Byzantine frontier (Adana district in modern Turkey) during the tenth century. The Mālikī school also permitted the establishment of temporary endowments that would revert to the owner or his heirs upon the death of the original beneficiary. These endowments for life were known as ʿumrā, and Norbert Oberauer argues that eighth-century sources indicate that the laws of waqf evolved as a fusion of (p.58) two practices: ḥabs fī sabīl Allāh and ʿumrā. The next significant development in the shaping of the laws of waqf was the stipulation of Shaybānī (d. 806) that an endowment for the benefit of a person was valid only if the founder specified a pious function as the endowment’s ultimate designation, which would be fulfilled upon the death of the original beneficiary.54 A further step in the development of the waqf doctrine is represented by the work of two leading Ḥanafī jurists, Hilāl al-Ra’y (d. 859) and al-Khaṣṣāf (d. 874), whose extant legal treatises on the subject have been studied by Peter C. Hennigan. Hilāl stated that a legally valid endowment was a perpetual charity (ṣadaqa mawqūfa) which, as argued by Shaybānī, would upon the extinction of the original beneficiary serve a charitable purpose. These two jurists drew a legal distinction between the institution of pious endowment and other types of charity that were denoted by terms such as ṣadaqa and/or zakāt.55
Although the sources provide no information on the subject, by the early 730s the spread of waqfs in Egypt must have been quite considerable. These early endowments were managed by family members or people designated by the founders. The cadi Tawba ibn Namir reformed the way such foundations were handled and declared that pious endowments are charity (ṣadaqāt) for the poor, invoking the Koranic terms masākīn wa-l-fuqarā’. He assumed a supervisory role over them and created a special office for this purpose, declaring that he would protect these foundations against corrupt practices and transmission by inheritance. The cadi’s struggle for control of economic assets is presented in moral terms, something that gave him the needed leverage to overcome vested interests and change the way this institution functioned.56
To what extent Kindī’s tenth-century text accurately reflects the realities of Tawba ibn Namir’s time (the third decade of the eighth century) is difficult to ascertain, but the cadi’s assertion (if accurately quoted) that the poor are the ultimate beneficiaries of a waqf pre-dates Shaybānī’s stipulation. The spread of the pious endowment institution in Egypt was, apparently, a (p.59) unique local development and fiercely defended. In 780, the caliph al-Mahdī appointed Ismāʿīl ibn Alīsaʿ as cadi of Egypt. He is described as the follower of Abū Ḥanifa (d. 767) and an adherent of the legal school of Kūfa, which advocated the nullification of pious endowments. Ismāʿīl ibn Alīsaʿ’s legal approach brought him into direct conflict with the Arab-Muslim elite in Fusṭāṭ, which considered the establishment of pious endowments to be a practice authorised by and derived from the deeds of the Prophet, the early caliphs Abū Bakr and ʿUmar I and Ṭalḥa and Zubayr ibn al-ʿAwwām (both were killed at the Battle of the Camel, December 656). A complaint against the cadi was sent to Baghdad. Apparently it did not question his integrity, but his rulings, issued according to a legal doctrine with which the people in Fusṭāṭ were unfamiliar. The caliph dismissed the cadi, implying that a cadi cannot act against evolving local legal tradition, and, one might add, especially not against a tradition which supports an institution with wide socio-economic ramifications.57 This clash between a foreign cadi and members of the local elite involved the preservation of both local legal identity and local interests.58 In the broader context of urban socio-legal life this case was not exceptional. The recognition that eighth-century towns had a unique legal identity was widespread.59
(p.60) The spread of pious endowments in Egypt must have been considerable, and the roots of the phenomena go back to the Umayyad period. One of the earliest references to a pious endowment is the account concerning the governor al-Walīd ibn Rīfāʿa (in office during 727–35), who established a charitable pious endowment without specifying the causes it should serve. The account neatly illustrates the fact that early pious endowments, even those established by people of high standing, could have been set up for unspecified beneficiaries, a situation that Shaybānī tried to curb. There must have been constant debate about the identity of the beneficiaries, and, in the early tenth century, the cadi Ibn Ḥarb decided that the income should go to the foundlings.60 The longevity of the endowment is rather surprising, and one must assume that it was a very rich and well-managed endowment to yield income for such a long period.
In contrast to al-Walīd ibn Rīfāʿa’s endowment, a waqf established in 711–12 in Fusṭāṭ highlights the social make-up of the Arab-Muslim population at that time and explicitly names the beneficiaries. Ibn ʿUthmān (his name is also given as Abū ʿUthaym), the protégé of the governor Maslama ibn Mukhallad, endowed a house for his protégés. The account indicates that the process whereby high-ranking Arab-Muslims granted patronage (walā’) to individuals among the local population began early on. Some of these protégés made a career, gained wealth and granted patronage to others.61 In this case, in contrast to al-Walīd ibn Rīfāʿa’s pious endowment, the original endowment deed specified who were the immediate and the ultimate beneficiaries of the endowment. Actually, there were two hierarchies of charitable stipulations: the immediate beneficiaries were four protégés and their male and female descendants and upon the extinction of their lines the beneficiaries would be the poor and the needy and other named protégés, including (p.61) volunteers and people on the military payroll who received fewer than 200 dīnārs and were not entitled to any inheritance (the technical legal term is ʿaṣaba). If no beneficiaries belonging to this category were found in Fusṭāṭ, their share would be added to the share of the poor.
There was constant litigation about who was entitled to the incomes of the endowment and cadis invalidated the judgments of their predecessors. One of these litigations was adjudicated by the cadi al-Ḥārith ibn Miskīn as late as 858. The pious endowment involved a house known as Dār al-Fīl (the House of the Elephant), which generated incomes through being either a commercial building or a residential building in which flats were rented. Again, one may wonder at the longevity of the endowment, its proper management, and the fact that a century and half after its establishment people still asked to be recognised as descendants of the rightful beneficiaries.62
Another familial pious endowment, dated by Sobhi Bouderbala to the end of the seventh century, like Ibn ʿUthmān’s endowment, specified charitable causes upon the extinction of the family line. In this case a hierarchy of male and female beneficiaries was stated, and upon the extinction of the female line the incomes from the endowment, which included a house, a bathhouse and a kiln, would go for the ‘purpose of God’ (meaning either the holy war or charitable causes in general), to the poor and to the protégés of the family. However, upon the extinction of the protégés the remaining proceeds of the endowment were designated for the poor in Fusṭāṭ and the ʿimāra (benefit/development) of Medina, at the discretion of its ruler.63
In the Egyptian context, the administrative changes introduced by Tawba ibn Namir in the way pious endowments were managed were irreversible and recognition of the cadis’ supervisory role became firmly established. The cadi ʿAbd Allāh ibn Muḥammad al-Ḥazmī, who was appointed by the caliph al-Hādī and came to Egypt in 786, exceeded the authority of the supervisors of pious endowments, ordered them to repair and maintain endowed properties and punished those who neglected their duties. Al-Ḥazmī’s personal (p.62) involvement set a pervasive example which was followed by other cadis, although some tried to question the legal obligation to invest in the repair of these properties. The cadi al-ʿUmarī (appointed in 801), for example, was informed that, according to Mālik, this obligation was not necessarily anchored in the endowment deeds specifying the way these properties should be run. The cadi, who is described as a Mālikī jurist who had come from Baghdad, rejected the claim, stating that repairs are necessary to ensure the flow of incomes to the beneficiaries. Al-ʿUmarī’s interest in pious endowments went beyond a supervisory role; he is credited with setting up a pious endowment for a dilapidated mosque.
