Sign As Evidence

Brill
Signs as Evidence: The Doctrine of Ibn Taymiyya (1263-1328) and Ibn Qayyim al-Jawziyya (d.
1351) on Proof
Author(s): Baber Johansen
Source: Islamic Law and Society, Vol. 9, No. 2, Evidence in Islamic Law (2002), pp. 168-193
Published by: Brill
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SIGNS AS EVIDENCE: THE DOCTRINE OF

IBN TAYMIYYA (1263-1328) AND IBN QAYYIM
AL-JAWZIYYA (D. 1351) ON PROOF
BABER JOHANSEN*
(EHESS, Paris)
Abstract
Thefiqh doctrine on evidence, proof and procedureunderwent importantchanges
during the Mamluk period. By rationalizing the concept of proof and evidence,
authors such as Ibn Taymiyya, Ibn Qayyim al-Jawziyya and Ibn Farhun gave a
new impetus to the doctrine of siydsa shar'iyya and defined the court procedure in
such a way as to legalize judicial torture. Whether this development was in any
way linked to the legal development that brought about the same results in Europe
during the thirteenth and fourteenth centuries remains an open question.
THE CONCEPTOF EVIDENCEforms an important part of Sunni fiqh,
the system of legal and ethical normsacceptedby those Muslims who

see the Prophet'sreligiouslife praxis,the Sunna,as the basis of Islamic
normativity.This system of norms is addressedto the qadi, the judge
who supportshis judgmentsby referingtofiqh norms,to the mufti,the
legal andreligious councillorwho interpretsthese norms,to otherlegal
specialists (fuqaha') and, finally, to all members of the Muslim
community.The specialistsformedpartof a powerfullegal profession
whose members, from the eighth century onwards, controlled the
judiciary, the interpretationand development of the fiqh's religious
and legal norms, as well as access to the legal profession.The period
from the eighth to the tenthcenturyis, therefore,called 'the formative
period'(JosephSchacht)or 'the old period'(ChafikChehata)of Islamic
law. From the tenth centuryonwards, the fiqh specialists staffed the
institutionsthatproducedthejuristsandfixed the schooldoctrinestaught
in these colleges (maddris).The period from the tenth to the twelfth
centuryis, for thatreason,called 'the classicalperiod'(ChafikChehata)
of IslamicLaw. In bothperiods,membersof the legal professionplayed
*
I am grateful to David Powers for his help in editing this text and transforming my version of it into readable English.
? KoninklijkeBrill NV, Leiden, 2002

Also available online - www.brill.nl
Islamic Law and Society 9, 2
SIGNS AS EVIDENCE
169
an importantrole in the politics of the majorcities of the easternand

the western provincesof the Muslim polity. In this articleI will argue
thatchangesin theirpositionbroughtaboutunderthe Mamluks(12501517), thatis, in 'the post-classicalperiod'(ChafikChehata)of Islamic
Law, may help us to betterunderstandthe new doctrineson proof and
procedurewhich, from the fourteenthcenturyonwards,characterized
Sunni law.
Duringthe old andthe classical periods,roughlyfromthe end of the
eighthto the end of the twelfthcentury,Sunnifiqhdoctrineconcerning
proof and procedurewas based on the notion that the most effective
evidence is the word. The acknowledgement of the defendant, the
depositionof the witnesses, and the oath of the partiesor theirrefusal
to taketheoatharethe proofsthatserveas thebasis of a validjudgment1.
These words do not necessarilyconstitutetruth:like all humanspeech
acts they are ambiguousutterances.They oscillate, as the jurists say,
between sincerity and mendacity.If one wants to determinewhether
the speakersare sincereor mendacious,one has to look for an external
factorthattips the balancein favor of one or the otherinterpretation.It
is highly improbable,for example, that a rationalhumanbeing would,
of his own choice, lie in orderto burdenhimself with obligations that
he had not, in fact, incurred.Therefore,the speaker'sdecision to make
a confessionor to acknowledgean obligationis regardedas an external
factorthat speaksin favor of his confession or acknowledgement.The
witnesses' testimony is credible because the qadi checks their social
and religious reputationcarefullybefore he admits their testimony in
his court session. Their reputationtips the balance in favor of their
sincerity.The oath, insofar as it emphasizes and underlinesa claim or
a denial pronouncedin the presence of the qadi, is also an external
factorthatstrengthensthe assertionof one of the litigants,whereasthe
refusalto takethe oathweakens the litigant's assertionsand,normally,
causes the qadi to give a negativejudgment.Basically, then, there are
threetypes of proof:confession, testimonyand the defendant'srefusal
1 For the various
types of evidence, see my 'Verite et torture: ius commune
et droit musulman entre le Xe et le XIIIe siecle', in Franqoise Heritier (ed.),
De la violence (Paris: Odile Jacob, 1996), 123-68; 'La decouverte des choses
qui parlent. La legalisation de la torture judiciaire en droit musulman (XIIIeXIVe siecles)', Enquetes 7 (1998), 175-202; 'Vom Wort- zum Indizienbeweis:
die Anerkennung der richterlichen Folter in islamischen Rechtsdoktrinen des
13. und 14. Jahrhunderts', lus Commune Zeitschriftfiir europdische Rechtsgeschichte, n? 28 (2001), 1-46.
170
BABER JOHANSEN
to take an oath to affirm his denial of the plaintiff's claim. Although

the oath may strengthenthe claim of a plaintiffor a defendant,it does
not have the same statusas the two otherforms of proof.
An utterancesupportedby an externalfactorthatspeaksin its favor
is not necessarily sincere or true.The jurists of all four Sunni schools
displaya markedepistemologicalscepticismregardingthe qadi'sability
to distinguish between true and false statements. They state that
enunciations(aqwal)always remain'ambiguousinformation'2andthat
one accepts them as proof only because the Qur'anand the life-praxis
of the prophet,the Sunna, requiretheir acceptance. The word of an
observer,contraryto the sensoryexperienceof the individual,can never
provide 'indisputable and certain knowledge'
('ilm yaqin). Such
knowledge is to be found only in the revelation, i.e. the Qur'an,the

Sunna, and the consensus of the jurists (ijmd'); alternatively it may be
the result of sensory experience.The first type of indisputablycertain

knowledge serves as the basis for the derivationof legal norms from
the revelation, not as a means to establish the truthof the facts; the
second type is too often out of thejudge's reach.The judge must issue
a judgmenton the basis of facts that,most of the time,he did not observe
and concerningwhich he must rely on the observationof witnesses or
the acknowledgementof the defendant.
Preciselybecause the utterancesof witnesses andpartiesare always
'ambiguousinformation',the free choice of the speakeras to the content
of his acknowledgementand his consent to its legal consequencesare
necessary conditions for its validity. All four Sunni schools of law
constructtheirdoctrinesrelatingto evidenceandtortureon the principle
thatjudicial tortureis not a reliable and legitimate means to establish
the truthof the facts. An extortedconfession is null and void. Only the
Malikis deviate from this common principle.Since the ninth century,
many of theirimportantjuristsjustify the applicationof tortureon the
groundsof the defendant'sreputation.Their teaching constitutedan
doctrines
importantreferencefor the thirteenth-andfourteenth-century
that form the subject of this article. The dominantview of the other
Sunnischools of law holds thattortureis unacceptablein a qadi'scourt.
A qadi who extorts a confession and then condemns and executes the
2 Abu BakrMuhammad
b. Abi Sahl al-Sarakhsi,al-Mabsut,3rd ed. (Beirut
n.d.: Dar al-Ma'rifa;reprintof the 1907 Cairo edition), vol. XVI, 112, 114,
vol. XVII, 29, 31; idem, Kitdb al-usul, ed. Abu l-Wafa' al-Afghani(Beirut:
Dar al-Ma'rifa,n.d), vol. II, 141.
SIGNS AS EVIDENCE
171
defendanton the basis of the extortedconfession is, accordingto the

