Version classiqueVersion mobile
OpenEdition Books

Les institutions traditionnelles dans le monde arabe

 | 
Hervé Bleuchot

Wakāla : Interpreting Ottoman Law in 19th Century rural Syria

Eugene L. Rogan

Texte intégral

  • * St Antony’s College, Oxford.

1Note portant sur l’auteur*

  • 1 Mandaville (J.), « Usurious Piety : The Cash Waqf Controversy in the Ottoman Empire », IJMES, 10 ( (...)
  • 2 Yediyildiz (B.), Institution du Waqf au xviiie siècle en Turquie, Ankara, Société d’histoire turqu (...)

2Throughout Ottoman history, and presumably in earlier periods of Islamic history, the dynamics of change were moderated through the application and adaptation of known institutions. Modified to meet the needs of the situation, the familiar served to make innovations more legitimate, better understood, more readily applied. This process of adaptation was not always easy or readily accepted by society at large. Jon Mandaville has documented the debate raised by the introduction of cash waqf-s in the Ottoman Empire in the sixteenth century, with all that entailed of legitimating the practice of charging interest1. Yet, as Mandaville has argued, the practice gained widespread acceptance by the seventeenth century. This seems confirmed by a monograph on awqāf in eighteenth century Anatolia which found that nearly one third of a sample of over 330 foundations were partly or fully cash endowments2. Thus one can point to precedents for the mutation of traditional institutions which long predate the discourse of modernity and tradition with which this workshop has been concerned.

3As the Ottoman Empire came to draw more on European modes in the course of the administrative reforms of the Tanzimat (1839-1876), so the need developed for institutions to mediate between society and changes imposed from above. The state judiciary is a case in point. In the course of the nineteenth century, the legal system went from the fusion of shari’a and qanun applied by the single Islamic court to the complex of criminal, administrative, commercial and mixed courts, in addition to sharia courts, whose jurisdiction was now confined to arbitration and personal status law. A new law code fusing Ottoman and European juridical notions, the Mecelle, was displacing traditional law as the standard legal reference. An institution was needed which could mediate between the new codified law of the Ottoman Empire and a society to which such law was alien. In rural Syria, this function was filled by a traditional institution known as wakāla, or legal agency.

Wakāla in Islamic Law

  • 3 Al-Zarqā’ (M. A.), Al-Madkhal al-fiqhī al- ām. Damascus, University of Damascus, 1959, p. 561-562.
  • 4 As Tyan (E.) has written, « les difficultés qu’aurait un particulier, ignorant généralement la loi (...)

4Strictly speaking there has never been an institution of advocacy in Islamic law, nor a corporate group of lawyers. Instead, the role of advocacy was one of a number of possible functions associated with a legal agency, or wakāla. Wakādla is a contractual relationship in which a client authorizes an agent to act on his or her behalf, either for a specific act such as a purchase or sale, marriage or divorce, litigation or arbitration (wakāla khāṣṣa), or more broadly as general representative of the client’s interests (wakdla ‘āmma). « Through an agency contract the Mecelle notes, the individual transfers to another the authority to act on his behalf because the individual is incapable of undertaking all of his concerns and affairs »3. As many of these affairs were based on shari’a and enacted through or confirmed by a qāḍī, the courts were a principal focus of demand for the wakīl’-s services4. And within the courts, there were no restrictions on the type of litigation a wakīl might undertake.

  • 5 Ibid., p. 271-274. It is likely that wakīl-s in Mamluk times held other professions by which they (...)

5This is not to say that wakīl-s were held in high regard by legal authorities across the Islamic centuries. Emile Tyan, in a study of investiture documents for judges in Mamluk Egypt, notes the admonitions against the wiles and guiles of wakīl-s, « some of whom make the doubtful appear as a certitude and certitudes as something doubtful ». One clause common to all of the investiture documents was a litany of condemnations of legal agents : « The wukald’ are a veritable plague, demons who cheat their clients... Their place is in hell... May the judge prevent them from accomplishing their perverse aims... » Nor did Tyan find evidence to mitigate this condemnation of wakīl-s ; while biographical details of judges, notaries and scribes are to be found in contemporary sources, « no wakīl seems to have been judged worthy of the slightest mention »5.

  • 6 Al-Qāsimi (Jamāl al-Dīn) and Al-’Aẓm (Khalīl), Qāmūs al-ṣinā āt al-shāmīya, vol. 2, Damascus, Dar (...)
  • 7 Al-Zarqā’, op. cit., in his treatment of wakāla, draws heavily from the relevant articles of the M (...)