Kindī recounts the history of a mosque built in the Umayyad period and torn down, or allowed to fall into ruin, in the Abbasid period and rebuilt on al-ʿUmarī’s initiative after he had heard testimony about its dilapidation. The cadi used 1,000 dīnārs from the legacy of a certain person for the setting up a pious endowment, rebuilding of the mosque and construction of shops for its upkeep. Although the terminology waqf is not employed by Kindī, he quotes and paraphrases the ruling of the cadi as set down in a document (qaḍiyya) issued on that occasion (January–February 804). The document begins by stating that the essence of the cadi’s role is to issue judgments. This assertion is followed by a detailed description of the location of the mosque in Fusṭāṭ and refers to the shops which were built to provide income for the mosque’s muezzin and staff, while any surplus income was dedicated for charitable causes. The cadi also appointed a certain person to manage the affairs of the mosque and to serve as a trustee for its incomes, its expenditures and the dispensing of charities. The document actually recounts the chain of events that culminated in the cadi’s ruling: the testimony concerning the mosque’s condition, the cadi’s verification of the testimony and his actions in response to the testimony.64
Kindī’s account of al-ʿUmarī setting up a pious endowment for the mosque ends with an enigmatic remark about a delegation of qurrā’ who went to Baghdad to complaint to the caliph Harūn al-Rashīd about al-ʿUmarī’s handling of the affair. The caliph found that no blame lay with the cadi and retained him in his post. In 810, following the death of the caliph, al-ʿUmarī (p.63) was dismissed and the new cadi imprisoned him and some of his associates. The backlash against al-ʿUmarī had a twofold background: it went back to the so-called Ḥaras affair and also involved accusations of misuse or embezzlement of trust money under his supervision and the dismissal of witnesses serving at his court.65
The expansion of the cadi’s role beyond legal matters came at a cost: it made him vulnerable and entangled him in power struggles for the control of lucrative sources of income. An intriguing question is how al-ʿUmarī could allocate 1,000 dīnārs of a legacy to the setting up an endowment. Apparently, this money belonged to the category known as estates with no legal heirs and/or residue of estates to which no heirs were entitled to (al-mawārīth al-ḥashriyya), which somehow came under the cadi’s control. The extension of the cadis’ supervisory role empowered them to freely dispense money untied to any specific purpose.
The dismissal of al-ʿUmarī reflected an ongoing struggle for the control of funds supervised by the cadi, but brought no changes in the way cadis exercised their powers. There was no way back, since the notion that the cadi has supervisory powers became an accepted norm, and the sources throw light on what really was at stake. Cadis, for example, controlled the incomes of pious endowments for the holy war (referred to by Kindī as aḥbās al-sabīl/amwāl al-sabīl), which supported the poor soldiers of the regular army (ahl al-dīwān) and volunteers. Both types of troops were deployed, or settled, along Egypt’s Mediterranean coast from southern Palestine to the town of Barqa in Libya. This system collapsed during the civil war between the brothers al-Amīn and al-Ma’mūn and was restored by the cadi Lahīʿa ibn ʿĪsā al-Ḥaḍramī (812–13). This cadi used the incomes generated by this type of endowment to enlist fresh troops and new volunteers and dispatched them, or settled them, along the coast and paid them salaries. Although Kindī asserts that enlisting troops became a typical activity for a cadi, one may doubt this claim, which should rather be understood in a narrow sense: cadis paid salaries to these coastal garrisons since they controlled the incomes (p.64) derived from endowments in their support. In any case, the cadi al-Ḥaḍramī did something that one would expect the governor to do: take care of Egypt’s coastal defence.66
By the 810s, the cadi Lahīʿa ibn ʿĪsā al-Ḥaḍramī controlled all of Egypt’s pious endowments and his judgments were based either on oral testimonies (bayyina) or on iqrār, that is, acknowledgements made in the court in the presence of a cadi. He declared that making a comprehensive inspection of pious endowments had been his long-standing intention, and he followed the example of his father, who had collected information concerning these foundations from the cadis or the families of the founders.67 The account indicates that documentation (endowment deeds) concerning waqfs was not easily available because of unintentional (or intentional) loss of the original documents. The cadi conscientiously executed his task and made great efforts to maintain the intended designation of the endowments under his supervision, since the original waqf stipulations were legally binding and religiously sanctioned.
One must be cautious in making any sweeping generalisation about the cadi’s control of all waqfs. Ibn Yūnus, for example, recounts the history of a pious endowment which surely was not under the cadi’s control. The endowment was set up by Ibn al-ʿAwf al-Zuhrī, a newcomer to Egypt, who was appointed chief of police and died in 825. He owned a garden which he endowed in favour of his son, and the endowment deed was deposited with Ibn Yūnus’s father, whose name is mentioned in the document. Ibn Yūnus states that the document is in his possession and that the endowment serves its purpose. Nevertheless, the document included a sentence stating: ‘deposit (wadīʿa) in favour of the son of Ibn al-ʿAbbās al-Zuhrī, not to be handed to anyone unless demanded by the sulṭān.’ This was a familial pious endowment administration of which was entrusted to the Ibn Yūnus family, but the superior authority of the government, alluded to by the term sulṭān, or the cadi as its representative, was acknowledged.68 In any case, whatever the extent of (p.65) the cadi’s supervisory authority over pious endowments was, disputes about these foundations were brought to his court.
In Fusṭāṭ of the late ninth or early tenth century, a dispute erupted over the question of who was entitled to the profits of a pious endowment set up by a eunuch who served as chief of the Egyptian postal service. He raised a boy, who became a jurist and a beneficiary of endowments set up by his master (or foster-father) in his favour, but others challenged his rights at the cadi’s court.69 Disputes about pious endowments must have been frequent, and numerous literary sources provide further examples of litigation that took place during the Umayyad period.70
Familial pious endowments must be understood in the light of Koranic teachings, which have parallels in monotheistic religions, about the care of family and relatives. One can ask what were the chances that the ultimate charitable designations of familial pious endowments would ever be realised. The answer is not necessarily negative. Under medieval and pre-modern conditions the life-span of family lines was relative short, and incomes generated by ahlī waqfs, if the waqf was extensive and well-managed, could eventually serve the charitable causes specified in the endowment deed.
The Formation of a Procedural-Judicial Tradition
Many of the cadis discussed so far were dynamic and assertive individuals who expanded judicial authority beyond the confines of the court to the financial sphere and management of trust funds. In a parallel but unrelated process, cadis also shaped the procedural aspects of how justice was administrated at their courts. A cadi was assisted by his clerk and witnesses, and a crucial factor in the development of procedural norms was the selection and ratification of the corps of witnesses and definition of the criteria for accepting or rejecting a person as a witness.71 The question of whose testimony should be accepted was hotly debated in seventh- to eighth-century Muslim society, and Wakī’s (p.66) History of the Cadis highlights many of these deliberations.72 Shurayḥ ibn al-Ḥārith, cadi of Kūfa in the late 710s, for example, had a firm opinion on the issue. In his view, the testimonies of an owner of a bathhouse, a bathhouse attendant and a slave should be rejected, while he accepted testimonies of young boys and did not reject the testimony of a convicted thief if someone vouched for his probity (khayr). Furthermore, he accepted a single testimony sworn on the Koran but severely punished a false witness.73 The question is how, if at all, the personal views of such opinionated cadis turned into established procedural-judicial tradition. Other cadis who succeeded Shurayḥ ibn al-Ḥārith in Kūfa only accepted a testimony given by two witnesses, as set forth in the Koran, and did not endorse his acceptance of testimony by young boys.74 The acceptance of a testimony with an oath is known under the technical term yamīn maʿ al-shāhid, and the adoption of the practice varied on a regional basis. In Egypt it was introduced and, apparently, consolidated between the 730s and the 780s. The cadi Tawba ibn Namir applied it in cases of lesser significance, and it was also acceptable to the cadi ʿAbd al-Mālik ibn Muḥammad al-Ḥazmī, who followed the legal school of Medina (i.e. the Mālikī school), which accepted this type of testimony.75
Going back Wakīʿs text, one gets the impression that in Iraq in the Abbasid period, debate as to whose testimony should be rejected became politicised and cadis, as state officials, were (or found themselves) at the forefront of the battle to uphold Abbasid legitimacy and stem the rising tide of sectarian ideologies. For example, testimony given by a woman described as holding Kharijite views was rejected by the cadi ʿAbd al-Raḥmān ibn ʿAbd Allāh ibn ʿĪsā (also known as ʿUbayd ibn bint Abī Laylā), who served in Kūfa between 765 and 770. What the nature of these views might have been remains unclear. Although Kharijites acquiesced in practice to Abbasid rule, they were considered deviant and as challenging the established socio-political order. This was not an isolated case but rather a matter of policy, (p.67) and Sharīk ibn ʿAbd Allāh, Abī Laylā’s successor in Kūfa (who served as cadi between 770 and 786), barred people belonging to the Murjiites and Rafidis from testifying at court. The use of these appellations in the text is loose, but theology and politics were inseparable in medieval Islam and the fusion of the two had social and institutional ramifications, such as the boycotting of funerals of rival theological groups. The label ‘Rafidis’, meaning Shiites, though generic, was pejorative, but the drift of the account is that those cadis, by ostracising sectarians, upheld orthodoxy. In some cases the radicalism of the cadis was at odds with the more tolerant society. A cadi of Baṣra, for instance, did not admit the testimony of a person holding Qadarī views (i.e. adhering to the doctrine of free will, used here as a broad abusive nickname), although that person was accepted in local society and renowned for his piety, exemplified by fasting, immersion in prayer, charitable distribution (maʿrūf) and the paying of zakāt (the obligatory alms tax).76 The dynamics of exclusion had far-reaching consequences, and people were excluded from giving testimony because they did not perform prayers and pilgrimage.77 One can understand that in a close-knit, conformist society the performing of prayers was closely watched, but performing pilgrimage was beyond the reach of most since it required considerable financial means. The application of this criterion by the cadi seems an idiosyncrasy.
