Definitions, sources and state of the art
A qadi is a judge on whom the ruler delegates the task of imparting justice according to the principles of the Shari ‘ah. A mufti is a religious scholar ( ‘dlim) who issues non-binding advisory and explanatory opinions (fatwa) at the request of others, sometimes in connection with litigation, sometimes not, on matters covered by the Shari ‘ah, which at times trespass the limits offiqh to touch theology, mysticism, ethics, proper conduct, etc.
Qadis are distinct from other officials enjoying adjudicative competences. Their singularity with respect to governmental judges relies in the obligation to judge according to the Shari ah which, given the strict evidentiary rules established by the latter, limits qadis’ capacities to take the corresponding course of action, especially in penal matters. Yet the bond with the Shari ‘ah confers on the office a sacrosanct character that, at least in theory, lends it independence and freedom from the ruler’s pressure and interference. Contrary to the arbitrator (hakam) the qadi’s appointment is official and general, that is to say, not restricted to the particular case put in his hands by the parties. Though they can be reversed or reviewed under certain conditions, qadis’ judgments (hukm, qadd'), contrary to fatwas, are binding. Yet in the long term a mufti’s opinion may end up carrying much more authority and strength than judgments; the latter’s validity is restricted to the case in connection to which they were issued, whereas the import of fatwas, though prompted by a specific set of circumstances, is considered to be of general application when similar factual conditions are met. Qadiship is an official institution while muftis used to operate as freelance consultants, except those attached to a qadi’s advisory council (shura). Legal interpretation (ifta’) lost much of its independent and informal aspect with the Ottomans, however.1.1 Sources
Our main pool of information regarding the chronological development of qadis’ and muftis’ role in society is provided by written legal sources themselves, especially those more concerned with the practical aspects of Islamic legal doctrine (fiqh; furu ' offiqh) like collections of fatwas and legal cases (fatwas, nawazil, masa’il). These sources show qadis and muftis in the daily performance of their functions whereas biographical dictionaries of scholars help contextualize their activities in their proper time and place. Compilations of legal doctrine and opinions in their various genres, treatises on the inspection of morals and the markets (hisba), collections of model notarial forms (watha 'iq, shurut) and very especially works for the instruction of judges and legal interpreters (adab al-qadi; adab al-mufti) are more concerned with promoting an ideal conception of eligibility, competences and behaviour. However they are extremely useful to observe jurists’ strategies to impose themselves as the requisite candidates to perform religio-legal functions, to raise as the supreme interpreters of the Shari'ah and to challenge control of their activity and limitation of their competences and influence on the part of the ruler by playing governmental judges against qadis (e.g. assigning to the former competences theoretically exclusive to the latter). A much closer look at qadis’ daily activities is possible through court records (sijills), which qadis are known to have kept but which have mostly disappeared for the period before 1500. Massive proportions of this kind of source material are available after that date, however, for regions matching today’s Turkey, Syria, Lebanon, Egypt, Greece and Bulgaria, thanks to the Ottoman practice of keeping systematic archives.
Students of contemporary qadiship can draw on the judicial archives of modern nation-states and on direct observation, as practiced by legal anthropologists. Specialized internet sites and the mass media, along with private and public institutions charged with issuing fatwas, provide the new source of information about the continued authority of muftis as interpreters of what it means to live today in compliance with the principles of the Shari 'ah for both the state and the general public.
1.2 State of the art1
Given that qadis are the emblem of a state judicial system closely connected with the emergence of a centralizing political power, they have attracted a fair amount of attention among students of Islamic history, law and society. Characterizations of qadis have now overcome approaches that privileged the views of the elites and of courtly circles, among them jurists’ self-depictions of the political, religious and social dimension of their office. The static, uniform, hierarchical and all-embracing configuration with which qadiship was occasionally described has given way to more nuanced and contextualized approaches considering the variations of time and place and the complexities of the, at times collaborative, at times confrontational, and for the most part, symbiotic relationship of qadis with rulers, from whom qadis derived their appointments and their authority, and whose legitimization, given the religious nature of their assignments, they were able to enhance in their turn. The social dimension of qadiship has been explored from different directions: the contents and sources of qadis’ judgments, the extra-legal functions and roles performed by qadis, the selection criteria applied to and by them (e.g. their social extraction, the habilitation of professional witnesses), judicial corruption - the latter revealing a social sub-system with distinct values2 and the chief qadi’s court as a singular space at odds with ordinary courts revealing the political workings of judgeship.3 Recent scholarship has also demonstrated that factors like arbitrariness and irrationality are no longer valid to explain qadis’ adjudicative performances. Concerned researchers can work now with a better awareness of the risks of ‘essentializing’ qadiship, e.g. by making conclusions drawn from direct observation of a single judge’s activities general and applicable to all his counterparts irrespective of context. With the exception of the recent phenomenon of cyber- and TV muftis, interest for Islamic legal interpretation and its makers has resulted from the need to resort to the abundant information about social and economic history provided by fatwas and not vice versa.
This methodological shift has contributed to raise the interest for Ottoman muftis as well, notwithstanding the greater availability of court records and the increased institutionalization of the office during that period. A better understanding of the role of the mufti and its relevance to the Islamic judicial process has also contributed to stress the need to address the adjudicative aspects of Islamic justice jointly with the advisory functions performed by the mufti. Some assign the latter a leading role in the Islamic judicial system; others consider the actual decisions taken by qadis and their materialization in certified legal documents as embodying the very concept of Islamic law.4 The relevance of documents in the Islamic judicial process assigns a privileged role to professional witnesses and thus changes the political and social status of the qadi having appointed them.52
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