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The grammars of adjudication

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Zouhair Ghazzal

Chapter 5: The ethnography of court documents: The transfer of property to women I

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  • 1 The first document, dated 4 —afar 1274 (24 September 1857), is five pages long (legal size paper) a (...)
  • 2 Indeed, the same remarks do apply to other types of documents such as the fatāwā, sultanic edicts, (...)

1All sharī‘a court documents dealt with thus far have been examined in conjunction with the legal doctrines that supposedly sustained them, and thus, little has been done in terms of analyzing cases singly for their own sake. The overall aim was to show how the classical theory of contracts and obligations (assuming there was one) produced in Ottoman times contractual settlements that in principle should have been unacceptable from the perspective of the canonical texts, but were acknowledged by the jurists out of convenience, in conformity with local customary practices. Those customary contractual notions produced, in turn, all kinds of self-correcting court practices (see Chapter 3 supra), thus greatly contributing to a refinement of those parochial norms, while bringing a mostly obsolete and rigid law of contracts into acceptable practices that in principle should have been illegal. In this chapter, I would like to push further the notion of self-correcting contractual settlements based on cases wrapped into alleged “litigations,” and show how fictitious litigations, introduced in court in a khuūma-like language were nothing but simulated contractual arrangements—or conveyances—which could not be overtly posed as such, and whose main purpose was to define and consolidate property rights. For that purpose I examine two documents, each singly, from the sharī‘a courts of nineteenth-century Beirut, the first dealing with the inheritance of Emir Bashīr II Shihāb, a Maronite who ruled Mount Lebanon from 1788 until the Egyptian withdrawal in 1840;1 and the second with property transfers between two brothers and Shihābī emirs, and their respective wives. In the following introductory remarks, I explain why the analysis of sharī‘a documents singly, in conjunction with other “legal” texts (fiqh manuals, fatāwā, sultanic ordinances, and rulings of regional councils), is appropriate and useful and why it will adopted as a methodological tool in this study.2

  • 3 For a preliminary assessment of the “social history” literature, see Zouhair Ghazzal, L’économie po (...)

2Since the sharī‘a court records of Ottoman Syria became available to researchers in the late 1960s, they have been used primarily to reconstruct the social and economic history of Greater Syria (Bilād al-Shām), its cities and the surrounding countryside.3 Researchers who attempted to write the social history of a particular locality found court documents to be an important source of information that supplemented the French and British diplomatic records. Court documents made it possible to reconstruct family genealogies, to trace the intergenerational transmission of property, to understand the structure of craft-guilds, and to describe the tax-farming system (iltizām) and the way it was handled by the notables (a‘yān) and tax-farmers (multazims). These studies are important, especially insofar as they provide a global picture of the political economy in Ottoman societies. But by treating court records as a source of “facts,” these researchers tend to disregard or ignore the enterprise of judging and the role and function of the judicial system in Ottoman societies. Moreover, while ignoring the intricacies of adjudication, researchers are left with the only option to read their documents literally, which implies, among others, that a litigation (khuūma) could only be perceived as a genuine litigation, which is incorrect. In fact, the sharī‘a courts were plagued with cases I refer to as “fictitious litigations” and which, upon closer examination, were nothing but contracts simulated in the form of litigations(Chapter 3 supra). To understand the logic of such texts, one must begin with the limitations inherent in anafī practice itself, and its static notion of contracts and property. Thus, in order to safely transfer a property and secure it as milk to its beneficiary, or to ensure that a waqf is indeed irrevocable, the safest route was to simulate a litigation in order to end up with a judge’s ruling that establishes the irrevocable nature of a transaction. Such procedures were by no means limited to property transactions and extended to torts and crimes as well (Chapter 11 infra).

3Needless to say, and considering the dissemination of such procedures, deciding whether a litigation is genuine or fictitious has enormous implications for both social and legal history. Consider the hypothetical example of a lawsuit between a man and his wife in which the husband (plaintiff) has decided to revoke part of his will regarding his own waqf, including a clause appointing his wife as administrator. The husband thus fights his case in court armed with Abū anīfa’s opinion regarding a founder’s right to revoke his trust or sell the capital, while his wife (defendant) defends her administrative rights by pointing to Shaybānī’s and Abū Yūsuf’s opinions regarding the irrevocable nature of waqfs. The judge would then typically rule in favor of the defendant, declare the waqf valid and irrevocable, and confirm the status of the wife as administrator. Thus, the “disputants” managed to both validate their waqf and establish it as irrevocable. This “three-founders” procedure (Chapter 6 infra), however, was so common in Ottoman courts that it would be misleading not to see in it one of those typical fictitious litigations which are only simulations of contractual settlements. Such legal readings could prove crucial in understanding gender, family, and kin roles in the context of judicial decision making. Thus, a woman “winning” her suit against a husband or brother is not necessarily an indication of a “fair” distribution of gender roles in the courts, in particular if the “litigation,” upon analysis, is fictitious.

4To bypass therefore the factuality of courts records, which undoubtedly leads to a literal reading of those texts while taking their content at face value, it is not enough to apply to them modern linguistic, literary, and anthropological techniques. In fact, whatever the merits of such approaches, unless the meaning of each text is individually reconstructed within the specific framework of anafī practice, court procedures, and all the self-correcting practices which they engendered, those texts will remain opaque and impenetrable to modern observers. In fact, historians of the empire have typically avoided such complex readings, which fall within a legal anthropology tradition, thus opting for a more factual and compartmentalized approach. But what historians were truly avoiding—albeit seldom expressed as such—was the so-called “ideological” nature of all “literary” texts, in particular those linked to an “author,” and the difficulties researchers encounter in relating such texts to an historical social practice. Ironically, however, it is this belief in the “materiality” of documents—or their presumed facticity—that has often led to inaccurate readings. Contemporary historiography has therefore operated within a de facto division between different textualities: on the one hand, the sharī‘a courts and all kinds of bureaucratic texts, all of which are handled on the basis of their facticity and “accuracy”; and, on the other, different brands of literary texts, be it legal, historical, biographical, or literary, whose presumed ideological biases and remoteness from social practice contributed in lowering their status among the historians, who prefered the former to the latter.

  • 4 See Chapter 4 supra.

5To avoid that kind of separation and hierarchies between texts, I propose the integration of sharī‘a court records, among others, into their “cultural” context, which in this case primarily consists of anafī dogma, its perception of language, custom, and the judiciary (Chapter 1 supra), and the nature of self-correcting practices produced by court procedures. Indeed, the montage of texts proposed in this study consists in juxtaposing and superimposing different discursive practices hitherto kept separated in contemporary scholarship, which for the purpose of analyzing the “legal” apparatus have been limited to four: the fiqh, the sharī‘a courts, the regional councils, and sultanic ordinances. Reading such a variety of discursive levels is not an easy enterprise especially since the inter-textual connections are difficult to track down. In fact, a common characteristic to those discursive practices is their incongruent nature and the “silences” that they impose at times on each other’s practices. Thus, for example, an analysis of the anafī texts on land tenure reveals how much the Ottoman mīrī system was deliberately ignored by jurists,4 even though the courts for their part had to impose their arbitration on a growing number of land disputes, and for that purpose had to rely on their own self-correcting practices. Such intriguing difficulties, however, should not push us towards favoring one level against another on the basis that it is more “practical” or “down to earth.”

  • 5 The notion of “discourse” approximates our notion of “text” in the sense that discourse is subject (...)
  • 6 Textual and discursive analysis does not presuppose a linguistic and philological presentation of t (...)

6Against an approach that focuses on facts and data, I propose to undertake a “textual” reading of court documents and to analyze these documents as “texts.” Philosophers, linguists, and literary critics use the notion of “text” to refer to the linguistic patterns created by words, phrases, and propositions, which, taken together as a unit of analysis, manifest, at a first level, a trivial and “literal meaning.” “Textual analysis,” however, claims that there is more to a “text” than what is visible at the surface. At a second level, any text is by definition embedded in a set of ideological and socio-historical power constructs which historical analysis seeks to render explicit.5 For example, a last will and testament is a “document” in the sense that it points to the deceased’s intentions concerning the devolution of her properties; but, at another level, it is a “text” in the sense that it was drafted and conceived within an ideological (discursive) framework which, if made explicit, might inform us about constructs such as property, will, and inheritance. The notion of document-as-text suggests that documents should be analyzed as totalities, that is, as texts endowed with a particular “meaning” that the historian, with the benefit of hindsight, reconstructs and interprets. (This reconstruction should be a primary task of the social sciences.) Thus, considering the importance that late anafīs attributed to their juristic typology (see Chapter 1 supra), it would indeed prove erroneous not to take the latter into consideration when sorting out the layers upon layers of interpretations. Further, a reading and interpretation of documents-as-texts seeks to go beyond the manifest meaning of texts to their latent meaning, as I shall attempt to demonstrate in the following analysis of sharī‘a court documents.6

7My reading of court documents seeks to answer the question, “According to what logic does the qāī reach his judgment?” Unfortunately, court documents are draft-summaries that tell us little or nothing about the process of decision-making. A primary task for the reading of such documents is to recognize their limitations, that is, to acknowledge from the beginning what they cannot tell us. The logic of the document, that is, the way in which it is textually constructed, does not tell us much about the decision-making process since the document rarely explains the link between the various steps that tie it together and is, in this regard, incoherent. The difficulty of such an approach—and its main weakness—is that the activity of the qāī is obscured by the summary nature of the document, which is silent with regard to the qāī’s thoughts and actions. To be sure, the textual logic of each document cannot be discerned on its own. On the one hand, the impact of anafism is decisive since it shapes at least fragments of the texts, in particular that judges have to follow the juristic typology of their school, by specific opinions, or else seek a fatwā. On the other hand, it is indeed an inter-textual effort that would bring to light the internal “coherence” of documents. However, since each document is a totality all by itself, unless its specific meaning is revealed, generalities about the applicability of the law and the process of adjudication will not help much.

  • 7 Foucault noted that the notion of “author” is even more problematic in the case of “individual” aut (...)
  • 8 ,Eduardo Silva-Romero, Wittgenstein et la philosophie du droit (Paris: Presses Universitaires de Fr (...)

8These problems lead us to the issue of the “author.” Although each document is usually identified from the outset by the qāī’s “signature” and seal (khatm), the “authorship” of the document is problematic.7 Dictated by qāīs to their scribes (or sometimes drafted directly by the latter), the documents have an anonymous quality, as if a collective “we” had written them. The process of drafting a document belongs to the discourse of jurisprudence and its related subfields. Although this discourse contributed to the enterprise of drafting documents, experience and repetition also played an important role. Qāīs and their scribes learned their respective functions by observing their predecessors and by virtue of their own experience—hence the uniformity and stereotypical nature of the sharī‘a court documents, which points to the conservatism of the qāī’s court of this period. To be sure, the anonymous quality of sharī‘a court records is related to the validity claims inherent in each document. Thus, the sole purpose of third-person narratives is precisely to depersonalize the text in order to construct a language of authority, so that even the judge—as narrator—introduces himself as “the qāī.” Judges were neither supposed to be stylish nor to craft their ownopinions, but if they did, it should have been in accordance with anafī juristic typology. Moreover, besides the judge’s third-person narrative, a fourth-person hovers over each one of those texts, namely the authority of the school itself, together with its juristic typology and hermeneutic circles.8

9Writing—and in particular when linked to an official and religious institution like the sharī‘a courts—could only be efficient via a deadly routine. Each court document perseveres in its being through this massive repetition, from previous documents, in a powerful process of mimesis of a limited number of words, statements, and above all, syntax. Yet, despite this massive repetition, the document is identified with the (anafī) qāī’s name (ism), signature (tawqī‘), and seal (khatm). Even though the name, signature, and seal are not repeated at the beginning of each document, the text nevertheless reminds its “readers” (to whom was it addressed in the first place?) that all three are inscribed a‘lāhu, “above,” at the beginning of the register. The sijill itself is drafted so that the blank areas are reduced to their minimum and the cases squeezed one to the other, probably to make sure that no one would add anything to the original text, thus giving the sijill, which is devoid of modern typographic punctuation marks and the like, the look of a “text” running forever without any pause—only the list of witnesses separates one case from the next. So do the name, signature, and seal identify the text with the person? The ākim shar‘ī anafī, whoever he might be, never speaks (or even introduces himself) in the first-person singular (or plural); it is, throughout the document, a third-person singular that establishes the authority of the text. This “authority of the text” manifests itself in a series of “literary devices,” beginning with the “neutral” third-person; and the “factual” lists of names and property listings; to the quasi-utterances performed in court and which the text pretends to quote verbatim. So, as soon as the qāī introduces himself, he is already concealing his identity in the document. Do the documents then have a “personal style”? Could they be “identified” with an “author”? Should we organize those texts into different categories, according to author, style, and judicial methodology? And if it turned out that the name of the judge which “opens” each register was a legal scholar whose name identifies to other pieces of writing, should we then see the court documents in light of those other texts? Or should we consider them as “autonomous” on their own?

10For our purposes here, such questions are less relevant than they might seem. To begin with, the identification of the judge in terms of name, signature, and seal, is not part of a process of individualization but only that of an identification with a source of authority. This qāī does “represent” an institution, but his power of “representation” does not necessarily create a dynamism to “individualize.” Indeed, the judicial apparatus would like to minimize any possibility of individualization. Beyond that—and the court documents selected in this study do reflect my point—there is little use in categorizing documents according to style and author. Such an approach might be rewarding when dealing with legal treatises and the like but proves of little help for documents reproduced by the thousands. I will therefore assume that the textuality of the court documents is “discursive” in the sense that there is a “discourse” to all court documents which goes beyond the particularities of the texts themselves. This does not imply, however, that rulings were more important than judges; on the contrary, the personalities of the judges, social links, wealth, status of learning and prestige, in short, all economic and cultural capital combined, mattered a great deal—at least more than the ruling itself. But this was all wrapped up in a discourse where the individuality of the judge mattered little so as to render the ruling totally impersonal; judges also very rarely referred, if at all, to each other’s final rulings, but only to opinions by muftīs, which they sought for in “hard” cases and often quoted verbatim, in addition to opinions by well-known anafī jurists. Overall the system was open to accept new or modified judicial practices that became necessary to bridge the hiatus irrationalis between the concepts of the legal doctrines and the practice of the courts, on the one hand, and customary practices on the other.

11The uniformity of the court documents stems in part from the fact that we are dealing with brief “summaries” of long and complex hearings (at least in civil litigations). Compared to the files, transcripts, and videotapes available for modern judicial hearings, the sharī‘a court records appear thin and uninteresting. One might argue that the summary nature of sharī‘a court documents makes it difficult or impossible to recover the original statements and motivations of the litigants. The “summaries,” according to this view, are distorted because they are merely the qāī’s re-presentation of the hearing in his own words. But this argument applies equally to the modern recording of hearings, which inevitably involves some form of “summarizing” or “editing.” To my mind, the “summaries” of the sharī‘a courts should be viewed as a “medium” through which we may enter the world of the Ottoman judicial system. Austin’s linguistic category of “performative utterances” points to the fact that when we act and speak, say, in a court, we are not simply reporting on something that is already fixed in the world, we are actively constituting it, replicating it, and reinforcing it. My view of the sharī‘a court texts (not to mention the minutes of the regional councils and sultanic ordinances) is one of “performance,” and, as I show in an analysis of a single case (C 8-2), court utterances do not simply report and name, they perform.

12The notion of an “anonymous author” leads, in turn, to that of “context,” because a “textual analysis” of documents dares to sustain itself exclusively from the “text.” Although “textual analysis” assumes that the logic of drafting a document may be reconstructed from the document itself, we need not take literally Jacques Derrida’s claim that “there is nothing outside the text.” Social history perhaps may supply us with the desired contextual basis, first, by shedding light on the individuals, families, and groups who appeared in court in order to re-negotiate their social status, and second, by its unique ability to contextualize the particular historical period to which the document belongs. A “textual analysis” of court documents may, in turn, transform the enterprise of writing social history inasmuch as the reading of documents in a new light may have an effect on the manner in which data are collected from court documents and other sources.

  • 9 See Gunther Teubner, “Pour une épistémologie constructiviste du droit,” Annales ÉSC 47, (1992): 114 (...)

13My general approach to legal systems may be described as “constructivist” in the sense that the judiciary is treated as a discursive system with its own epistemological foundations.9 I maintain that the judiciary is totally “constructed” by language and that there is no “external reality” that lies “outside” this language. A textual approach to the sharī‘a court documents is appropriate because it is the language of the courts as a social construction that makes the existence of the judicial apparatus possible. In most (if not all) legal systems, the essence of the judicial lies in the language of the courts and the discourses of jurisprudence; thus, an analysis of such discursive practices allows us to reconstruct the foundations of the system.

The Maronitism of the Shihabs

  • 10 For a detailed history of the Shihābs in the eighteenth and nineteenth centuries, see Mikhāyil Mish (...)

14Mount Lebanon had been under nominal Ottoman rule since 1516, at which time it was ruled by the House of the Ma‘n.10 In 1697, Emir Amad, the last scion of the House of the Ma‘n, died without leaving an heir, and political power was transferred to the Shihābs. In the eighteenth century, a series of Shihābī emirs ruled Mount Lebanon, but it was only with the accession of Bashīr II in 1788 that the House achieved the grandeur that made it memorable. Bashīr II’s rule ended in 1840 with the Egyptian withdrawal from Bilād al-Shām. He was succeeded briefly by his cousin, Bashīr III, whose unsuccessful reign completed the demise of the Shihābs in 1841.

  • 11 Mishāqa, Murder, Mayhem, Pillage, and Plunder, 125.
  • 12 Mishāqa, Murder, 289, nt. 35 (translator’s note).

15The Shihābs were composed of two “clans,” the ābayyā and Rāshayyā. Originally Sunnīs, certain branches of the two clans gradually converted to Maronite Christianity (an eastern version of Catholicism affiliated with the Church of Rome since the middle of the sixteenth century), beginning with the sons of Emir Milim (r. 1729-54). Emīr Bashīr II was born Christian, but he concealed his religion from his Ottoman rulers so effectively that very few were aware of his beliefs, although some Ottoman officials and rivals of the Shihābs questioned his unwillingness to make his religious opinions public.11 Many suspected him of being a Maronite. Other branches of the family adhered to Sunnī Islām or lived so closely to the Druze that they came to be identified with them. Some, in fact, converted to the Druze faith.12

  • 13 Hariq, Politics, 75-127. The evolutionary process of the Maronite Church between the sixteenth and (...)

16Conversion to Maronite Christianity was particularly attractive to politically ambitious groups in Mount Lebanon. By the sixteenth century, even though the Maronite Church had a semblance of hierarchical order, it was in reality more simple and personal than it appeared. For one thing, relations among the clergy were highly personal and not much depended on education or training—even in the religious domain. Since the seventeenth century, the Maronite Church went through a gradual process of organization and “rationalization” and became a driving force in the society of Mount Lebanon. It was only by the end of the eighteenth century, due to a strong influence from the Catholic Church in Rome, that the Church had become the largest, the most organized, and the wealthiest organization in Mount Lebanon.13 The links established by the Maronites with the Church of Rome and the Catholic and Jesuit missionaries, and, in the nineteenth century, with the Protestants, made them more accessible to the “protection” of the superpowers, especially the French. This led to the formation in 1920 of the Grand Liban as a sovereign entity separate from the Syrian hinterland; in addition, throughout the nineteenth century, the Maronites had access to new technologies for their manufactures and to education for their children in the newly established missionary schools. Being Maronite was a privilege in Lebanese history—up to a point.

Maronite law

  • 14 Ibrahim Aouad, Le droit privé des Maronites au temps des Émirs Chihab (1607-1841) (Paris: Librairie (...)

17Not much has been added to our understanding of “Maronite law” since the publication in 1933 of Ibrahim Aouad’s Le droit privé des Maronites.14 Aouad, profiting from what was probably a secure period for the Maronites under the French Mandate, had access to an eighteenth-century manuscript by an Aleppine monk and jurist by the name of ‘Abdullah Qara’lī who had completed in 1720 a Mukhtaar al-sharī‘a wa-l-fatāwī, a copy of which Aouad was able to consult at the Maronite Patriarchate in Bkirki, and which he refers to as “l’Abrégé du Droit.” Since the Mukhtaar was never published, and not subject to any careful study besides Aouad’s, our knowledge of “Maronite law” is not much better than that in Le droit privé.Indeed, the tumultuous history of modern Lebanon and its recent civil war (1975-1990) have led to a closed archival system whereby a “national archive” center is missing, while each religious “community” secretly and jealously keeps its own treasures, so we are literally limited to what Aouad is offering us as “Maronite law” without the privilege of accessing any of the primary sources.

  • 15 In contemporary Syria, Christians and Jews must follow Islamic law in most personal status matters, (...)
  • 16 For a brief survey of the 1820 events and their historiography, see, Samir Khalaf, Persistence and (...)
  • 17 Only one Druze family, the Arslāns, held the title of amīr. The Shihābs, which were originally Sunn (...)
  • 18 See, Richard van Leeuwen, Notables and Clergy in Mount Lebanon: The Khāzin Sheikhs and the MChurch (...)

18Aouad refers to “Maronite law” as a “private law (droit privé)” system, but the “private” qualification could prove misleading. In what way was such a legal code “private”? Since Aouad did not openly address the issue, I can only think of two possibilities: 1) the Maronite system was private because it was primarily concerned with personal status matters, that is, marriage, divorce, property, and inheritance. In other words, it provided the Maronites with specific aspects of personal status legislation which anafism would have made unacceptable due to religious differences and because both systems were rooted in divine ordinances;15 and 2) the Maronite system was thus “private” vis-à-vis the more “public” anafī practice and Ottoman qānūn; thus, while the former was limited solely to personal status matters, the others, besides their concern with personal status, included state (public) legislation as well. On both grounds, however, the “privacy” logic fails. For one thing, what was unusual about the Maronites was a Church that controlled “society”—taxation, property, and the law. Indeed, the relative differentiation of functions between the religious, legal, and bureaucratic that the majority of the inhabitants of cities like Aleppo and Damascus took for granted, were all enmeshed into one for the Maronites. Thus, even though the religious, legal, and bureaucratic (taxation, conscription, etc.) functions were not totally differentiated for the bulk of the Muslim populations of the cities and their rural areas (and for non-Muslims as well)—at least not in a modern western sense—they were nevertheless distinct from one another as institutional functions, and to the subjects of the empire as well, including for a majority of non-Muslims, where such institutions implied different authorities and bargaining procedures, which they often subtly used against one another in their daily routines. With the Maronites, however, religion, taxation, property ownership and its transfer, and, above all, the law, were all controlled by the Church. And since monks and bishops were for the most part recruited from the poorer families, the clergy’s control over the peasantry was also strong to the point that the ‘Āmmiyyah uprisings in the 1820s are often analyzed in terms of a clergy that manipulated its peasantry in order to weaken the power of the local notables.16 Only the power and prestige of the big families, and more specifically their muqāa‘jīs, acted as an institutional intermediary between the Maronite Church and its subjects, the peasantry in particular. The Church’s quasi-monopoly throughout the Ottoman period was mostly challenged by the two Maronite houses that exclusively held the highest title of amīr,the Shihābs and Abillama‘s,17 at a time when powerful families, such as the Khāzins, traditionally associated with the Church, slowly declined.18 In fact, when alliances and hierarchies were reestablished after the crucial battle of ‘Ayn Dāra in 1711, the nobility became gradually dominated by the Shihābs who, under Bashīr II, were the sole rulers in Mount Lebanon. The rule of Bashīr II was in particular the most revealing for our purposes here since it was during his reign that an attempt was made to create a single legal system for Mount Lebanon as a whole, a step that paralleled the emir’s desire to centralize politics and simply rule as an “Emir” rather than as a religious chieftain.

