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1351) on Proof Author(s): Baber Johansen Reviewed work(s): Source: Islamic Law and Society, Vol. 9, No. 2, Evidence in Islamic Law (2002), pp. 168-193 Published by: BRILL Stable URL: http://www.jstor.org/stable/3399324 . Accessed: 27/12/2011 17:04
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SIGNS AS EVIDENCE: THE DOCTRINE OF IBN TAYMIYYA (1263-1328) AND IBN QAYYIM AL-JAWZIYYA (D. 1351) ON PROOF BABER JOHANSEN* (EHESS, Paris) Abstract
Thefiqh doctrine on evidence, proof and procedureunderwent importantchanges during the Mamluk period. By rationalizing the concept of proof and evidence, authors such as Ibn Taymiyya, Ibn Qayyim al-Jawziyya and Ibn Farhun gave a new impetus to the doctrine of siydsa shar'iyya and defined the court procedure in such a way as to legalize judicial torture. Whether this development was in any way linked to the legal development that brought about the same results in Europe during the thirteenth and fourteenth centuries remains an open question.
THE CONCEPTOF EVIDENCEforms an important part of Sunni fiqh,
the system of legal and ethical normsacceptedby those Muslims who see the Prophet'sreligiouslife praxis,the Sunna,as the basis of Islamic normativity.This system of norms is addressedto the qadi, the judge who supportshis judgmentsby referingtofiqh norms,to the mufti,the these norms,to otherlegal legal andreligious councillorwho interprets specialists (fuqaha') and, finally, to all members of the Muslim community.The specialistsformedpartof a powerfullegal profession whose members, from the eighth century onwards, controlled the and development of the fiqh's religious judiciary, the interpretation and legal norms, as well as access to the legal profession.The period from the eighth to the tenthcenturyis, therefore,called 'the formative of Islamic period'(JosephSchacht)or 'the old period'(ChafikChehata) law. From the tenth centuryonwards, the fiqh specialists staffed the institutions thatproduced thejuristsandfixed the schooldoctrines taught in these colleges (maddris).The period from the tenth to the twelfth centuryis, for thatreason,called 'the classicalperiod'(ChafikChehata) of IslamicLaw. In bothperiods,membersof the legal professionplayed
I am grateful to David Powers for his help in editing this text and transforming my version of it into readable English. *
? KoninklijkeBrill NV, Leiden, 2002 Also available online - www.brill.nl
Islamic Law and Society 9, 2
that a rationalhumanbeing would. In this articleI will argue thatchangesin theirpositionbroughtaboutunderthe Mamluks(12501517). may help us to betterunderstand from the fourteenth procedurewhich.roughlyfromthe end of the eighthto the end of the twelfthcentury. 123-68. thatis.normally. It is highly improbable. Therefore. of his own choice. insofar as it emphasizes and underlinesa claim or a denial pronouncedin the presence of the qadi. centuryonwards.whereasthe refusalto takethe oathweakens the litigant's assertionsand.characterized Sunni law. De la violence (Paris: Odile Jacob. Enquetes 7 (1998). between sincerity and mendacity. und 14.The oath.zum Indizienbeweis: die Anerkennung der richterlichen Folter in islamischen Rechtsdoktrinen des 13. 1-46. and the oath of the partiesor theirrefusal to taketheoatharethe proofsthatserveas thebasis of a validjudgment1. 175-202. causes the qadi to give a negativejudgment. in fact. lie in orderto burdenhimself with obligations that he had not. Duringthe old andthe classical periods. in 'the post-classicalperiod'(ChafikChehata)of Islamic the new doctrineson proof and Law. testimonyand the defendant'srefusal 1 For the various types of evidence. in Franqoise Heritier (ed. The acknowledgement of the defendant.one has to look for an external factorthattips the balancein favor of one or the otherinterpretation. there are threetypes of proof:confession. 'La decouverte des choses qui parlent.Sunnifiqhdoctrineconcerning proof and procedurewas based on the notion that the most effective evidence is the word. then. . The witnesses' testimony is credible because the qadi checks their social and religious reputationcarefullybefore he admits their testimony in his court session. see my 'Verite et torture: ius commune et droit musulman entre le Xe et le XIIIe siecle'. incurred. the depositionof the witnesses.for example. lus Commune Zeitschriftfiir europdische Rechtsgeschichte.Basically. La legalisation de la torture judiciaire en droit musulman (XIIIeXIVe siecles)'. n? 28 (2001). These words do not necessarilyconstitutetruth:like all humanspeech acts they are ambiguousutterances. as the jurists say.They oscillate. Jahrhunderts'.SIGNS AS EVIDENCE 169 an importantrole in the politics of the majorcities of the easternand the western provincesof the Muslim polity. 1996).If one wants to determinewhether the speakersare sincereor mendacious.). is also an external factorthatstrengthens the assertionof one of the litigants. 'Vom Wort. Their reputationtips the balance in favor of their sincerity.the speaker'sdecision to make a confessionor to acknowledgean obligationis regardedas an external factorthat speaksin favor of his confession or acknowledgement.
the Sunna. The word of an to the sensoryexperienceof the individual. . not as a means to establish the truthof the facts. i. vol. II.The judge must issue a judgmenton the basis of facts that.Since the ninth century. Kitdb al-usul. A qadi who extorts a confession and then condemns and executes the 2 Abu BakrMuhammad b. ed. (Beirut n.170 BABER JOHANSEN to take an oath to affirm his denial of the plaintiff's claim.: Dar al-Ma'rifa. Such knowledge is to be found only in the revelation. and the consensus of the jurists (ijmd'). An extortedconfession is null and void. the Qur'an.the Sunna.he did not observe and concerningwhich he must rely on the observationof witnesses or the acknowledgementof the defendant. Only the Malikis deviate from this common principle.Their teaching constitutedan referencefor the thirteenthandfourteenth-century doctrines important that form the subject of this article.contrary provide 'indisputable and certain knowledge' ('ilm yaqin).most of the time.can never observer.n.The first type of indisputablycertain knowledge serves as the basis for the derivationof legal norms from the revelation. 112. Although the oath may strengthenthe claim of a plaintiffor a defendant.3rd ed.reprintof the 1907 Cairo edition). An utterancesupported by an externalfactorthatspeaksin its favor is not necessarily sincere or true. al-Mabsut. alternatively it may be the result of sensory experience. XVI. the second type is too often out of thejudge's reach. idem.e. 31. Abu l-Wafa' al-Afghani(Beirut: Dar al-Ma'rifa. requiretheir acceptance. Preciselybecause the utterancesof witnesses andpartiesare always the free choice of the speakeras to the content information'.d. many of theirimportant juristsjustify the applicationof tortureon the groundsof the defendant'sreputation. 141. They state that enunciations andthat (aqwal)always remain'ambiguousinformation'2 one accepts them as proof only because the Qur'anand the life-praxis of the prophet. All four Sunni schools of law construct theirdoctrines on the principle relatingto evidenceandtorture thatjudicial tortureis not a reliable and legitimate means to establish the truthof the facts. The dominantview of the other Sunnischools of law holds thattorture is unacceptable in a qadi'scourt.The jurists of all four Sunni schools the qadi'sability epistemologicalscepticismregarding displaya marked to distinguish between true and false statements. 29. Abi Sahl al-Sarakhsi.d). 114. vol. vol. 'ambiguous of his acknowledgementand his consent to its legal consequencesare necessary conditions for its validity.it does not have the same statusas the two otherforms of proof. XVII.
