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The grammars of adjudication

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Zouhair Ghazzal

Chapter 2: Repetition and the reaffirmation of the ideal: The enterprise of judging and the “idealization of the absent”

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The enterprise of judging between cases and texts

1In the well-known tradition of “the ethics of the judge (adab al-qāī),” the stakes were higher than the routinized ethical matters or the management of the judge’s business. In fact, scholars and judges alike perceived their own praxis as a total experience, one that was primarily based on a discursive activity rooted in language and of centuries of hermeneutical labor, and which, in turn, formed the essence of custom-as-law, on the one hand, and the practices of the courts, on the other.

  • 1 On the structure of the Radd and Rasā’il, see Appendices 1 & 2 infra.

2Ibn ‘Ābidīn’s own contribution to the subject, besides the Radd’s preamble and introduction and a couple of the rasā’il, comes in book five of the Radd, the “Book of Judging (Kitāb al-qaā’),” right after the lengthy “Book of Selling (Kitāb al-buyū‘),” and followed immediately by other books related to the topic of judging: witnessing, lawsuit, and litigation. The order in which all these books follow one another does not say much about Ibn ‘Ābidīn’s own thinking on these matters since he reiterates accustomed formats of most anafī treatises.1 The fact therefore that “judging” comes right after the topic of “buying and selling” does not suggest what the enterprise of judging is about. Furthermore, the books related to “the contract of hire (ijāra),” “sharecropping (muzāra‘a),” “pre-emption (shuf‘a),” and the like (such as the concept of musāqāt, another sharecropping contract but related to plantations, is surprisingly located in a different chapter than muzāra‘a), should all have logically succeeded the book of buying and selling (buyū‘) since they represent variations on the contract of sale, which in essence was considered as exchanging “commodities of equal values.” Moreover, since all notions of “rent (ijāra)” have been construed by analogy to sale-a step that has endlessly complicated rent as such by introducing confusing notions of tamlīk (“ownership”) in rent-all the “rent” chapters should have logically been located after those of sale. Yet, in the Radd, these topics come much later, after the distraction imposed by the lengthy digressions on judging and other related topics. The book of judging itself is not characterized by logical organization either: Constructed like the other books and sections along the principle of “request (malab),” it looks more like a collection of fatāwā on issues that could have certainly been ordered more comprehensively. When reading any of the books of the Radd, it is therefore essential to break with the order of the sections and sub-sections, while following as much as possible the logic of the flow of the text itself: in other words, once we create our own order, it is essential to go to the original text-order and see why it has not been followed. The same method applies to the sharī‘a court documents and other legal texts as well.

  • 2 All in-text references in this chapter are from the Radd: the volume number precedes the page numbe (...)
  • 3 On the notion of ilm, see Henri Lammens, “Le «ilm» de Mo‘âwia et des Omaiyades,” in Études sur le (...)

3The judge was a person representing in his own locality the authority of the sultan and the sultan’s desire to rule fairly among his ra‘iyya. The sultan was already a guardian who took care of the public properties-known as arāī al-mamlaka wa-l-auz-of his subjects, perceived by analogy as “minors.” In addition to his guardianship role, the sultan had the capability and the responsibility of making just rulings. He therefore was the first judge, and appointing judges all over his mamlaka was no more than an act of delegation, simply because he could not be physically present everywhere. Unlike the judge, however, the sultan was not appointed by someone else, either a person or an institution: it was rather an act of mubāya‘a from the ashrāf and a‘yān. Yet, even with this bay‘a, which provided the sultan with a mantle of legitimacy, the process would still be incomplete without him “executing his rule over his ra‘iyya out of fear from being himself defeated [khawf-an min qahri-hi]” (5:364).2 So, the primary “contractual” basis of the relationship between the sultan and his subjects was based on “fear (khawf).” But unlike Hobbes’ “fear of death,” which was based on the individuals’ fear from each other’s aggressiveness in the “state of nature,” the sultan was someone who nurtured fear vis-à-vis his own ra‘iyya. He therefore had to conquer those suspicions by imposing his “rule (ukm)” over those who created fear in his own soul, so that the state of fear ended up imposed upon the souls of the sultan’s subjects. What was decisive in those representations of political power was that the act of governing did not rest on anything “contractual”: in other words, there was no “covenant” à la Hobbes or a contrat social à la Rousseau that would have insured any form of “consensus,” either between the subjects themselves or between the subjects and their sultan (and hence with the state in general). A generous approach would perceive the mutual fear-relationship as bearing few similarities with Mu‘āwiya’s ilm: it was indeed a “balance of power” between “adversaries” who were manifestly polite with one another in order to contain one’s “state of anger,” only to wait for the right moment for the fatal blow.3 By establishing tyranny as the rule for “government,” there was little room for a system of justice established on any form of “communicative action,” as Habermas would say, whether distorted or undistorted (“ideal speech”); instead, communication gave way to “defeat (qahr),” “dominance (ghalaba),” and “isolation and seclusion (in‘izāl).”

  • 4 The bay‘a was in principle a process of selection and endorsement of the new sultan primarily by hi (...)

Once the sultan is chosen [būyi‘a],4 and proves unable to impose his own rule [over his ra‘iyya] because of some inability in controlling them, he cannot then become a sultan. For if he becomes a sultan through the process of mubāya‘a, and he proceeds in defeating and dominating, he wouldn’t isolate himself, because if he does become isolated [or deposed], he becomes a sultan only though defeat and dominance, and this is not useful; and if he doesn’t possess the ability to defeat and dominate, he would then become isolated. [...] He should also be tough [shadīd] without being violent, and soft without being weak, because judging [al-qaā’] is one of the most important matters for the Muslims, so that everyone who is more knowledgeable, more competent, distinguished [awjah], with higher standing [ahyab], and more patient with people should have priority [in judging and being a judge]. The sultan should look at that carefully and appoint someone who has that prerogative [yūlī man huwa awlā] because [a adīth said:] “The one who appoints someone to a job and there is someone else with better qualifications, is a traitor to God and His Messenger and the Muslims in general” (5:364).

  • 5 Aziz Al-Azmeh, Muslim Kingship (London: I.B. Tauris, 1997, 2001), maintains that the bulk of Islami (...)

4The venerable position of the judge was therefore, prior to being a judicial appointment, a political one. For one thing, it was a representation of the sultan’s mandate, at the same time, the latter’s toughness and softness. Such qualities, however, would have become meaningless without the prerequisites of qahr and ghalaba. Both notions-defeat and domination-assume in turn the classical Khaldūnian concept of “subservience (istitbā‘)”: the dominating “group feeling (‘aabiyya)” holds on to power by “subserving” the other weaker group feelings; and in this process of political domination, the social and cultural structures of the dominated groups remain “autonomous” on their own. Needless to say, such political domination, even though it mixes tyranny with complex images of legitimation, neither relies upon a theory of kingship nor of “civil society,” nor on a representation of “the republic as a polis,” nor on a “society of individuals” (Norbert Elias).5

  • 6 However, the “contract” in this case is different from the Hobbesian type of “covenant”: indeed, in (...)
  • 7 See supra Chapter 1.
  • 8 On sultanic legislation, see Chapter 10 below.

5The judge could therefore have been the sultan’s “soft” side, that is, the part of him that did not rely upon pure physical violence, but on symbolic violence.6 When justice was no longer associated with delegation of power, the sultan needed an apparatus of justice at his disposal for the same reason he had to conquer and neutralize his enemies-to maintain political power so that his own dynasty perseveres in its being. The sultan therefore delegated power to the judges and other officials for that sole purpose. The judge was the sultan’s representative, manifesting the latter’s desire to rule justly. As Ibn ‘Ābidīn points out, and following a Prophetic tradition, the appointment of judges should only follow one rule: that the most knowledgeable, prominent, and capable person should be appointed. Being his appointee and representative, the judge must have therefore inherited some of his master’s charisma. However, the judiciary did by no means receive its sole legitimation from the sultan. It did obviously identify with its own school of thought, which was locked into a hermeneutical process of totemic identification.7 That circle was broken at times by the power of ruling dynasties, who either mixed the law with their own customs (such as the Mongols), or else created new property and contractual rights to which the law had to bend to; not to mention the power of all local customs which were given as such a factual immediacy, and to whose referents (dalālāt) the law could do nothing but accommodate. The sultan too had the power to break this hermeneutical circle since he was the sole source of new legislation in the form of qānūn (qānūnnāme, dustūrs, firmans, orders, and edicts).8 The system therefore “renewed” itself from two “external” alien sources: custom and sultanic legislation in all their forms, both of which either pushed the fiqh, albeit very cautiously, to orient itself towards the needs of the times, or else created a parallel judicial decision-making process in the form of regional councils and other official institutions.

  • 9 Michael Cook, Commanding Right and Forbidding Wrong in Islamic Thought (Cambridge: Cambridge Univer (...)

6But we need not push further the anafī representations of judicial and political power and their interconnections as they tended to remain pretty limited. In fact, even in the heydays of the ‘Abbāsid Empire, in particular the first two centuries when all four legal schools were still in their formative periods, it was the anbalī groups that were the most unruly, even though they never reached the point of establishing anti-state movements, and their representations of political power tended to be elusive at best. In fact, the anbalī strategy developed around the dubious notion of “commanding right and forbidding wrong (al-amr bi-l-ma‘rūf wa-l-nahī ‘an al-munkar),” and thus tended, depending on the period in question and the charismatic aura of the leaders of their school, either to present itself as a private ethical system with no visible political implications, or else political power was suspiciously looked upon because it did not fulfill its duties in forbidding wrong. But as the power and aura of the anbalites began to lapse with Būyid domination (334-447/945-1055) and then the Seljūq period (447-590/1055-1194), they were even less influential under the Mongols and Mamlūks, despite notable renewals of the foundational elements of the schools under the Damascene Ibn Taymiyya (661-728/1263-1328). But even though Ibn Taymiyya spoke of “the role of constituted authority in forbidding wrong,”9 a theory of the state was never present, or else representations of political (sultanic) power were always wrapped in a moralistic tone.

  • 10 Cook, Commanding Right, 191-92: “In Arabia, as in the Fertile Crescent, the expanding bureaucracy o (...)
  • 11 See below the following section on “the culture of the judges,” and Table 2-1.
  • 12 This lack of articulation between law, state, and society, should be taken into account more broadl (...)

7It is no surprise therefore that under the Ottomans the anbalī movement regressed even further,10 in particular that the state opted for the anafī school, despite some leading figures in the judicial field such as Shaykh Birqāwī and several of the Shaṭṭīs (who were also ‘ālims and biographers).11 What the anbalī episode points to, however, is a conspicuous inability, if not an unwillingness, to frame a discursive problematic that would conceptualize the relationship between the political power of the state (or that of the caliph, or sultan), on the one hand, and the various groups in society on the other. Instead, the moralistic attitude of right and evil, in particular when associated with a militant doctrine, only contributes in obscuring the relationship between state and society.12

8That a sophisticated theory of the state and its relationship to the judiciary is conspicuously absent in anafī doctrine should therefore come as no big surprise after this brief historical survey. In fact, compared to the anbalīs, the anafīs were an even more docile group, whose docility increased further under the Ottomans. But it would be misleading, however, to perceive anafī practice as “state law,” especially as discursive practices in place at various levels only point to a relative autonomy vis-à-vis the state and its institutions.

  • 13 Hodgson, Venture of Islam, vol. 3 (Chicago, 1974), Chapter 3.
  • 14 On the weaknesses of Ibn ‘Ābidīn’s conceptualization of the Ottoman land-tenure system, see Chapter (...)

9If Marshall Hodgson’s characterization of the Ottoman Empire as one of “qānūn-consciousness,”13 which had replaced a much weakened, if not obsolete, “sharī‘a-consciousness” under early ‘Abbāsid rule, is correct, then it is surprising that Ibn ‘Ābidīn’s Radd and Rasā’il demonstrate no cognizance of that transformation: nowhere does the qānūn pose itself as a legal phenomenon worthy of reflection, whose role side-by-side to the fiqh is worth exploring. Such an “omission” is, however, less surprising once we realize that it is complemented by several other crucial omissions. For example, both the mīrī-iltizām and its predecessor, the timār-sipāhī, land-tenure systems were not the subject of any scrupulous conceptualization worthy of an empire whose main source of revenue was agriculture. More surprisingly still, the old obsolete taxation systems of ‘ushr and kharāj were given prominence throughout the Radd as if nothing had happened in the meantime.14 All such “omissions” in terms of a preference provided to much older systems poses a serious problem to modern scholarship, which touches upon the corpus of the fiqh as an historical phenomenon. In other words, and assuming that our historical interpretation follows what a particular author “had in mind” while drafting his text, and that we succeed in detecting a coherence in his thought, how much of that thought is “valuable” in terms of its identification with historical phenomena of the period in question? If a fiqh text only identifies with the notions of its own madhhab while ignoring many other crucial ones, what is then its historical significance for its own period?

  • 15 That process of “renewal” should have in principle been applied by and large to the entire corpus o (...)

10Nowhere did the relationship between judge and sovereign manifest itself more overtly than in the way the sultan ordered his judges what to do and what they should avoid doing. Thus, for example, there was a term-limit, whose raison d’être was never fully explained in the fiqh manuals, as to the legal duration of a lawsuit: once fifteen years have passed from the moment a lawsuit began to be debated in court, the judge should not listen anymore to anything related to the case, except for inheritance and waqf cases. The only explanation provided for such a limitation was that of an act of “forbidding (nahī)” coming directly from the sultan who routinely imposed such behavior on the judges of the empire. In fact, it does seem that this was a limitation that was created at some undefined point by the Ottoman sultans. Quoting a previous legal authority on the fifteen-year limitation, and which Ibn ‘Ābidīn refers to as “my teacher, shaykh-ul-Islām Yaya Efendi, known as al-Minqārī,” “he has told me that the sultans now order [ya’mur-ūn] their judges in all their provinces not to listen to a lawsuit once fifteen years have passed, except in cases of waqf and inheritance. It was also reported in the [Fatāwā] al-āmidiyya that there were fatāwā from the four schools requesting not listening [to fifteen-year old cases] after the aforementioned [sultan’s] forbidding [al-nahī]” (5:419). This act of forbidding came personally from the sultan himself as an “order (amr)” and it had to be renewed from each sultan to his successor in a ritualized way that would look similar to a personal commitment: from the sovereign to his judges.15 But what was the sultan committing himself to exactly? Basically, he gave his judges the guarantee that he would protect them for no longer listening to fifteen-year-old cases; and because that was a commitment rather than a law-even though given full approval in many responsa-it had to be guaranteed by each sultan individually.

Should the forbidding be kept even after the death of the sultan who ordered it so that after him a new one is not necessary anymore? A fatwā in [Ramlī’s] Khayriyya states that the banning should be renewed [tajdīd al-nahī] because it does not persevere on its own [after the sultan’s death]. So if the litigants [in a lawsuit] disagree on whether the forbidding still applies or not, a decision should be made by the judge as to whether what has been ruled upon [al-makūm ‘alay-hi] is affected by it. [...] It is known from the habits of the sultans of the House of ‘Uthmān [Osman] that once a sultan comes to power and a law has been disclosed to him [‘uria ‘alay-hi qānūn] [enacted] by his predecessor, he would normally issue an order to follow it. But this is not enough for our purposes here [that is, the fifteen-year limit on lawsuits] because its meaning [ma‘na] is that he is simply committed to the laws of his predecessors [yaltazim qānūn aslāfi-hi]: he thus orders what they ordered and forbids what they have forbidden. This does not imply that once [the sultan] appoints a judge whom he did not [specifically] forbid to listen to a case, that the judge should be prohibited to do so [on the basis that the laws enacted by the previous sultan have been accepted by his successor]. What [the sultan] should therefore do once he appoints [a judge] is to openly forbid him [yanhā-hu arī-an] [to limit himself to the fifteen-year period] so that he can work with that part of the law he committed himself to [li-yakūna ‘āmil-an bimā iltazama-hu mina al-qānūn]. It is well known that when [the sultan] appoints [a judge], he orders him in his letter of appointment [manshūr] to follow, based on habit [‘āda], the soundest legal opinions of his school [aaḥḥ aqwāl al-madhhab] (5:420).

11The strangeness of such a passage comes from its insistence in having each sultan reproduce the prohibition, to re-open a case after a fifteen-year period in each act of appointment, passed to a newly appointed judge. What purpose did that serve, and why should the banning be passed to each judge individually rather than globally, once the sultan has been enthroned? Apparently, the fact that the banning should be renewed had first been proposed in Ramlī’s fatāwā, and the logic here might well be that the qānūn received its legitimation from and was thus tied to the personal authority of the sultan. So, in transitional periods, when authority passes from one member of the dynasty to another, that commitment to the law must be explicitly renewed-as if the sultan was manifesting a personal commitment to the qānūn of his predecessors. But why then should the same commitment-not to mention the infamous banning-be passed to each appointed judge individually? Could it be a reaffirmation of the sacredness of sharī‘a law versus the temporality of the qānūn? Suffice it to say that the fifteen-year obligation was not a anafī prescription, but one that was enacted by the qānūn, and hence the latter only renews itself through the personal commitment of each sultan coming to power.

  • 16 On the significance of the anafī juristic typology, see Chapter 1 supra.

12What is therefore of interest to us is the parallelism between how the qānūn renews itself in conjunction with anafī practice. Thus, while the latter kept itself alive through a line of jurists whose opinions imposed restrictions on one another, and which should have all in principle been based on the uūl of the founders,16 the Ottoman qānūn by contrast had no legitimating force on its own except an outside sultanic will: for each transitional period, between two sultans, the commitment to the law had to be renewed. While the sacred character of anafism was enough in itself to provide it with the legitimacy it needed, the qānūn was never related to anything other but the sultan’s will and the prestige of his dynasty. Because of the “temporal” (or “secular”) aspect of the qānūn, old and obsolete laws could be dropped, forgotten, or simply replaced by new ones. The sultan had to decide on all those matters not only in the form of edicts and other personal orders emanating from him directly, but also in his appointment of judges: the choice itself was important since it was already a sign of the policies the sultan had the intention of implementing; while the letter of appointment, which made the judge the sultan’s representative in legal matters, confirmed in turn such an intention. The letter also secured the sultan’s commitment to the laws of his predecessor, and requested the judge to follow all the sound opinions of the anafī school.

