A judge's personal knowledge of particular people and their affairs constituted an important and recognized basis for judicial action. Specifically, according to both Shafi'i and Zaidi manuals, except in hudud cases, where evidence must be presented, a judge can give judgment based on his own knowledge ('ilm ) of events; and, when the evidence of witnesses is presented, he can accept or reject it on the basis of his own knowledge ('ilm ) of the justness or unjustness of the persons in question, without requiring further verification of their character. Pragmatic and contextual, this circumstantial 'ilm was derived from worldly contact and experience rather than from teachers and set the practicing judge off from the more retiring among his fellow scholars. While 'ilm in the sense of knowledge acquired in the madrasa receives prominent mention among the fundamental conditions for assuming the judgeship—Abu Shuja', for example, enumerates six detailed subpoints—that of 'ilm in the informal, local sense is not developed. Without such contextual knowledge, however, that obtained in the madrasa could not be effectively implemented.
Dealing as he does in worldly hijaj , that is, in evidence, testimony, acknowledgments, and oaths, the judge requires a down-to-earth understanding of people and their ways in his jurisdiction. And yet there was a constraint, at least in the perspective of the manuals, that restricted his purview to the surface of outward fact and verbalized intention, to the exclusion of deeper but unexpressed purpose or concealed motive. Shari'a court proceedings are meant to operate on the basis of al-zahir , a level of outward appearances and manifest meanings. Confronted, for example, by an oath confusing in its implications, a judge is instructed to follow the outward sense of the articulated statement. Likewise, the import of an oath is never to be determined by the potential existence of a "mental reservation, or an interpretation contrary to the meaning of the words, nor a reservation made in an undertone which the judge cannot hear," and of which might be alleged subsequently by the oath-taker. In making the key initial decision about which of the two parties in a case is to be the plaintiff (and thereby assume the burden of proof), the judge is to apply the following rule of thumb: "The plaintiff is the individual whose claim conflicts
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with the appearance of things (al-zahir )." Interpretation of a final ruling in a case is similarly restricted: the judge's decision is to be "implemented manifestly (zahiran ) not implicitly (batinan )." Fittingly for an encounter of "faces" (muwajaha ), the proceedings are intended to function zahiran , or as we would say, "on the face of," issues, words, and rulings. Among the relevant specialists in appearances was the physiognomist, the student of faces and physical indications, who could be called upon by the judge to give evidence.
Al-Nawawi offers some notes on how a judge should conduct himself in order to acquire information upon being appointed to a new and unknown jurisdiction. Before departure for the new post, he should make preliminary investigations "about the circumstances of scholars and persons of good repute in the district." He may expect to ask and receive advice from local scholars on matters of jurisprudence and also, from those with practical experience, information about locally accepted custom ('urf ). Al-Nawawi recommends that the judge consult such local jurists before rendering his decisions. Persons of good repute could be relied upon to guide the new judge in discriminating the just and the unjust in the population and, together with the local scholars, provided prospects for staffing his court. The Zaidi manual likewise counsels the judge to have both scholars and other reputable people present at court sessions.
The new judge, al-Nawawi writes, should "enter on a Monday and proceed to the center of the town." He is then to carry out a series of initial inquiries to acquire necessary information concerning two main areas of judicial responsibility that extend beyond his duties as a trial judge. "First of all, he should look into the situation of individuals in jail. Those who say 'I was jailed justly' should remain so. If 'wrongly,' then his adversary must produce proof, and if the latter is absent he should be written to, to present himself." Then the judge should interview the local trustees of the several types: "He who claims a trusteeship should be questioned about it, and about himself and his administration. He who is found lacking in the requisite justness should have the funds taken away from him, and the less than fully competent should be supported with counsel."
Next the judge should see about appointing court functionaries to assist him, including both a secretary and an individual known as a muzakki , whose task it is to pronounce officially on the justness, or not, of individuals who appear before the court as witnesses. Known to both the Shafi'i and the Zaidi manual, the procedure of verification of
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witnesses, or tazkiyya , does not require the existence of a specific court official to be implemented. To the extent that court evidence is given as oral testimony by witnesses, however, a judge new to a place is largely dependent on trusted witness verifiers, official or not, to establish the necessary evidential basis for his rulings. As an institution, the muzakki represents a specialized form, and in the case of the existence of an actual court official, an important delegation, of one of the essential capacities pertaining to the judge himself. A judge who has come to know the local people, by contrast, is often able to engage this dimension of his official identity directly and verify the character of witnesses by means of his own information. A witness stands between the judge and unknown facts concerning persons and events, and a muzakki is a further intervening link in the human transmission of evidence, standing between the judge and an unknown witness. To eliminate the further mediation in the chain of evidence transmission, the judge may cultivate a personal knowledge of his constituents.
