Procedural Rules

The enforcement of just solutions depends to a great measure on suitable proce­dures. In some regard, justice can only be produced via procedure: If there is no superior person or institution providing a just solution, participational proce­dures are necessary for everybody involved, e.

Islamic contract and business law deals with those questions. It emerged in an economically quite developed environment. Muhammad was a merchant, just like many people from the area. Qur’an 4:29 shows this strong foundation: ‘You believers! Do not fraudulently cheat⁵⁷ yourselves out of one another’s wealth! But this does not apply to businesses that all of you agree on (tijarat ‘an taradin min- kum).’ Economic operations are not only perceived as acceptable, but are desir­able.

However, they shall not, as the Qur’an states, happen in an unjust way — and this renders the control of economic transactions necessary. The striving for serious exchange relationships and prevention of overreaching is a remarka­ble characteristic of Islamic contract law. Any promise of performance without a consideration is not binding/⁸ Usury, conjectures and exploiting of monopolies

www.fau.de/files/2013/10/Der-Islam-im-demokratischen-Rechtsstaat.pdf (last accessed 26.09. 2017).

57 The term bi ‘l-batil is translated too narrowly by Paret [Der Koran: transl. Rudi Paret, 10^th ed. (Stuttgart: Kohlhammer, 2006)]. The author agrees with Wichard’s [Zwischen Markt und Mo- schee: Wirtschaftliche Bedurfnisse und religiose Anforderungen im fruhen islamischen Vertrags- recht (Paderborn, Munich, Vienna, Zurich: Schoningh, 1995), 89 n.

58 This corresponds with English teaching of consideration.

are prevented as far as possible.^[207] A certain regulative for disparities (which are seen as a reaction to ‘natural inequality’ due to patriarchal understandings) can also be found in family and inheritance law, where individually preferred solu­tions, which normally improve the situation of women or non-Muslims, can be achieved through wills and contractual regulations.^{[208] [209] [210] [211]}

Another important element of contract is the attempt of neutrality and fair­ness when enforcing the law. The literature on Islamic law here especially deals with the actions of lawyers and with the preconditions for suitability of witness­es.

The demands for judicial actions are normally dealt with in tractates and chapters on ‘Adab al-qadΓ. They include functional, characteristic and procedur­al preconditions, which serve to enable just decision-making. Even though the ideal picture of a judge could never really be established in reality/¹, it does not reduce its significance as a benchmark for achieving justice.

Hence, there is consensus on a certain amount of specific education. The great lawyer al-Shafi'i^f'2 (d. 820), called for the following knowledge as a prereq­uisite for a qadfs work regarding his crucial task of independent reasoning by qiyas (analogies and argumentum e contrario^f'³): knowledge of Qur’anic norms, of its deontology and ethics, of the abrogating and abrogated parts of it, of its specific and general rules and its guidance, as well as the ability to in­terpret in conformity with the Sunna of the Prophet and in lack of it, in conform­ity with Muslim consensus, and when consensus is missing, via qiyas, knowledge of the already established Sunna, of the statements of the forefathers, of general consensus and existing disputes as well as sufficient knowledge of Arabic, plus mental health, the ability to distinguish what seems similar (emphasis added), and no hasty statements without justification. Finally, one needed the willing­ness to listen to opposing opinions to avoid any possible neglect and achieve a sounder reasoning for the decision made.

When looking at the respective literature, further important elements are found: the parties of a lawsuit have to be treated equally, no matter what social rank or religion (the latter is contested) they have, they have to be invited to the court at the same time and should be greeted the same way.^{[212] [213] [214] [215] [216] [217] [218] [219] [220]} In addition, one can find regulations on predilections or the explicit ban of taking presents from any party to the proceedings6⁵ or doing business which might endanger legal neutrality.66 If any partisanship is to be feared, the jurist cannot act. The norma­tive base for this ban is the institute of ‘sadd al-dhara’i": What might lead to something forbidden is equally forbidden?⁷ Furthermore, it is prohibited to act while in anger.6⁸

Comparably, rules are established that enable the integrity and reliability of witnesses statements as central evidence in Islamic law. Part of this is the con­sultation of professional witnesses ('uddl)?⁹ Predilection causes the ignoring of the witnessing statements of one husband in favour of another due to possible — inheritance law — advantages.7°

Some statements on the claimed personal integrity are a rich repository off social history at the same time. The witness proof on the massively punished Qu- r^,anic crime of theft (sariqa) can only be brought up by two Muslim, male?¹ free, full-aged and respectable witnesses. According al-Quduri no one is respectable who enters the public bath without a loincloth, who takes interest, who plays chess or nard, who eats on the streets or who urinates there?²

Additionally, there are correcting mechanisms for decisions of administra­tions or court houses, which the affected parties regard as unjust.