• 1 Research to write this paper has been carried out while on a sixth months stay at the Institute of (...)

1This paper deals with judicial pluralism under what are known as the “Berber empires”, that is to say, the Almoravids and the Almohads who ruled over north Africa and al‑Andalus for more than a century and a half (last quarter of the 11th century C.E.‑second half of the 13th century C.E.)1. Notwithstanding their disparate ethnic base — the former having drawn primarily on Ṣanhāǧa and the latter on Maṣmūda Berbers — and their conflicting legal approaches on such questions as adherence to a given legal school, taqlīd (unquestioned following of earlier authorities) and iḫtilāf (juristic disagreement), both dynasties deserve to be considered jointly in a study of the judiciary in the pre-modern Islamic West: The Almoravids for having set a scenario apt for the Mālikī fuqahā’ to take advantage of the new rulers’ support of their school, in order to improve the position of qāḍī‑s with respect to governmental judges. Conversely, qāḍī‑s are believed to have been deprived of a significant part of their powers and independence as a consequence of Almohad legal and judicial policy. In the pre-modern Islamic West, with the exception of Ifrīqiya, both periods thus appear to mark a peak and a bottom respectively in Mālikī‑s’ position with political power, and therefore, in the balance of forces between qāḍī‑s and governmental judges, given the general tendency of legal scholars to emphasize religious justice as represented by and focused on the qāḍī, to the detriment of competing jurisdictions. In fact, taken at face value, the above representation contains a core of truth, yet it may be deceitful in a number of points that will be reviewed below.

• 2 See Müller 2000b, p. 186.
• 3 See Serrano Ruano 2011, p. 218.

3In al‑Andalus — as elsewhere — qāḍī‑s had to share the dispensation of justice with other judges who were not a priori bound to apply the sharīʿa as qāḍī‑s were, and whose proceedings the ruler retained the capacity to interfere in at any moment. Rulers appointed or dismissed them all at will. Yet in the actual performance of their function and at least in theory, qāḍī‑s, unlike governmental magistrates, were independent from political interference.2 Apart from the ruler, provincial governors (wulāt al‑kuwar) or local chieftains (e.g. qā’id al‑balda) were, at times, endowed with the capacity to appoint qāḍī‑s or issue judgments themselves.3

• 4 Tyan 1960, p. 185‑191.
• 5 Emphasis added.
• 6 The political relevance of the ḫuṭba is well known given that it was issued in the name of the rule (...)
• 7 See Serrano Ruano 2011, p. 211‑213 and the sources and bibliography cited there. Émile Tyan (loc. c (...)

4The Andalusi chief qāḍī differed from his oriental counterpart in that he used to be given the title of qāḍī l‑ǧamāʿa. As pointed out by Émile Tyan,4 the expression ‘qāḍī l‑ǧamāʿa’ defines chief qāḍīship in the sense that the legal and religious authority of its bearer might extend5 beyond the limits of his territorial jurisdiction and reach all the Muslim subjects within the territory governed by the designating authority. Another sign of the qāḍī l‑ǧamāʿa’s pre-eminence over provincial qāḍī‑s and other magistrates was his occupying the position of judge for the capital in addition to his special relation with the ruler, for whom he also used to perform as advisor and ambassador. Apart from imparting justice within his territorial jurisdiction, the qāḍī l‑ǧamāʿa was also in charge of adjudicating legal matters of political relevance. Yet the most distinctive trait of the Andalusi chief qāḍī was the frequent combination of judicial activity with leading of the Friday prayer and pronunciation of the ḫuṭba in the capital’s main mosque.6 Moreover, the qāḍī l‑ǧamāʿa took part in the ceremony of swearing allegiance to the new ruler (bayʿa) as a witness to the ensuing document in his role as the highest judicial authority in the land. Due to his ties with the main mosque, the qāḍī l‑ǧamāʿa was also in charge of its administration and the management of its properties and rents. However, he was not inherently entitled to appoint provincial qāḍī‑s.7

• 8 See Müller 2000a, p. 60.

5Another special characteristic of the Andalusi judicial organization prior to the 12th century C.E. was the use of the term ṣāḥib al‑sūq to refer to the market inspector instead of that of muḥtaṣib employed in the rest of the Islamic world.8

• 9 The history of al‑Andalus can be roughly divided into the following political periods: emiral (2th/ (...)
• 10 For actual examples see Serrano Ruano 2011, p. 213‑214.

6Both the composition of the judiciary and the distribution of competences among its members experienced considerable variation along the lines of the political development of al‑Andalus9 and, more specifically, of the rulers’ need to draw legitimation from the religious scholars. Competences were determined by the appointing authority and were thus inherent to the nominee’s person and not to the definition of his judicial title as might be found in Islamic legal literature. Consequently, there were chief qāḍī‑s entitled by the ruler to nominate “regular” qāḍī‑s, deputies (nuwwāb) and non-qāḍī judges (ḥukkām) within or outside their own territorial jurisdiction, while others were not entitled to do so. Additionally, “regular” qāḍī‑s might nominate other qāḍī‑s as well.10

• 11 Under the Almoravids, Cordoba kept its central religious and intellectual position while Granada se (...)
• 12 See Lagardère 1986, p. 138.

7We can thus imagine Andalusi qāḍī‑s standing in hierarchical superiority to the magistrates — whether nuwwāb, ḥukkām or quḍāt — the ruler empowered them to designate. However, as far as the qāḍī l‑ǧamāʿa is concerned, leaving aside his personal religious and scholarly authority, he did not stand at the head of any centralized judicial body made up of provincial qāḍī‑s as has already been pointed out. Moreover, during the Taifa period and as a consequence of the fragmentation of Umayyad central authority, there was more than one chief qāḍī in office simultaneously. To further complicate analysis, some of the latter magistrates were given the title of qāḍī l‑quḍāt. The Almoravids maintained this denomination for qāḍī‑s in large territorial and administrative units, while one qāḍī l‑ǧamāʿa was appointed for Cordoba,11 and another for the capital, Marrakech. Whatever the relationship between all these high rank judges, the Almoravids did not institute a magistrate to cover the whole of their empire, ranking higher than the rest.12

• 13 This is at least what can be inferred from the appointment of Ibn Rušd al‑Ḥafīd (i.e. Averroes) as (...)
• 14 See Benouis 2005, p. 518 who limits the elimination of this competence to the Maġrib.
• 15 See Müller 2000b, p. 181‑182. Also see García Sanjuán 2007, p. 348 (quoting Ibn Rušd al‑Ǧadd) and p (...)
• 16 See Calero 2000, p. 71, 406. Yet Nasrid Mālikī‑s went on stressing the need for the supervisor to s (...)

8Under the Almohads, Cordoba appears to have kept its status as seat of supreme qāḍīship in al‑Andalus along with the capital, Marrakech.13 It seems that Almohad authorities interfered in the qāḍī‑s’ competence to supervise the administration of public endowments (aḥbās or awqāf)14 — or to appoint an inspector to perform this task in their name. This practice was at odds with previous judicial custom15 and did not disappear completely with the Nasrid restoration of Mālikism as official legal doctrine.16

• 17 See Calero 2000, p. 375, 381.

9The seat of the qāḍī l‑ǧamāʿa during the Nasrid period moved to the new capital, Granada. He was occasionally invested with the authority to appoint provincial qāḍī‑s or to inspect the activity of judges and jurists.17

• 18 See Müller 1999, p. 203‑362.
• 19 Müller 1999, p. 103‑174 and 333‑362.
• 20 The English translation given for these titles follows Müller’s proposal on how to understand their (...)

10Together with qāḍī‑s and their deputies (nuwwāb, sing. nā’ib), during the caliphal and the taifa periods (i.e. 10th and 11th centuries C.E.), a series of state agents enjoyed judicial powers, e.g. the market inspector (sāḥib al‑sūq or sāḥib al‑šurṭa wa‑l‑sūq), the magistrate in charge of the city (sāḥib al‑madīna), the magistrate in charge of repairing certain “injustices” (sāḥib al‑maẓālim), the magistrate to whom “returned cases”, i.e. those that could not be adjudicated in first instance, were sent (sāḥib al‑radd) and the chief of police (sāḥib al‑šurṭa). Unravelling how judicial competences were distributed among them is extremely complicated.18 Drawing on a collection of actual legal cases from the 5th/11th century, Christian Müller19 has shown that the administration of penal justice, for example, was not the exclusive domain of the sāḥib al‑šurṭa, but shared between (1) the sāḥib al‑madīna, who dealt with capital crime within the city, (2) the sāḥib al‑sūq, to whom the repression of crimes and torts in the space under his jurisdiction was also entrusted, (3) the qāḍī and (4) the local governor. The radd and maẓālim jurisdictions were not instances of judicial review.20 Most importantly, governmental magistrates and non-qāḍī judges followed the rules of fiqh, although less literally than qāḍī‑s did, and used to consult with muftī‑s and legal experts before issuing their judgments.

