The Anthropology of Justice Law As Culture in Islamic Society

LE
H & e anthropology
MO
LECTURES Tustice
Lawrence Law as culture in Islamic society
Rosen
KBP
144
R67
| 1989
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The anthropology of justice
Law has often been seen as a relatively autonomous domain, one in which a
professional elite sharply controls the impact of broader social relations and
cultural concepts. By contrast this study asserts that the analysis of legal ‘
systems, like the analysis of social systems generally, requires an understanding

of the concepts and relationships encountered in everyday social life. Using as its
substantive base the Islamic law courts of Morocco, the study explores the
cultural basis of judicial discretion. From the proposition that in Arabic culture
relationships are subject to considerable negotiation the idea is developed that
the shaping of facts in a court of law, the use of local experts, and the
organization of the judicial structure all contribute to the reliance on local
concepts and personnel to inform the range of judicial discretion. By drawing
comparisons with the exercise of judicial discretion in America the study
demonstrates that cultural concepts deeply inform the evaluation of issues and
the shape of a judge’s decision.
The Anthropology of Justice is not only the first full-scale study of the actual
operations of a modern Islamic law court anywhere in the Arab world but a
demonstration of the theoretical basis on which a cultural analysis of the law
may be founded.
THE LEWIS HENRY MORGAN LECTURES/1985
presented at
The University of Rochester
Rochester, New York
Lewis Henry Morgan Lecture Series
Fred Eggan: The American Indian: Perspectives for the Study of

Social Change
Ward H. Goodenough: Description and Comparison in Cultural
Anthropology
Robert J. Smith: Japanese Society: Tradition, Self, and the Social
Order
Sally Falk Moore: Social Facts and Fabrications: ‘Customary
Law” on Kilimanjaro, 1880-1980
Nancy Munn: The Fame of Gawa: A Symbolic Study of Value
Transformation in a Mussim (Papua New Guinea) Society
fess IS Tur Want wrrn ALcert AtTENDING
Engraving of a qadi and attendant scholars, from an original design by William Harvey, in
Edward Lane, The Thousand and One Nights, vol. If (London: Chatto and Windus, 1889),
p. 568.
The anthropology of justice
Law as culture in Islamic society
LAWRENCE ROSEN
Princeton University
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University of Cambridge
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CAMBRIDGE UNIVERSITY PRESS

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© Cambridge University Press 1989
First published 1989
Printed in Great Britain at the University Press, Cambridge
British library cataloguing in publication data

Rosen, Lawrence, 1941—
The anthropology of justice: law as
culture in Islamic society —(The Lewis
Henry Morgan lectures).
1. Anthropological perspectives
I. Title II. Series
340’.115
Library of Congress cataloguing in publication data

Rosen, Lawrence, 1941—
The anthropology of justice: law as culture in Islamic society/
Lawrence Rosen.
p. cm. — (The Lewis Henry Morgan lectures: 1985)
Bibliography.
Includes index.
ISBN 0 521 36513 9. ISBN 0 521 36740 9 (pbk.)
1. Islamic law. 2. Law and anthropology. I. Title. II. Series.
LAW
340.59 — dc 1988-21438 CIP
ISBN 0 521 365139 hard covers

ISBN 0 521 36740 9 paperback
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Contents
Plates between pages 38 and 39

Foreword by Alfred Harris page xi
Preface Xill
Law and culture: the appeal to analogy l
Determining the indeterminable 20
Reason, intent, and the logic of consequence 39
Judicial discretion, state power, and the concept of justice 58
Notes 81
Bibliography 91
Index 99
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Foreword
Lewis Henry Morgan, in whose honor this lecture series was established, never
attempted to develop an approach to law commensurate with his contri-
butions to the study of kinship. Yet his training as a lawyer clearly had
consequences in various aspects of his work, and recent developments in the
anthropology of law would surely have intrigued him.
Professor Rosen delivered the 1985 Lewis Henry Morgan Lectures on
March 19, 21, 26, and 28, and the present volume is an expanded and revised
version of his lectures. Since Professor Rosen is one of those working on the
anthropology of law who has been trained in both disciplines, his work repays
careful attention, for he has developed an approach that integrates the two
specialities. Here, he demonstrates the value of such an integrative approach
when it is used to examine Islamic law. By considering particular personal
status cases brought before a qadi (judge) ina small Moroccan town, Professor
Rosen is able to illuminate hitherto obscure points with regard to Islamic law
and procedure. He is also able to show how closely related the law and the
court are to many other aspects of Moroccan society and culture.
Professor Rosen’s work cannot easily be categorized as belonging to one
or another tradition in either anthropology or law. What he has to say
frequently bears on issues of importance, both older and more recent, in these
fields. These include such diverse concerns as Malinowski’s (or Bourdieu’s)
emphasis on context, Mauss’s and Fortes’ discussion of the person and
personhood, and Austin’s performative utterances. These and other matters
are, however, here subordinate to Professor Rosen’s desire to deepen and
broaden our understanding not only of Islamic law, but of law in general. The
reader is inevitably led to wonder what a comparable examination of our own
courts might reveal by way of underlying similarities. As with any original
work, questions asked and answered raise yet further questions.
Alfred Harris, Editor

The Lewis Henry Morgan Lectures
x1
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Preface
It was Justice Holmes who once said: “If your subject is law, the roads are
plain to anthropology.” He might well have added, “‘or vice versa.”’ For while
neither law nor anthropology is coincident with or reducible to the other, the
study of each may lack a critical dimension if considered alone. For the
anthropologist, law — like ritual, politics, and marriage — constitutes a realm
within which it is possible to see people acting in accordance with their deepest
assumptions and beliefs; for the legal scholar, it is precisely in the concepts and
relationships encountered in ordinary social life that many of the presump-
tions and procedures of the law find their predominant genesis and ultimate
acceptability.
Yet despite their obvious points of coincidence, law and anthopology have
not contributed as fully to one another as they might. Difficulties arise in terms
of both subject matter and theory. As to the former, anthropologists have,
with a few noteworthy exceptions, treated a predominant focus of the legal
scholars — the operations of formal courts of law— either as a peculiar domain
whose untypical language, rules, and procedures somehow remove it from the
mainstream of cultural life or as an arcane realm that loses by its institutional
rigidity the capacity to resolve disputes without alienating large segments of
the population it serves. This avoidance of studying formal courts may be due,
in part, to the tendency in our own society to view the courts as fraught with
professionally skewed assumptions and far from disinterested goals, or to an
outdated desire to show, contrary to colonial ideology, that native peoples
possess law in every bit as refined a sense as do western societies. Similarly,
legal scholars often approach the patterns of social and cultural life either as
intrinsically interesting but not directly germane to the course of actual legal
decisionmaking or in need of being kept distinct from law in order to establish
or deny that the law may be reduced to explanations drawn exclusively in
terms of economic, political, or psychological factors.
This mutual truncation of subject matter has its correlate in theoretical
orientations. Anthropologists are frequently concerned to show that diverse
features of social and cultural life have connections to one another, contribute
Xill
xiv Preface
to one another’s operation, and move through time in relation to one another.
Yet in the pursuit of elegant theories and the retention of the discipline’s
traditional focus on such topics as kinship, myth, and ritual, anthropologists
for many years avoided those situations in which change, manipulation, and
differential access to power might confute existing styles of explanation. From
their side, legal scholars often sought to articulate the implicit propositions
through which diverse judgments could be reconciled or to admit extrajudicial
influences on the law only if those influences could be shown to form part of
the conscious design or terms of discussion of the legal world itself.
The result of these topical and theoretical propensities has often been a
sufficiently high degree of curiosity and fellow-feeling to allow nodding
acquaintances to develop into episodes of mutual visitation where each
discipline partakes of the other’s exotic repast, tries on the other’s peculiar
garb, or is conducted through a quaint ritual of fictive kinship. But for contact
to become conjuncture and itemized comparison to become integral concern
it may be necessary to take quite seriously an approach that actually partakes
of elements of both disciplines and which, by application across disciplinary
lines, offers the promise of elaborating the insights developed by each. The
approach in question suggests, quite simply, that the analysis of legal systems,
like the analysis of social systems, requires at its base an understanding of the
categories of meaning by which participants themselves comprehend their
experience and orient themselves toward one another in their everyday lives.
The institutions of class and money, power and privilege, far from being
submerged by such an analysis, are seen to depend for their very impact on the
broader system by which knowledge itself is produced; the significance of rules
and procedures is seen to reside in their capacity to operate as systems whose
constituent features are far more extensive and interrelated than our own
disciplinary divisions may embrace. Seen in this fashion, law and anthro-
pology are not just inextricably linked to one another; they actually constitute
two sides of the same configuration.
It is from such an orientation, too, that an intriguing array of questions
about legal and social life can be formulated. Instead of simply asking how
judges decide cases, we can ask what some of the key concepts are that cut
across the domains of law and culture giving shape to each. How, in the
culture at large, are facts defined and truth conceived? How does the view of
what persons are like take shape when the law must ask particular questions of
character and state of mind? What role do cultural assumptions about the
nature of human nature play in the development of evidentiary concepts, and
how do these legally formulated concepts in turn evince themselves in the style
by which people attribute actions to one another? To what complex of
circumstances and relationships is the idea of power connected such that the
law may address itself, successfully or not, to the general acceptance of its
procedures and final decisions? By tacking back and forth across law and
Preface XV
social life, by viewing both domains through a common frame of theory and
practice, we can give serious consideration, in a way that may be applicable to
a wide variety of societies, to the proposition that it is indeed possible to
formulate a study of law as culture and culture as integral to law.
Few places offer greater opportunities for exploring the implications of
these ideas than does the contemporary Islamic world. For westerners, Islamic
law often incorporates images of a canonical system of medieval intricacy or
criminal penalties of biblical intensity. In fact, for the one out of eight people
on the planet who live subject to a legal system touched by Islamic precepts the
role and importance of the law are inseparable from its connections to a wide
range of social and cultural practices. By focusing on such questions as how
the Islamic law judge exercises his discretion in a culturally characteristic
fashion, or by questioning whether the forms of discerning facts and
explaining causal links gain legitimacy in the law for being part of the common
sense of a culture, it will be possible to explore, in ways that carry implications
for western systems of law as well, how these two analytically distinguishable
domains constitute a unified subject of study.
The chapters that form this book were first delivered as the 1985 Lewis
Henry Morgan Lectures at the University of Rochester. Although the original
format of the lectures has been retained, the text has been substantially revised
and expanded. A series of notes and a still more extensive bibliography have
also been added: they are intended to serve both as citations of actual sources
and as guidance to the reader interested in the range of publications that have
contributed to the present approach.
Like any author I am, of course, deeply indebted to many people for making
this study possible. To Professor Alfred Harris and the Department of
Anthropology at the University of Rochester I am extremely grateful for the
opportunity afforded by these lectures and for the intellectual stimulation
provided during my stay at the University. In Morocco, I am grateful to the
Ministry of Justice, the Chief Judge and court personnel of the Sefrou District,
and the many local officials who have made my work possible over the years.
Colleagues too numerous to mention have given me the benefit of their
thoughts, and I am especially cognizant of the tremendous debt I owe to
Princeton University, Columbia Law School, the University of Pennsylvania
Law School, Northwestern Law School, and the American Bar Foundation for
the many opportunities they have afforded me. The typescript was completed
during my tenure as a Visiting Fellow of Wolfson College, Oxford and the
Centre for Socio-Legal Studies, and I am sincerely grateful to Donald Harris,
Keith Hawkins, and Sir Raymond Hoffenberg for their hospitality. Funding
for my work has been provided by the John Simon Guggenheim Foundation
and the John D. and Catherine T. MacArthur Foundation, and I am most
appreciative of the confidence they have reposed in me.
A special note of thanks must be addressed to my friend and colleague
xvi Preface
Leonard V. Kaplan, who read the entire typescript with extraordinary care
and insight and who, as on so many occasions in the past, has vastly extended
the range of my understanding about law and life.
Finally, the book is dedicated to my wife, Mary Beth Rose, who not only
shared with me an important part of the field experience, but has, through her
deep appreciation of the human quest for meaning, contributed immeasur-
ably to my own.
Law and culture:
the appeal to analogy
Several years ago I stood before a judge in an American courtroom nervously

awaiting the outcome of a case upon which depended a great deal of my
financial well-being and peace of mind. Together with my neighbors and
representatives of several municipal and community organizations, we had —
after the failure of many attempts at negotiation and political infighting —
found ourselves with no other choice than to file suit against the public utility
company whose practices were threatening to make the homes in which my
neighbors and I had sunk so much of our fortunes and our energies both worth-
less and unliveable. As I stood there in that moment of inadvertent calm, when
fear and diffidence are poised on the edge of another’s decision, I could not
help but reflect on several distinct impressions that had returned to me again
and again over the course of the day’s hearing. What a strange commentary it
was on my legal education, I thought, that even though I was a lawyer, a
member of the state and federal bars, and an adjunct professor at a nearby law
school, I had, until this very moment, never once set foot in an American court
of law! How ironic it was, too, I thought, that having spent innumerable hours
in Islamic courts I was quite sure how best to argue the matter to a Muslim
judge but far less certain of exactly what I should say in a court before which I
was, in theory, actually trained to practice! So much was my experience of
courtroom proceedings based on my Moroccan studies that I automatically
began thinking in Arabic only to be struck by how odd it was that I could,
without strain or hesitation, understand everyone — from the whispering clerk
to the bailiff with the missing teeth — because every last one of them spoke my
mother tongue.
But far and away the most striking impression I had in this entire process
was the intense realization that here, in the lowest-level court of equity in the
state, I was almost entirely at the mercy of a single judge - a man who, in his
personal discretion, in an instant of seemingly boundless might, could
magically lift or permanently affix a burden that had been laying upon me and
my neighbors for almost an entire year. Like countless supplicants and
cowards arraigned before an oracle, whether legal or religious, I tried to strike
1
2 The anthropology of justice
a bargain with the spirits of the place. Earlier in the day I had shamelessly
bound myself over to the position of the Legal Realists who had warned me to
bend all my efforts not to an understanding of what the law on the matter is
but to predicting what in fact the judge would do, and I was now ready to
pledge myself, in return for a favorable result, to a life of mortifying realism
and never-ending rule skepticism. Should circumstances demand, I was,
however, no less prepared to barter my soul to the gods of Legal Positivism if
only I could be assured that the judge, whatever the whisperings of his own
moral sense, would realize that all of the valid legal rules were just as I had
argued them and that the ‘“‘uniquely correct decision” had my name written all
over it.
But above and beyond all such promptings of legal artifice and craven
servility I found myself repeatedly confronted by an overriding sense of
fascination, a fascination which, I confess, was at that moment as much like
that which a bird has for a snake as a scholar has for an enigma. For as
impatient as I was to know what the judge was going to decide I was even more
curious about how he was going to go about making his decision. So many
things could sway him to one side or another, so many influences could be put
together in different ways. Was it possible, I wondered, that he had had a fight
with his wife at breakfast and would, in response, now leave me dangling from
whatever legal peg lay readily to hand? Had he (I most devoutly prayed)
himself once encountered a mean-spirited public utility official upon whom he
might now avenge his ancient consumer’s pride? Or was his line of thought,
whatever its actual course, utterly beyond our ken — indeed, beyond his own —
lodged in that murky brew of lawyer’s art and psychic flaw out of which it is
possible, as David Reisman once quipped about lawyers generally, to turn a
personality defect into a professional advantage?
It was not, of course, only the ghosts of squeamish litigants and zealous
counsel who shared with me their awe at just how judges do it. Justice
Benjamin Cardozo, pondering the issue of judicial discretion, once answered
the question, ““What is it Ido when I decide a case?”’ by posing a further set of
questions:
To what sources of information do I appeal for guidance? In what proportions do I
permit them to contribute to the result? In what proportions ought they to
contribute? If a precedent is applicable, how do I reach the rule that will make a
precedent for the future? If I am seeking logical consistency, the symmetry of the
legal structure, how far shall I seek it? At what point shall the quest be halted by
some discrepant custom, by some consideration of the social welfare, by my own or
the common standards of justice and morals? Into that strange compound which is
brewed daily in the caldron of the courts, all these ingredients enter in varying
proportions.
If, however, it is self-evident that a very wide range of factors goes into the
exercise of judicial decision making it is no less obvious that, even where
discretion appears most unbounded, it is likely to possess qualities that are at
Law and culture: the appeal to analogy 3
once distinctive to and characteristic of the time, the culture, the circum-
stances, and the background of those who exercise such judgment. Like so
many other areas of nature and of human society, the problem is not in
determining whether there are regularities to systems of law and aspects of
judicial independence but how best to probe for and interpret these
regularities. And as in so many other areas of common curiosity and scholarly
investigation, we grope our way through areas initially uncharted and
inchoate by applying to the unknown analogies drawn from familiar terrain.
To understand how, as an anthropologist, I want in the course of this study to
look at a particular legal system and the culture of which it is a part, it may
prove helpful to see how the process of drawing analogies from one domain to
the other and back again has in the past and may in the present case reveal
features that might otherwise escape our notice.
It was Samuel Butler who once said that “though analogy is often
misleading, it is the least misleading thing we have.”’ Whether it is because, as
Coleridge argued, an analogy partakes of the essence of the thing to which it is
extended or because it is simply convenient for humans to approach the
uncertain through such crabwise modes of thought, analogies clearly serve to
direct or misdirect our inquiries and thus may speed or hinder access to an
understanding of the thing itself. Surely it makes a difference to what we learn
and how we move forward if we think of the eye as a beacon or as a receptor,
the atom as a seamless sphere or as a miniature planetary system, society as a
clockwork mechanism or as a living organism. One area in which the
interchange of analogies from one field to another has clearly proved thought-
provoking in the past has been in the nexus of law and anthropology. For
some scholars this has meant extending the concept of rules, as prescriptive
ordinances, as they are thought to exist in the law to realms of social activity —
marriage, alliance, and network formation — not previously grasped in rule-
like form. Others, working in the opposite direction, have sought to
comprehend legal forms and legal change by drawing analogies based on the
idea of physical and social evolution, the similarity of legal process to ritual
activity, or the usefulness of reading legal sources like literary texts.
This study too will work back and forth, with the help of analogies, between
law and anthropology, extending themes from each to the other. Specifically, I
want to grapple with the problem of judicial discretion as a cultural
phenomenon. And as might be expected from an anthropologist, I want to
approach the broader aspects of this issue by cutting my teeth on the exotic —
by trying to understand the nature of judicial discretion in the Islamic courts
of Morocco. Since the Islamic judge, the gadi, has long been taken by western
commentators as the archetype of the legal figure able to exercise vast
discretion, there is particular appropriateness in taking these judges as our
point of entry. But perhaps more to the point, if, as will be argued, a fuller
understanding of judicial decision making can be gained by analyzing its
cultural characteristics, it may be from the perspective of a distant culture that
features of our own may be more clearly seen. The plan of this study,
therefore, is quite simple: first to discuss, by means of a concrete analogy, an
interpretation of Moroccan culture — a view of how some of the pieces of
society, culture, and religion fit together in this part of the world and how, in
broad outline, they manifest themselves in the proceedings I have observed
that take place before the qadis. Then I want to consider how, in the context of
this overall set of cultural assumptions and beliefs, the qadi faces the problem
of determining the indeterminable — how he goes about discerning the facts in
a case, indeed how he decides what shall be considered a fact, and how,
drawing upon a style of reasoning that is both institutionally distinctive and
culturally recognizable, he reasons his way to a final decision. If, as will be
argued throughout, concepts of knowledge and right, of human nature and
human utterance, play a central role in both the law and society of Morocco,
then, next, it will be necessary to explore the implications of these concepts for
the gadi by considering how he assesses what is in the public interest, how he
and his culture calculate the consequences of individual acts, and how
particular states of mind are attributed to individual actors. Finally, a number
of these issues will be drawn together in order to formulate a specific
interpretation of Islamic judicial discretion and the concept of justice that
suffuses it. But no less importantly, it will be suggested that a cultural analysis
of judicial discretion can contribute to the perennial debate on the nature of
legal decision making and that such an approach may be helpful in the study
of courtroom proceedings in western countries as well.
Like any scholar I begin from a baseline of certain assumptions, orien-
tations that will influence both the choice of analogies and the overall goal.
But scholars, unlike bankers, are under no obligation to make clear the price
oneis really going to have to pay for trafficking with them. Were we to legislate
a sort of academic truth-in-lending, readers might be entitled to know at the
very outset something of the overall orientation toward law and culture that
will lie behind much of the present argument.
There have been many approaches by social scientists to the study of law,
but I have not, I confess, been wholeheartedly attracted to any one of them
taken in its entirety. I am not eager, like some, to demonstrate that The Law
(spelled with capital letters and uttered in stentorian tones) evolves as a kind of
driving force which an anthropomorphized Society nurtures in embryo in
savage communities until, in the springtime of the species, it blossoms forth in
a profusion of writs and deeds to challenge even the arts as the capstone of
humanity’s enviable achievements. Nor do I find myself taken with the idea
that law is preeminently a mechanism of dispute resolution — an attitude
which, even if one had never been involved in an endless and bitter legal case
that never really resolved anything, could probably be dispelled by spending
an afternoon in front of the television screen watching the sequence that runs
from Family Feud through The Edge of Night to The People’s Court, and back
again. And while I admire their industry and erudition, I tend to regard those
who have lost themselves deeply in the quest for an ultimate definition of the
law as making even seekers after the Holy Grail appear the very embodiment
of the Reality Principle.
Rather, it appears more fruitful to view law as part of the larger culture, a
system which, for all its distinctive institutional history and forms, partakes of
concepts that extend across many domains of social life. In law, as in politics
and marriage, one has the opportunity to see ordinary assumptions put to the
test of scope and implication, and though the response may be peculiar to its
own domain, analyzing the realm of the law as a cultural phenomenon is no
more unusual than viewing aspects of a society through the behavior of its
members in the public market-place, the family dwelling, or the house of
worship. Such a view of law is therefore indistinguishable from a view of how
anthropological inquiry in general may be conducted — as a search for the
concepts by which a community of human beings categorize and group their
experience of an otherwise undifferentiated universe into packets of meaning,
symbolically grasped and manipulated, as they go about arranging the
relationships of everyday life. This is not, of course, to discount the
connections — whether causative, dependent, or mutually supportive — that
exist between law and its economic and political surround. It is, instead, to say
that as people attempt to comprehend their circumstances and orient
themselves toward them they grasp that world through categories and
assumptions that are themselves cast up by the full range of historical factors
that shape their lives. The anthropologist’s task is to sort out these influences
and to see how, given the particular issue under study, a balanced apportion-
ment of the contributing factors best accounts for the matter at hand. In the
analysis of contemporary Islamic law, it is necessary but not sufficient to
understand the ways in which the struggle among contending interest groups
and the tug of conflicting economic strains have enacted themselves in the
forum of the law. For it is also necessary to see how the substantive and
procedural! ideas available at a given moment constitute the terms through
which events are discussed, shaped, fought over, and fought for. The result, at
any particular moment, may be one of simple imposition through existing
institutions of the self-supporting concepts of the more powerful, or — as will
be argued for the situation under study here — one in which a set of concepts,
broadly shared throughout Moroccan society, suffuses a host of different
aspects of collective life, thereby facilitating the struggle for individual success
without the loss of a deeply felt collective order. And because the principles by
which people can orient themselves toward the acts of others traverse
analytically separable bounds of social life, it becomes imperative to see the
legal realm — its struggles, its terms, its power, and its dependence — as an
extremely characteristic part of the entire social fabric. It is from such an
orientation — of conceptual ordering and institutionalized enactment — that
one must try, often with the aid of metaphor and analogy, to understand the
nature of judicial decision making and the constitutive role of law in
Moroccan life.
During the course of many months stretching over nearly two decades, I
have observed the proceedings and pored over the documents in the qadi’s
court of a city of 50,000 people called Sefrou which is located just south of Fez
on the edge of the Middle Atlas Mountains. Lying between upland and plain,
predominantly Arabic-speaking and largely Berber-speaking areas, Sefrou
possesses many of the features and many of the strains distinctive to
contemporary Moroccan life. Both the city and its hinterland have, through
the course of many centuries, demonstrated in their organization, politics, and
religious institutions their centrality and typicality of the nation as a whole.
And while no single place can contain all variations that may be found in a
complex society like that of Morocco, much less the entire Arab world, Sefrou
embodies, in a theme-and-variation sense, an extraordinarily characteristic
array of Muslim social and cultural features. It is, therefore, possible to enter
the court of the qadi of Sefrou with the sense that, even in a single morning,
one can gain a good appreciation of how a typical Islamic court operates and
how judicial discretion is grounded in a cultural base.
The qadi’s court is situated in one wing of the small palace built by a
powerful administrator of the Sefrou region at the turn of the century. With its
tiled courtyard and broken fountain, its shuffling clerks and toppling stacks of
legal paperwork, the precincts suggest that mixture of Moorish ease and
bureaucratic impulse that pervade so much of Moroccan official life.
Although judges must be competent to sit in the civil or criminal proceedings
that are the subject of other branches of the unified legal system, one judge
continues to be designated as qadi, and it is he who enters the courtroom
unceremoniously and, a clerk by his side, takes his seat at a table on a low
platform at the front of the room. Those already seated in the court may
continue to talk among themselves, return the nod of a passer-by viewed
through the doorway that leads to the courtyard and lane beyond, or
unflinchingly study the man at the front of the room. The qadi is a short,
strongly built man in his early fifties, dressed in an ordinary jellaba over
western trousers and sporting a bright red fez and a pair of tinted glasses.
When he speaks, it is in a harsh, rasping voice which, however conversational
its tone or abrupt its invocation, startles its listeners and commands their
instant attention.
Litigants are called forward by a uniformed aide, a good-humoured Berber
of the ancien combatant variety who not only tries to keep traffic moving and
to translate for those few Berber tribesmen who do not speak Arabic very well
but who, since the qadi’s voice makes him difficult to understand at the best of
times, repeats — often with embellishments and questions of his own— many of
the qadi’s utterances. As people come forward to be heard they may make
some acknowledgment of the qadi — a curt bow of the head and shoulders by
the women, a desultory military salute by the men — but the gesture is usually
lost on the court or interrupted midway by the aide who nudges them into
position before the qadi.
Regardless of the kind of case or the details contained in the petition and
dossier on his desk, the qadi always begins by ascertaining who is who and
how they are connected to each other. He is particularly careful to ask how
people are related to one another when marital or inheritance matters are
involved and to determine if the parties are speaking for themselves or
through a spokesman. His first substantive question is usually the signal for
the shouting to begin. Everyone wants to tell his or her side of the story, and no
one seems eager to sit quietly while an opponent is speaking. Litigants and
witnesses begin by talking to the qadi, but often end by addressing the aide, the
clerk, the onlookers, and even a stray anthropologist. The qadi nods, listens,
questions: the principals sit, stand, shout, and cry; the aide tries to quiet people
by holding their hands down, in the certain knowledge that no Moroccan is
comfortable speaking if he cannot gesticulate freely; and the clerk rushes to
finish writing up the last case and find the correct dossier for the present one.
Sometimes the qadi lets people shout at each other for a little while — whether
to let them vent their anger or to gauge the intensity of their feelings — and
sometimes he intercedes immediately to move things along. Eventually one
person gets to tell a more or less coherent story, and women no less than men
speak expressively and forthrightly with just that sort of keen timing and
assured style they have developed in years of arguing before that most
discriminating of judges, the crowd of relatives and neighbors who collect
around any audible dispute. Most cases are handled with considerable
rapidity: in the space of two hours it is not uncommon for the qadi to issue
rulings on more than a dozen cases and to handle portions of a score of
continuing matters. Often one of the principals will fail to show up or a
necessary document will be missing, thus keeping a case from being heard in
its entirety. Often, too, cases continue over a number of months and even
years so that more than one qadi may have a hand in the matter.
The first case heard on this day involved a marital dispute. The wife stated
in her petition that her husband forced her out of their home some three
months earlier and had subsequently failed to provide her and their two small
children with support. The qadi first inquired as to the area from which each
party came and confirmed what the dossier listed, that they both came from a
Berber-speaking settlement nearby in the countryside. In response to the
qadi’s questions the husband denied having forced his wife out of their home
while the woman, in turn, acknowledged that she had neither witnesses nor
notarized affidavits to support her claims. Without further inquiry the qadi
ordered her to return immediately to the marital home and either offer proof
of nonsupport in a subsequent hearing or risk having her case dismissed.
The next case, too, involved a marital dispute. Both husband and wife were
from families whose members had, for countless generations, worked as
craftsmen and gardeners in the city —a fact of which the qadi seemed to be well
aware as he knowingly nodded his head while stating their personal and
familial names. It was the woman’s contention that the couple were living with
the husband’s family, that there were constant arguments between her and her
in-laws, and that she wanted the qadi to order the husband to find them a new
residence away from the husband’s kinsmen. When the husband was called
upon he spoke hesitantly, said it was all very shameful, and in a tone of
familiarity and world-weariness allowed as to how the qadi must know that
women are querulous by nature and that a new apartment would cost a lot of
money. The wife interrupted to restate her claim in a way that indicated she
knew full well the scope of her legal rights, to say nothing of the character of
her in-laws. The gadi inquired as to whether other family members might help
resolve the matter and whether more time might be useful, but the wife was
quite insistent, and, after a moment’s pause and in a voice fraught with
resignation, the gqadi ordered the husband to find the couple a new and
separate place of residence.
Many of the cases heard by the qadi involve aspects of divorce, and it was as
the result of one such divorce that the following dispute arose. The wife
claimed that when the couple split up the husband kept a number of objects
belonging to her, including some furnishings, tools, and clothing. Neither had
witnesses who could appear for them. After barely a moment’s inquiry the
qadi ordered that the furnishings be given to the wife but that if the husband
swore an oath that the clothes and tools were his, those objects would be
awarded to him. If he refused the oath and his wife agreed to take it the items
would be awarded to her. The husband said he would indeed swear the
necessary oath before notaries at the mosque that Friday, and the matter was
rapidly concluded.
The qadi also has the power to hear cases involving real property if any
documents pertaining to it were initially drawn up by his court and if no title
has been registered through a separate legal procedure overseen by a ministry
and court in Fez. In a property case decided on this day the qadi was faced
with a somewhat unusual situation. In constructing a new room on top of his
house the defendant had placed a window in such a way that, the plaintiff
claimed, it was possible for the women in his house to be seen by people
looking out of the defendant’s new window. The qadi had sent two of the
experts attached to the court to determine the situation, and they reported
back that it was indeed possible to see through the new window into the
plaintiff's house, though one had to look at an angle to do so, a finding that
raised the question whether the view was so intrusive as to warrant
reconstruction. The qadi, refusing to hear any more testimony from the
litigants and speaking more to the clerk than the parties, said that the school of
Islamic law practiced in Morocco gives preference to positive assertions over
negative ones, that the claim of actual harm is a positive assertion and should
thus be favored over the claim of no harm, that people in the city as opposed to
the countryside always place their windows so that one cannot see into
another’s house, and therefore that the defendant must indeed brick up his
new window or move it to another place in the wall.
A small cluster of people now came forward in response to the aide’s
announcement of their case, and it took a little while before the jostling figures
were sorted out and quieted so the qadi could proceed. He reminded himself
who they were — he had, as a matter of fact, seen many of them quite often,
since their dispute had been dragging on for more than a year. It began when
the husband claimed that his wife left him and, though intermediaries of their
tribal fraction had been sent to her father’s house to request her return, she
and her father had rebuffed all overtures at settlement. At the first hearing of
the case the wife failed to appear and the qadi entered an order requiring her to
return to her husband. Subsequently, however, the wife, with her father acting
as her spokesman, appeared in court and said that the husband had actually
divorced the wife several months before filing the present suit. A document
was then produced in which two court notaries stated that fifty witnesses had
appeared before them and attested to the fact that such a divorce had indeed
taken place. The husband denied this claim and argued that the witnesses were
not credible since they were all relatives of the wife and her father’s family. The
qadi then gave the husband the opportunity to request that a procedure be
held whereby each of the fifty witnesses comes before two separate pairs of
notaries who inscribe the testimony of each, and if the testimony of all remains
consistent before both sets of notaries, a document will be presented to this
effect to the court.
After numerous delays, in which both sides told the qadi they were having
trouble getting all of the witnesses together, each party now appeared witha
new set of documents. The wife presented a notarized assertion by twelve
witnesses who stated that a divorce did indeed occur, while the husband
brought an identical document in which his twelve witnesses attested to the
exact opposite. There was considerable argument among the litigants and
their respective cliques, but when the uniformed aide finally got everyone
more or less quieted the qadi announced that whereas the husband’s witnesses
all came from the settlement in which the couple lived while those of the
defendant-wife resided quite some distance away and would therefore be less
likely to know about the couple’s marital relation, it was the court’s opinion
that the wife should return to the husband’s house and live there with him in
peace. The prospects for this seemed rather uncertain as the collected relatives
continued to shout and argue with great agitation while the aide jostled the
entire lot out of the courtroom on the prow of his ample midsection.
By now the court had been sitting for several hours and the strain of hurried
work, frequent bickering among the litigants, and the day’s increasing heat
were beginning to show. At times the qadi had clearly lost his patience,
especially when delays led him to suspect, as he actually told some litigants,
that they were just playing around with the law. He had listened quietly too,
while some people told obvious lies, but if he regretted his inability to mete out
punishment for such lying he never let on about it. Nor did he seem to mind
that no elaborate deference had been shown to him as a high religious and
legal figure or that the style of courtroom discourse appeared indis-
tinguishable from that of a neighborhood dispute, a market-place squabble,

