Signs as Evidence: The Doctrine of Ibn Taymiyya (1263-1328) and Ibn Qayyim al-Jawziyya (d.1351) on ProofAuthor(s): Baber JohansenReviewed work(s):Source: Islamic Law and Society, Vol. 9, No. 2, Evidence in Islamic Law (2002), pp. 168-193Published by: BRILLStable 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 procedure underwent important changes 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 CONCEPT OF EVIDENCE forms an important part of Sunni fiqh, the system of legal and ethical norms accepted by those Muslims who see the Prophet's religious life praxis, the Sunna, as the basis of Islamic normativity. This system of norms is addressed to the qadi, the judge who supports his judgments by refering tofiqh norms, to the mufti, the legal and religious councillor who interprets these norms, to other legal specialists (fuqaha') and, finally, to all members of the Muslim community. The specialists formed part of a powerful legal profession whose members, from the eighth century onwards, controlled the judiciary, the interpretation and development of the fiqh's religious and legal norms, as well as access to the legal profession. The period from the eighth to the tenth century is, therefore, called 'the formative period' (Joseph Schacht) or 'the old period' (Chafik Chehata) of Islamic law. From the tenth century onwards, the fiqh specialists staffed the institutions that produced the jurists and fixed the school doctrines taught in these colleges (maddris). The period from the tenth to the twelfth century is, for that reason, called 'the classical period' (Chafik Chehata) of Islamic Law. In both periods, members of the legal profession played

* I am grateful to David Powers for his help in editing this text and trans- forming my version of it into readable English.

? Koninklijke Brill NV, Leiden, 2002 Also available online - www.brill.nl

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an important role in the politics of the major cities of the eastern and the western provinces of the Muslim polity. In this article I will argue that changes in their position brought about under the Mamluks (1250- 1517), that is, in 'the post-classical period' (Chafik Chehata) of Islamic Law, may help us to better understand the new doctrines on proof and procedure which, from the fourteenth century onwards, characterized Sunni law.

During the old and the classical periods, roughly from the end of the eighth to the end of the twelfth century, Sunnifiqh doctrine concerning proof and procedure was based on the notion that the most effective evidence is the word. The acknowledgement of the defendant, the deposition of the witnesses, and the oath of the parties or their refusal to take the oath are the proofs that serve as the basis of a valid judgment1. These words do not necessarily constitute truth: like all human speech acts they are ambiguous utterances. They oscillate, as the jurists say, between sincerity and mendacity. If one wants to determine whether the speakers are sincere or mendacious, one has to look for an external factor that tips the balance in favor of one or the other interpretation. It is highly improbable, for example, that a rational human being would, of his own choice, lie in order to burden himself with obligations that he had not, in fact, incurred. Therefore, the speaker's decision to make a confession or to acknowledge an obligation is regarded as an external factor that speaks in favor of his confession or acknowledgement. The witnesses' testimony is credible because the qadi checks their social and religious reputation carefully before he admits their testimony in his court session. Their reputation tips the balance in favor of their sincerity. The oath, insofar as it emphasizes and underlines a claim or a denial pronounced in the presence of the qadi, is also an external factor that strengthens the assertion of one of the litigants, whereas the refusal to take the oath weakens the litigant's assertions and, normally, causes the qadi to give a negative judgment. Basically, then, there are three types of proof: confession, testimony and the defendant's refusal

1 For the various types of evidence, see my 'Verite et torture: ius commune et droit musulman entre le Xe et le XIIIe siecle', in Franqoise Heritier (ed.), De la violence (Paris: Odile Jacob, 1996), 123-68; 'La decouverte des choses qui parlent. La legalisation de la torture judiciaire en droit musulman (XIIIe- XIVe siecles)', Enquetes 7 (1998), 175-202; 'Vom Wort- zum Indizienbeweis: die Anerkennung der richterlichen Folter in islamischen Rechtsdoktrinen des 13. und 14. Jahrhunderts', lus Commune Zeitschriftfiir europdische Rechtsge- schichte, n? 28 (2001), 1-46.

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to take an oath to affirm his denial of the plaintiff's claim. Although the oath may strengthen the claim of a plaintiff or a defendant, it does not have the same status as the two other forms of proof.

An utterance supported by an external factor that speaks in its favor is not necessarily sincere or true. The jurists of all four Sunni schools display a marked epistemological scepticism regarding the qadi's ability to distinguish between true and false statements. They state that enunciations (aqwal) always remain 'ambiguous information'2 and that one accepts them as proof only because the Qur'an and the life-praxis of the prophet, the Sunna, require their acceptance. The word of an observer, contrary to the sensory experience of the individual, can never provide 'indisputable and certain knowledge' ('ilm yaqin). Such

knowledge is to be found only in the revelation, i.e. the Qur'an, the Sunna, and the consensus of the jurists (ijmd'); alternatively it may be the result of sensory experience. The first type of indisputably certain knowledge serves as the basis for the derivation of legal norms from the revelation, not as a means to establish the truth of the facts; the second type is too often out of the judge's reach. The judge must issue a judgment on the basis of facts that, most of the time, he did not observe and concerning which he must rely on the observation of witnesses or the acknowledgement of the defendant.

Precisely because the utterances of witnesses and parties are always 'ambiguous information', the free choice of the speaker as to the content of his acknowledgement and his consent to its legal consequences are necessary conditions for its validity. All four Sunni schools of law construct their doctrines relating to evidence and torture on the principle that judicial torture is not a reliable and legitimate means to establish the truth of the facts. An extorted confession is null and void. Only the Malikis deviate from this common principle. Since the ninth century, many of their important jurists justify the application of torture on the grounds of the defendant's reputation. Their teaching constituted an important reference for the thirteenth- and fourteenth-century doctrines that form the subject of this article. The dominant view of the other Sunni schools of law holds that torture is unacceptable in a qadi's court. A qadi who extorts a confession and then condemns and executes the

2 Abu Bakr Muhammad b. Abi Sahl al-Sarakhsi, al-Mabsut, 3rd ed. (Beirut n.d.: Dar al-Ma'rifa; reprint of the 1907 Cairo edition), vol. XVI, 112, 114, vol. XVII, 29, 31; idem, Kitdb al-usul, ed. Abu l-Wafa' al-Afghani (Beirut: Dar al-Ma'rifa, n.d), vol. II, 141.

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defendant on the basis of the extorted confession is, according to the Hanafis, subject to talio and, according to strict-and, probably, never applied-doctrine, will be himself condemned to death3. Throughout the first three-quarters of the thirteenth century, this was a major divide between the European ius commune and the classical doctrine of Sunni law. Whereas the ius commune, from the beginning of the thirteenth century onwards, recognized judicial torture as a necessary instrument for the judiciary's investigation of cases, the dominant doctrine of classical Muslim law regards judicial torture as the sinful and criminal destruction of the trustworthiness of utterances, an act that deprives the qadi, the judge who applies fiqh norms, of the most important element on which he may base his judgment.

Whereas the torture of witnesses played an important role in Roman law and in the late medieval judicial practice of Europe, it is unknown in Muslim legal doctrine. This may be due to the fact that the validity of the witnesses' testimony, in the classical doctrine of Muslim law, is based on their social and religious standing. Since the end of the eighth century, this reputation was established in secret and public procedures performed by a special assistant of the qadi, the 'purifier' (muzakki). 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 integrated as a special category into the judicial apparatus and whose testimony is accepted as evidence. 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. The classical authors call such a deposition by two male Muslim witnesses 'bayyina', that is, 'the evidence that renders things clear'4.

