Judicial Instituition

JUDICIAL INSTITUTIONS IN PRE-ISLAMIC ARABIA
Author(s): Muhammad Yusuf Guraya

Source: Islamic Studies , Winter 1979, Vol. 18, No. 4 (Winter 1979), pp. 323-349
Published by: Islamic Research Institute, International Islamic University, Islamabad
Stable URL: https://www.jstor.org/stable/20847120
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JUDICIAL INSTITUTIONS IN PRE-ISLAMIC ARABIA
Mohammad Yusuf Guraya

INTRODUCTION
Islamic judicial system originated from the basic and fundamental
principles of the Holy Qur'?n and from the Sunna of the Holy Prophet of
Islam (Peace and Blessings of God be upon him). The Holy Prophet
changed the whole concept of the pre-Islamic state and its functions. He
worked out the details of the Islamic Judicial system which stands clearly
in contra-distinction to the naive pre-Islamic tribaland arbitral organization
Its exceptionally unique and unusual feature is that the Holy Prophet, the
head of the Islamic state and its judiciary, made himself accountable to the
Divine Law and presented his own person for adjudication on a complaint
of one of his own Followers. This distinctive peculiarity of the Islamic
judicial system can be appreciated only when it is read with the constitu
tional and judicial provisions of the twentieth century "civilized world"
which upholds the dictum:
"The King can do no wrong".
Against an overwhelming historical evidence in favour of the

Islamic judicial system some of the modern scholars have held different
views. 'Ali 'Abd al-R?ziq an Egyptian scholar in his work: al-Isl?m wa
Usiil al-Ifukm has asserted that formation of a government and establish
ment of judiciary were not included in the Prophetic Mission of Muham
mad (Peace be upon him). Emile Tyan in his book: Histoire De L'organi
sation judiciaire En Pays D'Islam holds that the Islamic judicial concepts
and ideals were more or less the same which the Arabs had practised over
generations. He equates the position of the Holy Prophet with the posi
tion of the pre-Islamic hakam (arbitrator).
This study has been undertaken to examine in detail the pre-Isla

mic legal and judicial institutions and the position of the hakam (the
arbitrator), the k?hin (the soothsayer) and the 'Arraf (the fortuneteller).
It may contribute in a humble way to compare the pre-Islamic primitive
tribal and arbitrational customs and traditions with the well defined Is

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324 MOHAMMAD YUSUF GURAYA
lamie constitutional, legal and judicial concepts and principles as provided

in the Qur'?n and in the Sunna and practised under the Holy Prophet and the
Pious Caliphs.
POLITICAL SYSTEM IN PRE-ISLAMIC ARABIA
The pre-Islamic Arab society comprised two types of Arabs: Bedou

ins and Sedentary or the tent-dwellers (Ahl al-Wabar) and the city-dewel
lers (Ahl al-Madar).
CHIEFTAINSHIP
Chieftainship (Ri'?sah or Mashaykhah) was the basis of the political
system among the nomads and kingship or city-state (al-Malakiyah or
Ri? sah al-Qur? wa al-Mudan) among the sedentary peoples.1 Political or
ganization and judicial organs of both the systems will be dealt with separ
ately.
The tribe was the basis of chieftainship which was organised on
blood relationship (R?bitah al-Dqmm). Descendants of a person cons
tituted a tribe and their common genealogy united them in a social and
political organization. The home-country of a tribe was the land wherein
it orginated or the land it possessed. On the basis of a tribe and land a
chieftainship was founded under the leadership of a chief. Different names
were given to the chief in different tribes: Ra'ls, Ba'l, Rabb, Sayyid and
Shaykh. Hish?m b. al-Mugh?rah was known as Rabb Quraysh,2 'Amr
b. Ja'eed was Sayyid Rab?'ah and Hudhayfah b. Badr was called Sayyid
Ghatf?n,3 and he was also known as Rabb Ma'add*. Qays b. '?ism was
Sayyid Ahl al-Wabar.5
Integration and solidarity of chieftainships depended upon the level
of their political awareness. In distant lands, in the heart of Arabia, a
powerful adventurist brought members of his tribe around him and estab
lished his personal rule. Since there was no other basis of his rule except
his person, his chieftainship disintegrated at his death. Following this
tradition certain Arab tribes abandoned the religion of Islam at the death
of the Holy Prophet Muhammad (p.b.u.h.) They argued that their allegi
ance was only to the Prophet and at his death it had dissovled. Hence they
would not submit to anyonedse nor they would pay government reve
nues. i,e. Zak?t and Sadaqa.6 This historical event marks the distinction
between the pre-Islamic political and judicial system based on the personal,
parochial,; regional and tribal interest and the Islamic, system established
on the basis of universal principles and ideals.

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JUDICIAL INSTITUTIONS IN PRE-ISLAMIC ARABIA 325
The chieftainship established at places of water, greenery and vege*

tation encouraged the tribesmen to accept certain principles of rule evolved
by their forefathers. The fundamentals of this rule were allegiance to a
chief obedience to his orders in peace and wars, submission to the mores,
practices, customs of the tribe. Generally it was hereditary rule in tribes,
according to which the eldest son of a chief succeeded him. Principle
of nomination was also adopted in certain cases, t?i?n b. Hudhayfah
nominated his son 'Uyaynah to rule after him. 'Uyaynah was not
more suitable than others to rule his people. Hi?n called his sons and
addressing 'Uyaynah proclaimed: "you are my successor and chief of your
people after me." Then he addressed his people: "My flag and my rule
are for 'Uyaynah". Thereafter, he gave them instructions. His people
accepted his nomination and submitted to the authority of 'Uyaynah.7
In certain cases chiefs were also appointed by selection. When the

eldest son of a chief was not a capable person or many sons of a chief from
his different wives were aspirants, the notables and elders of the tribe met
to select a suitable chief from among themselves. This selection was made
on merit.
There are also instances that when the eldest son of a chief did
succeed him and the council of the elders also could not select a suitable
person from among themselves, a request was made to the Kings of Yaman
to appoint a chief from outside the tribe.8 Kings of the Kindah dynasty
furnish a good example of this practice. Such Chieftainships were foun
ded in some parts of Najd and Yam?mah. Authority and territory of
Chieftainship expanded when alliances were concluded by various tribes.
A tribe had two sources of inspiration: ancestry and idolatry. The

great ancestor of a tribe was a motivational force for binding its mem
bers in blood relationship. His name was invoked during raids and
battles to stir up the sentiments of tribesmen and to goad the warriors for
performing chivalrous deeds. Idols provided them inner consolation.
They were asked for help against enemies and were carried in the battle
fields for blessings. The Makkan Quraysh invoked their idols in wars
against the Prophet of Islam. In the battle of Uhud when the Muslims
were forced to retreat the Quraysh under the leadership of Ab? Sufy?n
paid homage to their great idol Hubal9 (ch* <>')