or a family tiff. Eventually, with neither ceremony nor public acknowledg-
ment, the qadi simply rose from his place and, with the dossier-laden clerk
shambling after, walked briskly out of the courtroom.
In many respects the proceedings of the qadi’s court are unlikely to strike
western observers as particularly strange. Perhaps one might have expected
greater formality, the occasional intonation of Quranic phrases, or frequent
reference to obscure points of Islamic law. Although one might assume that
the court has an essentially religious foundation it would be important to
appreciate that its jurisdiction is nowadays limited to matters of family law
and those property cases for which the court itself drew up the documents. The
limited role it once played in the regulation of public morals — a role shared
with the government appointed market regulator (muhtassib), the head of
each occupational group (amin) and urban quarter (muqqadem), and various
familial, residential, and religious intermediaries (sing., wasita) —is, therefore,
even further diminished at present. Contemporary Moroccan qadis must be
competent to sit in the civil or criminal chambers of the unified court system
and though specialization is usual, it may turn out that on an untypical day the
“qadi”’ is actually a judge (hakem) from another chamber. Indeed, since it has
been common in the Arab world since the earliest days of Islam for
government officials to have their own separate jurisdiction, a number of
issues touching on state policy and the well-being of the community of
believers has never been within the exclusive control of the qadi. Perhaps, too,
one might have expected women to speak less readily or less forcefully in their
own behalf or to be less cognizant of their legal rights. Indeed, one might have
expected in a tradition that pays such heed to the written word that even
greater use would have been made of documentary evidence. But while the
judge’s rulings certainly do not appear wildly unpredictable or arbitrary, their
precise rationale is not always self-evident. For even though the qadi is
undoubtedly exercising his own judgment in some of the matters before him
the real mystery lies in the particular way in which his engagement in such a
process of discretion is shaped by the overall context of his court and his
culture.
Why, for example, is he so concerned about people’s social origins? What
does such information tell him, and why is it relevant? When, in the first case
of marital support, he asks few questions of the poor Berber country folk
before him but tries to see if intermediaries might help resolve the claim of the
urban Arab woman seeking a new residence away from her in-laws, is he using
ethnicity as an index of interpersonal behavior or simply to sustain some
prejudicial view of his own? Is he willing to grant the urban wife’s request for a
new apartment because of a clear legal right when, on other occasions, he has
been known to dissuade a wife on economic grounds from pushing her claim?
Or is he looking forward to a time when non-family members may be needed
to witness the couple’s conduct and the implementation of a court order? Why
in the case of the divorced couple seeking a division of their property does he
move so quickly to the use of oaths, rather than try to sort through the claims
in a “more rational” fashion? Does the use of such an oath actually limit his
discretion, and, if so, is that limitation affected by his decision as to which
party has the opportunity to take the oath first and thus decisively end the
case? What is the rationale, too, for the assumption, in the case of the wrongly
placed window, that positive assertions take precedence over negative ones,
and is the actual content of these assumptions decided by reference to classical
Islamic sources or local custom? Indeed, how is such custom itself established:
by the personal knowledge or beliefs of a qadi who in all likelihood comes
from another part of the country, by what he is told is local custom — and by
whom — or by experts who may not always agree? And if he is capable of
scrutinizing with care the testimony of conflicting witnesses why should the
legal system allow this capacity to inquire to be undercut when a litigant, like
the man in the case of the questionable divorce, is simply able to obtain a
document showing that his witnesses could keep their story straight before
two separate pairs of notaries?
Looked at in this fashion, there appears to exist just below the surface of
judicial decision making a host of assumptions, attitudes, beliefs, and modes
of thought that call for closer inspection. These features, though clearly
evident in the law, are not, however, distinctive to the realm of law alone.
Indeed, it is precisely because most of the concepts and procedures employed
in the legal system are replicated in a number of other domains of Moroccan
life that the justice of the qadi reveals itself most clearly when seen in the
context of the entire culture. In thinking about this particular instance of the
relation of Islamic law and society it becomes useful, by way of analogy, to
move back and forth across the various domains of social and cultural life in
order to understand something about each of them.
The central analogy, the key metaphor, that may prove helpful when
thinking about the social life of Morocco-—and for that matter, of much of the
Middle East — is concerned with notions of contract and negotiation. It is an
image of the bazaar market-place writ large in social relations, of negotiated
agreements extending from the realm of the public forum into those domains —
of family, history, and cosmology— where they might not most immediately be
expected to reside. For at the very center of Moroccan life stands not a set of
corporate groups — tribe, family, or village — defined by collective endeavor or
perduring structure, but the single individual who draws upon a set of
regularized ways to enter into agreements with others and thereby construct a
network of obligations as extensive and as fragile as his or her own negotiating
capacities. It is as if, in the market-place of relations, one were able to operate
in much the same way as in the economic market-place — arranging ties as
advantage and circumstance allow and rearranging them, within the con-
straints of custom, law, and existing entanglements, whenever necessity,
desire, and opportunity suggest their alteration. Just as there are societies in
Southeast Asia or the Pacific in which every activity must be the subject of
ritual if it is to be at all meaningful to its members, or where, as in Japan or
parts of South Asia, no act, from the mundane cultivation of the land to the
terms by which people grasp their own identities, can be imagined that does
not carry implications of hierarchical relationship, so too in North Africa
there is a strong propulsion to envision and treat virtually every domain of life
as subject to the capacity of human beings to shape that domain by the
bargains they strike with one another over it. It is an orientation that tries to
make sense of the world, and like any cultural system, it is itself comprised of
categories and concepts whose distinctive qualities must be carefully
unpacked.
The concepts involved in Moroccan views of self and society can be grouped
into three main clusters: those relating to essential qualities of human nature,
those describing the sources of one’s social attachments, and those connected
to the idea of mutual indebtedness and obligation. To Moroccans, as
elsewhere in the Middle East, human nature is discussed by both men and
women as a delicate interplay of reason and passion — ‘age/ and nafs. All
individuals, it is said, possess both qualities, but the way in which they are
weighted in particular kinds of individuals offers a clue as to the character and
probable actions of those with whom one may arrange a bond — or those upon
whom one may be called to pass judgment. Thus it is believed that while all
individuals possess both reason and passion, the capacity for the development
of reason is stronger in men while the impulse toward passion prevails in the
nature of women. Children, it is said, are all nafs (““passion’’) and very little
‘agel (“‘reason’’), and for that reason it is necessary to channel their impulses
by developing their reason through discipline, education, and proper
attachments. Indeed, it is true throughout the life of any man or woman that
prayer and affiliation with good leaders can lead to the prevalence of reason
over passion, and it is, therefore, a matter of responsible choice to place
oneself in those associations — with teachers, wise men, and enlightened
authorities — through which one’s own reasoning powers may develop. To
understand and assess another’s acts and character it is important to know
something of his or her basic nature and the attachments that give it shape and
definition.
Central to the conceptualization of these attachments is a second cluster of
meanings revolving around the notion of ase/. Asel translates not only as
“origin,” “patrimony,” and “descent,” but also as ‘‘authentic,”’ 99 66 “proper,”
and “strong in character.’ It thereby summarizes the idea that in one’s social
origins — in the people and geography from which one has drawn one’s basic
nurture — the traits and ties that an individual begins with can be most readily
perceived. Where Americans might ask a stranger what occupation he
practices, a Moroccan will ask about his ‘‘origins,”’ his asel, the people and
place from which he stems. Such an inquiry, like that about livelihood, gives
the inquirer a key piece of information, for it suggests who this other is
connected to and the ways in which he is used to forming such ties given the
customs and practices of the region from which he comes. Like one’s nature,
one’s asel — one’s social identity — sets something of the parameters of
negotiable relations and aids any assessment — whether personal or judicial —
of those relationships.
The elements of human nature and social identity take on a more concretely
contractual quality when set beside the third, and most important, of these
Moroccan conceptual domains — the concept of hagq. Haqq means “‘right,”’
“duty,” “truth,” and “‘reality.’’ It is, in essence, a summation of the idea that
all contacts between persons carry with them a sense of obligation — of
something done and hence of something due in return. But although every act
implies an obligation owed or a duty confirmed it is critical to note that the
actual terms of such an obligation are themselves subject to constant
negotiation and manipulation. Thus, if I help you in harvesting a crop you
may try to build on the obligation that is implied by getting me to help you in
forming a marital tie to one of my contacts or by supporting you in an election.
What you may be able to get from me and how are deeply connected to your
ability to play a set of such obligations in the way you see as personally most
advantageous. And because it is this web of obligations that human beings
create through their negotiated attachments to others that is the central
feature of their existence, it is no wonder that hagq should mean not only
“duty,” “claim,” and “‘obligation” but “truth” and “reality.” Indeed, because
it is this obligational linkage that is so crucial to their concept of how reality is
itself constructed it comes as no surprise to learn that attachments to Allah
himself are viewed as contractual in nature and that He is the ultimate
embodiment of this relational reality and is thus referred to, among his other
names, as al Haqq.
To deal effectively in the world Moroccans feel, therefore, that they must
draw upon a repertoire of relational possibilities to construct a negotiated
network of obligations. Aspects of a person’s nature, origins, and web of
indebtedness tell another how this person is connected to others, how they are
most used to forming affiliations, and how they are most likely to act in
differing situations. A constant quest for information thus ensues, a search for
knowledge about the world and individuals’ places within it. To know, for
example, that another is a Berber from an area used to forming distant
agricultural contacts and located at the center of a widely ramified series of
such contacts is to suggest a host of specifics about how to deal with each other
and predict one another’s future acts. Knowledge is never without its practical
implications, for the reason-governed person must seek knowledge of customs
and relations in order to establish a zone of security in a human world where
the rule of passions threatens the outbreak of societal chaos. This quest for
information ina world of uncertainty is neatly summarized by a Muslim trader
in one of Joseph Conrad’s novels when he says: “In the variety of knowledge
lies safety.”” And it is because Moroccans see the qualities of nature, identity,
and network as themselves shifting from situation to situation that one can
grasp a final concept of great significance, namely that of context.
The key word here in Arabic is hal—a richly varied concept from whose root
is generated such meanings as “‘context,”’ “‘situation,”’ “weather,” “‘state,” and
99 66
““condition.”’ When, as they constantly do, Moroccans inquire of another’s hal

they are not just idiomatically asking about one’s state of health or well-being
but the condition or context within which the other was acting. For to know
how another acts in a host of different contexts is central to knowing who
another is, what he or she is most likely to do in other situations. Where, in the
West, it might, at times, be assumed that an individual’s personality can be
given a basic definition that will manifest its distinctive features regardless of
context or situation, Moroccans assume that it is context that makes visible
character and that in order to know what another is like it is not enough to use
terms and concepts that speak of a basic psychic structure; a description is also
needed of what the other has been reliably reported to have said and done ina
host of particular interactions. It is context that reveals persons, not the other
way around.
What results, then, is a view of Moroccans as constantly engaged in
bargaining out their relationships with one another, using as much inform-
ation as they can to assess the way another is most likely to be attached to
others and most likely to affect oneself. This negotiating process is true within
the family — where the range of action is wide enough to allow detailed marital
contracts, widely variant sibling relationships, and the need for overt
agreements instead of reliance on generalized kinship obligation—and beyond
the kin group, where solitary organizations are few and personally built
networks of indebtedness are many. It is small wonder, in so personalistic a
universe, that, as T. E. Lawrence put it generally, “Arabs believe in
individuals, not institutions.”
These general cultural themes manifest themselves in somewhat different
but obviously related ways in a number of different domains of Moroccan life.
Consider, for example, some of the distinctive features of Moroccan views of
time and history. Since at least the period of the ancient Greeks people in the
West have thought of time as having a distinct direction and shape. We speak
of time as being like a line or an arrow; we envision it as marked by growth,
development, and evolution. Such a vision of time couples with our
conception of the individual and society as also growing and developing and
of time and personal identity as linked to one another and mutually revealing.
To Moroccans, however, individuals do not reveal the most essential feature
of themselves — their situated networks of obligations to others — by means of a
direction sustained over a course of time. Not only are such networks
relatively fragile, but given each person’s need to retain flexibility in a
potentially chaotic world the moral, social, and legal universe is under-
standably ordered in such a way as to interfere to a minimal degree with the
retention of this flexibility. Instead, time is seen as a series of discrete packets
of experience, encapsulated instances in which the network of obligations

characteristic of that moment are revealed. In Moroccan chronicles or
accounts of ofdinary occurrences, events are often related not in strict
chronological order but as separate instances whose importance is not
manifested by the temporal order in which they occurred. Each instance is
instead a description of the ties that existed between the individuals involved
at that moment; each is a description of a person in context. It would be as if,
in trying to understand who another is, a host of photographs were scattered
on a table showing that individual in a wide variety of situations. Where
westerners might feel that an essential part of the answer to the questions,
Who is this person? What is he or she like? would reside in arranging the
photos in chronological sequence, Moroccans would focus on the issue of
context — the way the person is reacting in each situated encounter. Time is
therefore marked not as a line or even a cycle of occurrences but as
encapsulated moments of interaction — what one Islamicist has called a ‘milky
way of instants’ — whose temporal ordering says far less about their
participants’ qualities than do the bonds of obligation they contain. It is as if,
to use a different metaphor, each situated encounter showed another aspect,
another facet of a distinct and variegated gem. To ask about a host of such
contexts is to ask who another is: to fill in as many contexts as possible is to
know as much as one can about how another acts under different circum-
stances and is most likely to act in the future.
The interpretation of Moroccan society that is suggested thus appears to
have many similarities to western cultures, but in fact these similarities rest on
quite different assumptions and carry quite different implications. In the west,
as in the Arab world, great stress is laid on the individual. But where in the
west this has come to imply the capacity of each person to fashion his or her
own inner self and then to take that self and grant it a full range of political and
religious support, in Arab culture the individual is the unit into which the
features of background, context, and association are poured and through
which the characteristic ways of forming ties to others are played out. Tribe,
family, village, and quarter form an outer structure that provides the material
that will cohere in the person, but not force any particular course upon him or
her. This stress on the individual unit pervades numerous domains of Arab
culture, from mathematics — with its emphasis on units linked into infinite
chains — to architecture with its overarching designs that do not dictate
internal elements but allow a series of discrete parts to be built up over the
course of space and time. As one commentator has put it: “The stress on the
individual part in Arabic literature, architecture, and music results in a loose,
malleable overall frame or structure that has an organizing rather than a
governing function. . . The concept of organization . . . emphasizes the
individual unit and does not allow the open-ended and inconclusive overall
framing structure to determine the nature or construction of a work’s parts.”
Similarly, in social life elements are constructed into chains of attachment
within the framework of conventions that allow elaborate scope for individual
effort. Everywhere the image of the contract reappears: in the bargain struck
by God with prophets and with men; in ritual, where one may thrust upon the
Almighty the need to reciprocate a duty performed; or in politics, where a
sacrifice may oblige support or where coalitions may be couched in the terms
of mutual aid in planting and harvesting. The features that take shape as
individuals inscribe them through their personal efforts give clues as to
another’s likely moves and customary ways of forming ties. Thus, one can
employ what might be called a code of cultural entailment that suggests that
gender implies the force of passion versus reason, that the relation of passion
and reason suggests how knowledgeable another may be, that knowledge
implies one’s relative social position, that position implies how extensive one’s
network may be, and that the scope and force of one’s ties implies the extent to
which one’s acts have deepfelt consequences in the world. And because the
framework of convention organizes rather than governs, each person must
use language to great effect to build up networks.
From the perspective of the west, therefore, there is a tendency to think of
the tremendous importance Arabs attach to the artful use of language as
predominantly a matter of etiquette and rhetorical flourish. In fact, it makes
more sense to realize that in this society language is the key instrument
through which people negotiate relationships, and that, like a price mentioned
in the bazaar, an utterance means nothing until a relationship is conceived in
its terms. Thus the metaphor of bargaining and contract goes right into the
heart of Arab social life, for the very terms that people use to conceptualize
their relationships possess an essentially negotiable quality. Individuals can
bargain over whether they will act towards one another mainly as cousins or as
neighbors, whether an act shall be seen as an obligation or a favor, whether a
situation is convertible to political aid or limited to financial expectations.
And at each point it is the personification of features, not their abstract quality
or the expectation of role behavior, that matters, whether in the reliance on
personal testimony to the actions of another or the constant inquiry into
another’s set of affiliations.
The implications of this broad set of cultural categories and assumptions
are enormous for every domain of Moroccan life, whether it be politics,
religion, family relations, the structure of the market-place, or — to come
round to the topic of this study — the realm of law and judicial discretion. For it
is, in no small part, from these conceptual foundations that the nature,
purpose, and quality of Islamic law and practice may be more fruitfully
elaborated than by simple recourse to doctrine, statute, or opinion. If, as will
be argued in more detail later, the central figure in Islamic law is not a
corporate group but the legal person, capable of contracting his or her own
obligations and thus inscribing himself or herself in a world whose quintessen-
tial reality is the arrangement of a network of haqq — of mutual indebtedness
and obligation — it is against the background of the broader cultural concept
of haqq that these legal arrangements gain meaning. And if people may enter
and exit such relationships with considerable freedom, it is essential that those
mechanisms employed by the law to give shape and force to these relations be
constructed in a fashion that conforms with, or at least does not fundament-
ally subvert, those common-sense ideas by which individuals continue to
pursue the establishment of their own networks of obligation.
To look at the law, whatever its distinctive institutional features, as an
aspect of culture, and to move back and forth analogically between these two
realms suggests certain ideas that we will also want to explore in some detail. It
is to suggest, first, that in a large number of instances, systems of law possess a
very distinct form of indeterminacy. This does not simply mean that matters
of substance or procedure may vary somewhat from case to case making
simultaneous observation and prediction difficult if not impossible. Rather, it
means that in most legal systems facts must be created as much as recognized
and that the projection of such assessments on a screen of cultural, common-
sense observations often creates a discrepancy, a lack of fit for which the
authority and purpose of the law must seek to compensate. One sees this need
for legal precision against a backdrop of conceptual inexactness in a host of
different systems and instances. We may, for example, be called upon to adopt
a legal fiction whose terms do not accord with the ambiguities of which we
know the situation to be comprised yet accept it in order that a specific
decision may be reached. Or we may state, with far greater certainty than is
felt, that one or another parent is indeed the more fit to be given custody of
their child in order that some clear direction may be given to the child’s future.
Though couched as statements of fact, legal decisions are, quite often, really
creators of fact. Like religion, law is a kind of metasystem which creates order
in a universe that is often experienced in a more disorderly way.
But where some legal systems have, for complex historical and political
reasons, developed modes of conceptualization and styles of implementation
that mimic the extrajudicial world rather little, in the Islamic courts of
Morocco the metasystem of the law and the characteristic forms of its
indeterminate judgments are remarkably close to the overall culture of its
people. This is due in no small part to the goal of the law in this society. For
rather than being aimed simply at the invocation of state or religious power,
rather than being devoted mainly to the creation of a logically consistent body
of legal doctrine, the aim of the qadi is to put people back in the position of
being able to negotiate their own permissible relationships without pre-
determining just what the outcome of those negotiations ought to be. Whether
it is in ordering a new apartment for a couple when the wife and her resident
in-laws cannot get along or in their reliance on the role of reliable witnesses,
the gadi’s courts are devoted, in their procedures and their assumptions, to a
goal that is deeply coupled to the course and concepts of everyday social
bargaining. And it is the interdigitation of these legal and cultural factors that
informs so much of the qadi’s role and the exercise of his personal discretion.
There is a second aspect of Islamic law that flows from this as well. In the
past, when western scholars have discussed Islamic law and the role of the
qadi, they have generally remarked on the absence of doctrinal rigor and the
presence of inordinate discretion. That is, they have characterized Islamic law
— as opposed, say, to Anglo-American common law, European civil law, or
Roman-Canon law — as lacking a rigorous set of logical links among the
various aspects of the overall body of the law. Thus, it is noted that there exists
in Islamic law no general concept of contract or tort around which judges and
scholars could refine their conceptual categories as logic or concrete examples
might demand. Coupled with this, in western eyes, is the presence of great and
unguided discretion, for if the law lacks rigorous standards and principles the
decision of the qadi seems to depend simply on his own feel for the equities or his
own, perhaps prejudicial, opinions of the matter.
If, however, one looks at the actual course and goal of qadi decisions quite a
different interpretation suggests itself — namely, that regularity lies not in the
development of a body of doctrine which is consistent with other elements of
that doctrinal corpus itself, but rather in the fit between the decisions of the
Muslim judge and the cultural concepts and social relations to which they are
inextricably tied. What judges in the system must therefore do if they are to
accomplish the goal of setting litigants back on a course of negotiating their
own relationships is to characterize those relationships at any given moment
and implement their usual consequences by aligning their assessments with the
characteristic assumptions that run through the course of life in its everyday
enactment. That is why, as we shall see, everything from the style of inquiry
and conversation in the court to the legal concepts of social utility and
preferred approaches possesses a conceptual and a cultural consistency of
quite a different nature than we, who look for legal and logical consistency, are
most used to expecting. And that is why, too, what a qadi does and how he
goes about doing it possesses attachments in the world that guide and channel
his discretion in ways that are far from arbitrary and unbounded.
Indeed, it is these conclusions — about the particular nature of law as a
metastructure with its own elements of indeterminacy and of judicial
discretion as not being comprehensible without a clear understanding of the
cultural concepts through which assessments of facts and consequences make
sense — that must be given special attention. Such a cultural approach to
judicial discretion also accounts for why, in later chapters, it will be necessary
to explore the particular means by which Islamic judges determine the
indeterminable and how they seek to comprehend the nature of a person’s
mind in a way that ties up with the assumptions prevalent in their culture.
Such an exercise may also clarify why the qadi and his justice have been taken
as the very antithesis of what is thought characteristic of western forms of
justice. For it is the image of the qadi sitting in the corner of a mosque
dispensing justice off the top of his head that has become, in Anglo-American
legal literature, the archetype of the unprincipled judge, the man who, being
dependent only on his own view of things, may decide as he pleases and thus
engage in a process of adjudication fraught with the possibilities of political
abuse. If, however, we look at his court as it actually operates and if we
comprehend its larger cultural context we can see that it isa system witha logic
and an order of its own.
Indeed, the qadi and his court may tell us something about us— even when it
is, in a most inadvertent fashion, that we sense reverberations of his own style
in a legal forum of our own. Perhaps that is why, when the judge before whom
I so nervously stood in that American courtroom finally spoke, I felt I had
come home again — to the court of the qadi of Sefrou. For rather than decide
what it is the law says and therefore what the law demands, the judge allowed
as to how he might just shut down an important part of the operation of the
utility company if they, who had the expertise to find a solution, did not come
up with an approach that would be perfectly acceptable to those of us who
were being harmed by their operation. More of a qadi than a qadi, he set us on
a course of negotiating a resolution to the problem ourselves. Perhaps, by way
of recompense, we, too, can set off on a course that seeks to reduce neither
difference to universals nor uncertainty to utter precision but rather tries, with
the aid of analogies and our own interpretive powers, to glimpse a culture and
a law that bespeak other ways of working through the conflicts of everyday life
that seem at once so very exotic and yet so very human.
2
Determining the indeterminable
Whatever else a legal proceeding may be — an encounter between contending

parties seeking confirmation of their respective claims, a carefully staged
ritual aimed at the exorcism of potential chaos, a life-threatening confron-
tation with the manifest power of the state —it is not a simple recapitulation of
a past occurrence. It is never really possible to reconstruct exactly the actions
or utterances that gave rise to the case at hand: no witness can precisely
recreate what was once said or heard, and even the videotape of an undisputed
crime cannot delineate the inner state of the accused. Faced with such
uncertainties any legal system must cope with the problem of defining as well
as discovering facts. The system must not only seek ways in which personnel
and procedures may be utilized for adjudication: it must also find ways in
which, for purposes of authoritative decision making, a series of concepts and
assumptions may be adopted or created by which an event may be designated
as relevant or true. By deciding how to assess facts — indeed by deciding what
shall be regarded as a fact — a legal system may create what shall be taken as so.
On its face the idea that courts create things as facts in order that they may be
judicially recognized as facts sounds distinctly odd. But it is precisely the
power of the law to make things so by declaring them so that is quite striking:
when a judge says you are guilty, you are guilty regardless of any difficulties
the judge may subsequently have in enforcing his decision or convincing
others of its wisdom. So too when a court declares that a putative father is
indeed a child’s sire, that a promise is a binding obligation, or that an oath has
’ conclusively established the truth. But where instances can undoubtedly be
cited, in western law and Islam alike, of judicial fabrications proffered as
obvious verities there always remains this curious relationship between the
ability of the law to make things so by saying they are so and the evident need
to perform this task in a way that remains broadly consonant with the sources
of the judiciary’s own legitimacy and the ordinary perceptions and assess-
ments of facts that characterize the society of which the court is a part.
All of this is especially true of the system of Islamic law represented by the
court of the qadi in Morocco. For as we have seen there is a high degree of
20
Determining the indeterminable 2h
consonance between the cultural assumptions and forms of negotiated social

ties that characterize Moroccan society at large and the kinds of consider-
ations to which the qadi must address himself in the implementation of the law
and exercise of his personal discretion. Specifically, one must consider the
ways in which the qadi goes about establishing the facts in a case, and the role
played in his decisions by assumptions about the nature of language, truth,
and the ways that human beings relate to one another. In the course of things it
will be necessary to show how similar these legal concepts and devices are to
those found in other domains of this Islamic society and to suggest why the
legal and social realms may, in this particular instance, be so closely related.
In the preceding description of some of the cases that come before the qadi
in a typical session it is important to realize that almost all of the evidence that
the qadi received was oral in nature: physical evidence is rarely adduced in
court and even documents seem to speak, as it were, less in the disembodied
voice of a neutrally asserted fact than as the preserved tones of witnesses now
absent or deceased. This might seem a strange quality for a society that is
literate and that holds the written word in high regard. But it makes a good
deal of sense if we broaden our view of courtroom evidence and procedure to
understand in more detail some of the cultural assumptions that lie behind the
Moroccan law of evidence. Far from being an obscure domain of technical
detail, the field of evidence is, as Professor van Caenegem has said, “‘a field
that . . . demonstrates the true position of the law in the general context of
civilization: not as a marginal, abstruse technique of interest to specialists
only, but part and parcel of the culture of any given period and one of its most
important elements.” This is clearly true of the law of evidence as represented
in the relation between Moroccan culture and language on the one hand and,
on the other, the nature of the proceedings that take place in the court of the
qadi.
Moroccan society, it has been argued, is, like others in the Middle East, a
highly personalistic society, one in which the single individual, as the
fundamental social unit, draws on a series of relational concepts that gain
further specificity as individuals create networks of interpersonal obligation.
The words and deeds of men and women are the central resource out of which
these webs of indebtedness are forged. Language thus becomes not just an
instrument for expressing the preconceived or prearranged: it is one of the
most critical resources by which one establishes one’s ties, one’s place, and
one’s self. Thus when disputes arise — when facts must be defined and assessed
—it should come as no surprise that the legal system might turn to people’s
utterances to ascertain the nature and context of their differences. The only
thing that is surprising, perhaps, is how thoroughly this emphasis on
language as index and fabricator of the central facts suffuses the entire system
of Islamic law and culture.
Take, for example, the crucial issues of witnesses. As the cases described so
far indicate, the qadi is particularly intent on hearing the testimony of
2) The anthropology of justice
witnesses to the events in issue or receiving, through other court officials,