Oaths play an important role in the classicalfiqh doctrine. We often find the plaintiff's oath combined with the testimony of one male witness as a form of testimony sufficient to issue a judgment5. The defendant's oath may decide a case-temporarily-if the plaintiff has no witnesses to support his claim and the defendant does not acknowledge it. If,

3 Johansen, 'Indizienbeweis', 7-12. 4 Sarakhsi, Mabsut, vol. XVI, 119, 145, 148; Muhammad b. Idris al-Shafi',

al-Umm, ed. Muhammad Zuhri (Beirut: Dar al-Ma'rifa, n.d.), vol. VI, 226-31. 5 Muwaffaq al-Din Ibn Qudama, al-Mughnl (Beirut: Dar al-Kutub al-'Ilmiyya,

n.d.), vol. XII, 8-15; Sahnun b. Sa'id al-Tanukhi, al-Mudawwana al-kubrd (Cairo: Matba'at al-Sa'ada, 1323H.), vol. XII, 133, 141, vol. XIII, 10, 14, 16, 24, 31, 32; Shafi'i, Umm, vol. VI, 17, 254-58.

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after such a judgment, the plaintiff finds witnesses who support his claim, he may renew his demand, and the judge may then give judgment in his favor6. In some narrowly defined cases, oaths may serve as the basis for a permanent judgment. This holds true for mutual imprecation (li'an) which results when a husband accuses his wife of adultery without producing the witnesses in support of his claim and without her acknowledging the accusation. If the wife swears that her husband is lying, she is not punished for adultery nor is her husband punished for calumny. Though it is evident that one of them is lying, it is not the qadi's task to establish the truth of the matter; his task is to direct the procedure and to pronounce, as a consequence of the mutual imprecation, the dissolution of the marriage7. His judgment in such a case serves as a declaration of his inability to decide which of the two was lying and it thus legitimates the operative effect of the mutual imprecation.

Another case is that of the qasama: a procedure in which a group of co-jurors swear fifty oaths accusing a person of homicide and which may serve as the basis for the capital punishment of the accused person. If a person is found slain, and there is reason to suspect certain people of responsibility for the violent death but insufficient witness testimony to establish the crime, a special procedure prevails. The co-jurors swear fifty oaths accusing one specific member of the suspect group of having killed the deceased. According to the Malikis and the Hanbalis, once the fifty oaths are sworn, the accused must be executed. According to the Shafi'is, he is required to pay blood money (diya). The Hanafis follow a different procedure in which the members of the suspect group take fifty oaths in which they swear to their innocence, after which they are required to pay blood money. It is clear that the oaths sworn in this procedure do not constitute proof of the defendants responsibility.

6 Baber Johansen, 'Le jugement comme preuve. Preuve juridique et verite religieuse dans le Droit Islamique Hanefite', Studia Islamica, fascicule LXXII (1990), 5-17 (reprinted in my Contingency in a Sacred Law. Legal and Ethical Norms in the Muslim Fiqh [Leiden: Brill, 1999], 436-38, 444, and notes 13, 14 and 20).

7 Shafi'i, Umm, vol. V, 285-99; Mudawwana, vol. VI, 105; Sarakhsi, Mabsut, vol. VII, 43, 45, 49, see also the discussion (40 and 55-58) of whether the li'an is a testimony or an oath; this question has major consequences. Ibn Qudama, Mughni, vol. IX, 2 states that one of the two necessarily lies and that the invocation of God's curse will fall on him or her. The punishment in the hereafter, as evident from his argument, replaces the punishment of the qadi (see also 72-73).

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This is obvious in the Hanafi solution. But it is also clear in the doctrine of the Malikis and the Hanbalis, which allows the co-jurors to take these oaths even if they are living in Morocco at the time when the homicide took place in Mecca. In such a case, the co-jurors' oaths do not establish the truth of the facts, but only the co-jurors' belief in the accused person's responsibility8. Though this form of evidence was problematic already to Muslim jurists of the twelfth century, they still integrated it into the formal court procedure developed by Muslim law: the cojurors' oaths consist of enunciations, pronounced before the qadi according to fixed legal rules and serving as a sufficient cause for the judge's decision. The oaths, therefore, can be witnessed, recorded in writing, and preserved in the qadi's archive, where they remain accessible to his successor.

Circumstantial evidence is also integrated into this highly formalized procedure. Joseph Schacht holds that 'circumstantial evidence is not admitted'9 by thefiqh and Noel J. Coulson states that in thefiqh 'any form of circumstantial evidence was totally inadmissible'". Both authors published their statements in 1964, seventeen years after Robert Brunschvig's path-breaking article, 'Urbanisme medieval et Droit musulman',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. In his article Brunschvig demonstrated that Maliki qadis in Tunisia and al-Andalus attributed great importance to architectural evidence in conflicts about real estate. They used master architects and bricklayers of the towns and cities as experts in cases in

8 Muhammad b. Ahmad b. Rushd, Biddyat al-mujtahid wa-nihdyat al- muqtasid, 9h ed. (Beirut: Dar al-Ma'rifa, 1988), vol. II, 427-28, mentions early Muslim criticism of this institution, a criticism attributed to the Umayyad caliph 'Umar b. 'Abd al-'Aziz. For the debate-Malikis and Hanbalis versus Shafi'is and Hanafis, see ibid., 429-33; cf. Mudawwana, vol. XII, 133-34, XIII, 13, 16; Shafi'i, Umm, vol. VI, 96. For the Hanafi qasama, see my 'Eigentum, Familie und Obrigkeit im Hanafitischen Strafrecht', Die Welt des Islams, vol. XIX (1979), 1-73 (reprinted in my Contingency, 349-420, and 367-72); and the article by Ruud Peters in this volume of ILS.

9 Joseph Schacht, An Introduction to Islamic Law (Oxford: Oxford University Press, 1964), 192-93.

10 N. J. Coulson, A History of Islamic Law (Edinburgh: at the University Press, 1964), 125.

11 Robert Brunschvig, 'Urbanisme medieval et droit musulman', Revue des Etudes Islamiques (1947), 127-55; reprinted in Robert Brunschvig, Etudes d'lslamologie, ed. Abdel Magid Turki, 2 vols. (Paris: Maisonneuve, 1976), vol. II, 7-35.

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which neighbours raised conflicting claims concerning the walls, roofs and windows of buildings12. In the eastern part of the Muslim world, we can trace this use of expert knowledge in conflicts over property rights back to the eleventh century, when-in the absence of witnesses and acknowledgements-the manner in which beams were put into a common wall was considered by the Hanafi jurists as an indicator of the respective property rights of the litigating neighbours13. Similarly experts on weaving ('ulamd' al-hawka) would establish the market value of certain cloths and textilesl4. Qadis often used different types of expert knowledge regarding commercial commodities and real estate to determine the value, quality and mode of production of the object in question'5. Circumstantial evidence is based, as the jurists say, on 'outward appearances' (zahir) and serves only to uphold the status quo, not to change it. The presumed proprietor of a house can use circumstantial evidence to establish his rights against a plaintiff who claims to be the rightful owner of the house. In such a case, the presumed proprietor defends the rightfulness of appearances: all regard him as the proprietor and circumstantial evidence supports appearances. The plaintiff cannot base his case on circumstantial evidence because he denies that the appearances constitute a valid proof of ownership. He must, therefore, produce witnesses who support his claim. If he does so, the witness testimony prevails over the circumstantial evidence of the defendant'6.

