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The grammars of adjudication

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Zouhair Ghazzal

Chapter 6: Waqfs as contractual settlements: The transfer of property to women II

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1Thus far, our investigations into the theory of contract led us into several conflicting trajectories. In the chapter on contracts (Chapter 3 supra), we have explored how the late jurists were at odds in presenting a coherent theory of contracts, and even though such an incoherence is common to many systems, part of the problem lies in the uniqueness of the Ottoman period and the difficulties encountered by jurists to acknowledge the validity of newly established contractual forms, in particular those that did bypass the notion of an equal and simultaneous exchange. Thus, newly established contractual forms such as the marad, sharecropping contracts, the khulū and gedik, were accepted by jurists on a de facto basis: not only did they hardly fit in the logic of the fiqh, but they were not easy to categorize, and their logic was tied to newly established customary practices in conjunction with low rents and high iltizām dues. Jurists did not find it appropriate to work a substantively new law of contracts for what they perceived as political aberrations of their own period, which granted multazims and their protectors unduly powers. But the fiqh manuals kept the debate, even for the newly established contractual forms, at the prescriptive level (and the bulk of contemporary legal historical research is trapped in the same way). In fact, what those texts were unable to account for and fully describe were the practices that emerged in the courts in the form of fictitious litigations. To be sure, even though the latter cannot be all subsumed into a single category (see supra the table on procedural fictions, Table 2-2), they nevertheless reveal an unusual combination of debt as dayn, hence implying a sort of primitive debt-contract and obligation, on the one hand, and the transfer of property as ‘ayn, on the other. Fictitious litigations were therefore nothing but simulated conveyances, and, in this role at least, they attempted to bypass the limitations of the canonical contract. This chapter would like to bring waqfs into the broader picture of all the contractual settlements discussed thus far, and question whether that form of “private property,” by tying several generations of beneficiaries together, created a contractual formula of its own that was similar in some respects to the ones discussed earlier (Chapters 3 & 5 supra).

The economics of waqfs

  • 1 Richard van Leeuwen, Waqfs and Urban Structures: The Case of Ottoman Damascus (Leiden: Brill, 1999) (...)

2Considering that the primary aim of the state was to ensure the implementation of its mīrī system, which at its core was a hegemonic rent-control formula, what was behind its “interference” in the waqf system? Even though jurists tend to date the origins of waqfs to the time of the Prophet, the system that the Ottomans had inherited from the Mamlūks probably goes back to what Marshall Hodgson had labeled as the “Shī‘ī century” (945-1118), when, in the Seljūq period, the custom of putting landholdings into waqfs so as not to subject them to government seizure became common. In other words, it was under the rule of the small militarized bureaucracies, and the a‘yān-amīrs system, that waqfs had flourished. In fact, waqfs, together with sharī‘a law and ūfī orders, had become the sole domain of the a‘yān and ‘ulamā’ as a protective shell against the excessive militarization of public and urban life and landholdings. But it was under the Mongols, and later the Mamlūks, that courtly control of waqf endowments became the norm. Besides attempting closer links with the ‘ulamā’, what was the economic significance of such an approach? With the peasantry being trapped in corvée labor, and the value of rent for both milk and waqfs in disarray, courtly control over a domain that kept the a‘yān-‘ulamā’ factions quasi-autonomous would only create a balance between state iqā‘ and the waqfs, whether public or private. And the Ottomans were no different: “by the end of the 16th century the state had taken almost total control of the field of waqf.”1 It was indeed that imbalance, due to the excessive assignments in landholdings, between various types of rents, that gave the imperial state a golden opportunity to intervene. That investment in public waqfs, however, seems to have lessened throughout the 18th and 19th centuries, while the traditional grip that the ‘ulamā’maintained over the sharī‘a courts persevered, and the dismal rents only contributed towards more procedural fictions in the courts (marad,long leases, dismemberment techniques, etc.), some of which were analyzed in Chapters 3 and 5.

  • 2 Ghazzal, L’économie, Chapter 5: “Le waqf comme forme de propriété privée.”

3Waqfs are typically presented either as a way to protect and consolidate private property from abuses perpetrated by the state, or else as a form of private property all by itself.2 In either case, the emphasis is on the status of the property per se rather than on the process that makes such arrangements possible. In the concluding section of Chapter 4, I argued that due to the difficulties in acquiring, maintaining, and transferring property, on the one hand, and in bypassing the rigidity behind the mīrī, waqf, and milk division, on the other, the emphasis was on contractual settlementsrather than the acquisition of property per se. It was indeed such arrangements that made possible the “possession” and “use” of very diverse properties for specific purposes and for limited periods, all of which would have been impossible had the requirement first been a specific title to the property itself.

4Because in such societies the freedom of exchange was very constrained, contractual settlements acted as a leeway to bypass such harsh limitations. To begin with, land and labor were both forms of capital, but since land was either mostly controlled by the state, or frozen into waqf assets, its free transfer was by and large blocked (interest loans were much higher than land revenues). The impositions on the transfer of land and its free circulation ipso facto translated to freedom of rent. In fact, even in urban areas, leasing a property for personal use implied above all paying a high advance to the ex-tenant as “compensation” for freeing the property. Finally, with corvée labor being the dominant type (which was cheaper than slavery), and whose value cannot be assessed in terms of a market price, farmers with a professional background were unable to go for free contractual arrangements either with landowners or other farmers, and opted instead for special sharecropping arrangements which typically gave them a higher portion of the produce than would have been the case under normal conditions. Similarly, the guilds controlled urban (or rural) labor by keeping a numerus clausus on their members, and by keeping production lower than demand as a leeway for controlling inflation and prices. Free laborers, not covered by the guild system worked on an equivalent of sharecropping contracts such as the istinā‘, where a premium was paid first in the form of raw-materials.

5The point here is that there was very little capital invested in acquiring the property itself, while the bulk of the costs went for working out the contractual settlements for using the properties. Such an arrangement not only prohibited free exchange, but also protected the domination of the imperial state, on the one hand, and the integrity of kin relations, networks, and neighborhoods, on the other. Waqfs should therefore be primarily looked upon as contractual settlements, which implies the following assumptions.

  • 3 Anīs Yayā, al-Shaykh Bashīr Junblā wa-taqīq waiyyatu-hu, 1775-1825 (Beirut: Dār al-Funūn, 2001)

61. Waqfs typically consisted of a portfolio of properties, which in principle should have been originally privately owned, but whose de facto ownership was much broader than milk, and might have included mīrī lands as well, or even older waqfs that have been reshuffled into newer ones. It is not therefore inaccurate to describe at least some of the acts of waqfs (waqfiyya,or kitāb al-waqf) as “wills” (waiyya), if not legally, then at least metaphorically in the eyes of their beholders. In fact, some of those acts were drafted when the founder was still at a very young age, but the waqf itself was enacted only years if not decades later, and sometimes even after the death of the founder. Such an arrangement could prove useful, especially if the founder was responsible for the management of his or her family properties, and if he or she was at the head of a community: the waqf, acting as a quasi-will, would then bring together the properties of the family, divert some of the revenues to common purposes (including the household itself, whose space often acted as a patriarchal lieu de rassemblement), and bolster the waqf with additional properties whenever necessary. Such was the case of the waqf (described as “will”) of Shaykh Bashīr Junblā (1775-1825) who was the main supporter, on the Druze side, to Bashīr II, then became his foe, only to be executed by the governor of Acre in 1825. Having built the Mukhtāra palace in Druze territory, he healed a divided community together to accept the leadership of Bashīr II in central Lebanon (who, in turn, had massacred many of his opponents and cousins to bring stability to his rule). He drafted his waqf-cum-will in a Damascus court in 1808 when he was only thirty-three, but it was only effectively enacted (or executed) in 1866 when the beneficiaries deposited a request to the Grand Council of Mount Lebanon to execute (tanfīdh) the founder’s will.3

72. Such properties were not necessarily contiguous, and in most cases they were not, as they included an amalgam of rural and urban properties without much relation to one another, except their existence within one portfolio under a single administration.

83. The act of the waqf itself, or the waqfiyya, was the contractual settlement that brought all the beneficiaries together, and was originally established by the founder. As it was extremely hard to change the stipulations of the waqfiyya upon the death of the founder (but generally permissible if he or she was still alive), the contract should in principle bring together future generations of beneficiaries. On the other side of the contractual settlement were the various tenancy contracts that the administration had to work out with individual tenants, whose number obviously varied with the varieties of blocked properties. But if the original contractual settlement among beneficiaries must have in principle remained permanent, the other contracts were to be negotiated with each individual tenant separately.

94. The important point here is to see how those individual tenants legally behaved vis-à-vis the waqf (and vice versa). The sharī‘a court records point to many litigations between the tenants and administrators (a sample of which was introduced in Chapter 3), where the tenant always faced the waqf in the person of its administrator rather than as an autonomous legal entity of its own. In other words, the waqf did not dissociate as a “juristic personality” or corporation on its own and was not treated in court as an institutional endowment with separate rights. It was rather the administrator who represented the waqf’s beneficiaries, and as a representative he or she simply followed the same contractual obligations that normally bind two parties together. Hence the administrator-representative was no different from other representatives commonly found in the courts’ proceedings. Had the waqf evolved into a corporation, it would have operated within a separation between the interests of its members and those of the institution. Thus, and despite some fictions that were common only to waqfs (e.g., the marad), the waqf lawsuits were no different from the mainstream, and besides the broad rule that “the ‘ayn is blocked and is not the property of anyone anymore, while the manfa‘a is the beneficiaries’ right,” there is not much that is specific to waqfs since all was geared towards stopping unlawful contracts.

105. From a legal point of view therefore, each one of the waqf’s properties was a unit on its own, and treated as such in court, while litigations were kept on a person-to-person basis. Thus, broadly speaking, waqf litigations followed the general procedures of tenancy contracts, but with the founder’s intentions in mind. The difference, however, must have been from the administration’s side, which did manage every portfolio as a comprehensive unit with its own bookkeeping activity. Such arrangements were helpful because a losing property on one side would have been compensated by a more prosperous one. In fact, a list of a waqf’s properties (for example, Table 6-1 infra), besides pointing to all the tenancy contracts at a glance, shows the great diversity in terms of location and nature of the properties. But such diversity would suffer from its own pitfalls in particular if the administration proves incompetent in handling such a heterogeneous body of properties.

116. What were then the advantages of placing all those properties together under a single regime? And besides the obvious advantages in status, rank, and prestige, which benefited an individual or family, what were the economic advantages? We already noted, as a general rule, that contractual settlements became a key component within the legal system to bypass the rigidity of property law, but waqfs, however, did add another dimension to such arrangements, mainly in their ability to minimize transaction costs over reasonably long periods of time. To begin with, the various tenancy contracts that the waqf had to work out with its numerous tenants were subjected to the same rules and regulations as any tenancy contract. The cost of negotiating and bargaining such contracts, which was always on a one-to-one basis, was therefore no different from other individualized contacts of a similar nature, but were not part of a waqf compound. However, the cost-saving device took place in effect at the level of the contractual settlement imposed on all the beneficiaries by the founder: for every group of beneficiaries there was an arrangement that had to be respected, while the modalities of the waqf compound were to remain unchanged—and herein resided precisely the cost-saving device, considering that it was unlawful to renegotiate the modalities of the contract among beneficiaries.

127. However, it remains uncertain how much in the final analysis waqfs were beneficial in the long run either for the beneficiaries and their family, or for the economy of the city or region in question. In fact, since the system consisted in blocking a number of properties from circulation indefinitely (at least in principle), already by the second generation of beneficiaries the revenues dwindled considerably, and the administrators had to begin searching for alternatives. In effect, since the whole waqf system rested for the most part on individualized tenancy contracts, those were, like all contracts of the same type, fettered by all kinds of limitations and were thus not bargained freely on the market; moreover, tenants always managed longer rents and forms of investments that gave them a leverage over the property as such (see Chapter 3 supra). In short, however reasonable the rate of inflation might have been, already the second generation of beneficiaries found itself in a situation where the real value of the rents were far below those accumulated by the first generation. Moreover, all those properties, which provided cheap rents for the populace, were blocked from circulation. It thus became a system, in parallel to the mīrī, over which contractual settlements had to be indefinitely worked out precisely because free exchange was not permitted.

138. Finally, it should be noted that being parallel to the mīrī system and subordinated to its hegemony, waqfs have suffered from the low rents imposed by the latter. In fact, and even though the “private” nature of waqfs and their type of produce (usually plantations and the like, while mīrī lands were constricted to grains) protected them from the abuses commonly found in state-owned lands, their rural properties tended to be leased to tenant farmers, thus pointing to a non-corvée kind of arrangement (see Table 6-1 infra as an example of this pattern). Still, the rent system was not competitive enough since it was dominated by the hegemonic mīrī, on the one hand, and a weak law of property, on the other. Thus, as contractual settlements were the normal route to define property rights, waqfs managed their existence by surviving in terms of arrangements that placed various non-related properties under a single administration. That could well have been the secret behind the institutionalization of waqfs: namely, that they were a means to absorb the low-rent hegemony imposed by the practices of the state.