indications of the witnesses’ statements. In assessing the truth of their
utterances, however, the qadi employs a set of cultural assumptions which
have taken on a particular institutionalized quality in the law. These
assumptions concern the perceived relationship between utterance and truth
on the one hand and, on the other hand, the believability of the testimony and
the character of the speaker.
Consider first the issue of truth. As previously indicated, Moroccans appear
to make a clear distinction between statements made in the course of
establishing a relationship and the truth or falseness that can be said to attach
to any utterance. This distinction sounds peculiar to western ears since even if
we do not believe someone who says he is our friend or who claims to know
another person quite well we at least regard such statements as having some
bearing on the issue of truth, as capable of being assessed at some level as true
or false. But when a Moroccan makes such a bare statement, it is well
understood that this utterance functions not like a statement that is true or
false but rather like a price mentioned in the market-place, a figure that cannot
be said to be true or false until it is accepted, validated by some additional act
performed by oneself or another, and thus brought from the realm of the
proposed into the world of activities that affect the relationships among
people. Such a fractionation of utterances and truth makes a good deal of
sense given the structure of Moroccan social arrangements, for it means that
the things people say about relationships to one another really operate like
bargaining positions and that a high degree of freedom is thereby afforded to
arrange ties wherever they may prove most advantageous. Statements that
work to create relationships simply are not held to standards of truth or
falseness before they have been solidified by some act that brings them into the
world of truth, the world of human relationships. Thus when one man says to
another ““You have an obligation to me” or ““We are ‘cousins’ and here is what
I'd like you to do for me,” it is well understood that such a statement simply
does not get assessed as true or false until, by some act of validation, the offer
to define the tie in terms of kinship or proximity has been accepted. Only when
this additional step occurs may one person seek to hold the other to the
implications of their negotiated tie; only then does it become subject to
evaluation as true or false.
Now the implications of this pattern of freely negotiated relationships that
become transformed from offered bases of relationship into ties that can be
held to their consequences are, for the law, profound. For the court must
decide if a statement was just an unverified utterance, like a price mentioned in
the bazaar, or a validated statement whose consequences the law must
enforce. And, characteristically, Moroccan law has approached this eviden-
tiary issue by trying to establish the stature of such statements before they
actually come to the qadi and by assessing the truth of the statement by
assessing the truthfulness of its utterer.
Since its earliest development Islamic culture and law have laid stress on the
role of witnesses, who are believed to be able to attest reliably to the existence
of certain facts. In religion, the authentic traditions (hadith) of the Prophet’s
utterances and actions were traced through a chain of reliable narrators whose
personal veracity served to authenticate what they had heard or seen. In law,
this emphasis took on two forms: the use of the official notary, or ‘adel (pl.
‘adul), and the attribution of reliability, or ‘adala, to a witness. Both of these
terms share a common linguistic root which means “‘to act justly,” “‘t
balance,” “‘to set straight,”’ “‘to equalize.”’ Traditionally it was one of A
99 66
primary tasks of the qadi to certify that a given individual did indeed possess
the qualities of reliability so that his statements in court would possess a qual-
ity of truth about them. It was as if, by his demonstration in society at large
of his willingness to stand by the implications of what he said, a man was
holding himself out to the world as one whose statements go beyond mere
articulation to become attached to the world of human consequences and
hence of truthfulness. The emphasis on reliable witnesses thus recalls, in some
of its functional implications, the use of legal fictions in other systems of law.
For just as people may accept legal fictions as legitimate even when they know
them to be false because such fictions produce results that are capable of being
regarded as “‘true,’’ so too, reliable oral testimony is, notwithstanding the
tendency for people to forget or lie, accorded presumed credence in Islamic
law because it is through speech that people achieve ties to one another that
can be shaped to the preservation of a community of believers. When a person
regarded as reliable by the court bears witness to a statement it is by the
integration of his stature and his word that actions in the world may be
transformed into facts that are at once judicially workable and culturally
recognizable.
This personal quality of reliability was also early on institutionalized in the
role of the professional witness, the notary. In Morocco, even in the present
time, this institution takes the form of several pairs of notaries who officially
witness statements made before them and reduce these utterances to writing in
any of a variety of documents. Every marriage, for example, is, or at least
should be, registered before two notaries, who record the terms of the wedding
contract — the transfer of bridewealth, any payments that remain outstanding,
and any conditions to which both parties have subscribed — and thus add their
own believability to the statements and actions subscribed in their presence.
Should a dispute subsequently arise, presentation of a document possessing
the signature of two notaries constitutes a strong form of judicial proof. But
note that this means that documents are really conceptualized not as reliable
artifacts in their own right but as the reduction to writing of oral statements
heard by two official witnesses.
It is not, however, simply for fear that documents may be altered that oral
testimony carries greater weight. Rather, the legitimacy of the oral as the basis
of knowledge rests, as we shall see, in no small part on the assumption that
face-to-face interaction is necessary for the elaboration of those densely

interwoven human ties by which social order is itself maintained, and the no
less central proposition that the consensus necessary to that order can best be
achieved when works and character can be assessed by those gathered in the
speaker’s presence. What notaries can do, therefore, is maintain, like a legal
fiction, the image of oral authenticity even when the aura of direct observation
is converted into a more indirect chain of reliable or professional relators.
People may not, however, have taken the precaution of having their
relationships validated by notaries and must, when a dispute breaks out, seek
a subsequent way of drawing their utterances into the realm of the believable.
To be able to testify at all one formerly had to be certified as trustworthy in the
first place, a process that involved calling others already so regarded to
establish one’s own character before the qadi. Such certification was at once a
mark of a person’s integration into the community and a matter which, in
earlier times, was subject to enormous judicial discretion. Devices for
certifying the reliability of a newcomer — from the use of local guarantors to
judicial perceptions based on an elaborate “‘science’’ of physiognomy — were
especially important in larger urban centers where not everyone could be
personally known to the court. Yet it is equally important to see the practice of
certifying the witness as the juridical version of converting mere utterances
into truth-bearing assertions, a transformation that partakes of the deeper
cultural scheme of allowing the free play of language to facilitate negotiation
until it becomes so attached to the parties’ acknowledged relationship that it
acquires the social significance of a recognizable truth. Although the present
court engages in no formal certification of reliability before testimony may be
offered, it is clear that the qadi’s assessment of a witness’s statements
continues to be influenced by knowing something of those features of
background and attachment that formerly governed the certification process
itself.
The emphasis on the direct oral testimony of witnesses is also evident in
several other procedures used by the court. A party to litigation — or one who
wishes to secure his position against possible litigation — may bring his
witnesses before a pair of notaries who will certify that the statements were
indeed made in their presence. While the notaries say nothing about the truth
of what is being told them they do certify that the statements as recorded have
actually been made. The number of witnesses appearing is also important. To
present at least three witnesses is to acquire a document that the court will
have to consider quite seriously; to introduce a document certifying that at
least twelve people bear witness to an issue is to command still more attention.
And to have each witness make his or her statement separately before two
different pairs of notaries sitting apart from one another is to acquire a
document of extremely persuasive quality. That an opponent may challenge
one’s witnesses or their statements, or present an even greater number of his or
her own, simply underscores the emphasis found in court and society alike —
that statements must be weighed in terms of the known individuals among

whom things have been said and actions observed.
The essential”pattern, then, is quite clear. What we find in the law is a
recognition of the free reign of utterance coupled with the need at some point
to attach it to truth in a regularized way. The role of notaries as reliable
witnesses for the court is not unlike analogous means by which ordinary
utterances may be validated in social life. To make a statement valid people
may swear by a particular saint or the Prophet that what they say is so, or they
may commit themselves to some further actions in order to add validity to
what was said. The process of testing for truth by quizzing numerous people
to see if their stories are the same also has its corollary in non-legal settings.
During the Middle East war in 1967, for example, many people asked me
to listen to various European broadcasts, since consistency of the
witness/broadcasts could be taken as proof of the truthfulness of what was
being said. In the law the consideration of documents as redactions of the oral
means that written formalities are of little importance, the key feature being
whether the inscribed utterances stand up to the same sort of scrutiny to which
one might subject the person actually making the statements they embody. It
is, if you wish, a personalistic mentality carried over into a literate and
complex legal system.
But witnesses, of course, appear in court no less than before notaries, and
therefore the work of factual creation does not transpire alone outside the
ambit of the courtroom. It is interesting to note, however, the way the qadi
assesses oral testimony made before him. Earlier, it was suggested that in
Morocco people are known by the contexts which describe their existence —
the circumstances of their social origins, the qualities of learning or craft they
possess, the range of situations through which facets of their interrelations
and qualities have been arrayed and appraised. When, therefore, the qadi asks
people about their backgrounds or circumstances he is trying to get a sense of
who, by this society’s criteria of identity, they are — what they have done or
known or been surrounded by — for such information suggests to him, as to
practitioners of everyday social intercourse, how another is accustomed to
acting in various circumstances. To turn litigants loose to argue with each
other is also to suggest just what the context of their dispute is. To scrutinize
testimony is to apply social concepts of probity to legal constructions of fact.
Thus, it is assumed that close relatives may lie on one’s behalf and their
testimony should, therefore, be screened out or clearly marked by the notaries
when scrutinizing groups of witnesses appearing for a litigant. But it is also
assumed that neighbors are more likely to know what is true about one’s
affairs than those living far away, and hence a limited series of co-residents are
regarded as more believable than an even larger number of another party’s
witnesses who are not from his or her own locale. Indeed, as we saw in the case
of the woman seeking a new place of residence away from her in-laws, Islamic
law grants women the right to be situated, in the law’s phrase, “among
righteous people”’ because of the importance these neighbours may later play
as witnesses to a couple’s actions. And if a judge inquires into a range of other
situations in which a person has been involved — matters that other legal
systems might consider wholly irrelevant to the case at hand — it can be
understood as an attempt to create a view of a man’s character in order to
create a vision of his likely actions in the matter under consideration.
‘Implicit in all of this is the notion that local circumstances and local
attachments shape and define the people whom the qadi and his officials
confront. If the court’s means of drawing out the legally relevant suggests a
tendency to force people’s localized circumstances to speak for them, the use
of other officials besides the qadi and the notaries suggests a similar effort to
resolve factual issues by calling upon the assistance of people who will be most
familiar with local circumstances. It is in this light that the crucial role of the
court experts comes into play.
In a very wide variety of cases the disputants make assertions of fact that
contradict one another or seek monetary awards the court must assess. One of
the primary devices the court employs in these situations is the use of experts
appointed and paid by the court. There are usually two experts who specialize
on each of several substantive topics — property boundaries, marital and child
support, and issues involving the construction of buildings — as well as one
woman who is knowledgeable about matters relating to women’s bodies. The
experts may be asked to apply their knowledge of the locale and circumstances
of the parties to establish, for example, the amount of money people of the
litigants’ background can normally be expected to need for housing, clothing,
or food, or to guide the court by attesting to the quality of materials normally
used in buildings of a certain type and location. There are, it should be noted,
two culturally characteristic features that are especially important about this
use of experts.
First, we have the use, as is also the case with the notaries, of people who
have the sort of firsthand knowledge the court itself may lack. Moreover, these
functionaries are used to prepare and clarify otherwise disputable information
for consideration by the court. When the court uses their findings it thus not
only distributes some of the burden of its decision to those who are deeply
involved as respected and knowledgeable members of the market-place; it also
makes the choice of a given award appear less arbitrary for being based on the
shared opinion of several others. It is yet another indication of how the
legitimacy of the law rests not on some simple religious or political base but
on the concept of personalized knowledge and reputation which is the driving
force of ordinary Moroccan quests for information and affiliation.
But the experts also do something else — they draw customary practice
within the ambit of the law. For the source to which they turn for information
and standards is one that is neither artificial and legal nor personal and
discretionary: it is the practice of people in the area as known and articulated,
in particular, by those who have dealt with such matters so regularly and so
Determining the indeterminable Ai
well that people in the market-place have come to refer to them as masters
(sing. m‘alem) of their trade. As we will see later, this personally authenticated
knowledge of lécal practice has its correlative manifestation in the mode of
judicial reasoning itself. Here, the central point to appreciate is that once again
the way evidence is sought and shaped is, as the use of the experts exemplifies,
one that pushes fact-finding down and away from the qadi so that when it does
arise for his consideration it is less his arbitrary decision or an abstract rule of
law that seems to apply than the standards — often quite variable across
regions — of the particular locale of this court. Such an emphasis is, moreover,
legitimized by strict Islamic law, which sets substantive standards on relatively
few practices, leaving within what the Quran repeatedly calls ‘The Limits of
God’ considerable scope for the varied practices of humanity. And this
religious legitimacy is, in turn, supplemented by the common practice of
people in the region —a practice, as always, that gets much of its own regularity
from its acceptance by those regarded as knowing most about it from their
own experience and success.
Moreover, court experts, like legal presumptions, also serve to sort out
physical evidence that might be relevant to a case, whether it be in deciphering
the existence of a contested passageway from the architectural traces left from
before its closure or the establishment of the injuries inflicted on a wife by the
husband she is suing for divorce. Direct physical evidence — the existence of a
newly built structure or the presence of another on disputed land — is readily
introduced and acknowledged, particularly when brought to the court’s
attention by the experts. Where some inference is necessary it is interesting to
note that the court tends not so much to weigh the evidence against absolute
“scientific” standards as to treat it as confirmation and elaboration of the
local testimony or character of the parties. Even those legal presumptions
against which evidence may be measured tend, as we shall see, to be couched
largely in terms of human nature and relationships. These qualities are readily
discernible in what is often taken as the archetypal instance of circumstantial
proof, namely the Quranic version of the story of Joseph and Potiphar’s wife.
In the Old Testament, it will be recalled, when Joseph refused the woman’s
overtures she snatched his cloak and claimed Joseph had dropped it when
trying to assault her, a claim that landed Joseph in jail, where he began a new
career interpreting dreams. In the Quranic version, Potiphar’s wife makes a
similar accusation after Joseph spurns her. But in this account one of the
woman’s own kinsmen points out that the garment is torn from behind, not in
front, proving that it had been grabbed as Joseph was running away from
Potiphar’s wife and not, as she testified, when she was fending off his attack.
Although cited by some Islamic judges as support for the admissibility of
circumstantial evidence, the Quran itself does not make this argument. Rather
it draws from this story the lesson that women are by disposition perfidious
creatures and that even their own kinsmen should beware of their guile.
In most circumstances, then, it is oral testimony and character assessment
that constitute the basis for the qadi’s inquiry, not because inferences from
physical evidence are unknown but because the court has developed far more
elaborate techniques for dealing with the whole process of witnessing than for
evaluating circumstantial evidence. The confidence both the court and its
clientele place in oral testimony is perhaps related to the criteria used to assess
consequences and harm — the effects of occurrences on people’s relationships —
whereas the development of techniques to discern physical evidence might be
less compatible with this overall orientation. Where in the west we have
increasingly de-emphasized the personal attributes and background of
litigants and defendants and sought to refine our legal and technical
evaluation of physical evidence, Islamic courts continue to stress the person
rather than the single event and thus feel more comfortable with oral than with
material testimony.
The basic modes of shaping facts for the qadi— the use of reliable witnesses,
experts, and forms of judicial inquiry— are, of course, adequate for the normal
run of cases, and though their implementation is never simply mechanical the
routine of judicial institutions removes from many cases the need to confront
contradictions that may arise between and among the various sorts of proof
that may be offered. It is when such conflicts arise, however, that we have a
chance to test the scope and implications of the different standards and
institutions involved.
The qadi may, in certain instances, be called upon to decide on the
credibility of conflicting proofs. It is not unusual, for example, for both sides
in a dispute to present notarized testimony by opposing sets of witnesses and
for the qadi to probe for the greater believability of one set over the other.
Initially he may assess the evidence in terms of a series of assumptions that
have become judicially regularized. He will, for example, regard those who
live nearby as more likely than those who live farther away to know if a
husband has indeed been mistreating his wife, to give the subsequent
testimony of witnesses to a land transaction less weight than a notarized
document made out at the time, or to regard as more credible those who claim
actually to have seen a marriage celebration take place than those who simply
heard about the event. Cultural assumptions, molded and articulated by
judicial action, deeply suffuse the content and application of the court’s
assessment of facts. Indeed what is particularly striking in this system is the
similarity of the concepts by which courts and ordinary people think about
human nature and interaction, and how few are the juridical rules or
procedures that differ sharply from those employed in numerous other
domains of the community’s life. Whether it is in the scrutiny of individual’s
statements or the evaluation of a couple’s marital discord, the mode by which
the court sorts out the credible from the doubtful is remarkably lacking in
institutionalized distinctiveness, notwithstanding the highly developed nature
of Islamic law.
On rare occasions, however, it is the very presumptions with which the
court operates that have been confronted by alternatives. This appears to have
occurred, in recent times, mainly as the result of colonial intrusion or the
adoption by ‘the newly independent state of procedures derived from
European examples. Where such conflicts of presumption have become
evident they are intriguing both for the differences they pose and for the
characteristic qualities of the larger culture they reveal. Take, for example, the
problem that may arise when conflicting assumptions have become in-
stitutionalized in the procedures of courts with overlapping jurisdictions. A
case brought by an elderly informant during the course of my first field trip in
the mid 1960s will illustrate the problem.
Haj Hamed owned a house in one of the old quarters of the city of Sefrou.
Like most such houses it shares its outer walls in common with its neighbors’.
Many years ago the Haj wanted to add a new room on the top of his house, the
outer wall of which would form a party wall with his neighbor. Since the Haj’s
neighbor might be able to make use of the new wall for a later addition of his
own it was, and indeed is, common practice for the neighbor in such a
situation to contribute to the cost of the common wall. But the Haj’s neighbor
refused to pay his share. It was here that the Haj made his mistake. What he
should have done was go to the qadi’s court, preferably with some witnesses
and even better with the neighbor himself, and have the notaries prepare a
document in which the Haj and others would testify that no money was ever
received from the neighbor for the new wall. But the Haj never bothered: he
simply went ahead and built his rooftop addition. Now, almost forty years
later, the Haj’s neighbor set about adding a room of his own on the roof and
the Haj, who is not the sort of man to let such matters pass unnoticed, figured
he finally had a chance to collect his due. But he had a problem: to make his
case to the qadi he needed either the notaries’ document or witnesses to the
original event, and the Haj could not produce either one at this late date.
However, he did have an alternative available. Since Independence the
Moroccan government had reorganized the judicial system leaving to the
qadi’s court jurisdiction over matters of personal status — basically family law
and inheritance — and those property matters for which notarized documents
could be presented in evidence. In addition they established as a separate wing
of the judicial system another court that handled criminal and administrative
cases — and those property or personal injury cases for which no notarized
documents existed. Although the latter court has no notaries attached to it it
does employ various experts. And because the law did not establish a clear
jurisdictional line between the two courts on types of cases or amount in
controversy the Haj could, in effect, choose his forum on the basis of his
available evidence.
More importantly, the two courts make precisely contrary presumptions in
their application of the relevant evidence. The qadi’s court presumes that if
one has a notarized document saying the neighbor never paid his customary
share that position represents the truth unless a contrary form of witness proof
is offered. However, if neither side has any documents or witnesses it is

presumed that the neighbor must have paid his customary share-—else why did
the builder of the wall not get a document attesting to the contrary? —and the
defendant will automatically prevail. But the new court makes the exact
opposite presumption. If the experts report back that a neighbor is indeed
using a party wall, this other court presumes the neighbor has not contributed
to its construction unless the neighbor can prove he has. So even though the
Haj cared little for a court that did not rely on the tradition of the notaries, he
was only too willing to get even with his neighbor by availing himself of the
alternative presumption applied by the newer court.
This case thus provides a striking example of conflicting evidentiary
standards, judicial change, and the relation of law to custom. Leaving aside
for the moment the relation between cultural concepts and legal presumptions
—the shift, in this instance, that has occurred in what I will call the calculus of
consequence — it is clear that the case of the party wall suggests a conflict in the
way these two courts create facts. The qadi’s court creates facts primarily
through the medium of oral testimony substantiated and validated by reliable
witnesses in the form of the notaries or adequate numbers of credible
witnesses, and secondarily by the use of experts. The new court is no less eager
to hear and scrutinize actual testimony, but it is more ready to substantiate
experts where actual testimony is lacking. Both share the tendency to leave
fact-finding to persons other than the judge, but because they calculate
consequences differently a genuine difference in factual creation has come into
existence.
A more common example of the conflict of presumptions arises in those
cases in which western scientific propositions conflict with traditional beliefs.
Medical evidence in particular creates distinct problems for the court. Islamic
law has long accepted the idea, for example, that a woman could be pregnant
for much longer than nine months, a rule that may have served well when
travel was lengthy and legitimate heirship preeminent, but which clearly
contradicts modern science. Or medical testimony concerning an injury done
toa woman by the alleged sexual mistreatment of her husband may contradict
the conclusions offered to the court by the woman expert sent to examine the
wife. Some but not all of these contradictions have been resolved by the Code
of Personal Status which, to cite just one example, fixes the maximum period
of pregnancy at one year and allows both doctors and the court to be involved
in determinations up to that limit.
The acceptability of scientific versus indigenous concepts may test the
attitude of the court no less than the legitimacy of its methods. Throughout,
two impressions remain uppermost. First, that whenever possible qadis try to
obtain information both from outside experts and their own, using to the
maximum their modern statutory grant to appoint any kind of expert and
their right, acknowledged by the highest court in the country, to ignore what
the experts say provided that the court gives clear reasons for doing so. By
using multiple experts the qadi, characteristically, draws upon local know-
ledge and spreads the risk of formulating an unacceptable result. But no less
importantly, the qadi, secondly, shows no hesitation in letting extra-judicial
expertise be as much a function of his reading of the total circumstances of the
case and the character of the parties involved as of the factual nature of the
problem presented. Thus where medical data may be sought when contending
parties have no greater attachment to one another than the circumstances of
the present case or where, for whatever reason, the qadi is not interested in
exploring their interlocking ties, he may be willing to use modern medical
testimony because the case does not call for the continuation of relationships
toward which traditional procedures are more oriented. In both cases, the
qadi’s focus on consequence rather than abstract rules offers characteristic
support to his method and the acceptability of its results.
Problems of factual determination may also arise, of course, if the two
experts assigned by the qadi — or, for that matter, the ‘civil’ court — disagree
with one another. Although no instance of such a case has been encountered in
the records or memory of the court in Sefrou, both the published opinions
from other jurisdictions and the remarks of interviewed gadis conform to a
single approach, namely, that the judge must decide between experts who
disagree using as his guideline a principle we have already encountered — that
the party who claims he or she is being injured should be favored over the one
who denies that harm is occurring. Such a principle not only shifts the grounds
of consideration from that of absolute to relative concerns but clearly allows
the decision to be made on the basis of maintaining the status quo. And since it
is widely acknowledged that custom is habit and habit expresses the general
accord reached in society, the court tends, not surprisingly, to create as fact
what has already been established de facto in society. When the court does
reach out for change, as will be seen later, it often does so in a fashion that is
characteristic of this society, by attaching their decision to the changed
practices in the community or the opinion of one whose reputation has grown
to great proportions.
If it is true that courts cannot recapitulate events but can only “construct”
them, then it is also true that situations may arise where opposing assertions
are equally weighted and no one can say, without invoking either a legal
fiction or a presumption, what is really the truth. Faced with such a situation
the court of the gadi utilizes a mechanism which is not unusual in comparative
legal history — the decisory oath— a mechanism which, in its invocation and in
the manner of its application, is nevertheless characteristic of many aspects of
Moroccan culture.
Taken from the perspective of contemporary western jurisprudence the
oath is usually regarded as a quaint ritual by which we try to conduce
witnesses to be truthful, as a procedural basis for punishing liars for perjury,
or simply as a relic left over from a time when, in the absence of more rational
fact-finding mechanisms, indeterminable issues were submitted to divine
adjudication. A century ago, a justice of the Ohio Supreme Court neatly stated
the modern rationale for the oath when he remarked:
The purpose of the oath is not to call the attention of God to the witness, but the
attention of the witness to God; not to call upon [the Almighty] to punish the false-
swearer, but on the witness to remember that [God] will surely do so. By thus laying
hold of the conscience of the witness and appealing to his sense of accountability,
law best insures the utterance of truth.
It is not, however, to the use of the oath as an admonition to the witness that
Islamic law has recourse to this device. Indeed, witnesses are not sworn before
testifying, even in criminal proceedings, nor is any punishment for perjury
recognized — the common assumption being that in the face of such
proceedings one may well be expected to make statements that do not bear on
the truth. Rather, the oath is predominantly a mechanism for the establish-
ment of judicially cognizable facts, and as such the assumptions and
procedures it incorporates partake deeply of concepts and approaches found
in other domains of Moroccan life. In a society in which, as we have already
seen, it is well understood that people must be free to make statements that
could bring relationships into existence without truth being an immediate
consideration, so, too, in the legal realm this common practice is recognized
and witnesses are allowed to speak freely and judges to inquire cleverly, and
no oneis held to the implications of truth until truth is made to attach either by
a final oath or by an official pronouncement of the court. Oaths, in law, thus
fix what has been said, bringing it into the realm of the true, just as acceptance
of a price in the market is the act that makes the price count as true for the
relationship formed through it. And just as there are conventions for the way
an utterance in social bargaining takes on aspects of truth, so, too, the law
possesses, through the oath, a mechanism for affixing the articulated as true.
Oaths may take several different forms in Islamic law. We have in a sense
already seen one version of an oath in the group of witnesses who come before
one or two pairs of notaries to have their statements attested by reliable court
witnesses. This form of collective oath-taking may have received impetus in
Morocco from the Berber custom of co-swearers, a process which, like the
oath of compurgation in medieval western law, involves a group of men who
collectively offer their testimony. Among the Berbers, the usual process was
for the plaintiff to choose the defendant’s lead witness and for the latter to
choose an additional forty men to join him in the oath. As in the
compurgation oath in the west the swearers were attesting not so much to the
facts in the case as to the character of the defendant. In effect what the lead
oath-taker states is that “I, a man you the plaintiff have chosen for his
reliability, assert that the accused is not the sort of man to have done what is
charged and I have gathered these others who will back me in making this
statement of his character.” In this situation, to paraphrase Aeschylus,
perhaps it is not the oath that makes the man believable, but the man the oath.
The use of group witnessing in the qadi’s court, however, is directed toward
the question of actual occurrences rather than character, and the court will
subject even the testimony sworn separately before two sets of notaries to
rational scrutiny.
The testimony of litigants and witnesses, as well as the notarized documents
they introduce, may, of course, be totally contradictory. Or there may simply
be no evidence on either side to support the various contentions. Short of
invoking a legal fiction or presumption the court may be asked by one of the
parties — or may itself require of one who hopes to further his claim — that a
holy oath be sworn in support of the litigants’ assertions. This decisory oath is
a key ingredient in the shaping of the qadi’s justice and discretionary powers.
On its face the procedure appears rather mechanical. If neither side can
present adequate support for its claim one party may challenge his opponent
to take an oath in support of the latter’s assertions. If the opponent does so he
automatically wins the case. If he chooses, however, he may refer. the oath
back to the challenger, who may conclude his victory by swearing to his claim.
This system is by no means unique to Islamic law. Indeed, it is still possible in
Spain, Holland, France, and Italy for one litigant to demand that the other
take the oath or refer it back to him, the first to swear being the winner of the
case. What is unusual about the Islamic system of decisory oaths is that it is up
to the qadi to decide which of the two parties shall, for the purposes of taking
the oath, be designated as the one who may first challenge his adversary to
take the oath. Since the first to swear cuts off the other entirely the designation
is crucial to the outcome. But where, in other systems of law, the priority of
oath-taking is determined simply by who is the plaintiff or defendant in the
case, in Islamic law the court may designate either party as the one who may
issue the challenge first. The qadi’s decision thus infuses the decisory oath with
a number of rational and cultural elements that take it far beyond a simple
matter of rational proof or arbitrary discretion.
Indeed, it is possible to characterize the process by which oath-taking is
allocated with some specificity. The basic source for this procedure is said to
be the assertion by the Prophet Muhammad that “the burden of proof is on
the mudda%; an oath is incumbent on him who denies.” This term mudda “,
and its opposite mudda‘a ‘alay-hi, have been characterized by some as,
respectively, the plaintiff and the defendant, or as the one who says “it was”’
versus the one who says “‘it was not.” But this does not accurately fit the cases.
A complex, but more accurate definition, by an early commentator, states;
“the mudda‘i is he whose averment lacks both any ordinary and any special
presumption in favor of its truth; and the mudda‘a ‘alay-hi is he whose
averment is supported by one or another of those presumptions.” In other
words, the qadi looks for the person who is presumed most likely to know
what is true about the matter at hand or the one who is presumed to have been
carrying out his or her tasks correctly, and he then designates that person,
whether he or she instituted the claim or was the one sued, as the person who
might first be challenged to take the oath. Several examples may help to clarify
this point.
In Moroccan law, both before Independence in 1956 and since, it is the
mother and her relatives who are, in the event of a divorce, accorded custody
of a child until the child reaches maturity. To retain charge of a child the
custodian must possess certain qualities, described in the present code as
reason, maturity, honesty, the ability to raise and protect a child, and the
absence of any contagious disease or relevant disability. But when, for
example, a father sues for a change of custody because of the existence of some
impediment in one of these qualities it makes all the difference whether the law
presumes that the present custodian does indeed possess these capacities or
requires her to prove that she does. In most cases it is in fact the defendant,
favored by the presumption that he or she is entitled to remain undisturbed,
who by taking an oath can cut off any further recourse by the plaintiff. If,
however, a dispute arises in which the court believes that, in the normal course
of things, it is the plaintiff who has the greatest degree of knowledge of the
relevant issues it is that person who will be designated as the ““defendant” for
oath-taking purposes. Thus, as we have seen, the court will require a husband
to swear that objects that would normally belong to a man are indeed his even
though it may be he who initiated the suit for a division of marital property. In
the child custody case, the approach generally accepted by Moroccan courts is
that the person who actually has custody is presumed to possess the qualities
of a custodial parent, and the person who denies that the custodian has these
qualities is designated as the “plaintiff’ for the purposes of the oath. This
means that all other avenues of proof having been exhausted, the custodian
need only swear that she meets the stated requirements and she will have
established her claim to continued custody. Were the presumption reversed —
as some commentators argue it should be — the matter might more likely be
resolved in favor of the challenger. As always, the party who first has the
opportunity to take the oath may refuse to do so, thus affording the opponent
the chance to win the case decisively by swearing to the truth of his or her
claim.
Now there are a series of fascinating issues raised by the use of oaths in these
legal proceedings. One that may immediately come to mind, of course, is that
it affords liars a fairly easy opportunity to win their cases if they can simply get
themselves designated as defendant in a suit of their own creation. It is
important to appreciate, however, that at least in the past, the sanctioning
power of an oath was very significant. Many people to this day strongly
believe that a false oath will definitely incur supernatural sanction, if not
immediately then in the long run. I have myself not only seen many cases
where one person refers the oath back to another: I have even witnessed a case
in which a person maintained his claim all the way from the court to the
mosque where the oath was to be taken only to stop on the doorstep, refuse to
swear, and thus relinquish his preemptory right to conclude his claim
successfully. The fact that the outcome of a case cannot, on the majority view,
be overturned even if a person is subsequently shown to have sworn falsely
further demonstrates the importance that the courts, in the traditional
absence of an appellate structure, attached to achieving finality. Perhaps, too,