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326 MUHAMMAD YUSUF GUftAYA
KINGDOMS
Kingdoms were established in those pairs of Arabia which were

fertile and where water, greenery and vegetation were found in abundance.
Yaman, Iraq, Syria and regions between Iraq and Syria on the borders o?
the Arabian Peninsula were the most suitable places for Arab kingdoms.
Kingdoms of Ma'lniyah in Yaman, kingdom of Hadramout, kingdoms
Of Qatb?n and Saba' were founded in the southern part of Arabia.
Whereas Kindoms of Dayd?n, Libyan, Nabataeans, Palmyrenes, Kindah
and Ghas?sanah were founded in the western and north-western parts of
Arabia. Fertility of land and abundance of water were the main grounds
for the foundation of these Arab kingdoms in their locales. Mostly their
capitals were also commercial centres. Trade of the East and of the
West flowed through them and brought wealth and prosperity. Commer
cial settlement of Makkah and Oasis of Madinah were not kingdoms but
were equally important for commerce and agriculture respectively.
Mahkah was particularly popular for having the greatest sanctuary of the
Ka'bah.
Administration of Justice in Central-West-Arabia
Politicai organization whether it was a chieftainship or a kingdom

consisted of three elements: (i) god or gods (Hah or Ali ha which was res
pected both by the ruler and by the people; (ii) the leader (H?kim) who was
either called a K?hin or a Malik or an Amir or a Sayyid. It was obligatory
for the people to submit to the authority of their leader and obey him dur
ing peace and war; (iii) the people, obedient to the gods and to their leaders.
The most ancient historical evidence reveals that before the establishment
of kingdoms in Arabia mere was a theocratic rule of the Mukarrabs
synonym of Muqarrab. They were K?hin-Malik who perhaps imitated
the prophets raised by God in these regions. It is considered that they
received revelation and interpreted it to their people. They were supposed
to be the Vice-regcn?s of God, and it is said that they adjudicated under
inspiration10.
The rule of K?hin-Malik, the inspired ruler, was imitated by Chief

tainships in the interior of Arabia and kingdoms in the south and north
west of the Peninsula. Malik was the title adopted by the rulers of king

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doms of Southern and Northern Arabia* *. This title was so prestigious

that chiefs of certain tribes, who were not in fact kings adopted it by them
selves.
Etymologically the word Malik has been used in Semitic languages

in the sense of Counsellor or Advisor. It means that Maliks before they
became kings were judges (Qu4?t) in their tribes and people appeared before
them for the settlement of their disputes12. Such references may be eq
ually applicable to the "Prophet" and to the "judge" mentioned in the Bible.
When Malik assumed the power of a king he continued his original
function of administration of justice among his people and appointed
bodies consisting of wise men for their guidance and assistance.
Generally, Chieftainships in tribes and kingships in kingdoms were

hereditary, eldest sons succeeded their fathers. But in practice the tribes
men would not accept the appointment of a new chief or king only on
heredity grounds. They must satisfy themselves whether their new chi?f
or king possessed the qualities necessary for protecting them against their
enemies and defending their pastures and honours. '?mir b. Tufayl
has summed up this idea in a few verses13. It has already been mentioned
that principles of nomination and selection were also adopted.
CONSULTATIVE BODIES
It seems that the kings and chieftains of Southern and Northern

Arabia had regards for the man of wisdom. They did not have divine right
to wield power as they wished. They had consultative bodies for advice
and guidance in the decision of crucial matters pertaining to the state
and the people. It is likely that such arrangements were made by the
kings who believed in the revelation and teachings of the Prophet raised
among them.
Inscriptions and other historical evidence reveal that the kings

of Southern Arabia had evolvd a comprehensive system of gover
nment controlled by an Assembly of elders14. General name of
these bodies was ?j> They were called e**9 ?*j> by the Ma'iniyah, ^
by the Qatb?niyah and (f^ and also by the Saba\ The members
of such bodies were nominated on the basis of their high social

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328 muhammad yusuf guraya
standing, nobility of birth and character, practical wisdom and insight into
the human problems. They were the leading, prominent and distinguished
people. In modern terminology they were the choicest and the elite
{?afwah wa Khlrah) who represented the general will of the people and kept
the ruler on right track. Religious elders were given due representation
in such bodies. Representatives of trade unions (Asb?bal-Ifiraf wa aWAmal)
were also consulted.
Duties and functions of the members of the consultative bodies were

to assess and evaluate difficult and complicated problems faced by the state,
to assist the ruler in deciding crucial matters, to formulate proposals of
taxation and agricultural revenues15. When the legislative body ?j>
had adopted resolutions on legal, judicial, administrative, economic, agri
cultural and religious matters they were referred to the king for his assent
after which they became law of the land16. In the irreligious kingdoms
the advice of the elite and other consultative bodies might have been
taken in cases wherein the high-born were involved and in case of the
common man the will of the ruler prevailed.
Kindgoms founded in the Western Arabian Peninsula were also

guided and controlled by assemblies of elders. The kings of this part of
Arabia took decisions and formulated policies after having the advice of
their consultative bodies. The Majlis al-Sh?r? of the Lifyy?niyah dynasty
was called1? One of the inscriptions describes it as "Grand Assem
bly" (al-'Ali al-Sh?n); because of the prestige and honour in which it was
held. The Palmyrenes had formed an assebmly of elders on the pattern of
the Roman council of the elders. It comprised the nobles and the dignitaries
of Palmyra, who were people of high social standing. They had mandate
for legislation. The Assembly was headed by a Chairman and a Secre
tary.18 This system it seems was restricted only to a particular class of
people. The rest of the masses did not enjoy the ben?fits of the wisdom
of the nobles. Such assemblies were possibly established to def?nd rights
and interests of the ruling clan. It seems that the kingdoms of the Na?r
the Ghassanids and of the Kindah had no consultative bodies and the
kings of these dynasties tended to be despotic and absolute.19
It may be concluded from the foregoing that administration of

justice in the kingdoms of the Southern and Western Arabia was generally
carried out by the members of the consultative bodies of those states.

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The chiefs and the elders who were also the precedents-producing agencies
decided disputes according to the tribal customs, mores, practices and tra
ditions. During the course of their adjudication if they found that the
changed circumstances in a particular field of life had necessitated new
ruling they did so by adopting a resolution and getting assent of the
Chief or the King.
ADMINISTRATION OF JUSTICE IN HIJAZ
Circumstances in rjij?z were different from the kingdoms of Sou

thern and Western Arabia. There were few places such as Makkah,
Yathrib and al-T?'if where sedentary population (Ahl al-Madar) was
found and people in the rest of Hij?z were Bedouins (Ahl al-Wabar).
Administration of justice among the sedentary people was more developed
and advanced than the Bedouins.
The basis of social organization among the Bedouins was the

tribe, consisting of a few hundred or a few thousand persons. A tribe
would generally bind itself to a territory with sparsely scattered oases
which supplied it with the necessary requirements of sustenance and
which it would abandon only in grave emergencies.
DISPOSAL OF LITIGATION IN TRIBES
Looking at the over all character of the tribal system it seems that
ordinary litigations and disputes between the members of a tribe were
generally decided by the local chiefs at their own level. They were well
versed with the tribal customs, traditions, practices and mores of the tribe.
They were the leaders and prominent persons of their community. The
tribesmen had full confidence in them and submitted to their Judgements
without hesitation.
As regards cases pertaining to the whole tribe such as wars with

other tribes or inter-tribal social and political disputes or tribal cases of
more complicated nature, the council of elders with chief of the tribe at
its head decided them. Each tribe had a -chief (Ra'?s or Shaykh) and a
Council of elders (Majlis al-Shuy?kh or N?di al-Qawm) consisting of pro
minent and distinguished persons of the tribe. The Chief of a tribe used
to be a senior member, whose leadership was recognized because of his depth

