Is There a ‘Jury’ in Islamic Law? The Twelve-Witness Lafīfiyya Testimony and the Limits of Judicial Discretion

Abstract

Legal historian John Makdisi provocatively argued that the "English jury"may originate in the so-called lafīfiyya: a testimony of twelve ordinary Muslims whose concurring statements are considered probative in Islamic law of the Maghrib. This article examines the juristic conception and judicial application of the lafīfiyya. It first demonstrates how jurists of the Mālikī school (mahab) of Islamic law elaborated the lafīfiyya as regional "judicial practice"(amal) with stipulations that invoked well-established Islamic legal concepts like circumstantial evidence (qarāin) and quorum (tawātur) - concepts contingent on a qāī's assessment of them. The second part of the paper uses sharīa court case records from the first half of twentieth-century Morocco to examine judicial treatment of the lafīfiyya in practice. I argue that qāīs varyingly balanced their invocation of social discretion and textual stipulation to ensure that the lafīfiyya remained both socially reliable and doctrinally coherent. I focus especially on discretionary judicial assessment of social and/or logical "implausibility"of lafīfiyya testimonies through three overarching instances: urban vs. rural witnesses, testimonial identification and knowledge, and circumstances of bearing witness. In all cases, I show that Moroccan qāīs did not necessarily accept the witnesses' statements as binding fact as a jury; rather, they preserved the lafīfiyya's normative validity by upholding the threshold of logical plausibility. Ultimately, I leverage this discussion to argue for a more contingent understanding of Islamic adjudicative practice inclusive of both textual discourse and social temporality.