vol. accordingto strict-and. 8-15. probably. 24. will be himself condemnedto death3.Since the end of the eighth was establishedin secretandpublicprocedures century.). vol. Persons recognized by the 'purifier'and the qadi as enjoying a solid social and religious reputation are registered by the qadi as 'just witnesses' ('udut) who are integratedas a special category into the judicial apparatusand whose testimony is accepted as evidence. vol. 226-31. XIII. 254-58. 'the evidence that renders things clear'4. ed.This may be due to the fact that the validity of the witnesses' testimony. n.this was a majordivide between the Europeanius communeandthe classical doctrineof Sunni law. Idris al-Shafi'. 5Muwaffaq al-DinIbnQudama. Umm.).Throughout the firstthree-quarters of the thirteenth century.an act that deprives the qadi. of the most important element on which he may base his judgment. accordingto the Hanafis. 148.SIGNS AS EVIDENCE 171 defendanton the basis of the extortedconfession is.subjectto talio and. Muhammad Zuhri (Beirut: Dar al-Ma'rifa. Daral-Kutub (Beirut: al-Mughnl al-'Ilmiyya. 10. VI. the dominant doctrine of classical Muslimlaw regardsjudicial tortureas the sinful and criminal destructionof the trustworthiness of utterances. Muhammad b. that is. 31. n. If. vol. 1323H. 4 3 Johansen.We often findtheplaintiff'soathcombined with thetestimonyof one malewitness as a form of testimonysufficientto issue a judgment5. VI. Oathsplay an important role in the classicalfiqh doctrine. the judge who applies fiqh norms. 14. Sahnunb.al-Mudawwanaal-kubrd (Cairo: Matba'at al-Sa'ada.in the classical doctrineof Muslim law. XII. the 'purifier'(muzakki). is based on theirsocial andreligious standing.never applied-doctrine. XII. 141. Mabsut.7-12. The defendant's oathmay decide a case-temporarily-if the plaintiffhas no witnesses to supporthis claim and the defendantdoes not acknowledge it. Shafi'i. XVI.it is unknown in Muslim legal doctrine.). 17. vol. 119.d. Whereasthe torture of witnesses played an important role in Roman law and in the late medievaljudicial practiceof Europe. The testimony of eye-witnesses to a crime is accepted as evidence in the qadi's court sessions only after the muzakki has examined their reputation.this reputation a performedby special assistantof the qadi. 32. Whereas the ius commune. al-Umm.d. 16. 145. Sarakhsi.from the beginning of the thirteenth centuryonwards.'Indizienbeweis'. vol. Sa'id al-Tanukhi. 133.The classical authorscall such a deposition by two male Muslim witnesses 'bayyina'.recognizedjudicial tortureas a necessaryinstrument for the judiciary's investigation of cases. .
he may renewhis demand. and notes 13. and thereis reason to suspect certainpeople of responsibility for the violent deathbutinsufficientwitness testimony to establishthe crime. as a consequence of the mutual His judgmentin such a imprecation.his task is to direct the procedure and to pronounce. 43.a specialprocedure prevails. 1999]. see also the discussion (40 and 55-58) of whether the li'an is a testimony or an oath. V.In some narrowlydefined cases. Mudawwana. this question has major consequences. Preuve juridique et verite religieuse dans le Droit Islamique Hanefite'. case serves as a declarationof his inabilityto decide which of the two was lying and it thus legitimates the operative effect of the mutual imprecation. Studia Islamica. as evident from his argument.the dissolution of the marriage7. fascicule LXXII (1990). 'Le jugement comme preuve. Mughni. vol. Anothercase is thatof the qasama:a procedurein which a groupof co-jurorsswear fifty oaths accusing a person of homicide and which of the accusedperson.If the wife swears thather husband is lying. vol. may serveas the basis for the capitalpunishment If a personis found slain.This holds truefor mutualimprecation (li'an) which results when a husband accuses his wife of adultery without producingthe witnesses in supportof his claim and without her acknowledgingthe accusation. 14 and 20). IX.once the fifty oaths are sworn. 49. Legal and Ethical Norms in the Muslim Fiqh [Leiden: Brill. she is not punishedfor adulterynor is her husbandpunished for calumny. The punishment in the hereafter.The co-jurorsswear fifty oathsaccusingone specific memberof the suspectgroupof having killed the deceased. 45. Ibn Qudama. The Hanafis follow a differentprocedure in which the membersof the suspectgroup take fifty oaths in which they swear to their innocence. Mabsut. the plaintiff finds witnesses who supporthis claim. the accused must be executed. 285-99.172 BABER JOHANSEN after such a judgment. it is not the qadi's task to establish the truthof the matter. According to the Malikis and the Hanbalis. 436-38. 5-17 (reprinted in my Contingency in a Sacred Law. Sarakhsi. It is clearthatthe oaths swornin this proceduredo not constituteproof of the defendantsresponsibility. 444. Accordingto the Shafi'is. after which they arerequiredto pay blood money. he is requiredto pay blood money (diya). 2 states that one of the two necessarily lies and that the invocation of God's curse will fall on him or her. Baber Johansen. 7 Shafi'i. VII.andthejudge may thengive judgment in his favor6. vol. oaths may serve as the basis for a permanent judgment. vol. Umm. 6 . replaces the punishment of the qadi (see also 72-73).Thoughit is evident thatone of themis lying. 105. VI.
349-420. 192-93. which allows the co-jurorsto take these oaths even if they are living in Morocco at the time when the homicide took place in Mecca. VI. and 367-72).But it is also clearin the doctrine of the Malikis and the Hanbalis. Mudawwana. The be can witnessed. 1964). therefore. judge's writing. Familie und Obrigkeit im Hanafitischen Strafrecht'. cf. J. 2 vols. Both authors published their statements in 1964. Coulson. In his article Brunschvig demonstratedthat Maliki qadis in Tunisia and al-Andalusattributed greatimportanceto architectural evidence in conflicts aboutreal estate. A History of Islamic Law (Edinburgh: at the University Press. (Beirut:Dar al-Ma'rifa. 13. XII. XIX (1979). 11Robert Brunschvig. vol. Coulson states that in thefiqh 'any form of circumstantial evidence was totally inadmissible'". II. An Introduction to Islamic Law (Oxford: Oxford University Press. 7-35. Die Welt des Islams. 16.they still it into the formalcourtprocedure integrated developedby Muslimlaw: the cojurors'oaths consist of enunciations. Biddyat al-mujtahidwa-nihdyat al9h ed. In such a case. but only the co-jurors'belief in the accused person's responsibility8. and the article by Ruud Peters in this volume of ILS. mentionsearly muqtasid. seventeen years after Robert Brunschvig's path-breakingarticle.pronounced before the qadi to fixed rules cause for the and as a sufficient legal serving according decision. 127-55. Abdel Magid Turki. vol. 'Urbanismemedieval et Droit musulman'. see ibid. (Paris: Maisonneuve. 133-34. see my 'Eigentum. Revue des Etudes Islamiques (1947). They used master architectsandbricklayersof the towns and cities as expertsin cases in 8 Muhammadb. II. vol. Umm. 'Urbanisme medieval et droit musulman'.Joseph admitted'9 by thefiqh and Noel J. 125. where they remain accessible to his successor. Muslim criticism of this institution. 429-33.SIGNS AS EVIDENCE 173 This is obviousin the Hanafisolution. 1964). Ahmad b.l1 which-to judge from a recent article in Islamic Law and Society on the same subject-is not yet known to all authors working on the subject. the co-jurors'oaths do not establishthe truthof the facts. Circumstantial evidenceis also integrated intothishighlyformalized Schacht evidence is not holds that 'circumstantial procedure. 1-73 (reprintedin my Contingency. ed. For the debate-Malikis and Hanbalis versus Shafi'is and Hanafis. and preserved in the qadi's archive. .1988).Though this form of evidence was problematicalreadyto Muslimjurists of the twelfth century. a criticism attributedto the Umayyad caliph 'Umar b. 9 Joseph Schacht. 10N. Rushd. Etudes d'lslamologie. reprinted in Robert Brunschvig. 427-28. 96. 'Abd al-'Aziz. vol. recordedin oaths. vol.. XIII. For the Hanafi qasama. Shafi'i. 1976).
