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Études sur les villes du Proche-Orient XVIe-XIXe siècles

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Brigitte Marino

Personal networks surrounding the ṣāliḥiyya court in 19th-century Damascus

Toru Miura

Texte intégral

  • 1 Cf. Schacht J., An Introduction; Tyan E., Histoire de l’organisation judiciaire; id., Le notariat.

1The assumption that Islamic law acted as positive law regulating the fairness of transactions among Muslims, and by which they made contracts of sale, lease, and inheritance, has so far been based on traditional legal treatises, since very rarely do historical sources as chronicles discuss lawsuits in Islamic courts.1

2Fortunately, we have a great many Sharia court records from the Ottoman period in Egypt, Syria and Turkey. Each comprises three categories of information. The first is the personal names of the relevant persons, such as transactors, agents, and witnesses; the second is information on the object transacted; and the third is formal phrases which assert the fairness of the transaction.

  • 2 The author have surveyed the works of Antoine Abdel Nour, Abdul-Karim Rafeq, Bruce Masters and oth (...)

3Until now they have been used mostly to examine the socio-economic conditions in each region,2 while the formulation of the court records and the role of the courts themselves have scarcely been questioned. Yet unless we know how the court records were written and authorized, we are not in a position to judge the reliability of socio-economic data derived from them.

4Ottoman Damascus had a main court (Maḥkamat al-Bāb), a special court for inheritance (Maḥkamat al-Qassām) and five local courts located in the large quarters such as the

  • 3 Cf. Marino B., Okawara T., Catalogue, p. 41-48. EI2, « Maḥkama; 2. The Ottoman Empire, ii. The ref (...)

5Ṣāliḥiyya Court until 1909-1910. The Ottoman government began to reform the system of Islamic law courts from the mid-19th century. The first reform saw the establishment of a Commercial Court (Maḥkama Tijāriyya) and a Secular Court (Maḥkama Niẓāmiyya) both in the 1860’s where disputes were settled according to enactments of secular law. The second was the reform of the corrupted and redundant qāḍī system. From 1855 nā’ibs equipped with practical legal skill were appointed instead of qāḍīs3

  • 4 LCRD 647, 660, 663, 669, 691, 699. On history and society of the Ṣāliḥiyya Quarter, Miura T., « Th (...)

6The dual purpose of this paper is to elucidate the management system of the sharia court and the social relations of inhabitants of the Ṣāliḥiyya Quarter around it by examining six volumes of the Ṣāliḥiyya Court registers in Damascus during the period 1290-1295/1873-78 by utilizing a database of relevant persons and objects.4

1. FORMULA OF ISLAMIC LAW COURT RECORDS

1.1. THE DEED AND THE LAW COURT REGISTER

  • 5 Cf. AmĪn M., Catalogue des documents d’Archives du Caire; Little D., A Catalogue of the Islamic Do (...)

7It had been a long tradition since the early Islamic period that a contract was written at the moment of transaction and inheritance, when it was authorized by the witnesses (shāhid) and judge (qāḍī ), as shown by the existence of extant legal documents and legal manuals (shurūṭ).5

  • 6 Narrated in the chronicles in the Mamlūk period such as Ibn Iyās M., Badā’i‘, IV, p. 347; Ibn Tūlū (...)
  • 7 Ibn Khaldūn ‘A.-R., Muqaddimat, I, p. 404-405; Ibn Khaldūn ‘A.-R., The Muqaddimah, p. 461-462.
  • 8 In the 10/16th century Egyptian and Syrian biographical source of Kawākib, the accounts of notarie (...)

8The contracts were written and witnessed by the notaries who had shops in front of the mosques and city gates in the Mamluk period.6 Ibn Khaldūn stated in his famous work Muqaddima that notaries testified as witnesses upon the permission of the judge for or against the parties, whenever testimony was required at a lawsuit or otherwise, and filled in the law court registers (sijill) which were to record various kinds of people’s right (ḥaqq), properties, debt and other transactions (mu‘āmalāt).7 However, there is no source that tells us when these documents began to be registered at the law court. We only know that this became an established tradition in the Ottoman period.8

9The Centre of Historical Documents in Damascus have two kinds of Sharia court documents. The first is court registers and the second is deeds called ḥujja issued to the concerned parties. Court registers and deeds were written in the same style in the latter half of the 19th century. What is the reason that separate deeds and registers were written for each transaction?