In broad terms, the issues alluded to by Wakīʿ were also relevant in Fusṭāṭ but are presented in a slightly different form since Kindī is more informative about how the corps of witnesses serving at the cadi’s court was selected. In mid-eighth-century Fusṭāṭ, the local custom was to accept the testimony of people known to be righteous, while rejecting the testimony of those who failed to qualify as such. The underlining assumption was that righteousness (khayr, salāma) implies moral and religious integrity and, concomitantly, reliability. Kindī’s narrative alludes to an earlier period before a permanent corps of witnesses was established at the cadi’s court. This early practice failed, however, as false testimonies multiplied. The cadi Ghawth ibn Sulaymān, during his second term in office (758–61), initiated a secret screening of (p.68) witnesses in order to assess their moral standing. This was not a radical change since no objective criteria for the selection process were introduced. The system of secretly screening witnesses lasted until 790, when it was reformed by Mufaḍḍal ibn Faḍāla. The cadi assigned the task of inquiring about witnesses to his clerk, who became known as the examiner (ṣāḥib al-masā’il), but rumours spread that some people bribed him to declare them fit for testifying (literally, to declare them as imbued with ʿadāla, virtue and honour). The cadi subsequently installed ten witnesses at his court, apparently, on a permanent basis. This move was resisted by someone, who restored to poetry and in unequivocal verses called upon God to turn the cadi into an emaciated dog, accusing him of installing criminals as witnesses.78 This harsh criticism might indicate that serving as a witness was not only a question of social prestige, but also brought some tangible benefits. The impression is gained that the criticism of the cadi was malicious, since he was praised for his scrupulous supervision of orphans’ affairs. Another context for the preoccupation of both Ghawth ibn Sulaymān and Mufaḍḍal ibn Faḍāla with the establishment of the witness corps has been suggested by Tillier, who perceives it as part of the procedural judicial innovations that occurred in Egypt.79
The cadi Muḥammad ibn Masrūq al-Kindī, appointed in 793, found himself in a situation similar to that of Mufaḍḍal ibn Faḍāla. He is described as a cadi who rigorously dispensed justice, was not afraid to confront tax collectors, and refused invitations by the governor to attend his sessions. His relations with some of the notables of Fusṭāṭ were also strained and he accepted only the testimony of people whom he had selected and registered as witnesses. His deed provoked wide discontent and bitter abusive exchanges took place between the cadi and the dismissed court witnesses.80 Nonetheless, the notion that a cadi is entitled to appoint and dismiss witnesses took root. In 801, the cadi al-ʿUmarī was unopposed when he chose certain people to serve as witnesses and registered their names while refusing to accept the testimony of others. The issuing of witnesses was high on his agenda, and Kindī (p.69) offers two conflicting reports as to how it was dealt with. The examiner was entrusted with the task of finding new witnesses, and the instructions given to him were to seek people known for their piety (sitr and faḍl). The second report claims, however, that a body of 100 witnesses made up of the people of Medina and the mawālī of Quraysh and Anṣār was established and that a specific person served as their head (ra’īs).81
The wording of Kindī’s second account is unclear, and it most probably means that people whose origin was Medina and who were descendants of Quraysh and Anṣār and their mawālī made up the witness corps.82 If this interpretation of the text is accepted, it means that inherited social prestige derived from Quraysh and Anṣār forefathers’ participation in the events that were associated with the Prophet’s life and the formation of Islam was given preference over acquired piety (sitr and faḍl). One is left to wonder how exactly the protégés of Quraysh and Anṣār became imbued with the prestige of their masters. Clearly, what al-ʿUmarī did was controversial, and, as was the case with Mufaḍḍal ibn Faḍāla, he was criticised in poems which, though less personal and vicious, implied that he impoverished the orphans under his supervision and enriched his associates.83 It seems that al-ʿUmarī failed to find the right balance between his view of how the witness corps should be selected and public expectations or, to put it differently, between the interests of the various groups that had a stake in this matter. Eventually, he appointed thirty Persians to serve in the witness corps.84 Turning to a foreign group to serve in such a sensitive capacity could hardly be a popular move and apparently solved nothing, as the problem persisted and other cadis had to address it again.
The cadi Lahīʿa ibn ʿĪsā, during his second appointment (814–20), ordered the examiner to inquire about witnesses every six months and dismiss those tainted with jurḥa (suspension). Actually, he was following the example of al-ʿUmarī, who dismissed witnesses sullied by jurḥa.85 Dismissing (p.70) witnesses was one thing but selecting them was another, and the examiner of the cadi ʿĪsā ibn Munkadir (827–30) was criticised for admitting to the witness corps people of no social standing (literally, lacking qadr and bayt), including vendors, weavers and insincere converts to Islam (muslimānī). The whole affair sparked off a fascinating discussion over the very nature of the function (referred to as ʿadāla/shahāda) of providing testimony at court. Opponents of the selection process, which admitted market people into the corps of accredited witnesses, claimed that the key criteria for selection should be social respectability (alluded to by the term mastūr), while the cadi maintained that it was a religious function (dīn).86 The term mastūr is a loose term with a considerable range of meanings and refers to pious virtuous people with roots in local society. Socially-oriented piety typified medieval Muslim urban society, but the sociological terminology of the period is not easy to decipher and the terms mastūr and dīn seem more overlapping than contradictory. It seems that society was divided over the issue of what really constituted piety and whether social respectability could be combined with having an occupation and earning a livelihood at market.87
The question as to what the appropriate social background should be of the people involved in the administration of justice also applied to cadis. The issue comes to the fore through Maqrīzī’s biography of the cadi Aṣbagh ibn al-Faraj (c. 767–840), who claimed to be a descendant of the mawālī of the Umayyad governor of Egypt Aṣbagh ibn ʿAbd al-ʿAzīz ibn Marwān. Other people in Fusṭāṭ disputed the claim, and suggested that he was a scion of ʿabīd al-masjid, slaves belonging to a mosque, a group of people installed at mosques by the Umayyads. Aṣbagh ibn al-Faraj was a jurist and an expert on naẓar (speculation), who avoided the miḥna by going into hiding. His name as a candidate for the post of cadi was mentioned during consultations between the Abbasid general ʿAbd Allāh ibnṬāhir and the civilian elite (p.71) of Fusṭāṭ as to who should be nominated for the post. Eventually he was nominated, but some participants expressed the view that people referred to as strangers should not be selected for the post of cadi, and the same applied to peasants (zarrāʿ), maqāmisa and dyers.88 The rural world ranked low on the social scale of the learned urban elite to which people involved in this conversation belonged, and the same applies to impure occupations such as dying. Although, in this case, merits overcame marginal social background, in medieval society considerations of social hierarchy were always a powerful underlying factor and must be taken into account in any discussion of the administration of justice.