13The whole issue of the qānūn, however, was brought up only en passant in Ibn ‘Ābidīn’s text in order to underscore the fifteen-year obligation that judges had to honor when dealing with cases whose disputants had opted for a re-trial; and therefore in itself does not represent much of a contribution towards an understanding how anafī practice functions in relation to the qānūn. The major reason for honoring the fifteen-year period in which a case could be left on probation was “to eliminate fraudulent tricks and forgery [wa sabab al-nahī qa‘ al-iyal wa-l-tazwīr]” (5:420). As a matter of fact, the “Book of Judging” was quite severe in its accusations towards the judiciary: corrupt judges who were easily bribed, fraudulent and theatrical suits whose disputants had no genuine case and planned the outcome beforehand, badly kept court registers, and disputants who forged false documents, to name only some of the items in the long list of complaints. So, it is quite possible that the fifteen-year obligation was set in order to deter plaintiffs who, having been disappointed with their first hearing, would reappear much later in another court and come to the judge with false documents, then seek for a retrial. But because such a limitation would have been detrimental to plaintiffs with a genuine case, it divided the jurists as to the scope and meaning of its application: no wonder then a request was made for each sultan to commit himself, all over again, to forbidding a judge from “listening” to a case from scratch.

14The various opinions on that matter fall in eight broad categories. (1) Some jurists argued that “the right of a person should not be dropped with time” (5:420), and in order to ensure the fairness of a case whose plaintiff might still have a genuine plea years after the first hearing, procedures must be reestablished even after the sultanic fifteen-year “rule”: “The sultan who has forbidden his judges to listen to a case after this period should listen to it by himself, or order that the hearing be reopened, so that the right of the plaintiff is not lost; and this is so whenever there are no apparent signs that the plaintiff was fraudulent” (5:420). (2) Other opinions placed the right to decide on whether the hearings should resume or not upon the “consciousness (amīr)” of the judge who was summoned to drop the case in the first place. (3) Another third category of opinions proposed that the judge should refrain from reconsidering a case as long as the defendant is still denying his opponent’s claim; however, if he openly acknowledges culpability, his case should be heard since “there is no forgery with admission [lā tazwīr ma‘ al-iqrār]” (ibid.). (4) When a plaintiff decides to renew complaints against the other party within the fifteen-year time limit, the judge should give allow that opportunity and the hearings should take place in the courtroom (majlis al-qāī); the plea should be rejected only when the timing of the second complaint (or any other one for that matter) has exceeded the lawful period. Ibn ‘Ābidīn then refers to a responsum, or “a fatwā event (ādithat al-fatwā)” (5:421), in which a man, Zayd, had dropped his lawsuit against ‘Umar for fifteen years and never filed suit again even though he approached the judge on several occasions outside his own majlis and summoning him to reconsider his case: Zayd thus lost every right to pursue his case again because he never filed any request in the courthouse itself within the accepted deadline. There were, however, exceptions to the rule mostly related to cases that had to be brought up to court after fifteen years. Had Zayd, for example, bought a house from ‘Umar, and, twenty years later ‘Umar denied the act of purchase, the whole contract would have to be reconsidered in court, had Zayd demanded so, in order to push both parties to furnish evidence. What makes a re-consideration of the sale contract valid is the lack of opposition from both parties: in other words, “the one who was in possession of the property did so without any opposition [kāna wāi‘ al-yad bilā mu‘āri]” (5:421). Women used to conclude marriage contracts that included a mu’akhkhar, and quite often, after a divorce or the husband’s death, these sums had to be renegotiated with the beneficiaries of the succession, so that lawsuits could have been initiated several decades after the initial marriage (considered, from a legal point of view, as the first year of the fifteen-year grace period).

15The remaining clauses and exceptions set by jurists over the issue of the fifteen-year grace period are striking in their similarity of the arguments, mostly related to waqf conflicts stretching over generations of beneficiaries, or orphans’ money, and the like (5:421-22). What this episode shows-in a way that is reminiscent of the discourses on land, rent, and tax-is how point by point confrontations were likely to occur between the qānūn (in the form of sultanic decrees) and anafī practice. In fact, for every law, decree, or “order,” it was likely that the jurists would confront them with a complex line of opinions and arguments that were neither totally supportive nor against. The jurists’ opinions presented a “rainbow” of arguments, finely graded and composed of varying hues and gray areas, and with so many twists and turns that at times it would look as if a counter-argument had been established against the official sultanic law. However, upon closer inspection, such an opposing view would appear merely as a formality, allowiong for many possibilities. In the case of the fifteen-year grace period, even though it did receive an overall juristic consensus, the multiple opinions and exceptions made it hard to enforce the rule in a straightforward manner. The paradox here is that the sultanic rule was meant to curb the judges’ authority by making it difficult for them to support plaintiffs and play with cases that took forever to adjudicate: there was thus an awareness that time was an important factor-since evidence was mostly through witnessing. Yet, those same judges who were appointed by the sultan, and were at times perceived unfavorably by the jurists who looked down on them, had to follow those same jurists’ recommendations in order to decide when not to apply the fifteen-year rule. Such ambiguities came from the jurists’ middle-ground position between the judges and the bureaucracy, on the one hand, and as keepers of an old legal tradition, on the other. Their discourse therefore shifted from complete obedience to the law to a set of finely tuned opinions. Thus, as soon as Ibn ‘Ābidīn completes his discussion of all eight clauses, which in reality were like counter-arguments to the sultanic fifteen-year rule, he reemphasizes the accepted dogma that “obedience to the imām [or sultan] is a duty [ā‘at al-imām wājibah]” (5:422), and that the sultan ought to be looked upon for all practical matters as the supreme judge “whose ruling over two opponents should be executed” (ibid.).

16From our perspective, it all amounts at being able, from such scattered material, to reconstruct the juridic and political framework of the Empire. If anafism was low at articulating a doctrine of sultanic power where the juridical would find its natural place, it was probably because of a general weakness in the Arab and Islamic political discourse. As long as power was something to be acquired and maintained by force whenever necessary, there was not much room left to work out a consensu²al framework with the “societies” of the Empire (or the ra‘āyā, or ra‘iyya), its populations and “subjects.” In a strange way, political power becomes what jurists commonly refer to as a aqq ‘aynī, or the “right of possession” of the tangible object. When political power therefore stands on its own, the so-called “intermediaries” among the nobility were no longer integrated within a higher political framework that would have bypassed their regional and familial allegiances. Such a local grounding was indeed highly visible in the politics of the regional councils (see Chapter 9 infra). Similarly, the religious courts remained a regionally backed apparatus of justice surviving from its own internal networks rather than from a higher process of supervision and evaluation. The judge’s allegiance for his sultan was therefore highly symbolic, and was an outcome of the fiction of the sultan as the Empire’s first judge and legislator. Such images, however, in addition to the sultan personally appointing judges, had no effect whatsoever on any process of “centralization” that would have affected the judiciary. That was to come only much later-in the 1860s-when copies of the Napoleonic Codes began to circulate.

  • 17 I was unable to identify a Jamāl al-Dīn al-Bazdawī, who is quoted as such in the Radd. There is, ho (...)

17There is a similarity between the jurists’ position on land and that of their critique of the enterprise of judging. For one thing, they did accept the massive state ownership of rural lands (see Chapter 4 infra); yet, at another level, they also did acknowledge the legitimate rights of those who worked on their lands for a period of time without, however, any “official” evidence of ownership. Similarly, in the enterprise of judging, jurists kept at the surface a soft language that went along with the basic premises of the system, but at another level, they undermined its legality by pointing to its corruption. Thus, Ibn ‘Ābidīn looked at “bribery (rishwa)” as a phenomenon that had become an inherent part of the system: under the euphemism of “produce (or yield), maḥṣūl,” judges were openly bribed either before or after the ruling. Already an earlier generation jurist, Jamāl al-Dīn al-Bazdawī,17 had noted that “I am perplexed on the issue of whether to accept [the judges’] rulings because of the confusion, ignorance, and arrogance [jarā’at] I see in them. And I am unable to propose [a general request] of withholding execution because the people of our time [ahl zamānu-nā, meaning the judges] are all so. If I issue a fatwā invalidating [such rulings], that would render all rulings invalid. The judges of our time have spoiled our religion and the sharī‘a of our Prophet, so that all what is left of them is the name and the fee [al-ism wa-l-rasm]” (5:363). And Ibn ‘Ābidīn then adds his own views on the judges of the early nineteenth century:

  • 18 The Ottoman grand muftī Abū al-Su‘ūd (or Ebu’s-su‘ud), who held his position between 952-982/1545-1 (...)

[Bazdawī’s comments] were on the judges [of his own time], so what should we say on the judges of our own time who are worse than their predecessors because they think that everything that comes to them as yield [maḥṣūl], based on their own distorted allegations, was permitted by the sultan? I heard from some of them that the Mawlā Abū al-Su‘ūd18 issued a fatwā on this, and I think this is a disservice to him [iftirā’ ‘aly-hi] [...] Some associate the appointment for a judge’s position with bribery [man qassama akhdh al-qaā’ bi-l-rishwa], and this is now called muqāa‘a or iltizām, so that a man of justice [rajul qaā’] has devoted to him a iya where someone pays him a known sum in order to adjudicate and make himself independent by keeping everything he gets as fees from the total income to himself [wa yastaqill bi-jamī‘ mā yaḥṣulu-hu mina al-maḥṣūl li-nafsi-hi] (ibid.).

18And he later notes that many of the anafī ‘ulamā’ of the school thought that “the majority of the judges of our time in our countries [bilādu-nā] are peacemakers [muāli-ūn] because they were appointed to their position through bribery [...] Some Shāfi‘īs express this by saying that what we have is a judge of necessities (ī arūra) since, from our knowledge, there is no judge but who bribes and was himself bribed” (5:428).

19The unflattering image that is sketched regarding the judiciary is drawn in parallel to a common perception of the iltizām system. In fact, judging from the harsh descriptions above, both the appointment of judges and that of multazims seem to have followed a similar if not an identical logic, and what could have indeed triggered the process of lowering their status (at least compared to earlier periods) was that both positions-judging and rent- or tax-collecting-were appointments of the sultan and his bureaucracy rather than an open competition. Thus, appointed judges, like their fellow multazims, would be granted a muqāa‘a over which they would be able to establish their “rule of law.” In the language of the iltizām system, a muqāa‘a was a “fiscal unit” that the multazim was in charge of and whose responsibility would be limited to collecting the mīrī from the peasantry. In principle, however, those fiscal units were open to the highest bidders, but in practice multazims were increasingly pushed to purchase their way through. Similarly, judges had to get through the system, paid bribes to be appointed, and because of their non-familiarity with the subject matter, had to rely on their deputies and scribes to adjudicate. Because they had to bribe higher officials to be appointed, and also to be kept in their positions, judges imposed fees and accepted bribes to get things done: the totality of this “income” was what Ibn ‘Ābidīn referred to as maḥṣūl and which was, according to him, more of a system of bribes than a genuine income. But since Ibn ‘Ābidīn fails to distinguish between local, outside, and expert itinerant appointees, his general evaluation of the position of judgeship ought to be taken only as an overall appreciation that would become less helpful once we finesse over the details. In fact, as our discussion below on “the cultures of judges” shows, even though the dominant ‘ulamā’ factions all contributed in one way or another to the sharī‘a courts, appointees from outside the system kept pouring in, and with few itinerant experts receiving some of the highest appointments. In effect, if a more balanced picture is worked out, corruption will still be there, but not necessarily limited any longer to a particular cause or group.

  • 19 Ibn Nujaym, “Risāla fi-l-rishwa,” in Risālāt mujma‘a li-Ibn Nujaym, MS. 5105, microfiche 7077 (Dama (...)

20The anafī literature has devoted a great deal on the crucial issue of rishwa, that is, “bribing judges for the sole purpose of enhancing one’s case,” and how this method of payment demarcates from legally accepted “fees (rasm, pl. rusūm),” or “presents (hadiyya/hadāyā)” given to the judge either before, during, or after the trial. Some of these arguments were already introduced by Ibn Nujaym in one of his rasā’il. The rishwa, he argues, was prohibited in the Qur’ān, adīth, and also by consensus among scholars, and was usually given to a ruler (ākim, in this case a judge) in quid pro quo for a specific purpose: so that the judge would side with the giver during the trial. The “present,” on the other hand, “has no condition attached to it [al-hadiyya lā shara ma‘a-hā].”19 Ibn Nujaym, however, skillfully separates between the action (and intention) of the giver and that of the receiver: “this bribery is unlawful for the taker but not for the payer [al-rishwa arām ‘ala al-ākhidh ghayr arām ‘ala al-dāfi‘]” (ibid.), and as a rule it should apply for every taker/receiver who was placed in a position of “ruler, āhim,” including the sultan himself. Thus, it was unlawful to pay the sultan a sum of money in order to promote a case that one placed in his hand for adjudication. Strangely enough, Ibn Nujaym finds a way, through a long détour, to accept a receiver’s eagerness to take (akhdh) the rishwa in such a way that it would make it lawful. The taker/receiver (al-ākhidh) agrees with the giver on a semblance of a hire contract (ijāra) for three days or so in which “what he wants to be paid to him” becomes the “fee” or “rent”: the idea here is to place the taker/receiver in some form of a “labor contract” where he is paid for a “labor (‘amal)” he did to the payer. In other words, a “gift”-cum-rishwa is legal as long as it has been contractually settled as an ijāra contract, so that it would legally fall under the category of māl mutaqawwam, that is, as a thing with a commercial value. However, the jurists disagreed on whether to accept as lawful a sum paid by someone who came to the sultan to settle a matter and gave him money after the settlement was over: Ibn Nujaym thought it was lawful for the sultan to accept such a payment because it did not affect in any way his action towards that person in particular. On another matter, he sees a parallelism between a judge receiving money as a bribe and “borrowing” from someone involved in a lawsuit. “Borrowing (istiqrā wa isti‘āra)” could well achieve the same functionality of a bribe, that is, affect the process of a lawsuit, in particular if the judge were to be dishonest or not careful enough.

  • 20 See Table 2-2 on “fictitious litigations,” and several of the cases analyzed in detail in Chapters (...)
  • 21 They were already very common since the beginning of the nineteenth century, but their origins rema (...)

21Be that as it may, the emphasis on bribery could shed some light on some of the sharī‘a court procedures. With the kind of judges that the jurists had in mind, one wonders how such a level of “corruption” would have affected the integrity of the judicial decision-making process: if bribery was that common, could the disputants have made use of the system in such a way that was only convenient to them? The first question that comes to mind when going through many of the sharī‘a court documents is how “genuine” those cases were: that is, whether the “litigations” were true or fictitious and staged in such a way so as to look like the outcome of a genuine conflict, but whose real motive, however, was to secure a final ruling that would act in lieu of a contractual settlement (in particular in an apparent effort to “consolidate” familial properties) (see infra Chapter 5). The “Book of Judging” contains an explicit warning against faked cases in which the disputants only claimed to be genuine litigants: “If the judge knows that the heart of the matter is not like what it appears to be [in al-amr laysa ka-āhiri-hi], and that there is no conflict and no litigation [lā takhāum wa lā tanāzu‘] between the disputants on the same issue, he should then refrain from listening to this lawsuit since there is no obligation for the system of justice [to devote itself] to [cases like this], and it is illegal to dupe [itiyāl] the system in matters like that” (5:354). Such a strong warning could be an indication that such cases, where “litigation” was a pure hoax, were indeed numerous. The problem, however, is to be able to determine a genuine case from a faked one. That will not be an easy task especially since all suspicious cases did formally follow all the accepted legal rules, and it remains uncertain whether Ibn ‘Ābidīn would have considered what we have labeled in this study as “fictitious litigations,” or “procedural fictions,” as faked and illegitimate cases (see Table 2-2 infra). To use a common philosophical and legal language of the period, at the surface of things (āhir), there were no violations of the law, but beneath the surface, how things effectively were (in), one could look at the same “litigation” in a different light: for instance, the fact that many of those litigations seemed purely ritualized, routinized, repeating one another with the same jargon, tricks and twists, to the smallest detail; and, above all, the testimonies of their witnesses were never challenged and always accepted at face value by the opposing party, and hence by the judge himself. Such indications, among others, could well indeed constitute signs of the duped trials that Ibn ‘Ābidīn did warn against. Considering, however, that judges were generally advised “to rule based on appearances [yakum bi-l-āhir]” (5:365), how would it be possible for them to look at what was going on “beneath” the surface? But the real problem, from the standpoint of our study, lies elsewhere. In fact, the widespread phenomenon of “procedural fictions,” which had become standard in the sharī‘a courts,20 cannot be described purely and simply in terms of “bribery” and “corruption,” and it is anyhow uncertain which precise cases Ibn ‘Ābidīn had in mind, if any, when coining such terms. Fictitious litigations became indeed so common at a yet to be determined period,21 and so widespread in both civil and criminal procedures, that they cannot but be perceived as legal subterfuges accepted within the system aimed at expanding the possibilities of contractual settlements.

22While maintaining its abrasive tone, Ibn ‘Ābidīn’s text mixes the facts with what makes them valid. Even though many of the phenomena he was depicting did not apply anymore to his own time-for example, the kharāj taxation system (see Chapter 4 infra)-his insistence in keeping up with the tradition while discussing such “obsolete events” as if they were part of his own society, is nevertheless staggering. Not only does the “Book of Judging” not contain any reflection on the Ottoman qānūn, but, moreover, the problems caused by the interaction of two legal systems with different foundations are only alluded to, and one could foresee several other major lacunae in all eight volumes of the Radd. To use Jürgen Habermas’ terminology, there was a high level of “counterfactual imagination” in Ibn ‘Ābidīn’s text, which, to be sure, is characteristic of such discourses in general. That kind of imagination is by all means a necessity for any type of discourse, as it enables individuals to keep believing in things that do not exist anymore or that never existed for that matter.

  • 22 .Qarā’in (singular: qarīna): “verbal or nonverbal indicators that clarify a part of speech extraneo (...)

