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The grammars of adjudication

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Zouhair Ghazzal

Chapter 8: The language of judges and the performance of speech acts

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1Thus far, our main assumption has been that court records, despite all difficulties and problems, are worthy of examination on their own, that is, as totalities endowed with their own intrinsic meaning. On the one hand, court documents could not be approached without the prior assumption that their drafting, at least in the eyes of the qāīs and scribes who did the work of putting together the different pieces of the puzzle, has an internal logic of its own. This logic is purely “textual” in the sense that it is the document-as-text that holds the arguments together. In other words, the persons who drafted these documents did so on the basis that they made sense to them: they knew what they were doing, and it is this “knowledge” of drafting documents that “we,” as modern observers, would like to capture. But, on the other hand, despite the fact that court documents are totalities in themselves, their “meaning” is not to be found in the text itself but is always “outside” the space of the document—in relation to other discursive formations. Such an approach thus claims, first, that it is not enough to pull out at random “facts” and “data” from court documents (an approach common to social historians and which could be described as “positivist”); second, that to consider a document-as-text and to study the meaning of its key words and sentences and the way “it all fits together” as a discursive/textual construction is only a first step and insufficient in itself. What should be of interest, rather than the “pure” or historical meaning of words and sentences, is the use of language, that is, how social actors perform in their use of language. Finally, the previous two guidelines for reading court documents, lead us to our third principle, that the essence of the enterprise is not to be found in some “secret” that lies within the document, but in a purely interpretive framework which, by definition, is an endless task.

2In the previous chapters, our efforts have mostly concentrated on an analysis of court cases within their legal frameworks. That is indeed a justifiable enterprise since the drafting of a court document is primarily set within well defined legal parameters, which were officially acknowledged by the practice of the school itself, and which for the most part have not received much of a challenge since their formative years, namely the four basic rules of the Qur’ān, the sunna, analogy, and consensus. However, both Qur’ān and sunna had ceased to play a leading role in the formation of opinions by the eleventh century, a role which by and large had been primarily relegated to the founders of each school and to a complex juristic typology. The logic of drafting court documents obviously follows its own rules, towards which juristic discourse might not always prove that helpful.

3It might be helpful for analytic purposes to discern three interrelated levels in the construction of each court “case.”

4(1) The primary influence of the heritage of the fiqh, which usually translates in conjunction to the juristic typology of the school in question, and which helps as a preliminary template, especially when it comes to drafting fatwās on “hard” cases (C 7-2 supra). The assortment of opinions in the latter is a condensation of ad hoc rules in conjunction to analogic reasoning (through tarjī and/or takhrīj). That kind of reasoning tends to be present in the most regular of all judges’ rulings, albeit in a much attenuated form—without openly revealing the logic of the ruling, as fatwās routinely do.

5(2) At another level, the drafting of court documents obeys its own syntactic rules—or grammars—which combines the disputants’ claims and their representatives’, together with those of their list of properties (if any), witnesses, counter-claims, and finally, the judge’s ruling. In some instances, procedural fictions, through their step-by-step patchwork of devices (see Table 2-2 supra), did tremendously help in pulling a case together. Even though the latter were in principle all in accordance with level (1) above, they nevertheless seem to have emanated from the courts’ peculiarities and needs.

6(3) Finally, the importance of social norms should not be underestimated. anafism for its part perceives social norms almost exclusively in terms of their linguistic components, which implies a double process of recognition and adjudication to check which of those norms that ought to be “translated” in the language of the fiqh. The latter could thus be looked upon as a secondary set of abstract norms which for the most part have grown out of the primary social norms (see Chapter 1 supra).

7This chapter would like to pursue further the reading of “cases” from those three interrelated levels, with a particular focus on the third, namely the use of language, which will be looked upon in terms of its performative role.

8The previous cases, all of which centered on the trinity of acquisition, protection, and transfer, have already underscored the importance of legal doctrine, analogy, and procedural fictions in any judicial decision-making process. Legal doctrine, which among anafīs sometimes meant an extensive use of the “general rules” of the school, enabled fitting factual situations (cases) into broad legal maxims (or labels), while procedural fictions pushed to their extremes the limitations of contract and property. Finally, literary devices such as metaphor, analogy, and label, contributed in placing all this material together—the factual situations together with lawfinding and decision-making—in order to produce a viable narrative. But what still needs to be investigated in this representation of the court documents are all the rhetorical devices that make those narratives persuasive, that is, to work effectively in conjunction with the much broader and more elusive societal norms. Indeed, the social actors, who typically are not professionals, need to be given something persuasive, meaning a justice that they would have been unable to handle on their own, and that pushes them towards court arbitration.

9In order to show how the construction of an interpretive framework could vary considerably, the two cases analyzed in this chapter have been approached with a different emphasis. In the first one, the weight is on the logic of the text and what might have led to the judge’s adjudication. This requires tracing various arguments back to their dogmatic (doctrinal) sources. In the second, because the logic of the arguments is more explicit and easier to track down, the focus is more on the “use of language” and the various ways linguistic “performance” comes to play.

The grammars of waqfs

  • 1 Beirut sharī‘a courts, unnumbered register and document, 14 Jumāda I 1260 (June 1, 1844).
  • 2 See infra Table 8-1.

10[C 8-1] In a case that was heard in a Beirut court in 1844,1 the plaintiff, ‘Alī, son of the deceased ājj Salīm ammūd, was from a sādāt and ashrāf family. He complained against his nephew, his brother’s son, ājj Bakrī, son of the deceased Khālid ammūd, accusing him of illegally appropriating (wa‘ yad) his father’s waqf (the plaintiff’s father and the defendant’s uncle) and its revenues. What follows immediately is a list of the waqf properties:2 thirteen in total, which include eleven lands mostly within the city of Sidon, a coffee-shop and a shop. As the lands had for the most part names associated to them, they do seem genuinely owned by the founder rather than simply “possessed,” considering that “possession” without “ownership” meant little in urban areas. The distribution of properties points to a pattern common to waqfs, namely one that brings together properties of a vastly different nature, location, and use, into one portfolio and a single contractual settlement (e.g., C 6-1 supra). Thus, not only were those properties in principle blocked for generations to come, but their management, considering their diversified nature, might have posed serious problems even to the most alert of administrators.

  • 3 Orally, at two interrelated levels. First, the six conditions specified above, which gave the found (...)

11All the listed properties were donated as waqf by the father of the plaintiff (no date specified) who had orally3 included as a pre-condition the ability to “get in and out” (idkhāl wa-l-ikhrāj), “to add and take out” (ziyāda wa-l-nuqān), and finally “to change and modify” (taghyīr wa-l-tabdīl) any one of the beneficiaries.

  • 4 Wehbeh az-Zuaylī, al-Waāyā wa-l-waqf fi-l-fiqh al-Islāmī(Damascus: Dār al-Fikr, 1987), 172ff.

12The act of revoking a waqf, known in the fiqh as al-rujū‘ ‘an al-waqf, in anything related to its four constituting elements—the founder himself (wāqif), the properties dedicated to the waqf (al-mawqūf), the beneficiaries (al-mawqūf ‘alayhim), or the text itself (al-īgha)—had already exasperated the three anafī founders. Thus while Abū anīfa argued that the rujū‘ is legal when the founder is still alive, he nevertheless left hanging the issue of the legality of any changes after the death of the founder, as claimed by the beneficiaries, while his two disciples (al-āibayn), Abū Yūsuf and Shaybānī, accepted the rujū‘ only if the founder was still alive.4

  • 5 Zuaylī, Waāyā,174-175. Such conditions and few others became known in modern sharī‘a law as the “ (...)

13Be that as it may, our waqf had, according to the plaintiff, its original waqfiyya orally altered when no one but the founder himself had added some new beneficiaries: all of the founder’s children who were originally excluded. Thus, because the alterations were made when the founder was still alive, there should be in principle no legal restrictions to such an action. However, one of the major legal problems was to see whether the court would accept an oral alteration and how it would proceed in doing so. More specifically, the idkhāl wa-l-ikhrāj is restricted to adding or deleting individuals from the list of beneficiaries, while the ziyāda wa-l-nuqān refers to the act of favoring some beneficiaries over others (the waqf, as a rule, does not necessarily follow the same rules of inheritance imposed by the sharī‘a), and finally, the taghyīr wa-l-istbdāl is more general than the previous four and includes them all.5

  • 6 It is only later that the document does clarify that the remaining one-eighth should pass to the tw (...)
  • 7 To be more precise, according to the original waqfiyya, the seven-eighths of the revenues should be (...)
  • 8 In Arabic: wa ‘ala man sayudithuhu allāh ta‘āla lahu mina al-dhukūr wal-ināth. The lahu here, as e (...)
  • 9 The document does not specify whether the founder, while being the administrator of his own waqf, w (...)
  • 10 A question naturally comes to mind here as to how the administration of the waqf was in the hands o (...)
  • 11 Their exact number, two, is only specified later.

14An act of idkhāl and ikhrāj allegedly took place, according to the plaintiff, after erecting the waqf (no date is specified) but without its registration in the waqfiyya (kitāb al-waqf). The founder, Salīm ammūd, was designated ab initioas prime beneficiary, but for only part of the waqf—seven out of eight shares6—his son Khālid (and for his future descendants,7 if any). If there will be additional beneficiaries8 (this clause was, according to the plaintiff, only added orally later as part of the idkhāl wa-l-ikhrāj clause, and never became part of the official written waqfiyya), that is, still more children of the founder, the males should have twice the shares of the females. The founder had also declared himself, for the rest of his life, the administrator (ir) of his own waqf, to be succeeded, upon his death, by the “most mature and eligible (al-arshad)” of his children, and so on.9 One such descendant, the defendant Bakrī ammūd, was the administrator at the moment of the hearing,10 and was accused by the plaintiff of monopolizing all the waqf’s revenues. Since the founder had left behind three sons and two daughters, and after deducting the share belonging to his two wives,11 the plaintiff, who was one of the founder’s three sons, should have had five and one-fourth qīrās as a percentage from the waqf’s revenues.

Figure ‎8-1. Beneficiaries of Salīm ammūd’s waqf (C 8-1).

Figure ‎8-1. Beneficiaries of Salīm Ḥammūd’s waqf (C 8-1).

Commentary: The line of beneficiaries represented by the plaintiff ‘Alī had been allegedly disfavored vis-à-vis the other line in which the benefactor’s son Khālid was the dominant patriarch. The lawsuit thus attempted to redress that situation by claiming that the founder Salīm ammūd had orallyaltered some of the waqf’s original stipulations.

15Even though the defendant acknowledged that he was in charge of all the properties as administrator, and as part of a request that was specifically made by his grandfather the founder, he nevertheless furnished a different distribution of the revenues among the beneficiaries and also denied that an oral clause in the waqfiyya permits “alterations” and “changes.” The distribution, according to the defendant, gives a first share (left unspecified at this point) to the founder’s two wives (presumably the same one-eighth discussed earlier); then, half of the remaining share goes to Khālid ammūd, father of the defendant and brother of the plaintiff, and, finally, the other half is also to Khālid and his future descendants and beneficiaries (the women should have half of their male counterparts). Notice that in this distribution the plaintiff and his brothers and sisters receive no share at all as it was all concentrated within Khālid’s own lineage.

  • 12 Which raises the interesting question as to why they were not all included in the first written waq (...)

16The burden of proof is now on the plaintiff who needs to substantiate his two claims. First, concerning the fact that the waqf was allegedly open for “change” ab initio; and, second, that the founder, profiting from his exclusive right to impose changes, re-bequeathed his waqf for a second time with two lines of beneficiaries: in the first, the founder granted one-eighth for his wives, while the remaining seven-eighths were for his children—without favoring anyone in particular—and grandchildren and all other descendants as well, with the women having half of the shares of their male counterparts. (According to the plaintiff, it was only after the waqfiyya had been orally altered by the founder that all his children became beneficiaries of the waqf.12)

17The plaintiff brought to court a witness from the city of Sidon described as a “primary witness” (shāhid al), that is, someone who witnessed first-hand the act of erecting the waqf. The witness certified (istashhada) that, in a first stages, the founder had divided the revenues of the waqf between his wives, his son Khālid, and the latter’s descendants, both male and female, in the way already specified by the defendant; but, at a later (unspecified as to the exact date) stage, having originally left the door open for further modifications, he re-bequeathed the waqf for a second time by making it into a waqf aī, a “legally sound waqf,” whose revenues should be distributed among his wives, his son Khālid, and any other children, male or female, he might have in the future.

18The plaintiff then furnished two additional witnesses, also from the city of Sidon, and who could be described as “proxy witnesses” (shuhūd fur‘ān, from fur‘, meaning “branch” or “part”) since they both came to court on behalf of another “first-hand witness,” the naqīb al-ashrāf, the head of the corporation of notables of the city of Sidon, Saykh Amad, son of the deceased Shaykh ‘Alī Jalāl al-Dīn Efendi. They both repeated verbatim the allegations of the plaintiff. The court accepts the testimony of the fur‘ān on behalf of the original (al), only when seven persons gave a tazkiya (“approval” or “certification”) on both the original and the secondary witnessing (shahādat al-al wal-fur‘ān).

19The qāī, having accepted the testimonies of all witnesses, proceeds for a final judgment and approves the claims of the plaintiff on the basis that the founder made it his right ab initio to alter the contents of the waqf in a way that was accepted in the “books of our tradition” (kutub madhhabunā).

  • 13 The “Kitāb al-Waqf” is in Radd, 4:337-499.
  • 14 Since the text limits children to the future, Khālid must have been childless at the time.
  • 15 It is only at this point that the number of wives is specified as two.
  • 16 This is the defendant’s version. The plaintiff’s claims, accepted by the court, shall be expanded i (...)