Hanafis,subjectto talio and, accordingto strict-and, probably,never
applied-doctrine, will be himself condemnedto death3.Throughout
the firstthree-quartersof the thirteenthcentury,this was a majordivide
between the Europeanius communeandthe classical doctrineof Sunni
law. Whereas the ius commune,from the beginning of the thirteenth
centuryonwards,recognizedjudicial tortureas a necessaryinstrument
for the judiciary's investigation of cases, the dominant doctrine of
classical Muslimlaw regardsjudicial tortureas the sinful and criminal
destructionof the trustworthinessof utterances,an act that deprives
the qadi, the judge who applies fiqh norms, of the most important
element on which he may base his judgment.
Whereasthe tortureof witnesses played an importantrole in Roman
law and in the late medievaljudicial practiceof Europe,it is unknown
in Muslim legal doctrine.This may be due to the fact that the validity
of the witnesses' testimony,in the classical doctrineof Muslim law, is
based on theirsocial andreligious standing.Since the end of the eighth
century,this reputationwas establishedin secretandpublicprocedures
performedby a special assistantof the qadi, the 'purifier'(muzakki).
Persons recognized by the 'purifier'and the qadi as enjoying a solid
social and religious reputation are registered by the qadi as 'just
witnesses' ('udut) who are integratedas a special category into the
judicial apparatusand whose testimony is accepted as evidence. The
testimony of eye-witnesses to a crime is accepted as evidence in the
qadi's court sessions only after the muzakki has examined their
reputation.The classical authorscall such a deposition by two male
Muslim witnesses 'bayyina', that is, 'the evidence that renders things
clear'4.
Oathsplay an importantrole in the classicalfiqh doctrine.We often
findtheplaintiff'soathcombinedwith thetestimonyof one malewitness
as a form of testimonysufficientto issue a judgment5.The defendant's
oathmay decide a case-temporarily-if the plaintiffhas no witnesses
to supporthis claim and the defendantdoes not acknowledge it. If,
3 Johansen,'Indizienbeweis',7-12.
Sarakhsi, Mabsut, vol. XVI, 119, 145, 148; Muhammad b. Idris al-Shafi',
al-Umm, ed. Muhammad Zuhri (Beirut: Dar al-Ma'rifa, n.d.), vol. VI, 226-31.
5Muwaffaqal-DinIbnQudama,al-Mughnl(Beirut:Daral-Kutubal-'Ilmiyya,
n.d.), vol. XII, 8-15; Sahnunb. Sa'id al-Tanukhi,al-Mudawwanaal-kubrd
(Cairo: Matba'at al-Sa'ada, 1323H.), vol. XII, 133, 141, vol. XIII, 10, 14, 16,
24, 31, 32; Shafi'i, Umm, vol. VI, 17, 254-58.
172
BABER JOHANSEN
after such a judgment, the plaintiff finds witnesses who supporthis

claim,he may renewhis demand,andthejudge may thengive judgment
in his favor6.In some narrowlydefined cases, oaths may serve as the
basis for a permanentjudgment.This holds truefor mutualimprecation
(li'an) which results when a husband accuses his wife of adultery
without producingthe witnesses in supportof his claim and without

her acknowledgingthe accusation.If the wife swears thather husband
is lying, she is not punishedfor adulterynor is her husbandpunished
for calumny.Thoughit is evident thatone of themis lying, it is not the
qadi's task to establish the truthof the matter;his task is to direct the
procedure and to pronounce, as a consequence of the mutual
imprecation,the dissolution of the marriage7.His judgmentin such a
case serves as a declarationof his inabilityto decide which of the two
was lying and it thus legitimates the operative effect of the mutual
imprecation.
Anothercase is thatof the qasama:a procedurein which a groupof
co-jurorsswear fifty oaths accusing a person of homicide and which
may serveas the basis for the capitalpunishmentof the accusedperson.
If a personis found slain, and thereis reason to suspect certainpeople
of responsibilityfor the violent deathbutinsufficientwitness testimony
to establishthe crime,a specialprocedureprevails.The co-jurorsswear
fifty oathsaccusingone specific memberof the suspectgroupof having
killed the deceased. According to the Malikis and the Hanbalis,once
the fifty oaths are sworn, the accused must be executed. Accordingto
the Shafi'is, he is requiredto pay blood money (diya). The Hanafis
follow a differentprocedurein which the membersof the suspectgroup
take fifty oaths in which they swear to their innocence, after which
they arerequiredto pay blood money. It is clearthatthe oaths swornin
this proceduredo not constituteproof of the defendantsresponsibility.
Baber Johansen, 'Le jugement comme preuve. Preuve juridique et verite
religieuse dans le Droit Islamique Hanefite', Studia Islamica, fascicule LXXII
(1990), 5-17 (reprinted in my Contingency in a Sacred Law. Legal and Ethical
Norms in the Muslim Fiqh [Leiden: Brill, 1999], 436-38, 444, and notes 13,
14 and 20).
7
Shafi'i, Umm, vol. V, 285-99; Mudawwana, vol. VI, 105; Sarakhsi, Mabsut,
vol. VII, 43, 45, 49, see also the discussion (40 and 55-58) of whether the li'an
is a testimony or an oath; this question has major consequences. Ibn Qudama,
Mughni, vol. IX, 2 states that one of the two necessarily lies and that the
invocation of God's curse will fall on him or her. The punishment in the
hereafter, as evident from his argument, replaces the punishment of the qadi
(see also 72-73).
6
SIGNS AS EVIDENCE
173
This is obviousin the Hanafisolution.But it is also clearin the doctrine

of the Malikis and the Hanbalis, which allows the co-jurorsto take
these oaths even if they are living in Morocco at the time when the
homicide took place in Mecca. In such a case, the co-jurors'oaths do
not establishthe truthof the facts, but only the co-jurors'belief in the
accused person's responsibility8.Though this form of evidence was
problematicalreadyto Muslimjurists of the twelfth century,they still
integratedit into the formalcourtproceduredevelopedby Muslimlaw:
the cojurors'oaths consist of enunciations,pronouncedbefore the qadi
accordingto fixed legal rules and serving as a sufficient cause for the
judge's decision. The oaths, therefore,can be witnessed, recordedin
writing, and preserved in the qadi's archive, where they remain
accessible to his successor.
Circumstantialevidenceis also integratedintothishighlyformalized
procedure.Joseph Schacht holds that 'circumstantialevidence is not
admitted'9by thefiqh and Noel J. Coulson states that in thefiqh 'any
form of circumstantial evidence was totally inadmissible'". Both
authors published their statements in 1964, seventeen years after
Robert Brunschvig's path-breakingarticle, 'Urbanismemedieval et
Droit musulman',l1which-to judge from a recent article in Islamic
Law and Society on the same subject-is not yet known to all authors
working on the subject. In his article Brunschvig demonstratedthat
Maliki qadis in Tunisia and al-Andalusattributedgreatimportanceto
architecturalevidence in conflicts aboutreal estate. They used master
architectsandbricklayersof the towns and cities as expertsin cases in
8 Muhammadb. Ahmad b. Rushd, Biddyat al-mujtahidwa-nihdyat almuqtasid,9h ed. (Beirut:Dar al-Ma'rifa,1988), vol. II, 427-28, mentionsearly
Muslim criticism of this institution, a criticism attributedto the Umayyad caliph

'Umar b. 'Abd al-'Aziz. For the debate-Malikis and Hanbalis versus Shafi'is
and Hanafis, see ibid., 429-33; cf. Mudawwana, vol. XII, 133-34, XIII, 13, 16;
Shafi'i, Umm, vol. VI, 96. For the Hanafi qasama, see my 'Eigentum, Familie
und Obrigkeit im Hanafitischen Strafrecht', Die Welt des Islams, vol. XIX
(1979), 1-73 (reprintedin my Contingency, 349-420, and 367-72); and the article
by Ruud Peters in this volume of ILS.
9
Joseph Schacht, An Introduction to Islamic Law (Oxford: Oxford University
Press, 1964), 192-93.
10N. J. Coulson, A History of Islamic Law (Edinburgh: at the University
Press, 1964), 125.
11Robert
Brunschvig, 'Urbanisme medieval et droit musulman', Revue des
Etudes Islamiques (1947), 127-55; reprinted in Robert Brunschvig, Etudes
d'lslamologie, ed. Abdel Magid Turki, 2 vols. (Paris: Maisonneuve, 1976), vol.
II, 7-35.
174
BABER JOHANSEN
which neighboursraisedconflictingclaims concerningthe walls, roofs

and windows of buildings12.In the easternpart of the Muslim world,
we can trace this use of expert knowledge in conflicts over property
rightsback to the eleventhcentury,when-in the absenceof witnesses
and acknowledgements-the mannerin which beams were put into a
common wall was consideredby the Hanafijurists as an indicatorof
the respective propertyrights of the litigating neighbours13.Similarly
expertson weaving ('ulamd'al-hawka)wouldestablishthemarketvalue
of certaincloths andtextilesl4.Qadisoftenused differenttypes of expert
knowledge regarding commercial commodities and real estate to
determine the value, quality and mode of productionof the object
in question'5.Circumstantialevidence is based, as the jurists say,
on 'outward appearances' (zahir) and serves only to uphold the
status quo, not to change it. The presumedproprietorof a house can
use circumstantialevidence to establish his rights against a plaintiff
who claims to be the rightful owner of the house. In such a case, the
presumedproprietordefendsthe rightfulnessof appearances:all regard
him as the proprietorandcircumstantialevidencesupportsappearances.
The plaintiff cannotbase his case on circumstantialevidence because
he denies that the appearancesconstitutea valid proof of ownership.
He must, therefore,produce witnesses who supporthis claim. If he
does so, thewitness testimonyprevailsover the circumstantialevidence
of the defendant'6.
The statusof circumstantialevidenceis differentin penallaw. Jurists
of threeof the four majorSunnilaw schools considerthe pregnancyof
an unmarriedwoman as proof of her having engaged in illicit sexual
relations.Her pregnancythus suffices to expose her to the prescribed
hadd penalty for fornication'7.The Hanbalis, however, reject such
reasoning:accordingto Ibn Qudama,the respectedrepresentativeof
12
The text to which Brunschvigrefers has now been edited by Farid b.