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330 MUHAMMAD YUSUF GURAYA
of thought, his sagacity and sobriety of his counsel and ability to lead and
protect his people during war and keep peace and order within the tribe.20
Whenever an important case required decision it was referred to the chief
who summoned the Assembly for a meeting. Different aspects of the case
were discussed thoroughly. The membes were free to express their views.
After hearing both the parties and discussing the case from its various
angles the Council formulated its opinion and agreed upon a decision.
Finally the Chairman of the Council announced the judgement. The
judgement of the council was final against which there was ordinarily no
appeal. It was no more permissible for the litigants to re-open the case
on the same grounds. On more complicated social and political prob
lems the council passed resolution and set up new sunnah 4 precedent'
to be followed. In this capacity the Council also functioned as a
'precedent producing ' agency.
If a member of a tribe did not obey the decision of a Council, or

criminal conduct of a tribesman had become annoyance for others, the
father in case of family affairs and the chief in case of tribal for inter-tribal
matters proclaimed in tribal gatherings such as Hajj or 'Uk?z that the
offender had 'shaken his mantle' and he was thereafter declared as an out
law (KhalV).11 No worse calamity could befall a Bedouin than the loss
of his tribal affiliation; for a tribeless man was practically beyond the pale
of protection and safety. An outlaw might be slain with impunity by
anyone, even by a member of his own tribe.
CITY STATE OF MAKKAH
Makkah was a very old settlement. The Ka'bah was built by Ab

raham who settled his wife H?jirah alongwith his son Ism?'il. The
tribe of Jurhum came from Yaman and also settled in Makkah. Ism?'il
was married among the Jurhum. Thereafter, the Jurhum controlled the
sanctuary for a long period. Then it passed to the Khuz?'ah, with whom
were associated Ban? Bakr b. 'Abd Man?t b. Kin?nah. The Khuz?'ah
and their allies were expelled by Qusayy b. Kil?b. According to Ibn
Qutaybah Caesar helped Qu?ayy against the Khuz?'ah22. Qusayy had
connexions with the Ban? 'Adhrah. After the death of his father Kil?b, his
mother F?timah bint Sa'd married Rab?'ah b. Har?m from Ban? 'Adhrah.
Being the youngest child Qu?ayy was taken by her mother to the land

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of Ban? ' Adhrah living near Tab?k on the Syrian border, leaving behind his
elder brother Zuhrah at Makkah among his people. Ban? 'Adhrah were
presumably under the Byzantine influence. At his puberty Qusayy re
turned to Makkah and united his people against the Khuz?'ah23. His
relation with Ban? 'Adhrah enabled him to get help from Caeser. For
uniting the scattered people of Quraysh, Qusayy was called the "Collector"
(Mujammi'an)24. He was the Chief architect of the Makkan political
system. He turned the Quraysh from nomads into a settled community23.
MUNICIPAL ADMINISTRATION
After settlement of different groups of population Qu?ayy establi

lished his rule and started organizing religio-municipal administration in
Makkah. His house was the seat of his government. All civil, military,
social, commercial, religious, and family affairs of the Makkan people were
decided at his house. His authority and governance was taken as 'religion
to be followed.'26 His actions became Sunnah for his peopel.27 He
was absolute ruler and his word was law28. He ruled in the first half
of the fifth century of the Christian era, and was contemporary with al
Mundhir b. al-Nu'man, king of H?rah and Bahr?m Jawr, king of Sassanid
Persia (420-438 A.D.)29
ESTABLISHMENT OF JUDICIAL AND ADMINITRATIVE

INSTITUTIONS
For streamlining administration and providing facilitties to the

people in general and to the pilgrims in particular Qu?ayy conceived ori
ginal ideas and set up the following important institutions:
Al-Hij?bah: Custodianship of the Ka'bah.
Al-Liw?' : Arranging and carrying the standard of war.
al-Siq?yah: Superintendence of water-supply, especially with a view

to the needs of pilgrims
al-Rif?dah: Provisioning for pilgrims
al-Nadwah: Parliament of the Community

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332 MUHAMfc?AD YUSUF GURAYA
al-Qiy?dah : Leadership in political affairs
Qu?ayy himself was incharge of the above functions and offices. In

advanced years of his age he delegated all his powers to his eldest son 'Abd
al-D?r.31 Qu?ayy had four sons: 'Abd al-D?r, 'Abd Man?f, 'Abd al
'Uzz? and 'Abd Qu?ayy.32 'Abd Man?f had attained prominent position
and high degree of honour during the life-time of Qu?ayy3 3. His financial
and social position was much stronger than that of his elder brother 'Abd
al-D?r.34 This was felt by their mother rlubba who had inclination to
words her eldest son and on whose motivation Qu?ayy decided to raise his
status and to equate him with his brother 'Abd Man?f and to strengthen
him by giving him preferential functions.35 In this capacity entry to the
Ka'bah was conditioned with his prior permission as he held the
key of the sanctuary (al-Hij?bah) and arrangement for declaration of war
and bearing of standard (al-Liw?') were made by him. Everyone
became dependent upon him for supply of water (al-siq?yah) which had
to be brought from different wells outside Makkah on camels back and
stored in leather reservoirs kept in the courtyard of the Ka'bah.36 The
pilgrims became obliged to him for provision of food supply (al-Rif?dah)
which was prepared out of an annual contribution of the Quraysh deposi
ted with its incharge. Judicial, administrative, social and family decisions
required holding meetig under his Chairmanship (aUNadwah). Thus
as successor of Qu?ayy 'Abd al-D?r became incharge of all functions and
affairs held by Qu?ayy37 which raised his status enormously.
POLITICAL GROUPING WITHIN THE QURAYSH
The above arrangements of succession made by Qu?ayy were perhaps

in line with certain tribal political traditions prevalent in Arabia i.e. eldest
son succeeding his father ? the Chief of the tribe. But in the special cir
cumstance under which the commercial community of Makkah was created,
merit of a person as mode of political succession was more suitable than
mere tribal principle of heredity. 'Abd Man?f submitted to the decision
of Qu?ayy because his decisions were never challenged nor his actions re
jected. It seems that at least during the life time of 'Abd al-D?r and
'Abd Man?f no dispute came to the surface.38 In course of time further
divisions within the Quraysh of al-Bif?fr began to appear.
The sons of 'Abd Man?f ('Abd Shams, H?shim, al-Muttalib and

Nawfal) could no longer tolerate it and they decided to take over all the

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functions from Ban? 4Abd al-D?r. They thought that they had better
right over those functions because of their high social standing and
economic prosperity, whereas Ban? 4Abd al-D?r considered it a great injus
tice and violation of the decision of their great grand-father, Qu?ayy.
Makkah became divided into two hostile camps and both the parties were
supported by different tribes and clans around them. Ban? 4Abd Man?f
formed their confederacy with the Asad, Zuhrah, Taym and al-FI?rith b.
Fihr which was known as the Mutayyab?n - the perfumed, because they
pledged in a bowl full of Jib (perfume). The allies of Ban? 4Abd al-D?r
were the Makhz?ml, Sahm, Jumah and 'Adi. This group was known as
Abl?f - the confederates. 4 ?mir b. Lu'ayy and Muh?rib of the Quraysh
al-?aw?hir have been mentioned as neutral. The situation nearly led to
fighting, but a compromise was achieved in time, according to which Ban?
*Abd Man?f were given the rignt to al-Siq?yah and al-Rif?dah, whereas
Ban? 4Abd al-D?r retained al- Ifij?bah, al-Liw?' and al-Nadwah. This
arrangement continued till the advent of Islam39.
ADMINISTRATION OF JUSTICE IN THE CITY STATE OF

MAKKAH
Justice was administered at different levels in the complex and

commercial community of Makkah. Qu?ayy demarcated the territory of
Makkah and divided it into various districts which were allotted to diffe
rent clans for development.40 Al-Azraqi has given details of quarters and
their allotment to different clans and to their confederates in various dis
tricts.41 All clans settled in their respective districts which became the
nucleus of the Makkan society.
JUDICIAL INSTITUTIONS
District Council42 ? D?r al-Usrah
Each district of Makkan population had its judicial institution

set up on the pattern of D?r al-Nadwah, the central court of justice in Mak
kah43. D?r al-Ajalah was one of the earliest district councils set up by
Said b. Sa4d b. Sahm in the district of Ban? Sahm.44 These local councils
were also called Majlis al-Shuy?kh or N?di-al-Qawm. The Qur'?n has
referred to a Council house.4 5 The notables and the elite of the respective
clans were responsible for keeping peace and order within their districts.