The qāī has decided that this waqf should have its revenues distributed [turaf ghillatuhu] as one-eighth to the founder’s wives and the remaining seven-eighths to all his children, with the males having twice the share of the females, as it was prescribed in the sharī‘a. According to a well-known fatwā of the head of the ‘ulamā’, Shaykh Muammad [Amīn Ibn] ‘Ābidīn13 who had digressed on what has been traditionally known in the anafī school concerning a founder who erected a waqf for himself and for his lifetime, and then, after his death, opted for a distribution of revenues as one-eighth for his wives, and the remaining seven-eighths as half to a particular son [Khālid] and the other half to [the same son and] his future children,14 and the males should be given twice the share of the females as prescribed by the sharī‘a. Then, upon the death of his aforementioned son, the revenues should be distributed among his children, with the males having twice the share of the females. And upon the death of his two wives,15 the revenues should proceed to their children with the same aforementioned conditions, and then to a charitable foundation that shall never stop [jihat barr lā tanqai‘].16

  • 17 It is not clear here, as elsewhere in the text, who the “aforementioned son” might be. It makes mor (...)
  • 18 As noted earlier, it is not clear whether the founder, as the administrator of his own waqf, was al (...)
  • 19 Again, here as before, there is a confusion and it only makes sense to presuppose that ‘Alī is the (...)

The founder also added some further stipulations, some of which had been directly [included and] written [masūr] in the act of the waqf while others have not, such as the ability to “modify” the contents of the waqf [al-idkhāl wal-ikhrāj, wal-ziyāda wal-nuqān, wal-taghyīr wal-tabdīl] at any moment he wishes. Should we then take into consideration the clauses that were not directly written [musaṭṭara] in the original act of the waqf? If we say yes, should we then take into consideration the modified version of the act of the waqf which gives all children an equal share in the revenues without favoring anyone of them? And what if the [original] waqf had not been “legalized” [ghayr makūm bihi], would it be possible to revoke [al-rujū‘] any of its clauses or not? And suppose that the aforementioned son [Khālid?]17 had sued his father on the fact that the waqf had been legalized [makūm bihi], and that the father had denied that [ankara], thus prompting the qāī to request from the son to furnish evidence showing that a ruling [] was an outcome of a litigation [khuūma]; and suppose further that the son [Khālid?] could not prove that a litigation [khuūma] took place, should the court then consider the ruling [or “legalization”] without the litigation [al-ukm duna al-khuūma]? And does the son [Khālid?] have any known litigation with his father [da‘wa ‘ala abīhī] prior to the dues that should be paid to him [qabla an yaīra mustaaqan] from the revenues of the waqf?18 And what if the [other] son [‘Alī, the plaintiff?]19 furnishes evidence [bayyina] that would lead to a [second] ruling [], after the qāī’s [initial] legalization [in a ruling], concerning the legality [ṣḥḥat] of the reverting [rujū‘] action taken by the founder so that all his children would have equal shares from the revenues without favoring anyone of them? Should the court then work with such evidence [bayyina] and not accept [‘udūl] the qāī’s [initial] despite the fact that, at that time, the son [Khālid?] had no dues that he deserved [lam yakun mustaaqan]?

  • 20 Zayn al-‘Ābidīn Ibn Nujaym [d. 1562], Egyptian anafī faqīh, author of al-Bar al-rā’iq: Shar kanz (...)
  • 21 On this direct quote from al-Bar, 5:239, see the discussion below in the section “What the Founder (...)
  • 22 That is, could not be verified as “true” or that there were no witnesses that would testify that th (...)
  • 23 Qāsim al-Dīn b. Qutlūbughā, author of a collection of fatāwā, al-Qāsimmiyya, which was among no les (...)

An answer [jawāb] to this problem is to be found in the chapter “Kitāb al-Waqf” [in Ibn Nujaym’s]20 al-Bar al-rā’iq, which argued that what should be taken into consideration is what the founder said and not what was written in the original act of the waqf [limā takallama bihi al-wāqif lā limā kutiba fī maktūb al-waqf].21 It is thus legitimate to validate evidence [bayyina] based on a condition [shar] uttered by the founder with no equivalent in writing [in the waqfiyya]. The same applies to other “alterations” [idkhāl wal-ikhrāj] that were acknowledged as valid in al-Bar. If evidence is furnished by individuals who heard the utterances [laf] of the founder—that when he founded his waqf he placed a particular condition upon himself—their testimonies should be accepted as valid. And in case he did not include in writing that particular condition in the kitāb al-waqf, and it turned out that [what he said orally] was valid and legally sound [ṣḥī], then the revocation of the original waqfiyya should be accepted. On the other hand, if that stipulation turned out to be false,22 then revoking [rujū‘] the original waqf is unacceptable whether it has been legalized or not. In this case, based on the opinion of the ‘allā Qāsim,23 the son [‘Alī, the plaintiff] of the founder should consider what the original waqfiyya had prescribed for him and his children since revocation is here unacceptable [because there is no evidence that it is factually accurate]. Qāsim pointed out that because the first waqf is the valid one it should not be revoked without a stipulation from the founder [who should have explicitly stated the exact nature of the alterations].

Figure ‎8-2. Arguments in the Waqf of Salīm ammūd (C 8-1).

Figure ‎8-2. Arguments in the Waqf of Salīm Ḥammūd (C 8-1).

Commentary:The arguments of the plaintiff on the left, who won his case, were all based on the key element that the founder did orally alter his original waqfiyya, and that legally speaking, such an alteration must be taken into consideration, thus amounting to a de facto second waqfiyya. From the perspective of the judge, the oral alteration, once proven through witnessing, ought to be validated and integrated within the original waqfiyya. But there still was the lingering question as to whether the original waqf was validated through a court’s ruling, meaning that a validation took place through a procedural fiction (C 6-1 & 6-2). If not, then the alteration must be integrated, which was the case here.

A ratio decidendi?

20Is there any rationale for reaching a decision? Is it possible to delimit the logic of judicial decision-making case by case or does it have to be more general for a more comprehensive view on adjudication? Regarding the waqf of Salīm ammūd, the qāī gave an unusually lengthy explanation (by common standards) that accompanied his ruling. Since the defendant’s outright denial of any oral alterations, most arguments are structured with the burden of proof on the plaintiff (Figure 8-2).

21The plaintiff claimed that the original waqfiyya was orally altered, and the qāī’s reply was to verify whether a ruling was granted on the original waqf. With the possible existence of a prior ruling, any alteration in any form, oral or written, would not have been possible—that is at least the implication from the judge’s set of questions in his final assessment of the case.

22Attempting to construe his ruling on logical grounds, the qāī first reiterated the defendant’s position concerning a waqf whose revenues should be unequally distributed between two wives, on the one hand, and a son, and the descendants of that son, on the other; then, according to the plaintiff, the waqfiyya was subject to oral alteration in order to accommodate more equally all the beneficiaries, that is, the founder’s two wives, all his children and their descendants. What is of interest, however, is the set of questions related to the oral alteration of the waqfiyya. Should the added clauses be integrated as part of the founder’s intent?, is the question that conducts the main argument: How legal is an oral alteration that was not included in the original waqfiyya? A reply will only come through another line of questions on whether the original waqf was tied to a ukm:

And what if the [original] waqf had not been legalized [as irrevocable] in a ruling [ghayr makūm bihi], would it be possible to revoke [al-rujū‘] [any of its clauses] or not?

  • 24 aydar’s Shar al-Majalla, 44, notes that the meaning of khuūma has changed since the formative a (...)

23Actually, it would have been simpler to frame the question the other way round: What if a ruling had been concluded on the original waqf as a result of a khuūma (conflict that led to a litigation)24 between, say, the founder and one of his children? Would it then be possible to revoke [al-rujū‘] any of the oral or written clauses of the waqfiyya? The issue here is whether a ukm tied to a khuūma “seals” the waqf permanently and makes it non-revocable or whether such a waqf could still be altered. The answer is that a ruling would have permanently “sealed” the waqf, and had it not taken place, then both an oral and/or written alteration of the original waqfiyya would have been possible.

  • 25 Imber, Ebu’s-su‘ud, 147-49.

24The validation of a waqf, or the act of rendering it irrevocable, has already been discussed in relation to the waqf of Bashīr III (C 6-1). In a nutshell, the validation consists of a procedural fiction where the founder, who had delivered his waqf to the trustee, brings action against him or her on the basis that the waqf is illegal, and thus demanding its return in accordance with the principles of Abū anīfa who thought that the ‘ayn of a donated property remains in the ownership of the founder, and hence could be withdrawn at any time. Only a judge’s ruling would transform a property into an irrevocable waqf, meaning that the property for perpetuity is no longer in the ownership of a particular person, and is to be taken care of by a trustee or administrator (ir, mutawallī, or wālī).25 Only in Ottoman times, when legal fictions helped to extend the law beyond its limits, did the judge’s ruling require going through a fictitious litigation in the form examined earlier (C 6-1 & 6-2). That implied associating the ruling with a litigation between the founder (plaintiff) and the trustee-administrator (defendant), and the defendant was asked to revoke the waqf and transfer the ownership back to the plaintiff, a proposal he or she would deny on the basis of the opinions of Abū Yūsuf and Shaybānī. Needless to say, the judge would rule in the defendant’s favor and the waqf would become irrevocable.

25With this in mind, it should now become clearer why the judge in the ammūd waqf kept associating a possible previous ruling with a litigation: if the ruling was an outcome of a fictitious litigation, then the waqf would be irrevocable, and even though the judge was uncertain as how to proceed if there was a ruling without litigation, he was nevertheless confident enough to rule in favor of the plaintiff and accept all oral alterations as valid simply because the waqf was never previously made irrevocable through a pseudo-litigation. Had this been so, the main beneficiary (and for some time the only one), Khālid, would have sued his father for altering any of the stipulations.

26The judge had to go through a set of hypothetical questions in a series of “What ifs?,” mainly regarding the possibility that one of the two sons—the plaintiff or the now deceased main beneficiary—might have sued the father at some point.

And suppose that the aforementioned son [Khālid?] had sued his father on the assumption that the waqf had been subjected to a ruling [makūm bihi], and that the father had denied that [ankara], thus prompting the qāī to request from the son to furnish evidence showing that a ruling [] was an outcome of a litigation [al-khuūma]...

27There are three main assumptions at play. First, that there already was, in order to validate the waqf and render it irrevocable, a preliminary khuūma andukm. Second, that the father had already introduced few oral alterations and was possibly sued by his oldest son Khālid for not having the legal right to do so because the waqf had been “legalized” through a previous ruling. And, third, the final assumption is, of course, that Khālid, being, as he had claimed, the main beneficiary, would like his brothers and sisters and their descendants permanently excluded (the original waqfiyya does not include them). Were all assumptions met, then Khālid would have won his case on the basis that oral (or written) alterations are invalid after a previous ruling.

...and suppose further that the son [Khālid?] could not prove that a litigation [khuūma] took place, should then the court consider the ruling [or “legalization”] without the litigation [al-ukm duna al-khuūma]?

28Is it possible to conclude a ruling without a litigation? In principle, and following standard anafī practice, the answer would be a straight yes: a judge would declare the waqf as irrevocable in a ruling simply because the founder wanted it that way, meaning that once he or she dies, the value of the ‘ayn would not revert to its original private property status, and hence be divided among the inheritors. But, following an opinion by Qāīkhān, it became standard practice in Ottoman times to proceed with a ruling only on the basis of a (fictitious) litigation, hence the judge’s concern for a previous formal ruling, that is to say, a pre-Ottoman one, would that be enough to prevent any future alterations? That question was specifically addressed, but as it was of a hypothetical nature and came nested with other questions, it was never fully answered.

And does the son [Khālid?] have any known litigation with his father [da‘wa ‘ala abīhī] prior to the dues that should be paid to him [qabla an yaīra mustaaqqan] from the revenues of the waqf?

29To begin with, it is uncertain which son the judge had in mind: was it the now deceased Khālid, or the plaintiff ‘Alī? The likelihood is that it was, once more, the former since any action by his father to change the modalities of the waqf would have brought his brothers and sisters and thus disfavored him. So the possibility of a lawsuit, on the basis that the waqf had already been the subject of a ruling, must have crossed his mind; and that must have come early enough so that he would have received no dues yet. A reception of the dues would have implied an “acceptance” of the allegedly new oral stipulations.

30Be that as it may, from this point on, the text now moves to the concern of the other son, even though, it must be emphasized, uncertainty hovers over all identities here:

And what if the [other] son [‘Alī, the plaintiff?] furnishes evidence [bayyina] that would lead to a [second] ruling [], after the qāī’s [initial] legalization [through a ruling], concerning the legality [ṣḥḥat] of the reversion [rujū‘] action initiated by the founder so that all his children would have equal shares from the revenues without favoring any one of them? Should the court then work with such evidence [bayyina] and not accept [‘udūl] the qāī’s [initial] despite the fact that, at that time, the son [Khālid?] had no dues that he deserved [lam yakun mustaaqan]?

31Even though the text seems to have shifted from the deceased son to the actual plaintiff, the concern is still the same and the line of reasoning is identical, namely, assuming that the waqf was legalized through a preliminary ruling—as most waqfs were at the time, otherwise they would have remained revocable—how could a judge then accommodate oral alterations, if proven to be true? As the possibility of a first ruling, presumably based on some fictitious litigation, remained up in the air—meaning that it was, in the final analysis, neither proved nor disproved; or at least the text of a drafted ruling never showed up in court during the hearing—the judge will eventually accept the oral modifications as factually genuine, a key step prior to the plaintiff winning his case, thus avoiding any further discussion of his long line of questioning.

32Notice that in this entire part, the text goes from one question to the other without giving any specific answers in particular. Thus all the previous questions, Was a first ruling ever issued? Was there a da‘wa (lawsuit) between son and father? Could there be a second ruling that would revoke the first one? etc., were all left unanswered, and when an “answer” finally comes in the last section, it turns out to be a global reply to the whole case, which gives the plaintiff his due rights as beneficiary, without, however, addressing any of the specific issues raised in the questions above. In fact, the most crucial issue of whether the waqf was revocable or not was left without answer as both parties never tackled it, thus leaving it outside their domain. One would have expected from the defendant a closure on the irrevocability of his grandfather’s waqf, but, instead, he rather opted for a flat denial that anything had been orally altered. For his part, and with irrevocability left uncertain, the plaintiff was now left with his most crucial piece of evidence: to prove that an oral alteration had effectively taken place, and for this, he will bring witnesses. The judge’s questions, even though left for the most part without satisfactory answers, aimed at clearing out things procedurally, and since the system in its essence was not of an investigative nature, but rather left it to the parties’ own discretional powers to decide what to bring forward and what to hide, the text then proceeds as if alterations to the act of the waqf were still open.