  • 19 Aouad, Le droit privé, 308 for the original document, and 309 for the translation.

19A document that Aouad reproduces and translates in his book is quite revealing. On July 19, 1744, a declaration, drafted in Arabic, and adopted and signed by the Maronite Patriarch Sīmān ‘Aouad and nine archbishops, stated that from then on each bishop would be the sole judge in his own diocese, and no other bishop could substitute in a colleague’s place unless an authorization to do so has been granted from another diocese. Having first limited the jurisdiction of a bishop to his own diocese, the declaration then confines all source of legislation to Qara’lī’s Mukhtaaronly.19 Finally, the document specifies that any legal consultation, referred to as kitāb al-qāī ila-l-qāī in Islamic law, ought to be completed in writing. Supposing that such measures were effectively implemented, as Aouad suggests they were, they reveal all by themselves the main differences with sharī‘a adjudication. Maronite law did not operate within a distinction between a religious and legal space; the bishop was himself judge; and a single non-published and secretly kept manual was the sole source of legislation for over a century. That would not have been possible had the Maronite Patriarch not enjoyed an almost complete autonomy over his territory, an autonomy which ironically was only to be threatened by the growing power of the Shihābs, which in turn, with the upper nobility, came under increased pressure and intrigues from al-Jazzār’s governorship in Sidon (1776-1804)—that period, however, was an exception to Turkish involvement that proved to be more personal than institutional.

  • 20 Aouad, Le droit privé, 60; Sulaymān Taqiyy al-Dīn, al-Qaā’ fī Lubnān(Beirut: Dār al-Jadīd, 1996), (...)
  • 21 Aouad, Le droit privé, 61.
  • 22 Aouad, Le droit privé, 74.

20Protected by their autonomy, the Maronites were thus able to create a legal system of their own, hence bypassing the more traditional route of the sharī‘a courts. Yet, in the absence of Maronite “court” records open to researchers, the bishops’ adjudication in their own dioceses could only be the subject of speculation. Moreover, the existence of such a system did not prevent Maronites (and other Christians and Jews) from using the sharī‘a courts, in particular for land-transfers. To be sure, Maronite law was a conglomeration of codes that were prominent in the region at one point or another, from Canon Law, and the Roman-Byzantine codes, to the sharī‘a, and, in the entourage of Bashīr II, some of his scholars, such as Shaykh Nāīf al-Yāzijī, were known to adjudicate in the four madhāhibs. Moreover, unlike the sharī‘a, Maronite law was not a massive deontological effort to ground everyday life into morality and religion. It rather represented the effort of a “community,” which at different times in its history felt threatened by more powerful neighbors, to create a quasi-legal code for the most pressing matters, in particular personal status, successions, land-ownership, and other related issues such as lease contracts and the rightful “occupation” of “dead” lands; in addition to commercial and penal matters. By far the most important differences between Maronite and sharī‘a law consisted, first, in the unlimited ability of testators to draft wills according to their own wishes and desires, even if that implied prohibiting their own sons and daughters from their succession, while Muslims could not transmit more than one-third of their properties to non-legal inheritors; then, second, when no will was left, the daughters, and women in general, were totally left out of their father’s inheritance and only the brothers enjoyed that privilege. Needless to say, those two factors combined created, at least until the first decade of the nineteenth century, a different dynamic of land-ownership between the Maronites, on the one hand, and the Druze, Shī‘īs, and Sunnīs, on the other. No wonder then when very early in the nineteenth century, Bashīr II attempted to enforce a common code based on the sharī‘a, the Maronites felt directly threatened both in the domains of land-ownership and family relations. In 1803, the Patriarch Yūsuf Tiyyān consulted the pope on the new legal system imposed on the Maronites, and the pope’s reply seems to have indeed been compromising thus proposing to the Maronites to follow “local sharī‘a law (al-sharī‘a al-waaniyya)” on the proviso that Christian morality be respected (in particular the sacredness of marriage).20 Aouad claims, however, that despite Bashīr II’s prescriptions and the pope’s compromising response to the clergy, the Maronites were able to maintain their local custom of leaving girls without inheritance (“le non-héritage des filles”) at least until the demise of the Shihābs in 1841.21 But it was only in 1884, under the reforms implemented by the mutaarrifof a unified Mount Lebanon, that the clergy lost control of its domination over the legal.22 It is uncertain, however, how much control, in this tumultuous nineteenth century, despite various political measures to curb Maronite law, was the clergy effectively able to maintain over its own customs, in particular those related to the non-inheritance of women in general.

  • 23 Aouad, Le droit privé, 217. There is no clear indication, however, as to whether those “ventes fict (...)

21Be that as it may, and in relation to all of the six Shihābs’ cases in this study (C 3-1, 5-1, 5-2, 6-1, 7-1 & 7-2), beginning with the inheritance of Bashīr II himself (C 5-1), what is of interest to us here is the degree of latitude that the Maronites enjoyed in their property-transfers. Forbidden by their laws and customs to transfer property to their married daughters unless specified by will (nuns, however, did inherit from their fathers), Maronite males were nevertheless open to the possibility of transferring properties to women thanks to the legal devices (iyal) of the Sunnī courts. Even though all six cases go back to the 1840s to the early 1860s, right after the political demise of the Shihābs, a period in which intense legal reforms had just been inaugurated, it does seem, however, that the Maronites sought the anafī courts on a regular basis, in particular whenever a female inheritor or beneficiary was the only alternative (for example, when no male inheritors or beneficiaries were available, or simply to protect the property from political confiscation). In order to circumvent limitations imposed by both legal systems—Maronite law left married women without inheritance, while anafism left them with half the males’ shares—Maronites wishing to transfer all their properties to women (or keep them as administrators to family waqfs) had to find a workaround within the flexibility of anafī practice itself. That implied, among other things, the use of fictitious litigations (Table 2-2 supra), which, as noted throughout this study, were the norm in the nineteenth century and were no more than simulated contractual settlements. Waqfs in particular were an opportunity for Maronites to consolidate family land ownership, while milk lands were often the object of fictitious sales (“ventes fictives”).23 Since anafism did not require that a waqf’s testator includes his own wife and daughters among the beneficiaries, Maronites used the sharī‘a courts to first maintain the non-ownership of their women, thus following an “opportunity” provided by the anafīs, but then a fictitious litigation would typically turn in favor of a woman-defendant that would end up “winning” her case by maintaining her administrative role over the waqf’s properties of her husband (C 6-1). In short, the sharī‘a courts provided the Maronites at times with the opportunity to bypass the limitations of both legal systems, their own and anafī practice, thus keeping their properties within the family, with as little fragmentation as possible, while passing them from one generation to the next on this basis of minimal property dismemberment. Hence, in the absence of a more general state-controlled code, individuals and their families were able to shift between various systems whose normative values could even prove incompatible. The various customary practices thus proved to be simulacrums of the regional codes that the social actors often bypassed. Many court practices simulated those of the anafīs by presenting themselves as conforming to their ideals and spirit, which they did in principle—at least formally, in the sense that the law was not misused. In fact, there was nothing “illegal” or “against” the law in fictitious (simulated) litigations. As we shall see in detail once cases are analyzed and their logic followed, property transfers followed grosso modo two different paths: 1) in the case of privately owned lands, milk, lots of properties were transferred within a family, and in particular on a generational basis, thanks to fictive (simulated) sales between alleged plaintiffs and defendants (as exemplified in the case of the estate of Bashīr II, C 5-1). anafī practice, by consenting that oral contracts of sale were fully legal, thus rendering written contracts altogether optional, made fictitious sales even simpler: in the absence of a written document, only two witnesses were needed to confirm, years later, to a court, that a sale effectively took place. 2) The transfer of waqfs followed a logic of its own, different from milk, even though the general purpose was the same—the preservation and consolidation of familial property, to which I will refer as “the three-founders” device (as exemplified in the waqf of Bashīr III, C 6-1). To establish that a waqf was irrevocable, the founder must first identify the property, which in principle should be milk, then appoint an administrator. He would then bring an action against his trustee on the basis that “he changed his mind,” thus requesting the return of the waqf’s administration to himself, and citing in the meantime Abū anīfa’s opinion on the revocability of a waqf. The judge, citing in turn Abū Yūsuf’s and Shaybānī’s opinions on the irrevocability of waqfs, would rule in favor of the defendant-trustee (administrator). Besides establishing a trust in perpetuity, thanks to a judge’s ruling, this legal device acknowledged that the properties were indeed waqf, that is, originally the property of the founder. In fact, nothing was more uncertain than the original status of all those Mount Lebanon properties. Again, here, the allodial nature of those properties was “proved” by bringing two witnesses to court rather than establishing it by means of a written certified document. As a result, many of the Mount Lebanon properties, whose status was uncertain (mawāt, mīrī, church waqf, “occupied” by peasants, etc.), might have changed hands at some point in the nineteenth century, if not earlier.

  • 24 van Leeuwen, Notables, 110.
  • 25 Aouad, Le droit privé, 215.
  • 26 Aouad, Le droit privé, 65, 285.

22To be sure, anafī practice provided the propertied Maronites with more leverage over the small property landholders that were limited to their community’s laws and customs. Thus, barely two decades after the implementation of anafism by the Shihābī bureaucracy, the Patriarch Yūsuf ubaysh wrote in 1826 to the Sacra Congregatio De Propaganda Fide (usually named “Propaganda”) in Rome, an institution that “was founded in 1622 to exert jurisdiction over all the missionary regions, including those in the Ottoman Empire,”24 expressing his fears regarding the insecurities brought to the Maronite family as a result of submitting his community to anafī practice.25 That could be an indication that 1) the adoption of anafī practice in 1803 as a common legal system for all the communities of Mount Lebanon was probably the most decisive bureaucratic measure imposed by Bashīr II; and 2) the implementation of anafism must have had a mixed effect on the Maronites, as witnessed by all the complaints addressed by the successive Patriarchs to Rome. Considering that Maronite penal law was a limited domain that at best implied corporeal punishment, and that no jurist ever admitted interest-loans, even though usury was practiced among Maronites,26 and that the waqf institution was quite widespread (at some point, the church owned one-fifth of the properties as waqf), the major drawback for the Maronites in the implementation of anafī practice was hence limited to successions and inheritance only: 1) the free-will system was definitely a lost advantage, and 2) the non-inheritance of married women kept property consolidated within the family. There was also a geographical disadvantage: rather than settle a lawsuit in a local diocese, the Maronites were forced to use since 1803 the anafī courts in Tripoli, Sidon, and Beirut, and at times Damascus.

Representations of non-Muslims

  • 27 Ibn ‘Ābidīn, Radd, 6:696-99.

23In the chapter on the “wills of minorities” (waāyā al-dhimmī), Ibn ‘Ābidīn divides those wills into the legal and illegal.27 Wills are legal through consensus (ittifāq), when, for example, a non-Muslim identifies in his will a place that is sacred to both Muslims and dhimmīs (awa bimā huwa qurba ‘indanā wa ‘indahum), or if he wills to be buried in Jerusalem. Thus, consensus in this context implies that the sacred place denoted in the will be shared by both Muslims and dhimmīs, and this all by itself legalizes the will.

24When a dhimmī transforms his home, prior to his death, into a church with the hope of registering it as a waqf, it is nevertheless considered as a property to be inherited (mīrāth) rather than as a waqf because, first, it has not been erected as a waqf, and second, a church could not be equated with a mosque because Christians pray and bury their dead in a single space, which is sinful in Islam. But even if the mosque had had a function similar to that of a church, as a combination of house of prayer and cemetery, it would have been destined to be inherited in parts (yūrathu qia‘an) because it cannot be transferred in a pure form to God. In other words, only pure spaces could be transformed into waqfs, a rule that even renders churches inadequate for that purpose and limits them to inheritance only.

25Dhimmīs, like all Muslims, can dispose in their wills with only one-third of their properties to non-legal beneficiaries as they please, while the remaining two-thirds should follow the Islamic rules of inheritance. Thus, if a dhimmī erects a church in his neighborhood, and then dedicates it in his will specifically to someone, only one-third of this church could be legally inherited by that specified person or institution.

26Wills from a dhimmī to a Muslim and vice versa, which are based on prior consensus (ittifāq), are legal because dhimmīs share an equal status in pecuniary transactions (mu‘āmalāt). Thus, if a dhimmī wills in favor of a Muslim, the anafīs give three options:

  1. If the bequeathed is a pious act (qurba) for both Muslims and dhimmīs, such as helping the poor (Muslims and/or dhimmīs), or helping in the construction of the Aqa mosque in Jerusalem, or the construction and maintenance of a school or hospital, all such acts are accepted as pious for both Muslims and dhimmīs, and hence their inclusion in wills is legal.

  2. If the bequeathed is a pious act for Muslims but non-pious for dhimmīs, such as the building of a mosque, then the will of a dhimmī that includes a mosque among its properties is illegal because the willed act is not pious in the eyes of God.

  3. Finally, if the bequeathed is a pious act for dhimmīs but not for Muslims, such as the construction of church or holy place, their wills are legal because they are pious according to the dhimmīs. There is no consensus, however, among jurists over Abū anīfa’s opinion on that matter, and some considered such wills to be illegal because they are sinful in the eyes of the sharī‘a.

27Thus far the logic is quite obvious: dhimmī wills are legal as long as the bequeathed is pious for Muslims and/or dhimmīs, and basically, the same rules apply to waqf endowments as for wills and inheritance. Thus, for a dhimmī waqf to be legal, it should be considered as pious (qurba) for both Muslims and dhimmīs, such as waqfs devoted to the poor or the Aqa mosque. However, since mosques are not for dhimmīs pious objects, they are, from the standpoint of the anafīs, illegal as waqfs whenever erected by dhimmīs. In general, therefore, whether a property is milk or waqf, dhimmīs basically shared the same rules as their fellow Muslims, and for both religious groups a fundamental condition is that the bequeathed property should be pious for that specific religious group—and not simply from the vantage point of view of anafī practice—for it to be legal.

28In conjunction with all six Maronite cases in this study whether milk (C 5‑1 & 5-2) or waqf (C 6-1), the properties were mostly either lands involving plantations or crops, or else included homes and shops, so that they did not pose problems regarding their pious character. At one point, however, Bashīr III’s waqf (C 6-1) stipulated that the beneficiaries, if no male descendants were available, be among the Maronite poor in Mount Lebanon. But such a clause did not pose any particular problem for the anafīs, nor did the fact that dhimmīs were settling their waqf and milk disputes in the context of a anafī court in Beirut. In fact, dhimmīs probably opted for the anafī courts either to be granted property privileges that were not permitted in their own codes, or else to place their properties into more secure legislation within the officially recognized courts of the empire. The Maronite cases in this study, therefore, do not all by themselves point to any special legislation regarding dhimmīs. They rather underscore that dhimmīs came to the anafī courts precisely to be treated like their compatriot Muslims.

Family disputes

  • 28 ,On the legal status of “minorities” in Islamic societies, see Antoine Fattal, Le statut légal des (...)

29The alleged dispute over the estate of Bashīr II—which occurred in 1857, sixteen years after the House of the Shihābs had lost all political power—may reflect the tumultuous history of the family. Coming at a time when the political power of the House of the Shihāb had been severely shattered, it represents another instance of Maronites using the anafī courts of Beirut for the purpose of transferring property. Indeed, unlike other urban “minority” groups in the Bilād al-Shām (whether Muslims or non-Muslims), the Maronites had their own laws and courts controlled by their clergy. However, their reliance on the anafī courts did not secure them an independent status. Rather, anafī dogma was applied to them as if they were Muslims, as this case and others demonstrate (at least concerning property and inheritance matters), and that was precisely what those seeking anafī courts wanted—an opportunity to bypass the limitations of their own communal laws.28

  • 29 See Table 2-2 supra.

30Unfortunately, little research has been conducted on the status of property in Mount Lebanon during Ottoman times, and it is therefore difficult, within the limits of individually analyzed texts, to estimate how representative each case is even though my choice of documents followed some of the most common court procedures for that period, many were indeed nothing but common “techniques of fictitious litigations.”29 The list of properties belonging to the estate of Bashīr II, together with their surrounding properties and proprietors (see Table 5-1), provides a rough approximation of the type and distribution of properties in Mount Lebanon.

The wives of Bashir II

31In his history of Mount Lebanon in the eighteenth and nineteenth centuries, Mikhāyil Mishāqa presents a vivid description of Emir Bashīr II’s marriage to a Shihābī widow from ābayyā.

  • 30 Mishāqa, Murder, 23.

When Emir Yūsuf summoned his maternal uncle, Emir Bashīr, from ābayyā, and treacherously killed him, he authorized the young Emir Bashīr [II] . . . to sequester the possessions of the murdered Emir Bashīr. He went to ābayyā and, while accomplishing his mission, saw the murdered man’s widow, who had borne him two daughters, Khaddūj and Nasīm. She was Lady Shams al-Murīd, sister of Emir Qa‘dān, who resided in the village of ‘Abayh in the Upper Gharb of the Lebanon. At that time the members of [the Shihāb] family married amongst themselves and were unconcerned with a difference in religion, so the [ābayyā Shihābs] married daughters of, and gave their own daughters in marriage to, the emirs of the Matn, even though at that time they were Druze and were only gradually converted to Christianity . . . When Emir Bashīr Shihābī saw this widow’s beauty, he determined to ask for her as a wife. He married her, and she later bore him three sons, Emir Qāsim, Emir Khalīl, and Emir Amīn.30

  • 31 Chevallier, La société du mont Liban, 69: “L’exogamie n’en a pas moins existé comme autre terme d’u (...)
  • 32 It was indeed enough, for that matter, that the oldest son respects on his own the rule of endogamy (...)

32Lady Shams al-Murīd, Bashīr II’s first wife, was the sister of Emir Qa‘dān Shihāb (d. 1813) and hence a cousin of Bashīr II. She also was a direct descendant of Emir Milim, who had ruled Mount Lebanon between 1729 and 1754, and a cousin of Emir Yūsuf (r. 1770-88). In terms of genealogical affiliations, she was well-situated within the Shihābs, and, more importantly, as a direct descendant of Emir Milim, she would have been especially “attractive” to the young Bashīr II, himself a descendent of Emir aydar (r. 1706-29). As the citation from Mishāqa indicates, the various factions of the Shihābs intermarried among themselves, observing the “rule” of endogamous marriage, that is, marriage with a father’s brother’s daughter (bint al-‘amm). Exogamy existed as an alternative, but generally was restricted to families within the same confessional group; practically, it resulted in alliances with alien families and in the subordination of weaker to stronger families. Exogamy was a form of “exchange” because a weak family could give its women to a stronger one in exchange for recognition and prestige. Dominique Chevallier has noted that, in nineteenth-century Mount Lebanon, exogamous marriages greatly outnumbered endogamous marriages stricto sensu, that is, marriages between parallel cousins.31 The endogamic “rule” seems not to have been respected among lower-ranking families. Following or not following the “rule” was a strategy, because the choice of exogamy entailed making alliances with families that were “outside” the clan and possessed a different rank and status.32

  • 33 The Circassians were an ethnic group from the Caucasus.
  • 34 The fact that Bashīr II’s three sons and his daughter, Sa‘da, are the only legitimate heirs identif (...)
  • 35 Even though the case of Sa‘da and ulā Shihāb precedes that of the estate of Bashīr II by several m (...)

33In his first marriage, Bashīr II had chosen a woman from inside his family. In the document under analysis [C 5-1], Bashīr II’s wife is identified as “Lady usn Jīhān bt. ‘Abdallāh the Circassian,”33 suggesting that his second wife was an “outsider.”34 Otherwise, the document presents no further evidence on usn Jīhān (she is never mentioned in the Mishāqa story). The one thing we know for certain is that Bashīr II and his Circassian wife had two daughters, Sa‘da, who was the plaintiff in our first case below (C 5-1) and then, again, plaintiff and then defendant in the following case (C 5-2);35 and Su‘ūd, who unlike her sister did not restrict herself to the Shihābs and married an Abillama‘. Bashīr II’s three sons from his first wife were dead at the moment of the hearing, but are mentioned frequently in the document because the estate allegedly had once belonged to them.

34The identification of usn Jīhān as “the daughter of ‘Abdallāh” signifies that she did not come from one of the noble families of Mount Lebanon or the Ottoman Empire. As a Circassian, she did not belong to the Shihābs and was an “outsider.” This is significant because usn Jīhān eventually won the first case (C 5-1) and was declared the owner of the entire estate—an unusual outcome—even though she had “lost” in a previous case (C 5-2) against her daughter—in a society that placed a high value on endogamous marriages precisely, to prevent the transmission of familial property to women who were “outsiders.” However, what is “unusual” here is neither the transfer of property as such, which as a legal device was quite common, nor the fictitious nature of the litigation, but indeed the role and personality of usn Jīhān herself.

  • 36 The Arabic texts, including court documents, refer to usn Jīhān as a Circassian.
  • 37 Henri Guys, Beyrout et le Liban, 2 vols. (Beirut: Éditions Dār Lahad Khater, 1985 (1850)), 2:101-2, (...)
  • 38 Besides her active role in the two cases (C 5-1 & 5-2) analyzed in this chapter, a notice was sent (...)
  • 39 Shākir al-Khūrī, Majma‘ al-Masarrāt (Beirut: Dār Lad Khāir, 1985), 239.
  • 40 Beirut sharī‘a courts, unnumbered register, 14 afar 1283 (June 28, 1866), case number 328.

