A New Look at the Agency of Qāḍīs: Israeli Sharīʿa Courts as a Case Study

Abstract

AbstractIn the literature on Islamic law, qāḍīs are usually depicted as lower-level jurists, who are marginalized by other actors in the Sharīʿa field (such as muftīs, author-jurists and legislators) and therefore have no significant impact on the development of Islamic law. The article calls for a reevaluation of this assessment, arguing that modern qāḍīs actually possess far-reaching agency for transforming Islamic law. A case study of the Sharīʿa courts in Israel serves as illustration for the argument. It is shown that qāḍīs in Israel employ a broad range of judicial and extra-judicial mechanisms for the purpose of introducing innovations into applied Islamic law in their courts. In particular, the ­article dwells on judicial tools for reforms such as procedural reforms, innovations in evidence rules, and several types of material reforms (takhayyur, hybridization of Islamic and non-Islamic principles, and the continuous operationalization of Islamic concepts).