David S. Powers

On Judicial Review in Islamic Law

Classical Islamic law apparently constitutes an exception to the finding that legal systems in complex societies invariably possess hierarchical appellate structures. The prevailing wisdom among Islamicists for over a half-century has asserted that there are no appellate structures in Islamic law, that the decision of a judge is final and irrevocable, and that a judgment may not be reversed under any circumstances. The exceptional nature of Islamic law has been explained by Martin Shapiro as a function of the absence of hierarchy in the Islamic religious community. In this article, I argue that Shapiro has been poorly served by Islamicist scholarship. On the basis of a reexamination of Islamic legal theory and an analysis of 14th-century Islamic court practice, I demonstrate that a judicial decision was reversible by the issuing judge himself, albeit under limited and precisely defined conditions; that hierarchical organization was a regular feature of Muslim polities; that the court of the chiefjudge of the capital city served as a court of review for the decisions of local judges; and that Islamic law also developed a unique, nonhierarchical system of successor review. My conclusions will be of interest both to Islamicists and to social scientists who study the relationship between judicial institutions and social organization.

Wael B. Hallaq on the Origins of Islamic Law: A Review Essay

In his The Origins and Evolution of Islamic Law , Wael B. Hallaq seeks to create a new paradigm for the scholarly understanding of the origins of Islamic law. In this essay, I review Hallaqs Origins and four other publications of his in an effort to assess his achievement. A comparison of Hallaqs vision of legal developments during the first two centuries AH with that of Joseph Schacht suggests that the differences between the two scholars are minor and that much scholarly work remains to be done on the emergence of Islamic legal doctrine.

Parents and their minor children: familial politics in the middle Maghrib in the eighth/fourteenth century

In this essay I reconstruct a dispute that occurred in the middle Maghrib during the first half of the eighth/fourteenth century among members of a wealthy family with strong ties to the state. The pre mortem transfer of shares of a mill to minor children, one male and the other female, carried out ca. 705/1305 became problematic 20 years later, long after the childrens father had died. The widowed mother used her position as legal guardian to prevent her daughter – now grown up and married – from exercising effective control over her shares of the mill; eventually, the mother sold her daughters shares of the mill to her son, a jurist employed by the state. When her attempts to settle the dispute within the family proved unsuccessful, the daughter took her case to a sharī a court judge; the latter solicited the legal advice of a muftī, who called for nullification of the sale. The case sheds light on the operation of the Islamic legal system, points to the willingness of legal actors to uphold the rights of a female against a powerful male relative, and suggests that Muslim judges enjoyed a relatively large measure of judicial autonomy.

Islamic Legal Thought

In Islamic Legal Thought: A Compendium of Muslim Jurists, twenty-three scholars each contribute a chapter containing the biography of a distinguished Muslim jurist and a translated sample of his work. Jurists of the formative, classical and modern periods are represented.

Index of Arabic terms

In Islamic Legal Thought: A Compendium of Muslim Jurists, twenty-three scholars each contribute a chapter containing the biography of a distinguished Muslim jurist and a translated sample of his work. Jurists of the formative, classical and modern periods are represented.

Index of Qurʾānic verses

In Islamic Legal Thought: A Compendium of Muslim Jurists, twenty-three scholars each contribute a chapter containing the biography of a distinguished Muslim jurist and a translated sample of his work. Jurists of the formative, classical and modern periods are represented.

Women and Divorce in the Islamic West: Three Cases

I examine here three short fatwās that were issued in the Islamic West in connection with divorce disputes. The first two cases took place in the sixth/twelfth century, one in Lisbon, the other in the vicinity of Ceuta; the third case took place in Bijāya in the ninth/fifteenth century. In all three cases, the female protagonist finds herself in an unwanted marriage. In the ensuing litigation, each woman uses her own knowledge of the law or knowledge acquired from a male relative or acquaintance to work the system in an effort to extricate herself from an undesirable situation. In order to overcome the asymmetry of the laws of divorce and to achieve her objective, each woman is compelled to engage in some form of deceit and/or prevarication.

Bernard G. Weiss, The Spirit of Islamic Law , Athens: University of Georgia Press, 1988. Pp. xiv + 211.

This study focuses on a Muslim legal science known in Arabic as usul al-fiqh, which elaborates the theoretical and methodological foundations of Islamic law. It outlines the main features of Muslim juristic thought, including the espousal of divine sovereignty and a fixation on divine texts.

45.00 (ISBN 0-8203-1977-5).

In an effort to circumvent the constraints of Islamic inheritance law, a Muslim proprietor may attempt to shift assets to his or her desired heir/s by means of an inter vivos transaction, e.g., a gift, acknowledgement of a debt, sale, or creation of a family endowment. In the present essay, I analyze a case that occurred in fifteenth-century Tunis in which a father, taking advantage of his role as the guardian of his minor children, engages in a series of financial transactions that appear to have as their goal the disinheritance of certain other children. The differing responses to this case by two Mālikī jurists provides an opportunity to explore the relationship between the choice of a judicial style and the direction of a judicial outcome.

The Art of the Judicial Opinion: On Tawlīj in Fifteenth-Century Tunis

Foreword Alfred Harris Preface 1. Law and culture: the appeal to analogy 2. Determining the indeterminable 3. Reason, intent, and the logic of consequence 4. Judicial discretion, state power, and the concept of justice Notes Bibliography Index.