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The grammars of adjudication

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Zouhair Ghazzal

Chapter 7: Fatwas at the rescue of hard cases

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  • 1 Riyad Ghannām, Muqāa‘āt Jabal Lubnān fī-l-qarn al-tāsi‘ ‘ashar (Beirut: Bīsān, 2000), Chapter 6.

1All four cases examined in detail thus far in the two previous chapters (three related to the Shihābs, in addition to a regular Beirut case similar in its structure to that of Bashīr III) reveal an eagerness to go beyond the limitations imposed by both Maronite canon law and anafī practice. But a great deal of conservatism also reveals itself in that the court procedures, which by and large consisted of legal subterfuges, did not touch upon the substance of the law. However, even with the extra-anafī adjudication with which historians claim that it was exercised by Druze, Maronite, and Shī‘ī judges at their own discretion and without much interference from the shar‘ī authorities in Beirut or Sidon, or the Ottoman authorities for that matter (even though not much evidence remains as to the informal proceedings of all those religious courts),1 the societies of Mount Lebanon, even though more advanced than their counterparts in Greater Syria, were nevertheless kept within the boundaries of an austere anafī régime, even when considerable property transfers were at stake or when debts had to be negotiated (C 3-1). That however did not prove to be beneficial in particular for societies whose relations and mode of production were ahead of their time. For one, the Lebanese ruling factions of the Mountain were living in proximity to their peasants, clergy, and other common people. That inevitably led to a better protected peasantry, one that could at least impose more challenging contractual settlements with its nobility. For another, that proximity inevitably led to a better integration not only among the ruling factions, whether Druze or Maronite, but also between the latter and the common people, not to mention the decisive role of the Maronite Church in acting as an intermediary between the nobility and peasantry. But all that neither led to judicial nor significant bureaucratic reforms, and Mount Lebanon had to wait for its own Tanīmāt with the rest of the empire. And even the legal devices that the Beirut courts were in need of to handle some of their most demanding cases had nothing peculiar to them since they shared many of the qualities of those in Damascus.

  • 2 Ghannām, Muqāa‘āt, 20, 31.

2Since our aim is the study of discourses related to the practices of judicial decision-making, the procedural fictions in the previous chapters proved beneficial for a variety of interrelated reasons. For one, it can be hardly claimed that they did contribute in any ambitious policy-making process. That could have happened had the courts bypassed their role of traditional adjudication, and instead pushed for new contractual forms and notions of property and its possession. Instead, the courts cantingly constructed a discourse based on the traditional anafī hands-on (wa‘ yad, “occupation”) and hands-off (raf‘ yad) notions, and incorporated them into a set of procedures that helped granting property titles to individuals and families with a history of land occupation. Indeed, it has often been noted that the wa‘ yadnotion in particular and sharecropping practices such as the muzāra‘aand musāqāthave greatly contributed in fragmenting large properties and in encouraging small ownership.2 But despite all those court and social practices, and their impact on society well before the 1858 Land Code (even though it would be immature to claim that their aim was similar), it could be hardly claimed that the sharī‘a courts were involved, in a way similar to the regional councils, in a policy-making process out of which new contractual notions emerged that pushed towards an open acknowledgement of all those “occupied” properties and restored their legitimate titleholders. To do so would imply that fictitious litigations, as examined in the previous chapters, were concealed policy-making devices out of which emerged notions of contract and land ownership, or that they constituted a de facto pre-1858 Land Code out of which the real historical one emerged.

  • 3 Lawrence Rosen, The Justice of Islam (Oxford: Oxford University Press, 2000), 5: “From the point of (...)

3To understand how such procedural fictions effectively worked, one needs to look at their discursive constructions, to discern their real conservative nature. As pointed out in Chapter 2, the written document only serves as a tool for memorization, hence the sharī‘a documents were only a material support for a number of facts that hade received their validation in a qāī’s courtroom.3 Fictitious litigations have considerably made use of those verbal transactions in need of some material support and the like, and that was precisely what those litigations served for: hundreds of properties exchanged hands between members of the same family (usually between different generations), then had their status validated in court, and finally received a hard-to-revoke judge’s ruling. The point here is whether it was possible for the courts to have created a set of procedures, and hence by implication added to the existing legal doctrine, so as to avoid the kind of tortuous fictitious litigations as we have come to know them. Was that possible at all, and did the fictitious litigation add to the existing corpus of legal doctrine? Could all that process have been handled more explicitly?

4Procedural fictions were primarily concerned with validation: how to validate an old verbal transaction in order to maintain its evidentiary role, and more importantly, how to validate the transfer of a title-ownership. The form of validation is here crucial since it implies first creating a procedure for that purpose, and then, secondly, transforming the oral utterances into their equivalent written support. In the majority of the cases presented thus far and in the ones to come, transactions were introduced as having been orally completed, and their validation was through a process of witnessing and oath-taking. In most of them, whether on the plaintiff or defendant side, proof of a transaction, ownership, legal or illegal possession or occupation were all taken care of by means of witnessing and oath-taking. The fact that the burden of proof could have shifted from plaintiff to defendant was mostly a situational factor: In whose hands will the property end up, plaintiff or defendant? Since in fictitious litigations the assumption is that indeed the matter has been settled beforehand, the defendant will have to validate his legal ownership in front of a clueless plaintiff if the property will become his thanks to a judge’s ruling, and vice versa.

  • 4 Rosen, Justice, 10: “The burden of oath-taking is not consistently placed on either the plaintiff o (...)
  • 5 Malcolm M. Feeley and Edward L. Rubin, Judicial Policy Making and the Modern State (New York: Cambr (...)

5Since facts have been validated through witnessing and oath-taking,4 a case will be framed (or narrated, if one is to believe that a legal case is primarily based on narration) by means of prior opinions, analogic reasoning, and legal subterfuges, some of which, as noted in the case of Bashīr III (C 6-1), might originate right from the fiqh or fatāwā manuals (see Chapter 6 supra). Thus, there is overall very little room, if any at all, for deductive reasoning per se, one that might necessitate a more thorough logical reasoning. As Malcolm Feeley and Edward Rubin have noted regarding the American decision-making process, “A notable feature of both analogy and metaphor, as opposed to deductive reasoning, is that they produce fully realized ideas.”5 And that was precisely the purpose of procedural fictions: to produce fully realized ideas, so that by means of old opinions, analogy, metaphor, legal devices, and doctrine, a patchwork is constructed that would not push the judiciary into indeterminate decision making, which might verge on the political. As I will argue in Chapter 9, that was left to the regional councils, whose rulings did not require the anafī juristic typology.

6In this chapter, our last two Shihābī cases are very different from the previous three (C 5-1, 5-2 & 6-1) in that they are not fictitious (C 3-1 seems for all intents and purposes “genuine”). The difference that it poses will be pretty obvious, especially in the way the disputants challenge each other’s assertions and seek validation more thoroughly, and how the process of finding and constructing opinions ends up being more tortuous, being the subject of so many contingencies, including unpredictable behavior displayed by the litigants. So let’s begin with the simplest of the two cases first, with a preliminary digression regarding the dichotomy of “public” versus “private” property.

Unlawful usurpation and property restitution

7anafī jurists of the late Mamlūk and early Ottoman periods, faced with the prospects of “private” properties becoming state-owned, created a few images of public ownership, but it all coalesces in the image of the sultan who “owns” the lands of his empire. Ibn Nujaym’s legal fiction is in particular striking in the way it juxtaposes different metaphors. The problem, let us recall, was to account for the massive ownership of lands by the state, a phenomenon that made some legal notions of classical Islamic law sound obsolete. Ibn Nujaym, basing himself on an analogy already made by his predecessor Ibn al-Humām (d. 861/1457) in Fat al-qadīr,compares the sultan (or imām) to the guardian (waī) who has to take care of orphan “minors” (ir,pl. irūn)—that is, in this case, the ra‘āyā—regarding their safety, daily life, and properties. anafī practice, Ibn Nujaym notes in his risāla,stipulates that guardianship entails that full freedom be granted to the guardian to do whatever necessary with the properties of the minor so that they be handed back to him in an even better condition once he becomes mature. Thus, a property (‘aqār) is eligible for a transaction if it can be sold for twice its price; or when its provisions (ma’ūnah) are almost equal to its produce; or when the orphan’s expenses are more than what the property itself could cover from its produce; all such factors could push a guardian in deciding to sell a property in favor of a better and more promising arrangement. In one of our Shihābī cases (C 5-2), Bashīr II acted as guardian to his nephew ‘Abdullah, and in order to cover the debts of his deceased brother in such a way as to avoid hurting the still minor ‘Abdullah Shihāb, he sold his brother’s properties and then bought them all for himself, while placing the equivalent in cash in his nephew’s account. The crucial point here is that this legal technique of selling a property and then buying it for one’s self became a procedure that could be used by anyone, that is, any subject of the empire up to the sultan himself. In fact, what Ibn Nujaym was interested in was a legal procedure that would account for the sultan’s ownership of large domanial lands. The argument goes on as follows. First, the imām was acting like a guardian who was taking care of “minors,” that is, the ra‘āyā:the implication here is that originally kharājī lands were not owned by the imām but by the people; since he was their guardian, he had to act in such a way that fits best with their interests and happiness. Second, within the canonical logic of guardianship, the imām sells those kharājī lands (which are not yet his “own”) and then buys them for himself; Ibn Nujaym makes the point that the act of buying must be completed by proxy: “He orders someone else to sell [the kharājī land] and them buys it all from him to himself;” but no explanation is provided as to why an intermediary should get involved. Quite probably, however, this could have been a legal device to ascertain that the acts of selling and buying effectively took place separately, that is, they are not combined into a single act but indeed separate (in the case of Bashīr II, an intermediary did the selling before the Emir purchased the properties all to himself). Third, this explains how “privately” owned kharāj lands became state owned;an explanation is still needed, however, to account for the imām selling (by proxy) these properties and then buying them for himself: What was his excuse? The main reason provided by Ibn Nujaym is that the original proprietor of the kharājland died without any heir; had an heir survived, he would still be responsible for paying the kharājto bayt al-māl,and even a minor heir would still have to pay the kharāj.But once a property was left without any heir, it becomes ipso facto the ownership of bayt al-māl,and, “if the imām sells something from bayt al-māl,such a selling is valid.” So the imām sold all those privately owned kharājproperties which were left without heirs and then purchased them all to himself. This accounts, according to Ibn Nujaym, for the large number of state-owned properties that became part of the Ottoman mīrī system.

  • 6 See Chapter 4 for a more complete discussion.