• 21 See al‑Bāǧī, Kitāb al‑muntaqà, VII, p. 217.

11The practice of breaking with the unicity of qāḍīship—i.e. appointing more than one qāḍī for a single jurisdiction, so that the proceedings involved in a litigation as well as the final judgment had to be approved by all of them — does not seem to have been widespread in al‑Andalus. However, one such case is reported in the Šarq al‑Andalus by al‑Bāǧī (d. 474/1081) who, as could be expected, expresses his frontal opposition to the idea.21

• 22 Further details in Serrano Ruano 2011, p. 215.
• 23 See Bosch Vilá 1988, p. 130; Calero 2000, p. 410.
• 24 See El Hour 2000‑2001, p. 55.
• 25 Müller 2000a, p. 76.

12In the Arabic sources that cover the history of the Almoravid period, references to the above mentioned governmental judges become only sporadical.22 The post of sāḥib al‑šurṭa disappears almost completely, his tasks being assigned to the sāḥib al‑madīna.23 A singular exception to the former remark were judges bearing the title of ṣāḥib al‑aḥkām whose number had increased greatly by the second quarter of the 6th/12th century,24 when Almoravid power started to grow weak. The functions of the sāḥib al‑aḥkām have not been fully clarified. According to Christian Müller,25 some of the cases heard by this magistrate in 5th/11th century Cordoba were closely connected to the markets. Their role in the Almoravid period will be dealt with later in more detail.

• 26 See one example in El Aalaoui and Buresi 2005, p. 484, note 13 and Carmona 2004, p. 460.
• 27 See Serrano Ruano 2011, p. 217. Almohad judicial policy will be examined in more detail in part 3 b (...)

13The post survived well into the Almohad period26 during which there are mentions of the šurṭa as well, though some of them suggest that the agents of this body performed as personal guard of the caliphs.27

• 28 See Calero 2000, p. 375, 381, 411‑413.

14Governmental magistrates (e.g. the ḥākim — applied to a non-qāḍī judge —, the ṣāḥib al‑aḥkām, the ṣāḥib al‑radd and the ṣāḥib al‑maẓālim) are absent from the sources relevant for study of the Nasrid period, with the exception of the ṣāḥib al‑sūq and the ṣāḥib al‑šurta, who at the time appear to have performed functions similar to those assumed by their predecessors of the caliphal and taifa periods.28

• 29 See Fierro 1997, p. 437‑442.
• 30 See Fierro 2007, p. 116‑117.
• 31 See Serrano Ruano 2011, p. 219.

15The commitment to implement the sharīʿa according to the school of Mālik — articulated around the need to abolish unlawful taxes and un-Islamic practices, and to wage ǧihād against the Christians to the north of the Iberian peninsula — was a catalyst for the emergence and expansion of the Almoravid movement coupled with formal allegiance to the ʿAbbāsid caliph,29 but did not suffice to convince the Andalusi population to accept dominance by an alien power.30 The support of the Mālikī fuqahā’ was thus essential in order to overcome this obstacle, but it also exposed the conquerors’ extreme dependence on them to fill their gaps in religious and political legitimation. This is an opportunity the jurists were not ready to miss. In fact at that time they are said to have reached an unprecedented degree of social, economic and political power, especially under the emir ʿAlī b. Yūsuf b. Tāšufīn (r. 500/1106 538/1143).31

• 32 See al‑Wanšarīsī, al‑Miʿyār, XI, p. 132, quoted by García Sanjuán 2007, p. 38.
• 33 The case of Ibn Rušd al‑Ǧadd who, while being chief qāḍī of Cordoba, appointed Muḥammad b. Aṣbaġ al (...)
• 34 Cf. Serrano Ruano 2011, p. 219.

16One of the reasons that may help explain the power and financial prosperity attributed to the Mālikī fuqahā’ of the period is the ruler’s assignment of the collection and subsequent delivery of certain taxes to particular qāḍī‑s, as did the first Almoravid emir, Yūsuf b. Tāšufīn with the qāḍī of Almería, Muḥammad b. Yaḥyā known as Ibn al‑Farrā’.32 In a similar vein, it would be reasonable to understand the above mentioned silence concerning the ṣāḥib al‑radd and the ṣāḥib al‑maẓālim in the sources that cover the period as an indication that their jurisdiction was transferred to qāḍī‑s. Indeed, this assumption is not contradicted by contemporary legal sources showing qāḍī‑s in action, especially in relation to fatwā collections. However, the qāḍī‑s’ involvement in matters that had previously been overseen by the radd and the maẓālim courts did not necessarily imply direct control over both jurisdictions or the right to appoint the competent magistrate.33 Rather, the radd and the maẓālim seem to have mostly reverted to the ruler in first instance who, in turn, used to entrust the petitions and complaints he received to one of his qāḍī‑s, but on a case by case basis, not as a general delegation of competences.34

• 35 See for example Ibn ʿIyāḍ, Maḏāhib al‑ḥukkām, p. 203‑205; Ibn Rušd al‑Ǧadd, Fatāwā, I, p. 631‑649 a (...)

17Another consequence of the collaboration between rulers and jurists is that posts in the Almoravid judicial administration were invariably occupied by the ʿulamā’, a correspondence that had formerly not always been guaranteed. There is also evidence attesting to the frequent inclusion of legal scholars in the political decision making process.35

• 36 Ibn ʿAbdūn, Sevilla.
• 37 See Ibn ʿIyāḍ, Maḏāhib al‑ḥukkām.
• 38 Cf. Serrano Ruano 2000a and Idem 2011, p. 219.
• 39 See Müller 2000a, p. 72‑73.
• 40 See Serrano Ruano 2000. As has been pointed out above, in the Nasrid period, the market inspector r (...)
• 41 See Müller 2000a, p. 72‑73.

18Furthermore, Almoravid qāḍī‑s appear to have performed competences that had been earlier assumed by the market inspector. Ibn ʿAbdūn’s (Seville, d. 530/1135) Kitāb al‑qaḍā’ wa‑l‑ḥisba,36 joining together both functions in a title for the first time, seems to have intended to provide doctrinal grounding to a process in which the authority to monitorize morals and proper conduct was extended beyond the realm of the market and primarily, but not exclusively, assigned to the qāḍī. Additional evidence of this tendency is provided by a collection of fatwā‑s issued in the Almoravid period and compiled subsequently, already in the Almohad period.37 Here, a chapter on nafy al‑ḍarar covering the qāḍī‑s’ obligation to avoid “harm” and to safeguard public interest (maṣlaḥa), is included.38 This refers not only to direct exercise of these competences by the qāḍī but to the capacity to appoint the magistrate in charge and to supervise his proceedings. Two additional facts appear to be connected, on the one hand, with the emphasis placed on morals and public conduct imposed by the Almoravid movement with its call for a return to the fundamental principles of the sacred law and, on the other, with the “qāḍī-alization” of the inspection of morals and proper conduct. Specifically, from the second half of the 5th/11th century, the term ḥisba gradually replaced that of sūq in the title of the market inspector.39 By the same time, we can observe the emergence of the figure of the muḥtasib referring either to the market inspector previously called ṣāḥib al‑sūq,40 to an official appointed by the qāḍī, or to a volunteer who reports to the judge about transgressions against morals, proper behaviour and public interest. Further, caution is recommended when using the terms ḥisba and iḥtisāb interchangeably, since the latter did not necessarily refer to the supervision of the markets and was not restricted to a specific judicial authority.41 Yet how these — in all likelihood interconnected — factors affected judicial practice is not totally clear to me.

• 42 See Serrano Ruano 2011, p. 219, 229.
• 43 See Rodríguez Mediano 1997, p. 176‑179.