Validating waqfs through routinized procedural fictions

14In our last Shihābī case (C 5-2), we encountered in the context of a fictitious litigation an example of a large transfer of properties within the same family. A paradox presented itself: even though the customary laws of Maronites prevented men from transferring property to women—in particular non-married or widowed women (including nuns)—women, at least as witnessed by those wealthy families in decline, acted as the safeguards for the transfer and conservation of large estates. Thus, even though our texts contained all manner of prescriptions against the inheritance by women, some cases ended up with a ruling that gave a particular woman the rights of full ownership (or the administration of a waqf, see C 6-1 infra). To be sure, such attitudes did have strong societal implications, but they hardly reveal anything of value from a legal perspective: those were for the most part procedural matters that did not involve genuine litigations, so that the legal role of women was minimal, in particular that such procedural fictions were obviously not restricted to women. In short, our cases, even when women “won” their case, do not point to any newly enhanced status of women within the court system, or in society at large for that matter: those were mostly procedural fictions where women acted as safe agents of transfer by acquiring a title to real property, and such acquisitions tended to reproduce the status of the upper classes. In fact, a key element in understanding such cases is the notion of “occupation,” wa‘ yad,of a disputed property. As we noted earlier in our discussion on land-tenure (Chapter 4 supra), anafīs accepted a de facto acquisition of title to real property by possession (wa‘ yad:“occupation”), but it neither specified a statutory period nor established the conditions. Had it done so, the method of acquisition would have been close to that of “adverse possession” in common law. But in the absence of a statutorily prescribed period and in a method to establish title (such as proof of nonpermissive use), it was left to the courts to work out the procedures, which either involved genuine litigations of nonpermissive and illegal use (see Chapter 7 infra), or, like many cases encountered thus far, fictitious litigations. In the latter, the plaintiff complained of unauthorized use, only to have the defendant winning her case on the basis that she had only possessed and used a property that was hers in the first place.

15In the two cases presented in the previous chapter, the adverse claimant who was in actual possession of the property was either defendant (C 5-1) or plaintiff (C 5-2). But in either case, the purpose was to restore ownership to the opposing party. In other words, there was always a side accused of hostile possession and, in fictitious litigations, that side lost the battle. Since all those cases simply restored titles of ownership within the family, was there any other way that such entitlements might have taken place? Apparently not, considering in particular the “fluidity” of possession over mīrī lands and the vagueness of anafī practice as to what separates possession from actual ownership. In fact, had there been precise statutes as to the prescribed period of possession and the like, the courts would have been flooded with cases of “constructive adverse possession” in which the claimants would have proven their possession of the property and their payment of taxes and rent over a period of time (limited by statute). But in the absence of such a method for claiming ownership, the courts were left with procedures of their own, ones that would typically begin with a debt conflict (though not always) through a concealment of the friendly nature of the litigation, with the sole intention of validating ownership. The waqf case that will be examined below, despite some basic differences between milk and waqf, nevertheless shares an essential part of the procedures that we have already seen.

  • 4 Ruled for only a year in 1841, after his cousin Bashīr II was sent toexile. The turning point was o (...)
  • 5 Beirut sharī‘a courts, unnumbered register and page numbers, 8 July 1852.

16[C 6-1] The waqf of Bashīr III4 is divided into two separate and consecutive cases, located in the same Beirut register, with the same date (20 Ramaān 1268/8 July 1852),5 with the same two parties, and their representatives and witnesses; and both were concluded with identical rulings: Why were then the two cases separately presented in court? The different sets of properties that each case included is an indication that those sets were the heart of the matter and hence had to be dealt with separately (Tables 6-1 & 6-2 infra); beyond that, there is no need to worry much, at this stage, as to why a litigation over a single waqf had to be brought to court in two separate, identical, and consecutive cases.

17The plaintiff, Bashīr III, was represented by Shaykh Yūsuf b. Anuwān Ghāzān al-Khāzin from the village of Ghasah; the defendant, Bashīr III’s wife, Ammūn bt. Emir Manūr Qāyid Beh Billama‘, had Yūsuf b. Mubārak Ghanūs al-Khūrī from Bakāsīn in muqāa‘at Jizzīn (in the Shūf) as representative. It was typical that whenever the defendant kept all the disputed properties for herself, she would share more of the burden of proof, and thus have the identity of her representative doubly checked. This was done, first, through a pair of witnesses, in this case from villages and farms south of Beirut (where the properties were located), which confirmed the authenticity of the act of representation. But apparently that was not enough (since, for example, someone with an interest in the waqf could come years or decades later and reject the representation altogether by bringing two other witnesses), a legal trick was needed to confirm, once more but more thoroughly, the identity of the representative and his exclusive contractual rights for representing his client. Hence the “debt”-claim made by the plaintiff’s representative to the other party’s representative.

You owe his excellency, the husband of your client, the aforementioned Emir Bashīr, the sum of ten piasters as a legal debt [dayn shar‘ī] and it is now time to refund it [āla al-ajal]; he asked me to collect it from you, to request it, to litigate, and do whatever necessary.

18Interestingly, as in all previous cases that involved a debt from their very beginnings (C 3-3 & 5-1), the debt institutes a contract of sale between the two parties, in which the debtor owes in his dhimma a sum to his creditor to be refunded at a specific date. anafīs do not require any written document for that type of a transaction (and our cases never did include one), and a loan-with-interest being illegal, our cases never added an interest to the debt in question. That entailed, however, that a refund date be established ab initio with the contract, and the implication in the above quote is that the moment of refund coincides with the date of the hearing itself. In Roman law such a contract, which created a type of creditor/debtor relationship (known as pignus), was “real” because it was derived from the Latin word for “thing,” res. In our case here too, the contract was concluded over a “thing”—the ten piasters, in itself a māl mutaqawwam. But besides establishing the representative’s identity and his right to represent his client and litigate, and besides a possible anthropological reading of such transactions (as gifts and counter-gifts), was there any other benefit in having a debt-contract right at the beginning of a waqf case? If we agree that the waqf litigation in the second part was fictitious and nothing but a simulated conveyance, then the case itself probably sealed a contractual settlement between plaintiff and defendant involving a transfer of property-titles. The defendant’s representative, being already involved in a contractual arrangement with the plaintiff, will be the one to seal another contract between plaintiff and defendant, one that will give the latter many titles over the plaintiff’s properties. That arrangement could be a device to set the final contract on more secure grounds.

19The subject of the “debt” is then forgotten at this point, and, in a step that would look surprising to the uninitiated, the text moves immediately to the unrelated topos of the waqf of Bashīr III and its list of properties, and then to the conditions put forward by the bequeather on his endowment, and finally to the fact that the bequeather, who had appointed his wife to the status of the waqf’s administrator, would like to revoke that part of the waqf’s policies. Up to this point, it was still the plaintiff’s representative forcing his claim (which occupies the greater part of the document), while the “debt” issue comes back only towards the end of the document once the plaintiff’s representative claims were fully completed.

Yūsuf Mubārak, the defendant’s representative, was asked to reply [to the plaintiff’s claims], and upon that request, he replied that he acknowledges the legal debt [to the Emir] whose [refund] time has come; and [he also confirms] the aforementioned benefactor’s waqf on the established conditions, but denying that the benefactor had ever requested from Shaykh Yūsuf to represent him [in court] ...

20At this point, the plaintiff’s representative furnished two witnesses that confirmed his appointment by the Emir, and the judge having accepted their testimonies, requested from the defendant’s representative to refund the Emir for the original debt through his representative. The judge then proceeds with his final ruling (more on this later). The essential features of the debt-contract are revealed in the concluding passage above: first a denial of the debt, followed by its acknowledgment by two witnesses, which also implied accepting the plaintiff’s representative rights; that was soon to be followed by another acknowledgment regarding “the benefactor’s waqf on the established conditions.” In many fictitious litigations, including homicides (Chapter 11 infra), it was customary for the defendant, who will eventually be the sole beneficiary of the contractual arrangement, to give his approval over the plaintiff’s claims precisely because she will benefit from that contractual arrangement.

21As with the previous case of Bashīr II (C 5-1), the contentof the debt-procedure is unrelated to the case as a whole so that the essential purpose of the “litigation” lies elsewhere. Again, the procedural order between the substance of the case (part II) and the debt (part I) needs, for our purposes, to be reversed to understand the full implications of such procedures. Second, pending on whether a case covers a waqf, inheritance, or property transfer, there are minor differences in the way the major arguments of the “debt” are structured. As the waqf of Bashīr III shows, the debt-contract is truncated into two parts: one comes early, even before the arguments of the body of the litigation have been set, and soon after the disputants and their representatives have been introduced; then, a second part, which completes the first and serves as its conclusion, is inserted prior to the final ruling. In a preliminary claim, the plaintiff’s representative poses the existence of a debt-contract between his client of the defendant’s representative only to request a refund, and only then is the “debt” is acknowledged by the other party prior to the judge’s request for a rapid refund. Between the two are inserted a list of properties and the plaintiff’s claims; hence the division of the debt-contract in two parts has to do with the defendant’s representative waiting for his opponent to conclude his exposé to the court before himself replying. The plaintiff thus becomes at the same time a creditor towards the defendant’s representative, and the founder of a waqf involved in a dispute with the defendant. In other words, the plaintiff is placed within a contractual relationship towards both the defendant and his representative, and both contracts are contested, hence the court proceedings. However, the minimal value of the debt (ten piasters) vis-à-vis the fifty or so waqf properties, places the two contracts in an uneven position. But the sole purpose of such procedures was indeed to place the defendant’s representative within a contractual framework with the plaintiff: thus, plaintiff and representative already knew each other prior to the hearings, in the same way that the plaintiff also knew the defendant well enough (in this case, his wife). Considering the importance of the transaction—the defendant will be appointed sole administrator and beneficiary of her husband’s waqf—one in which the representative will play a crucial intermediary role, prior knowledge between plaintiff and his opponent’s representative “seals” the case on more secure grounds since it establishes the latter as a known and safe person—one that can be trusted, even by the plaintiff himself.

Figure ‎6-1. Debt-contract in waqfs (C 6-1).

Figure ‎6-1. Debt-contract in waqfs (C 6-1).

Commentary:Compared to the debt-contract in Figure 5-1, the only modification here is that it was the administration of the waqf that was transferred from husband (plaintiff) to wife (defendant) rather than the properties themselves.

22The debt-contract is then followed by the substance of the case, that is, the subject matter of the waqf itself, and as soon as the debt was claimed, the text proceeds with a delimitation of the waqf, its original purpose, properties, beneficiaries, conditions, and finally the defendant’s case, the wife of Bashīr III, currently administrator (procurator) of the waqf, which was the sole aim of the hearings. Since a waqf, in its most obvious sense, means detention, we are told that the founder Bashīr III decided at some point (no exact date is specified, which could be an indication that no original waqfiyya ever existed, and that the main purpose of the present arrangement was precisely to create one: fictitious litigations could indeed replace nonexistent waqfiyyas) to put on hold, indefinitely (waqqafa wa abbada wa abasa wa khallada), a set of properties which are all listed.

23The list of properties together with their preliminary system of identifying their locations (in terms of the other properties surrounding them) is a anafī requirement. The first set of forty-five bequeathed properties (there was a second set of six properties which were part of another consecutive case, which will be discussed later) were all located in “farms” and little villages on the southern coast of Beirut. Following the exact order of their original listing, two were in the “farm” of ārat urayk, five in the “farm” of Suaylah, three in Bourj al-Barājinah, four in the “farms” of Khandaq Sha‘bān, nine in the “desert” (and village) of Shuwayfāt, and the rest, a set of twenty-two properties, were all in the village of adath. As many of the distribution of properties of the Shihābs clearly show, the most prestigious family in Lebanese politics had invested a great deal in coastal lands, many in the vicinity of Beirut, which were essential for the production of silk.

  • 6 For the specific meaning of these terms, see infra Table 6-1: “Waqf of Bashīr III (1).”

24Most of the forty-five properties (or “lands”), described as mazra‘as (“farms”) or aoudit (pl. ‘awād),6 had mulberry plantations that were used in the production of silk in Mount Lebanon. Those farms, which were owned by Bashīr III personally (otherwise their conversion into waqf would have been impossible) were mostly leased to middle-class Christian farmers, and were hence designated by the individual names of those farmers. Such a personalization of the property is an indication of the importance of middle-class farmers in Mount Lebanon and in the coastal areas between Beirut and Jūniyeh: for one, they were more sedentarized than the rest of the farmers and peasants in Greater Syria, and thus kept their leased properties for long periods (hence the identification by their names); for another, they maintained stronger relationships with their landlords and were protected by rights and privileges.