The status of circumstantial evidence is different in penal law. Jurists of three of the four major Sunni law schools consider the pregnancy of an unmarried woman as proof of her having engaged in illicit sexual relations. Her pregnancy thus suffices to expose her to the prescribed hadd penalty for fornication'7. The Hanbalis, however, reject such reasoning: according to Ibn Qudama, the respected representative of

12 The text to which Brunschvig refers has now been edited by Farid b. Sulayman. The author is Ibn al-Rami (Muhammad b. Ibrahim al-Lakhmi), al- I'lan bi-ahkdm al-bunyan ([Tunis]: Markaz al-Nashr al-Jami'i, 1999).

13 Sarakhsi, Mabsut, vol. XVII, 87-91. 14 Ibid., vol. XV, 88. But Sarakhsi uses the term 'the learned' (ahl al-'ilm

or 'ulama') for other experts as well; see ibid., vol. VII, 66. 15 Ibid., vol. XIII, 106. 16 Ibid., vol. XVII, 67, 69, 80, 88, 91. 17 Mudawwana, vol. XVI, 50ff; (Isma'il b. Yahya) al-Muzani, al-Mukhtasar

(printed as vol. IX of Shafi'i, Umm), 533; Sarakhsi, Mabsut, vol. IX, 50, vol. XVII, 113.

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Damascene Hanbalism in the early thirteenth century, only the woman herself may assert that her pregnancy was due to illicit sexual relations. Her body cannot speak for her. She may have been the victim of sexual violence18. In the same way, since the eighth century, the Malikis have held that if a suspect who has been tortured hands over a corpse to the qadi or the police, this does not prove that he committed the crime. A confession made under torture-even if it implies the handing over of the corpus delicti-is null and void, and the corpse cannot speak for itself19.

In the absence of witnesses or a confession, circumstantial evidence may serve as proof in a civil case. The qadi may, therefore, rely on expert opinion as the basis of his decision. The expert does not testify or take an oath; rather, he conveys an opinion based on knowledge and, for that reason, he may stand alone: his deposition is valid even without a second witness or co-jurors.

As the Maliki and the Hanbali doctrines on corpus delicti show, there are clear procedural limits to the admissibility of physical evi- dence as proof under penal law-although the case of the pregnant unmarried woman indicates that the jurists were more ready to accept circumstantial evidence in penal cases linked to female chastity and filiation than in other issues. The material indicators that the respective doctrines recognized as evidence under penal or civil law can, however, be integrated into a formalized procedure before the qadi, who has them recorded as part of the documentation that he must convey to his successor in order to guarantee the continuity of judicial procedure20.

The same does not hold true for an important type of proof recognized by the Hanafi and the Shafi'i jurists and classified as 'the qadi's knowledge' ('ilm al-qadi). The qadi may use as a proof knowledge that he has acquired either through his personal observation of the facts or from other sources-even outside of his court; thus, the mode by which he acquires his knowledge is not subject to any control and is not registered by the witnesses who attest to the qadi's procedure. The Hanafis and the Shafi'is accept this type of proof as sufficient for the imposition of capital punishment in cases of intentional homicide. The

18 Ibn Qudama, Mughni, vol. X, 193 ff. 19 al-Mudawwana, vol. XVI, 93. 20 On the transmission of the qadi's archive to his successor, see my 'Formes

de Langage et fonctions publiques: stereotypes, temoins et offices dans la preuve par l'ecrit en droit musulman', Arabica, LXIV, fascicule 3 (July, 1997), 333- 76.

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only sphere of the law in which they do not admit this proof are crimes that constitute violations of 'God's claims', that is, fornication, calumny, theft, highway robbery and the consumption of intoxicating drinks. Maliki and Hanbali jurists reject this proof altogether because it jeopardizes the rights of the defendant21.

All Muslim schools of law without exception accept ta'zir, 'corrective punishment', which gives political authorities-and also the qadi-the right to punish misdemeanours and petty offences by discretionary penalties imposed according to undefined procedures and proofs. The legal doctrine does not define the crimes and torts to be punished under ta'zir, and it does not determine the punishment, the procedures by which they are judged, or the proofs to be accepted in such cases. In extreme cases, this 'corrective punishment' may be imposed in order to defend the moral order of society-even if the recipient of the punishment has not been accused of committing any illegal act-merely because the authorities fear that his presence will have negative repercussions on the sexual morality of members of the community. Both the procedure and the punishment to be applied in trials of correction (ta'zir) fall into the realm of the judge's discretionary decisions. Attempts by prominent twelfth-century jurists to submit trials of correction (ta'zir) to the same procedure that governs other penal trials in which a corporal punishment is imposed on the defendant were of no avail. The only limits placed on this kind of punishment are the maximum penalties that may be meted out to the defendants. According to the classical jurists, the penalties must be lower than the lowest prescribed punishment (hadd) for a violation of God's claims. Except for Maliki doctrine, capital punishment and punishment for the violation of God's claims are thus outside the scope of the 'corrective punishment'. Judicial torture is explicitly excluded from its range. The 'corrective punishment', therefore, consists of a restricted number of lashes, imprisonment, fine and exile (banishment). The Hanbali Ibn Qudama defined ta'zir in these terms as late as the early thirteenth century22.

Classical fiqh doctrine attempts to guarantee the procedural

21 For the Hanafis, see Johansen, 'Eigentum' in Contingency, 357; for the Malikis see al-Mudawwana, vol. XII, 148-49; for the debate among the schools see Ibn Rushd, Biddya, 470-71.

22 Ibn Qudama, al-Mughni, vol. X, 347-48; for the Hanafi position on ta'zir, see Johansen, 'Eigentum' in Contingency, 394-409. The Malikis systematically exceed these limits.

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rationality of the judge's handling of norms of different origin and character. The jurists integrated the types of admissible evidence into a highly formalistic procedure meant to insure stable rules for the qadi's decisions. This procedure focused on the enunciation of utterances as the basic form of evidence. In the presence of the qadi, the parties utter contradictory claims and their witnesses testify to different versions of the disputed events. The qadi bases his judgment on his assessment of the legal strength of these competing enunciations. Even if the qadi does not decide between contradictory claims and does not hear witnesses, as in the case of mutual imprecation (li'an), the procedure is based entirely on the utterances of the litigants. This holds true also for expert opinion regarding circumstantial evidence. The formalistic character of this procedure is manifested by the jurists' strong epistemological scepticism: they hold the qadis to be incapable of distinguishing, with certainty, a credible utterance from a lie. For this reason, the spoken word must be supported by external factors, such as social reputation or self-interest, which lend it additional social or psychological credibility. Three of the Sunni schools of law agree that a confession elicited under torture is invalid because the act of torture destroys the credibility of the utterance, and, therefore, any validity that the confession might otherwise have enjoyed. Even if there is no torture, the testimony of duly examined witnesses who are authorized to testify before the qadi does not guarantee the truthfulness of their deposition. But if witnesses decide, of their own free will (ikhtiyar) to lie to the qadi, he is not responsible. His judgment remains valid so long as he followed the formal rules of procedure that govern the choice and scrutiny of the witnesses and the relation of the testimony to the judge's decision. The validity of the qadi's judgment depends not on his grasping the truth of the facts but on his abiding by formal rules of procedure. The qadi is the master of the procedure: he decides whether the witnesses are acceptable, which version of the facts is reliable, and under what norms these facts are to be subsumed. He is 'the deciding third' party who determines the outcome of a contradictory debate. The contested doctrine according to which the 'qadi's knowledge' may replace all other means of proof as the basis of a judgment has never been accepted by Maliki and Hanbali jurists. This doctrine clearly is irreconcilable with the basic principle of the formal procedure elaborated by the jurists: if the qadi applies his personal knowledge as a means of proof, he is not acting as a neutral third party who assesses the legal strength of the conflicting utterances of parties and witnesses, but rather