8The arguments in Ibn Nujaym’s short risāla(“al-Tufa al-muriyya fī-l-arāī al-Miriyya”) are more subtle and complex than the summary provided thus far, but I deliberately left them at their lowest denominator to keep track of the main arguments.6 What is of interest to us, however, is to see how such opinions might explain some of the sharī‘a courts procedures. The logic of some of the courts’ procedures dictates specific notions of property—such as ownership, possession and occupation, transfer, and rights of buying and selling. Thus, the arguments provided by Ibn Nujaym could be reordered for the purpose of making the concept of property easier to grasp. First, the imām (or sultan) did indeed enjoy higher rights and duties than anyone else of the ruling class or the ra‘āyā,but such rights did not place the imām beyond accountability for his personal (hence private) ownership; in other words, “ownership” was not protected by a divine or natural right: an explanation was needed to account for everything the imām owned. Second, it was the act—or contract—of buying and selling that established the right of “ownership,” even if that meant the tautological action of buying and selling from one’s own properties.

9There were various notions of property and contract that covered anything from land to marriage: Did they have anything in common? Was there a general law of property or contract? Or did those notions of property and contract simply pragmatically add up to different situations? What complicates further the task of searching for more general notions is that those multiple notions could even produce greater variations in the practices of the courts: that was definitely the case for contracts, and, as already discussed in Chapter 3, a set of contractual arrangements emerged in the court system whose primary aim was to extend leases, delay payments, and provide the tenant with a sense of “ownership” by transforming him into a de facto “owner”; all of which self-corrects a rigid law of contract without, however, ever attacking its substance. The law of property was within a similar range. If we begin with what the fiqh acknowledges as the two basic forms of property, tamlīk al-‘aynand tamlīk al-manfa‘a, the ownership of the object itself and that of the usufruct, we soon come to realize that the occupation-possession (wa‘ yad) of a property was what gave the courts the leverage they needed to create situations in which formal ownership was acknowledged for furnishing evidence of occupation (normally through a procedural fiction). Moreover, considering the large amount of abandoned and state-owned mīrī lands, not to mention all properties that have shifted hands so many times to the point that their status has become uncertain, the law had to be flexible when it came to legalizing all “illegal” occupancies—a sort of adverse possession but without all the statutory conditions that would limit occupancy to a time framework.

10All possession-occupation cases encountered thus far were structured through procedural fiction, and we have discussed at length of what such a form consists: unchallenged narratives that receive the form of their narration from a set of anafī opinions, using label, analogy, and metaphor. Our problem now consists in identifying wa‘ yadcases which are structured differently: Does the different restructuring necessarily imply a non-fictitious—“genuine”—litigation? In most cases (as the ones below), it indeed does.

  • 7 Beirut sharī‘a courts, unnumbered register and pages, 15 Rabī‘ I 1264 (February 20, 1848).
  • 8 Within the confines of the southern “suburbs” of Beirut where the Shihābs had many of their propert (...)
  • 9 The property is described as follows: it was part of bustān Qiqānū, located south-east of mazra‘at (...)

11[C 7-1] One of those cases, whose hearing took place in Beirut on February 20, 1848, is another wa‘ yadlitigation.7The plaintiff was Emir Milim b. Qāsim b. Bashīr II Shihāb (hence a grandson of the ex-ruler) whose representative was Âūmi Mu‘awwa from Shiyyā8 (two witnesses validated the act of representation). The defendant, Burus b. fiannūs al-Aghar, was accused of illegally possessing one of the emir’s properties, an orchard (bustān) located in the vicinity of Beirut.9 When prompted by the judge whether he was effectively in “possession” of the orchard, he acknowledged that in fact he had exercised his right of wa‘ wad(“occupancy”) for three years, more specifically since he purchased the property from the plaintiff’s father, Emir Qāsim Shihāb, for the sum of 21,400 piasters. But the plaintiff’s representative denied that his client’s father could have made such a transaction since he had no wikāla(“representation”) that would have provided him with the legal authority to proceed independently on his own with the property; but upon the defendant’s denial and insistence on his previous statements, the representative was requested to furnish evidence, and thus brought two witnesses. The first one testified that the plaintiff’s father had acknowledged that the aforementioned property was the sole ownership (milk) of his son Milim, and that he, Qāsim Shihāb, enjoys no right in it; and still according to this first witness, that this confession from the part of the plaintiff’s father took place prior to the defendant purchasing the property, who knew about it. (This constitutes an indirect acknowledgment that the property might have—or was indeed—purchased by the defendant; otherwise what is “[the defendant] knew about it” supposed to mean? Other than “he knew about it” but still managed to buy it? And if so, how did Qāsim Shihāb, at the same time, certify to the witness that the property was that of his son and then sold it to the defendant?)

12The second witness, the qāī of the Greek-Catholics, was a “secondary witness,” shāhid fur‘ ‘an al ghāyib,meaning a proxy witness who in this case came in lieu of Emir ‘Abdullah b. asan Shihāb. The original witness, who could not come to court because he was located “in Kisruwān which is over seven hours away from the majlis [of the court],” was a nephew of Bashīr II and a paternal cousin to the plaintiff. The proxy witness reiterated verbatim the first witness’ statements with, again, the following concluding remark: “The acknowledgment (iqrār) [from Emir Qāsim on his son’s ownership] was prior to the defendant buying the property; and he had full knowledge of that.” Then two additional witnesses corroborated the statements of another absent and sick fur‘ who in turn should have had given his testimony in lieu of an absent al.Finally, the judge having accepted all testimonies, declared the property the legitimate ownership of Emir Milim and requested from the defendant to forgo the rights of his ownership (raf‘ milk-i-hi) and that he should be refunded by the heirs of Emir Qāsim the sum he paid to buy the land three years ago.

13What is of interest to us is that, unlike our other cases, this property was effectively purchased by the defendant for an interim three-year period for 21,400 piasters and a court’s order came to revoke that purchase as illegal. This might sound obvious had the defendant either illegally “possessed” the property (a classical form of wa‘ yad we have already encountered) or had he purchased it “illegally” (either as fāsid or il). In fact, as it turned out, the defendant had purchased the property from Emir Qāsim, the father of the plaintiff, even though he knew, according to the plaintiff’s witnesses, that Qāsim had declared the property to be his son’s ownership. Since Qāsim died in 1846, the purchase, which was also acknowledged by the plaintiff’s witnesses, must have taken place only the year prior to his death, while the plaintiff maintained that “his father had no right to sell the property since he had no prior mandate (wakāla) to do so and no authorization (ijāza) either.” It thus remains to be seen how a property was sold by someone who neither owned it himself nor had any official mandate nor authorization to act in proxy: So why did Qāsim Shihāb sell that property? Did he do it on behalf of his son? And why did the defendant buy a property whose status was left unsettled? Furthermore, the defendant did not present the court with any written ujja or witnesses for that matter: on what basis did he then pay the 21,400 piasters over which the judge ruled that they should be given back to him? Was he ambushed by the Shihābs?

14There are two possibilities here: either the whole case was genuine and a purchase of property from Emir Qāsim in 1845 did effectively take place; or else it is one of those fictitious litigations, albeit in a form different from what we have been accustomed to, which needs to be read thin a different order and subtext from the one presented to us. The purpose of the lawsuit could then have been, say, to establish that Emir Milim b. Qāsim was indeed the “owner” of a property which, for some reason, had a confused status, and the defendant was brought in and reimbursed what he had originally invested to forgo his alleged property rights. The first possibility, however, seems more likely, and could overlap with our second hypothesis if the disputants decided outside the court for a peaceful settlement. So, in both cases, the most likely scenario looks as follows: Qāsim sold the property to the defendant despite the fact that it wasn’t his in the first place, and for this reason it was never ratified through a written ujja;then, three years later, the plaintiff, with the help of several witnesses, disapproves the selling for which his father was responsible.

15That was a simple case despite the fact that it remains far from clear why and how the property was sold in the first place. But whatever the reasons, the case follows a general pattern which was common to Mount Lebanon and persisted in sharī‘a courts protecting aggrieved landholders and deprived heirs. Moreover, the restored property holding gets a judge’s ruling and all the orally presented evidence has now received a written support. Thus, this case is another wrongful dispossession: the plaintiff was dispossessed of his property because of an ill-fated action by his now deceased father.

How fatwas work

16The previous case (C 7-1) was simple enough so as not to necessitate anything more than two witnesses furnished by the plaintiff, both of which transmitted to the court the now deceased plaintiff’s father oral utterance regarding the past status of the disputed property. Even though the defendant had fully paid his dues, the case was classified as one of illegal possession: it was illegal because of the original action of the plaintiff’s father, not because of any wrongdoing by the defendant. But the latter became responsible for the plaintiff’s father action simply because he knewthat the offer was not based on any legal status. It was therefore with an assumption of the defendant’s knowledge that the court ruled in favor of the plaintiff, albeit on the condition that he fully refunds his opponent. Moreover, whether there was a pre-settlement or not, the case is very different from previous “illegal possession” litigations. First, the transaction sum was fully paid, and then refunded three years later at the request of the judge. The euphemism “property X was bought for a well known sum,” which remains unknown, and which only serves as a procedural fiction, is here reversed: the fact that the date and amount of the transaction have been fully identified by both sides is enough indication of the non-fictitious nature of that litigation, even if it turns out—and that’s impossible to confirm—that the whole case was an outcome of a pre-settlement. Second, legal subterfuges were not needed: an illegal possession must end, and that was basically it.

17By what kind of reasoning did the judge rule for the plaintiff? The non-stated assumptions of the ruling go as follows: 1) The seller of a property must either enjoy absolute ownership, or else be the legal representative of its owner. 2) The seller in that case lied about his status vis-à-vis the property. 3) The orally completed transaction is therefore null and void. 4) The buyer-defendant must therefore restore the property, only to be reimbursed for the sum of its initial purchase. What kind of legal reasoning did that represent? While the first statement is based on well known anafī opinions (in fact, so well known that they need not be quoted), the remaining three (2-4) follow deductively from the first. But the main assumption remains in relation to the general status of private property. Since “private” only came in association with several other quasi-“ownership” notions—from the licit and illicit “occupation” up to “possession” and full milk, not to mention the waqf—in our case here (C 7-1), “ownership” becomes restricted to its original meaning of inalienable rights.

18Yet, as the following case will show, not all illegal possession cases, or at least those presented as such, are that clear and simple. Complications could arise either because the possession is denied, or due to lack of evidence (meaning reliable witnesses), or the reliability of one or all witnesses has been challenged, or simply because the other party failed to show up at the moment of the ruling, any such problem could push for a muftī’s fatwā, which all by itself adds another complication.

  • 10 Beirut sharī‘a courts, unnumbered register and pages, case dated 12 Rabī‘ II 1259 (May 12, 1843).