19Be that as it may, it is reasonable to conclude that Mālikī‑s’ support of the Almoravids translated into a reinforcement of qāḍīship. However, as I will show below, the tension between qāḍī‑s and non-qāḍī judges did not disappear. Instead, it was subtly cultivated by the Almoravid authorities in order to prevent qāḍī‑s from becoming too powerful to pose a challenge to the established political authority,42 once their strategy to prevent the local elites from monopolizing the post in the main urban centers of al‑Andalus by assigning the position to Maġribis or to non-locals, proved unsuccessful.43

• 44 See actual cases in Serrano Ruano 2011, p. 215‑216.

20As we saw above, the post of ṣāḥib al‑aḥkām is a particular distinguishing characteristic of the Almoravid judicial administration from both a quantitative44 and, as we shall observe, a qualitative point of view.

• 45 See El Hour 2000‑2001, p. 51‑53. Cf. Carmona 2004, p. 460.
• 46 See El Hour 2000‑2001, p. 60.
• 47 Ibn ʿAbdūn , Sevilla, p. 52‑53.

21Where the duties of the ṣāḥib al‑aḥkām are concerned, the assumption that he was in charge of implementing the judgements issued by qāḍī‑s is not backed by any source.45 A fatwā issued by Ibn Rušd al‑Ǧadd indicates that a ṣāḥib al‑aḥkām appointed by a qāḍī might perform as an arbiter to solve neighbourhood disputes and marital conflicts.46 These tasks match those that Ibn ʿAbdūn adviced the qāḍī‑s to entrust to the ḥākim. In his already mentioned treatise, he remarked that qāḍī‑s should designate a ḥākim to help them handle legal cases of secondary relevance that arose among the lower classes. Ḥukkām, according to Ibn ʿAbdūn,47 should perform as arbiters rather than as real judges and by no means should they be allowed either to oversee the awqāf funds and the properties of orphans or to intervene with regard to state agents and matters of political relevance. However, the emphasis placed on the ḥākim’s complete subordination to the qāḍī should be considered as a reflection of the ideal judicial administration that Ibn ʿAbdūn sought to promote, rather than a faithful description of actual practice.

• 48 See actual cases in Serrano Ruano 2011, p. 215.
• 49 See El Hour 2000‑2001, p. 59.
• 50 El Hour 2000‑2001.
• 51 See El Hour 2000‑2001, p. 55‑64.

22They certainly might be appointed by a qāḍī,48 and that included the capacity to supervise their proceedings and to remove them if the qāḍī saw fit.49 However, according to some model forms of appointment dating from the Almoravid period and studied by Rachid El Hour,50 a non-qāḍī judge such as the ṣāḥib al‑aḥkām might be appointed directly by the emir, or by the local governor. In addition, some of these documents testify to the relevance of this function which is described as rutba ʿāliyya.51 The very fact that the Almoravid chancellery had to produce such special nomination documents demonstrates the ṣāḥib al‑aḥkām’s importance for the Almoravid judicial administration and the relative novelty of the post.

• 52 El Hour 2000‑2001, p. 57‑59.
• 53 Müller 2000a, p. 67, 70.
• 54 El Hour 2000‑2001, p. 57‑59.

23The documents analyzed by El Hour52 help to further specify the tasks that used to be assigned to these magistrates, namely the fight against torts and corruption. This adds consistency to Christian Müller’s remarks that it is difficult to distinguish between the offices of ḥākim and of muḥtasib in Andalusi biographical literature and that from the end of the 5th/11th through the 6th/12th century, the term ḥākim was increasingly applied to the same people that were called ṣāḥib al‑aḥkām.53 The ṣāḥib al‑aḥkām studied by El Hour54 was entitled to issue judgments and to implement punishments concerning matters under his jurisdiction. In one of the documents, however, the nominee is instructed to submit serious offences to the qāḍī but also to the ṣāḥib al‑madīna. The Almoravid ṣāḥib al‑aḥkām might also combine his functions with the ḫuṭba.

• 55 See Serrano Ruano 2011, p. 215‑216.

24As to their territorial jurisdiction, the ḥākim or ṣāḥib al‑aḥkām might be attached to a capital in which there was a qāḍī as well, to some districts under a qāḍī’s jurisdiction, or to a town or area independent from a qāḍī’s jurisdiction.55

• 56 See El Hour 2000‑2001, p. 62‑64.

25Last, but not least, practically all the scholars who performed as ṣāḥib al‑aḥkām in al‑Andalus and the Maġrib during the Almoravid period were Andalusis.56

• 57 See Ibn ʿIyāḍ, Maḏāhib al‑ḥukkām, p. 35‑37; 178‑180.
• 58 The question can be first documented in the 5th/11th century, during the taifa period. See Ibn Sahl (...)
• 59 See Serrano Ruano 2011, p. 218‑219.

26Some fatwā‑s from the Almoravid period show that legal scholars explicitly challenged the practice of entrusting non-qāḍī judges with functions that they viewed as exclusive to qāḍī‑s. Indeed, they also voiced their reluctance to accept judgments issued by provincial governors and local chieftains themselves.57 In view of the support lent to the ruling dynasty, the Mālikī jurists of Almoravid al‑Andalus had sound reasons to believe that posing the old question58 of the qāḍī’s position on the judicial scale and the actual reach of his competences might now succeed in shaping these more in accordance with the theoretical definitions of qāḍīship in the sense of being more stable and less subject to political ups and downs.59

• 60 Serrano Ruano 2011, p. 221‑228.

27It is true that qāḍī‑s and non-qāḍī judges were recruited from among the same pool of legal scholars. In fact, the performance of governmental magistracies not only represented a lucrative way of life but enhanced eligibility for qāḍīship, which appeared to represent the summit in the career of a legal scholar. However, once appointed, ḥukkām tried to act as independently as they could from other judicial authorities, including qāḍī‑s. The Almoravids’ designation of these magistrates then emerges as a sophisticated strategy to divest power from the qāḍī‑s through taking some competences away from them and stirring division among those who hoped to fill the post some day. At the same time, by offering governmental magistracies to the fuqahā’ and not to lay state officials, the Almoravids implemented the cornerstone postulate of their commitment to fulfil the sharīʿa, i.e. putting the administration of justice in the hands of the religious scholars.60

• 61 See above, note 35.

28The degree of independence initially won by the jurists thanks to the Almoravids’ apparent less restrictive conception of the qāḍī‑s’ competences therefore had to be sought through more subtle means, shifting the focus to the need for a proper application of the sacred law. Fatwā‑s then became an effective means to sanction sensitive political decisions61 as much as a handy device for questioning Almoravid judicial policy by tightening the jurists’ hold on the rulers’ compromise to fulfil the sharīʿa and, by extension, on the scope and limits of executive power. Commentaries in which earlier Mālikī doctrine was clarified, reviewed, completed and adapted to new methodological requirements also figure prominently in that regard.

• 62 The fatwā is in fact an illustrative example of direct assumption of the maẓālim justice by the Alm (...)
• 63 See Ibn Rušd al‑Ǧadd, Fatāwā, I, p. 631‑649. The full contents of the fatwā as well as the historic (...)
• 64 Though not yet with the aim of protecting Mālikism against the contingency of another legal school (...)

29A fatwā issued by Ibn Rušd al‑Ǧadd — presumably at the request of the second Almoravid emir ʿAlī b. Yūsuf b. Tāšufīn62 — and concerning misuse of public property, confiscation or usurpation of private property and unlawful tax levying, gave the muftī the opportunity to put forward an articulate body of legal opinions relevant to corruption and abuse of authority by state agents and, a fortiori, by the ruler himself.63 The jurist had to endure serious difficulties as a consequence of the uncompromising position taken in his fatwā. Yet its publication allowed him to go a significant step further in his endeavour to provide Mālikī legal doctrine with a constitutional definition of sharīʿa aimed at raising the sharīʿa to the status of a supreme principle to both claim and secure justice and good governance.64

• 65 I summarize here Serrano Ruano 2011, p. 218‑229 where Ibn Rušd al‑Ǧadd’s doctrine concerning stonin (...)
• 66 See for example Ibn ʿIyāḍ, Maḏāhib al‑ḥukkām, p. 75‑77 and Serrano Ruano 2006a, p. 477.