What the founder said

33The quote that will provide ample support to the qāī’s finaldecision regarding “what the founder said” appears for the first and only time in Ibn Nujaym’s “Kitāb al-Waqf” in a context unrelated to that of idkhāl wal-ikhrāj. It came right in the middle of a discussion on how the revenues of a waqf should be distributed:

  • 26 anafī faqīh, known mostly for his fatāwā collection, al-Bazzāziyya, died in Anatolia in 1414.
  • 27 Ibn Nujaym, al-Bar,5:239.

You should know [i‘lam] that what should be considered from the stipulations [shurū] [of a waqf] is what the founder said and not what was written in the maktūb al-waqf [the waqfiyya]. Thus if evidence [bayyina] was furnished on a stipulation uttered by the founder [bi-shar takallama bihi al-wāqif] without any equivalent in the waqfiyya [wa-lam yūjad fil-maktūb], we then apply what is stated in the al-Bazzāziyya[a collection of fatāwā by Ibn Bazzāz al-Kurdarī26] [‘amila bihi limā fī al-Bazzāziyya]. And we have noted [asharnā] that the waqf ought to be considered on what was said by rather than what was drafted by the founder [al-kātib]. The act of the waqf [, that is, the waqfiyya] should thus include all what was uttered by the founder.27

  • 28 On the importance of “categories” in the law, see, Anthony G. Amsterdam and Jerome Bruner, Minding (...)

34In his final decision, the judge makes use of Ibn Nujaym’s opinion (based in turn on Ibn Bazzāz) when, after a series of six unanswered questions, all duly noted for procedural purposes, he had to face the evidence furnished by the plaintiff regarding his father’s oral alteration of the waqf’s status. Once the facts, which showed that the founder did utter what the plaintiff had claimed, were accepted, the judge had to go through the usual process of law finding in order to fit the facts within some doctrinal rule—a process of linguistic categorization.28

35As soon as Ibn Nujaym states his crucial opinion on the primacy of what the founder orally stated over what was written in the waqfiyya, he proceeds with concrete examples as to how the revenues should be distributed under different circumstances. Thus, there are no cogent arguments as to why it is important to favor a late oral statement over an already drafted waqfiyya, except perhaps a hidden assumption that what matters most and foremost is the intent of the founder.

  • 29 Ibn Nujaym, al-Bar,5:239.

There is no problem [lā khilāf] when [the founder] allocates the revenues [ghilla] [of the waqf] for his child [waladihi]. If the revenues should go to the children, then both males and females should be included, and if the males are the sole beneficiaries, then the female does not have the status of the son anymore. There are also no revenues for the child of the child when there is still a child [who is alive and benefits from the revenues], and if the latter is not alive, then the revenues should go to the child of the son rather than to the child of the daughter.29

36The discussion then proceeds on with who should be considered as the legitimate beneficiary, then moves to the topic of the istibdāl, and finally to that of the idkhāl wal-ikhrāj, which makes Ibn Nujaym’s opinion on the oral alterations of a waqfiyya “inserted” in the middle of a discussion to which they do not exclusively belong. In the section on the idkhāl wal-ikhrāj Ibn Nujaym introduces a set of similar arguments to that of the istibdāl.

  • 30 Ibn Nujaym, al-Bar,5:243.

There have been problems [awādith] in the fatāwā reported on the question of the idkhāl wal-ikhrāj. If, for example, someone adds [adkhala] a person [to the beneficiaries of a waqf], does this imply that the former no longer has a right [usqiat aqqī] to delete [ikhrāj] the latter? And what if he does? Another problem is when the founder allows himself the idkhāl and other related items whenever he finds that necessary, and then adds, as another stipulation, that he would grant this right [of idkhāl, etc.] to whomever he wishes [sharaa an yashtaria-hu liman shā’]. So he grants it to someone else [other than himself] [fa-sharatu-hu lighayri-hi] and he gives him the same rights that he himself enjoyed. Then this person [to whom the rights were transmitted] grants it to someone else... Does the person [initially appointed by the founder] lose his rights [to the third person] or do they end up both with the same rights [of idkhāl, etc.]?30

  • 31 Ibn Nujaym, al-Bar,5:243.

37The problem here, as elsewhere, in this section are rights of idkhāl, ikhrāj, and istibdāl delegated by the founder to the mutawallī or irof a waqf. What if the administrator delegates, in turn, the rights he received from the founder to someone else? What if he acts in such a way that he ends up conflicting with the interests of the beneficiaries or the waqf itself? At one point, Ibn Nujaym’s answer, based on Ibn al-Humām’s Fat al-qadīr looks quite straightforward: “the question on the condition of the idkhāl wal-ikhrāj, and other related issues, parallels [‘ala wizān] that of the istibdāl because only the founder has the right to decide [al-infirād] while the other [who was delegated such rights] is unable to do so.”31 But he then proceeds to point that more complications are on the horizon, while serious discrepancies remain between the opinions of Abū Yūsuf and Shaybānī on what administrators can and cannot do.

Property rights versus contractual rights

38Waqfs are generally defined as a form of private property whose ‘ayn, having been withdrawn from exchange to perpetuity, does not belong to a specific person anymore, or to an institution for that matter. Moreover, legislation on waqfs remained limited due to the fact that waqfs never achieved the status of a “legal person” and thus were represented by an administrator who, besides managing the affairs of the waqf, was also its legal representative. Thus, sharī‘a court cases typically target the administrator as the guardian of the original contract, an indication that the nature of a waqf is contractual more than anything else (e.g., property rights). In a way similar to Anglo-Saxon trusts, waqf contracts are for the benefit of third parties—usually among the benefactor’s own lineage—who the transferor might not even personally know. Since the founder must transfer his trust to a trustee either in his lifetime or upon his death, the contract between trustee and beneficiaries becomes effective from that moment and determines the history of the waqf.

39At least since the Ottomans, and probably as early as the Mamlūks, the contractual language of both waqfiyyas and court disputes has been structured by the fundamentally incongruent opinions of the three founders of anafism. Whether such divergent opinions are merely scholastic or reflect much broader social and historical trends is a major issue that we cannot avoid addressing. For one thing, a couple of our cases (C 6-1 & 6-2) were litigated through the division of the Abū anīfa and his two disciples’ divergent opinions, while our last case above (C 8-1) only assumes the master-disciple schism on waqfs, even though the judge’s ruling heavily depends on it. So is such a split a mere convenience that helps to create a procedural fiction so that the law pushes forward without any substantive change? Or are such procedural fictions a way to bypass a static law of contract while creating more dynamic contractual settlements? After all, in all judicial systems, legal fictions helps in keeping the law up to date, and its importance places it side by side with legislation and doctrine. So, if as suggested thus far, the divergences between the three founders, and the incessant recurrence of their conflicting opinions in the sharī‘a courts documents, were only procedural devices to legalize waqfs and make them irrevocable, then the implication here is that certainly those divergences, as far as their content goes, did not mean that much anymore in Ottoman times, and their only relevance was purely technical—as procedural fictions. Another equally important and related approach would also look at those arcane divergent opinions as effective in terms of court procedures, but would also go a point further and see in them a more serious tension between property versus possession (or occupation), or, following a more legal jargon, between property rights and contractual rights. In short, the high costs and risks in keeping private property legal has led towards a legalization of all kinds of possessory (or “occupation”) rights, which in turn were expressed, for waqfs and mīrī, as contractual rights. Thus the complexity of the anafī law of contract has outpaced a more rigid property law so that property rights were eventually expressed, through the procedural fictions of the courts, as contractual rights.

  • 32 Burhān al-Dīn Ibrāhīm al-fiarābulsī, al-Is‘āf fī akām al-awqāf(Beirut: Dār al-Rā’id al-‘Arabī, 1981 (...)
  • 33 The waqf could be entrusted to two administrators, a mutawallī who has a direct control over the re (...)

40The broadest definition of waqf would be that of a property “whose ‘ayn has been blocked from circulation on behalf of the ownership of the founder [abs al-‘ayn ‘ala ukm milk al-wāqif].”32 Thus, the ‘ayn, or the tangible object that constitutes the physicality of the property as such, is blocked, which means that it is not the ownership of a person anymore—not even the founder—or an institution for that matter. What keeps circulating, however, are the revenues, that is the movable property that is generated from the immovable property itself, and it is the trustee (or administrator: mutawallī, nāir)33 who is in charge for leasing the properties and distributing the revenues among the beneficiaries. The waqf was therefore primarily an economic function that falls within the law of contract since it contractually links to perpetuity three parties together: the founder through his waqfiyya, the trustees, and, finally, the beneficiaries, and once their line is exhausted, the poor of a certain locality. Were it not for the waqfiyya, and considering the number of individuals involved at one time, such a contractual arrangement would have taken considerable time and would have been economically inefficient. From our perspective, a couple of questions are of interest to us. First, considering that private properties were permanently blocked and transformed into waqfs, was the major aim of such a process to “protect” those properties? In that case, should the waqf be primarily considered as a form of private property whose status received a permanent legal protection? Second, how economically viable were contractual arrangements that tied different persons and a portfolio of properties together? Finally, could the divergences among the anafī founders be reassessed in terms of economic efficiency, or should we keep them within the realm of legal discourse and its arcane—and, at times, obsolete—distinctions?

  • 34 See supra Chapter 3 on contracts.
  • 35 fiarābulsī, Is‘āf,7.

41anafīs distinguish four components for a waqf, which include anything from the statements and meaning of the waqfiyya, its founders (ahl), the properties as such, and its purpose (ukm). Regarding the properties, referred to as maall al-waqf,they legally are a māl mutaqawwam, commodities whose exchange is legally protected, meaning that, once exchanged, they follow a strict liability rule.34 Scholars and lawyers would generally agree on the validity of the concept of waqf—that it is permissible to block properties as waqf—but disagree on what the prerequisites (luzūm) are. Hence some of the major differences among the anafī founders. Thus, a major issue was the revocability, which only Abū anīfa had acknowledged: a property is “borrowed” (i‘āra) to the waqf and its ‘ayn is kept to the founder; the latter can thus revoke his waqf at any moment, and even if he doesn’t, upon his death, the waqf is self-revoked and its properties are distributed among the founder’s inheritors. Thus follows the few legal devices that we have been accustomed to, and which all come in slight variations, in order to render a waqf irrevocable (C 6-1 & 6-2), namely that a judge rules for the trustee-defendant who, based on the principles of Abū Yūsuf and Shaybānī, would claim the validity and irrevocability of the waqf. Such was not only standard practice in the courts, but was acknowledged in the Mamlūk and Ottoman literature too.35 But was that one disputed area among several, such as whether both movable and immovable properties could be blocked as waqf, or whether the same rules would apply to commonly owned property as mushā‘ (C 6‑2), and the act through which the waqf would be acknowledged as legally instituted. Regular speech would be enough for Abū Yūsuf, while Shaybānī required that the ‘aynbe received by the trustee.

  • 36 fiarābulsī, Is‘āf,48.
  • 37 See supra Chapter 4 on land-tenure.

42Such discrepancies were widely used as legal devices in the sharī‘a courts to render waqfs valid and irrevocable. But beyond the fictitious procedures that they engendered, what was their significance? The root of the problem lies in knowing which properties were eligible for a waqf conversion. Granted that both movables and immovables could become endowed as waqf; the real pressure, however, was on landed properties, and in principle only milk lands could be donated (those that were also specialized in grains rather than plantations). But that was only in principle, since, considering the high costs in maintaining a privately owned rural land, anafīs did approve that lands that were “possessed” be endowed as waqfs. Had this not been the case, and had the law insisted that only pure milk properties be donated, then “many of the present waqfs would become invalid had the rule of ‘occupancy’ not been acknowledged.”36 Basically, the same rules that we’ve already encountered for other types of properties—both milk and mīrī—apply, which means that the law only looks at who the actual accupant is, regardless of who might have been the “genuine” landowner.37 This seems like a direct acknowledgment of the difficulty of maintaining and transferring a privately owned property in such societies. Thus, while the possessor only needs to prove that he has been occupying the land for a period of time to make his “occupation” legal, he can transfer his right—either of ownership or possession, depending on his legally established status, through court action—to family members and heirs, but he cannot sell the land as possessor.

  • 38 See supra Chapter 1 on customary practices.
  • 39 fiarābulsī, Is‘āf,67, notes that in homes that were part of a waqf portfolio, “the lease should not (...)

43We have already encountered the notions of possession and occupation in many cases before, and, invariably, as far as procedure went, the defendant was accused of illegally occupying a property, which, translated in the language of the courts as an illegal wa‘ yad,while the plaintiff’s urge was the defendant’s raf‘ yad. And even though such disputes were usually family-centered (C 5-1 & 5-2), they could well extend beyond the clan with unrelated plaintiffs and defendants (C 7-1 & 7-2). It was the ubiquitous nature of possession that made it endemic in all kinds of court cases. In fact, one of the most poorly understood aspects of waqfs is how tied they were to possessed—rather than genuinely owned—properties. Waqf founders should in principle donate to perpetuity only a fully owned property; but, even though it is hard to assess a reliable percentage of properties converted from milk to waqf, it is nevertheless safe to assume that the general rule did apply mostly to urban areas, while the countryside was dominated with possessed properties. The essence of waqfs was therefore less the “protection” of private properties—since those were anyhow hard to protect—and more the conversion of possessed properties into the status of waqf—hence the badly needed procedural fictions that would confirm the irrevocability of a waqf. The founder would thus create a portfolio of owned and/or possessed properties—and the latter could have been mīrī in origin—whose locations (urban and/or rural) could be as diverse as the properties themselves (lands, homes, shops, etc.). Whether such an arrangement was economically efficient is hard to assess, especially considering that waqfs might be efficient on a short-term basis but inefficient on the long run. The reason for this was that waqfs had to compete with the low rents of mīrī lands, a phenomenon that we’ve discussed earlier in conjunction with Ibn ‘Ābidīn’s evaluation of custom and his connecting it to the politics of the iltizām. (Regarding the excessively low rents and their corresponding lump-sums deposits, see Chapter 3 supra.38) In fact, multazims had to pay prodigious sums simply to get on the job, and whose equivalent could only be extracted by extortion from the surplus, so that the “rent” as such—an equivalent to the official mīrī—that could be imposed on the peasantry became minimal, and that, in turn, lowered the waqfs’ rents. Hence the large number of procedural fictions that attempted to limit the damage, such as the marad (C 3-6), sharecropping (C 3-11), and long leases,39 all of which aimed at bypassing the falling value of rents.