  • 7 Ibn Khaldūn already made the distinction between “pure” ‘aabiyya lineages which he referred to as (...)
  • 8 An opposing societal arrangement would be the eighteenth-century Pacific Islands societies as prese (...)
  • 9 For example, Bashīr III’s wife (the defendant) was from a leading Druze family; his cousin, Bashīr (...)
  • 10 In Table 6-1: “Waqf of Bashīr III (1),” property #10 was surrounded at both its north and west side (...)

25A look at the properties surrounding the ones owned by Bashīr III reveals a familiar pattern: one family, the Shihābs, owned the great majority of these lands; their ownership was, however, not in one hand but divided among brothers and sisters, husbands and wives, and cousins, all from the same clan. The other properties were mostly owned (or “leased”) to (middle-class?) Christians, or even to rival Druze groups such as the Junblās; but apparently in both cases, when a land was owned by a Shihāb or someone from the “outside,” a pattern of keeping “kin” alliances (ahl) active ensued even when those relatives were from another religious group or lineage, such as the Junblās. Indeed, the notion of ahl is flexible enough so as not to limit itself to some “pure” anthropological notion of kinship in its restricted sense of “pure blood relationships.”7 In short, the ownership and use of property was not an openly competitive market for the free “possession” of land and its resources, but rather followed similar rules to those that determined political alliances, which in turn drew heavily on kin. The association of the distribution of land, both among the ‘āmma, the muqāa‘jīs, and local lineage formations, gives land historical and political connotations, whilst collective histories of submission to stronger families or lineages. Thus, hierarchical solidarity was neither achieved through a direct submission to a ruler or a local authority, but by means of complex land-distribution patterns and their respective lineages and histories of domination: even taxation assumes its share in consolidating power-relations.8 Thus, the Shihābs, together with their “relatives” (such as the rare families with whom they inter-married and exchanged women)9 were able to dominate, in terms of land ownership, areas with a majority of Druze and Shī‘ī populations.10 Land ownership, at least for the notable families, was therefore possible in areas not traditionally theirs, as an outcome of alliances among relatives.

26Then follows a crucial passage in which the conditions (shurū) of the waqf are outlined.

This waqf was erected by my mandator [Bashīr III] for himself, and it shall remain so as long as he is still alive, without a partner [mushārik]. Then, [after his death], it will be transferred to his children, the males to the exclusion of the females [al-zukūr duna al-ināth]; and then to their children, and then to children of their children, and then to their descendants [nasl] and offspring [‘aqib], always following the same rule, from one generation [] to another, the males to the exclusion of the females in all equality [bi-l-sawiyya]. And then, after them [that is, after their death, or in the case of the nonexistence of male beneficiaries from the Shihābs], the revenues shall go to the poor of the Maronite branch of the grandfather of my mandator [Emir Milim, r. 1729‑54], living in Mount Lebanon, the males to the exclusion of the females, [and the revenues should be] equally distributed [bi-l-sawiyya]. Then, after them, to the poor of the Maronite branch of the Shihābs [fuqarā’ āl-Shihāb al-mawārinah] living also in Mount Lebanon, the males to the exclusion of the females, equally distributed; and then after them to the poor among the Maronites [fuqarā’ ā’ifat al-mawārinah] of Mount Lebanon; and finally, to all the poor in general [al-fuqarā’ mulaqan] until God inherits from the earth and its inhabitants, because He is the most prestigious of all heirs.

  • 11 The implication here is that, in order for the waqf to be valid and for Ammūn to be its sole admini (...)
  • 12 At this point the document repeats the same conditions as the first part above until all the possib (...)

But if my mandator has no male beneficiaries, and no children or male descendants [ansāl], then [the revenues] of the waqf should go to your mandator [the defendant], Lady Ammūn, already introduced to the court, for the rest of her life, on the condition that she never marries and that she remains without partner [sharīk] and that no one has disputed [nāza‘a] the waqf with her.11 And then, after her, that is, if she gets married or after her death, the waqf shall be transferred to her common daughter with the Emir Bashīr, Lady ‘Alyā, and, eventually [if Bashīr and Ammūn have more daughters in common], the revenues should be equally distributed among all their daughters until the end of their lives on the sole condition that they do not marry from outside the Shihābs. And then, after their daughters, to all their children, the males to the exclusion of the females among the Maronites living in Mount Lebanon. And then to their children, the males to the exclusion of the females, and so on from one generation to the next. And then, after them to the poor of the Maronite branch of the Shihābs...12

  • 13 Did waqfs pay “taxes” to the fiscal authorities? This was unlikely when the waqf was khayrī, that i (...)

27At this point, the text puts forward several other possibilities that some or all of the potential beneficiaries might be faced with, even though the remaining conditions do not place the text on new grounds. Thus, when no male descendants among the agnates of Ammūn and ‘Alyā are available, the legitimate beneficiaries would be any of the male descendants of the Shihābs, then the poor among them, and so on until God becomes the only designated beneficiary. The text then posits the possibility of a first generation of male beneficiaries, so that had Bashīr III any son that had died, the revenues would have gone to the children of the deceased, and, if not, to the “closest” among the “relatives” (ahl). The text goes over few other conditions concerning the “maintenance” of the waqf and payment of mīrī dues, the māl sulānī, to the fiscal authorities:13 both maintenance charges and state “taxes” should be deducted from the gross revenues. Since Bashīr III erected the waqf first for himself—he was thus the first and only beneficiary—the revenues, as long as he was alive, were entirely his; then after his death, they should be shared among all male beneficiaries (if any). As to the administration of the waqf, it went first to Bashīr III himself, then after his death, to the most “mature” male (al-arshad), and if none is present, Ammūn should become the sole legitimate administrator; finally, after Ammūn and her daughter, and at any moment in time, when no male beneficiaries are present, the administration should be in the hands of the Maronite Patriarch.

28All the arguments that formed the conditions of the waqf are structured along a single question: “Is there a male beneficiary?” Since Bashīr III had no male descendants, and was survived by his wife and daughter, the entire line of arguments on the left-hand side of the chart became ipso factohypothetical—at least for two generations—since the possibility was open that, if ‘Alyā would leave with no male descendants, the waqf would go back to the Shihābs and would lose its specificity vis-à-vis Bashīr III and his owndescendants. The same would have happened had all of ‘Alyā’s malebeneficiaries left without any single male descendant.

Figure ‎6-2. Waqf of Bashīr III (C 6-1)

Figure ‎6-2. Waqf of Bashīr III (C 6-1)

Commentary:The above diagram is typical of many waqfiyyas, whether of Muslims or non-Muslims, and is striking in its attempt to avoid linking women to the group of beneficiaries, even though there was a tendency among Muslims to apply the rules of inheritance to waqfs also (the anafīs do not indulge in making such rules mandatory). The diagram is structured on a single question: “Is there a male beneficiary?” Yet, and despite this general flight from women, in some cases (C 5-1, 5-2 & 6-1) they did enjoy the full possession or administration of properties that were transferred to them through sharī‘a courts rulings.

29Broadly speaking, the conditions of the waqf follow a familiar pattern of family endowments where every possibility is taken into account. The conditions begin with the specific, the immediate descendants of the founder, and gradually lead to the more general: the Shihābs, the poor, and finally God. That movement takes an opposite direction from the “public property” of the sultan, which became his “own” through a polity of conquests, acquisition by force, or simply, as Ibn Nujaym put it, by direct purchase (via an intermediary) of kharāj lands whose owners died without heir; in contrast, the “private property” of individuals regresses from the individual himself to his family, then to the more “public” until it goes back to its original source of creation, God.

30Waqfs, even though in themselves a form of private property, give their founders the possibility of a radical departure from the constraints of Islamic rules of inheritance. anafī jurists, beginning with Abū anīfa, advised that inheritance rules ought to be preferably applied (yustasan) to all the beneficiaries of a waqf, but by no means made it mandatory. Maronites in particular, who generally kept women outside property, inheritance, and endowments, found in anafī courts the normative rules that partially overlapped with their own customs. For reasons outlined in the essay by Ibrahim Aouad (see Chapter 5 supra), the conditions of the present waqf clearly manifest a “suspicion” towards women, considered as an element open to the “outside.” But even with the restrictions placed upon women by denying them the status of beneficiaries, the waqf of Bashīr III, for the first two generations only,was administered and appropriated by women, the wife and daughter of the Emir. And while few conditions were placed upon the male beneficiaries (when available after the third generation), the women had always, if they decided to marry, to restrict themselves to the Shihābs. But this applied only to ‘Alyā and her potential sisters, since for future generations no room was left for women to become administrators or beneficiaries.

  • 14 For an historical and anthropological look at the notions of property, violence, status, and honor, (...)

31A property, being a commodity for exchange, contributes towards status and honor.14 The accumulation of properties, their size, location, type of production, etc., taken together were all status oriented. Not only is it hard to imagine an influential family without an impressive array of properties, but the hierarchy, among the big muqāa‘jīs, was closely associated with how successfully they managed their properties. Because women were rarely from the same “affiliation” as their husbands, they could be a source of dishonor by standing by their fathers, brothers, and cousins, in a moment of crisis; and, if they inherit property at an early stage of their marriage (after, for example, a premature death of their husband), they could legally dispose of those properties at their will (witness how active usn Jīhān became upon her husband’s death), or they could opt for another marriage from someone “outside” the clan, thus increasing the chances for a “loss” of these properties.

32Status and honor could also shed some light on the gradual ascension of beneficiaries from Bashīr III himself to God. Since properties were not looked upon primarily in terms of their exchange value, they rather belonged to a world of representation where the property and its beneficiaries were part of a coherent system of signs. Representations of property did not solely accumulate in terms of signs of labor and wealth; rather, the system of signs and representation was more concerned with such things as “family” and “community,” the rich and the poor within the same “community,” and finally God as the ultimate closure of the system since He is the source of all wealth (hence, property). Furthermore, even when a woman will be, for a generation to come, the only beneficiary (and administrator) of a waqf, the conditions proceed to establish women as the “outsiders” to the system of beneficiaries: “family” and “community,” as a system of signs, do not include women-as-beneficiaries, as even “the poor in general” were considered more trustworthy a category than women.

33In his concluding remarks, the plaintiff’s representative addresses himself directly to his colleague, the representative of the wife of Bashīr III.

His wife, your mandator, has participated [ishtaraka] with him in the administration of the waqf until it became officially registered [tasjīl] and until it was declared to be legal [ṣḥī]. [Bashīr III] had then legally transmitted [sallama] and left [takhliya] to his wife this waqf. And now, my mandator would like to re-appropriate [rujū‘] this waqf for himself so that he might exercise his legal right of proprietor [mallāk], and this, according to the opinion [qawl] of the great imām Abū anīfa. I therefore request from you, in my authority as the legitimate representative of the wāqif [Bashīr III], to give me back the sum [that you borrowed from Bashīr III], and to request from your mandator to convey [taslīm] the waqf to my mandator.

34And, finally, the crux of the argument,

At this point, Yūsuf Mubārak, the representative of Lady Ammūn, stood firm [tamassaka] in his previous position [concerning the legitimate transfer of the waqf to Ammūn] and, together with his mandator, recalled the opinions of the two great imāms and jurists, Abū Yūsuf and Muammad Abū al-asan [Shaybānī], thus proving the validity of the waqf [waqf aī] and its legitimate nature. This conflict, presented to our qāī, lasted for a long time, and the latter, after long thought and meditation, decided to rule in favor of the defense because he found the arguments of the defendant more convincing. He thus proclaimed the validity of the waqf...

35The importance of these two passages stems from the fact that they are indeed generic to many other cases and have nothing specific to denote of our document here. In effect, they establish a “type-contract,” one of the seven listed in Table 2-2 infra, with a specific procedural fiction which I will refer to as the “three-founders technique.” The purpose of the concluding remarks, written in a classy passe-partout style, was to challenge first the validity of the waqf as a whole and call into question the right of the founder to revoke all the clauses of his original waqfiyya, namely, concerning the change of status of all those properties from milk to waqf (the plaintiff wants them back to their original milk status) and the appointment of the founder’s wife as administrator. The text then plays on a conflict of opinions between the founders of anafism. The plaintiff’s side brought forth the arguments of Abū anīfa who ruled in favor of bequeathers who had revoked their original waqfiyya; while the defense reminded the court of the two opinions of the disciples, Abū Yūsuf and Shaybānī, who both had a contrary opinion to their master. The judge, even though he never stated why he himself favored one opinion over another, ruled in favor of the defense.