23What was therefore the meaning of the “ideal of judging” and how did it relate to the historical reality of the Ottoman system? At the most general level, there were the “basics” of adjudication that made it possible to proceed with a decision making, and which for the sake of simplicity could be reduced to seven elementary evaluations: 1) the accumulation of proof and evidence (bayyina); 2) the confession or admission (iqrār) by the opposing party of the other’s allegations; 3) taking oath (al-yamīn) in order to confirm a claim or allegation; 4) the abstention or refrainment (al-nukūl) from taking oath, which in itself could be enough “evidence” that the other party made the right claim; 5) the “gracefulness” and elegance (qasāmah) of the arguments presented in court; 6) the knowledge (‘ilm) of the judge and his ability to make the right decision; and 7) whether all of the above were provided with enough clear and reliable evidence (al-qarā’in al-wāia)22 prior to the final ruling (5:354). At all levels, therefore, involving judicial decision making-in particular items (2) to (4)-the system faced the “facts” in a particular way, certainly very different from modern systems of justice. In the above seven steps, the key part was that of “accumulation” of “evidence”: What was exactly meant by “evidence” and how did it “accumulate”? If “evidence” is reduced to “factual matters” whose importance was crucial to the case in question, then those facts were accepted in court not through any “investigative” process but more as an assortment of ethical, moral, and religious conventions that determined whether a witness was reliable or not, or whether the opponent’s contestation of a testimony was valid or not. In fact, a testimony was in general honored as long as it was left unchallenged by the opposing party. In other words, there was no “method” that would have constructed an investigative process to determine the truthfulness of statements within a testimony. Statements were not looked upon as objects of speech (signs) whose veracity had to be confronted with facts “outside” their own being. Items (2) to (4) in particular were non-rational modes of accumulating evidence in that they honored traditional modes of oracular justice (e.g., oath-taking) for receiving a truth-claim that could not be proved on purely rational grounds.

24If anything holds true in the “Book of Judging” it is certainly the digressions on the complementarity between iftā’ and qaā’. Some sharī‘a court cases did overtly rely upon a fatwā drafted by the muftī of Beirut or Damascus (or the locality of the plaintiff or defendant), and typically the text of the fatwā would be inserted right at the end of the document, after the case, the testimonies, arguments, and counter-arguments have been fully argued, and before the judge’s final ruling (see infra Chapter 7). In itself, such an arrangement gives the impression that the fatwā was indeed the last resort-the opinion that the judge badly needed before making his own mind. (The presence of a fatwā is in itself enough evidence that the case was not fictitious; theatrical litigations were typically more routinized and avoided the small level of “unpredictability” that the fatwā could have brought in.) Fatwās were either requested from a muftī by one of the disputants (in most cases, the plaintiff) or by the judge himself. So the purpose of the fatwā was to strengthen the viewpoint of one of the litigants, even though, it should be kept in mind, fatwās rarely did address the case as a whole: instead they focused on one or two elements only. In one such case, for example, the fatwā dealt only with the defendant absenting himself without notice for a long time from court rather than with the central issue which was the disputed land (C 7-2). Because of their specific character, and because their presence was an indication that the usual procedural routines stumbled at some point, fatwās ended up being the only element of novelty within texts with predictable syntax. They also helped in bridging the “gap” whenever the traditional opinions were either confusing, out of date, or else failed to provide any clear answer (silence of the law).

  • 23 See above Chapter 1 on customary law.

25Because of their essential nature in court cases, fatwās were a complementary side to judicial decision making, on the one hand, but also created, on the other, tensions and rivalries within the judicial apparatus. For one thing, muftīs were of a higher status than judges; their opinions therefore mattered much more and provided crucial answers to stumbling cases. Moreover, because anafīs were “open” in recognizing well established customary practices,23 it was usually the muftī (and seldom the judge) who had to provide the adequate line of reasoning that made a custom legal. Due to the importance of muftīs and their higher rank in the judiciary, disputants summoned them with questions, hoping for a written responsum in return; the disputants would then force their way through into the court, a way to intimidate both opponent and judge: “It has become a habit today that everyone with a muftī’s fatwā in hand would assail [istaāla] his opponent and defeat him by simply uttering that the muftī gave me a fatwā, so the law is on my side and my opponent is an ignoramus who does not know what is in the fatwā. It is therefore necessary that the muftī be fully alert [mutayaqqi-an] and knows the tricks of people and their intrigues [dasā’is]” (5:359). Such attitudes suggest that disputants typically sought the opinion of a muftī first, and tied their success in getting a responsum with the possibility of another success in court. Ibn ‘Ābidīn thus urged muftīs to look carefully at the matter in question and suggested a few precautionary measures to limit the lies and intrigues of disputants. He thus proposed that muftīs meet with both adversaries rather than one of them, listen to the two sides of the story, be careful of faked testimonies, and then question the disputants directly rather than through their representatives; the latter were professionals and had therefore more experience in cheating and lying.

26Ibn ‘Ābidīn was probably not as harsh with muftīs as he was with judges, but his comments were not that complimentary either. Muftīs are described as generally being in a state of “inadvertence (ghafla)” from which “a great deal of damage has ensued [yalzam min-hā arar ‘aīm]” (ibid.). The role of the muftī is closer to that of a “storyteller (rāwī)” than to a witness or a judge, but his storytelling, however, has to be performed in writing-from the requester to the replier (the muftī)-in order to avoid any confusion.

There is no doubt that as long [the request was made to the muftī] in writing, and he did reply [in writing], then the fatwā is legal. But if he has been dedicated to fatwās [manūb-an li-l-fatwā] with common people, women, Bedouins [a‘rāb], and others, coming and posing questions to him, he should then be able to listen well because it is not possible that every requester writes down his question. The disputants would come to him and one of them would speak in such a way so as to show that the law is not on his side, but if the muftī did not hear that from him and then issues a fatwā based only on the part that he was able to listen to, the right of the [inquirer’s] opponent is then lost. This is something that I often witnessed, and we should not hesitate to declare that such a person is not fit to be a muftī, in particular if a judge is waiting for his reply so that he could complete his ruling, because the damage, created [by such errors] could be great. (5:360)

  • 24 That is, Shaybānī’s six works of uūl, see supra Chapter 1.

27Even though this passage is limited to a muftī’s ability to listen properly-and apparently in its two sides: the physical and figurative-it does point out, however, to two broad criticisms that Ibn ‘Ābidīn’s texts often reiterate. In fact, seen in conjunction with the Rasā’il, the implications regarding the iftā’ institution as a whole are twofold: 1) Due to the importance of custom in the “renewal” of anafī practice, muftīs took ipso facto the role of mujtahids within their community. When an opinion had to deviate from what was commonly accepted as āhir al-riwāya,24 it typically was furnished by a muftī’s fatwā: muftīs were in fact always pressed with questions originating directly from the courts, and their fatwās thus not only operated with a tighter grip on facts than legal doctrines, but they also signaled what may have become obsolete in terms of legal reasoning. Muftīs must therefore know a lot, not only the legal doctrines of their own school, but more importantly, the customs, habits, and daily languages of their own communities. 2) The muftīs’ alleged weaknesses were complemented by an overall sloppiness in preparing and drafting their fatwās, and a carelessness in dealing with and listening to disputants. Written questions and responsa were much more reliable, yet, because they were not required by law, disputants often opted for an oral route, which was more uncertain, but at least accorded them an avenue of redress whenever they failed to receive a straightforward written responsum. The writing part will come again and again in the Radd, in particular on the role of writing, signs, signatures, and seals, for maintaining the sijills.

  • 25 In the al-Úahīriyya, for example.

28But how much of a mujtahid was a muftī? And was the ijtihād and tajdīd limited to him personally, or could they have been the judge’s qualities as well? It was commonly accepted25 that a judge could issue a fatwā to individuals who were not disputants in his own court, in other words, the judge would act as muftī towards individuals who were not asking him to act also as a judge: either a fatwā or a ukm, but not both. Others have limited the iftā’ of the judges to few areas related either to religion (diyānāt) or else to pecuniary transactions (mu‘āmalāt) (5:360). But whoever issued a fatwā, whether a muftī or a judge, there were rules to be followed and hierarchies to be respected. The question arises at all three levels of the judicial apparatus-legal doctrines, fatwās, and courts-as to whose opinion, among the three founders, should have priority over the other two if their opinions diverge regarding a specific issue, as is often the case. It was commonly agreed that whenever one of the disciples’ opinion was in accordance with the founder’s own, then that was the legitimate opinion. But it became more confusing when both disciples disagreed with their master: the latter’s opinion could be favored over the other two, or a choice was possible, or, as a final possibility, the disciples’ opinion would get full support whenever it was seen as a result of the “changing times (taghyīr al-zamān),” such as approving a prevailing view in judging (āhir al-‘adāla) on the opinions of the late jurists on matters ranging from sharecropping (muzāra‘a) to specific kinds of transactions (mu‘āmala) (ibid.). The same argument-that new opinions that did not match those of the founders were de facto created as a result of changing customs-was put forward to underscore the role of custom in forcing new arguments and opinions on anafī practice.

29Once such distinctions among the three founders are worked out, other ones among jurists become all related to distinctions between muqallid and mujtahid. A mujtahid mulaq is an independent interpreter who, having rooted his knowledge in the Qur’ān and sunna, develops an ability to clearly discern all indicators in textual sources (āra lahu malikat al-naar fi-l-adilla) and to derive legal rules for novel cases (istinbā al-akām) (ibid.). By contrast, a mujtahid muqayyad works within limitations imposed on his interpretations and is therefore unable to introduce novel arguments. So, a muftī mujtahid receives his reputation from the power of his interpreting the legal rules (quwwat al-mudrak, also: al-adilla), even though it was commonly accepted as “sounder (aaḥḥ)” that a mujtahid was a learned jurist who just practiced the art of tarjī, that is, setting aside all opinions and preferring one over the other: “we follow what [the mujtahids] favored and established as if they completed their fatwās in the lifetime [of their predecessors]” (5:361). The idea of interpreting a text and creating opinions and preferences out of a line of textual predecessors as if the interpreter lived in the lifetime of those authors (kamā law aftū fī ayāti-him) is similar in modern law to interpretations that follow “an original author’s intention.” With such a view, which emphasizes the original author’s intention, there is little room for even accepting an “adaptation” of the text to novel problems: interpretations are helpful, within this line of reasoning, in clarifying the older canonical texts and in selecting-by creating preferences-the relevant fragments for a contemporary inquiry-and only the genuine mujtahids are capable of doing so, while the others are just “followers (muqallids).” Ibn ‘Ābidīn quotes at this point one of the last major anafī jurists who preceded him, Khayr al-Dīn al-Ramlī: “The muftī is the true mujtahid and everyone else follows [nāqil: transmitter] his opinions. So how is it possible for us to create fatwās based on the imām’s opinion when the jurists themselves provided contradictory ones? We can only accept their fatwās and nothing else” (ibid.). In one of his rasā’il, Ibn ‘Ābidīn expresses a similar opinion that he then reiterates in the Radd: “What [is commonly accepted] is what the jurists of the school have agreed upon, whether it follows or not the opinions of the imām” (ibid.). The anafīs thus gave preference to their own line of interpreters and to the consensus that was originally based on conflicting interpretations. A juristic typology favoring all three founders, on the one hand, and an imposed categorization among mujtahids and muqallids, on the other, was at the root of every consensus on each issue. Such a typology was so crucially important for the school’s survival that even the imām’s sole power could not possibly have undermined it.

30What was said of muftīs and their ability to pose novel interpretations was also in principle true for judges who were, in turn, divided among mujtahids and muqallids. A mujtahid-judge had to look carefully at the Qur’ān and sunna, poise over the opinions of the most reliable of scholars (which, in effect, have replaced the scriptures as a source for precedent), and check which ones are worthy of tawātur (concomitant, and therefore binding opinions), before selecting among all opinions only those most relevant to the case at hand. However, judicial decision making remained a hidden phenomenon and a well kept secret within the sharī‘a courts themselves and was thus never fully assimilated at the doctrinal level. That should become more evident once we discuss our cases in the following chapters.

  • 26 The nawādir (“rarities”) for the anafīs refer specifically to all Shaybānī’s works that are not in (...)

31The followers (muqallids) adhere to the opinions of the genuine interpreters and innovators (mujtahids) through a process described as “reference to the tradition” (naql al-kalām, literally: “copying speech,” sometimes referred to as al-tanaqqul ‘an al-mujtahid). There are two alternatives (arīqs/uruq) for a follower to “adopt” from any innovative interpreter: either by relying upon an “authoritative source (sanad),” or else by selecting (ya’khudh) from a well known book (kitāb ma‘rūf) that circulates around, such as the works of Shaybānī or the other founders, or those having achieved their status (5:366). Those should attain the “status of a concomitant and binding event [manzilat al-khabar al-mutawātir]” (ibid.), meaning incorporated within anafī dogma. For this reason, “copies of Shaybānī’s works outside his six uūl [nisakh al-nawādir]26 in our own time do not enjoy the same status as [the originals left by] Muammad [Shaybānī] and Abū Yūsuf because they neither received the recognition [tashtahir] of our time nor our localities [diyāru-nā], and did not circulate widely enough either [tatadāwal]” (ibid.). On the other hand, references to Shaybānī’s less authoritative nawādir would be taken into consideration if already validated within the more well known works of Marghīnānī’s Hidāya and Sarakhsī’s Mabsū because that would imply “placing our confidence (ta‘wīl)” in them; in other words, the reliance upon the lesser well known nawādir works, which have only circulated in untrustworthy copies, but which have been quoted and “accepted” in the more known canonical works of the school, is what brings the nawādir back to life-only through scholars who have achieved the status of the founders.

32Thus, at several discursive levels-the fiqh, fatāwā and sharī‘a courts-all three systematically relied on past traditions from the school; but while the process of “authoritative reference (naql)” was fully “archived” for the fiqh and fatāwā, it remained obscure, if more secretive, in the procedures of the courts. In fact, it was common for jurists to represent their school’s practice as perfectly well integrated, so that opinions were carefully categorized and selected in such a way that any scholar would find his way by following the proposed remedies.

  • 27 Niklas Luhmann, “Quod Omnes Tangit: Remarks on Jürgen Habermas’s Legal Theory,” Cardozo Law Review (...)
  • 28 Luhmann, “Quod Omnes Tangit,” 888.

33By reason of the use of language, Habermas describes how discourses transcend themselves. What makes the self-transcending of the discourses possible are the idealizations and the contrafactual assumptions.27 Idealizations help individuals at different times to refer to the same thing: in other words, time stands still at the discursive level while the overall historical situation alters. Thus, for example, a major condition set forth among anafīs when approving an opinion or text as part of the canon was their tawātur, that is, the frequency with which they tended to circulate from one text to another: what the canon was therefore concerned with was the iterative character of its texts. As Niklas Luhmann noted, “The idealizations continue to be used in the sequences of communicative actions, as if they were always the same. Formulated in Derrida’s terminology, it is a question of répétition, not of itérabilité. But in reality the overall situation alters-différence!-and precisely in linguistic communication from moment to moment. Something said becomes past; that which lies further away thereby moves closer; one regrets and can only mend; one notes too late what one should have said. The weight and appearance of the idealizations necessary for communication alter all the time.”28 Thus, the iterative character of the canonical fiqh texts is indeed more concerned in répétition than itérabilité: it is by indefinitely repeating the same opinion from text to text, and by quoting (or referring to) the same textual reference from text to text, that an “author”-text becomes recognized as part of the canon. But is the fiqh mainly concerned with the frequency of such repetitions or is it repetition as such that matters the most? What repetition brings to the fiqh is a sense that the idealizations that matter most for its survival are identical to the ones posited for the earlier Islamic periods-time stands still and things will be always the same: “identities condense, and in ever new situations they are reaffirmed and must be correspondingly generalized” (Luhmann, ibid.). In other words, the tawātur of opinions and texts-a ritual that insured their canonization within the school-implies repetition, identification, reaffirmation, and generalization. The fiqh thus protects itself from its historicity through a process of doubling and idealization.

34The discourse of the courts persevered in its being in exactly that same way: it too doubled reality by means of idealizations and contrafactual assumptions. The procedural fictions of the sharī‘a courts tremendously limited which cases were worthy of a judge’s examination; it also reduced to its bare minimum direct- and cross-examination, thus limiting the impact of speech while subjecting it to a discourse that fits within the anafī juristic representations. The textual representations of the court sessions left little room to the parole of the social actors, and “paraphrased” their utterances in such a way that they would be subsumed under the general formula in which a particular “case” did fit, namely as a “case” worthy of examination in court.

35To quote Luhmann once more, “Texts and cases are highly selective limitations of communication set free in the legal system by the process of differentiation” (ibid., 894). One should add, as a reminder, that cases, while being the factual element of the system, are not in themselves facts but texts. Indeed, a legal case transforms its facts into texts, and for social scientists, the logic of judicial decision making could only be reconstructed by keeping an eye at both-textual-levels: the cases and doctrines. For one thing, even though the structure of communication in each is not necessarily the same, cases and texts do presuppose each other’s discourse and act in accordance with such an assumption.

  • 29 Ibn ‘Ābidīn’s text refers to “two witnesses’ signatures (khaṭṭ al-shāhidayn)” rather than to “the w (...)

36The textuality of the cases is first of all determined in the way they are recorded on paper and how they got to be organized within a register. Then comes the structure of discourse and its syntax. Court cases in Ottoman Beirut and Damascus were recorded in “registers [sijills],” described as “the book of the judge [kitāb al-qāī]” (5:369). The judge kept a “record [maḥḍar]” of each case in which “he had to write what took place between the two disputants from their avowals to denials, in addition to a ruling based on evidence or abstention [from taking oath] [al-ukm bi-bayyina aw al-nukūl] so as to reduce suspicion [‘ala wajh yarfa‘u al-ishtibāh]” (ibid.). In addition, there were also a number of terms such as akk, ujja, and wathīqa, all of which denoted signed documents (or deeds) by the judge which he delivers to the disputants (or one of them). Each document should in principle include similar (if not identical) summaries of the cases that the judge keeps in his own register. However, “what is kept [in the register] of the judge about the event [wāqi‘ah] does not usually contain his signature (khaṭṭ), while a ujja does include the judge’s seal [‘alāmat al-qāī] on the top and the signature of the two witnesses29 right at the bottom” (ibid.). But despite the copies provided to the parties involved, or to the ones who came to the judge asking for a ujja certifying a purchase or hire, what judges draft in their registers remains the most reliable source of information “because the judge’s register cannot be usually counterfeited since it is kept in secure hands, contrary to [a document that] an opponent possesses” (5:370). For this reason, it was permissible for a judge to rely on the registers of his predecessor (al-ma‘zūl: removed, dismissed, expelled) even if he chooses not to take the latter’s opinions for granted and even if all witnesses had died. If a judge is, however, adjudicating on a waqf case, he should not rely, in order to be certain of the veracity of the document at hand, on the signatures of previous judges since those could be easily forged. Judges should therefore only trust-in particular for waqf cases which have follow ups from one generation to the next-their own registers or those of their predecessors: such a step was indeed looked upon as an istisān, that is, a matter of preference, whenever possible; thus “working with what was kept in the registers of the judges was a matter of preference [al-‘amal bimā fī dawāwīn al-quāt istisān]” (ibid.). That was the only way, in the case of waqfs in particular, to keep up with “the progress of time [taqādum al-zamān]” and follow the case from one generation to the next. In short, for any case, document, or ujja, the overall safety rule was that only the text inscribed in the judge’s registers should be followed; that was safe enough to guarantee the authenticity of a ruling or any document for that matter, even if all witnesses had died by the time the veracity of a document was brought up.