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replaces their statements with his own knowledge. This is a clear rupture with the principle of the accusatory procedure in which the qadi responds to the demands of the parties and settles their claims according to his assessment of their utterances. The 'judge's knowledge' serves as a safety valve for the formalistic procedural regime derived from the accusatory procedure. The same holds true for the rules governing 'the corrective punishment'. In both cases the qadi's access to the evidence on which he bases his decision is not regulated by any formal rule of procedure.

The qadi who tortures, however, is protected neither by his knowledge of the defendant's guilt nor by his competence to impose a corrective punishment (ta'zir). If a qadi forces a defendant to confess under torture and then condemns him to capital or corporal punishment on the strength of his confession, the qadi himself, according to classical Hanafi doctrine, should be condemned to death or subjected to corporal punishment. If the defendant was known to have committed the type of crime of which he was accused, the qadi is still obligated to pay his blood money. The reason is that such a qadi undermines the rationality of the procedural law and, with it, the legitimacy of the judicial decision. If the procedure hinges on the credibility of the utterances of parties, witnesses and experts, and if such utterances must be supported by additional external factors, such as the social reputation of the witnesses or the legitimate self-interest of the litigants, torture deprives the qadi of all legal and legitimate motivations upon which to base his decision. It is evident that a defendant who is tortured does not speak in order to tell the truth but in order to please his torturers. One is therefore sure that he lies. A judgment cannot be based on lies, and a qadi who knowingly has a defendant executed on the basis of a confession elicited by torture is a criminal because he causes the defendant's death without any legally valid reason23. At the same time that he deprives the spoken (or written) word of its credibility, the qadi who relies on evidence elicited by torture also undermines the status of the witnesses, which is directly linked to the status of the utterance as a decisive proof in a judicial trial. This implies, among other things, a weakening of the qadi's protection against criticism concerning his errors in fact. According to classical Sunni doctrine, the qadi should establish the facts on the basis of the testimony of witnesses and the acknowledgement of the defendant. He is not entitled to initiate an

23 See my 'Vom Wort-zum Indizienbeweis', 7-12.

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investigation: he has no power of inquisition. He has to rely on the parties who bring a case before him and the witnesses who they summon. Responsibility for the establishment of facts resides mainly with the litigants and their witnesses. An error of fact does not, therefore, invalidate the qadi's judgment. A qadi who tortures clearly no longer relies on witnesses to establish the facts. He is overstepping his powers and he diminishes the role of the witnesses. In short, he changes the logic and rationality of the law of procedure, designed to protect him from criticism concerning his ability to recognize facts and to guarantee the authority of the res judicata.

The formalistic character of the judicial procedure protects both the qadi and the rights of the defendant. It is based on an epistemological scepticism according to which the qadi has access to reality mainly through the ambiguous utterances of the litigants and witnesses. The formalistic character of the procedure, therefore, delegates responsibiliy for establishing the facts to the parties, the witnesses, and the experts. It relieves the judiciary of the responsibility for establishing the facts, shields the judge from pressure exerted by litigants who want to see truth recognized, and guarantees the authority of the resjudicata against criticism based on any error of fact that the judge may have made. In making respect for formal procedure the main criterion for the legitimacy and legal validity of the qadi's judgment, the legal doctrine uses a criterion that is subject to the control of the judiciary and that is produced by members of the legal profession. The 'corrective punishment' and the 'qadi's knowledge' compensate for any shortcomings of the formal procedure and, at the same time, weaken its rationality; on the other hand, they enhance the qadi's decision- making power and thus serve to strengthen the competence of the legal profession.

The situation of the legal profession changed under the Mamluks (1250-1517). As Carl F. Petry has shown, the 'ulama' who migrated to Egypt from Syria, Iran, Anatolia and other regions had to create alliances with the leading Mamluks if they wanted to gain access to high offices in the judicial and the extra-judicial spheres of the political system. Increasingly, the qadiship became a stepping stone for access to the highest offices of the bureaucracy, such as the kdtib al-sirr or ndzir al-awqdf. Many qidis moved from the sphere of legal and religious activities to the higher echelons of the bureaucracy. For the legal elite, state service became a career in which one passed from one office to another, from one functional sphere to another. The new system tended

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to increase the judicial competence of military officers24. Texts written by prominent Maliki and Hanbali jurists of the thirteenth and fourteenth centuries, such as Qarafi (1228-1285), Ibn Taymiyya (1263-1328), Ibn Qayyim al-Jawziyya (d. 1351) and-to a lesser degree-Ibn Farhun (1319-1397), all bear marks of this development: they address not only the jurists and the qadis but also the higher echelons of the bureaucracy and the military officers as judges who are supposed to apply the law and guarantee the social and political order.

These jurists deviated from the classical fiqh doctrine on proof and procedure in five respects. Firstly, they do not assert the legal profession's control over the judiciary. Rather, they regard the dispensation of justice as a function to be fulfilled by all members of the political elite. Consequently, judgments can be based not only on fiqh norms but also on political considerations and state interest. Secondly, and for reasons closely related to the previous point, these jurists highlight the model behaviour of charismatic figures of the early Muslim community, not in order to justify the legal categories that are the product of legal reasoning and its systematic constraints, but to downplay them. Thirdly, their conception of proof is not centered on the utterances of litigants and witnesses. Circumstantial evidence of all kinds assumes a prominent place as a full and sufficient proof. Fourthly, and directly relating to this new conception of proof, the jurists do not legitimize the new doctrine in terms of epistemological scepticism. Rather, the new doctrine is characterized by the optimistic conviction that the judge, by relying on signs and indicators, has the ability to determine the truth and to base his judgment on it. Finally, the goal of the new doctrine is not to guarantee the rights of the defendant, but to protect the public interest and the ability of the political authorities to control disturbances and lawlessness.

Ibn Taymiyya and his disciple, Ibn Qayim al-Jawziyya, were members of the legal elite of the Mamluk state. In order to realize his political and legal program, Ibn Taymiyya was dependent on leading Mamluks and sultans (especially Muhammad b. Qalawun, the amir Sayf al-Din Arghun, and the amir al-Afram), to whom he turned for help when trying to carry out his program of implementing a Sunni state. In his view, organized political power had a religious dimension: it had the capacity and the function to protect the Sunni community

24 Carl F. Petry, The Civilian Elite of Cairo in the Later Middle Ages (Prince- ton: Princeton University Press, 1981), passim.

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and the Sunni forms of Islam. However, such a political power organization was, according to Ibn Taymiyya and Ibn Qayyim al-

Jawziyya, dependent on Sunni jurists aware of the political dimension of legal doctrine and judicial practice25.

