Rules & justice

Where there is no court, a wrong is answered by the victim’s family, and to the other side that answer is a fresh wrong. A killing calls for revenge, and the revenge calls for more. A quarrel that runs on like this between families or tribes is a feud, and it has no natural end. Arab tradition remembers the War of Basūs, between the tribes of Bakr and Taghlib before Islam, as some forty years of fighting that began with the killing of a camel.

A court breaks the loop. Someone with no stake in the quarrel hears both sides and gives a ruling both must accept. In 1919 the sociologist Max Weber made this the mark of a state: it successfully claims a monopoly of the legitimate use of force in its territory, and others may use force only as far as it allows.

What is law for? Muslim jurists asked this of the Sharia itself. Al-Ghazālī, who died in 1111, gave an answer in his book on the principles of law, al-Mustaṣfā, that later scholars built on. The aim of the law for people, he wrote, is five things: to preserve their religion, their life, their intellect, their offspring and their property. Whatever protects these five is a benefit, a maṣlaḥa. Whatever destroys them is a harm.

He matched the five to rulings. Retaliation for murder protects life. The punishment for drinking wine protects the intellect, which he called the basis of moral responsibility. Deterring thieves and those who seize by force protects property, on which people live. Such aims are called the maqāṣid of the Sharia, its purposes. Nearly three centuries later the Andalusian scholar al-Shāṭibī made them a subject of study in their own right.

A rule can be written, public and enforced, and still be unjust. So behind every law stands a further question: is it fair? The answer most traditions share is that justice means giving each person what is due to them, no more and no less.

Arabic calls justice ʿadl, written adl in English letters. The classical Arabic dictionaries define its opposite, ẓulm, wrongdoing, as putting a thing where it does not belong, so justice puts each thing in its proper place. The Qur’an lays this duty on everyone who decides between others: “Indeed, Allah commands you to render trusts to whom they are due and when you judge between people to judge with justice. Excellent is that which Allah instructs you. Indeed, Allah is ever Hearing and Seeing.” (an-Nisāʾ 4:58)

The Greek philosopher Aristotle, in the fifth book of his Nicomachean Ethics, split justice in people’s dealings into two kinds. The first governs how something held in common is shared out: honours, money, the profit of a partnership. Its rule is proportion. If one partner put twice as much money into a business as the other, he should take twice the share of the profit. Aristotle called this distributive justice.

The second puts right a wrong done by one person to another, in a sale, a loan or a theft. Here who the two people are makes no difference. Whether a good man has cheated a bad one or a bad man a good one, Aristotle wrote, the law looks only at the harm and treats the parties as equal. The judge takes away what the wrongdoer gained and restores what the other lost. This is corrective justice.

Why punish a wrongdoer at all? One answer looks back. He has done wrong and deserves a penalty that answers it, neither harsher nor softer than the offence. Justice of this kind is called retributive, from the Latin for paying back. The other answer looks ahead. A penalty known in advance makes others think twice. This effect is called deterrence.

The Qur’an’s law of retaliation for killing, qiṣāṣ, holds both. It answers a life with a life, and it says: “And there is for you in legal retribution [saving of] life, O you [people] of understanding, that you may become righteous.” (al-Baqarah 2:179) Ibn Kathīr explained the life it saves: a man who is certain that he will be killed if he kills holds back. The verse before it lets the victim’s heirs pardon the killer and accept compensation instead, and calls this an easing from God and a mercy.

A judge weighs claims, not people. He may not lean towards the rich because they are rich or the poor because they are poor, towards a friend or a kinsman. The Qur’an asks this even towards those one hates: “O you who have believed, be persistently standing firm for Allah, witnesses in justice, and do not let the hatred of a people prevent you from being just. Be just; that is nearer to righteousness. And fear Allah; indeed, Allah is [fully] Aware of what you do.” (al-Māʾida 5:8)

A judge must also be guarded against himself. Abū Bakra wrote to his son, a judge in Sijistan: “Do not judge between two persons when you are angry, for I heard the Prophet [peace be upon him] saying, ‘A judge should not judge between two persons while he is in an angry mood.’” (al-Bukhārī 7158) Refusing to favour either side is impartiality.

In Muslim lands, disputes went before the qāḍī, a judge appointed to decide cases by the Sharia. His starting rule comes from a hadith: “Were people to be given everything that they claimed, men would [unjustly] claim the wealth and lives of [other] people. But, the onus of proof is upon the claimant, and the taking of an oath is upon him who denies.” (al-Bayhaqī, graded ḥasan by al-Nawawī, Forty Hadith no. 33)

So the one who makes a claim must prove it. If he cannot, the one who denies it may clear himself by an oath. The usual proof was testimony. A witness, a person who had seen or heard what happened, told the court what he knew, and his word counted only if he was upright: the qāḍī had his character looked into first.