30At the same time that the obligation for the ruler to abide by the sharīʿa was being established on sounder grounds, special emphasis was put on the law concerning statutory crimes or ḥudūd, given their consideration as markers of sharīʿa — compliant governments, as well as their complex procedure, which could be handled aptly only by experts. The level of mastery of the Mālikī law on ḥudūd — with its intricacies, exceptions and controversies — that was required to adjudicate relevant cases was only indeed guaranteed by the most learned jurists, the ideal candidates to perform qāḍīship in the ideal Islamic state the Almoravids had promised to bring into being. Therefore, given their presumed lack of the necessary skills, the fact that ḥudūd punishments be established on the ground of judgments pronounced by governmental judges, state agents or the ruler himself, instead of the qāḍī (or the chief qāḍī when the death of the culprit was involved) was hinted at as a disqualification of Almoravid religious legitimation. Some fatwā‑s suggest that the authorities grasped the message quite well and tried to act accordingly.66 However, if they actually did, it was not at the expense of reducing the number of governmental judges, who existed in large numbers, as has already been pointed out, when the Almoravid state started to disintegrate.

• 67 Yanagihashi 1996, p. 41.

31According to Hiroyuki Yanagihashi67 Muslim jurists rarely dealt with the question of the judicial powers of the sulṭān and the nature of the maẓālim justice before the emergence of Māwardī’s (d. 450/1058) al‑Aḥkām al‑sulṭāniyya. To explain this Yanagihashi suggests that they took for granted that fiqh was the only legal system in force and that the administration of justice to Muslims had to lie in the hands of qāḍī‑s in their capacity as fiqh experts.

• 68 See Yanagihashi 1996, p. 45.
• 69 See Yanagihashi 1996, p. 64.
• 70 See Yanagihashi 1996, p. 65, 67‑78.

32As to the early Mālikī‑s in particular, they stand out from the rest for specifiying that the sulṭān takes over from the qāḍī‑s only when the strict rules of fiqh to which the latter are bound prevent the satisfactory resolution of a case.68 This admission that the sulṭān is less constrained by the rules of fiqh than qāḍī‑s, does not mean that this figure is authorized to dispense justice as he wishes, however.69 Ibn al‑Qāsim (d. 191/806) already held in favor of overturning a ruler’s judgment when it contradicts the jurists’ unanimous opinion and by the middle of the 3rd/9th century, the Mālikī‑s had elaborated a discernable theory of judicial review which included the ruler and sanctioned jurists’ right to reverse his judgments under certain conditions even if the ruler is a muǧtahid, and all the more so when he is not.70

• 71 E.g. Ibn Ḥabīb, Wāḍiḥa, p. 65 Ar./77 Trans. Apud. garcía sanjuán 2007 p. 354, note 40.
• 72 See Yanagihashi 1996, p. 54.
• 73 See above, note 57 and Ibn ʿAbdūn, Sevilla, p. 52‑53.

33From the 10th century C.E. onwards, a function primarily assigned to the ruler such as the protection of the rights of those who have neither parents nor relatives as well as of absentees with no appointed agent,71 was gradually placed under the responsibility of the qāḍī72 and went on to become widespread practice in the Almoravid period, qāḍīship being defined then as the exclusive frame within which this authority could be exerted to the exclusion of non-qāḍī judges.73

• 74 The question had already been introduced by Ibn Abī Zamanīn (d. 399/1008), drawing from Ibn Ḥabīb ( (...)
• 75 See Yanagihashi 1996, p. 65‑66, 70.
• 76 Cf. Yanagihashi 1996, p. 70‑71.

34Ibn ʿAbd al‑Barr (d. 463/1070) contributed a more sophisticated notion of delegation of competences (tafwīḍ) as an essential prerequisite for the validity of a judgment,74 while al‑Bāǧī identified the sulṭān with someone who has received a delegation of judicial power from a caliph (imām), or from a qāḍī!75 Listing the different kinds of state agents endowed with judicial powers, Ibn Sahl (d. 486/1093) places the qāḍī above them and hints at the right to supervise and review their judgments as intrinsic to his office.76

• 77 See Yanagihashi 1996, p. 54‑59.
• 78 See Serrano Ruano 2000a; Idem 2000b, p. 204‑205, 210, 229, 231‑232. Also see Yanagihashi 1996, p. 5 (...)
• 79 See Serrano Ruano 2006a, p. 475‑476, 480‑491.

3511th century C.E. jurists such as Ibn ʿAbd al‑Barr were also less reluctant to accept that the qāḍī might exert a certain degree of discretion in order to circumvent the strictures of fiqh and find a practical and satisfactory solution to a case — and hence avoid the need to refer the case to the sulṭān — than earlier Mālikī‑s.77 Indeed the collection of fatwā‑s issued or requested by Qāḍī ʿIyāḍ portrays Almoravid qāḍī‑s and muftī‑s implementing principles including istiḥṣān, ḍarūra, the avoidance of the bigger of two harms, public interest and custom to justify departure from the established fiqh ruling, without allowing for the assumption that it might be necessary to refer the case in hand to the ruler or to a governmental judge.78 Regarding penal justice, a realm traditionally under the jurisdiction of the sulṭān, the difficulty of proving ḥadd crimes, on the one hand, and the need to prevent impunity, on the other, did not necessarily exclude Almoravid qāḍī‑s from addressing delinquency and other transgressions against the social and the political order. The possibility that they may establish taʿzīr and discretionary punishments (adab, ta’dīb) instead of statutory sanctions on the grounds of circumstantial evidence and suspicion actually appears to be taken for granted and not subject to discussion.79 What was open to debate was rather the level of suspicion that was necessary to trigger punishment and the kinds of measures of punishment that were to be applied to varying levels of suspicion.

• 80 The fact that he and Qāḍī ʿIyāḍ are so prominent in the Mālikī reaction in the 12th century C.E. to (...)
• 81 See Yanagihashi 1996, p. 44, drawing from Ibn Rušd’s Bayān, VI, p. 26.
• 82 See Yanagihashi 1996, p. 68.
• 83 See Ibn ʿIyāḍ, Maḏāhib al‑ḥukkām, p. 35.

36Ibn Rušd al‑Ǧadd80sulṭān as “anyone who can issue a judgment or a decision to settle disputes between people”. In addition, he included the qāḍī in the category of the sulṭān, contrary to earlier Mālikī‑s who, in Yanagihashi’s view, used to understand the term in a narrow sense, that is to say, as exclusive to the ruler. Also, Ibn Rušd took care to specify that certain categories of state agents such as guards are not covered by the appellation.81 Furthermore, Ibn Rušd makes the point that an authoritative jurist may intervene in the proceedings of a ḥākim or any other non-qāḍī judge, e.g. sending him a fatwā with instructions on how to proceed, even if the latter has not asked for the muftī’s advice.82 In what seems a common strategy to raise the status of the qāḍī by creating some ambiguity between the understanding of his authority and that of a sulṭān, his disciple Qāḍī ʿIyāḍ b. Musā goes even further. He applies the term imām both to a political authority entitled to appoint judges and to one who is not entitled to do so; in the execution of testamentary wills, the appointment of a legal guardian, the declaration that a child has reached the age of discretion, disqualification, the distribution of the properties of orphans and guardianship of their interests, as well as of absentees, the sole prerrogative lies with the qāḍī‑s (al‑quḍāt ḫāṣṣatan) to the exclusion of governmental judges, regardless or not of whether the latter have been appointed by an imām authorized to appoint judges (wa‑in kanū muqaddamīn min qibal al‑a’imma wa‑ammā man lam yakun muqaddaman min imām wa‑huwa fī ṭāʿat imām ġayr mutaʿaḏḏir taqdīma‑hu fa‑lā yaǧūz la‑hu al‑ḥukm fī šay’ illā mā tarāḍā bi‑hi al‑ḫaṣmān bayna yaday‑hi wa‑ḥakkamā‑hu ʿalay‑hi mā lam yarǧaʿā qabla nufūḏ ḥukmi‑hi…). The same applies to qāḍī‑s appointed by provincial governors lacking the relevant authorization and whose designation is not ratified by the highest political authority: they can perform only as arbiters as long as the parties do not reject their decision before it is executed.83

• 84 Carmona 2000.
• 85 Ibn Rušd al‑Ǧadd, al‑Muqaddamāt al‑mumahhadāt, II, p. 258‑259.
• 86 See Carmona 2000, p. 147‑151, 155.
• 87 Carmona 2000, p. 147‑151, 155.
• 88 I refer to Ibn Rušd’s Muqaddamāt, III, 422‑424 where the harsh consequences of the doctrine against (...)
• 89 Appointment being the ruler’s prerogative and responsability.