This program is encapsulated in the term 'siyasa shar'iyya', which I translate loosely as 'the political function of the sacred law'. Ibn

Qayyim al-Jawziyya characterizes this program by quoting the famous

Baghdadi Hanbali of the late eleventh and the early twelfth century, Ibn 'Aqil, as follows: 'Politics consists of practices that bring human

beings closer to salvation and keep them away from corruption, even if the Prophet did not institute [such practices] and even if no revelation has come down concerning them'.26 The 'political function of the sacred law' is, thus, not a system of rules and norms but the religious purpose underlying these norms in its practical political form. 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), all of which are supposed to fulfil the hisba commandment, i.e. to command the good and forbid the evil, and thus serve a meaningful religious purpose. In fact, 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, and that religious normativity accepts signs ('alamdt) and indications (amardt) as proofs. He says, quoting Ibn Taymiyya:

The term 'Islamic normativity' (shar') no longer corresponds to its original meaning; rather in these times it is divided into three aspects: [first] the revealed sacred law (al-shar' al-munazzal). It consists of the Qur'an and the Sunna (of the Prophet). Adherence to this revealed law is obligatory, and those who refuse to follow it must be fought. This law comprises the roots and branches of religion (usul al-den wa-furu'uhu), the political leadership competencies of the military commanders and of those in charge of finances (siydsat al-umara' wa-wulat al-mal), the judgment of the magistrate (wa-hukmu I-hakim) and those who control the markets [?] (mashyakhat al-shuyukh), the [fiscal] market inspectors and others.

25 See the introduction and the translation by Henri Laoust in his Le Traite de Droit Public d'Ibn Taymiya. Traduction annotee de la Siyasa shar'iyya (Beirut: Institut Fran9ais de Damas, 1948), xxv-xxix.

26 Ibn Qayyim al-Jawziyya, I'lam al-muwaqqi'ln 'an rabb al-'Alamin, 2e ed., 4 parts in 2 vols. (Beirut: Dar al-Kutub al-'Ilmiyya, 1993), part IV, 283.

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All of these have to judge by 'the revealed sacred law' and are not allowed to neglect it.

The second aspect of Islamic normativity consists of free interpretation (ta'awwul), and this is the sphere of conflict (niza') and of individual legal reasoning (ijtihad). Those who find a solution to a problem that can be solved by independent legal reasoning are confirmed in it. Other people do not have to agree with them, except if they produce an indisputable argument from the Book of God or the practice of his Prophet.

The third aspect of Islamic normativity consists of 'altered normativity' (shar' mubaddal), such as is established by false testimony (shahaddt al-

zawr). In this field one judges by ignorance and injustice or one imposes in it the confirmation of that which is null and void so as to cause the loss of the just claim (li-idd'at al-haqq), e.g., a person who instructs someone who is mortally ill to acknowledge a debt vis-a-vis one of his heirs to which, in fact, that heir is not entitled, so as to obstruct the claims of the other heirs. To order this is forbidden. To witness it is forbidden. And if the judge knows the hidden aspect of the matter and that [its visible aspect] does not correspond to the truth, and if he still judges [according to the false testimony], he acts as an oppressor and a sinner. If he does not know the inner aspect of the matter, he does not sin27.

Ibn Qayyim al-Jawziyya then quotes the famous hadlth in which the Prophet says that a judge, indeed, even the Prophet himself, may be led into error by the rhetoric of a fraudulent litigant and, by passing judgment, may award the latter an undeserved advantage. But the

Prophet warns that the fraudulent litigant will have to pay for the undeserved advantage in hellfire28.

The jurists (with the exception of the magistrate) are conspicuously

27 Ibn Qayyim al-Jawziyya, 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, n.d.), 100. The term 'mashyakhat al-shuyukh' is not entirely clear to me. In this context, it seems to refer to the person who, under the Mamluks, was nominated by the authorities to secure the orderly course of affairs in the markets. Ira Lapidus, Muslim Cities in the Middle Ages (Cambridge: Harvard University Press, 1967), 96 refers to the shaykhs 'appointed by the governor of the city from among the notable merchants' who 'were responsible for discipline, prevention of fraud, and collection of taxes'. He refers to the shaykh al-mashayikh as exercising his jurisdiction in the markets of Damascus until ca. 1440 (ibid., 274). Such an institution would make sense in this context.

28 Ibid., 100-01, see also 198. This hadlth is already quoted by Shafi'i, al- Umm, vol. VI, 199, vol. VII, 40; and by Malik b. Anas. See 'Abd al-Walid al- Baji, al-Muntaqa sharh Muwatta' imam ddr al-hijra Malik b. Anas (Cairo: Matba'at al-Sa'ada, 1331H.), vol. V, 182.

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absent from the realm of revealed normativity and so is their consensus as a source of law. The 'roots and branches of religion' referred to by Ibn Qayyim al-Jawziyya are not a legal discipline. Makdisi, in his study of Ibn 'Aqil, refers to the field of 'the roots of branches of religion' (not to be confused with the roots and branches of legal norms) as 'natural theology'29, the necessary knowledge of religious truths. Also, the persons addressed by the Qur'an, the Sunna and 'natural theology' are mainly not jurists but rather military commanders, fiscal officers, magistrates (but not necessarily qadis), and market inspectors. These are the officials who apply the 'revealed normativity' and, consequently, their practice is directly related to it. The law as developed and interpreted by the jurists is not part of the 'revealed normativity'. It belongs to the sphere of 'free interpretation' and has binding force only when it is based on indisputable texts from the Qur'an and the Sunna. It adds a dimension to revealed normativity but is neither its only nor its most important representation. Finally, the worst aspect of normativity is the 'altered normativity' in which legally valid decisions are based on false evidence or false confessions, or in which the aims ascribed to certain norms are modified, so that the norm produces an effect that contradicts the intention of the Lawgiver. It is obvious that the critique of the 'altered normativity' implies an attack on the procedural formalism of the classicalfiqh doctrine.

Members of the military and administrative elite are, according to this doctrine, directly obligated to apply the 'revealed normativity'. Their practice is, for that reason, an interpretation of the revealed normativity. The jurists' norms are binding only when based on indisputable proof from the revealed law. Norms and categories that are based merely on legal reasoning are binding only on their authors. If these authors are judges, the norms that they deduce through their individual legal reasoning bind also those who are under their jurisdiction. Insofar as the jurists serve as magistrates, i.e. perform public functions in the state administration, they also are bound by the revealed law. They may abide by their own normative constructions, but these do not oblige the rest of the political elite. For this reason, the division of competencies between the members of the political elite is a matter of practical expediencey, not of legal norms or principles. I quote Ibn Taymiyya's treatise on hisba:

29 George Makdisi, Ibn 'Aqil Religion and Culture in Classical Islam (Edinburgh: Edinburgh University Press, 1997), 69.

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The general and the particular characteristics of the public functions and competencies that are conveyed to persons who exercise the office depend on the expressions used, the circumstances, and the political practice ('urf). The sacred law defines none of this. At some times and in some places, the qadiship embraces competencies that at other times and in other places fall under the authority of the military (wildyat al-harb), and vice versa. The same holds true for the hisba and for the revenue administration30.