notwithstanding modern appeals courts, the qadi is well aware that if his
“final” decision simply provokes further disputes he will very likely have the
chance to rehear the parties at some future date.
But there is doubtless another aspect to the use of decisory oaths, namely,
that people often know, or think they know, the true facts in a case, and if they
see another is willing to swear falsely they are less likely in the future to want to
form a negotiated bond with such an unreliable person. Thus, once again, the
personalism of Moroccan social relations, the need and ability to forge ties
wherever they prove most effective, can contribute to an individual’s
unwillingness to risk his overall attractiveness as a partner in favor of a short-
term gain others believe has been bought at the price of a false oath. And
because the oath is, in extrajudicial contexts, one of the primary vehicles
through which ordinary utterances are brought into the realm of the truth —
the realm of human relations — there is even further support to the
maintenance of this legal mechanism whatever the range of contemporary
theological assumptions.
Clearly, then, the oath is far from being an irrational mode of fact-finding.
For quite aside from the mundane sanction that may attach to its violation it is
clear that in legal cases the oath is preceded by a highly rational process of
assignment — to a parent already having custody, to a man concerning what
normally belongs to a man, to a bride claiming to have been a virgin — all of
which are based on reasonable cultural assumptions about the nature of facts,
human relationships, and desirable social consequences. Indeed, instances
like these suggest that there may bea very strong rational element in the use of
oaths and even ordeals in various legal systems, but that the rationality lies not
in some psychological or scientific proposition that the people involved have
not adequately articulated — that lying increases the heart rate, which makes
the administered poison of an ordeal work, or that one who believes he is
telling the truth can psychically keep his hand from burning when it is
immersed in a vat of boiling liquid. Rather, such oaths and ordeals may tend
to be assigned to those whom society has reason to believe are most likely to
know the truth, and by leaving them a way out — by referring the oath back to
another, in the Moroccan case — both that assumption and the social relations
the use of oaths tends to uphold are given effect and consonance with the idea
of a divine justice that informs an Islamic community of believers.
Indeed, it is this last point — of the order and coherence that the court of the
qadi seeks to express and maintain — that can help us to understand the use of
oaths in particular and some of the central qualities of Islamic legal systems in
general. Oaths, as we have seen, can be said to possess both rational and
irrational features, and indeed it is in these terms that most legal theorists,
usually following the typology of Max Weber, have discussed them. These
discussions naturally recall, for anthropologists, those that have gone on for
more than a century about the nature of magic. For just as E. B. Tylor and Sir
James G. Frazer could argue that the practice of magic by primitives was a
distinct, if misguided, attempt to conduce a world of natural occurrences to
conform to human explanations or acts, so, too, oaths could be regarded as
invoking a sort of prescientific science to bring the indeterminate into accord
with a human need to comprehend and constrain. And just as Bronislaw
Malinowski could argue that magic functions to support the individual’s
psychological need for certainty and orderliness and is, therefore, called into
use only when that need cannot be fully met by acts that obviously produce
desired results in the everyday world, so, too, one can easily find in the use of
oaths an attempt to resolve disputed facts which common sense, cultural
assumptions, and judicial scrutiny cannot adequately establish. But the
problems inherent in such analyses of magic are equally prevalent when oaths
are considered — of reifying individual psychology on the basis of collective
acts or assuming that beliefs can be categorized as correct or mistaken,
rational or not.
In recent decades students of magic, ritual, and religion have, however,
broken away from these earlier dichotomies and have come to suggest that
these practices are more fruitfully seen as expressive events, acts by which the
members of a community draw on the store of symbols through which they
have publicly inscribed their assumptions and beliefs and displayed to
themselves a vision of the world that, for them, makes sense. Such a
perspective avoids the constant attempt to draw distinctions between the
magical and the scientific, the rational and the irrational — as well as sterile
debates over who has more of which, them or us. Instead, it puts the focus on
the coherence or lack of coherence of a society’s assumptions and the cultural
vehicles through which their sense of the orderly is expressed.
When this approach is applied to Islamic law — not just the use of oaths but
the legal system as part of the entire cultural system — some intriguing
implications suggest themselves. Thus, it can be argued that it is not any one
element of the process of legal fact-finding, any more than it is simply the
ritual act of reversing one’s garments to turn a Moroccan drought into
bounty, that makes the desired consequences flow. Rather, it is the coherence
of the entire system — of prayers and rituals, beliefs and practices, judicial
inquiry and subjective assessment, oral witnessing and divine oaths — that
contributes to the acceptability of any one element within the cultural scheme.
A ritual thus gains its meaning — its connectedness to and summation of its
people’s culture — not from one “rational” or “irrational’’ element alone, but
from the way it structures the entire process into an expressive form, a total
performance, that accords with a people’s felt sense of things. And an oath,
like a ritual, a play, or a dance, “works,” because of its connections to the rest
of its culture — because (in the Moroccan instance) it presumes that same
emphasis on the personal found elsewhere in the court and the culture,
because it expresses the desire to attach truth to a mere utterance in much the
same way that anyone bargaining in the market-place of relations must
validate his assertions, and because it creates consequences for relationships

not bya physical act — of combat or ordeal — but by the mechanism that North
Africans regard as the surest instrument for affecting the web of indebtedness
that binds man to man and man to God — the statement, the word, the reliably
witnessed utterance. Thus each element of the process of creating and
discerning facts gains meaning not from its explanatory or practical effects
alone, but from its embeddedness in a whole set of expressive symbols that
cohere in a recognizable and acceptable way for the people whose lives are
informed by them.
But there is another feature to legal systems like that of the qadi that lends
them a quality which, though arguably present in ritual and art as well, is
particularly heightened in the context of adjudication. For, as we have seen, a
judge can by the very act of declaring something to be so actually makes it so.
His role, in many instances, is thus like the third of those three kinds of
baseball umpires that Hadley Cantril humorously spoke of in an early work
on social psychology: the first is the umpire who says: “‘There’s balls and
there’s strikes and I calls em as they are’’; the second says: ‘“There’s balls and
there’s strikes and I calls em as I sees ’em’’; but the third says: ‘““There’s balls
and there’s strikes and they ain’t nothin’ till J calls ’em.”’ Like this last umpire
the qadi can truly create reality. The word ‘‘reality”’ is used advisedly in this
context because the word in Arabic for reality — haqq — is one of the central
terms in the entire culture, embracing as it does the ideas of truth, obligation,
right, and duty. Hagq thus summarizes the idea that it is the distribution of
obligations that is the truest, the most real thing there is, and it is the qadi who
is particularly capable of affecting this reality, these networks of obligation
that men and women have forged by their own negotiations, with the single
pronouncement that something is a fact. Like judges in some other cultures,
he faces a society which is uncertain, chaotic, and indeterminate, and must
create out of it an assessment that is itself quite determinate. Like our
existential umpire, he is not likely to make his calls in a way or by criteria
which, though they may remain rather fuzzy around the edges, lack any
specificity whatsoever. Quite the contrary: his entire way of determining facts
has, as we have seen, a distinct shape, indeed, a distinctly Moroccan and
Islamic shape. For in addition to the emphasis, so central to the way
relationships are formed in society at large, on personalism, oral evidence, and
reliable witnessing for validation, there is a clear tendency in this system for
the definition and determination of facts to be pushed down and away from
the gadi to those highly localized personnel and procedures — the notaries and
experts, the witnesses and customary practices — on which relationships
themselves depend for their coherence.
Moreover, as will be argued in the next chapter, it is because the modes of
reasoning employed in court and culture lay stress on the consequences of acts
over their antecedents and because the central goal of the law is to place people
on the track of negotiating their own relationships that the justice of the qadi is
not predominantly dependent on formalities of procedure or courtroom style,

judicially articulated levels of proof or internally refined bodies of legal
doctrine. Rather, the Moroccan court captures the indeterminacy of
Moroccan society in that society’s own terms, embracing and containing
variation by means of a culturally characteristic mode of reasoning and the
religiously approved goal of encouraging men to contract their own ties within
the limits set down by God. In turning, then, to the cultural as well as the legal
aspects of the modes of reasoning, the assumptions about others’ minds, and
the implicit idea of justice found in contemporary Morocco it becomes
possible to see the qadi as neither an arbitrary adjudicator nor an enigmatic
oracle but as one whose words and actions afford a fascinating entry to his
entire culture.
Plates
Plate |
The Magamat, or ““Assemblies” of Abu Muhammed al-Qasim ibn Ali al-Hariri

(1054-1122) contain numerous stories of wise or gullible qadis. The narrator, al-Harith,
travels across the Middle East and is received by learned men while the trickster figure, Abu
Zayd of Saruj, appears in many disguises and places, often at the side of a qadi and
following the litigants out of court. The Assemblies were the subject of numerous
illustrations, most dating from the thirteenth and fourteenth centuries. They have been
collected and annotated in Oleg Grabar, The Illustrations of the Maqamat (Chicago:
University of Chicago Press, 1984).
In one such assembly, the eighth, an old man and a youth appear before the qadi of
Ma‘arrah. The old man claims to have lent the youth a beautiful slave girl who was then
mistreated, while the youth claims that the old man detained as compensation a male slave
of excellent quality belonging to the youth. Sensing the enigmatic aspects of their story the
qadi bids them speak plainly, and the old man admits he actually loaned the youth a needle
that was then broken and retained in turn an eyebrow pencil belonging to the youth. In
elaborate and plaintive verse the old man characterizes himself as being so poor he cannot
even afford the loss of a needle, and the qadi, taking pity on both, offers them money and
bids them depart in peace. Later, growing suspicious, he sends for both and promises no
punishment if they will admit their deceit. The old man then acknowledges that the youth is
actually his son and that they fabricated the dispute in order to wheedle money out of the
judge:
By every art, and with every aim:
by earnest if it prosper, and if not, by jest.
That we may draw forth a drop for our thirsty lot,
and consume our life in wretched virtual.
The qadi praises the old man for the brilliance of his speech and releases both upon their
promise to work no further deceit. Illustration: National Bibliothek, Vienna, A.F.9, folio
30°.Text: Thomas Chenery (trans.), The Assemblies of Al Hariri, vol.1 (London: Williams
and Norgate, 1867), pp. 145-51.
Plate 2
“TIn the ninth assembly of al-Hariri], Harith in his wanderings comes to Alexandria, and,
in accordance with his custom, makes the acquaintance of the Qadi, who, as appears in the
sequel, is a good-natured and benevolent man. One evening, in winter, the Qadi is
distributing the public alms, when an ill-looking old man is brought in by a young and
handsome woman who accuses him of having married her on false pretenses. She declares
that he had deceived her father by giving out that he has an excellent trade as a pearl-
merchant; that he has been incautiously accepted, and that now, when it was too late, she
has discovered that he has no business at all. Moreover, he had taken all her dress and
furniture, piece by piece, and sold it to keep himself in idleness, leaving her and her child to
starve. The Qadi is indignant, and threatens to send the husband to prison, unless he can
clear himself of the charge. The defendant is in no way disconcerted, but at once improvises
some elegant verses, in which he admits his poverty, and that he had sold his wife’s effects,
but denies that he has deceived her in calling himself a “‘pearl-stringer,”’ for the pearls which
he meant were the pearls of thought, by stringing which into elegant poems he had been
accustomed to make a large income from the liberality of the rich and noble. Now, however,
times were changed: war and trouble had come upon the earth, and a race of niggards had
succeeded the generous patrons of the old days. The Qadi accepts the excuse, bids the
woman submit herself to her husband, and gives them some of the alms money; on receiving
which the old man triumphantly carries off his wife. Harith had discovered that it was Abu
Zayd, but was afraid to tell the Qadi, because in that case he might have to decline to relieve
such an imposter. But when he is gone, Harith cannot forbear suggesting that he should be
followed and some news of him brought back. A messenger is sent and returns quickly to
say that he found Abu Zayd dancing and singing in joy at his success. The Qadi treats the
affair as a good jest; and declares that if he had known who he was he would have been still
more liberal.” Illustration: Bibliothéque Nationale, Paris, ms. arabe 5847, folio 25. Text:
Thomas Chenery (trans.), The Assemblies of Al Hariri, vol.1 (London: Williams and
Norgate, 1867), pp. 151—52.
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A bedraggled old man appears in the thirty-seventh assembly of al-Hariri and complains
to the qadi that his son is disobedient — ‘“‘when I spoke plain, he shuffled in his speech, when
I kindled a fire, he put it out, and when I roasted, he scattered ashes.” The son denies the
charge saying that he had always been taught by his father not to be covetous, but now his
father inveighs upon him to beg for their living. The father responds that when needs
demand one must depend on the generosity of the wealthy, and he recalls how the son
himself had once said: “Sit not content with distress and suffering hunger’s pangs, that
people may say he is high-minded and patience full.” The son replies that people nowadays
are without concern for the poor, but the qadi, proud of the reputation of the men of his
region for generosity, responds by himself bestowing a sum of money on the pair. The
narrator, suspicious that the entire story may have been concocted to elicit money from the
judge, follows the pair out of court but is unable to establish with certainty their identity or
motives. ;
Illustrations: (a) British Library, London, or. 1200, folio 120°; (b) Bibliothéque Nationale,
Paris, ms. arabe 5847, folio 114°. Text: F. Steingass (trans.), The Assemblies of Al Hariri,
vol. II (London: Royal Asiatic Society, 1898), pp. 83-89.
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Public scribes are often employed by litigants, as well as ordinary letter-writers, to prepare
papers for court proceedings. Some who possess religious or magical knowledge prepare
amulets and inscribed phrases used in supplications for divine assistance or affairs of the
heart. These scribes, like the clerks who serve in the courts, have deep historic roots in the
institutions of Islamic law and society. The clerk and litigant in (a) come from an illustration
of the twenty-sixth assembly of al-Hariri (Bibliothéque Nationale, Paris, ms. arabe 5847,
folio 79).
Photograph (b) shows a scribe at work in the public market-place of a Moroccan city
around 1930 (Morocco: A Country of Islam. Casablanca: Editions Maurice Bory, n.d.).
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3
Reason, intent, and the logic of consequence
It was in November of 1608 that King James I of England, a monarch who

prided himself on his great learning and wisdom, confronted the greatest jurist
andparliamentarian of the day, Sir Edward Coke, about Coke’s belief in the
privileged status of judges as the sole interpreters of the common law. Since
God had bestowed Reason on all civilized people and since English law claims
to be founded on Reason, why, James inquired, could not any intelligent and
exceptional man — a king, for example — be qualified to interpret the law?
Coke responded to this threat to judicial supremacy with the following
argument:
True it is that God has endowed Your Majesty with excellent science, and great
endowments of nature; but Your Majesty is not learned in the law of this your realm
of England, and causes which concern the life, or inheritance, or goods, or fortune
of your subjects, are not to be decided by natural reason, but by the artificial reason
and judgement of the law, which law is an art which requires long study and
experience before that a man can attain to the cognizance of it.
Coke’s argument that law proceeds by means of what he called “‘artificial

reason”’ seems so apt a characterization of western forms of legal reasoning
that we may have a tendency to think it universally true. We are used to seeing
words of ordinary meaning — words like “negligent,” “willful,” or “‘inten-
tional” — become terms of art when employed by lawyers and judges, and we
may accordingly characterize many instances of judicial logic as strained or
intended to mask a hidden purpose. Indeed, one has only to try drawing up
one’s own will and then present this seemingly straightforward document toa
lawyer to see the wonders of legal language — like some reverse alchemy —
transform “children” into “the issue of my body” or watch our highest courts
comparing generations of cases in order to decide if the legislature meant to
include a capon asa chicken or a biplane as a vehicle in order to experience the
peculiar use of language and logic in our law. That a given legal system should,
as we have seen, develop its own assumptions or fictions to deal with that
which can never really be determined precisely or that, as we shall see later, the
39
development of such artificial reason should be deeply entwined with the

political context of the law’s reach is of obvious importance to an understand-
ing of legal styles of thought and use of language. What is perhaps less
obvious, however, is that a legal system may, by its goals, its sources of
legitimacy, and its particular relationship with the larger culture of which it is
a part, evince very little indeed in the way of artificial reasoning, so much of its
authority and impact being dependent on its incorporation, within a
distinctive institutional context, of the very same modes of thought and
substantive results that characterize a host of domains of everyday life.
Indeed, it is precisely the argument here that not only do the modes of
Moroccan judicial fact-finding discussed earlier fit with — indeed share with —
the broader culture their characteristic emphases on reliable witnessing,
validation of non-truth-bearing utterances, and oath allocation based on
rational cultural assessments, but the same is essentially true when we turn to
the nature of judicial reasoning, where the mode and goal of the court’s
thinking is extraordinarily similar to that which is found in most other
domains of Moroccan daily life.
This problem of the nature of judicial reasoning and its connections to the
world of politics and culture is, of course, common to many developed systems
of law. At least three main approaches are discernible when forms of legal
reasoning are viewed across cultures and times. One is for a set of rules to be
articulated and for judges to couch their decisions, however they may actually
be reached, in such a way as to give the appearance that they have been derived
by a simple process of deduction from the announced rules. A second is for the
judge to gauge an individual’s actions against a broad standard, like
“reasonableness” or ‘“‘due care,”’ which can incorporate everyday experience
and for which the judge must now, by recourse to prior decisions or applicable
legislation, measure the particular facts presented him and pronounce upon
their correct categorization.
A third approach, which may employ elements of the first two, consists of
the rules being drawn in such a way as to justify a wide range of individual
results from which the judge may choose. If particular procedures are
followed or if limiting precepts are not overstepped considerable leeway for
results may be permitted without the results themselves or the substantive
rules from which they are generated always having to appear precisely similar.
In the latter instance rules serve more as guidelines and reasoning consists in
the establishment of an individual result within the ambit of the acceptable.
Indeed, while it may in some instances be true of other orientations as well, it is
a particular characteristic of this third mode of reasoning that people will
accord legitimacy to their courts not because judgments are given the
appearance of being uniquely correct but because they simply stay close
enough to what their citizens are prepared to accept. Just as the economically
rational man may be able to live with either of two contradictory rules or
results if the terms of analysis fall within the range of leeway allowed by his
mode of thought, so, too, a judge whose system of law has not jeopardized its
legitimacy by eliminating culturally acceptable alternatives does not always
have to be right — he must only avoid being too clearly wrong.
Now, when we look at the justice of the qadi in the light of this highly
schematized array of alternatives, an argument suggests itself that will serve as
the focal point for the present discussion. It is, quite simply, that the qadi,
rather like the third model, operates within a range of acceptable results and
that these results are minimally shaped in their outer perimeter by the small
number of specific rules laid down in the Quran and are, to a far greater
degree, subsequently dependent on an assessment of the consequences that
various actions have for the construction of interpersonal obligations within
the community. Of no less critical importance is the idea that the central goal
of the law is to set people back on a track of negotiating their own
relationships, an orientation that supports a mode of judicial reasoning by
which constant reference is made to the local practices of the people and to the
application of those same modes of reasoning by which these negotiated
relationships are themselves rendered possible. It means, in short, that the
reasoning of the qadi, far from having to develop artificially to assert its
legitimacy or political independence, is constantly embroiled in the assess-
ment of situated actions through many of the same modes of thought that one
finds throughout all domains of Moroccan life. To see what the implications
of this claim are for an understanding of Islamic legal organization, we must
turn to an analysis of the particular ways in which the qadi employs his reason
in the determination of a judicial result.
Students of Islamic law invariably begin their description by noting that
there are four classic sources of Islamic law, namely, the Quran, the
authoritative Traditions about what the Prophet himself said or did, the
process of reasoning analogically from instances cited in these basic texts to
those confronting the judge for the first time, and the general agreement or
consensus of the community — or at least its leading members — about how a
given problem should be handled. But it is interesting to note that each of
these sources is quite different from the others. The Quran is the only source of
law that is written, and it earns its special status by being the exact spoken
word of God as reduced to writing by the Prophet, who was himself illiterate.
Unlike, for example, the Old Testament, the Quran contains relatively few
rule-like statements of law, and those it does recount are designated as “‘the
claims of God,”’ all else, the entitlements and obligations of man, being left
largely to humanity’s own determination so long as people do not overstep the
limits set down by God. The Traditions, by contrast, were recorded after the
Prophet’s death, and like the evocation of valid evidence they center on oral
transmission through a chain of named relators back to one who may be
regarded as a reliable witness of what the Prophet actually said or did. Thus
while these Traditions constitute substantive guidance, they mainly depend
for their authority on a mode of reasoning — on oral witnessing by those who
are personally discernible as reliable. Analogic reasoning, or giyas, is entirely a

mode of thought, while consensus, ijma‘ works from the Tradition in which
the Prophet says that “my community will not agree in error” and allows
general practice, at least as articulated by community leaders, to establish the
legal standards. Note, too, that in theory custom is not a source of lawin Islam
but that by each of the three means other than the Quran it can and does
receive legal implementation. What is particularly striking, however, is that at
the very outset Islam takes as sources of the law things that are really methods
or techniques — modes of reasoning or of “discovering” law — and that, with
the exception of Quranic injunctions, there is a great deal of malleability and
personalism built into these sources.
Contemporary gadis in Morocco, as elsewhere in the Middle East, are very
much the heirs to the sort of method implied in these classical sources of
Islamic law even though a number of particulars have changed over the course
of the centuries. When announcing an opinion or recording it in the court
records, qadis rarely refer to the Quran or Traditions. Since the adoption of
the Code of Personal Status shortly after Independence in 1956, Moroccan
qadis are far more likely to cite the relevant provision in the code and simply to
state the relation of the facts, as developed by the notaries and experts, to this
new code. But however much the facts may be shaped for the qadi by lower-
ranking personnel in the court and however much the code may detail
particular approaches to a number of standard issues, the process of judicial
reasoning cannot be reduced to the mechanical application of code to
circumstance. For as we have already seen in the development of evidence, the
establishment of facts is itself a process dependent on the creative application
of common cultural assumptions to specific, legally cognizable events. So,
too, in the application of reason.
Take, for example, the not uncommon situation in which there is no clear
provision in the code or for which the range of judicial leeway is specifically
licensed by legislation. In such a case the modern qadi may indeed resort to a
form of analogic reasoning. In one such instance, a qadi had been presented
with a notarized document in which twelve witnesses testified in an inheritance
dispute that they knew the plaintiff to have been lawfully married to the
deceased. The defense claimed that a number of the witnesses were not from
the village where the wedding was said to have occurred or were not present
when the wedding happened many years earlier. Given this assertion by the
defense several of the plaintiff's witnesses did an about-face and claimed that
they had never actually testified to knowledge of the wedding itself, only to
having been around at the time it was said to have occurred. If their testimony
were removed, the plaintiff's case would have suffered greatly since it would
have dropped the number of witnesses necessary for this form of proof below
the requisite twelve. The plaintiff, however, responded by arguing that a
denial as to some of one’s testimony was not analogous to a complete
retraction and that if what the witnesses claimed to have heard from others
about the occurrence of the wedding nevertheless had probative value, the
qadi should continue to regard them as valid witnesses for purposes of the
notarized document. Scholarly opinions supporting their respective positions
were presented to the qadi by both sides, but the qadi favoured the plaintiff's
position, stating that although others might see it differently, this case was
more like a situation in which some of the facts are stated with certainty than
one in which previous assertions have been categorically denied. Since the
witnesses testified as to features that were common for weddings at that time
and in that part of the countryside and since a retraction embraces the idea of
denying even the knowledge of things that would appear quite credible, it
would, the qadi concluded, be quite inappropriate to analogize the shift from
personal to hearsay knowledge as equivalent to a full retraction.
An opinion such as this clearly shows how a series of factors cohere in a
single act of judicial reasoning. For not only is there a clear choice of one
analogy over another, but a distinctive set of techniques and assumptions
themselves shape the process and the goal of the choice made. Here, for
instance, we see the court having recourse to a presumption that is distinctive
to Islamic law, namely, the idea that an assertion of a “positive” fact should
take precedence over a “negative” one — that is, all other things being equal,
that testimony about something having occurred should be favored over
testimony that it did not. In this particular case the qadi took as a positive
assertion the circumstantial details about which the witnesses still admitted
hearing, even though they withdrew their claim to any more direct knowledge,
and used this presumption to thwart any implication that the witnesses were
now saying that no wedding ever occurred.
Tracing the logic of what qadis designate as positive or negative leads one
through a series of instances which do not immediately seem to cohere in any
rational way. Testimony that a sale occurred is seen as positive and a claim
that nothing has occurred to alter prior circumstances is designated negative;
but (with the exception of a mother asserting custody over her child)
testimony impeaching another’s character is regarded as positive and hence to
be favoured while testimony tending to support one’s character is demarcated
negative. From an analysis of numerous cases and from discussions with court
officials a systematic quality and a rationale to these presumptions may be
suggested. For if it is true that the predominant goal of the qadi is not to
regulate the details of all relationships but, particularly where the Quran or
the code are not unyieldingly explicit, to set people back on the track of
negotiating their own relationships with one another, then it appears that all
those events designated as positive, and thus judicially favored, are those in
which a shift has occurred in the balance of obligations between the parties. By
recognizing that such alterations are indeed the normal course of things and
by favoring this position over claims that no alteration has occurred, the court
gives legal support to the new set of obligations and imposes no further shifts
beyond those the parties may subsequently choose to arrange for themselves.
Thus marriages are reaffirmed, sales taken as probable occurrences, and —

interestingly — the likelihood acknowledged that if a man has not been able to
establish his reputation for credibility before an actual case arises he will likely
be of poor moral character and hence an unreliable witness.
Here, too, we can see an excellent example of how cultural assumption, legal
approach, and substantive law are all deeply entwined. For the determination
of positive versus negative assertions is indissolubly linked to local concepts
and local customs, even though, at least in classical Islamic thought, custom
was not a source of law. We have already seen a number of instances where
legal presumptions are really little more than the judicial recognition of local
assumptions. Thus one could point to the presumption that the father of a
child conceived in a marriage is indeed the husband of the mother, the
presumption in favor of a guardian’s qualifications, or the presumption that a
mortally wounded man is truthful when designating his attacker. Legal
prescriptions may afford direct insight into the ways in which we assess the
character and qualities of various kinds of people in our society. In the United
States, for example, ordinary witnesses are permitted to testify to the
conclusion that another was “‘drunk,” but they are not allowed to testify that
another was “‘in love” — the latter being somehow too private to be discerned,
at least without psychiatric expertise. In Morocco, there are records of cases in
which qadi’s courts have explicitly presumed that since it is the normal
course of things for Jews to engage in the practice of usury, that may be
presumed in any particular case until proven otherwise. There is even one
perfectly charming case in which a qadi in 1916 held that since government
administrators are normally dishonest, a defendant administrator should be
required to swear a holy oath in support of his assertions in order to rebut this
perfectly reasonable presumption. It should perhaps be noted, however, that
the appellate court, which possessed either a different view of human nature or
a less developed sense of humor, overruled the qadi on this point. In general
one need not be able to sort out with certainty whether these kinds of
presumptions arose in the law as convenient ways of accounting for
uncertainties and then spread into the culture or, as is probably the case here,
that they spread from the culture into law in order for us to see the close
correspondence that exists between Islamic law and culture on these points.
More intriguing yet for its cultural and legal similarity is the form of logic
employed when a series of these features are linked to one another.
It was noted earlier that from the very outset of a case the qadi always
expresses interest in the social origins of those appearing before him — where
they come from, with whom they are attached, what customs their
background suggests they would most likely employ in arranging their ties to
others. It is information vital to that predominant reality of Moroccan life, the
distribution of obligations among individuals. And just as in ordinary social
life, where one feature of social origins suggests by implication a series of
attendant features, so, too, the qadi draws logical conclusions in a culturally
characteristic way from matters of personal background. Thus to know that

someone is an urban Arab whose family has its origins in the town and
practices a given occupation suggests that one possesses substantive know-
ledge about certain other men and their dealings, that one has a wide range of
connections that may bear on one’s ties to the contending party in the present
case, and that these interlocking ties may have a particular impact on the way
the qadi’s decision will affect others and be supported by them. It is this set of
assumptions — this code of cultural entailments — that is drawn upon by the
qadi in making his connections. These assumptions and their modes of
institutionalization have, of course, varied over the course of time. There
exists, for example, a long tradition in Islamic scholarship and judicial
practice of assessing another’s character and actions by means of an elaborate
science of physiognomy: until recent times the gqadi could call on an expert in
the field who would determine a person’s claimed background or mode of
forming relationships on the basis of physical traits suggestive of social
background. Even now this mode of analysis may enter paternity suits and
contribute to the rejection of modern medical testimony. Indeed, it is
interesting to note that the same word in Arabic — ase/ — means not only
“social origins” and ‘‘sources of law,” but that form of logical reasoning
which takes note of the consequences that normally flow from any given trait
or act.
This legal application of a cultural assumption is also related to the
common belief — again, given judicial articulation — that the harm a person
does is a function of his or her social position, and therefore to know the latter
is to calculate the former, and, more to the point, what to do about it. Thus, it
is believed that an educated man does more harm by an illegal act than one
who is uneducated because the former is a guide for others — one upon whom
others should depend, one whose actions embrace extensive networks and
implications. Similarly, men believe that women are by their nature more
prone to be guided by passion than by reason and must, therefore, be
restrained from those acts that man may perform more readily for fear of the
chaos that follows when sexual attraction is given the opportunity to follow its
ineluctable course. As will be seen when consideration is given to the
Moroccan concepts of justice, qadis invariably say that no two cases are
precisely the same because the people are not exactly the same, but that it is
only common sense to realize that a man who “has ase/,”’ who is of some social
position, can do more harm than a “nobody” and that the implications one
draws from knowledge of background are central to choosing appropriate
remedies.
Inquiries about social identity are thus firmly linked to a point that will
shortly begin to emerge even more sharply in our discussion, namely, that this
is a legal system whose constant emphasis is not on a series of antecedent
concepts but on evaluating the consequences of people’s actions. In the way
that evidence is adduced, in the way presumptions are formulated, and in the
way entailments are implied the constant focus of Moroccans — in the law and
in the culture — is on the consequences of actions in the realm of human
relationships. This feature is particularly evident when we look at the way the
qadis of Morocco, in the course of articulating their judicial method, have
developed a unique body of legal literature and applied it through a distinctive
concept of the public good.
Throughout the course of Islamic history it has been common to find the
presentation to the qadi of scholarly opinions on particular points of law as
well as inquiries about matters of law being sent to such scholars in the
absence of an actual legal proceeding. Elsewhere in the Middle East famous
instances of such advisory opinions, or fatwas, have included those sought to
determine if it was permissible to use the new technique of printing to produce
copies of the Quran or whether particular forms of nationalistic activity
violated any Islamic precept. There have also been some wonderfully
humorous inquiries, as, for example, the time the great medieval jurisconsult
Ibn Taimiyya was approached by an illiterate Bedouin who inquired: “‘Is it
permissible (O great and learned sir!) to ride upon a camel — that has drunk
wine?”
In Morocco, even at the present time, it is not at all uncommon for litigants
to request opinions from those who are noted for their religious learning. To
the facts presented them by one party the scholar will apply the approaches
developed by generations of students of Malikite Islamic law and exercise his
own interpretive powers within the framework of traditional legal reasoning
to suggest a specific decision to the qadi. Certainly in the past the result may
have been similar to that of certain parts of the Arab east, where a reciprocal
relation existed between the qadi’s judgments and the scholar’s advisory
opinions. As one analyst has put it: ““Fatwas utilize concrete descriptions as
given instances necessitating interpretation in theory; judgments address cases
as problematic instances that are themselves in need of interpretation.”’ In
Morocco, fatwas no doubt helped to keep the process of interpretation open
and gave fuller support to the same modes of reasoning being applied by the
court. But there was also greater scope for Moroccan qadis to perform some
of the textual interpretation that elsewhere may have been undertaken by
scholars, for they had at their command three implements of great signifi-
cance: a body of actual judicial decisions, a concept of the public utility, and
an emphasis — characteristic of Malikite law generally — on the intentions that
inform the acts of a given individual.
Although one finds throughout the Muslim world collections of scholarly
opinions — often formulaically prescribed, even in poetic rhyme — what one
does not find are collections of reported cases or statements about what qadis
have done about concrete issues in particular jurisdictions. The exception,
however, is North Africa. For here we do find not only a concept of attending
to actual judicial practice, but collections that include, in addition to
responses and formularies, instances of particular judicial decisions. This
body of literature, known as the ‘amal writings, only came to western