35The French consul in Beirut Henri Guys had noted that the Shihābs, “which only married among themselves, were often forced to seek for Georgian or Circassian slaves, and that has not a little contributed to the nice blood which we recognize in this family. But for some time now, they allied themselves to the Abillama‘s.” And he then added in a note that “the great prince [Bashīr II] had married from within the family, and then, in a second marriage, to a Georgian36 whom he had purchased in the slave market in Constantinople. People look very favorably at her spirituality and good heart, in particular her piety.”37 Another contemporary observer, but close to the Shihābs, had also confirmed usn Jīhān’s Circassian origins, and that the Emir had specifically requested from jewelers to have them purchase for him three slaves, one of which he gave as gift to Emir Manūr, another one to his son Emir Qāsim, and he married the third, usn Jīhān, and had a priest teach her Arabic. Bashīr then transferred to her the property of his well-exposed palace in Bayt al-Dīn, still the greatest symbol of Lebanese individualism in Ottoman times, which she eventually sold and had the revenues divided among her two daughters. In all that restless activity of buying and selling, and property transfer,38 usn Jīhān “has thus spent enormous amounts of money, thinking that she might become famous, and with the hope that she will eventually replace her husband and rule over Lebanon.”39 (A court case in 1866 names Jīhān’s sister, ‘Ushqī Jamāl, as widow to the defunct Shihābī Emir Mas‘ūd b. Khalīl.)40 Henri Guys was right for the most part regarding marriage patterns among the Shihābs: their first priority was within the group, among cousins; other leading Maronite families such as the Abillama‘ was their de facto second choice; and when that proved too constraining, the Shihābs opted for Circassian or Georgian slaves rather than, say, Muslim or non-Muslim women from Mount Lebanon or the Fertile Crescent. That pattern clearly points to a great suspicion held toward all marriages from outside the clan, undoubtedly created by the difficulties of political alliances, the importance of hierarchies, and the role women played in bringing families together, isolating them, or separating them for that matter. Bashīr’s decision to take as second wife, after a first conservative marriage, a Circassian slave, then promoting her to high society, is an indication of how “safe” he became in his later period, thus bypassing local alliances altogether. It could well be usn Jīhān’s status as an outsider to the clan, besides her own ambitions, which provided her with that noticeable power in the sharī‘a courts.

Women, property, and murder

  • 41 W. Robertson Smith, Kinship and Marriage in Early Arabia (London, 1907), 65-66; cited in Jack Goody (...)

36According to Robertson Smith, inheritance and blood-revenge are two sides of the same coin in the Arab world, the latter being clearly dependent upon clan membership.41 The link between inheritance and blood-revenge is present in the story of the marriage of Bashīr II to Lady Shams al-Murīd, when the young emir was authorized to “sequester” the “possessions” of a genealogically-related Shihābī emir who had been murdered. The latter was the maternal uncle of Emir Yūsuf (r. 1770-88) who, in turn, was the paternal uncle of Emir Qa‘dān and his sister Shams al-Murīd. Although Mishāqa did not explicitly link murder and inheritance in nineteenth-century Mount Lebanon in the sense understood by Robertson Smith, such a link is implied in his connecting the murder with the sequestering of “possessions,” which included, of course, the murdered emir’s wife. The elimination of an influential opponent from the same clan—even a maternal uncle or close cousin—might facilitate the redistribution of property and wealth within the clan. In their role as widows, women were crucial to this process, for two reasons: they were viewed as exchangeable properties who brought together rival factions of the same clan; more importantly, since Muslim women are entitled to inherit, a widow will cause property to fragment unless she immediately is “taken over” by another man—even if the latter had been involved indirectly in the murder of her husband or brother.

  • 42 Of course, transferring property to a woman “outside” the clan was nothing illegal, but it was unus (...)
  • 43 The absence of written documents is not illegal in anafī practice, but since presenting s in cour (...)

37In our case, the interesting point is that the redistribution of property meant giving the totality of the estate to a woman outside the Shihābī clan. But such a move required the approval of the qāī.42 That the qāī might rule on such a matter without there being any written documents (ujjas)43 corroborating usn Jīhān’s purchase of the estate from her husband points in appearanceto the broad measure of judicial discretion that the qāī enjoyed and to the climate of “openness” within which he operated. If, however, as I argue in this study, many of those alleged litigations were nothing but fictitious and used legal devices to confirm the transfer of properties so as to render them irrevocable, then the role of judges, their rulings, and the distribution of gender roles in court procedures should be looked upon with a degree of suspicion. In fact, the massive ownership of rural lands by the state, and the difficulties encountered in absolute ownership and in establishing the allodial status of some properties, has led to a number of court devices, which in essence are fictitious litigations whose main purpose was the reception of an irrevocable ruling from a judge. It also permitted the “disputants” to circumvent problems of illegality that their transactions might have encountered, or to get around rigid rules of inheritance and the like.

The litigants and their representatives

  • 44 Mishāqa, Murder, Mayhem, Pillage, and Plunder, 46-47.

38The document dealing with the “estate” of Bashīr II, dated 4 afar 1274 (24 September 1857), begins by identifying the Beirut qāī (a anafī), his “signature” and seal (khatm), and then the litigants and their representatives. The plaintiff, “Sa‘da bt. Emir Bashīr b. Emir Qāsim b. Emir ‘Umar al-Shihābī,” was represented by “al-Khawāja Falallāh b. Yūsuf al-‘Āzār.” The defendant, the wife of Bashīr II, “Lady usn Jīhān bt. ‘Abdallāh the Circassian,” was represented by Ibrāhīm Bāz, whose family had been associated with the ruling Shihābs throughout the nineteenth century as guardians of their children.44

  • 45 Clifford Geertz, “Suq: the Bazaar Economy in Sefrou,” in Clifford Geertz et al., Meaning and Order (...)
  • 46 Lawrence Rosen, The Anthropology of Justice: Law as Culture in Islamic Society (New York: Cambridge (...)

39The representatives, who played a key role in the case, as they usually do, were asked only to prove their relationships vis-à-vis their respective mandators in relation to the “debt” (see below) between the plaintiff and the representative of the defense. In a society where professional lawyers did not exist, individuals either came to court on their own or represented by others. But the act of representation, besides being fully contractual, concerned more than professional expertise since it involved a great deal of “trust” and personal knowledge of the “client.” Moreover, even though representatives often had no formal family links to their clients, their relationship nevertheless manifested a form of a common group belonging as ahl. Representatives were mostly male, and women rarely came to court on their own without a representative; men also had representatives, whenever they could afford one; minors were always represented by an adult, usually kin related. Thus, the introduction of the litigants and their representatives involved more than a mere “identification.” As both Clifford Geertz and Lawrence Rosen have observed, social identity is constructed in terms of familial, religious, tribal, and geographic affiliations, as reflected in a person’s nisba.45 Whereas the Ottoman sharī‘a courts generally referred to individual Christian and Jewish males—“minorities”—as khawājas, a litigant belonging to an important family such as the Shihābs had her name associated with descendants going back at least three generations. In the case of usn Jīhān, who apparently had no place in the Lebanese nobility system, it was important to identify her, through her nisba, as a Circassian. Knowing the nisbas of the litigants and their representatives was the qāī’s single most important preliminary task. Rosen has argued that the qāī expressed interest in the social origins of those appearing in front of him because he sought to return the litigants to a position in which they could re-negotiate their ties, alliances, and networks.46 The process of nisba-identification and classification that we encounter at the beginning of each sharī‘a court document belongs to the larger domain of knowing the “social origins” of the litigants.

The “debt”

40After identifying the litigants, the document turns to the matter of a “debt” (called dayn or qard˝ in the language of the sharī‘a courts). The plaintiff had given the representative of the defendant a specific sum of money of fifty piasters (an insignificant sum, compared to the value of the estate which was estimated at 236,000 piasters by the defendant), presumably before the hearing, although the exact date is not specified; the qāī instructs the representative of the defendant to return to the plaintiff the exact amount of money that he owes him; the representative of the defendant complies with this instruction, so that, in the end, money moves from the representative of the defendant to the plaintiff (and, as we shall see, from the “winners” to the “losers”).

  • 47 Rulings in cases of Shāfi‘ī or anbalī judges had to be reconfirmed by a anafī colleague (Chapter (...)

41This seemingly insignificant exchange is not peculiar to this case, but rather occurs frequently in sharī‘a court litigations dealing with inheritance, property-transfer, waqf, tenancy contracts, and the like (C 3-3, 5-1 & 6-1). Considering this larger body of evidence, I note the following patterns or rules of the “game”: (1) After the debt is mentioned but before the qāī instructs the representative of the defendant to return the debt to the plaintiff, the plaintiff asks the “alleged” representative of the defendant to prove that he had been summoned by the defendant to represent her. In response to this request, the representative generally summons two witnesses who acknowledge (swearing “by the exalted God”) his proxy status with respect to the defendant. Since the representative of the defendant usually acknowledges the debt, the only technical problem left to the qāī was to verify that the representative of the plaintiff had been appointed by the plaintiff; (2) Once the testimony of the witnesses is approved by the qāī, the defendant’s representative agrees to pay the “debt” to the plaintiff; and (3) The document then shifts immediately to the main issue, that of the estate, which is the true subject of the litigation (although the positioning of the debt at the beginning of the document gives the misleading impression that “this is what it’s all about”). The point here is that all three steps had to be completed for the very specific purpose of confirming the identity of the representative of the defendant and his right to represent his client (step 1). To understand why such a procedure was crucial, it would be helpful to look at fictitious litigations as simulated contracts. The sole purpose in this case was indeed to confirm the defendant usn Jīhān’s right of absolute ownership over the “disputed” properties. That could have been completed in a more straightforward contract of sale in which the daughter acknowledges her mother’s purchase of those properties, or else as a donation (hiba). But due to limitations imposed by anafī practice itself, and the ambiguous status of rural properties in general, not to mention the possibility of illegal land transfers from state to private ownership, there was a preference for fictitious litigations in order to confirm a contractual arrangement. The parties involved, which could be either kin related or not, in the final analysis were seeking for an irrevocable ruling from an accredited anafī judge.47 That kind of ruling made it difficult, if not plainly impossible, for others, including future-generation kin members, to alter or question any aspect of the contractual arrangement and turn it to their own advantage, something that would have been more feasible in a regular contract. It was therefore essential that each step of the procedure be well “sealed” so as to render the case in toto hard to revoke, and the identity of the representative, whose client will be the “winner,” was indeed one of those “sealed” steps.

42It is noteworthy that neither representative appears to have come to court bearing written documents corroborating his status as a legal agent, or accompanied by witnesses who might attest to this status. It was only when the “debt” issue surfaced that witnesses were summoned. That the corroboration of the representatives’ status was made by witnesses (rather than documents) points to the importance of the act of witnessing, which continues to play a key role throughout the document (no written ujjas were presented at any stage of the hearing). The process of witnessing facilitates the bargaining process and mirrors the social networks in which the litigants were situated. Both witnesses were from the village of Barjā, where the properties were located, and were described as “mature and reasonable men” (al-rajulayn al-‘āqilayn wa’l-bālighayn).

  • 48 Ibn ‘Ābidīn, Radd, 5:152: “al-thaman mā yuthbat fī-l-dhimma dayn-an ‘inda al-muqābala.
  • 49 Ibn ‘Ābidīn, Radd, 5:135: “al-qīmmī mamlūk-an li-l-mushtarī.
  • 50 Ibn ‘Ābidīn, Radd, 5:152.
  • 51 Ibn ‘Ābidīn, Radd, 5:152.

43In anafism a financial claim (dayn) is looked upon as the “responsibility” (dhimma) of an individual who was given something on the basis that he will give its equivalent in return. In principle, therefore, any act of sale could be perceived as a debt on the part of the buyer: once a person buys something she is indebted to the seller. However, since the anafīs recognize only equal and simultaneous exchange, meaning that the exchanged commodities should be of equal value with a reasonable profit for the seller, the distinction between fungibles and non-fungibles is essential. In fact, only fungibles have a price (thaman) since they can be divided into their respective parts (currencies, weights, and measures), hence their exact assessment is possible thus eliminating the possibility of illegal gain or usury (ribā). Moreover, since “price is a confirmed debt at the responsibility [of the buyer] upon collation,”48 it is limited therefore to fungibles only, while non-fungibles are considered as immediately “owned by the buyer.”49 A commodity classified as non-fungible is therefore a sold object without price (al-qīmmī mabī‘ lā thaman).50 The point here is that commodities which could be assessed in terms of their parts have a price and could be purchased; their value is a debt which incurs as the responsibility of the buyer. A contract of sale, one that involves fungible goods with a price, is therefore a process in which the buyer “possesses the debt (tamlīk al-dayn).”51 In short, a sale is perceived as a debt which the buyer owns, while non-fungibles are not subject to this process of time-delay which the debt essentially assumes. A parallel thus exists between the sale/debt and the donation/gift since in both cases we are assuming a time-delay until a counter-gift is received, a process which the buyer (or receiver) is held responsible for as dhimma.

  • 52 See Chapter 3 supra.

44Even though the likes of Sanhūrī made the point that “obligation” per se does not apply to a contract of sale because exchange is supposed to be quasi-simultaneous, and hence only debt is an obligation,52 a careful reading of the anafī texts might suggest otherwise. Of course, the problem here is that restrained use of “obligation,” a modern term which implies a “subjective right” (droit subjectif, aqq shakhī), and which, used anachronistically might lead to confusion, in particular that the anafīs were under the general notion of a aqq ‘aynī, or “the right over the tangible object.” Suffice it to say that a debt implies an obligation in the strong sense of the term precisely because of the delayed payment, hence its ubiquitous use as a procedural fiction.

  • 53 Jean-Claude Montanier and Geoffrey Samuel, Le contrat en droit anglais (Grenoble: Presses Universit (...)

45In a way strangely similar to sixteenth-century English common law, debt has a double meaning. It refers at the same time to the amount due per se and the action that could ensue if the buyer-debtor was unable to refund his debt to the seller-creditor. In English common law, the debt is a “specific performance” in that it establishes the original “promise” of the contractual arrangement.53 But the common law goes further and perceives a non-paid debt as a “breach of contract” that triggers an “action for damages,” in which the payment of damages-interests is requested. Even though anafīs do not generally operate within any notion of damages and interests, the concept of debt, however, in its double meaning of value and action does exist. Since an act of sale is generally looked upon as a debt for the buyer, a non-payment or a delayed payment could trigger a legal action. For our purposes here, and in conjunction with the document under analysis, debt ends up devolving into several interrelated meanings: 1) It was primarily designed as a legal device to confirm a representative’s identity and his right to represent as approved by his client; 2) it falls within the anafī notion of māl-dayn, in the sense that any legally purchased commodity is a debt for the buyer; 3) as non-payment it necessarily triggers a court action; and finally, 4) debt operates as a procedural fiction, which besides acting as a tool to consolidate a representative’s identity, also entails an obligation towards the other party.

  • 54 See Marcel Mauss, The Gift (New York and London: Norton, 1967); and, Maurice Godelier, L’énigme du (...)

46The meaning of fictitious debt, and its specific use in court documents, should therefore be conceptualized along the lines of legal anthropology. By breaking up sharī‘a documents into bits of facts without focusing on the underlying cultural logic of a “document,” traditional social history ignores such questions. A textual analysis seeks to reconstruct the logic of a document before extracting information and data from it, as follows: A purely empirical approach to sharī‘a documents usually takes these documents at face-value and ignores the “symbolic” dimension of the “debt.” But as I shall argue, it would be shortsighted to view the “debt” merely as a debt, that is, as a process of lending money and getting it back at the beginning of an inheritance case. One way of exploring such a problem is by assuming that the “debt” has a symbolic exchange value and hence takes the form of a “gift” (don) and “countergift.”54 To consider the document “textually-as a whole” means, in this particular case, to link the “debt” issue with that of the estate litigation and the ensuing settlement, and to consider the two issues as being related, rather than independent, as the document suggests. It is possible that the secret of the “debt” and that of the estate might clarify each other when taken relationally and dialectically. This brings us to the crucial issue of the “internal” logic of the “document.” To what degree should this logic be trusted, and at what point should we go beyond its internal logic to apply the critical tools of social science and social history? In this case, we need to ask the question, “Why does the document-as-text hide what the ‘debt’ is all about?”

Figure ‎5-1. The debt (C 5-1).

Figure ‎5-1. The debt (C 5-1).

Commentary:The “debt” is probably the most common procedural fiction, and hence comes with its own syntax, as it serves as a plug-in device in many type-contracts (C 3-3, 5-1 & 6-1). In effect, its purpose is general and would fit whenever there is a need to confirm the identity of the representative as plaintiff or defendant. Since those cases usually end up with transfers of property, the identity of the representative and his right to represent could become the pièce-de-résistance in the situation where the transfer is challenged in a future litigation. Beyond that, a debt entails an “obligation,” while a regular act of sale does not, so that all those cases, despite their differences, are structured around an obligation to perform, meaning to transfer the (disputed) properties.

47The “movement of debt” starts with the plaintiff’s giving money to the representative of the defendant; after being summoned by the qāī, the representative of the defendant pays off his “debt” to the plaintiff. As noted, this procedure occurs frequently in inheritance and waqf cases. It is significant that in all such cases, the “movement of debt” invariably goes from the “loser” to the “winner” and back to the former (Figure 5-1). The “winner” gives the “loser” a small sum of money, so small that it looks insignificant compared to the total value of the estate. In order to explain this, I need to go beyond what the early stages of the document reveal to us. In this regard it is helpful to assume that the inheritance case actually was a “friendly” litigation, that is to say, the two parties in “conflict” had settled their problems outside the courtroom and approached the qāī to make their new consensus public and official. If this assumption is accepted, the “debt” issue takes on a new light. The final movement of money from the winner-defendant to the loser-plaintiff may be a “symbolic” process in which the “winner” gives the “loser” what he owes him. But what is it that he owes him? Certainly, not fifty piasters. Rather, the “defendant” (in this case the mother of the “plaintiff”) gives back to the plaintiff what she “owes” her by means of a symbolic gesture. In other words, the mother (“defendant”) expresses gratitude to her daughter (“plaintiff”) for coming to court and settling an outstanding property issue. Since it is the plaintiff who gives her property to the defendant (the mother), it is safe to assume, at this stage, that the reimbursement of the “debt” is a kind of giving-back. The logic here is that the party in whose favor the property has been settled (the defendant) compensates the other party by paying the “debt.” (It is interesting that the payment is made by the defendant’s legal representative rather than by the defendant herself.) Thus, the plaintiff is symbolically rewarded for giving away property and for agreeing to settle the “conflict” in court.

48By relating the debt issue to the estate and its inheritance as a whole, the friendly-fictitious character of the conflict becomes even more apparent. Whereas the document suggests that we are dealing with two non-related issues, the debt and the conflict over the estate, the two issues are, in fact, inextricably related. The “debt” points to the transfer of the estate as an already-settled issue that requires only the official approval of the qāī, while the transfer of the estate gives the “debt” a symbolic significance that would have no meaning if it were considered separately and out of context.

  • 55 Alan Smart, “Gifts, Bribes, and Guanxi: A Reconsideration of Bourdieu’s Social Capital,” Cultural A (...)

49Writing about gifts and bribes, Alan Smart observes, “The forms themselves are of great social importance, and retain their influence even when the content of a gift performance is little different from an attempt to bribe or to engage in an exchange of commodities where institutional constraints limit the market.”55 In other words, in societies that impose institutional constraints on the exchange of commodities, gifts and bribes are the form through which such exchanges take place. (Stated differently, gifts and bribes lower the transaction costs by bypassing institutional constraints, for example, state-imposed taxes and surtaxes.) The important point to remember here is that the form itself is of great importance because the social actors usually behave as if they were not exchanging (or reciprocating). In the case of Bashīr II, the “debt” form hides the transfer of property that occurred on a friendly basis. In my view, accepting the language of the court document at face value would be misleading. For one thing, “debt” does not explain the true nature of the process, that is, a concealed friendly litigation in which the “debt” is a “symbolic gift.” Because the society of nineteenth-century Mount Lebanon imposed constraints on property transfers and inheritance, not to mention the ambiguous status of state properties in general, the sharī‘a courts provided the forms for an exchange of property that transcended the accepted rules—as in the case of a woman from outside the group inheriting the entire estate.

The inheritance

50After the debt has been settled, the document enumerates and describes the twenty-five properties that constituted the physical aspect of the estate (see Table 5-1 infra). Let us keep in mind that the four men, Bashīr II and his three sons, Khalīl, Qāsim, and Amīn, were all dead at the time of the hearing, and that the two women, Sa‘da and her mother, were fighting over the right to “own” the properties belonging to the estate.

  • 56 Ibn ‘Ābidīn, Radd, 5:545.

51According to the plaintiff, the twenty-five properties belonged to the three Emirs (I assume that the three men were “given” the properties from their father, although the document does not explicitly say this). Then, on 21 Rabī‘ II 1265 (March 16, 1849), Emir Amīn sold his half-sister Sa‘da (the plaintiff) his entire one-third portion of the Karak mill (see infraTable 5-1, #1) for a “known price” (bi-thaman qadruhu ma‘lūm) that eventually became (istaqarra) a “debt” (dayn) for which her brother did not request any reimbursement; the one-third of the Karak mill thus became her property. According to this account, one year prior to his death in 1850, Amīn “gave” his sister his full share of the Karak mill. This is why no price was reported for the transfer (anafī practice does not require specifying a value-assessment in a lawsuit “because an individual might not be aware of the value of his māl,” and because “when the ‘aynis present [āira], its value need not be mentioned except in theft litigations”56), and why the verb bā‘a(“he purchased”) was used to denote a transfer/“gift” in the strong sense of the term (to give the act of “giving” from Amīn to his sister more weight in the court), whereas a true act of buying and selling, like the thousands that populate court records (C 3-2), would have involved an exchange for a specific sum (or its equivalent). Unlike his two brothers and sister, Amīn apparently had no children; thus it is plausible that he decided to “give” his own share to his sister Sa‘da rather than to his brothers’ sons and daughters. (I am trying to make the arguments of the plaintiff sound coherent by presupposing that there is an element of truth in them.)

Figure ‎5-2. Heirs of Bashīr II (C 5-1).

Figure ‎5-2. Heirs of Bashīr II (C 5-1).

Commentary: Since the Shihābs intermarried almost exclusively among cousins (and that was apparently the case of Bashīr II’s ex-wife, Shams al-Murīd), usn Jīhān, who was an ex-Circassian slave, and her two daughters, Sa‘da and Su‘ūd, were the only “outside” elements in this genealogical chart. Yet, their role in both this case (C 5-1) and the following one (C 5-2) will turn out to be crucial as the bulk of Bashīr II’s estate will fall in their hands. Considering that the Maronites took great care not to let unmarried women or widows inherit, one can only speculate as to why usn Jīhān was so fortunate: it could either have been a moment of reshuffling properties within the family, or else women were a “safer” situation for a political family like the Shihābs, especially during their demise period.