  • 9 IbnĀbidĪn M., Radd al-Mukhtār, V, p. 369-370.
  • 10 LCRD, 649, p. 1, ḥujja, H129, A203. Bowring’s consul report on Damascus in 1839 also attested the (...)

10Ibn ‘Ābidīn, a famous legalist in 19th-century Syria, wrote in his treatise that records in the hand of the judge were without his signature, while deeds signed by the judge and witnesses (shāhid) were issued to the parties with summaries of the contents.9 This narrative shows that the registers were recorded for the judge and the court, and the deeds were written to be issued to the parties. The front page of register no. 649 of the main court states that it was to register the deed (ḥujja) and the judgement (i‘lām), and on the reverse side of the deed we see the phrase that it was registered in the Ṣāliḥiyya register by a certain scribe.10

  • 11 ShattĪ M., A ‘yān Dimashq, p. 151.
  • 12 HisnĪ M., Muntakhabāt, II, p. 649-650.

11Al-Shaṭṭī (d.1378/1959) recounted in his book on Damascene notables in the 13th-14th/19th centuries that he had found the name of Ṣāliḥ al-Kīlānī (d. 1278/ 1861-62), deputy judge (nā’ib) of a Damascene court, in the deeds and registers, which suggested that the deeds were kept by people for about one hundred years after the death of the deputy judge.11 Al-Ḥiṣnī (d.1358/1940), an historian of 19th-century Damascus, also narrated that his family had kept a deed written in 1292/1875-76, after a struggle for waqf property among members of his family had led to murder being committed, and the conflict had been settled by the arbitration and reconciliation of a committee.12 We see from his narrative the custom of receiving a deed issued by a court that certifies the rights of parties following their out-of-court reconciliation.

1.2. THE RULE AND MANAGEMENT SYSTEM OF COURT REGISTERS

12While regulations concerning registers must have existed, none have so far been found. Here I shall examine the method of keeping court registers by reference to orders recorded in them.

13First we see the procedure of registration and its management from the order issued to all courts in the Ottoman domain concerning the recording of Islamic court registers (1290/1874). The main points are as follows:

  1. You should stamp (the name of the court) on each leaf with its number.
  2. All documents of Islamic law should be recorded in the registers (sijill), and on the reverse side of the deeds (ḥujja) the stamp of the scribe (muqayyid) should be marked.
  3. It should be written clearly as to be easily read at the time of inspection.
  4. It is prohibited to correct a document by deleting letters, words and lines as well as by inserting words. When it needs correction, it should be done in the margin, in the presence of a judge or deputy judge and with their agreement and stamp.
  5. It should be written without leaving any blank spaces, but the documents should be separated from each other in order that they may be distinguished.
  6. When the judgement (i‘lām) or the deed (ḥujja) is registered, it needs to be checked against the original, and completion of this checking should be recorded with a written mark ‘mutābaqa’
  7. The documents (sanad) should be checked with their originals when necessary,

14and the concerned scribes should be punished according to the regulations of administrative law (qānūn) if any mistake is found.

  • Documents which are torn should be stamped by the concerned judge or deputy judge (nā’ib) after checking by the scribe.
  • The scribe who neglects the above-mentioned articles 1, 2 and 4-6 should be dismissed.
  • The scribe must be a reliable person and an unreliable one should be dismissed.
  • The registers should be returned immediately to their former place after removal from the archives for inspection.
  • The register should be repaired by the hand of judge or deputy judge, if necessary.
  • All the registers should be preserved in sealed boxes by the scribe.
  • The register should be submitted to the judge or deputy judge to be signed and stamped, upon completing registration of the whole volume.
  • When it is necessary to issue the judgement or deed after retirement of the concerned judge, it should be added to the end of the register and stamped again.
  • The deputy judge should correct by addition and deletion, when necessary.
  • Deviation from these regulations is permitted only for the sake of furthering justice.
  • These regulations will come into effect on 1290/12/15.13

15The above-mentioned regulations make clear the management system of court records. The deed was issued to the parties after recording it in the law court register. The registers were open to public viewing to certify civil rights. The registers were strictly controlled by authorities to prevent abuse by their alteration.