The preoccupation of the sources with the selection process of the witness corps should not obscure the fact that procedures at the cadi’s court were dominated by written culture, whose beginnings go back to Sulaym ibn ʿItr’s term in office. Whatever place writing occupied in the culture of the pagan Arabs, the world of Late Antiquity was dominated by the written word and the acculturation of the emerging Muslim civilisation into this culture is not surprising. Kindī’s double phrasing (wa-kataba kitābān bi-qaḍā’ihi and sajjala sijillān bi-qaḍā’ihi, using both Arabic and Arabicised Latin terms) when referring to Sulaym ibn ʿItr’s innovation of recording his judgments emphasises the novelty of his deed, which became an established practice and was applied in judicial and non-judicial matters handled by the cadi.89 Muʿāwiya ibn Ḥudayj, the first cadi to control the money of the orphans, recorded each transaction in which he was involved. The practice of recording depositions and withdrawals of money belonging to orphans in the Treasury was also followed by later cadis.90
How endowment deeds were recorded is less clear. Kindī writes that during Tawba ibn Namir’s term in office (he was the first cadi to supervise waqf foundations) pious endowments became a large dīwān, which, in this context, should be understood as referring to the archive holding endowment (p.72) deeds. Actually, the word dīwān came to denote the cadi’s archive and is also attested in the context of writing an endowment deed and depositing it at the cadi’s dīwān.91 What sort of documents were regularly deposited in the cadi’s archive is never explicitly stated, and the statement that the cadi Mufaḍḍal ibn Faḍāla made, during his first term in office (785–6), the deeds (ṭawwala al-sijillāt/kutub) of bequests and debt obligations longer remains elusive. Another way of understanding the account is to follow Wael B. Hallaq’s interpretation of the term sijill/sijillāt as referring to a document that ‘consists of a witnessed record of what the maḥḍar contained, together with the qāḍī’s decision (ḥukm) on the case’, meaning that the cadi created a new kind of a combined long document.92 This document-oriented culture that prevailed at the cadi’s court is, perhaps, best illustrated by the term qimṭar, a briefcase for carrying documents needed by the cadi, an innovation attributed to Muḥammad ibn Masrūq, a Ḥanafī cadi from Kūfa.93
When we turn to documentary evidence, a great variety of legal documents emanating from medieval Muslim and non-Muslim courts have survived and even a brief survey of a few well-known corpuses of published Arabic and Judaeo-Arabic documents reveals marriage and divorce documents and deeds of purchase, sale and lease, as well as quittances and various types of acknowledgement documents. Furthermore, the court conducted its business in writing and issued written summons to people to appear before it, while people submitted written requests to judges and the court concerning their (p.73) affairs.94 Nevertheless, within this document-oriented practice of Muslim courts, oral testimony played a crucial role. When a legal document was drawn it had to be witnessed by at least two people, but when submitted to the court it had no evidential power unless validated by an oral testimony, an oath or formal acknowledgement. To put it differently, in the legal sphere, written culture in itself had no affirmative power and a court could not function without its witness corps. The discourse about who could serve in this corps was motivated by the need to have a reliable body of people to provide oral testimony to empower, so to speak, written documents.
The Cadi and the State
Although cadis were paid state officials, information about their salaries is random and cannot be discussed outside a broader socio-economic context of prices and salaries. We have no idea what could have been the buying power of a dīnār in seventh- to ninth-century Egypt and we know nothing about the salaries of other officials at the provincial level. A documentary fragment from 748 indicates a modest monthly salary for a cadi of ten dīnārs. This information stands in sharp contrast to literary sources, which indicate much higher levels of remuneration.95 The cadi ʿAbd al-Raḥmān ibn Ḥujayra (689–702), for example, received a salary of 200 dīnārs per annum for executing his judicial duties. In addition, he held the post of preacher/storyteller and wielded responsibility for the Treasury, receiving remuneration of 200 dīnārs for each of these assignments. He was also entitled to other benefits which reflected his status as belonging to the Arab-Muslim privileged population, and as a member of the ruling elite he received 200 dīnārs as a yearly allocation (ʿaṭā’) and an additional 200 dīnārs as a special bonus (jā’iza, a gift). The tenor of Kindī’s narrative is not negative, and this cadi is not portrayed as greedy but rather as generous towards his extended family, reflecting the spirit of Koranic teachings. Beginning in al-Manṣūr’s (p.74) reign cadis’ salaries sharply increased to 30 dīnārs (and beyond) per month, for reasons which remain obscure.96
The case of ʿAbd al-Raḥmān ibn Ḥujayra was exceptional, but equally rare were cases of a salary for the post of cadi being declined. One cadi appointed in the late 710s declined a salary, and the same is recounted about al-Ruʿaynī (761–71), who was a craftsman and continued to practise his trade while serving as cadi and drawing no salary. Actually he was second choice for the post, but the first candidate refused the nomination. Pursuit of learning – earning a living via crafts and commerce and declining the post of cadi – typifies the class of religious scholars of early Islam, and al-Ruʿaynī represents this tradition. In the Egyptian context this is a rare example of such conduct, and one is left to wonder whether Egyptian realities were different.97
Although the structure of the provincial government is relatively well-known, there is no data on the salaries of governors and other officials, and any attempt to discuss the position of the cadi within the local administration is marred by many difficulties. The governor was the key figure in the local government and he was assisted by the fiscal administrator, the chief of the postal service, the cadi and, beginning with the rule of Aḥmad ibn Ṭūlūn, the chief of the secret police.98 The internal hierarchy and the actual disposition of power within the local government are something of an enigma, but the sources paint a picture of parallel lines of responsibility, with the governor having political powers and responsibility over the military while the fiscal administrator was in charge of taxation and expenditure. The chiefs of the postal service and the secret police had no control over real instruments of power such as the military or the administration, and their role can be described as supervisory, with direct access to the local ruler (Aḥmad ibn (p.75) Ṭūlūn) and a fast line of communication to the caliph in Baghdad.99 In reality, however, there was no neat division of responsibilities between the different post holders, and spheres of authority overlapped and the demarcation lines between political, fiscal and judicial were ill-defined.
There is no simple answer to the question of what the cadi’s position was within the local government. There are no indications that cadis were involved in taxation, but as late as 757, Yazīd ibn ʿAbd Allāh ibn Bilāl, who was appointed to the post of cadi, had previously served as governor of Akhmīm in Upper Egypt. The papyri offer unexpected and rare evidence for his involvement in what seems to be a questionable judicial process while serving as governor. He demanded and received a letter of acquaintance stating that neither any member of his staff nor he personally oppressed the people of the province.100 A possible insight into the cadi’s role within local government is provided by events in which al-Ruʿaynī played a minor by significant part. The case involved financial maltreatment of the Arab population of the village of Atrīb in the Delta (on the lower section of the Nile’s arm leading to Damietta) by Ibn ʿUtba, who was in the service of the fiscal administrator of Egypt appointed by the caliph al-Manṣūr.101 The discontent led to an attempt on Ibn ʿUtba’s life, and many of the Arab rioters involved in the incident were arrested. Eventually, a letter was sent to the caliph who, as might be expected, sided with the persecuted population against the oppressor. The letter was sent to the cadi, who insisted on reading it publicly at his court; the caliph’s justice was direct and firm but limited in scope: the rioters were set free and the execution of Ibn ʿUtba was authorised. The fiscal administrator drew his own conclusions from the affair and declared that he was seeking a new tax collector for Atrīb who would combine firmness and good judgment.102
The cadi’s role in this affair was a passive one: he merely served as a channel of communication to convey the caliph’s ruling. Quite clearly, the (p.76) cadi was not supposed to serve as an overseer of local government or other state officials. In rare cases, however, certain cadis overstepped their designated role. The most notable case was that of the cadi Muḥammad ibn Masrūq, an authoritative cadi who kept aloof from the governor and brought fiscal administrators/tax collectors (ʿummāl) to justice. He also took on the agent of Zubayda (763–831), the wife of Hārūn al-Rashīd and the mother of al-Amīn, who represented Zubayda’s interests in the Buḥayra region (the southern part of the Delta), whom he convicted and punished by flogging.103
Although cases of cadis taking action on behalf of subjects and confronting state officials were rare, equally rare were charges of corruption and the deliberate perversion of justice.104 Accusations were levelled against the cadi al-ʿUmarī, but these involved a case submitted to him by the governor rather than a litigation. A quarrel between two Arab tribes erupted about who won a horse race and who was responsible for misdoings during its course. The governor, who was faced with massive disorder, brought the case to the cadi, whose ruling was rejected by the losing side, and he was accused of accepting money to favour the other side. A lively exchange of poetry followed the cadi’s decision, which eventually was overturned.105 In this case the governor was happy to shed responsibility for maintaining public order, and involved the cadi by invoking his impartiality and moral authority.