Sulayman.The authoris Ibn al-Rami(Muhammadb. Ibrahimal-Lakhmi),alI'lan bi-ahkdmal-bunyan([Tunis]:Markazal-Nashral-Jami'i,1999).
13
Sarakhsi, Mabsut, vol. XVII, 87-91.
14 Ibid., vol.
XV, 88. But Sarakhsiuses the term 'the learned'(ahl al-'ilm
or 'ulama') for other experts as well; see ibid., vol. VII, 66.
15Ibid., vol. XIII, 106.
16
Ibid., vol. XVII, 67, 69, 80, 88, 91.
17Mudawwana, vol. XVI, 50ff; (Isma'il b.
Yahya) al-Muzani, al-Mukhtasar
(printed as vol. IX of Shafi'i, Umm), 533; Sarakhsi, Mabsut, vol. IX, 50, vol.
XVII, 113.
SIGNS AS EVIDENCE
175
DamasceneHanbalismin the early thirteenthcentury,only the woman

herselfmay assertthather pregnancywas due to illicit sexualrelations.
Herbody cannotspeakfor her. She may have been the victim of sexual
violence18.In the same way, since the eighth century,the Malikishave
held thatif a suspectwho has been torturedhands over a corpse to the
qadi or the police, this does not prove thathe committedthe crime. A
confession made undertorture-even if it implies the handingover of
the corpus delicti-is null and void, and the corpse cannot speak for
itself19.
In the absenceof witnesses or a confession, circumstantialevidence

may serve as proof in a civil case. The qadi may, therefore,rely on
expertopinion as the basis of his decision. The expertdoes not testify
or take an oath; rather,he conveys an opinion based on knowledge
and, for that reason, he may stand alone: his depositionis valid even
without a second witness or co-jurors.
As the Maliki and the Hanbali doctrines on corpus delicti show,
there are clear procedurallimits to the admissibilityof physical evidence as proof under penal law-although the case of the pregnant
unmarriedwoman indicatesthatthe juristswere more ready to accept
circumstantialevidence in penal cases linked to female chastity and
filiationthanin otherissues. The materialindicatorsthatthe respective
doctrinesrecognizedas evidenceunderpenalor civil law can, however,
be integratedinto a formalized procedurebefore the qadi, who has
them recordedas partof the documentationthathe must convey to his
successor in orderto guaranteethe continuityof judicial procedure20.
The samedoes notholdtruefor an importanttypeof proofrecognized
by the Hanafi and the Shafi'i jurists and classified as 'the qadi's
knowledge' ('ilm al-qadi). The qadi may use as a proof knowledge
thathe has acquiredeitherthroughhis personalobservationof the facts
or from other sources-even outside of his court;thus, the mode by
which he acquireshis knowledge is not subject to any control and is
not registeredby the witnesses who attestto the qadi's procedure.The
Hanafis and the Shafi'is accept this type of proof as sufficient for the
impositionof capitalpunishmentin cases of intentionalhomicide.The
18
19
Ibn Qudama, Mughni, vol. X, 193 ff.
al-Mudawwana,vol. XVI, 93.

On the transmissionof the qadi'sarchiveto his successor,see my 'Formes
de Langageet fonctionspubliques:stereotypes,temoinset offices dansla preuve
par l'ecrit en droitmusulman',Arabica,LXIV, fascicule 3 (July, 1997), 33376.
20
176
BABER JOHANSEN
only sphereof the law in which they do not admitthis proof are crimes
thatconstituteviolationsof 'God's claims',thatis, fornication,calumny,
theft, highway robbery and the consumptionof intoxicating drinks.
Maliki and Hanbali jurists reject this proof altogether because it
jeopardizesthe rights of the defendant21.
All Muslim schools of law without exception accept ta'zir,
'correctivepunishment',which gives political authorities-and also
the qadi-the right to punish misdemeanoursand petty offences by
discretionarypenalties imposed according to undefined procedures
and proofs. The legal doctrinedoes not define the crimes and torts to
be punishedunderta'zir,andit does not determinethe punishment,the
proceduresby which they are judged, or the proofs to be accepted in
such cases. In extreme cases, this 'corrective punishment' may be
imposed in order to defend the moral order of society-even if the
recipient of the punishmenthas not been accused of committingany
illegal act-merely because the authoritiesfear thathis presencewill
have negative repercussionson the sexual moralityof membersof the
community.Both the procedureand the punishmentto be applied in
trialsof correction(ta'zir)fall into therealmof thejudge's discretionary
decisions.Attemptsby prominenttwelfth-centuryjuriststo submittrials
of correction(ta'zir) to the same procedurethat governs other penal
trials in which a corporal punishmentis imposed on the defendant
were of no avail. The only limits placed on this kind of punishmentare
the maximum penalties that may be meted out to the defendants.
Accordingto the classical jurists,the penaltiesmust be lower thanthe
lowest prescribedpunishment(hadd) for a violation of God's claims.
Exceptfor Maliki doctrine,capitalpunishmentandpunishmentfor the
violation of God's claims are thus outside the scope of the 'corrective
punishment'.Judicialtortureis explicitly excludedfromits range.The
'correctivepunishment',therefore,consists of a restrictednumberof
lashes, imprisonment,fine and exile (banishment).The Hanbali Ibn
Qudamadefined ta'zir in these terms as late as the early thirteenth
century22.
Classical fiqh doctrine attempts to guarantee the procedural

21
For the Hanafis, see Johansen, 'Eigentum' in Contingency, 357; for the
Malikissee al-Mudawwana,vol. XII, 148-49;for the debateamongthe schools

see Ibn Rushd, Biddya, 470-71.
22 Ibn Qudama,
al-Mughni, vol. X, 347-48; for the Hanafi position on ta'zir,
see Johansen, 'Eigentum' in Contingency, 394-409. The Malikis systematically
exceed these limits.
SIGNS AS EVIDENCE
177
rationality of the judge's handling of norms of different origin and

character.The jurists integratedthe types of admissibleevidence into
a highly formalisticproceduremeantto insurestablerulesfor the qadi's
decisions. This procedurefocused on the enunciationof utterancesas
the basic form of evidence. In the presenceof the qadi,the partiesutter
contradictoryclaims and their witnesses testify to differentversions
of the disputedevents. The qadibases his judgmenton his assessment
of the legal strengthof these competingenunciations.Even if the qadi
does not decide between contradictory claims and does not hear
witnesses, as in the case of mutualimprecation(li'an), the procedureis
based entirely on the utterancesof the litigants. This holds true also
for expert opinionregardingcircumstantialevidence. The formalistic
character of this procedure is manifested by the jurists' strong
epistemological scepticism: they hold the qadis to be incapable of
distinguishing,with certainty,a credibleutterancefrom a lie. For this
reason,the spokenword mustbe supportedby externalfactors,such as
social reputationor self-interest, which lend it additional social or
psychological credibility.Threeof the Sunni schools of law agree that
a confession elicited undertortureis invalid because the act of torture
destroys the credibilityof the utterance,and, therefore,any validity
that the confession might otherwisehave enjoyed. Even if there is no
torture,the testimonyof duly examinedwitnesses who are authorized
to testify before the qadi does not guaranteethe truthfulnessof their
deposition.But if witnesses decide, of theirown free will (ikhtiyar)to
lie to the qadi, he is not responsible. His judgmentremains valid so
long as he followed the formalrulesof procedurethatgovernthe choice
and scrutinyof the witnesses and the relation of the testimony to the
judge's decision. The validity of the qadi's judgmentdepends not on
his graspingthe truthof the facts but on his abidingby formalrules of
procedure.The qadiis the masterof the procedure:he decides whether
the witnesses are acceptable,which version of the facts is reliable,and
underwhat normsthese facts are to be subsumed.He is 'the deciding
third' party who determinesthe outcome of a contradictorydebate.
The contesteddoctrineaccordingto which the 'qadi's knowledge' may
replace all other means of proof as the basis of a judgmenthas never
been accepted by Maliki and Hanbalijurists. This doctrineclearly is
irreconcilablewith thebasicprincipleof theformalprocedureelaborated
by thejurists:if the qadi applieshis personalknowledge as a means of
proof, he is not acting as a neutralthirdpartywho assesses the legal
strengthof the conflictingutterancesof partiesandwitnesses,butrather
178
BABER JOHANSEN
replacestheirstatementswith his own knowledge.This is a clearrupture