36This set of arguments, very common in nineteenth-century court documents, was framed among anafīs since the sixteenth century (see below), and their purpose was to legalize the irrevocability of the waqf, which implied the following: 1) To confirm that the original properties of the waqf were milk in the first place, that is, were “owned” by the plaintiff. That was an important part of the package because of the ambiguous status of most rural lands—mīrī or milk?—and because many mīrī lands had their status illegally transferred to milk through ingenious court procedures. In fact, the plaintiff’s representative made the claim, at some point in the beginning, that his client decided to transfer a set of properties which were legally his own (jāren fī milk-ihi wa-tata mulaq taarruf-ihi al-nāfidh al-shar‘ī); but no formal “proof”—either in the form of a written ujjaor witnesses—was ever presented. However, the “ownership” of these properties was indirectly certified by the defendant’s representative who accepted all the terms of the waqf (iḥḥat al-waqf) as presented by his opponent (he solely questioned his opponent’s right of representation: thus, the message was accepted but not the messenger; then, once the issue of representation had been settled—by means of two witnesses—the message was then both accepted and certified in a way hard to revoke). 2) Having established that the properties were indeed his own, the plaintiff’s next concern was to legalize the irrevocability of his waqf in a similar way. In fact, the two steps are closely related and even indistinguishable since the sole purpose of the operation was to make it sound as if the set of properties, whether in their original milk or waqf (or even possibly mīrī) status, were indeed the property of Bashīr III. (This was the period prior to the Land Code of 1858 and the 1862 court reforms which transferred the registration of purchased lands to a specialized land-registry and thus took them once and for all from the domain of the sharī‘a courts.) 3) Finally, in conjunction to 1) and 2), the following procedures secured a de facto waqfiyya: the conditions of the waqf had been clearly exposed and their approval by the court was part of the general deal; an essential part of the conditions was the establishment of Ammūn as the sole actualadministrator of the waqf; the properties were listed with their boundaries, and “tenants” (or “lessees,” whenever applicable); and, thanks to the fictitious debt procedure, the plaintiff’s representative’s right to represent his client had also been confirmed by the court. Thus, in toto, Bashīr III had the status of his waqf validated. And because this was a litigation that involved a formal khuūma, the judge’s ruling was more than a regular approval: it was a total confirmation that would be difficult to revoke in the future (by potential beneficiaries, for example).

The origins of the “three-founders” technique

  • 15 Document dated 13 Rabī‘ 1259/April 13, 1843 (Beirut), and reproduced in assān allāq, Awqāf al-Mus (...)

37[C 6-2]Due to the importance of this type of waqf procedure, which establishes the irrevocability of a waqf and its ubiquitous nature in the sharī‘a courts, it is worth having a second look at yet another similar case before closing this chapter. The founder was here Amad usayn al-Qabbānī, whose waqf was composed of core properties as such, in addition to an “annex (tābi‘).” As we shall see, the distribution of revenues among beneficiaries was crucially different between the waqf itself and its annex. The waqf per se was composed of two different sets, first the family home and its related space, all located in Sūq al-addādīn (“Blacksmith Market”) by the road leading to the port of Beirut, while the second set, consisting of all the built areas of a garden, was in the neighborhood of the Bāshūra cemetery. Finally, the annex was in Bustān Munayminah in Sūq al-Qun (“Cotton Market”), located in the Christian neighborhood (maallat al-naāra), all of which were in Beirut intra-muros.15Among the listed properties, one is worth keeping our eyes on since it will be the source of the current litigation: half of a well that was part of the compound of the familial home is described as a nif shāyi‘, from mushā‘, meaning a jointly owned property (or a contingent indivis); but no indication is given as to who were those “sharing” that part of the property. In a way very similar to the waqf of Bashīr III (C 6-1), the founder created an endowment first for himself, and then, regarding the familial domain itself, for his male descendants and their descendants, the males only to the exclusion of the females; and, if no males were available, the revenues of the endowment would go to the poor and needy of the people (ahl) of the aramayn in Mecca and Medina. Interestingly, even though much smaller, the annex followed a different pattern of distribution from which the women were not excluded, but still underprivileged.

38The text then specifies that the endowed properties were originally “owned” (as milk) by the founder either through purchase or inheritance. Thus, the house of Sūq al-addādīn was known to be his father’s; as to the bustān, located close to the Bāshūra cemetery, it was “known” to be that of the wāqif himself; also included were the īwān and murabba‘ in the same location. Hence, all these properties were dedicated to the waqf, with the founder himself as the first beneficiary, and, regarding the familial domain, to be followed by his male descendants (three sons), while his seven daughters could live, as long as they were not married, in their father’s house and use for their own convenience the built areas in the bustān; but they enjoyed no right whatsoever in the revenues of this part of the waqf at least; in short, unlike the waqf of Bashīr III, the women were here were only partially excluded.

39There was also an “annex” (tābi‘) consisting of a couple of additional properties: another bustān, and a warehouse, both located in the “Cotton Market” in the Christian neighborhood of Beirut, and described to be ready for the ghallatu wa-l-istighlāl, that is, to be rented and to have their rent extracted. The beneficiaries for this “annexed” part were first, the founder himself, then his three sons and seven daughters—the females should have half of the males’ shares; but upon any of the females’ death, her revenues would be transferred to the males only: thus, her sisters and descendants (if any) would not be permitted to share any of the revenues. More specifically, the conditions stated that women, “and those of higher rank (fa-man fawqihā) [that is, their brothers],” have a right to the revenues; and if anyone of the beneficiaries would find herself/himself on her/his own, that is, without anyone else of the same “position” (daraja) or generation (abaqa), then the revenues would go for this one person only.

40Thus the founder’s seven daughters were given half of the revenues for that part of the waqf only, but even though that privilege was granted to them only, it was withdrawn from their descendants. Moreover, the share of a deceased daughter would be added to those of her brothers while the sisters would be excluded. But if the founder’s daughters were discriminated against when it came to their own descendants, at the other side, regarding their brothers’ descendants, there was no specific clause that would cut the benefits from the female descendants. What the founder created—at least for the annex—was a complex system of checks and balances dividing all his beneficiaries along upper and lower generational lines, and their degree of “closeness” to one another. Consider the founder as generation 1, and his three sons and seven daughters as generation 2, and all the children of the latter as the third generation. As long as the founder himself was alive, he would be the sole beneficiary. Upon his death, the revenues were to be divided for a total of thirteen shares (seven for the females and six for the males) that would have included all the beneficiaries of generation 2, assuming all were alive at the time. Since those of a lower generation are not eligible as long as any higher one is still alive, generation 3 would not yet be entitled for its portion of the revenues. So the general rule is that each generation, males and females, benefits individually, including the one above (which, in principle, should never occur because the one above would then be the only one entitled) but excluding those below. In principle, the females in generation 3 should be eligible, on the basis of half the share of their brothers, once no one is left in 2. As long as one of the brothers and sisters in generation 2 is still alive, he or she will be the only beneficiary. Suppose now that a male beneficiary from generation 2 dies without having yet benefited from the waqf (because the founder was still alive), then, upon the founder’s death, in addition to all the beneficiaries in generation 2, the children of the deceased male in 2 would share the revenues with their uncles and aunts: that was the only way for beneficiaries from two different generations to share the revenues. There are still few other twists and turns in the conditions set by the founder for his annex, but they are not crucial for an understanding of the core of the case, which is yet to come.

41In fact, as was customary in fictitious litigations, the contractual elements are set first only to be challenged, either in toto or partially, by either the plaintiff or defendant. In the case of waqfs, the contract consists in delimiting first of all the milk properties to be converted into waqf, then the conditions must be clearly established, and finally, an administrator must be named for each line of beneficiaries, usually the arshad. Since all those contractual elements have already been validated—in lieu of a waqfiyya—the waqf now needs to be made irrevocable, hence the fictitious litigation. We are told in the last concluding part of the document that the founder decided to associate with him in the administration of his own waqf a certain āli b. Mutafa Qurunful as partner (sharīk). And then the text adds, that once the founder furnished all his conditions, “it occurred to him [‘anna] to withdraw [rujū‘] everything he had set for his waqf so that all its properties revert back to their initial milk status.” He then challenged his partner in a formal litigation thus claiming the non-validity of the waqf on the basis that some of its parts were joint-property (mushā‘). He upheld his view “on the basis of an opinion by the imām Muammad Abū al-asan [Shaybānī], one of the two companions, regarding the invalidity of the irrevocability of the waqf [‘adam luzūmi-hi], and this in turn was based on an opinion by the great imām Abū anīfa.” The partner-defendant for his part challenged with an opposing view based on Abū Yūsuf which stated the validity of a mushā‘waqf, and he added that both Abū Yūsuf and Shaybānī, in opposition to their Master, argued for the irrevocable nature of all waqfs once their conditions were stated. In the presence of fourteen witnesses, the judge ruled in favor of the partner and accepted the condition of irrevocability of the waqf.

42Needless to say, this case represents only a variation from the waqf of Bashīr III (C 6-1) since in both the purpose of the procedural fiction was to establish the condition of irrevocability known as luzūm.The differences are more formal than substantive: (1) Since in the second case the founder introduced his waqf all by himself in court, there was no need for the debt-procedure anymore whose purpose was to identify the representative. (2) The fictitious litigation in the second case occupies only the concluding part of the text, so that the main part is devoted to the waqf itself and its conditions. (3) Besides the condition of irrevocability, which was the raison d’être for both litigations, the second case stumbled on the issue of mushā‘,which had received a favorable opinion in the name of Abū Yūsuf.

43It is precisely the debate over the irrevocable nature of a waqf that points to the possible nature of a fictitious litigation. In fact, among the three founders of the anafī madhhab, it was only Abū anīfa that championed the idea of revocable waqfs. The founder may at any time revoke either partially or totally the conditions of his waqf on the basis that, as long as he is alive, he owns the ‘aynof the trust, which then passes to the beneficiaries. Both Abū Yūsuf and Shaybānī, however, thought otherwise: waqfs are irrevocable ab initio.The trust becomes irrevocable only by a judge’s ruling as a procedural outcome to a fictitious litigation whose prototype is the case of the waqf of Bashīr III. In what became standard routine in Ottoman times to make waqfs irrevocable—a procedure which, in turn, was recommended by Qāīkhān—the founder-plaintiff, based on Abū anīfa’s opinion, would claim in a fictitious litigation that he decided to revoke his waqf and modify some or all of its conditions. The administrator-defendant, for her part, would protect her position by means of the two disciples’ opinions on the irrevocable nature of waqfs, and the judge would rule in her favor. As early as the mid-sixteenth century, the muftī Ebu’s-su‘ūd recommended the procedure on the following grounds.

A person wishes to convert some of his property to trust. How should he do this to ensure that the trust is irrevocable?

  • 16 Quoted in Imber, Ebu’s-su‘ud, 148.

Answer:He should convert it to trust, assign its expenditures in perpetuity, and deliver it to the trustee. He should then go to the judge, and give the details of how he has assigned the expenditures and delivered [the trust] to the trustee. After the trustee has confirmed [this], he should demand the property back from the trustee, saying: “It is not trust in the opinion of Abū anīfa. I have retracted and will take [back] my properties.” The trustee should then say: “It is binding according to the two Imāms [i.e. Abū Yūsuf and Shaybānī],” and not return the property. The judge, for his part, should say: “I have decreed that the trust is valid and irrevocable,” so that it does not revert.16

44To my knowledge, this is one of those rare opinions that directly endorses a procedural fiction that became standard in sharī‘a documents. It remains to be seen, however, whether such an opinion was the result of a consensus among scholars or simply endorsed on a de facto basis from court practices and the like. But it leaves us uncertain as to the origin of all fictitious litigations as presented in this study: Where did they originate from? And is it possible that they solely emerged from the court practices and later endorsed by jurists? If judges had the power and were able to create procedures on their own, the courts would then be assuming more than simply “applying the law.”

Debts, contracts, and the status of waqfs

45When an obligation involves a debt consisting of a cash sum or a fungible commodity, it is known as dayn. When the obligation involves specific non-fungible objects, it becomes a ‘ayn. anafī practice looks primarily at the exchange of commodities in terms of their exchange as objects rather than as personal (subjective) obligations. Whenever the obligation involves non-fungibles, a period for delivery is invalid. Only fungibles could be associated with a period of delivery.

46For all the debt-contracts in this study, a couple of reminders. 1) The first part of the litigation involves a dayn, or the exchange of money for money, while the second part, which constitutes the essence of the case, involves a ‘ayn or transfer of properties. 2) The dayn is between the representatives of the plaintiff and the defendant, while the ‘ayn is between the plaintiff and the defendant. The plaintiff thus transfers his or her properties without receiving any compensation, whether monetary or otherwise. 3) The representative plays a key role in this transaction, and in order to receive a full authority to complete the transfer which is granted in anafī practice under certain conditions, the fictitious litigation against the plaintiff-creditor would identify all the representative’s privileges. (When the obligation involves labor it is referred to as ‘amal.)

  • 17 Chehata, Théorie, Ā 260, p.170.