19[C 7-2] In this case, whose hearing took place in Beirut on May 12, 1843,10 the defendants, the two brothers Dawūd and ‘Assāf b. Qāsim al-Zayn, Qāsim Idrīs, and usayn Mūsa, all appointed Qāsim b. ājj Ibrāhīm al-Siblīnī as their representative in court for their litigation with Emir Milim b. aydar al-Shihābī. The act of representation was certified by two witnesses, the ‘ālimMuyī al-Dīn Efendi al-Bakrī al-Yāfī and Muṣṭafa Qurunful who, in turn, acted as representative on behalf of ammūd al-Zayn, the fifth defendant. Qurunful’s right of representation, also against the Shihābī Emir, was certified by two of the other defendants (and at the same time witnesses), ‘Assāf [al-Zayn?] and Qāsim Idrīs; and finally, the judge also approved all the intricacies of representation. Did the fact that one of the witnesses was also representative to the fifth defendant, while that same representative had two of the defendants confirming his right of representation, pose any conflict of interests? Apparently not to the judge who even did not bother to pose the question and instead proceeded with the hearings. Defendants, representatives, and witnesses shifted roles as long as their status had been established as such by reliable people, in the same way that oath-taking could shift from plaintiff to defendant depending on how the burden of proof shifts sides during the procedures. For our purposes here, suffice it to note that even though two of the defendants acted already as witnesses on behalf of one of the two representatives, the latter was not their representative, but that of the fifth defendant.

  • 11 Specific location: north: land of Mu‘aytiq; south: rizq Bayt al-Būm (rizq refers to what this “hous (...)
  • 12 Specific location: north: river; south: land of al-arf; east: bi-‘āliyatihi (?); west: lands of Sī (...)

20As to the Emir, who initiated the lawsuit as plaintiff, he was represented by Shaykh Bishāra Khūrī (whose right to represent was legally justified, in the shar‘, but no witnesses confirmed it: no need of witnesses when a judge accepts the representative?). The litigation was, according to the plaintiff, over two disputed farms, the first, mazra‘at al-Duwayr, located in muqāa‘atBilād Jubayl (located mid-way between the coastal cities of Beirut and Tripoli), which the Emir had inherited from his father, and it contained lands some without any plantations (salīkh), while others had mulberry trees, fruits, and other types of plantations, and some buildings (‘amār) as well.11 The other farm, mazra‘at Jalab, was also in the same location and composed of similar elements as the first.12 The plaintiff’s representative made the claim that the Emir was, as his father prior to him, in “possession” (mutaarrif) of the two farms for a period of over fifty years, and it was only this past year (1842/3) that the defendants had their hands-on (wa‘ yad) over the two farms illegally by usurpation (bi-arīq al-ghab).

21When asked about the incident, the defendants’ representatives responded that their clients owned the two farms fully as milk, and that it was the plaintiff’s father and uncle, Emirs aydar and Yūsuf Shihāb, who illegally took it by force in an act of ghab,right after the death Zaynab bt. Mur‘ī, mother of one of the defendants, who was in full “possession” (wa‘ yad) of the farms. When Emir Yūsuf died, his brother, the plaintiff’s father, kept the illegal “possession” for himself, and upon the death of Emir aydar, the “possession” was transmitted to the plaintiff himself; all within a time-span of fifty years. The defendants further claimed that within this fifty-year period, they felt uneasy about the possibility of a lawsuit “because the Shihābs were in power and everyone feared their might (kānū dhawī shawkah wa ghalaba yukhāfu minhum).”

22The plaintiff’s representative, having rejected the defendants’ allegations, the qāī pushed the other party for some “evidence” (bayyina). The reason why evidence was summoned from the defendants only rather than the plaintiff was that the former acknowledged their actual “possession” of the two farms; thus, while the plaintiff was contesting that right of possession, the defendants had to prove that it was legal. Because the burden of proof was on the side of the defense, the defendants had also to establish the legitimacy of their representatives (confirmed by two witnesses) while such a step was unnecessary for the plaintiff. But why was the burden of proof on the side of the defense? Why wasn’t the plaintiff requested to prove that he and his father owned the two farms? Doesn’t a well known rule (originally a adīth?) in force since the early times of Islam explicitly request that “evidence should be provided by the plaintiff, and oath is on who denies (al-bayyina ‘ala man idda‘a wa-l-yamīn ‘ala man ankara)”? The opposite is here the rule: the plaintiff only throws allegations about the status of his property without any formal evidence, claims that it was violated by the defendants, while the latter had to prove that they occupied it legally. The reasoning might well be that since the defendants openly admitted that they forced their way, within the last year or so, over the two farms that were in the “possession” of the Emir (and earlier by his father), that because that was openly acknowledged as such, they had to prove the legality of their act by proving that the two farms were originally theirs.

23Since witnessing is also a form of evidence, the defense managed with two witnesses. The first, who repeated verbatim (karrara) what the defense had already stated, had his testimony accepted “in its spirit (form) and essence (laf-an wa ma‘na-n)”; the second was less fortunate and had his testimony rejected (ruddat shahādatuhu) because “it did not meet the proper conditions for accepting testimonies (lam tuqbal li-‘adam istīfā’ihā sharāyi al-qubūl).” The text, however, does not bother to explicate what those conditions were and which criteria the testimony could not meet. It doesn’t say either who rejected the testimony: was it the qāī who discovered its legal weaknesses? or was it the plaintiff? or was it related to the social identity (nisba) or personality of the witness himself? In general, the specific grounds for accepting or rejecting testimonies is seldom fully explicated: Was the oath the main criteria for accepting? Certainly not, since the second witness took oath too but that did not save his testimony. Or was it the “acceptance” of the testimony by the other party? What is of interest to us here is less what the reasons for rejecting this testimony might have been, than to understand the reasons for their nonexistence in the text itself. In other words, we know more about the system from what it fails to tell “us”—even though the nature of such texts excludes beforehand posthumous “readers”—than from what it reveals to itself, the social actors, and indirectly “us,” that is, today’s readers. The truth of the matter is that the system did not care much about what witnesses ostensibly said, that is, the content of their statements. Besides which, witnesses were never cross-examined, their statements were only a repetition of their own parties’ statements, and hence it all boiled down to status and rank.

24The court’s rejection of one of the two testimonies pushed the plaintiff’s representative for a plea to accept his client’s views and rule in his favor.

  • 13 Since the original text comes with no signs of punctuation at all, I have added quotation marks whe (...)

The plaintiff’s representative, Shaykh Bishāra, thus pleaded [dafa‘a] a legal plea [daf‘-an shar‘i-yan] and claimed that the aforementioned people [jamā‘a], “I mean, all those who are represented [by the defense], have proved [aqarra] and confessed [i‘tarafa] that those two farms are the property [milk] of my client, Emir Milim, and that they have no right, no law-suit, and no claim in it.”13

25Even though the text was drafted in an anonymous third-person singular to the point that the judge himself was referred to as “mawlānā al-qāī” or simply as “al-qāī,” the shift to the first-person singular, whenever one of the disputants, their representatives, or witnesses, is performing an utterance, does not weaken (or distract from) the overall style and texture in trying to establish an authority of the text. The text attempts to reinforce that authority further by including “factual elements” such as the lists of properties and their location or utterances from the parties in conflict. A couple of cautionary remarks: First, “factual” is not to be taken here in the modern sense of an objectively tested fact, one whose actual happening has been confirmed and accepted as such by more than one observer. So that neither the list of properties, which are the most “factual” element in the text, nor the utterances of the judge, disputants, and their witnesses, are there for their reliable content: they simply have been accepted or rejected for what they represent, namely as utterances whose truth-value has not been challenged rather than, say, empirically verified. In short, it was the preempirical nature of all such utterances that gave way to a ruling.

26Second, not all utterances were “quoted” in the first person since few were, like the rest of the text, integrated in an anonymous third-person texture. It is beside the point to see whether such statements were in fact uttered, and if so, whether they were “quoted” verbatim. The point here is to analyze the strategy of the text: when and why “it” decides to move from one grammatical mode to another. In this case, and this proves to be a common strategy in court documents, the constant shift from the third- to the first-person singular creates a strategy of distance and “otherness,” which helps in establishing an outside authority to the text. The construction of a textual authority helps in distancing the subjective author from his own text.

27Thirdly, anafīs understand a āditha,“event,” as a unique happening that would provide enough justification for the judge to begin a hearing. Similarly, a ādithacould trigger a muftī’s fatwā and thus become one of those numerous ādithat al-fatwā used for future reference by jurists and muftīs alike as “precedent.” In other words, adjudication, whether from a jurist, muftī, or judge, ought to be primarily concerned with a unique enough event, one which has no immediately visible textual precedent.

28The defendants’ representative refuses to accept that he had acknowledged the Emir’s rights over the two farms, while the judge pushes the other party for further evidence. The Emir’s representative brings two witnesses who reproduce verbatim the plaintiff’s view, and even though their testimony was approved, it was nevertheless contested (a‘ana) by the defense on the basis that one of the two witnesses (kept unidentified) was bribed (shahida bi-l-ujra). The judge then requests the defense to furnish evidence for challenging one of the plaintiff’s witnesses, and a month elapses in which neither the defendants nor their representatives show up at any time in court, while the witnesses of contestation (shuhūd al-a‘n) were only faceless entities.

  • 14 The text refers to the madīna mazbūra, even though no city was mentioned throughout the case thus f (...)

29Upon the defendants’ failure to furnish evidence through witnesses, the plaintiff’s representative pleads for a ruling in favor of his client on the basis of the two witnesses that testified a month earlier (one of them had his testimony contested by the other party). He also made known to the judge a fatwā signed and sealed by the muftī of Beirut,14 Muammad Efendi Zādah al-ulwānī, which framed the problem in the usual abstract terminology of fatwās.

  • 15 All quotation and punctuation marks have been added for convenience whenever the text shifts from t (...)
  • 16 Literally: “so that the ruling comes right to his face.”

