qadi criminal justice in comparative perspective

The U.S. criminal justice system features unlimited prosecutorial discretion, justice by plea bargaining unconstrained by due process of law, and mass incarceration with a world-leading number of person incarcerated per capita.  A leading scholar of the U.S. criminal justice system has declared that it has “run off the rails” and collapsed.  Another legal scholar describes the situation thus:

If the system is doing justice now, it is by accident – the accident that particular prosecutors bargain prudently and humanely. There is good reason to doubt that this happy accident is really taking place. And even if executive discretion produces now something tolerably close to justice, the grotesque concentration of power in so few hands conflicts directly with the rule of law. The system we have is far too close to “kadi justice” for comfort. [1]

The reference to “kadi justice” is an allusion to U.S. Supreme Court Justice Felix Frankfurter’s dissenting opinion in Terminiello v. City of Chicago (1949).  In that opinion, Justice Frankfurter declared:

This is a court of review, not a tribunal unbounded by rules.  We do not sit like a kadi under a tree dispensing justice according to considerations of individual expediency.

The rule of law and justice in the criminal justice system are crucially important public issues.  Considering them in current U.S. circumstances can easily prompt despair.  What to do?

In accordance with enlightenment faith in reason, I will analyze Justice Frankfurter’s reference to “kadi justice.”  A qadi (kadi) is a judge ruling under Islamic law.  By the fourteenth century, Islamic law was well-respected, highly codified knowledge. Ibn Battuta, a visitor to the Maldives, became a qadi there by displaying his knowledge of Islamic law.  Battuta recorded in his journal his key concern as qadi: “When I became qadi, I strove with all my might to establish the rule of law.”[2] Islamic legal scholars worked to keep Islamic law unchanged from the seventh century and uniform across the Islamic world.  A qadi’s persona and public decisions represented the grandeur of Islamic tradition and the depth of Islamic legal scholarship.  Sitting under a tree dispensing justice according to considerations of individual expediency would be completely inconsistent with the self-conception and public perception of a qadi.[3]

Looking back over unenlightened ages and cultures, the image of an official sitting under a tree dispensing justice according to individual expediency fits most directly King Louis IX in thirteenth-century France.  A famous account tells of King Louis IX frequently sitting under an oak tree in the woods of Vincennes and dispensing justice directly to his subjects in accordance with his absolute royal sovereignty.  King Louis IX was not a legal scholar.  He did not strive to administer justice according to an unchanging, uniform corpus of written law and legal interpretations.  He probably sought to treat petitioners fairly in their particular circumstances, according to his own personal sense of fairness.  That’s not the sense of rule of law in our age of enlightenment.

Present-day U.S. prosecutors dispense justice much more like King Louis IX in thirteenth-century France than like a qadi in the ancient Islamic world.  Making the U.S. criminal justice system more just can start with true enlightenment.

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Notes:

[1] Dripps (2005) p. 1159.

[2] Trans. Dunn (1986) p. 234.

[3] For roughly the past half-millennium, weaknesses in the administration of justice under Islamic law have been the opposite of excessive legal discretion and lack of legal uniformity and stability.  Weaknesses of Islamic law over the past half-millennium are much better characterized as too little freedom for interpretation (ijtihad) and too little experimentation.  Too little experimentation can be interpreted as lack of confidence that God is sufficiently great to create human beings who will, at least eventually, freely discover the truth about God and the world.

References:

Dripps, Donald A. (2005). “Overcriminalization, Discretion, Waiver: A Survey of Possible Exit Strategies.” Penn State Law Review v. 109. pp. 1155-1179.

Dunn, Ross E. (1986). The adventures of Ibn Battuta, a Muslim traveler of the fourteenth century. Berkeley: University of California Press.

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