44Waqfs were thus the prime domain of the ‘ulamā’, a space that would provide them with protection from the abuses and uncertainties of the iltizām-mīrī system. But since the ‘ulamā’ came into several factions, and were part of the urban a‘yān,some families profited from properties that were granted to them as iltizām, and were thus unable to create a political, economic, and legal culture of their own, one that would be autonomous from the needs of both local and central Ottoman bureaucracies. Nevertheless, despite all bureaucratic intrusions, the culture of the sharī‘a courts was one that the ‘ulamā’ were accustomed to and controlled fully, even though the juristic discourse was by then mostly based on taqlīd, and thus lacked the vividness and political aspirations of the high caliphate period.

The grammars of “privacy” and filiations

  • 40 Beirut sharī‘a courts, unnumbered register and document, 12 Jumāda 1266 (26 March 1850).

45[C 8-2]Our second Beirut case involves a litigation over an inheritance within a single family.40 The plaintiffs were the two sisters Asmā’ and Khān, daughters of Muyī-l-Dīn Ghalāyīnī, and were represented in court by ‘Abdul-Ramān Bayūn. The defendants, ‘Abdul-Ghanī and Sa‘īd, sons of ājj Amīn Mīqātī, were maternal uncles (khāl) to the plaintiffs. The litigation was over the inheritance (irth) of the plaintiffs’ mother, Zaynab, the sister of the defendants. Upon her father’s death, she should have inherited at least half of the share of each one of her brothers, the defendants ‘Abdul-Ghanī and Sa‘īd. She got married to Muyī-l-Dīn Ghalāyīnī and begot three children, ‘Abdul-Ramān, Asmā’, and Khān, the last two were the plaintiffs. The latter requested from their uncles their dues from their mother’s inheritance and brought two witnesses who were knowledgeable of their mother’s part of the inheritance (matrūk). Also present was the father of the plaintiffs and their brother, both had no representatives, and apparently all were holding a common complaint against the two uncles.

  • 41 See Table 8-2.
  • 42 The document does not explain why the shop in the Sūq al-Fashkha is listed separately from the rest (...)

46According to the plaintiffs, upon his death, their grandfather, Amīn Mīqātī, left an inheritance consisting of a set of five properties (a bustān, a house, and three shops in Beirut)41 to be divided among his wife, his two sons (the defendants), and four daughters. Concerning the share of their mother Zaynab, she should have had two and five-eighths qīrās from the “garden,” house, and two shops in Sūq al-‘Aṭṭārīn (“Market of the Perfumers”); as to the ānūtin Sūq al-Fashkha (“Market of the Step”), her share should be one and one-eighth and the eighth of the eighth and the half of the eighth of the eighth qīrās.42 The plaintiffs then explicitly requested from their uncles their mother’s share back (raf‘ aydīkumā ‘ammā dhukir wa-taslīmihi li-jihatunā, put your hands away from what has been mentioned [the five properties] and give it back to us [the plaintiffs]).

Figure ‎8-3. Inheritance of Amīn Mīqātī (C 8-2).

Figure ‎8-3. Inheritance of Amīn Mīqātī (C 8-2).

Commentary: A key element in understanding this case is the realization that the two plaintiffs, daughters of a Ghalāyīnī, were no longer eligible to become beneficiaries in a waqf that was originally accorded to the Mīqātīs, viz. their mother’s family.

47The defendants for their part claimed that they had bought from their sister Zaynab her share in the bustān,one plus two-eighths and half of the eighth qīrās; the bustān, according to the defendants, was only half-owned by their father (and not entirely as the plaintiffs claimed), the other half was the property of their three paternal cousins, Amad, Salīm, and Khadīja. They also claimed that they had purchased her share in the ānūtof Sūq al-Fashkha, the same share that the plaintiffs had claimed she should have inherited from her father. All this was paid to her for a “known sum” (bi-thaman qadruhu ma‘lūm).

We had previously made the purchase known [rāfa‘nā], after the death of our sister, your inheritor, to the ex-qāī of the city of Beirut, the deceased Shaykh Yūnis Efendi Bizrī, and he certified [athbata lanā] the above buying of properties right in front of her husband Muyī al-Dīn [Ghalāyīnī], and also made the acts of buying and selling legal [ṣḥī], and has forbidden [mana‘a] her husband, who is also one of her inheritors, [any claim on the purchased properties]. And they showed a [legal act] signed and sealed [mamhūr] by the above mentioned deceased qāī, and it was publicly read in the majlis [in the courthouse].

48At this point, the main narrative describing the suit between the two sisters, Asmā’ and Khān Ghalāyīnī, and their maternal uncles, ‘Abdul-Ghanī and Sa‘īd Mīqātī, over the inheritance of the mother of the former, Zaynab Ghalāyīnī [originally, Mīqātī], temporarily stops and gives way to another narrative, an older suit, dated August 14, 1836, and fourteen years older than the actual one, between the husband of Zaynab, Muyī al-Dīn Ghalāyīnī as plaintiff, and with the same two defendants as above. It was this first suit, lost by the plaintiff, that proved, through a ujja provided by the qāī, that the two defendants had purchased the above properties from their sister. This is a classical technique in the court system where a narrative is “rescued” by a former one usually consisting of an older case with a final decision in favor of one of the two parties in the newer (latest) suit.

An older case

  • 43 Dated 1 Jumāda I 1252 (August 14, 1836).

49The older 1836 case43 was between the husband of Zaynab as plaintiff representing himself and his minor children, and the two defendants ‘Abdul-Ghanī and Sa‘īd al-Mīqātī. Thus, while the defendants were the same in the two cases, on the plaintiff side, it was originally the father, and fourteen years later his two daughters, now at the age of maturity (rāshidūn, bālighūn) who took his case. It is not clear, however, whether the re-opening of the older case has anything to do with the two daughters not being minors (irūn) anymore, or for a totally different reason.

  • 44 See Table 8-2.

50The basic issue is fundamentally the same in the two cases, namely the inheritance of Amīn Mīqātī, to be divided among his two sons (the defendants) and four daughters, and in particular Zaynab who died after her father. Even though we have a double inheritance, first from Amīn to Zaynab and then from the latter to her inheritors (the plaintiffs), the real issue is limited to determining Zaynab’s inheritance from her father: How much did she exactly inherit from her father, and what is the current status of those inherited properties? The plaintiff refers only to two properties, one is a shop (dukkān) whose description seems close to the ānūt identified in Table 8-2 as #2, and the second is a vineyard (karm) which seems close to the bustān identified in #144 (both properties were shared with her cousin), which were, according to him, illegally “occupied” (wa‘ yad) by the two defendants. Concerning the shop, her share should have been, according to her husband the plaintiff, one and one-eighth qīrās plus the eighth of the eighth and half of the eighth of the eighth qīrās. As to the karm, her share should have been one and one-fourth plus half of the eighth qīrās.

  • 45 Quite often, in the sharī‘a courts, the purchase of property is neither accompanied by a written do (...)

51The defendants acknowledged that they had occupied (possessed) their sister’s two properties as described above, but that was not achieved, according to them, through an illegal act of usurpation (ghab) but by a legal purchase (shirā’ shar‘ī) directly from their sister Zaynab, and this for a “known sum” that was paid to her (bi-thaman ma‘lūm maqbū).45 Then, at the request of the plaintiff, they brought to court three witnesses: Muammad ‘Alī b. ājj Rawān al-Shaykh and his wife Qūt, and her sister; the two sisters were the daughters of Amīn Mīqātī and also sisters of the defendants. Their testimonies, which basically repeated the allegations of the defendants, were accepted by the qāī as valid. The qāī also gave the defendants a written ujja proving their purchase of their sister’s two properties. The second narrative closes at this point and we go back to the original main one.

  • 46 By referring to the descendants of Amīn al-Mīqātī as “us” (nanu), meaning the two defendants, the (...)

52Having solved the status of two properties (Table 8-2, #1, 2), there still are three others, a house and two shops, whose fate remains to be determined. The defendants claimed that the three properties belonged to a four-hundred year old waqf founded by their grandfather ‘Izz al-Dīn Mīqātī. The founder had requested that the revenues of his waqf be distributed among all his descendants, with the males receiving twice the shares of the females. At the moment of the hearing, the only descendants were the two defendants (nanu)46 and their cousins, the three children of Muammad Mīqātī. As to the plaintiffs, they were not considered, according to the defendants, as part of their grandfather’s and father’s descent because they were the “children of foreigners” (awlād al-ajānib), meaning that their father was from a family other than the Mīqātīs, and that the waqf’s system of descent being patrilineal, what counted was the father’s relation to the founder, which in this case was null.

53From their side, the plaintiffs denied that the above three properties were waqf and also denied that the written ujja,showing that two of the five properties had been purchased by their uncles, was legal, which prompted the defendants to bring to court, first, four witnesses showing the authenticity of the ujja,then, seven additional witnesses certifying the authenticity of the very old waqf of the Mīqātīs. The qāī, having accepted all testimonies, declared the waqf as aī,and the complaint of the two plaintiffs as null and void because the revenues of the waqf should go only to the defendants and their three cousins. The others, the children of Muyī al-Dīn Ghalāyīnī, had no legitimate rights in the waqf because they are from “outside” the family. This turned out the most decisive element in the process of decision making, to the point that the qāī requested the personal opinion from the muftī of Beirut, Shaykh Muyī al-Dīn Yāfī, who decided that the children of the woman Zaynab could not be within the waqf’s beneficiaries because the descendants of the founder are “referred to their fathers rather than their mothers” (mansūbūn ila ābā’uhum duna ummahātuhum).

Property claims and rights

54From a legal point of view, the main issue for the qāī was to determine the status of Zaynab’s properties: Did she have any right to any or all of the properties that her inheritors claimed she should have inherited from her father? And if so, which ones? As it turned out, and considering that Zaynab had no rights in any of the five properties, only the first question was relevant. Thus, even though several conflicting share assessments came to light (see Table 8-3 infra), the crucial issue remained whether Zaynab had any rights, ab initio, in any of the five properties. It is therefore more appropriate to ask: What were the accepted procedures (if any) that would have proven that a legitimate heir had any rights in a given property? But, again, this turns out to be a misleading issue since, right from the beginning, the defendants shifted the case to something else and became more concerned in proving the legitimacy of buying a set of two properties from their sister prior to her death. The defendants thus became concerned in proving that they had bought, prior to 1836, the two disputed properties from their sister. Thus the case re-focused itself on a different issue now: What kind of evidence is needed for the purchase of a property from a now deceased person? Of course, a written document could have proved more than enough, but, as usual, that was not the preferred method of the disputants.

55Then, concerning the three other properties that the plaintiffs were also claiming, another surprise came out that made these properties part of a very old waqf, hence inalienable in the first place. Furthermore, Zaynab, as the daughter of Amīn Mīqātī, was a legitimate beneficiary, but now that she was deceased, her husband, two daughters, and son have no such rights anymore because they were from another family, the Ghalāyīnīs.

56What we thought at the beginning should be our main line of questioning—whether Zaynab had any legitimate rights in any of the properties—turned out to be, in appearance, two different lines of inquiry. One on establishing sufficient evidence that the property was purchased from a now deceased person when no written sale documents were available; and the other on establishing that the heirs of a deceased person have no legitimate rights in the waqf of that person’s great-grandfather of four-hundred years. The two lines of arguments need to be analyzed separately first, to see whether or not there is a common denominator between two levels that seem, at first glance, unrelated.

A legitimate narrative

57Every sharī‘a court document narrates a story that stretches in time and space and has a beginning and an end. In fact, while literary narratives may or may not have happy endings, legal narratives must come to a conclusion, which usually favors one side over another. Legal narratives also have to obey two sets of writing and composition: one that follows the most general cognitive rules related to mind, language, and culture, and hence follows the structured composition rules in terms of categories, narratives, and rhetoric; while the other is restricted to the legal apparatus itself and its rules of writing and discourse, some which we have already briefly discussed, namely analogy, metaphor, label, and doctrine. The relevant question then becomes, What is it that makes a court narrative legitimate? And on what basis is a specific narrative accepted as legitimate?

58Before I specifically turn to the issue of court narratives, I need to point out here that the “judicial apparatus” was a complex enterprise comprised of several discursive levels that neither have to overlap nor be congruent with one another. The important thing to remember is that the modes of legitimation and discourse construction for each level could be quite different. Thus, even though the courts in their practices have to use the judicial treatises of the fuqahā’ and their fatwās for analogy and legal doctrine, they nevertheless follow a different construction while making their own discursive practices sound legitimate. This is not so much a didactic presupposition as it is a methodological cautionary statement suggesting that the discursive practices of the courts are not set once and for all by the discourse of the fiqh; in other words, the courts do not simply “apply the law”; we have to look, in a court document, beyond what the “law has to say” on a specific issue. Similarly, one could postulate that with the two levels we have just mentioned, the discourse of the fiqh and the discursive practices of the courts, there are other discursive forms that we have already discussed in great length in separate chapters. Thus, the regional reform councils have constructed a discursive form free from the constraints of the fiqh, or at least while keeping an eye on the fiqh, they will have to adjudicate beyond the procedural limitations of the sharī‘a courts (see Chapter 9 infra). In short, the councils were not limited to judicial decision-making, but extended that activity to policy making as well, a step that required a revised discourse construction, one that would have granted the group of notables-cum-judges an aura of respectability and legitimacy. Similarly, sultanic legislation had a more commanding attitude than any of the texts we have encountered, and it was in turn free of the jargon of the fiqh, with more actual concerns than anafī practice, which limited itself to a sort of “special private law.” All along, we have attempted to follow the overlap (or lack thereof) of tensions and inconsistencies, and, at times, the incongruence between those various “legal” levels.

59If the courts did not purely and simply “apply the law,” what was it that they did exactly? One way to find out is to see what makes their narratives legitimate. As a general rule, the discursive practices of the courts are concerned with “proof” and “persuasion”: Is there enough evidence that a particular “fact” occurred as claimed by one of the parties? What does constitute enough “proof” for a particular case, and more broadly, for the system of justice as a whole? How does a court construct a system of “proofs” and on what basis? And since “we”—as “modern” observers in the social sciences—belong to different narrative systems with different “truth”-claims, a relevant questions would be, How do the Islamic and Ottoman systems of justice—in their truth-claims and construction of narrative and rhetoric—compare to ours?