  • 57 The plaintiff, Sa‘da, Qāsim’s half-sister, did not inherit anything at this stage because the two w (...)
  • 58 It is not clear why only two of Qāsim’s seven children should inherit.

52Bashīr II’s sons, Qāsim and Khalīl, both pre-deceased their father. When the oldest son, Qāsim, died in 1846, his one-third portion of the mill was inherited by his wife, three sons, four daughters, and father, Bashīr II (who received one-sixth of one-third).57 When the middle son, Khalīl, died in 1850, his one-third portion of the mill was inherited by his three sons and his father (Bashīr now received a second one-sixth of one-third, giving him a total of one-ninth of the mill, or, in the language of the document, “three minus one-third qīrās”). When Bashīr II died, at a time when he was already pre-deceased by his three sons, he left his part of the estate which was one-sixth of the two-thirds, to his wife, usn Jīhān, their daughter, Sa‘da, and her two daughters; and to two of Qāsim’s sons, Milim and Rashīd,58 and finally, to Khalīl’s three sons.

53These details are of interest to us only from the point of view of the plaintiff, Sa‘da, the daughter of Bashīr II. By the time of the hearing in September 1857, the four males had died and she had inherited from them an amount equivalent to “nine minus one-third of one-third qīrās.” (The logic of the calculation is not specified in the document.) One possibility is that Sa‘da already had eight qīrās from Amīn, and after the death of her father and brothers, the remaining two-thirds were divided among all the male and female heirs, with males receiving twice share of females. In all these calculations, the court applies the anafī rules of inheritance even though dealing with a Maronite estate.

  • 59 In the two quotes that follow, the two parties are only nominally directly addressing each other. I (...)

54Although Sa‘da (the plaintiff) had inherited these properties, the properties themselves were in the possession of her mother (the defendant), and it was for this reason, ostensibly, that Sa‘da took her case to the qāī. Our document contains the following “summary” of the argument put forward by Sa‘da’s representative.59

  • 60 The ghab is a legal concept in Islamic law, and implies “taking by force” (or more accurately, “pu (...)
  • 61 This citation and the ones that follow are from the court document described in note 1.

usn Jīhān, the mother of my client, is the one who now “controls” [i‘at al-yad] all these properties through usurpation [bi-arīq al-ghab],60 without any justification in the Sacred Law [bi-dūn wajh shar‘ī]. I therefore request [that the court] removes these properties from her possession [raf‘ yadiha ‘an hādhihi al-amlāk] except for those she owns legally from her husband, Emir Bashīr, equivalent to one-third of a qīrā out of the twenty-four [qīrās]. What remains after that belongs to my mandator, and the other heirs shall be treated accordingly, and each one of them may dispose of his share as private property [yataarrafu kullun bi-naībihi ‘an arīq al-milk].61

55To this, the representative of usn Jīhān (the defendant) replied:

None of the properties whose boundaries are defined above were ever the properties of the three Emirs, the sons of Bashīr II. Rather, they were completely the property [milk] of my client, who had purchased them legally for the known sum of 236,000 piasters from her husband Emir Bashīr. ... Prior to the year 1265 [1848], which is the year that Sa‘da had claimed was the one in which the transfer of properties occurred, the three Emirs had acknowledged voluntarily [aqarra wa i‘tarafa] that these properties belonged to their father, Emir Bashīr.

56Sa‘da’s representative categorically denied these allegations and demanded that they be substantiated, prompting usn Jīhān’s representative to summon two witnesses who had been close to Emir Bashīr II, both of whom attested (again, swearing “by the exalted God”) that the Emir had sold all the properties to his wife for the known sum of 236,000 piasters prior to the year 1265/1848, as acknowledged by the Emir’s three sons. (At this stage, the document reiterates the names of the twenty-five properties but substitutes “the property of usn Jīhān” for the earlier designation, “the property of the three Emirs.”)

57In his decision, the qāī accepted the statements of the two witnesses as “true,” thus making the defendant, usn Jīhān, the owner of the twenty-five listed properties.

  • 62 The concept of shubhat milk related originally to the notion of “illicit sex” (zinā). The latter is (...)
  • 63 As is common in the Ottoman court system, qāīs typically do not refer to the judicial texts (the “ (...)

The testimony of the two witnesses has been legally accepted [al-qubūl al-shar‘ī], and it has thus become evident to the qāī that the three Emirs, Qāsim, Khalīl, and Amīn had acknowledged that these properties belonged to their father and that they did not own any of them, nor did they have any semblance of property [shubhat milk].62 This makes unacceptable the complaint of Lady Sa‘da because [the possession of the property by her father] was prior to the date in which she claimed buying [the one-third] from her brother Amīn. The qāī has therefore decreed legal the fact that usn Jīhān bought the above mentioned properties from her husband, Emir Bashīr II, for the known sum [of 236,000 piasters], and that the plaintiff and her representative should be forbidden [man‘] from any act of buying or inheriting [of the properties mentioned].63

Analysis and syntax

58Let us now examine the logic of the judicial arguments relating to the inheritance dispute and the manner in which they were drafted for this particular document. The main steps and “turns” of this argument are as follow:

  1. The case was initiated by the representative of the plaintiff, Sa‘da. Through her representative, Sa‘da claimed that the twenty-five properties in question originally belonged to the three Emirs, the sons of Bashīr II, as confirmed by the initial listing of the properties.

  2. The representative added that shortly before the death of her brother, Amīn, in 1265/1849, Sa‘da “purchased” from Amīn his one-third share of the properties. No price was specified because the transaction was considered a “gift” from the brother to his sister. Sa‘da subsequently inherited a small share belonging to her father which he had inherited from two of his sons who predeceased him. For this reason, Sa‘da’s share was slightly greater than one-third.

    • 64 It is well-known that under classical anafite law, the plaintiff does not, normally, take the oath (...)

    Sa‘da’s representative sought to recover “possession” of his client’s share from her mother, who controlled the totality of the estate and its revenues. (Note that when the plaintiff’s representative made her case, no testimonial evidence was requested by the qāī; the plaintiff’s inability to provide witnesses would have created a presumption in favor of the defense and would have been noted in the proceedings).64

  3. Through her representative, Sa‘da’s mother, usn Jīhān (the defendant) denied the claim. In her view, the entire estate, within the limits and boundaries accepted by the court, belonged to her as a result of her having purchased these properties from her husband, Bashīr II, prior to 1265/1849, for the sum of 236,000 piasters, with the full knowledge of their three sons.

  4. The plaintiff’s representative demanded that his colleague substantiate his arguments; the latter brought two witnesses to court.

  5. The witnesses’ statements fully corroborated the defendant’s claim, and a new list of properties was added to the proceedings in which “the property of the three Emirs” replaced the “property of usn Jīhān”.

  6. The qāī considered the witnesses’ acknowledgement (sworn “by the Exalted God”) to be sufficient grounds to award the defendant her full rights over her properties, and he declared the case to be settled.

  • 65 As Schacht noted, “the ‘witnesses’ were concerned not so much with giving evidence as with affirmin (...)

59In the set of arguments and steps given to “substantiate” the defendant’s claim to the properties, the testimony of the two witnesses in favor of the defense was sufficient and decisive, obviating any need to swear an oath. The plaintiff did not provide any witnesses (it is not certain whether she was summoned to do so) and she was not required to swear to the truth of her statements, as represented by her agent (she was not present in the courtroom).65

  • 66 Schacht noted in Origins, 188, that even though the Qur’ān (ii:282) explicitly endorses the practic (...)

60One more issue needs to be clarified: the fact that no document relating to the twenty-five properties purchased by the defendant for the sum of 236,000 piasters was produced in court. In the Ottoman Syrian provinces, qāīs routinely accepted written contracts, known as ujjas, as a form of evidence.66 The absence of any such ujja for a large estate belonging to the most important political family in Mount Lebanon, even though the anafīs did not require that such contracts be solely confirmed in writing, raises several questions: Could Bashīr II and, later, his wife have acquired such a large estate without there being any written record of the transaction? If so, was this a common practice in Mount Lebanon or was this particular case, which involved a prestigious political family, perhaps exceptional? If written documents did exist, why were they not presented in court, where they would have provided the qāī with “hard” (systematic) evidence?

61We are faced with three—related?—issues in need of an explanation: the “debt”; the plaintiff who was unable to support her arguments (and provide witnesses); and finally, the absence of any written documents. As noted above, in order to understand the logic of the “document” as a whole, it is helpful to consider the various arguments relationally and to examine the possibility that there was no “real” conflict, but rather that this may have been a “constructed (friendly) litigation.” Having come to court without any witnesses or documents, the plaintiff was ipso facto confronted with defeat from the outset. Under “normal” conditions, one would expect this kind of “plaintiff” to be the “defendant.” Why should someone file a property suit against her own mother without any evidence to support her allegations?

62My response to this question is that the debt-procedure points to the friendly-fictitious character of the “conflict”: The “debt” was nothing but a “sign of recognition” for a “service” that the daughter (plaintiff) had performed for her mother (defendant); the mother then, in a final gesture, gives-back the “debt.” The “friendly” character of the “conflict” explains, in part, why the defense came to the hearing armed with better evidentiary resources. In other cases examined later (C 6-1) that appear to have been friendly-fictitious litigations, the party that eventually “wins” is always placed in the position of the defense, perhaps in order to make the arguments of the defense appear more plausible. Finally, I assume that any documents relating to the twenty-five properties were withheld to facilitate the redistribution of the properties. Reliance on witnesses and “oral” testimony may have weakened whatever constraints would have been created by the presentation of “written” documents, thereby allowing usn Jīhān and Sa‘da to achieve their collective goal, that is, to effect a redistribution of Bashīr II’s estate six years after his death and to identify the estate with the name of usn Jīhān.

63The importance of this case stems from the fact that it contains two distinct procedures common to many fictitious litigations: first, the debt, and then the wa‘ yad(“occupation”) and its corollary the raf‘ yad (removal of the unlawful usurpation and occupation). The two steps need not be in reality related or even tied together in a single case. In fact, the two procedures could be each described as an autonomous “plug-in” in the sense that they could be plugged into cases involving procedural fictions, but of a different nature. In our first case here, the necessity of the debt-procedure is dictated by the second part, which is the heart of the case and in which claims of unlawful occupation by the defendant are put forward. In fact, the sole purpose of the debt-procedure was to confirm a representative’s identity and would have been useless without the substance of the case, namely the second procedural step on unlawful occupation. Thus, had the defendant usn Jīhān bypassed representation altogether and appealed her case on her own, the debt-procedure would have been superfluous. This is why the debt-procedure is plugged into a great variety of cases such as unlawful occupation-cum-property-transfers (C 5-1), waqfs (C 6-1), and tenancy contracts (C 3-3). In short, the debt-procedure cannot possibly exist on its own—that would be absurd—and needs to be connected to another procedure to become meaningful. This is why its full meaning is only revealed once the case is fully analyzed and the order of reading is reversed (the debt-procedure becomes meaningful only towards the end). To be sure, the debt-procedure receives its meaning from the anthropology of anafī practice, and primarily its notion of māl-dayn.

  • 67 See Chapter 4 supra.
  • 68 Ibn ‘Ābidīn, Radd, 5:547: “If a person claims that this property is mine as milk and it is illegall (...)

64By contrast, unlawful occupation and its corollary, the transfer of property that follows, based on the judge’s final ruling, are part of a single autonomous procedure and form the heart of a case. As already discussed in the previous chapter on rent and taxes,67 anafī practice accepts that the “occupation” of a land “for a period of time,” while working on it and cultivating it, is a definite indication of “possession” if not full ownership (milk), in spite of the rights that previous landowners might have claimed over the same property. To be sure, such a flexibility was dictated by the ambiguous status of the majority of rural lands: either state-owned (mīrī), or waqfs, or mawāt, with only a tiny minority of absolute ownership (milk). The notion of wa‘ yad(“occupation”) hence became essential in establishing both rights of “possession (taarruf)” and “ownership (milk).” Such rights, however, could be established and confirmed in a judge’s ruling while focusing solely on the present status of the disputed property, and bypassing its past ownership(s) altogether: hence the primacy of oral testimonies over written documents, even if already approved and sealed by judges. To confirm an ownership right, therefore, the litigation could be either real or fictitious, depending on how the disputants are related to one another. In a fictitious litigation, such as the one we have examined, the person who will receive the full ownership rights will typically assume the role of defendant. A plaintiff will then accuse her of unlawful usurpation (ghab) and occupation and request a removal of this illegal state. The plaintiff, however, will be short of evidence (even the exact date of the ghabis unnecessary),68 and it will be the defendant’s burden to furnish evidence. To be sure, such a flexibility enabled not only friendly property transfers rather flawlessly, but even more important, it permitted a change of status for the disputed properties. Thus, in the case of the estate of Bashīr II, besides the fact that the defendant usn Jīhān received her ownership rights, the status of all the properties were de facto confirmed as milk, even though no legal evidence of pastownership was ever established (anafī practice does not request such evidence). To conclude, the law focuses on the present, on the actual occupation of the land and the labor invested in it rather than on the genealogy of its past ownership.

The outside

  • 69 With the notable exception of ‘Abdullah Ibrāhīm Sa‘īd, Ashkāl al-milkiyya wa anwā‘ al-arāī fī Muta(...)

65The estate ended up in the hands of usn Jīhān, who was situated outside the Shihābī lineage. Considering the size of the estate, the transfer was executed in court with remarkable ease and simplicity. (Since no studies of a similar nature have been done on the status of property in Ottoman Mount Lebanon,69 it is impossible at this stage to say how common it was for in-marrying women to acquire ownership of their husbands’ estates.) The plaintiff and the defense presented the court with two lines of argument, one that would have kept the estate within the Shihābī patriline, in which case it would have been divided, according to the sharī‘a rules, among a large number of male and female heirs; and another that would have given a single woman from outside the Shihābs a monopoly over the estate. That the second alternative was adopted is surprising in a society in which endogamy was privileged as a means of protecting wealth from “outsiders.” From the perspective of court procedures, however, the case is not unusual and does not point to any novel or a hard decision-making.

  • 70 For politically troubled families, transferring properties to women could indicate a legal device t (...)
  • 71 My assumption, throughout this case study, is that the sale of the estate from Bashīr II to his wif (...)

66In the absence of a full documentation, I can only speculate as to why this happened. First, neither of the litigants was a male Shihābī.70 Second, both shared a common interest in keeping the estate from Bashīr II’s agnatic grandchildren. Third, the case turned on the demonstration that the properties did not belong to the three Shihābī Emirs, a point that was made by bringing to court two male witnesses described as “reliable” and “reasonable.” It is possible that the daughter played the role of a plaintiff precisely in order to provide the court with an alternative line of argument, one that would oppose to the claims of the defendant. Such a technique was used frequently in the courts in order to eliminate possible counter-arguments and the like. Finally, it should be noted that although the litigation between the daughter and her mother may have been “friendly,” one cannot say the same about the relationship between the two litigants, on the one hand, and the rest of the descendants of Bashīr II, on the other. The latter emerged from the litigation empty-handed.71

Table 5-1: Estate of Bashīr II (C 5-1)

#

Property

North

South

East

West

1

Mill (maṭḥana) of Karak in Birjā (the Biqā‘ Valley, part of the Province of Damascus), property of usn Jīhān, wife of Bashīr II.72

Property of Emir Sa‘īd, son of Emir Bashīr Murād.

Water Canal.

Water Canal.

2

Press (ma‘ara) of ‘Ayn al-ajar, same location as #1, contains four threshing-floors (bayādir) and six wells; property of usn Jīhān.

Property of Anūn Abū Yaqān.

Property of usn Jīhān.

Property of the three brothers, ‘Abdallāh, Bishāra and Anūn, sons of annā Ghurra.

Property of ājj Ayyūb.

3

Bustān (“garden”) 73 of ‘Alī Nāir in the village of al-Mu‘allaqa near Zaleh, now “worked by” (bi-mu‘āmalat)74 Murād ūmā.

Public Road.

Public Road.

Property of Emirs, ‘Abdallāh, Murād, Dāwūd, and Ibrāhīm, sons of Emir Shadīd Murād.

Public Road.

4

Bustān of ‘Alī Nāir (same location as #3), “worked by” Ayyūb jej.

Public Road.

Property of Emir Sa‘īd, son of Emir Bashīr Murād, and of the two Emirs Yūsuf and Mamūd, sons of the Emir ‘Alī Murād.

Property of Emirs Salmān and Mūsa, sons of the Emir Nar Murād.

Property of the Emirs, sons of the Emir Shadīd Murād.

5

Bustān of al-Sayyid ‘Alī now “worked by” fiannūs, Ibrāhīm, and Yūsuf, sons of Nar Abī Sharaf.

Property of usn Jīhān.

Property of the Emirs Amad, aydar and Sa‘d ad-Dīn, sons of the Emir Manūr Murād.

Water Canal.

Public Road.

6

Bustān now “worked by” Ayyūb jej.

Property of usn Jīhān.

Property of usn Jīhān.

Water Canal.

Public Road.

7

Bustān now “worked by” amza and Amad Zurayq.

Property of usn Jīhān.

Property of usn Jīhān.

Forested land (mashjara), property of Ma, Mikhāyil, Mūsa, Mas‘ūd and Ibrāhīm, sons of Yūsuf al-Khūrī b. Mitrī Maqūd.

Public Road.

8

Bustān now “worked by” Jirjis, annā and ‘Id, sons of Sa‘d Jāmūs.

Property of usn Jīhān.

Property of usn Jīhān.

Mashjara, same as #7.

9

Bustān now “worked by” ‘Abdul Aad b. Mikhāyil ‘Id and Mūsa b. Shadīd Abū Dāghir al-Khajūl.

Property of Murād b. aydar.

Property of usn Jīhān.

Property of the sons of Yūsuf al-Khūrī (#7).

Public Road.

10

Bustān now “worked by” ‘Alī b. usayn al-ūt.

Public Road.

Property of usn Jīhān.

Waqf landed property, part of the awqāf of the Prophet Nū, under the administration (naẓẓāra) of Salīm b. ‘Alī al-Murtaā.

Public Road.

11

Bustān now “worked by” Yūsuf b. Ilyās ‘Id.

Property of usn Jīhān.

Public Road.

Property of usn Jīhān.

Public Road.

12

Bustān now “worked by” Murād b. aydar al-Zayn.

Property of usn Jīhān.

Property of usn Jīhān.

Property of usn Jīhān.

Public Road.

13

Bustān now “worked by” Ilyās and Unāniyus, sons of Burus Sha‘nīn.

Property of usn Jīhān.

Property of usn Jīhān.

Property of usn Jīhān.

Property (‘aqār) of the Emirs, sons of Emir Manūr Murād; and the waqf of the Prophet Nū (see #10).

14

Bustān now “worked by” Jirjis, ātim, Ilyās and Fāris, sons of a‘b ātim.

Property of usn Jīhān.

Property of usn Jīhān.

Property of the Emirs, sons of Emir Manūr; and the waqf (#10).

Old Coffer-dam (sikr mā’).

15

Bustān now “worked by” asan usayn Shams.

Property of usn Jīhān.

Property of usn Jīhān.

Property of the Emirs, sons of Emir Manūr; and the waqf (#10).

Property of ‘Abdallāh Ghurra.

16

Bustān now “worked by” Yūsuf and āhir, sons of asan Zurayq.

Property of usn Jīhān.

Property of usn Jīhān.

Property of the Emirs, sons of Emir Manūr; and the waqf (#10).

Old Coffer-dam.

17

Bustān now “worked by” Ilyās and Jirjis, sons of Zu‘ayyit.

Property of usn Jīhān.

Property of usn Jīhān.

Same as above (#16).

Old Coffer-dam.

18

Bustān now “worked by” annā b. Jirjis al-Katūnī.

Property of usn Jīhān.

Property of usn Jīhān.

Same as above.

Old Coffer-dam.

19

Bustān now “worked by” ‘Aql Abū Jitq and his sons, annā and Ilyās.

Property of usn Jīhān.

Property of usn Jīhān.

Marsh (ghay) 75 of Ayyūb jeij b. Sāsīn Khaar, Mūsa al-‘Akkūzī, Qāsim b. ammūd Zayn al-Dīn, Yūsuf b. asan Zurayq, and Mir‘ī b. asan al-alūkh.

Old Coffer-dam.

20

Bustān now “worked by” Fara b. Ilyās Qmay.

Property of the Emirs, sons of Emir Manūr Murād; and the waqf (#10).

Property of usn Jīhān.

Forested lands (mashājīr), each one “in the hand of” (bi-yad) Ayyūb jeij, ammūd b. al-Ju‘feir, ‘Alī Qurayyi, and annā b. Nu‘mah jeij.

Old Coffer-dam.

21

Bustān now “worked by” Fara, Yūsuf, Jirjis and Ibrāhīm, sons of Ilyās Fara.

Public Road.

Property of the Emirs, sons of the Emir Manūr Murād; and the waqf (#10).

Property of Ibrāhīm b. Yūsuf jeij, and facing it the property of Yūsuf b. Ilyās Qmay.

Property of the Emirs sons of Emir Manūr Murād; and the waqf (#10).

22

Bustān known as al-Baal, now “worked by” Ayyūb jeij.

Property of the Emirs, sons of Emir Manūr Murād; and the waqf (#10).

Public Road.

Property of the Emirs, sons of Emir Manūr Murād; and the waqf (#10).

Property of usn Jīhān.

23

Bustān now “worked by” asan Nujayba and asan the son of his brother ammūd.

Waqf for the poor of the convent of the Rūm.

Public Road.

Public Road.

Public Road.

24

Bustān now “worked by” Qāsim and asan b. Wehbeh.

Property of the Emirs, sons of the Emir Shadīd Murād.

Property of Wākīm b. Âāhir jeij.

Public Road.

Property of Sam‘ān al-Zayn.

25

2/3 of the “square” (a) located in the same village of Barjā, that contains shops (dakākīn), some in good condition (‘āmira), others not (muraddama), and whose locations are all well known because located in well known spots; in addition to the “house” (dār) known as the Shūnah and located in the same village
[The remaining one-third is for the Emirs of the house (bayt) of Murād]

Property of Mūsa al-āyegh.

Coffer-dam.

Coffer-dam.

Property of the “House” of the addāds.

