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68 Calif. L. Rev. 350 (1980)
Islam and Appeal

handle is hein.journals/calr68 and id is 368 raw text is: Islam and Appeal* Martin Shapirot Appeal is a legal phenomenon that Westerners tend to accept without question. The orthodox view is that appeal serves to correct trial errors and thus protect individual rights. Uniformity of law is also commonly advanced as a purpose of appeal. Yet appeal is encountered even in autocratic and totalitarian regimes that have no particular re- gard for due process or the rights of individuals. Moreover, in such regimes appeal is typically employed to allow the highest political au- thorities to dispense personal justice, or, in other words, to give spe- cial and nonuniform treatment to those favored by those in authority. It is the hypothesis of this Article that the basic explanation for the almost universal adoption of appeal by various legal systems lies not in a commitment to individual rights and legal uniformity as general val- ues, but rather in the benefits that appeal mechanisms provide to cen- tralizing regimes engaged in the solicitation of political loyalty and the facilitation of hierarchical control. It is contended that political hierar- chy is the wellspring of appellate processes. This hypothesis will be applied to the legal system of Islam, which stands alone among major legal cultures in its failure to employ appellate mechanisms. After a brief survey of the primary political implications of appel- late processes in general, various explanations for the absence of appeal in Islamic law will be critically examined. It will be argued that the cultural peculiarities of Islam alone do not explain the absence of ap- peal in Islamic legal cultures, since such mechanisms have developed in similar societies. In addition, this Article will explore the institutional factors that may better explain the absence of appeal, including the existence of dual judicial structures and the weak hierarchy of Islamic political and religious organizations. Finally, in a focused analysis of the Ottoman Empire's legal system it will be asserted that appellate procedures flourished as political power became concentrated and, con- versely, waned as that power was dispersed. * This Article will appear in slightly different form as a chapter of Martin Shapiro's forth- coming book, CoURTs: A COMPARATIVE AND POLITICAL ANALYSIS, to be published by the Uni- versity of Chicago Press. It is printed here by permission of the Press. t Professor of Law, Boalt Hall School of Law, University of California, Berkeley. B.A. 1955, University of California, Los Angeles; Ph.D. 1961, Harvard University.