The real question, however, is how much authority the cadi had in enforcing judgments. In medieval Muslim society coercive powers were widely diffused and exercised by powerful individuals in a variety of contexts, while the history of private prisons goes back to the garrison towns of seventh-century Iraq.106 In tenth-century Egypt, the power to imprison opponents rested with the rulers and powerful state dignitaries and is illustrated by the misfortunes of Sībawayhi, who was forcibly incarcerated (p.77) at the hospital at the behest of Ṣāliḥ ibn Nāfiʿ, a close associate of Muḥammad ibn Ṭughj al-Ikhshīd. Sībawayhi’s second imprisonment was at the Arsenal’s tar workshop and took place on the orders of Muḥammad ibn ʿAbd Allāh al-Khāzin, a naval commander apparently in charge of the Arsenal.107 Important though this aspect of political or private incarceration was, the present discussion focuses on incarceration authorised by cadis and the chiefs of police, who were state officials vested with such powers. Whether the cadi had the power to apply the death penalty is rarely alluded to in the sources. In 785, for example, the cadi Mufaḍḍal ibn Faḍāla wrote to Mālik in Medina asking whether it was permissible to put a Christian who cursed the Prophet to death. Having secured Mālik’s approval, he, in co-operation with the governor (or with his tacit consent), put the Christian to death.108 This was, however, an atypical case. Eighth-century cadis had the power to jail litigants engaged in lawsuits at their courts and their powers also extended, to some degree at least, over other people not involved in lawsuits. The cadi Yaḥyā ibn Maymūn al-Ḥaḍramī, for example, jailed an orphan who complained against him. Other cases that involved cadis who tried to silence their critics were more complex. The cadi Ibn Abī Layth (842–9) faced the criticism of Ibn al-Qaṭṭās, described as a pious man who served as a witness at the court of Ibn Abī Layth’s predecessors. Ibn al-Qaṭṭās had a teaching circle at a mosque and accused the cadi of innovations, using the term bidʿa, whose wide range of meanings obscures rather than clarifies the nature of the criticism. Following a meeting between the two that ended in rupture and further animosity, someone came to the cadi and claimed that Ibn al-Qaṭṭās was a slave who had never been manumitted. Ibn Abī Layth accepted the testimonies of witnesses who testified to that effect. There are several versions of how the affair subsequently unfolded, but clearly a cadi could muster support when dealing with an opponent and, in this case, he was by far the more powerful side in the dispute. On the other hand, no cadi was above (p.78) suspicion, certainly not Ibn Abī Layth, and the talk in the town was that the testimonies against Ibn al-Qaṭṭās were false.109
The cadi ʿĪsā ibn al-Munkadir jailed a litigant who had lost a case in his court and vilified him. He nevertheless provided for the family of the jailed person.110 As has been shown by Tillier, the conditions in medieval jails were harsh and basic needs such as nutrition and hygiene were not guaranteed. One can only wonder how Yūnus ibn ʿAbd al-Aʿlā, who was jailed for seven years, survived the ordeal. He, along with other people, served as executor of a will and was accused of fraudulent handling of money. He was jailed by the cadi Ibn Abī Layth and set free only upon the arrival of Qawṣara, al-Mutawakkil’s special envoy to Egypt. When he regained his freedom, Yūnus ibn ʿAbd al-Aʿlā did not accuse the cadi, but the witnesses whose false testimony had led the cadi astray.111 Ulrich Rebstock has pointed out that there were no institutional instances that could rectify judicial mistakes committed by cadis, and the same applies to cases of cadis misusing of power.112 Actually it was a broader problem, since neither the state administration nor the administration of justice system contained checks-and-balance apparatuses and the ultimate power to redress misdeeds lay with the ruler (the maẓālim institution).
The clearest evidence for the existence of a jail run by a cadi comes from Aḥmad ibn Ṭūlūn’s reign. In a response to a petition, the emir ordered his confidant to provide a list of the prisoners, their conditions and the reasons for their imprisonment. It turned out that the total debt of the people jailed at the cadi’s prison was 20,000 dīnārs, and Aḥmad ibn Ṭūlūn paid the money. Needless to say he won the prisoners’ gratitude and intercessory prayers and, on a higher level of the Koranic ethics of almsgiving, he followed Koran 9:60 which enjoins distribution of charity to prisoners and debtors. Imprisonment of debtors by cadis was a medieval reality and many rulers did (p.79) what Aḥmad ibn Ṭūlūn had done.113 Common though the jailing of debtors was, it does not necessarily undermine Irene Schneider’s observation that punitive detention played a relatively minor role in the legal literature and the administration of justice, while flogging and shaming were the main means of punishment.114
So far, the cadi’s dependence on the state has been stressed, but it went even deeper: the cadi was also dependent on the public and cadis bent to public opinion. Although the sources provide little information concerning this issue, two events are highly suggestive and shed light on the problem. The first event to be discussed concerns the highly respected and appreciated cadi Abū Ṭāhir al-Dhuhlī, who served in the 960s. He declared that a young child does not become Muslim upon the conversion of his Christian mother (her husband did not convert). His decision was met by uproar. People claimed that it contradicted both Shīʿī (ahl al-bayt) and Shāfiʿī law, and the cadi yielded to the public and changed his legally sound decision.115 The second event took place earlier during the Ikhshidid period and involved Copts who approached the ruler and asked to restore a collapsed church. The cadi Ibn al-Ḥaddād and another Mālikī jurist issued legal opinions denying their request, but another jurist allowed the restoration. Angry people surrounded his home and were about to set it on fire. The ruler, threatened with public disorder and relying on the opinion of the majority of the jurists, yielded to the popular demand.116 It can be said that the two jurists whose rulings were (p.80) opposed by the public displayed professionalism and a legal frame of mind, paying no attention to the possible social repercussions of their decisions. However, when faced with popular anger al-Dhuhlī retreated to placate the public.
It is possible to reconstruct the evolution of the post of cadi, relying on both literary and documentary sources. Tenth-century writings and Mamlūk historiography depict the cadi as a paid state official whose judicial responsibilities were compounded with other assignments. From the state perspective, during the eighth century the cadi institution become associated with the administration of justice, and the combining of posts such as cadi and chief of police or cadi and preacher/storyteller ceased. The nature of the post was, however, largely shaped by processes that took place from below from the ranks of the people who occupied the post. This bottom-up process began during Sulaym ibn ʿItr’s term in office. He is described as issuing written rulings in inheritance cases and his dealings with other state officials are described as an exchange of missives. The process gained momentum during the second half of the seventh century, and between 705 and 810 cadis acquired responsibility for supervision/administration of various trust funds, not money obtained through the tax collection system.
The stages of the process can be summarised as follows: in 705, for the first time, orphans’ monies came under the supervisory authority of the cadi and remained in the hands of cadis throughout the middle ages. The involvement of cadis with the management/supervision of waqfs began during the 730s, but cadis never achieved full control over the waqf institution. By the first decade of the ninth century, the cadi also supervised the monies of absent people and legacies with no legal heirs. This accumulation of extra-judicial authority made the cadi a powerful figure at the centre of an urban business network unconnected with state administration, and he, like members of ruling families, courtiers, emirs and private businessmen, moved freely across a multiple divide of roles. The extension of the cadi’s authority is a reflection (p.81) of medieval realities in which the amalgamation of responsibilities was a norm and no clear-cut distinction between ex-officio activities and semi-private and private commercial-financial dealings existed.
The extension of the cadi’s responsibilities was driven by a quest for power, influence and financial rewards. In a parallel but unrelated process, cadis also shaped proceedings at their courts. Cadis chose their clerks and controlled the appointment and dismissal of witnesses. The first references to the debate as to how the selection of witnesses should be conducted are from 758–61, and no acceptable solution was reached during the second half of the eighth or the ninth century. No clear criteria were put forward, and the main debate concerned whether the selection process should be socially inclusive or selective. The outcome was quite clear: people belonging to sectarian religious and theological groups were left out, and social prestige was the driving force behind the selection process. A certain degree of congruence between belonging to the witness corps and acting as a financial trustee with responsibility for various funds on behalf of the cadi is discernible, but how widespread this congruence was remains unknown.