50. XV.. vol. 106.when-in the absenceof witnesses and acknowledgements-the mannerin which beams were put into a common wall was consideredby the Hanafijurists as an indicatorof the respective propertyrights of the litigating neighbours13. XIII. Jurists of threeof the four majorSunnilaw schools considerthe pregnancyof an unmarried woman as proof of her having engaged in illicit sexual relations. 17Mudawwana. But Sarakhsiuses the term 'the learned'(ahl al-'ilm or 'ulama') for other experts as well. 87-91. Ibrahimal-Lakhmi). Similarly value expertson weaving ('ulamd'al-hawka)wouldestablishthemarket of certaincloths andtextilesl4. vol. Umm). we can trace this use of expert knowledge in conflicts over property rightsback to the eleventhcentury. In the easternpart of the Muslim world. the defendsthe rightfulnessof appearances: all regard presumedproprietor him as the proprietor andcircumstantial evidencesupports appearances. 80.Her pregnancythus suffices to expose her to the prescribed hadd penalty for fornication'7. The statusof circumstantial evidenceis differentin penallaw. Yahya) al-Muzani. 88. 66. quality and mode of productionof the object in question'5.The Hanbalis. (Isma'il b. 113.1999).. roofs and windows of buildings12.174 BABER JOHANSEN which neighboursraisedconflictingclaims concerningthe walls.. however. vol. 67. vol.. In such a case. If he does so.produce witnesses who supporthis claim. as the jurists say. not to change it. 50ff. The presumedproprietor of a house can use circumstantialevidence to establish his rights against a plaintiff who claims to be the rightful owner of the house. Sarakhsi. 12 Sarakhsi. vol. on 'outward appearances' (zahir) and serves only to uphold the status quo. vol.the respectedrepresentativeof The text to which Brunschvigrefers has now been edited by Farid b. al-bunyan 13 14 Ibid. vol.The authoris Ibn al-Rami(Muhammad I'lan bi-ahkdm ([Tunis]:Markazal-Nashral-Jami'i. XVI. al-Mukhtasar (printed as vol. The plaintiff cannotbase his case on circumstantial evidence because he denies that the appearancesconstitutea valid proof of ownership. Mabsut. see ibid. 533. therefore. reject such reasoning:accordingto Ibn Qudama.alSulayman. thewitness testimonyprevailsover the circumstantial evidence of the defendant'6. 88. . Qadisoftenused differenttypes of expert knowledge regarding commercial commodities and real estate to determine the value. He must. XVII. b. IX of Shafi'i. 69. Mabsut.Circumstantialevidence is based. 16 Ibid. vol. 91. IX. 15Ibid. XVII. XVII. VII.
Herbody cannotspeakfor her.he conveys an opinion based on knowledge and. The materialindicatorsthatthe respective doctrinesrecognizedas evidenceunderpenalor civil law can. prove confession made undertorture-even if it implies the handingover of the corpus delicti-is null and void. al-Mudawwana. 1997). held thatif a suspectwho has been tortured hands over a corpse to the the this he or does not that committedthe crime.rely on expertopinion as the basis of his decision. proof knowledge qadi may thathe has acquiredeitherthroughhis personalobservationof the facts or from other sources-even outside of his court. A qadi police. XVI. Mughni. since the eighth century. however. 33376.the Malikishave violence18.LXIV.The impositionof capitalpunishment 18 vol. On the transmission of the qadi'sarchiveto his successor.thus. X. the mode by which he acquireshis knowledge is not subject to any control and is not registeredby the witnesses who attestto the qadi's procedure. vol. he may stand alone: his depositionis valid even without a second witness or co-jurors. The may proof qadi may. be integratedinto a formalized procedurebefore the qadi. circumstantial evidence in serve civil as a case. for that reason. 193 ff. who has them recordedas partof the documentation thathe must convey to his successor in orderto guaranteethe continuityof judicial procedure20. rather. there are clear procedurallimits to the admissibilityof physical evidence as proof under penal law-although the case of the pregnant unmarried woman indicatesthatthe juristswere more ready to accept circumstantialevidence in penal cases linked to female chastity and filiationthanin otherissues. As the Maliki and the Hanbali doctrines on corpus delicti show. She may have been the victim of sexual In the same way. fascicule 3 (July. therefore. The samedoes notholdtruefor an important typeof proofrecognized the Hanafi and as 'the qadi's the Shafi'i and classified by jurists The a use as knowledge' ('ilm al-qadi). The expertdoes not testify or take an oath.see my 'Formes de Langageet fonctionspubliques: temoinset offices dansla preuve stereotypes. par l'ecrit en droitmusulman'.The Hanafis and the Shafi'is accept this type of proof as sufficient for the in cases of intentionalhomicide. 93. In the absenceof witnesses or a confession. .SIGNS AS EVIDENCE 175 DamasceneHanbalismin the early thirteenth century. and the corpse cannot speak for itself19.only the woman herselfmay assertthather pregnancy was due to illicit sexualrelations.Arabica. 20 19 Ibn Qudama.
The Malikis systematically exceed these limits. for the Exceptfor Maliki doctrine.The Hanbali Ibn Qudamadefined ta'zir in these terms as late as the early thirteenth century22. Accordingto the classical jurists. 357. The legal doctrinedoes not define the crimes and torts to be punishedunderta'zir. or the proofs to be accepted in such cases. see Johansen. imprisonment. For the Hanafis. the proceduresby which they are judged. X. 394-409. 470-71. XII.thatis. calumny.capitalpunishmentandpunishment violation of God's claims are thus outside the scope of the 'corrective is explicitly excludedfromits range. fornication.therefore. vol.which gives political authorities-and also the qadi-the right to punish misdemeanoursand petty offences by discretionarypenalties imposed according to undefined procedures and proofs.The punishment'. this 'corrective punishment' may be imposed in order to defend the moral order of society-even if the recipient of the punishmenthas not been accused of committingany illegal act-merely because the authoritiesfear thathis presencewill have negative repercussionson the sexual moralityof membersof the community. Biddya. 'Eigentum' in Contingency. 'correctivepunishment'. In extreme cases. highway robbery and the consumptionof intoxicating drinks. vol. All Muslim schools of law without exception accept ta'zir. Classical fiqh doctrine attempts to guarantee the procedural 21 Malikissee al-Mudawwana. 148-49. 347-48.Both the procedureand the punishmentto be applied in trialsof correction (ta'zir)fall into therealmof thejudge's discretionary decisions.the penaltiesmust be lower thanthe lowest prescribedpunishment(hadd) for a violation of God's claims.for the debateamongthe schools see Ibn Rushd. see Johansen. for the . The only limits placed on this kind of punishmentare the maximum penalties that may be meted out to the defendants.fine and exile (banishment). theft.176 BABER JOHANSEN only sphereof the law in which they do not admitthis proof are crimes thatconstitute violationsof 'God's claims'.Judicialtorture 'correctivepunishment'. Maliki and Hanbali jurists reject this proof altogether because it jeopardizesthe rights of the defendant21. al-Mughni.Attemptsby prominent twelfth-century juriststo submittrials of correction(ta'zir) to the same procedurethat governs other penal trials in which a corporal punishmentis imposed on the defendant were of no avail. 22 Ibn Qudama. for the Hanafi position on ta'zir.consists of a restrictednumberof lashes.andit does not determinethe punishment. 'Eigentum' in Contingency.
This procedurefocused on the enunciationof utterancesas the basic form of evidence.the spokenword mustbe supported by externalfactors. therefore.and.which version of the facts is reliable. His judgmentremains valid so thatgovernthe choice long as he followed the formalrulesof procedure and scrutinyof the witnesses and the relation of the testimony to the judge's decision. the witnesses are acceptable.Even if the qadi does not decide between contradictory claims and does not hear is witnesses. The contesteddoctrineaccordingto which the 'qadi's knowledge' may replace all other means of proof as the basis of a judgmenthas never been accepted by Maliki and Hanbalijurists.and underwhat normsthese facts are to be subsumed.The jurists integratedthe types of admissibleevidence into a highly formalisticprocedure meantto insurestablerulesfor the qadi's decisions. In the presenceof the qadi. This holds true also for expert opinionregardingcircumstantial evidence.any validity that the confession might otherwisehave enjoyed. he is not acting as a neutralthirdpartywho assesses the legal of the conflictingutterances of partiesandwitnesses. This doctrineclearly is irreconcilable with thebasicprinciple elaborated of theformalprocedure the if the his as a means of by qadi applies personalknowledge jurists: proof. For this reason.butrather strength .such as social reputationor self-interest. which lend it additional social or psychological credibility. The validity of the qadi's judgmentdepends not on his graspingthe truthof the facts but on his abidingby formalrules of The qadiis the masterof the procedure: he decides whether procedure. the procedure based entirely on the utterancesof the litigants.a credibleutterancefrom a lie. Even if there is no torture.He is 'the deciding third' party who determinesthe outcome of a contradictorydebate.SIGNS AS EVIDENCE 177 rationality of the judge's handling of norms of different origin and character. of theirown free will (ikhtiyar)to lie to the qadi. as in the case of mutualimprecation(li'an). The qadibases his judgmenton his assessment of the legal strengthof these competingenunciations.Threeof the Sunni schools of law agree that a confession elicited undertortureis invalid because the act of torture destroys the credibilityof the utterance. The formalistic character of this procedure is manifested by the jurists' strong epistemological scepticism: they hold the qadis to be incapable of distinguishing.the partiesutter contradictoryclaims and their witnesses testify to differentversions of the disputedevents.But if witnesses decide.the testimonyof duly examinedwitnesses who are authorized to testify before the qadi does not guaranteethe truthfulnessof their deposition. he is not responsible.with certainty.