60The main concepts thus far are: legitimate narrative, proof and persuasion, and truth-claims. Whenever a court is involved in a litigation process, it requests that both plaintiff and defendant narrate their own version of the story. We thus have two different—quite often contradictory—narratives, and only one shall be legitimized by court action, but only when plaintiff or defendant have provided the court with enough evidence. On the other hand, individual statements uttered by plaintiffs, defendants, and their representatives and witnesses (if any), which could prove persuasive or not, are not in themselves “proofs” or “proof systems.” They rather are performative and denotative statements with various truth-claims, and a set of truth-claims would in itself represent enough evidence. The legitimacy of a court narrative—that is, the constructed “document”—rests mainly on what is accepted as enough evidence from both parties. As such, it is such a system of proof that makes a court narrative look legitimate—at least in the eyes of the beholder. Since it was solely the qāī’s responsibility to determine what was enough evidence, his final decision-making brought together all the quintessential aspects of the legitimation process. First, he determines whether the individual truth-claims of the two parties (including their witnesses) represent enough evidence. Second, he needs to narrate the entire “story” in a way that “makes sense,” and it is at this point that legal doctrine and opinions of the fuqahā’ might become decisive. It is therefore the combination of all these elements that makes the constructed narrative legitimate.

Figure ‎8-4. Arguments in the Case of Salīm Mīqātī (C 8-2).

Figure ‎8-4. Arguments in the Case of Salīm Mīqātī (C 8-2).

Commentary:The main concern in this case was the “right of filiation,” or which factors do contribute in determining a “genuine” or “strong” “agnatic affiliation.” Evidence came strongly as usual in the form of witnessing, and the case was sealed thanks to a muftī’s fatwā.

The use of language

  • 47 J.L. Austin, How To Do Things With Words (Oxford University Press, 1962, 1975), 103ff. There are th (...)

61The study of the language of the court documents leads to a careful examination of the ambiguities and meaning of some key words and sentences (mostly related to the history of the fiqh and its procedures). Such an approach, however, even though useful and necessary as a first step, rarely tells us anything about the discursive construction of a text. It rather contributes to a first-hand translation and construction of the text from one language to another, that is, from the language of the qāīs and their scribes to something more familiar to “us.” Words and statements that made perfect sense to their authors nevertheless lost their meaning over time, and the enterprise of re-constructing the meaning of individual words, concepts, and statements is well-known in any hermeneutical exercise, and usually serves as a preliminary assessment of the text before it is subject to additional interpretations. In the case of court documents—and the same applies to any text—even though such an enterprise proves fruitful at times, it would remain incomplete and miss the essential if not re-assessed by what J.L. Austin refers to as the use of language.47 What in fact a classical analysis of words and statements and their meaning misses is precisely their performative value in a concrete situation. This is especially true of court documents because they were originally based on hearing sessions, and only later transformed, by qāīs and scribes, into the heavily edited “summaries” we are familiar with. Yet, despite their existence to us in a summary form, they contain—since based on actual hearings—more than a pure juxtaposition of statements with logical and grammatical interconnections. In fact, what a classical analysis of word-meaning does is the reduction of all utterances into statements, that is, into sentences that are either true or false. However, Austin’s linguistic theory places the focus on performative utterances; that is to say, on how statements, once uttered (or written), perform, and only a small fraction of the latter, in daily speech, could be reduced to descriptive statements on a true/false basis. In other words, individuals in their daily lives are more interested in performing through language than in simply describing things with particular truth-claims. Moreover, the “reception” of a particular text—or what Austin refers to as the perlocutionary—varies form one “audience” to the other in space and time, and hence is never determined once and for all in terms of its “content.”

62This is even more true of court hearings—and their corresponding documents—when disputants have to perform—through linguistic communication, and also, by means of their “body language.” Thus, even though court procedures should in principle solely focus on the veracity of statements, it is the combination of the illocutionary and perlocutionary force of statements that finally matters. In effect, the construction of narratives and their respective truth-claims and legal reasoning, together with the linguistic categories that they deploy, are of fundamental importance in understanding both the legal and linguistic nature of court documents. However, our mission would by and large remain incomplete without a perceptive look at the rhetorics of the court hearings, or the use of language within the space of the courts.

  • 48 For more recent views based on Austin’s insights, see John Searle, Speech Acts: An Essay in the Phi (...)

63What shall follow are only preliminary attempts towards an understanding of court documents in terms of speech act theory as it is often referred to now.48 We should keep in mind, however, that an analysis of court documents in terms of speech act and language performance is only one interpretive level among others (cases throughout this study have been mostly approached from the vantage point of legal theory and history). Furthermore, speech act theory as applied to court documents varies in its effectiveness, especially since we are relying on written documents without first-hand access to the utterances in the court hearings. In fact, speech act theory, as we describe it, is primarily concerned with real-life situations rather than texts as such, and the heavily scripted court documents do indeed look seem distant from the regular concerns of such a theory. Yet, the challenge lies precisely in being able to apply speech act theory (and other related linguistic theories) to a domain as convoluted as the sharī‘a courts (and other “legal” texts), and to examine their “scripts,” which repeat themselves ad nauseam from one case to another, in terms of their “performative” side. At its best, that implies the vulnerable assumption that all statements of the disputants, witnesses, and the judge himself, as scripted in the document available to us (and our knowledge of each case derives solely from those documents and nothing else), all share a “performative” and “rhetorical” side that is worth examining in conjunction with the strictly legal and linguistic contents of each case. Only then would a “case” end up as something more than just a legal case, and part of a conundrum of discursive practices that determine how we think and act.

How “cases” are constructed

64It is quite common in court documents to begin the description of an “action” with the verb aara fulān, meaning that so-and-so came to the courthouse either to file a complaint or simply to have a transaction officially validated and recorded. Thus, it is the verb aarathat triggers all actions to follow.

ājj ‘Abdul-Ramān Bayūn came to court as representative of Asmā’ and Khān Zādah, daughters of Muyī al-Dīn Ghalāyīnī, to initiate their suit [al-da‘wa] and litigation [khuūma] against their two uncles ājj ‘Abdul Ghanī and ājj Sa‘īd, sons of ājj Amīn Mīqātī. He thus claimed that the two [plaintiffs’] shares from their maternal uncles in relation to the inheritance of their mother Zaynab [al-munjaz ilayhā bil-irth al-shar‘ī] from her father ājj Amīn, were kept with the defendants, and that was confirmed by ājj Muammad b. asan Zayn and ājj Muammad b. Bakrī a, both of whom had known her in accordance with the law [al-ma‘rifa al-tāma al-shar‘iyya]. Was also present their father Muyī al-Dīn and their brother ājj ‘Abdul-Ramān, both of whom acted on their own behalf [al-aīlān ‘an anfusihimā], and all filed a complaint, based on their own and representative rights [bi-asab al-aāla wal-wakāla], against the two brothers ... who were also present at the majlis [that is, the courthouse], claiming in their suit against them and emphasizing in their address [khiābihim] that you owe us from the inheritance [matrūk] of your father Amīn Mīqātī, the father of the plaintiffs’ inheritor, [follows the list of properties in Table 8-2] ...

  • 49 As noted earlier, a more conventional way of introducing a litigation would be “In the court of jud (...)
  • 50 See above the cases of Bashīr II (C 5-1) and Bashīr III (C 6-1). As a reminder, both involved a “fi (...)

65The main purpose of such a typical introduction is to introduce and identify—often in terms of nisba, which could be anything from religious, to professional and geographic affiliation—first the qāī, his “signature” and “seal” (even though that was not completed here49); and the two disputants and their representatives (if any). Since only the plaintiffs had a representative, there was no need to go through the tedious process of “identification and status confirmation” usually performed on the representative of the defendant(s), in particular if the burden of proof is on them, prior to winning their case.50 The other outright emphasis is on the khuūma, that is, a litigation that would pave the way to a ruling.

  • 51 Austin, How To Do Things, 60-61.

66The first question that comes to mind is “Who speaks?,” and there is a first obvious answer: it is the qāī and/or his scribe. This seems to be a fair answer on two grounds: (i) from an empiricalpoint of view, someone should have drafted this document and this person could only be the judge or his scribe; (ii) by appending a “signature” and “seal” to each document, the text is then de facto tied to a particular person (the qāī). Such assumptions, however, even though convincing, could be misleading. The real issue at stake here is whether there was any “individuality” to the qāī who drafted the document or whether it was part of a more common—“anonymous”—language used by many qāīs alike regardless of what the case was all about. I tend to favor the “anonymous” interpretation on the ground that it does not help much to speak in favor of a qāī who drafted a document when no such “I” really exists. I shall therefore proceed with the assumption that even though court documents were drafted by individual qāīs, they belong more to a wider formalized and scripted template (or “sample”) through which it would be hard to discern individualizedthoughts and writing patterns. As Austin rightly noted, in written utterances (or “inscriptions”), appending a signature has to be done because “written utterances are not tethered to their origin in the way spoken ones are.”51 Which means that having a signature appended to a document (“text”) is not that much different from a speaking “I” and does not tell us much about the uniqueness of the individual who “signed.”

67Most statements in court documents are in a third-person form. They could thus be labeled as descriptive statements, that is, as non-performative, and whose only value is to inform us of “what has happened.” They could therefore be classified as true/false statements. Thus an opening of the form “so-and-so came to court representing X and complaining against Y” is always in a third-person singular or plural and purely descriptive, that is, it describes an action that could have taken place (true statement) or not (false); and since there is no “I” or “we” at play here, they cannot possibly have any performative value. The truthfulness of such statements comes from the authority of the qāī himself: he, as an authoritative person, makes us believe that such things did in fact occur, and we have no other choice but to believe him.

68At times, third-person descriptive statements are punctuated by first-person (perlocutionary) statements. The last sentence in the above quote is one example: “...saying in their suit against them and noting in their address [khiāb-ihim]that from the inheritance [matrūk] of your father Amīn Mīqātī, the father of the plaintiffs’ inheritor...” The latter part in particular, “that from the inheritance of your father Amīn Mīqātī, the father of the plaintiffs’s inheritor...,” seems to be a direct quote from an oral utterance made by the plaintiffs’ representative—even though the statement, in its written form, is grammatically incorrect as is often the case in court documents. By saying “the inheritance of your father,” the representative of the plaintiffs is here addressing himself directly to the two defendants without any intermediary (at least formally). The grammatical confusion comes in the second part of the utterance: “the inheritance of your father, the father of the plaintiffs’ inheritor [wālid mawrūthat al-mudda‘īn],” which should have been (if correct): “the inheritance of your father, the father of our inheritor [wālid mawrūthatu-nā].” There are several reasons as to why such grammatically incorrect statements often occur in court records. One of them is obviously the degradation in the use of the Arabic language even among qāīs and officials of similar rank and status. But, more importantly, the continuous shift from the third to the first person, and the grammatical confusion that it often provokes, enable the qāī to distance himself from what others had said in court. He thus keeps the third person for himself, for his own observations, comments, and final decision, and also to give the bare facts of the hearing sessions an aura of legitimacy. In fact, many of these statements are purely descriptive and should be taken on a true/false basis. The “I”/“We” type of statements, however, usually referring to utterances made by the disputants, are more problematic. In fact, in “performative utterances,” as they are often called, the focus is no longer exclusively on true/false claims, but on the intentions that lie behind the complexities of a specific utterance. Even if the oral utterances of the disputants and their representatives are not similar to their written counterparts as recorded by the qāīs and their scribes, it is precisely their performative role in the text itself that needs to be carefully studied. Thus, pace Austin, we are extending for court documents the role of the performative to texts. This proves to be an important presupposition because the qāī might have twisted and transformed the verbal utterances of the two parties, partly because he was drafting only a scripted “summary” of the whole case and hearings that took place, and partly because the shift that operates between the third person and the I/We form is more figurative than real: it simply gives the qāī the opportunity to distance himself from the claims and witnessing of others, and thus contributes in establishing an authority to the text. In other words, that authority is not established solely—if not mainly—from the apparatus of justice itself, its scholars, lawyers, and judges, but also from the way the legal jargon is used and constructed. Such constructions vary greatly between, say, a court document and a fatwā, or a regional council adjudication and a firman, not only because they emanate from different authorities and do not address the same persons, but also because the content of their messages is structured differently. They therefore have to “persuade” their recipients in ways that are much different from one another, hence the variations in the use of language that we’ve encountered while moving from one discursive type to another.

69Our enterprise—extending the performative to texts—is worth the effort because most of the courts’ statements can neither be reduced to their purely legal connotations nor problematized as true/false, especially in the absence of a “reality principle”—one that would have associated “facts” to an investigative fact-finding process.

70The shift from the descriptive third person to the performative I/We takes place, in the above quoted introduction, just at the moment when the five sets of properties are listed. The list interrupts the plaintiffs’ first claims.

Upon his death, your father, Amīn Mīqātī, the father of the inheritor of the plaintiffs [more accurately: the father of our inheritor, Zaynab], [left as inheritance the following list of properties shown in Table 8-2]. Your father Amīn died and left [the above properties] as inheritance [mīrāth] for his descendants [warathat-ihi]: the two of you [defendants], his wife Āmina, and his daughters Qūt, Āmina, Su‘ūd, and our inheritor, Zaynab. You are now illegally controlling [i‘ān aydīku-mā bilā arīqa shar‘iyya] the share of our inheritor Zaynab, that is, what she should have received from her father’s inheritance, and which amounts to the following [properties listed in Table 8-3, column #3]. We therefore ask you to give us back our shares [raf‘ aydīkumā ‘ammā dhukir wa-taslīmihi li-jihatunā].

71The plaintiffs’ representative first intervention ends at this point, and is immediately followed by the two defendants’ reply:

The two defendants were then asked [to reply to the plaintiffs’ representative’s claims], and they claimed that they had purchased from their sister, the inheritor of the plaintiffs, her share consisting of [what follows is a list of properties with their respective shares as detailed in Table 8-3, column #4].