47The notion of dayn involves an obligation to deliver.17 When restricted to its original idea of credit or monetary debt, it does not yet involve an obligation to deliver, similar in that respect to the creditor/debtor notion in Roman law. The debt obligation could either be the outcome of a contract or a reparation for a damage. Knowing that the tendency among anafīs has been to abstract from internal motives in order to reduce a contract to its manifest utterances, not much is to be expected in terms of an emphasis on the contractors (persons) themselves. Since a debt involves a contractual obligation, what is then the foundation of a dayn-contract? Debts are usually associated with dhimma, a safekeeping device that involves the responsibility of the debtor. Thus, the debtor has in his “consciousness,” dhimma, the sum of money which is the property of the creditor (māl ukmī), and that needs to be reimbursed to the latter. A debt is therefore a de facto contract, and is probably the earliest form of contracts since it presupposes an immediate reciprocity. A gives B a sum of money, and unless it is a donation or gift, or unless B made a promise to buy something from A or provide him with a service (such as the use of a shop), B is expected to give it back at some moment in time. Debts are therefore by definition the simplest of all contractual forms (in particular when no debt-with-interest is involved) since it involves nothing but a remittance of a sum of money. A would not have given B the money unless B requested it and promised to pay it. By contrast, a contract of sale already involves several complications over debt. If A sells a commodity to B, B at a minimum must have approved the price of the commodity and the terms of payment; he also needs to check on the quality of the commodity upon delivery. Moreover, dayn-contracts are ideal from the anafī viewpoint because they are bilateral and synallagmatic: not only an equal value is exchanged back and forth, but the creditor-promisee is promised by the debtor-promessor that he’ll eventually reimburse his debt, so that the initial step receives something in return.

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

48Since contracts in general are not necessarily concluded in writing, the only way for a court to confirm a debt is by means of the usual witness-procedure. The plaintiff claims that the defendant owes him “in his dhimma” a sum of money, and brings two witnesses as evidence. As the simplest of all contractual forms, debt became in Ottoman times a favorite of the sharī‘a courts to confirm a representative’s rights and duties, as assigned by his mandator (the plaintiff), prior to conducting a hearing. In fact, the debt-procedure became in many fictitious litigations a preliminary step towards establishing a ‘ayn-contract, so that the debt itself was synonymous for taking action over the (disputed) ‘ayn. Thus, in a way strangely similar to sixteenth-century English common law, the debt takes on a double meaning: at the same time, the sum to be refunded and a possible court action.18 Similarly, anafī practice became more interested in the lawsuit that could ensue from a debt, and the modalities of its procedures, than in the debt itself. With the static notions imposed by anafīs on property and contract, a broad notion of debt—one that would identify a seller-buyer relationship with one of creditor-debtor—helped in forging more extended contractual alliances by means of newly designed court procedures.

  • 19 Oliver Wendell Holmes, The Common Law (New York: Dover, 1881), 259.
  • 20 Holmes, Common Law, 255.
  • 21 Holmes, Common Law, 287-88.

49In his celebrated Common Law, Oliver Wendell Holmes argued that between debt and “consideration” lies assumpsit: “the rule [of consideration] originated with debt, and spread from debt to other contracts.”19 Debt was therefore the oldest contractual form, and in order to be proved, witnesses were used to establish debts. But those were not the witnesses we know today: “They were not produced before a jury for examination and cross-examination, nor did their testimony depend for its effect on being believed by the court that heard it.”20 In other words, oath-witnesses were not meant to be believed, they were supposed to take oath to confirm an oral debt simply because there was no other way to prove it (a written statement by the debtor would pose other problems such as verifying the authenticity of the handwriting and signature; seals, which came at a later stage, added to the reliability of documents). Holmes then argues that “Assumpsit introduced bilateral contracts, because a promise was a detriment, and therefore a sufficient consideration for another promise. It supplanted debt, because the existence of the duty to pay was sufficient consideration for a promise to pay.”21 In short, assumpsit involved an implicit consideration, an advanced form of debt, but not yet the explicit “consideration” which is the cornerstone of contracts in Anglo-Saxon common law.

  • 22 Alan Watson, Roman Law and Comparative Law (Athens, Georgia: University of Georgia Press, 1991), Ch (...)

50In anafism the closest contractual form to a consensus ad idem, one that requires a perfect accord between offer and acceptation, is the ījāb wa-qabūl. Already ījāb, which implies in its preliminary meaning an act of establishing and imposing (ithbāt, ilzām), is the primary offer (ajāba also means to reply, so that even in the “offer” itself the law considers an element of “promise” or “obligation”), to be followed, on the other side, by the qabūl. Recognized by the Majalla as the most general contractual form, it needs to be seen whether the ījāb wa-qabūl represents a more mature contract than debt, or is even a departure from the latter. One thing is certain: even though the ījāb wa-qabūl, in its most basic form, is a bilateral oral contract between one that proposes and another that accepts the offer, the bulk of all sale and hire contracts in nineteenth-century sharī‘a courts, were concluded on the basis of an ījāb wa-qabūl. Those were for the most part simple contracts that did not occupy more than few lines in the qāī’s sijill (C 3-2), and, all by themselves, made over half the cases in the court records of Greater Syria. Besides identifying the contracting parties (and their representatives, if any), the text comes to the object of the contract, whether it is for sale or hire, names a price (even though that is not a requirement among anafīs), and then confirms that the contract was one of ījāb wa-qabūl, and that it was performed voluntarily without duress (aw‘an wa-bilā ikrāh: anafīs invalidate a contract when completed under duress). Those contracts mostly covered the sale or lease of homes, shops, and the like, and even though small parcels of lands located within the city could also have been part of the deal, by contrast, rural lands—at least those with mīrī dues, with a significant production—were seldom handled in an ījāb wa-qabūl contractual form. Rural lands and waqfs were in fact often the object of fictitious litigations, which as such were extended contractual forms over the traditional ījāb wa-qabūl.In effect, even though in its original pure form the ījāb wa-qabūlwas a bilateral oral contract, a trend was established to ratify it in writing in a qāī’s court, even though that was not a requirement of the law. Moreover, unlike similar Roman contracts (such as the stipulatio or sponsio), the ījāb wa-qabūl does not require a specific question-and-answer formula (such as the use of a particular verb to create a contract)22 since the two parties are not limited to specific utterances. Besides the fact that the offer and acceptance has to be exchanged orally in a specific location (majlis), no delay was to intervene between the two. Because of the very limited time framework, the ījāb contracts have to be simple and limited for the most part to a definite set of a‘yān (pl. of ‘ayn) that could be either purchased or leased. Thus, debts that fall under the category of dayn rather than ‘ayn are typically not covered in ījāb contracts. Those had a fictitious formula of their own whose purpose transcended debt as such (C 3-1).

51Which brings us to the question on whether ījāb contracts were a step forward from the limitations of the more primitive debt contracts. A common ground exists between dayn and ījāb in the form of an oath-witness-procedure, but what makes ījāb a more advanced contractual form is its general nature. In fact, a debt could in principle be sustained under an ījāb wa-qabūl stipulation, but since anafīs maintained a separation between daynand ‘ayn, debts were kept within contracts of their own. What needs to be addressed is the “limitation” of ījāb.In fact, the sharī‘a court records show a proliferation of contractual forms—marad, dayn, khulū, musāqāt, muzāra‘a, mashadd maskeh, wa‘ yad,and “the three-founders” technique, etc.—all of which were simulated fictitious litigations, and all manifested a single desire: to push the anafī law of contract to its limits in order to create a greater variety of contracts on more secure grounds. Indeed, a major “limitation” of the ījāb wa-qabūl stipulation is its oral nature, which means, an oath-witness-procedure in the presence of a judge to ratify the contract in writing, which was what the bulk of the court documents did. Another limitation is that the ījāb stipulation commanded an immediate offer and acceptance which limited both the time framework within which it operates and the space for its conclusion (a majlis with a couple of witnesses). What the proliferation of alternative contractual forms points to, however, was a need, resulting from various societal demands, to ratify contracts where the delivery of the commodity is suspended to a future time, so that payment and delivery do not necessarily coincide. Moreover, the procedures for such contracts had to be worked out to legalize them and render them hard to revoke. What some sections and chapters of the late anafī fiqh manuals confusingly point to, such as Ibn ‘Ābidīn’s Radd,is an explicit acknowledgment of such “illegal” contracts as the ones enumerated above. But a closer look at those texts, however, does not point to much effort in terms of procedural solutions, much of which had to be devised in the sharī‘a courts themselves. It remains to be seen, however, whether the proliferation of all those contractual forms, combined with the juristic efforts to integrate them within the domain of the fiqh, modified anafī substantive law as such, or whether it simply implied procedural modifications, as legal subterfuges (iyal), with no effect whatsoever on the substance of the law itself.

52It thus looks certain that the ījāb wa-qabūl was the oldest, most common, and most general contractual form. But designed in the first place as an oral covenant with few formalities (a contract could be concluded even with no witnesses present on the scene), the ījābwas probably a contract not destined to be concluded in court in the presence of a judge. That it proliferated to such a degree throughout the Ottoman period to the point that it became the leading contract in the sharī‘a courts could be an indication of the primacy of written contracts—at least in urban areas—approved by a judge, and with witnesses. Since their number increased greatly between the eighteenth and nineteenth centuries, the likelihood is that people were looking for more reliable contracts, ones that could be accepted in court if a litigation arose over the property in question.

53But if the ījābwas not primarily destined to be concluded within the confines of a sharī‘a court, the other contractual forms enumerated above would have been unthinkable outside the court system. For one, they all seem to have been late developments of the Ottoman period (how late is a question that needs more empirical research, beginning with the sixteenth century), primarily prompted by the need for more flexible contracts, ones that would operate within longer time frameworks than normally permitted among anafīs, and in which one party would act as a “creditor” of some sort towards the other, through a euphemized “loan-with-interest” (C 3-1). Second, the procedures for such contracts typically consisted of fictitious litigations, which means that they could not have possibly flourished outside the sharī‘a court system. Third, those contracts are so different in their form and structure from the ījāb wa-qabūl that it is hard to conceive of them as having emerged in some way from the latter, or even to pose them as related. In fact, not only the ījāb could be informally concluded outside a court, its time framework and simplicity is precisely what the other contracts attempted to bypass. Fourth, the proliferation of contractual forms did not much affect the substance of anafī practice. Indeed, their sole purpose was to avoid substantive law by shifting to procedure through legal subterfuges.

54Consider the maradas an example of those extended contracts that were court specific (C 3-6). The plaintiff-tenant requests from the defendant-administrator to acknowledge his “investment” in the waqf, which consisted, according to the plaintiff, in financing, maintaining, and repairing its properties. The so-called investment, once acknowledged by a ruling, would give the plaintiff not only the benefit of a long lease, at least far longer than the legally accepted three-year renewable term, but also that lease would only cease once the investment—the marad—has been reimbursed. In other words, by means of legal subterfuges, a tenant is thus able to invest in his waqf so that his lease is indefinitely extended. The notion of maradwas accepted in the late anafī literature, such as Ibn ‘Ābidīn’s Radd,on an ad hoc basis as a necessary device that resulted from the low rents that waqfs in Greater Syria had to endure. That, in turn, was an outcome of the iltizām policy, which forced the multazims—a class the jurists looked upon with contempt—to compete for high mīrī rates, thus exacerbating the downward movement of low rents for both mīrī and waqf lands. Jurists, however, while accepting the notion of marad,left it to the courts to work out the procedures. Both notion and procedure, however, do not substantively alter any of the classical notions of tax, rent, and land-tenure. Once more, legal subterfuges and their court procedures saved substantive law from a major change. The same could be said regarding other types of extended contracts, such as those leases based on sharecropping (musāqāt and muzāra‘a), in which the rent (ujra) consisted of a combination of a cash monthly-payment (referred to as ujrat al-mithl, the fair or average rent) and another payment in kind consisting of a share of a produce. Such a combination allowed, as with the marad,for circumventing the low rents and price fluctuations over the years, so that the payment in kind would limit such losses. Again, even though sharecropping contracts and their iyalwere acknowledged in the late anafī literature, their procedures could only be reconstructed from the court records.

55Thus anafī legislation regarding both milk and mīrī lands remained for the most part pretty much conservative and underdeveloped. Even the obsolete character of such archaic notions as the ‘ushrand kharāj,which as early as the sixteenth century the muftī Ebu’s-su‘ūd had already declared as invalid, did not undergo major revision in the late anafī literature (up to the mid-nineteenth century) that would account for the realities of the mīrī and iltizām. But to understand how anafī substantive law survived that long without any need to modify its basic premises regarding land-tenure and contracts, one must carefully look at the sharī‘a court procedures, on the one hand, and those of the regional councils, on the other. Thus while the court procedures pushed the law of contract to its limits, those of the regional councils created a jurisdiction specifically for mīrī lands.

  • 23 R.C. van Caenegem, The Birth of the English Common Law, 2nd ed. (Cambridge: Cambridge University Pr (...)