Commentary: Sharī‘a court cases dealing with inheritance and waqf commonly include detailed descriptions of the properties subject to litigation. It must be recognized, however, that such descriptions were not drawn up according to modern topographical methods (which were not implemented until the period of the French Mandate). Rather, a property was located in relation to other properties and/or locations surrounding it (north, south, east, and west). The following table, entitled “Estate of Bashīr II,” contains a line-by-line tabulation of that section of the document that describes the twenty-five properties, including their names, locations, and descriptions, in the order in which they are listed in the document.
72: During the first phase of the hearing, when Sa‘da’s case was being presented by her representative, the twenty-five properties listed here were identified as “the property of the three Emirs, Qāsim, Khalīl and Amīn, sons of Bashīr II.” It was only during the second stage of the hearing that the properties were re-designated as “the property of usn Jīhān.” Since the qāī held in favor of usn Jīhān, the wife of Bashīr II, I have kept the properties as they were listed during the second stage of the hearing.
73: All the landed properties (basātīn) listed below (#3 to 25) were part of and annexed to the mill and press.
74: Since all these landed properties belonged to usn Jīhān, the term “worked by” (bi-mu‘āmalat), should not be considered as a right of “full possession,” i.e., “property” (milk), but only as the right of using the land for a limited amount of time. It is not clear what type of contract was involved between the owner, usn Jīhān, and her “tenants.”
75: The term “marsh” is roughly the equivalent of the Arabic ghaya; I assume that ghay, otherwise meaningless, signifies “marsh.”

67In addition to giving a clear picture of the physical aspect of the inheritance and waqf, the table serves as a tool for understanding aspects of property in Mount Lebanon under Ottoman rule. Before using this table for “statistical” purposes, however, the following problems should be kept in mind: First, many of the properties listed under the four cardinal points (north, south, east and west) are mentioned more than once because any one property may be contiguous to several other properties. Second, it would be difficult to locate these properties on a map, because many of them are not contiguous to each other and are located in different regions. The following remarks should be treated as a tentative picture of the types of property common in Ottoman Mount Lebanon.

68The estate of Bashīr II consisted of a mill and an olive press (#1, #2) in addition to twenty-three landed properties (basātīn) annexed to the latter. The landed properties, at first owned exclusively by Bashīr II, and later purchased by his wife usn Jīhān for a “known sum,” were all rented to métayers, sharecroppers, and tenant-farmers. The exact nature of the contract between the landlord and the various categories of peasant is not clear since we have only the vague phrase bi-mu‘āmalat fulān, roughly “worked by so-and-so.” The list of the “possessors” of properties #3-25 is strikingly different from the list of proprietors mentioned the last four columns of the Table. With only one exception (#4 and #6 were “possessed” by one person, Ayyūb jej), properties #3-25 had different names and families attached to them, probably a sign that we are dealing here with “small” peasants-tenants without much capital. On the other hand, all the properties listed in the last four columns are almost exclusively divided between the House of the Shihābs and that of the Murāds. Thus thirty-one of those properties belong to usn Jīhān, twelve are listed as the “property of the Emirs, Amad, aydar and Sa‘d ad-Dīn, sons of Emir Manūr Murād,” and eleven belong to the waqf of the Prophet Nū. Among the remaining properties, some names overlap with the “tenant-farmers” in the second column (“Property”) in which the basātīn are listed. Overall, the individual and family names mentioned in column 2 (“Property”), on the one hand, and columns 3-6 (“North,“ South,“ “East,” and “West”), on the other, are strikingly different, suggesting a distinct pattern of landholding in this part of the Biqā‘ valley. The ownership of the land as milk belonged to the big muqāa‘jī families like the Shihābs and Murāds who not only were granted large muqāa‘as and were the tax-farmers of the state, but also owned large “private properties” as milk. On the other hand, small and medium “tenant-farmers” used to “rent” the land from these large family proprietors.

69Such details may constitute important elements of a genuine social history of Ottoman Lebanon that would complement the “textual” analysis relied upon here to analyze this document. After several decades of political supremacy and stability, the political fortunes of the Shihābs declined dramatically in the 1850s and 1860s. Seen in this light, this document may bear witness to an attempt by members of a younger generation to gain control over large estates that had belonged to elders of a previous generation.

Two litigations into one single case

70While examining the case of the inheritance of Bashīr II, I argued that many such court documents, which, to be sure, were not limited to land-transfers, but also involved waqfs (C 6-1) and tenancy contracts (C 3-3), and also, as we shall see later, torts and crimes (Chapter 11), cannot be properly understood unless we analyze the dynamics of their litigation and determine first whether it was genuine or fictitious. I then posed that the Bashīr II case was indeed fictitious on the basis that, 1) the alleged litigation begins with a debt-procedure whose sole purpose was to confirm the identity of the defendant’s representative; and 2) when the plaintiff accuses her mother of unlawful usurpation over a set of disputed properties, she “loses” her case on the ground that she was short of evidence. The set of properties were therefore to be transferred to the mother-defendant after two witnesses corroborated her claims. Indeed, it does seem a bit strange for a plaintiff to take action in court, while short of substantial evidence, only to lose her case—and all her alleged set of twenty-five properties! Despite the strange nature of such cases, which populate the Ottoman sijills by the hundreds, and whose reading is not as straightforward as it might first seem, academics prefer to opt for the “safest” route and read documents literally, an approach that would have dazzled judges trained in the tradition of the now defunct Majalla and familiar with Ottoman law. Judges and lawyers, however, instinctually know the procedures behind fictitious litigations, and are thus able to spot them directly, but the downside is that they rely so much on hindsight that the meaning of it all escapes them. Indeed, explaining how such procedures work and why they prove to be essential to the system is what really matters. At times, though, deciding upon the nature of a litigation gets confusing, especially when no clear indicators favor one direction over another. Our second case may not be more complicated than the first, but it is definitely more difficult to pin down as to the genuine nature of its double litigation.

71This second case [C 5-2], also from Beirut (12 Ramaān 1273/May 6, 1857), involves two plaintiffs from the Shihābs, Sa‘da, the daughter of Bashīr II and his second Circassian wife, and wife of Emir Salīm b. ‘Abdullah asan al-Shihābī; and ulā, daughter of Emir Fā‘ūr Qa‘dān al-Shihābī, and wife of Emir asan b. ‘Abdullah asan al-Shihābī. The two plaintiffs were sisters-in-law since the defendants were their husbands, the two brothers, Salīm and asan Shihāb. The representative of the plaintiffs was Ibrāhīm b. Ilyās al-Bāz while the defendants were represented by abīb al-Saḥḥāb; they both had the required “evidence”—two witnesses each—certifying their rights for representing their respective clients. Sa‘da’s representative claimed that his client purchased from her husband, on the first of Ramaān 1271 (May 18, 1855), a set of properties for a “specific sum” (thaman ma‘lūm); but her husband, despite the legality of the deal, refused to transfer the set of properties to her. She was therefore requesting from her husband to return (raf‘ yad) the properties to her which she had legally purchased from him.

72The other plaintiff, ulā, shared similar claims—that she had purchased from her husband, on the first of Shawwāl 1271 (June 17, 1855), a set of properties which, as in the previous case, had not been delivered by the husband upon receipt of the payment. The plaintiffs’ representative had therefore two identical cases which he combined into one and introduced them in court as one. Similarly, the defendants presented their dual case as one and were confronted by the plaintiffs on this basis. The defendants’ representative acknowledged the fact that his two clients, the Shihābī brothers, were still in full possession (wa‘ yad) of all the properties claimed by the plaintiffs. The plaintiffs’ representative, upon the court’s request to prove that these properties were in fact purchased and belonged since then to his clients, brought two witnesses who testified that all the named properties in the representative’s statement belonged indeed to the latter’s two clients. The court therefore agreed upon the validity of the purchase (iḥḥat al-bay‘) and requested from the defense that his two clients be advised to “vacate” (raf‘ yad) the properties and deliver them (taslīm) to whom they belong. This constitutes the end of the first part of the document.

73The text then moves to another (related) litigation which only needs to be temporarily separated from the first before bringing the two together. In the second one, the two previous plaintiffs were now defendants while the plaintiff was usn Jīhān, wife of Bashīr II and mother of Sa‘da Shihāb; her representative was Shaykh Iskandar b. Yūsuf ubaysh. This time, usn Jīhān loses her case regarding a single property claim. Thus the defendants, the two sisters-in-law, come as “winners” twice—against their husbands and then against usn Jīhān—even though in the meantime their role had changed from plaintiffs to defendants in two separate litigations presented as one case in court. The purpose of part one was to show first that what usn Jīhān was claiming—one property—had already been established in a ruling as the property of one of the sisters-in-law. usn Jīhān in fact claimed a property which the previous ukmhad already secured as belonging to ulā Shihāb. The judge had established in his ruling that the claimed property, a karm zaytūn (olive orchard) in the vicinity of Beirut in the Shuwayfāt desert (the third in the list of properties of ulā Shihāb, Table 5-5), was purchased by ulā from her husband on June 17, 1855. The real problem—which serves only as a preparatory step to set the record—was therefore located in the second part of the hearing: it is only much later, once we are through with the tedious long property lists of the two sisters-in-law and the judge’s first ruling, that it becomes increasingly evident that what this case was really about was that single property (out of the thirty-two listed) which usn Jīhān claimed for herself. But that order between the two litigations—as enforced by the text itself—could also be indeed reversed, depending on our reading of the case, so as to propose that the first part, involving a massive transfer of properties, was the sole purpose of the case, while the second part only cleared up the status of one of those properties.

74Prior to the qāī’s final ruling concerning the status of that single property, the text goes through all the steps and persons who at some point had either inherited or benefited from this property, beginning with asan Shihāb, then Bashīr II’s brother, and finally usn Jīhān herself. When asan died, his inheritance was distributed among his wife, two sons, and four daughters; among them was Layla who was the first one to die among hers brothers and sisters, and part of her inheritance went, among others, to her sister Khawlā (see Figure 4). Khawlā was the next one to die and her husband Qāsim, son of Bashīr II (hence Khawlā’s paternal cousin), was among those who had inherited from her. Since Qāsim had predeceased his father, Bashīr II received, in turn, a fraction of this inheritance. Finally, the death of Bashīr II pushed his inheritance towards usn Jīhān; hence her claim for a fraction of the orchard located in Shuwayfāt.

Table ‎5-2: History of the disputed property (C 5-2)
What usn Jīhān’s portion of the Shuwayfāt property should have been, according to her representative in court

Beneficiary

Event (in chronological order)

Fraction of the property, in qīrās

Khawlā bt. asan Shihāb

Death of her father, asan Shihāb, and her sister Layla

2 + 1/2 + (1/4)

Qāsim b. Bashīr II

Death of his wife, Khawlā

2/3 + 1/6 (1/8)

Bashīr II

Death of his son Qāsim

1/6 of Qāsim’s:1/3
(1/4) + 1/2 [(1/6)(1/4)] + 1/6 [(1/2)(1/6)(1/4)]

usn Jīhān

Death of her husband, Bashīr II

1/8 of Bashīr II’s:
1/8 [(1/3)(1/4)] + 1/8 [(1/2)(1/6)(1/4)] + 1/8 [(1/6)(1/2)(1/6)(1/4)]

75The defense presented a different story. According to this version, asan had appointed in his will his brother, Bashīr II, as the sole guardian (waī) to his children and as the administrator of his succession (tarika). Bashīr II found out that his brother died leaving behind a large debt, and the first most obvious step was simply to proceed with its liquidation. Bashīr II appointed two representatives (wakīl) for that purpose, which were referred to as wakīlayn mukhāimīn wa-mukhāimayn; mukhāam,in the sense of munāza‘, means quarreled, disputed and contended with; mukhāim,in the sense of munāzi‘, means quarreling and disputing with someone; or a disputant, someone who can pose himself as a khamin the judicial process. The legality of the two representatives, the Murān Ghunyāyus arrūf and Yūsuf Bākhu (Bākhos), was certified by a Maronite qāī, Mārūn al-‘Am.

76An estimate was then accomplished on the succession (tarika) and it was found that it was inundated with losing debts (mustaghraqa bi-duyūn ghurmā’a, from ghurm, meaning khisāra, loss); and it was then decided to sell the tarika in order to fulfill the loss (li-ajl al-ghurmā’). To minimize the loss, Bashīr II sold and then bought all the tarikafor himself; he thus paid for all the debts and gave what remained of the property to his nephew ‘Abdullah who was a minor at the time. The tarika has thus been “withdrawn” (khurūj al-tarika) from its original beneficiaries (the ones the plaintiff, usn Jīhān, allegedly belong to) and transferred to another line of beneficiaries, that of the defendants. After two witnesses were brought by the defense to corroborate its claim to the property, the judge ruled that it does indeed belong to ulā Shihāb.

  • 72 Ibn ‘Ābidīn, Radd, 5:548.
  • 73 See Chapter 11 infra.

77Once the judge has been identified from line one, the text immediately introduces the representatives on both sides. In the margin of the text was vertically added the names of four witnesses: two certifying the genuine nature of the wakāla,the “right of representation” of the two emirs, and the two others were for the emirs’ wives. There was no need here, as in the previous case of Bashīr II (C 5-1, see also C 6-1), to begin with a debt-procedure in order to certify (iqrār) the identity of any of the two representatives: Is this then an indication that the litigation was genuine? Not necessarily. In the previous case, it was the defendant that came with the required evidence and “won” her case on that basis, while here, the plaintiffs who “won” their case also provided the evidence. Since for the anafīs the burden of proof shifts to the defendant once the plaintiff is unable to furnish an acceptable bayyina for her claim, the identity of the defendant’s representative, if there is one, is double-checked as a preemptive step in preparation of the defendant possibly winning the case. In fact, a plaintiff “is not expected to litigate unless he comes forth with the evidence that matches his case, so that once the judge finds it convincing, he will then issue a ruling based on that evidence.”72 The point here is that plaintiffs are normally expected to prepare their cases based on the evidence at their disposal—otherwise, why bother? Despite such expectations, and as I argue in the chapter on torts and crimes, plaintiffs did often litigate without any shred of evidence at their disposal.73 That does indeed seem a bit strange, except that courts became more and more routinized with litigations-cum-procedural fictions, thus considerably reducing the volume of genuine ones (C 7-1 & 7-2). To state things a bit differently, plaintiffs were not expected to wrap up their claims with evidence precisely because of the pre-trial arrangements they had worked out with their alleged defendants: the latter either provide evidence and thus rebuke the plaintiffs’ claims (C 5-1), or deny and take oath, or even simply deny with no oath at all (see Chapter 11 infra). In all cases, the purpose was to have defendants win. The previous case of Bashīr II points to an interesting technique: the plaintiff provided her own version of the story, piled up statements and claims, only to realize that she neither had any written evidence nor any witnesses for that matter. But the defendant did. That might indeed seem absurd except that in fictitious litigations the purpose of a plaintiff’s statements is to provide a narrative whose truthfulness would be denied by the judge’s ruling—rather than to provide evidence. That narrative would then be eliminated—as “false” and improbable—in potential litigations regarding the same set of properties (or part of them). Only what the defendant said, confirmed by means of a ruling, would stand out as absolutely true and valid. In short, the distribution of roles between plaintiffs and defendants in fictitious litigations depends on a number of factors, chief among them is the narrative structure: What is it that ought to be said so as to establish an irrevocable ruling? Thus, plaintiffs and defendants would exchange roles depending on the complexity of the case and what ought to be told and what needs to be hidden, and, again, either party would “win” or “lose” depending on what needs to be said—the narrative.

  • 74 The text remains elusive about anything from a written contract to the prices set for both purchase (...)

78The Sa‘da and ulā case, comprised of two litigations wrapped into one, does pose few problems (see synopsis, Table ‎5-3). Considering the importance of all twenty-three properties (Tables 5-4 & 5-5), is it possible that their ownership status was left uncertain for two years until usn Jīhān claimed one of them?74 If we were to believe the document literally, Sa‘da and ulā Shihāb decided to take action against their respective husbands only when Sa‘da’s mother claimed one of the properties, so that in the interim the status of all those properties remained uncertain. That looks indeed improbable. More realistically, the second litigation prompted the first so that it was usn Jīhān’s request of that single property that pushed for the first action. In that case, the first litigation is quite probably fictitious while the status of the second remains uncertain. Or, as noted before, the sole purpose was the transfer of properties—which seems the most likely solution—but the status of one of them needed clarification, hence usn Jīhān’s action—probably on friendly terms. Before going into more detail, the following chronology is worth remembering: 1) The plaintiffs allegedly purchased their properties from their husbands on May and June 1855, or two years prior to the present hearings. Since they were not in such a hurry to push forward their claims, what prompted them on May 6, 1857 to finally claim all properties? 2) We have to keep in mind that the Sa‘da and ulā case precedes that of Bashīr II by several months, so that ulā won her case against her sister-in-law’s mother first over a single disputed property, and then the mother succeeded a few months later against her own daughter in recuperating the totality of her deceased husband’s estate. (I have changed the chronological order of presentation simply because the Bashīr II case gives a better picture of the emir’s inner family, and it also provides with a classical example of a fictitious litigation—in particular its debt-procedure and the unlawful usurpation claim—while the Sa‘da and ulā case is more uncertain in that regard.)

  • 75 See, for example, ‘Umar b. ‘Abdul ‘Azīz, Shar adab al-qāī li-l imām Abī Bakr Amad b. ‘Umar al-Kh (...)
  • 76 abīb Saḥḥāb, the representative of the two emirs in court, owned several properties in the Shuwayf (...)

79Classical legal manuals of the adab al-qāī type and fiqh manuals abound with notions on the status of the wukalā’, the fact that a disputant could have, if she wishes, more than one representative in court; and that the act of representation could be either total, so that the representative becomes his client in any legal act imaginable, or partial—only specific legal matters are open to the representative; moreover, the act of representation becomes null and void once the muwakkil dies, and, in this case, the representative is not allowed to inherit (unless he is himself one of the beneficiaries).75 The fact that both representatives were not from the Shihābs but from families close to them and known to have collaborated with them in one way or another (as tutors and educators to their children, tax-farmers, etc.), raises some interesting questions about this type of representation from outside the family. For one thing, such a representation could be different from the more familiar ones with a direct family link: usually, for example, women were represented by a male figure in the family (father, uncle, husband, or brother). When representatives were from “outside” the family, were they sought for because of their legal expertise? Did such representatives, in societies where no professional lawyers existed yet, act on behalf of their clients as legal experts of some kind? And if so, did they discuss legal and court procedures with the judges? In the absence of systematic studies on the phenomenon of tawkīl, we can only vaguely speculate as to what representatives did with their clients and in court.76 Since those representatives were not family relatives, and in particular for wealthy Maronite families with large property transfers at stake, it seems improbable that the wukalā’had no legal expertise. If they did, their expertise, as Christians, did not go through the traditional family and school ties with which the Muslim fuqahā’ were trained. Such a legal education was probably private, partly through family ties, and partly from the legal experts in the Maronite Church (and the community itself) which, in order to survive, had to master both canon and anafī laws.

  • 77 Zayn al-Dīn Ibn Nujaym, Rasā’il Ibn Nujaym (Beirut: Dār al-Kutub al-‘Ilmiyya, 1980), 281.

80The text then specifies that this case was at the same time a da‘wa and a khuūma. The notion of legal suit, da‘wa, is the most obvious since it implies “requesting one’s right (aqq) from another person in the presence of a judge” (Majalla, art. 1613). What does then the notion of “conflict” (litigation), khuūma, add to that of lawsuit? Could there possibly be a da‘wa without a khuūma? The notion of khuūma, in conjunction with the da‘wa, was known in classical anafism but it seems to have broadened into a set of procedural fictions in Ottoman times. It was necessary for the judiciary to create a set of rulings, akām, which would not be easily revoked, thus khuūma metamorphosed into a legal device (īla) used by judges to corroborate a specific event, or āditha (e.g., the identity of a representative). In short, it was one of those devices—created probably by the practice of the courts themselves rather than by the jurists—which served as a leeway to link the khuūma with the ukmin order to establish an irreversible ruling. It could have also served to limit the number of appeals in courts. Thus, when the text describes the two defendants’ representatives as a kham jāid li-l-tawkīl, the purpose was to frame an opponent with whom the plaintiffs had, in the language of the jurists, a “valid litigation” and who was also an opponent denying and disavowing what the plaintiff was claiming. Ibn Nujaym complained that “the judges in our time and before got into the habit of ruling without a lawsuit and litigation [khuūma] so that questions were raised on that matter in Cairo, to which I replied in many fatwās that such rulings were invalid.”77 The point here is that unless a ruling is linked to both a lawsuit and a “valid litigation [khuūma ahīa],” there would be nothing to differentiate it from a fatwā. Indeed, a fatwā could be purely hypothetical—a matter of question and answer on something that did not happen—while rulings must be linked to a “unique event [āditha]” that could only be solved through a judge’s arbitration. (Responsa too could be unique, and in that case are referred to as ādithat al-fatwā, or the event that prompted a fatwā.) It was thus in Ottoman times that the idea of a ruling as a binding force that was stronger (aqwa) than anything else, including fatwās and ujjas, finally crystallized around the two notions of “event” and “litigation.” The sharī‘a courts then used and abused of all these notions to the point that a procedural fiction-cum-contractual settlement was preferable to a plain contract.

81The text then introduces the plaintiffs’ representative’s claims concerning the set of properties Sa‘da Shihāb allegedly purchased from her husband. The anafīs accept that acts of buying and selling between members of the family in its restricted sense, as between husband and wife, might be orally performed, that is, with no need for a written document. That explains why witnesses rather than documents were introduced throughout this case (in its two parts) and no sums of money were specified as to the overall value of these properties (the traditional bi-thaman qadruhu ma‘lūm was the only reference to price and value). But even though the anafīs neither require written contractual evidence, nor the specification of a particular sum for the purchase—not even a specific date—all such non-requirements served well for all purposes in procedural fictions.

  • 78 Ibn Nujaym, Rasā’il, 361.

82Next follows a long list of properties. Such lists are commonplace in sharī‘a documents and usually constitute one of their most trustworthy empirical parts which historians would love to make use of, even though neither their factual existence was ever seriously questioned by the courts, nor their ownership for that matter—it’s more a question of trust: as long as the other party does not challenge the listed properties either in toto or in part, the judge proceeds with his ruling. Court procedures allow the plaintiff(s) to list in extenso all the claimed properties even if they have no way of proving that they exist as described (or that they exist at all), or that the claim is valid. It is indeed a fundamental anafī condition for a valid litigation to list all disputed properties based on their borderlines (udūd), their function, and location.78 Besides, even when the judge accepts the plaintiff’s claim for the set of properties, their existence, location, and description is only confirmed by a couple of witnesses (usually two are enough), which means that the judge would never send an expert on his behalf to locate and describe the properties for him.