16In practice, however, the volume of documents made it very difficult to adhere to these strict regulations. Other orders issued by the main court of Damascus to local courts point to confusion and deviation from these rules.

  • 14 LCRD 641-5, 647-3, 648-p.l84.

17The order issued on 1291/3/10 (1874/4/27) commanded that documents remaining in the custody of deputy judges of local courts should be submitted immediately to the judge of Damascus by the end of April. They would be returned to deputy judges after stamping by the judge for entry in the court registers.14

18This attests to the key elements of the registration system: that the document should be submitted first to the judge of Damascus; and that the deed was issued to the parties and entered in the court register after confirmation of the judge by stamping with his seal.

  • 15 The same order above.
  • 16 LCRD 641 -1,642-206,648-p. 184 (issued on 1291 /4/18-1874/6/4). In the records of inheritance, som (...)

19However, this system had complicated registration and caused delay. The judge then simplified the procedure relating to fostering of children, by permitting deputy judges of local courts to appoint guardians (waṣī and walī) without examining the property of the guardians and the maintenance fund for children in their care, and to approve of the sale of property if its ownership was certificated by a document.15 When issuing the deed, or reissuing it based on the register, the fee that was due should be collected by the government, the amount of which was about five qurūsh.16

  • 17 LCRD 691-1.

20This simplification did not succeed in solving the problem of delay. Four years later, another order was issued on 1295/1/5 (1878/1/9) to deputy judges of local courts to submit simple matters -such as appointment of agents for absentee owners and lease holders when making sale and lease contracts, certification of the debts and identitity of deceased persons- directly to the judge of Damascus without their judgement because of the increasing workload of registration in local courts.17

  • 18 We can see the seals and signatures of the judge of Damascus and the deputy judge in the deeds ext (...)

21In the example of the Ṣāliḥiyya court, the average number of adjudications per month was 12.2 during its whole term, and it reached 16.2 in the year 1291/ 1874-75 with a peak of 31 in the month of Muharram. It must have been hard work to summon all the concerned persons in each case, draft a deed, submit it to the judge of Damascus, and issue the deed and enter it in the court register after the judge had given his stamp of confirmation.18

22What was the purpose of the register? While concerned parties could receive deeds to certify their rights, each party often comprised numerous persons, occasionally exceeding ten. It might have been impossible to issue the original deed or copies to all those concerned, plus there was a risk that the issued deed might be lost. The register must have been considered more important, since whether concerns related to the past or to the present, people could view the register and ask for the issuance of a deed based on it when transacting property or when ownership was in dispute.

23The second question is how they were written in each court. The Ṣāliḥiyya court registers are not in precise chronological sequence, as each volume had been written over a long period, for example of two to four years, and their terms overlapped each other. (See Table 1-1). The registration must have been hard work owing to the strict and complicated procedure, which resulted in such troublesome disorder.

24The disorder helps explain how each document was registered. First we can recognize the relation between the register and the judge/deputy judge by reference to Table 2-2 which lists the names of deputy judges and scribes mentioned in the registers: Makkī Zāde appeared in register no. 669 for the first time except twice in no. 663, and Nābulusī Zāde also appeared first in the register no. 691 and Shaṭṭī Zāde in register no. 699.

25One possibility is to assume that the register was renewed on the appointment of a judge/deputy judge. Many unregistered documents adjudicated by the former judge must have remained at the time of renewal, which would have been recorded in the new register.

  • 19 LCRD. 649, 662, 641, 643, 654, 642. Maḥmūd Efendī was recorded in the Sālnāme of 1291 year, which (...)