with theprincipleof the accusatoryprocedurein whichthe qadiresponds
to the demandsof the partiesand settles their claims accordingto his
assessment of their utterances.The 'judge's knowledge' serves as a
safety valve for the formalistic proceduralregime derived from the
accusatoryprocedure.The same holds truefor the rules governing'the
correctivepunishment'.In both cases the qadi's access to the evidence
on which he bases his decision is not regulatedby any formalrule of
procedure.
The qadi who tortures, however, is protected neither by his
knowledge of the defendant'sguilt nor by his competenceto impose a
correctivepunishment(ta'zir). If a qadi forces a defendantto confess
undertortureandthencondemnshim to capitalor corporalpunishment
on the strengthof his confession,the qadihimself,accordingto classical
Hanafidoctrine,shouldbe condemnedto deathor subjectedto corporal
punishment.If the defendantwas known to have committedthe type
of crime of which he was accused, the qadi is still obligatedto pay his
blood money. The reasonis thatsuch a qadiunderminesthe rationality
of the procedurallaw and,with it, the legitimacyof thejudicialdecision.
If the procedurehinges on the credibilityof the utterancesof parties,
witnesses and experts, and if such utterancesmust be supportedby
additionalexternalfactors,suchas the social reputationof thewitnesses
or the legitimate self-interestof the litigants,torturedeprivesthe qadi
of all legal andlegitimatemotivationsuponwhich to base his decision.
It is evident thata defendantwho is tortureddoes not speakin orderto
tell the truth but in order to please his torturers.One is therefore
sure thathe lies. A judgmentcannotbe based on lies, and a qadi who
knowinglyhas a defendantexecutedon thebasis of a confessionelicited
by tortureis a criminalbecausehe causes the defendant'sdeathwithout
any legally valid reason23.At the same time thathe deprivesthe spoken
(or written) word of its credibility, the qadi who relies on evidence
elicited by torturealso underminesthe status of the witnesses, which
is directly linked to the status of the utteranceas a decisive proof in
a judicial trial. This implies, among other things, a weakening of the
qadi's protection against criticism concerning his errors in fact.
According to classical Sunni doctrine, the qadi should establish
the facts on the basis of the testimony of witnesses and the
acknowledgementof the defendant.He is not entitled to initiate an
23
See my 'Vom Wort-zumIndizienbeweis',7-12.
SIGNS AS EVIDENCE
179
investigation:he has no power of inquisition.He has to rely on the

parties who bring a case before him and the witnesses who they
summon.Responsibilityfor the establishmentof facts resides mainly
with the litigantsandtheirwitnesses.An errorof fact does not, therefore,
invalidatethe qadi's judgment.A qadi who torturesclearly no longer
relies on witnesses to establishthe facts. He is oversteppinghis powers
and he diminishes the role of the witnesses. In short,he changes the
logic and rationalityof the law of procedure,designed to protecthim
fromcriticismconcerninghis abilityto recognizefacts andto guarantee
the authorityof the res judicata.
The formalisticcharacterof thejudicial procedureprotectsboth the
qadi and the rights of the defendant.It is based on an epistemological
scepticism according to which the qadi has access to reality mainly
throughthe ambiguousutterancesof the litigants and witnesses. The
formalisticcharacterof the procedure,therefore,delegatesresponsibiliy
for establishingthe facts to the parties,the witnesses, and the experts.
It relieves the judiciaryof the responsibilityfor establishingthe facts,
shields the judge from pressureexerted by litigants who want to see
truthrecognized,andguaranteesthe authorityof the resjudicataagainst
criticismbased on any errorof fact that the judge may have made. In
making respect for formal procedure the main criterion for the
legitimacy andlegal validity of the qadi'sjudgment,the legal doctrine
uses a criterion that is subject to the control of the judiciary and
that is producedby membersof the legal profession. The 'corrective
punishment' and the 'qadi's knowledge' compensate for any
shortcomingsof the formal procedureand, at the same time, weaken
its rationality;on the other hand, they enhance the qadi's decisionmakingpowerandthus serve to strengthenthe competenceof the legal
profession.
The situationof the legal profession changed underthe Mamluks
(1250-1517). As Carl F. Petry has shown, the 'ulama' who migrated
to Egypt from Syria, Iran, Anatolia and other regions had to create
alliances with the leading Mamluks if they wanted to gain access to
high offices in thejudicial andthe extra-judicialspheresof the political
system. Increasingly,the qadishipbecame a steppingstone for access
to the highest offices of the bureaucracy,such as the kdtibal-sirr or
ndziral-awqdf.Manyqidis movedfromthe sphereof legal andreligious
activities to the higherechelons of the bureaucracy.For the legal elite,
state service became a careerin which one passed from one office to
another,fromone functionalsphereto another.The new system tended
180
BABER JOHANSEN
to increasethejudicial competenceof militaryofficers24.Texts written

by prominentMalikiandHanbalijuristsof the thirteenthandfourteenth
centuries,such as Qarafi(1228-1285), IbnTaymiyya(1263-1328), Ibn
Qayyim al-Jawziyya (d. 1351) and-to a lesser degree-Ibn Farhun
(1319-1397), all bearmarksof this development:they addressnot only
thejuristsandthe qadisbutalso the higherechelons of the bureaucracy
and the militaryofficers as judges who are supposedto apply the law
and guaranteethe social and political order.
These jurists deviated from the classical fiqh doctrine on proof
and procedurein five respects. Firstly, they do not assert the legal
profession's control over the judiciary. Rather, they regard the
dispensationof justice as a function to be fulfilled by all membersof
the political elite. Consequently,judgmentscan be based not only on
fiqh norms but also on political considerations and state interest.
Secondly, and for reasons closely related to the previous point, these
juristshighlightthe model behaviourof charismaticfiguresof the early
Muslim community,not in orderto justify the legal categoriesthatare
the productof legal reasoning and its systematic constraints,but to
downplay them. Thirdly,their conception of proof is not centeredon
the utterancesof litigants and witnesses. Circumstantialevidence of
all kinds assumes a prominentplace as a full and sufficient proof.
Fourthly,anddirectlyrelatingto thisnew conceptionof proof,thejurists
do not legitimize the new doctrine in terms of epistemological
scepticism.Rather,the new doctrineis characterizedby the optimistic
conviction that the judge, by relying on signs and indicators,has the
ability to determinethe truthand to base his judgment on it. Finally,
the goal of the new doctrine is not to guarantee the rights of the
defendant,butto protectthe publicinterestandthe abilityof the political
authoritiesto controldisturbancesand lawlessness.
Ibn Taymiyya and his disciple, Ibn Qayim al-Jawziyya, were
membersof the legal elite of the Mamlukstate. In orderto realize his
political and legal program,Ibn Taymiyya was dependenton leading
Mamluks and sultans (especially Muhammadb. Qalawun, the amir
Sayf al-Din Arghun,and the amir al-Afram),to whom he turnedfor
help when trying to carry out his programof implementinga Sunni
state.In his view, organizedpoliticalpowerhad a religious dimension:
it had the capacity and the function to protect the Sunni community
24 Carl F.
Petry, The Civilian Elite of Cairo in the Later Middle Ages (Princeton: Princeton University Press, 1981), passim.
SIGNS AS EVIDENCE
181
and the Sunni forms of Islam. However, such a political power

organization was, according to Ibn Taymiyya and Ibn Qayyim alJawziyya, dependent on Sunni jurists aware of the political dimension
of legal doctrine and judicial practice25.
This program is encapsulated in the term 'siyasa shar'iyya', which
I translate loosely as 'the political function of the sacred law'. Ibn
Qayyim al-Jawziyya characterizes this program by quoting the famous
Baghdadi Hanbali of the late eleventh and the early twelfth century,
Ibn 'Aqil, as follows: 'Politics consists of practices that bring human
beings closer to salvation and keep them away from corruption, even if
the Prophet did not institute [such practices] and even if no revelation
has come down concerning them'.26The 'political function of the sacred
law' is, thus, not a system of rules and norms but the religious purpose
underlying these norms in its practical political form. The concept
underlines the necessity of a strong political apparatus for the practice
of religion and assigns a religious dimension to the exercise of all
public functions (wildydt), all of which are supposed to fulfil the hisba
commandment, i.e. to command the good and forbid the evil, and thus
serve a meaningful religious purpose. In fact, Ibn Qayyim al-Jawziyya
develops a three-fold division of Islamic normativity (shar') in order
to show that the political elite are at least as close to the religious
foundation of the state as the jurists are, and that religious normativity
accepts signs ('alamdt) and indications (amardt) as proofs. He says,
quoting Ibn Taymiyya:
The term'Islamicnormativity'(shar')no longercorrespondsto its original
meaning;ratherin these times it is divided into three aspects: [first]the
revealed sacredlaw (al-shar' al-munazzal).It consists of the Qur'anand
the Sunna(of the Prophet).Adherenceto this revealedlaw is obligatory,
and those who refuse to follow it must be fought. This law comprisesthe
roots and branches of religion (usul al-den wa-furu'uhu),the political
leadership competencies of the military commandersand of those in
chargeof finances (siydsatal-umara'wa-wulatal-mal), thejudgmentof
the magistrate(wa-hukmuI-hakim)and those who control the markets
[?] (mashyakhatal-shuyukh),the [fiscal] marketinspectorsand others.
25
See the introductionand the translationby HenriLaoustin his Le Traite