72At this point, and after the properties are listed, the defendants’ reply abruptly shifts from the third-person plural to a direct mode of speech addressed to the plaintiffs:

We had previously addressed [rāfa‘nā] [this problem of purchasing Zaynab’s shares], after the death of our sister, your inheritor, to his honor, the then qāī of the city of Beirut and the now deceased Shaykh Yūnis Efendi Bizrī, and he validated for us [athbata lanā] the aforementioned purchase in the presence of her husband, Muyī al-Dīn, and he issued a ukm confirming the legality of the buying and selling [of Zaynab’s shares], thus estopping [mana‘a] the plaintiff, Muyī al-Dīn, who is one of [Zaynab’s] inheritors, [to request any of the aforementioned properties].

73The defendants’ “direct” intervention ends at this point with the following note from the qāī:

[The defendants] then showed a ujja signed and stamped [mamhūr] from his honor, the aforementioned deceased qāī, which was publicly read in the majlis [courthouse].

74The document then inserts a verbatim copy of the previous ukm(1836), which ruled that the defendants had indeed purchased their sister’s share as they have been claiming all along. But before proceeding to the older ruling, it is worth looking more closely at the plaintiffs’ claim and its counter-reply. Even though the two parts, the claim and the reply, look like “direct verbatim quotes” from what the disputants had said in court, it would be wiser to assume that they represent very short “extracts” from much longer utterances. It is also wise to assume that such “extracts” had been “edited” by the qāī so as to leave only what looks “essential” for his case. Even though it would be impossible for us to know with even minimal certainty how the case was scripted, it nevertheless follows a common minimalist pattern—that of including as little as possible on the case of itself, and not allowing anything—not a single extra statement—that would not “fit” perfectly well with the judge’s script. Moreover, the minutes of the hearings that would have included anything from examination to cross-examination, to the judge’s own personal digressions, were never appended to any of the cases, so there clearly was a deliberately concerted effort not to provide the “reader” with anything but the text of the ruling.

  • 52 Richard A. Posner, The Economics of Justice (Cambridge & London: Harvard University Press, 1981, 19 (...)
  • 53 Posner, Economics, 177: “The typical primitive judge, like the modern arbitrator, must look to the (...)

75Herein lies the whole ideology of the sharī‘a court documents: the heavily scripted texts manifest a desire to bypass fact-finding procedures altogether, and replace them by a legitimate narrative. In fact, such societies were typically confronted by the high cost of information, that of finding and examining facts, assessing them, and decide what’s genuine and what’s false. As Richard Posner has perceptively argued, “High information costs are reflected in the reliance on oaths, ordeals, and other dubious or irrational methods of factual determination that are sometimes used in primitive adjudication.”52 This is why it is equally dubious to perceive the sharī‘a court system in terms of a “rule of precedent.” First, keeping track of precedent is a costly enterprise, one that requires a substantive bureaucracy and army of scribes, not to mention the availability of a print culture that would reproduce and circulate various relevant rulings. In the old English common law, that cost was minimized thanks to the writ system, and it is unthinkable that in the highly archaic and decentralized sharī‘a court system that a rule of precedent would have the slightest chance of surviving. Second, one could argue that a form of “precedent” exists, but albeit very indirectly in the scripted texts that judges apply from one case to another: this alone represents an enormous cost-saving device. Third, even though the sharī‘a judges were for the most part recruited from the ‘ulamā’ urban factions, they nevertheless were never part of a centralized judicial bureaucracy, one that would have at least created a more uniform judiciary. Judges thus adjudicated mostly on their own, with their own savoir-faire, and a minimal staff consisting of a deputy and scribe, and were, like their clients, private citizens. Considering then the information costs, unreliability of facts, and the low compensation, it does indeed seem unlikely that judges would circulate their rulings around so as to make them “public.”53

76Needless to say, all that is clearly reflected in the writing of each case. Even though the judge drafts his case so as to meet the disputants’ expectations, and hence must reconsider his case individually, by the nineteenth century, cases had nevertheless to fit within well defined and predictable scripts, a cost-saving process that definitely contributed in meeting the disputants’ expectations, and probably points to a much broader societal status quo.

  • 54 Austin, How to Do, 109.

77The plaintiffs’ major claim comes in two parts. The first describes and calculates the shares in the set of disputed properties, followed by another claim that these properties should have belonged to Zaynab ab initio, and should now be in her husband’s and children’s possession. Such statements, regarding the distribution and location of properties and property rights, need to be examined at two interrelated levels. On the one hand, and on the surface, they correspond to descriptive statements on a true/false basis: the lists of properties do certainly fall into this category, together with the different shares associated with them and the individuals and/or families to whom they belong—such information proves vital and is either correct or incorrect, that is, it should in principle be linked to a factual reality. But all such information is based on utterances performed by the representative of the plaintiffs who put forward claims whose veracity is still unknown and whose aim is beyond the purely descriptive. In fact, as soon as he informs the defendants on the status of these properties, he orders them to transfer the latter back to the plaintiffs (his clients). It is quite common to have plaintiffs (or their representatives) combine in their introductory speeches several speech acts together, such as informing, ordering, warning and undertaking. Austin calls such “utterances which have a certain (conventional) force,” illocutionary acts.54 Imperatives of the form “I am (hereby) requesting that you do so-and-so,” are also understood on the model of perlocutionary acts, as attempts by an actor S (speaker) to get H (hearer) to carry out a certain action. In the context of the sharī‘a courts, however, their function proves symbolic in that the plaintiff makes his point boldly and by directly addressing himself to the defendant, underscoring once more his point by requesting that the properties be given back to him. Of course, since that would only happen through a judge’s ruling, the plaintiff’s statements nevertheless retain their rhetorical effect and help in framing the litigation more forcefully.

78The defendants furnished evidence consisting of a previous 1836 ruling, proving the purchase of some of Zaynab’s properties. An appended and written document, signed and sealed by a qāī, brings a new dynamism to the case. To begin with, the document was appended to the oral utterances of the defendants, and thus becomes the only tangible element in their defense strategy. A text, especially when introduced in the midst of an oral exchange, furnishes evidence of a more reliable kind than simple witnessing, a process that associates the veracity of witnesses to status, rank, affiliation to the disputants, and social origins. But even though the document has an aura of its own, and once sealed, signed, and hard to challenge or revoke, disputants typically opt for evidence through witnessing, so that contractual settlements would be adapted to the circumstances of the case. And as the case develops, we will see how even the 1836 ruling had to be validated through witnessing, once contested by the opposing party.

79The older 1836 text, which was publicly read in court (the document says quri’at, which makes it hard to see who read it), is inserted as part of the defendants’ reply, but comes as a sudden transition, first, from the I/We form to the qāī’s own narrative explaining that there was a previous ukm on the same issue, and which had to be read in court in order to be acknowledged, and finally, between the qāī’s own narrative and the text of the older litigation that reads as a case-by-itself inserted in the defendants’s reply.

  • 55 The name, signature (imā’), and seal (khitm) of the qāī are usually “inscribed” at the beginning (...)

In the city of Beirut, in the court of the anafī qāī whose signature and seal are shown above,55 Muyī-l-Dīn Ghalāyīnī b. Mutafa alabī, representing himself [bi-aāla ‘an nafsihi], and on behalf of his minor children, complained against the two brothers, Hājj ‘Abdul-Ghanī and Sa‘īd, sons of the deceased Amīn Mīqātī, and now present in the majlis [courthouse]. [The plaintiff] noted in his address that Amīn Mīqātī died leaving behind [two male children, the defendants], his wife, and four daughters, Qūt, Āmina, Sa‘diyya, and Zaynab [wife of the plaintiff] as descendants and inheritors. His inheritance was thus limited to the aforementioned legal descendants, and among them was Zaynab, my wife, who died after her father, and whose inheritance [from her father] now became my right and the right of my minor children from her. Amīn Mīqātī had left [the following properties as inheritance, listed in Table 8-3, column #2]. The defendants are now illegally controlling those properties and we summon them to give us back what [we should have inherited from Amīn Mīqātī via Zaynab].

80And now the defendants’ reply:

When the defendants were asked on the veracity [of the plaintiff’s statements], they acknowledged that their sister Zaynab had inherited from their father the aforementioned properties, and that they are now under their control [wa‘ yad], but all of which have been legally purchased from their sister when she was still alive, for a known sum that was paid to her. The plaintiff then denied the defendants’ allegations and requested from them to furnish evidence. [The defendants] then left the courthouse and came back with their witnesses, Muammad ‘Alī b. ājj Rawān al-Shaykh, his wife Qūt, and her sister, both of them daughters of Amīn Mīqātī. They all witnessed in front of the plaintiff, Muyī-l-Dīn, that what [the defendants] had claimed as theirs was perfectly true as the result of a legal purchase from their sister Zaynab. ... The qāī [having accepted all testimonies] declared that the plaintiff had no legal rights in any of those properties and he issued a written for that matter. ...

81The older case ends at this point, and, as it should have become clear by now, its structure is similar to the newer case with the normative shifts from the third to the first person, in addition to the contrast between the direct unsubstantiated claims made by the plaintiff and those substantiated, through a number of witnesses, by the defendants. In this micro-narrative, the burden of proof lies, as in the more recent case, on the defendants who had to furnish witnesses, request a ujja (“record”) from a Beirut qāī, then use that same record, fourteen years later, as further evidence. In all this, the plaintiffs only created a case for the defendants, while leaving behind all their claims without any evidence.

82Once more we’re back to the 1850 case. Having satisfactorily proved that the first two disputed properties (#1, 2 in Tables 8-2 & 8-3) were purchased, at a prior date, from their now deceased sister, the defendants now proceed with the remaining three properties (#3, 4, 5 in Tables 8-2 & 8-3):

[The defendants] claimed that the dār and the two ānūts, both located at the rear of the house, are not part of the inheritance [of Amīn Mīqātī] but are part of a waqf left by our grand-grandfather ‘Izz al-Dīn, from a period of over four-hundred years, for his children and descendants, with the males having twice as the females, and the descendants [dhurriyyat-uhu] now consist of the two of us, and the children of our cousin, the deceased Shaykh Muammad Mīqātī ... And the plaintiffs are not among [our grandfather’s] children but from the “outside” [awlād al-ajānib]. They therefore should have no rights whatsoever to the house and two shops because such rights belong to us and to the children of our cousin, the deceased Shaykh Muammad, and this should be as clear as the sun [ashhar mina al-shams]. At this point, the qāī asked the plaintiffs [to clarify their position] on the contents of the aforementioned and the waqf, and they replied by rejecting the [1836] document and denying also that the house and two shops were ever part of a waqf. Considering what the situation had amounted to, the qāī requested from the defendants to furnish evidence that would support what was written in the record. They left the court and came back [with the following four witnesses] ... who all certified that the contents of the document are perfectly authentic. Since both the record itself [] and its ruling are legal, the qāī, relying on the latter, issued his own ukm declaring that the plaintiffs had no legal rights in the alleged share of their inheritor [Zaynab], that is, the bustān and the dukkānin Sūq al‑Fashkha, because they had been legally purchased [by the defendants] ... The qāī then requested from the defendants to furnish evidence [bayyina] for their claims regarding their [grandfather’s] waqf. They left and brought back with them [the following seven witnesses], each one having individually witnessed that [properties #3, 4, 5 in Table 8-3] were part of the old Banū Mīqātī waqf.

83As in previous acts of witnessing, the qāī validated the testimonies of the seven witnesses and then issued another ruling, making the old Mīqātī waqf legal. Two things are of interest here. First, that a written record signed and sealed by a Beirut qāī and validating a contract of sale, was insufficient evidence per se and had to be “superseded” by the testimonies of four witnesses. (Notice that until now, and throughout the case, the plaintiffs kept furnishing claims and allegations without evidence, which pushed all burden towards the defendants.) But, if witnessing reigned supreme, wasn’t it because of the high costs in maintaining property rights and all the required documentation? And wouldn’t the cost be reduced in granting possessory rights (wa‘ yad, taarruf,usufruct) over property rights (milk), and in the use of witnesses, rather than documents, in validating such rights? Considering that the selling of land was more difficult because of kinship, scarce availability of surplus and cash, maintenance of registers, and because of property laws that favored possession (or occupation) over ownership, not to mention the massive state ownership of public lands (mīrī), the preoccupation moved towards the occupation and use of a land rather than its ownership; hence the permanent need for witnesses (rather than documents) in this fluid process of claims and counter-claims of possession.

84The other crucial issue is the declaration made by the defendants—in a self-confident tone—that the plaintiffs, should be considered, vis-à-vis the Mīqātīs, as awlād al-ajānib (literally, the “children of foreigners,” or more accurately, “children of outsiders”), which brings us back to the critical issue of the “outside” versus the “inside.” The defendants spoke in a tone that made the whole issue seem obvious—“clear as the sun”—while in fact it could not have been that clear-cut because, as we shall see in a moment, the judge’s final statements were entirely devoted to this issue, as they were narrated in conjunction with a “consultation” addressed to the Beirut muftī. Thus, once we assume as we did elsewhere, that the uttered statements do conform to what was written, then the defendants’ aim was to make a complex and unsettled issue “obvious” by giving the false impression that it was quite common to assume that the heirs of a woman who got married from “outside” her own family should have no legal rights in a family waqf. Since kinship structures much of what is related to property transfer and distribution of waqf revenues, notions like the “inside” and “outside” of a clan, family, or group; the “us” and the “them”; or, in more anthropological terms, the “endogamic” and “exogamic,” were all common currency as far as property rights goes.

A question was raised to the head of the ‘ulamā’,the muftī of the city of Beirut, Shaykh Muyī-l-Dīn Yāfī, concerning a group of people [jamā‘a] who complained against Zayd and ‘Umar, and their maternal uncles as well—that you are “controlling” such-and-such properties that were left as an inheritance by your father, also the father of our mother, without any legal cover [bilā masūgh shar‘ī]. We therefore request from you the properties that we should have inherited from our mother. [The defendants] replied that those properties are part of the old waqf of our great-grandfather, which he had bequeathed for his children, the males and females, and you are not [considered among] his children even though your mother was because your father is an “outsider” [abūkum ajnabī] vis-à-vis the founder. The defendants then proved that the above properties are included in their grandfather’s waqf. Should we then accept this testimony [shahā] and issue a ruling accordingly, without having the children of the daughter as part of the waqf’s beneficiaries? [The muftī] responded by saying that the testimony should be accepted and draft a ruling on this basis. Based on this testimony, the children of the daughter should not be included in the waqf, without legally proving their “inclusion” [dukhūlihim], because when one has erected a waqf for his children and the children of his children and their descendants, he does not include the children of their daughters [awlād al-bint], because the latter are referred to their fathers rather than to their mothers [mansūbūn ila ābā’uhum duna ummahātuhum]. This seems Shaybānī’s opinion [āhir al-riwāya], and this is the truth, and on this basis this fatwā was issued. ...