7-12. is protected neither by his knowledge of the defendant'sguilt nor by his competenceto impose a correctivepunishment(ta'zir). The qadi who tortures.suchas the social reputation additional or the legitimate self-interestof the litigants. of the procedural If the procedurehinges on the credibilityof the utterancesof parties.He is not entitled to initiate an 23 See my 'Vom Wort-zumIndizienbeweis'.In both cases the qadi's access to the evidence on which he bases his decision is not regulatedby any formalrule of procedure.with it.shouldbe condemnedto deathor subjectedto corporal punishment. the same time thathe deprivesthe spoken any legally (or written) word of its credibility. It is evident thata defendantwho is tortured does not speakin orderto tell the truth but in order to please his torturers. witnesses and experts. however. a weakening of the qadi's protection against criticism concerning his errors in fact. which is directly linked to the status of the utteranceas a decisive proof in a judicial trial. A judgmentcannotbe based on lies.178 BABER JOHANSEN with his own knowledge.The 'judge's knowledge' serves as a safety valve for the formalistic proceduralregime derived from the The same holds truefor the rules governing'the accusatoryprocedure. .torturedeprivesthe qadi of all legal andlegitimatemotivationsuponwhich to base his decision. the qadi should establish the facts on the basis of the testimony of witnesses and the acknowledgementof the defendant. the qadi who relies on evidence elicited by torturealso underminesthe status of the witnesses.the qadihimself. and a qadi who executedon thebasis of a confessionelicited knowinglyhas a defendant is torture a criminal he causes the defendant'sdeathwithout because by valid At reason23. the legitimacyof thejudicialdecision. The reasonis thatsuch a qadiundermines the rationality law and. This implies.One is therefore sure thathe lies.If the defendantwas known to have committedthe type of crime of which he was accused. among other things.accordingto classical on the strength Hanafidoctrine. If a qadi forces a defendantto confess andthencondemnshim to capitalor corporalpunishment undertorture of his confession. the qadi is still obligatedto pay his blood money.This is a clearrupture replacestheirstatements with theprinciple of the accusatory in whichthe qadiresponds procedure to the demandsof the partiesand settles their claims accordingto his assessment of their utterances. According to classical Sunni doctrine. and if such utterancesmust be supportedby of thewitnesses externalfactors. correctivepunishment'.
at the same time. delegatesresponsibiliy facts for establishingthe to the parties.such as the kdtibal-sirr or ndziral-awqdf. Anatolia and other regions had to create alliances with the leading Mamluks if they wanted to gain access to high offices in thejudicial andthe extra-judicial spheresof the political system. Iran.the legal doctrine uses a criterion that is subject to the control of the judiciary and that is producedby membersof the legal profession. As Carl F.SIGNS AS EVIDENCE 179 investigation:he has no power of inquisition.fromone functionalsphereto another.designed to protecthim fromcriticismconcerning his abilityto recognizefacts andto guarantee the authorityof the res judicata. In short.The new system tended . shields the judge from pressureexerted by litigants who want to see the authority truth of the resjudicataagainst recognized. activities to the higherechelons of the bureaucracy. with the litigantsandtheirwitnesses. formalisticcharacter therefore. and the experts. In making respect for formal procedure the main criterion for the legitimacy andlegal validity of the qadi'sjudgment.He has to rely on the parties who bring a case before him and the witnesses who they summon. state service became a careerin which one passed from one office to another.It is based on an epistemological scepticism according to which the qadi has access to reality mainly throughthe ambiguousutterancesof the litigants and witnesses. the 'ulama' who migrated to Egypt from Syria.Responsibilityfor the establishmentof facts resides mainly of fact does not.A qadi who torturesclearly no longer relies on witnesses to establishthe facts.andguarantees criticismbased on any errorof fact that the judge may have made. The situationof the legal profession changed underthe Mamluks (1250-1517). they enhance the qadi's decisionthe competenceof the legal makingpowerandthus serve to strengthen profession. Petry has shown. The 'corrective punishment' and the 'qadi's knowledge' compensate for any shortcomingsof the formal procedureand. Increasingly.he changes the logic and rationalityof the law of procedure. It relieves the judiciaryof the responsibilityfor establishingthe facts.the witnesses. of thejudicial procedureprotectsboth the The formalisticcharacter qadi and the rights of the defendant.An error invalidatethe qadi's judgment.Manyqidis movedfromthe sphereof legal andreligious For the legal elite. He is oversteppinghis powers and he diminishes the role of the witnesses. therefore. weaken its rationality.on the other hand. The of the procedure.the qadishipbecame a steppingstone for access to the highest offices of the bureaucracy.
the goal of the new doctrine is not to guarantee the rights of the butto protectthe publicinterestandthe abilityof the political defendant. Qarafi(1228-1285).thejurists Fourthly.judgmentscan be based not only on fiqh norms but also on political considerations and state interest.In his view.to whom he turnedfor help when trying to carry out his programof implementinga Sunni state. Secondly. Ibn Taymiyya and his disciple. In orderto realize his political and legal program. Consequently. they regard the dispensationof justice as a function to be fulfilled by all membersof the political elite. 1981). Texts written Maliki of the and and Hanbali thirteenth fourteenth by prominent jurists such as centuries. The Civilian Elite of Cairo in the Later Middle Ages (Princeton: Princeton University Press.Ibn Taymiyya was dependenton leading Mamluks and sultans (especially Muhammadb. Ibn Qayyim al-Jawziyya (d. organizedpoliticalpowerhad a religious dimension: it had the capacity and the function to protect the Sunni community 24 Carl F. they do not assert the legal profession's control over the judiciary. all bearmarksof this development:they addressnot only thejuristsandthe qadisbutalso the higherechelons of the bureaucracy and the militaryofficers as judges who are supposedto apply the law and guaranteethe social and political order. Firstly. Petry. the amir Sayf al-Din Arghun. and for reasons closely related to the previous point. Circumstantial evidence of all kinds assumes a prominentplace as a full and sufficient proof. anddirectlyrelatingto thisnew conceptionof proof. passim. authoritiesto controldisturbancesand lawlessness. Qalawun. These jurists deviated from the classical fiqh doctrine on proof and procedurein five respects. these juristshighlightthe model behaviourof charismatic figuresof the early Muslim community. were membersof the legal elite of the Mamlukstate.and the amir al-Afram).has the ability to determinethe truthand to base his judgment on it. by relying on signs and indicators. Thirdly.180 BABER JOHANSEN to increasethejudicial competenceof militaryofficers24. 1351) and-to a lesser degree-Ibn Farhun (1319-1397). . Ibn Qayim al-Jawziyya. Rather.but to downplay them. do not legitimize the new doctrine in terms of epistemological scepticism.Rather.their conception of proof is not centeredon the utterancesof litigants and witnesses. Finally.not in orderto justify the legal categoriesthatare the productof legal reasoning and its systematic constraints.the new doctrineis characterized by the optimistic conviction that the judge. IbnTaymiyya(1263-1328).