56The societies of Greater Syria (and Ottoman societies at large) were very much preoccupied in defining the borderline between the possession and ownership of a property. While the corresponding Roman notions of possessio and proprietas could find their anafī equivalent in wa‘ yad(taarrufin the 1858 Land Code) and milk, there was a strong preoccupation in the sharī‘a courts with disseisin, or the wrongful dispossession of one in the possession of real property. The courts thus created procedures that would acknowledge that a property that was illegally possessed (or illegal occupation, wa‘ yad) by the defendant for a period of time was in fact the legal ownership, milk, of the plaintiff (Chapter 5 supra). Such litigations were, however, mostly fictitious and enabled a full ownership for the plaintiff. Thus, in contrast to English common law, during Henry II’s reign, where “the preoccupation with seisin... was now at the disposal of all free men,”23 the proof of full ownership (milk) in Greater Syria was a privilege for the happy few who could prove that their possession of a property lasted for a period of time and was legal. Their ownership would then be legalized. But despite the archaic nature of anafī legislation regarding land-tenure, it was the sharī‘a courts, based on the opinions of jurists, which had to decide upon disputes that bordered the thin line of possession and ownership right (milk). The late jurists have argued that the occupation (wa‘ yad) of a land, which implies a de facto possession, and its cultivation over a period of time—which remained unspecified—establishes an ownership right to the point that it did not matter anymore who the “original owner” was. anafism thus took possession and ownership very pragmatically: 1) by rejecting the notion that full ownership as milk implied a right that could not be challenged once and for all; 2) by considering the essential nature of Ottoman societies, which were agrarian, a distinction between possession and ownership would thus help towards a process of occupying and laboring land without any need to prove ownership; and 3) the law applied even when the state proved to be the sole owner of the occupied land by private individuals. In short, the anafīs privileged those who were working on land without a formal proof of ownership: better still, in the framework of a potential litigation, the law would protect a defendant (or plaintiff) that could establish his rightful occupation/possession of a land and his working on it. On the other hand, the possession-ownership borderline became the source of fictitious litigations that would establish a defendant’s (sometimes a plaintiff’s) right of full ownership. Such legal techniques were useful mainly in the transfer of properties among family generations (C 5-1 & 5-2). That trend, however widespread it might have become, did not of course prevent other genuine litigations over the possession and ownership of land (C 7-1).

57The jurisdiction of anafī practice, however, remained limited to the sharī‘a courts, and so did the possession-ownership lawsuits. In fact, seldom did the sharī‘a courts adventure into litigations over mīrī lands, a domain which they left to the regional councils. Overall, the “private” jurisdiction of the sharī‘a courts, even on matters as crucial as possession-ownership, was an indication of a lack of interest of state legislation and involvement whenever mīrī lands were not the issue. For their part, the regional councils, even though had to tackle litigations far more complex than those of the sharī‘a courts, succeeded in routinizing all kinds of complaints received from private parties over conflicts arising from labor on mīrī domains. The routinization procedures could be compared to the writs of the English common law in that they provided a formula for litigation. Most of them formulated complaints by peasants over mīrī dues: “The peasants of locality X complained, in a memo addressed to the defterdār, of the distribution of the mīrī dues over a one-year period as imposed by their ūbāshī(or moneylender, or multazim). They therefore request the honorable majlis to look over the distribution of their mīrī dues, considering in particular the bad winter harvest and the erratic rainfall.” The majlis would then reconsider the mīrī dues for the village, either by opting for a different calendar, or, better still, request less for the year (or modify the proportion of goods to be delivered in cash or in kind). The point here is that up to the 1858 Land Code, land legislation remained pretty much underdeveloped so that all kinds of procedural actions took over. This shows that even for a domain as crucial as land, its productivity cycle, rent and taxation, while anafī practice maintained its jurisdiction over private disputes, the state was not that aggressive in its legislative efforts and was not pressed to impose itself on the sharī‘a courts—at least not until the Niāmī courts came into being in the 1870s and later.

58The purpose of this chapter was to explore the relationship, if any, between the general theory of contract explored earlier (Chapter 3), and the proliferation of procedural fictions targeting waqfs in particular in addition to other forms of property as well. The point here is that too much has been said on the quasi-private nature of waqfs, but not enough on the fact that “the right of property” to waqfs had to go through a similar set of contractual settlements as other forms of property. What was unique to waqfs, however, was a portfolio of properties whose general contractual settlement did bind a generation of beneficiaries to one another, for better or for worse.

59The path proposed in this chapter looks upon the ījāb wa-qabūl contractual form, which by far was the most common form of contract in the sharī‘a courts, as a development over the more primitive dayn.The ījāb, however, was too rigid a formula to accommodate contracts where either the delivery of the product or the completion of the payment had to be postponed at a later date. What was in effect ideally needed was a more flexible contractual form that combined dayn with ījāb, in other words, one in which a deferred payment and delivery ipso facto implied a dayn. Since such a conceptual notion, however, was never properly worked out by jurists (not even by the committee of the Majalla), several contractual forms proliferated, all of which were endorsed by the courts and hesitantly by jurists, and all of which had one thing in common: they all carried long-term investments. The fictitious litigations, as we have presented them thus far (and more is to come), are a further extension of this process; in their own way, they make possible forms of contract that would have been difficult under normal circumstances. In effect, fictitious litigations are nothing but simulated conveyances that validate and render irrevocable a transfer of title-ownership, be it in milk or waqfs. It must be made clear, however, that such legal subterfuges added nothing to the substance of the law but only to its procedures since the fundamental anafī notions were kept untouched.

60To conclude, two sets of discourses were at work here. At one level, jurists, teachers, muftīs, and judges, were all restricted by legal doctrine, and all acted in accordance with the canonical logic of juristic discourse. At another level, the sharī‘a courts, which assumed the existence of juristic discourse and its requirements, also, in the absence of clearly updated texts, had to create their own interpretations and procedures. To be sure, such levels were neither separate nor autonomous from one another: jurists, muftīs, teachers, and judges, were all integrated and assimilated within the same school of thought, and their roles were interchangeable. Throughout this study we have been concerned with two sets of interrelated questions: What is the logic behind judicial decision making? And, more generally, what is the logic of legal reasoning? If, as we have been arguing, decision-making involved at times creating procedures for which there was no clearly-stated text, then the obvious question is, How did judges do it? Considering that the three sources of law were the anafī fiqh, the qānūn, and custom, how was the logic of judicial decision making textually constructed? Consider the various forms of fictitious litigations encountered thus far and the ones to be discussed later (see supra Table 2-2). All of them contained, in each single case, a combination of visibly unrelated arguments: for example, a debt, together with a case of adverse possession, all of which were fought with conflicting opinions from the three founders of anafism, and other authorities as well. Each argument was not unique to the case in question, and could be compared to a plug-in model which could be used in different cases by simply modifying the variables. Each argument taken separately might have had a precedent in terms of juristic opinions, but even that remains uncertain, and they rather seem to have been “based” on some text, then modified accordingly to fit the needs of the court system. The “novelty,” therefore, if novelty there is, consisted less in challenging the substance of the law than in working out procedures that would bypass its limitations, more specifically the law of contract. The question could then be formulated as follows: How were such procedures worked out? Did they originate in the courts? Even though it is beyond the scope of this study to determine for certain the role of the courts in constructing newly formulated procedures, let us give them some credit and see where that would lead us to. If judges played some role in constructing a body of procedures whose textual links to the canon remains uncertain, how did they do it? It is at this point that legal doctrine could be helpful. In fact, whenever judges felt the urge to construe a ruling for which there was no direct textual evidence, and unless they found rescue in a muftī’s fatwā (C 7-2 infra), they were left with a couple of alternatives—either begin with a specific text and subject it to an open interpretation, that is, ijtihād, or else rely on one of the major principles in legal doctrine, such as the ones discussed earlier. In effect, even when no specific text was available, decision making was usually fought with the larger compass of legal doctrine. It is indeed at this level that both judicial decision making and legal doctrine intersect, and their importance to one another becomes even more fundamental once we realize that beyond the known textual evidence, the fatwās, and the routinized procedures, comes a domain of uncertainty which ultimately judges had to delve into, and legal doctrine and the corresponding logic of its discourse was what integrated their decisions together.

Table 6-1: Waqf of Bashīr III (1) (C 6-1)

#

Property24

North

South

East

West

1

Two pieces of land (qi‘a-tay al-ar)25 located in mazra‘at26ārat urayk27 on the coast south of Beirut: 1. “known for”28 Nimr al-Kisruwānī composed of land, trees, a house (bayt), etc.; 2. known for Ilyās al-Naqqūr and contains land, plantations, olives, etc.

Qi‘a29 of the monks of Dayr Mār Mūsa.

Property30 of the children of Emir Sa‘d al-Dīn Shihāb.

Property of the children of Emir Salīm Shihāb.

Public Road.

2

“Piece” (qi‘a) [of land] known for abīb b. Ilyās (same location as #1 above) composed of a land, trees, built and covered areas, etc.

Property of the children of Emir Salīm Shihāb.

Property of the children of Emir Sa‘d al-Dīn Shihāb.

Property of the children of Emir Salīm Shihāb.

Property of the children of Emir Sa‘d al-Dīn Shihāb.

3

Land with plantations (‘aoudit)31 known for Ilyās al-Naqqūr (see #1) composed of land with mulberry and olive plantations, etc., located in mazra‘at Saliyyah [Suaylah?] on the Beirut coast.

Orchard of olives and fig known also as “Nimr” (cf. #3, south).

‘Aoudit known for Nimr al-Kisruwānī.

‘Aoudit32 Fāris Nimr al-Kisruwānī.

Water canal used in the summer for the mulberry plantations.

4

The olives orchard known for Ilyās al-Naqqūr; #4-7 have the same location as #3 above.

‘Aoudit Nimr al-Kisruwānī.

‘Aoudit Ibrāhīm al-addād.

‘Aoudit al-Khūrī Iṣṭifān

‘Aoudit Nimr al-Kisruwānī.

5

Eight joint ‘awād33 known for the following: Najīb al-Naqqūr, Manūr al-Naqqūr, Bishāra fiaraf, al-Khūrī Isifān, Nimr al-Kisruwānī, his son Fāris, Ibrāhim al-addād, and Ilyās Khalīf; and the three lots of land known for the children of Manūr Shāhīn al-Khūrī; all composed of lands, plantations of olives, vegetables, and mulberry, in addition to “covered homes” (buyūt masqūfa).

Property of Emir Salmān Sayyid Amad Shihāb and Emir ‘Abbās Kanj Shihāb.

Property (milk) of Emir Milim aydar Shihāb; and side by side to him, the property of Fāris Sayyid Amad Shihāb.

Water canal used in the summer for the mulberry plantations.

Road and the water canal that is the property of the children of Emir Yūsuf Shihāb.

6

Property known for the children of Manūr Shāhīn, composed of a land, mulberry and fruits plantations.

Property of Emir Milim Shihāb; and the road.

Property of Emir Fāris Sayyid Amad Shihāb.

Property of the Emirs Qāsim and Fāris Sayyid Amad Shihāb.

Property of Emir Fāris Sayyid Amad Shihāb.

7

‘Aoudit known for al-Khūrī Itifān; and ‘Aoudit known for Najm Bāsīl; ‘Aoudit known for ‘Ubūr Abī Yazbek; ‘Aoudit known for Manūr Abī Yazbek, all composed of lands, mulberry and fruits plantations, and three houses.

Road.

‘Aoudit known for Manūr al-Naqqūr; and the road.

Winter water canal and the road.

Property of Emir ‘Abbās Kanj Shihāb; and the ‘Aoudit for the monks of Dayr Mār Antonius.

8

A set of ten ‘aoudahs known for ‘Assāf al-Jāmūs, Dha’īb Bishāra, fiannūs ‘Aoukar, children of Diyāb al-‘Ibrī, Khāir Lad, Shāhīn, and the children of their brother Dha’īb, Jibrā’īl Abī Jibrā’īl and his brother Jibrā’īl, and Manūr Ibrāhīm Yāghī, composed as #7 above. Located in Bourj al-Barājinah on the coast of Beirut.

Property of Emir Milim Shihāb.

Property of Emir ‘Abdullah Qāsim Shihāb and his sister Hind.

Road.

‘Aoudit Abī Zahrān unayn; and side by side the property of Bashīr III; and the ‘Aoudit of Abī Zuhrān unayn (property of Bashīr III)34; two lands endowed as waqf to the poor of the Church of Mār Ilyās al-Bourj; and the property of Emir ‘Abdullah Qāsim Shihāb and his sister Hind.

9

‘Aoudit of ‘Abdullah ‘Aoukar; property (qi‘a) known for Ibrāhīm al-Dha’īb, both composed as #7 above and same location as #8.

Property of Hind Shihāb.

Water Canal.

Road.