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AU disputes among the members of clans, were referred to their respective

district councils. The chosen and the elite sat in judgement, redressed
the grievances of victims and settled their disputes.
The same pattern of administration of justice was followed in the

districts of the Quraysh al-Zaw?hir and of the Afi?bish. Ibn al-Dughun
nah, Hulays and Ab? 'Amir had been the chiefs of the Afi?bish (S?da al
Ah?bish). They were incharge of their affairs and were also responsible
for maintaining peace and order in their districts and for settling their
internal disputes46.
Members of the local district councils were taken on the basis

of their clan and their personal qualities. They commanded respect of their
people and enjoyed their confidence. They were the most influential and
powerful men of their clans. The offenders submitted before their judge
ments and the victims felt themselves satisfied. In case of disobedience by
a member of their clan the whole clan stood up in support of their leaders
and the offender had to bow down before them47.
Supreme Council ? D?r al-Nadwah
The Population of the city-state of Makkah was composed of various

tribes and many clans. There were the Quraysh al-Bit?h, the Quraysh al
gaw?hir, the Afi?bish, the ancient people of Banfi Jurhum and Banfi
Khuz?'ah. Some of them were sedentary settled in permanent houses
built in the B?tin of Makkah. The others were Bedouins living in tents
in the out-skirts of Makkah. Standard of living and level of civilization
and culture of the wealthy commercial community of the Quraysh of al
Bif?li and the nomads of al-Zaw?hir were fundamentally different. Psycho
logical behaviour and mental tendencies of different groups were moulded
by different trades and professions they had adopted. Makkan popula
tion did not have one religion. Various groups adhered to various religious
tendencies. Above all, administration of newly created offices of al
Hij?bah, al-Rif?dah, al-Siq?yah, al-Liw?' and al-Nadwah required streamlin
ing and co-ordination in their functioning. The challenge of complicated
social economic, political and family problems created by the above men
tioned complex society necessitated establishment of a central institution.
D?r al-Nadwah, the Supreme Council of the elders of Makkah was set up by
Qusayy under his own chairmanship.4 8 Nadwah means meeting of a group

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and Dar al-Nadwah means the Meeting Hall of an assembly. It has been
derived from Nadw. Whenever they faced a serious matter they were
called in the Meeting Hall where they assembled for deliberation49.
Judicial Procedure of the Supreme Council
According to the mode of conducting judicial proceedings the

Supreme Council accepted only those cases for hearing which were above
the level and jurisdiction of district councils. Small and petty internal
disputes of people of different clans were under the jurisdiction of the
local councils which were decided at their levels. Only those cases were;
accepted by the Supreme Council which were of common nature and which
involved the whole Makkan Community or those matters which threatened!
its peace or affected its future.30
According to the traditional account the house of Qujayy was

the Council Hall of the Community. The Quraysh brought all social,
economic, political, commercial and legal cases for advice and decision.
Litigations were decided, marriages were concluded, grievances were re
dressed. Inter tribal cases were heard and proper actions were proposed.
War and peace situations were discussed and appropriate decisions were
taken and standards of war were arranged51. Matters pertaining to trade
and commerce were discussed there. Matters relating to 'joint stock*
of the commercial community of Makkah were resolved there. Shares
in a trade caravan were given final form before its departure. Distribu
tion of profit among the partners was made after its arrival.52 Promotion
of trade and commerce with different countries was considered and ways
and means were devised for getting facilities for transportation and security
and safety of caravans. Political confederacies and alliances were discussed
and treaties concluded with tribes on trade routes from Yaman to Syria
and from Abyssinia to Iraq.
Multi-functional Institution
From the nature of cases and affairs referred to and discusseci

by the Supreme Council seems that the Dar al-Nadwah was a multi
functional institution. It was custodian of the traditions, custqms, mores
and practices adopted by their predecessors. It interoduced new tradi
tions and precedents where old traditone were not helpful.

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The Arabs were tradition-bound people and submission to

unanimous decisions of their elders was inherent in their nature hence
the primary function of the council was administration of justice.
Structure of the Supreme Council
Dar al-Nadwah was the parliament and house of representatives, who

were called mala' or the senate. This was an assembly of the chiefs and lea
ding men of various clans. After the battle of Badr a man from the Ans?r was
heard by the Holy Prophet saying that they had killed the bald-headed per
sons. The Prophet called him and said: "They were the mala\ the elite of
the Quraysh"S3. No specific mode of election to the Senate was evolved.
But somehow or other the Quraysh had found a way of deciding who were
the qualified notable members of a clan who should attend the meetings
of the Senate. Influence of a clan and personal qualities of its members
were requisite for making persons eligible for the Senate. Inherited wealth
and business connexions could give a man a start, but in the end his in
fluence depended chiefly on his peronal qualities ? his commercial and
financial shrewdness, his diplomacy in dealing with other clans and tribes
and with the representatives of the great powers and his ability to get his
equal in the clan and in wider circles to follow his lead.54 There was no
room for an adventurist to set aside the accepted norms and aspire for
setting up a kingdom. Example of 'Uthm?n b. al-Huwayrith illustrated the
general trends of the Makkan policy. He entered into negotiations with
the Byzantines for appointing him as king in Makkah and received some
promise of support. His scheme was denounced even by a member of his
own clan al-Aswad b. al-Muttalib Ab? Zam'ah. 'Uthm?n was not the best
among the Quraysh nor the Quraysh liked to depart from their policy of
neutrality between the Roman and the Persian empires.55
It was privilege of Qusayy that all his descendants and their con
federates were eligible to attend the Senate. As regards the non-Quraysh
only those members of various clans were eligible to attend the Senate who
were at least forty years of age.56 Historians have recorded few exceptions
to the age limit in cases where younger members of clans demonstrated
extra-ordinary intelligence, maturity of opinion and soundness in their
judgements. Ab? Jahl b. Hish?m was allowed entry at thirty years of his
age57 and ^ak?m b. IJiz?m entered the Senate in the fifteenth year of his
?ge5*.

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Islam demolished such hereditary privileges and made it open
for the competent and reponsible members of the Ummah.
Constitution of the City-State
The constitution of the Supreme Council of the City-State of Makkah

was the tradition of their fore-fathers: "We found our fathers on a course
and surely we are guided by their foot-steps59. The actions, decisions and
traditions established by some great leaders were also adhered to. Qu?ayy
was one of them and his deeds were taken as a religion to be followed.
Thus the traditions of their forefathers were the highest points of reference
for the Senate.
Comparing the Senate of the city-state of Makkah and the Senate

of the Athenians, Montgomery Watt has observed: "The Macean Maid
was a much wiser and more responsible body than the Athenian ekklesia,
and consequently its decisions were more often made on solid merit of men
and their policies and not on specious rhetoric that could make the worse
appear the better cause".60
Hilf al-Fu$?l ? League of Justice
Justice through the institution of D?r al-Nadwah was administered

quite satisfactorily. It seems that sometime before the advent of Islam
effectiveness of the institution had deteriorated. Grievances of victims
of various offences were not redressed. Life, honour and property of
people were not safe. Murders were committed and various tribes took up
arms against one another and their hostilities continued for years together.
Four battles of al-Fij?r took place successively; the fourth was known as
the Fijar of Barr?t}. 'Urwah al-Rahh?l of the Haw?zin hired Lat?mah
of Nu'man b. Mundhir. Al-Barr?d of the Kin?nah objected to it. Hot
words were exchanged. Al-Barr?d waited for opportune time and killed
al-Rahh?l at Tayman Dhi filai. This war was the most violent; and ac
cording to Ibn Hish?m and Ibn Sa'd the presence of Muhammad, the
Holy Prophet of Islam, has also been reported. Ibn Hish?m has reported
that he was at that time fourteen or fifteen years of age, whereas Ibn Sa'd
has reported he was twenty61. This variation may be due to four wars of
the same name. The first one might have started when he was at fourteen
years old. It was called Fijar because the offender violating the sanctity
of forbidden month committed offence i.e. Lat?mah, imperial she-camel