Intended for the circumstances of various times and places, including, for example, those that obtained in his native Syria, al-Nawawi's manual takes into consideration still another possible communicative intervention, a translator. Judges in very large cities of the Middle East and elsewhere doubtless could never come to know the population of their jurisdictions well enough to forgo major reliance on the mediations of muzakkis, translators, neighborhood notaries, quarter heads, market and craft officials, experts of various types, sectarian representatives, and so forth. But in Ibb, and perhaps most if not all Yemeni towns, the population was, until recent years, small (e.g., for Ibb, ca. 5,000 in 1900), and the character of the interaction was "face-to-face"; people all "knew" one another in terms of names and social identity, if not on an intimate basis (i.e., zahiran , if not batinan ). It was such knowledge, within the community and, potentially, between the judge and the community, that ideally structured a local muwajaha encounter. In recent decades, however, Ibb has expanded rapidly in surface area and population (ca. 17,000 in 1975), and town society is now marked by a rapidly declining degree of mutual "knowledge." Associated with the spatial and demographic changes, a shift is occurring to a pattern of interaction in which people interact for the first time in the presence of large numbers of townspeople they do not "know." Associated with this social change is a new state presence, represented by numerous new functionaries, including university graduate judges, who not only are different in formation and administrative style but who
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remain strangers to the town to the end of their often brief tenures in office.
Prior to the late 1950s, when the first expansion outside the old walls occurred, the "public" informational space had an immediacy indicated by such important auditory institutions as voiced calls to prayer (now loudspeaker assisted), public criers in the marketplace, and the sounding of horns by night guards on their rounds. The main alleys were informational channels, not only as the principal locale of everyday male interaction, but also for societal announcements: a convert to Islam was taken through the streets on muleback; wedding processions were accompanied by gunfire, fireworks, music, and ululation; a criminal act was publicized by drumming (or, in extreme cases, dragging) the culprit around the town. Town life was, in addition, a series of types of communication-rich assemblies of men. The paradigm of gathering was in the "place of gathering," the mosque (jam' ), both at the neighborhood level during the week and at the community-gathering level on Friday. The marketplace, especially the morning meat market and the afternoon qat market, was the main everyday public arena. By midafternoon, gatherings shifted indoors, for business in officials' sitting rooms and for pleasure or for special occasions in friends' reception rooms.
The circuitry of interpersonal knowledge in a small community such as Ibb carried information about reputation. Originally constituted "before the people" (quddam al-nas ), reports concerning reputations circulated thereafter through dense word-of-mouth channels. A collectivity of informal (and potentially formal) witnesses for one another's conduct, the community was acutely sensitive to deviation from established personal norms. Conduct was evaluated with reference to a frame of known differences of social identity, occupation, personality, and so forth. As with the "mismatches" discussed earlier, it was mainly the nontypical for the type that was remarked upon. Feeding with special enthusiasm upon the novel, gossip nevertheless also confirmed in passing the already known.
That men's and women's networks intersect in the family and otherwise diverge is routinely recognized in Ibb. As part of a comprehensive separation of the sexes, women have their own neighborhood links, public bath days, visiting patterns, and an entire parallel world of afternoon qat-chewing sessions. The existence of a social division of experience and related specialized knowledges that pertain especially to men or to women is acknowledged in the manual sections devoted to
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legal testimony. There are, on the one hand, matters that "mainly males have to do with (lit. 'see')." These include legal undertakings from contracts to such public events as conversion, witness evaluation, and death. Al-Nawawi's sample list is "marriage, repudiation, remarriage with a repudiated wife, [conversion to] Islam, apostacy, challenging and certifying [witnesses], death, insolvency, agency, testaments, and secondary witnessing." In connection with such matters two men must give testimony, rather than the ordinary case possibility of one man and two women. "That which is restricted to the knowledge (ma'arifa ) of women and which is not normally regarded by men," al-Nawawi writes, includes such matters as "female virginity, childbirth, menstruation, breast feeding, and [female] physical defects under clothes." Four female witnesses, without any males, can speak to such matters. From the position of (a male-constituted) jurisprudence, men ideally represent the zahir society of the streets, markets, and mosques; women represent that of the batin , ideally located in the house, concealed, and veiled.