26As for registers in other courts, during the two months from 1290/5 they were all renewed under the name of Mahmūd ‘Azīz Efendī, judge (nā’ib) of Damascus, in the main court, special court for inheritance, ‘Awniyya court, Būzuriyya court, Mīdān court, and Sināniyya court.19 It is possible that the register was renewed whenever there was a change of the judge of Damascus, not of the deputy judges of local courts, and register no. 660 of the Ṣāliḥiyya court might have been made at the appointment of Mahmūd ‘Azīz Efendī, although it lacks such references to him as found in registers of other courts.

27Next, we shall examine the manner of registration by paying attention to the order and disorder-in which it was carried out.

  • 20 Taking examples, LCRD 669-108 to 117, 243 to 247.

28First to be noted is that the same sort of entries were written repeatedly. Taking register no. 669 as an example, the entries on inheritance and guardianship occupy twice the proportion of total volume of other registers, and five to ten entries on inheritance were often written in succession.20 The legal documents were written according to formula phrases (shurūṭ) for each sort of transaction in which it was merely required to fill the blank with individual information, such as names of the parties and witnesses, and the location and composition of the transacted properties. By repeating formulaic phrases in writing the same sort of entries at one time, the scribes were able to work more efficiently and greatly lighten their workload.

29Secondly, the entries concerning the same person or family were written almost successively, even though their dates were not approximate. This suggests that the scribes used to record the deeds in the court registers at one time by keeping notes of contents, such as the names of relevant persons and properties after issuing the deeds.

  • 21 LCRD 647-135, 141, 166, 660-48, 669-234.

30Thirdly, there are five cases of the same deeds being entered twice.21 Such double-booking might not have occurred if they had been registered immediately upon issue, and it appears to have been caused by careless keeping of notes.

  • 22 We see the name of a « dead court clerk » (al-kātib al-marḥūm), ‘Abd al-Majīd in the register, whi (...)

31In light of the above-mentioned facts, it seems reasonable to suppose that the scribes did not record the deed in the register when it was issued, but made a note memorizing only individual information, and then registered deeds of the same class at one time, based on notes classified according to the sort of transaction or individual/family concerned.22 They often made mistakes in formulaic phrasing, but were very careful about entering individual information, as shown by the fact that entry 669-25 was annualized and rewritten at the next place because the former had contained a mistake on the share of ownership.

  • 23 LCRD 641 -1, 642-206, 648-p. 184.

32Although this registration system was a wise means of reducing the workload of scribes, it made the fairness of registration dependent on their professional reliability. As the order of 1291/4/18 prohibited alteration of deeds when they were issued, there existed a possibility of abuse.23 As the court registers were to certify the civil rights of the inhabitants, they required formality and strict control by the government. Such strict formality made the task of registration too burdensome, and led to the disorder which ironically permitted abuses to invade the work of registration.

2. PERSONAL NETWORKS SURROUNDING THE ṢĀLIḤIYYA COURT

2.1. CONTENTS OF DOCUMENTS

33Table 1-1 shows the contents of entries in each register where the author elassified them according to their first phrase which shows the main purpose of each deed, although there were cases in which more than two transactions were recorded in a single entry, such as for the lease of land and sale of plants.

34The most frequent transactions were of sale, amounting to 286 cases or 32.8 % of the total. Over 99 % of them were of sale of immovable property. Lease contracts comprise 64 cases (7.3 %), most of which are also of immovable property. This is the first group of transactions of immovable property.

35The second group concerns inheritance and guardianship. The former comprises 175 cases (20.0 %) and the latter 124 cases (14.2 %). Here guardianship means the appointment of a guardian responsible for safeguarding the inheritance share of minor children and the expense for their maintenance (nafaqa). In these registers the guardian legally acknowledges his borrowing from the inheritance of the ward. The guardian also lodges a financial report once a year on the property of the minors, in which he is obliged to report all monies for maintenance, borrowing and interest due (ribḥ). All the above -inheritance, guardianship, acknowledgement and financial report - are procedures entalled by the death of a child’s parents.

36The third group are lawsuits (82 cases, 9.4 %) mostly concerning the first and second groups of sale, lease, and inheritance.

  • 24 Cf. note 15. No.663 also contains 33 cases of inheritance (50.8 %) which shows a great many of rem (...)