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was taken away and eaten up by al-Barr?d, an ally of the Quraysh. The
war raged between the tribes of the Quraysh and the Qays. The army of
the Quraysh and Kin?nah, their confederates, was arranged in the following
manner: Ban? H?shim were led by al-Zubayr b. 'Abd al-Muttalib,
Ban? 'Abd Shams and their confederates by Harb b. Umayyah, Ban?
'Abd al-D?r and their confederates by 'Ikramah b. H?shim, Ban? Asad
b. 'Abd al-'Uzz? by Khuwaylid b. Asad, Ban? Zuhrah by Makhramah
b. NawfaU Ban? Taym by 'Abd Allah b. Jud'?n, Ban? Makhz?m by H?
shim b. al-Mughirah, Ban? al-Sahm by al-'?? b. W?'il, Ban? Jamah by
Umayyah b. Khalf, Ban? 'Adi by Zayd b. Amr, Ban? 'Amir b. Lu'ayy by
'Amr b. Shams, Ban? Fihr by 'Abd Allah b. Al-Jarr?h, Ban? Bakr by
Bal'? b. Qays, al-Ah?bish by al-Hulays al-Kin?ni62. The Quraysh suc
ceeded and the Qays were defeated.
In addition to the wars of al-Fij?r some other offences were also com
mitted against the pilgrims and visitors to Makkah. A1-'?? b. W?'il of
Ban? Sahm made a deal with a visitor from Yaman and refused to pay his
dues. From the top of the mount Ab? Qubays he complained againt
the offence of al-'?? and appealed to the Quraysh for help.6 3 The sen
sible men of Quraysh were moved and decided to devise some effective
means to avoid such happenings in future and to help the aggrieved and dis
courage the aggressor. Al-Zubayr b. 'Abd al-Muttalib took initiative and
a meeting was arranged in D?r al-Nadwah which was attended by the
following :
Ban? H?shim, Ban? al-Muttalib, Ban? Zuhrah, Banfi Taym, Ban?

Asad and Ban? al-H?rith.
They agreed to protect the oppressed against the oppressor. Thereafter,

they proceeded to the house of 'Abd All?h b. Jud'?n and there they formed
a confederacy6 4 with the following aims and objects :
Then they mutually made a covenant and agreed that they would
not see in Makkah an oppressed person, may he be a resident of the city
or an outsider who has arrived there from anywhere, but they would stand
by him, and that they would oppose the one who has oppressed him until
he has been redressed"65.
This confederacy was called the ffilf al-Fu4?l which was formed in the year
590 A.D.66. Ibn Sa'd reports that it was formed in Zu al-Qa'dah one

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month after the battle of Fij?r which took place in Shaww?l.67
The institution had the heartiest co-operation of the sensible and

the fair-minded persons in Makkah. All participants worked for it so
selflessly and honestly that within a short time peace and order was res
tored there. An important event may serve as an illustration. Al-Suhayli
records:
A man of the family of Khath'am came to Makkah to perform

'Umrah or pilgrimage with his daughter called al-Qut?l, one of the most
beautiful women in the world (Arabia). Nab?h b. al-Hajjaj, a Makkan
inhabitant, abducted her and hid her from her father. Al-Khath'am the
father of the girl, made a general appeal for help against that man. He
was told by the people to appeal to the Hilf al~Fu4?l. He, therefore, stood
by the Ka'bah and cried "Help o members of the Hilf al-Fudl?l" and there
they came running from every corner with drawn swords, saying, "The
protectors have come to thee what is the matter?" He said, "Nab?h has
done me harm on account of my daughter and has snatched her away
from me by force". They went with him and arrived at the door of the
kindnapper. The man came out to them. They said, "Bring out the girl,
may you be destroyed, and you certainly know, who we are and what we
have pledged to do?" He replied, "I shall do so, but grant me this
night with her." They said to him "By God, we would not allow you to
do this?" so he handed over the girl.68
The Holy Prophet was one of the most active participants in this
confederacy; he always remembered this event proudly and said: I parti
cipated in the swearing in the house of *Abd Allah b. Jud'?n. If I am
called for in the name of that confederacy even in Islam, I shall respond
at the cost of the red camels ? the priceless thing in Arabia.69
Before concluding discussion on the Hilf al-Fu4?l it seems pertinent

to refer to the view of Montgomery Watt who denies that it was a general
league against injustice. Against overwhelming historical evidence Watfs
view cannot hold water. He has no doubt criticised "the cynical view"
and "wicked suggestion" of H. Lammens that the Maccans who opposed
Muhammad had ceased to be warlike and in military affaris relied chiefly
on a force of 'Ah?blsh' consisting of Abyssinian and other negro slaves
with a back-bone of free-lance Bedouins. Here in the case of ffilf al

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Fu4?l, Watt himself holds a similar view in another context. His opinion
is that H?shim and al-Muttalib being weaker, were in need of a confederacy,
and fjfilf aUFu4?l was formed to support themselves against the Ban?
'Abd Shams and Ban? Nawfal who had grown sufficiently strong to do with
out the alliance.70
In support of his hypothesis Watt has interpreted two events in his

favour i.e. the alliances of the Mutayyab?n and of the Iftlaf and dispute
between al-Husayn b. 'Ali and al-Wal?d b. 'Utbah b. Ab? Sufy?n71.
Both the events go against Watt's view. Alliance of the Mutayyab?n
and of the Itil?f was formed when Ban? 'Abd Man?f disputed with Ban?
'Abd al-D?r on the plea that the former had also shares in the functions and
offices set up by their forefather, Qu?ayy. That issue was settled by
arbitration and Ban? 'Abd Man?f were given the offices of the Rifddah
and the Siq?y?h. The quarrel referred to by Watt between Nawfal and
'Abd al-Muttalib b. H?shim (which according to him necessitated the for
mation of the Hilf al-Fud?l) could not have continued. The passage quoted
in connection with the Fij?r very clearly indicates that the clans of 'Abd
Shams, Nawfal, H?shim and al-Muttalib put up a tough and united defence
against their enemy without showing any friction or difference amongst
themselves. It may be recalled that according to Ibn Sa'd the confederacy
of the Hilf al-Fu4?l was formed within a month after the battle of al-Fij?r. 72
Certainly the event referred to by Watt did not happen within these few
days.
Reference of al-Husayn b. 'Ali to the Hilf aUFudlul regarding his dis

pute with al-Wal?d b. 'Utbah b. Ab? Sufy?n 73 may not be taken as reference
to the old Hilf Al-Husayn threatened to form an alliance on the pattern
of the old Hilf aUFu4?l which was formed for the protection of the oppressed
aganist the oppressor. Al-Wal?d agreed to settle his dispute because he was
afraid that if a new Hilf on the pattern of the old one was formed then he
would be in great trouble.74 Jaw?d 'Ali has observed that it was not pos
sible to infer from al-Husayn's reference that the old Hilf al-Fu4?lv/aH still
operative7 5. Further if the Hilf al-Fu4?l were a political alliance of Ban?
H?shim against Ban? Umayyah as is held by Watt then the more
appropriate occasion in the life-time of al-Husayn b. 'All was his political
struggle against the Umayyah. It is evident that al-Husayn never invoked
the lfilf a?-Fu4?l at that critical juncture of his life.