37In his article about Mālikī doctrine regarding the conditions for performing qāḍīship, Alfonso Carmona84 pays special attention to what appears to be an original contribution to the subject made by Ibn Rušd al‑Ǧadd in his commentary to Saḥnūn’s Mudawwana known as al‑Muqaddamāt.85 Namely, he introduced a tripartite division between (a) the requisites that are essential for the validity of the nomination, (b) those that are essential to perform the post including integrity (ʿadāla) among others, and (c) those which, if absent, would lead to a recommendation for removal. According to Ibn Rušd, a qāḍī who proves not to be just, must be removed from office by the authority who appointed him, but the judgments he may have pronounced prior to his dismissal must not be cancelled unless they are obviously wrong or unjust. However, in a fatwā pressumably issued before writing the afore-mentioned commentary, our jurist had held in favor of dismissing a qāḍī who has committed usurpation and the illicit appropiation of others’ properties along with cancelling his judgments.86 To explain this apparent lack of consistency on the part of Ibn Rušd, Carmona87 suggests that he may have retracted his former position in consideration of the fact that the systematic cancellation of the judgments of unjust qāḍī‑s would be detrimental for the parties involved and bring about juridical insecurity. Indeed, if Carmona’s assumption is right, it would not be the first or the only occasion on which Ibn Rušd resorted to his Muqaddamāt to retract or nuance an opinion issued previously.88 Yet, the retraction here looks double edged. Certainly, a partial surrender of the ideal of justice promoted by the sacred law was entailed. However, agreement to authorizing the judgments issued by a qāḍī prior to being declared unworthy of his dignity only emphasizes the distinction between appointment89 and performance the jurist strived to establish, since sound appointment is the only legitimate argument for accepting verdicts pronounced under the above mentioned conditions. Furthermore, and inasmuch as accepting the decisions of unjust qāḍī‑s involves a forced and unpleasant negotiation with reality, an additional burden was put upon the ruler, the emphasis falling on his duty to select the appropriate candidate for qāḍīship and so prevent implementation of sharīʿa in the territory under his control — which he was obliged to guarantee — from being compromised.

• 90 See Carmona 2000, p. 150.

38A recommendation that the qāḍī be a native to his place of appointment was also introduced by Ibn Rušd al‑Ǧadd.90 Given that this specific item is missing from earlier Andalusī adab al‑qāḍī manuals, one migh speculate that Ibn Rušd was trying to react towards the afore-mentioned Almoravid attempts to appoint non-locals to the post.

• 91 See Ibn Rušd al‑Ǧadd, Muqaddamāt, II, p. 258 quoted by Carmona 2000, p. 148.
• 92 Cf. Carmona 2000, p. 152 quoting ʿIyāḍ’s own commentary to the Mudawwana, entitled al‑Tanbīhāt and (...)
• 93 Quoted by Carmona 2000, p. 153‑154.

39Likewise, Bāǧī’s concern for qāḍīal plurality is echoed by Ibn Rušd al‑Ǧadd, whose scholarly training and initiation in the legal profession elapsed when Cordoba was still a taifa-state, for he includes the condition of being single (wāḥid) among the essential conditions for the validity of a qāḍī’s appointment.91 In the times of his disciple, ʿIyāḍ b. Mūsā, fear that the post of qāḍī might lose its traditional unitary configuration appears to be less urgent, for he classifies unicity as a second rank condition.92 Writing in the Almohad period, Averroes minimizes the possibility that more than one qāḍī be appointed for a single judicial seat and states that only Mālik was against this, while the other legal schools established limitations on plurality that in practice prevented the existence of collegial justice in Islam.93

• 94 See Fierro 1997, p. 459‑466; Idem, 1999. See also Carmona 1987‑1988, p. 121‑122, and note 14, and v (...)
• 95 See Ibn ʿIyāḍ, Maḏāhib al‑ḥukkām.
• 96 See Serrano Ruano 1999, specially p. 369.
• 97 I.e. al‑Saqaṭī’s Kitāb fī ādāb al‑ḥisba (see Chalmeta 1976a, 1967b and 1968).
• 98 I.e. al‑Ǧazīrī’s al‑Maqṣad al‑maḥmūd fī talḫīṣ al‑ʿuqūd; al‑Mattīṭī’s al‑Nihāya wa‑l‑tamām fī maʿri (...)
• 99 Namely Ibn Hišām al‑Azdī’s al‑Mufīd li‑l‑ḥukkām (see Carmona 1987‑1988) and Ibn al‑Munāṣif’s Tanbīh (...)
• 100 The earliest preserved copy of al‑Mattīṭī’s Nihāya dates from 718/1318 (see Aguirre 2009, p. 525) a (...)

40While the Mālikī school was awarded full official support by the Almoravids, Almohad authorities, in contrast, put the school’s methodology into question as well as its adherents’ monopoly over the judiciary. Mālikī‑s were then accused of focusing exclusively on applied law (furūʿ al‑fiqh) to the detriment of legal methodology (uṣūl al‑fiqh); of favoring taqlīd (unquestioned following of earlier authorities) over independent legal reasoning; and of indulging too much in the divergence of opinions (iḫtilāf). In line with this attitude, works on furūʿ al‑fiqh were banned and jurists were instructed to give advice and issue legal opinions and judgements only on the grounds of Coran, ḥadīth, iǧmā‘ and iǧtihād.94 As a result of this policy, and as a sign of its effectiveness, no fatwā collections from the Almohad period have been preserved. The only exception is Muḥammad b. ʿIyāḍ’s Maḏāhib al‑ḥukkām fī nawāzil al‑aḥkām.95 Certainly the core of the book are fatwā‑s issued in the Almoravid period by several jurists — including the author’s father, Qāḍī ʿIyāḍ b. Mūsā — but these used to be the object of the compiler’s commentaries which, in their turn, reflect how Almohad legal policy affected a convinced Mālikī committed to preserving the memory of his father, himself a totem of Maġribī Mālikism. That this work was considered politically incorrect is indicated by the fact that it was necessary to wait for the author’s grandson, qāḍī al‑ǧamāʿa of Granada for the first Nasrid sulṭān, to have it published, notwithstanding the advantageous position enjoyed by Muḥammad’s son, ʿIyāḍ b. Muḥammad b. ʿIyāḍ, in Almohad society.96 The Almohad prohibition concerning furūʿ al‑fiqh does not seem to have affected a series of ḥisba treatises,97 model šurūṭ collections98 and manuals for the instruction of qāḍī‑s99 either, although, here again, there is no certainty that these works were actually in circulation while the Almohads were in power.100

• 101 See Benouis 2005, El Aalaoui and Buresi 2005, p. 478, 484‑491 and Buresi and El Aalaoui 2013, p. 10 (...)

41Be that as it may, their number, variety and availability make it difficult to attribute the dearth of scholarship on legal practice and judicial organization in the Almohad period to the lack of relevant sources. The fact is that those who have dealt with these sources do not appear to have been interested in exploring the political and ideological context further in which to understand their contents. Our main reference to reconstruct Almohad judicial organization are three recent studies drawing on non-legal sources—e.g. biographical dictionaries, official historical narrative and, very specially, a series of actual documents from the Almohad chancellery among which are letters with instructions on how to administer justice and appointments of qāḍī‑s.101 Indeed, these studies allow for a significant improvement in our present knowledge of Almohads’ conception of qāḍīship.

• 102 This was the case of our al‑Mattīṭī, for example (see Aguirre 2009, p. 524). Ibn Hišām al‑Azdī, for (...)
• 103 El Aalaoui and Buresi 2005, p. 484, and note 12.
• 104 See El Aalaoui and Buresi 2005, p. 486, 488.
• 105 See El Aalaoui and Buresi 2005, p. 485.