A group of people [jamā‘a] have asked Zayd to legally represent them in a litigation and lawsuit [khuūma wa da‘wa] against ‘Umar, while the latter had, in turn, requested from Khālid to legally represent him in the same litigation and lawsuit against those people—both representatives having proved to the judge that they were legitimate. Then Khālid, ‘Umar’s representative, brings forth his litigation against Zayd, the group’s representative, concerning a set of properties whose limits are so-and-so, and which are owned by ‘Umar as milk and legally transferred to him from his father’s inheritance. “And now your clients have, a year ago, illegally occupied [wa‘ yad] those properties by usurpation [ghab].”15 Zayd accepts Khālid’s claim that his clients are now in possession of the properties, “but this is only because they were previously illegally occupied by your father’s and uncle’s client. Then your uncle’s client died and the properties were left to his father who, in turn, died, and the properties are now possessed by your client; all this was illegally done in a fifty-year period; and the aforementioned were all individuals who had might and power [shawka wa ghlaba] and everyone was afraid of them to the point that my clients could not sue them in court.” Upon Khālid’s denial of Zayd’s claims, the latter was requested by the judge to furnish evidence for his case. He thus brought two witnesses, but only one had his testimony accepted. At this point, ‘Umar’s representative, Khālid, pleaded “that those people [jamā‘a] had all admitted [aqarra] and confessed that the properties are the milk of my client ‘Umar and that they neither have a right nor a lawsuit in them.” Upon that plea, Zayd denies that his clients ever made such an admission, and the qāī then requests from Khālid, ‘Umar’s representative, to furnish evidence. He brought two witnesses to certify that the jamā‘a had admitted Khālid’s claims, and their testimonies were approved; but Zayd dismisses the testimony of one of the two witnesses on the basis that he was bribed [shahida bi-l-ujra], and the judge pushes the contester to prove the basis for his contestation. Both the represented and their representative left for a one-month period and never showed up in court again. Khālid then pleads with the judge to rule in favor of his client concerning the properties, and this based on the witnesses’ testimonies who testified concerning the above admittance [iqrār]. Should the qāī therefore reply to Khālid, ‘Umar’s representative, regarding his request, in the absence of his opponents, and appoint a curator [yanibu qayyim-an] on the jamā‘a so that he becomes responsible for the ruling [li-yaubba al-ukm al-shar‘ī fī wajhihi]16 and transmits it to them [fa-yata‘adda ilayhim]? And if the qāī accepts [zakka] the testimony of the above two witnesses secretly and in public [sirr-an wa ‘alāniyyat-an], is such an acceptance legal?

  • 17 For complete references to the works cited in the fatwā, see table below.
  • 18 Unclear (redundant?) statement: “regarding legal matters.”
  • 19 For complete references to these works, see fatwā table below (Table 7-2).

The answer to this situation [āl], as formulated in the question, is positive: the qāī should indeed forward his reply to the above opponent regarding his request. According to Abū Yūsuf17 [...] a curator should be appointed on [behalf of] the jamā‘a so that he is held responsible for the ruling and transmits it to them; and his opinion [qawl] on that issue should be adopted [as the official position among anafīs] considering what our ‘ulamā’ had already stated, that the fatwā, regarding legal matters,18 should be based on Abū Yūsuf’s opinion, and also because a similar opinion was reported by Abū anīfa. It was also stated in Jāmi‘ al-fuūlayn19 that the madhhab of the imām Muammad [Abū al-asan al-Shaybānī] was close to Abū Yūsuf on that matter: there is thus a consensus.

  • 20 The first was Abū Yūsuf’s.

It was noted in Shar al-wahbāniyya, based on a chapter from Adab al-qāī, based in turn on the Fawāyid, that when a man acknowledges to a judge that he owes something to another, and then he disappears before the final ruling, which his based on his acknowledgment, comes through, the judge thus enjoys the full right to proceed, through consensus [ijmā‘-an], with his ruling in the absence of the missing person. And if there is evidence regarding an obligation [qāmat ‘alayhi bayyina bi-l-aqq] [towards another person], which he denied, and he then disappears and dies before the judge was able to proceed with a ruling, then even though evidence had been validated [zukkiyat al-bayyina], it is illegal to rule with such evidence. However, Abū Yūsuf claimed that such a ruling is possible [under those conditions]; and al-Khāī, in Ikhtibār al-Khaṣṣāf, reiterated Abū Yūsuf’s opinion, and so did al-ulwānī. And in the same text [which one?], few lines later, it was reported from the imām Muammad [Shaybānī] in the nawādir [“rarities”] a similar opinion to that of Abū Yūsuf: the qāī and imām Abū ‘Alī al-Nasafī said that “I have seen in some of the nawādir [“rarities”] of Abū anīfa, God blesses him, a similar opinion to that of Abū Yūsuf.” So it has become a common procedure for the qāī to appoint an agent [representative] for an absent litigant, and then proceed with his ruling in the presence of that agent. It is also noted in the Durr al-mukhtār, regarding the issue of a qāī appointing an agent for an absented disputant, that when the opponent absents himself, the qāī should appoint an agent for all absentees—and that is the second opinion.20 I said that in Shar al-wahbāniyya, based on Shar adab al-qāī, that this was the opinion of the majority, namely that the judge should approve on an evidence for a period he sees appropriate and then appoint an agent. And the same applies when the judge approves [zakka] those witnesses in the absence of those who are implicated in the witnessing [al-mashhūd ‘alayhī], such an approval is legal because its purpose is to show the legality of the witnesses for the qāī and not for those who are implicated in the witnessing. And it was noted in the Durr, based on the Majmū‘, that it should be enough for the judge to give his approval on the witnessing without the presence of those who are implicated. Thus, our ‘ulamā’ have already pointed out on more than one occasion on the conditions of approval [shurū al-tazkiya], but never insisted that those who are implicated should be present. That is evident while following their reasoning in Kitāb al-shahādāt, that if the witnesses have changed, then the judge should inform the defendants and that he intends to proceed with the ruling. The conclusion from all of the above is that the judge should appoint an agent on behalf of the evaders and give a ruling in his presence so that the legal right, established through evidence, does not get lost.

30As soon as the judge read the muftī’s fatwā, he called for the defendants’ representative, Qāsim al-Siblīnī, after having approved the two witnesses’ statements who had witnessed against the defendants and in favor of the Emir. When Siblīnī claimed that he was dismissed (‘uzila) by his clients, a claim that was rejected by the plaintiff’s representative, the judge appointed him agent in lieu of his absented clients and then ruled the legality of the Emir’s milk over the two farms.

31For analytical purposes, this case could be divided into eight different steps (see Table 7-1 infra), and only in the last one did the fatwā intervene as the most decisive element that pushed the judge to rule for the plaintiff. What had kept the judge hesitating was the absence of the defendants for over a month: Could he have ruled in absentia? Could he have decided on his own? What is unusual in this case is that the fatwā was summoned by the plaintiff rather than the judge himself as in a few other cases to come (see Chapter 8 infra). Usually, the existence of a fatwā points to a hard case, or a difficulty that the judge encountered in his ruling. The inability to rule stems from a difficulty in finding an authoritative text that would act as precedent and that would thus allow the judge to rule by analogy (more specifically through takhrīj). In effect, even though anafī judges were permitted at their discretion to exercise their own independent reasoning and rule by ijtihādwhenever the reliance on a text turns problematic, sharī‘a court judges, however, rarely did so as they would typically prefer to be rescued by a fatwā (C 8-2, 11-7 & 11-8 infra). The fatwā therefore provides the judge with the crux of the argument to seal his case. In this case, it was blocked on the matter of issuing a ruling in the absence of the defendants, and the muftī was indeed in favor of a ruling but only after an agent on behalf the absentees is appointed by the judge. But while court rulings were typically secretive about the logic of their arguments, or, as in fictitious litigations, the logic remains hidden in many concealed subtleties, analogical reasoning usually dominates the logic of fatwās. Fatwās were thus always a welcomed contribution as they invariably gave more argumentative weight to an otherwise heavily routinized process of adjudication. One would have expected that for something as obvious and common as defendants not showing in court for the ruling, that the judge would have had a ready-made solution. But as both text and fatwā indicate, an expertise was needed to draft a final opinion based on a conglomeration of previously established ones and pulled out of the juristic typology of the school. The sorting out of such opinions, and their labeling into different priorities and categories, is what constitutes the essence of any fatwā—the kind of expertise that judges and their scribes might have lacked at the time.

Table ‎7-1: Synopsis of Milim Shihāb Case (Beirut, May 12, 1843) (C 7-2)

Step
#

Plaintiff:
Emir Mil
im Shihāb

Defendants (5), from Bilād Jubayl

Judge

Observations

1

  

Appoint Qāsim Siblīnī as their representative; witnesses in pairs of two confirm the act of representation.

The overall tawkīl(contract of representation) approved by the judge.

Plaintiff’s representative status confirmed without any need to witnesses.

2

Representative presents his case concerning the two farms: his client had them as inheritance from his father and as milk for fifty years, and it was only within the last year that the defendants took hold of them.

Representative claims that his clients owned the two farms fully when, fifty years ago, the plaintiff’s father and uncle illegally occupied them.

  

  

3

Representative rejects defendants’ claims.

  

Judge requests evidence from defendants.

Defendants having acknowledged that they were now in possession of the farms, are requested to furnish evidence for their wa‘ yad.

4

  

Defense brings two witnesses to court; one of them has his testimony rejected.

Judge rejected testimony of one of the defense’s witnesses?

Text leaves uncertain the issue of who had rejected, and why was the testimony refused.

5

Representative requests that court accepts his client’s claims.

Representative rejects his opponent’s proposal.

Judge asks for evidence from the plaintiff.

Plaintiff was asked for evidence for the first time.

6

Two witnesses on the plaintiff’s side.

Defense contests one of the plaintiff’s witnesses on the basis that he was bribed.

Judge requests from the defense evidence proving that witness was bribed.

  

7

  

Defendants and representative were absent from the court for a month and never came back.

  

  

8

Representative makes a (second) plea to the judge to rule in favor of his client and presents him with a fatwā from the muftī of Beirut who argued that if an opponent was absent prior to the final ruling, an agent should be appointed on his behalf by the judge, who would also transmit the final ruling to him.

  

Following the spirit of the muftī’s fatwā, judge reappoints Siblīnī as agent for his absented clients and rules in favor of the plaintiff.

  

32The proposed synopsis assumes seven steps prior to the fatwā. Compared to all other Shihābī cases, this would be the third “genuine” litigation (together with C 3-1 & 7-1 supra): several elements, such as the accusations against the Shihābs, the date of the trial, and the rejection of two witnesses’ testimonies, the absentee defendants, the fatwā, all contribute in the authentication of the case. The date itself—1843—is revealing since the Shihābs had lost power in light of the Egyptian withdrawal in 1840 when Bashīr II’s fate was sealed in exile; his cousin, Bashīr III, who succeeded, him proved weak and lost power in humiliating circumstances a year later in 1841. It is possible, therefore, as both parties claimed (but for different reasons), that the status of the two farms became uncertain by 1841/2 when the Shihābs had lost power completely. The plaintiff claimed that he and his father owned these properties for fifty years and were illegally occupied by the defendants in 1841/2. The defendants for their part claimed that they did nothing but recuperate properties that they originally owned but which the Shihābs had kept for themselves when they were at the apex of their political power—a form of accusation that was not that common in the language of the courts.