de Droit Public d'Ibn Taymiya.Traductionannotee de la Siyasa shar'iyya
(Beirut:InstitutFran9aisde Damas, 1948), xxv-xxix.
26Ibn Qayyimal-Jawziyya,I'lamal-muwaqqi'ln'an rabbal-'Alamin,2e ed.,
4 partsin 2 vols. (Beirut:Dar al-Kutubal-'Ilmiyya,1993), partIV, 283.
182
BABER JOHANSEN
All of thesehave tojudge by 'therevealedsacredlaw' andarenot allowed

to neglect it.
The secondaspectof Islamicnormativityconsistsof free interpretation
(ta'awwul), and this is the sphere of conflict (niza') and of individual
legal reasoning(ijtihad).Those who find a solutionto a problemthatcan
be solved by independentlegal reasoningareconfirmedin it. Otherpeople
do not have to agree with them, except if they producean indisputable
argumentfrom the Book of God or the practiceof his Prophet.
The thirdaspectof Islamicnormativityconsistsof 'alterednormativity'
(shar' mubaddal), such as is established by false testimony (shahaddt al-
zawr). In this field one judges by ignoranceand injusticeor one imposes

in it the confirmationof thatwhich is null andvoid so as to cause the loss
of thejust claim (li-idd'atal-haqq),e.g., a personwho instructssomeone
who is mortally ill to acknowledge a debt vis-a-vis one of his heirs to
which, in fact, thatheir is not entitled,so as to obstructthe claims of the
otherheirs. To orderthis is forbidden.To witness it is forbidden.And if
thejudge knowsthehiddenaspectof the matterandthat[itsvisible aspect]
does not correspondto the truth,and if he still judges [accordingto the
false testimony], he acts as an oppressorand a sinner. If he does not
know the inner aspect of the matter,he does not sin27.
Ibn Qayyim al-Jawziyya then quotes the famous hadlth in which
the Prophet says that a judge, indeed, even the Prophet himself, may
be led into error by the rhetoric of a fraudulent litigant and, by passing
judgment, may award the latter an undeserved advantage. But the
Prophet warns that the fraudulent litigant will have to pay for the
undeserved advantage in hellfire28.
The jurists (with the exception of the magistrate) are conspicuously
27
Ibn Qayyim al-Jawziyya, al-Turuq al-hukmiyya fi al-siyasa al-shar'iyya
aw al-firasa al-mardiyya fi ahkam al-siyasa al-shar'iyya (Beirut: Dar al-Kutub
al-'Ilmiyya,n.d.), 100. The term'mashyakhatal-shuyukh'is not entirelyclear

to me. In this context,it seems to referto the personwho, underthe Mamluks,
was nominatedby the authoritiesto securethe orderlycourse of affairsin the
markets. Ira Lapidus, Muslim Cities in the Middle Ages (Cambridge: Harvard
UniversityPress, 1967), 96 refers to the shaykhs'appointedby the governor

of the city from among the notable merchants'who 'were responsible for
discipline,preventionof fraud,and collectionof taxes'. He refersto the shaykh
al-mashayikhas exercisinghis jurisdictionin the marketsof Damascusuntil
ca. 1440 (ibid., 274). Such an institutionwould make sense in this context.
28
Ibid., 100-01, see also 198. This hadlthis alreadyquotedby Shafi'i, alUmm,vol. VI, 199, vol. VII, 40; and by Malikb. Anas. See 'Abd al-WalidalBaji, al-Muntaqa sharh Muwatta' imam ddr al-hijra Malik b. Anas (Cairo:
Matba'atal-Sa'ada,1331H.),vol. V, 182.
SIGNS AS EVIDENCE
183
absentfromthe realmof revealednormativityand so is theirconsensus

as a source of law. The 'roots and branchesof religion' referredto by
IbnQayyimal-Jawziyyaarenot a legal discipline.Makdisi,in his study
of Ibn 'Aqil, refers to the field of 'the roots of branchesof religion'
(not to be confused with the roots and branches of legal norms) as
'naturaltheology'29,the necessaryknowledgeof religious truths.Also,
the personsaddressedby the Qur'an,the Sunnaand 'naturaltheology'
are mainly not jurists but rathermilitarycommanders,fiscal officers,
magistrates(but not necessarily qadis), and marketinspectors.These
arethe officialswho applythe 'revealednormativity'and,consequently,
their practice is directly related to it. The law as developed and
interpretedby the jurists is not part of the 'revealed normativity'.It
belongs to the sphere of 'free interpretation'and has binding force
only when it is based on indisputabletexts from the Qur'anand the
Sunna. It adds a dimension to revealed normativitybut is neitherits
only nor its most importantrepresentation.Finally, the worst aspect of
normativityis the 'alterednormativity'in which legally valid decisions
are based on false evidence or false confessions, or in which the aims
ascribedto certainnorms are modified, so that the norm producesan
effect that contradictsthe intentionof the Lawgiver.It is obvious that
the critique of the 'altered normativity' implies an attack on the
proceduralformalismof the classicalfiqh doctrine.
Members of the military and administrativeelite are, according
to this doctrine,directlyobligatedto apply the 'revealednormativity'.
Their practice is, for that reason, an interpretationof the revealed
normativity. The jurists' norms are binding only when based on
indisputableproof from the revealed law. Norms and categories that
are based merely on legal reasoningare bindingonly on theirauthors.
If these authorsare judges, the norms that they deduce throughtheir
individual legal reasoning bind also those who are under their
jurisdiction.Insofaras thejuristsserveas magistrates,i.e. performpublic
functionsin the stateadministration,they also areboundby therevealed
law. They may abide by theirown normativeconstructions,but these
do not oblige the rest of the political elite. For this reason,the division
of competenciesbetween the membersof the political elite is a matter
of practicalexpediencey, not of legal normsor principles.I quote Ibn
Taymiyya's treatiseon hisba:
George Makdisi, Ibn 'Aqil Religion and Culture in Classical Islam
(Edinburgh:EdinburghUniversityPress, 1997), 69.
29
184
BABERJOHANSEN
The generaland the particularcharacteristicsof the public functionsand
competenciesthatareconveyedto personswho exercisethe office depend
on theexpressionsused,the circumstances,andthe politicalpractice('urf).
The sacredlaw defines none of this. At some times and in some places,
the qadishipembracescompetenciesthatat othertimes andin otherplaces
fall underthe authorityof the military(wildyatal-harb), and vice versa.
The same holds truefor the hisba and for the revenue administration30.
All of these functions, Ibn Taymiyya adds, are religious offices (manasib
diniyya), qualification for which is determined not by any particular
form of professional training but by the capacity to perform them
honestly, piously and satisfactorily. He explains the situation of the
judiciary in the contemporary Mamluk state by comparing it to that of
the Maghrib:
According to the political practice ('urf) in our time, in the regions of
Syria and Egypt it is the militaryauthoritythatcarriesout the prescribed

punishmentsfor the violation of God's claims (hudud)which involve
mutilation (itlaf), such as the amputation of the thief's hand or the
punishmentof the highwayrobberand similarthings.It may also happen
that the military authorityimposes a punishmentthat does not involve
mutilation,such as, for example, the flogging of the thief. It is competent
also in civil litigation (mukhasamart),
brawls (muddrabat),and 'trials of
suspicion'(da'awial-tuham)in which thereareneitherwrittendocuments
(kitdb)nor witnesses.
The office of the qadi is competent in these matters if there are written
documents and witnesses. The qadi has to establish the legal claims [of
individuals] and to judge in this matter.He has to check the status of

those who inspect pious foundations and administer the property of
orphans and other well-known things. In other countries, such as the
Maghrib,the militaryauthorityhas no judicialcompetenceat all. It serves
merely to execute the ordersof the qadi.31
30
Ibn Taymiyya, Al-Hisba ft al-islam. Traite sur la Hisba, trans. by Henri
Laoust(Paris:Geuthner,1994), Arabictext: 8, translation:31(butsee also 29):