6There is little to suggest that wakīl-s were held in such low regard in Ottoman times. In his definition of the profession, al-Qasimi stated specifically : « It is a noble profession, not base or contemptible, practiced by many of the people of Damascus »6. The same holds true for rural Syria, where many of those who acted as legal agents were among the most respected members of society. Further, within the Ottoman context, there is little in the articles of the Mecelle concerning wakāla to suggest that agents posed any threat to the proper working of the courts7. In the context of the current discussion, it is interesting to note that even a previously despised traditional institution could be transformed to meet the demands of a new situation.

Interpreting Ottoman Law in a Syrian Frontier

Ottoman Transjordan

  • 8 For Ottoman initiatives in Syria, cf. Lewis (N.), Nomads and settlers in Syria and Jordan, 1800-19 (...)

7Given the variation in perceptions of wakīl-s over the centuries, it is particularly important to situate this study in time and space. The study area is drawn from a frontier zone of Ottoman Syria in the last quarter of the nineteenth century. As a rural society undergoing its first experience of Ottoman administration and law, the district of as-Salt demonstrates the need for interpreters between Ottoman subjects and alien institutions. Analogies may well be found in other frontier zones being drawn more directly under Ottoman rule at this time, such as Eastern Syria, Iraq and Arabia8. Even in those regions more accustomed to Ottoman rule, parallels may be drawn with the application of the Tanzimat reforms, as will be argued in the case of the 1858 land code below.

  • 9 These processes are treated at length in Rogan, Incorporating the Periphery : The Ottoman Extensio (...)

8The district (qadā) of as-Salt was itself a product of the Tanzimat. In 1867, acting on the expanded authority of the Vilayet Law of 1864, the governor of Damascus established the first enduring administrative post to the east of the Jordan river9. The town of as-Salt then numbered only 2 000-3 000 souls, yet it was the largest agglomeration to the east of the Jordan. While a fertile agricultural region, the eastern plateau of Transjordan was too thinly populated and too firmly under bedouin tribal control to justify the expense of direct rule before Ottoman losses in the Balkans made a priority of reconsolidating the empire in Arabia. The trans-jordanian districts of the province of Syria, bordering Damascus’ granary of the Hawrān, the Palestinian districts, and the Red Sea province of the Hijāz, took on a strategic value which made it imperative to incorporate them to Ottoman rule.

  • 10 Chiefdoms may be defined as «power-sharing partnerships involving pastoral nomads on the margins o (...)

9Prior to direct Ottoman rule, the local order in qaḍā’, al- Salt was a social, economic and cultural fusion of bedouin and peasants organized in chiefdoms10. Between chiefdoms, a tenuous balance of power was frequently disrupted by territorial ambitions, competition for pastures, access to productive villages, or such customary actions as raids and feuds. Within a given chiefdom, cultivators paid a share of their harvests to the dominant tribe as khūwa, or « fraternal » protection of vulnerable crops. Market exchanges were conducted through the town of as-Salt, where peasant produce, pastoralists’ goods (animal, wool, skins, butter) and merchants’ wares from Nablus and Damascus were traded in barter. Intermarriage between townspeople, peasants and bedouin were infrequent but not unheard of. Yet the region’s relative isolation from urban life and the primacy of bedouin authority made for a cultural fusion of language, dress, cuisine, customs and cult. This extended to notions of law as well, as will be discussed below.

10To the central government such tribal bonding, whether among the Kurds of Eastern Anatolia, the Druzes of Syria and Lebanon, or the residents of Transjordan, represented a degree of group loyalty which impeded subordination to the state and its authority. Thus the first task of the district government in as-Salt was to displace the primacy of the shaykhs who headed the different chiefdoms. A district governor, or kaymakam, was posted to the town. He appointed an administrative council of leading town and district head-men to assist in decision-making. A detachment of gendarmes was placed under the governor to uphold his authority and to establish the government’s claim to monopolize coercive force in the sultan’s domains. Tax collectors were sent out to claim the state’s share of harvests and head tax on herds ; the bedouins’ levying of khūwa was forbidden. Other of the bedouins’ economic activities were curtailed ; raiding, as theft, was forbidden by law. Furthermore, all of the tribes’ livestock were liable for government taxation. Thus, as the government challenged the structure of the chiefdoms - by denying the primacy of the shaykh-s, their right to the use of violence, their liberty to extract a surplus in the form of khūwa - the Ottoman rule of law came to prevail over the local order.

  • 11 On this symbiosis between merchants and the government, cf. Rogan, « Ottomans, Merchants and Tribe (...)