83Sa‘da Shihāb claimed for her part that she had purchased from her husband, two years before the hearing, on May 18, 1855, a set of fifteen properties located in Shuwayfāt, Beirut, Jounieh, and Ghazīr (Table ‎5-4). The Shihābs who were the rulers of Mount Lebanon until 1840, and who had established their own power from its muqāa‘asystem by being at the top—as emirs—of all muqāa‘jīs families, accumulated their wealth from state mīrīlands which were granted to them as iltizām. But when it came to investing in property as private property, the Shihābs opted for lands close to the coastal cities which were milk. Thus the Shuwayfāt desert, South of Beirut, was mostly owned by the Shihābs. Among the fifteen properties claimed by Sa‘da Shihāb, three were located in Shuwayfāt in the vicinity of Beirut, five in Beirut itself, three in Jounieh, and four in Jabal Kisruwān (including one in Ghazīr). Those properties consisted mostly of lands with olive or lemon plantations, a few houses, and shops in Jounieh. The other small- and medium-size nearby properties which were listed to locate the ones under scrutiny—those that surrounded the first eight properties in Shuwayfāt and Beirut—were mostly owned by the Shihābs too, for the most part parcels of lands with olive and lemon plantations in the vicinity of rivers and water-canals. The other proprietors, besides the Shihābs, were either “middle class” Christians (some were like the Shihābs themselves, Maronites), or Druze like the Junblās who helped the Shihābs consolidate their power in the Druze areas of the Shūf. Thus even the most powerful muqāa‘jīs families, which made their fortunes by farming state-owned mīrī lands, invested long before their decline into small milk properties. That was decisive for the Shihābs, in particular for the troubled period of the 1850s and later when they lost their status as a ruling muqāa‘jī family. What is interesting about those milk properties was their pattern: for one thing, they were not open to competition so that anyone would come in and own; they rather followed the political pattern of ahl and qarāba—those who were with “us” politically, belong to us, and are part of our political territory. Thus the pattern of land ownership reproduced that of the power-relations among the muqāa‘jīs and other related families which were subservient to them. This pattern, whether in politics or land ownership, did not necessarily follow a purely religious (confessional) basis—it was not solely based on the ā’ifaas such: indeed, other families, such as the Junblās, joined in because of their assimilation within the hierarchy (tarātub) of power created by Shihābī polity

84The seven remaining properties in Jounieh, Jabal Kisruwān, and Ghazīr, all North of Beirut, follow a similar pattern, but there are major differences too. In contrast to the first eight in Shuwayfāt and Beirut, the Jounieh and Ghazīr properties exhibit more variation: shops, farms, houses, and lands with plantations. Those were all in association (sharika) with others, and the text denotes such patterns of ownership “in common” as a iṣṣa shā’i‘a (or shāyi‘a), while the others in the vicinity of the Shihābī properties were not even owned by the Shihābs or other related families in Mount Lebanon such as the Junblās. Jabal Kisruwān was traditionally the stronghold of the Maronites for several centuries and saw the rise of the Maronite church and leading families such as the Khāzins. The Shihābs, who were originally Sunnīs from abayyā and Rāshayyā and secretly converted to Christianity late in the eighteenth century, were never strong in Kisruwān (even after the demise of the Khāzins); they constructed their power base by ruling in central Mount Lebanon, a region traditionally ascribed to the Druze. But it was the shift in power from the Ma‘ans (whose confessional identity was uncertain) to the Shihābs that modified the demographics of Mount Lebanon. Thus, in the nineteenth century, with Maronites coming from the North, the Druze were no more a majority (while the Shī‘īs lost some control too and were constrained further South, in Jabal ‘Āmil).

85The conflicting relations the Shihābs nurtured in Mount Lebanon and the other coastal muqāa‘āt in its vicinity partly explains their landholding patterns in areas they traditionally did not dominate well—which, surprisingly, were the areas they had invested in the most in terms of land ownership. Thus the Shuwayfāt desert, with its solid Greek Orthodox population, was administratively, after it was taken from Mount Lebanon, part of the province of Sidon, a Sunnī region with a wālī whose power often rivaled that of the Shihābs and who was their main casse-tête. That, however, did not prevent the Shihābs, with other muqāa‘jīs, from heavily investing in that region. On the other hand, their properties in Jabal Kisruwān were much more fragmented and mostly in association with others. That was a region, as Table ‎5-5 shows, with a number of Christian waqfs and small and medium-sized properties for the Christian “middle class.”

  • 79 The distinction between the form and content of speech (the laf and ma‘na)—or rather speech in its (...)

86Once the plaintiffs’ representative was through with his first list of properties, he made his request to the defendant to “vacate” (raf‘ yad) the wife’s properties. Then follows another list of properties that ulā Shihāb allegedly purchased from her husband on June 17, 1855 (a month later than her sister-in-law Sa‘da). The set of seventeen properties (Table ‎5-5 infra), four in Shuwayfāt, seven in Beirut, and six in Jounieh, Kisruwān and Ghazīr, reflects a similar pattern of distribution and ownership to the previous ones above. As before, the representative reiterates an identical claim for ulā Shihāb, prompting the two emirs to give back all the properties which their wives had purchased from them. Upon the defendants’ representative’s denial that these properties were purchased by the two sisters-in-law from their husbands, the plaintiffs’ representative brought two witnesses who both testified (on oath) of the truthfulness, in letter and spirit (laf-an wa ma‘nan),79 of the plaintiffs’ representative statements. The judge, having accepted the two witnesses’ testimonial evidence, ruled that all the aforementioned properties belong to the two plaintiffs. Thus, in the final analysis, testimonial evidence was the most crucial step and it turned out enough as bayyina in itself since the defendants had no valid counter-arguments.

  • 80 See Chapter 4 supra, in particular the notion of lawful (and rightful) “occupation.”

87This first part of the hearing could indeed be taken at face value—as a genuine litigation—the two sisters-in-law were requesting that their purchased properties from their husbands be returned to them, and there is nothing more to it. However, in light of the previous cases (and the ones to follow), their tricks and turns, not to mention arguments propounded by jurists concerning the ambiguous status of state owned mīrī lands,80 in addition to the declining status of the Shihābs since the 1850s, there is enough ground to be at least suspicious. The other alternative would not be a genuine act of buying and selling, but a friendly transfer among spouses simulated as a litigation. If that’s the case, then the sisters-in-law (and their husbands) would have preferred a ukmover a ujjaon the basis that a ruling would be more solid. There is no way to prove either possibility “once and for all,” but the second alternative might be more likely in light of an overall tendency of property transfers among the Shihābs right after their political demise. Interestingly, despite all the suspicions the Shihābs nurtured towards their women (as reflected for example in the waqf of Bashīr III, C 6-1 infra)—and encouraged by Maronite law—these vast properties and estates concluded their trajectory in the hands of women. But one of the purposes of fictitious litigations was precisely to provide for an alternative—leaving women out of property ownership, or the administration of waqfs for that matter—and then show that things couldn’t possibly work out that way (lack of male beneficiaries, or the latter still haven’t reached the age of maturity, etc.), hence the necessity of a woman taking the lead (C 6-1). Moreover, in periods of great political uncertainty and social unrest, transferring properties to women might have proved a safer option, considering in particular the danger of political confiscation.

88usn Jīhān, with Shaykh Iskandar ubaysh as representative, claimed a single property only—the third one of ulā’s properties, a land with olive plantations in Shuwayfāt (Table ‎5-5). Despite the fact that this property was in ulā’s ownership, both ulā and Sa‘da were on the defendant’s side; the reason is that all these properties, including the one under scrutiny, were originally part of the estate of asan Shihāb, the brother of Bashīr II, and hence clearing out the status of one of them requires scrutinizing of the original estate. Basically, according to the plaintiff, usn Jīhān, this property went back and forth between two generations of the Shihābs. It all began when asan Shihāb who, upon his death, had his estate divided between his wife, two sons, and four daughters (Maronites had to follow the anafī rules of succession). Then upon the death of one of the daughters, Layla, Khawlā, her sister and wife of Qāsim, son of Bashīr II, took a double share from her father and sister (see Figure ‎5-3). Then Khawlā herself died, and her husband inherited a fraction of her properties. Then, Qāsim having predeceased his father, a fraction of his inheritance was added to Bashīr II’s estate. Finally, Bashīr II himself predeceased his wife, usn Jīhān (the plaintiff), and thus a fraction of the Shuwayfāt property should have in principle become hers.

Figure ‎5-3. Trajectory of the disputed property (C 5-2).

Figure ‎5-3. Trajectory of the disputed property (C 5-2).

Commentary:All the men and women in this genealogical chart—with the notorious exception of usn Jīhān—were linked to Qāsim and Qa‘dān Shihāb and implicated in the set of properties in cases 5-1 & 5-2. As the Shihābs routinely intermarried among cousins precisely to avoid the fragmentation of their properties and transfer to “foreign” hands, it is therefore ironic to see that it was an “outsider” like usn Jīhān at the center of two major litigations. In fact, the movement of the inheritance, from asan Shihāb (1) to usn Jīhān (6), shows an unexpected path towards the latter. Property disputes of this caliber, which were no more than conveyances-cum-procedural fictions, typically took place within closely linked family ancestors, whose descendants intermarried, rather than the family at large or the clan.

89Thus, according to the plaintiff’s scenario, the Shuwayfāt property should have shifted hands between six different proprietors among two generations of the Shihābs, the first being that of Bashīr II, his two wives and brother, while the second included all their sons and daughters. Since some of the younger generation had predeceased their elders, this fraction of the estate went back to where it had originated, but in the other direction, that of Bashīr II and his second Circassian wife. As is common in such cases, the text calculates each share for the five beneficiaries, following strict sharī‘a rules of inheritance (Table ‎5‑2)—a domain where the text is constructed on “expertise,” counterbalancing the other more problematic areas of witness-belief and corroboration.

90The representative, in his concluding remarks, addresses both ulā Shihāb and her husband asan on the basis that it was the husband who had “possession” (wa‘ yad) of the karm, which he then sold to his wife: “I request from both the seller and his wife to vacate (raf‘ yad) the share of my client and give it back to her.” Logically, however, since that one share with the other related properties was already “purchased” by ulā, there was no reason why her husband should have been brought back to the second part of the hearing, only to be addressed in those terms—by posing him as some kind of “associate” to his wife. It also needs to be explained why the two parts were brought together in a single case: after all, the thirty-two properties “purchased” by the two sisters-in-law were worth having a case on their own.

  • 81 In the legal fiction where the imām (or sultan) is appointed as guardian over the “interests” of al (...)

91The defendants—now the sisters-in-law—maintained their own compelling version of the story to the end. According to their representative, Emir asan Shihāb had appointed in his will his brother Bashīr II as guardian to his small children and to take care of his debts, in the case that there were any, after his death. Bashīr II found that his deceased brother was inundated with debts to the point that he thought it wise to appoint two representatives (certified by a Maronite judge) especially for that purpose. The succession was then assessed, sold, and purchased by Bashīr II himself (the intermediary step of “selling” seems more legal than real, probably a way to make the point that the succession was properly evaluated rather than simply “appropriated” for convenience by Bashīr II),81 who then gave it to his nephew ‘Abdullah. The latter was thus able to cover some of his father’s debts while the rest was compensated by Bashīr II. As a result, the inheritance was no more the sole legal right of its beneficiaries (kharajat al-tarika ‘an kawnihā mustaaqqa li-l-waratha) but had been narrowed down to ‘Abdullah. The latter then sold part of his properties to his son asan who, in turn, sold it to his wife, and the orchard itself was part of the transaction.

92Upon the denial of the other party, the defendants’ representative furnished two witnesses acting as proxies to two others (fur‘ayn ‘an alayn).

  • 82 More accurately: the original value of the debt, that is, the “loss,” having been purchased by Bash (...)

I take oath on behalf of the originals above and certify that Emir asan b. Qāsim Shihāb, when he was alive, appointed his brother Bashīr, ruler of Mount Lebanon, as the sole guardian of his small children and to cover his debts. Emir asan died defending his will, and was found indebted and asked [for compensation] from the believers. His brother, the appointed guardian, had set two representatives who were given the power to initiate and receive litigation, and to represent him: the Murān Ghunāyus arrūf and the Khawāja Yūsuf Bakhos, [whose power to represent] was certified and legalized by the judge and pastor Mārūn al-‘Am. The debts were estimated and the inheritance assessed with all his belongings, and it was found that the [indebted amount] was large. As a result, his brother, the appointed guardian, found it best to sell the inheritance because of the loss [ghurmā’] and pay [his brother’s] debts. Once he took possession of the inheritance, he sold it and then bought it for himself to the benefit of his little nephew for the same value. He added the loss on the little boy’s fund, based on what he should have paid,82 and the [creditors] were cashed from the [boy’s] money and the rest of their debts were paid to them from the guardian’s money as a contribution [tabarru‘] from his part on his brother’s behalf.

93Having approved the two witnesses’ testimonies, the judge ruled in favor of the defendants. Strictly speaking, what Bashīr II allegedly did with his brother’s inheritance was in conformity with the law. It remains to be seen, however, why ‘Abdullah out of the six children was the only one to have fallen under Bashīr II’s grace, considering that he was appointed guardian of all six. Even in the case of a possible preference for the male beneficiaries, favored by Maronite law, there were two of them: ‘Abdullah and Ibrāhīm, both of which, as stated in the document itself, were alive upon their father’s death; and unless Ibrāhīm prematurely died when his uncle was liquidating the inheritance, there is no obvious reason (for the moment) as to why he was excluded from Bashīr II’s benevolence.

A specific ruling

  • 83 Ibn Nujaym, Rasā’il, 286.
  • 84 Ibn Nujaym, Rasā’il, 285.
  • 85 Ibn Nujaym, Rasā’il, 282.
  • 86 Ibn Nujaym, Rasā’il, 236-37.

94Ibn Nujaym, who had witnessed in Cairo the transition from the late Mamlūks to the early Ottomans, forcefully coined this category of al-ukm bi-l-mūjab, a ruling that whould be solely based on what the case in question specifically poses to the judge. Judging based on a lawsuit means that the judge “contemplates the suit, so that if it includes what establishes the validity of the contract upon which an action was initiated, he then rules accordingly [bi-mūjabi-hā] in a way that establishes the validity of the contract. But if none of those conditions are met, then, accordingly, the ruling cannot confirm the validity of the contract. Thus, al-ukm bi-l-mūjab is a ruling over a contractor [ukm ‘ala ‘āqid] in such a way that it binds him personally to the contract [bi-mā yuthbat ‘alayhī mina al-‘aqd], and is therefore different from a ruling upon a contract [ukm bi-l-‘aqd] which establishes the validity of the text per se.”83 What use can we make of such a distinction? The point here was to work out a distinction that differentiates between a valid contract which the judge approves, on the one hand, and the way the contracting parties are legally bound to the contract, on the other. So that if the contracting parties are fighting in court over a clause of the contract, the judge, even though he will have to check the validity of the contract, his ruling will nevertheless have to be specific to the obligations that tie the parties to each other. Moreover, rulings that establish the validity of a contractual arrangement are known as al-ukm bi-l-iḥḥa,and are hence different from those that discuss the status of the contractors. Such a distinction, Ibn Nujaym notes, was not known to the three founders so that for a long time the basis of what is a valid lawsuit has remained a confusing issue.84 Hence the related notion of a “factual ruling [al-ukm āditha]”—or a ruling based on a case, an event—which in turn is based on a “valid litigation [khuūma aīa].”85 Interestingly, even though Ibn Nujaym did not discuss the possibility of “fictitious litigations” (Ibn ‘Ābidīn did so in extremis), the purpose here behind such distinctions was precisely to favor rulings based on genuinely valid litigations. In fact, if “al-ukm bi-l-mūjab is a ruling upon a contractor so that it establishes his obligations towards the contract, and not a ruling over a contract,”86 the purpose of a fictitious litigation would precisely be to reverse that formula so that the contractual settlement-cum-procedural fiction would become the sole purpose of a judge’s ruling, even though the litigation itself would falsely point in the direction of the contractors (disputants). Indeed, it is in the nature of fictitious litigations to pose themselves as “valid,” meaning incorporating a genuine khuūma, while in reality they are nothing but simulated contractual settlements.

95To understand how such a reversal occurs, we need to look, once more, at our two cases, but this time in their chronological order. In the Sa‘da and ulā Shihāb case, it was the second litigation that necessitated the first. ulā Shihāb thus kept the only property that usn Jīhān had claimed. Moreover, Jīhān’s daughter and her sister-in-law secured two dozen properties from their husbands. Few months later, in another litigation, the mother secured an absolute ownership over her husband’s estate—against her daughter’s claims. In the two cases combined, the three women (mother, daughter, and sister-in-law) took over large estates from their husbands. The transfer of properties to Shihābī women, which is also noticeable in waqfs (C 6-1), was probably a trend of that period—right before the 1858 Land Code and the 1860 confessional massacres, and also before the advent of a unified Mutaarrifiyya—and that probably constituted a preemptive measure against possible confiscation of some or all of those “political” properties. This all suggests that we are in the presence of contractual settlements rather than genuine litigations. The case of Sa‘da and ulā could thus be read as a successful attempt to secure first—even though the text does reverse that order—the status of a single property, which was uncertain, so as to fully transfer the two-dozen properties to the sisters-in-law. Quite probably, while working out the modalities of the transfer, the concerned parties realized that the status of one the properties needed some status update—hence the two parts. Thus, the purpose was to transfer those properties to the two sisters-in-law, and, in the meantime, the nagging ownership of one of them was settled—the litigations were hence in toto fictitious; the same applies to that other litigation between mother and daughter several months later (C 5-1).

96In the language of Ibn Nujaym, both cases should have in principle been classified as a ukm bi-l-‘aqd,meaning a ruling in which the judge passes his approval over a contractual settlement, one that is overtly stated as such. The purpose of fictitious litigations, however, was precisely to bypass such rulings and opt for “stronger” ones that also incorporated a valid khuūma. The latter would give an undeniable advantage since they would permit the contracting parties, while simulating their litigation, to construct complete narratives—ones that would include full descriptions of properties, their past and present status, details of oral or written waqfiyyas, and claims and counter-claims—and hence would secure an irrevocable ruling. The contractual settlement is now on safer grounds, at least for the immediate generations to come, protected by a court’s ruling.

97Even though the 1858 Land Code was only a year away, it would be immature, however, at the present state of research, to rush towards conclusions and read the Code as an attempt to legitimize what was already taking place on the ground. What needs to be done first is to go back to earlier periods—the eighteenth century in particular—and check if such fictitious litigations involving land-transfers did exist. Was the form (formula) the same, and if so, would it be possible to establish a time framework that would tell us when it all began? If it turns out, as I suspect it does, that such practices were even common for part of the eighteenth century, it would then be hard to give a persuasive argument as to the necessity of the 1858 Code based solely on such regional practices—that would imply that the central authorities finally reacted to practices that were common ground for over a century! It would indeed be more realistic to look at the 1858 Land Code as an event that was dictated by a series of related events throughout an eventful nineteenth century, chief among them, the Tanīmāt and their sweeping legal reforms; the desire to modernize the iltizām system; a better integration of the empire with world-capitalism; the ideology of modernization among élite groups (including the military), which Muammad ‘Alī of Egypt began effectively applying; and the commercialization of land and the creation of new taxes out of the land-reforms, not to mention all diplomatic and military pressures against the sick man of Europe.

Table 5-3: Synopsis of Sa‘da and ulā Shihāb Case (May 6, 1857) (C 5-2)

Step
# I

Plaintiffs:Sa‘da & ulā

Defendants:
their husbands,
asan and Salīm Shihāb

Judge

Observations

1

Representative claims that Sa‘da “purchased” from her husband on May 18, 1855, a set of 15 properties, 8 in Shuwayfāt, and 7 in Jounieh and Ghazīr, which her husband refuses to acknowledge.

Alleged purchase occurred two years prior to present hearing.

2

Representative makes a similar claim for ulā regarding a set of properties purchased from her husband on June 17, 1855, a total of 17 properties, 11 in Shuwayfāt and 6 in Jounieh and Ghazīr.

Representative denies plaintiffs’ claims.

Judge requests evidence from the plaintiffs.

No written contract unveiled and no sums specified for both purchases, but only specific dates.

3

Claims corroborated by means of two witnesses.

Judge accepts testimonies of the witnesses and rules in favor of the plaintiffs.

Why did the plaintiffs wait two years to press their claims?

II

Plaintiff:usn Jīhān

Defendants:Sa‘da & ulā

4

Representative claims one of ulā’s properties which she allegedly inherited from her husband, Bashīr II. Inheritance path explained.

Representative denies plaintiff’s allegations and explains that the disputed property was originally owned by asan Shihāb, brother of Bashīr II. In his will asan had appointed his brother as guardian for his children, and upon his death, his inheritance had a large debt, which prompted Bashīr II to sell it and buy it for himself, and then give it to his nephew ‘Abdullah, father of asan (husband of ulā) and Salīm

Why was ‘Abdullah the only beneficiary who received Bashīr II’s big favor?

5

Representative denies defendants’ reply and requests for evidence.

Two witnesses corroborate defendants’ claims.

Judge accepts testimonies and rules in favor of defendants.

Was part I completed solely for this final ruling?

Table ‎5-4: Properties of Sa‘da Shihāb (allegedly purchased from her husband, May 18, 1855) (C 5-2)

#

Property

North

South

East

West

1

Land with olive plantations (karm zytūn) located in the desert of the Shuwayfāt village (al-Gharb al-Tatānī, muqāt˝a‘at Mount Lebanon, part of Eyalet Sidon).

Milk91 of the Jew ‘Abbūd Sha‘bān, and milk of Yūannā Mitrī.

Milk abīb Fayyā, and milk of the children of Mitrī Nāīf annā.

Milk Emir asan.

Milk Khawāja92 Isāq Thābit.

2

Land with olive plantations (karm zaytūn) located in the above desert in #1, in the place known as Abī al-Jāmi‘.

Milk of the mother of Emir ‘Abbās al-Shihābī.

Milk Nāīf Abī Ghānim.

Milk ājj Mutafa Bayhum, and milk of the mother of the Emir ‘Abbās al-Shihābī.

Milk Nāīf Abī Ghānim, and the mother of ‘Abbās al-Shihābī.

3

Land containing olive plantations in the same location as above (#1 & 2), in a location known as Rubā‘ Qayqab.

Road.

Milk Sa‘īd Bek Junblā.

Milk Sa‘īd Bek Junblā, and milk Nāīf Shublī al-Bardawīl.

Milk Emir Manūr al-As‘ad al-Shihābī.

4

‘Aoudah93 located in the aa94 of the city of Beirut and which contains mulberry trees.

Winter water canal (majra mā’ shatwī); and river.

Milk Ya‘qūb Thābit, and Lady Nūr, wife of Emir Manūr Shihāb, and Lady Badr, wife of Emir Rashīd Shihāb; and property of abīb Saḥḥāb.95

Milk Khawāja Ya‘qūb; and river.

Winter water canal (majra mā’ shatwī); and river.

5

House located within the small garden (awsh) of the aforementioned taa(#4), in its southern part, constructed in stone and with a wooden ceiling.

Mushā‘96 of the awsh.

Milk of the sons of āle al-Shammār.

