Equity and Discretion in a Modern Islamic Legal System

Abstract

Kadijustiz is a concept well known from the work of Max Weber. Its essential element, the means by which judicial discretion and equitable assessments are actually made, is, however, less clearly documented. Drawing on a detailed study of a qadi's court in contemporary Morocco, the present article shows how cultural assumptions give shape to the judge's modes of reasoning, factual assessments, and choice of remedies. The study suggests that if careful attention is given to the broader cultural precepts within which judicial discretion is located, Kadijustiz, whether represented by an Islamic court official or a Western justice of the peace, will be seen to possess definite regularities.

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