Islamic Law and Culture, 1600-1840

By Haim Gerber | Go to book overview

CHAPTER SEVEN
THE STRUCTURE OF THE LEGAL ARGUMENT

I have said in the Introduction that the comparison between Islamic law and Western law, even common law, evokes more the image of similarity than of dichotomy. A judge in a Western legal system who faces a legal problem to be solved is not supposed to give an answer based on personal opinion or personal intuition, but is, rather, expected to give the authoritative view of the law. It is obvious that this is a theoretical goal, unattainable in practice, at least in its entirety. The solution proposed is probably a combination of factors which include also the personal emotional and intellectual world of the judge. In the words of Judge Benjamin Cardozo:

What is it that I do when I decide a case? 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, when do I refuse to follow it? If no 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?1

His general answer is that the decision is a brew which is made up of all these elements, the exact weighing of each being an outcome of the judge's intuition. If we replace the term precedent in this quotation by the term law, then certainly Ibn ʿĀbidīn, possibly also Khayr al-Dīn al-Ramlī, would have endorsed this set of problems as relevant to their thought process in coming to decide a case brought before them. They would also, I believe, sympathize very much with another quotation from Cardozo:

____________________
1
Benjamin N. Cardozo, “The Nature of the Judicial Process, ” in Judicial Behavior: A Reader in Theory and Research, ed. G. Schubert (Chicago: Rand McNally and Company, 1964), 14–18, at 14.

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