85What did a fatwā do? How did it work, and what did it attempt to achieve? Fatwās that were summoned on an individual basis, or collected in fatāwā manuals, did not have the same performative effect as those integrated within court cases. Each one played a distinct role precisely because of the performative role of language and its illocutionary effects. Thus, the above fatwā’s purpose was simply to underscore that the children of a benefactor’s daughter did not share any of the waqf’s benefits; and the reason being that the children were always associated to their patrilineal descent—an assertion that was long made by the defendants. In effect, the fatwā added no legal argument to the claim—since no explanation was provided—but by linking it to Shaybānī it received an aura of legitimacy. Hence the fatwā became doubly effective over the judge’s opinion since it received its mantle from both the Beirut’s muftī and imām Shaybānī.

86Compared to our previous and much longer fatwā that involved a ruling over an ex parte hearing (C 7-2), even though both were limited to a single issue only, the present one was far simpler in its composition in that it finds ground in Shaybānī’s opinion exclusively. Both point to the fact that in fatwās the juristic typology of the late anafīs ought to be followed. The judge could have, through his own ijtihād, come to the same opinion, but either he was no mujtahid, or else he preferred to back up his own ruling with that of the muftī. Within the textuality of court documents, fatwās got nested with other opinions, situated within a typology of scholars and lawyers, and also of the judge’s own text. Fatwās were thus less informative than any ruling since their function was primarily authoritative—to push the ruling in a particular direction rather than investigate—and since their language was recapitulative and generic, they tended to be the only segment within the broader narrative of the “case” to provide a quasi-rationale to the ruling. Fatwās recapitulated a case generically—assuming they specifically targeted a concrete situation—by a process of abstraction and systematization which assumed that all evidence had been validated. Hence the fatwā was a pièce à thèsesince it pulled together all the strings of the case and its various parts by lashing on the single pièce de résistance that was obstructing the progress of the ruling, which, to be sure, might have been very marginal, such as the legality of an ex parte hearing, or the status of the children of a woman’s beneficiary whose husband was from another family.

Status and authority of the text

87A pattern is beginning to emerge from all the cases examined thus far.

88(1) The adjudicative process is normally structured on authoritative opinions that are seldom rendered explicit, and which are connected to the school’s core doctrines. In that context, the juristic typology of the late anafīs helps in the association between cases and texts. Opinions are thus associated to one another, on the one hand, and to cases, on the other, thanks to their relative “status” and “rank” within that typology. It was not so much the “historical context” that mattered the most in the association between cases and texts, but rather those “gaps” they might have filled in a fatwā or ruling, and how they might have “worked” within the association of opinions (see, for example, the fatwā in C 7-2 supra).

89(2) Quite often opinions were to be associated with one of the numerous procedural fictions (see Table 2-2 supra). Again, here, as in (1), texts were chosen irrespectively of any “historical context,” but only in what they might have brought to the logic of the fiction in question.

90(3) Fatwās were obviously no exception to the above rules, and their oracular and quasi-rational nature provided the judge with a comfortable way to go ahead with his ruling. One could even say that had judges drafted all their rulings more explicitly by pointing to their step-by-step logic, they would probably have looked like fatwās rather than anything else.

91(4) All kinds of “legal” texts had to meet the expectations of specific “audiences,” and hence, besides their claim for “truth,” they had to conform to the social norms of a particular milieu and locality, which only a linguistic analysis that bypasses truth-claims on a true/false basis would point to.

92Thus, if a muftī or judge would pull out an opinion that was several centuries old, and then associated it within the context of the case at hand, the concern would be over the “applicability” of old opinions within a specific social milieu, quite different from the older ones.

Table 8-1: Waqf of Salīm ammūd (Sidon) (C 8-1)

  • 56 In colloquial Arabic (the ‘āmmiya), the ākūra (pl. awākīr) denotes a land, close to homes, that i (...)
  • 57 Most probably refers to an area in Sidon with readily available cultivatable and watered land. Suqī(...)
  • 58 Makarameans to water, so the makar could be an instrument of watering land.

#

Property

North

South

East

West

1

Three-quarters of the “garden” (bustān) known as the Mu‘ayīa, and ākūrat (land)56 ‘Antar, located in Suqī Sidon,57 composed of lemon trees and vineyards, etc.; in addition to two houses with wooden ceilings; and a qubba (dome) where rests the body of [the grand-mother of the plaintiff] Nafīsa; a pond [birka] whose one-fourth belongs to the Shaykh ‘Abdallah al-Sal, which draws its water from the canal of Khāskiyyeh which has five counters [‘addādīn] situated under the mill.

Public road and land of ‘Anbūsiyya.

Road and door; garden of Âuhayrī and land of ‘Alī Fakhr al-Dīn.

Public road; garden of Nāir and garden of āyim the Jew and Ibn al-Kalbān.

Road and garden of al-‘Āmūd.

2

Land of al-Qabbāniyya, located in Saqī Sidon and containing various plantations, and a house and an Iwān, both with a roof [masqūf], watered from the canal of Khāskiyya with two counters and a half from the makar58 of al-Jadīd and that of al-Dibs.

Garden of Shaykh ‘Amār, property of ‘Abdul-Bāqī and his co-partners.

Garden of Muammad ashīsha.

Land of al-Najdī, property of ‘Abdul-Bāqī, the Shaykh of al-aramayn.

Road and the gate with the garden of ‘Ayn Abī al-Luf.

3

Garden located in the “Land of Lands” (ar al-awākīr) in Sidon, mulberry and fig composed of trees, a house, a well, a noria (nā‘ūra), and a pond of water fed on a well.

Land of al-Najāa and garden of al-Qar.

Road, garden of Shams, and land of Âāhir.

Road, cemetery of the “foreigners” (al-ifranj), and lands of al-Nab.

Garden of the heirs of ‘Ubayd um.

4

The land of al-Abya composed of trees of mulberry and fig.

Road and garden of al-Jarāyī.

Cemetery of the “foreigners.”

Land of Dīb al-Shurayfī.

Road with the door, garden of al-Nā‘ūra.

5

Land close to the cemetery of the “foreigners” composed of mulberry and fig trees.

Land of Dīb.

Garden of Shams.

Land of Abū Shmāra.

Road with the gate, and garden of al-Nā‘ūra.

6

Land of Zazalānī located in ar al-awākīr in Sidon, containing fig plantations.

Waqf of Bayt Quaysh.

Road and land of Bayt (“House”) Jamāl, and the land of Bayt al-Saqqā.

Road and garden of al-Sāfūt, property of Ibrāhīm Efendi al-Khaīb.

Land of al-Sharshū.

7

Land of Kuzbur containing plantations of mulberry and fig and aloe.

Land of al-Shaykha.

Road and land Banī al-Saqqā.

Land of al-Sharshū.

Road and land of al-Maghāra.

8

Land of al-Maghāra containing mulberry and fig plantations.

Road, and land of Banī al-Salqā, and land of Kuzbur (waqf).

Land of al-āib.

Land of Bayt Jamāl and Bayt al-Dāljī.

Road and land of Kharbūr, and other lands close to the cemetery of the Shī‘īs (turbat al-matāwila).

9

Land of Nuzha containing mulberry trees.

River of al-Barghūt (active in winter); garden of al-Bayā with the olives of Bayt Kharnūba.

Land of Rayyeh (waqf of ‘Ubaydī Bāshā).

Land of Bayt Marmūsh.

Lands for the cultivation of grains/cereals (bayādir).

10

Non-cultivated land (salīkh) known as Sawād al-Sulkh located in the plain of the city of Sidon.

Sawād Ismā‘īl Marmūsh.

Land of asan Dīb.

Road.

Sawād Bayt Marmūsh.

11

Half of the salīkh land known as Dawwārat Khalīl al-Zurayrānī, located close to the garden of the well of Qabuā, and shared with the other half with the Shaykh Ibrāhīm Efendi al-Khaīb.

Land of Bayt Jawhar.

Land of Banī Quaysh (waqf).

Land of Bayt al-Qub.

Lemon land.

12

Half of the coffee-shop located in Sūq al-‘Aṭṭārīn in Sidon, sharing with the other half with the heirs of the Shaykh Muammad fianash.

Shop of Bayt Qub.

Shop (dukkān) of Qāsim al-Nāyib.

Road.

Property of Bayt al-Qub, with a private road.

13

Shop in Sūq al-‘Aṭṭārīn.

Shop of Muammad Sa‘īd al-Muftī and āli al-Yammānī.

Property of Bayt al-Qub.

Anbār al-Sha‘īr.

Road and its gate.

Table 8-2: Inheritance of Amīn al-Mīqātī (Beirut) (C 8-2)

#

Property

North

South

East

West

1

Garden (bustān) of Bayt al-Mīqātī located in Mazra‘at al-Qinārī, outside Beirut, containing mulberry plantations of mulberry and a tower (burj).

Garden of al-Bassū.

Garden of Sarbiye.

Garden of amādeh.

Garden of al-Manāfī.

2

Ten and a half qīrās of the shop (ānūt) located in Sūq al-Fashkha in Beirut, facing the street (zārūb) of Shaykh al-Islām where lives Yūsuf al-Nuwayrī.

Road with the gate (al-ighlāq).

Olive mill (ma‘arat) of Banū al-Saylīnī.

Shop (ānūt) property of the heirs of ajj Mutafa Badr.

Shop part of the waqf of al-Qaṣṣār, home of ‘Abdul-Qādir ulānī.

3

House (dār) located in Sūq al-‘Aṭṭārīn (“Market of the Perfumers”) in Beirut, in the street (zārūb) of Banū ‘Izz al-Dīn.

House part of the waqf of Banū ‘Izz al-Dīn.

Qīsāriyya of Shaykh Shāhīn Talūq.

Sūq al-‘Aṭṭārīn.

Home of Qūsh.

4

Shop located in Sūq al-‘Aṭṭārīn at the bottom of the same neighborhood (āra) as above (#3) where lives Amīn Aghā Ramaān.

Shop (dukkān) whose first half is the property of ājj fiālib Shayqalū, and the second half is the waqf of the khibz (bread).

Shop (dukkān) part of the waqf of the Mosque of Sidon.

Road with the gate.

House identified in #3.

5

Shop located in the same Sūq as above (#3, 4) where lives the Jewish plumber (al-yahūdī al-sankarī).

Shop (anūt) part of the waqf of Banū ‘Izz al-Dīn.

Shop of the waqf of Zāwiyat Sūq al-Qun (“Cotton Market”).

Road with the gate.

House identified in #3.

Table 8-3: Shares of Zaynab al-Mīqātī according to the various parties in the two cases (in qīrās) (C 8-2)

#

Property

Husband’s Claim (1836)

Plaintiffs’ Claim (1850)

Defendants’ Claim (1850)

Final Decision (1850)

1

Garden (bustān) of Bayt al-Mīqātī located in Mazra‘at al-Qinārī, outside Beirut, containing mulberry plantations and a tower (burj).

1 + 1/4+ 1/2(1/8)

2 + 5/8

1 + 2/8+ 1/2(1/8); purchased from their sister prior to 1836.Other half property of their three cousins.

Property of the defendants according to a ujja in 1836.

2

Ten qīrās and a half of the shop (ānūt) located in Sūq al-Fashkha in Beirut, facing the street (zārūb) of Shaykh al-Islām where lives Yūsuf al-Nuwayrī.

1 + 1/8 + 1/8(1/8) + 1/2 [1/8(1/8)]

1 + 1/8+ 1/8(1/8) + 1/2 [1/8(1/8)]

1 + 1/8+ 1/8(1/8)+ 1/2 [1/8(1/8)]; purchased from their sister prior to 1836.

Property of the defendants according to a ujja in 1836.

3

House (dār) located in Sūq al-‘Aṭṭārīn (“Market of the Perfumers”) in Beirut, in the street (zārūb) of Banū ‘Izz al-Dīn.

No claim.

2 + 5/8

Grandfather’s waqf.

Waqf of ‘Izz al-Dīn al-Mīqātī of which the plaintiffs should have no claims.

4

Shop located in Sūq al-‘Aṭṭārīn at the bottom of the same neighborhood (āra) as above (#3) where lives Amīn Aghā Ramaān.

No claim.

2 + 5/8

Grandfather’s waqf.

Waqf of ‘Izz al-Dīn al-Mīqātī of which the plaintiffs should have no claims.

5

Shop located in the same Sūq as above (#3, 4) where lives the Jewish plumber (al-yahūdī al-sankarī).

No claim.

2 + 5/8

Grandfather’s waqf.

Waqf of ‘Izz al-Dīn al-Mīqātī of which the plaintiffs should have no claims.

93  

Notes

1 Beirut sharī‘a courts, unnumbered register and document, 14 Jumāda I 1260 (June 1, 1844).

2 See infra Table 8-1.

3 Orally, at two interrelated levels. First, the six conditions specified above, which gave the founder the ability to change the beneficiaries, were orally added to the waqfiyya without having ever become part of the written document itself. Then, after having orally added this condition, the founder, at a later unspecified stage, had orally modified the status of the waqf’s beneficiaries by requesting that the revenues be distributed among all his descendants without favoring anyone in particular (as he did originally).

4 Wehbeh az-Zuaylī, al-Waāyā wa-l-waqf fi-l-fiqh al-Islāmī(Damascus: Dār al-Fikr, 1987), 172ff.

5 Zuaylī, Waāyā,174-175. Such conditions and few others became known in modern sharī‘a law as the “ten conditions” (al-shurūt˝ al-‘ashr), a term unknown to the classical fuqahā’, but used, for example, in the Egyptian waqf law of 1946.

6 It is only later that the document does clarify that the remaining one-eighth should pass to the two wives of Salīm ammūd. The logic here is that the revenues of the waqf are divided among two distinct lines of beneficiaries. The first, representing the seven-eighths, goes to the founder’s oldest son, Khālid ammūd, the father of the plaintiff, and to his descendants (this, as we shall see, is the defendant’s claim); while the second goes to the wives of the founder. The founder could have, of course, kept the waqf as a global unit without its division into two distinct lines. He could have thus followed, concerning the distribution of revenues among the beneficiaries, the rules of inheritance which in some cases are also followed for waqfs. But in how he did proceed, he opted for a distribution that favored one line of beneficiaries over the other.