That caliphs were involved in legal matters, and in the way the cadi administrated justice, is a truism, and the question that should be asked is when this ceased. Tillier has devoted extensive discussion of the topic, which relies on a wide range of sources and spans the period from al-Manṣūr’s reign to the post-miḥna period.117 The sources for the study of the cadi institution in Egypt are far more restricted and offer no clear answer; the impression is that it simply faded away, but never entirely ceased. The reappointment of Ḥārith ibn Miskīn illustrates this point. The caliph was aware of the cadi’s independence and integrity when investing him with judicial authority for the second time, but dismissed him again when he threatened the economic interests of the ruling family. However, the question of a cadi confronting the regime on social issues should be separated from the issue of constant caliphal involvement in legal matters and court cases adjudicated by the cadi. The impression is that this kind of involvement ceased following the end of the miḥna and the appearance of madhhab-oriented cadis.118
(p.82) It can be argued that during the tenth century, if not earlier, the notion of the cadi’s judicial sovereignty became solidified. How this trend related to the social standing of the cadi in his society is, however, a different question. The way in which the cadi institution had evolved made the recipient vulnerable and susceptible. Firstly, the cadi acted as a single judge with no clearly structured mechanism of appeal on his rulings. Secondly, the cadi’s involvement with the supervision and management of various trust funds could tarnish his reputation and call his integrity into question. Although the post was of paramount importance, it was beset by structural flaws.119
(5) See Economy and Society, II, 976. Although the term ‘Kadijustiz’ unmistakably invokes an Islamic context, most of Weber’s examples illustrating this type of justice are taken from the European context. See II, 976–8, esp. 978. His only example referring to Islamic context alludes to French-occupied Tunisia, where, in his words, ‘a very tangible handicap for capitalism remained in that the ecclesiastic court (the Chara) decided over land holdings “at discretion” as the Europeans put it’ (II, 978). Although Weber was aware that the perspective he adopted was Europe-centric, the situation in colonial Maghreb was far more complex than he could possibly have known. These complexities are delineated in David S. Powers’ seminal study, showing how French jurists reinterpreted Islamic legal history to justify attempts of transferring lands tied up in familial waqfs to French settlers. See ‘Orientalism, Colonialism, and Legal History’, 535–71. For inexplicable reasons Weber’s other remarks about Islamic law still serve as a term of reference. See, for example, Zarinebaf, Crime and Punishment in Istanbul, 141–2, 152.
(10) As Tillier’s study has shown, women frequented the court for matters relating to issues of personal status, and the court, with the help of female assistance, handled these cases. The identification of a female plaintiff before the cadi was, however, a delicate issue and had to be handled sensitively. See ‘Women before the Qāḍī’, 280–301.
(11) Marmer, ‘Patrilocal Residence and Jewish Court Documents’, 76–83. The reliance on random documents is, however, problematic and offers imprecise glimpses into social realities. A confidant and assertive woman is revealed by a Coptic divorce document (probably seventh–eighth century, from Ashmūnayn), who declares that she will not sue her divorced husband if he remarries. See Balogh and Kahle, ‘Two Coptic Documents’, 331–41.
(12) The question of universal characteristic traits of mankind, on the one hand, and the otherness of ancient and medieval societies on the other can be expanded to include a myriad of topics. For violence and depictions of violence see, for example, Zimmermann’s evocative essay ‘Violence in Late Antiquity Reconsidered’, esp. 351–2.
(13) For general discussion of justice in medieval Islam, see Sadan, ‘A “Closed-Circuit” Saying’, 325–42; Darling, ‘The Vicegerent of God, from Him We Expect Rain’, 407–29. For justice as a guiding principle in the system of administration of justice and the cadi’s accountability to God for his judgments, see Tillier, ‘La société abbasside’, 157–82; Lange, Justice, Punishment, 246–7.
(15) Ibn ʿAbd al-Ḥakam, Futūḥ, 226–8, Wakīʿ, I, 7–13, 14–34; Kindī, 470–1. For the perceptions of the cadi’s accountability to God in social practice and the eschatological literature, see Tillier, ‘The Qāḍī before the Judge’, 260–75; Lange, Justice, Punishment, 157, 160.
(16) Juynboll assumes that the ḥadīth originated in the middle of the eighth century and began circulating in Egypt during the first half of the ninth century. See Muslim Tradition, 81–2. I owe this reference to the kindness of one of the anonymous readers on behalf of EUP. For concepts of justice, see Lev, ‘Charity and Justice’, 1–16.
(18) Répertoire, I, no. 38. Both terms are Koranic and refer to division of spoils (ghanima, fa’y) among God and the Prophet (khums) and other beneficiaries such as relatives, orphans and the poor (See Koran, 8:41; 59:7).
(23) The implementation of the miḥna in Egypt was divisive and provoked strive within the religious class. See Maqrīzī, Kitāb al-Muqaffā, V, 515–16. For the caliphate, see Melchert, ‘Religious Policies of the Caliphs’, 316–42; Zaman, ‘The Caliphs’, 1–36; ‘Death, Funeral Processions’, 34–5.
(27) Kindī, 301–2; 304–5; Tillier, Histoire des cadis, 49–51, 54. For another example of a pagan arbitrator who became a cadi, see Simonsohn, A Common Justice, 73. In this particular case the term ‘Berbers’ could, or should, be understood as referring to people of East Africa facing Arabia. For this interpretation, see Rouighi, ‘The Berbers of the Arabs’, 70–1. For Sūq Barbar in ninth-century Fusṭāṭ, see Bruning, The Rise of a Capital, 60–1.
(30) Rāġib, ‘Une ère inconnue’, 197–8; Bruning, ‘A Legal Sunna’, 352–74, esp. 373. Bruning’s reading has been challenged by Shaddel, ‘The Year According to the Reckoning of the Believers’, 293–7. The documents discussed by Rāġib, Bruning and Shaddel must be seen in a broader context of irrigation practices and Arab pre-Islamic legal tradition. For the way the basin irrigation system worked, see Borsch, The Black Death in Egypt, 34–5. Each basin in the system was watered for a period of about forty days and the flooding was regulated by an elaborated timing sequence, which had nothing to do with the Hijrī calendar (see Rāġib’s remarks, 193–4). In a number of publications Geoffrey Khan has drawn the attention to the existence of Arab pre-Islamic legal tradition, going back to the ancient Semitic Near East (see ‘The Pre-Islamic Background of Muslim Legal Formularies’, 193–224; ‘An Early Arabic Legal Papyrus’, 227–37; ‘Remarks on the Historical Background’, 887–9, 891). This topic is also alluded to by Bruning (see 373–4).
(31) A smooth transition of leading members of the Qyraysh clan from Arab paganism to Islam is widely attested. See, for example, Ibn Yūnus I, 339. No less instructive is Ibn Yūnus’s account of Kaʿb ibn Ḍinna’s service as a judge in pre-Islamic and Islamic times (I, 413–14).
(32) Kindī inserts a comment that could be understood as alluding to differences between how rituals were performed at that time and their performance in his time. The issue at question was how many prostrations should be performed during the recitation of the Koranic pilgrimage verses: two, as the caliph practised, or three, as was done in Kindī’s lifetime. See Kindī, 304, 308; Tillier, Histoire des cadis, 53; Ibn Yūnus, I, 218–19.
(33) Ibn Ḥabīb, 108, 110, 111, 116. For different versions of this incident, see Maqrīzī, Kitāb al-Muqaffā, IV, 91–6. Similar reports in the form of akhbār and ḥadīth enjoyed wide circulation. The caliph ʿUthmān is depicted as ordering the flogging of his half-brother, the governor of Kūfa, for leading prayers in a state of drunkenness. And no less a personality than ʿAlī, the future caliph, was chosen to administer the punishment. See Hakim, ‘Conflicting Images’, 173–4. How the punishment for drinking wine had evolved is discussed by Opwis. See ‘Shifting Legal Authority from the Ruler to ʿUlamā’, 66–70. The involvement of caliphs in setting the severity of punishments is also noted by non-Muslim sources. In 724–5, Yazīd II introduced a new scale for punishing theft by amputating an arm instead of a hand. His order was met with discontent. See The Chronicle of Zuqnīn, 156.
(35) Kindī, 309; Tillier, Histoire des cadis, 58; Schacht, The Origins, 207–8; Tsafrir, ‘The ʿĀqila’, 221–3. For military organisation in early Muslim Egypt, see Mikhail, ‘Notes on the Ahl al-Dīwān’, 273–84; Sipesteijn, ‘Army Economics’, 245–67.