Property of Hind Shihāb.

10

Four shops, a khān, a bakery-shop, same location as #8.

Cemetry of the Shī‘is (matāwilah) of Bourj al-Barājinah.

Land and olive press (property of Ammūn, wife of Bashīr III) and Emir As‘ad Qi‘dān Shihāb.

Land and olive press (property of Ammūn, wife of Bashīr III) and Emir As‘ad Qi‘dān Shihāb.

Cemetery of the Shī‘is (matāwilah) of Bourj al-Barājinah.

11

Four ‘aoudahs: Ibrāhīm al-Dha’īb and the wife of Yūnis al-Dha’īb; the children of Diyāb al-‘Ibrī and those of Yūsuf Abū Jibrā’īl, composed as #7 above. Located in Khandaq Sha‘bān, part of the mazra‘as of the coast of Beirut.

Road.

Property of Emir ‘Abbās Kanj Shihāb.

Property of Emir ‘Abbās Kanj Shihāb.

Land endowed to the poor monks of Dayr Mār Antonius in B‘abdā (property of Dāoud b. fiannūs Mikhāyil from the village of adath).

12

Oil press in a mazra‘a; and the lots of land side by side to each other known for the wife of annā ‘Ayshī, Shāhīn Khālid and his brother Khāer; the children of Jirjis ‘Abbūd and the children of Dha’īb Khālid, composed of a land with plantations and nine homes, etc. Same location as #11.

Property of Emir ‘Abbās Kanj.

Property of Emir ‘Abbās Kanj.

Road.

Property of Emir ‘Abbās Kanj.

13

Lands known for Sāhī Khālid, Khāer Khālid, the children of Jirjis ‘Abbūd, Ibrāhīm al-Dha’īb; and the wife of annā ‘Ayshī, composed similarly to the above. Same location as #11.

Property of Emir ‘Abbās Kanj.

Water Canal.

Property of Emir ‘Abbās Kanj.

Property of Emir ‘Abdullah Qāsim Shihāb; and the road.

14

Lots of land side by side known for the children of Jirjis ‘Abbūd, Shāhīn Khālid, the wife of annā ‘Ayshī, the wife of Yūnis al-Dha’īb, the wife of ‘Abd al-Dha’īb,35 Ibrāhīm al-Dha’īb, ‘Abdallah Abī Jibrā’īl and his brother, Ilyās Shubayr, Kanj Wāzen, ‘Aoukar and ‘Abboud Abī Yazbek, Makhkhoūl Abī Yazbek, and fiannūs ‘Aoukar. Same location as #11.

Winter water canal; property of Emir ‘Abbās Kanj.

Water canal; olives belonging to Maronites in Beirut; property of the children of Fayyā.

Road; property of Emir ‘Abdallah.

Winter water canal and the road.

15

Olives orchard known for Iliyā Abī Jibrā’īl located in the village of Shuwayfāt in one of the mountains around Beirut.

Property of the children of Fayyā.

Property of Laḥḥūd Shuqayr.

Property of the children of Shaykh Bashīr Junblā.

Road.

16

Olive orchard known for Shāhīn Burus aj-Juraydīnī and the children36 of Dha’īb Khālid. Same location as #15.

Olives of Shuqayr.

River.

Winter water canal, and property of Shadīd aj-Juraydīnī.

Property of Abī Jibrā’īl.

17

Olive orchard known for Dha’īb Khālid, located in the land of arf al-Zārūb in Shuwayfāt.

Winter water canal.

Road.

Road.

Olive orchard known for Abī Zahrān unayn which belongs to the waqf of Bashīr III.

18

Olive orchard known for Rizq Abī Rizq, located in the desert of Shuwayfāt.

Property of Dāoūd Shubayr.

Road.

Property of Dāoūd Shubayr.

Road.

19

Olive orchard known for ‘Abdullah Salīm, located in Shuwayfāt.

Property of the children of Mughās al-Waqī.

Property of the children of Khalīl Thābet.

Property of the children of Shiblī Janīd al-Waqī.

Property of Ammūn, wife of Bashīr III.

20

Olive orchard of Yūsuf Abī Rizq, located in Shuwayfāt.

Orchard of Salmān Abī Faraj (property of Bashīr III).

River of Ghadīr.

Property of the children of Shadīd Wāzen.

Property of the children of Fayyā.

21

Olive orchard known for a‘b ‘Aoukar; and the olive orchard of the wife37 of annā ‘Isa; olives orchard of Iliyā Abī Jibrīl; olives orchard of Shāhīn Khālid; olives orchard of the sons of Dha’īb Khālid, same location as #20.

Winter water canal.

Property of Emir ‘Abdullah Qāsim Shihāb; and property of Emir ‘Abbās Kanj Shihāb.

Olives endowed to the poor of the clergy of Dayr Mār Âūmi al-Bawwār.

Road.

22

Olive orchard known for As‘ad Abī arb; and olive orchard of a‘b ‘Aoukar, same location as #20.

Property of the children of Fayyā.

Endowment for the poor clergy of Dayr Mār Doūmi, and the road.

  

Property of Emir ‘Abbās Kanj Shihāb.

23

Olive orchards of ‘Abbūd Abī Yazbek, Ilyās Abī Ghāleb, ‘Abdullah Burus, Khāer Khālid, and the children of Dyāb al-‘Ayrī. Same location as #20.

Property of Ammūn, wife of Bashīr III; and property of arīfa, daughter of Būlu az-Zaghlūl.

Property of Shaykh Yūnis Yūsuf.

Property of Fāris Murād; and the road.

Property of Emir ‘Abdullah; property of fiannūs Iliyyā; and property of abīb Naṣṣūr.

24

Olive orchards of Ilyās Khalīfeh, Kan‘ān Abī Jubrān, children of Dyāb al-‘Ayrī. Located in adath, coast of Beirut. #25-30 below have same location.

Property of Ammūn, wife of Bashīr III.

Winter water canal.

Property of Emir ‘Abbās Kanj Shihāb.

Property of Emir ‘Abbās Kanj Shihāb.

25

Olive orchards of Dha’īb Bishāra and that of ‘Abbūd Abī Yazbek.

Road.

Property of Emir ‘Abdullah Qāsim Shihāb and Emir Abbās Kanj Shihāb.

Road.

Property of Emir Milim Shihāb and the mother of Emir ‘Abbās Kanj Shihāb.

26

Olive orchards of fiannūs ‘Abbūd Abī Yazbek; Ibrāhīm al-Haddād; and Dha’īb Bishāra.

Road.

Road.

Road.

Property of Emir Milim Shihāb and ‘Abdullah Shihāb.

27

Olive orchards of Bishāra arrāf; fiannūs ‘Abboud Abī Yazbek; Manūr Abī Yazbek; and Dha’īb Bishāra.

Road.

Property of Emir ‘Abdullah Shihāb.

Property of Emir Qāsim Salmān Shihāb

Property of Emir Milim Shihāb.

28

Field (aql) known for Bishāra arrāf.

Road.

Property of Emir ‘Abbās.

Road.

Olive orchard known for Fāris Manūr (see #29).

29

Olive orchard known for Fāris Manūr.

Road.

Property of the mother of Emir ‘Abbās Kanj.

Property of Emir ‘Abbās Kanj; Mulberry known for Bishāra arrāf.

Property of Emir ‘Abbās Kanj; and road.

30

Land known for Makhkhūl Abī Yazbek.

Road.

Winter water canal.

Road.

Property of Emir Milim.

31

Olive and fig orchards for Manūr Abī Yazbek; Makhkhūl Abī Yazbek; and the children of Dha’īb Khālid. Located in mazra‘at al-Jinā in the village of adath on the coast of Beirut.

Property of Bashīr III.

Property of Bashīr III.

Property of Bashīr III.

Road.

32

Lots of lands with plantations and built-in areas and six “houses.” Same location as #31.

Property of Emir Milim and Sa‘īd Bek Junblā.

Property of Jirjis al-‘Ashshī.

Property of Emir Darwīsh asan Shihāb.

Property of Sa‘īd Bek Junblā and Bashīr III38.

33

Land with plantations of Makhkhūl Abī Yazbek. #33-45 located in adath.

Property of Emir Milim Manūr.

Property of Emir Milim Manūr.

Property of Emir Milim Manūr and that of Emir Amad Salmān.

Property of Emir Milim Manūr.

34

Land with two homes of Makhkhūl Abī Yazbek.

Property of Emir Amad Salmān.

Property of Emir Milim Manūr.

Property of Emir Amad Salmān.

Property of Emir Milim Manūr and that of Emir Amad Salmān.

35

Homes (buyūt) known for ‘Abboud Abī Yazbek and Bishāra arrāf; lots of planted lands; and a shop (dukkān).

Property of Emir ‘Abdullah.

Road.

Road.

Property of Emir Milim and that of ‘Abbās Kanj.

36

Homes of Dha’īb Bishāra and their lots of lands with plantations, etc.

Property of Emir Qāsim Salmān.

Property of Emir Fāris Sayyid Amad Shihāb.

Property of Emir Qāsim Salmān.

Property of Emir Fāris and Emir Milim.

37

Land of Ilyās Abī Smā.

Property of annā Abī āleh.

Property of ‘Abbās b. Mikhāyil al-Khūrī and that of Fāris b. Anūn Abī Yazbek; and property of the children of Nāīf al-Makkārī.

Road.

38

Land known for ārat Ilyās Māī containing plantations, etc.

Property of Emir Fāris and that of Bishāra Mur‘ī.

Property of Emir Milim.

Property of Emir Milim; and the five shops property of Bashīr III (see #39).

39

Five contiguous shops and their other parts, etc.

Road.

Property of Emir Milim.

The mulberry part of this waqf.

Property of Emir Milim.

40

Lots of lands and their parts known for Fāris Manūr Shāhīn, fiannūs ‘Abboud Abī Yazbek, and al-Khūrī Isifān al-‘Alam.

Property of Bishāra and property of Dāoūd b. fiannoūs Mikhāyil.

Road.

Property of Emir Fāris and that of Bishāra Mur‘ī

Shops of Emir ‘Abdullah, and the road.

41

Lots of lands with plantations, etc., known for Najm Bāsīl and Manūr Yāghī.

Road.

Property of Emir ‘Abbās Kanj and that39 of Emir Fāris Sayyid Amad.

Road.

Road.

42

Land known for Manūr Yāghī and Najm Bāsīl.

Property of Emir ‘Abdullah.

Property of Emir Milim and Emir Fāris;40 and the land for the church of adath.

Property of Emir Milim; and a land with olive plantations known for As‘ad Khūrī (see #43).

Road.

43

Land known for As‘ad Khūrī.

Property of the Emirs Salmān and ‘Abdullah.

Property of Emir Milim.

Property of Emir Milim.

Part of the present waqf.

44

Land known for Manūr Abī Yazbek; land known for Dha’īb Bishāra; and land known for Ilyās Khalīfeh.

Winter water canal.

Part of the waqf of Bashīr III; and property of Emir ‘Abdullah.

‘Aoudit of the children of a‘b Ibrāhīm.

Land for the church of Mār Antonius.

45

Land known for ‘Abboud Abī Yazbek.

Property of Emir Milim.

Road.

Property of Emir Milim.

Road.