37The activity of a judge is therefore fully discursive. He has to write down what he knows about the case not simply to protect the veracity of cases and documents, but, more importantly, “to memorialize the fact-event [li-yafa al-wāqi‘a]” (5:433). This process of memorization was correlative with the judge keeping his registers properly in order. Judges often need to send their rulings to other judges in far away provinces and cities, and the rule here was, again, the primacy of the sijill over the forwarded document. One of the many instances that the writing memorialized was what witnesses said. But whether witnessing was performed in front of a present opponent (kham āir) or one that was absent, “there is no [valid] testimony without prior knowledge as to what the witnessing is all about [lā shahāda bi-lā ‘ilm al-mashhūd bi-hi]” (ibid.). Thus, for example, knowledge as to whom a loan was granted was in itself not enough, had it not been complemented by other more relevant details, such as the amount and conditions of the debt. Such details could be important in particular when the case had to be transmitted to another judge. In that case, witnesses had to “memorialize (if)” their original testimony, and in order to do so “it would be better for them to keep a copy [naskha] [of the judge’s ruling] so that they bypass memorization. It is in fact essential to remember [what has to be uttered from] the time of the testimony [waqt al-shahāda] to that of performance [waqt al-adā’]” (ibid.). Most probably, though, the “time of the testimony” either refers to “when the witness saw what happened,” and thus the “time of the performance” becomes that of the testimony in court in presence of a judge; or it could refer to the first testimony, while the second is the one related to the “time of the performance.”

38“Memory” is more an act of “memorization” than of “remembrance.” In fact, if is-literally-memorization rather than memory: the writing of the judge “memorializes the fact-event” rather than remembers it, and witnesses memorialize their testimonies-or had them memorialized in the process of the judge’s writing-rather than remember “what effectively took place.” Memory brings in fact not only an imperfect reconstruction of a past event, but also the many “viewpoints” of the perceiving subject-to the point that accurate/inaccurate and subjective/objective receive different meanings in respect to memory-something that the art of the novel has mused upon a great deal. The sharī‘a courts, however, were apparently not interested in Faulknerian narrators and wanted their witnesses to deliver identical testimonies whenever they had to do so, and ones in conformity with their own party’s claims. As a matter of fact, the system as a whole maintained its dynamics through a process of repetition: of opinions, documents, and testimonies; in other words, there was a fear of différence. This might explain why witnesses were not subject to direct- or cross-examination since any process of questioning would bring the whole issue of speech, “viewpoints,” and memory that modern courts have learned how to severely restrict.

39It was the “seal (khatm)” of the judge that in principle acted as a guarantee to the discursively reproduced fact; hence the strict regulations: “a seal should not be considered when placed on the verso of the [judge’s] leaf [kitāb: book, document, message], so that if the judge’s seal is damaged [inkasara] or if the document is already open [manshūr], it should not be accepted” (5:433). In addition to the seal, the names of the disputants had to be associated not only with that of their father and grandfather, but also with any “nickname” or anything they were “known for”: that was originally one of Abū Yūsuf’s opinions, that “the name [ism] is in itself not enough without what the person is known for [lā yakfī bilā shuhra bi-kunya]” (5:434). Finally, the judge should include what he found was “the right cause (al-aqq),” the witnesses’ names, or at least their testimonies, in addition to the date (an absolute requirement, without which the document would be invalid).

40Thus, at two different levels, the system was concerned in reproducing itself while strongly identifying with its past. There was first the discursive level that concerned itself with the structure of doctrinal opinions, fatāwā, and rulings, and their valid use. Then came a materialistic (physical) concern, that of ensuring that the entire contents of a case were safely transmitted from one individual to another, from one place to another, and from one generation to the next. Writing opens the possibility for forgery, and the entire system was haunted by the idea of faked documents circulating all around. As Ibn Nujaym stated in al-Ashbāh, “writing cannot be trusted [lā yu‘tamad ‘ala al-khaṭṭ]” (quoted in the Radd, 5:435), so that, say, a waqf document would not constitute the basis for a ruling unless it was signed by other judges. The same applies to practically every document that was used as “evidence”: sultanic orders, memos from governors or judges, and the like.

41Besides bookkeeping and an excessive care for the authenticity of documents, judges had to worry about procedural matters: how to set a case properly, listen to the disputants, accept or reject testimonies, and the like; but obviously what it all boiled down to was the single most decisive act of decision making. Judges were tested not only on their knowledge of the law, but also on how they managed to fit their case into the body of doctrinal opinions. The process of selecting from a body of opinions that stretch over several centuries, and that often contradict one another, is probably the most decisive step in decision making. Judges had to step first into the ambiguous dividing line of mujtahids versus muqallids, and since they were generally recommended to seek for a mujtahid’s opinion rather than be one themselves, it all ended up figuring which mujtahid’s opinion was the most acceptable. There was also the other possibility of seeking for a muqallid’s opinion who, in turn, had to rely on a mujtahid. In that case, the judge would have saved himself the trouble of choosing a mujtahid all by himself, but it all amounted in knowing what was going on in the world of ijtihād. Broadly speaking, what made a mujtahid’s opinion acceptable within the anafī canon was its recurrence (tawātur) from one text to another. In other words, rather than ask, Does this opinion make sense?, the more obvious question that judges and muftīs had in mind was: Where does this opinion come from and which texts accept it as part of the canon? Where does it fit within the anafī juristic typology?

42Following his predecessors, Ibn ‘Ābidīn divides the judge’s ruling (al-ukm) into three categories. The first are all rulings to be revoked (yu-radd) and not be executed (lā yu-naffadh) because they are contradictory (khālafa) to the doctrinal texts (al-naṣṣ) and the consensus of scholars. The second category, which gets executed under any condition (yuma bi-kulli āl), is when there is a disagreement over a particular issue (khilāf fī al-mas’alah) that might be the cause of a ruling (sabab al-ukm), that is, the disagreement is not “in the ruling itself [lā fī nafs al-ukm]” (5:394). In this category, which is defined as “the ruling as being the object of ijtihād [al-ukm fī maall al-ijtihād]” (ibid.), the act of ijtihād is not in the ruling itself but what precedes it, so that the ijtihād is over the conflict on an issue. Suppose, for example, that a Shāfi‘ī judge accepts the testimony of an individual who first committed a wrongdoing of defamation (al-madūd bi-l-qadhf), and then asks for forgiveness (tawbah), should a anafī judge, who had the same case transferred to him, accept the testimony of that individual if, in particular, as a anafī, such a testimony should be void? He should, according to Ibn ‘Ābidīn, because the conflict between the two judges was over an issue that caused the ruling and not on the ruling itself. The first Shāfi‘ī judge ruled based on the view of his own school over the issue subject to the ijtihād (al-mujtahad fīhi); once he passed his own judgment over the testimony issue-rejection or acceptance?-he proceeded with the ruling. So, a anafī judge, who took the case later, should accept the testimony and proceed with his ruling too. In other words, the logic here is that the first judge, prior to his final decision, performed a legitimate act of ijtihād on a specific controversial issue-should the testimony be accepted as evidence for the ruling or not?-and since the controversy is not on the ruling but on what preceded it, then any other judge should also accept both the ijtihād and ruling. The sharī‘a court records, and those of Damascus in particular, show a clear trend of individuals presenting their case first to a Shāfi‘ī or anbalī judge who would give them a positive ruling, prior to its ratification by a anafī: the reason being that the Shāfi‘ī or anbalī schools accept opinions that the anafīs do not (on the issue of long rents, among others) (see Chapter 3 infra). So, when the “object of ijtihād,” which led to the ruling, is subject to controversy, the ruling itself should not be contaminated with the same controversy. That sounds indeed like an illogical argument-the effect of a controversial cause should not be itself subject to controversy-but it only makes sense within policies adopted among the madhāhib: a sort of legal device to avoid a substantive reformulation of basic notions.

43A possible reason for what appears “illogical” comes from the fact that, as far as adjudication goes, only controversies over the ruling itself matter, and not on what preceded it. This is what the third category is all about: “the ruling that is subject to ijtihād [al-ukm al-mujtahad fīhi]” (5:394). The opinions are here apparently divided: Should a second judge accept a controversial first ruling? Basing himself on the opinions of Zayla‘ī and few others, Ibn ‘Ābidīn thought that such rulings should be stopped and not executed (but several others said that it should). Obviously, the problem here lies “in the act of judging itself and the controversy it created [nafsu al-qaā’ mukhtalaf fīhi: judging itself is the subject of controversy]” (5:395). The system, therefore, operates within a separation between the ijtihād over an issue (mas’ala), on the one hand, and over a ruling (ukm), on the other. A new and controversial opinion over an issue should not lead to a controversy over a ruling based on this issue, while a controversy over the ruling itself might render it invalid. The emphasis is therefore on the ruling itself, and a judge has to accept a colleague’s ruling as long as it is not controversial, that is, the result of an ijtihād. The logic here is that judges should restrict themselves to accepting or rejecting each other’s rulings rather than the opinions that made such rulings possible-or caused them, as the jurists would say: the latter were the work of jurists, and even though judges were not forbidden to exercise their own independent reasoning, they rarely did so and relied on the opinions of other muqallids or mujtahids, whether jurists or muftīs. Judges should therefore be fully knowledgeable about the conflict of opinions among jurists (ikhtilāf al-fuqahā’).

The procedural fictions conundrum

  • 30 Most Ottoman historians either ignore legal fiction completely, thus opening the way for a literal (...)
  • 31 Carlo Ginzburg, À distance: Neuf essais sur le point de vue en histoire, translated by Pierre-Antoi (...)
  • 32 Alan Watson, Roman Law and Comparative Law (Athens, Georgia: University of Georgia Press, 1991), 26 (...)

44Among the cases that we will be analyzing in this book, many were structured around what I refer to as “procedural fictions,” or “fictitious litigations,” and both terms are used interchangeably with no significant difference in meaning.30 anafī practice, beginning with the work of Shaybānī, is known to have acknowledged the notion of “legal subterfuges,” or iyal, as an inherent part of both legal doctrine and judicial decision making. Those consisted mostly, though not exclusively, of procedural matters that tend to bypass a parochial doctrinal requirement by creating a court procedure (or an argument, for the fiqh manuals) that would, on the one hand, give the impression that doctrine has been closely followed, while in effect that same doctrine has been bypassed, on the other. Indeed, procedural fictions-or fiction31tout court-are common to many legal orders, in particular the ancient ones, such as the Roman and English.32Modern systems tend to expand the possibilities of judicial practices with more explicit formulations or codes, while leaving more room to social actors to create their own contractual settlements; the courts, in turn, tend “to fill the gaps” rather than impose rigid norms beforehand (for example, the notion of “the freedom of contract”).

45For our purposes here, the notion of procedural fiction presents us with a few problems that need to be clarified. First, are procedural fictions identical with what the anafīs understand by iyal? We noted earlier how Ibn ‘Ābidīn vehemently denounced the corruption in the judiciary and how alleged “disputants” come to court with “faked” litigations and the like, only to add that judges who are aware of the faked nature of the alleged litigation should not proceed with a ruling. Such assertions, however, remain vague at best in that they neither provide us with concrete examples as to what a so-called “faked litigation” consisted of, and which ones were the most predominant in the first half of the nineteenth century, nor are we informed whether they did form a genre of their own at the margin of the iyal; and assuming they did not, why weren’t they then endorsed like many of the legal subterfuges? Second, and what makes Ibn ‘Ābidīn’s position even more confusing is his unwillingness to discuss the iyal phenomenon thoroughly, so that, again, we remain uncertain as to what constituted a subterfuge in his own time and from his standpoint, and which ones would be considered as fully “legal,” meaning that they had already been routinized through the practices of the courts.

46A look at the procedural fictions (based on my own definition) listed below in Table 2-2 reveals a set of contractual settlements that were essential for the economic survival not only of the landed aristocracy, but also of a merchant class whose extra cash had to be invested in areas traditionally closed for monetary investment, such as waqfs and state-owned mīrī lands. Considering how widespread such practices were, it would have indeed been unthinkable that they did not receive the endorsement of scholars. As we shall see in the following chapter, Ibn ‘Ābidīn did acknowledge such “illegitimate” practices as the khulū and marad (an investment by the tenant in the waqf’s property) as a necessity created by the unusual economic conditions of the times, but he stopped short of their integration within the norms of the fiqh.

47From my standpoint, as the cases in question show, identifying procedural fictions with the subterfuges common to fiqh manuals and the responsa poses the problem of their origin: Did they originate, as they most probably did, in exchanges between judges and muftīs, or should we rather look at the doctrinal level for an explanation? Thus, even though it is possible to determine in few limited cases (C 6-1 & 6-2 infra) the origin of such techniques (for example, a fifteenth-century responsum transmitted to later generations, prior to being picked up by the Ottoman courts), I was unable to pin down any explicit endorsement in the Ottoman anafī literature. This indicates the informal nature of such practices despite their routinization, so that they were meant, in the first place, to give more room to contractual settlements not officially endorsed by the law, without, however, touching upon substantive issues. We come here to the essence of procedural fictions: whenever the legal order failed to provide a particular type-contract, fiction came to the rescue. I emphasize procedural, and, as such, fictions were not meant-and, indeed, did not-modify the substance of the law. But they were not meant either as tricks and bolts to play games against the Ottoman authorities for the purpose of guaranteeing property rights and the like. In the “communal law” that was anafī practice to the imperial center, such fictions must have been widely known and were no secret. Moreover, they were much broader than simply securing “private” property to an individual or family. First, they consisted primarily of contractual settlements, which were so vast as to cover criminal offenses (Chapter 11 infra), and, as all contracts, they eventually led to securing specific property rights. Second, they were meant to furnish “evidence” through the fictitious bargaining process between the alleged disputants, which led to a hard-to-revoke ruling. Thirdly, perceiving such fictions solely in terms of “private” property rights, or worse, as some kind of pre-1858 Land Code settlements, leads to serious conceptual errors. To begin with, the contractual settlements in question were complex procedural matters, which for the most part, fell within the narrow range of “status contracts,” meaning that they were intended to protect-though not exclusively-the socio-economic interests of an élitist nobility group. By contrast, the movement of land commercialization of the post-1860s was meant to open up the possession of lands to the middle classes, at least to those who could borrow cash and were not limited to in kind transactions. For another, procedural fictions attempted to bypass limitations within the legal order itself-in its inability to provide particular contractual formulas-rather than bypass the Ottoman land system itself. Moreover, as we will see in Chapter 4, the category of “private” was extremely fluid, and acted in parallel to “possession” and “occupation” (wa‘ yad), so that evidence of labor was what determined ownership rather than a property title through a ruling.

48In short, I consider fictitious litigations, unless evidence to the contrary, as extending anafī practice to a new set of contractual situations, ones that were overall, though not exclusively, advantageous to the leading classes, without, however, touching upon the substance of the law. In other words, and considering that the first half of the nineteenth century was pretty much economically conservative, they were not meant to translate economic pressures that would have extended the old statutory contracts to other classes. That only began to happen with the monetization of the economy and the expansion of trade in the Fertile Crescent in the second half of the nineteenth century.

The culture of judges

49An incomplete survey of the biographies of 65 judges, who served for the most part in nineteenth‑century Damascus, reveals how much their education was close to the ‘ulamā’ in general, to the point that it was indeed indistinguishable from the group as a whole (see Table 2-1 infra). In fact, judges shared not only the same education as muftīs and jurists, but even those of ūfīs and adībs as well. Typically, a judge was from a known ‘ulamā’ family, and while some families produced more than one judge throughout the century, it was for the most part a judge per family. There was thus a predictable cultural milieu out of which judges emerged, so that even if in principle the position itself was open to anyone competent enough in the fiqh and adjudicative matters, the selection process was always restricted to an élitist urban milieu and even, in many cases, transmitted from father to son. As for any future ‘ālim, the father would typically be his son’s first educator, a process described in the various “biographies” as one where the young boy “is placed under the guardianship of his father [tara‘ra‘a fī ajri wālidi-hi].” Such an operation goes hand-in-hand with the reading and reciting of the Qur’ān, knowledge of the belles-lettres, the fiqh and farā’i (rules of inheritance and succession), mathematics, and language and grammar. It was common that the father would recommend his son to other ‘ulamā’ who, in turn, would initiate the maturing future ‘ālim into the arts and the fiqh, and in some instances, the young man would join a ūfī arīqa, and possibly more than one by the time he had fully matured. In fact, at least half of all listed judges had joined in their career one or more arīqas. At some point, such as over the question of āhir and in, or the external and inner deeper meaning of things and phenomena, the fiqh did intersect with the uruqs. But the latter were also an unavoidable milieu for social interaction where ascension was not restricted to the nobility. It also taught servility to a master, self-discipline, and labor within the spirit of a congregation, not to mention all the political implications of such an enterprise.

50At every stage of the learning process, the young ‘ālim completed the process through an ijāza drafted by his master, be it a ūfī, faqīh, man of letters, a reader of the adīth, or a linguist and grammarian. The ijāza (pl. ijāzāt) was a kind of memorandum/certification the student would receive from his teacher, which, besides denoting the completion of a specific cycle of learning, would also constitute an identification with a master, style, and judgment, all of which created a “path” of maturation for the student. Biographical notices typically list all the ijāzāt that a ‘ālim had accumulated over the years, all of which were identified to a master’s name, but not every form of teaching, however, was necessarily crowned with an ijāza. The whole process was therefore very personal in that it involved teaching on a one-to-one basis, thus maturing into a decision by the master that his student was well fit for the task at hand, and to which the student was to be grateful through the reception of an ijāza.