7 To be more precise, according to the original waqfiyya, the seven-eighths of the revenues should be divided as half to Khālid and the other half is also to Khālid and to any of his future descendants. The intention behind such a division is probably to ensure that Khālid gets at least half of the revenues.

8 In Arabic: wa ‘ala man sayudithuhu allāh ta‘āla lahu mina al-dhukūr wal-ināth. The lahu here, as elsewhere in the document, should—grammatically—denote Khālid, and logically denote the founder Salīm ammūd. In many instances, the language of the court documents is grammatically incorrect and weak and leads to much confusion and uncertainty.

9 The document does not specify whether the founder, while being the administrator of his own waqf, would also receive all or part of the revenues.

10 A question naturally comes to mind here as to how the administration of the waqf was in the hands of the defendant, who was the plaintiff’s nephew rather than to the plaintiff himself since, being the founder’s son, he should have had the priority over anyone else from the next generation after his brother’s death. The plaintiff, however, is suing on the basis that he was denied all his rights (his portion of the waqf’s revenues) and because the defendant is illegally the recipient of the waqf’s revenues and responsible for administration.

11 Their exact number, two, is only specified later.

12 Which raises the interesting question as to why they were not all included in the first written waqfiyya. Could it be that the founder had only Khālid at the moment he erected his waqf? And if so, why were the changes introduced later not included in the waqfiyya?

13 The “Kitāb al-Waqf” is in Radd, 4:337-499.

14 Since the text limits children to the future, Khālid must have been childless at the time.

15 It is only at this point that the number of wives is specified as two.

16 This is the defendant’s version. The plaintiff’s claims, accepted by the court, shall be expanded in the next section.

17 It is not clear here, as elsewhere in the text, who the “aforementioned son” might be. It makes more sense to presuppose that it is indeed Khālid rather than ‘Alī, the plaintiff, since the “legalization” of the first waqf through a could only have been beneficial to Khālid because it would have made any future alteration of the waqf invalid.

18 As noted earlier, it is not clear whether the founder, as the administrator of his own waqf, was also till his death the sole beneficiary. In case he was so, this would have meant that Khālid could not have had any of the waqf’s revenues while his father was alive. In this case then, the question above would turn to be redundant because had Khālid had any khuūma with his father, it would have been in any case prior to the istiqāq. From a more general point of view, however, the above question might be pertinent in order to check Khālid’s share from the waqf’s revenues: a court’s decision in any direction could have changed the amount of his share.

19 Again, here as before, there is a confusion and it only makes sense to presuppose that ‘Alī is the one intended in what could be considered as a second line of questioning (the first was related to his brother Khālid) because he was the one who should have profited the most from the oral alteration of his father’s waqf.

20 Zayn al-‘Ābidīn Ibn Nujaym [d. 1562], Egyptian anafī faqīh, author of al-Bar al-rā’iq: Shar kanz al-daqā’iq, 8 vol. (Cairo: al-Maba‘a al-‘Ilmiyya, 1893), the “Kitāb al-waqf” is in 5:202-268. The Bar is a commentary on the authoritative work of āfi al-Dīn al-Nasafī, Kanz al-daqā’iq, and the first Cairo edition also includes in its margins the commentary of Ibn ‘Ābidīn whose personal copy of the Bar served as the first-hand manuscript for its editing and publication; Ibn Nujaym is also author of al-Ashbāh wal-naā’ir(Cairo: Dār al-fiibā‘a al-‘Āmira, 1290/1873), which includes the first most systematic treatment of the anafī “general rules (al-qawā‘id al-kulliya),” some of which have been discussed at length earlier in this study (Chapter 1).

21 On this direct quote from al-Bar, 5:239, see the discussion below in the section “What the Founder Said.”

22 That is, could not be verified as “true” or that there were no witnesses that would testify that the founder had changed some of the waqfiyya’s clauses.

23 Qāsim al-Dīn b. Qutlūbughā, author of a collection of fatāwā, al-Qāsimmiyya, which was among no less than twenty fatwā collections on which Ibn Nujaym drew for his Bar (e.g., 5:222). For a list of these collections see, Wael B. Hallaq, “From Fatwās to Furū‘: Growth and Change in Islamic Substantive Law,” Islamic Law and Society, 1:1(1993), 11.

24 aydar’s Shar al-Majalla, 44, notes that the meaning of khuūma has changed since the formative anafī period from its “manifest (literal) meaning” (ma‘na aqīqī) of dispute and fighting (nizā‘ wa mqātala) to more recently, in Ottoman times, of charging someone, a wakīl, for the process of responding and defending against the claims of the opponent’s party (al-tawkīl bi-l-mujāwaba wa-l-murāfa‘a). This was brought up as an illustration to article 40 on the difference between the literal and customary meaning of words and propositions; the khuūmaexample illustrates well, to the Majalla’s interpreter ‘Alī aydar, one of those cases where the original legal meaning of a word was then totally abandoned—a category known as “legally abandoned,” mahjūr shar‘-an.

25 Imber, Ebu’s-su‘ud, 147-49.

26 anafī faqīh, known mostly for his fatāwā collection, al-Bazzāziyya, died in Anatolia in 1414.

27 Ibn Nujaym, al-Bar,5:239.

28 On the importance of “categories” in the law, see, Anthony G. Amsterdam and Jerome Bruner, Minding the Law (Cambridge, Massachusetts: Harvard University Press, 2000), Chapter 2.

29 Ibn Nujaym, al-Bar,5:239.

30 Ibn Nujaym, al-Bar,5:243.

31 Ibn Nujaym, al-Bar,5:243.

32 Burhān al-Dīn Ibrāhīm al-fiarābulsī, al-Is‘āf fī akām al-awqāf(Beirut: Dār al-Rā’id al-‘Arabī, 1981), 7.

33 The waqf could be entrusted to two administrators, a mutawallī who has a direct control over the revenues, and a ir who acts as a supervisor to the administrator.

34 See supra Chapter 3 on contracts.

35 fiarābulsī, Is‘āf,7.

36 fiarābulsī, Is‘āf,48.

37 See supra Chapter 4 on land-tenure.

38 See supra Chapter 1 on customary practices.

39 fiarābulsī, Is‘āf,67, notes that in homes that were part of a waqf portfolio, “the lease should not extend beyond a year, with the danger of making the waqf invalid, because for a longer duration, the tenant begins behaving like a landlord, thus becoming the de facto real one.” Thus, even though the concern here was with the ubiquitousness of “occupation” and its possible metamorphosis into a full ownership, the other unmentioned concern was the fluctuation of prices, which, in such societies, tended to be more frequent and haphazard than in market economies in the short run, but more stable in the long run. The remedy was either a lump-sum investment in the waqf’s property as marad, or a sharecropping contract that would be at least partially in kind, or else a long lease that the administrator would accept on the proviso of a prior investment in the waqf by the tenant.

40 Beirut sharī‘a courts, unnumbered register and document, 12 Jumāda 1266 (26 March 1850).

41 See Table 8-2.

42 The document does not explain why the shop in the Sūq al-Fashkha is listed separately from the rest of the inheritance. Note that the shop was only partially owned by the heirs of Amīn Mīqātī. See Table 8-3 for a comparison of Zaynab’s shares according to the different versions of the two parties in the two related cases under consideration (1836 and 1850).

43 Dated 1 Jumāda I 1252 (August 14, 1836).

44 See Table 8-2.

45 Quite often, in the sharī‘a courts, the purchase of property is neither accompanied by a written document () nor by the specific sum for which the property was purchased (C 5-1 & 5-2). Thus, even though the Qur’ān 2:282 made it mandatory to legalize transactions in writing, this habit was never fully followed and, as early as the first or second century a.h., Islamic courts accepted both written and oral acts of transactions (see Joseph Schacht, The Origins of Muhammadan Jurisprudence (Oxford: Clarendon Press, 1950), 188). Thus, even though it is perfectly legal, from a anafī perspective, to legalize purchases of property on the basis of an oral process of validation (usually through witnesses), it remains extremely important for a textual approach to the sharī‘a courts which focuses on their discursive and non-discursive practices, not to take this process of accepting oral testimonies for granted and to question it on the basis of determining how the social agents deploy their strategies in court in the way they “decide” what to come forth with as plain “evidence” and “proof,” that is, to question the foundations of their “truth”-claims.

46 By referring to the descendants of Amīn al-Mīqātī as “us” (nanu), meaning the two defendants, the presumption here is that their four sisters were dead.

47 J.L. Austin, How To Do Things With Words (Oxford University Press, 1962, 1975), 103ff. There are three levels of speech according to Austin. (1) The locutionary, which is the content of an utterance; (2) the illocutionary, which points to what the speaker is doing with the uttered proposition (e.g., declaring that she will get married); and finally, 3) the perlocutionary, or the effects of the utterance on the hearer. The point here is that linguistic theory has generally treated utterances as propositions with true/false claims, thus ignoring both the speaker’s “act” while uttering, and the hearer’s reception of that speech-act, both of which are based on that situational encounter rather than solely on the content of speech.

48 For more recent views based on Austin’s insights, see John Searle, Speech Acts: An Essay in the Philosophy of Language (London: Cambridge University Press, 1969); Jean-François Lyotard, La condition postmoderne (Paris: Éditions de Minuit, 1979), 20-24; Stanley Cavell, A Pitch of Philosophy: Autobiographical Exercises (Cambridge, Mass.: Harvard University Press, 1994), Chapter 2; Paul Ricœur, Soi-même comme un autre (Paris: Seuil, 1990), Chapter 2; Ricœur prefers to translate “speech-act” by “acte de discours” to differentiate between “speech” and the more general use of “language”; that would also bring “speech,” as elaborated in this chapter, closer to our notion of “discourse” which is that of “discursive practice”; see also, Jürgen Habermas, “What is Universal Pragmatics?,” in Communication and the Evolution of Society, translated by Thomas McCarthy (Boston: Beacon Press, 1979), 28: “Whereas a grammatical sentence fulfills the claim to comprehensibility, a successful utterance must satisfy three additional validity claims: [1] it must count as true for the participants insofar as it represents something in the world; [2] it must count as truthful insofar as it expresses something intended by the speaker; and [3] it must count as right insofar as it conforms to socially recognized expectations.”

49 As noted earlier, a more conventional way of introducing a litigation would be “In the court of judge and deputy judge so-and-so, in the city of Beirut, X complained against Y on the following matter...” The ḥḍara form discussed above, even though less common than the more conventional one, does not in itself signal any deep change and should be taken as a purely formal alteration which has more to do with the contingent circumstances of the case.

50 See above the cases of Bashīr II (C 5-1) and Bashīr III (C 6-1). As a reminder, both involved a “fictitious debt” that paved the way for a ukm that would make the representative of the defendant legitimate in court. That only the defendant’s representative needs to go through a check-of-identity process, while the plaintiff’s representative is cleared out without any hassle, might also be an outcome of the procedural fictions in anafī practice which, in many instances, places the burden of proof on the defendant.

51 Austin, How To Do Things, 60-61.

52 Richard A. Posner, The Economics of Justice (Cambridge & London: Harvard University Press, 1981, 1983), 176.

53 Posner, Economics, 177: “The typical primitive judge, like the modern arbitrator, must look to the disputants rather than the society at large for his compensation, since he is a private citizen.”

54 Austin, How to Do, 109.

55 The name, signature (imā’), and seal (khitm) of the qāī are usually “inscribed” at the beginning of each sijill.

56 In colloquial Arabic (the ‘āmmiya), the ākūra (pl. awākīr) denotes a land, close to homes, that is used (tukar) to plant trees. In the above list of properties, I shall refer to ākūra as “land” exclusively, while “garden” refers to bustān.

57 Most probably refers to an area in Sidon with readily available cultivatable and watered land. Suqī from saqa refers to a process of watering the land.

58 Makarameans to water, so the makar could be an instrument of watering land.

Table des illustrations

Titre Figure ‎8-1. Beneficiaries of Salīm Ḥammūd’s waqf (C 8-1).
Légende Commentary: The line of beneficiaries represented by the plaintiff ‘Alī had been allegedly disfavored vis-à-vis the other line in which the benefactor’s son Khālid was the dominant patriarch. The lawsuit thus attempted to redress that situation by claiming that the founder Salīm Ḥammūd had orallyaltered some of the waqf’s original stipulations.
URL http://books.openedition.org/ifpo/docannexe/image/584/img-1.png
Fichier image/png, 79k
Titre Figure ‎8-2. Arguments in the Waqf of Salīm Ḥammūd (C 8-1).
Légende Commentary:The arguments of the plaintiff on the left, who won his case, were all based on the key element that the founder did orally alter his original waqfiyya, and that legally speaking, such an alteration must be taken into consideration, thus amounting to a de facto second waqfiyya. From the perspective of the judge, the oral alteration, once proven through witnessing, ought to be validated and integrated within the original waqfiyya. But there still was the lingering question as to whether the original waqf was validated through a court’s ruling, meaning that a validation took place through a procedural fiction (C 6-1 & 6-2). If not, then the alteration must be integrated, which was the case here.
URL http://books.openedition.org/ifpo/docannexe/image/584/img-2.png
Fichier image/png, 265k
Titre Figure ‎8-3. Inheritance of Amīn Mīqātī (C 8-2).
Légende Commentary: A key element in understanding this case is the realization that the two plaintiffs, daughters of a Ghalāyīnī, were no longer eligible to become beneficiaries in a waqf that was originally accorded to the Mīqātīs, viz. their mother’s family.
URL http://books.openedition.org/ifpo/docannexe/image/584/img-3.png
Fichier image/png, 136k
Titre Figure ‎8-4. Arguments in the Case of Salīm Mīqātī (C 8-2).
Légende Commentary:The main concern in this case was the “right of filiation,” or which factors do contribute in determining a “genuine” or “strong” “agnatic affiliation.” Evidence came strongly as usual in the form of witnessing, and the case was sealed thanks to a muftī’s fatwā.
URL http://books.openedition.org/ifpo/docannexe/image/584/img-4.png
Fichier image/png, 135k

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