All of these functions, Ibn Taymiyya adds, are religious offices (manasib diniyya), qualification for which is determined not by any particular form of professional training but by the capacity to perform them

honestly, piously and satisfactorily. 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, in the regions of

Syria and Egypt it is the military authority that carries out the prescribed punishments for the violation of God's claims (hudud) which involve mutilation (itlaf), such as the amputation of the thief's hand or the punishment of the highway robber and similar things. It may also happen that the military authority imposes a punishment that does not involve mutilation, such as, for example, the flogging of the thief. It is competent also in civil litigation (mukhasamart), brawls (muddrabat), and 'trials of suspicion' (da'awi al-tuham) in which there are neither written documents (kitdb) nor witnesses.

The office of the qadi is competent in these matters if there are written documents and witnesses. The qadi has to establish the legal claims [of individuals] and to judge in this matter. He has to check the status of those who inspect pious foundations and administer the property of orphans and other well-known things. In other countries, such as the Maghrib, the military authority has no judicial competence at all. It serves merely to execute the orders of the qadi.31

30 Ibn Taymiyya, Al-Hisba ft al-islam. Traite sur la Hisba, trans. by Henri Laoust (Paris: Geuthner, 1994), Arabic text: 8, translation: 31(but see also 29): 'Toutes les fonctions sociales dans l'islam ont le meme but: ordonner le bien et interdire le mal'. The Arabic term is jaml' al-wilayat, and the text refers to 'public offices', as is evident also from the enumeration of the public offices that follows.

31 Ibid., Arabic text: 8-9, translation: 31. See also Ibn Qayyim al-Jawziyya, Turuq, 93, 239; for the competences of the qadi in Mamluk times, see also Burhan al-Din Ibrahim ibn Farhun, Tabsirat al-Hukkdm fi usul al-aqdiya wa- manahij al-ahkam (Cairo: Maktabat al-Kulliyyat al-Azhariyya, 1986), vol. I,

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Thus, the distribution of competencies among different public functions is characterized as a matter of expediency, political practice, and regional history, not as a question that concerns the law, precisely because all magistrates are subject to the revealed law, although the

political elite are not necessarily subject to the norms construed by the jurists. Unlike Mawardi, who attempted to define, in the name of the law, the legal norms that govern public functions and the distribution of competencies among them32, Ibn Taymiyya and Ibn

Qayyim al-Jawziyya saw no reason to preserve certain competencies for the military and others for qadis. The term 'qadi', Ibn Taymiyya emphasizes,

is a name that applies to each and every one who issues a decision in a conflict between two parties or who arbitrates between them, no matter whether he is a caliph, a sultan, a deputy, or a governor; or whether he was appointed in order to judge according to the sacred law; or as the deputy of such a judge deciding in a conflict between parties, even if he judges (yahkum) nothing more than the quality of the handwriting among children who turned to him for this purpose33.

94; and Taqiyy al-Din Ahmad b. 'All al-Maqrizi, Kitdb al-mawa'iz wa' 1-i'tibar bi-dhikr al-khitat wa' I-dthar (Cairo: Maktabat al-Thaqafa al-Diniyya, n.d.), vol. II, 221-22. Of course, the quotation from Ibn Taymiyya should not be read as a historical report on the state of affairs in the Maghrib.

Note that Laoust, Hisba, translates mukhasamat as 'disputes', muddrabat as 'echanges de coups' and da'awi al-tuham as 'accusations'. In the con- text treated by Ibn Taymiyya, the first two translations seem to be appropriate (though mukhasamat and mudarabdt may, in other contexts, simply refer to litigation and commendas and, on that understanding, the distinction between the competencies of the military authorities and the qadis would be rather that between civil law and public order). Ibn Taymiyya states that the military authories are competent when no written documents concerning the litigation are available, whereas the qadi is competent if such documents do exist. I do not understand what kind of written documents Ibn Taymiyya is referring to if the text concerns a brawl but it cannot, of course, be ruled out that the Mamluk police produced a sort of a proces-verbal, on which the judge based his decision. The da'awl al-tuham are certainly misunderstood by Laoust: they concern a special kind of trial against suspect people (see below, pp. 190-2).

32 Mawerdi (Abou'l-Hasan 'Ali), Les Statuts gouvernementaux ou Regles de droit public et administratif, traduits et annot6s par E. Fagnan (Alger: Adolphe Jourdan, 1915), passim.

33 Taqiyy al-Din Abu'l-'Abbas Ahmad ibn Taymiyya, Al-siydsa al-shar'iyya fi islah al-ra'i wa' l-ra'iyya (Beirut: Dar al-Jil and Dar al-Afaq al-Jadida, 1988), 16 (see the translation by Henri Laoust in Le Traite de droit public, 12). Cf. Ibn Qayyim al-Jawziyya, Turuq, 93, 100.

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The sacred law does not distinguish between the judicial activities of different public officials. It does not distribute competencies among offices. All offices serve to command the good and forbid the evil and, so long as they fulfil this task, it does not matter which office fulfils which function. Consequently, even the qadi who serves as member of the state's administrative elite partakes of the leadership compe- tencies conceded by the revealed normativity to commanders and administrators.

In a state that commands the good and forbids the evil, the jurist does not have to defend any particular school doctrine. Rather, he has to produce legal and ethical norms that correspond to the model of the pious ancestors, the charismatic members of the early Muslim community, such as the Prophet, the four first caliphs, the Companions of the Prophet and the generation that followed them. The law is not only for jurists and qadis but also for all state officials, and its application does not require any juristic sophistication. Ibn Taymiyya and Ibn Qayyim al-Jawziyya attacked the classical schools for the formalism of their procedural law and the fact that, in order to follow the constraints of systematic reasoning, they construct abstractions that correspond neither to the life experience of the ordinary Muslim nor to the example of the charismatic members of the early Muslim community. In order to return to a correct understanding of the revealed law, they argued, one must follow the examples of the charismatic members of the early Muslim community, not the normative constructions of later jurists who deviated from these examples.34

A return to the example of the charismatic members of the early community is the only way in which the practical validity of the sacred law in a Sunni state can be restored. Only a return to the practical norms of the revealed law and a sober interpretation of its meaning can persuade the political authorities of the Sunni state that the norms of the law are not, as they mistakenly believe, incapable of guaranteeing law and order. They have been led to this mistaken assumption by the jurists of the different schools who cling to their formalistic procedures, generalizations, and systematizations, which lead them to abstruse abstractions, on the one hand, and, on the other, to a concern for the rights of evildoers, which is detrimental to the reputation of the sacred

34 For the criticism of the fiqh jurists, see Ibn Taymiyya, al-Hisba, Arabic text: 40-46, French translation: 60-65; Ibn Qayyim al-Jawziyya, Turuq, 11, 13- 14, 70-72, 77-78, 104, 267, 269.