42On these grounds it is possible to establish a primary characterization of Almohad qāḍīship around the emergence of the figure of the kātib-qāḍī or judge who combines the functions of both a religious judge and an agent of the Almohad bureaucratic administration. This post must be distinguished from the judicial secretary or kātib al‑qāḍī who, in turn, might perform as delegate of the qāḍī.102 The Almohad rulers, according to El Aalaoui and Buresi,103 had at their service a body of bureaucrats (kuttāb) specialized in legal, financial and creedal issues who outnumbered the kuttāb udabā’ or men of letters, experts in the norms of etiquette and rhymed prose who, for the most part, do not seem to have performed religio-legal functions. In fact religio-legal expertise is the most salient feature with which this new class of secretaries is described in the ṭabaqāt literature, the Almohad kuttāb having frequently performed as qāḍī, ṣāḥib al‑mawāriṯ, ṣāḥib al‑maẓālim, ʿāqid al‑šurūṭ.104 Unlike their Almoravid predecessors, the Almohad kuttāb mentioned in the biographical compendia dedicated to religious scholars, did not use to bear honorific titles (e.g. wazīr and ḏū l‑wizāratayn).105

• 106 El Aalaoui and Buresi 2005, p. 488‑489, 492‑499.
• 107 On this special class of scholars created by the Almohads see Fricaud 2005.
• 108 See Benouis 2005, p. 507.
• 109 See Fricaud 2005, p. 529.
• 110 As they are documented by Fricaud 2005, p. 532‑534.

43It seems clear, therefore, that the Almohads favored religio-legal training over belles-lettres and that, contrary to their predecessors, they entrusted qāḍī‑s and jurists with the function of secretary and vice versa. This practice, according to El Aalaoui and Buresi,106 talks of the flexibility of the Almohad administration and of its endeavour to organize qāḍīship into a formal body of state agents which also encompassed governmental judges and which belonged to a larger centralized bureaucratic structure with no precedent in the political history of the Far Maġrib. What the relationship between this group of kātib-qāḍī‑s and the ṭalaba or official scholars in charge of the propagation of Almohad ideology107 might have been is not clear to me. Some among the most important ṭalaba on the grounds of their proximity to the caliph (ṭalabat al‑ḥaḍar) performed as qāḍī‑s themselves,108 as did others among the “regulars”.109 In view of their occupations,110 it would be reasonable to conclude that, regardless of their different ranks, they all belonged to one and the same pool of experts in religio-legal sciences and that being an Almohad ṭālib did not exclude adherence to Mālikism.

• 111 See Benouis 2005, p. 506.
• 112 See El Aalaoui and Buresi 2005, p. 494, 497; Benouis 2005, p. 507; Fierro 2005, p. 912.
• 113 See Benouis 2005, p. 507. The third of these caliphs, Abū Yūsuf Yaʿqūb al‑Manṣūr ruled between 1184 (...)
• 114 See El-Hour 2007, p. 529.

44Another significant feature of Almohad judicial organization is the increase in the number of qaḍā’ seats that can be documented in the bio‑biographical literature when compared with those mentioned for the Almoravid period.111 As to the conception of the qāḍīal function, extant Almohad official letters confirm the obligation for qāḍī‑s but also for provincial governors to refrain from pronouncing death sentences, including those resulting from retaliation for a blood crime, and to report them to the caliph instead;112 these instructions are said to have been imposed on a rather constant basis under the three first Almohad caliphs.113 Yet, when the nephew of al‑Sulamī — a scholar from Fez who filled the post of qāḍī in his hometown as well as in Tlemcen, Agmat and Seville (d. 603/1207) — was accused of having raped a woman, it was the highest Almohad religious authority in Fez (ḥāfiẓ) who ordered his detention and had him beheaded the next day before morning prayer, giving his uncle no time to intervene in his favor.114

• 115 See Ibn ʿIyāḍ, Maḏāhib al‑ḥukkām, p. 75‑87. I confirm here a hypothesis already put forward in Serr (...)
• 116 See Carmona 1987‑1988, p. 124‑130.
• 117 See Ibn ʿIyāḍ, Maḏāhib al‑ḥukkām, p. 81.

45Regardless of the consistency with which the afore-mentioned directive may have been implemented, the implication was that not only death sentences imposed for the contravention of God’s rights (ḥadd) were considered public, but also retaliation for intentional killing, this being a private or individual claim when relatives of the deceased exist and are ready to secure their rights. This is probably the reason why a contemporary author like Muḥammad b. ʿIyāḍ inserts murder (qatl) cases in the chapter on ḥudūd or statutory sanctions instead of the chapter on bodily injures (ǧināyat) in his compilation of Almoravid fatwā‑s.115 The fact that apostasy and blasphemy receive no treatment in Ibn Hišām al‑Azdī’s Mufīd al‑ḥukkām116 might also indicate that the power to pronounce death sentences falls to caliphal authority. It is true that these subjects are also missing from al‑Bāǧī’s (d. 474/1081) adab al‑qāḍī treatise (Fuṣūl al‑aḥkām). However, according to Muḥammad b. ʿIyāḍ’s portray of Almoravid qāḍī‑s, these were competent at least to deal with blasphemy.117

• 118 See Fierro 1997, 463 quoting Ibn ʿIḏārī al‑Marrākušī; Idem 1999, 236; Cf. Benouis 2005, p. 506.

46The third Almohad caliph, Abū Yūsuf Yaʿqūb (r. 580/1184‑595/1199), is even said to have administered justice personally during some months.118 Yet it is unclear whether it was the caliph who pronounced the final judgment or asked one of his qāḍī‑s to proceed to adjudication proper. The above information may also refer generically to a specific judicial competence like the maẓālim. Elucidating these latter questions is important since if the answer to them were positive, the caliph’s judicial performance would scarcely constitute a novelty with respect to his Almoravid predecessors.

• 119 See El Aalaoui and Buresi 2005, p. 498.
• 120 See the case mentioned by Benouis 2005, p. 507. See also Ibn al‑Abbār, Takmila, ed. 1998, I, number (...)
• 121 For a parallel dynamics in the relationship among central power, local governors and qāḍī‑s in Iraq (...)

47The fact is that the centralization of judicial power implemented by the Almohads must have entailed a decrease in qāḍī‑s’ penal jurisdiction and hence, in their independence. Yet local representatives of power, as has already been mentioned, were also included in the prohibition against issuing death sentences let alone execute them. Moreover, the Almohads cancelled the niyāba or the general principle of the delegation of competences119 that the Almoravids had conferred on their governors. Conversely, some qāḍī‑s were entrusted with competences much wider than was usual such as the šurṭa combined with the ḥisba, along with the handling of murder cases — which in theory had become the exclusive prerogative of the caliph — or the distribution of the zakāt revenue raised by the tax collectors among the needy.120 To a certain degree, therefore, Almohad qāḍī‑s’ stronger dependence on central power might have been compensated by the autonomy that is likely to have resulted from the submission of the local aristocracies and local governors to this very same reinforced state authority.121

• 122 See El Aalaoui and Buresi 2005, p. 486; Benouis 2005, p. 518.
• 123 See El Aalaoui and Buresi 2005, p. 488; Chalmeta 1967a, p. 140 & Idem, 1967b, p. 360‑361; Ibn al‑Ab (...)
• 124 No doubt the publication of El-Mostafa Benouis’ dissertation on Le système juridico-judiciaire almo (...)

48Although they are far more numerous than those preserved from the Almoravid period, the extant Almohad official documents do not report cases of complaints addressed to the caliph concerning abuse and extra-limitation by state agents.122 Certainly the post of ṣāḥib al‑maẓālim seems to have reappeared in this period123 but given the present state of research and the lack of more conclusive data it would be premature to conclude that it was he who used to handle injustices and complaints on behalf of the caliph and that, being primarily addressed to him, traces of these complaints have been lost together with fatwā‑s and judicial records.124

• 125 According to the historian Ibn Saʿīd al‑Maghribī (d. 1275 or 1286), a ḥākim was the qāḍī of an impo (...)
• 126 See Benouis 2005, p. 508, note 10. This does not mean that all the functions were entrusted in all (...)
• 127 See Rodriguez Mediano 1997, p. 180, quoting Ibn al‑Abbār, Takmila, ed. 1887‑1889, p. 296.