This program is encapsulated in the term 'siyasa shar'iyya'. Ibn 'Aqil. (Beirut:Dar al-Kutubal-'Ilmiyya. which I translate loosely as 'the political function of the sacred law'.1993). See the introduction and the translation by HenriLaoustin his Le Traite de Droit Public d'Ibn Taymiya. dependent on Sunni jurists aware of the political dimension of legal doctrine and judicial practice25.Traductionannotee de la Siyasa shar'iyya (Beirut:InstitutFran9aisde Damas. all of which are supposed to fulfil the hisba commandment. even if the Prophet did not institute [such practices] and even if no revelation has come down concerning them'.e. and those who refuse to follow it must be fought. not a system of rules and norms but the religious purpose underlying these norms in its practical political form. This law comprisesthe roots and branches of religion (usul al-den wa-furu'uhu). Ibn Qayyim al-Jawziyya characterizes this program by quoting the famous Baghdadi Hanbali of the late eleventh and the early twelfth century. 25 . such a political power organization was. I'lamal-muwaqqi'ln 'an rabbal-'Alamin. xxv-xxix.It consists of the Qur'anand the Sunna(of the Prophet). thejudgmentof the magistrate(wa-hukmuI-hakim)and those who control the markets [?] (mashyakhatal-shuyukh). 283. Ibn Qayyim al-Jawziyya develops a three-fold division of Islamic normativity (shar') in order to show that the political elite are at least as close to the religious foundation of the state as the jurists are. as follows: 'Politics consists of practices that bring human beings closer to salvation and keep them away from corruption.the political leadership competencies of the military commandersand of those in chargeof finances (siydsatal-umara'wa-wulatal-mal). quoting Ibn Taymiyya: to its original The term'Islamicnormativity' (shar')no longercorresponds in rather times it into three these is divided aspects: [first]the meaning. 26Ibn Qayyimal-Jawziyya. 1948). i. However. partIV.. to command the good and forbid the evil.Adherenceto this revealedlaw is obligatory. The concept underlines the necessity of a strong political apparatus for the practice of religion and assigns a religious dimension to the exercise of all public functions (wildydt). 4 partsin 2 vols.26The 'political function of the sacred law' is. In fact. and thus serve a meaningful religious purpose. thus. 2e ed. and that religious normativity accepts signs ('alamdt) and indications (amardt) as proofs. He says.the [fiscal] marketinspectorsand others. according to Ibn Taymiyya and Ibn Qayyim alJawziyya.SIGNS AS EVIDENCE 181 and the Sunni forms of Islam. revealed sacredlaw (al-shar' al-munazzal).
). The thirdaspectof Islamicnormativity consistsof 'alterednormativity' (shar' mubaddal).it seems to referto the personwho. 100. vol.). Anas.d.prevention as exercisinghis jurisdictionin the marketsof Damascusuntil al-mashayikh ca. Otherpeople do not have to agree with them. 96 refers to the shaykhs'appointedby the governor of the city from among the notable merchants'who 'were responsible for of fraud.vol. and this is the sphere of conflict (niza') and of individual legal reasoning(ijtihad). The term'mashyakhat al-shuyukh'is not entirelyclear to me. Ibn Qayyim al-Jawziyya then quotes the famous hadlth in which the Prophet says that a judge. He refersto the shaykh discipline. 199.he does not sin27..and collectionof taxes'. To orderthis is forbidden. even the Prophet himself. .1331H.n. VII. indeed. The jurists (with the exception of the magistrate) are conspicuously 27 Ibn Qayyim al-Jawziyya. 274). Muslim Cities in the Middle Ages (Cambridge: Harvard Matba'atal-Sa'ada. may award the latter an undeserved advantage. alUmm. he acts as an oppressorand a sinner. See 'Abd al-WalidalBaji. V. 28 Ibid.182 BABER JOHANSEN All of thesehave tojudge by 'therevealedsacredlaw' andarenot allowed to neglect it. such as is established by false testimony (shahaddt al- zawr)..To witness it is forbidden. al-Muntaqa sharh Muwatta' imam ddr al-hijra Malik b. 1967). by passing judgment. and by Malikb.so as to obstructthe claims of the otherheirs.g. VI. in fact. 182. But the Prophet warns that the fraudulent litigant will have to pay for the undeserved advantage in hellfire28. 1440 (ibid. If he does not know the inner aspect of the matter. 100-01. In this context. see also 198. a personwho instructssomeone who is mortally ill to acknowledge a debt vis-a-vis one of his heirs to which. The secondaspectof Islamicnormativity consistsof free interpretation (ta'awwul).Those who find a solutionto a problemthatcan be solved by independent legal reasoningareconfirmedin it.And if thejudge knowsthehiddenaspectof the matterandthat[itsvisible aspect] does not correspondto the truth. thatheir is not entitled. Ira Lapidus. may be led into error by the rhetoric of a fraudulent litigant and. In this field one judges by ignoranceand injusticeor one imposes in it the confirmation of thatwhich is null andvoid so as to cause the loss of thejust claim (li-idd'atal-haqq).e. underthe Mamluks. al-Turuq al-hukmiyya fi al-siyasa al-shar'iyya aw al-firasa al-mardiyya fi ahkam al-siyasa al-shar'iyya (Beirut: Dar al-Kutub al-'Ilmiyya. except if they producean indisputable argumentfrom the Book of God or the practiceof his Prophet. Such an institutionwould make sense in this context.and if he still judges [accordingto the false testimony]. This hadlthis alreadyquotedby Shafi'i. Anas (Cairo: markets..vol. 40. was nominatedby the authorities to securethe orderlycourse of affairsin the UniversityPress.
If these authorsare judges.It belongs to the sphere of 'free interpretation'and has binding force only when it is based on indisputabletexts from the Qur'anand the Sunna. not of legal normsor principles.Makdisi.directlyobligatedto apply the 'revealednormativity'. their practice is directly related to it. Norms and categories that are based merely on legal reasoningare bindingonly on theirauthors. and marketinspectors.the division of competenciesbetween the membersof the political elite is a matter of practicalexpediencey. The law as developed and interpretedby the jurists is not part of the 'revealed normativity'. magistrates(but not necessarily qadis).SIGNS AS EVIDENCE 183 absentfromthe realmof revealednormativity and so is theirconsensus as a source of law. is the 'alterednormativity'in which legally valid decisions normativity are based on false evidence or false confessions. Ibn 'Aqil Religion and Culture in Classical Islam (Edinburgh: Edinburgh UniversityPress. public revealed functionsin the stateadministration.e. or in which the aims ascribedto certainnorms are modified. Their practice is. i. procedural Members of the military and administrativeelite are. For this reason.but these do not oblige the rest of the political elite.I quote Ibn Taymiyya's treatiseon hisba: George Makdisi.fiscal officers. the personsaddressedby the Qur'an. the norms that they deduce throughtheir individual legal reasoning bind also those who are under their Insofaras thejuristsserveas magistrates. an interpretationof the revealed normativity. so that the norm producesan effect that contradictsthe intentionof the Lawgiver. 29 . 'natural theology'29. 69. perform jurisdiction.It is obvious that the critique of the 'altered normativity' implies an attack on the formalismof the classicalfiqh doctrine. for that reason.consequently. It adds a dimension to revealed normativitybut is neitherits only nor its most important Finally. also are the bound by they law. They may abide by theirown normativeconstructions.These arethe officialswho applythe 'revealednormativity' and.the Sunnaand 'naturaltheology' are mainly not jurists but rathermilitarycommanders. the worst aspect of representation.in his study of Ibn 'Aqil.Also. according to this doctrine. The jurists' norms are binding only when based on indisputableproof from the revealed law. refers to the field of 'the roots of branchesof religion' (not to be confused with the roots and branches of legal norms) as the necessaryknowledgeof religious truths. The 'roots and branchesof religion' referredto by IbnQayyimal-Jawziyyaarenot a legal discipline. 1997).