'Toutesles fonctions sociales dans l'islam ont le meme but: ordonnerle bien
et interdirele mal'. The Arabictermis jaml' al-wilayat,and the text refersto
'public offices', as is evident also from the enumeration of the public offices
that follows.
31 Ibid., Arabic text: 8-9, translation: 31. See also Ibn Qayyim al-Jawziyya,
Turuq, 93, 239; for the competences of the qadi in Mamluk times, see also
Burhan al-Din Ibrahim ibn Farhun, Tabsirat al-Hukkdmfi usul al-aqdiya wa-
manahijal-ahkam(Cairo:Maktabatal-Kulliyyatal-Azhariyya,1986), vol. I,
SIGNS AS EVIDENCE
185
Thus, the distribution of competencies among different public

functions is characterized as a matter of expediency, political practice,
and regional history, not as a question that concerns the law, precisely
because all magistrates are subject to the revealed law, although the
political elite are not necessarily subject to the norms construed by
the jurists. Unlike Mawardi, who attempted to define, in the name
of the law, the legal norms that govern public functions and the
distribution of competencies among them32, Ibn Taymiyya and Ibn
Qayyim al-Jawziyya saw no reason to preserve certain competencies
for the military and others for qadis. The term 'qadi', Ibn Taymiyya
emphasizes,
is a name that applies to each and every one who issues a decision in a
conflict between two partiesor who arbitratesbetween them, no matter
whetherhe is a caliph, a sultan, a deputy, or a governor;or whetherhe
was appointedin orderto judge accordingto the sacred law; or as the
deputyof such a judge deciding in a conflict between parties,even if he
judges (yahkum)nothingmorethanthe qualityof the handwritingamong
childrenwho turnedto him for this purpose33.
94; andTaqiyyal-DinAhmadb. 'All al-Maqrizi,Kitdbal-mawa'izwa' 1-i'tibar
bi-dhikr al-khitat wa' I-dthar (Cairo: Maktabat al-Thaqafa al-Diniyya, n.d.),
vol. II, 221-22. Of course,the quotationfromIbnTaymiyyashouldnot be read

as a historicalreporton the state of affairs in the Maghrib.
Note that Laoust,Hisba, translatesmukhasamatas 'disputes',muddrabat
as 'echanges de coups' and da'awi al-tuham as 'accusations'. In the context treatedby Ibn Taymiyya,the first two translationsseem to be appropriate
(thoughmukhasamatand mudarabdtmay, in other contexts, simply refer to
litigationand commendasand, on thatunderstanding,the distinctionbetween
the competencies of the military authoritiesand the qadis would be rather
thatbetweencivil law and publicorder).Ibn Taymiyyastatesthatthe military
authoriesare competentwhen no writtendocumentsconcerningthe litigation
are available,whereasthe qadi is competentif such documentsdo exist. I do
not understandwhat kind of writtendocumentsIbn Taymiyyais referringto if
the text concernsa brawlbut it cannot,of course,be ruledout thatthe Mamluk
police produceda sortof a proces-verbal,on whichthejudgebasedhis decision.
The da'awl al-tuhamare certainlymisunderstoodby Laoust:they concern a
special kind of trial against suspectpeople (see below, pp. 190-2).
32 Mawerdi (Abou'l-Hasan 'Ali), Les Statuts gouvernementaux ou Regles

de droit public et administratif,traduitset annot6s par E. Fagnan (Alger: Adolphe
Jourdan, 1915), passim.
33Taqiyyal-DinAbu'l-'AbbasAhmadibn Taymiyya,Al-siydsaal-shar'iyya
fi islah al-ra'iwa' l-ra'iyya(Beirut:Daral-JilandDaral-Afaqal-Jadida,1988),
16 (see the translationby HenriLaoust in Le Traitede droitpublic, 12). Cf.
Ibn Qayyim al-Jawziyya,Turuq,93, 100.
186
BABER JOHANSEN
The sacredlaw does not distinguishbetween the judicial activities

of differentpublic officials. It does not distributecompetenciesamong
offices. All offices serve to commandthe good and forbidthe evil and,
so long as they fulfil this task, it does not matterwhich office fulfils
which function. Consequently,even the qadi who serves as member
of the state's administrativeelite partakesof the leadershipcompetencies conceded by the revealed normativity to commanders and
administrators.
In a state that commandsthe good and forbids the evil, the jurist
does not have to defend any particularschool doctrine.Rather,he has
to producelegal and ethical normsthatcorrespondto the model of the
pious ancestors, the charismatic members of the early Muslim
community,such as the Prophet,the fourfirst caliphs,the Companions
of the Prophetand the generationthat followed them. The law is not
only forjuristsandqadisbutalso for all stateofficials,andits application
does not require any juristic sophistication. Ibn Taymiyya and Ibn
Qayyim al-Jawziyyaattackedthe classical schools for the formalism
of theirprocedurallaw andthefactthat,in orderto follow the constraints
of systematic reasoning, they constructabstractionsthat correspond
neitherto the life experienceof the ordinaryMuslimnorto the example
of the charismaticmembersof the early Muslim community.In order
to returnto a correctunderstandingof the revealed law, they argued,
one mustfollow the examples of the charismaticmembersof the early
Muslim community, not the normative constructionsof later jurists
who deviatedfrom these examples.34
A returnto the example of the charismaticmembers of the early
communityis the only way in which the practicalvalidity of the sacred
law in a Sunni state can be restored. Only a returnto the practical
normsof the revealedlaw and a soberinterpretationof its meaningcan
persuadethe political authoritiesof the Sunni state that the norms of
the law are not, as they mistakenlybelieve, incapableof guaranteeing
law and order.They have been led to this mistakenassumptionby the
juristsof the differentschools who cling to theirformalisticprocedures,
generalizations, and systematizations,which lead them to abstruse
abstractions,on the one hand, and, on the other, to a concern for the
rightsof evildoers,which is detrimentalto the reputationof the sacred
34
For the criticismof thefiqh jurists, see Ibn Taymiyya,al-Hisba, Arabic
text: 40-46, French translation: 60-65; Ibn Qayyim al-Jawziyya, Turuq, 11, 1314, 70-72, 77-78, 104, 267, 269.
SIGNS AS EVIDENCE
187
law and harmful to the public interest of the Muslim community.35

The central target of the accusations against classicalfiqh procedural
law is the notion that proof must be established by the utterances of
witnesses. According to the classical doctrine, the deposition of a
concurring testimony by two male witnesses is called bayyina, a proof
that renders things clear. Ibn Taymiyya, and even more so Ibn Qayyim
al-Jawziyya, attacked this notion. According to Ibn Qayyim alJawziyya, the term 'bayyina'
is a name for everythingthatrendersthe truthclear and demonstratesit.
Thosewho identifyit with two witnesses, or four,or one, do not do justice
to its namedfunction(musammd).When [the term] 'bayyina' is used in
the Qur'an,it never has the meaning of two witnesses; rather,it always
signifies the argument,the indicator,or the proof, whether used in the
singularor in the plural.This also holds truefor the saying of the Prophet,
'It is obligatory for the plaintiff to bring the proof that rendersthings
clear'. This statementmeansthatthe plaintiffmust corroboratehis claim
before one may judge in his favor. The two witnesses form partof such
evidence. But there is no doubt that other types of clear proof may be
strongerthan two witnesses, such as circumstantialindicators(dallala)
pointing to the sincerity of the plaintiff. This indicatoris strongerthan
information provided by witnesses. In fact, [the terms] 'clear proof'
(bayyina),'indicator'(daldlal), 'authoritativeargument'(hujja),'proof'
(burhan), 'sign' (aya), 'instruction'(tabsira), and 'token' ('aldma) are
all very close to each otherin meaning.36
Ibn Qayyim then interprets a hadith from the Prophet as meaning that
a sign may take the place of a proof.
Throughout his numerous writings Ibn Qayyim al-Jawziyya
furnishes many instances that support his thesis that the notion of
bayyina ought to be understood as clear proof and, therefore, can be
identified with those signs which, if they are read properly, enable a
person in daily life as well as in legal litigation to decide correctly and
to find the indicators that lead to the truth of the facts. Testimony
regarding the circumstances under which a person acts (shahid al-hal)
may serve to interpret the sense of her or his action and, therefore,
35 Ibid.,
36
13-14, 100, 104.
Ibid.,12, see also 24, 126,227. This argumenthas antecedentsin theHanafi

schoolthatreachbackto the eleventhcentury.See Sarakhsi,Mabsut,vol. XVII,
39 and,for the twelfthcentury,'Ala' al-Din al-Kasani,Kitdbbadd'i'al-Sana'i'
fi tartibal-shard'i' (Beirut:Dar al-Kutubal-'Ilmiyya,n.d.), vol. VII, 7.
188
BABER JOHANSEN
shouldbe consideredas 'clear proof'37.If a personwho claims to have

lost an object describesits characteristics,the signs describedserve as
proof38.The brandon an animal serves to indicate the propertyrights
of its owner39,and the inscriptionon a wall that indicates the date on
which a pious endowmentwas foundedservesas proofthatthe building
The physicalresemblencebetweena child
belongsto this endowment40.
and an adult male may serve as proof of paternityand affiliation41;in
the case of tools claimed by two artisans with different skills, the
relationshipbetweenthe skill practicedand the type of tool in question
The Prophet
may serve as proof of ownershipby one of the artisans42.
and his Companions,Ibn Qayyim al-Jawziyya states, acknowledged
signs as 'clear proofs'43.Therefore,the sacredlaw has to accept them
as such. He warns against the neglect of signs by jurists: 'Those who
neglect signs and circumstantial evidence (al-amarat wa'l-'aldmat) [and
leave them]withoutany legal consequencesparalyzemanylegal norms

and cause many legal claims to perish'44.
Judges,therefore,mustbecomereadersof signs andmustnot content
themselves with being the deciding third in a contradictorydebate
between two parties. Theirfirasa, that is their capacity to discover,
produceand interpretsigns, becomes the most importantqualification
for their judicial activity and frees them from dependence on the
utterancesof litigants and witnesses45.Consequently,the judge has at
his disposal a much largerrange of proofs than do the litigants who
bring theircases to court,who must rely on the verbal declarationsof
acknowledgements,testimony,and oaths or the defendant'srefusal to
takean oath46.Things,social status,andcircumstancesmay speakmore
clearly and in a more trustworthylanguage than the words of the
witnesses. The judge must listen to this language and take into
considerationthe signs it produces.Ibn Taymiyya and Ibn Qayyim al37Ibn Qayyim al-Jawziyya,Turuq,24.
38 Ibid.,
39 Ibid.,
40
214-15.
210-11.
Ibid., 10, 211.
Ibid., 216-36, see also 67, 72.