51Knowing how little judges wrote-it is even uncertain whether they did in fact draft all the rulings they signed and sealed-the assessment of the many accumulated ijāzas is crucial for understanding the culture of judges. In fact, not only did judges leave very few treatises on law, not to mention on the enterprise of judging itself, but the genre of personal biography was, for all intents and purposes nonexistent in this domain, so that the ijāzāt offers the first inklings of the education and culture of judges, and, hopefully, some insights on judicial decision making.

  • 33 Steve Tamari who completed in 1998 a doctoral dissertation (Georgetown University) on the ‘ulamā’ i (...)

52Even though such an enterprise is beyond our scope, it might be helpful to point to some of the difficulties and limitations that such a task would encounter. For one thing, since the ijāzāt are for the most part unpublished and still in a manuscript form,33 their systematic compilation is no easy task. Moreover, since the majority of judges had an apprenticeship that included several masters in more than one branch of knowledge, a complete examination of all ijāzas is worth the effort. In fact, a limitation to the fiqh ijāzas might give the wrong impression, while their relationships to one another in different branches of knowledge would be a contribution towards an intellectual biography of judges. In short, the complete intellectual trajectory needs to be reconstructed and assessed, whenever possible, even though its influence on judicial decision making is by and large uncertain.

53In effect, what clearly emerges from those biographical notices is the fact that the majority of those individuals were judges only at some point in their career, and, indeed, even if we were not to limit their legal career to judgeship and stretch it to all kinds of legal positions, such as those of scribe or court deputy, judgeship turns out to be one of many things that such men had devoted their lives to-but, and it should be emphasized, becoming a judge did usually fall only towards the end of their careers. In fact, it did happen all too often that those ‘ulamā’, as soon as they drafted all their ijāzas and completed their cycle of learning, became themselves teachers, then got deeply involved in a arīqa, then joined a circle of learning at the Umayyād mosque, prior to becoming a preacher in the same or one of the other related mosques. When it came to one of those many positions within the domain of the sharī‘a courts, there were, to begin with, several of them, and it is not all too clear who did what exactly, and which one was more prestigious and influential. For one thing, since appointing judges was like a personal gift from the sultan, the assumption was they were appointed to be complacent with the ideology of the ruling dynasty, hence they were neither all that competent nor knowledgeable. Indeed, as we already pointed out, a ‘ālim of the stature of Ibn ‘Ābidīn did not mince words when it came to judges: they were, very simply, corrupt individuals. Which poses an intriguing question as to who was appointed judge in the first place. In effect, most of those on our list had various positions of niyābas, meaning that they were deputy-of-something: either the deputy of a judge (nā’ib qaā’), or the deputy of a court (nā’ib makama), or simply in a general niyāba position. Moreover, even the two positions of scribe (kātib) and head of the scribes (ra’īs al-kuttāb) were not minor ones since, again, those were occupied by the ‘ulamā’. All this does suggest that (1) all the various scribal positions and the deputies of judges and courts were occupied by the same category of ‘ulamā’, which does suggest, at some point at least, a process where decisions were shared among judges, their deputies, and the scribes who helped them in drafting those decisions; (2) the local tarājim do undeniably point to a proliferation of nā’ibs positions to a point that their correlative qaā’ ones were far less in number; but that’s only what the tarājim note-local people who achieved some prominence and who belonged to the élitist inner circles of the a‘yān, or “outsiders” who had some influence on the city (wālīs, judges, etc.)-so that there’s an broad category of individuals who might have been appointed to judgeship positions but were never acknowledged in those closed and self-serving biographies.

  • 34 Shaykh Muammad Jamīl al-Shaṭṭī, A‘yān Dimashq fī al-qarn al-thālith ‘ashar wa-nif al-qarn ar-rābi (...)
  • 35 Each one of the following six is identified by Shaṭṭī as ī Dimashq: Amad Mukhtār Khālid Bek, a (...)

54A note of caution must be added regarding how our database has been compiled. Two preliminary sources ought to be considered when compiling lists of judges, and their deputies and scribes: (1) the local biographies, and (2) the sharī‘a court records. Names of judges might also be occasionally dropped in other sources too, but for our purposes here, the above two sources should be more than enough despite all their deficiencies. For one thing, even though the sharī‘a court records should be the most comprehensive source in this respect, the identification by full name of the judges and their deputies is not always as easy as it might first look. In fact, such names were only occasionally provided in full, so that if one was identified as, say, “Shaykh Amad Efendi,” it would lead to so many possibilities and guess work that it would only contribute in helping the uncertainty grow. Moreover, since a register would, in most cases, be crowned right from its first page with the judge’s and his deputy’s full or partial names, and since the eight Damascus courts were always presided over by anafī judges, the judges from the other madhāhib were named, together with their madhhab (in particular if that is relevant to the case), in each of the cases to which they had contributed. In fact, anafī judges in order to avoid being accused of “ruling based on an opinion from another school [ukm al-qāī bi-ghayr madhhabi-hi],” had to receive an approval first from a non-anafī judge prior to ratifying the case all by themselves (see Chapter 3 infra). In short, one must go through all the cases on a one-by-one basis rather than be content with what is offered at the shining surface of a register, and come up with a computerized list that would include each possible name in a register. Ideally, then, such a task must be completed for all the registers of a given period. However, having only completed such a task very partially, it is worth noting some of the disappointments. For one, besides the margin of names that are impossible to fully identify, there is another margin of judges and scribes whose names appear unmistakably in full but who have no biographical notices so that it is impossible to know who they were for certain. This margin of the unknown-which could vary from 10 to 20 percent or higher from one register to another-should be looked upon with respect to the other more well known group of ‘ulamā’.In fact, even though some of those unknown came from well established families, or even families that had substantially contributed to judgeship, it is nevertheless difficult to look at the absence of biographical notices for such judges as a necessary indication that they were less knowledgeable than their peers. In addition to those, there was also a broad category of judges who were neither from the élite ‘ulamā’ group nor from a well known family; moreover, they seem to have left little impact in the biographers’ minds. Finally, a third category of judges must be included to complete our classification: the itinerant judges. Those were for the most part judges who served in more than one city-sometimes close to a dozen, often spread throughout the Empire-with Damascus or Beirut only one stop in their career route. Not all were in fact insiders to the city, even though a surprising number served in Greater Syria. By contrast, the few outsiders whose career included a vast number of cities, look also the most professional in that their entire life was devoted to judging: rather than changing careers, they moved from one city to another with the same purpose in mind. Professionally, they come close to a category that a biographer like Shaṭṭī34 simply identifies as “the judge of Damascus [ī Dimashq],” and his A‘yān Dimashq only lists six for the entire nineteenth century.35 It is yet to be determined what this position was all about: Was it one of pure supervision or did these judges also preside over hearings?

55But whatever the category that a judge would fall into-whether from the traditional ‘ulamā’ group or not, a member of an influential family or not, an insider or an itinerant outsider, a devoted judge or one to whom judgeship was one among several vocations, not to mention all those totally incognito figures whose names simply pop up in the court registers but are nowhere in the tarājim-and all of which did certainly make a difference in their genealogical affiliations and loyalties, it remains certain, however, despite all the lacunae we have encountered, that there was indeed a minimal degree of cohesion in what might be described as “the culture of judges.” Such a coherence was, in the final analysis, determined by their educational élitist background, the fact that judgeship was not necessarily their main target as it came through among several stops in their careers, and hence, besides some knowledge in the fiqh and the farā’i (rules of inheritance and succession), had no training in court procedures as such. In fact, what brings all such group members together, besides their noble origins, was the general character of their education and the lack of a specific legal training in terms of court procedures and the like. Such a lack of focus was definitely an outcome of the broadness of each career and the fact that “knowledge” meant a comprehensive attitude towards life, but, as far as the legal system was concerned, the non-differentiation between law-finding and fact-finding eased the way for ‘ālims to become judges once certain requirements were met. In fact, since judges were the sole masters of their courtrooms, and rulings were drafted at their own discretion, there was no “third party” that would investigate on its own, collect evidence, and thus act as a buffer zone between the judges, on the one hand, and the disputants, their representatives and witnesses, on the other. Besides the nonexistence of fact-finding as an enterprise that would be construed independently from the sole authority of the judge, witnesses were neither subjected to direct- nor cross-examination, which points to the costs involved in fact accumulation, and that was the norm even in domains such as crime and homicide where facts were crucial (see Chapter 11 infra). The point here is that as long as judgeship did not require the kind of special training that would have required from the judge to learn how to integrate the outcome of a third-party investigation, it thus became one of those positions which, inter alia, was at the epicenter of a ‘ālim’s career.

  • 36 Such was the case, among others, of the family of Khalīl Efendi al-Maāsinī whose sons and descenda (...)

56The general feeling was that since judges were, as Ibn ‘Ābidīn pointed out, an appointment by the sultan which had all kinds of symbolic and discursive components, they were by definition not as knowledgeable as the urban Damascene ‘ulamā’, and thus each appointment represented a harsh process of assimilation into a more subtle milieu of scholars. But the ease with which ‘ālims shifted between the positions of judge, nā’ib, and scribe, made judges very much dependent on the expertise of their deputies and scribes. In fact, it does seem that all such positions required roughly a similar degree of competence, and at least an equal knowledge in the fiqh and farā’i, so that all outside sultanic appointees definitely benefited from such an expertise and the ease with which positions shifted. It should be emphasized, however, that some ‘ulamā’ families, in all their ranks, did exercise a monopoly either over judgeship, or the niyāba, or the scribal offices, or possibly a combination of two offices, so that the division of labor and the monopoly that ensued were indeed like those exercised by the craft-guilds and became quasi ā’ifas in their own right with accumulated privileges. Thus, even the scribal positions were sometimes inherited from father to son as if the knowledge that they required became proprietary.36 But the ease with which prominent or less prominent ‘ālims interchanged positions as if no special skills were required, considerably limited the impact of such monopolies.

  • 37 See Chapter 10 below on sultanic legislation.

57It is quite probable that the judges appointed by sultanic decree and who did not leave much of an impact on the ‘ulamā’ group were excluded from the major biographical notices, and such a category was indeed not limited to outsiders alone since it is to be expected that some of the insiders shared the same fate. However, some biographical notices of the itinerant judges definitely point to judges with a high degree of expertise, probably of a different nature and of a higher caliber than their Damascene colleagues. For one, the Damascus circle of élites, who kept most of the court positions for themselves, did not seem well versed in the Ottoman qānūn and their savoir-faire was limited for the most part to a transmitted knowledge of the fiqh and farā’i. In fact, and even though some of the ‘ulamā’ were closely linked to Isanbūl and resided in the capital city over long periods of time, or even had a permanent residence and died there, the Turkish link was overall not strong enough to create a group of knowledgeable experts well versed in the qānūn. As a matter of fact, as the Ibn ‘Ābidīn case shows, the relation between qānūn and sharī‘a was not well thought out and remained quite elusive. In the meantime, firmans kept pouring into the sharī‘a courts and copies were left in the registers, but it remains uncertain as to what purpose that served.37 In effect, while some of the outside judges might have been intimidated by the knowledge of the urban ‘ulamā’, some itinerant judges probably brought with them the kind of legal expertise that local judges might have lacked. But overall the two worlds of anafī practice and the qānūn remained separate.

  • 38 For example, in register 691 it is noted that Muammad Rāghib Efendi Makkī served in the courthouse (...)
  • 39 For a description of the Damascus Ottoman archival documents and registers, see Brigitte Marino and (...)
  • 40 See Table 2-2 infra.

58By the early nineteenth century Damascus must have had a total of seven to nine courts, depending on how we identify all the different names that a court was given in the registers, often mixing the name with the neighborhood, which we need not get into here. (By the 1870s, a ninth court, āliyya, located in a mountainous area north-west of the city, begins to emerge in the registers,38 but its status, however, remains uncertain.)39 Even though the majority of judges served on average in a couple of the Damascus courts (some had only one court), only three had the privilege of being present in practically all the courts: Shaykh Muyī ad-Dīn Efendi al-Idlibī, a Shāfi‘ī, was one of them; as to the other two, one was also a Shāfi‘ī (Muammad Salīm Efendi a-fiībī), and the third was anbalī (Shaykh Muammad Efendi al-Birqāwī); and only on one occasion a anafī from the Usuwānī family served in six courts. A very small number of non-anafī judges, therefore, coordinated between the various courts and acted like chief judges in their own school. As noted earlier, non-anafī judges, whose full names remained for the most part unidentified, were useful in completing the procedural fictions that anafī judges badly needed in order to validate some types of unauthorized contracts, and that they would not have been able to complete on their own in conformity with their own school (see Chapter 3 infra). Indeed, what specifically characterizes the nineteenth century was the proliferation and routinization of procedural fictions, so that adjudication became more a matter of validating what must have in principle been invalid contracts.40

  • 41 Shaṭṭī, A‘yān, 237-8.

59Shaykh Muammad Birqāwī, who was born in Damascus in 1220/1805 and died there in 1297/1880, was a prototype of an ambitious mujtahid from a minority madhhab who had problems getting his opinions appreciated.41 He was the general qāī of the anbalites and received that position from his father Mutafa in 1250/1834. He learned the fiqh first from his father and then from Shaykh asan Shaṭṭī, and the “sciences” from Shaykh Sa‘īd al-alabī and Shaykh ‘Abdul-Ramān al-Kuzbarī. He began his career as the head of the scribes (ra’īs al-kuttāb) in three different courts: first in Sināniyya, then in Buzūriyya, and finally in ‘Awniyya, but the sharī‘a courts documents have him present as judge, throughout the 1830s and 1840s and possibly later, in all the Damascus courts with the possible exception of ‘Amāra.

60Birqāwī was known to have strong opinions on some legal issues such as the faskh, that is, the annulment, cancellation, or abrogation of a contract (naq al-‘aqd), and also on the revocation of a contract; and on the raj‘a, which is the return of a divorced wife to her husband without the necessity of a new contract. An incident took place in 1259/1843 that was known to the general qāī (al-qāī al-‘āmm) and to a group of learned men (mashāyikh) in which Birqāwī had decreed legal the annulment (faskh) of the marriage contract of a wife whose husband had been away for a long time without her own consent. He then demanded from the Shaykh al-anābila of the time, Shaykh asan al-Shaṭṭī, to ratify the faskh in question. Shaṭṭī decreed this faskh act null and void because it did not meet the required legal conditions. Birqāwī was thus forced to revoke his previous opinion and a qāī ruled that the wife should stay with her husband (tabqa al-zawja bi-‘umat zawjihā). Birqāwī eventually lost his position (‘uzila) and Shaykh ‘Abdul-afī al-Nābulsī was appointed in his place. Shaṭṭī (grandfather of the biographer) was then asked, after this incident, to draft an epistle (risāla) on the issue. Thus came the pamphlet al-Fawz wal-najāukm faskh al-nikā, “Winning and succeeding in rulings regarding the annulment of marriages,” which was published in Damascus in 1328/1910. Ironically, it happened that the husband of the woman in question came back only few days after the incident took place, and was thus happily reunited with his wife (qabaa ‘ala zimām zawjatuhu) and thanked Shaṭṭī for his action.

  • 42 Shaṭṭī, A‘yān, 189-192.

61Another example of a position inherited from father to son, but this time among the dominant anafites, would be that of Shaykh Amad alabī. Shaṭṭī refers to him first in conjunction with his father’s biography,42 ‘Abdullah alabī (a faqīh), and notes that the son was also a faqīh who served as court deputy (niyābat makama) in al-Bāb, even though Damascus sijill 691 associates him with al-Qassām. He then became administrator (ir) of the Umayyād mosque until his death in 1303/1885. His two sons were also ‘ālims: Shaykh Riā Efendi was like his father court-deputy in al-Bāb, then muftī of Damascus until his death in 1330/1911; the second son, Muammad Efendi, was administrator (mutawallī) of the Umayyād mosque. Their children were also prominent individuals of the same sort (ma‘rūfūn).

  • 43 Shaṭṭī, A‘yān, 315.

62Further details are provided in Shaṭṭī in a separate biographical notice.43 alabī was educated under the care of both Shaykh Muammad Jūkhadār and Shaykh Muammad Sukkarī. Upon his father’s death, he began teaching at the Umayyād mosque, in its northern section where his father and grandfather once taught, then became an amīn fatwā (assistant muftī), and then court deputy (niyābat al-makama al-shar‘iyya), prior to becoming administrator of the Umayyād in 1288/1871. He in fact had replaced the young (and immature?) Ismā‘īl Efendi Ghazzī. The appointment was beneficial to the mosque as he was a likable character to whom people came in conflicting situations. He was then appointed in several councils: al-jam‘iyya al-khayriyya in 1298/1880, and the council of awqāf in 1302/1884, while persevering on his teaching position. He died from an illness when performing the ajj in Mecca in 1303/1885.

  • 44 It is known that the Ottoman administration began its judicial reforms in the 1850s with a promulga (...)

63Such biographical notices are typical in what they reveal, namely the flexibility of all the positions that the ‘ulamā’ shared and inherited, and the ease with which they moved from one position to another: teaching and administration were among the most common, and so were all the niyāba and iftā’ positions, so that the enterprise of judging, or the niyābas for that matter, were coexistent with each other . In effect, they were not even necessarily the highest point in a career since they could just come at a moment when the candidate was too young or too old, even though for many, retirement did indeed coincide with the end of their legal career. What obviously made the difference was the sociological background of the candidate, and in particular the social position of the father and his family since that was a milieu that preserved itself from all kinds of intrusions, including the Turkish bureaucratic authorities; its raison d’être was precisely to pursue the reproduction of that élitist group. It should be emphasized, however, that the reproduction of such a closely knit group would not have been possible were it not for the common stock of knowledge that they shared and that enabled them to move from one position to another with ease. In fact, all such positions-teaching, preaching, ūfism, sharī‘a courts, administration, and the like-were not looked upon as professional activities that needed specialized training. More precisely, in judicial affairs, the activities of lawmaking, lawfinding, and fact-finding, did not differentiate into separate activities that would have required a different training and expertise than what was required in the traditional ‘ulamā’ education. The fact that the judge was held responsible for all three combined made him the master of his own courtroom with no intermediary third-party expertise needed. As a matter of fact, when the first and then second wave of reforms came through, those same individuals moved swiftly, and with no apparent difficulties, into the newly created majālis and the niāmiyya and isti’nāf courts as well.44

The diwan of the qadi and his sijills

  • 45 Wael B. Hallaq, “The ī’s dīwān (sijill) before the Ottomans,” Bulletin of the School of Oriental (...)