184 BABER JOHANSEN The generaland the particular of the public functionsand characteristics competenciesthatareconveyedto personswho exercisethe office depend on theexpressionsused. . He explains the situation of the judiciary in the contemporary Mamluk state by comparing it to that of the Maghrib: According to the political practice ('urf) in our time. Al-Hisba ft al-islam. see also Burhan al-Din Ibrahim ibn Farhun. It is competent and 'trials of also in civil litigation (mukhasamart).. for example.He has to check the status of those who inspect pious foundations and administer the property of orphans and other well-known things.31 30 Laoust(Paris:Geuthner. 31 Ibid. are religious offices (manasib diniyya). piously and satisfactorily. as is evident also from the enumeration of the public offices that follows. The sacredlaw defines none of this. suspicion'(da'awial-tuham)in which thereareneitherwrittendocuments (kitdb)nor witnesses. I. translation: 31. All of these functions. andthe politicalpractice('urf). 239. Traite sur la Hisba. in the regions of Syria and Egypt it is the militaryauthoritythatcarriesout the prescribed punishmentsfor the violation of God's claims (hudud)which involve mutilation (itlaf). In other countries. vol. and vice versa. See also Ibn Qayyim al-Jawziyya. for the competences of the qadi in Mamluk times. translation: 31(butsee also 29): 'Toutesles fonctions sociales dans l'islam ont le meme but: ordonner le bien et interdirele mal'. The Arabictermis jaml' al-wilayat. Ibn Taymiyya adds. At some times and in some places. such as the amputation of the thief's hand or the of the highwayrobberand similarthings.such as. Turuq.the militaryauthority merely to execute the ordersof the qadi. The qadi has to establish the legal claims [of individuals] and to judge in this matter. 1994). brawls (muddrabat). by Henri manahijal-ahkam(Cairo:Maktabatal-Kulliyyatal-Azhariyya. It serves Maghrib.and the text refersto 'public offices'. Arabic text: 8-9. Tabsirat al-Hukkdmfi usul al-aqdiya wa- Ibn Taymiyya. The same holds truefor the hisba and for the revenue administration30. trans.the circumstances.1986). 93. the flogging of the thief.It may also happen punishment that the military authorityimposes a punishmentthat does not involve mutilation. The office of the qadi is competent in these matters if there are written documents and witnesses. the qadishipembracescompetenciesthatat othertimes andin otherplaces fall underthe authorityof the military(wildyatal-harb). such as the has no judicialcompetenceat all. qualification for which is determined not by any particular form of professional training but by the capacity to perform them honestly. Arabictext: 8.
traduitset annot6s par E. 100. 190-2). The term 'qadi'. translatesmukhasamat as 'disputes'. and regional history. police produced The da'awl al-tuhamare certainlymisunderstood by Laoust:they concern a special kind of trial against suspectpeople (see below. Note that Laoust. Fagnan (Alger: Adolphe Jourdan. Of course. is a name that applies to each and every one who issues a decision in a conflict between two partiesor who arbitrates between them. 32 Mawerdi (Abou'l-Hasan 'Ali). bi-dhikr al-khitat wa' I-dthar (Cairo: Maktabat al-Thaqafa al-Diniyya.Turuq. political practice.or whetherhe was appointedin orderto judge accordingto the sacred law. or as the deputyof such a judge deciding in a conflict between parties. Al-siydsaal-shar'iyya Daral-JilandDaral-Afaqal-Jadida. although the political elite are not necessarily subject to the norms construed by the jurists.be ruledout thatthe Mamluk a sortof a proces-verbal. 1915). a deputy. vol.d.). on thatunderstanding.93.whereasthe qadi is competentif such documentsdo exist. Ibn Taymiyya emphasizes. in the name of the law. the competencies of the military authoritiesand the qadis would be rather thatbetweencivil law and publicorder). Unlike Mawardi. no matter whetherhe is a caliph. the distribution of competencies among different public functions is characterized as a matter of expediency. in other contexts.Ibn Taymiyyastatesthatthe military authoriesare competentwhen no writtendocumentsconcerningthe litigation are available. 'All al-Maqrizi. Kitdbal-mawa'izwa' 1-i'tibar 94. . a sultan.even if he judges (yahkum) nothingmorethanthe qualityof the handwriting among childrenwho turnedto him for this purpose33. II. on whichthejudgebasedhis decision. 221-22. not as a question that concerns the law. Ibn Taymiyya and Ibn Qayyim al-Jawziyya saw no reason to preserve certain competencies for the military and others for qadis.Hisba. fi islah al-ra'iwa' l-ra'iyya(Beirut: 1988). passim.the first two translations seem to be appropriate and mudarabdt (thoughmukhasamat may. simply refer to the distinctionbetween litigationand commendasand. pp. I do not understand what kind of writtendocumentsIbn Taymiyyais referring to if the text concernsa brawlbut it cannot. n. 33Taqiyyal-DinAbu'l-'Abbas Ahmadibn Taymiyya. who attempted to define. or a governor. Les Statuts gouvernementaux ou Regles de droit public et administratif. Ibn Qayyim al-Jawziyya. precisely because all magistrates are subject to the revealed law.muddrabat as 'echanges de coups' and da'awi al-tuham as 'accusations'.the quotation fromIbnTaymiyyashouldnot be read as a historicalreporton the state of affairs in the Maghrib. andTaqiyyal-DinAhmadb.SIGNS AS EVIDENCE 185 Thus. 16 (see the translation by HenriLaoust in Le Traitede droitpublic. the legal norms that govern public functions and the distribution of competencies among them32. 12). Cf.of course. In the context treatedby Ibn Taymiyya.
the jurist does not have to defend any particular school doctrine. so long as they fulfil this task. It does not distributecompetenciesamong offices.even the qadi who serves as member of the state's administrativeelite partakesof the leadershipcompetencies conceded by the revealed normativity to commanders and administrators. incapableof guaranteeing law and order. the charismatic members of the early Muslim community.al-Hisba. Consequently. generalizations.Rather. Ibn Qayyim al-Jawziyya. as they mistakenlybelieve. to a concern for the of the sacred to the reputation rightsof evildoers.which lead them to abstruse abstractions.They have been led to this mistakenassumptionby the juristsof the differentschools who cling to theirformalisticprocedures.in orderto follow the constraints of systematic reasoning. it does not matterwhich office fulfils which function.186 BABER JOHANSEN The sacredlaw does not distinguishbetween the judicial activities of differentpublic officials. one mustfollow the examples of the charismaticmembersof the early Muslim community. they constructabstractionsthat correspond neitherto the life experienceof the ordinary Muslimnorto the example of the charismaticmembersof the early Muslim community.34 A returnto the example of the charismaticmembers of the early communityis the only way in which the practicalvalidity of the sacred law in a Sunni state can be restored. 1314. and.such as the Prophet. Turuq.he has to producelegal and ethical normsthatcorrespondto the model of the pious ancestors. For the criticismof thefiqh jurists. and systematizations. see Ibn Taymiyya. All offices serve to commandthe good and forbidthe evil and. 269. The law is not only forjuristsandqadisbutalso for all stateofficials. Ibn Taymiyya and Ibn Qayyim al-Jawziyyaattackedthe classical schools for the formalism of theirprocedural law andthefactthat.which is detrimental 34 text: 40-46.on the one hand.the Companions of the Prophetand the generationthat followed them.the fourfirst caliphs. 267. 70-72. 11. not the normative constructionsof later jurists who deviatedfrom these examples.In order to returnto a correctunderstanding of the revealed law. Only a returnto the practical normsof the revealedlaw and a soberinterpretation of its meaningcan the state that the norms of persuade political authoritiesof the Sunni the law are not. on the other. they argued.andits application does not require any juristic sophistication. Arabic . French translation: 60-65. In a state that commandsthe good and forbids the evil. 104. 77-78.