attention in the early part of this century, and its role in Moroccan law has
been the source of some dispute. On the one hand reference to what other
qadis have decided runs counter to the basic design of classical Islamic
jurisprudence. By that theory judges have no right to pronounce on what the
law should be; they should, at most, only extend the law from such definite
sources as the Quran and traditions by means of analogies, and even here
should be guided by scholarly opinion. The relation of scholarship to practice
in this image is that in which, as one commentator has put it, the chair is not
only more comfortable but more influential than the bench. On the other
hand, we find the jurists of North Africa, particularly Morocco, distinguish-
ing away scholarly opinion in certain instances and placing judicial decisions
at the pinnacle of the legal process. What is particularly intriguing is that here,
too, the process makes a good deal of sense when seen in the light of the
culturally characteristic way it works.
Faced with a case that did not squarely fall within the ambit of the
universally recognized, a Moroccan qadi, looking about for guidance, would
take note of several different kinds of opinions. He could, for example, choose
to follow what is called the “dominant opinion” (mashhur), the approach
which most commentators and collections have adopted and which is, there-
fore, the best approach available. A minority approach, called an “‘isolated’’or
“preferred” approach (rajih) may, however, be relied upon instead. This will
be the opinion of a particularly well-respected authority — scholar or judge —
who has decided, in an actual case, that it is better for the common good that
the dominant approach be set aside in favor of a decision that is more able to
achieve a socially useful goal or avoid a harm that the implementation of the
dominant approach may unintentionally engender. If a qadi applies such a
distinctive approach, or if he favors another’s isolated approach over the
dominant one, he clearly must do it by bringing to bear precisely the same
aspects of personal forcefulness that we have seen at work in other domains of
Moroccan culture. He must show, as we will see in a moment, that his
assessment of the consequences of this approach will be beneficial, he will have
to possess the reputation and connections to make this personal approach
stick, and he will have to present it in a way that demonstrates conformity to
the Quran and basic sources of the law. In some instances, of course, the qadi’s
use of another’s isolated approach is made more acceptable by showing that at
least three judges have used this approach in much the same way he intends to,
and we can see in such instances how a distinctive approach may come to be
the prevailing one. But in many instances it is clear that what the judge is doing
is applying, in highly localized circumstances, a concept of social utility that
may differ not only from the approach of some other jurisdictions but the
dominant practice acknowledged in almost all other regions.
What, then, does this notion of social utility really mean? In Islamic law,
particularly as practiced in Morocco, one frequently encounters the concepts
of istihsan and istislah. Both are forms of legal reasoning by means of analogy,
but each incorporates the idea that analogies may be drawn with a clear eye to
the social well-being at large rather than to a strict set of logically required
results. On its face, it would appear to be a device whereby a judge might get
around all but the most clear-cut of Quranic propositions to implement an
approach he regards as desirable. But neither the concept of public utility nor
its actual invocation appears to be without surrounding principles that limit
its application. To see how the qadi reasons his way through matters using the
concept of public good in combination with judicial practice and local custom,
it may be helpful to describe an actual case. It is, I fear, yet another of those
disputes that Hugo Grotius, bored by the cases presented him as a young
lawyer in the early 1700s, wearily described as being “‘about dripping eaves or
party walls,” but since the real point here is about judicial reasoning, I will try
to make the details as painless as possible.
In 1946 a group of people came before the qadi in Fez. They said that their
predecessors had owned, in common with another man, a building that was
divided into two parts. A passageway existed between the two sections that
allowed, in effect, a back door to the shop that their precursor had established
in his half of the structure. Given the incredible rabbit warren of streets in Fez
one can readily understand the convenience such an additional access route
might afford. Forty years ago, however, the passageway was blocked up.
There was no indication that any complaint was ever made about this state of
affairs, and several successive heirs used the shop and lived over it without
contesting the closure. Not, that is, until the present heirs came into possession
of the store. They immediately sought to have the passageway reopened.
Experts sent by the qadi noted that there clearly had been a door there once —
the lintel and pillars were still perfectly visible — and the qadi, in a
characteristically conclusive and uninformative written opinion, held that the
heirs did indeed have the right to reopen it. It is the appellate court — itself, of
course, an institution that had not existed before colonial times, but wholly
comprised of Muslim judges — which invoked a notion of the social good. In
sustaining the qadi’s judgment the court cited a fourteenth-century scholar
who said that “the public good is to be found in continuity, the preservation of
what already exists.”” The problem, of course, was in fixing which state of
affairs to continue — the forty-year-old blockage or the maintenance of a
passageway whose closure had never been explicitly ratified by the plaintiff's
benefactor. The court, however, used the evidence of the earlier doorway to
argue that the original owners must have meant there to be such a point of
access. They even cited an unnamed poet who admonished “after our
death/respect the traces that we left,” and following references to other
collections of opinions the court ruled that since openness is to be favored over
closure the traces of the earlier opening preserved to the heirs the right to
reopen the passageway.
Now this opinion, which has everything in it from ancient commentary to
orphaned poetry, rests, in part, on the idea that it is best for society to preserve
the existing state of things and that absent a clear change in the obligations of
the parties involved the earlier state of things should be preferred over the
more recent. Undoubtedly the court could have decided the other way round —
it even cited the most famous pupil of the founder of the Malikite school of
Islamic law, who said that the point was undecided since the master himself
had never spoken to this issue. But the court did review other legal sources and
found none of them conclusive, did link itself to the statements of other
commentators, and did adduce as socially useful a principle of the continuity
of established relationships over one that rewrites the original agreement.
What they did not do was cite other cases or couch matters simply in terms of
rights and duties. And the elaborateness of their opinion suggests their desire
to show that their approach, though deviating from some collected opinions,
was sustainable by others. The result is a pattern that is frequently replicated
in Moroccan legal reasoning: the judicial choice among reported approaches
taken by well-known authorities is itself informed, through a principle of the
socially useful, by local practice even where that practice may run contrary to
the dominant opinion about how such a situation should be resolved.
But the case is also revealing for the interplay of private and social
considerations. It has often been said that Islamic law is a law about and for
individuals: like Islam itself the religious law asks whether an individual’s
actions are or are not permissible rather than attempting to decide whether the
community at large possesses interests that differ from the moral and legal
evaluation of individual acts. The case of the blocked entry would seem to
support this interpretation. The court speaks of the intention of the benefactor
and the need to honor the situation he left behind, while in other cases it clearly
supports the maintenance of private agreements. But the court here also
speaks of favoring openness over closure, and in many other instances clearly
applies presumptions that favor the maintenance of the status quo as a way of
avoiding social chaos. It is not, then, that broader social interests are
unknown or that specific concepts of social utility are absent from Islamic law
as practiced in Morocco. Rather it is true that even the social interest is
conceptualized in terms of maintaining peaceful private interaction: what is
good for the individual is good for society. What is missing, until at least the
beginning of western influence, is the institutionalization of the public as an
entity whose interests might be assessed like those of a person. In the absence
of the idea that corporate entities might constitute jural personalities the social
interest enters the law as a localized interpretation of the legal status of
particular named persons and their highly personalized acts. The choice of a
preferred judicial approach over that which is more commonly employed thus
draws upon the idea that the social good is served when local practice serves as
the limit for comprehending the relations individuals have chosen to form
with each other.
The qadi thus raises the assessment of local consequences to the legally
supportable through reasons and concepts that grant his act legitimacy.
Examples of this process abound. One could point to interpretations from
previous centuries arguing that even though the clause in a marriage contract
allowing a woman to initiate a divorce is granted by the husband voluntarily,
the fact that local custom regards such a clause as having been given in
exchange for a lower bride-price means that the contract should receive the
stricter enforcement of an agreement that was actually bargained for. Or one
could point to more recent instances where the qadi refused a rural woman’s
claim against her former husband for the cost of hospital delivery of their child
because birth at home is customary for such women, even though most
commentors include all birth expenses among those to which a woman is
entitled. In each instance, the process of weighing alternatives through the
grid of attested opinion, social utility, and local practice shapes and even limits
the decisions of the qadi. His focus is not on substantive doctrines or the
factual similarities and differences with prior cases, but on an assessment of
consequences — on the repercussions for the networks of ties that people
possess, or should be free to contract, in face-to-face dealings. Just as the
thrust of judicial organization and the determination of facts constantly
involves the tendency to propel matters down to the locally defined and locally
derived, so, too, the mode of judicial reasoning channels the judge’s thinking
not to the level of ever more refined modes of analysis — ever more “artificial
reasoning”’ — or to the elaboration of court-created doctrine, but to filling up
broad propositions with local meaning or even allowing the local to govern
the specifics set forth by noted sources.
It is a system which, borrowing from a seminal distinction made by John
Dewey, can be said to work by a logic of consequence rather than a logic of
antecedents. Dewey used this distinction to suggest that many systems of logic
relate particular circumstances back to a set of antecedent concepts or
assumptions and find some way to make the former fit with the latter. He
thought, however, that western legal systems would be better advised, if
principled continuity was to be preserved, to look at the consequences of
matters and allow these assessments to take precedence over the attempt to
make everything fit with some claimed antecedent. His prescription was, in a
sense, an actual description of the state of things in Islamic culture — an
approach that could work because the same focus on consequences informs
social and legal thought in much the same way. Thus, we have seen that
Moroccans stress a person’s impact on networks of obligation, regard as
truth-bearing only that which has affected actual relationships by being
validated, and conceive of time itself not as evidence of prior principles
evincing their ineluctable forces at work in the world of humankind but as
packets of relationship, the revelation of what is true about men through the
enumerated contexts of their situated ties. The result is an emphasis on the
observable impact of actions, on the orderly negotiation of human relation-
ships, and on the perpetuation not of antecedent concepts but consequent
interdependency. That is why, too, we can find an early jurist emphasizing

local consequences over the retention of doctrinal consistency when he says
“Once the argument of the opinion adopted in judicial practice becomes clear
to you (O Judge!) it becomes your duty to issue judgment in accordance with
it, for adjudicating contrary to the judicial practice leads to civil strife and
great corruption.”
Nowhere does the emphasis on social consequence in the law and culture of
Morocco reveal itself with more intriguing force than in the question of how
assessments are made of another’s state of mind, the question of intention-
ality. In the west it is generally taken as a common-sense fact that while no
one can have direct access to the mind of another, one’s inner state is, if not the
fundamental site of one’s truest being, at least an indispensable element
without whose consideration a full understanding of human actions is
necessarily incomplete. We may speak of that inner self as a hidden grotto, yet
seek through arts both literary and enchanted its ultimate recesses and secrets;
we may characterize it as a realm known only by the devil, yet bend the efforts
of our science and machines to ferret out its telltale pulse and suppressed
design. For us, unlike Gertrude Stein’s characterization of Oakland, there
really is a there there. For the people of Morocco — indeed, perhaps of the
Arab world generally — the idea of something that can be called human intent
is also manifestly real. But just as our idea of mind and intent are deeply
entwined with changes in our vision of the person — from communal to
romantic, from innate to emergent -— so, too, the Arabs’ vision of intent, and its
social and legal implications, partakes of a style and interconnections
distinctive to their own culture and times.
In Arabic, the word for intent is niya, a word that means not only “will,”
“volition,” “plan,” and “design” but “simple,” “sincere,” and “naive.”
99 66
Where in the modern west intent is seen to lie within and to be sufficiently
distinguishable from overt acts that we might ask both God and man to judge
us by our intentions and not our deeds, in the Middle East, intent and act are
thought to be so closely linked that one can read rather directly from a
person’s words and deeds the intent that lies within. To start each of the five
daily prayers by stating one’s intention is to manifest in the world the design of
naive submission to Allah; to discover another’s many acts — the varied
situations in which he or she has formed and enacted ties to others — is to
discern that person’s inner state. The result is a cultural assumption expressed
in a characteristic style: that the individual possesses an inner driving force
that directs actions but that until and unless it affects relationships in the
world it is not merely indiscernible, it is truly unimportant. God, says the
Prophetic Tradition, loves those who hide their sins — not because sinning is
good but because social repercussions that risk civil strife are greatly to be
feared and anything that does not, in this sense, come into the world is strictly
between God and the individual. Once action follows it is indeed possible to
know another’s mind. Intent, far from being irrelevant when it enters the
D2 The anthropology of justice
world of relationships, becomes one of the central features by which one talks
about another. And that is so because words and deeds are connected directly
to intent; to know the one is thus to know the other. This orientation is
particularly visible in the realm of the qadi and his court.
In Islamic law the idea of intent figures importantly in a number of
situations. The most intriguing, as in the west, is perhaps in the case of murder.
In precolonial Morocco, as in other Muslim countries of that era, criminal
acts were almost entirely matters of private dispute between the families of
those involved or were issues taken before the political authorities rather than
the qadi. But Islamic law as well as custom spoke to the issue of homicide and
did so in a characteristic way. Killings that were designated as intentional
could lead to lawful retaliation or punishment, as opposed to accidental
killings which might require compensation. But how was intent determined?
One of the main ways was by the weapon used: if a killing involved a weapon
that was normally used for or likely to produce death —a knife, a spear, a gun —
then the attacker was assumed to have meant to kill his or her victim. Use of an
instrument normally regarded as nonlethal —a stick, for example— would lead
to the reverse finding. It was not that intent was disregarded, but rather that it
followed from the definition of the event.
Similarly, much turned on social background, past actions, and other social
qualities of the accused. Using the code of cultural entailment referred to
earlier, a judge could assess another’s state of mind from the kind of
background and events he had engaged in — an assessment, in essence, of
character. In American criminal jurisprudence such an approach is generally
regarded as grossly unfair: past convictions, for example, are not allowed as
evidence in American courts unless they are directly connected to the specific
offence in question or show a habit of repeating the same proscribed act.
Moreover, in the United States only the defendant may initiate an assessment
or his or her character unless it is for the limited purpose of impeaching
credibility. Such restrictions make no sense to judges in Morocco, Whenever
asked, they always say the same thing. In the words of one qadi: “If I question
people, if I find out who they are and what they have done; I can always tell if
they are lying; I can always tell their niya, their intent.”” A Saudi Arabian
scholar has written: ‘““The judge has to have an acute sense of observation; for
example, just by looking at a suspect he should be able to tell what the man
had concealed in his testimony.” And the reason why judges believe this can be
done is because they really do believe that to know one’s background,
appearance, and prior acts can indeed give one direct access to another’s state
of mind and hence the basis of additional acts in the world.
Thus, the Islamic judge does not set intent aside: he accepts it as being
visible to the knowledgeable eye as we assume it may be visible when a person
feeling embarrassed shows it on his or her skin through a blush. Such judges
are not practicing a form of strict liability; they are not saying intent is
irrelevant and punishment follows from proof of the act alone. That is the
situation in American law when, for example, the fact is ignored that a man
accused of the statutory rape of an under-age female swears she looked
twenty-one years old and that she showed everyone a driver’s license to prove
it. Statutory rape is regarded as so harmful that no excuses will be allowed for
its commission. Such a system may assert society’s fears and values or, when
applied to something like no-fault insurance, constitute a way of sharing the
costs of common injuries. But Islamic law always regards the act as connected
to the intent and thus preserves the idea that words and deeds actually reveal
the hidden inner state of another. And since motives and intentions can
themselves be shaped by the way others attribute them to us, such an emphasis
may contribute greatly to the personalization of the social.
Intent therefore figures directly in a number of contemporary proceedings
that take place before the qadi. Cases could be cited that say that when a man
forms a trust fund his intent must govern its terms even when the words
actually used in its creation seem to admit of an unambiguous interpretation.
But when we look at how that intent is itself discerned, we come back again to
the social background and other acts of the individual in question. Similarly, if
one man pays another’s lawful obligations without the other having requested
it, the qadi may cite the idea that it is the normal order of things for people to
part with their money intentionally and that so long as the payment was made
with the intent of friendship and not to prejudice the other in some way, the
debt must be repaid. And how is that intent made known? Again, through the
personal circumstances of the individual.
A pattern thus emerges: a person’s state of mind is available to others
through his or her situated acts — occurrences that draw together the qualities
of nature, background, and biography to make an inner state “‘obvious.” The
emphasis on intent thus personalizes the perception of the other in a way that
might, from a western perspective, be taken as stereotypical, depersonalizing,
and unfair, but which, in the Moroccan perception of the other, constitutes
the truest assessment possible — the enactment of one’s background and
associations in the realm of the public. It is an emphasis common to the way
Moroccans perceive one another as they try to predict behavior in social
relations and try to negotiate the most favorable ties for themselves, and it is
therefore an approach which, given legal application, seems to them
enormously familiar, fair, and true.
It is thus easy to find much that is familiar to western eyes in Moroccan
society and law yet fail to grasp the critical differences. We can see an emphasis
on the individual and mistakenly equate it with the western notion of
individualism, of a self-directed and self-fashioning person whose inner,
psychic structure generates a self that is, whatever its overt manifestations,
deeply and truly private. And we could find in the Moroccan legal system a set
of assumptions, different in kind, perhaps, but not all that different in level of
abstraction, that guides judges who, like our own, compare and distinguish
the case before them with those related in the available legal literature. Both
approaches would, however, fall far short of grasping the distinctive

differences that make superficial similarities fit into strikingly different
patterns when placed in their larger contexts.
Take first the issue of personalism. Moroccans — indeed Arabs generally —
do not regard the array of qualities and attachments by which others are
known as abstract features that might be analyzed, in the manner of western
philosophy and psychology, as discrete entities of a human being’s com-
position. Rather they are aspects of social identity that mean something only
as they cohere in a named individual. In every domain the attribution and
assessment of others consists of a never-ending process of instantiation, of
making the general comprehensible only as it is embodied in a concrete
example. That is why, in forming social arrangements, one deals, as in the
bazaar, by forging face-to-face bonds with another. That is why one
constantly seeks knowledge of the particular contexts of another’s associ-
ations. That is why stories move back and forth across time emphasizing
contexts of relationship; why time itself is seen, not in terms of space or
progression, but as clusters of obligation that define those involved in them;
why, as one commentator put it, for the Arabs history is biography. A style
exists that pervades much of Arab culture, one in which the individual unit is
seen to exist within an overarching framework that is itself open-ended and
unfinished. It is visible in Arab storytelling and music, where discrete units are
built up over time and space rather than structured by fixed design. Words and
concepts that frame relationships do not govern those relationships; they are
a form of malleable framework by means of which negotiated, individual
networks may be formed. The individual unit — of art, science, or society — is
thus a momentary vessel for the features that have no other life than in their
concrete embodiment.
So, too, in the law the stress on the individual as embodiment is central.
From the earliest Islamic times men were seen as preeminently proprietors,
defined by the associations formed with others through things. Contracts,
therefore, were valid only when they took place face to face and involved
simultaneous exchange, the action of each changing in that instant the
network of obligations of both. Only the sacred Quran was treated differently
for being written, though even it had to be committed to memory and repeated
by chant. All else possessed its authority by being orally presented and orally
attested, for only in that way could generalizable precepts be comprehended
as incorporated in, having an effect on, and actually defining some individual.
At least since the ninth century, when the main sources of law were established
and the methods of reasoning were given authoritative shape, Islamic
jurisprudence has stressed the responsibilities of each individual just as the
Quran had settled the underlying moral precept when it stated that ‘tno man
bears the burden of another.” The quest for knowledge by judges and their
subalterns is a quest for the individuated; their inquiries represent a felt need
to fix the individual before them in the web of concretized obligations that
make them who they are and make association itself comprehensible. In
Reason, intent, and the logic of consequence 55:
Islamic law the search for data about background and association is vital to
the qadi’s quest for a judgment that will avoid the chaos that hovers over
society like a premonitory threat.
Reasoning, including legal reasoning, thus exemplifies this attempt to
triangulate in on the individual by seeing the circumstances that comprise his
social identity. In his questioning a judge will move through the various
circumstances of background and past action to determine the unknown. His
overall orientation is toward the consequences of individual acts and deeds.
He seeks not an evaluation of the broad moral force of humanity’s ways, but
the concrete repercussions for his local community of personal utterances and
acts that have entered the realm of the public. Like that overall framework
that organizes but does not govern the Arab building, musical composition, or
narrated tale, the qadi articulates the outer limits of the requisite and
forbidden and, beyond that, seeks not the greater elaboration of governing
precepts but, through the constantly individuated direction of the local, the
lines of constancy and custom by means of which chaos may be avoided. His
goal informs his method, his stress on the consequent his logic of analysis.
It is here, too, that what seems familiar in the Arab world is, in fact, not so
easily equated with practice in the west. For if, as has been suggested, the goal
of the qadi — his form of fact-finding and reasoning being marshaled
accordingly — is to set people back on the course of negotiating their own
arrangements without overstepping the limits of God, then the repercussions
for this style of legal reasoning are quite distinct. The reference to collections
of judicial practice and scholarly comment do not lead to the refinement of
analytic concepts but to the maintenance of the distinctly local. A direct
comparison to the two main systems of law and legal reasoning in the west —
the Anglo-American common law system and the continental code sys-
tems — may help here. In the common law, as Edward Levi has convincingly
argued, concepts are applied to concrete cases which in turn contribute to the
formulation of the concepts themselves. If at first a category like “‘clear and
present danger” is developed to conceptualize a form of political speech that
may lead to rioting, in a subsequent case a judge may argue that the category
applies only where no consitutional right of a higher order, like freedom of
speech, could be undermined by the first heckler to threaten violence. A
moving set of categorizing concepts thus gives shape to the common law mode
of legal reasoning and allows for both regularity and malleability in the law.
Continental systems, by contrast, start with elaborate codes whose lacunae
are to be filled in by scholarly guidance or, failing that, by the judge acting as
he thinks the legislator, given the opportunity, would have acted. The result is
a body of scholarly literature that seeks to create doctrinal consistency similar
to the organic integration of the code itself and judicial opinions that, far from
showing how the present case fits with the facts and categorizing concepts of
prior decisions, demonstrate the place of the particular case in the provisions
of the code, its interpretation, or its spirit.
If Islamic law were like either of these systems we might, to choose an
example that appears in collections of judicial practice, see a notion like the
“friendship” of one who must be reimbursed for paying another’s debts take
its conceptual shape from a line of factually different cases or trace the legal
meaning of “friendship” as it develops in scholarly treatises whose principal
‘goal would be to demonstrate logical consistency with other concepts and
provisions in the code. But Islamic law remains resolutely pragmatic and
local. It does not seek to refine the concept involved or to make it an artifact in
a neat system of codified categories. Rather, the concept retains its general
shape and like other aspects of this system is projected, as it were, downwards:
it is applied to situations to make their consequences comprehensible. It is not
situations which are in service of conceptual elaboration. Just as human traits
mean nothing unless attached to individual persons, the concept that is
applied by the qadi must be filled in, indeed can only exist, through its
individuated instance. The categories of Islamic legal thought, like those in
other domains of this culture, are frameworks that delimit, not structures that
govern.
Western commentators to this day therefore often make the mistake of
characterizing Islamic law as poorly developed because they see in it none of
that doctrinal refinement that would cast up large ideas like “‘good faith” or
““negligence’’ and could, through the reasoning of the law, make of these ideas
logically integrated propositions. But Islamic law is not undeveloped for
lacking such an orientation. For Islamic law is as consistent and logical as any
system in the west. The difference is that in Islamic law the concepts are
measured against those cultural principles that allow people to return to the
negotiation of their own arrangements. Its regularity is vertical, not horizon-
tal: it seeks consistency with common-sense assumptions about humanity, not
through the refinement of categories of its own creation. Islamic law is a
system of adjudication, of ethics, and of logic that finds its touchstone not in
the perfecting of doctrine but in the standards of everyday life, and measured
in this way it is enormously developed, integrated, logical, and successful.
This quality of the qadi’s legal reasoning, like his assessment of the facts, is
not, as we shall see, unrelated to the religious and political implications of the
law or to the vision of what is regarded as possible for any person or any judge
to accomplish. For if it is true that in Morocco everyone, including judges in
their official capacity, seeks information about others, it is also true that
mankind is not regarded as capable of generating new moral concepts that
would inform these relationships. Man’s duty is to conform to God’s moral
limits, not to try to invent them. But within the limits of God one can create
relationships and traffic in the knowledge of their existence, intricacies, and
repercussions. The law cuts into this domain not to regulate the tenor of social
creativity but, like religion, to reassert the terms that govern its outer limits.
Islamic law does not, therefore, dictate the form every contract must take or
develop an abstract concept of the contracts that could be applied to each
instance. Instead, it specifies what contracts are impermissible because they
adversely affect bargaining and allows local practice to govern all other
instances. It does not prescribe the conditions involved in each marriage
contract; it asSerts the limits of the negotiable. Nor does the law attempt,
through a concept like the public interest, to offer itself as a preferred vehicle
for the reconstruction of society. Instead, it seeks to reestablish the grounds
upon which local relationships can proceed notwithstanding certain in-
equalities that may result. It is, in short, a system that need not turn to that
“artificial reason’”’ Coke found so characteristic and so desirable in the
political context of English law, however much it may be a system whose
flexibility and responsiveness face severe tests in the climate of the modern
nation-state. And it is to these political considerations, to the problem of the
qadi’s approach when he faces a case where law and fairness diverge, to the
consequent vision of justice that emerges, and to the broader implications the
work of his court suggests for a theory of judicial discretion that we must
finally turn our attention.
4
Judicial discretion, state power,

and the concept of justice
Some forty or so years ago Lord Justice Goddard of the English Court of
Appeals, faced with a case in which the discretion of a lower-court judge could
justifiably have led to either of two diametrically opposed results, remarked
that “the court... is really put very much in the position of a Cadi under the
palm tree. There are no principles on which he is directed to act. He has to do
the best he can in the circumstances, having no rules of law to guide him.”
Lord Goddard’s words were echoed a few years later by Justice Felix
Frankfurter when he remarked that the United States Supreme Court is not a
“tribunal unbounded by rules. We do not sit like a kadi under a tree dispensing
justice according to considerations of individual expediency.” As in so many
other instances the image of the exotic has thus come to serve westerners as a
standard against which we measure either our supposed advance along the
enviable road of civilization or our felt loss for that state of nature or social
harmony we imagine simpler societies have been able to retain.
Indeed, the image of the Islamic law judge, the qadi, is a particularly striking
instance of the varying use of the exotic as mirror and as measure, for like
many other such projections, the end to which the image has been put has
changed as society and its forms of jurisprudence have changed. To Muslim
artists stories like those contained in the eleventh-century Magamat (‘‘As-
semblies’’) of al-Hariri provided ample opportunity to show qadis who were
duped by clever litigants or hounded into personal generosity by the ceaseless
squabbling of those who came before them. In comparison, to Europeans in
the era preceding colonial instrusion the qadi was often seen quite positively as
a model of the ideal magistrate, a man who bespoke the common standards
and beliefs of his people with just that air of grace and wisdom, that dignity of
attire, manner, and utterance that called forth visions of an Old Testament
sage. By the nineteenth century, however, the image of the qadi had begun to
shift away from that of a benign oracle of the community of believers to that of
a judicial figure whose decisions, even if at times laudable and astute, were so
unbounded as to appear arbitrary and even tyrannical. As western jurispru-
dence had shifted from a concern with natural law and its own romanticized
58
projections of the natural justice of the folk to an emphasis on procedure,

code, and appellate hierarchy, the image of the qadi had necessarily changed
as well.
The qadi has thus become a key figure in contemporary scholarly debate. If
earlier the qadi could serve western jurisprudence as the archetype for
assessing the relation of law to communitarian values, he has come now to
serve as a touchstone for measuring the relation between rules and principles
on the one hand and the nature of judicial discretion on the other. For scholars
and practitioners alike, the nature of qadi justice forms a challenge to our
comprehension of the relations that exist — and even the relations that should
be encouraged in any society to exist — among the state, the law, and the
cultural concepts that inform their operation. For purposes of discussion it
may prove helpful, therefore, to divide the question of qadi justice as a focus
for analyzing these issues into three distinct parts. First, we need to consider
the relation of the qadi’s discretionary powers to the structure of the state.
What is the connection among the sources of legitimacy by which his
judgments gain authority, and to what extent do the ways in which he exercises
them constitute a limitation or expansion of the power of the state or
particular sectors of the society he serves? The second issue focuses more
directly on the very nature of discretion. It asks what the relation is between
rules of law, on the one hand, and principles, guidelines, and standards on the
other. Can we, as a matter of logic and judicial policy, conceive of lawinsucha
way as to demonstrate that there is no reason why any degree of judicial
discretion need form a part of the adjudication process, and can we use the
qadi, long seen as an extreme instance of such wide-ranging discretion, as a
test for the debate over the legitimate and logical extent of such arbitrary
power? And finally, as anthropologists looking at the fuller cultural context
within which the qadi-—and judges like him elsewhere -— operate, can we specify
how, ina sense, culture fills whatever discretionary space eludes either rules or
principles, and thus pursue with some rigor that still elusive element that leads
a judge to decide as he does?
First, then, there is the issue of the relation between qadi justice and the
state. The terms for some aspects of this problem were, of course, set down by
Max Weber when he chose the term kadijustiz to characterize that form of
judicial legitimacy in which judges never refer to a settled group of norms or
rules but are simply licensed to decide each case according to what they see as
its individual merits. Weber was primarily concerned with the sources of
legitimacy by which a specifically historical answer could be offered to the
question, Why should the members of a given society do as those who possess
authority direct them? He suggested that in patrimonial states like those found
in the Middle East, where authority was legitimized by the traditions that had
long given it credence, the law itself was unlikely to develop as an internally
consistent body of rules because there was neither a separate commercial class
nor a professional bar whose interests would be served by the creation of a law
that could be administered by members of their own class. Indeed, Weber

