Istikshaf in Islamic jurisprudence and modern law.

Author:Shaham, Ron
Position:Essay
 
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INDUCTION

The general impression created by classical Islamic legal doctrine is that trials before a judge (Oar, henceforward q[a.bar]d[i.bar]) are adversarial and that the qadi's role is passive: he does not investigate the facts of the case; he only supervises the observance of the rules of procedure and evaluates the evidence produced by the parties. Practically speaking, the qadi is not equipped to investigate the case himself nor does he have the staff to do so. He depends entirely on such facts as the parties are willing and able to establish. (1) Also, most jurists view the qadi as strictly bound in his choice of methods of evaluation. But a minority opinion, mainly represented by the Hanbal[i.bar]s Ibn Taymiyya (d.728/1328) and Ibn Qayyim al-Jawziyya (d. 751/1350-1), views the qadi's role as more inquiring. These scholars require that the qadi play an active role in gathering evidence pertaining to the court case and encourage him to use not only oral testimony but also circumstantial evidence and any other material signs and indicators that may help him reach the factual truth. (2)

The almost total absence of qadi court records for the pre-Ottoman period makes it difficult to locate judicial procedures in qadi courts on the spectrum between adversarial and inquisitorial. Such procedures naturally varied across time and space. Evidence from Ottoman sources, however, shows that it was the duty of the qadi to investigate crimes, e.g., by conducting an investigation at the place of the crime, ordering the carrying out of an inspection (often termed kashf), (3) such as an autopsy, and taking the statement of a medical expert. A qadi would often instruct his deputy to carry out specific tasks related to an investigation. (4) It seems, then, that in practice the Ottoman qadi's role was more inquisitive and active than the one conveyed by jurisprudential treatises.

It is in this context--the investigative aspect of the qadi's role and the latitude of the types of evidence he is permitted to rely on--that I wish to discuss the origins of the term istikshaf and its development from early Islamic legal sources to present-day usage. (5) My interest in this term was aroused when 1 read that in his second judicial circular (from 1995) on the use of informants (mukhbir[u.bar]n) for determining the level of marital maintenance (nafaqa zawjiyya), Qadi Ahmad N[a.bar]t[u.bar] President of the Israeli Shari'a Court of Appeal, stated that the qadi is not obliged to be assisted by informants, because determination of the level of maintenance is within his exclusive competence. (6) If the qadi chooses to employ informants to make sure that his determination of the husband's economic status is correct, he does so as part of the "investigative procedure" ('amaliyyat al-talyarr[i.bar]) seeking to verify the economic status of the husband. This takes place when the plaintiff-wife claims that her husband-defendant is a man of means but she is unable to substantiate her claim and asks the qadi to investigate the issue. Qadi N[a.bar]t[u.bar]r defines the report of the informants in these circumstances as "a type of what is termed by Lianafi jurisprudence as 'testimony of clarification', which is the evidence by which the gall seeks to gain knowledge on a particular issue" (wa-h[a.bar]dh[a.bar] darb mimm[a.bar] yusamm[a.bar] fi 1-fiqh al-hanafi shah[a.bar]dat al-istiksh[a.bar]f wa-hiya al-bayyina allati yataharr[a.bar] bih[a.bar] al-q[a.bar]d[i.bar] ma'rifat amr min al-um[u.bar]r). The phrasing of Qadi N[a.bar]t[u.bar]r seems to be borrowed from the work of the well-known Egyptian lawyer Muhammad Ab[u.bar] Zahra. (7)

In his circular, Qadi N[a.bar]t[u.bar]r points to a connection between the informants' report in maintenance cases and the term shah[a.bar]dat al-istiksh[a.bar]f, a connection he attributes to Hanaf[i.bar] jurisprudence. The aim of this article is to trace the origins of the term shah[a.bar]dat al-istiksh[a.bar]f. From the recent point of departure provided by Qadi N[a.bar]t[u.bar]r's circular, the study will follow the legal sources backwards, examining, inter alia, the validity of Qadi N[a.bar]t[u.bar]r's claim that the term is found in Hanaf[i.bar] jurisprudence.

To support his assertion that the informants' report on the appropriate level of maintenance is shah[a.bar]dat al-istik[a.bar]sh[a.bar]f, Qadi N[a.bar]t[u.bar]r provides two modern references. The first is from the Egyptian Ordinance on the Organization of the Shari'a Courts (Law No. 78 of 1931), which states in Article 179 that shah[a.bar]dat al-istiksh[a.bar]f is sufficient for court rulings on various kinds of maintenance, caretaker and suckling wages (ujrat al-had[a.abar]na wa-l-rid[a.bar]') and rent. (8) Article 174 of the same law stipulates that, unlike a standard witness, the one who provides shah[a.abr]dat al-istiksh[a.bar]l is not required to swear an oath, because this type of testimony is merely a report provided by someone trusted by the court (l[a.bar] yushtarat f[i.bar] shah[a.bar]dat al-istiksh[a.bar]f tahl[i.bar]f al-yam[i.bar]n bal yakf[i.bar] fih[a.bar] mujarrad al-ikhb[a.bar]r mimman y[u.bar]thaq bihi). (9) In Egyptian legislation, the absence of a need to swear an oath is applicable also to expert witnesses (khubar[a.bar]', sg. khab[i.bar]r). (10)