37Differences emerge among the registers in terms of their composition. Register no. 647 and no. 669 exhibit great contrast: sale and lease contracts occupy about 65 % of the former; while in the latter they account for only about 14 %, with inheritance (30.2 %) and guardianship (22.4 %) dominating. Even though this difference might follow from the order of 1291/3/10 which simplified the procedure of appointing a guardian,24 it suggests that registration was not carried out regularly, but was spasmodically concentrated.

  • 25 MĪlād S., « Registres judiciaires », p. 194-200. Examining the sharia court records of 17th centur (...)

38Furthermore, I would like to compare the composition with that of the Ṣāliḥiyya Court register of Cairo in 934/1527-28, which Prof. Mīlād has analyzed (see Table 1-2). First to be noted is that the Cairene Ṣāliḥiyya Court dealt with criminal cases such as theft and injury (2.0 %) as well as administrative cases such as taxation and officiai appointment (1.5 %).25 Secondly, divorce cases before the Damascene Ṣāliḥiyya court were very few compared to their 8.5 % share of the Cairene Ṣāliḥiyya court register. As for cases of debt, they occupy about half of the Cairene Ṣāliḥiyya registers, while ordinary debt matters were very rare in Damascene Ṣāliḥiyya registers and mostly concerned dcbts borrowed by guardians from their wards.

  • 26 Prof. Rafeq has already published an article on criminal cases involving violations of public mora (...)

39What lies behind these differences? Broadly speaking, we can point to three reasons: differences in periods, regions and the particularity of the Ṣāliḥiyya court of Damascus. We should note the influence of the Secular Court which was founded to deal with commercial, criminal cases and others. It is also probable that the Commercial Court might have dealt with debt cases among the citizenry.26 A general survey of Damascene court registers through the centuries is needed to examine the role of the Islamic law court. Nonetheless, the composition of cases before the Ṣāliḥiyya court of Damascus reveals that the Islamic law court was still dealing with such common legal cases of ordinary people as sale, lease and inheritance in the latter half of the 19th century when the Ottoman government had begun to reform the Islamic legal system.

2.2. JUDGE, CLERK AND SCRIBE

  • 27 Sālnāme, IV, p. 81; V, p. 62; VI, p. 54-55; VII, p. 67; VIII, p. 86; XI, p. 93; X, p. 61.

40The Sālnāme of Syria (Syrian Year Book) listed the names of nā’ib of the Damascus region and of each court in the city, and those of the chief clerk (serkātib) of each court. Since it mentioned the names of ordinary clerks and scribes in the main court as well, the other local courts evidently also had similar officers. The Salnāmes in 1289-95 mentioned 23 nā’ibs and 19 chief clerks,27 but most of them were not mentioned in contemporary biographical sources, which may suggest that they were of lower status than generally imagined. The following portraits are derived from examining the careers of judges, deputy-judges and clerks of Damascus in the 19th century.

  • 28 Shaṭṭi M., A‘yān Dimashq, p. 238.

41Most qāḍī s and nā’ibs belonged to the Ḥanafī law school, although some were of the Ḥanbalī and Shāfi‘ī schools. One episode to be noted is the abolition of the Ḥanbalī qāḍī office and the transfer of judgement to the Ḥanafi qāḍīs at the time of Ḥanafī qāḍī Mūsā Qāẓim Efendī. As remaining cases connected to famous waqf properties were not decided, the owners of waqf properties assembled at the qāḍī to urge him to revive the office of Ḥanbalī qācjī until judgements were pronounced.28

  • 29 Mustafā al-Barqāwī (Shaṭṭī M., A ’yān Dimashq, p. 237; ’Ulamā’ 13H, II, p. 755), Zāhid al-Alshī (B (...)
  • 30 Husayn al-Ghazzī (Shaṭṭī M., A ’yān Dimashq, p. 416; ’Ulamā’ 14H, I, p. 215), Muḥammad al-Jūkhdār (...)
  • 31 - Bīṭār ’A.-R., Ḥilyat al-bashar, III, p. 1330-31; Shaṭṭī M., A‘yān Dimashq, p. 248-249, 397; ‘Ula (...)
  • 32 Shaṭṭī M., A‘yān Dimashq, p. 340; ḤinĪ M., Muntakhabāt, II, p. 767; ‘Ulamā ’ 14H, I, p. 93-95.