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law and harmful to the public interest of the Muslim community.35 The central target of the accusations against classicalfiqh procedural

law is the notion that proof must be established by the utterances of witnesses. According to the classical doctrine, the deposition of a

concurring testimony by two male witnesses is called bayyina, a proof that renders things clear. Ibn Taymiyya, and even more so Ibn Qayyim al-Jawziyya, attacked this notion. According to Ibn Qayyim al-

Jawziyya, the term 'bayyina'

is a name for everything that renders the truth clear and demonstrates it. Those who identify it with two witnesses, or four, or one, do not do justice to its named function (musammd). When [the term] 'bayyina' is used in the Qur'an, it never has the meaning of two witnesses; rather, it always signifies the argument, the indicator, or the proof, whether used in the singular or in the plural. This also holds true for the saying of the Prophet, 'It is obligatory for the plaintiff to bring the proof that renders things clear'. This statement means that the plaintiff must corroborate his claim before one may judge in his favor. The two witnesses form part of such evidence. But there is no doubt that other types of clear proof may be stronger than two witnesses, such as circumstantial indicators (dallala) pointing to the sincerity of the plaintiff. This indicator is stronger than information provided by witnesses. In fact, [the terms] 'clear proof' (bayyina), 'indicator' (daldlal), 'authoritative argument' (hujja), 'proof' (burhan), 'sign' (aya), 'instruction' (tabsira), and 'token' ('aldma) are all very close to each other in meaning.36

Ibn Qayyim then interprets a hadith from the Prophet as meaning that a sign may take the place of a proof.

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, therefore, can be identified with those signs which, if they are read properly, 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. Testimony regarding the circumstances under which a person acts (shahid al-hal) may serve to interpret the sense of her or his action and, therefore,

35 Ibid., 13-14, 100, 104. 36 Ibid., 12, see also 24, 126, 227. This argument has antecedents in the Hanafi

school that reach back to the eleventh century. See Sarakhsi, Mabsut, vol. XVII, 39 and, for the twelfth century, 'Ala' al-Din al-Kasani, Kitdb badd'i' al-Sana'i' fi tartib al-shard'i' (Beirut: Dar al-Kutub al-'Ilmiyya, n.d.), vol. VII, 7.

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should be considered as 'clear proof'37. If a person who claims to have lost an object describes its characteristics, the signs described serve as proof38. The brand on an animal serves to indicate the property rights of its owner39, and the inscription on a wall that indicates the date on which a pious endowment was founded serves as proof that the building belongs to this endowment40. The physical resemblence between a child and an adult male may serve as proof of paternity and affiliation41; in the case of tools claimed by two artisans with different skills, the relationship between the skill practiced and the type of tool in question may serve as proof of ownership by one of the artisans42. The Prophet and his Companions, Ibn Qayyim al-Jawziyya states, acknowledged signs as 'clear proofs'43. Therefore, the sacred law has to accept them as such. He warns against the neglect of signs by jurists: 'Those who neglect signs and circumstantial evidence (al-amarat wa'l-'aldmat) [and leave them] without any legal consequences paralyze many legal norms and cause many legal claims to perish'44.

Judges, therefore, must become readers of signs and must not content themselves with being the deciding third in a contradictory debate between two parties. Their firasa, that is their capacity to discover, produce and interpret signs, becomes the most important qualification for their judicial activity and frees them from dependence on the utterances of litigants and witnesses45. Consequently, the judge has at his disposal a much larger range of proofs than do the litigants who bring their cases to court, who must rely on the verbal declarations of acknowledgements, testimony, and oaths or the defendant's refusal to take an oath46. Things, social status, and circumstances may speak more clearly and in a more trustworthy language than the words of the witnesses. The judge must listen to this language and take into consideration the signs it produces. Ibn Taymiyya and Ibn Qayyim al-

37 Ibn Qayyim al-Jawziyya, Turuq, 24. 38 Ibid., 214-15. 39 Ibid., 210-11. 40 Ibid., 10, 211. 41 Ibid., 216-36, see also 67, 72. 42 Ibid., 96-98. This is a variation of an old debate among jurists concerning

the role of gendered or professional practices as indicators of the ownership of moveable property. All major manuals refer to this debate.

43 Ibid., 98, 99. 44 Ibid., 100. 45 Ibid., 33-34, see also 25, 27, 28-31. 46 Ibid., 67-68, 71-72, 100, 105-106, 121, 135.

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Jawziyya seem to be speaking in terms of a technology of proofs when they suggest that a married woman's claim that her husband is impotent and that her marriage must therefore be dissolved, should be checked in the following manner: one brings the couple to a house where one can observe them. One tells the husband to ejaculate on a piece of cloth. Then, one sets fire to the liquid in order to determine whether it is sperm or merely a white substance. If the liquid boils and leaves a dry residue, it is sperm and the marriage is maintained47. If a man claims to have lost his eyesight after being attacked by another man, one exposes his eyes to the sun, in order to determine whether or not they react to this stimulus48. In short, one treats the human body and its liquids as things whose reactions to external stimulation can be observed, allowing the observer to draw a conclusion regarding their physical state and effects. In general, physical indicators are regarded as stronger evidence than the testimony of witnesses, because they do not lie49. Therefore, the physiognomist's statement about paternity and affiliation is accepted50. The stolen object found in a person's custody establishes that this person is a thief51. Good judges can discern the truth on the faces of the accused52. The role of physical indicators as proof is much stronger than in the classical fiqh doctrine. Experts become indispensable aids to judges because they know how to interpret the language of things53.

But signs are read not only on bodies and things. Suspicion may be created by the fact that a person belongs to a social group that is considered to be of dubious loyalty to the law and the Sunni state. As examples, Ibn Taymiyya specifies the Bedouin, Turkmen, Kurds, peasants, urban lumpen-proletariat, soldiers who deserted the army54, militant urban groups such as the 'ayyarun in Baghdad, and the 'gang'

47 Ibid., 48-49. 48 Ibid., 50. 49 Ibid., 211-12, cp. 7, 12. 50 Ibid., 230. 51 Ibid., 6-7, 9; see also l'lam al-muwaqqi'in, vol. I, 81. 52 Ibn Qayyim al-Jawziyya, Turuq, 27. On the importance of the social

background of the parties for the decisions of judges in twentieth-century Mo- rocco, see the vivid description of Lawrence Rosen, The anthropology of justice (Cambridge: Cambridge University Press 1989), 45. The motivations of the Moroccan judges are probably rather different from those of Ibn Taymiyya.

53 Ibid., 228-30. 54 Ibn Taymiyya, Siyasa shar'iyya, 63-4, 68.

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(mansir) in Cairo and Damascus55. Heretics fall into the same category56, and so do people who practice despised professions, such as owners of pubs57, and female and homosexual prostitutes and procurers58. Morally suspect hobbies, such as pigeon-breeding, are also signs that create a justified suspicion59. These are not the only suspects. Any claim that is contradicted by the prevailing hierarchical relations in a particular society exposes the claimant to punishment, because his or her claim is directed against the social order. Ibn Qayyim al-Jawziyya tells the story of a man who, while in the presence of the sultan and Ibn Taymiyya, asked Ibn Taymiyya to return a deposit that, he claimed, he had given him. The man was immediately punished and his claim went unheeded: not anybody can sue anybody60. The woman who accuses a man of good reputation of having raped her will be punished for her accusation61. This rule has a long history in Maliki law, where we can follow it from the Mudawwana onwards62. But Ibn Taymiyya and Ibn Qayyim al-Jawziyya transform the rule into a general principle according to which, if a man of lower status makes an accusation against a higher-ranking member of the society who enjoys a good reputation, the claimant should always be punished, because he injured the accused person and, therefore, must suffer the consequences of his act63. The logic of social position creates a presumption of innocence on the part of the higher-ranking person and renders suspect the claim of the lower- ranking plaintiff.