64The conundrum, thus far unanswered, regarding the unavailability of the qāī’s sijills-an equivocal term as we shall see-for periods earlier than the Ottoman has thus far been left unanswered, and was only tackled recently, very persuasively, by Wael Hallaq.45 Besides showing that the practice of keeping “court” records-as dīwāns rather than sijills-goes back to early Islamic times, Hallaq argues that nothing distinguishes the Ottoman period from its predecessors except that its registers have survived, while the non-survival of previous registers is accounted for in terms of their “loose” nature-a large number of unbound leaves-and the fact that they attracted little attention, if any, from jurists, scholars, or historians. What should be of concern to us, however, are, first, some basic issues of terminology, and then, second, the practice of keeping up court records, and the fact that they constituted mostly the “memory” of judges, and were kept and transmitted from one judge to his successor solely for that purpose, raises important issues as to the relevance of those documents for legal doctrine, precedent, and case reporting.

65To begin with, even though there were no formal requirements in the pre- and Ottoman fiqh literature that the qāī formally meets with his clients in a “courthouse” (or “courtroom”) or anything similar, and that the literature refers to the space of adjudication mostly as majlis al-ukm, I feel justified using “court” simply because, for Damascus in particular, the hearing sessions took part in well known “courts” (at least eight by the nineteenth century), located in various parts of the city, and which each document usually identifies. The document would thus typically refer to the “session” or the “space” of encounter as majlis mawlānā al-qāī, and then to the “location” as the makama, followed by the neighborhood’s name (or Kubrā for the main court-one should say courtroom rather than courthouse, considering the simple nature of those places and their existence within compounds other than their own). But it ought to be stressed, however, that such “courts” were neither part of a “centralized” system, nor equipped with any bureaucracy for that matter. The fact that the Ottomans kept the court system, as all their predecessors did, without any attempt to centralize it through a common norm-or by bureaucratizing it, as they did in the second half of the nineteenth century with the niāmī courts-are further indications that the qāī-oriented courts, dominated as they were by his personality, were spaces of “private” decision making, while “public” matters, such as problems related to the iltizām, had a parallel system of judicial policy making through the regional councils and the like. In fact, Ottoman interference in the affairs of the sharī‘a courts (as historians commonly refer to them) did not go beyond attempts to impose judges, a practice, which, as our list of judges (Table 2-1 infra) shows, clearly declined throughout the nineteenth century, thus never imposing anything worth noting on the procedures of those courts or on judicial decision making. In short, Ottoman interference at its best attempted to create a system in its favor through personal appointments.

66More seriously, however, is the notion of sijill, which, as Hallaq argues, should be more properly designated as dīwān since it indicates the totality of the records kept by the judge. To my knowledge, however, the Ottoman records have been preserved and received as such by the courts of the French Mandate as “bound” volumes. In fact, it does seem that judges and scribes wrote down their “cases” in bound volumes rather than on loose sheafs-or at least the information that was “relevant” to all parties, and which served as the judge’s memory and was probably transmitted to the parties on separate ujjas signed and sealed by the judge or his deputy. But the copy that the judge kept for himself, and which he transmitted to his successor, was drafted within the bound volume that he kept for most if not all of his cases. In fact, even though we do not possess any reliable descriptions as to how judges worked, it does seem, however, that judges must have typically kept a set of two active registers, one for the regular cases-mostly of contractual nature, land litigations, marriage and divorce, and occasionally, criminal settlements-and another for successions; but it is also possible that some judges did only successions. As their respective dates clearly point out, cases were usually (though not always) drafted one after the other, probably from fresh memory as soon as the hearing was over, and were inscribed so as not to leave any empty space at all-probably as a safety measure so that nothing is added to the “original.” (Marginal notes, awāshī, were always added in such a way to make them visible as additions, and were authenticated by the scribe’s signature.) The point here is that, unlike the pre-Ottoman practices that Hallaq describes, the Ottoman sharī‘a courts (as they came to be called-but by whom?) adopted-probably a few decades after the conquest of Greater Syria-this practice of bound registers (but probably not all registers) without the hard bindings in which we find them today, and which for the most part were added in the 1970s and later for a safer access by contemporary researchers. Thus, for example, the thirty or so volumes that have survived from the Beirut courts between the early 1840s and the 1860s (for unknown reasons no earlier registers have been preserved), all came originally bound (or so was I told by the actual authorities of the Sunnī courts), and their current binding-in pretty bad shape-has not been modified. If my assumptions prove to be correct, then the bound-volume practice has definitely helped in the conservation of the heritage of the Ottoman sharī‘a courts-a mini technical innovation of some sort, but of tremendous consequence. Obviously, the fact that even as late a jurist as Ibn ‘Ābidīn fails to mention that change from the unbound to the bound registers does not seem to work in our favor, but we have seen, and there is more yet to see, how both his general discourse lagged behind at times, and that the historicity of the fiqh enterprise is a serious issue that needs full reconsideration.

  • 46 See infra Chapter 10.

67The practice of conserving the labor of judges, their deputies, and scribes in sijills, if accurately portrayed, then legitimizes the use of sijill rather than dīwān for the qāī’s paperwork in Ottoman times. It should be noted, however, that such a practice must have come several decades after Ottoman rule began, hence the availability of only a single sixteenth-century register for Damascus, while the seventeenth-century collection is almost without fault. Of course, those registers only show the outcome of a judge’s work, while his personal papers and thoughts, early drafts, or even the possibility of verbatim notes from the hearings, were not part of the registers, and thus may have been permanently lost. In some cases, the idea of jotting down in those registers “what needs to be memorialized for future reference” also meant preserving copies of some or all of the sultanic ordinances (awāmir, firmans, dustūrs, edicts, etc.) that emanated directly from Istanbul.46 What is striking, considering the importance of those edicts and their totally alien nature from the courts’ hearings, is that no special registers were devoted to them, but that could have been the outcome of two factors. One was the rarity of those firmans-at best, once a month-and the other was their non-integration within the space of the courts, meaning that they had no proper place in the decision-making process. The only reason for their inclusion could simply be that judges had to be aware of a form of legislation that could interfere at times with their own work.

  • 47 See infra Chapter 9.

68The majālis of the Tanīmāt and their record-keeping practices pose another riddle that ought to concern us only in conjunction with the ones we have outlined for the courts. The problem here is the extreme rarity of available registers which I will discuss later,47 but suffice it to note that whatever was miraculously found turned out bound in a way almost identical to the sharī‘a courts, even though those registers tend to be even more alert as to the dates of their successive sessions, considering that even their days off were carefully recorded. The non-survival of a large number of those registers, however, might be due to the fact that, unlike the courts, they neither had regular meeting places nor a standard storage space. It is even doubtful, considering that they were presided over by boards of twelve notables who acted as legal honoratiores, that there was a process of tasallum wa-taslīm of the drafted materials from one majlis to another. The likelihood is that those sijills remained in private hands and were gradually lost because they had no single storage facility.

69Assuming we were able to solve the riddle of the high turnout of the Ottoman court registers, the problem framed by Hallaq for what seems to be a permanent loss of the pre-Ottoman registers is worth a reconsideration. In fact, that loss could be mostly associated with the fact that the qāī’s dīwān, as it was called, served no other purpose than of recording and solving disputes and other contractual obligations. In other words, it did not serve as a quasi-“literature” that would have connected with other discursive formations, beginning, of course, with the fiqh itself, even though some of the maālib (“requests”) of the shurū manuals look like responsa that must have emanated either from real or potential cases. In fact, the court records, either in their pre-Ottoman dīwān form or the Ottoman sijills themselves-they must have been renamed sijills (“registers”) due to their bound nature-did not arouse the curiosity of scholars and jurists, and thus were kept as the “memory” of the judges who drafted them. Thus, unlike the fatāwā, which were subject to compilation and commentary from scholars and disciples, and at times printed and made public, the court records had no such function within the juristic literature. Even the shurū manuals, such as Ibn ‘Ābidīn’s Radd, incorporated a great deal of the fatāwā in the forms of “requests” (malab, mas’ala), but very seldom did they refer to the actual work of the courts, while their procedural matters discussed under the rubric of adab al-qāī, look abstract and arcane compared to the effective work of the courts. The point here is that scholars-with a strange parallel to contemporary historians who find no interest in the legal reasoning that frames the decision-making process-found no real benefit in incorporating “real cases” into their own findings. The underlying discourse here is that courts “apply the law,” and hence have nothing new to give to the legal literature.

70Nor was the sharī‘a court system “centralized” in any way so as to push those “central authorities” towards a scrutinizing of the courts’ proceedings. In effect, the sharī‘a system developed, under the Mamlūks, on a regional basis through an assimilation of local customs, and was thus closer to a “private” system of adjudication than a “national,” state-oriented one, even though anafism was state approved. Bureaucracy was practically nonexistent and limited to the judge, his deputy, and scribe. More importantly, the system was not effectively “centralized” even within the boundaries of the city, so that it was left to the discretion of each judge in each court to decide. But it would be misleading, however, to interpret such a relaxation of “judicial review,” lack of centralization and bureaucratization, in terms of an unpredictable system left to the mercy of judges. As many of the cases in this study plainly show, practically every outcome of each case met the expectations of the disputants. The smallness of the milieu, the nature of the education of judges and their connections to other ūfī, literary, and ‘ulamā’ networks, were all factors that made them all tied to and familiar with one another. Moreover, when judges felt uncertain about the outcome of a case, they sought for a fatwā (C 7-2 & 8-2); and it is certain that the (more or less systematic) compilation of fatāwā, the process of updating them (tanqī), and the position of iftā’ itself, all contributed to a rudimentary cohesion of the system within urban areas. In fact, such networks extended from one city to another, even in terms of appointments of judges and muftīs, or of networks of consultation and transfer of knowledge.

  • 48 The practices of the sharī‘a courts are often described as case law, and hence unfairly compared to (...)

71The dichotomy of centralization and decentralization is highly inappropriate within the context of the Ottoman Empire. For one thing, those are terms derived from western history and fit best within the context of the European nation-states, as they assume a common norm imposed throughout a given national territory. Such a terminology, however, proves unfortunate in the case of the Ottoman Empire as empires in general do not integrate their multi-ethnic populations by imposing common societal norms, but through a complex process where the autonomy of the diverse populations was preserved and cities left to their own communities’ leaders, communal laws, and urban networks. Those cities, however, had a hard time integrating along lines that would have given them a bourgeois community of notables, lawyers, merchants, and landowners. Instead, cities remained handicapped by the fiscal impositions of the state, which first began as military feudal assignments in the surrounding countrysides, and by the existence of some of those assignees within urban areas, some, indeed, among the local notables, while others gradually settled within the urban boundaries and managed to establish networks with the local groups of notables, and even become part of those groups. Such a formula manifests itself at the level of legal institutions too. In effect, anafism was, for all intents and purposes, a kind of “special communal law” recognized as such by the state, and it is that kind of recognition by an imperial bureaucracy that frames the dynamics of such legal systems, and which makes them so different from more primitive systems based mostly on customary practices.48

Table 2-1: Judges and deputy-judges in nineteenth-century Damascus♣

  

  

  

  

Damascus

main

courts♦

  

  

  

  

Judge ♥

Madhhab♠

Died†

Bāb

‘Aouniyye

Kubra

Qassām

Sannāniyya

Mīdān

Buzūriyya

‘Amāra

‘Ābidīn, Shaykh ‘Alā’ al-Dīn(*)49

anafī

1306/1888

x

  

  

x

  

  

  

  

Abū al-Dhahab, Shaykh Mutafa(*)50

  

1317/1899

  

x

x

  

x

  

x

  

Adīb, Muammad Efendi

  

served ca. 1290/1873

  

  

  

  

  

x

  

  

‘Aṭṭār, Shaykh Rashīd (al-)(*)

Shāfi‘ī

‘Ajlūn, 1315/1897

  

  

  

  

  

  

  

  

‘Azīz, Mamūd Efendi

  

served ca. 1290/1873

x

  

  

x

  

x

x

  

Bazirbashe Zadah, Muammad Sa‘īd Efendi

  

served ca. 1291/1874

  

x

  

  

  

  

  

  

Birqāwī, al-Shaykh Muammad (al-)(*)51

anbalī

12 afar 1297/January 25, 1880

x

x

x

x

x

x

x

  

Dardarī, ‘Abdul-Razzāq Efendi (al-)(*)

anafī

1338/1919

  

  

  

  

  

  

  

  

Dardarī, Muammad Rāghib Efendi (ad-)(*)

anafī

1320/1902

  

x

  

  

  

  

  

  

Ghazzī, usayn Efendi(*)

Shāfi‘ī

Damascus, 16 Dhul-ijja 1322/21 February 1905

  

  

  

  

x

x

x

x

Ghazzī, Ismā‘īl Efendi(*)

Shāfi‘ī

1326/1908

  

  

  

  

  

  

  

  

Ghazzī, Muammad Abū Su‘ūd Efendi(*)52

Shāfi‘ī

25 Dhul-ijja 1291/2 February 1905

  

x

x

  

  

  

  

  

Ghazzī, Mutafa Efendi

Shāfi‘ī

  

  

  

  

  

  

x

  

  

Ghazzī, ale Efendi(*)

Shāfi‘ī

1326/1908

  

  

  

  

  

  

  

  

alabī, Muammad Efendi(*)

anafī

  

  

  

  

  

  

  

  

  

alabī, Riā Shaykh(*)53

anafī

1329/1911

x

  

  

  

  

  

  

  

alabī, Shaykh Amad (al‑) (*)54

anafī

1304/1886

x

  

  

x

  

  

  

  

amza, As‘ad Efendi(*)

anafī

1307/1889

  

  

  

  

  

  

  

  

amza, Mamūd Efendi(*)55

anafī

1305/1887

x

  

  

  

x

  

x

  

amza, Shākir Efendi(*)

anafī

1328/1910

  

  

x

x

  

  

  

  

amzāwī, ‘Abdullah Efendi

  

  

  

  

  

  

  

  

x

  

aqqī, Ismā‘īl Efendi

  

  

  

  

x

  

  

  

x

  

usaynī, Muammad Salīm Efendi Qala‘ī

  

  

  

x

  

  

  

  

  

  

Husaynī, Muammad ‘Abdul-Nāfi‘ Efendī

  

  

  

  

  

  

  

  

  

  

Idlibī, Shaykh Muyī al-Dīn (al-)(*)

Shāfi‘ī

Damascus, 18 Muarram 1278/26 July 1861

x

x

x

x

x

x

x

  

Jalabī, Amad Efendi

  

  

x

  

  

x

  

  

  

  

Jūkhadār, Shaykh Muammad(*)

anafī

5 Shawwāl 1297/10 September 1880

x

  

x

x

  

x

  

  

Kīlānī, Muammad Efendi(*)

anafī

Damascus, 1244/1828

  

  

  

  

  

x

  

  

Khānī, Mamūd Shafīq Efendi

  

  

x

  

  

  

  

  

  

Kuzbarī, Muammad Efendi

  

  

  

  

  

  

  

  

  

  

Lufī, Muammad Sa‘d al-Dīn Efendi

  

  

  

x

  

  

x

  

  

  

Maāsinī, Muammad Sa‘īd Efendi(*)56

anafī

1343/1924

  

  

  

  

  

  

  

  

Makkī, Amad Efendi

  

  

  

  

  

  

  

x

  

  

Makkī, Muammad Efendi al-Sharīf (al-)(*)

anafī

Damascus, 15 Jumāda I 1278, 18 November 1861

x

  

x

  

  

  

  

  

Makkī, Muammad Rāghib Efendi

  

served ca. 1294/1877

  

  

  

  

  

  

  

  

alī, asan usnī Efendi (al-)(*)57

anafī

Istanbul, 1316/1898

  

  

  

  

  

  

  

  

Mukhtār Bek, Amad(*)

  

10 Muarram 1305/28 September 1887

  

  

  

  

  

  

  

  

Murtaa, Darwīsh Efendi(*)

  

1335/1916

  

  

  

  

  

  

  

Nābulsī, Amīn Efendi(*)

anafī

13161898

  

  

  

  

  

  

  

  

Nābulsī, Mamūd Efendi(*)

anafī

  

  

  

  

  

  

  

  

  

Nābulsī, Shaykh ‘Abdul-āfi (al-)(*)

anbalī

  

  

  

  

  

  

  

  

  

Nābulsī, Shaykh Muammad Rashīd(*)

anafī

Damascus, Rabī‘ II 1316/1898

  

  

x

  

  

x

x

  

Nalāwī, Shaykh Salīm a-fiībī(*)58

Shāfi‘ī

1300/1882

x

x

x

x

x

x

x

x

Najātī, ‘Umar Efendi

  

  

x

x

  

  

x

  

Qala‘ī, Shaykh Amad(*)

anafī

  

  

  

x

  

x

  

x

  

Qaysī, Muammad aleh Efendi (al-)

  

  

  

  

  

  

  

x

  

  

Riā, ‘Alī Efendi

  

served ca. 1294/1877

  

x

  

  

  

  

  

x

Rifā‘ī, Abdullah Efendi

  

  

  

x

  

  

  

  

  

  

S˛alāī, Muammad Anīs Efendi

  

  

  

x

  

  

  

  

  

  

Shāfi‘ī, ‘Abdullah Efendi

Shāfi‘ī

  

  

  

  

  

  

  

  

  

Shākir, Muammad Efendi

  

served ca. 1290/1873

  

  

  

  

  

  

  

x

Shafīq, Muammad Efendi

  

served ca. 1294/1877

  

  

  

  

  

  

  

x

Shaṭṭī, Muammad Jamīl(*)59

anbalī

  

  

  

  

  

  

  

  

  

Shaṭṭī, Shaykh Amad (al-)(*)60

anbalī

12 afar 1316/2 July, 1898

  

  

  

  

   

  

  

x

Shaṭṭī, Shaykh Muammad(*)

anbalī

Damascus, 1307/1889

  

  

  

  

  

  

  

  

Suyūī, Tawfīq Efendi(*)

anbalī

served ca. 1339/1920

  

  

  

  

  

  

  

  

fiaylūnī, ‘Abdallah Efendi

  

  

x

  

  

  

  

  

  

  

‘Umar Bahjat Efendi(*)61

  

Istanbul, 1310/1892

  