49The preserved Almohad letters that deal with the appointment of qāḍī‑s identify the caliph as appointing authority and establish selection and nomination of professional witnesses and judicial secretaries, designation of the “qāḍī‑s” of small cities (musaddadīn),125 verification of judicial records and legal documents (ʿuqūd), the fulfilment of the principle of enjoining good and forbidding evil, and the fight against innovations and injustices, among the functions that were entrusted to qāḍī‑s.126 No letters of appointment of governmental or non-qāḍī judges are mentioned. On the other hand, and to judge by Ibn al‑Abbār’s biography of Muḥammad b. ʿAbd Allāh Ibn Ḥawṭ Allāh al‑Ḥāriṯī, some qāḍī‑s were entitled to appoint a ṣāḥib al‑aḥkām in their jurisdiction.127

• 128 In the specific case of the kātib-qāḍī‑s, the Andalusī provenance, while being the most frequent, w (...)
• 129 Normally on the other side of the Straits of Gibraltar. See Benouis 2005, p. 508‑509, 513.
• 130 See Benouis 2005, p. 514.

50As had happened in the Almoravid period, the majority of those who performed qāḍīship for the Almohads were Andalusīs.128 However, the Almohads, unlike their predecessors, succeeded in imposing them a high level of geographical mobility by installing them in localities other than their home towns129 probably with the intention of making it more difficult for them to use their posts to enhance their own social and material networks and of neutralizing a potential threat to central authority.130

• 131 Benouis 2005, p. 517.
• 132 This latter denomination corresponds to the function performed by Maḫlad b. Yazīd b. ʿAbd al‑Raḥmān (...)

51Another aspect of the Almohad judiciary that stands out is the reinforcement of the post of qāḍī al‑manākiḥ (i.e. entrusted with overseeing marriages). In Mostafa Benouis’ opinion,131 underlying the proliferation of these judges was the attempt to weaken regular qāḍī‑s. And unless it is discovered that they used to be appointed by a qāḍī with general competences, Benouis is probably right for there is an inherent contradiction in restricting the action of a magistrate to marital issues when his legal competences are by definition unlimited. This is all the more so given that it was possible to resort to other denominations in order to mark the difference between general and restricted competences (e.g. ḥākim, nā’ib, ḫuṭṭat ʿaqd al‑manākiḥ…132).

• 133 These strategies have received a fair amount of attention, specially by Maribel Fierro (1999, p. 23 (...)
• 134 Fierro’s study on Averroes’ Bidāyat al‑muǧtahid (1999) describes a jurist producing a legal work co (...)

52Despite the Almohads’ reluctance to concede to Mālikism the status of official doctrine the school had previously enjoyed in al‑Andalus and the Far Maġrib and their questioning of its legal methodology, Mālikī‑s managed to prevail over the proponents of other legal alternatives. This was due to their having developed a series of strategies focused on demonstrating that Mālikī legal doctrine derived from a systematic application of uṣūl al‑fiqh principles to the text of the sacred law embodied by the Qur’an and by Prophetic tradition.133 Such an ability to accommodate adverse political circumstances leads one to assume that Western Mālikī‑s also tried, as their Almoravid predecessors had done, to protect their independence vis-à-vis the ruler by enhancing the role of the qāḍī and religious justice as administered by jurists in relation to caliphal justice. However, this latter aspect has been paid little, if any, attention.134 As has already been pointed out, the sources that could help us retrieve some information about this specific point in the activity of Almohad Mālikī‑s are scarce, indeed, but it is also true that those that are available have not been exploited with the intention of elucidating how Mālikī‑s adapted and reacted to the Almohad court system. Be that as it may, the lack of contemporary fatwā collections renders the attempt to reconstruct this specific point of Almohad history rather speculative for if our knowledge about the judiciary and the jurists in the Almoravid period stands on safer ground is due precisely to the exploitation of fatwā collections in combination with biographical dictionaries. In this light, the prohibition against compiling legal opinions emerges not only as a measure dictated by ideological consistency but also by sheer censorship, removing from the jurists a tool that had proved extraordinarily efficient for expressing disagreement and criticism against Almoravid rule and religious policy. This was a lesson from their predecessors’ experience the Almohads learnt very well and which they were not interested in replicating.

53What follows next is drawn from studies dealing either with jurists of the Almohad period or with contemporary legal works which do not focus on Mālikī‑s’ reaction towards Almohad judicial policy but are likely to yield useful information in that regard.

• 135 See Ibn ʿIyāḍ, Maḏāhib al‑ḥukkām, p. 82‑84 and Serrano Ruano 2007, p. 189‑195, 201‑203.
• 136 See Carmona 2000, p. 132, referring to Ibn Hišām al‑Azdī and his Mufīd al‑ḥukkām.
• 137 See Yanagihashi 1996, p. 67, note 117 quoting Ibn ʿAbd al‑Rafīʿ’s Muʿīn al‑ḥukkām.

54In most cases, there is a consolidation of tendencies already observed in the Almoravid period. Regarding penal law, Muḥammad b. ʿIyāḍ, for example, uses the occasion of his reporting a case of rape submitted to his father to include a long commentary in which he collects opinions of earlier Mālikī‑s — Ibn Sahl being his main source — finding for the evidentiary force of suspicion. Muḥammad’s aim is to draw a table of discretionary punishments — from a varying time in prison to an equally varying number of lashes of the whip — proportional to different levels of suspicion which in practice enables qāḍī‑s to overcome the evidentiary limitations imposed by fiqh to deal with crimes and torts, and renders redundant the need to resort to the ruler or to governmental judges in order to prevent impunity.135 The fact that the capacity to establish ḥudūd punishments is listed among the requisites a Muslim must fulfil in order to be a valid candidate for qāḍīship,136 without distinguishing between sanctions that entail the death of the culprit and those that do not, at a time in which the caliph had retained the exclusive capacity to establish a death sentence on the grounds of a ḥadd crime, if not an act of open rebellion, betrays a certain reluctance to acknowledge official directives. Writing in Ḥafṣid Ifrīqiyā where Almohad ideology was still recognized as the official religious doctrine, Ibn ʿAbd al‑Rafīʿ (d. 733/1322) goes even further and remarks that the execution of ḥudūd punishments “falls under the exclusive jurisdiction of the qāḍī”.137

• 138 See Carmona 1987‑1988, p. 129.
• 139 See above.

55A parallel conclusion might apply to Ibn Hišām’s detailed treatment of the administration of public endowments138 notwithstanding that in the Almohad period, this task seems to have been mostly entrusted to an administrator appointed directly by the ruler, rather than to the qāḍī.139

• 140 On the specific ways in which the al‑ʿamr bi‑l‑maʿrūf wa‑l‑nahy ʿan al‑munkar principle relates to (...)
• 141 See, as a matter of fact, Viguera 1985, p. 596, quoting the opening statement of Ibn al‑Munāṣif’s T (...)
• 142 See Viguera 1985. Also see Cook 2000, p. 370‑373.
• 143 Ibn ʿAbdūn’s title of al‑Qaḍā’ wa‑l‑ḥisba is associated, as I pointed out above, with the plan to p (...)
• 144 See Viguera 1985, p. 591‑593.
• 145 See Rodríguez Gómez 2006, p. 254.
• 146 See Rodríguez Gómez 2006, p. 258.
• 147 Including the monitorization of social customs (e.g. playing music), morals and good conduct, urban (...)
• 148 See Ibn ʿIyāḍ, Maḏāhib al‑ḥukkām, p. 87‑100. This is, indeed, one of the longest chapters in the co (...)