33As all other cases in this study show, contesting witnesses’ testimonies was not a common phenomenon either. The first two witnesses were introduced in step 4 as soon as the plaintiff’s representative rejected the defendants’ claims. The defendants, having acknowledged that they were the ones now in possession of the two farms, were pressed for evidence (step 3). Hence two witnesses testified and one had his testimony rejected—but by whom and for which reasons? Since in step 6, when the defense contested one the plaintiff’s witnesses on the basis that he was bribed, the text becomes specific as to the whom and why, it is therefore safe to assume that for the first contested witness, the contestation came most probably from the judge himself for an unspecified reason; and had the plaintiff’s side challenged the testimony, it would have been duly noted in the text. One should add that all rejections were treated exactly the same way as the validations, that is, unless the testimony came to be suspected by the other party, and since witnesses were not cross-examined and simply reproduced their party’s statements, it was simply left unchallenged. Thus, testimonies go through a double process of validation, beginning with the judge and then through both parties, and it was only when it was formally approved by the judge that opponents could contest it. Hence while the second part is usually manifestly present—especially in the case of a contestation—a judge’s approval or disapproval remain curiously with very little textual excuses.

34Similarly, the fatwā was constructed along similar lines of thought. The muftī had to rely on fourteen different anafī opinions (or fragments of opinions) prior to reaching his own conclusion (see Table 7-2 infra). Besides quoting some of the most impressive names and works, it was typical of muftis not to venture into little well known works and poorly recognized jurists since the whole process of writing fatwās (and there might be a parallel with drafting rulings) consisted less in convincing than in constructing an authoritative opinion. Beginning first with Abū anīfa and his two companions, the āibayn,Abū Yūsuf and Shaybānī, the fatwā then moves on to some of the main anafī jurists of the classical period, such as ulwānī, Nasafī, afakī, and Khaṣṣāf; finally, the Ottoman period has its own class of jurists of the likes of Ibn Nujaym, Ramlī, ‘Imādī and Ibn ‘Ābidīn, and this last category even though it “updates” the fiqh to contemporary problems, opinions, and fatwās, the latter were nevertheless seldom drafted in such a way as to indicate any coupure épistémologique with the classical period—the law never presents itself as a discursive practice evolving in time and space with issues problematized differently from one period to the other.

  • 21 Kept in their original order. Brackets show my own additions. At times, it was difficult to determi (...)

Table ‎7-2: Opinions in the fatwā of Beirut’s muftī (C 7-2).21

  • 22 Opinions are kept as close as possible to the wordings of the original fatwā (see above for the com (...)
  • 23 Ibn Qāī Samāwinah, Mamūd b. Isrā’īl, Jāmi‘ al-fuūlayn, 2 vol.   (Cairo: al-Maba‘a al-Azhariyya, (...)
  • 24 Could not identify author and full reference.
  • 25 There are several Adab al-qāī manuals in all the madhāhib. One of the most authoritative in the a (...)
  • 26 There are several Fawā’id books in anafī literature; the likelihood, however, that the reference h (...)
  • 27 Implying a “consensus” among various conflicting authoritative anafī opinions, which is what the p (...)
  • 28 Could not properly identify author’s name and reference. One possibility is adr al-Dīn al-Khāṣṣī a (...)
  • 29 Could not identify full reference.
  • 30 ‘Abdul ‘Azīz b. Amad al-ulwānī, Shar al-siyar al-kabīr ta’līf al-imām b.al-asan al-Shaybānī, ma (...)
  • 31 The well-known Nasafī who interpreted the legal thought of Abū anīfa was Amad b. Sayf al-Dīn al-N (...)
  • 32 anafī faqīh and muftī of Damascus (d. 1677).
  • 33 Muammad ‘Alā’ al-Dīn al-afakī, al-Durr al-mukhtār shar tanwīr al-abār (Cairo: Maba‘at al-Bābī (...)
  • 34 Imām ‘Umar b. ‘Abdul ‘Azīz, known also as al-usām al-Shahīd since he was killed in 536/1141, Shar(...)
  • 35 Could not identify author and full reference.
  • 36 Could not identify author and full reference.

#

Author

Text

Opinion22

Observations

1

Abū Yūsuf

n.t. [probably Kitāb al-āthār,Cairo, 1355/1936].

A curator should be appointed by the judge on behalf of the absent people (jamā‘a) so that he is held responsible for the ruling and transmits it to them.
A similar opinion was apparently attributed to Abū anīfa.

Opinion is quoted from a non-identified Abū Yūsuf text in an ad hoc manner, and even though that’s the main opinion in the fatwā, on which is structured the rest, it curiously lacks a plausible explanation as to the logic of an ex parte ruling in the absence of one of the parties. Moreover, the opinion avoids the crucial issue of the evidence put forward by the absented party and that might have been validated by the judge (see # 3-5 below).

2

[Ibn Qāī Samāwinah, Mamūd b. Isrā’īl]

Jāmi‘ al-fuūlayn.23

Reports that Shaybānī’s opinion is in conformity with Abū Yūsuf in (1).

The consensus of the school’s three founders is now complete.

3

[Khaṣṣāf al-Shaybānī in Adab al-qāī?]

Shar al-wahbāniyya,24 based on Adab al-qāī,25 based on the Fawāyid[Fawā’id].26

When a man acknowledges to a judge that he owes something to another, and then disappears before the final ruling on what he has acknowledged comes through, then the judge has the right to proceed, through consensus (ijmā‘-an),27 with his ruling in the absence of the missing person.

Confirms Abū Yūsuf’s opinion, without, however, requiring appointment of a curator.

4

id.?

id.?

If there is evidence concerning an obligation that someone owes to another, which he denied, and then disappears and dies before the judge is able to rule, then even though the evidence has been validated, it is illegal to rule based on that evidence.

The only “negative” opinion not in favor of the judge proceeding with a final ruling.
The obligation towards the other person, even though denied by the absentee, must nevertheless be validated by the judge himself, based on the other party’s evidence and the inability of the absentee to provide any counter-evidence.

5

Abū Yūsuf

n.t.

A ruling is possible on (4).

Judge can rule because as stated in (12) below, the validation is for the judge himself prior to being so for the concerned parties.
In our case here, crucial evidence was introduced by the plaintiff, and partly rejected by the absentees. The judge must therefore 1) validate plaintiff’s evidence; 2) appoint a curator; and 3) draft his final ruling.

6

al-Khāī28

Ikhtibār al-Khaṣṣāf.29

Reiterated Abū Yūsuf’s opinion in (5).

7

al-ulwānī30

[?]

Same as (6).

8

al-Khāī(?)

Ikhtibār al-Khaṣṣāf(?).

Reports that Shaybānī had a similar opinion to Abū Yūsuf (5?)

  

9

Abū ‘Alī [Amad b. Sayf al-Dīn (?)] al-Nasafī31

[Shar al-fiqh al-akbar(?)]

“I have seen in some of Abū anīfa’s nawādir[...] something similar to Abū Yūsuf [5?].”

The nawādir,“rarities,” were Abū anīfa’s less authorized opinions.

10

[afakī]32

Durr al-mukhtār.33

When the opponent absents himself, the qāī should appoint an agent for all absentees.

This is the second opinion after Abū Yūsuf’s.

11

[Imām ‘Umar b. al-‘Azīz for Shar adab al-qāī.]

Shar al-wahbāniyya,based on Shar adab al-qāī [of Khaṣṣāf].34

Judge should approve on the evidence for a period he sees appropriate and then appoints the agent for the absent disputant(s).

  

12

id.?

id.?

When the judge approves (zakka) those witnesses in the absence of those who are implicated in the witnessing (al-mashhūd ‘alayhī), such an approval is legal because its purpose is to show the legality of the witnesses for the qāī and not for those who are implicated in the witnessing.

The crux of the argument regarding abstention and ruling under such conditions is finally developed in this non-identified opinion. It all amounts to less with drafting a ruling in the absence of one of the parties, but more in validating a party’s testimonies while the opposing party is absent. It all points to the crucial fact that the validation of testimonies is relative to the input of both parties and their presence in the courtroom.

13

[afakī]

Durr al-mukhtār,based on the Majmū‘.35

It should be enough for the judge to give his approval on the witnessing without the presence of those who are implicated.

  

14

[?]

Kitāb al-shahādāt.36

If there is a change in the witnesses, then the judge should inform the defendants that despite the change he intends to proceed with the ruling.

  

15

Muftī of Beirut (1843)

  

Judge should appoint an agent on behalf of the evaders and give a ruling in his presence so that the legal right, established through evidence, does not get lost.

Conclusion and final point of the fatwā.

35The fatwā makes it plainly clear that the judge should be concerned with two interrelated issues prior to drafting a ruling. First, regarding the bi-testimonial evidence furnished by the plaintiff, one of which having received a challenge from the defendants, should the judge validate that evidence by himself, in the absence of the defendants, and then proceed with the ruling? Second, would a ruling drafted in the absence of one of the parties still be legal? The first issue points to the difficulty in validating evidence when the opposing party that challenged some or all of that evidence has absented itself. In other words, testimonial evidence was not validated through objective reasoning (presentation of factual evidence and systematic investigation), but by the challenge presented in court by the opposing party. Unless, therefore, both parties are physically present in court, the validation of testimonial and other evidence would pose a problem. In effect, anything could count towards the final act of validation, so that even the silence of the other party is as important as denial or acceptance. If, therefore, the strategies deployed by both parties in court are what leads to the ritual of validation, can a judge accept a testimony with the (intended?) absence of the other? (Notice that the fatwā does not distinguish between intentional or non-intentional, and accidental or non-accidental, abstentions.) In our case here, the plaintiff had introduced testimonial evidence, which was partly rejected by the defendants, who then absented themselves. Clearly, the hope of the absentees was to invalidate the plaintiff’s evidence: it might indeed seem strange that evidence could be even invalidated by simply having one of the parties absenting itself. But that’s only because we’re used to modern systems of reasoning in which evidence is supposedly constructed independently of a subjective observer, an epistemology and cognitive practice borrowed from the natural sciences. So, the point here is not simply the absenteeism of the defendants, but the fact that, prior to their absence, they did contribute in the process of evidence making, but having not participated in the process right to the end, validation was left incomplete: Should therefore the judge complete the validation process with one party only, and then draft a ruling? The fatwā was affirmative.

36The first opinion in the fatwā comes from Abū Yūsuf, and even though no text was specified, it looks as though it was based on Kitāb al-āthār.Basically, Abū Yūsuf’s opinion structures the rest of the fatwā by stating that a curator (or agent, or representative) should be appointed by the judge on behalf of the absented people (the jamā‘a,or group of five defendants), and then proceed with his final ruling, and it is the responsibility of the appointed curator to transmit the judge’s final decision to his “clients.” In principle such an opinion from a prestigious faqīh should have been enough for the judge to proceed with his ruling (in his conclusion (15), the muftī does nothing more, after fourteen “similar” opinions, to go back to the “source,” that is Abū Yūsuf). What is the purpose then in adding thirteen more opinions when the first one seems perfectly clear and suitable for the case in question? The muftī had probably two problems in mind. First, the problem of ijmā‘,and, second, that of a non-completed process of testimony validation: Is it possible for the judge to proceed with validation in the absence of defendants whose contribution in the process was vital?