(39) Kindī, 304; Tillier, Histoire de cadis, 53; Ibn Ḥajar, ed. Majīd II, 253; for an English translation of Ibn Ḥajar’s account, see Juynboll, Muslim Tradition, 14–15. For other references to storytellers/preachers, see Ibn Yūnus, I, 76–7, 97 (referring to a storyteller/preacher in Alexandria at the time of ʿUmar II), 369, 424, 490. For broader discussion of this institution and its origin and function, see Armstrong, The Quṣṣāṣ of Early Islam, 190–240, esp. 233–40.
(40) Ibn ʿAbd al-Ḥakam, Futūḥ, 236, 238 (referring to the 710s). The combination of judicial responsibility with supervision of the Treasury reoccurred in 715, while the addition of preaching to the cadi’s responsibilities also took place in 738. Kindī, 313, 317, 332, 348; Bligh-Abramski, ‘The Judiciary’, 46, 49; Tillier, Les cadis d’Iraq, 75–7.
(48) The topic of ‘the absent husband’ is extensively discussed by Goitein. See Med. Soc. III, 189–205. The argument about a high percentage of unmarried women in Mamlūk cities has been put forward by Rapoport, Marriage, Money and Divorce.
(49) See Islamic Imperial Law, 17, 137–42. For the need to look at the Byzantine parallels, see Cahen, ‘Réflexions sur le waqf ancien’, 52–3. For a detailed examination of this question, see Barnes, An Introduction to Religious Foundations in the Ottoman Empire, 11–20.
(52) Boyce, ‘On the Sacred Fires of the Zoroastrians’, 52–68; ‘The Pious Foundations of the Zoroastrians’, 270–89; Macuch, ‘Pious Foundations in Byzantine and Sasanian Law’, 181–96. The legal aspects of the endowments dedicated for the performance of rituals for the soul are discussed in a Sasanian law book compiled in the first half of the seventh century. See Perikhanian, The Book of a Thousand Judgments, 97, 99, 101.
(53) The caliph ʿUthmān is credited with establishing a waqf (a water well) for the Muslims. See Ibn Ḥabīb, 117. For the caliph ʿAlī’s supposed endowments in the vicinity of Medina, see Rabb, ‘The Curious Case of Bughaybigha’, 24, 27, 34. Whether the Islamic tradition on the origin of waqf can be trusted is a matter of opinion and controversial. Gil, for example, is very explicit on this issue: ‘I find the general corpus of tradition – as preserved in the Arab sources – to be essentially genuine.’ See ‘The Earliest Waqf Foundations’, 125. For the same methodological approach, see Lecker, ‘A Pre-Islamic Endowment Deed in Arabic’. (The use of the term ‘endowment’ in this context is, however, somewhat problematic since the property in question was not endowed but given as a gift.) For pious endowments at the time of the Prophet and ‘Umar, see Amin, Al-Awqāf wa’l-Hayat al-Ijtima‘iyya, 18–21; Lecker, ‘Glimpses of Muḥammad’s Medinan Decade’, 69; Forand, ‘The Status of the Land and Inhabitants of the Sawad’, 29–30; Abdullah, ‘A New Definition of Waqf’, 57–73; Haji Othman, ‘Origin of the Institution of Waqf’, 3–23. For a critical approach to sources, see Powers, Studies in Qu’rān and Ḥadīth, 123–8, 134, 136, discussing Fāṭima’s claim against her father’s estate.
(54) Schacht, ‘Early Doctrines on Waqf’, 444–5, 447; Oberauer, ‘Early Doctrines on Waqf Revisited’, 1–47. For pious endowments in Ṭarsūs, see Lev, Charity, 68–9. Ibn Yūnus, II, 246, quoting a tradition in favour of endowing a horse for the purpose of the holy war.
(57) Ibn ʿAbd al-Ḥakam, Futūḥ, 244. Ibn Yūnus, II, 39; Kindī, 371; Maqrīzī, Kitāb al-Muqaffā, II, 113–15; Tillier, ‘Les ‘premiers’ cadis de Fusṭāṭ’, 228–9. All the people mentioned in the account owned land in the Ḥijāz and certainly elsewhere too, but the status of these lands is not specified. For Ḥijāz, see El-Ali, ‘Muslim Estates’, 249, 253, 256, 257, 259. Although allusions to endowment of properties for the common good of the early Muslim community in Fusṭāṭ are frequent, the institutional history of the endowment system remains enigmatic. That idea that the most productive lands of Egypt were endowed for the Muslims is rarely stated. See Ibn ʿAbd al-Ḥakam, Futūḥ, 89, 92, 98, 100, 101, 104.
(58) Another version of Alīsaʿ’s term as cadi puts the whole affair into a completely different context of sexual mores and the apparent indifference of the cadi to somebody being vilified as a sodomite, which is alluded to by the vague term ma’būn and the explicit phrase man yunkaḥu fī duburi-hi. (For ma’būn in the meaning of a male passive sexual partner, see Riḍā, Muʿjam al-ʿArabiyya al-Klāsīkiyya wa-l-Muʿāṣira, 1,399.) Perhaps the issue hinted at this account was broader and also involved the question of sexual positions and not just of anal intercourse. Both issues were extensively debated in Islam and, generally speaking, rear-entry vaginal intercourse was permitted, while opinions about anal intercourse were divided. See Kindī, 371–2. For another debate about anal intercourse (al-waṭ’ fī l-dubur), see Kindī, 379; Tillier, Histoire des cadis, 134, 143. Sexual mores were also part of Muslim–Jewish polemics. For a broad discussion of this particular issue, see Maghen, After Hardship Cometh Ease, ch. 9.
(59) See Tillier’s discussion ‘Legal Knowledge and Local Practice’, 187–204, esp. 199–200, referring to Ismāʿīl ibn Alīsaʿ’s conflict with the local elite in Fusṭāṭ. For the Abbasid preference for Ḥanafī cadis but also attention to local legal identities, see Tsafrir, The History of an Islamic School of Law, 27, 95.
(60) The way the cadi reached his conclusion might be called reverse analogical thinking. He was informed that the governor used to publicly vilify ʿAlī and, relying on a ḥadīth, stating that a person hostile to ʿAlī is a bastard he inferred that foundlings are the rightful beneficiaries of the endowment. See Ibn Ḥajar, ed. ʿUmarī, 273; Tillier, Vies des cadis, 92.
(61) For a broader discussion of this issue, see Nawas, ‘A Client’s Client’, 143–58. The process of a protégé having his own clientele had wide social ramifications and is also attested in the context of court slavery. The phenomena of slaves, including eunuchs who belonged to rulers, members of royal families and other high-ranking people of the ruling circles, having their own slaves and eunuchs is well-attested across the whole spectrum of court life in medieval Islam.
(62) Kindī, 474–5; Tillier, Histoire des cadis, 251; Ibn Ḥajar, ed. Guest, 503–5, 506; Tillier, Vies des cadis, 47–51, 56. Both Ibn Ḥajar and Maqrīzī (Kitāb al-Muqaffā, III, 138–9) provide long and complex accounts of the endowment and its history.
(65) Kindī, 412. The Ḥaras affair involved al-ʿUmarī’s ruling in favour of Copts who claimed Arab pedigree. See Lev, ‘Coptic Rebellions’, 320–3. For more recent discussion of these events and French translation of relevant fragments, see Bouderbala, ‘Les māwālī à Fusṭāṭ’, 147–51, esp. 149, n. 49; Webb, Imagining the Arabs, 188–9, including English translation of poetry fragments.
(67) Kindī, 383, 394–5, 424; Tillier, Histoire des cadis, 148, 161, 193. Kindī’s narrative strongly suggests that by the mid-eighth century the cadis also controlled familial pious endowments. See Kindī, 361, 364; Tillier, Histoire des cadis, 121, 126.
(70) For example, in a reply to a question sent from Egypt about entitlement to incomes of a familial pious endowment, Mālik stated that a third of the income must go for ‘the cause of God’. See Ibn Ḥajar, ed. ʿUmarī, 439. For a French translation of the account and discussion, see Tillier, Histoire des cadis, 152; Bouderbala, ‘Les aḥbās de Fusṭāṭ’, 43–5.
(75) Kindī, 344–5, 384; Tillier, Histoire des cadis, 101, 148. For broader discussion, see Masud, ‘Procedural Law’, 387–416, esp. 390, 399–401.