1 The list of properties below follows the exact order they were listed in the text; however, descriptions of properties do not necessarily follow the exact wordings of the original and some numbers, quotation marks, and punctuation have been added for clarity. The same applies to the four directions surrounding the listed property.
2 Qi‘ais a general term for part, fraction, or piece.
3Probably the equivalent of the Turkish çiftlik, that is, an area of cultivated land, usually a medium or large estate outside the boundaries of a village or town. In the case of the waqf of Bashīr III, the mazāri‘ were mostly located in the vicinity of Beirut and typically contained lands with plantations (ghirās ashjār), some wild and uncultivated (barrī) areas, in addition to a built area (‘amār) containing homes and warehouses with wooden ceilings, among others.
4 Today one of Beirut’s southern suburbs, mostly Shī‘ī populated.
5 The term “known for” (al-ma‘rūf bi...), perhaps, “known by the name of,” “attributed to,” seems to mean “in the possession of” or “the property of.” (In this case, all 45 listed items were in principle only the “property” of Bashīr III.) In fact, a name and family is usually associated with each one of these properties (and, at times, the same “known for” name is associated with several properties); this should lead us to the conclusion that “known for” ought to be taken strongly, as a private property (in the hands of Bashīr III) that was “rented” by a “tenant-farmers” (mostly middle-class Christian farmers). However, it is quite probable that a property, at the time when the status of the waqf of Bashīr III was debated in court, was neither owned nor “rented” by the name with which it had been associated with. In fact, the property in question could have been “known by the name of” someone who owned it or leased it before, that is, it was not uncommon for properties, locations, and public locations to be associated with the names of individuals or families who were linked to them for a long time. In the case of the estate of Bashīr II, properties were generally described as in “the possession of...” (bi-mu‘āmalat fulān..., “taken care of by”), which implied an act of “lease” (i.e., “possession”) for a period of time for a property that was the “private ownership” of an individual or family. I am assuming here that both terms, al-ma‘rūf bi and bi-mu‘ām denote something quite similar, if not identical, that is, the “possession” of a “private property” for a limited period of time.
6 Qi‘a,meaning in this context “a piece of land,” is used interchangeably with milk and denotes something similar: a private property.
7 Property is here the translation of milk, meaning a “private property” in the strong sense of the term, that is, a property which was not state owned (mīrī) could be transferred to another proprietor, bought and sold freely with no restrictions, or converted to a waqf.
8‘Aoudit,pl. ‘awād (or ‘wād), was probably derived from ‘ā’id and ‘ā’idah, meaning al-manfa‘a, or “the use of”: a large land with plantations and specifically mulberry trees (ashjār tūt), but sometimes used also for lands without any mulberry; see, Anīs Furaya, Mu‘jam al-alfāzø al-‘āmmiyya (Beirut: Librairie du Liban, 1973, 1995), 122.
9 All the ‘aoudits have the “known for...” preceding the name of the actual “possessor” and/or “proprietor” (see note above). In a way similar to qi‘a and milk, ‘aoudit was also a private property which could be leased to tenant-farmers.
10 Plural of ‘aoudit.
11 This is a clear sign, as noted, that the ‘aoudit had a landowner and was rented by a farmer.
12 It would be interesting to investigate in the few cases where lands were “rented” to women, which were overall a very small minority of cases, the role of women in “rented” properties in particular: Why did women “rent” properties and for what purposes? Were they doing business on their own, separately from their husbands or the other males in the family? Or was the pure association of their name with a particular property an inheritance from a previous male title? In this case, “rented” properties followed then the same basic rules as the milk in the sense that women made no “autonomous” decisions, but, at times, they were necessary tools for the transfer of property and its preservation within the boundaries of the family.
13 Children, awlād, should in principle denote both male and female beneficiaries. But it is not always clear from the Arabic use of the term whether the beneficiaries are males and/or females since awlād is neutral.
14 Women, unless from a notable’s family, are usually identified with their husband’s name.
15 It is not clear when the property in question is identified with two distinct names, especially as is the case above in which two names from politically rival families—the Shihābs and Junblās—whether it was a “joint” property or two distinct properties with different owners. The repetition of milk twice might be a sign that we are indeed with two different properties: “the milk of the Emir Milim and the property of Sa‘īd Bek Junblā...”
16 The “that,” meaning “property,” denotes what seems to be in the original draft a distinct property from the first one(s) already identified.
17 The “and” denotes what seems to be in the original draft a “joint” property with the first name(s) already identified.

Table 6-2: Waqf of Bashīr III (2) (C 6-1)

#

Property

North

South

East

West

1

Mazra‘at Sibnāh on the coast of south Beirut, known for Bashīr III, includes a land which is partly cultivated and another non-cultivated part (ar salīkh), with mulberry and olive plantations, among others; also includes the home (dār) of Bashīr III. However, the following are not included in the property of Bashīr III: home known for the children of Emir As‘ad ammūr; home known for Manūr al-Jāmātī; home of the mother of Bashīr III; home property of the children of Būlu al-Zaghlūl.

Milk of Emir Milim aydar Shihāb; and land devoted to the poor of the monks of Dayr Mār Anonius in B‘abdā.

Road.

Milk Emir Milim.

Milk Emir Darwīsh b. asan Shihāb.

2

Non-cultivated land located south of #1 above.

Trench (khandaq) of Emir Darwīsh.

Milk of Ghālib Fara and the sons of ‘Abbūd al-Barbārī.

Non-cultivated land (ar salīkh), milk of Emir Milim.

Road, and fig orchard milk of Rāshid Yaqqū‘ and Niqūlā Janū.

3

Fig orchard part of the above mazra‘a.

Milk Ibrāhīm al-awwār.

Milk of Ghālib Fara.

Milk of the sons ‘Abbūd.

Land of the aforementioned mazra‘a.

4

Non-cultivated land part of the above mazra‘a and located above the water-canal.

Milk of Shaykh Yūnis Yūsuf Naffā‘.

Water-canal.

Milk Ibrāhīm al-awwār.

Milk Ghālib al-Muarrar.

5

Land containing plantations of olive and fig, part of the above mazra‘a.

Mazra‘a in #1.

Mazra‘a.

Mazra‘a.

Milk of the sons of Kan‘ān Abī Shurfān and Fāris ‘Awwād, located west of the mazra‘a.

6

Land containing olive plantations, located west of the mazra‘a.

Mashāyikh of Banū Junblā.

Mazra‘a.

Mazra‘a.

Milk of the sons of Kan‘ān.

Commentary: The waqf of Bashīr III comes in two different sets, of 45 and 6 properties respectively, but it remains unclear why they were handled in two different cases, amid carrying the same date and being handled with identical procedures. For our purposes here, the importance of such tabulated lists of properties stems from the fact that they show in one glance the various networks that made the existence of the waqf possible. In effect, all 51 properties, mostly located in the southern “suburbs” of Beirut, were for the most part leased to independent tenant-farmers and were surrounded by other privately owned properties either to the Shihābs or the Junblās. But even though all such tenancy contracts were negotiated independently, they were nevertheless part of the same waqf compendium and hence under one administration. Being located in the vicinity of Beirut, and on the Lebanese coast where water canals were abundant, it is to be expected that the yield of such properties would be higher than in other parts of Greater Syria. For one, the peasantry was not under corvée conditions, and apparently only negotiated for tenancy contracts (hence the lands became “known” under an individual’s or family’s name) that were nominally “free.” For another, most of those properties had olive and mulberry plantations, and, in the case of the latter, they were thus part of the prosperous Lebanese silk trade that gave the coastal and mountainous regions an impetus of their own. But it remains uncertain how much “freedom” those tenant-farmers effectively enjoyed, in particular when it came to receiving cash-loans, or negotiating their contracts, and last but not least, selling their produce.

61  

Notes

1 Richard van Leeuwen, Waqfs and Urban Structures: The Case of Ottoman Damascus (Leiden: Brill, 1999), 117. It is a gross error to conceptualize the language of the sharī‘a courts, as van Leeuwen does, as a discourse of the state (p. 153). But they are not anti-state either: a centralization of the court system would have implied far more sophisticated and costlier methods of domination than those deployed by the Ottomans.

2 Ghazzal, L’économie, Chapter 5: “Le waqf comme forme de propriété privée.”

3 Anīs Yayā, al-Shaykh Bashīr Junblā wa-taqīq waiyyatu-hu, 1775-1825 (Beirut: Dār al-Funūn, 2001).

4 Ruled for only a year in 1841, after his cousin Bashīr II was sent toexile. The turning point was obviously the end of the Egyptian occupation in 1840.

5 Beirut sharī‘a courts, unnumbered register and page numbers, 8 July 1852.

6 For the specific meaning of these terms, see infra Table 6-1: “Waqf of Bashīr III (1).”

7 Ibn Khaldūn already made the distinction between “pure” ‘aabiyya lineages which he referred to as “real” since they were based on actual lines of blood kinship, and the ones that were “fictitious,” or wahmī in his own language. In the final analysis, both were equally real.

8 An opposing societal arrangement would be the eighteenth-century Pacific Islands societies as presented by Marshall Sahlins, Islands of History (Chicago: University of Chicago Press, 1985), 51: “In Hawaii, the continuous redistribution of lands among the ruling chiefs preempts any local lineage formation, reducing genealogical memories among the common people largely to personal recollections.” Kings in those heroic societies distributed defeated peoples throughout their own families in order to subdue any future struggles of their own. By mixing lineages throughout the land, the king erased any sort of bonds of kinship or ancestry. Since those bonds are dissolved, the society’s coherence throughout the kingdom, or hierarchical solidarity, was easily achieved through direct submission to the king. As their families were shuffled throughout the kingdom and never individually able to assume enough power to gain the throne, people had no other choice but to submit to kingship.

9 For example, Bashīr III’s wife (the defendant) was from a leading Druze family; his cousin, Bashīr II, had a second Circassian wife (so did some of his cousins). Since the Shihābs were mostly endogamic and inter-married among themselves, such rare cases of exogamic marriages could have been calculated strategies either to enhance one’s status, or to avoid local alliances, hence the marriages with Circassians that were originally slave women.

10 In Table 6-1: “Waqf of Bashīr III (1),” property #10 was surrounded at both its north and west sides by the cemetery of the Shī‘īs (matāwilah) in Bourj al-Barājinah; yet the Shī‘īs did not own any of the listed properties.

11 The implication here is that, in order for the waqf to be valid and for Ammūn to be its sole administrator and beneficiary, one of the conditions is that no one from the Shihābs should have disputed the validity of the waqf with her through, say, a court action. Since this was a family waqf, it was unlikely that someone from “outside” the Shihābs would have triggered a legal action of some sort; the status of non-Shihābī women whom the Shihābs married (such as the Druze Ammūn, wife of Bashīr III) varied greatly. A woman could regain the status of an “outsider” upon her husband’s death, and she would thus be legally able to dispose at her own will with his inheritance, hence the harsh conditions placed on women in waqf endowments and the like.

12 At this point the document repeats the same conditions as the first part above until all the possibilities have been exhausted.

13 Did waqfs pay “taxes” to the fiscal authorities? This was unlikely when the waqf was khayrī, that is, when it was dedicated to some charitable and “public” purpose. But things were different for family waqfs designed in the first place to keep a set of properties within the family from one generation to the next. The waqf of Bashīr III was composed of a large number of rural properties that were originally privately owned (at least this is what the text admits) and then erected altogether as waqf. To the state, these waqf properties shared, from a fiscal point of view, exactly the same status as milk lands. As Table 6-1 shows, the great majority of the forty-five properties were “rented” by tenant-farmers who prepaid a “rent” (ujra) to the waqf’s administrator who, in turn, paid a “tax,” the ‘ushr, to the state. The gross that the beneficiaries were entitled to thus consisted of the “rent” in toto, while the net income was the rent minus the taxes and maintenance fees. There was, of course, the possibility that other arrangements might have been worked out with the tenant-farmers such as a contract known as the murāba‘a where the “owner” was entitled to one-fourth of the produce as “rent.” For state-owned mīrī lands, the distinction between “tax” and “rent” naturally collapses since the state, as the sole owner of these lands, extracted, via its multazims, all the produce from the peasantry as “rent.”

14 For an historical and anthropological look at the notions of property, violence, status, and honor, see Michael Gilsenan, Lords of the Lebanese Marches: Violence and Narrative in an Arab Society (Berkeley-Los Angeles: University of California Press, 1996).

15 Document dated 13 Rabī‘ 1259/April 13, 1843 (Beirut), and reproduced in assān allāq, Awqāf al-Muslimīn fī Bayrūt fī al-‘ahd al-‘Uthmānī (Beirut, 1985), document #22, 123-127.

16 Quoted in Imber, Ebu’s-su‘ud, 148.

17 Chehata, Théorie, Ā 260, p.170.

18 Jean-Claude Montanier and Geoffrey Samuel, Le contrat en droit anglais (Grenoble: Presses Universitaires de Grenoble, 1999), 14-15.

19 Oliver Wendell Holmes, The Common Law (New York: Dover, 1881), 259.

20 Holmes, Common Law, 255.

21 Holmes, Common Law, 287-88.

22 Alan Watson, Roman Law and Comparative Law (Athens, Georgia: University of Georgia Press, 1991), Chapter 7.

23 R.C. van Caenegem, The Birth of the English Common Law, 2nd ed. (Cambridge: Cambridge University Press, 1988 [1973]), 44.

Table des illustrations

Titre Figure ‎6-1. Debt-contract in waqfs (C 6-1).
Légende Commentary:Compared to the debt-contract in Figure 5-1, the only modification here is that it was the administration of the waqf that was transferred from husband (plaintiff) to wife (defendant) rather than the properties themselves.
URL http://books.openedition.org/ifpo/docannexe/image/571/img-1.png
Fichier image/png, 31k
Titre Figure ‎6-2. Waqf of Bashīr III (C 6-1)
Légende Commentary:The above diagram is typical of many waqfiyyas, whether of Muslims or non-Muslims, and is striking in its attempt to avoid linking women to the group of beneficiaries, even though there was a tendency among Muslims to apply the rules of inheritance to waqfs also (the Ḥanafīs do not indulge in making such rules mandatory). The diagram is structured on a single question: “Is there a male beneficiary?” Yet, and despite this general flight from women, in some cases (C 5-1, 5-2 & 6-1) they did enjoy the full possession or administration of properties that were transferred to them through sharī‘a courts rulings.
URL http://books.openedition.org/ifpo/docannexe/image/571/img-2.png
Fichier image/png, 39k

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