Ibid.,96-98. This is a variationof an old debateamongjuristsconcerning
the role of genderedor professionalpracticesas indicatorsof the ownership
of moveableproperty.All majormanualsrefer to this debate.
41
42
43Ibid., 98, 99.
44Ibid., 100.
Ibid., 33-34, see also 25, 27, 28-31.
Ibid., 67-68, 71-72, 100, 105-106, 121, 135.
45
46
SIGNS AS EVIDENCE
189
Jawziyyaseem to be speakingin termsof a technologyof proofswhen

they suggestthata marriedwoman's claim thatherhusbandis impotent
and that her marriagemust thereforebe dissolved, should be checked
in the following manner:one brings the couple to a house where one
can observe them. One tells the husband to ejaculate on a piece of
cloth. Then, one sets fire to the liquid in orderto determinewhether
it is spermor merely a white substance.If the liquid boils and leaves
If a man
a dry residue, it is sperm and the marriageis maintained47.
claims to have lost his eyesight after being attackedby anotherman,
one exposes his eyes to the sun, in orderto determinewhether or not
they reactto this stimulus48.In short,one treatsthe humanbody andits
liquids as things whose reactions to external stimulation can be
observed, allowing the observerto draw a conclusion regardingtheir
physical state and effects. In general,physical indicatorsare regarded
as strongerevidence thanthe testimonyof witnesses, because they do
not lie49.Therefore,the physiognomist'sstatementaboutpaternityand
affiliationis accepted50.The stolen object found in a person's custody
establishes that this person is a thief51.Good judges can discern the
truthon the faces of the accused52.The role of physical indicatorsas
proof is much stronger than in the classical fiqh doctrine. Experts
becomeindispensableaidstojudgesbecausetheyknowhow to interpret
the language of things53.
But signs areread not only on bodies and things. Suspicionmay be
created by the fact that a person belongs to a social group that is
consideredto be of dubiousloyalty to the law and the Sunni state. As
examples, Ibn Taymiyya specifies the Bedouin, Turkmen, Kurds,
peasants,urbanlumpen-proletariat,soldierswho desertedthe army54,
militanturbangroupssuch as the 'ayyarunin Baghdad,and the 'gang'
47
48
Ibid., 48-49.
Ibid., 50.
49
50
Ibid., 211-12, cp. 7, 12.

Ibid., 230.
51
Ibid., 6-7, 9; see also l'lam al-muwaqqi'in, vol. I, 81.

Ibn Qayyim al-Jawziyya, Turuq, 27. On the importance of the social
background of the parties for the decisions of judges in twentieth-century Morocco, see the vivid description of Lawrence Rosen, The anthropology of justice
(Cambridge: Cambridge University Press 1989), 45. The motivations of the
Moroccan judges are probably rather different from those of Ibn Taymiyya.
53 Ibid., 228-30.
54 Ibn Taymiyya, Siyasa shar'iyya, 63-4, 68.
52
190
BABER JOHANSEN
Hereticsfall intothe samecategory56,

(mansir)in CairoandDamascus55.
and so do people who practicedespisedprofessions,such as owners of
pubs57,andfemale andhomosexualprostitutesandprocurers58.
Morally
suspect hobbies, such as pigeon-breeding,are also signs that create a
justified suspicion59.These are not the only suspects.Any claim thatis
contradictedby the prevailing hierarchicalrelations in a particular
society exposes the claimantto punishment,becausehis or her claim is
directedagainstthe social order.IbnQayyimal-Jawziyyatells the story
of a man who, while in the presence of the sultan and Ibn Taymiyya,
asked Ibn Taymiyya to returna deposit that,he claimed, he had given
him. The manwas immediatelypunishedandhis claimwent unheeded:
not anybody can sue anybody60.The woman who accuses a man of
good reputation of having raped her will be punished for her
accusation61.This rule has a long historyin Maliki law, where we can
follow it from the Mudawwanaonwards62.But Ibn Taymiyya and Ibn
Qayyim al-Jawziyya transform the rule into a general principle
accordingto which,if a manof lowerstatusmakesan accusationagainst
a higher-rankingmemberof the society who enjoys a good reputation,
the claimantshouldalways be punished,becausehe injuredthe accused
person and, therefore,must suffer the consequences of his act63.The
logic of social position createsa presumptionof innocence on the part
of thehigher-rankingpersonandrenderssuspectthe claim of the lowerrankingplaintiff.
Signs producedby social ties and social hierarchies,by occupation
and ethnic ties, and by suspectreligious persuasionfeed into a special
procedureaboutwhich alljuristsof the Mamlukperiodinformus: 'trials
of suspicion' (da'awial-tuham).These trialsfollow special procedures
55
Ibid.,73. On the mansirin Cairoand Damascus,see IraLapidus,Muslim
Cities, 170-71, 292, note 44. On the 'ayyarunsee ClaudeCahen,'Mouvements
populaires et autonisme urbain dans l'Asie Musulmane du Moyen Age', Arabica

5 (1958), 225-50, Arabica 6 (1959), 25-56, 233-65. See also EI2, s.v. 'Ayyar
(F. Taeschner).
56 Ibn Qayyim al-Jawziyya, Turuq, 174-75.
57 Ibid., 279.
58 Ibn Taymiyya, Siyasa shar'iyya, 64.
59Ibn Qayyim al-Jawziyya,Turuq,282-83.
60Ibid.,113.
61
Ibn Farhun, Tabsirat al-Hukkdm, vol. II, 167, 170, see also 181.
Johansen, 'Indizienbeweis', 14-18.
63
Ibn Qayyim al-Jawziyya, Turuq,92-93, 101; Ibn Farhun, Tabsirat alHukkdm, vol. II, 156, 162.
62
SIGNS AS EVIDENCE
191
and recognize proofs that are not generally acknowledged. Mamluk

militaryauthoritiesare competentto organizethem64.The governoror
the censor (muhtasib)are entitledto make inquiriesinto the behaviour
of suspectpeople65.These trials,which do not dependon the claim of a
privateplaintiff,are designatedhisba trials;they are institutedin order
to command the good and forbid the evil66.The political authorities
decide if the public interestis sufficiently concernedfor them to order
the inquiry67.
Eventually,suchtrialsmay be heardanddecidedwithout
any witnesses or acknowledgements68.
Underthe siyasa doctrinesof the neo-Hanbaliand Malikijurists of
the Mamlukperiod,these trials are consideredlegitimatewhenever a
suspect,be he a plaintiff,a witness or a defendant,cannotbe convicted
according to the procedural law of classical fiqh doctrine69.The
reputationsof the defendant,the plaintiff and the witnesses give the
legal process in such cases a particularcharacter.The jurists tell us
thatthe suspectplaintiffmust take the oath in orderto make his claim
credible70.If the witnesses are suspect, the judge should hear them
If thejudge is
individuallyand submitthemto detailedinterrogation71.
A man
of
the
him72.
defendant's
he
threaten
persuaded
guilt,
may
of
until
and
beaten
he
be
suspected highway robberymay imprisoned
informs the authoritiesof the hideout where his booty is hidden73.A
person suspectedof hiding a fugitive criminalmay be imprisonedand
beaten until he informs the authoritiesabout the whereaboutsof the
fugitive74.One can administerup to 100 lashes per day on the body of
the suspect and repeat this punishmentdaily75.Persons suspected of
having committeda crime may be beaten, imprisonedand torturedin
orderto extractconfessionsfromthem76.If, undertorture,a thiefinforms
the authoritiesabout the location where a stolen object is hidden, he
Ibn Qayyim al-Jawziyya, Turuq, 239.
Ibid., 240-42.
67 Ibid., 265; Ibn
Taymiyya, Siydsa shar'iyya, 24.
68 Ibn
Qayyim al-Jawziyya, Turuq, 239.
69 Ibn Farhun, Tabsirat al-Hukkdm, vol. I, 379-409, vol. II, 156; Ibn
Qayyim
al-Jawziyya, Turuq, 93-94.
70
Ibid., 124, 146.
71
Ibid., 24, 49, 61-62, 143.
72
Ibid., 3, 28, 265.
73 Ibn Taymiyya, Siyasa shar'iyya, 77.
74 Ibid., 79-81.
75 Ibid., 98.
76 Ibn Qayyim al-Jawziyya, Turuq, 103-04, 108.
64
65
192
BABER JOHANSEN
may be punishedfor theft. It is not the extortedconfession that serves