The second reference provided by Qadi N[a.bar]t[u.bar]r is from the work of the modern Egyptian legal scholar Anwar al-'Amr[u.bar]s[i.bar], (11) who states that there are three ways to establish the economic status of the husband in the context of maintenance determination: (1) the husband acknowledges his wife's claim concerning his status; (2) the court clerks conduct an investigation into the husband's status through administrative channels; (3) via shah[a.bar]dat al-istiksh[a.bar]f, which, according to al-'Amr[u.bar]s[i.bar], is used only when after hearing the litigants' claims the court is unable to evaluate the economic status of the defendant, e.g., when the litigants differ as to the level of his income.

  1. ISTIKSH[A.bar]F IN OTTOMAN-TANZ[I.bar]M[A.bar]T AND IN MODERN LAW

    Additional evidence for the modern use of the term shah[a.bar]dat al-istiksh[a.bar]f in the context of maintenance claims is found in Article 87 of the Jordanian Q[a.bar]n[u.bar]n Us[u.bar]l al-Muh[a.bar]kam[a.bar]t al-Shar'iyya No. 12 of 1965. This article, which probably follows the above-mentioned Egyptian 1931 Law, stipulates that shah[a.bar]dat al-istiksh[a.bar]f is sufficient for rulings on various types of maintenance, as well as on caretaker wage (ujrat al-had[a.bar]na), suckling wage (ujrat al-rid[a.bar]', and rent. (12)

    Other relevant references appear in Sudanese judicial practice. In the early 1990s, a district court ordered a man to pay waiting-period maintenance to his ex-wife, as well as to support their children. The man appealed the decision on the ground that the wife's witnesses had not sworn an oath, as required, claiming that the decision should therefore be annulled. The Sudanese Supreme Court denied the appeal on the ground that a testimony concerning the appropriate level of maintenance does not require the witnesses to swear an oath, because it is shah[a.bar]dat al-istiksh[a.bar]f, which is not binding on the court; the court is entitled to accept the evaluation of the witnesses (who are defined by the court document as "the evaluation witnesses," shuh[u.bar]d al-taqd[i.bar]r, or "the witnesses of knowledge," shuh[u.bar]d al-khibra) or to disregard it. Also, the court is entitled, if circumstances require, to refrain from hearing witnesses altogether and to rely instead on administrative data. (13)

    In a second Sudanese case, from the first half of the 1980s, the deceased's brother was appointed by the Shari'a court guardian over the deceased's two minor daughters. The widow (the mother of the deceased's daughters) appealed the decision on the ground that the court had not conducted an administrative investigation regarding the suitability of the deceased's brother to serve as guardian. She also claimed that the evidence presented to the court as to his suitability to be guardian, i.e., the testimony of two witnesses who testified about the death and were asked by the judge to give their opinion as to who might serve as guardian, was shah[a.bar]dat al-istiksh[a.bar]f, which may be relied upon solely in maintenance cases (al-bayyina allat[i.bar] q[a.bar]mat 'al[a.bar] liy[a.bar]qatihi li-l-wis[a.bar]ya innam[a.bar] hiya shah[a.bar]dat istiksh[a.bar]f wa-shah[a.bar]dat al-istiksh[a.bar]f l[a.bar] yu'mal bih[a.bar] ill[a.bar] ft l-nafaq[a.bar]t). The court did not address this claim. (14)

    In its definition of shah[a.bar]dat al-istiksh[a.bar]f as a report provided to the court by an informant in maintenance cases, it seems that the Egyptian 1931 Law was the source of inspiration for the Jordanian law, for the Sudanese legislation and judicial practice, and for Qadi N[a.bar]t[u.bar]r's position in his second circular. (It should be noted that in all four cases--the Egyptian, Jordanian, Sudanese, and Israeli--the Hanaf[i.bar] school is the official one.) From where did the Egyptian law get the term shah[a.bar]dat al-istiksh[a.bar]f and its connection to the reporting of informants?

    Turning to the past, we notice that Ottoman legislation of the Tanz[i.bar]m[a.bar]t period refers to the reliance on informants for evaluating the appropriate level of maintenance. Article 31 of the 1917 Law on the Principles of Shar'[i.bar] Adjudication (Q[a.bar]n[u.bar]n Ust[u.bar]l' al-Muh[a.bar]kam[a.bar]t al-Shar'iyya) stipulates that in disputes that require the reporting of informants, such as determination of the level of maintenance and proper rent, if there is a disagreement between the litigants, or if the defendant is absent, the court will immediately appoint informants on its behalf (idh[a.bar] lam yattafiq al-targf[a.bar]n f[i.bar] l-khusum[a.bar]t al-muht[a.bar]ja il[a.bar] ikhb[a.bar]r ahl...

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