argued that in the absence of such a class acting as a political entity, it is
unlikely that law can ever become a vehicle for the limitation of the powers of
the state.
In fact, in both early times and modern, the relation between Islamic legal
systems and the state is rather more subtle and complex than this paradigm
would suggest. Since the earliest years of the Islamic era religious and legal
scholars have elaborated a central distinction between what are called “the
claims of God” and “the claims of man.” Islam, with its heavily contractual
image of the relation between God and man, its insistence that each man is
responsible for his own actions, and its emphasis on the freedom of man to
engage in negotiated arrangements that do not violate some clearly prescribed
claim of Allah, encouraged exchange relationships of a highly personal
nature. The law could enforce those aspects of human relationship that
trenched on the prescriptions of God as contained in the Quran, but unlike the
Old Testament or Roman Canon Law the number and extent of these divine
claims on man are rather small. Instead, the ability to contract relationships
was given considerable scope. Under the direction of Prophetic traditions,
judicial analogies, and local practice the particular content of the law
pertaining to these humanly created relationships was filled up with some
specific content, but it was seldom that of rule-like prescriptions developed
into an elaborate scheme. Rather, as we have seen, certain general precepts
formed a conceptual framework that did not so much govern a host of
relationships as fashion the broad terms by which they were conceived. So, for
example, one often thinks of usury, which has generally been prohibited by all
schools of Islamic law. But obtaining interest on loans, notwithstanding the
fabrication over the years of a host of legal fictions through which it has been
effectively made possible, really partakes of a broader concept of unjust
enrichment of which usury was but one instance. Drawing on this broader
category, Islamic law judges articulated general guidelines for particular
issues, but instead of developing a logically consistent body of doctrine
allowed local circumstance and individual instance to supply particular
meaning and regularity to the concept in the locale under their jurisdiction.
What we have here, then, is a process that partakes of a set of deeper
cultural features, all of which contribute to what has been called the cultural
logic of dispute. One element is the belief that men are, at base, proprietary
creatures. The Arabic term employed here is mu/, a word that means much
more than just “owner” or “‘proprietor’’: it also implies the idea that each man
is a creature whose very identity is indissolubly linked to the relationships
formed through exchange with others. The law supports this proprietary
personality by giving preeminent stress to the bargained-for relationships
among individuals. As a moral and religious entity the law does not seek to
create the details of these identifying and sustaining relationships; rather it
provides a context for the peaceable formation by individuals of their own ties
under an institutional umbrella that, in theory, gives the force of government

to the preservation of the rights of man assured by Allah.
Indeed, it is in this light that we can understand why, in the classical Islamic
theory of the state, law and government were kept largely separate from one
another. The state was seen not as an instrument for the application of law,
nor were the courts, either through religious doctrine or a concept of the social
good, envisioned as vehicles for economic redistribution or the construction
of a particular political order. It was the duty of the political authorities to
enforce the claims of God — even by maintaining their own courts for the
punishment of specific crimes — but beyond that they were to insure that men
could carry forth their own affairs without governmental interference. Legal
authorities, through to the period of western influence, sought to protect the
law — and their own positions — from encroachment by the state by, on the one
hand, limiting the range of issues designated as claims of God and hence
subject to the jurisdiction of a protective government and, on the other, by
avoiding any attempt to make the rulers themselves subject to the direct
power of the courts. By remaining resolutely focused on the individual the
legal establishment forsook the politicization of the law; by avoiding inclusion
of the law as an instrument of state policy the political authorities passed up
the opportunity to use law as a vehicle of political centralization.
Given this orientation, the lack of doctrinal consistency and the particular
scope of the qadi’s discretion appear in a far more positive light. With its goal
of maintaining the claims of men by setting litigants back on a course of
negotiating their own relationships within the overall framework of a concept
like unjust enrichment and an institutional structure that constantly leaves it
to local personnel to shape the critical facts that can come before the qadi, the
Islamic law courts developed neither mystifying procedures nor excessively
arcane modes of reasoning to further their ends. It is often noted that the one
thing courts must not seem to beis arbitrary, and Islamic law largely avoids this
by pushing down to the level of the local the ascertaining of facts and their
articulation in court. The common law courts of England could, to recall Sir
Edward Coke’s phrase, employ a specifically “‘artificial reason” in order to
separate the courts further from the executive power of the state, and by thus
mystifying the law various social groups, including the bench and the bar,
could further the role of the law as a protection against state intrusion on their
own proprietory interests. In Islamic law, by contrast, the courts have long
operated not as a counterbalance to the state but as a stabilizing device among
contending persons, an instrument by which the individual, within broad
doctrines developed by the law, could seek the rough equivalence of an
unimpeded bargaining stance through a court that helped to ensure this vision
of the individual personality. A concept like unjust enrichment could,
therefore, be used to keep individuals in a state of more or less equal
bargaining status while presumptions in favor of the status quo could add
stability to consequent relationships. As a result interest groups were hard put
to use the law to any collective advantage that had not already been inscribed
in local practice. And judges were, by the process of pushing all fact-finding
and the shaping of issues down to the level of local practice, hard put, even if
they were of such a disposition, to achieve the independent policy ends of some
group or the state at large when so much turned on matters of local definition.
This is not to say that there were not conflicts between the state and the
courts. It is true that, since early Islamic times, a clear jurisdictional division
existed between those matters that could come before the qadi and those heard
by political authorities — a caliph, a sultan, or a khalifa. And the range of
discretionary punishments these officials could apply for certain infractions
was also clearly established. Procedurally, too, the requirement of notarized
documents or oral witnessing in the qadi’s court was a far stricter requirement
of proof than that used for criminal matters coming before a civil official,
where a requirement of multiple witnesses would have made many convictions
impossible. Sometimes the conflict between qadis and state officials was quite
direct. State officials have at times tried to use the qadis to their own ends, and
often one reads of instances like that of the medieval figure who was dissuaded
by his travelling companion from accepting a post as qadi when the
companions said to him, as perhaps someone should warn political appointees
in our own society: “Are you not then aware that when Allah has no more use
for a creature He casts him into the circle of officials?” Even in the primary
locus of this study, the Moroccan city of Sefrou, stories are told of the time,
around the turn of the century, when the local administrator tried to force the
qadi to ratify land transfers that the administrator had coerced from local
garden-owners. The qadi, with the encouragement of local religious figures,
repeatedly refused to acquiesce. Some of the gardeners learned that the
administrator was preparing to arrest the qadi, and they hurried to get the
judge out of town in the dead of night. When the administrator discovered the
qadi’s absence the next day he rounded up the local religious scholars, tied
them to one another with ropes around their necks, stuffed their mouths with
hot peppers, and, after parading them around town, threw them in jail to
starve to death. The next qadi, upon whom this lesson seems not to have been
totally lost, signed the necessary documents. But the story has its charac-
teristic twist. For qadis, though traditionally appointed by the sultan, were
effectively subject to local approval. The locally important figures refused to
accept the new qadi appointed by the administrator and sent a delegation to
the sultan to inform him of the scholars’ unjust demise. Their actions were
sufficient to convince the sultan to remove the administrator for a period of
enforced rethinking in the royal camp.
The nature of the entanglement changed in Arab countries like Morocco
when they came under foreign colonization and again when they achieved
national independence. The most significant alterations, to stick with the
Moroccan case, were the adoption of national legal codes and the inclusion of
the qadis’ courts within a unified appellate judicial system operating under the
central bureaucratic control of the Ministry of Justice. On the political level

these changes have meant that judges are wholly dependent on the ad-
ministrative hierarchy for advancement and placement and that should the
government wish, it is in a much stronger position than ever to use the courts
as an arm of executive policy. For reasons that will be discussed, however,
this has not thus far proved to be the case.
Perhaps the single most important development in many of the new nations
has been the adoption of national law codes. Morocco, like many other
former colonial countries, has effectively adopted European codes for certain
matters, but when the time came just after Independence to formulate a code
of personal status that would govern most of the issues that come before the
qadi, the approach taken was extremely conservative. Unlike their counter-
parts in Tunisia the Moroccan code-writers did not abolish all arbitrary
divorce by husbands or effectively end polygamy nor did they, like some
countries in the Arab east, take jurisdiction away from the local courts over
many matters and place it in the hands of new national courts. The
repercussions for the nature of judicial discretion have been intriguing. The
code remains very close to traditional Malikite Islamic law. Indeeed, the
draftsmen clearly state in a number of instances that where lacunae exist in
the code judges should fill them in by reference to local custom, their own
opinion, and the guidance offered by the body of judicial practice known as
the ‘amal. The result has been twofold. First, the code has preempted part of
the qadi’s former role. In the past, as we have seen, qadis and legal scholars set
the general terms of discourse about legal matters — the broad criteria, the
standards of generally acceptable arrangements, and a limited typology of
acknowledged forms — while the process of incorporating local practice filled
up much of the specific content of decisions. Now this broader role has been
taken over in large part by the code: it decreases the role of the qadi as moral
arbiter and standard-setter and thus opens the possibility for greater direct
involvement in everyday affairs by the state. Moreover, the newly drafted code
held out the possibility of encouraging renewed impetus to the formation of a
body of contemporary judicial practice which might serve modern-day qadis
as the earlier literature had served their predecessors. But here, too, there is
little evidence of this happening. Instead, only a limited number of actual
decisions has been compiled and communicated, and judges have no new
source of law to rely upon in their decisions. This situation actually reinforces
local decision making in one sense, for it continues the earlier belief that courts
can justifiably reach different results as long as the reasoning process remains
similar. What may, in the long run, temper this development is, however, the
imposition of an appellate structure.
In classical Islamic thought no court could be higher than another because
such a hierarchy would imply that the highest court actually knew the truth
when in fact no such claim for absolute moral judgment is properly
supportable. But bureaucracies have their own theology, and the appellate
model imposed by the French was carried through to Independence times. The
result, however, has not been the ubiquitous direction of substantive law by
the higher courts or the reduction of the qadi’s formal powers of independent
judgment: few appellate decisions correct the qadi’s approach in general terms
so much as they emphasize one fact over another or remind the judge of a code
provision he has missed. Thus appeals work less as a vehicle of political
centralization or even as an instrument for creating national law and more asa
sort of superior bureaucracy overseeing obvious abuses and lapses from a
structure that retains considerable scope for local circumstance.
One other alteration affecting the nature of judicial discretion is the
increased role of lawyers. Until recently most litigants in Islamic law courts
have spoken for themselves or had a close relative act as their spokesman. This
allowed for relatively low-cost litigation and for the qadi to make those
personal assessments so characteristic of his mode of inquiry. In recent years,
however, lawyers have increased considerably in number and effect. From the
perspective of some qadis the presence of lawyers is desirable since lawyers can
shape a case in more orderly fashion than contentious litigants. However,
most judges still want to hear directly from the litigants and seek to use
lawyers simply to help expedite the proceedings. The result, for the system asa
whole, is an increase in the cost of litigation to clients but a certain amount of
efficiency for the judges.
Moreover, popular attitudes about lawyers are not especially favorable. I
had this brought home during my last trip to Morocco when my wife and I
were looking for a place to live. We were discussing our needs over a glass of
tea in the shop of a man who was a kind of local real estate broker. In the
corner were seated two old men who were following our conversation
carefully. Much of the discussion turned on the fact that it had been raining
heavily in the region for many weeks, and unless the rains stopped very soon
the entire grain crop for that year might be ruined. After a few moments the
broker’s son entered the shop. He remembered how, years earlier, I had been
pointed out to him as the American in town. When he asked what I had been
doing since my last visit to Sefrou I mentioned that, among other things, I had
completed a degree in law. It was at this point that one of the two old men in
the corner turned to the other and in a voice intended to be overheard by all
said: “Six weeks of nothing but rain, and what does Allah bring us? Another
lawyer!”
If lawyers increase the cost of litigation, it is not necessarily true — my aged
humorist notwithstanding — that their presence leads, as is so often claimed, to
social divisiveness or increased litigiousness. Quite aside from the fact that one
seldom meets an American who has been involved in an actual lawsuit and
almost no Moroccan who has not, court records suggest no sharp increase in
recent years in the docket of the qadi’s court when population is held constant.
More intriguingly, it appears that, far from only exacerbating individual
differences and contentiousness, the need to hire a lawyer to match one
brought by the other side, has, by its increase in the costs of litigation, actually
led many people to seek aid from kinsmen, neighbors, allies, and friends and
thus reemphasizes, rather than disrupts, the need to retain certain bonds of
social obligation and reciprocity.
It was, of course, Max Weber who not only posed some of the issues about
judicial legitimacy and judicial discretion in terms of qadi justice but suggested
that the social background and class interest of lawyers and judges — the
people Weber called legal honoratoires — shaped the actual content of the
judgments reached. It is true in Morocco, as in much of the Arab world, that
those who seek a career on the bench, particularly as qadis, often come from
traditional religious backgrounds and represent sectors of the society that see
themselves as the guardians of a high tradition. But it is also true that
education is one of the central avenues for advancement, and that since, as the
Moroccan proverb says, “‘without the sons of the poor scholarship would
die,’ many gadis come from poorer backgrounds and from smaller towns or
rural areas. In Morocco, at least, it is hard to speak of judges representing one
economic or regional group, though undoubtedly they are essentially
conservative and religious — a factor that may well influence their perception
of the litigants and situations that come before them. But that very
background renders them something more than mere bureaucratic automata.
For it also means that they have absorbed, in their education at mosque-
universities like the Qarawiyin in Fez, that image of the qadi as a supervisor of
social life and of the shari‘a— the holy law—as an instrument for enforcing the
claims of God even as it promotes the negotiated relations of men.
And it is this quality of legal goal and cultural context that brings us to the
nub of judicial discretion not only in Sefrou or the Muslim world but as an
issue that affects courts of law wherever they may be found. For if we are to
approach judicial discretion neither as a black box whose qualities remain
beyond eager academic grasp or tremulous political control nor as a feature of
adjudication that must be eradicated in order for the rule of law to prevail,
then we must look to the culturally characteristic factors that shape such
discretion and the particular institutional history that informs its course.
In doing so we can reduce the scope of our own uncertainty about why and
how judges decide as they do and, no less importantly, we can attend to the
particular meaning for any given society of the special form of indeterminacy
that will necessarily remain even when we have accounted for all else that
bounds this exercise of power. So, to recapture these features as they relate to
Islamic law, it appears that the central goal of the qadi is to put people back
into a position of negotiating their own ties, within the bounds of the
permissible, and that the entire process — of fact-finding and questioning, of
using experts and legal presumptions — contributes to the reinforcement of the
local in the context of the judicially cognizable. It means that the judge, even
when applying a notion of public utility or distinguishing instances through
the weighing of analogies, necessarily sets the terms of discussion in a rather
conservative fashion and seeks to assure the status quo rather than reorganize
relationships by judicial fiat. Indeed the legitimacy of the law lies in no small
part in this aim. But such an interpretation also means that scholars who say
that Islamic law lacks doctrinal rigor — that there is, for example, no idea of
contract, only of particular forms of contract, or that doctrines of liability and
excuse possess no ordering principles — miss the point that Islamic law is
indeed highly consistent and refined but that it is so not by reference to its own
developed doctrines but to the cultural assumptions about negotiated social
ties. And we see this most clearly first when we look at those instances in which
judges reach out to apply their own views even though the law might dictate a
contrary result, secondly when we see this process working not only in an
Islamic court but in a case drawn from the annals of American law, and finally
when, as a result, we try to comprehend the ideas of justice that are thereby
embraced.
Instances of a qadi deciding a case in a way that is clearly contradictory of
the law are, of course, unusual. The result achieved may, as we have seen, be
based on the imposition of a minority scholarly view in order to obtain a
socially useful result. Alternatively the desired result may stem from the
conflict posed to a broad moral and legal concept by a difficult factual
situation. Consider, for example, the following two instances of unjust
enrichment discussed in the literature on judicial practice:
In the course of concluding the marriage of his son a man fails to specify
whether it will be he or his son who will be responsible for the payment of the
bridewealth. Most commentors say that if at the time of the agreement the son
had no resources of his own, the obligation falls on the father. But the position
actually employed in most cases is that the burden rests on the son alone since,
like a commercial transaction in which the sum owed is not a function of the
resources one possessed at the time of the bargain, failure by the son to be
liable would mean that he was unfairly obtaining something for which he is
required to give nothing in exchange.
A similar situation is posed if a woman, who has agreed to pay her husband
a sum of money in exchange for his divorcing her, later proves that in fact her
husband had mistreated her and that she was, therefore, entitled to a judicial
divorce without payment to the spouse. One view is that the obligation to pay
must still be fulfilled, but judicial practice has led to the opinion that the
woman was guaranteeing the payment of a sum to which the husband actually
had no claim. From this perspective forcing her to pay him would therefore be
tantamount to the unjust enrichment of the husband.
In each of these examples a judge has fashioned a way to avoid the clear
implications of the predominant approach by couching his opinion in terms of
unjust enrichment, a form of relationship which, though freely contracted,
allows one person to consume the wealth of another without having subjected
himself to any reciprocal claim. Each example supports the underlying
principle that if people are to be encouraged to negotiate their own permissible
arrangements the law must see to it that a real opportunity for bargaining
exists. Contracts of adhesion, where the terms are not negotiable, or situations
of unjust enrichment, where the imbalance precludes true give-and-take, will
not receive judicial support. It is not the concept of unjust enrichment that
now takes on theoretical development in the courts, nor is each new
application of the phrase communicated and refined through successive cases.
Rather, itemized instances may receive partial articulation in these terms with
the appropriateness of application being a function of local consequence and
judicial choice. Whether it is by specifying particular kinds of acceptable
contracts or by setting the broad terms in which bargaining can go forward,
Islamic law judges do not so much develop doctrine or encourage formalism
as they oversee a process that is given specific content by local practice and
individual negotiation.
A related set of considerations arises when the court is confronted with a
situation in which the law, embodied now in the Code of Personal Status,
clearly points in one direction but the qadi decides that strict application of the
law would have an unfair effect in the particular case presented him. In one
such instance the qadi of Sefrou was petitioned by a man in the army who
asked either that his former wife relinquish custody of their child to him as
required by the Code or move to his present posting so that he could oversee
the child’s upbringing. The wife answered that her former husband’s life as a
soldier would force her to move every few months. The court agreed with her
and thereby clearly chose to look beyond the wording of the statute to its effect
in this case. A similar instance could be cited of the qadi refusing to grant a
husband who was in prison the right to recall his wife to his side even when the
only form of divorce the qadi could by law grant her would have allowed this
possibility. The reason for this decision, the qadi stated, was simply that the
woman had already suffered enough from this man.
Through each of these instances the common point remains: the judge’s
discretion is at times clearly influenced by a sense of fairness that yields a result
contrary to the clear letter of the law. At work, however, are not just the qadi’s
own values but an underlying concept of harm — an assessment, by no means
predictable in result yet characteristic in mode, that considers the relative
harm done by adherence to the law versus its lawful violation. And that
assessment, in turn, will be deeply suffused by those cultural concepts that
concern the character of human nature, the likely harm that may be done by
persons of different backgrounds and character, and the sense of locally
acceptable standards that will have been drawn within the ambit of the court’s
consideration by a process that constantly seeks to limit judicial arbitrariness
by pressing issues into the mold of the conventions of the place.
Here we may be encountering one of those instances in which Moroccan
society is changing so dramatically that both culture and law are being forced
to respond. For as more people move from the areas where they were born, as
more extended families dissolve into nuclear households, and as new bases for
affiliation arise — occupational, professional, and political — the less con-

fidently one can use features of background, quarter, tribe, or family as an
index of character and harm. However, if the particular terms applied in this
calculus of consequence may have changed, the underlying process seems
unaltered, that of trying to ascertain, from social identity, an assessment of
personal qualities and likely behavior. In the courts, as in the bazaar, the
process is not without its subjective and variable elements. Like John Selden,
the Muslim is well aware that “equity is a roguish thing,” but because he sees
its bounds as set by local practice, the form of judicial fact-finding, the
precepts of social perception and Islamic morality he seldom finds the qadi’s
decisions fundamentally unacceptable.
But if it is true that local custom and local personnel are in fact central to the
way judicial issues are shaped and decided, is it not still reasonable to suspect
that particular interest groups have in fact molded the law and the courts to
their own advantage? After all, do not the court personnel represent only a
particular segment of society, and do not those who use the courts most often
or most significantly possess influence beyond the normal course? The answer
to this issue lies, I believe, in returning to a wider understanding of Moroccan
society and its repercussions for the legal system.
Within Moroccan society at large power is enormously diffused. In-
dividuals may build coalitions of allies in very different ways — using kinship,
ethnicity, and economic contacts to forge alliances. But this must always be
accomplished and maintained personally: social position alone is not enough
to insure either regularized support or a perduring base from which to
operate. Each point in the body politic — each individual — constitutes a locus
for the development of power, and it is precisely because this flexibility is so
highly valued that little support exists for the formation of common group
identity expressed in the form of institutionalized power. Islamic law
contributes to this pattern by its emphasis on the individual claimant, the
individual case, and the individual’s capacity to contract freely. Using
concepts and procedures readily recognizable to all, the courts have not
become the favored preserve of a limited number of people; lacking legislative
functions they have not been subject to the cooptation of particular interest
groups. And because the whole idea of a jural personality that is not an actual
personality is absent, categories have not developed in the law favoring group
representation. What has been said of the Saudi Arabians, and may also be
said of Moroccans — that theirs is a world ‘in which people define tasks, roles,
and institutions, not the other way around” — has led, in law as in society, to
the relative absence of institutionalized group interests.
One feature of the legal culture that casts a particularly revealing light on
this issue is the practice of corruption. It is, of course, very difficult to measure
the extent of corruption in the courts of Morocco, but certain brute facts are
undeniable. In Sefrou, for example, since independence one qadi has been
dismissed for allegedly taking a bribe and another court official was
disciplined for unauthorized use of government property. In both instances

the officials were sent to rural posts but were soon back in favored positions, a
pattern that is not uncommon in Moroccan official life. It is also quite clear
that when land transfers are recorded with the court, sums of money often
change hands to insure that reduced figures will be inscribed in order to avoid
part of the tax due on the transactions. Common opinion holds that outright
bribery is rare but hardly unknown, and oneis left feeling simply that while the
level of corruption is certainly not negligible it is also not such as would shock
the conscience, say, of a Chicago alderman.
What is more interesting, however, is not just the extent of corruption but
the form it takes, and it is here that the issue of group interest can be assessed.
For there can be little doubt that corruption is practiced in a highly individual
and case-by-case fashion. There are, at the level of the qadi’s court, no cozy
arrangements by which businessmen or elites can be assured that judges will
do the “right’’ thing when matters of inheritance, or alimony, or notarized
land documents are at issue. Instead, bribes involve individual cases and are
similar in this respect to any other personal transaction.
Local practice, therefore, does not simply mean the practice of those who
have captured the local court system, for power is too dispersed, the avoidance
of institutionalized group interests too deep-seated, and the procedures of the
law too decentralized to encourage a practice that is not found in other
domains of social life. Men may continue to enjoy greater legal prerogatives
than women, and Berber countrymen may encounter prejudice from urban
Arab officials, but the predominant focus remains personalistic, and with it
the range of persons and relevant customs remains remarkably diverse.
It is against this background that we can, therefore, begin to approach the
issue of judicial discretion as a cultural phenomenon in its fullest possible
context. It should, for instance, be possible to narrow the span of in-
determinacy within which judicial discretion operates by comprehending the
broader cultural circumstances and terms by which an issue is framed and
addressed. Indeed, we should be able to approach not only foreign and exotic
courts in these terms but those in western countries as well. A particularly
good opportunity for comparing the cultural bases of judicial discretion is
afforded by a famous case that arose some years ago in an American court of
law.
On the afternoon of September 17, 1963, the well-known Washington
attorney Edward Bennett Williams rushed into the office of Judge J. Skelly
Wright of the U.S. Court of Appeals for the District of Columbia. As attorney
for the Georgetown University Hospital he was seeking the approval of the
court for a blood transfusion to be administered to Mrs. Jessie Jones, a patient
in the hospital. Williams’s request had been denied moments earlier by Judge
Edward Tamm of the Federal District Court, so Williams hurried across the
street to the appellate court and, finding Judge Wright the only member of the
bench present, sought approval of his emergency request. The problem
created by the case centered on the fact that Mrs. Jones, the 25-year-old
mother of a seven-month old daughter, belonged to the Jehovah’s Witnesses,
a sect whose literal reading of the Old Testament prohibition against eating
blood extends, even at the cost of one’s life, to a medically prescribed
transfusion. Mrs. Jones had been brought by her husband to the hospital’s
emergency room suffering from a ruptured ulcer that had already cost her
two-thirds of her body’s blood. With his clerk and Mr. Williams in tow Judge
Wright hastened to the hospital. He spoke with Mrs. Jones’s husband, himself
a member of the sect, who refused permission for the transfusion but told
Judge Wright that if the transfusion were ordered by the court the
responsibility for that decision would not lie with him. Advised to obtain
counsel immediately Mr. Jones placed a call to church officials and then
returned to say that he did not want counsel. Judge Wright then asked the
husband if he might see Mrs. Jones, a request which was immediately granted.
Before going in, Judge Wright again spoke with the doctors, who said that
without a transfusion the patient would surely die, and that even with the
procedure her chances of survival were only 50-50. Entering the hospital
room Judge Wright tried to communicate with the patient, but all he could
make out were the words “against my will.’’ Following unsuccessful pleas to
the husband by the doctors and the Jesuit head of Georgetown University,
Judge Wright signed an order allowing the transfusion to take place.
In writing up his opinion later, Judge Wright argued that the patient was
not competent at the time to decide the issue of a transfusion, that the state
should not allow a parent to abandon his or her child voluntarily, and that her
having sought medical aid in the first place suggested that for Mrs. Jones death
was, as Judge Wright put it, “not a religiously-commanded goal, but an
unwanted side effect of a religious scruple.’”’ The judge said that by his act he
was seeking to maintain the status quo and that he was doing so without
sacrifice of the woman’s religious beliefs. ‘‘I determined [he concluded] to act
on the side of life.” Three of Judge Wright’s colleagues, however, disagreed
with this opinion. Judge Miller said there were no adverse parties here — the
patient herself was not even represented — and hence no legally cognizable case
was presented, while Judge (later Chief Justice) Warren Burger argued that
since the patient and her husband were willing to sign a document relieving the
hospital of any liability, there simply was no basis for the court’s intervention
into the patient’s private beliefs, beliefs which were entitled to judicial respect
however much the court might feel them to be abnormal, unreasonable, or
even absurd.
The Georgetown case thus presents a classic instance of the exercise of
judicial discretion in the common law. Indeed it offers an opportunity to see
how the very idea of judgment itself has been constituted in contemporary
American culture. For Wright and his interlocutors are not simply engaged in
a struggle over whether hospitals may require patients to submit to blood
transfusions or whether the idea of attempted suicide applies to a conscien-
tious believer refusing a life-saving procedure. Rather the courts are

themselves partaking of the larger cultural discourse within which the issue of
human judgment is itself cast, and when seen in the light of this continuing
process the features that are at once distinctive to the law and characteristic of
the culture in which it is embedded stand out with greater clarity.
Judge Wright and his detractors are both engaged in a dispute whose basic
terms have changed significantly in the course of modern western history. The
central question — How shall human judgment be understood and justified? —
was, in the premodern period, largely framed in terms of inherited authority
and divine sanction. Whether it was a father claiming the power to decide for
his family, a king for his nation, or a judge for those arraigned before him, the
discussions, whatever their particular results, necessarily included assertions
framed by the categories associated with traditional legitimacy and super-
natural validation. As in literature, theology, and family life, judgment and
discretion in the law were seen largely in terms of social station and the order
imposed by God.
These component categories were themselves fragmented by the changes
wrought by seventeenth-century rationalism. Just as in society at large, where
public and private life — whether economic, familial, sexual, or political — were
becoming conceptually distinct, so, too, justice and its legal articulation were
seen to reside in increasingly impersonal structures. The confrontation
between King James and Sir Edward Coke exemplifies the moment at which
these two conceptual orders were in contention: the King can still speak the
language of divine right while Coke insists that law depends on an “artificial
reason” linked not to station and nature but to profession and procedure.
But just as there had earlier been a strain of the irrational in western law and
culture so, too, the idea of impersonal reason was opposed by the countervai-
ling force of romanticism. For this is also the period in which the emphasis on
individuality — indeed individualism — supported the proposition that insight
into the truth may develop out of personal effort rather than from the qualities
of dispassionate reason or impersonal profession. It was an image that fitted
well with those who saw human judgment as a conjunction between one’s self
and ultimate truths just as the concept of judgment as disembodied Reason
fitted well the rise of the bureaucratic state and the idea of law as a check on
political power.
The confrontation between Judge Wright and his critics was to take place as
between heirs to this conceptual history. Thus to his rationalist detractors the
image of Judge Wright rushing out of the courthouse with his robes flapping is
not just an example of unwarranted judicial activism but a flight from those
abstract standards by which the exercise of human judgment may itself be
justified. When, in remarks to his biographer, Wright says that “‘if Iwant to do
something, I can find a way to do it,” he suggests that juridical process may be
secondary to desired results; when he goes further and says, “‘I try to do what’s
right,” he implies that justice may not, in all instances, be consonant with law.
And when, of the Georgetown case itself, he later says that he believed this to
be a matter that could not “‘be sliced up in neat legal categories,” especially
since “‘a life hung in the balance” with no time for “research and reflection,”
and that even years later it remains ‘“‘hard to pinpoint reasons for making the
decision,” he places himself squarely in that cultural dialogue by which
judgment itself is made comprehensible through the emphasis on an
individual’s own insight rather than the constraints imposed by impersonal
standards. Wright himself may exemplify that viewpoint which suggests that
to render judgment authentic an individual must at times rise above the
confines of impersonality to grasp an essential truth. And his rejection of
“neat legal categories” and strikingly personal finale (“I determined to act on
the side of life’) exemplify the modern version of the Romanticist approach to
the issue of judicial discretion. But neither Warren Burger’s countervailing
quotation from Cardozo — “the judge . . . is not a knight-errant, roaming at
will in pursuit of his own ideal of beauty or of goodness” — nor, indeed, his
insistence on the limited power of judges to rectify society’s ills makes sense
except in terms of that same discourse by which, in a host of different domains,
modern society has come to see judgment as composed by conscience and
constraint, authenticity and impersonality, heroic achievement and collective
wisdom.
The distinctive quality of contemporary American views of judicial
discretion comes out even more sharply when compared to those that apply in
the world of the qadi. For the categories by which Islamic culture and Islamic
judges construct the nature of discretionary judgment differ significantly from
those applied in the west. For both Judge Wright and his critics there is a
fundamentally problematic aspect to the relation between law and ethics.
Precisely how morality and legal propositions relate to one another forms the
basis of innumerable works of philosophy and popular drama. This is not,
however, an issue for the qadi. In Islam, law and morality are seen as entirely
consonant, particularly inasmuch as law includes the local practice of the
community and this ““consensus” was acknowledged by the Prophet himself to
be a legitimate source of law. Within the “limits of God” what the generality
do is both morally acceptable and worthy of authoritative implementation.
Similarly, it is part of the western discourse to raise the issue whether reason
diminishes from one’s essential humanity if it does not yield to a higher
concern for mercy, fairness, or love, particularly when a human.life is at stake.
But for the qadi, reason — or perhaps more exactly, the process of reasoning —
is the feature that is distinctive to human beings and to the preservation of
society from chaos and strife. Religious ecstatics may seek unity with the
supernatural through the suspension of their reason, but even they are not
envisioned as being thus able to penetrate to a worldly sense of justice and
equity, for that is the task reasoning man alone is capable of performing. And
where both Judge Wright and his critics may carry on their discussion in terms
of whether a judge may look beyond the law to the cultural standards or the
“conscience of a sovereign-people,”’ for the qadi culture is not outside of the
Judicial discretion, state power, and the concept of justice U3
law but integral to it. For him it is not a question of how personalized the facts
in a case should be — whether it is relevant that the Jehovah’s Witness is a
parent, at the doorstep of death, or comes from a religious family — and
therefore whether the law needs to mask some features of the individual if it is
to exercise judgment legitimately. On the contrary, to the qadi and his culture
the “person” is always the subject — of law, or relationships, or political
attachment — inasmuch as each individual embodies a set of features that may
be readily deciphered through the configuration of concepts that define
nature, background, and associations.
Problematic, too, in the west is whether wisdom is best achieved through
means that are personal or impersonal — whether wisdom is a matter of insight
and art or of science and the creation of normative criteria. By contrast, for the
qadi no judgment is regarded as essentially superior to any other in the sense
of being able to claim achievement of absolute truth, and hence the terms of
discussion are both more relativized and more intensely personal. Stories are
thus told of wise qadis who, suspecting a party to be untruthful, disguise
themselves, embroil the other in some dishonest venture in the market-place,
and then return to court to confront the individual with his true identity and
personal appreciation of the other’s character. It is not whether an individual
qadi, in the quest of some authentic sense of himself, can penetrate to a truth
beyond the social that is at issue: such a concept is simply absent from the
approach to the problem of judgment found in the culture of the qadi. Rather,
for him the issue is drawn in terms of that social truth which is lodged in the
continuing assessment of others through cultural categories that span all
domains of everyday life.
Thus what is problematic about human judgment in one culture is not an
issue in the other. Wright and his critics may disagree as to whether the courts
should be “result-oriented,’ but not so the qadis. For them what is
problematic is the implication for social peace or chaos of those networks of
affiliation that their judgments may affect, and thus the terms, as well as the
differences of view, turn on the question of organizing the description of the
situated person. By pressing this inquiry down into the hands of notaries,
experts, witnesses, and oaths Islamic law has created a workable solution to
the problem of uncertain human relationships, just as Wright and his
colleagues avoid the open break their differences might engender by tacitly
agreeing to share a common mode of expressing their processes of reasoning.
Indeed, where American judges disagree over the issue of whether they are, in
fact, ever exercising a wholly personal discretion, qadis— fearful that they may
be exercising an impermissible interpretation of divine ordinance — see
themselves as avoiding the risks this process might entail by drawing their
judgments in the same social terms by which members of the culture at large
make evaluations of others. For western judges and qadis alike the very nature
of what is problematic for them and the terms that contribute to their way of
reaching decisions are thus firmly embedded in the larger discourse of their
respective cultures.
There is perhaps no place where a culture’s approach to judgment and