Al-Māwardī, a Shāfiʿī judge who died in Baghdad in 1058, wrote al-Aḥkām al-Sulṭāniyya, The Ordinances of Government. Its twenty chapters set out the offices of the state and their duties, among them the judge and the market inspector.

The qāḍī heard a case only when a litigant came before him with a claim. The muḥtasib, the officer of ḥisba, kept the markets and streets honest. Al-Māwardī defined ḥisba with a duty the Qur’an names: commanding right when it is openly neglected and forbidding wrong when it is openly done. So the muḥtasib could act on a wrong he saw even when nobody had come to him. He could also settle a few plain complaints, such as short weight or a debt withheld by a man able to pay. But where one side affirmed a right and the other denied it, only the judges could hear proof.

What if the wrongdoer is the governor himself? An ordinary judge might not dare to rule against him, or might rule and see his ruling ignored. So the caliphs kept a court above the others for hearing grievances, called the maẓālim. Al-Māwardī lists ten kinds of case for it, and the first is governors wronging their subjects and treating them harshly. It also carried out judges’ rulings against men too powerful for the judges. He records that the Umayyad caliph ʿUmar ibn ʿAbd al-ʿAzīz was the first to hear such complaints himself, and al-Mahdī the first of the Abbasids.

A court that made governors answer for their wrongs served a principle now called the rule of law: those who govern are bound by known law like everyone else, and may not decide by whim. Its opposite is arbitrary power, which answers to nothing and changes with its holder’s mood.

A woman of Makhzūm, a noble clan of Quraysh, had stolen. Quraysh were troubled, and said that nobody would dare speak for her to the Prophet, peace be upon him, except Usāma ibn Zayd, whom he loved dearly. When Usāma spoke, the Prophet asked whether he was interceding in one of the punishments set by God. Then he stood and addressed the people: “O people! The nations before you went astray because if a noble person committed theft, they used to leave him, but if a weak person among them committed theft, they used to inflict the legal punishment on him. By Allah, if Fatima, the daughter of Muhammad committed theft, Muhammad will cut off her hand.” (al-Bukhārī 6788)

Rank, family and closeness to the ruler bought no exemption. That one law applies in the same way to everyone, noble and weak alike, is called equality before the law.

No ruler has enough soldiers to force every command on every subject. Most of the time people obey because they believe the command is rightful, and in his 1919 lecture “Politics as a Vocation” Max Weber named three grounds for that belief.

The first is traditional authority, “the authority of the eternal yesterday”: a house or an office obeyed because it always has been, like an old dynasty. The second is charismatic authority, devotion to one leader for his extraordinary personal gifts. It is the most fragile of the three, and it seldom outlives the leader unless it is turned into routine. The third is legal authority. People obey rules made by a set procedure, and the office those rules create rather than the person in it: a tax inspector is obeyed for his post, whoever he is. Weber called these pure types, and real rule usually mixes them.

In seventeenth-century England two thinkers asked where a ruler’s right to command comes from by imagining it away: life with no government at all, which they called the state of nature. Thomas Hobbes, in Leviathan (1651), pictured it as a war of every man against every man, in which life is “solitary, poor, nasty, brutish, and short”. To escape it, he argued, people agree to hand their liberty to a sovereign in return for safety. Such an imagined agreement is called the social contract.

John Locke, in 1689, held that a government holds power only by the consent of the governed, and loses its claim when it betrays the trust they placed in it. Hobbes himself doubted that the whole world had ever lived so. The state of nature is a way of asking what rule people could accept, not a history of how people began.

Ibn Khaldūn, who served six times as chief Mālikī judge in Cairo, gave one chapter of his Muqaddimah (1377) a blunt title: injustice brings about the ruin of civilization. Attacks on people’s property, he wrote, remove the incentive to acquire and gain property. When people expect what they earn to be taken, they stop making the effort. Trade and crafts slump, the ruler’s own tax revenue falls with them, and in the end the dynasty itself goes down.

Nor is injustice only seizing goods. Whoever takes someone’s property, forces him to labour, presses an unjust claim against him or demands of him what the religious law does not require, Ibn Khaldūn wrote, does him an injustice. The Lawgiver forbade injustice, he added, because of the ruin it brings, and he named the five things the law sets out to preserve: religion, life, intellect, offspring and property.