as the basis of the judgmentbut ratherthe stolen object,which speaks
for itself and establishesthe guilt of the suspect77.
The use of tortureis legitimized by reference to the charismatic
figures of the early Muslim community:as happens often in Islamic
legal history, a new institutionmust be justified by a referenceto the
practiceof the earlyMuslim community.Following a strategyadopted
by Ibn 'Aqil at the beginningof the twelfth century,Ibn Taymiyyaand
Ibn Qayyim al-Jawziyya,and the Maliki Ibn Farhun,insisted that the
Prophet,the first four caliphs and other Companionsof the Prophet
torturedsuspects in orderto elicit signs of their guilt78.The reference
to the model of charismaticleaders of the early Muslim community
made it possible for Ibn Taymiyya and his followers to underminethe
clearinterdictionof judicial torturethatcharacterizesclassical Islamic
law from the eighth to the twelfth centuries.
Under the Mamluks, the new doctrines of the neo-Hanbalis and
Malikisintroducenotionsof proofandprocedurethat,fromthe fifteenth
century onwards, became part and parcel of post-classical legal
doctrine79.
These new doctrineshad a clearrationalizingtendency:they
attacked the formalism of the old doctrine on procedureand proof,
they introducedthe notion of the sign as a clear and sufficient proof,
and they gave objects, indicators,and circumstantialevidence a status
as proof. They also transformedthe social ranking of persons, their
reputation,religious persuasion,occupation,andbodily attributesinto
signs that make it possible for the judge to decide whether or not
plaintiffs,witnesses, and defendantsmay be classified as suspects. In
the classical doctrine, the judge was a decision maker who made a
legal assessmentregardingthe contradictoryutterancesof partiesand
Ibid., 9; Ibn Qayyim al-Jawziyya, I'lam al-muwaqqi'in, vol. I, 81.
Ibn Qayyim al-Jawziyya, Turuq, 7, 13, 108; for references to later caliphs
who used torture see ibid., 40, 41.
79 See my 'Verite et Torture', 166-67, for the reception of the new doctrines
in the Hanafi school in the fifteenth century. An impressive example of its
influence on the late Ottoman understanding of procedural law is found in
Ibn 'Abidin, Radd al-muhtdr 'ald al-durr al-mukhtdr(Cairo, 1889). Ibn 'Abidin,
the last important Hanafi author of the pre-colonial period in Damascus, applies
the classical doctrine to decent people with good reputation, but at the same
time accepts the new doctrine for suspect individuals and ethnic groups of all
kinds. An immense array of new crimes for which capital punishment is imposed
is accompanied by the legitimation of judicial torture of the suspect. See ibid.,
vol. III, 161, 194-99, 204, 208, 212-213.
77
78
SIGNS AS EVIDENCE
193
witnesses; in the new doctrine of 'the political function of Islamic

normativity' (siyasa shar'iyya), the judge becomes a reader and
producerof signs thathe manipulatesin orderto establishthe truthof
the facts. The introduction of judicial torture accompanies the
rationalizationof the system of proof and procedurein the Near East
as well as in thirteenth-century
Europe.Threemajorquestionsremain
to be answeredbefore we can develop a historical understandingof
these new doctrinesin the Mamlukcontext:(1) we lack a historyof the
legal profession and the administrationof justice underthe Mamluks
thatwouldenableus to speakwith confidenceabouttherelationbetween
the Mamluksand the judicial elite80;(2) we cannot really understand
the reasoning that lies behind this process unless we have a better
knowledge of the epistemology that underliesthe reasoningof jurists
like Ibn Taymiyya and Ibn Qayyim al-Jawziyya;and (3) I find it hard
to believe thatjuristsliving in Europeandthe NearEastin the thirteenth
centurysimultaneouslyintroduceda process of rationalizationof the
law accompaniedby the legitimationof judicial torturewithout there
having been any mutualinfluenceandexchange.Whateverthe answer
to these questions, the importanceof the changes in the doctrine on
proof andprocedureintroducedby IbnTaymiyya,his disciples andhis
followers can hardlybe overestimated.They clearly bear witness to a
changedintellectualand political climate.
80
Sherman A. Jackson, Islamic Law and the State. The Constitutional Jurisprudence of Shihab al-Din al-Qardfl (Leiden: E.J. Brill, 1996), takes an
important step in the right direction.

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Brill

SIGNS AS EVIDENCE: THE DOCTRINE OF

THE CONCEPTOF EVIDENCEforms an important part of Sunni fiqh,

the system of legal and ethical normsacceptedby those Muslims who

? KoninklijkeBrill NV, Leiden, 2002

Islamic Law and Society 9, 2

an importantrole in the politics of the majorcities of the easternand

to take an oath to affirm his denial of the plaintiff's claim. Although

('ilm yaqin). Such

knowledge is to be found only in the revelation, i.e. the Qur'an,the

the result of sensory experience.The first type of indisputablycertain

defendanton the basis of the extortedconfession is, accordingto the

after such a judgment, the plaintiff finds witnesses who supporthis

without producingthe witnesses in supportof his claim and without

This is obviousin the Hanafisolution.But it is also clearin the doctrine

Muslim criticism of this institution, a criticism attributedto the Umayyad caliph

which neighboursraisedconflictingclaims concerningthe walls, roofs

The text to which Brunschvigrefers has now been edited by Farid b.

XV, 88. But Sarakhsiuses the term 'the learned'(ahl al-'ilm

DamasceneHanbalismin the early thirteenthcentury,only the woman

In the absenceof witnesses or a confession, circumstantialevidence

Ibn Qudama, Mughni, vol. X, 193 ff.

al-Mudawwana,vol. XVI, 93.

Classical fiqh doctrine attempts to guarantee the procedural

Malikissee al-Mudawwana,vol. XII, 148-49;for the debateamongthe schools

rationality of the judge's handling of norms of different origin and

replacestheirstatementswith his own knowledge.This is a clearrupture

See my 'Vom Wort-zumIndizienbeweis',7-12.

investigation:he has no power of inquisition.He has to rely on the

to increasethejudicial competenceof militaryofficers24.Texts written

and the Sunni forms of Islam. However, such a political power

See the introductionand the translationby HenriLaoustin his Le Traite

All of thesehave tojudge by 'therevealedsacredlaw' andarenot allowed

zawr). In this field one judges by ignoranceand injusticeor one imposes

al-'Ilmiyya,n.d.), 100. The term'mashyakhatal-shuyukh'is not entirelyclear

UniversityPress, 1967), 96 refers to the shaykhs'appointedby the governor

absentfromthe realmof revealednormativityand so is theirconsensus

Syria and Egypt it is the militaryauthoritythatcarriesout the prescribed

individuals] and to judge in this matter.He has to check the status of

Ibn Taymiyya, Al-Hisba ft al-islam. Traite sur la Hisba, trans. by Henri

Laoust(Paris:Geuthner,1994), Arabictext: 8, translation:31(butsee also 29):

Thus, the distribution of competencies among different public

94; andTaqiyyal-DinAhmadb. 'All al-Maqrizi,Kitdbal-mawa'izwa' 1-i'tibar

bi-dhikr al-khitat wa' I-dthar (Cairo: Maktabat al-Thaqafa al-Diniyya, n.d.),

vol. II, 221-22. Of course,the quotationfromIbnTaymiyyashouldnot be read

32 Mawerdi (Abou'l-Hasan 'Ali), Les Statuts gouvernementaux ou Regles

The sacredlaw does not distinguishbetween the judicial activities

For the criticismof thefiqh jurists, see Ibn Taymiyya,al-Hisba, Arabic

law and harmful to the public interest of the Muslim community.35

13-14, 100, 104.

Ibid.,12, see also 24, 126,227. This argumenthas antecedentsin theHanafi

shouldbe consideredas 'clear proof'37.If a personwho claims to have

leave them]withoutany legal consequencesparalyzemanylegal norms

Ibid., 10, 211.

Ibid., 216-36, see also 67, 72.

43Ibid., 98, 99.

Jawziyyaseem to be speakingin termsof a technologyof proofswhen

Ibid., 211-12, cp. 7, 12.

Ibid., 6-7, 9; see also l'lam al-muwaqqi'in, vol. I, 81.

Hereticsfall intothe samecategory56,

populaires et autonisme urbain dans l'Asie Musulmane du Moyen Age', Arabica

and recognize proofs that are not generally acknowledged. Mamluk

may be punishedfor theft. It is not the extortedconfession that serves