discretion comes more sharply to the fore than in the articulation of what it is
that gives substance and meaning to its particular idea of justice. In a recent
account of Islam in the modern world Malise Ruthven has written that:
whereas Christianity is primarily the religion of love, Islam is above all the religion
of justice. This does not, of course, mean that Christians are necessarily better at
loving than Muslims, or that Muslim society lends itself more successfully to the
realization of justice. . . Nevertheless. . . the two watchwords, love and justice, can
usefully act as signposts to a wide range of differences between the two religions in
terms both of their acknowledged practices and dogmas and of the unconscious
prejudices of their adherents.
Everywhere one encounters in Islamic life the idea of justice: Respected

figures are acknowledged for being just; relationships are valued when they
partake of just arrangements; particular historical periods are admired
because they were days when men acted justly. The Muslim concept of justice
is thus one of those domains in which a host of social, political, and ethical
ideas come into uneasy coalescence, and the contrast between American ideas,
diverse, fluctuating, often inchoate, and Islamic ideas, challenged, hesitating,
yet deeply sensed, is actually quite subtle. For if it is true that the present idea
of justice in America overlaps with and incorporates ideas of equality (the law
should be blind to social and biological differences) and ideas of autonomy
(justice lies in the protection of my rights) then within the ambit of Islamic
justice lie the central ideas of individuation (I must be seen as a whole person
whose social traits contribute to a distinctive pattern) and the fair regulation
of permissible exchange (the presentation of men’s bargained-for claims
within the limits set down by God). It is not rights that are at the center of
Islamic justice, for no one expects rights to be recognized that are not granted
by God or forcefully ensured by networks of obligation. Rather what is
central is the process by which one’s claims may be validated before the
community in accord with local practice and the attestation of people who
with their own eyes know what is so and will not risk their credibility as allies
by refusing to say it.
It is particularly intriguing, in this respect, to mention to Moroccan judges
that in western law it is considered only just that similar cases be decided
similarly — a proposition that incorporates our vision of equality and its
almost mathematical specificity — and then to ask whether a system like their
own that involves no precedent or comparison with other cases does not
violate justice. In my experience judges always reply with two arguments: The
first thing to remember, say qadis, is that since no two individuals are exactly
the same no two cases are precisely the same. Even the same individual
committing the same act at a later date is changed by the fact that this is not the
first instance of such behavior. But even more important, they say, is that if the
mode of analysis and fact-finding is the same in each case although different
judges may reach different conclusions, the results are equivalent because the
Judicial discretion, state power, and the concept of justice We
process was identical. The logic of Moroccan jurisprudence thus seems to rest
neither on the analytic philosopher’s insistence on common definitions nor on
a Wittgensteinian constancy of results, but on the settled process by which the
locally known may be validly presented and authoritatively weighed. Small
wonder, then, that a famous Moroccan poet of the sixteenth century, known
as Mejdoub “the Sarcastic,” should have put the matter so typically when he
intoned that “if the times are just, one day is for me and one day is against
me.” And nowhere do those features that sound the common theme of justice
in Moroccan thought come through more sharply than ina folktale told by the
Berbers of the way in which justice and injustice became separate for all time.
At the beginning of time (goes the story) Justice and Injustice lived as
neighbors. One day Injustice proposed that Justice join him in a pilgrimage to
the shrine of a saint. “Prepare your provisions well,” Injustice said, “for the
voyage is a long one.” On the assigned day the travelers set out. During the
daylight hours they made their way and in the evening each prepared his own
meal from his own provisions. Every evening, however, Injustice refrained
from taking more than a few dates and a mouthful of water, and when Justice
asked why he was not eating, Injustice simply replied that he was not very
hungry. So it remained for the entire outward voyage.
On the return trip Justice found himself short of food. On the first evening,
Injustice ate greedily from his store of honey and bread and meat and butter,
offering nothing to his companion. Justice reproached him for acting so
unworthily, but Injustice only laughed at the naivete of his friend. After
another day of long, hot travel, Justice again awaited some gesture on the part
of his companion, but none was forthcoming. Noticing his friend’s weakened
condition Injustice said: “If you want to eat you must pay me, because I
cannot feed you for nothing.” “But I have nothing to give you,” replied
Justice; “Tl pay you when we arrive home.” Injustice refused, saying, ““You
must pay me now since you want to eat now.” Justice asked the price that he
would have to pay in order to eat and Injustice replied: ‘““You must give me one
of your eyes.” Justice’s heart sank, but ultimately he decided to comply,
reasoning that it was better for Justice to exist with only one eye than not to
exist at all. The sentence was immediately executed. All the next day Justice
stoutly resisted hunger and thirst, but by nightfall he could hold out no longer
and ceded to Injustice his other eye in return for a bit of food. So it was that
Justice became blind and wandered alone out into the desert.
Once again through this painful allegory we see those themes so charac-
teristic of the concept of justice in this part of the world. For Justice is, like all
creatures, responsible for his own actions and the consequences of them. His
plight is deeply personalized; it is not an abstract idea that best conveys the
qualities of a situation but the individuated, the contextualized, the personi-
fied. And although Injustice should so characteristically seek to bargain out
his tie.to Justice in wholly contractual terms, his unwillingness to partake of
that hospitality and reciprocity so integral to proper relations gives sharp
emphasis to the tradition of the Prophet that reminds the believer that “you
can give an unjust law to a just judge, but you cannot give a just law to an
unjust judge.” It is ironic, too, that it should be Injustice who scrupulously
adheres to the Islamic prohibition against contracts for future performance
and goes on to insist that failure to pay for something when it is given would
constitute a form of unjust enrichment. Is it for placing law over fairness that
Injustice is to be condemned? Is it for agreeing to an unbargainable contract
that Justice is submitted to suffering? Or is it because where Islamic law is
absent and the appeal to conscience over public force that it embraces is
lacking one must expect even Justice to argue, as a writer from quite a different
tradition once put it, that “nothing is real to us but hunger, nothing sacred
save our own desire’? In this moral tale, in the application of the qadi’s
discretionary judgment, in the validation by one witness of the just and
equitable qualities of another, and in the Quranic admonition that “no man
bears the burden of another” the Islamic sense of justice and injustice thus
finds its characteristic voice.
In their own distinctive ways folktales and legal cases both explore the
boundaries of the concepts and relationships by which a people tests its own
standards of power and of fairness. In many developing nations — as well as
many western countries — dissatisfaction with the delay and cost of
adjudication has, however, led to the introduction of new courts whose
jurisdiction overlaps or supersedes that of existing courts. Whether it be the
People’s Court of China, Cuba, or the National Broadcasting Corporation,
these alternative forums reveal much about the acceptable limits of judicial
authority and discretion. In 1974, following the model of Iran, Morocco
instituted a series of local courts in which nonappealable decisions on minor
cases, heard by a judge chosen from among the members of a local nominating
body, were to be made without reference to any particular body of law. To
many these courts represented a return to the arbitrary decisions of political
officials who once held jurisdiction over matters not clearly within the aegis of
the qadi’s court. Where proponents argued that the courts would be close to
the people by applying local custom, detractors saw in these courts a complete
absence of legal principles and insufficient procedural regularities to guard
against abuse. Observing their proceedings in the late 1970s one could not help
but be struck with the rapidity of judgment, the political dependence of the
judge, and the hostility with which many people approached the court
proceedings.
The eventual failure of these courts thus attests, in Morocco as in other
Muslim countries, to the deep-seated fear not that particular powerful
individuals may be able to use a court to their personal advantage but that
if the forum does not draw local circumstance in through the processes that
have long characterized the courts of the qadi — especially for matters
traditionally within the power of the shari‘a to decide — the absence of
legitimacy for the alternative system will threaten society as a whole with
Judicial discretion, state power, and the concept of justice ig.
unjust times. Whatever the future may hold for Islamic law — an increase in its
criminal law dimensions as the state uses religion to help in its monopolization
of violence, a reinforcement of the classical period’s use of independent
reasoning as a bridge toward unavoidable change — it is very probable that the
legitimacy of local shari‘a courts everywhere will, as in Morocco, depend in no
small part on their capacity to acknowledge and incorporate local practice
within a mode of reasoning and procedure that carries reverberations from
and to a number of other domains of social life.
Other and still deeper forces may, however, be at work in a number of
Middle Eastern cultures, forces that span the bounds of law and society
affecting different domains in ways that escape easy prediction. I do not mean
the opposition between what westerners are wont to call modernism and
fundamentalism, with its connotations of appellate judges in westernized
robes versus the chief executioner lopping off hands or heads in the public
market-place. Rather what is implied is a potential shift in some of the most
fundamental terms by which the discussion of law, no less than other social
issues, goes forward. In Morocco, as in some other Muslim countries, an
intriguing alteration may, therefore, be underway in several of the central
concepts with which this study has been concerned.
It may be, for example, that for the first time a concept of probability is
finding its way into the conceptual framework of Moroccan life. In the past
people always spoke of events as either occurring or not: good harvests
happened or they did not, allies remained faithful or they did not, the times
were just or they were not. Terms like imken or warra bemma, often translated
as ““‘maybe”’ or “‘might,”’ fit a conceptual scheme of positive and negative, not
of true probability. But just as in the west, where the introduction of the idea
of statistical probability in the seventeenth century had profound reper-
cussions for literature, theology, and science no less than for law, so,
too, in Morocco terms that were previously connected only with
occurrence/nonoccurrence now bear overtones of the possibility of increasing
the chances for one or another result. In agriculture people speak of what can
be done to increase the frequency of positive outcomes rather than just saying
that three or four years of every seven are favorable. In politics they speak of
how to maximize outcomes within a given frequency. And in law, the qadis are
also speaking about the likelihood of various results and calculating
consequences in terms of the probability of achieving one or another outcome.
Similarly, the idea of causality may be undergoing change. As we have seen,
it has commonly been assumed in Moroccan culture that human or divine
agency lies behind all events. To know how something happened you mainly
need to know who made it happen. Even a complex series of events was
perceived and retold in terms of the actor involved at each stage. Now,
however, one sees instances in which chains of events are themselves seen to
entail their own natural or probable consequences. Once set in motion, a
political election, a familial dispute, or an economic venture may be spoken of
as incorporating forces that work their way without constant human

intervention. In the courts, this means that circumstantial evidence, rather
than evidence of character, of persons-in-context, becomes more acceptable.
Just as elaborated rules of evidence did not develop in the common law until
the eighteenth century, when the idea of probability had taken its place in the
common sense of society, so, too, in the Muslim Middle East causality in the
law may undergo significant alteration as the idea of human agency itself
becomes increasingly problematic.
Two other linked concepts may also be following suit. Intentionality, as we
have seen, has been envisioned as directly inferable from overt acts, words,
and background indicators. From the science of physiognomy to the use of
expert advice the courts, like ordinary individuals contemplating a new dyadic
bond, arranged their view of another’s intended meaning in the belief that
mental processes were indeed accessible and hence subject to influence. But as
physical mobility has increased and ties of family, craft, and residence become
unlinked the ability to infer mind from context has become more uncertain.
This may be contributing, even in ‘“‘fundamentalist”’ Islamic thought, to a
greater emphasis on strict liability and to an assessment of intent as either
irrelevant or in need of professionalized measures of evaluation. So, too, for
the idea of responsibility. For if events at times take a course of their own, if
others’ minds become dimmer to view, and if events may be varied in their
likelihood of occurrence, then may not a person’s capacity for responsible
action — so central to the whole moral vision of Islam and the categories by
which the Sacred Law has been enforced — become a contingent factor rather
than the stable referent it has long been? If so, the repercussions in the law, as
in society, may be vast and unforeseeable.
That the people of the Muslim world may be in the process not of a new
round of events played by the old rules but of rethinking the categories of their
own reality is a prospect of endless fascination and uncertainty. Whatever its
course and implications one thing is reasonably clear: the courts of the gadi
will continue to constitute a forum in which those terms will be reflected and
from which they will, in part, be shaped, for it is in that realm — so open to the
contention of people and their culture — that a portion of that future will be
made visible to those caught up in its uncertain course.
I began this chapter by citing something once said by Mr. Justice Frankfurter.
In drawing to a close it is perhaps fitting to quote something once said by Mrs.
Felix Frankfurter. Following one of his public speeches an enthusiast once
asked Marion Frankfurter if she did not think the Justice to be a marvelous
speaker. “‘Yes,”’ replied Mrs. Frankfurter, “‘though as a lecturer he does have
two faults. The first is that he always strays from his main point, and the
second is that he always manages to wander back to it!”
In the study of law and anthropology, it may be argued, such meandering is
actually more of a virtue than a detriment. For it is by moving back and forth
across the analytic line that separates law from culture that we can perhaps
best see how problems raised in each domain find their response not within
their own confines alone but within the ambit of both — how the determination
of facts depends on the concepts by which mind and act are categorized in
ordinary discourse, or how the conceptual framework of legitimate authority
is shaped by its judicial articulation. Seen from this perspective our questions
about both law and society become more capacious and intriguing. We can
ask not just how people use rules to limit action but why they employ the very
form of legal rules to accomplish this end. Thus, in the context of Islamic
justice our study of Moroccan courts may suggest more generally that
although in Arab society one cannot create relationships from whole cloth or
ever ignore that premonitory fear of chaos writ deep in religious doctrine and
the common view of humanity, one can indeed traffic in the knowledge of
others’ obligations and seek thereby to contain their intricacies and repercus-
sions. In a world where institutions take a backseat to personalities, where the
assessment of situations turns on the evaluation of social features only as they
have taken shape in a given individual, and where this personal instantiation
necessarily makes the reduction of relationships to simple rules or roles
patently adverse to each man’s need to contract ties freely where best he can,
the law works less to regulate the details of relations than to establish the
parameters of the permissible. Islamic law thus seeks neither to equalize
wherever inequality exists nor to offer a preferred terrain for the reconstruc-
tion of society through judicial legislation. Rather, it seeks to reestablish the
grounds upon which negotiation can proceed with whatever inequalities of
circumstance may locally prevail. The weakness of such a system may be an
incapacity to generate change by restructuring the distribution of resources or
the rules by which they may be adduced or applied. But by drawing culture
into the law and law into the culture Islamic law may have allowed that
process of bargaining out relationships — in all its stolid variety and tremulous
solidity — to retain its characteristic form and vitality for such an ex-
traordinarily long time. That indeterminacy of which Sally Falk Moore has
spoken, in which people struggle to limit their situations by the fixity of their
relationships or to exploit the ambiguities of convention to fabricate more
favorable contexts of engagement, often finds in the law an instrument — as
profound as religion, as persuasive as material want — through which an image
of oneself and one’s society may be most forcefully presented.
And where — whether in the Arab world or in our own — the law has come to
be a central forum in which concepts and relationships reveal themselves most
openly, one will find a judge who must ultimately decide the issue at hand. The
struggle for the heart and mind of such a judge will take quite different forms
and lead to markedly different institutional constraints and repercussions. But
through the characteristic manner of their decisions and through our own
attempt to comprehend them the actions and judgments of qadis and of judges
afford an unusual opportunity to see a culture enact a vision of itself and of its
deepest aspirations.
Notes and Bibliography
The following notes are intended both as references for specific arguments and
quotations in the text and as a selective guide to readers on the relevant literature.
References are keyed to the pages in the main text in order to avoid the distraction of
numerous specific footnotes.
The Bibliography contains a fuller set of references than those mentioned in the
notes. Titles have been selected both as a guide to more specialized reading and as an
indication of the context within which many of the issues raised in this study must be
placed.
80
Notes
1 Law and culture: the appeal to analogy

p: 2 The fullest statements of the realist position remain Karl Llewellyn,
Jurisprudence: Realism in Theory and Practice (Chicago: University of
Chicago Press, 1962), and Jerome Frank, Law and the Modern Mind (New
York: Brentano’s, 1930). The best work in the positivist tradition is
H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961). The
relation of law to the political and economic order has come under close
scrutiny by members of the Critical Legal Studies school, whose work is
well represented in “Critical Legal Studies Symposium,” Stanford Law
Review, vol. 36, nos. 1 and 2 (January 1984), and Roberto Ungar, The
Critical Legal Studies Movement (Cambridge, Massachusetts: Harvard
University Press, 1986). See also Duncan Kennedy and Karl E. Klare, “A
Bibliography of Critical Legal Studies,” Yale Law Journal, vol. 94, no. 2
(December, 1984), 461-90.
The quotation comes from Benjamin N. Cardozo, The Nature of the
Judicial Process (New Haven: Yale University Press, 1921), p. 10.
Butler’s statement occurs in the section of his Notebooks, 2 entitled
“Music, Pictures and Books: Thought and Word.”
Although his biographers are not explicit on the issue, I think it is very
likely that Lewis Henry Morgan, the man in whose honor the lecture series
on which this book is based, himself drew on analogies from the law for his
understanding of anthropological issues. Morgan tried, for example, to
conceive of Iroquois organization as having similarities to the construc-
tion of a legal corporation and sought to express the forms of kinship
behavior in terms similar to jural rules. His use of analogies drawn from
the law illustrates both the strengths and weaknesses of such an approach,
revealing the common principles that inform kinship and polity but
encouraging a view of social organization that stresses formal closure over
processual refashioning. On Morgan’s work and life, see Carl Resek,
Lewis Henry Morgan: American Scholar (Chicago: University of Chicago
Press, 1960); on the relation of law and metaphor generally, see James
Boyd White, The Legal Imagination (Boston: Little, Brown, 1973;
abridged edition, University of Chicago Press, 1985).
pp. 4-5 A list of major works in the field of anthropology and law is beyond the
scope of this book, but at the risk of considerable underinclusion the
81
82 Notes
following may be noted as among the recent works that have proved most
stimulating in constructing the present argument: Elizabeth Colson,
Tradition and Contract (Chicago: Aldine Press, 1974); John L. Comaroff
and Simon Roberts, Rules and Processes: The Cultural Logic of Dispute in
an African Context (Chicago: University of Chicago Press, 1981); Lloyd A.
Fallers, Law Without Precedent: Legal Ideas in Action in the Courts of
Colonial Busoga (Chicago: University of Chicago Press, 1969); Max
Gluckman, The Ideas in Bratose Jurisprudence (New Haven: Yale
University Press, 1965); Ian Hamnett (ed.), Social Anthropology and Law
(New York: Academic Press, 1977); Karl N. Llewellyn and E. Adamson
Hoebel), The Cheyenne Way (Norman: University of Oklahoma Press,
1941); Sally Falk Moore, Law as Process: An Anthropological Approach
(London: Routledge and Kegan Paul, 1978); Stuart A. Schlegel, Tiruray
Justice (Berkeley: University of California Press, 1970).
Among the seminal works discussing the analysis of culture that have
influenced this study are: Kenneth Burke, The Philosophy of Literary Form
(New York: Vintage Books, 1957); Clifford Geertz, The Interpretation of
Cultures (New York: Basic Books, 1973); Suzanne Langer, Philosophy ina
New Key (Cambridge, Massachusetts: Harvard University Press, 1942);
Leonard B. Meyer, Music, The Arts, and Ideas (Chicago: The University of
Chicago Press, 1967); Walker Percy, The Message in the Bottle (New Y ork:
Farrar, Strauss, and Giroux, 1976); and David Schneider, American
Kinship: A Cultural Account, 2nd edition (Chicago: University of Chicago
Press, 1980).
p. 6 The work in the Sefrou area has thus far yielded the following main books:
Clifford Geertz, Hildred Geertz, and Lawrence Rosen, Meaning and Order
in Moroccan Society (New York: Cambridge University Press, 1979);
Clifford Geertz, Islam Observed (New Haven: Yale University Press,
1968), and Local Knowledge (New York: Basic Books, 1983); Paul
Rabinow, Reflections on Fieldwork in Morocco (Berkeley: University of
California Press, 1977); and Symbolic Domination: Cultural Form and
Historical Change in Morocco (Chicago: University of Chicago Press,
1975); and Lawrence Rosen, Bargaining for Reality: The Construction of
Social Relations in a Muslim Community (Chicago: University of Chicago
Press, 1984).
Although the literature on Islamic legal history and doctrine is extensive,
there are very few studies of the actual operation of contemporary courts
of law anywhere in the Arabic-speaking world, a fact that makes direct
comparison between my own observations of the Islamic courts of
Morocco and those of other places extremely difficult.
Among the most useful discussions of modern Islamic court proceed-
ings are: Richard T. Antoun, “The Islamic Court, the Islamic Judge, and
the Accommodation of Traditions: A Jordanian Case Study,” Jnter-
national Journal of Middle East Studies, 12 (1980), 456-67; Judith
Djamour, The Muslim Matrimonial Court in Singapore (London: Athlone
Press, 1966); Carolyn Fluehr-Lobban, Jslamic Law and Society in the
Sudan (London: Frank Cass, 1987); Enid Hill, Mahkama! Studies in the
Egyptian Legal System (London: Ithaca Press, 1979); Brinkley Messick,
“Legal Documents and the Concept of ‘Restricted Literacy,” Jnter-
national Journal of the Sociology of Language, 4 (1983), 41-52, and his
“Prosecution in Yemen: The Introduction of the Niyaba,” International
Notes 83
Journal of Middle East Studies, 15 (1983), 507-18; Ann E. Mayer (ed.),

Property, Social Structure and Law in the Modern Middle East (Albany:
State University of New York Press, 1985); and June Starr, Dispute and
Settlement in Rural Turkey (Leiden: E. J. Brill, 1978). Two older but still
very useful descriptions of Islamic court proceedings will be found in the
books by John H. Wigmore, A Kaleidoscope of Justice (Washington, DC:
Washington Law Book Co., 1941), pp. 217-58; and A Panorama of the
World’s Legal Systems (Washington, DC: Washington Law Book Co.,
1936), pp. 531-650d.
pall The argument summarized here is elaborated in my Bargaining for
Reality: The Construction of Social Relations ina Muslim Community. The
semantic history of many of the Islamic concepts discussed here is
analyzed in Toshihiko Izutsu, Ethico-Religious Concepts of the Qur’an
(Montreal: McGill University Press, 1966); and God and Man in the Koran
(Tokyo: Keio Institute of Cultural and Linguistic Studies, 1964).
p. 12 The transcription of Arabic used here is based on that of the most
generally accessible Arabic—English dictionary, Hans Wehr’s Dictionary
of Modern Written Arabic, ed. J. Milton Cowan (Ithaca: Cornell
University Press, 1976), with some modifications for the Moroccan
colloquial dialect.
The Conrad quotation comes from An Outcast of the Islands (London:
Penguin, 1976 [orig. pub. 1896]), p. 113.
p.15 The “milky way of instants” phrase appears in Louis Massignon, ““Le
Temps dans la pensée islamique,” Eranos-Jahrbuch 1951, 20 (1952), 141.
For a discussion of Moroccan concepts of time, history, and narrative
style see my Bargaining for Reality: The Construction of Social Relations in
a Muslim Community, pp. 165-79.
p.15 The lines quoted are from Katherine Slater Gittes, ‘“The Canterbury Tales
and the Arabic Frame Tradition,” P.M.L.A. (Publications of the Modern
Languages Association), 98 (1983), 243-44.
pp. 16-17 Most of the literature on Islamic law is concerned with doctrine rather
than actual legal decisions. The best overview of Islamic legal doctrine
remains Joseph Schacht, An Introduction to Islamic Law (Oxford:
Clarendon Press, 1964), while excellent material, particularly pertinent to
the North African situation, is contained in Louis Milliot, Introduction a
l’étude du droit musulman (Paris: Recueil Sirey, 1953).
The Malikite school of Islamic law practiced in Morocco does not differ
radically from other orthodox schools, although it does tend more than
others to stress the intentions of contracting parties, a feature that can be
seen in such sources as the English translation of Imam Malik, Al-
Muwatta (Norwich: Diwan Press, 1982); F. H. Ruxton, Maliki Law
(London: Luzac, 1916); and a modern compendium referring to various
schools, ‘Abdur Rahman I. Doi, Shari‘ah: The Islamic Law (London: Ta
Ha Publishers, 1984). On the history and modern reform of Islamic law
there are two particularly useful studies: Noel Coulson, A History of
Islamic Law (Edinburgh: Edinburgh University Press, 1964); and Norman
Anderson, Law Reform in the Muslim World (London: Athlone Press,
1976). Of particular relevance to this study is the title essay in Geertz’s
Local Knowledge, which compares the relation of law and culture in
Morocco and Indonesia.
Actual legal decisions, especially below the highest court level, are not
84 Notes
regularly reported in most Arab countries, and therefore it is difficult to

analyze and compare judicial practice. Some Moroccan cases do appear in
the Revue algérienne, tunisienne, et marocaine de legislation et de jurispru-
dence, the Revue marocaine de droit, and the Revue juridique, politique et
économique du Maroc. Undoubtedly the richest collections of case
decisions are those edited by Louis Milliot, Recueil de jurisprudence
chérifienne, of which volumes I and II appeared in 1920, volume III in 1924
(all published in Paris by Editions Leroux), and volume IV, jointly edited
with J. Lapanne-Joinville, in 1952 (Paris: Librairie Recueil Sirey, 1952). A
full translation of a representative case from the Milliot collection appears
in Wigmore, A Panorama of the World’s Legal Systems, pp. 593-614. For
examples from the law of torts, see Emile Tyan, Le Systéme de
résponsabilité délictuelle en droit musulman (Beirut: Imprimerie Catho-
lique, 1926).
None of the cases from the qadi’s court of Sefrou is published. With the
aid of an assistant who deciphered and orally translated each dossier from
literary to colloquial Arabic with me, some 400 cases — only a few of which
can be discussed in detail in this work — were collected from the court
records. The citation system used here is the same employed by the court,
with the year in which litigation began followed by the docket number of
the case.
2 Determining the interminable

p. 21 The quotation about evidence is from R. C. van Caenegem, The Birth of
the English Common Law (Cambridge: Cambridge University Press,
1973), p..62.
p. 22 The role of lies is not precisely the same throughout the Arab world. See,
for example, the Lebanese situation described in Michael Gilsenan,
“Lying, Honor, and Contradiction,” in Bruce Kapferer (ed.), Transaction
and Meaning (Philadelphia: Institute for the Study of Human Issues,
1976), pp. 191-219. For a fuller discussion of the Moroccan instance, see
my Bargaining for Reality: The Construction of Social Relations in a
Muslim Community, pp. 117-33.
p. 23 The role of notaries and forms of witness proof are more fully described in
my “Equity and Discretion in a Modern Islamic Legal System,” Law and
Society Review, vol. 15, no.2 (1980-81), 217-45. The seminal work on
legal fictions remains Ian Fuller, Legal Fictions (Stanford: Stanford
University Press, 1967).
pp. 23-24 Islamic judges are not surprised by people lying in court if an oath has not
yet been taken, a situation that recalls the analysis of some countries of
sub-Saharan Africa in Lloyd A. Fallers, ““Customary Law in the New
African States,” Law and Contemporary Problems, vol. 27, no. 4(Autumn
1962), 605-16, at 608. The local reaction to the 1967 Middle East war is
described in my “A Moroccan Jewish Community during the Middle East
Crisis,” American Scholar, 37 (1968), 435-51.
On the role of documents see Jeanette A. Wakin, The Function of
Documents in Islamic Law (Albany: State University of New York Press,
1972); and Brinkley Messick, “Literacy and the Law: Documents and
Notes 85
Document Specialists in Yemen,” in Daisy Hilse Dwyer (ed.), Law and