  

  

  

  

  

  

  

‘Umarī, Muammad Rashīd Efendi Kīlānī

  

  

  

x

  

  

  

  

  

  

‘Umarī, Muammad ādiq Efendi

  

  

  

  

x

  

  

  

  

  

Usuwānī, As‘ad Efendi(*)

anafī

1329/1911

  

  

  

  

  

  

  

  

Usuwānī, Muammad Abū-l-Khayr Efendi

anafī

  

  

  

  

x

x

  

  

  

Usuwānī, Muammad Amīn Efendi(*)

anafī

1305/1887

  

  

  

  

  

  

  

  

Usuwānī, Muammad Rāghib Efendi

anafī

  

  

  

x

x

x

x

x

x

Usuwānī, Sa‘īd Efendi(*)62

anafī

1305/1887

x

  

  

  

  

  

  

  

♣ Sources: The Damascus sharī‘a courts since 1800/1 up to the 1860s, and Muammad Jamīl al-Shaṭṭī, A‘yān Dimashq.
These were the main Damascus courts where most cases were heard. There are a few indications that other courts might have been added, in the second half of the nineteenth century, in neighborhoods such as Mīdān, which have grown considerably.
♥ Judges marked by an asterisk (*) have a biographical notice (tarjama) in one of the ‘ulamā’ compendiums, usually in Shaṭṭī. Thus, of the 65 listed, 38 had a review of some kind, either one on their own, or else through another biographical notice.
♠ Since the anafīs were the dominant group, biographers tended to be dismissive of the madhhab, except when it was extremely relevant, e.g., the Ghazzīs who were Shāfi‘īs, or the Shaṭṭīs who were anbalīs. I’ve indicated the madhhab only when it was specifically stated as such in the biographical notice. Of course, one could easily infer the affiliation from other family members (e.g., the Usuwānīs).
† Since the majority lived and died in Damascus, biographers tended to be dismissive of location. For those whose death remains unknown, I have indicated an approximate year(s) of service based on the court record(s) in which they were named.
Notes:
49. Son of Ibn ‘Ābidīn, author of the Radd.
50. Occupied the position of judgeship of Damascene pilgrimage (qaā’ al-ajj al-shāmī), prior to becoming a judge in Damascus. In all likelihood, he was a anafī.
51. General judge of the anbalīs, hence his serving in seven courts.
52. Took the function of iftā’ from his father, then became a majlis member.
53. Deputy-judge prior to becoming muftī.
54. Appointed as administrator of the Umayyād mosque in 1288/1871.
55. General muftī of Damascus in 1284/1867.
56. Head of the scribes (ra’īs kuttāb), and then a Damascus judge.
57 .General Damascus judge (qāī ‘āmm).
58. Deputy-muftī (amīn fatwā) of the Shāfi‘īs.
59. General judge of the anbalīs until 1349/1930.
60. Muftī of the anbalīs.
61. Itinerant judge, served in many of the cities in the empire, b. Aleppo 1246/1830.
62. Member of one of the regional councils of the reforms.

72Commentary: The above list of nineteenth-century Damascus judges was compiled from a combination of sources, but essentially two major ones: the biographies of the a‘yān, mostly Shaṭṭī, and the sharī‘a court records which always identify the judge and deputy-judge handling a particular case. But our list, however, which comprises a total of 65 judges and deputy-judges is by no means complete, as a more thorough and computerized database that would have gone through every available register from Damascus would have probably reached the total number of 100 for the last Ottoman century. One has to assume, from the much larger number of cases and registers throughout the nineteenth century, that the overall number of judges must have been at least twice that of the previous century.

73However, the list is rich and representative enough so as to allow a few preliminary generalizations. First, out of the 65 listed judges, only 38 had a full biographical notice (tarjama) in Shaṭṭī-that’s 60 percent of the total-all of them indicated by an asterisk (*). Again, here, a more thorough and complete biographical investigation might have led to a slightly higher number-unless, of course, the court registers would have brought even more unrecognizable names-but, for our purposes here, those number already indicate a trend. In fact, there were a number of judges and deputy-judges who were only named in the registers but which the biographies avoided, and the possibility here is that those people were not known enough so as to be listed in the prestigious biographies of the ‘ulamā’. That might be an indication that some of the judges and their deputies either did not come from the tight circle of the ‘ulamā’, or else did not make a strong enough impact so as to deserve a note for posterity. Some of those “incognito” personalities came from well-established families which had a long history of contributions to the qaā’ institution, such as Mutafa Efendi Ghazzī and Muammad Rāghib Efendi Usuwānī, both of whom had several family members serving either as judges or deputies, so that the family rank, even though crucial, was by no means enough to accredit the person. However, our data clearly points to the fact that the great majority of judges and their deputies were recruited from the narrow circle of ‘ulamā’, and hence there was no big surprise as far as appointments went. Moreover, the positions of scribe, deputy-judge, judge, and muftī were all part of a single career path, so that it was not uncommon to see a contender go through some, if not all, such positions in a decade or two. The borderline between a judge and his deputy was indeed very flexible so that the majority went through both positions prior to serving, say, as muftī, administrator, or as a member of one of the regional councils of the reforms.

  1. Second, it is disappointing to learn that very few judges had publications. One would have hoped to find judges pouring over their secrets in some kind of pamphlet or personal note, but that was rarely the case. We are thus left, regarding the venerable genre of adab al-qāī, either to what the scholars have generously elicited, which was very limited (as can be seen from what Ibn ‘Ābidīn had to say on the matter), or else rely on court documents, which is what we did.

  2. Thirdly, most judges served in a court or two out of the eight (a ninth was probably added later) that Damascus kept throughout the nineteenth century. But few names stand out as having served in practically all the courts, and those invariably, though not always, belonged to a minority madhhab. Thus, those Muslim “minorities” tended to be monitored by even a smaller group at the top than the anafīs.

  3. Finally, most of those judges were born, raised, lived and died in Damascus, and for this reason biographers were often dismissive of the city for either the birth or death. There were, however, a few judges that came from the “outside,” but those were unusual and rare and were restricted to individuals whose families were moving around due to various official appointments, rather than, say, a deliberate policy of some kind to impose on the city judges from the rest of the empire. In short, the appointment of judges was predictable-or well routinized-to the point that not much seems to have changed even with all the reforms that have been implemented in the second half of the nineteenth century. The real change will come only later, at the turn of the century and then during the French Mandate, when the practitioners of the law will become trained as professional lawyers, and then judges recruited from that lawyers’ base, which was to become much richer than the narrow circle provided by the ‘ulamā’ culture, so that the whole profession will overall become secularized, except for the anafī sharī‘a courts which were to serve only for personal status matters.

Table 2-2: Techniques practiced in “friendly” fictitious litigations and their corresponding procedural fictions (ḥiyal)

legal device

plaintiff

defendant

judge

observations

cases

1. debt-procedure
Plugged-in several types of cases, procedure might vary from one case to another.
Purpose: To validate both the identity of the representative who will “receive” the property, and his right of representation (wikāla).

1. Plaintiff claims to have a “debt (dayn)” with the representative of the defendant.

2. Representative of the defendant acknowledges his “debt.”
4. At the request of the representative of the plaintiff and with the approval of the court, the representative of the defendant reimburses his “debt” to the plaintiff.

3. Judge requests defendant’s representative to pay his “debt” to the plaintiff.

Final aim is to confirm the identity of the representative of the defendant, his role in the case, and his right to represent his client.
Another possibility is that the device establishes an “obligation” from one party to another, considering that only a debt-as-loan does so.
In anafī practice only a debt-as-dayn entails an “obligation,” while most sale contracts do not.

Land-transfers (C 5-1),
waqfs (C 6-1), and tenancy contracts (C 3-3).

2. property-transfers, or the “occupation” (wa‘ yad) and hands-off (raf‘ yad) procedure.
Purpose: To validate the transfer of properties through a procedural fiction so as to render the judge’s ruling hard to revoke.

1. Plaintiff claims that the defendant has unlawfully occupied (wa‘ yad) her property through usurpation (ghab), and therefore requests that it be removed (raf‘ yad) from the defendant’s possession.
3. Plaintiff denies defendant’s allegations and requests for evidence.

2. Defendant denies plaintiff’s claims and replies that the disputed property is her absolute ownership (milk), and that she bought it “for a known sum” from X; however, no contract of sale is ever unveiled in court.
4. Defendant brings two witnesses to court to confirm her past purchase of the disputed property.

5. Judge accepts the two testimonies and rules in favor of defendant.

Procedure receives an irrevocable judge ruling that establishes 1) property owned by defendant; and 2) property is milk.
Procedure is either a simulated contract of sale, or a property transfer.

Property-transfers only, mostly lands (C 5-1 & 5-2).

3. waqf-transfers (or the “three-founders” technique).
Purpose: To validate the erection of a waqf through a judge’s ruling so as to make the act of the waqf (waqfiyya) hard to revoke.

1. Plaintiff claims the pre-existence of a debt-contract between him
her and the defendant’s representative.
2. Plaintiff then introduces his waqf, its conditions, and list of properties.
6. Plaintiff declares his desire to revoke (rujū‘) some or all of the conditions of his waqf, as detailed earlier. Abū anīfa gives the founder such a privilege.

3. Defendant’s representative acknowledges the debt, but denies the right of representation for his opponent.
4. Two witnesses testify over the defendant’s representative right of representation.
5. Representative acknowledges the modalities of the waqf as stated by the plaintiff.
7. Defendant presses forward the opinions of the two disciples, Abū Yūsuf and Shaybānī, regarding the illegality of revoked waqfs (‘adam al-rujū‘).

8. Judge rules in favor of defendant, that the waqf, under its present conditions, is valid, and that plaintiff has no right to revoke his waqf.

The debt-contract is not a necessary prelude (C 6-2).
Always involves the three-founders technique.

Limited to waqfs only (C 6-1 & 6-2).

4. marad,
or investments in the form of renovations in a waqf’s property by the tenant, and for which he is seeking 1) a legal acknowledgment, and 2) a long indefinite lease from the waqf’s authorities.
Purpose: To seek a ruling that acknowledges both the investment and the low rent.

1. The plaintiff-tenant describes the reasons behind his (or her) renovations to the leased property, prior to describing the renovations and their cost.

2. Defendant-administrator acknowledges the authorization to renovate but denies its necessity. He also points to the fact that the authorization was never approved beforehand by a judge.
4. Defendant claims that a anbalī ruling is illegal.

3. anbalī judge sides with the plaintiff and approves the marad in toto.
5. anafī judge ratifies the previous anbalī ruling.

Roles between plaintiff and defendant might be reversed.
Not all cases go through a anbalī ruling.
Few marad cases could be genuine (C 3-7).

C 3-6, 3-7 & 3-8.

5. equitable/fair price, ajr al-mithl.
Purpose: To fix the price of a transaction through a court’s ruling.

1. The plaintiff is usually the seller of a property, and being at the same time the guardian of a minor to whom the property belongs, she would like to seal the deal with a procedural fiction that first questions the price, only to declare it legal through witnesses furnished by the defendant.

2. Defendant denies that the price was unfair and furnishes evidence through witnesses.

3. Judge rules in favor of the defendant-buyer.

The plaintiff-seller is usually the representative of a minor.

C 3-9 & 3-10.

6. sharecropping, musāqāt, muzāra‘a.Purpose: To acknowledge the long-term bail and the sharecropping bonus in kind to which it is attached.

1. The plaintiff-lessor challenges the legality of the lease on the basis (a) the long-term contract; (b) the sharecropping bonus to be paid in kind; and (c) the low rent.
2. Another potential tenant bids for a higher rent.

3. Defendant-tenant responds that a Shāfi‘ī judge would approve the long-term lease and the in kind bonus.

4. A Shāfi‘ī rules in favor of the contact, prior to its ratification by a anafī.

Usually limited to waqfs.

C 3-11 & 3-12.

7. homicide settlements, jināyāt (s. jināya).
The procedural fiction consists in the plaintiff accusing the defendant of deliberately killing a kin relative without, however, furnishing evidence for his allegations.

1. Plaintiff alleges that the defendant deliberately killed a kin relative.
2. Plaintiff claims that, being the sole legitimate inheritor to the victim, all compensation payments in the form of a diya or otherwise, not to mention the right of inheritance, should be exclusively his (or hers).

3. Defendant requests from plaintiff to furnish evidence.

6. Judge rules that defendant is innocent of the alleged crime, and summons the plaintiff not to pursue the case anymore.

Plaintiffs could be either men or women, while defendants were exclusively male.
At times, defendants did take oath to deny all allegations (C 11-4).

C 11-1, 11-2 & 11-3.

Purpose: To reach a contractual settlement between plaintiff and defendant whereby the latter acknowledges to the former that the victim’s inheritance is solely the right of the former. Such settlements replace the diya (blood-money) as such in that they touch upon the inheritance of the victim rather than on the compensation to be paid by the alleged culprit.

4. Plaintiff acknowledges that he has no evidence to furnish.
5. Plaintiff keeps the right to request from defendant to take oath where he would deny his crime, but rarely does so.

  

  

  

  

Commentary: The seven tabulated procedural fictions were all contractual forms that developed through the practice of the sharī‘a courts, and hence all constituted “type-contracts,” all of which were active at the margin of regular sale and lease contracts. One way to work through the thousands of sharī‘a court records available today for the modern scholar is to organize them into contractual forms (seven, in our case), so that once a form has been discovered, and its procedures explicated, then other similar or identical cases should fit within that same formula. Correlatively, if a case comes with an important variant, it could only be fully appreciated in respect to that general formula. There was a major reason why the social actors (or “disputants”) opted for these kinds of contractual settlements: to validate once and for all all kinds of transfers between plaintiffs and defendants so as to make the judge’s ruling hard to revoke. The alleged “litigations” were thus all obviously fictitious, but that neither posed any moral problems for the judges, nor did it rise the suspicions of the imperial authorities. In fact, and even though such procedures might have been used to illegally transfer public properties into private hands (even though there is no easy way to prove that), their main purpose was to expand the capacities of anafī practice without, however, challenging its substance. There was indeed a long anafī tradition of legal subterfuges (iyal), and such procedures were additional “logical” and/or analogical extrapolations. For that reason, the meaning of such procedures and their precise order, or the way they served as plug-ins between totally different cases, could only be fully appreciated in reference to anafī dogma. Needless to say, we need to know for certain when such practices were introduced, and such a task might be feasible from the Damascus records whose seventeenth- and eighteenth-century bound registers have for the most part survived.

74  

Notes

1 On the structure of the Radd and Rasā’il, see Appendices 1 & 2 infra.

2 All in-text references in this chapter are from the Radd: the volume number precedes the page number(s).

3 On the notion of ilm, see Henri Lammens, “Le «ilm» de Mo‘âwia et des Omaiyades,” in Études sur le règne du calife omaiyade Mo‘âwia 1er(Beirut: Université Saint-Joseph, 1908), 66-108; Zouhair Ghazzal, “From Anger on Behalf of God to ‘Forbearance’ in Medieval Islamic Literature,” in Wrath and Righteousness: The Social Uses of Anger in the Middle Ages, Barbara Rosenwein, ed. (Ithaca: Cornell University Press, 1998), 203-30. It seems that at least some of the ilm qualities survived with the Ottoman sultans, see Leslie Peirce, The Imperial Harem (Oxford: Oxford University Press, 1993), 177: “As Tursun Beg argued in the introduction to his late-fifteenth-century history, the sultan’s principal means of ensuring order was the judicious application of summary punishment (siyaset); this right of the sultan over the lives of his subjects was itself a source of tyranny, however, if it was not exercised within the confines of the holy law, and not tempered with forbearance (hilm).”

4 The bay‘a was in principle a process of selection and endorsement of the new sultan primarily by his own dynasty (or “House”), and also by the ‘ulamā’ and notables, and the military.

5 Aziz Al-Azmeh, Muslim Kingship (London: I.B. Tauris, 1997, 2001), maintains that the bulk of Islamic literature neither developed a theory of state, nor of kingship and “society” for that matter. Moreover, religion was more of a “tool” that added charisma and prestige to a ruling dynasty than a representational ethos that might have come in conjunction with politics: “It will be clear from the foregoing that Arabic, and more generally Muslim, writing on politics in the Middle Ages does not contain or constitute a theory of state. Nor does it regard kingship as more than the sum total of royal activities, which are described and tabulated but not theorised. It is true that there are, in general, indications about the types of government, be they based on religion, on reason, or on caprice. But this is a typology of royal motivation, not a theory of the state. There were also available many redactions of the idea, not exclusive to Ibn Khaldūn, that states commence with vigour, later tempered by confidence, and terminate in effeminacy and injustice, and that each of these stages has correlative royal characters and propensities. This view is variously attributed to Platonic and other origins, was very frequently expressed in moralising and censorious terms, and was very long lived, finding expression in various Ottoman writings on politics where it took on an elaborately theoretical turn in the form of a vitalist and organismic metaphor” (113).

6 However, the “contract” in this case is different from the Hobbesian type of “covenant”: indeed, in Hobbes’ Leviathan, the power delegated by the “people” to their sovereign is to perpetrate a state of peace in “civil society.” What in fact is delegated by the people to their sovereign is a legitimate use of violence and its monopoly by the state (in both its legislative and executive branches). The sovereign is thus primarily needed to create and maintain a civil peace, and his monopoly of legitimate violence has no other purpose but to assure that society perseveres in its being. The various conceptualizations of political power in the Islamic literature, however, and which Ibn ‘Ābidīn’s text reflects clearly, all take for granted that a ruling dynasty must hold on to political power by force in order to survive; but the telos of political power—or of ‘aabiyya in the language of Ibn Khaldūn—seems nothing but the state itself. In other words, the purpose of “politics” is to maintain the dominant dynasty in power: therefore, peace among the ra‘āya is only an outcome of a dynasty establishing itself and maintaining political power over several generations to come—there is no delegation of power, or limits imposed upon the executive, or a legitimate use of violence, or even a civil covenant since “society” does not request anything from its sovereign in the first place. Furthermore, in Islamdom, not only political power is associated with religious representations, but, more important, it creates an image of war as outside the umma: in other words, the dār al-arb is “outside” the dār al-Islām, and “peace” is created by absorbing as much as possible of the territory of the infidels. Again, placing “war” “outside” the “society of believers,” the umma, is a reversal of the Hobbesian paradigm in which the “state of nature” is by definition a “state of war”: war, violence, insecurity, fear, and the like, are all inside phenomena that “society” has to contain all by itself—by delegating the legitimate use of violence to a sovereign. Thus, by defining the state as the apparatus that monopolizes the legitimate use of violence, Weber did nothing more but to provide a socio-historical definition of the Hobbesian paradigm.When there is no delegation of political power, and when “peace” is a manifestation of the sultan’s power and a sign of his success (or failure) rather than a desire of the ra‘āya, what is the judicial system supposed to do under such conditions? In the Hobbesian model of a “civil society” versus an omnipotent sovereign, justice is also a matter of power delegation. In the state of nature, every individual is his own judge; while in civil society—the commonwealth—this ability to judge, adjudicate, and execute has been delegated to the sovereign who now assumes all three functions together: he is the source of all legislation, adjudication, and execution. Indeed, it is only with John Locke that all these functions became separated from one another.