SIGNS AS EVIDENCE 187 law and harmful to the public interest of the Muslim community. Ibn Taymiyya. 36 13-14. has antecedents in theHanafi Ibid.the indicator.'Ala' al-Din al-Kasani.).. Testimony regarding the circumstances under which a person acts (shahid al-hal) may serve to interpret the sense of her or his action and. In fact. VII. see also 24. Thosewho identifyit with two witnesses. This argument schoolthatreachbackto the eleventhcentury. 'instruction'(tabsira). 7. whether used in the singularor in the plural.227.This also holds truefor the saying of the Prophet..35 The central target of the accusations against classicalfiqh procedural law is the notion that proof must be established by the utterances of witnesses.it always signifies the argument. 100. attacked this notion. such as circumstantial to the is strongerthan of the This indicator pointing sincerity plaintiff.for the twelfthcentury. a proof that renders things clear. 'authoritative argument'(hujja).or the proof.'indicator'(daldlal).36 Ibn Qayyim then interprets a hadith from the Prophet as meaning that a sign may take the place of a proof. 35 Ibid.it never has the meaning of two witnesses. rather.n. According to the classical doctrine.d. if they are read properly. 39 and. therefore. vol. the deposition of a concurring testimony by two male witnesses is called bayyina. This statementmeansthatthe plaintiffmust corroborate his claim before one may judge in his favor.'proof' (burhan). The two witnesses form partof such evidence. can be identified with those signs which. the term 'bayyina' is a name for everythingthatrendersthe truthclear and demonstrates it. Mabsut. But there is no doubt that other types of clear proof may be indicators(dallala) strongerthan two witnesses. [the terms] 'clear proof' (bayyina). and even more so Ibn Qayyim al-Jawziyya.vol. or four. . See Sarakhsi. 'It is obligatory for the plaintiff to bring the proof that rendersthings clear'.12. therefore. and 'token' ('aldma) are all very close to each otherin meaning. information provided by witnesses. XVII.or one. enable a person in daily life as well as in legal litigation to decide correctly and to find the indicators that lead to the truth of the facts. Throughout his numerous writings Ibn Qayyim al-Jawziyya furnishes many instances that support his thesis that the notion of bayyina ought to be understood as clear proof and. When [the term] 'bayyina' is used in the Qur'an. 104. According to Ibn Qayyim alJawziyya. do not do justice to its namedfunction(musammd). Kitdbbadd'i'al-Sana'i' fi tartibal-shard'i' (Beirut:Dar al-Kutubal-'Ilmiyya. 126. 'sign' (aya).
214-15. This is a variationof an old debateamongjuristsconcerning the role of genderedor professionalpracticesas indicatorsof the ownership of moveableproperty. see also 25. 100. and his Companions. The physicalresemblencebetweena child belongs in and an adult male may serve as proof of paternityand affiliation41. 211. 38 Ibid. Ibid. Things. 40 210-11.who must rely on the verbal declarationsof acknowledgements. and the inscriptionon a wall that indicates the date on which a pious endowment was foundedservesas proofthatthe building to this endowment40. 105-106. 45 46 44Ibid. The judge must listen to this language and take into considerationthe signs it produces.testimony. 121. 99. Ibid. ..188 BABER JOHANSEN shouldbe consideredas 'clear proof'37.. that is their capacity to discover.andcircumstances may speakmore clearly and in a more trustworthylanguage than the words of the witnesses.social status.Turuq. mustbecomereadersof signs andmustnot content Judges. the case of tools claimed by two artisans with different skills.therefore. 135. Ibid.. He warns against the neglect of signs by jurists: 'Those who neglect signs and circumstantial evidence (al-amarat wa'l-'aldmat) [and leave them]withoutany legal consequencesparalyzemanylegal norms and cause many legal claims to perish'44. see also 67. themselves with being the deciding third in a contradictorydebate between two parties. 41 42 43Ibid..24.. Theirfirasa. 10. Ibid.96-98. All majormanualsrefer to this debate.and oaths or the defendant'srefusal to takean oath46. 39 Ibid. acknowledged Therefore. If a personwho claims to have lost an object describesits characteristics.Ibn Taymiyya and Ibn Qayyim al37Ibn Qayyim al-Jawziyya. 33-34. 216-36.Ibn Qayyim al-Jawziyya states.. 72. 98.. as such. 100. the relationshipbetweenthe skill practicedand the type of tool in question The Prophet may serve as proof of ownershipby one of the artisans42. 28-31.. 27.the judge has at his disposal a much largerrange of proofs than do the litigants who bring theircases to court.the sacredlaw has to accept them signs as 'clear proofs'43. 71-72. becomes the most importantqualification for their judicial activity and frees them from dependence on the utterancesof litigants and witnesses45. the signs describedserve as The brand on an to animal serves indicate the propertyrights proof38. produceand interpretsigns.. of its owner39. Consequently. Ibid. 67-68.
Therefore. Turkmen. Ibid. 45. 53 Ibid.urbanlumpen-proletariat. see also l'lam al-muwaqqi'in. 81.If the liquid boils and leaves If a man a dry residue. The anthropology of justice (Cambridge: Cambridge University Press 1989). Ibn Taymiyya specifies the Bedouin. establishes that this person is a thief51. The role of physical indicatorsas proof is much stronger than in the classical fiqh doctrine. soldierswho desertedthe army54. should be checked in the following manner:one brings the couple to a house where one can observe them.. 50.the physiognomist'sstatementaboutpaternityand The stolen object found in a person's custody affiliationis accepted50. cp. Suspicionmay be created by the fact that a person belongs to a social group that is consideredto be of dubiousloyalty to the law and the Sunni state. one sets fire to the liquid in orderto determinewhether it is spermor merely a white substance. Ibid.. 228-30. The motivations of the Moroccan judges are probably rather different from those of Ibn Taymiyya. militanturbangroupssuch as the 'ayyarunin Baghdad. Ibid. One tells the husband to ejaculate on a piece of cloth. Ibn Qayyim al-Jawziyya. Kurds. 54 Ibn Taymiyya. vol.. 6-7. as whose reactions to external stimulation can be liquids things the to draw observer a conclusion regardingtheir observed. general. I. On the importance of the social background of the parties for the decisions of judges in twentieth-century Morocco. peasants. 211-12. it is sperm and the marriageis maintained47. 7. 9.. Siyasa shar'iyya. 12. But signs areread not only on bodies and things. Then. see the vivid description of Lawrence Rosen.and the 'gang' 47 48 49 50 51 52 Ibid. Turuq. Good judges can discern the truthon the faces of the accused52. 68. Experts becomeindispensable aidstojudgesbecausetheyknowhow to interpret the language of things53.. Ibid. one exposes his eyes to the sun. in orderto determinewhether or not In short. 48-49.one treatsthe humanbody andits they reactto this stimulus48. 27. claims to have lost his eyesight after being attackedby anotherman. As examples.SIGNS AS EVIDENCE 189 Jawziyyaseem to be speakingin termsof a technologyof proofswhen woman's claim thatherhusbandis impotent they suggestthata married and that her marriagemust thereforebe dissolved. 230. because they do not lie49. .physical indicatorsare regarded physical as strongerevidence thanthe testimonyof witnesses. allowing state and In effects.. 63-4.