42Most judges/deputy judges had previously served as clerks or chief clerks,29 and held the offices of deputy judge one after another.30 From these examples we see that the offices of judge and clerk are not entirely separate, but of the same class. Abū al-Khayr al-Makkī (d. 1319/1901-02), son of the nā’ib of the main court, held the office of chief clerk of the main court, and dealt with conflicts among the people, as revealed by the anecdote that « he liked to judge vital problems for the inhabitants and showed them reconcilable points ».31 Muḥammad Al-Shaṭṭī (d. 1317/1899-90) gained the office of nā’ib by bribery and also assumed the office of chief clerk to the Mīdān court. He was a practical consultant on legal matters, as it was told that he had collected the documents concerning rights of water supply in Damascus, was superior in the fields of law, especially on matters of inheritance, survey and architectural technology, and that the inhabitants used to visit him for consultations about water supply and division of houses.32

  • 33Ulamā’ 14H, III, p. 57.
  • 34 Ḥujja, H138 (1295/4/3).

43Let us now examine more closely the nā’ibs and clerks at the Ṣāliḥiyya court (see Table 2-1 and 2-2). There were three nā ’ibs listed in Sālnāme and six recorded in the registers. We cannot find their names mentioned in the biographical sources, other than that Khānī Zāde Mahmūd Efendī (d.1319/ 1901-02) was appointed the office of judge in Syria several times.33 The second problem is that the names of nā ’ibs recorded in the registers were not necessarily found in Sālnāmes. We may identify Khānī Zāde Mahmūd with Mahmùd Efendī, Bāzirbāsh Zāde Muḥammad Sa‘īd Efendī with Sa‘īd Efendī, and Makkī Zāde Muḥammad Rāghib Efendī with Makkī Zāde Rāghib Efendī. We cannot find the names of Muḥammad Efendī Kuzbarī al-Nābulusī and Nābulusī Zàde Muḥammad Efendī in either Sālnāme or biographical sources, although the registers describe the latter as nā ’ib and his signature is seen on the remaining deed.34 It is obvious that Sālnāme was just a year book and did not necessarily list all those who judged as nā’ibs in the court.

  • 35 Referring to the term of lease, the four Sunni law schools all confined it to one year in principl (...)

44The judges were not confined to Hanafi. Members of the Shāfi‘ī and Ḥanbalī law schools also judged in the Ṣāliḥiyya court. While their names are omitted from the registers, we can identify them from signatures at the top of deeds. Cases judged by the Shāfi’i were 92, or 14.0 % of the total: 56 were lease contracts of immovable property and 34 were sales, most of which were to buy orchards. Of nine cases judged by the Ḥanbalī, three referred to lease contracts and five to waqf property (murṣad). By contrast, lease contracts judged by Hanafi nā ’ibs were only seven, amounting to just 10.9 % of the total lease contracts. The reason for this gulf must be that both the Shāfi‘ī law school and the Ḥanbalī law school permitted long-term leases, while the Ḥanafī law school did not permit leases of more than two or three years.35 In practice, however, nā’ibs of all three law schools effectively approved leases of nine years, by twice renewing three year leases. Moreover, even if a contract was concluded under a Shāfi‘ī or Ḥanbalī nā’ib, the Hanafi judge confirmed (anfadha) their judgement under his name. It may be proper to assume that the abolition of the office of Ḥanbalī qāḍī put a stop to waqf cases, as mentioned before, because they had handled leases on waqf properties.

  • 36 LCRD, 669-145, 146.

45As for the clerks, Nābulusī Zāde Sa‘īd, who is mentioned in Sālnāme as chief clerk, must be Muḥammad Sa‘īd al-Nābulusī whose signature as clerk appears 187 times in the registers (see Table 5), but we have no information on his career in the biographical sources. The office of clerk (kātib) was regarded as superior to that of scribe (muqayyid) because the clerk undertook investigations prior to judgements,36 while the work of registration was done by scribes.