37What this fatwā exploits well is the practice of consensus. If consensus implies a group of authoritative authors and texts that serve as vehicle for judicial decision making, then each generation (abaqa) of anafī scholars creates its own set of references. To be sure, consensus cannot be reduced to an identification of a set of authors and texts, but rather, and more appropriately, it consists in the practices that each generation generates for itself in order to create the appropriate tools that are needed for recognition and adjudication. As such the process consists less in finding the authoritative texts, and more in the interpretive methods needed to deduce—either ad hoc or through analogy, metaphor, and doctrine—all the opinions that are necessary for the work in progress of both the fiqh and the sharī‘a courts. Thus, even though consensus is what provides the madhhab with an illusion of autonomy and continuity with the past, each generation of anafī scholars de facto “historicizes” that hermeneutical movement through the juristic typology encountered in Chapter 1. What emerges in each generational movement is a set of practices accepted by the majority, which determines the interpretive and adjudicative methods. Consensus therefore generates a set of practices that helps in finding the required texts and creating the appropriate interpretive tools, all of which are for the sole purpose in keeping the fiqh tradition alive and the adjudication of the courts working according to the rules of the madhhab. Neither the interpretive process nor the adjudication of the courts are a closed and systematic process, in that they cannot be simply identified as a set of clearly established texts and rules. Jurists typically do not construct manuals systematically from scratch with an eye as to what their ancestors have produced. In fact, despite all the deployed efforts to limit extra-legal effects, a fiqh manual, in a way similar to a muftī’s fatwā, integrates some of the societal needs of its period, and as a result, looks more like an open source for requests, problems, and solutions, than a systematically structured manual.

38Besides his concern with ijmā‘(and hence indirectly with isnād), the muftī was also looking for a method to interpret, classify, and sort out the various opinions. In the table of opinions (Table 7-2 supra), (2) adds nothing to (1) but simply reinforces the consensus by adding Abū Yūsuf’s alter-ego, Shaybānī; the (1) and (2) combo already brings a consensus of all three founders around the crucial issue of abstention; (3) is more specific than (1) in that it brings the issue of a validated testimony (it hasn’t been denied, at least not yet) prior to the absence of the party that provided that evidence, so that the appointment of the curator is not perceived anymore as solely the outcome of an absented party, but that of validated evidence in need of a ruling. But (4), which was the only “negative” opinion in the whole set, finds it illegal to rule with an approved evidence, but which the absented person in the litigation, who died, had denied in the hearings: it thus adds to (3) the possibility of an evidence that the absentee had denied to the judge, which brings us a bit closer to our case. However, in (5) we realize that Abū Yūsuf was in favor of a judge’s ruling under those same conditions as (4); and all what opinions (6) to (9) do—and they all come from different anafī sources—is create a direct consensus around Abū Yūsuf’s opinion that the judge should proceed anyway regardless of the condition of the absentee and his denial of evidence. However, in the two positive opinions originating from Abū Yūsuf (1 and 4), there is no manifest logic that has been identified as to why a judge should proceed either way. Thus, between (4) and (5), the fatwā moves from one opinion to its direct negation without providing for even a minimalist argument. In fact, the only reason thus far to follow (5) rather than (4) is that the former is Abū Yūsuf’s.

39Hence, it is only in (10) with akafī and his Durr al-mukhtār that we finally come to something new—at least “new” to the muftī himself since he claimed that “this is the second opinion.” If we consider Abū Yūsuf’s opinion in (1) to be the first, around which all others were structured, the difference between the two seems indeed minimal. Perhaps the only novelty is in the statement “when the opponent absents himself,” which implicitly implies an act of absenting oneself done willingly for strategic reasons (e.g., with the hope to nullify evidence); otherwise the appointment of a curator for all absentees was already in (1). Actually, a genuinely new element comes only in the last set, (11) to (14). Those last opinions were all concerned with the judge approving (zakka) upon acts of witnessing in the absence of all concerned, that is, “those who are implicated in the witnessing (al-mashhūd ‘alayhim).” Such testimonies might have been rejected by the other party, which later absented itself without providing evidence upon which the rejection was based, as happened in our case here, or they might have been accepted by both parties, including the judge. In both cases, however, the judge needs to deliver a judgment, based on those testimonies and their acceptance or rejection, but in the absence of those who are concerned. What the last four opinions do is separate the interest in knowing the “truthfulness” of a testimony from those implicated and keep it within the judge’s jurisdiction on the basis that such testimonies are destined to him in the first place since the act of validation is primarily related to the judge—he needs to be convinced that all utterances are true and accurate, and base his judgment on the truthfulness of the actors—rather than the disputants themselves or those who delivered the testimonies (12). That’s fair enough, but why then do some of the other opinions show a concern with partially validated testimonies? Isn’t it because the absence of the opposing party prevents a full validation? Indeed, the judge is the one to give his final approval on procedures, testimonies, and their validation, but since the process of approval upon a testimony is less content oriented, and more a wait-and-see attitude from the other side, the absence of any one party poses a serious challenge to the judge.

40In hindsight though only three of the fifteen opinions turn crucial: (1), (5), and (12), all of which are stated on an ad hoc basis, while the rest help in adding consensus. Thus, the proposal to appoint a curator in (1) is neither situated in the context of Abū Yūsuf’s legal reasoning nor in that of the particular text, which remains unidentified, from which the opinion was extracted. Deprived of its original source, the opinion only makes sense in the context of both fatwā and case at hand. Stated in an ad hoc manner, it is supposed to work by analogy to the present case: the appointment of a curator solves the problem for the judge in that he will notify his “clients.” Hence the implicit idea in (1) is indeed based on the more general notion of representation, and hence overlaps with that of representatives appointed by the disputants. In our case here, however, it is the judge imposing representation on the absented party, and making the curator responsible for the transmission of the ruling to his “clients.” But the notion of a judge being able to impose representation is never explicitly stated as such and remains one of the fatwā’s main hidden assumptions, and its first one.

41The third opinion is as crucial as (1), but still needs (4) and (5) to be fully effective. In fact, (3) introduces the notion of a testimony prior to the testifier becoming an absentee, while in (4) the testifier self-denies prior to absenting himself. As in (1), all those opinions are stated ad hoc and supposed to work analogically in conjunction with the case. Thus, even though the defendants did not self-deny what they had uttered in court, they did, however, refuse to endorse one of their opponent’s testimonies: hence self-denial in (4) works by analogy to rejecting an opponent’s testimony since evidence has become uncertain in both. Again, what is assumed is not explicitly stated: Can the process of testimonial validation still work when the testifier either self-denies or absents himself? The unconsciously hidden notion is that testimonies are only effective in the presence of the other, and thus have no value on their own, to the point that in a lawsuit, if a party only testifies to the judge, the testimony is weakened due to the absence of the other. In short, it is the relative nature of testimonies that is the second major assumption in the fatwā: they are unable to carry a truth-value on their own independently of the assessment of all disputants.

42Opinion (12) is the third most crucial one. It gives the judge the power in validating all testimonies even in the absence of those “implicated in the witnessing.” The novelty here is the explanation: a judge’s approval “is legal because its purpose is to show the legality of the witnesses for the judge himself and not for those who are implicated in the witnessing.” Besides freeing the judge from linking his approval to the presence of all those implicated, it links validation to his discretionary powers. With the explication that it provided, opinion (12) looks as though it flows deductively from both (1) and (3), but a closer look reveals that the freedom granted to the judge to validate testimonies and to rule in the absence of those implicated follows post hoc from (3). Another possibility is to look at (12) in the same way as (1) and (3): all three are ad hoc statements that are implemented within the case by means of analogic reasoning.

43Fatwās are therefore devices that work in conjunction with cases at hand (it doesn’t matter much whether the case is real, hypothetical, or imaginary). Their practice consists in picking opinions from various authoritative sources by decontextualizing them from the latter: it is indeed irrelevant what the specified opinion meant in the context of the text it was extracted from. It then follows a process of contextualization in conjunction with the case at hand. It is possible to distinguish two kinds of opinions. First, a limited number of crucial opinions, usually stated ad hoc, which serve to structure the totality of the fatwā and provide the muftī with the main arguments, to which is added another set of opinions that are merely consensual in nature: they add nothing to content. Moreover, all opinions of the first category are analogically linked to the case in question. Fatwā making is therefore a continual process of bricolage, of montage and collage, or a juxtaposition of elements from different sources and historical periods, all of which are brought together in conjunction with the “event (āditha)” that necessitated the fatwā: once the muftī comes up with an opinion, the event becomes known as ādithat al-fatwā,or the event that prompted for a fatwā and made it possible.

  • 37 On the practice of analogy in the context of the so-called pensée sauvage, see Pierre Bourdieu, Le (...)

44That process is very similar to both the drafting of individual chapters in the fiqh manuals, and to decision-making in the sharī‘a courts, all of which are an outcome of the juristic typology encountered in Chapter 1. In that global process of recognition and adjudication, opinions are collected from various texts without much concern as to their original meaning and juxtaposed in an ad hoc manner to act in conjunction with one another as a constructed system of meaning. They are then contextualized in conjunction with a specific concern—which could be anything from a sharī‘a court case, to an issue (malab) raised among the community of scholars, a chapter on a specific topic drafted by a jurist, a Risāla,or a fatwā—and are related to each other and to the “event” in question by means of analogical reasoning. The combination of ad hoc statements and analogy brackets off the difficulties encountered in both deductive reasoning and induction.37 In fact, by attempting to avoid at all cost both the logical (hence deductive) mode of reasoning, and intuitionism or induction as such, judicial decision making gives priority to analogy and metaphor, on the one hand, and ad hoc statements on the other. Such a combination works well in particular for a system which in its essence is not based on a set of clearly defined codes, but more so on notions of authoritative authors, who act like the totemic figures in primitive societies, and whose texts have to be classified and recontextualized for each generation (abaqa) of scholars, so as to meet the specific needs of the apparatus of justice for a particular society. Thus, in a strange way, the system remains very open to contingencies and closed at the same time. Its closeness comes from the fact that the specific grammatical, syntactic, and structural character of the fiqh language is hard to modify in its substance; that essential character (al,as jurists would say) rather adapts to societal changes by redefining the interpretive methods that determine the meaning of texts in new contextual situations. It is therefore the logic of those interpretive methods for each generation of scholars, and the new discourses that they might generate, in both civil and criminal procedures, which are worth investigating at length.

