REVIEW: Judges on Cushions and Under Trees: Thoughts on “Qāḍī Justice” and Hyperpolemics (A Review of Intisar Rabb, “Against Kadijustiz” (2015))

Guest contributor Haider Hamoudi reviews Professor Intisar Rabb’s, SHARIAsource founding editor-in-chief, new article in the Suffolk Law Review entitled Against Kadijustiz: On the Negative Citation of Foreign Law. Rabb focuses on how American courts have utilized inaccurate portrayals of “qāḍī justice” as antitheses to American court procedures. Hamoudi notes that this point is all the more important when one considers that using inaccurate and reductive caricatures to advance polemical arguments is a technique used as well in the history of Islamic law, to the detriment of the arguments.This piece was originally published on Professor Hamoudi’s own blog.

For those who have not seen it, I highly recommend Intisar Rabb’s excellent new article in the Suffolk Law Review on the subject of “qāḍī justice.”  Her main focus is on the use of the term throughout American court practice to describe what it is that US courts are against, rather than what they are for.  Two important points I thought deserved emphasis and elaboration:

What was most interesting to me was the manner in which qāḍī justice is used in U.S. courts does not even attempt to be a claim of a historical practice of Islamic courts, in the manner that Max Weber’s original account of the practice purports to be.  That is, Weber very much is making a claim on how Islamic justice in fact was meted out–by individual judges acting on their own discretion doing whatever they thought made sense, on the basis of no recognizable rules or procedures.  Whether that is true as a historical matter is discussed in Professor Rabb’s article (she comes out with a firm, if qualified, “no” on the basis of the rigorous historical work done), but the more interesting point to me is that looking more closely at the descriptions made in U.S. courts, they are in fact creations of fantasy, so preposterous as a claim of the actual practice of any court that they cannot actually be seriously believed as an expression of practice. Hence Justice Frankfurter refers to a “kadi under a tree dispensing justice according to considerations of individual expediency.”

It’s easy to slip past the absurdity; I had for my whole life until I read Professor Rabb’s article.  But even Weber’s kadi doesn’t sit under a tree. No trees in sharīʿa, and in the fiqh, lots of books on how judges should conduct proceedings, but nothing on trees.   The only times judges appear under trees doing things is in The Thousand and One Nights.  Except, and this is the second problem, in those stories they aren’t actually qāḍīs applying Islamic law.  In those cases, they are the caliph, or as I recall caliphal appointees in the maẓālim courts doing something more like the courts of equity. That silly conflation gets even more firmly established later, as noted scholar (and Harvard Dean) Erwin Griswold then makes it Harun al-Rashid under a tree dispensing justice; Judge Irving Kaufman has him on a cushion doing the same thing.  At least Roscoe Pound realizes we’ve moved into the world of fiction, and specifically mentions the Thousand and One Nights in distinguishing U.S. law from qāḍī’s justice.

So we move from a claim of actual court practices in Islamic law, to mazalim courts, to trees, to caliphs, to basically a series of stories that encapsulate the Orientalist myth of the exotic and mysterious east.  “Details,” it has been said to me,” the point is only that the Islamic judges were unconstrained, compared to U.S. judges, with all the rest minor errors.”  An Iraqi judge could under that theory plausibly write in an opinion, “We are a civil law system. This isn’t the common law, you can’t just have George Washington ride in on his horse and tell the cowboys there was a different case in New York and they have to follow it, before he rides away to fight more Indians.” But I suppose the errors would not so easily be dismissed as mere detail by common law lawyers.

Final point on this–if you actually wanted to make the claim that unbridled judicial practice unconstrained by rules and procedures leads to arbitrary and unfair results, you don’t have to go to the mazalim courts of 12th century Baghdad.  You have the courts of equity about which that claim was precisely made. Here’s Selden:

“Equity is a roguish thing, for Law we have a measure know what to trust too. Equity is according to the conscience of him that is Chancellor, and as that is larger or narrower so is equity. Tis [sic] all one as if they should make the standard for the measure we call a foot, to be the Chancellors foot; what an uncertain measure would this be; One Chancellor has a long foot – another a short foot – a third an indifferent foot; tis [sic] the same thing in the Chancellors conscience.”

