NCJ Number
78377
Journal
Law and Society Review Volume: 15 Issue: 2 Dated: (1980-1981) Pages: 217-245
Date Published
1981
Length
29 pages
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.