The idea of an appellate system
Whether it is reconciling Shafi'i’s two doctrines, conflicting legal codes that compete for geographic or temporal jurisdiction, or even conflicting sources of the same national law (religious, customary and legislative), there are standards by which all conflicting elements of legal argument can be forced into harmony.
But what happens when judges disagree, not about how to interpret a legal principle or reconcile conflicting ones, but about how to apply relevant principles to one and the same case? If you still remember the opening sections of this essay, Isnawi paid attention to this matter from the start of his discussion of ‘superior argument’, and he thought the solution lay in the Prophet’s instruction to Abu Bakr not to act as two judges in the same case. In Isnawi’s discussion, we do not hear about two judges having authority over one in the same case. Though the modern appellate system was not in place, this condition was addressed in medieval Islamic jurisprudence. But it was addressed as an exception to the rule, an example ofjudicial failure leading to judicial correction. In the modern context, where judicial correction is normalized, a new argument is needed for considering a supreme court’s decision juristically and legally superior to a district court’s decision.This last segment of the essay then addresses how a hierarchy of courts adds texture to the question of reconciling conflicting arguments and identifying superior argument. It is a test of how conflicting arguments of equal strength are treated in modern judicial practice. A hierarchy of courts, ascending from local to appellate to yet higher courts of cassation and supreme courts, while political and arbitrary from a legal and epistemological standpoint, may take care of the problem. That is, because a final word will be rendered and made obligatory for all lower courts when a supreme or high court decides a matter about which the low courts disagreed, the disagreement is resolved once and for all. But is this all there is? Is law finally a wrinkle of political science, unable to provide its own defence for its behaviour?
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