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It seems that Watt somehow or other, is supporting the general trend
prevalent among the orientalists that the Holy Prophet's pre-Islamic life
was obscure and he did not participate in any significant historical event,
not to speak of his participation in a confederacy formed exclusively for
the purpose of maintaining peace and order and protecting the oppressed
againt the oppressor.
TAHKIM ? (ARBITRATION)
Among the procedures adopted to settle disputes between parties,
one of the most important was arbitration. When a dispute arose between
two parties, they agreed to refer it for settlement to a third person or a
number of persons known as Hakams (arbiters).
The cases within the tribe did not always go to the chief; frequently
the parties concerned chose Hakam in the tribe to settle their case and the
verdicts of such a Hakam were almost accepted. A Hakam was generally a
man who, by his nobility of birth, character, age and wisdom, had won the
confidence and respect of his fellow tribesmen. His most important func
tion, as an arbitrator, was usually to attend the annual fairs, such as that
of 'Uk?z, and to hear during the forbidden months all kind of civil and
criminal cases and dispose of them on the spot. His orders and verdicts
were enforced not by any fixed machinery at his disposal, for properly
speaking, there was no such machinery, but by the force of the tribal ethic.
In the case of inter-tribal disputes, the liakams were, under the tra
ditional law, required to be appointed from outside the warring parties.
The normal grip of tribal sanctions was sufficient to bring the aggressor
before these judges and also to make them obey their decisions.
Arbitration was an institution common in Arabia. The Arabs were

proud of their arbiters. Some tribes are very famous for arbitration.
Names of some of the important arbiters of different tribes are given below
against the names of their tribes:
Tamlm:76 Aktham b. Sayfi b. Riy?fc, IJ?jib b. Zar?rah3 al

Aqra* b. H?bis, Abi 'Uyanah, Rabi'ah b. Makh?
shan, ?amrah b. ?amrah al-Tam?m?.

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Quraysh:77 al-Af'iy b. al-Husayn, 'Uyanah b. Hi?n, ?armalah

b. al-Ash'ar, IJarim b. Qatbah, Bishr b. 'Abd
Allah, Ab? Sufy?n b. Harab, Ab? Jahl b. Hish?m,
Anas b. Mukrak, H?shim b. 'Abd Man?f, 'Abd al
Muttalib, Ab? T?lib, al-'A? b. W?'il al-Qarshi.
Kin?nah:7? Rabi'ah b. Hudhar al-Asadi, Ya'mar b. al-Shad

d?kh al-Kin?ni, ?afw?n b. Umayyah, Salamah
b. Nawfal.
Qays: '?mir b. al-Zarib al-'Adw?ni, Ghayl?n b. Salamah
Al-Ya'q?b? has given a long list of arbiters of different tribes. 79

Some women have also been mentioned who were known arbiters.80
Al-Af'iy al-Jurhumi has been reported as the first of all arbiters, who
decided the dispute of inheritance of Ban? Naz?r b. Ma'add.81 He lived
in Najr?n, a province of al-Yaman. The fame and reputation of Aktham
b. Sayfi had spread far and wide. He was the councellor of al-Nu'm?n
b. al-Mundhir, king of Hirah. He advised the king on civil and military
affairs.82 He was also consulted by the chiefs on Najr?n, Juhaynah,
Muzaynah, Aslam and Khuz?'ah.83 Rabi'ah b. Makh?shan a famous
arbiter of Tam?m was known for his elevated seat on which he used to sit
for judgement.84 'Amir b. al-Zar?b al-'Adw?ni was a very reputed arbiter
of the Qays. In his old age he appointed his daughter to remind him if he
went wrong by striking with a stick.8 5
The Jiakams emerged from the people on the basis of their high
standard of morality, sagacity, prudence, practical wisdom and experience,
Hence they were also respected as moral teachers. Some of their decisions
and teachings had far-reaching impact on the Arab society. 'Abd al-Mut
talib had forbidden drinking of wine for himself. Some of his teachings
were: Prophibition of marriage with consanguinity (a!-Mab?rim); amputa
tion of hand of thief, prohibition of burying alive (female), prohibition of
drinking wine and adultry and prohibition of circumambulation round the
Ka'bah in naked condition86. These prohibitions have also been attri
buted to al-Wal?d b. al-Mugh?rah. 87
The above prohibitions may not be taken as laws implemented and

enforced among the Arabs. In fact they were personal opinions expressed

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by fair-minded and sensible people such as 'Abd al-Muttalib and al
Wal?d b. al-Mugh?rah. They were not accepted by the Arabs in general
nor were they publicized among the people. Some persons may have
accepted them voluntarily. Ibn Hish?m has reported that once treasure
of the Ka'bah was stolen by Duwayk an associate of Ban? Mulayh b.
'Amr of the Khuz?'ah. On discovery of the theft, the Quraysh amputated
the hands of Duwayk.88
Arbiters were proud of their tribes. A famous poet praising his

tribe says:
We are the people who served as arbiter in the land of Qul?kh

in Yaman; we are sufficient guarantee to punish the criminal and to red
ress the aggrieved.89
Commenting on this couplet in the Naq?'id of Jar?r and al- Farazdaq

Ab? 'Ubaydah remarks that the first line is also reported as :
"We are the people who served as arbiter in 'Uk??". Ab? 'Ubaydah
says, "(Jar?r said these words) because they were the arbiters and officers
in-charge of the Hajj in Makkah, after '?mir b. al-Zar?b of Ban? Tam?m.
A person from among them used to preside over the Hajj and another
person from among them used to preside over arbitration: so the first per
son who was given the charge of these functions jointly was Sa'd b. Zayd
Man?t b. Tam?m. They held that office till the advent of Islam: Muham
mad b. Sufy?n b. Muj?shi' presided over arbitration at 'Ukaz, so his house
and the last of them who held this office and reached the era of Islam was
al-Aqra4 b. H?bis b. 'Iq?l b. Muhammad b. Sufy?n.
Similarly al-Farazdaq also boasting about his tribe writes:- My

uncle was the person whom the Ma'add (the people of northern Arabia)
chose as an arbiter and sent him to Irs?nto serve as a just judge.90
This uncle was Aqra' b. H?bis a famous leader of Ban? Tam?m,

the tribe to which Al-Farazdaq belonged. Commenting upon this couplet
Ab? 'Ubaydah quotes the names of the famous arbiters in the J?hiliyah
period. Al-Ya'q?bi has reported that all sorts of cases were referred to
the arbiters for seeking their advice and judgement. Mostly they were
political disputes and affairs connected with inheritance, waters and mur