Like "social honor" (ihtiram, sharaf ) and "justness" ('adala ), the inverse, established notoriety and, more technically, the status of "sinner"/"unjust" (fasiq ), are products of collective attribution and somewhat relative in content. While the first two guarantee that one's word as a witness will be relied upon, the latter have the opposite effect. According to al-Nawawi, when a muzakki is asked by the judge to report on a witness and the report is positive (i.e., the witness is just), the muzakki need not go into his reasons. But if he concludes that the witness is among the unjust and therefore challenges him or her, the grounds must be specified. These grounds can be either what the muzakki has personally observed or information gained through "istifada ."
A word from the same root used in reference to water means to "overflow" and "flood"; the legal term means "spread widely" or "saturated" in reference to information. Another usage of the same term by al-Nawawi concerns how a local population comes to know of the appointment of a new judge. A written imamic order, accompanied by traveling witnesses, is one possibility, and istifada —whereby the appointment simply, but decisively, becomes widely known—is the other. Al-Ghazzi also uses the term in his summarizing comment on a list of the types of facts for which the testimony of a blind witness is acceptable. The list includes knowledge of such things as deaths, kinship, and property rights, all of which al-Ghazzi says may be "established by istifada ." Al-Nawawi makes a similar argument in con-
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nection with testimony based on public repute (tasamu' ). The term involved is derived from a root meaning "to hear," as is the general expression for "reputation," or "good reputation" (sum'a ). In a nondirect manner, public-repute testimony can be used to establish descent (nasab ), tribe (qabila ) affiliation, or death, as well as such legal facts as marriage and the existence of an endowment or property rights.
Al-Nawawi gives an instructive condition for the acceptance of this public-repute type of information: he says it must be "heard from a sufficient number of individuals to guarantee against collusion in a lie." Similar reasoning provides the foundation for another variety of information discussed earlier, the received wisdom known to jurists as tawatur . What tawatur is to formal knowledge of important general historical matters (the existence of Mecca, etc.) and more technically to the science of hadith, istifada and tasamu' are to practical local knowledge about particular people and events.
A microsocial and historical catalogue of particular actors and specific occurrences, the ever-shifting "known" of a place was tapped into by a judge in a special manner. In one respect his knowledge inevitably became deeper and wider than the ordinary person's as he became privy to otherwise guarded secrets exposed in situations of conflict. In another sense, however, he was barred by his position from some of the most routine but informative interactions of everyday life. Al-Nawawi says it is appropriate for the more narrowly specialized muzakki to evaluate justness based on personal knowledge derived from relations of friendship, neighborliness, or transactional dealings, but a judge is counseled not only to avoid buying and selling on his own behalf—interactions that would necessitate diverse ordinary contacts—but also to avoid doing so even through a known agent. For a judge friendship could also be problematic: he must be wary of gifts given him, and he is forbidden to give judgment in cases involving not only his own relatives but also individuals with whom he had any sort of formal association. The stylized intimacy of the muwajaha encounter thus involved, on the part of the judge, a man at once unusually knowledgeable about the hidden aspects of people's affairs, yet also structurally distanced from many aspects of mundane social life. Although a judge could (and did) rely on the human resources of his household, including his wife, children, personal retainers, and secretaries for help in knowing about the community, he also had to exert himself to overcome the isolation of his position.
The Yemeni practice of not appointing judges to their home districts
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is not based on an explicit manual principle, but al-Nawawi's advice to a new appointee to make inquiries about scholars and reputable people implies a posting to an unknown place. The Yemeni appointment rule served the purpose of causing a new judge to start fresh, in a context free, at least initially, of both the demands of extensive family ties and the constraints of prior obligations and events. The paradox here is that while too much intimacy—such as would occur in a native district posting or if a judge attempted to conduct himself like an ordinary citizen—was to be avoided, a substantial degree of close contact was nonetheless essential for acquiring the local knowledge basic to judging.
o.m.g...i now need a paracetamol!!....i'll be eternally grateful i joost make cards,nae wonder they've awe bags under their peepers!!