Signs produced by social ties and social hierarchies, by occupation and ethnic ties, and by suspect religious persuasion feed into a special procedure about which all jurists of the Mamluk period inform us: 'trials of suspicion' (da'awi al-tuham). These trials follow special procedures

55 Ibid., 73. On the mansir in Cairo and Damascus, see Ira Lapidus, Muslim Cities, 170-71, 292, note 44. On the 'ayyarun see Claude Cahen, 'Mouvements populaires et autonisme urbain dans l'Asie Musulmane du Moyen Age', Arabica 5 (1958), 225-50, Arabica 6 (1959), 25-56, 233-65. See also EI2, s.v. 'Ayyar (F. Taeschner).

56 Ibn Qayyim al-Jawziyya, Turuq, 174-75. 57 Ibid., 279. 58 Ibn Taymiyya, Siyasa shar'iyya, 64. 59 Ibn Qayyim al-Jawziyya, Turuq, 282-83. 60Ibid., 113. 61 Ibn Farhun, Tabsirat al-Hukkdm, vol. II, 167, 170, see also 181. 62 Johansen, 'Indizienbeweis', 14-18. 63 Ibn Qayyim al-Jawziyya, Turuq, 92-93, 101; Ibn Farhun, Tabsirat al-

Hukkdm, vol. II, 156, 162.

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and recognize proofs that are not generally acknowledged. Mamluk military authorities are competent to organize them64. The governor or the censor (muhtasib) are entitled to make inquiries into the behaviour of suspect people65. These trials, which do not depend on the claim of a private plaintiff, are designated hisba trials; they are instituted in order to command the good and forbid the evil66. The political authorities decide if the public interest is sufficiently concerned for them to order the inquiry67. Eventually, such trials may be heard and decided without any witnesses or acknowledgements68.

Under the siyasa doctrines of the neo-Hanbali and Maliki jurists of the Mamluk period, these trials are considered legitimate whenever a suspect, be he a plaintiff, a witness or a defendant, cannot be convicted according to the procedural law of classical fiqh doctrine69. The reputations of the defendant, the plaintiff and the witnesses give the legal process in such cases a particular character. The jurists tell us that the suspect plaintiff must take the oath in order to make his claim credible70. If the witnesses are suspect, the judge should hear them individually and submit them to detailed interrogation71. If the judge is persuaded of the defendant's guilt, he may threaten him72. A man suspected of highway robbery may be imprisoned and beaten until he informs the authorities of the hideout where his booty is hidden73. A person suspected of hiding a fugitive criminal may be imprisoned and beaten until he informs the authorities about the whereabouts of the fugitive74. One can administer up to 100 lashes per day on the body of the suspect and repeat this punishment daily75. Persons suspected of having committed a crime may be beaten, imprisoned and tortured in order to extract confessions from them76. If, under torture, a thief informs the authorities about the location where a stolen object is hidden, he

64 Ibn Qayyim al-Jawziyya, Turuq, 239. 65 Ibid., 240-42. 67 Ibid., 265; Ibn Taymiyya, Siydsa shar'iyya, 24. 68 Ibn Qayyim al-Jawziyya, Turuq, 239. 69 Ibn Farhun, Tabsirat al-Hukkdm, vol. I, 379-409, vol. II, 156; Ibn Qayyim

al-Jawziyya, Turuq, 93-94. 70 Ibid., 124, 146. 71 Ibid., 24, 49, 61-62, 143. 72 Ibid., 3, 28, 265. 73 Ibn Taymiyya, Siyasa shar'iyya, 77. 74 Ibid., 79-81. 75 Ibid., 98. 76 Ibn Qayyim al-Jawziyya, Turuq, 103-04, 108.

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may be punished for theft. It is not the extorted confession that serves as the basis of the judgment but rather the stolen object, which speaks for itself and establishes the guilt of the suspect77.

The use of torture is legitimized by reference to the charismatic figures of the early Muslim community: as happens often in Islamic legal history, a new institution must be justified by a reference to the practice of the early Muslim community. Following a strategy adopted by Ibn 'Aqil at the beginning of the twelfth century, Ibn Taymiyya and Ibn Qayyim al-Jawziyya, and the Maliki Ibn Farhun, insisted that the Prophet, the first four caliphs and other Companions of the Prophet tortured suspects in order to elicit signs of their guilt78. The reference to the model of charismatic leaders of the early Muslim community made it possible for Ibn Taymiyya and his followers to undermine the clear interdiction of judicial torture that characterizes classical Islamic law from the eighth to the twelfth centuries.

Under the Mamluks, the new doctrines of the neo-Hanbalis and Malikis introduce notions of proof and procedure that, from the fifteenth century onwards, became part and parcel of post-classical legal doctrine79. These new doctrines had a clear rationalizing tendency: they attacked the formalism of the old doctrine on procedure and proof, they introduced the notion of the sign as a clear and sufficient proof, and they gave objects, indicators, and circumstantial evidence a status as proof. They also transformed the social ranking of persons, their reputation, religious persuasion, occupation, and bodily attributes into signs that make it possible for the judge to decide whether or not plaintiffs, witnesses, and defendants may be classified as suspects. In the classical doctrine, the judge was a decision maker who made a legal assessment regarding the contradictory utterances of parties and

77 Ibid., 9; Ibn Qayyim al-Jawziyya, I'lam al-muwaqqi'in, vol. I, 81. 78 Ibn Qayyim al-Jawziyya, Turuq, 7, 13, 108; for references to later caliphs

who used torture see ibid., 40, 41. 79 See my 'Verite et Torture', 166-67, for the reception of the new doctrines

in the Hanafi school in the fifteenth century. An impressive example of its influence on the late Ottoman understanding of procedural law is found in Ibn 'Abidin, Radd al-muhtdr 'ald al-durr al-mukhtdr (Cairo, 1889). Ibn 'Abidin, the last important Hanafi author of the pre-colonial period in Damascus, applies the classical doctrine to decent people with good reputation, but at the same time accepts the new doctrine for suspect individuals and ethnic groups of all kinds. An immense array of new crimes for which capital punishment is imposed is accompanied by the legitimation of judicial torture of the suspect. See ibid., vol. III, 161, 194-99, 204, 208, 212-213.

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witnesses; in the new doctrine of 'the political function of Islamic normativity' (siyasa shar'iyya), the judge becomes a reader and producer of signs that he manipulates in order to establish the truth of the facts. The introduction of judicial torture accompanies the rationalization of the system of proof and procedure in the Near East as well as in thirteenth-century Europe. Three major questions remain to be answered before we can develop a historical understanding of these new doctrines in the Mamluk context: (1) we lack a history of the legal profession and the administration of justice under the Mamluks that would enable us to speak with confidence about the relation between the Mamluks and the judicial elite80; (2) we cannot really understand the reasoning that lies behind this process unless we have a better knowledge of the epistemology that underlies the reasoning of jurists like Ibn Taymiyya and Ibn Qayyim al-Jawziyya; and (3) I find it hard to believe that jurists living in Europe and the Near East in the thirteenth century simultaneously introduced a process of rationalization of the law accompanied by the legitimation of judicial torture without there having been any mutual influence and exchange. Whatever the answer to these questions, the importance of the changes in the doctrine on proof and procedure introduced by Ibn Taymiyya, his disciples and his followers can hardly be overestimated. They clearly bear witness to a changed intellectual and political climate.

80 Sherman A. Jackson, Islamic Law and the State. The Constitutional Ju- risprudence of Shihab al-Din al-Qardfl (Leiden: E.J. Brill, 1996), takes an important step in the right direction.

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