45What is remarkable was how little state intervention there was, if any at all. In fact, besides the state’s appointment of judges, the latter had full control over their courtrooms, and the fact that there was little effort (if any) towards a centralization of the courts, or a significant process of judicial review, one at least that would have created a hierarchy between courts (that will be the idea behind the second wave of reforms with the institutionalization of the niāmī courts and their hierarchies) so that litigants would have appealed to a higher court had they not been satisfied with the ruling. They could, of course, in the present sharī‘a system have appealed to a higher-ranking judge, or even to a muftī who could have issued a fatwā in contradiction with or revoking a judge’s ruling, but court records do not show any significant trend in that direction probably because all was left to the personal discretionary powers of judges rather than to institutional forces that would have routinized the appeal process, and thus helped in a process of court centralization—at least one that would have been more state controlled. The point here is that sharī‘a courts were by and large left with too many powers of their own, and considering the large number of property litigations (fictional or real) that the courts were able to handle, one is naturally tempted to ask whether there was any convergence of interests between the sharī‘a courts and the ruling factions of the notables: Did the courts serve in any way as a vehicle for the protection to the nobility’s landholdings? The question gains even more in importance considering that the state and local bureaucracies in Beirut and Damascus had practically no control over the adjudicative powers of the courts. Considering that those courts not only protected aggrieved landholders and deprived heirs, but more importantly, enabled property transfers to be validated, a package that included the validation of long lists of costly properties, the transcription in writing of oral testimonies, and finally, a judge’s ruling, which, in absence of higher appeals courts, was hard to revoke.

46Moreover, the procedural fictions we encountered in the previous chapters were not meant to “hide” any landholding patterns either from the central or local bureaucracies. Those procedures were indeed primarily meant to address shortcomings in anafī practice itself, in particular to bypass a rigid law of contract without tackling the substance of the law as such, but only by creating a set of procedures that would keep the law intact while making property transactions seem more flexible. In short, the iyalhave a long standing presence among anafīs, and procedural fictions were no more than devices within the law itself rather than, say, subterfuges against the state or local authorities. Even if, in the process of transferring and fixing property landholdings, it turns out that some state-owned mīrī lands were becoming either waqf or milk—which, it should be noted, is no easy process to document, and thus remains an assumption—that is not necessarily a sign that either the state was not aware of the procedures, or that it was a de facto strategy adopted by the notables and which the state could not stop. In other words, as I have argued repeatedly, it would be a mistake to look in hindsight at the procedural fictions as some kind of a pre-1858 hidden Land Code whose explicit formulation only came during the second wave of reforms that touched more aggressively upon the judiciary. The assumption here is that the a‘yān’s and muqāa‘jī’s interests and their relation to the state was not a problem. Certainly not a problem for the both the central and local authorities who have assumed the notables’ interests for centuries, a line of interests that did not change much even with a marginal expansion of inter-regional mercantilism in Greater Syria throughout the nineteenth century. The sharī‘a courts were thus left autonomous on their own so that the infrastructures of cities and their countrysides, their economies and a‘yānnetworks, and the like, all worked according to their own assumptions. The court system obviously went on with the assumption that landowners controlled the greatest source of income, and hence the courts could not but work in conformity with such interests (and that was even more obvious with the regional councils).

  • 38 Subtle differences did exist between the French and Ottoman codes, in particular when it came to th (...)

47By contrast, the regional councils were vehicles for judicial policy making (see Chapter 9 infra), but even in that function they did not seem to have altered much in the traditional balance that the urban a‘yān had kept for a long time with the state. For one thing, it was not expected that a committee of urban notables whose role was to adjudicate in an institution that at the same time paralleled and bypassed the sharī‘a courts, to create a conflict with its own interests. It was in effect only with the second reforms that the balance began to shift in other directions. In fact, the judicial reforms of the 1850s and later were not only meant as a tool of bureaucratization and centralization of the courts, and the entire judicial process for that matter, but more important, their cognitive and epistemological assumptions were fundamentally different from anything that preceded them. Moreover, as in many civil-law systems, the reforms were primarily bureaucratic in nature, meaning that they were implemented hastily from above and with little grassroots from below, so that the mostly Napoleonic codes adopted by the Ottomans38 had a similar objective as their French counterpart: to rationalize and centralize the judiciary by bureaucratizing and routinizing all practices and procedures—a process, which as far as Syria and Lebanon are concerned, is still in progress. In short, the difference between the old sharī‘a and niāmī systems resides in a loss of autonomy of the judiciary and its centralization under the cover of state institutions and laws, even though the sharī‘a courts were left, as they are still today in both Syria and Lebanon, with personal status matters, so that an institution as crucial as the family was still under their jurisdiction.

Excursus: English common law

  • 39 Berque, Essai, 21: “le fiqh comme case-law”; Rosen, Justice, Chapter 3.

48The autonomy of the sharī‘a courts, the discretionary powers of judges, and the elusive and non-systematic nature of the legal norms have led some to look at the court practices as part of a case-law system, thus bearing many similarities with medieval or modern Anglo-Saxon common-law adjudi-cation.39 A brief comparison between the two systems could prove to be beneficial at this juncture as it would point to major differences between a system that was meant to keep the populations and societies of the Ottoman Empire under the servitude and protection of their respective millets, and the English common law whose primary aim was exactly the opposite: to bypass the local customs and divisions in society while implementing a centralized legal system but with strong regional grassroots.

  • 40 A recent overview of the English common-law system, which recaptures the debates of the last centur (...)

49Let us first begin with precedent. A most well known aspect of common-law systems, in their English or American variants, is their use of precedent. Without getting into the historical details that led to precedent, suffice it to say that common-law precedent is explicit in the system, which means that precedents are not only openly used by judges for future cases, but also compiled for pedagogical, reference, statutory work, and the like.40 Moreover, due of the importance of precedent and its explicit nature in the system, judges do contribute, albeit indirectly, in the law-making process, even if the system does not recognize that their role extends beyond adjudication (or “applying the law”) as such. To my knowledge, precedent, if it ever comes in the practice of sharī‘a courts, is always on an implicit de facto basis, as if judges have to hide their use of precedent if case they dare practicing it. Moreover, modern scholarship always assumes that some kind of precedent must have been practiced by judges, but the process has yet to be fully described and corroborated for at least a single sharī‘a court. In short, between a system that explicitly applies precedent, and for which precedent constitutes the essence of the system, and the Islamic sharī‘a system, which some would like to portray as based on implicit rules of precedence, the difference is hard to bridge.

50Second, the hallmark of the medieval English common law was the assize juries in the shire courts, which began to appear by the twelfth century, and which were presided over by itinerant royal justices, and impaneled by royal writs. The extensive use of the jury in property disputes (civil actions) was not only a big step forward in that the jury contributed in both fact-finding and adjudication, but it also rooted the judiciary on a regional basis by letting ordinary people participate in the process. (The jury system was also revolutionary for two other factors: (1) it created an intermediary third body between the judge and the disputants, and, (2) it transformed the primitive ordeal procedures into ones that were more “neutral,” that is, fact-finding finally came into the picture.) Moreover, centralization was achieved thanks to the “general eyre,” a circuit court held by itinerant royal justices. This double movement, which rooted the system on a regional basis by letting common people bring forth their local customs only to be challenged by the royal judges, was what gave the system its unique character and a dynamic very different from the Roman-based systems of the Continent. Not only Islamic systems never had juries, but fact-finding was overall limited to what the disputants brought with them to the sharī‘a court. But more importantly still, the sharī‘a system was not even partially centralized either by some state structure or internally on is own (e.g., procedures for reviewing rulings, higher appeal courts, or norms imposed by the imperial bureaucracy, etc.). Thus, while the courts were meant to be rooted in the neighborhoods of cities, they functioned on the basis of their own assumptions regarding the customs of the localities they were serving. Only the disputants, together with their representatives and witnesses came to court, and thus only they contributed to the judicial process, even though their utterances were never quoted verbatim but filtered through a rigid judicial language. Not only were the sharī‘a courts for the most part left unchallenged by the central authorities, but the Ottomans created parallel legislative and adjudicative systems so that the limitations in anafī practice be addressed by other legal or quasi-legal bodies.

51In medieval England, plaintiffs petitioned the royal chancery which in turn issued writs that looked like particular grievance formulas. Only when a writ was sent was a jury impaneled to prepare for a case, and even though writs became at times in rigid forms that were hard to bypass (hence the necessity by the sixteenth century of the Equity Courts), they contributed to the process of centralization orchestrated by the king’s court and its entourage. By contrast, in a sharī‘a court, the judge was (and still is) in principle left on his own to adjudicate, but in practice he either relies on routinized formulas, or else on the assessment of the case by a local muftī, not to mention all the opinions of his madhhab.

  • 41 ,Norman F. Cantor, Imagining the Law (New York: HarperPerennial, 1997), Chapter 7.

52Thirdly, in English common law, at the time of “Bracton’s Courtroom,” professional attorneys began to show up in courts as procedures and jury work became more complex.41 That led to an inevitable lengthening of the time of a hearing so that time became the most crucial factor that distinguished trials from their earlier ones: they lost their simple and mechanical setting when disputants would present their case without much examination and counter-arguments, and then wait for a ruling.

  • 42 Muammad Sa‘īd and Jamāl al-Dīn al-Qāsimī, Qāmūs al-inā‘āt al-Shāmiyya (Paris: Mouton & Co., 1960) (...)
  • 43 Lucien Karpik, Les avocats (Paris: Gallimard, 1995).