Islam in the Middle East (South Hadley, Massachusetts: Bergen, 1988).
The story of Potiphar’s wife appears in the Quran at Sura 12, verses 23-29,
and in the Old Testament at Genesis 39.
p. 30 TheHigh Court opinion on experts will be found in Recueil des arréts de la
Cour supréme, Chambre civile 1957-62 (Rabat: 1968), Case no. 102,
pp. 186-87. The Court has also repeatedly held that it has no right to
substitute its own discretion for that of a lower court unless a clearly
articulated standard has been violated. See ibid., case nos. 2, 110, 123, 135,
140, 166, and 176.
pp. 31-32 The importance and procedure of oath-taking in various Islamic jurisdic-
tions and historic periods are described in Robert Brunschvig, ““Le
Systeme de la preuve en droit musulman,”’ Recueil de la Société Jean Bodin
pour l’histoire comparative des institutions, La Preuve, 18 (1963), 177-80;
Almenouar Kellal, “Le Serment en droit musulman, école malékite,”’
Revue algérienne, tunisienne et marocaine de législation et de jurisprudence,
74 (1958), 18ff.; and Herbert J. Liebesny, The Law of the Near and Middle
East: Readings, Cases, and Materials (Albany: State University of New
York Press, 1975), pp: 243-54.
p32 The quotation from the Ohio court appears in the case of Clinton v. State,
Ohio State Reports, vol. 33 (1877) at p. 33. For an interesting discussion of
the modern rationale for the oath in the United States, see Richard O.
Lempert and Stephen A. Saltzburg, A Modern Approach to Evidence (St.
Paul: West Publishing Co., 1977), pp. 334-35.
jO: 313) The Italian version of the decisory oath is cited and analyzed in G. L.
Certoma, The Italian Legal System (London: Butterworth, 1985), p. 204.
pass The quotation about the mudda‘i and mudda‘a ‘alay-hi comes from the
commentary of al-Sharnubi as translated and analyzed in Alexander D.
Russell and Abdullah Al-Ma mun Suhrawardy, First Steps in Muslim
Jurisprudence (London: Luzac, 1906), p. 99. On the role of presumptions
generally in Moroccan law see J. Lapanne-Joinville, “Etudes de droit
musulman malekite: les preésomptions,” Revue algérienne, tunisienne et
marocaine de législation et de jurisprudence, 73 (1957), 99-113.
An interesting example of the presumptions at work ina child custody case
will be found in Milliot and Lapanne-Joinville (eds.), Recueil de jurispru-
dence cherifienne, vol. IV, pp. 129-35. Other instructive cases on the order
of oath-taking appear in the same collection at pp. 61-67 and 253-55, as
well as in vol. III at pp. 113-16.
On the interplay of rational andirrational elements in oaths and ordeals
in various legal systems, see Rebecca V. Colman, “Reason and Unreason
in Early Medieval Law,” Journal of Interdisciplinary History, vol. 4, no. 4
(Spring 1974), 571-91; and William A. Shack, “‘Collective Oath: Com-
purgation in Anglo-Saxon England and African States,” Archives eu-
ropéenes de sociologie, 20 (1979), 1-18.
The major work containing Tylor’s ideas is his Primitive Culture
(London: John Murray, 1871), while Frazer’s views are most fully
developed in The Golden Bough (London: Macmillan, 1890). On
Malinowski’s thought in this regard see his A Scientific Theory of Culture
and Other Essays (Oxford: Oxford University Press, 1960). The more
recent approach described here derives from Suzanne Langer, Philosophy
86 Notes
in a New Key (Cambridge, Massachusetts: Harvard University Press,

1942), and the analyses of social life as performative events developed by
Victor Turner, The Ritual Process (London: Routledge and Kegan Paul,
1969), and From Ritual to Theatre (New York: Performing Arts Journal
Publications, 1982). The umpire joke is related by Hadley Cantril,
“Perception and Interpersonal Relations,” in Alfred E. Kuenzli (ed.), The
Phenomenological Problem (New York: Harper, 1959) p. 198.
3 Reason, intent, and the logic of consequence

p. 39 A published versionof Coke’s response to King James appears in Sir
Edward Coke, The First Part of the Institutes of the Lawes of England
(London, 1628), s. 138 at 97b.
p. 41 In the vast literature on the sources of Islamic law Joseph Schacht’s
Origins of Muhammadan Jurisprudence (Oxford: Oxford University Press,
1950) still remains preeminent. Muhammad Ibn Idris al-Shafi‘i was the
eighth-century commentator most responsible for establishing the sources
of Islamic law, and a translation and analysis of his work will be found in
Majid Khadduri, Islamic Jurisprudence: Shafi‘i’s Risala (Baltimore: Johns
Hopkins University Press, 1961).
p. 43 Milliot’s collections, Recueil de jurisprudence chérifienne, contain numer-
ous examples of judicial reasoning in terms of “positive” and “negative”
assertions. Among the most instructive are the cases that will be found in
volume I at pp. 107—24; volume II at pp. 17-32, 133, 167-68; and volume
IV at pp. 110-14 and 349-59.
p. 44 The case that presumes usury to be the norm in financial transactions with
Jews appears in Milliot, Recueil de jurisprudence chérifienne, vol. II,
pp. 88-92, while the case of the presumptively lying administrator is
reported in the same volume at pp. 190-215.
pp. 46-47 The quotation about fatwas is from Brinkley Messick, ““The Mufti, the
Text and the World: Legal Interpretation in Yemen,’ Man (New Series),
21 (1986), 111. The existence of the ‘ama literature was first brought to
western attention by Louis Milliot in his Démembrements du Habous
(Paris: Editions Leroux, 1918), pp. 13-21, and later elaborated in his
Recueil de jurisprudence chérifienne, vol. 1, pp. 14-21 and vol. IV, pp. v—xix.
Where Milliot saw the collections of judicial practice as forming a body of
positive law, Jacques Berque, in his Essai sur la méthode juridique
Maghrébine (Rabat, 1944), suggested that the literature functioned in
much the same way as case law in western systems. For a critique and
reevaluation of both positions see my “Islamic ‘Case Law’ and the Logic
of Consequence,” in Jane Collier and June Starr (eds.), History and Power
in the Study of Law (Ithaca: Cornell University Press, 1989). A translation
and analysis of one of the leading collections of Moroccan ‘amal, that of
Sijilmasi, is contained in Henry Toledano, Judicial Practice and Family
Law in Morocco (Boulder and New York: Social Science Monographs and
Columbia University Press, 1981).
p. 48 The 1946 case is reported in Volume IV of Milliot’s Recueil de jurispru-
dence chérifienne, pp. 339-45. For an interesting discussion of the relation
between law and urban design in the Middle East see Malise Ruthven,
Islam in the World (London: Penguin, 1984), pp. 176-79.
Notes 87
The case of a wife initiating divorce appears in Toledano, Judicial Practice

and Family Law in Morocco, p. 128; the case of the birth costs is case
no. 65/137 Goined with case no. 64/365), which was filed in the qadi’s court
of Sefrou in 1964.
John Dewey’s argument appears in his “Logical Method and Law,”
Cornell Law Quarterly, 10 (1924), 17-27. The quotation about a judge’s
duty to avoid civil strife is from Sidi ‘Isa al-Sijistani’s Nawazil as cited in
Toledano, Judicial Practice and Family Law in Morocco, p. 167.
p. 51 The issue of intentionality in Moroccan society and law is discussed in
comparison to western examples in my “Intentionality and the Concept of
the Person,” in J. Roland Pennock and John W. Chapman (eds.), Criminal
Justice (NOMOS XXVII) (New York: New York University Press, 1985),
pp. 52-77; and Bargaining for Reality: The Construction of Social Re-
lations ina Muslim Community, pp. 47-56. Among the most useful sources
for an understanding of the Islamic law of homicide are: J. N. D.
Anderson, The Maliki Law of Homicide (Zaria, Nigeria: Gaskiya Corp.,
1959); Jacques el-Hakim, Le Dommage de source Délictuelle en droit
Musulman (Paris: Librairie Genérale de Droit et de Jurisprudence, R.
Pichon et R. Durand-Auzias, 1964); and Edward Westermarck, “Customs
Connected with Homicide in Morocco,” Transactions of the Westermarck
Society, 1 (1947), 7-38. On the related issue of responsibility, see my
“Responsibility and Compensatory Justice in Arab Culture and Law,” in
Ben Lee and Greg Urban (eds.), Semiotics, Self, and Society.
For a fascinating fictional example of the role of intent in a Moroccan
setting, see the story entitled ““The Eye” in Paul Bowles, Midnight Mass
(Santa Barbara: Black Sparrow Press, 1981), pp. 151-62.
p. 51 The warning against adjudication contrary to the judicial practice was
made by Sidi Isa al-Sijistani in his Nawazil, as quoted in Toledano, Judicial
Practice and Family Law in Morocco, p. 167.
jah Siew The interpretation of the tradition about hiding one’s sins comes from
Ahmad Zaki Yamani, Islamic Law and Contemporary Issues (Jidda: The
Saudi Publishing House, 1968), while the tradition itself is elaborated in
Th. W. Juynboll, ““Adhab,” in H. A. R. Gibb and J. H. Kramers (eds.),
Shorter Encyclopaedia of Islam (Leiden: E. J. Brill, 1961), pp. 15-16.
The comment by the Saudi Arabian scholar, Sheikh Abdulla Qadir
Shaybat al-Hamd of Medina Islamic University, is quoted with approval
by Sheikh Saleh Ibn Mohammad al-Laheidan, a member of the Council of
the Supreme Court of Saudi Arabia, in an article entitled ““Means of
Evidence in Islamic Law,” in The Effects of Islamic Legislation on Crime
Prevention in Saudi Arabia, Proceedings of the Symposium Held in Riyadh,
16-21 Shawal 1396 [9-13 October 1976] (Rome: United Nations Social
Defense Research Institute [for the Ministry of Interior, Kingdom of
Saudi Arabia], 1976), pp. 150-92, at-p. 164. Al-Laheidan himself goes on
to say (p. 171): “The judge, being endowed with this exceptional ability [to
make accurate guesses], can follow the procedural steps which force a
person to make his own confession.” On the relation of criminal law and
intent in the Hanifi school of Islamic law, see A. Ibrahim Pacha, De la
responsabilité pénale en droit islamique d’apres la doctrine hanafite (Paris:
T.E.P.A.C., 1944).
For a case interpreting the intent of a trust, see Milliot, Recueil de
88 Notes
jurisprudence chérifienne, vol.1I, pp. 167-68. The example of friendship

appears in Toledano, Judicial Practice and Family Law in Morocco, p. 45.
p. 54 The relation of individual units to encompassing frameworks is discussed
in a most interesting way by Katherine Slater Gittes, “The Canterbury
Tales and the Arabic Frame Tradition.”” Among the best analyses of
historical Islamic contract law are: Babar Johansen, “Sacred and Re-
ligious Element in Hanafite Law — Function and Limits of the Absolute
Character of Government Authority,” in Ernest Gellner, et al. (eds.),
Islam et politique au maghreb (Paris: Editions du Centre National de la
Recherche Scientifique, 1981), pp. 281-303; Nabil A. Saleh, Unlawful Gain
and Legitimate Profit in Islam (Cambridge: Cambridge University Press,
1986); and A. Udovitch, “Islamic Law and the Social Context of Exchange
in the Medieval Middle East,” History and Anthropology, | (1985), 445-65.
The passage from the Quran is at Sura 35, verse 18.
Levi’s seminal work is An Introduction to Legal Reasoning (Chicago:
University of Chicago Press, 1948). For a general introduction to
continental legal reasoning, see John Henry Merryman, The Civil Law
Tradition (Stanford: Stanford University Press, 1969).
p. 56 On the absence of concepts like good faith in Islamic law see Schacht, An
Introduction to Islamic Law, p. 397; and his “Islamic Religious Law,” in
Joseph Schacht and C. E. Bosworth (eds.), The Legacy of Islam, 2nd
edition (Oxford; Clarendon Press, 1974), pp. 396-97. For a provocative
argument that contracts in the west should be understood not as isolated
agreements but as complex and continuing interrelations, see Ian Macneil,
“Relational Contract: What We Do and Do Not Know,” Wisconsin Law
Review, vol. 1985, no. 3 (1985), 483-525.
4 Judicial discretion, State power, and the concept of justice

p. 58 Justice Goddard’s remarks appear in Metropolitan Properties Co. Ltd.
v. Purdy, All England Reports, vol. 2 (1940), p. 188; those of Justice
Frankfurter in Terminiello vy. Chicago, United States Reports, vol. 337
(1949), p. 11. Other common law case references to qadi justice will be
found in John Makdisi, “Legal Logic and Equity in Islamic Law,”
American Journal of Comparative Law, vol. 33, no. 1 (1985), 63-92. For an
eighteenth-century example of a positive western view of a qadi see
Anquetil Duperron, Législation orientale (Amsterdam: Marc-Michel Rey,
1778), pp. 1-13, 94-95, and 246-47.
pp. 59-60 Max Weber’s discussion is developed in Max Weber on Law in Economy
and Society (New Y ork: Simon and Schuster, 1967), especially at pp. 213ff.
There is also a useful discussion of Weber’s views on Islamic law in Bryan
S. Turner, Weber and Islam: A Critical Study (London: Routledge and
Kegan Paul, 1974), pp. 107-21.
pp. 60-61 The “cultural logic of dispute” phrase comes from the subtitle to John. L.
Comaroff and Simon Roberts, Rules and Processes: The Cultural Logic of
Dispute in an African Context (Chicago: University of Chicago Press,
1981). The idea of the proprietary person as it has been developed in a
school of Islamic legal thought which, in this instance, is not unlike that of
Morocco, is discussed by Babar Johansen, who also says, apropos the
relation of the state to the individual: ‘‘The state as the guardian of the
Notes 89
huqug allah [the claims of God] necessarily partakes of the absolute

character of the [claims of God]. It is, then, true that the Hanafite law did
not develop any ‘overt institutions for the plural and democratic
settlement of the humdrum, non-absolute issues of daily policy.’ But this is
not due to any ‘gout d’absolu, it is rather due to the preoccupation of the
lawyers [i.e., legal scholars] with the humdrum, non-absolute issues of
daily life. It is the lawyer’s preference for the huquq al- “bad [the claims of
man] which determines their understanding of the absolute prerogative of
the state. At the same time, this understanding implies the criterion by
which a good government can be judged. It is not ‘total rectitude’ which is
expected from the government. The government has to safeguard the
[claims of man]. The absolute character of government action is only
accepted as long as it secures the settlement of the humdrum, non-absolute
issues of daily life by the individual legal persons.’ Babar Johansen,
“Sacred and Religious Element in Hanafite Law — Function and Limits of
the Absolute Character of Government Authority,” in Ernest Gellner, et
al. (eds.), Islam et politique au maghreb (Paris: Editions du Centre National
de la Recherche Scientifique, 1981), p. 303.
p. 62 The lines quoted appear in Noel Coulson, “Doctrine and Practice in
Islamic Law,” Bulletin of the School of Oriental and African Studies, 18
(1956), 212. On the criminal punishments available to state officials, see
Schacht, An Introduction to Islamic Law, pp. 175-87.
The 1958 Code of Personal Status (Mudawwana) is available in the Arabic
text, together with an occasionally misleading French translation, in
André Colomer, Droit musulman, 2 vols. (Rabat: Editions La Porte, 1963
and 1967), and is updated in his “Legislation comparée: Maroc,” Juris-
Classeur de droit comparé (Paris: Editions Techniques, S.A., 1985).
Portions of the Code also appear in English in Tahir Mahmood, Family
Law Reform in the Muslim World (Bombay: N. M. Tripathi Pvt. Ltd.,
1972). For analyses of the 1958 Code, see also J. N. D. Anderson,
“Reforms in Family Law in Morocco,” Journal of African Law, 2 (1958),
146-59; Maurice Borrmans, Statut personnel et famille aumaghreb de 1940
anos jours (Paris: Mouton, 1977); and Charles Gallagher, ““New Laws for
Old: The Moroccan Code of Personal Status,” American Uni-
versities Field Staff Reports, North Africa Series I (Hanover, N.H.:
American Universities Field Staff, 1959).
pp. 63-64 On the absence of appellate courts in Islam, see Martin Shapiro, Courts: A
Comparative and Political Analysis (Chicago: University of Chicago Press,
1981), pp. 194-222. Among many Berber tribes of North Africa there did,
however, exist an appellate structure for the decision of cases according to
Berber customary law.
p. 65 Weber’s discussion of legal honoratoires is in Max Weber on Law in
Economy and Society, pp. 198-223. The intellectual background and
training of a Moroccan judge is described in Dale F. Eickelman,
Knowledge and Power in Morocco: The Education of a Twentieth-Century
Notable (Princeton: Princeton University Press, 1985), while legal edu-
cation in classical Islamic institutions is discussed in George Makdisi, The
Rise of Colleges: Institutions of Learning in Islam and the West (Edinburgh:
Edinburgh University Press, 1981).
p. 66 The case of the son paying a bridewealth contracted by his father appears
90 Notes
in Toledano, Judicial Practice and Family Law in Morocco, p. 44; that of

the woman who need not have paid her husband for a divorce at pp. 44-45.
p. 67 The case of child custody involving the soldier husband is Sefrou qadi’s
court, case no. 1962/279. The case of the imprisoned husband, Sefrou
qadi’s court, case no. 1961/262, is reported in full in my “Equity and
Discretion in a Modern Islamic Legal System,” 235-37. The quote about
Saudi Arabians is from Peter A. Iseman, ““The Arabian Ethos,” Harper’s
‘Magazine, 256 (February 1978), 50.
pp. 69-73 The Jehovah’s Witness case is Application of the President and Directors
of Georgetown College, Inc., Federal Reporter, Second Series, vol. 331,
pp. 1,000—1,018, decided by the Federal Court of Appeals for the District
of Columbia in 1964. The comments by Judge Wright in subsequent years,
as well as Professor Bickel’s reactions, appear in Arthur Selwyn Miller, 4
“Capacity for Outrage’: The Judicial Odyssey of J. Skelly Wright
(Westport, Connecticut: Greenwood Press, 1984), pp. 174-88.
p. 74 Ruthven’s remarks are from his /slam in the World, pp. 227-28.
pp. 74-75 The emphasis on contradictory judicial results being understood as linked
by common procedures is emphasized by Berque, Essai sur la méthode
juridique maghrébine, p.21, and further supported by Safia K. Mohsen,
“Islam: The Legal Dimension,” in Don Peretz, Richard U. Moench, and
Safia K. Mohsen, Islam: Legacy of the Past, Challenge of the Future
(Croton-on-Hudson, N.Y.: North River Press, 1984), pp. 99-128.
pp. 74-75 Mejdoub’s comment about just times appears in J. Scelles-Millie and B.
Khelifa, Les Quatrains de Medjdoub le Sarcastique: poéte maghrébine du
XVIe siécle (Paris: G.-P. Maisonneuve at Larose, 1966). The Berber story
about justice exists in a French translation from the Berber by Moha
Souag entitled “La Justice et l’Injustice,” Lamalif, no. 83 (October 1976),
41. On the philosophical concept of justice in Muslim thought, see Majid
Khadduri, The Islamic Concept of Justice (Baltimore: Johns Hopkins
University Press, 1984). The remark about hunger is by Okakura Kakuzo,
The Book of Tea (Rutland, Vermont: Charles E. Tuttle, 1956).
p. 79 Sally Falk Moore offers a very striking analysis of indeterminacy in social
life in her Law as Process, pp. 32-53.
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Zirari-Devif, Michele. 1979. La Fonction pénale du juge communal. Revue juridique,
politique et economique du Maroc, 5, 79-93
Index
‘adala (reliability), 23 cultural entailments, 16, 45

‘adel (pl. ‘adul) (notaries, reliable custom, 11, 29-31, 42, 50, 68
witnesses), 23 customary law, see custom
Aeschylus, 32
Allah, 13, 51, 60, 61, 62, 64 Dewey, John, 50
‘amal (judicial opinions), 47, 63 discretion, 1-4, 16-18, 24, 58-59,
amin (head of occupational group), 10 65-66, 79; in American courts,
appeals, see judicial organization 69-73; relation of Code to, 42—43;
‘agel (reason), 12 scholarly opinions and, 46-47
Arabic frame tradition, 15-16 divorce, 8-9, 11, 50, 66; see also
architecture, 15 marriage: disputes concerning
asel (social origins), 12, 45; as form of documents, 7-10, 11, 23, 29-30, 62
legal reasoning, 45
equity, 67-68
Berbers, 6, 10, 13, 32, 69, 75 evidence: of character, 26, 27, 32,
bridewealth, 23, 50, 66 43-44, 52-53; conflicting forms of,
Burger, Chief Justice Warren, 70 28, 30-31: see also documents,
Butler, Samuel, 3 witnesses; cultural coherence and,
36-38; modern science and, 30-31;
Caenegem, R. C. van, 21 oral emphasis in, 21, 23, 30, 54, 62;
Cantril, Hadley, 37 physical, 21, 27-28: see also
Cardozo, Justice Benjamin, 2, 72 physiognomy: science of
causality, 77 experts, 8, 11, 28, 48; disagreement
~ child custody, 17, 43, 85; oath-taking among, 31; kinds of, 26; local custom
and, 34 and, 26-27
“claims of God,” 60, 61, 65, 89
Code of Personal Status, 30, 42, 43, 63, facts: determination of, 20, 25, 27; legal
67 construction of, 17; “positive” versus
codes: European, 55, 63 “negative,” 8, 11, 43-44
Coke, Sir Edward, 39, 57, 61, 71 fatwa (scholarly opinion), 46
Coleridge, Samuel Taylor, 3 Fez, 48
Conrad, Joseph, 13 Frankfurter, Justice Felix, 58, 78
contracts, 11, 16, 54, 66, 67, 76 Frankfurter, Mrs. Marion, 78
corruption, 68-69 Frazer, Sir James G., 36
Critical Legal Studies, 81 friendship, 56
99
100 Index
Goddard, Lord Justice, 58 knowledge, 13

good faith, 56
Grotius, Hugo, 48 language: in negotiation of relations,
16, 21; styles of in court, 7
hadith (Traditions), 23; see Traditions law: American, 18, 19, 55, 69-73; and
of the Prophet anthropology, xiii-xv, 3-5, 78-79;
hal (situation, condition), 14 English, 39, 55, 61
haqq (truth, reality, obligation), 13, Lawrence, T. E., 14
16-17, 37 lawyers, 64-65
al-Hariri, Abu Muhammad al-Qasim legal fictions, 31
ibn, 58; see also Plates 1-4 legal positivism, 2
history: concept of, 14-15 legal realists, 2
Holmes, Justice Oliver Wendell, xiii legal reasoning, 2, 11, 18-19, 28, 35,
human nature: of children, 12; of men 39-57, 61; forms of, 40-41; see also
and women, 12, 16, 45 facts: “positive” versus “negative”
Levi, Edward, 55
Ibn Taimiyya, 46 literature, 15
ijma‘ (consensus), 42, 72 lying, 9, 23, 25, 32; and oath-taking,
indeterminacy, 17—18, 36, 38 34-35
individual: centrality of, 11-15, 21, 49,
53-54, 56, 58, 74 magic, 35—36
intentionality, 51-53, 78 m‘alem (expert), 27
Iran, 76 Malinowski, Bronislaw, 36
Islam: fundamentalism in, 77, 78 market-place, 10, 22, 32; as analogy for
Islamic law: changes affecting, 67-68, society, 11-12
76-78; doctrinal development in, 18, marriage: contracts, 23, 50; disputes
56, 61; emphasis on consequences in, concerning, 7-10, 25, 28, 34, 42, 50,
30, 31, 37, 4546, 47, 50; European 67; residence and, 7-10, 25-26;
influences on, 29, 62-64; interest support during, 7
groups and, 61-62, 65, 69; Malikite mashhur (dominant opinion), 47
school of, 46, 49, 63, 83; morality mathematics, 15
and, 56, 72; murder in, 52; relation Mejdoub “the Sarcastic,”’ 75
to state of, 60-63, 68, 76-78; Middle East war of 1967, 25
scholarly opinions and, 43, 47, Miller, Judge, 70
48—49, 55; sources of, 41-42; western Moore, Sally Falk, 79
images of, xv, 3 Morgan, Lewis Henry, xi, 81
istihsan (preferred result), 48 mudda ‘a ‘alay-hi (favored litigant), 33
istislah (public interest), 48 mudda % (burdened litigant), 33
muhtassib (market regulator), 10
James I, king of England, 39, 71 mul (owner), 60
Jehovah’s Witnesses case, 69-73 muqqadem (head of quarter), 10
Jews, 44 music, 15
Jones, Mrs. Jessie, 69-70
Joseph and Potiphar’s wife: stories of, nafs (passions), 12
27 niya (intention), 51, 52
judicial discretion, see discretion notaries, 8, 9, 24-26, 29-30; see also
judicial organization, 6-10, 29-30, 35, documents
48, 63-64, 76
jurisdiction, 30, 76 oaths, 8, 11, 36, 44; believability of, 32;
justice: folktale of injustice and, 75—76; collective, 32; decisory, 31, 33-35; as
Islamic concept of, 38, 45, 74-75 fact-finding mechanism, 32, 35; order
Index 101
of taking, 33-35; in western law, 32, Seldon, John, 68

33 shari‘a (Islamic law), see Islamic law
ordeals, 35 , sin, 51
social identity, 7-10, 12-13, 25, 44-45,
party wall case, 29-30 52-55, 60
paternity, 45 social relations: negotiation of, 11-14,
physiognomy: science of, 24, 45, 78 15, 16-18, 22, 37, 43, 50, 54, 56—57,
plaintiff and defendant, see oaths: order 60, 66; quest for information about,
of taking 13, 14
polygamy, 63 social utility, 47-49
population: Muslims in world, xv Stein, Gertrude, 51
presumptions, 28-31, 34, 43-44, 4849;
see also legal reasoning Tamm, Judge Edward, 69
probability, 77 time: concept of, 14-15, 54
procedure, 7-10 Traditions of the Prophet, 23, 41—42,
property disputes, 8, 48-49 51, 60
Prophet Muhammad, 23, 25, 41, 42 tribe, 11, 15
truth, 13, 22, 24-25, 35, 50
qadi (Islamic judge), 3; bias of, 10; goal Tunisia, 63
of, 17-18, 41, 43, 55-56, 61; as Tylor, E. B., 35
religious official, 9, 10, 65; social
background of, 65; western images United States Supreme Court, 58
of, 18-19, 58-59 unjust enrichment, 60, 61, 66, 67, 76
qadi’s court: description of, 6-11 usury, see unjust enrichment
giyas (analogic reasoning), 42
Quran, 10, 27, 41-42, 43, 48, 54, 60; Weber, Max, 35, 59-60, 65
literacy and, 41 Williams, Edward Bennett, 69-70
witnesses, 7-10, 17, 21-23, 42;
rajih (preferred opinion), 47 assessment in court of, 25;
Reisman, David, 2 certification of, 24; neighbors as, 25,
responsibility, 54, 78 28-30; notaries’ interrogation of, 9,
ritual, 16, 36 11; relatives as, 9, 10, 25, 28;
required number of, 24-25
sacrifice, 16 women: legal rights and powers of,
sales, 43 7-10, 26; statutory period for
Saudi Arabia, 52, 68 pregnancy of, 30
Sefrou, 6, 62, 64, 65 Wright, Judge J. Skelly, 69-73
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Sah r
Law has often been seen as a relatively autonomous domain, onein
which a professional elite sharply controls the impact of broader social
relations and cultural concepts. By contrast this study asserts that the
analysis of legal systems, like the analysis of social systems generally,
requires an understanding of the concepts and relationships
encountered in everyday social life. Using as its substantive base the
Islamic law courts of Morocco, the study explores the cultural basis of
judicial discretion. From the proposition that in Arabic culture
relationships are subject to considerable negotiation the idea is
developed that the shaping of facts in a court of law, the use oflocal
experts, and the organization of the judicial structure all contribute to
the reliance on local concepts and personnel to inform the range of
judicial discretion. By drawing comparisons with the exercise of
judicial discretion in America the study demonstrates that cultural
concepts deeply inform the evaluation of issues and the shape ofa
judge’s decision.
The Anthropology ofJustice is not only the first full-scale study of the
actual operations of a modern Islamic law court anywhere in the Arab
world but a demonstration of the theoretical basis on which acultural
analysis of the law may be founded.
Cover design by Peter Miller
Cambridge University Press

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How does the author view the relationship between law and culture?

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LE

1325 North College Avenue

systems, like the analysis of social systems generally, requires an understanding

Lewis Henry Morgan Lecture Series

Fred Eggan: The American Indian: Perspectives for the Study of

The right of the

CAMBRIDGE UNIVERSITY PRESS

© Cambridge University Press 1989

First published 1989

Printed in Great Britain at the University Press, Cambridge

British library cataloguing in publication data

Library of Congress cataloguing in publication data

ISBN 0 521 365139 hard covers

Plates between pages 38 and 39

Law and culture: the appeal to analogy l

Determining the indeterminable 20

Reason, intent, and the logic of consequence 39

Judicial discretion, state power, and the concept of justice 58

on ey ole 2a bmas mee &

Alfred Harris, Editor

Several years ago I stood before a judge in an American courtroom nervously

tinguishable from that of a neighborhood dispute, a market-place squabble,

““condition.”’ When, as they constantly do, Moroccans inquire of another’s hal

of experience, encapsulated instances in which the network of obligations

Whatever else a legal proceeding may be — an encounter between contending

consonance between the cultural assumptions and forms of negotiated social

witnesses to the events in issue or receiving, through other court officials,

face-to-face interaction is necessary for the elaboration of those densely

that statements must be weighed in terms of the known individuals among

is offered. However, if neither side has any documents or witnesses it is

absence of an appellate structure, attached to achieving finality. Perhaps, too,

validate his assertions, and because it creates consequences for relationships

not predominantly dependent on formalities of procedure or courtroom style,

The Magamat, or ““Assemblies” of Abu Muhammed al-Qasim ibn Ali al-Hariri

UT 24} 9}e] yUse}9UTU‘Ainjuso uvsdoing

It was in November of 1608 that King James I of England, a monarch who

Coke’s argument that law proceeds by means of what he called “‘artificial

development of such artificial reason should be deeply entwined with the

are personally discernible as reliable. Analogic reasoning, or giyas, is entirely a

Thus marriages are reaffirmed, sales taken as probable occurrences, and —

characteristic way from matters of personal background. Thus to know that

body of literature, known as the ‘amal writings, only came to western

interdependency. That is why, too, we can find an early jurist emphasizing

approaches would, however, fall far short of grasping the distinctive

Judicial discretion, state power,

projections of the natural justice of the folk to an emphasis on procedure,

that could be administered by members of their own class. Indeed, Weber

under an institutional umbrella that, in theory, gives the force of government

central bureaucratic control of the Ministry of Justice. On the political level

affiliation arise — occupational, professional, and political — the less con-

disciplined for unauthorized use of government property. In both instances

tious believer refusing a life-saving procedure. Rather the courts are

There is perhaps no place where a culture’s approach to judgment and

Everywhere one encounters in Islamic life the idea of justice: Respected

as incorporating forces that work their way without constant human