2.3. PARTIES

2.3.1. Residence

  • 37 An exception was the decree appointing Khānī Zāde, which defined his district of jurisdiction for (...)
  • 38 LCRD, 641-8, 642-112 and others.

46In principal, the people could bring lawsuits and other legal matters to any court in Damascus, and the district of jurisdiction for each law court was not set.37 There are only 84 cases, or 9.6 % of the total, in which the residence of either party is recorded in the Ṣāliḥiyya court registers. In the registers of other local courts such as Mīdān, ‘Awniyya and Sināniyya in the same period, there is less information on the residence of parties than those of the Ṣāliḥiyya court, and they included cases of inhabitants of the Ṣāliḥiyya Quarter.38

  • 39 Residents of ‘Amāra (691-132, 169), Sārūjā (691-42, 160), Mīdān (691-62, 80).

47Table 3-1 shows the residential names of parties recorded in the Ṣāliḥiyya registers. Cases involving inhabitants of the Ṣāliḥiyya Quarter amount to 42, or 44.7 % of all cases in which the residence of the parties is known, and 4.8 % of the total. Akrād, al-Tell, al-Hāma and Dummar were all located north of Damascus, on a road from the central part of the city that ran through the Ṣāliḥiyya Quarter. It seemed more convenient for their inhabitants to attend the Ṣāliḥiyya court than the courts of central Damascus. Parties who were resident in the ‘Amāra, Sārūjā and Mīdàn Quarters which had there own local courts are also mentioned in the registers of the Ṣāliḥiyya court.39 As the objects of legal transaction were located in the Ṣāliḥiyya Quarter and its suburbs in half of these cases, it seems reasonable for them to have attended the Ṣāliḥiyya court.

48This leaves the question of whether other parties whose residence was not recorded in the Ṣāliḥiyya court registers could still have been inhabitants of the Ṣāliḥiyya Quarter. Here we should consider three points. First, there were some inhabitants of the Ṣāliḥiyya Quarter who were identified by their family names (nisba). Second, while some inhabitants of other quarters had reason to bring their cases to the Ṣāliḥiyya court, there was usually no reason for others to attend the Ṣāliḥiyya court far from their places of residence. Third, not only the parties to cases, but also other persons involved such as agents, witnesses, attestors etc., had to attend the court. Thus, it is reasonable to assume that those present at the Ṣāliḥiyya court were usually inhabitants of the Ṣāliḥiyya Quarter.

2.3.2. Social strata

49Table 3-2 shows social strata of the parties (transactors) in the cases of inheritance, sale and lease.

  • 40 Cf. Ghazzal Z., L’économie politique de Damas, p. 39-46; Miura T., « The Ṣāliḥiyya Quarter », p. 1 (...)

50We first observe that the number of parties reaches 2,378 persons in these three categories of cases. We may assume it reaches about 2,800 if we add to it the parties in cases of guardianship (124 cases, of at least 248 persons) and lawsuits (82 cases, of at least 164 persons). As the population of Damascus in the 1880’s was estimatedat 110,000, and that of the Ṣāliḥiyya Quarters at 10,000,40 we may say that on average one out of four inhabitants attended the court during these six years of registration. Furthermore, our calculation of relevant persons who attended the Ṣāliḥiyya court is as follows: 1,750 acquaintances (2 acquaintances each in 873 cases), 390 agents (see Table 4), 410 witnesses and 820 attestors for certification of agents’ contracts (two witnesses and four attestors each for 205 wakīl); plus 112 witnesses and 224 attestors in 56 lawsuits judged by the testimony of witnesses. Altogether they total 3,700 individuals, and we can estimate the total number of parties plus relevant persons as a minimum 6,500.

51Concerning social strata, we may regard those holding the titles of Efendī and Shaykh as ‘ulamā’ (religious scholars) and those of Aghā, Bey (Bīk) and Bāshā (Paşa) as being secular notables, such as military chiefs. Their shares were not high. Both account for only 4 %-5 % of inherited persons and 2 % of sellers and buyers, while religious notables make up 17.8 % and secular notables 6.7 % of lessors, the latter also comprising 10.2 % of lessee tenants. Most leases were for waqf land, where notables were engaged in its management either as superintendents (nāẓir) or cultivators.

