SHARIAsource

In this excerpt, Jalāl al-Dīn al-Dawānī (d. 908/1502–3), philosopher and chief judge of the southern Iranian province of Fars in the late fifteenth century CE, reports that the maẓālim courts were able to resolve many cases because of their ability to consider diverse forms of evidence. In contrast, he says that the traditional Islamic courts’ admission of only oral testimony could hamper Muslim judges’ ability to administer justice. In his chapter on circumstantial evidence in Justice and Leadership in Early Islamic Courts, Hossein Modarressi draws on Dawānī’s treatise and its illustration of how justice was obstructed in the traditional courts of his day through bureaucratic maneuvers orchestrated by the ʿudūl, or court clerks. The ʿudūl nitpicked at the specific wording of the petitions and various types of testimony, and they oversaw a lengthy process of determining the credibility of witnesses by bringing in further witnesses to testify for or against the main witnesses. Modarressi quotes Dawānī’s lament that as a consequence, “a small petition [lingered] around in the court for such a long time that the parties [got] fed up with the process. When the case is a criminal case, the purpose is completely lost” (115). Modarressi argues that these difficulties in traditional courts were exacerbated by the fact that Islamic legal procedure restricted judges to using testimony or oaths, and that these procedural rules were not open to modification.

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.

This is a reference to some of the various terms used in early sources to refer to Jaʿfar al-Ṣādiq and his followers, the Jaʿfarīs (e.g., aṣḥāb Jaʿfar), during and after Jaʿfar's lifetime.

This source is part of the Online Companion to Hossein Modarressi, Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law (Harvard University Press, 2022).

This is a reference to an early definition of Shīʿism by the Kūfan scholar Abān b. Taghlib (d. 141): "The Shīʿa are those who follow the opinion of ʿAlī when reports from the Prophet are contradictory, and the opinion of Jaʿfar b. Muḥammad [al-Ṣādiq] when reports from ʿAlī are contradictory."

This source is part of the Online Companion to Hossein Modarressi, Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law (Harvard University Press, 2022).

This is a reference to how Mālik b. Anas (the eponym of the Mālikī school of law) remembered Jaʿfar al-Ṣādiq: exceptional in his manners and religious devotion.

This source is part of the Online Companion to Hossein Modarressi, Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law (Harvard University Press, 2022).

This is a reference to the year 83 AH as the date of Jaʿfar al-Ṣādiq's birth. Hossein Modarressi notes that this is the preferred date of al-Ṣādiq's birth in most Shīʿī sources.

This source is part of the Online Companion to Hossein Modarressi, Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law (Harvard University Press, 2022).

This is a reference to Jaʿfar al-Ṣādiq's advice to a questioner to burn his astrological books. Hossein Modarressi cites this reference in his discussion of some of the features of al-Ṣādiq's personal life.

This source is part of the Online Companion to Hossein Modarressi, Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law (Harvard University Press, 2022).

This is a reference to the concentration of Jaʿfar al-Ṣādiq's large number of followers in Iraq in general and Kūfa in particular during his lifetime. Hossein Modarressi cites this reference in his discussion of some of the features of al-Ṣādiq's political stance.

This source is part of the Online Companion to Hossein Modarressi, Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law (Harvard University Press, 2022).

This is a reference to Jaʿfar al-Ṣādiq attending the Friday prayer with other Muslims, in contrast to some Muslims who did not pray with anyone who did not share their doctrinal tendencies. Hossein Modarressi cites this reference in his discussion of some of the features of al-Ṣādiq's rejection of sectarianism.

This source is part of the Online Companion to Hossein Modarressi, Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law (Harvard University Press, 2022).

This is a reference to ʿAlī's description of the Sunna of the Prophet. Hossein Modarressi argues that in the legal legacy of the Family of the Prophet, the Prophet's Sunna was next to the Qurʾān in importance.

This source is part of the Online Companion to Hossein Modarressi, Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law (Harvard University Press, 2022).

This is a reference to Jaʿfar al-Ṣādiq's use of term Āl Umayya rather than the more common term Banū Umayya to refer to the Umayyads. Hossein Modarressi draws on this reference to make the case that al-Ṣādiq's advice to his followers to follow that which contradicts the masses had no sectarian implications; rather, it was because the Umayyads had insisted on promoting beliefs and practices that explicitly contradicted the legal legacy of the House of the Prophet. 

This source is part of the Online Companion to Hossein Modarressi, Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law (Harvard University Press, 2022).

This is a reference to a report by Jaʿfar al-Ṣādiq that holds the original call to prayer (adhān) to have included a call to "the best of acts" (ḥayya ʿalā khayr al-ʿamal). Hossein Modarressi cites this report as an example of one of the differences between the legal legacy of the House of the Prophet and other legal schools with respect to cases concerning prayer.

This source is part of the Online Companion to Hossein Modarressi, Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law (Harvard University Press, 2022).

This is a reference to the common Medinan practice of women asking for their dowers before moving to the matrimonial home. Hossein Modarressi cites this reference to clarify the context surrounding Jaʿfar al-Ṣādiq's view with respect to when a wife may no longer be entitled to request her dower (in Kulaynī, Kāfī, 5:385-86).

This source is part of the Online Companion to Hossein Modarressi, Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law (Harvard University Press, 2022).

