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MAHKAMAH. Meaning a “place of judgment,” the term mahkamah has come to refer to all forms of law court in the Arabic-speaking world. In traditional Islamic settings, emphasis was placed on the individual judge, for instance the gads or the amir, rather than on the institution. Often there was no specialized building which might be referred to as a court; judges heard cases in marketplaces, mosques, private dwellings, or the audience chambers of palaces. Sometimes the judge was assisted by a consultative council (majlis) made up of legal scholars. Discrete judicial institutions with their own distinct space emerged gradually in response to increases in the volume of cases, the complexity of the judicial apparatus, the emphasis on record keeping, and the independence of the judiciary.

Beginning in the nineteenth century, westernizing indigenous regimes and European colonial administrations accelerated this process of institutionalization, eventually creating complex integrated structures of courts under the supervision of a central ministry of justice. This process was accompanied by the substitution of European for indigenous bodies of law (not only shari `ah but also qanun, `adat, and hukm), especially in criminal, commercial, and administrative matters. Only personal status law remained Islamic, and even here, the local qadi’s court was made subject to a European-style hierarchy of appellate courts and centralized regulation. With independence from colonial rule and the spread of nationalism in the mid-twentieth century, the personal status courts in many Islamic countries lost their separate identity and became, at least in theory, fully integrated into national court systems under such rubrics as mahkamah juz’iyah (Egypt) or Area Court (northern Nigeria). In most cases, however, they continued to apply the shari`ah.

Of the various types of court within a national system, it is the qadi’s court (whatever its official bureaucratic appellation) which has the most bearing on the daily lives of ordinary people through its jurisdiction over marriage, divorce, guardianship, inheritance, and minor civil cases. It also provides notarial services of the `udul (sg., `adil) or certified witnesses. The qadi’s mahkamah is likely to employ a scribe, a doorkeeper or usher, and sometimes specialists with technical knowledge in matters frequently brought before the court. Sometimes a professional legal representative (wakil) may appear in the court with or on behalf of a client. Many observers have noted that the people who appear in the qadi’s court are frequently poor and often female. This court is the forum in which they pursue their negotiations over rights and obligations, no matter how apparently trivial.

The close integration of the qadi’s court with popular life, and the fact that other courts tend to be identified with a distant, alien bureaucratic state, have contributed to demands voiced by Islamist political movements in the late twentieth century for a reislamization of the law, especially in criminal matters. These calls for reislamization, however, tend to emphasize the content of the law, demanding replacement of Western-style codes by the shari `ah, rather than challenging the bureaucratic structure and style of modern courts.

[See also Qadi.]

BIBLIOGRAPHY

Azmeh, Aziz al-, ed. Islamic Law: Social and Historical Contexts. London, 1988.

Christelow, Allan. Muslim Law Courts and the French Colonial State in Algeria. Princeton, 1985.

Hill, Enid. Mahkama! Studies in the Egyptian Legal System. London, 1979

Rosen, Lawrence. The Anthropology of justice: Law as Culture in Islamic Society. Cambridge, 1989. Study of the relation of courts to their cultural environment in Morocco.

Starr, June. Law as Metaphor: From Islamic Courts to the Palace of Justice. Albany, N.Y., 1991. Examines the emergence of the secular Turkish legal system in a region of western Anatolia.

ALLAN CHRISTELOW

Azhar Niaz Article's Source: http://islamicus.org/mahkamah/
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  • writerPosted On: July 30, 2014
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