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ders.91 It will be useful and illuminating to cite some famous cases of

arbitration.
Qusayy disputed with the Khuz?'ah over the right to control the
affairs of Ka'bah and Makkah. After a bloody fighting they agreed to get
the dispute decided by an arbiter. Ya'mar b. 'Awf the famous arbiter was
unanimously agreed upon for arbitration. Taking into account the genea
logical and other aspects of the matter he decided in favour of Qusayy.
As regards compensation of the blood of those who were killed by the
Khuz?'ah and Ban? Bakr he announced his judgement that all blood was
crushed under his feet. For this judgement he was known as al-Shad
d?kh.92
Before the office of arbitration was entrusted to Ban? Tam?m it

was occupied by one, 'Amir b. Zar?b. He was famous in ancient history
as Hakam (arbiter) to whom all sorts of disputes, criminal, and civil were
referred for settlement. Only one example is quoted as an illustration.
Once the case of inheritance of an eunich came to him for decision . He
was in great difficulty as to what to do, for he could neither allot to him
the share of a male nor that of a female. He postponed the case for a day.
At night he was lying uneasily in his bed, thinking over the problem. He
had a maid-servant Sukhaylah, who grazed his goats and sheep. When
she saw her master in this state of mental agony, she inquired of the cause.
'?mir reluctantly told her the difficulty. She said, "Well it is easy, ask the
person to urinate; if he used the male organ take him for a male, if he used
the female organ take him for a female". '?mir was extremely pleased
with the solution and gave his judgement in the case accordingly next morn
ing.93
When the Holy Prophet had reached the age of thirty five the
Quraysh decided to rebuild the Ka'bah. During construction of the sanc
tuary when they reached a point where the Bajar al-Aswad (The Black
Stone) was to be placed in the wall, the Quraysh quarrelled over the bless
ings of the ceremony. Ban? 'Abd al-D?r formed a confederacy in a bowl
full of blood which was known as "Ltfaqah al-Damm" and announced
that performance of that ceremony was their privilege. In that most
critical situation, on the suggestion of an old man Ab? Umayyah b. Al
Mughirah, the Holy Prophet was unanimously agreed upon as their arbiter.
He asked for a peace of cloth, put the stone on it and asked the Chiefs

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of different clans to carry it to the wall. When they reached the point the
Holy Prophet put the stone in its place. This was how the Qur?ysh were
fully satisfied with the decision of the Holy Prophet.94
In fact such examples can be multiplied at will because there were

numerous rlakams (arbiters) in various tribes who adequately met the
judicial requirements of the time.
KAH?NAH (SOOTHSAYING)
The other important institution of justice of that period was Kahan'ah
(Soothsaying). Generally those disputes were referred to the K?hins
(Soothsayers) which involved some moral problems of a complicated nature,
or problems in which sufficient evidence was not available or on which a
peaceful agreement between the parties seemed to be impossible through
the agencies of the chiefs or the Hakams. Ordinarily, the K?hins comman
ded more respect from the people than the chief or the Jflakam, because he
performed a regular and permanent function and also because he carried
a halo of holiness about him and was regarded as having relations with the
supernatural. They had vision by night which revealed to them, future
and other events and things hidden from the ordinary mortal.95 Their
decision was considered as a kind of divine judgement against which there
was no appeal. At the same time they interpreted dreams, found lost camels,
decided cases of adultery and cleared the cases of other crimes and mis
deeds, particularly cases of theft and of murder etc.
The dispute that arose at the rediscovery of the well of Zamzam

in the time of 4Abd al-Muttalib can be cited as an important case where
a K?hinah of Banfi Sa'd Huzaym was agreed upon as arbitrator for the
settlement of the dispute. 'Abd al-Muttalib said to his disputants:
"Appoint any one you like between me and you for the arbitera
tion." They proposed the name of K?hinah of Banfi Sa*d IJudhayn.
*Abd al-Muttalib agreed with them and they proceeded to see her
at a place near Syrian border. According to 'All b. Abi J?lib the
parties settled their dispute on their way to the K?hinah and returned
to Makkah9?.
H?shim son of4Abd Man?f was very popular among the Quraysh
for his generosity and poviding dishes of soup-soaked bread (Thartct) ib

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the Makfcati during famine. Umayyah son of 'Abd Shams, was a wealthy
(person* even then he was not popular, and was jealous of H?shim. Their
?yirtual hatred took the form of duel, the decision of which was referred to
a K?hin Of the Khuz?'ah. According to conditions of the duel the K?hin
decided in favour of H?shim and Umayyah had to go into exile for ten
years in Syria. *
Though Umayyah was a powerful tribal chief and had a noble ancestry,
the verdict of the K?hin forced him to leave his tribe and to go into exile
for ten years. This indicates that the K?hin commanded great respect
?nd awe from the highest as well as from the lowest of society.
'ARRAF, 'ARRAFAH ? (FORTUNETELLER)
Among the agencies which served as judicial institutions, fortunetell

?ng was one of them. Social and religious matters of complicated nature
were referred to the 'Arraf or 'Arrafah. At the rediscovery of the well of
Zamzam 'Abd al-Muttalib felt shortage of numerical strength of his people.
He made a vow that if ten sons were born to him and they reached the age
?f puberty then he will sacrifice one of them at the Ka'bah. His desire
was fulfilled and in the assembly of his ten grown up sons he informed them
about his vow. They submitted to his vow. Arrows of oracles were cast
which fell in the name of 'Abd All?h his youngest and dearest son. He
proceeded with ?Abd All?h and knife in his hand towards idols for fulfilling
his vow. His sons and the Quraysh did not like that he should sacrifice
his son. They asked him to present his case before an 'Arr?fah in Hij?z
(Madinah). 'Abd al-Muttalib found her in Khaybar. After hearing the
details of the case she directed them to wait till the spirit appeared to her.
Next day in her judgement she announced that blood money (Diyah) was
the solution of their problem. Ten camels were the blood-wit, but accord
ing to the details of her judgement 'Abd al-Muttalib had to go on casting
arrows of oracles on 'Abd All?h and ten camels until the arrows fell on
camels. On tenth turn arrows fell on camels whose number had risen to
one hundred by that turn. For ensuring the acceptance of his vow 'Abd
Al-Muttalib cast thrice which fell on the camels, which were sacrificed
according to the judgement of 'Arr?fah.9*
JUSTICE AT ANNUAL FAIRS
The sense of personal justice and revenge was most intense in the
Bedouin Arabs. Even the lowest of them demanded justice if any harm

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was done to him; and the aggressor party knew very well that if the due off
the aggrieved was not given to him, he would even give up his life to take
revenge. Vengeance was taken as a rule, by the nearest relative of the
victim; all male members of his family to the fifth generation reserved th?
right of vengeance on the murderer and his relatives. They said the dead
man's blood cries in the form of an owl which cannot be appeased except
by the murder's blood. This situation helped to promote great mutuai
respect; for the same reason when a decision was given the tyrant did not
have the courage to side-track it.
Annual fairs were also among the judicial institutions in Arab

society. Al-Ya'q?bi has enlisted ten of such fairs which were held in
different months at different places in Arabia". 'Uk?? was the most
famous and the largest among them. Among other activities of the
fair administration of justice was one of its foremost functions. Traditio
nally the judicial function was held and presided over by Ban? Tarn?m.
Jaw?d 'Ali has enlisted the following names of judges of Ban? Tan?m:
Sa'd, Hanzalah, Zu'ayb, Mazan, Tha'labah, Mu'awiyah, ?al?aI,Sufy?n.1(*o
Nature and scope of cases referred to the judges of the eUk?#

was very wide. It was held in the sacred month of Zu al-Qa'dah when wars
and raids were forbidden and when routes to the fair were safe. Disputants
of various regions waited for the approach of the fair and travelled long
distance for the settlements of their disputes. Poetic contests were also
held and the judges presided over such functions for deciding the best
poet of the year^oi For an illustration a case is presented which was
apparently decided by a judge at the fair of 'Uk??:
Bukh?ri reports : A man of the family of Ban? H?shim was hired

by a man called Khad?sh, belonging to another branch of the tribe of
Quraysh, to go with him to Syria, as incharge of some camels. On the
way the hired man gave away a tether rope to a passerby without his master's
knowledge, the latter in rage threw a stick at him which hit a vital part of
the man and caused his death. But before he died, a man of Yaman hap
pened to pass that way; he requested him that when he arrived at Makkah
he should tell Ab? T?lib, the chief of his family, how he had been killed by
his employer for the sake of a tether rope. When the employer afterwards
returned to Makkah, Ab? T?lib inquired what had happened to his
man? He said that he had fallen ill on the way and died.