vol. Tabsirat al-Hukkdm. The woman who accuses a man of good reputation of having raped her will be punished for her This rule has a long historyin Maliki law. Turuq.282-83..190 BABER JOHANSEN Hereticsfall intothe samecategory56. 'Ayyar (F. Siyasa shar'iyya. 162. 225-50. 60Ibid.These trialsfollow special procedures 55 Ibid. See also EI2. vol. On the 'ayyarunsee ClaudeCahen. On the mansirin Cairoand Damascus. Morally suspect hobbies. Arabica 6 (1959). (mansir)in CairoandDamascus55. 58 Ibn Taymiyya. Turuq. pubs57. and by suspectreligious persuasionfeed into a special aboutwhich alljuristsof the Mamlukperiodinformus: 'trials procedure of suspicion' (da'awial-tuham). person and. and so do people who practicedespisedprofessions. Signs producedby social ties and social hierarchies. where we can accusation61..such as owners of andfemale andhomosexualprostitutes andprocurers58. Tabsirat alHukkdm. such as pigeon-breeding.IbnQayyimal-Jawziyyatells the story of a man who. consequences of innocence on the part logic of social position createsa presumption of thehigher-ranking personandrenderssuspectthe claim of the lowerrankingplaintiff.Turuq. The manwas immediatelypunishedandhis claimwent unheeded: not anybody can sue anybody60. 14-18.. 61 62 Ibn Farhun. Taeschner). But Ibn Taymiyya and Ibn transform the rule into a general principle Qayyim al-Jawziyya to which. 170.by occupation and ethnic ties.see IraLapidus. Ibn Farhun. 64. the claimantshouldalways be punished. II. 156.'Mouvements populaires et autonisme urbain dans l'Asie Musulmane du Moyen Age'. 167. 170-71. 101. therefore. 59Ibn Qayyim al-Jawziyya. s.73. he had given him. see also 181. asked Ibn Taymiyya to returna deposit that. 'Indizienbeweis'. 56 Ibn Qayyim al-Jawziyya. 174-75.if a manof lowerstatusmakesan accusationagainst according a higher-ranking memberof the society who enjoys a good reputation. 233-65. 63 Ibn Qayyim al-Jawziyya. II.becausehe injured the accused of his The must suffer the act63.113.92-93. 292.are also signs that create a These are not the only suspects.Any claim thatis justified suspicion59.Muslim Cities. note 44. 25-56. Johansen.he claimed. while in the presence of the sultan and Ibn Taymiyya. . 57 Ibid. Arabica 5 (1958). follow it from the Mudawwanaonwards62. contradictedby the prevailing hierarchicalrelations in a particular becausehis or her claim is society exposes the claimantto punishment.v. 279. directedagainstthe social order.
.. defendant's he threaten persuaded guilt.. the suspect and repeat this punishmentdaily75. vol. A person suspectedof hiding a fugitive criminalmay be imprisonedand beaten until he informs the authoritiesabout the whereaboutsof the One can administerup to 100 lashes per day on the body of fugitive74.they are institutedin order to command the good and forbid the evil66. 239. 265. 49. 93-94.these trials are consideredlegitimatewhenever a suspect. 64 65 . Turuq.. 79-81. a thiefinforms If. 103-04. Tabsirat al-Hukkdm. 67 Ibid.The political authorities decide if the public interestis sufficiently concernedfor them to order the inquiry67. 75 Ibid. These trials. 146. 98. Turuq. 265. 143. 76 Ibn Qayyim al-Jawziyya.be he a plaintiff. Turuq. imprisonedand torturedin orderto extractconfessionsfromthem76.the plaintiff and the witnesses give the legal process in such cases a particularcharacter. 70 Ibid. vol. the authoritiesabout the location where a stolen object is hidden. If thejudge is individuallyand submitthemto detailedinterrogation71. 3. the judge should hear them credible70. may of until and beaten he be suspected highway robberymay imprisoned informs the authoritiesof the hideout where his booty is hidden73.SIGNS AS EVIDENCE 191 and recognize proofs that are not generally acknowledged. 379-409.which do not dependon the claim of a privateplaintiff. 156. 61-62. 24. undertorture. Siyasa shar'iyya.suchtrialsmay be heardanddecidedwithout any witnesses or acknowledgements68. 28. Persons suspected of having committeda crime may be beaten..The reputationsof the defendant. 77. Eventually.. 68 Ibn Qayyim al-Jawziyya. 239.. 108. 24. 72 Ibid.a witness or a defendant. I. Turuq. 71 Ibid. 74 Ibid. Ibid. Underthe siyasa doctrinesof the neo-Hanbaliand Malikijurists of the Mamlukperiod. the censor (muhtasib)are entitledto make inquiriesinto the behaviour of suspectpeople65. 124. II.are designatedhisba trials. he Ibn Qayyim al-Jawziyya. A man of the him72. Siydsa shar'iyya. Mamluk The governoror militaryauthoritiesare competentto organizethem64. 69 Ibn Farhun.cannotbe convicted according to the procedural law of classical fiqh doctrine69. 240-42. Ibn Qayyim al-Jawziyya. Ibn Taymiyya.The jurists tell us thatthe suspectplaintiffmust take the oath in orderto make his claim If the witnesses are suspect. 73 Ibn Taymiyya.
9. vol. became part and parcel of post-classical legal doctrine79. 208. 194-99.occupation. 41. Ibn Qayyim al-Jawziyya. for the reception of the new doctrines in the Hanafi school in the fifteenth century.and the Maliki Ibn Farhun. for references to later caliphs who used torture see ibid. indicators. 77 78 ..fromthe fifteenth century onwards. Radd al-muhtdr 'ald al-durr al-mukhtdr(Cairo. vol. but at the same time accepts the new doctrine for suspect individuals and ethnic groups of all kinds.witnesses. These new doctrineshad a clearrationalizing tendency:they attacked the formalism of the old doctrine on procedureand proof. The use of tortureis legitimized by reference to the charismatic figures of the early Muslim community:as happens often in Islamic legal history. I. It is not the extortedconfession that serves as the basis of the judgmentbut ratherthe stolen object.Ibn Taymiyyaand Ibn Qayyim al-Jawziyya. the last important Hanafi author of the pre-colonial period in Damascus.insisted that the Prophet.Following a strategyadopted by Ibn 'Aqil at the beginningof the twelfth century. 79 See my 'Verite et Torture'. The reference to the model of charismaticleaders of the early Muslim community made it possible for Ibn Taymiyya and his followers to underminethe clearinterdictionof judicial torture classical Islamic thatcharacterizes law from the eighth to the twelfth centuries. their into reputation. they introducedthe notion of the sign as a clear and sufficient proof. I'lam al-muwaqqi'in. a new institutionmust be justified by a referenceto the practiceof the earlyMuslim community. Under the Mamluks.andbodily attributes that make it for or not the to decide whether signs possible judge plaintiffs. An immense array of new crimes for which capital punishment is imposed is accompanied by the legitimation of judicial torture of the suspect. 1889).and circumstantial evidence a status as proof. 166-67. 204. and they gave objects.which speaks for itself and establishesthe guilt of the suspect77. and defendantsmay be classified as suspects.192 BABER JOHANSEN may be punishedfor theft. Ibn 'Abidin. An impressive example of its influence on the late Ottoman understanding of procedural law is found in Ibn 'Abidin. religious persuasion. Ibn Qayyim al-Jawziyya. applies the classical doctrine to decent people with good reputation. 108. Turuq. In the classical doctrine.the first four caliphs and other Companionsof the Prophet torturedsuspects in orderto elicit signs of their guilt78.. the judge was a decision maker who made a utterancesof partiesand legal assessmentregardingthe contradictory Ibid. 161. 13. 40. See ibid. 7. the new doctrines of the neo-Hanbalis and Malikisintroduce notionsof proofandprocedure that. 81.. 212-213. III. They also transformedthe social ranking of persons.
the judge becomes a reader and producerof signs thathe manipulatesin orderto establishthe truthof the facts.his disciples andhis followers can hardlybe overestimated. 80 Sherman A. Jackson. Islamic Law and the State. takes an important step in the right direction. The introduction of judicial torture accompanies the rationalizationof the system of proof and procedurein the Near East as well as in thirteenth-century Europe.and (3) I find it hard to believe thatjuristsliving in Europeandthe NearEastin the thirteenth centurysimultaneouslyintroduceda process of rationalizationof the law accompaniedby the legitimationof judicial torturewithout there having been any mutualinfluenceandexchange.Threemajorquestionsremain to be answeredbefore we can develop a historical understanding of these new doctrinesin the Mamlukcontext:(1) we lack a historyof the of justice underthe Mamluks legal profession and the administration thatwouldenableus to speakwith confidenceabouttherelationbetween the Mamluksand the judicial elite80. .J. Brill. the importanceof the changes in the doctrine on introduced proof andprocedure by IbnTaymiyya.Whateverthe answer to these questions.They clearly bear witness to a changedintellectualand political climate. (2) we cannot really understand the reasoning that lies behind this process unless we have a better knowledge of the epistemology that underliesthe reasoningof jurists like Ibn Taymiyya and Ibn Qayyim al-Jawziyya. 1996).SIGNS AS EVIDENCE 193 witnesses. in the new doctrine of 'the political function of Islamic normativity' (siyasa shar'iyya). The Constitutional Jurisprudence of Shihab al-Din al-Qardfl (Leiden: E.
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