7 See supra Chapter 1.

8 On sultanic legislation, see Chapter 10 below.

9 Michael Cook, Commanding Right and Forbidding Wrong in Islamic Thought (Cambridge: Cambridge University Press, 2000), 155.

10 Cook, Commanding Right, 191-92: “In Arabia, as in the Fertile Crescent, the expanding bureaucracy of the modern state meant the end of anbalite history as we have known it in this study. But where the reformed Ottoman state and its successors effectively destroyed the traditional role of the anbalite scholars, either absorbing them as individuals or pushing them aside, the rise of the modern state in Sa‘ūdī Arabia preserved that role by a kind of ossification, turning the scholars into an appanage, though not always a docile one, of the state bureaucracy.” Eventually, Wahhābī reformism, in particular its success in appending reformist intellectuals into the state institutions, will attract late Ottoman Damascene scholars, such as the salafī group centered around Jamāl al-Dīn al-Qāsimī.

11 See below the following section on “the culture of the judges,” and Table 2-1.

12 This lack of articulation between law, state, and society, should be taken into account more broadly in the general context of Islamic history. Between c. 950 and 1250 feudal Europe went through its first “modern revolution” which restructured feudalism radically and gave way to the seigneurie regime. More importantly, that regime, besides restructuring land appointments and tenures, brought all kinds of new “connections” between the state and local communities which the Islamic societies on the eastern Mediterranean and Asia had not witnessed: “A general characteristic of kingship in western and southern Europe in the twelfth century was the growth and intensification of the connections...by which kings transmitted their wills to the local communities...guidelines and measures passed on from above to competent agents at local level...careers and interest groups formed at the beginnings and ends of these routes of administrative traffic...were the means by which regional societies could acquire statehood. Without such connections and without their local officials and advocates kingship was forced to remain distant and sporadic...irrelevant for the mass of agricultural production” (Karl Leyser, quoted in R.I. Moore, The First European Revolution, c. 970-1215, Oxford: Blackwell, 2000, 194). As Quentin Skinner has argued, the Italian renaissance went even further and conceptualized a modern notion of the state and civil society, one that bypassed claims of kingship from both the Holy Roman Empire and the Catholic Church: “There is clearly a revolutionary political claim implicit in this defence of the Italian cities and their Imperium: the claim that they ought to be recognized as fully independent sovereign bodies...[thus leading to that] revolutionary step of introducing the same doctrine into civil law, thus making the first decisive move towards articulating the modern legal concept of the State” (Quentin Skinner, The Foundations of Modern Political Thought, 2 vols, Cambridge: Cambridge University Press, 1978, 1:11). Needless to say, the Indo-Islamic world, which was dominated almost exclusively since the weakening of the ‘Abbāsid caliphate in Baghdād by ruthless warrior elites, neither witnessed such a transformation, nor did it articulate a comprehensive theory of the state and society, and the place that law would take into such a system.

13 Hodgson, Venture of Islam, vol. 3 (Chicago, 1974), Chapter 3.

14 On the weaknesses of Ibn ‘Ābidīn’s conceptualization of the Ottoman land-tenure system, see Chapter 4 below.

15 That process of “renewal” should have in principle been applied by and large to the entire corpus of the qānūn, see Uriel Heyd, Studies in Old Ottoman Criminal Law (Oxford: Clarendon Press, 1973), 172, and 176 on a qānūn whose main purpose was the protection of the common people from the abuses of state and local authorities. Heyd describes the qānūn as “statutes.”

16 On the significance of the anafī juristic typology, see Chapter 1 supra.

17 I was unable to identify a Jamāl al-Dīn al-Bazdawī, who is quoted as such in the Radd. There is, however, a certain ‘Alī Bazdawī (400-482/1010-1089) who was a anafī faqīh in Samarqand, and another Muammad Bazdawī (421-493/1030-1100), also a faqīh and judge in Samarqand.

18 The Ottoman grand muftī Abū al-Su‘ūd (or Ebu’s-su‘ud), who held his position between 952-982/1545-1574. On his views on rent and taxes, see Chapter 4 below.

19 Ibn Nujaym, “Risāla fi-l-rishwa,” in Risālāt mujma‘a li-Ibn Nujaym, MS. 5105, microfiche 7077 (Damascus: Asad National Library), 4b.

20 See Table 2-2 on “fictitious litigations,” and several of the cases analyzed in detail in Chapters 3, 5 and 6.

21 They were already very common since the beginning of the nineteenth century, but their origins remain uncertain until more legal research is completed for the previous centuries.

22 .Qarā’in (singular: qarīna): “verbal or nonverbal indicators that clarify a part of speech extraneous to themselves; a given or presumed set of facts underlying a particular situation; circumstantial evidence” (in Masud, et al., Islamic Legal Interpretation, Harvard University Press, 1996, 410).

23 See above Chapter 1 on customary law.

24 That is, Shaybānī’s six works of uūl, see supra Chapter 1.

25 In the al-Úahīriyya, for example.

26 The nawādir (“rarities”) for the anafīs refer specifically to all Shaybānī’s works that are not included among the six uūl in the Úāhir al-riwāya.

27 Niklas Luhmann, “Quod Omnes Tangit: Remarks on Jürgen Habermas’s Legal Theory,” Cardozo Law Review 17 (4-5 1996): 883-900.

28 Luhmann, “Quod Omnes Tangit,” 888.

29 Ibn ‘Ābidīn’s text refers to “two witnesses’ signatures (khaṭṭ al-shāhidayn)” rather than to “the witnesses’ signatures (khaṭṭ al-shuhūd),” even though the latter would have been a more correct description for the majority of cases. In fact, two witnesses were needed to corroborate any single piece of evidence, so a case would usually end up with a minimum of two witnesses.

30 Most Ottoman historians either ignore legal fiction completely, thus opening the way for a literal interpretation of the sharī‘a courts texts, or else tend to think that it is mainly a device to conceal (and hence transmit) property or other valuable assets. See, for example, Margaret L. Meriwether, The Kin Who Count. Family and Society in Ottoman Aleppo, 1770-1840 (Austin: University of Texas Press, 1999), 14: “Much of the value of [the sharī‘a courts] sources lies less in the final decisions rendered by the qadis and more in the issues raised and detailed information provided. Moreover, whether a decision was implemented can be confirmed in some cases by subsequent entries in the registers dealing with the same piece of property. A more complicated issue is that of legal fiction. It is possible that fictitious contracts or property sales were registered to serve the particular purposes of the parties involved. For example, a wealthy merchant might register the sale of property to a religious leader to avoid the threat of confiscation, without the property ever changing hands in reality. This type of methodological problem has been raised in the case of historians using notary records in Renaissance Italian cities. We have no way of knowing whether such legal fictions took place nor any means of weeding them out if they did. It is important to note the problem, but we must simply live with the doubt.” Once reduced to a device to protect or transmit one’s property (e.g., the threat of confiscation), legal fiction becomes a technicality rather than a procedure. In effect, legal fictions generally result from the procedural limitations inherent within a particular system, and the difficulties that such limitations might generate at a specific historical juncture. For example, procedural difficulties in fixing the value of a rent in various tenancy contracts such as sharecropping and the marad, all of which are the outcome of limitations inherent in anafī dogma itself, led to procedural fictions to absorb the need of such contracts that were not traditionally recognized in classical anafism. Once we accept the procedural nature of legal fictions, their detection in the sharī‘a courts and other legal texts becomes a question of expertise and time (see Table 2-2 infra).

31 Carlo Ginzburg, À distance: Neuf essais sur le point de vue en histoire, translated by Pierre-Antoine Fabre (Paris: Gallimard, 2001), 46, argues that juridical fictiones, already very much known to the Romans, consist in making operational, in a precise situation, an inexistent reality. It was only in early modern Europe that a “control” of fiction began to take shape by forcing through the “reality” test: “Le patrimoine technologique qui a donné aux Européens de conquérir le monde comportait aussi une capacité renforcée au cours des siècles de contrôler la situation entre visible et invisible, entre réalité et fiction” (49).

32 Alan Watson, Roman Law and Comparative Law (Athens, Georgia: University of Georgia Press, 1991), 263: “In both Roman and English law use was made of fictions. For Rome the classic account is again to be found in Gaius’s Institutes. He describes some instances of fictions being used in formulary actions. For example, the praetor had greatly changed the old civil law of succession, and hence a praetorian action ought to be given to someone who was not the civil law heir as if he were the heir, either to claim the inheritance or to claim a debt owed to the inheritance... The Roman fictions have in common that they are extending an existing right to a new class of persons or new class of situations. There is no pretense about them.” Since sharī‘a law looked upon all Muslims as fundamentally equal, there was no need to create fictions to expand the law to other groups. As we will see with Maronites like the Shihābs (Chapters 5 & 6 infra), they came to the anafī courts of Beirut precisely to have Islamic law applied to their contractual settlements, as a non-Muslim was not obliged to know any other legal order in particular when it came to pecuniary transactions. Fictions were therefore helpful to expand the range of contractual settlements for the élite groups in society, whether Muslims or non-Muslims.

33 Steve Tamari who completed in 1998 a doctoral dissertation (Georgetown University) on the ‘ulamā’ in eighteenth-century Damascus, told me that a great deal of those ijāzāt have survived and have recently been relocated from the Úāhiriyya to the Asad National Library in Damascus.

34 Shaykh Muammad Jamīl al-Shaṭṭī, A‘yān Dimashq fī al-qarn al-thālith ‘ashar wa-nif al-qarn ar-rābi‘ ‘ashar, min 1201-1350 Hijri (Damascus: Dār al-Bashā’ir, 1994). Shaṭṭī’s A‘yān is a more complete work than the earlier Biār’s ulyat al-bashar.

35 Each one of the following six is identified by Shaṭṭī as ī Dimashq: Amad Mukhtār Khālid Bek, asan usnī b. Muammad Ismā‘īl, usayn b. Amad, ‘Umar Bahjat, Muammad Efendi al-Maāsinī, and Sa‘īd Efendi al-Usuwānī.

36 Such was the case, among others, of the family of Khalīl Efendi al-Maāsinī whose sons and descendants were like him all enrolled in the courts’ scribal positions, or that of Sa‘īd Efendi al-Ayyūbī (see Shaṭṭī, A‘yān, 119, 132).

37 See Chapter 10 below on sultanic legislation.

38 For example, in register 691 it is noted that Muammad Rāghib Efendi Makkī served in the courthouse of —āliyya in 1294/1877; Judge Mamūd Shafīq Efendi al-Khānī served too in that same courthouse, and also in ‘Awniyya (there were only six registers for —aliyya for the years 1873-78).

39 For a description of the Damascus Ottoman archival documents and registers, see Brigitte Marino and Tomoki Okawara, Catalogue des registres des tribunaux ottomans conservés au centre des archives de Damas (Damascus: Institut Français de Damas & Centre des Archives de Damas, 1999).

40 See Table 2-2 infra.

41 Shaṭṭī, A‘yān, 237-8.

42 Shaṭṭī, A‘yān, 189-192.

43 Shaṭṭī, A‘yān, 315.

44 It is known that the Ottoman administration began its judicial reforms in the 1850s with a promulgation of a series of new modern codes, most notably the Land and Penal Codes, both of which were completed in 1858. But at that time, only the majālis of the Tanīmāt adjudicated parallel to the sharī‘a courts: in other words, there were no newly designed courts that would act upon the new laws and regulations, and the maākim al-isti’nāf al-niāmiyya, as they were called, apparently did not begin their work, as far as Damascus is concerned, prior to 1882. In fact, 142 niāmiyya registers have survived from the 1882-1916 period, in addition to 100 other registers labeled as derkanār, and which were probably miscellaneous entries to a varieties of cases and issues that did not fit within one particular court. (The so-called commercial courts also happened to have begun by 1883.) The major cities in Greater Syria were therefore left for a period of at least two decades (the late 1850s to the early 1880s) with all kinds of judiciary powers that in principle were competent enough to handle the newly promulgated laws in conjunction with anafī practice. But, while the sharī‘a court records point to great restrictions on their activities in the 1860s and later (in terms of the reduced number of land cases, crimes, and contractual settlements in general), not enough material has been saved from the minutes of the regional councils to properly assess their work. In short, for the 1860-1880 transitional period, and with the sharī‘a courts mostly reduced to personal status matters, little is known about the implementation of the new laws, which for the most part were of Napoleonic origin, and how the old managed to coexist with the new, or how “modern” was the practice of the new codes. In fact, the promulgation of new codes, in particular when their logic owes so much to the French legal system, does not necessarily imply that such a logic was well “absorbed” in judicial decision making. If we look upon legal systems as sets of normative rules (which could be systematic or arbitrary, rational or irrational, logical or religious and oracular), it is then their assimilation within a culture that really matters.The niāmī courts registers, mostly drafted in Turkish, could provide such an opportunity. In fact, they fit perfectly well within a period of rapid judicial change imposed by new laws, regulations, and institutions. The codes themselves are nothing but a set of objective normative rules imposed by the state to enhance the process of bureaucratization and centralization fostered by the reforms. Not only were such rules not the product of Ottoman societies, but it is the process of their internalization as normative values by the social actors that carried them that is worth an historical investigation. Even though such a task is beyond the scope of the present work, it is nevertheless worth outlining the importance of such a research, at least in conjunction with the main arguments proposed in this study. The ambitious effort deployed by the Ottoman administration to modernize its legal system aimed primarily at bureaucratizing and centralizing a vast array of judicial practices that were left for the most part at the mercy of local powers, status groups, the sharī‘a courts, and the regional councils. It is as if the old system, which is the subject of the present work, was a compendium of “special laws,” all of which did fit well with the practices of a group but did poorly in conjunction with one another. In fact, what clearly emerges from our study of adjudicative practices is a hunger for new contractual settlements that would place the parties concerned in a well defined relationship to one another, at least one that would not have required all the procedures involved in fictitious litigations. Indeed, it was the failure of the judiciary to provide the particular type-contract that pushed the courts towards awkward forms of decision making regarding property transfers, criminal settlements, and the like.

45 Wael B. Hallaq, “The ī’s dīwān (sijill) before the Ottomans,” Bulletin of the School of Oriental and African Studies 61, no. 3 (1998): 415-36.

46 See infra Chapter 10.

47 See infra Chapter 9.

48 The practices of the sharī‘a courts are often described as case law, and hence unfairly compared to the better known Anglo-Saxon case law compendiums. In fact, much unjustified focus has been placed on the judge’s discretion, and the fact that neither the Islamic nor the common law systems have systematic codes, hence both supposedly represent systems in the making through court rulings and precedent (or an implicit and never declared “precedent” in Islamicate courts). Such views, however, tend to marginalize all efforts that were deployed to homogenize and rationalize the English common law (and much later the American nineteenth-century system), which point to all kinds of societal differences with Islamic societies in particular regarding the role of institutionalized hierarchies which protect individuals from personal and state abuses. Thus, little attention has been given to what the old English common law referred to as “case reporting,” an early example of artificial memory that tracked cases by keeping them listed in notebooks, and its implications. The English (Norman) courts kept no written record until late in the twelfth century, the same period that saw the rise of jury trials, with jurors serving as both fact finders and witnesses. That same period saw the rise of the royal courts that brought about the “common” law—common to all of England—administered from Westminster Hall in London. The common law rapidly gained ascendancy over most local courts as the king’s justices traveled in “eyres” throughout England. It was only late in the twelfth century, however, that royal courts began to keep records of their adjudications in “plea rolls,” and also written dockets of their calendars and written rules of procedures embodied in “paper books.” At about the same time, by 1187, the first known English treatise on law, attributed to Glanville, was written. The public had no access to the plea rolls. They were kept as internal records of the courts. The only early use of the plea rolls, for publication occurred in the middle of the thirteenth century, when the second major treatise on English law was written by a judge, Henry de Bratton, known as Bracton. As a judge, Bracton had access to the plea rolls, and he used them to compile a personal Note Book of two thousand cases, citing about five hundred of them in his treatise.The principal purpose of the “plea rolls” was to establish what had been adjudicated, so that the decision might be final: what later lawyers would call estoppel by judgment or res judicata. Like present day minutes of meetings, they recorded the outcome of proceedings rather than the discussions and reasons which explain how the result was arrived at.The little attention that legal scholars have historically manifested towards “cases” of the sharī‘a courts (and hence no treatises were written based on any of those records) stems from the fact that there was no attempt, even through the long Ottoman history, either to homogenize or rationalize the court’s activities from an imperial center. Indeed, that would have been a costly enterprise, one that would not have proven beneficial unless a particular dynamism of the merchant, financial, or mercantile groups manifested itself at some juncture.England thus saw, since the twelfth century, and in conjunction with a premature proto-capitalism, an early and systematic process of a “national” legal culture, which was highly centralized and administered from Westminster Hall, and also through the itinerant “eyres,” which helped to assimilate local customs into the common law. That process was thus very prematurely different from the legal cultures on the Continent, mostly based on amalgams of codes from Roman law and local customs. By contrast the English system became the first modern rationalized “legal order” in Europe despite the fact that it was not structured on a systematic sets of codes. Thus, what became known as the “English exception,” referring to the fact that England had seen the development of a full-fledged capitalism despite its non-systematic codes, is besides the point: English common law was very effective in both the creation of a national culture and in the centralization and rationalization of the judicial decision-making process. It was indeed the combination of all those elements that eventually led to the routinization and predictability of the system, all of which contributed in the formation of an aggressive capitalism. See George S. Grossman, Legal Research. Historical Foundations of the Electronic Age (Oxford: Oxford University Press, 1994), Chapter 1.

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