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Shariah Courts


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In premodern times, the primary judicial institution presided over by a judge, called a qadi or hakim, and empowered to adjudicate legal disputes in private (e.g., marriage, divorce, inheritance), civil (e.g., contracts and torts), and public (e.g., criminal activity) matters on the basis of the Islamic legal codes. In the earliest period, the qadi ruled in accordance with his own legal interpretations. But by the eleventh century, judicial discretion was essentially limited to choosing appropriate precedents. In traditional shariah courts the plaintiff and defendant represent themselves, without a jury. The qadi passes judgment on all evidence in accordance with strict rules of evidence and testimony meticulously laid out in the schools of law. He retains the right, however, to impugn the integrity of any witness and to refuse to admit that witness' testimony.

The nineteenth century witnessed a number of far-reaching changes for shariah courts, as Muslim lands came under the direct rule of the European powers and the influence of European legal codes and concepts. There was concern over the hostility of Muslim jurists toward the admission of circumstantial evidence (insisting instead on the testimony of eyewitnesses), for example, and the unequal treatment of non-Muslims. Massive social, economic, demographic, and political changes in the modern era also pressured the traditional legal system. As a result, under the Ottomans and then the colonial powers, many issues were removed from the jurisdiction of the shariah courts and placed under that of special foreign tribunals, so-called mixed courts, and/or secular national courts. Shariah courts were left presiding only over cases of personal status (marriage, divorce, custody, and inheritance) and waqf (pious endowments). This trend continued in the twentieth century.

Subjects: Islam.


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