In these excerpts from his manual on judicial practice, Khaṣṣāf provides an overview of the approach to be taken by the qāḍīto consultation. The qāḍīmay consult jurists present in the city in which he operates. If his opinion agrees with theirs, he can judge accordingly; otherwise he should determine which view he deems closest to the truth. If he disagrees with the jurists of that city, he may consult other jurists outside the city, identify the most appropriate view, and act accordingly. He may also take into account the view of a single jurisconsult when he himself does not have a particular opinion on the issue at hand. If the consulted jurist has greater knowledge of Islamic law (fiqh) than does the qāḍī, and the latter is judicious, he may consider both views and choose the most appropriate and correct as the basis of his judgment. Finally, the qāḍīshould abstain from issuing a verdict that in his opinion is faulty, even if some jurisconsult has endorsed it. In her chapter in Justice and Leadership in Early Islamic Courts, Nahed Samour uses these excerpts to provide a vivid picture of judicial practice and, in particular, of the dynamics of judicial consultations between the judge and jurisconsults in a court setting. Samour concludes that consultations and joint deliberations were perceived as yielding a higher degree of accuracy compared with solitary deliberations.
This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts, ed. Intisar A. Rabb and Abigail Krasner Balbale(ILSP/HUP 2017)—a collection of primary sources and other material used in and related to the book.