11After a certain lag, a parallel process proved symbiotic in the government’s initiatives to integrate a frontier zone to its direct rule. With the enhanced state of security which accompanied the advent of direct rule, capital holders in surrounding cities came to see the trans-jordanian districts as a profitable zone for investment. Merchants, primarily from Nablus and Damascus, were drawn to as-Salṭ both as a market for basic commodities but more importantly as a source for grain. The same merchants began to extend credit to local farmers, primarily to gain suppliers of grain at advantageous terms. In due course, both through debtors defaulting on loans secured against landed collateral and through outright purchase of prime farm land, the urban merchants came to accumulate substantial landholdings and to settle permanently in the town of as-Salt. By the 1880s these urban merchants had emerged as the notability of as-Salṭ, serving on the town’s administrative council, as representatives of their religious communities in the courts, as members of the different committees of the Ottoman district government11. Their experience in the Ottoman rule of law, both in the cities of their origins and in local government in as-Salt, made this merchant notability an ideal group to interpret alien legal and administrative notions for indigenous communities.

Wakāla in Ottoman Transjordan

12In order to appreciate the need for intermediaries or interpreters raised by the application of Ottoman law at the Syrian frontier, we must first examine the conduct of justice under the qāṭī-s of the chiefdoms.

  • 12 Two ethnographic studies most relevant to the discussion are Jaussen (A.), Coutumes des Arabes au (...)
  • 13 Jaussen, op. cit., p. 181.

13Prior to the introduction of the Ottoman court system, arbitration and conflict resolution were conducted before a recognized authority common to virtually all tribes - the bedouin judge, or qāḍī12. While any respected shaykh might be called on to settle a dispute, ultimate judicial authority lay in the qāḍī. According to both Jaussen and Musil, the typical bedouin qāḍī inherited the status from his father and trained from childhood to assume its responsibilities through observation and the questioning of elders. His attributes were « the spirit of wisdom, quick intelligence, imperturbable patience, a faithful memory recalling cases analogous to the one awaiting his judgment »13. A memory for precedent was essential as the procedure was conducted without written codes, « the whole trial unfolding in accordance with tradition, conforming to custom, in open session ». The burden of competence thus lay with the judge. The disputing parties had only to tell their story, to persuade the judge of the validity of their respective claims, and to provide witnesses where necessary. It was essentially judgment without law in any formal sense.

  • 14 For example, a Circassian serving in the Ottoman gendarmerie in an isolated spot on the Hijaz Rail (...)

14With the advent of Ottoman rule and the establishment of both Shar’ī (Islamic) and Niẓāmī (state) courts, a knowledge gap between the local population and the state judiciary resulted. It was a gap filled by the traditional institution of wakāla. There were actually a number of different functions filled by wakīl-s, which should be distinguished. Least relevant to the present discussion was the wakīl musakhkhir, an appointment intended more for the smooth function of the courts than for any intermediary role. If after three separate summonses a defendant failed to appear in court at the designated time, the judge would name a wakīl musakhkhir to speak for the absent party. The wakīl in this case was paid by the court and went through the ritual of denying the validity of the plaintiff’s case and challenging the credentials of the witnesses to force an expanded presentation of the case. Never would a wakīl musakhkhir act more forcefully on his absent client’s behalf, and the judge would always award the decision to the plaintiff on the assumption that guilt prevented the defendant from honoring the summons. Occasionally a defendant would appear later to appeal a decision14, though this had no bearing on the wakīl musakhkhir. It was, in sum, an ad hoc appointment which required no particular competence.

  • 15 For example, Salt vii, p. 183-184, parag. 112(12 Ṣafar 1322/April 1904).
  • 16 See, for example, Salt vii, p. 183-184, parag. 112 (12 Ṣafar 1322/ April 1904) where shaykh Hatami (...)
  • 17 Salt xv, p. 124-126, parag. 45, p. 126-127, parag. 47 (5-12 Safar 1328/February 1910).
  • 18 A tribesman of the Bani Hasan was authorized to act on behalf of 62 shareholders of a piece of lan (...)

15Another type of wakāla of little relevance to the present argument is the appointment of an individual to serve as an agent for the collective interests of partners, joint owners of a property, a tribal unit15. Thus a division of a tribe might appoint one of their member as wakīl to register their joint holdings with the Tapu bureau16, to oversee the sale of a piece of land on behalf of its joint owners17, or to act in its conveyance, e.g. upon default on a loan18. The appointment in such cases seems motivated more by group convenience than any need for a competent interpreter of Ottoman law.