41.203.192.177 on Tue, 19 Oct 2021 11:21:35 UTC
Subsequently, however, the manofYaman who had been charged

with the message by the deceased, came to Makkah and communicated the
same to Ab? J?lib. The man who had engaged the deceased was then mak
ing circumambulation of the Ka'bah. A member of the family of
Ban? H?shirn went up to him and struck him, saying, "you have killed one
of our men." Khadish denied the charge. Ab? J?lib then went up to the
.man and said: "Choose at our hands one of the three things: if you wish,
jgive a hundred camels for the murder of our kins, or if you wish, get fifty
of your tribesmen to swear that you have not killed him; if you refuse either
of these we will kill you in his place. "
According to Zubayr b. Bakkar, both the parties referred the case

to Wal?d b. al-Mugh?rah who decided that fifty men of Ban? 'Amir, the
family of the accused should swear before the Ka'bah that Khadish had
not killed the man. Khadish accepted the decision and spoke to his kins
Koen, they said that they would swear that he had not killed him. Then a
woman of Banfi H?shim, who was married to a man of Ban? 'Amir and had
born him a son, came to Ab? J?lib and requested him to accept his son,
ras one of the fifty and forego his oath. Ab? T?lib acceded to her request.
Next a man of the family of the accused came to Ab? T?lib and said: "You
Want fifty, men to swear in lieu of payment of a hundred camels, so it comes
: to two camels against one man, therefore do not insist on my taking the
oath at th? place where oaths are taken. Ab? J?lib accepted the two camels
and forty-eight men came and took the oath.102
From the foregoing it can be gathered that the Hakam presidings

over at 'Ukaz enjoyed the highest respect in Arabia; he dealt with most
serious and complicated cases and was entrusted with high judicial res
ponsibilities.
It may be concluded from the above discussions that the Arabs,

before the advent of Islam, had different levels of political awraness.
, Vast majority of them were nomads. Their political system was based
on chieftainship. Some tribes were able to establish kingdoms and
principalities, Makkah in Hij?z had developed itself into a city-state with
its various administrative and judicial institutions. By and large the Arabs
were under tribalism. They had no unified political system, no constitu

fff:ffff:ffff:ffff:ffff:ffff:ffff:ffff on Thu, 01 Jan 1976 12:34:56 UTC
JUDICIAL INST?T?TIONS IN PRE-ISLAMIC ARABIA 349
ion and no central authority. Hence administration of justce in pre

tslamic Arabia was in its elementary stages of tribalism. Some consultative
Ibodies set up by certain kings and judicial institutions established at
Makkah constituted an exception.
NOTES
1 Jaw?d Ali, ahMufassalfi T?rikh al-Arab Qablal-Islam (Beirut, 1

2. Ibn Durayd, al-Ishtiq?q, p. 94: with reference to Jaw?d 'All op. c
3. Ibid.
4. Ibn Qutaybah, al-Ma'?rif, (Egypt, 1960-1379) p. 38.
5. Mu'jam al-Shu'ar?9 p. 324. with reference to Jaw?d4Ali, op. cit.t Vol. V, Qays came
to the Holy Prophet in a delegation of Tam?m and the Prophet addressed him as:
h?dh? sayyid ahi al-wabar.
6. Jaw?d 'Ali, op, cit., Vol. V, p. 186.
7. Ibid., Vol. IV, p. 349.
8. Ibid., p. 349, 350.
9. Ibid., Vol. V, p. 180. Jc? J-* J*l
10. Ibid., Vol. V, p. 190.
11. Mul?k ai-Arabia Janubiyah, Mul?k al-Uirah, Mul?k Al-i-Ghass?n, Mul?k Kindah.
12. Ibid., Vol. V, p. 192
13. Ibid., Vol. V, pp. 197-8.
14. Ibid., Vol. V, p. 214.
15. Ibid., pp. 226-228
16. Ibid., pp. 226, 228, 229.
17. Caskel, Lihyanisch, No. 71, 77, 87, 91, with reference to Jaw?d 4 Ali, op. cit., p. 233
18. Jaw?d , op. cit., Vol. V, 234.
19. Jaw?d 4Al?, Vol. V. 233.
20. Ibid., p. 234
21. Aghani, Abu al-Faraj al-I?fh?ni, Kit?b al-Agh?ni (ed. D?r al-Thaq?gah, Beirut)
1962-1381 Kit?b al-Agh?ni, 8:52, Jaw?d 4Al?, op. cit., Vol. IV, p. 411.
22 Ibn Qutaybah, al-Ma'?rif, (Egypt, 1960-1379 p. 640)
23. Ibn Sa'd, Tabaq?t (Beyrouth, 1968-1388 Vol. I, p. 66)
24. Ibn Hisham, Sirah, (ed: Cairo 1955-1375 Vol. I, p. 125) 'Iqdal-Farid, Vol, , p.
> 1 lt / r 3 ference to Jaw?d *Ali, op. eit. Vol. IV, p. 24.
Por some technical reasons the remaining ,

of Mr, 1? Yusuf Goraya's article have been with
held be published in the nexb issue0
Inconvenience caused is regrettod*
Jiditor

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JUDICIAL INSTITUTIONS IN PRE-ISLAMIC ARABIA

Author(s): Muhammad Yusuf Guraya

Stable URL: https://www.jstor.org/stable/20847120

Islamic Research Institute, International Islamic University, Islamabad is collaborating with

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Mohammad Yusuf Guraya

"The King can do no wrong".

Against an overwhelming historical evidence in favour of the

This study has been undertaken to examine in detail the pre-Isla

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lamie constitutional, legal and judicial concepts and principles as provided

The pre-Islamic Arab society comprised two types of Arabs: Bedou

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The chieftainship established at places of water, greenery and vege*

In certain cases chiefs were also appointed by selection. When the

A tribe had two sources of inspiration: ancestry and idolatry. The

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Kingdoms were established in those pairs of Arabia which were

Administration of Justice in Central-West-Arabia

Politicai organization whether it was a chieftainship or a kingdom

The rule of K?hin-Malik, the inspired ruler, was imitated by Chief

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doms of Southern and Northern Arabia* *. This title was so prestigious

Etymologically the word Malik has been used in Semitic languages

Generally, Chieftainships in tribes and kingships in kingdoms were

It seems that the kings and chieftains of Southern and Northern

Inscriptions and other historical evidence reveal that the kings

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Duties and functions of the members of the consultative bodies were

Kindgoms founded in the Western Arabian Peninsula were also

It may be concluded from the foregoing that administration of

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ADMINISTRATION OF JUSTICE IN HIJAZ

Circumstances in rjij?z were different from the kingdoms of Sou

The basis of social organization among the Bedouins was the

DISPOSAL OF LITIGATION IN TRIBES

As regards cases pertaining to the whole tribe such as wars with

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If a member of a tribe did not obey the decision of a Council, or

CITY STATE OF MAKKAH

Makkah was a very old settlement. The Ka'bah was built by Ab

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After settlement of different groups of population Qu?ayy establi

ESTABLISHMENT OF JUDICIAL AND ADMINITRATIVE

For streamlining administration and providing facilitties to the

Al-Hij?bah: Custodianship of the Ka'bah.

Al-Liw?' : Arranging and carrying the standard of war.

al-Siq?yah: Superintendence of water-supply, especially with a view

al-Rif?dah: Provisioning for pilgrims

al-Nadwah: Parliament of the Community

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al-Qiy?dah : Leadership in political affairs

Qu?ayy himself was incharge of the above functions and offices. In

POLITICAL GROUPING WITHIN THE QURAYSH

The above arrangements of succession made by Qu?ayy were perhaps

The sons of 'Abd Man?f ('Abd Shams, H?shim, al-Muttalib and

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ADMINISTRATION OF JUSTICE IN THE CITY STATE OF