53By contrast, sharī‘a courts were a domain exclusively controlled by male judges, with no attorneys, but only with representatives whenever the disputants felt the need to be represented. Representatives were usually not professionally trained in legal matters, and acted more like confidantes towards their clients; in some cases, they were kin related. But the essential point is that courtroom hearings did not involve much give-and-take, and that was partly due to the fact that there were no third-parties who acted as professionals and were properly trained to do so. Thus, the non-verbatim nature of court documents, which supposedly were based on actual hearings, had not much to do with an alleged “secrecy” of the court system, but more with a lack of professional bodies that would have mediated between the judges and the social actors. That would have created a much needed controversial atmosphere with a greater variety of cases. The absence of jurors, attorneys (or lawyers), and other professionals, kept the courts well insulated from their environment, so that the body of ‘ulamā’that controlled them controlled the tempo for change: what to include and what to avoid, and which cases are worthy of a hearing. But even by the mid-nineteenth century, the term “lawyer” was so uncommon in Damascus that Qāsimī’s Qāmūsintroduces it as the newly-created “abūkāt,”42 from the French avocat, which in turn was originally a medieval term and legal practice.43

54Fourthly, there are two kinds of legal precedents: one based on previous rulings, and another based on previous opinions, and in both cases, analogical reasoning is applied. Anglo-Saxon common-law systems are known for relying on previous rulings, or the principle of stare decisis, meaning judicial review through precedent citing. By contrast, sharī‘a court rulings are usually based on previous juristic opinions, or actual ones drafted by muftīs. It is quite possible that jurists and muftīs reformulated opinions that some court rulings were very much in need of, or that were procedural in nature, so that they could be used by analogy for other similar cases. In effect, large treatises, such as Ibn ‘Ābidīn’s Radd, were drafted with conflicting needs: some sections seem to have been in existence since the formation of the madhhab, while others were added as reflecting actual problems or even urgent needs, so that one has to assume that the practice of the courts got at times formulated through the discourse of the fiqh. But even if that proves to be the case, a system works differently when it only implicitly relies on some of its previous rulings, from one whose cases were discussed in regularly printed Year Books in order to serve as precedent and as models for training lawyers and barristers. In short, Islamic legal systems were (and are) controlled by a small group of professionals (thus drawing some similarities with civil-law systems), while English common law, since its early medieval origins, was a system that kept proliferating into society: between the judges and jurors, stood attorneys, lawyers, and barristers, not to mention the legislation of the Parliament, so that precedent came as the outcome of a large heterogeneous “society” participating into the system.

  • 44 Cantor, Imagining, 195.

55Fifthly, the nature of evidence, and its corollary fact-finding, is radically different in the two systems. In all cases examined in this study, evidence (what the texts refer to as bayyina) is introduced and commented upon by both parties, and even though the accuracy of a bayyina could be challenged either by the opposing party or by the judge himself, the system of proof and persuasion remains locked within the combined contributions of plaintiff and defendant. In other words, the system lacks a third-party investigation that could shed some light on the parties’ allegations, and even present their evidence from a different perspective. Between 1300 and 1500, the English common-law jury was modernized since “It turned from the self-informing to the trial-informing jury.”44 With the scientific revolution, the scientific method of investigation found its way into the inquisitorial court system. The point here is that while the sharī‘a system relied on the self-information of the disputants, English common-law courts kept opening to the outside, thus profoundly altering the nature of evidence from the medieval to modern periods.

56To summarize: common-law systems, and in particular the medieval English as it evolved between the Norman conquest in 1066 and the Magna Carta, heavily relied, on the one hand, thanks to the jury system, on the customary practices and perceptions of the local people. The twelve jurors also contributed to fact-finding and in assessing the disputants’ claims. On the other hand, those common perceptions were challenged and checked by the itinerant royal justices who dominated the hearing, and by the writs that gave form to grievance pleas. What gives the Islamic sharī‘a courts the look of a case-law system is the common perception that the courts were always a work in progress, meaning that judges enjoyed lots of discretionary powers, which shifted the balance of power from a set of normative rules that were never codified to the courts themselves. Thus, codes and procedures were always in a process of formation, while, unlike in many civil-law systems, jurists never made an effort to systematize the law into a coherent set of codes. Such an approach, however, overlooks the efforts deployed in common-law systems in two directions: absorbing as much of customary practices as possible while maintaining a balance between all those regional customs and royal justice that served as an arbitrator. By contrast, while sharī‘a law opened itself very cautiously to custom (see Chapter 1 infra), the courts were very much controlled by the ‘ulamā’among the urban notables: even though that was to be expected, the system received little fresh blood from its environment, while sultanic legislation was meant for another kind of adjudication and did not touch much on the practices of the courts.

Notes

1 Riyad Ghannām, Muqāa‘āt Jabal Lubnān fī-l-qarn al-tāsi‘ ‘ashar (Beirut: Bīsān, 2000), Chapter 6.

2 Ghannām, Muqāa‘āt, 20, 31.

3 Lawrence Rosen, The Justice of Islam (Oxford: Oxford University Press, 2000), 5: “From the point of view of classical Islamic legal theory, documents are regarded simply as written reminders of individual witnesses’ statements, reminders that will serve to recall their testimony in any future dispute.”

4 Rosen, Justice, 10: “The burden of oath-taking is not consistently placed on either the plaintiff or the defendant in the case, and indeed the burden may shift within any one proceeding, depending on the subject matter involved in the oath.”

5 Malcolm M. Feeley and Edward L. Rubin, Judicial Policy Making and the Modern State (New York: Cambridge University Press, 1999), 237.

6 See Chapter 4 for a more complete discussion.

7 Beirut sharī‘a courts, unnumbered register and pages, 15 Rabī‘ I 1264 (February 20, 1848).

8 Within the confines of the southern “suburbs” of Beirut where the Shihābs had many of their properties with olive and mulberry plantations (for example, supra, Tables 6-1 & 6-2).

9 The property is described as follows: it was part of bustān Qiqānū, located south-east of mazra‘at al-Boushriyyeh in the vicinity of Beirut, and contains a land with plantations, mulberry trees, wild trees (barrī), some built areas (‘amār) with ceilings, wooden materials, stairs, a home, etc. Location: south-east of the water-canal of Boushriyyeh; the complementary part of the orchard was located north-west and was owned by Mikhāyil Bārid.

10 Beirut sharī‘a courts, unnumbered register and pages, case dated 12 Rabī‘ II 1259 (May 12, 1843).

11 Specific location: north: land of Mu‘aytiq; south: rizq Bayt al-Būm (rizq refers to what this “house” (bayt) of Būm were “surviving from”; there is no further specification as to what this rizq consists of); east: Úahr [land?] al-Sīrān; west: road.

12 Specific location: north: river; south: land of al-arf; east: bi-‘āliyatihi (?); west: lands of Sīrān.

13 Since the original text comes with no signs of punctuation at all, I have added quotation marks whenever necessary to make more manifest the shift between the anonymous third-person and the first-person singular in the plaintiff’s representative utterances.

14 The text refers to the madīna mazbūra, even though no city was mentioned throughout the case thus far; the muftī’s location, Beirut, is only identified at the end of the document. I’m therefore presuming that the reference here was to Beirut where the actual trial took place rather than to some city in Bilād Jubayl.

15 All quotation and punctuation marks have been added for convenience whenever the text shifts from the third to second person.

16 Literally: “so that the ruling comes right to his face.”

17 For complete references to the works cited in the fatwā, see table below.

18 Unclear (redundant?) statement: “regarding legal matters.”

19 For complete references to these works, see fatwā table below (Table 7-2).

20 The first was Abū Yūsuf’s.

21 Kept in their original order. Brackets show my own additions. At times, it was difficult to determine whether the same book was used for a different opinion, due to an uncertainty while guessing and filling in the gaps, hence the interrogation marks (n.t. = no text specified).

22 Opinions are kept as close as possible to the wordings of the original fatwā (see above for the complete text).

23 Ibn Qāī Samāwinah, Mamūd b. Isrā’īl, Jāmi‘ al-fuūlayn, 2 vol.   (Cairo: al-Maba‘a al-Azhariyya, 1300/1882).

24 Could not identify author and full reference.

25 There are several Adab al-qāī manuals in all the madhāhib. One of the most authoritative in the anafī literature is that of Khaṣṣāf al-Shaybānī (Abū Bakr Amad) who died in 261/874.

26 There are several Fawā’id books in anafī literature; the likelihood, however, that the reference here is to Ibn Nujaym, al-Fawā’id al-zayniyya fī madhhab al-anafiyya (al-Dammām, Saudi Arabia: Dār Ibn al-Jawzī, 1994).

27 Implying a “consensus” among various conflicting authoritative anafī opinions, which is what the present fatwā is attempting to achieve.

28 Could not properly identify author’s name and reference. One possibility is adr al-Dīn al-Khāṣṣī al-Khawārizmī (from Khāṣṣ, a village in Khawārizm), a faqīh who lived in Egypt between 579-634/1183-1236.

29 Could not identify full reference.

30 ‘Abdul ‘Azīz b. Amad al-ulwānī, Shar al-siyar al-kabīr ta’līf al-imām b.al-asan al-Shaybānī, manuscript completed in 480/1087 (Beirut: American University of Beirut Jafet Library, MS 349.297/H195A).

31 The well-known Nasafī who interpreted the legal thought of Abū anīfa was Amad b. Sayf al-Dīn al-Nasafī, Shar al-fiqh al-akbar alladhi allafahu Abū anīfa Nu‘mān b. Thābit al-Kūfī, manuscript completed in 845/1441 (American University of Beirut Jafet Library, MS 349.297/N241). Could not identify any Abū ‘Alī Nasafī among anafīs. The other possibility is ‘Abdullah b. Amad al-Nasafī (d. 710/1310), Kanz al-daqā’iq (Multān: Maktabah-ī Imādīyah, 1979), upon which is based Ibn Nujaym’s Bar.

32 anafī faqīh and muftī of Damascus (d. 1677).

33 Muammad ‘Alā’ al-Dīn al-afakī, al-Durr al-mukhtār shar tanwīr al-abār (Cairo: Maba‘at al-Bābī al-alabī, n.d.), upon which is based Ibn ‘A±bidīn’s Radd, the last major anafī treatise.

34 Imām ‘Umar b. ‘Abdul ‘Azīz, known also as al-usām al-Shahīd since he was killed in 536/1141, Shar adab al-qāī [of Khaṣṣāf] (Beirut: Dār al-Kutub al-‘Ilmiyya, 1994).

35 Could not identify author and full reference.

36 Could not identify author and full reference.

37 On the practice of analogy in the context of the so-called pensée sauvage, see Pierre Bourdieu, Le sens pratique (Paris: Éditions de Minuit, 1980), part 2, Chapter 3: “Les démons de l’analogie.”

38 Subtle differences did exist between the French and Ottoman codes, in particular when it came to the 1858 penal qānūnnāme (see Young, Corps de droit ottoman).

39 Berque, Essai, 21: “le fiqh comme case-law”; Rosen, Justice, Chapter 3.

40 A recent overview of the English common-law system, which recaptures the debates of the last century in a slow-moving and under-staffed discipline, while attempting to give them a new freshness, is to be found in John Hudson, The Formation of the English Common Law (London & New York: Longman, 1996).

41 ,Norman F. Cantor, Imagining the Law (New York: HarperPerennial, 1997), Chapter 7.

42 Muammad Sa‘īd and Jamāl al-Dīn al-Qāsimī, Qāmūs al-inā‘āt al-Shāmiyya (Paris: Mouton & Co., 1960), 1:33-34: “That’s one of those crafts that have become common and bring a lot of money, without much labor and pain, and with all the honors that follow.” Even though Qāsimī notes that the Arabic term stands for muāmī, he nevertheless lists that “craft” under its foreign French name.

43 Lucien Karpik, Les avocats (Paris: Gallimard, 1995).

44 Cantor, Imagining, 195.

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