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NCJ Number: 78377 Find in a Library
Title: Equity and Discretion in a Modern Islamic Legal System
Journal: Law and Society Review  Volume:15  Issue:2  Dated:(1980-1981)  Pages:217-245
Author(s): L Rosen
Date Published: 1981
Page Count: 29
Format: Article
Language: English
Country: United States of America
Annotation: This essay probes the nature of equity and discretion in the legal system of contemporary Morocco, where 'qadi' judges dispense justice with recourse to a general set of ethical precepts unevenly employed on a case-by-case basis rather than based on a series of abstract and uniform rules.
Abstract: Research was done on three field trips between 1967 and 1978; focus was on a particular jurisdiction -- the qadi's court in the city of Sefrou (population 50,000) and its surrounding countryside. Practices of the qadi court were observed and interpreted in relation to factual determinations and legal reasoning, the manner of pleading and presentations of evidence, the procedures of the court's inquiry, and the relationship of law and equity. Custom, prior opinion, analogic reasoning, and public interest evaluations all constitute sources of principles used by the qadi. The distinctive qualities of qadis' justice are in their assessment of features characterizing litigants and in their procedural constancy. Crucial are the background relationships that bear on the network of obligations between and among parties. Justice lies not in the simple invocation of rights and duties but in their contextual assessment and in the mode of analysis. If similar cases result in divergent judgments, it is because no two persons are identical and, therefore, the same reasoning process may lead to different conclusions. Cultural assumptions give shape to the judge's modes of reasoning, factual assessments, and choice of remedies. With reference to the broader cultural precepts surrounding judicial discretion, qadi or Western justice can be seen to possess definite regularities. Footnotes and over 50 references are given.
Index Term(s): Cultural influences; Decisionmaking; Islamic law; Judicial discretion; Morocco
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