  • 19 Salt ii, p. 21-22, parag. 18 (23 Dhū al-ḥijja 1302/October 1885).
  • 20 Salt xiii, p. 144-145, parag. 72 (3 Ramaḍān 1326/September 1908).
  • 21 Salt 1315-1319, p. 167-168, parag. 131 (25 Jumadā II 1318/October 1900).
  • 22 Salt vii, p. 141, parag. 35 (30 Jumadā I 1321/August 1903) and xiii, p. 136 (12 Sha’bān 1326/Septe (...)
  • 23 Salt 1315-1319, p. 29-30, parag. 43 (no date, after 15 Ramadan 1315/February 1898).
  • 24 In this instance, the woman was bringing charges against her brother. The man she chose to represe (...)
  • 25 Salt vi, p. 1-2, parag. 1 (28 Rabi’i 1319/July 1901).

16A third type of wakīl which appears quite frequently in court records served as an intermediary between the private and public realms of society. Most commonly this involved a man representing the interests of a female relation. Thus, a husband might act on his wives’ behalf in the purchase of a house19, a father might represent his daughter in a dispute over her engagement20, or a man might act on behalf of a female cousin in demanding payment of blood money for the killing of her brother21. Many women chose to go outside of the family in their choice of agent (as many chose to speak for themselves in court without a wakīl at all). While we can only speculate on how they chose their representatives, some tended to appoint men from their community - Circassians appointing Circassians22, Christians appointing Christians, townswoman appointing a fellow-townsman. Yet in wakāla as in society generally there were no hard and fast rules. It was thus not extraordinary for a Muslim woman to appoint a Christian her wakīl23, or a Christian woman to appoint a Muslim man24, presumably because of the wakīl’-s reputation for competence. In one remarkable dispute, a Turkmen woman enjoyed both community and competence, appointing a fellow Turkmen from her village as her wakīl, while he in turn appointed a man from Nablus to represent him in presenting her case25 !

17The priority of competence in the appointment of a wakīl is clearest in those cases of local men naming agents ; here the need was for an interpreter between the individual and unfamiliar Ottoman institutions rather than an intermediary between private and public. Some idea of the complex of legal and administrative institutions menacing the Ottoman subject is given in the terms of a comprehensive agency agreement from 1911 between a bedouin of the Banī Sakhr tribe and a townsman of as-Salṭ

  • 26 Salt xvii, p. 49, parag. 246 (30 Rabi’ ii 1329/April 1911).

for all types of suits issued by him and against him, be they Shar’ī or civil [ḥuqūqīya] or penal [jizā ī ya], before all courts of the Sublime Ottoman state from those of first instance through appeal courts of the highest level; and to protest [unfavorable] judgments and to hinder the opposition... and to appeal judgments and to advance petitions and bills with his signature ; to provide sound evidence and to diminish the evidence of adversaries and to seek a favorable decision ; and for the discovery and election of experienced persons and authorities of departments and of the government...26.

  • 27 See for example Salt ii, p. 6-8, parag. 4 (28 Dhū al-Qa’da 1302/September 1885), in which a Damasc (...)

18Arguably such a need was greater in a frontier zone such as Transjordan, where Ottoman institutions were still something of a novelty. Yet the Tanzimat presented Ottoman society in general with numerous administrative innovations. Perhaps the most significant of these was the land code of 1858 and the ensuing initiative to register all of the state’s lands. The concern of property holders to observe the necessary formalities correctly for fear of losing their lands gave rise to a general demand for legal competence. Thus, while land registration began in Transjordan two decades after the land code was introduced, the evidence of Damascenes or Nabulsis in as-Salt appointing agents to conduct their land transactions demonstrates the demand raised by such important new legislation for wakīl’-s, even among residents of capital towns and cities27.

Wākala and the 1858 Land Code

19Before 1867, there was no local institution in as-Salṭ to record land holdings or exchanges. Thereafter, formal record of transactions could be had through the Sharī’a Court. One hint of the local knowledge of land relations in earlier times emerges in the Islamic court records, in which the head or mukhtār of the appropriate quarter would be called on to confirm property rights as asserted. The records also note how the seller came by the property - by purchase, through inheritance, or by tenure « from long ago ». Thus the communal unit -village, tribe or town quarter- recognized rights of tenure generally, with disputes presumably resolved by a communal authority such as the bedouin qāḍī described above.

20The Islamic court did little to change the relationship between the state’s claims on land and the subject’s. There was no requirement that transactions be conducted through the courts ; nor did such registration hold any fiscal liability. Rather they provided a notarial service for those who wanted a formal record of exchange. Following a standard formulary, the Sharī’a court judge demanded the relevant information from the parties - full identification of buyer and seller, detailed description of the property and its boundaries, and the price paid. All competence resting in the judge and the formulary, there was no fear of error and thus no need for a legal agent to interpret the transaction.