In his work entitled al-Ashbāh wa-l-Naẓāʾir, Ibn Nujaym (d. 969/1563), examines similar historical legal cases and fatwas through collecting substantive legal canons and interpretive legal canons that “distinguish, explain, and guide varied outcomes in cases with seemingly similar facts.” As a principal work authored early in the Ottoman Era collecting legal canons in Ḥanafī law, Muslim jurists of many schools frequently reference his work. For example, drafters of the Ottoman Code of 1869, also known as the Mecelle, primarily relied on this work to select 99 legal canons to preface a new commercial code based on Ḥanafī law that would both modernize and reform Ottoman law based on traditional or classical Islamic legal norms, through reference to legal canons.

For more, view the full print edition or see Intisar Rabb, Doubt in Islamic Law (Cambridge University Press 2015) and “Experiments in Tracking Canons across the Mecelle” (Islamic Law Blog, March 16, 2022).

The first extant investiture letter for a  ṣāḥib al-shurṭa can be found in a compendium of the rasāʼil (government letters) written by the head of the Buyid chancery in Baghdad, Abū Isḥāq Ibrāhīm al-Ṣābiʾ (d. 384/994). This letter was written for an official appointed as the ṣāḥib al-shurṭa over the city of Wāsiṭ in Iraq during the reign of the Buyid amir of Iraq, ʿIzz al- Dawla (r. 356-367/967-978). The text gives rare insight not only into the investiture genre for the shurṭa, but also into how his duties were shaped by sectarian conflicts raging in Iraq. 

This invesiture letter along with other rasāʼil were edited by  Iḥsān Dhūnūn al-Thāmirī in Diwān Rasāʾil al-Ṣābiʾ: the Registry of al-Ṣābiʾ Letters. London: Al-Furqān Islamic Heritage Foundation, 2017.  A scan of this investiture letter from Volume 1 has been made available. 

The fifth/eleventh al-Aḥkām al-Kubra, represents a new and unique legal genre for Islamic criminal justice. The treatise serves as an early example of nawāzil literature composed in al-Andalus made up of a combination of reports on legal cases coupled with the opinions and judgements of jurists and magistrates associated with it. These nawāzil also include criminal cases under the jurisdiction of the shurṭa. Ibn Sahl (d. 486/1093), a jurist living in Cordoba under the Jahwarids (r. 422– 461/1031–1069) and author of al-Aḥkām al-Kubra discusses actual crimes cases which occurred in Cordoba, and portrays the shurṭa working with jurists to arrive at a judgment. This detailed portrayal of jurists being involved in the realities of criminal justice is a distinctive element of this text. The case presented in this text is a murder of a man, allegedly perpetrated by his family, and the complex social-legal challenges of prosecuting such a case. 

The source is edited by Yaḥya Murād in Abū al-Aṣbagh ʿĪsā b. Sahl, Kitab al-Nawāzil al-aʻlām al-musamma Dīwān al-aḥkām al-kubrál. Cairo: Dār al-Hadith, 2007. Scans of this case have been made available.

Nishwār al-muḥāḍara 

The Nishwār al-muḥāḍara, a compilation of anecdotes, offers literary embellished stories which give insight into the realities of Islamic criminal justice. The fourth/tenth-century Baghdadi historian, judge, official, and litterateur ʿAlī al- Tanūkhī (d. 384/944), who served in the Buyid administration, wrote the Nishwār to explore in a literary manner the social, political, and legal complexities of Muslim societies in Iraq. This story provides a full-length criminal case narrated by the victim of comedic and dire circumstances who becomes falsely arrested for murder. An investigation is conducted to find the real culprits. Besides entertaining the readers, al-Tanūkhī wants to convey to his audience what he found was ideal criminal justice where a shurṭa scribe, the hero of the tale, uncovers the case through ingenuity and good police work without resorting to the torture of an innocent man.   

The source is edited by ʿAbbūd Shāljī in ʿAlī al- Tanūkhī, Nishwār al- muḥāḍarah wa-akhbār al-mudhākarah, 8 vols. Beirut: Dār Ṣādir, 1971. Scans of this story from volume 5 have been made available. 

The Siyāsat al-Mulūk is a mirror for princes written by an anonymous author sometime in the mid-fourth-tenth century. The author was likely a late Abbasid official in the financial administration who became a high official during the early Buyid era and wrote this treatise for the new rulers. In a chapter on the shurṭa, the text offers the most detailed administration of Islamic criminal justice in the Abbasid and Buyid periods. The author gives recommendations and instructions for the ṣāḥib al-shurṭa (chief criminal magistrate and police chief) based on how he should manage his various subordinates, inspect prisons, and patrol the city along with procedures not mentioned in other texts, such as the use of informants. Scans of the chapter on the shurṭa in this manuscript from Süleymaniye Library in Istanbul have been made available.

This investiture letter was written for a shiḥna (military governor) appointed over the Khorsanian city of Balkh,  found in the Saljūq secretarial compendium of ʿAtabat al-kataba. The  text was written by Muntajab al-Dīn al-Juwaynī  (After d. 552/1157), the head of the Saljūq chancery in Khurasan, and it provides a clearer understanding of criminal justice in the Near East during the sixth/twelfth century. 

The instructions al-Juwayni gives to the shiḥna of Balkh are reminiscent of other administrative texts related to criminal justice, such as Siyāsat al-Mulūk and the Buyid investiture letter for a ṣāḥib al-shurṭa of Wāsiṭ, but it also mentions that the enforcement of criminal law by the shiḥna had an intertwining of both siyāsa (governance) and shariʿa (sacred law).

This source was edited by Muḥammad Qazvīnī and Abbās Iqbāl in  Kitāb-i ʻatabat al-Katabah. Tehran: Shirkat-i Sahāmī-i Chāp, 1950. Scans of this investiture letter have been made available.