Milk Emir asan b. Emir ‘Abdullah, brother of Emir Salīm Shihāb (the defendant).

Milk Emir Sa‘d b. Khalīl Shihāb.

6

Olive tree plantations (karm) in the taa (#4).

Road.

Milk Khawāja Isāq Thābit and abīb Saḥḥāb

Milk Khawāja Isāq Thābit and abīb Saḥḥāb.

Milk Rashīd Qāsim Shihāb.

7

Land in the same location as (#4), near the bakery (furn) known as Furn al-Shubbāk.

Milk of the mother of Emir Rashīd Shihāb.

Road.

Road.

Milk annā al-Buwayrī.

8

Two-thirds of the land containing pine trees in the same location as (#4); the remaining one-third is a sharika (association) with abīb Saḥḥāb and Ilyās ‘Akra.

Milk of Isāq Thābit and abīb Saḥḥāb.

Milk annā al-Buwayrī and Khālid Yammūt.

Road.

Road.

9a97

Four qīrās out of twenty-four of the five shops in the village of Jounieh, part of the locality of Zūq Mikāyil in Jabal Kisruwān, known as the dakākīn al-qanara, in association (sharika) with Ilyās al-Da for twelve qīrās, and also in association with the two brothers of the seller (bā’i‘:Emir Salīm Shihāb), the Emirs asan and Munqidh, for eight qīrās.

9b

Shops (dakākīn) and warehouses (makhāzin) located as in 9a and whose shares are divided as follows:
• four qīrās to the Emir Salīm Shihāb (the defendant);
• twelve qīrās in association with Shaykh Qanū un al-Khāzin;
• eight qīrās in association with the two brothers of the seller.

9c

Shops and khān and bakery located as in 9a:
• four qīrās to the Emir salīm;
• twelve qīrās in association with the Shaykhs sons of Haykal Khāzin;
• eight qīrās in association with the two brothers of the seller.

10

One-sixth of a farm (mazra‘a) known as mazra‘at Kafarnakhshah, located in muqāa‘at al-Zāwiya, and contains non-cultivated lands (arāī salīkh: lands without plantations?) and lands planted with all kinds of trees; in addition to few buildings (‘amār) and walls.

Village of Kafarūrā’.

Land of mazra‘at Bishnīn, part of the waqf of Dayr Quzayyā; and milk of Shaykh Amīn al-Khūrī and āli and fiannūs ubayqa.

Winter water canal which separates the villages of Jounieh and Basba‘al.

River of Abū ‘Alī.

11

One-third of the mazra‘a known as Qal‘at al-amrā’ in muqāa‘at al-Futū which contains the same type of items as (#10) above.

Land part of the waqf of Sayyidat al-Anshīf; waqf dayr Sayyidat al-aqlah; milk of the sons of Abū Ghanūs Bāsīl, Doumi ‘Āī Ra‘d, and fiannūs al-Ghadrāsī.

Milk Burus al-Afar and fiannūs Bākhos and Ilyās al-Mu‘arkij from the village of Ghazīr; and the Shaykhs sons of Naoufal al-Khāzin.

Milk of the pastor (khūrī) Janāriyus Karam and his nephews annā and Jubrā’īl; land part of the waqf of Sayyidat al-Anshīf.

Milk Mur‘ib Ra‘d and the sons of Bāz al-Munāqaa; milk Najm Murād; milk of the Shaykhs sons of fialab ubaysh; road; milk of the Shaykhs sons of fiannūs ubaysh.

12

One-third of the olive-yard (karm) located in a place known as Úahr al-Anshīf, in association (sharika) with the Emirs asan and Munqidh.

Waqf of the church of Mār Mikhāyil.

Waqf Sayyidat al-aqla.

Milk of the sons of Ibrāhīm Abū ‘Aql from the village of aj-Jadīdah.

Milk Yūsuf Abū a‘b from Kufūr; milk Louis Makhlūf Ziyāda from Jadīdah.

13

One-third in association (shā’i‘) with Emirs asan and Munqidh of the piece of land known as the Mīdān in the village of Ghazīr in Jabal Kisruwān.

91: In this context, milk means inalienable “private property” that denotes absolute ownership. Most properties in this list fall under this category.
92: Title (of respect) reserved for the Christian males of a particular social status (“middle classes” and beyond).
93: Land with lemon plantations.
94: .A common term in the ‘āmiyya for a small wall (in French: muraille, rempart) or for a set of houses in a circle, see Jabbūr ‘Abdel Nūr, Mu‘jam ‘Abdel Nūr, ‘Arabī-Faransī (Beirut: Dār al-‘Ilm li-l-Malāyīn, 1983), 261.
95: Representative (wakīl) of the two emirs.
96: Mushā‘(also shā’i‘ oriṣṣa shā’i‘a) could either refer to a common public property, or to a property which is mushtarak, that is, in common or in association with someone else. Since it is unlikely that the was public property, it thus seems that it was commonly owned.
97: Starting with this property, the locations moves North of Beirut to Jounieh and Ghazīr. I kept the same number (9) for properties 9a-c because they are all in the same location. They are all described as ḥṣṣa shā’i‘a, that is, owned in common with others. Probably due to their peculiar location, and unlike all the others in the list, properties 9a-c are not localized in respect to the other nearby properties.

Table 5-5: Properties of ulā Shihāb (allegedly purchased from her husband, June 17, 1855) (C 5-2)

#

Property

North

South

East

West

198

Land with olive trees (karm zaytūn) located in the Shuwayfāt desert in the place known as al-Dakhīra.

Milk of Lady Shihāb, mother of Emir ‘Abbās.

Milk Nāīf Abū Ghānim.

Milk ājj Mutafa Bayhum; and milk Lady Shihāb, mother of Emir ‘Abbās.

Milk Nāīf Abū Ghānim and the aforementioned Lady Shihāb.

2

Karm zaytūnin a location known as Rubā‘ Qayqab.

Road.

Milk Emir aydar Arslān; and milk Sharaf-ud-Dīn Abū Na‘īm.

Road.

Milk Sa‘īd Bek Junblā; and milk Nāīf al-Bardawīl.

399

Karm zaytūnin the Shuwayfāt desert in the location known as Sahl Shāhīn.

Milk Shāhīn al-Rīshānī.

Milk ājj ‘Abdullah and his brother ‘Umar Bayhum.

Milk Shāhīn al-Rīshānī.

Milk Lady Shihāb, mother of Emir Rashīd

4

Karm zaytūn in the same location as (#3) above.

Land belonging to the waqf of al-Yalka church.

Milk Banū Bayhum.

Milk Lady Shihāb, mother of Emir Rashīd.

Milk Manūr b. Shāhīn ‘Abdullah.

5

‘Aoudahlocated outside Beirut in the locality known as Taat al-Nahr and containing mulberry trees.

Milk Isāq Thābit; and water canal.

Milk Emir Munqidh Shihāb, brother of theseller.

Milk Isāq Thābit.

Milk Isāq Thābit; and water canal.

6

House located within awsh al-taa,south.

Milk Isāq Thābit and abīb Saḥḥāb.

Mushā‘ al-awsh.

Milk Emir Salīm, brother of the seller (defendant).

Milk Emir Munqidh, brother of the seller.

7

House located same as (#6), east.

Milk Murān fiūbiyā ‘Aoun.

Milk Emir Rashīd Shihāb.

Milk Murān fiūbiyā ‘Aoun.

Mushā‘ al-awsh.

8

‘Aoudah located in the same taa(Table ‎5-4, #4) containing mulberry trees, among others.

River

Milk Farāt al-‘Āzūrī

Winter water canal

Road

9

House located same as (#6), south.

Mushā‘ al-awsh.

Milk of the sons of āle al-Sha‘‘ār.

Milk Murān fiūbiyā ‘Aoun.

Milk Emir Salīm.

10

House located same as (#9).

Mushā‘ al-awsh.

Milk of the sons of āle al-Sha‘‘ār.

Milk Emir Rashīd Shihāb.

Milk Lady Sa‘da, daughter of Bashīr II.

11

Twelve qīrās from the pine-tree forest located outside of the taa,in association (sharika) with the Emirs sons of Khalīl and Rashīd Shihāb and the Murān fiubiyā ‘Aoun.

Milk Emir ‘Abdullah Qāsim Shihāb.

Milk Emir ‘Abdullah Qāsim Shihāb.

Milk Emir ‘Abdullah Qāsim Shihāb.

Road.

12a100

Four qīrās of the aforementioned shops (in Jounieh, Table ‎5-4, #9a) known as Dakākīn al-Qanara, in association for the other half with Shaykh Ilyās al-Da, while the remaining part is shā’i‘ (“common property”?).

12b

Four qīrās of the shops and wharehouses and front courtyard (‘ara); same location as (#12a); in association for the other half with Shaykh Qāū Khāzin, while the remaining part is shā’i‘.

12c

Four qīrās of the shops, warehouses, and bakery in the same location as (#12a); in association for the remaining share with the sons of Shaykh Haykal al-Khāzin.

12d

Four qīrās in the farm known as mazra‘at Kafarnasha located in muqāa‘at al-Zāwiya.

12e

Eight qīrās in the farm known as Qal‘at al-amrā’ containing non-cultivated lands and other lands with plantations, vineyards, etc.

12f

Vineyard located in a place known as Úahr al-Anshīf.

98: Seems identical with the second property of Sa‘da Shihāb (Table ‎5-4, #2) except for “place known as” (al-ma‘rūf bi).
99: The only property claimed by usn Jīhān.
100: Beginning with this point, all properties are identified in terms of a single location each.

Unchallenged narratives

98My reading of both cases has been shaped by the assumptions outlined at the beginning of this chapter and throughout this study. A reading of the document-as-totality has led to the following provisional conclusions and observations. First, the debt-procedure that was raised at the beginning of the document of the estate of Bashīr II (C 5-1) signals the “friendly” aspect of the litigation (even though the order of reading must be revered to fully understand the debt-procedure). Second, the transfer of a large estate to a woman outside the patriline was a significant and unusual step, even though, legally speaking, all procedures followed the normal routine and involved nothing exceptional. Third, such a transfer would not have been possible without the approval of the qāī, an approval that rested, in the final analysis, upon the testimonies of two witnesses provided by the defense, usn Jīhān, who was the mother of the plaintiff. Accordingly, this friendly-fictitious litigation demonstrates how social actors used the court system to re-negotiate their status and position in society: Following the political demise of the Shihābs, a mother and her daughter who were only tenuously linked to the clan were able to transfer a large estate to their own patrimony.

99The second case of Sa‘da and ulā Shihāb (C 5-2) leads to similar conclusions, albeit its structure is quite different from the previous one. Divided into two parts, only the first bears some resemblance to that of Bashīr II. In fact, both involved massive property transfers from husbands to wives (in the case of Bashīr II, the husband was already dead, but the transfer took place with his daughter as “medium”). In both, the “winner” was the party that was able to furnish evidence through witnessing, while the narrative of the opposing party—the “loser”—was usually the richest in terms of details and also the most conscientious in providing a historical background to the “litigation.” Ironically, then, the less one talks, the better, and the more “data” one provides the greater is the likelihood to lose the case—and one’s properties! Fictitious litigations, however, have narrative rules of their own very different from genuine ones (see Chapters 7 & 8 infra). For one, they never contain fatwās; the veracity of the witnesses’ claims are also never challenged; and, most importantly, one of the parties—it doesn’t matter which, plaintiff or defendant—must construct a narrative that fully traces the trajectory of all disputed properties. That final aspect is definitely the most essential because it explains on its own the existence of all that “data” regarding the status of the disputed properties, and all the individuals that owned them at some point, complete with a list of the properties. But, on the other side, such claims are seldom disputed on a point-by-point basis, as a genuine litigation would normally proceed. They are rather globally rejected, sometimes with a global counter-narrative that does not even address the detailed aspects of the first; or, better, the original narrative is denied, the judge then requests for evidence, and two witnesses are brought to establish that those properties are “mine.” Why then bother with all the details? To my mind, the most essential aspect of narratives that construct fictitious litigations is that they are stated with all their small details, and twists and turns, so as to be eventually ruled out. In fact, if we accept that fictitious litigations are nothing but simulated contractual settlements, it is essential that the ruling also eliminates alternative narratives that might be used in the future while attempting to win over one of the properties. It is as if such elaborated narratives are not even addressed to the opposite party so as to be challenged and debated by careful examination, but are rather meant to be integrated and objectified in the text itself—a text that reproduces the authority of the judge. In short, such narratives are indeed meant to address any potential “reader” which might share an interest in those same properties so as to discourage her from using those same arguments all over again.

  • 87 Ibn Nujaym, Rasā’il, 358.
  • 88 Such as Qāīkhān’s fatwā on how to insure that a waqf is irrevocable, see Chapter 6, C 6-2.
  • 89 Ibn ‘Ābidīn, Radd, 5:354.

100Ottoman anafī jurists were concerned with the notion of a “valid lawsuit” which in principle should be a combination of a sound litigation, evidence, and a fair ruling, but, above all, all of them combined should constitute an “event,” āditha, “so as to make a ruling embedded in an event.”87 Thus, all valid rulings should in principle become events (yaīru al-ukm āditha), but not all fatwās become events—only those that were prompted by an event become themselves events (hādithat al-fatwā, or wāqi‘at al-fatwā), while the rest are simply hypothetical fatwās. The point here is that the process of adjudication should only be the outcome of events that would urge for a ruling, only then the ruling itself would become an event—hence consecrate something unique and never seen before. To be sure, all those notions only achieve their meaning within the tarātub of the madhhab, so that a judge can only adjudicate within the limits imposed by his own school. “Valid,” however, is different from what I mean by “genuine.” A genuine litigation must be also valid, while a valid litigation could be fictitious. In fact, all the cases analyzed in this study are perfectly valid from the point of view of the fiqh—otherwise they would have been revoked and probably not even included in the sijills—but some I found to be “fictitious.” Thus, a valid litigation is only formally genuine, as the disputants themselves claim, but could turn out, upon closer examination, to be fictitious. The point is that fictitious litigations had become so much routinized and well embedded within the procedures of the courts that it would have been unthinkable for jurists to declare them illegal—but, except in few cases,88 they never dared to overtly explicate their procedures. At times, though, some of those “illicit” practices had to be reprobated, even if it remains uncertain—considering how widespread fictitious litigations were—what was it exactly that was subjected to condemnation. Thus, in a passage quoted earlier but which is worthy of a fresh look in light of the cases analyzed thus far (and the ones to come), Ibn ‘Ābidīn warns, regarding litigations, that “whenever a judge knows beforehand that the inof a matter does not conform to its āhir, and that there is neither litigation nor dispute on the same matter between the disputants, he should then not listen to this suit since adjudication does not apply in this case, and because one should explore the possibility of subterfuges for the sake of a ruling.”89 What kinds of lawsuits were condemned in such—rare—passages? Clearly, in the cases I describe as “fictitious litigations,” the “external claims [āhir]” introduced by the disputants and their representatives do not match with the “essence” of the case—its in, what it stands for. But in the extreme brevity of his comment, Ibn ‘Ābidīn leaves us uncertain as to the type of cases he was referring to.

  • 90 Claude Lévi-Strauss, Mythologiques. Volume One: The Raw and the Cooked (Chicago: University of Chic (...)

101Any researcher who attempts to transcend the specificity of a particular document must confront the issue of how many cases would constitute a representative inventory of the court records. Faced with a similar problem when analyzing myths, Lévi-Strauss noted in the “Overture” to his four-volume Mythologiques, “Experience proves that a linguist can work out the grammar of a given language from a remarkably small number of sentences, compared to all those he might in theory have collected (not to mention those he cannot be acquainted with because they were uttered before he started on his task, or outside his presence, or will be uttered at some later date.” He concludes, “What I have tried to give is an outline of the syntax of South American mythology.”90 The key word here is “syntax,” which signifies the manner in which South American myths are constructed, their internal logic, and thought processes. Whereas the number of myths is infinite and limitless, their syntax, like the grammar of a language, is limited to a certain number of rules (about which the natives are unaware) that the ethnologist attempts to reconstruct. In a similar manner, my primary objective is to discover the syntax of the sharī‘a court documents which, by definition, is limited. To this end, I have analyzed the debt-procedure mentioned at the beginning of the Bashīr II case in terms of a structure that follows a logic connected to the rest of the document-as-text. Both the “debt” (C 5-1 & 6-1) and the underlying structure of “occupation” and “unlawful usurpation” were routinely acknowledged as procedural fictions. Although each case possesses its own distinctive features, the “debt” follows the same syntax and serves a similar purpose. More important is the structure of the narratives, which in the case of fictitious litigations were all “unchallenged.” Either the plaintiff or defendant would normally proceed with a long and tedious exposition of the history of the alleged “conflict,” thus exposing the bulk of the factual data for a case; but then the painfully narrated claims are not subject to the scrutiny of the other party, and are rather rejected in toto on the ground that two witnesses were able to testify that their party had “purchased” or “occupied” the disputed property since a specific date. The structure of such narratives, in conjunction with what anafī practice imposes, are the two most essential aspects of text analysis and interpretation.

102What—if anything—does the syntax of the documents tell us about the practice of the courts? Psychoanalysis teaches that there is a gap between the symbolic universe that the subject constructs for himself and the real world. A similar gap exists between the symbolic universe of the courts and their language, on the one hand, and their praxis, on the other. The universe of the courts is that of a linguistic (social) construction. The courts create a syntax of their own that names things, defines relationships, and classifies categories. We thus speak of “property,” “debt,” “inheritance,” and “waqf,” as if they are realities. In fact, these nouns represent a far more complex set of symbolic abstractions. This division between the symbolic and the real is manifested in the role of the qāī who, on a daily basis, is confronted with the task of transforming the symbolic into the real, thereby according him a measure of “freedom.” In the case of the estate of Bashīr II, the qāī in a purely routinized decision played a crucial role in facilitating the transfer of property outside the Shihābs (a decision that would have been unthinkable when the Shihābs had full political power). The irony is that the process whereby the qāī arrived at his final decision is poorly documented in the sharī‘a court records, hidden in a dark zone, like death, about which we can only speculate.

Notes

1 The first document, dated 4 —afar 1274 (24 September 1857), is five pages long (legal size paper) and is written by hand in the style characteristic of Ottoman sharī‘a court documents. In the absence of a strong and influential Lebanese “National Archives” (even though a governmental, hence public, institution under the name of al-maāt al-waaniyya does exist), court documents usually are preserved separately by each “community” (ā’ifa). The largest number of Ottoman sharī‘a court records (only those from the mid-nineteenth century on have survived) are preserved in the main Sunnī courthouse in Beirut, situated in the Jāmi‘ al-Imām ‘Alī (West Beirut, neighborhood of al-Mal‘ab al-Baladī). Since the courthouse is not a formal archive and because it currently is used to hear personal status cases, the Ottoman documents are not generally accessible to researchers; also, photocopying was available, during my last visit (summer 1995), only prior to approval from the chief-judge. “Inspection” of the documents therefore depends upon the goodwill of the functionaries of the Sunnī courthouse, in particular the chief qāī. There are no indices, and neither the registers (sijills) nor individual pages are numbered; the only way to identify a document is by its date. Other Lebanese cities, such as Tripoli and Sidon, have their own Ottoman documents. The archive of Tripoli, which contains documents dating from the sixteenth century, is probably the best preserved and, having been microfilmed in its entirety by a group of professors at the Lebanese University, the most accessible to researchers. The first two registers are available in a facsimile edition. For a preliminary study based on the Tripoli Sharī‘a court documents, see Khālid Ziyāde, al-—ūra al-taqlīdiyya li’l-mujtama‘ al-madīnī (Tripoli: Publications of the Lebanese University, 1983).

2 Indeed, the same remarks do apply to other types of documents such as the fatāwā, sultanic edicts, and the minutes of the regional councils, all of which are extensively discussed in this study, in addition to anafī legal texts.

3 For a preliminary assessment of the “social history” literature, see Zouhair Ghazzal, L’économie politique de Damas durant le xixe siècle. traditionnelles et capitalisme (Damascus: Institut Français de Damas, 1993), Chapter 1.

4 See Chapter 4 supra.

5 The notion of “discourse” approximates our notion of “text” in the sense that discourse is subject to hierarchical power relations. See Michel Foucault, The Archaeology of Knowledge (New York: Pantheon Books, 1972), Chapter 2.

6 Textual and discursive analysis does not presuppose a linguistic and philological presentation of the document-as-text, but it does not exclude the latter either. Careful scrutiny of judicial and legal words, sentences, and concepts, could, at times, prove quite helpful and necessary. Linguistic and philological presentation, however, whenever necessary, should be conducted within the context of the textual-discursive analysis I have outlined above, which implies, among other things, that the focus is on the global logic of the document-as-text, in its social and historical contexts. For each document, the main question we are asking is: What is it that makes this narrative legitimate? Or, in other words, which legal proofs are in themselves sufficient (that is, accepted by the legal system) that make this narrative legitimate? Linguistic and philological analysis is helpful from this perspective only when it could provide us with the socio-historical context that made a particular word or concept “acceptable” within the judicial discourse.

7 Foucault noted that the notion of “author” is even more problematic in the case of “individual” authors of a well-known literary work; in such cases, the specific discourse of an “individual,” however “original,” cannot be isolated from the more general discourses that transcend disciplines and literary genres. See Foucault, Archaeology of Knowledge, 23-30.

8 ,Eduardo Silva-Romero, Wittgenstein et la philosophie du droit (Paris: Presses Universitaires de France, 2002), describes various legal practices in terms of corresponding “juridical language games” (les jeux du langage juridique), or “grammars,” which is similar to the approach adopted in this study. The author does also suggest the various shifts between third- and fourth-person singular, the latter being that of the “legislator” or “magistrate.”

9 See Gunther Teubner, “Pour une épistémologie constructiviste du droit,” Annales ÉSC 47, (1992): 1149-69.

10 For a detailed history of the Shihābs in the eighteenth and nineteenth centuries, see Mikhāyil Mishāqa, Muntakhabāt mina al-jawāb ‘ala iqtirā al-abāb, Asad Rustum, ed. (Beirut-Jounieh: Manshūrāt al-Maktaba al-Būlisiyyah, 1985), English trans., Murder, Mayhem, Pillage, and Plunder. The History of the Lebanon in the 18th and 19th Centuries, translated from the Arabic by Wheeler M. Thackston, Jr. (Albany: State University of New York Press, 1988). For a social and economic history of Mount Lebanon during that period, see Iliya Harik, Politics and Change in a Traditional Society, Lebanon, 1711-1845 (Princeton: Princeton University Press, 1968), and Dominique Chevallier, La société du mont Liban à l’époque de la révolution industrielle en Europe (Paris: Paul Geuthner, 1971). An interesting case for the implementation of the iltizām tax-farming system in Mount Lebanon prior to its adoption in the rest of the Ottoman Empire is made by Abdul-Rahim Abu-Husayn, “The Iltizām of Manūr Furaykh: A Case Study of Iltizām in Sixteenth Century Syria,” in Land Tenure and Social Transformation in the Middle East, ed.Tarif Khalidi (Beirut: American University of Beirut, 1984), 249-56. For a study of nineteenth-century Beirut waqfs based on the Ottoman court records, see assān allāq, Awqāf al-muslimīn fī Bayrūt fī-l-‘ahd al-‘uthmānī (Beirut, 1985). On the effects of silk manufactures and trade, see Akram Fouad Khater, “‘House’ to ‘Goddess of the House’: Gender, Class, and Silk in 19th-Century Mount Lebanon,” International Journal of Middle East Studies, 28 (3 1996): 325-348.