  • 28 The land codes were not applied uniformly in Transjordan ; systematic registration was conducted i (...)

21The Ottoman state changed all of that with the application of the 1858 land law28. Suddenly, the registration of land was required and unregistered land ran the risk of expropriation. All transactions had to be conducted through the Tapu bureau, and before they could be exchanged all properties had to be registered and the appropriate taxes and clerical fees paid. Once registered, land was assessed for taxes determined by its estimated value. The rate of taxation varied according to the type of land, and there were special rates and even fixed periods of tax exemptions extended to first-time registrants as incentives to certain categories of holders, such as bedouin tribesmen and immigrant settlers like the Circassians. In sum, the process involved a complex set of choices and liabilities which, if not properly managed, could cost landowners higher taxes or their property altogether. The need for experienced interpreters of the land law and competent intermediaries in the Tapu bureau made wakīl-s ubiquitous in land transactions.

  • 29 For a sample of cases presented by Maḥmūd al-Busṭāmī, see Salt 1315-1319, p. 126-128, parag. 67 (1 (...)
  • 30 Another active wakīl came from Hebron, al-sayyid Muhammad Efendi b. Jawda b. Muhammad al-Khalīlī; (...)

22Such wakīl-s were educated professionals, in many cases with long experience in the courts and administration. A man such as al-sayyid Maḥmūd Efendi b. Bakrī al-Busṭamī (whose respected position in society was marked by the honorifics attached to his name) appeared repeatedly over the years representing the interests of clients29. Yet none seems to have practiced wakāla uniquely ; most of the individuals named appear elsewhere in the record as landowners or merchants or bureaucrats. Maḥmūd al-Busṭāmī was a merchant and moneylender. By and large these men came from larger Syrian and Palestinian cities, many like al-Busṭāmī from Nablus, others from Lebanon, Damascus or Jerusalem30. Coming from cities which were administrative centers, such men would have enjoyed more contact with government authorities and would have been better versed in the workings of Ottoman law and administration.

  • 31 Salt xiii, p. 114 (4 Rajab 1326).

23Wakīl-s were paid for their services. In one court register the judge noted payment of half a riyāl majīdī (i.e. 12 piasters) for each session served by a wakīl musakhkhir in January, 1909 - a good day’s wage for the time31. The memoirs of one local official from Irbid, who had been educated in the state-run ‘Anbar secondary school in Damascus and had served as both a member of the court and examining magistrate in Irbid, suggest that wakāla was both lucrative and part of a patronage system between Ottoman officials and local notables :

  • 32 Memoirs of Ṣâliḥ al-Tal, MS in the keeping of Mr. Mulḥim al-Tal, Amman, Jordan.

In Amīn Bey Arslān’s time as kaymakam of Irbid I used to benefit from not inconsiderable sums because he used to send to me all those who wanted an agency agreement to make me their wakīl in their disputes. I used to receive generous payments from wakāla-s32.

  • 33 Salt v, p. 52-53, 55 (4 Shawal 1316/February 1899).

24Yet a good agent worked hard for his pay. One Christian wakīl from as-Salt pursued the claim of his bedouin clients from the Niẓāmīya court of first instance (presented December 1897) through the Sharī’a court to which it was referred in January 1898, before he succeeded in winning payment on a land transaction for his clients over a year later33.

  • 34 Salt xv, p. 39, parag. 25 (13 Rabī’ I 1327/April 1909)

25Representation, as already suggested, was contracted on both a general and an ad hoc basis. In an example of a general contract, the seven clans (hamūla) of the al-Mashālkha tribe appointed the experienced wakīl Muhammad Efendi al-Khalīlī (see note 30 above) to represent their diverse land interests in the Jordan Valley. The families relied on these lands for pasturage of their herds, for rainfed cultivation and agriculture irrigated by the waters of the Zarqā’ River. All of this having been set forth in the wakāla contract, Muhammad Efendi agreed to represent them « in the courts and in litigation against anyone whosoever, before the Shar’iya court, the court of first instance and the appeal court in qaḍā’ as-Salṭ, on behalf of their rights in the aforementioned lands and irrigation... »34. Thus the land holders placed their interests in the hands of someone who was better situated and more competent to protect them before the complex courts of the state judiciary.

  • 35 The wakīl, ‘Awda Efendi b. Khalīl Zu’muṭ, was to argue against unfavorable judgments, respond to t (...)
  • 36 Salt xvii, p. 18, parag. 197, p. 20-21, parag. 199, p. 27, parag. 208 (8-29 Ṣafar 1329/February 19 (...)