56The composition of al‑Saqaṭī’s treatise on the inspection of the markets, in a period in which works on applied law were banned, might be explained in the centrality for Almohad ideology of the principle of commanding right and forbidding wrong,140 from which the ḥisba is derived.141 However, as we have seen, a similar tract had been written in the Almoravid period by Ibn ʿAbdūn. More importantly, the last and fifth part of Ibn al‑Munāṣif’s manual for the instruction of judges is dedicated exclusively to the ḥisba,142 which is not common in previous examples of the genre and which in fact situates the book somewhere inbetween the adab al‑qāḍī and the ḥisba.143 Finally, Ibn al‑Munāṣif belonged to a Cordoban family of Mālikī‑s some of whose members held posts as important as qāḍī l‑ǧamāʿa of Cordoba, and he himself was appointed qāḍī of Valencia and Murcia.144 Therefore, and until a more thorough study of the contents and context of this book is carried out, there is some reason to think that it follows Ibn ʿAbdūn’s path in giving additional doctrinal ground to the claim that both the definition and the limits of the ḥisba and the judges in charge of implementing it came under the qāḍī’s direct authority. If fact, it seems that when the opportunity to put what he preached into practice arrived for Ibn al‑Munāṣif, he did not miss it. After being appointed qāḍī of Murcia he conducted himself with such a zeal and severity that he had to be dismissed.145 Furthermore, the introduction of his treatise testifies to his position favorable to enhancing the position of qāḍī‑s and to discouraging rulers’ interference in judicial activity. There he quotes a series of Qur’anic verses and traditions with the intention of stressing two relevant facts: firstly, that it is advisable for rulers to rely on qāḍī‑s given that their post demands from them exclusive dedication to politics, and secondly, the importance of coordination between the executive power and the judiciary in order to bring about administrative unity and internal cohesion in the Muslim community (umma).146 Muḥammad b. ʿIyāḍ’s inclusion of a chapter on “preventing harm (nafy al‑ḍarar)” collecting legal cases related with the application of the ḥisba,147 synonymous with the “forbidding wrong (al‑nahy ʿan al‑munkar)” part of the Qur’anic principle, and portraying his father’s activity as either a qāḍī or a mufī, can also be understood as part of the same scheme.148

• 149 Cf. Chalmeta 1967a, p. 140, 142, 144, 149, 150, 160; Idem 1967b, p. 360‑361, 369.
• 150 See al‑Saqaṭī, Un manuel hispanique de ḥisba, p. 2 and Chalmeta 1967b, p. 360‑361. Cf. Chalmeta 196 (...)
• 151 See Chalmeta 1967b, p. 360‑361 and Idem, 1967a, p. 140.
• 152 See Chalmeta 1967b, p. 370‑371, 375.
• 153 Cf. Chalmeta 1967a, p. 145.
• 154 See Chalmeta 1967b, p. 361‑362.
• 155 See Chalmeta 1967a, p. 140.
• 156 See Chalmeta 1967b, p. 364.
• 157 See Chalmeta 1967b, p. 376. Despite its strong eschatological symbolism, ignominous parade was cons (...)

57If I am right in attributing to Ibn al‑Munāṣif and to Muḥammad b. ʿIyāḍ an intention to give further support to the tendency — or to the claim — that the ḥisba should be under the qāḍī’s control, al‑Saqaṭī operates with the opposite aim in mind. He was a former muḥtasib who wanted to transmit his knowledge about the proper performance of the post to subsequent generations of market inspectors with a view either to making or to keeping the post independent from the qāḍī. Yet he seeks this latter purpose following, if not Mālikī fiqh, the spirit of sharīʿa and prophetic sunna more closely than Pedro Chalmeta assumes, misled by the heavy reliance on custom of the practices reported by al‑Saqaṭī.149 While Ibn al‑Munāṣif appears to conceive of the magistrate in charge of the ḥisba as either a qāḍī, or a ḥākim under the direct authority of a qāḍī, for al‑Saqaṭī the competent agent is a muḥtasib — not a ṣāḥib al‑sūq/al‑ḥisba wa‑l‑sūq/al‑šurṭa wa‑l‑sūq anymore — whose post lies half way between the qāḍī and the maẓālim judge (ḫuṭṭa… wasīṭa bayna ḫuṭṭat al‑qaḍā’ wa‑l‑maẓālim)150 and whose jurisdiction does not extend to the port151 nor consists of investigating people’s behaviour within the private realm, unless he has sound reasons to suspect that zinā or a blood crime are being committed.152 The Almohad market inspector described by al‑Saqaṭī no longer appears to hold the office (dukkān) that had served his predecessors as seat or tribunal, which might a priori add to evidence that these agents’ competences were limited in the Almohad period. His claim of superiority with respect to the qāḍī is shyly stated,153 which is implicit both in the transmission of an anecdote according to which the Šāfiʿī muḥtasib of Bagdad expelled the qāḍī from the main mosque for using it as if it were his office154 and in the obliteration of the qāḍī when the question of the muḥtasib’s appointment is addressed.155 That this magistrate is, according to al‑Saqaṭī, to be directly designated by the ruler can be presumed but is not openly stated either, in contrast with the strong claim — equally expressed by means of an anecdote — that once appointed, both the ruler and his family were also subject to the muḥtasib’s authority.156 Within the limits of his jurisdiction, the muḥtasib is, according to al‑Saqaṭī, entitled to apply different levels of punishments ranging from a simple reprimand to ignominious parading.157

• 158 Who exactly Abū ʿAbd Allāh Muḥammad b. Abī Muḥammad al‑Saqaṭī al‑Mālaqī was is still unknown beyond (...)
• 159 Chalmeta 1967a, p. 130‑132.

58No doubt al‑Saqaṭī’s work is motivated by the intention to produce a textual basis for the good governance of the sūq that reflects the best of actual legal practice. However, on certain occasions, this purpose seems to me to be sacrificed to another impulse, namely to express disappointment with the Almohad political authorities for not breaking with Mālikī‑s’ monopoly of the judicial organization and dismay at the all-embracing reach of qāḍī‑s’ justice — the justice of the markets being no less Islamic than that imparted outside this particular space.158 In fact, Chalmeta suspects, with sound reasons, that the book was written in the first quarter of the 13th century C.E. when Almohad rule had started to decay159 and, consequently, the prohibition against producing works on applied law, and the ruling classes’ capacity to enforce it must have been relaxed. Be that as it may, the import of al‑Saqaṭī’s Ādāb al‑ḥisba seems to confirm that Ibn al‑Munāṣif and Muḥammad b. ʿIyāḍ had solid reasons not to lower their guard in their commitment to stress the link between the ḥisba and the qaḍā’ and to endow qāḍīship with a stronger, more independent position with respect to the ruler and governmental judges.

• 160 Carmona 1987‑1988, p. 128.
• 161 See Carmona 2004, p. 460.

59According to Alfonso Carmona,160 the space dedicated to marriage and related questions in Ibn Hišām’s Mufīd is extraordinarily long, an assertion that can be confirmed by comparison with earlier examples of the genre written in the Islamic West like al‑Baǧī’s Fuṣūl al‑aḥkām. This development might be due to “contamination” from formularies. Marriage occupies a central position in them and, hence, in the activity of the experts in drafting legal documents, a matter in which Ibn Hišām was considered an expert.161 However, it is also possible to connect the development with the proliferation of the quḍāt al‑manākiḥ either to give them support or to react against the very conception of their post, but this impression will be confirmed or rejected only when a more thorough study of the contents of the Mufīd, not to mention a full edition of the Arabic text, sees the light.

• 162 See a brief and sensible explanation of the factors that led to the dissolution of the Almoravid em (...)

62Eventually, the Almoravids’ attempts at weakening Andalusi qāḍī‑s did not succeed. When their power started to collapse by the middle of the 6th/12th century,162 a number of these qāḍī‑s, drawing on the social and political capital they had managed to obtain during the previous decades, seized control of their localities, starting a brief independent interval known as the second taifas to which the Almohad invasion of al‑Andalus put an end.

• 163 For an apt overview on the formation of the Almohad movement and the building of an empire that str (...)

63The conclusions about judicial pluralism in the Almohad period have to be more tentative. No doubt the availability of vast military and material resources allowed the Almohads to rule the territory under their command with a hand much firmer than their predecessors could ever afford.163 The constitution of new judicial seats and the elevation of the status of those that existed, putting a qāḍī at their head instead of a ḥākim, must have been instrumental in watching the provinces and the most remote parts of the empire more closely. This was, in principle, good news in the form of new jobs for the religious scholars. Indeed, despite initial Almohad reluctance, most of those who filled these posts were Mālikī‑s and the creation of a new class of religious scholars, the ṭalaba, did not erase the followers of the school of Medina from the scene, even in a minimal percentage.

• 164 After his death, however, political leadership was based on a direct claim to the caliphal title, t (...)

64Yet the Mālikī‑s lost their role as the main providers of religious legitimacy to executive power along with their status as supreme interpreters of the sacred law. Stronger military and financial resources enabled the Almohads to rely rather on the sophisticated ideology developed by the movement’s leader, Ibn Tūmart, on the grounds of which he presented himself as the infallible mahdī.164