Isn’t that what Frankfurter means by qāḍī justice?  Why not juxtapose that, since it’s something he might actually be able to understand, instead of a ridiculous image of a caliph on a cushion under a tree doing whatever he wants?

Ah, easy answer, which really is the rub of Professor Rabb’s article, and relates to my second point.  The goal is not to contrast an actual alternative system of justice in any sort of considered fashion, it is to describe what one is for by juxtaposing it against what one is against.  I’ve emphasized above that to do that you have to make the “against” part into a caricature, and caliphs are easier to caricature than courts of equity.  But Professor Rabb’s point, and it is well taken, is that in doing this, one not only caricatures what one is against (not so much her focus), but it makes it all the harder to understand precisely what it is that one is arguing for.  Frankfurter’s actual problem in his dissent from the majority opinion is not entirely clear, she effectively points out, nor is it made more clear by references to qāḍī justice.  All we know from that is he thinks something they did is arbitrary and an abandonment of a rule or a procedure.  What, however, that dereliction is, is less than fully elucidated.

I’d elaborate by pointing out that this occurs with some frequency in my view in Islamic texts as well when polemical debates erupt, whether it’s the Usuli-Akhbari debates within Shi’ism, which proved to be excessively polemical, or ‘ilm al-kalam, which is similarly replete with polemics that does less to establish a position than demolish the position of the other. (Credit where it’s due: this idea is tangential to, but nonetheless well described at, various points in the excellent PhD dissertation of Ali Reza Bhojani, which is available for the low low price of $140 here.  In all seriousness, if you want to know about moral rationalism in Shi’i thought, or your library does, this is the book to buy).

Taking the latter example, on the assumption that even Islamic studies people focused on Sunnism would not necessarily grasp the nature of the Usuli Akhbari divide, one of the early kalam (science of discourse) works that any good Shi’i always points you to in order to defend Shi’i rationalism is Sharif al-Murtada, an early Shi’i thinker who runs through a whole discussion on precisely why reason in fact is central to understanding the good and the ugly (husn and qubh).  Most of it, at least in my reading of it, is more a refutation of some sort of Ash’ari Sunni caricature that postulates that reason obviously is not independently capable of rendering the good intelligible because of the story of Khidr and Moses in the Qur’an, where Khidr does a number of things that seem overtly bad (scuttling a boat of innocent people, killing a kid, and then repairing a wall of a city that turned him out) and yet turn out to have wisdom in them.  And Sharif Murtada’s argument is well placed in that it is not really a refutation of reason identifying the good so much as insufficient knowledge.  Moses is, after all, in the end convinced by arguments that very much sound in reason (the wall belonged to two orphans who had buried treasure underneath by their father, e.g.) rather than revelation, which would have been more like God turning Moses into a pillar of salt for questioning His wisdom (or something similar).

The problem is it doesn’t prove that reason can be used to render the good and the ugly intelligible. All it really does is refute what appears to be a bad contrary argument.  We have to literally wait centuries for that, with Allama and Tusi. It does come; I don’t suggest everything is polemics, only that polemics wherein one spends time castigating the position of the other is ineffective and all too often used in varying traditions.  And I maintain we keep coming back to it despite its ineffectiveness. How does the usually brilliant Baqir al-Sadr know that moral judgments must be ascertainable by independent reason, even if it’s not reason we ourselves can grasp but more theoretical rationality?  “Well, it’s not through utilitarianism–we know that,” he says, for you can’t kill a person to save two.  Ok, I guess? Except that is not much of an argument for any sort of rational conception so far as I can tell.  It’s just refuting the position of the qāḍī/caliph on his cushion under a tree saying something that in the end nobody actually said . . . .