26On the whole, single case contracts are more common in the court registers of as-Salt than general agency agreements, and land transactions provided a variety of situations in which the services of a wakīl were favored. Cases are preserved of landholders appointing agents to speak on their behalf in disputes - as when 29 tribesmen of the ‘Arab al-Hunayti appointed a Christian of as-Salt to argue their (unspecified) case before the court of first instance in as-Salt35. Outside of the courts, it was common for landholders to appoint wakīl’-s to sell their property, perhaps because it was believed that they could obtain a better price, perhaps because they were better situated in town to sell a property than a distant tribesman or villager. Another frequent application for a wakīl’-s skills was found in the Ottoman land registry, where an agent would be appointed to complete the requisite paperwork for a land transaction. Thus, when a group of ‘Abād tribesmen sold land in the Jordan Valley to merchants from Acre, a Lebanese Christian named Salim Efendi al-Haddād was appointed by the sellers to register the land to the new owners with the Ottoman authorities in as-Salṭ, in the regional capital of al-Karak, or the provincial capital Damascus as he saw fit36. As examples are found of both buyers and sellers appointing agents to register land transfers it would seem that the responsibility did not fall habitually to one party in the transaction.

27Thus the domains of competence for which wakīl-s were hired included legal argument, knowledge of the state’s laws generally and land law in particular. Such expertise was particularly important at a time in which land relations were being bureaucratized, where knowledge of tax categories and other opportunities might save landholders substantial sums of money. The frequency with which bedouin tribesmen appear in our records as clients of wakīl-s reflects the particular setting of a frontier zone ; yet the intricacies of new codes would have made for a more general demand for legal knowledge in the Arab provinces of the Ottoman Empire. It would appear that such demand led to the transformation of wakāla from a part-time job to a full profession.

Conclusion : From wakīl to abū kāt

  • 37 While muḥāmī has come to mean lawyer or advocate in the twentieth century, at this time it appears (...)

28Between 1890 and his death in 1900, Muhammad Sa’id al-Qāsimī researched and wrote the first volume of the ambitious dictionary of Damascene professions. Presented in alphabetical order, the very first entry was the abū kāt, « a foreign noun meaning “defender (al-muḥāmī)” »37. As the rest of the definition makes clear, the advocate, rendered abū kāt in Arabic, was a new profession linked to the laws of the Tanzimat which had assumed many of the functions associated with the traditional institution of wakāla.

Agent (wakīl) of lawsuits or legal proceedings, with superior training in the knowledge and memorization of Niẓāmīya political laws and some Shar’īya laws, undaunted in government council, without awe or concern before its leaders. He is trained to silence [his client’s] opponents or their wakīl with his arguments. Thus if an individual has an important case... and is incapable of overwhelming his opponent because he doesn’t know the Niẓāmīya laws or he isn’t bold before the judge, he appoints an abū kāt to take his case for him.

  • 38 Al-Qāsimi, op. cit., p. 33-34.

29While the profession was new enough not to have a proper Arabic name, it already was sufficiently established to have a certain reputation as « the most widespread profession for winning a good living without difficulty », and whose practitioners enjoyed « reverence and deference, power and respect »38.

  • 39 This was reflected to some extent in the opening of the Imperial Law School in Istanbul in 1878, t (...)

30In the course of this essay, I have argued that the introduction of direct rule into a frontier zone gave rise to a demand for intermediaries between the institutions of the Ottoman state and local society, for interpreters of alien institutions. This demand was met by a traditional institution of legal agency, wakāla. Yet, for much of the Ottoman Empire, the laws and institutions of the Tanzimat were sufficiently novel as to give rise to a more generalized demand for legal competence39. The land codes of 1858, presenting new rules for a variety of transactions and concerning so vital an aspect of people’s livelihood as their property rights, serve as a good example of such Tanzimat legislation. As the demand for legal competence in the interpretation of the Niẓāmīya codes expanded, a new profession in advocacy resulted which replaced legal agents, or wakīl-s, in the big cities. In peripheral zones of lower population density, the wakīl appears to have continued to serve the full range of representation - as advocate and as intermediary between public and private - to the end of the Ottoman period. Thereafter, the extension of Western legal norms through colonial rule would have further diminished the scope of the wakīl’-s activities as lawyers emerged as a corporate group of great power in both legal and political spheres.