11 Mishāqa, Murder, Mayhem, Pillage, and Plunder, 125.

12 Mishāqa, Murder, 289, nt. 35 (translator’s note).

13 Hariq, Politics, 75-127. The evolutionary process of the Maronite Church between the sixteenth and nineteenth centuries could best be described in terms of a “rationalization” process (in the Weberian sense). In the sixteenth and seventeenth centuries, the Church was still scattered all over Mount Lebanon with a poorly organized and educated clergy, and with strong links to the muqāa‘jīs families. For those tax-farmers families, competing for a religious post was a way to enhance their own prestige and status. By establishing large endowments in the form of milk and waqf, and by becoming the wealthiest institution in late eighteenth-century Mount Lebanon, in addition to the more professional training granted to its clergy, the Church became more “autonomous” and better organized (in terms of hierarchy and structure). The “autonomy” of the Church implied mainly fewer connections with the muqāa‘jīs families, a process that was to be even more visible during the nineteenth century.

14 Ibrahim Aouad, Le droit privé des Maronites au temps des Émirs Chihab (1607-1841) (Paris: Librairie Orientaliste, 1933).

15 In contemporary Syria, Christians and Jews must follow Islamic law in most personal status matters, in particular property and inheritance.

16 For a brief survey of the 1820 events and their historiography, see, Samir Khalaf, Persistence and Change in 19th Century Lebanon (Beirut: American University of Beirut, 1979), Chapter 3.

17 Only one Druze family, the Arslāns, held the title of amīr. The Shihābs, which were originally Sunnis from the regions of ābayyā and Rāshayyā, had some of them convert to the Maronite faith (that is, Catholicism) in the eighteenth and nineteenth centuries, even though that was kept, in some cases, most notably for Bashīr II, “confidential.”

18 See, Richard van Leeuwen, Notables and Clergy in Mount Lebanon: The Khāzin Sheikhs and the MChurch (1736-1840) (Leiden-New York: E.J. Brill, 1994), which, despite its merits, is heavily influenced by the world-economy and integration to capitalism literature, thus leading to a common assumption that in Ottoman historiography and “in the final analysis,” as the good old Marx would say, the “socio-economic patterns,” falsely assumed as “secular,” “dominate” and shape the religious, moral, and kin relations: “There are few things which are more revealing about power structures in societies than the relations between secular and religious institutions. That is, if one is willing to accept the idea that these relations are a reflection of socio-economic patterns and not only inspired by piety or moral concerns” (p. 1). But were the “socio-economic patterns” in the societies of the Ottoman empire “secular”? If we assume that the socio-economic was, in part at least, a set of legally regulated institutions, and that sharī‘a law is by definition deontological, on what basis was the socio-economic then secular? Why was there no autonomous discourse of political economy?

19 Aouad, Le droit privé, 308 for the original document, and 309 for the translation.

20 Aouad, Le droit privé, 60; Sulaymān Taqiyy al-Dīn, al-Qaā’ fī Lubnān(Beirut: Dār al-Jadīd, 1996), 26-27.

21 Aouad, Le droit privé, 61.

22 Aouad, Le droit privé, 74.

23 Aouad, Le droit privé, 217. There is no clear indication, however, as to whether those “ventes fictives” were completed in the sharī‘a courts only, or with the help of Maronite bishops, or both.

24 van Leeuwen, Notables, 110.

25 Aouad, Le droit privé, 215.

26 Aouad, Le droit privé, 65, 285.

27 Ibn ‘Ābidīn, Radd, 6:696-99.

28 ,On the legal status of “minorities” in Islamic societies, see Antoine Fattal, Le statut légal des non-Musulmans en pays d’Islam (Beirut: Imprimerie Catholique, 1958). To the best of my knowledge, during the Ottoman period, the Christians and other Muslim and non-Muslim “minority” groups in Beirut, Damascus, and Aleppo, and unlike the Maronites and Druze in Mount Lebanon, had no courts of their own and had to rely on the anafī courts to settle their disputes (so did the Maronites, but by choice). I am not aware, for the same cities and period, of courts specific to the Jews either, even though it has become common knowledge that, in many Ottoman cities, the Jews had the unique possibility to shift between rabbinic law and anafī dogma, see Aryeh Shmuelevitz, The Jews of the Ottoman Empire in the Late Fifteenth and the Sixteenth Centuries (Leiden: E.J. Brill, 1984), Chapter 2.

29 See Table 2-2 supra.

30 Mishāqa, Murder, 23.

31 Chevallier, La société du mont Liban, 69: “L’exogamie n’en a pas moins existé comme autre terme d’une alternative, terme qui a permis au groupe de s’ouvrir sur l’extérieur. Les unions exogamiques ont représenté une proportion plus ou moins variable du total des mariages selon le rang et le statut des lignées, le nombre moyen d’enfants par couple, les facilités ou les difficultés qu’ont eues les groupes villageois de communiquer entre eux ou avec l’extérieur, par conséquent selon les époques, les lieux et les communautés; d’une façon générale, elles ont largement dépassé le nombre des mariages endogamiques stricto sensu, c’est-à-dire entre cousins parallèles, car il a suffi pour assurer la permanence et la cohésion patrilinéaire de la lignée que ses responsables, et d’abord les anés, respectassent la coutume de prendre pour épouse la fille de leur oncle paternel.” Marriage with a patrilineal parallel cousin appears, in the context of Claude Lévi-Strauss’s anthropology, as a sort of scandal and as something difficult to account for. In fact, unlike exogamic systems which typically assume an incest taboo and an absolute necessity of exchange between alliance groups and descent groups, endogamic systems blur the traditional lines set by structuralist anthropological discourse, see Pierre Bourdieu, Outline of a Theory of Practice (Cambridge: Cambridge University Press, 1977), 30-71.

32 It was indeed enough, for that matter, that the oldest son respects on his own the rule of endogamy and marries his paternal parallel cousin.

33 The Circassians were an ethnic group from the Caucasus.

34 The fact that Bashīr II’s three sons and his daughter, Sa‘da, are the only legitimate heirs identified in the document suggests that they were his only children and that Bashīr II had no more than two wives.

35 Even though the case of Sa‘da and ulā Shihāb precedes that of the estate of Bashīr II by several months (May 6 and September 24, 1857 respectively), I’ve deliberately chosen to expose the latter first, due to the importance of the estate for one, and because it provides a better picture to the Shihābī family interrelations and the role of usn Jīhān in particular.

36 The Arabic texts, including court documents, refer to usn Jīhān as a Circassian.

37 Henri Guys, Beyrout et le Liban, 2 vols. (Beirut: Éditions Dār Lahad Khater, 1985 (1850)), 2:101-2, and note 47.

38 Besides her active role in the two cases (C 5-1 & 5-2) analyzed in this chapter, a notice was sent to her representative in 1867 to appear in the higher court of Mutaarrifiyyat Mount Lebanon, the majlis al-muākamat al-kabīr,one of those newly established courts in an era of intense judicial reforms, with Emir Khalīl Bashīr Amad as her opponent, see Sulaymān Taqiyy al-Dīn, al-Qaā’ fī Lubnān(Beirut: Dār al-Jadīd, 1996), original document reproduced on p. 52.

39 Shākir al-Khūrī, Majma‘ al-Masarrāt (Beirut: Dār Lad Khāir, 1985), 239.

40 Beirut sharī‘a courts, unnumbered register, 14 afar 1283 (June 28, 1866), case number 328.

41 W. Robertson Smith, Kinship and Marriage in Early Arabia (London, 1907), 65-66; cited in Jack Goody, The Oriental, the Ancient and the Primitive. Systems of Marriage and the Family in the Pre-industrial Societies of Eurasia (Cambridge and New York: Cambridge University Press, 1990), 363.

42 Of course, transferring property to a woman “outside” the clan was nothing illegal, but it was unusual, and my argument throughout this paper is that because of the nature of this “friendly litigation,” the transfer would not have been possible without an implicit consensus from the qāī.

43 The absence of written documents is not illegal in anafī practice, but since presenting s in court was quite common in Ottoman times, the absence of a written legal document for a large estate proving its purchase by the defendant is staggering.

44 Mishāqa, Murder, Mayhem, Pillage, and Plunder, 46-47.

45 Clifford Geertz, “Suq: the Bazaar Economy in Sefrou,” in Clifford Geertz et al., Meaning and Order in Moroccan Society (Cambridge and New York: Cambridge University Press, 1979), 150; Lawrence Rosen, Bargaining for Reality: The Construction of Social Relations in a Muslim Community (Chicago: University of Chicago Press, 1984), Chapter 2.

46 Lawrence Rosen, The Anthropology of Justice: Law as Culture in Islamic Society (New York: Cambridge University Press, 1989), 65.

47 Rulings in cases of Shāfi‘ī or anbalī judges had to be reconfirmed by a anafī colleague (Chapter 3 supra, most marad and sharecropping cases).

48 Ibn ‘Ābidīn, Radd, 5:152: “al-thaman mā yuthbat fī-l-dhimma dayn-an ‘inda al-muqābala.

49 Ibn ‘Ābidīn, Radd, 5:135: “al-qīmmī mamlūk-an li-l-mushtarī.

50 Ibn ‘Ābidīn, Radd, 5:152.

51 Ibn ‘Ābidīn, Radd, 5:152.

52 See Chapter 3 supra.

53 Jean-Claude Montanier and Geoffrey Samuel, Le contrat en droit anglais (Grenoble: Presses Universitaires de Grenoble, 1999), 15.

54 See Marcel Mauss, The Gift (New York and London: Norton, 1967); and, Maurice Godelier, L’énigme du don (Paris: Fayard, 1996), a lengthy commentary on Mauss’ Gift from the perspective of a modern Marxist anthropology.

55 Alan Smart, “Gifts, Bribes, and Guanxi: A Reconsideration of Bourdieu’s Social Capital,” Cultural Anthropology, 8 (1993), 388-408, quote on 404.

56 Ibn ‘Ābidīn, Radd, 5:545.

57 The plaintiff, Sa‘da, Qāsim’s half-sister, did not inherit anything at this stage because the two were from different mothers. Similarly, usn Jīhān, since she was not Qāsim’s mother, has no share in the inheritance.

58 It is not clear why only two of Qāsim’s seven children should inherit.

59 In the two quotes that follow, the two parties are only nominally directly addressing each other. In fact, as I have argued in my introductory remarks, I consider it misleading to analyze this document in terms of a single “author” or even of several “speeches” brought together under one narrative (the qāī, the plaintiff, and the defendant). Because we have no access to the complete hearings, both the plaintiff’s and defendant’s “voices” are silenced in the qāī’s draft which, in turn, is part of an anonymous “we.”

60 The ghab is a legal concept in Islamic law, and implies “taking by force” (or more accurately, “putting one’s hand on,” wa‘ yad) inert or non-inert things, properties which are transferable or non-transferable (manqūl wa ghayr manqūl), the latter category including also cash sums as well as human beings, in particular women who could be “forced” into “illicit sex.” The category of ghab is thus very broad, and, in case a defendant was proved guilty of a ghab act, the next step would typically be the assessment of damages together with an attempt on the part of the court to “put an end to the action of the perpetrator(s)” (daf‘ al-ā’il). This is of course done with the intention of “refunding” the person (usually the plaintiff) against whom an illegal act (or crime) has been committed (al-maūl ‘alayhī). In the case of Bashīr II, the defendant was acquitted from the court for any act of wrongdoing, in particular anything related to ghab. Furthermore, as I have argued at length in the previous section, we are faced here with a friendly-fictitious litigation which makes labeling the case under the usual ghab/daf’ strategies quite misleading. For a formulation of these concepts and their implications in a modern context, see Wehbeh al-Zuaylī, al-Fiqh al-islāmī wa-adillatuhu (Damascus: Dār al-Fikr, 1984), 5:705-90.

61 This citation and the ones that follow are from the court document described in note 1.

62 The concept of shubhat milk related originally to the notion of “illicit sex” (zinā). The latter is defined as sexual intercourse (wa) between a man and a woman from the front (fi’l-qubl), without any prior contract (‘aqd) between the two parties involving property (milk) or the semblance of property (shubhat milk). Whenever there is any uncertainty (shubha) regarding ownership of a slave with whom a man had sexual intercourse, the punishment for zinā is avoided. Such uncertainty occurs, for example, when a man has intercourse with his son’s slave, since, according to a well-known adīth, “You and your money [possessions] belong to your father”. By extension, the notion of shubha came to refer to any object or thing (including slaves) which might appear to belong to a certain person when de jure it does not. In our case the qaī declared that the emir’s three sons not only never possessed the estate as milk but also that there was no shubhat milk, that is, they never enjoyed the right of shubha (uncertainty or semblance). In the arguments that led to the final judgement, the notion of shubhat milk was less important than the testimonies of the two witnesses provided by the defense, which the qāī accepted as valid. See Wehbeh al-Zuaylī, al-Fiqh al-islāmī wa-adillatuhu (Damascus: Dār al-Fikr, 1984), 6:23-30.

63 As is common in the Ottoman court system, qāīs typically do not refer to the judicial texts (the “statutes”) and “opinions” (fatāwā and the like) that made their final decision-making possible. It remains the task of the social scientist to reconstruct the rationale behind the way in which the various arguments come together in the narrative of the document-as-text. As this case shows, reference to the classical judicial texts is only one step in the process. The strategies of the social actors need to be contextualized in a social and historical perspective.

64 It is well-known that under classical anafite law, the plaintiff does not, normally, take the oath, nor do witnesses for that matter, except under exceptional circumstances. anafī practice thus leaves the bulk of the proof on the defendant’s side. Despite the fact that these are well-known and accepted procedures, studies on the practice of the Ottoman courts (and for later periods as well), should not take them for granted, and instead question how for each particular case, taking or not taking an oath, presenting witnesses, or written documents (or the lack thereof), are usually used as strategies in order to present to the court the set of “proofs” required by the law.

65 As Schacht noted, “the ‘witnesses’ were concerned not so much with giving evidence as with affirming by oath the truth of the claims of their party, as compurgators.” See Joseph Schacht, The Origins of Muhammadan Jurisprudence (Oxford: Clarendon Press, 1950), 188. Even though Schacht is referring here to a practice which dates from the first half of the second century (a.h.), and which, according to him, has been “superseded,” I still think that his description of the role of the witnesses as “compurgators” describes best the telos of witnessing in the Ottoman period. In fact, our witnesses, beyond the fact of being “known,” “respectable,” and “adult,” did not provide the court with anything different from what the defendant wanted them to say. They were also not subject to cross-examination and the like. In other words, the value of their testimony rested solely on their own value as “respectable” individuals, and on the fact that there was someone to testify in favor of the defendant.

66 Schacht noted in Origins, 188, that even though the Qur’ān (ii:282) explicitly endorses the practice of putting contracts into writing, the alternative practice of restricting legal proof to the evidence of witnesses goes back to the first century a.h., and the reasons behind this shift are not well-known. In the Ottoman period, written documents (s) were routinely accepted in the Sharī’a courts, but so were the testimonies of witnesses in case no written documents were available. It thus seems that both methods were alternatively used and both were accepted as legitimate legal evidence. Since in Ottoman courts both procedures were equally valid, it is obvious that when no written documents were presented, this could have either meant (1) that no written document(s) existed in the first place; or (2) that a written document did exist, but not showing it publicly in court turns out to be a more profitable enterprise. In both cases, absence of written documents was a means to liberate oneself from the tyranny of the written.

67 See Chapter 4 supra.

68 Ibn ‘Ābidīn, Radd, 5:547: “If a person claims that this property is mine as milk and it is illegally in your hand [fī yadi-ka], the claim is valid even if the exact day of the ghab is unspecified.”

69 With the notable exception of ‘Abdullah Ibrāhīm Sa‘īd, Ashkāl al-milkiyya wa anwā‘ al-arāī fī Mutaarrifiyyat Jabal Lubnān wa Sahlu-l-Biqā‘, 1861-1914(Beirut: Maktabat Bīsān, 1995), but which is mostly limited to the mutaarrifiyya period.

70 For politically troubled families, transferring properties to women could indicate a legal device to avoid confiscation.

71 My assumption, throughout this case study, is that the sale of the estate from Bashīr II to his wife has been fabricated by the two parties. Actually, the plaintiff’s version onthe status of the estate seems more plausible and “realistic” to me.

72 Ibn ‘Ābidīn, Radd, 5:548.

73 See Chapter 11 infra.

74 The text remains elusive about anything from a written contract to the prices set for both purchases. However, only specific dates were noted in both instances (May 18 and June 17, 1855). That’s as far as the text can go in terms of specificity.

75 See, for example, ‘Umar b. ‘Abdul ‘Azīz, Shar adab al-qāī li-l imām Abī Bakr Amad b. ‘Umar al-Khaṣṣāf (Beirut: Dār al-Kutub al-‘Ilmiyya, 1994), 428-447.

76 abīb Saḥḥāb, the representative of the two emirs in court, owned several properties in the Shuwayfāt region South of Beirut. See Table ‎5-4 and Table ‎5-5 for the list of properties of Sa‘da and ulā Shihāb.

77 Zayn al-Dīn Ibn Nujaym, Rasā’il Ibn Nujaym (Beirut: Dār al-Kutub al-‘Ilmiyya, 1980), 281.

78 Ibn Nujaym, Rasā’il, 361.

79 The distinction between the form and content of speech (the laf and ma‘na)—or rather speech in its written form as delivered in the court-documents—was crucial since disputants, witnesses, and judges, could have made the claim that what they said at a particular moment was not to be taken at its face value because the “inner” meaning goes deeper than the āhir. Thus the Majalla in 1877 made it plain in its third rule that “contracts should be considered according to their purpose (maqad) and meaning (ma‘na) and not their literal meaning (laf) and syntax (mabānī).” Thus, even though the final rulings of the courts should limit themselves to the āhir of an individual’s action, in contracts, the manifest purpose turns out to be the most crucial since, as ‘Alī aydar, who gave one of the most acknowledged interpretations of the Majalla, put it, “the real thing is the meaning and not the literal form (laf),” and “the literal external sense is only the form (qawlab) to meaning (ma‘na).” See ‘Alī aydar, Duraru al-ukkām sharu Majallat al-akām (Beirut: Dār al-Kutub al-‘Ilmiyya, n.d.), 1:17ff.

80 See Chapter 4 supra, in particular the notion of lawful (and rightful) “occupation.”

81 In the legal fiction where the imām (or sultan) is appointed as guardian over the “interests” of all Muslims so that the massive ownership of lands by the state is legitimized and accepted as “property of the sultan,” the latter can buy for himself any of those “private” properties whose kharāj-payer died without heir, but he needs first that someone proposes to sell it, and then purchase it for himself. The contract of sale would thus look more “impersonal” and not dictated by personal greed or an abuse of power, see, Ibn Nujaym, Rasā’il, 51.

82 More accurately: the original value of the debt, that is, the “loss,” having been purchased by Bashīr II, its value has been added to his nephew’s fund.

83 Ibn Nujaym, Rasā’il, 286.

84 Ibn Nujaym, Rasā’il, 285.

85 Ibn Nujaym, Rasā’il, 282.

86 Ibn Nujaym, Rasā’il, 236-37.

87 Ibn Nujaym, Rasā’il, 358.

88 Such as Qāīkhān’s fatwā on how to insure that a waqf is irrevocable, see Chapter 6, C 6-2.

89 Ibn ‘Ābidīn, Radd, 5:354.

90 Claude Lévi-Strauss, Mythologiques. Volume One: The Raw and the Cooked (Chicago: University of Chicago Press, 1969), 7-8.

Table des illustrations

Titre Figure ‎5-1. The debt (C 5-1).
Légende Commentary:The “debt” is probably the most common procedural fiction, and hence comes with its own syntax, as it serves as a plug-in device in many type-contracts (C 3-3, 5-1 & 6-1). In effect, its purpose is general and would fit whenever there is a need to confirm the identity of the representative as plaintiff or defendant. Since those cases usually end up with transfers of property, the identity of the representative and his right to represent could become the pièce-de-résistance in the situation where the transfer is challenged in a future litigation. Beyond that, a debt entails an “obligation,” while a regular act of sale does not, so that all those cases, despite their differences, are structured around an obligation to perform, meaning to transfer the (disputed) properties.
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Titre Figure ‎5-2. Heirs of Bashīr II (C 5-1).
Légende Commentary: Since the Shihābs intermarried almost exclusively among cousins (and that was apparently the case of Bashīr II’s ex-wife, Shams al-Murīd), Ḥusn Jīhān, who was an ex-Circassian slave, and her two daughters, Sa‘da and Su‘ūd, were the only “outside” elements in this genealogical chart. Yet, their role in both this case (C 5-1) and the following one (C 5-2) will turn out to be crucial as the bulk of Bashīr II’s estate will fall in their hands. Considering that the Maronites took great care not to let unmarried women or widows inherit, one can only speculate as to why Ḥusn Jīhān was so fortunate: it could either have been a moment of reshuffling properties within the family, or else women were a “safer” situation for a political family like the Shihābs, especially during their demise period.
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Titre Figure ‎5-3. Trajectory of the disputed property (C 5-2).
Légende Commentary:All the men and women in this genealogical chart—with the notorious exception of Ḥusn Jīhān—were linked to Qāsim and Qa‘dān Shihāb and implicated in the set of properties in cases 5-1 & 5-2. As the Shihābs routinely intermarried among cousins precisely to avoid the fragmentation of their properties and transfer to “foreign” hands, it is therefore ironic to see that it was an “outsider” like Ḥusn Jīhān at the center of two major litigations. In fact, the movement of the inheritance, from Ḥasan Shihāb (1) to Ḥusn Jīhān (6), shows an unexpected path towards the latter. Property disputes of this caliber, which were no more than conveyances-cum-procedural fictions, typically took place within closely linked family ancestors, whose descendants intermarried, rather than the family at large or the clan.
URL http://books.openedition.org/ifpo/docannexe/image/555/img-3.png
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