(86) Kindī, 436; Ibn Yūnus, I, 140–1; Tillier, Histoire de cadis, 209. The term muslimānī had a range of connotations from obsessive and insulting to neutral, meaning fresh converts to Islam. For the former, see Lev, ‘Persecutions and Conversion’, 88–9; for the latter, see Tillier and Vanthieghem, ‘La rançon du serment’, 55, line 2 (text and trans. [néo-musulman]).
(87) For the concept of sitr and people living by it (mastūrūn), see Lev, Charity, 10–12; ‘The Discourse of Charity’, 68–9. Both terms are attested in the Geniza documents. See Cohen, Poverty and Charity, 51–3, who shows that in the Jewish context mastūrūn meant conjectural poor, or the shame-faced poor.
(88) Kindī, 433–4; Tillier, Histoire des cadis, 205–6; Maqrīzī, Kitāb al-Muqaffā, II, 213–14, 214–17; El-Shamsy, The Canonization of Islamic Law, 100, 101–2. The term maqāmisa appears in military context in association with mawālī, but remains vague. See the glossary in Guest’s edition of Kindī.
(89) Kindī, 310; Tillier, Histoire des cadis, 59. For the term sijill in the Koran, see Jeffery, The Foreign Vocabulary of the Qu’rān, 163–4.
(91) Kindī, 362, 410, describing the establishment of a pious endowment by the cadi al-ʿUmarī for a mosque. For the inclusion of waqf deeds in the cadi’s archive, see Ziadeh, ‘Adab al-Qāḍī’, 144; Tillier, ‘Le statut et la conservation des archives judiciaires’, 273. The history and practice of recording court business by the cadi is extensively discussed by Hallaq. See ‘The Qāḍī’s Dīwān’, 415–36.
(92) Kindī, 379; Ibn ʿAbd al-Ḥakam, Futūḥ, 244; Tillier, Histoire des cadis, 143; ‘The Qāḍī’s Justice’, 45; Hallaq, ‘The Qāḍī’s Dīwān’, 420, including explanation of the meaning of maḥḍar as either a statement made by a witnesses or the minutes of a case examined by the cadi. For a short documentary fragment of minutes of a case that took place before the cadi Mufaḍḍal ibn Faḍāla, see Tillier, ‘Deux papyrus judiciaires de Fusṭāṭ’, 11–14.
(93) Kindī, 391–2, 437; Maqrīzī, Kitāb al-Muqaffā, VII, 234; Hallaq, ‘The Qāḍī’s Dīwān’, 428, 433, who understands qimṭar as referring to a ‘bookcase in which documents and sheets of papyri were preserved’. For the transfer of the cadi’s archive from one cadi to another and the terminology involved in the legal prescriptive literature, see Ziadeh, ‘Adab al-Qāḍī’, 143–4. For further references, see Tillier, Vies des cadis, 44; Histoire des cadis, index. For the Semitic roots of the term qimṭar and Muḥammad ibn Masrūq’s career, see Tillier, ‘Les “premiers” cadis de Fusṭāṭ’, 17–18.
(94) See, for example, Khoury, Chrestomathie de papyrologie arabe, docs 78, 79, 80 (a denunciation submitted to the court), 81, 82. For summons issued by the cadi Ghawth ibn Sulaymān, see Tillier, ‘Deux papyrus judiciaires de Fusṭāṭ’, 3–5.
(95) For the documentary evidence, see Al-Qāḍī, ‘The Salaries of Judges’, 9–10, 12. Kindī, 354; Tillier, Histoire des cadis, 114. Any attempt to correlate Ashtor’s discussion of prices and salaries with the data presented here is marred by many difficulties. See Histoire des prix, ch. 2.
(96) Kindī, 317, 377, 421, 435; Tillier, Histoire des cadis, 68; Al-Qāḍī, ‘The Salaries of Judges’, 22, 28. Tillier provides two graphs, spanning the period between al-Manṣūr and al-Ma’mūn, which illustrate this increase. The second turning point in salary increases took place under Hārūn al-Rashīd (786–809). See Les cadis d’Iraq, 263–72, esp. 265, 267.
(97) Kindī, 339, 364–5; Ibn Ḥajar, ed. Majīd, I, 46; Tillier, Histoire des cadis, 94, 124–5. For broader discussion of accounts of refusal of the appointment to the post of cadi in the earlier centuries of Islam, see Coulson, ‘Doctrine and Practice in Islamic Law’, 211–26.
(98) Although it is not explicitly stated, Balawī’s biography of Aḥmad ibn Ṭūlūn conveys the impression that an internal network of informants was set up, or vastly expanded, by the new ruler of Egypt. References to asḥāb al-akhbār are abundant in the text. See, for example, 73, 83, 118, 122, 146, 156, 207, 224, 333. For the caliphate, see Silverstein, Postal Systems, 114–15.
(99) The first attestation of a postal service in Egypt is from 669. See Sijpesteijn, Shaping a Muslim State, 91. For the postal service in early Abbasid Egypt, see Bruning, ‘Developments in Egypt’s Early Islamic Postal System’, 25–40.
(103) Kindī, 388, 392; Tillier, Histoire des cadis, 153, 158. The term ‘Buḥayra’ lacks geographical precision. It must be taken into account that two internal lakes, with connection to the sea, dotted Egypt’s Mediterranean cost: Lake Burullus and Lake Tinnīs. The first was known for fishing, while the second was, in addition to fishing, known for its textile industries on the island of Tinnīs. Most likely Zubayda’s agent was more interested in the second region.
(104) For Iraqi cadis who confronted caliphs, see Tillier, ‘Judicial Authority and Qāḍī’s Autonomy’, 124–5.
(107) Ibn Zūlāq, Kitāb Akhbār Sībawayhi, 30, 40, 57–8. For the military and naval career of al-Khāzin, see Maqrīzī, Kitāb al-Muqaffā, VI, 137–8. Apparently, Ṣāliḥ ibn Nāfiʿ held no official appointments but was closely associated with the Ikhshidid rulers. See Maqrīzī, Kitāb al-Muqaffā, II, 315; III, 335; V, 752, VI, 58, and I, 340.
(111) Kindī, 454–5; Tillier, Histoire de cadis, 230–1. According to one account, Ibn Abī Layth was aware of his grave mistake and acknowledged Yūnus ibn ʿAbd al-Aʿlā’s magnanimity towards him. See Ibn Ḥajar, ed. Majīd I, 142. For the harsh realities of medieval jails, see Tillier, ‘Vivre en prison’, 643–55; ‘Les prisonniers dans la société musulmane’, 191–212, including a discussion of the difference between political and judicial imprisonment.
(113) Balawī, 184–5. The text implies that the money paid for the release of those prisoners covered their debts, but debt (dayn) is not mentioned in the account. For a prisoner abandoned to his fate, see Balawī, 234–7. For home arrest imposed on a dignitary and those who interceded on his behalf, see Balawī, 237–9. Tillier and Vanthieghem assume that the prison log they have published (‘Un registre carcéral’), which specifies how debtors were set free from a prison, belonged to a prison run by the chief of the police. Their assumption hinges on the identification of Faḍāla ibn al-Mufaḍḍal (the son of the cadi al-Mufaḍḍal ibn Faḍāla) as chief of police in January 806(?). In Balawī’s account dealing with the release of the prisoners from the cadi’s jail, Ibn Faḍāla is referred to as Aḥmad ibn Ṭūlūn’s agent (wakīl) and plays a key role in these events. For the release of debtors, see Tillier, ‘Prisons et autorités urbaines’, 396; Lev, Charity, 25, 44–5.
(116) Ibn Ḥajar, ed. Guest, 554–5, quoting Ibn Zūlāq. Although no details are given, the issue at stake was complex and the main question was whether the church in question could be regarded as ancient, i.e. pre-dating the Muslim conquest of Egypt. In such cases, under certain conditions, the restoration was allowed. Frequently, in such cases the jurists differed and the decisions taken by the rulers were more politically inspired than legally informed. See Lev, ‘The Fatimid Caliphs’, 396–7.
(119) Tillier, ‘Qadis and Their Social Networks’, 123–41, esp. 134–41, which discusses the attempts of Shāfiʿī and Ḥanafī jurists to define the distinction between the cadi’s professional and private life.