Notes

1 Mandaville (J.), « Usurious Piety : The Cash Waqf Controversy in the Ottoman Empire », IJMES, 10 (1979), p. 289-308.

2 Yediyildiz (B.), Institution du Waqf au xviiie siècle en Turquie, Ankara, Société d’histoire turque, 1985, p. 185.

3 Al-Zarqā’ (M. A.), Al-Madkhal al-fiqhī al- ām. Damascus, University of Damascus, 1959, p. 561-562.

4 As Tyan (E.) has written, « les difficultés qu’aurait un particulier, ignorant généralement la loi, à défendre lui-même en justice ses intérêts, l’incitent à confier ce soin à un spécialiste-praticien », Histoire de l’organisation judiciaire en pays d Islam, Leiden, E.J. Brill, 1960, p. 263.

5 Ibid., p. 271-274. It is likely that wakīl-s in Mamluk times held other professions by which they would be known (as in Ottoman times) and remembered in biographical dictionaries. I suspect that respectable people then as later acted as agents, but that the practice in general fell into disrepute as a consequence of notorious individuals.

6 Al-Qāsimi (Jamāl al-Dīn) and Al-’Aẓm (Khalīl), Qāmūs al-ṣinā āt al-shāmīya, vol. 2, Damascus, Dar Ṭlās, reprint of Paris, Mouton, 1960, p. 497.

7 Al-Zarqā’, op. cit., in his treatment of wakāla, draws heavily from the relevant articles of the Mecelle, particularly articles 1449-1530.

8 For Ottoman initiatives in Syria, cf. Lewis (N.), Nomads and settlers in Syria and Jordan, 1800-1980, Cambridge University Press, 1987.

9 These processes are treated at length in Rogan, Incorporating the Periphery : The Ottoman Extension of Direct Rule Over Southeastern Syria (Transjordan), 1867-1914, Ph. D. diss., Harvard University, 1991.

10 Chiefdoms may be defined as «power-sharing partnerships involving pastoral nomads on the margins of cultivation, semisedentarized (especially agriculturalist) tribesmen, occasionally urban dwellers, and a ruler or chief domiciled in a town or in the countryside ». Khoury (PH.) and Kostiner (J.), eds, Tribes and State Formation in the Middle East, Berkeley and Los Angeles, University of California Press, 1991, p. 8. Cf. also Tapper’s (R.), contribution, p. 68.

11 On this symbiosis between merchants and the government, cf. Rogan, « Ottomans, Merchants and Tribes in the Syrian Frontier », forthcoming in the proceedings of the 6e Congrès international d’Histoire économique et sociale de l’Empire ottoman et de la Turquie.

12 Two ethnographic studies most relevant to the discussion are Jaussen (A.), Coutumes des Arabes au pays de Moab, Paris, Librairie Victor Lecoffre, 1908, esp. chapter iv, « Droits », p. 181-234 ; and Musil (A.), The Manners and Customs of the Rwala Bedouins, New York, American Geographical Society, 1928, esp. chapter xvi, « Judicial Procedure », p. 426-437. Musil claims that the Ruwala referred to their judge as ‘ārifa.

13 Jaussen, op. cit., p. 181.

14 For example, a Circassian serving in the Ottoman gendarmerie in an isolated spot on the Hijaz Railway line claimed never to have learned of his summons. He had been accused in absentia and ordered to pay compensation for breaking a horse’s leg. Citing the Mecelle for his right to appeal the decision, the Circassian provided witnesses to swear that he hadn’t been in al-Salt when the horse’s leg was broken. The judge overturned the original decision. Islamic Court Register of al-Salt, vol. xi (hereafter Salt xi), p. 60-61 (30 Rajab 1321/October 1903).

15 For example, Salt vii, p. 183-184, parag. 112(12 Ṣafar 1322/April 1904).

16 See, for example, Salt vii, p. 183-184, parag. 112 (12 Ṣafar 1322/ April 1904) where shaykh Hatamil b. Mināwir of the Zaban branch of the Bani Ṣakhr was entrusted with a wakāla « to conduct registration of the lands with the land commission of qaḍā’ al-Salṭ, to pay the legally required taxes for them, to take title deeds in [the individual holders’] names and deliver them in return for what was paid for them in taxes ». Note how this differs from the standard wisdom that tribesmen lost their lands to shaykhs who registered communal holdings in their own name. In the same volume, cf. p. 184, parag. 113 for a similar wakāla for Bani Sakhr lands in the Hawrānī village of Natl, and parag. 121 for a wakāla among the Fā’īz branch of the Bani Ṣakhr. Such activity is suggestive of a government tax amnesty to encourage registration

17 Salt xv, p. 124-126, parag. 45, p. 126-127, parag. 47 (5-12 Safar 1328/February 1910).

18 A tribesman of the Bani Hasan was authorized to act on behalf of 62 shareholders of a piece of land transferred to a merchant family of Nabulsi origins, the Mihyārs, in January, 1898 ; cf. Salt v, np, parag. 35, nd. The property was most probably collateral for a loan.

19 Salt ii, p. 21-22, parag. 18 (23 Dhū al-ḥijja 1302/October 1885).

20 Salt xiii, p. 144-145, parag. 72 (3 Ramaḍān 1326/September 1908).

21 Salt 1315-1319, p. 167-168, parag. 131 (25 Jumadā II 1318/October 1900).

22 Salt vii, p. 141, parag. 35 (30 Jumadā I 1321/August 1903) and xiii, p. 136 (12 Sha’bān 1326/September 1908).

23 Salt 1315-1319, p. 29-30, parag. 43 (no date, after 15 Ramadan 1315/February 1898).

24 In this instance, the woman was bringing charges against her brother. The man she chose to represent her, Maḥmūd al-Busṭāmī, was a very experienced wakīl, as discussed below. Salt 1315-1319, p. 126-128, parag. 67 (15 Shawwāl 1317/February 1900).

25 Salt vi, p. 1-2, parag. 1 (28 Rabi’i 1319/July 1901).

26 Salt xvii, p. 49, parag. 246 (30 Rabi’ ii 1329/April 1911).

27 See for example Salt ii, p. 6-8, parag. 4 (28 Dhū al-Qa’da 1302/September 1885), in which a Damascene acted on behalf of a Damascene and a Jerusalemite in the purchase of a village house near al-Salṭ.

28 The land codes were not applied uniformly in Transjordan ; systematic registration was conducted in the northern ‘Ajlūn district between 1876 and 1900. The first surviving registers from al-Salṭ date to 1879, though the Tapu bureau was opened c. 1890, when land registers displace Islamic court registers as the standard record of land transactions. It is from c. 1890 that the regular application of the codes can be dated for al-Salṭ.

29 For a sample of cases presented by Maḥmūd al-Busṭāmī, see Salt 1315-1319, p. 126-128, parag. 67 (15 Shawwal 1317/February 1900) ; v, p. 88-89, 89, 90, 91 (nd); xi, p. 204-205 (3 Rajab 1322/September 1904); xii, p. 114 (4 Rajab 1326/August 1908).

30 Another active wakīl came from Hebron, al-sayyid Muhammad Efendi b. Jawda b. Muhammad al-Khalīlī; among his clients was the Türkmen who was himself wakīl for a woman of his community in July, 1901 (see note 25 above). See also Salt xiii, p. 264 (4 Rabī’ ii 1327/April 1909) ; xv, p. 39, parag. 25 (13 Rabī’ I 1327/March 1909) ; xvii, p. 49, parag. 246 Rabī’ ii 1329/April 1911).

31 Salt xiii, p. 114 (4 Rajab 1326).

32 Memoirs of Ṣâliḥ al-Tal, MS in the keeping of Mr. Mulḥim al-Tal, Amman, Jordan.

33 Salt v, p. 52-53, 55 (4 Shawal 1316/February 1899).

34 Salt xv, p. 39, parag. 25 (13 Rabī’ I 1327/April 1909)

35 The wakīl, ‘Awda Efendi b. Khalīl Zu’muṭ, was to argue against unfavorable judgments, respond to the testimony of witnesses, prepare all necessary forms and petitions and to seek a favorable decision for his clients. Salt 1315-1319, p. 154, parag. 112 (22 Jumada i 1318/September 1901).

36 Salt xvii, p. 18, parag. 197, p. 20-21, parag. 199, p. 27, parag. 208 (8-29 Ṣafar 1329/February 1911).

37 While muḥāmī has come to mean lawyer or advocate in the twentieth century, at this time it appears to have preserved its more literal meaning of « one who defends ». Note that al-Qāsimī, while writing on wakīls and abū kāt-s, has no listing for muḥāmī. Note also that the Redhouse Ottoman-English dictionary, published in 1890, defines muḥāmī uniquely as « a protector, defender » ; the word for lawyer was āvūqāt.

38 Al-Qāsimi, op. cit., p. 33-34.

39 This was reflected to some extent in the opening of the Imperial Law School in Istanbul in 1878, though its graduates were destined for careers in the civil service and as judges in the Niẓāmīye courts rather than as lawyers.

Notes de fin

* St Antony’s College, Oxford.

© Institut de recherches et d'études sur le monde arabe et musulman, 1996

Conditions d’utilisation : http://www.openedition.org/6540

Acheter

Volume papier

Chargement

Unavailable