52On the whole, notables account for a small share of cases, and we should rather note that people of various strata attended the court. Judging from the low average amount of inheritance (3,938 qurūsh per case, 864.2 qurūsh per inheritor) and low average sale price of immovable property (2,813 qurūsh per house), it was common for a broad strata of inhabitants to attend the Ṣāliḥiyya court to register inheritances or sales of immovable property, whether of high or low value.

  • 41 On women’s economic life, cf. Reilly J., « Women in the Economic Life ».

53The next category is females, who account for 51.7 % of inheritors, nearly equal in number to males, which shows that the regulations of Islamic law on inheritance were not nominal (although females were only entitled to inherit half the amount of male heirs). As for cases of sale, females account for 45.1 % of sellers, and 28.1 % of buyers. Simply put, females tended to sell their immovable properties gained by inheritance to others.41

54Finally, those who are legally under age account for 39.3 % of all inheritors. Under Islamic law, minors have the right to an equal share of inheritance with adults, irrespective of age. This high percentage of inheritors who were minors suggests that their rights were not neglected but protected. In cases of sale, they account for 20.8 % of sellers and 14.1 % of buyers. We may say that minors tended to sell immovable property gained by inheritance to others, just like females.

2.4. AGENTS

  • 42 Schacht J., An Introduction, p. 119-120; Tyan E., Histoire de l’organisation judiciaire, p. 264-27 (...)

55We can see many agents and procuration contracts in the registers, on behalf of those groups principally permitted to confer authority to agents (wakīl) in Islamic law courts: females, slaves, dhimmī (Christians and Jews), and children.42 Table 4 shows the relations between the client and the agent in terms of sale, lease, and lawsuit.

56Agents were appointed in 21 %-35 % of all cases of sale, in 56 %-59 % of lease cases, and in 29 %-31 % of lawsuits.

  • 43 LCRD, 660-141, 691-21 and others.

57As for the clients, children and females dominate all types of cases. In cases of sale, about 80 % of the clients were children or female. Guardians assumed the role of agent on behalf of their wards, in which case a male guardian was called walī and a female guardian waṣī. The latter needed to have her status of agent legally certified, while this was not necessary for male guardians, although there are some records of walīs being certified.43

  • 44 For example, Muhammad b. ‘Abd al-Qādir (LCRD, 669-195, 691-19, 28, 36, 53, 76, etc.); Ahmad b. ‘Um (...)

58Contracts of procuration (wakāla) were needed to confer the client’s authority to an agent other than a guardian. Such agents called wakīl, appear in 16 %-20 % of cases of sale, in 50 %-59 % of leases, and in 18 %-20 % of lawsuits. Procuration contract needed to be certified by the testimony of two witnesses (shāhid) and their fairness by four attestors (muzakkī), as decreed in Islamic law. This procedure for procuration contracts was recorded in the registers without exception. Furthermore, there were cases where a plaintiff denied the procuration contract (khasm shar‘ī jāḥid), and where the witnesses testified against the plaintiff to certify the procuration. Such plaintiffs and their denials appear to have been only for form’s sake however, as the same names of these plaintiffs appeared frequently.44

  • 45 QāsimĪ M., Qāmūs al- ṣinā‘āt, p. 497-498.

59When we examine the character of agents, it was usual for family members to be an agent (wakīl/walī/waṣī) for their child or for females. On the whole, it was very unusual for a notable to act as an agent in court, as there seemed to have been no need to be a notable. We cannot find anyone who regularly attended the court as an agent. It follows that anyone could be an agent as long as a procuration contract was concluded by due procedure as mentioned above, and in practice the relatives were preferred as agents in ordinary cases. When notables concluded leases as lessors, they often asked agents to attend the court in their stead because they held the offices of nāẓir of several waqf properties concurrently. The Dictionary of Professions by al-Qāsimīs in the 19th century described being an agent (wakīl) as profitable and highly-estimated work because men of property and females used to ask them to manage agricultural land, shops, public baths, etc., and to collect their rent.45 There must have been professional agents, but it was only notables and wealthy persons who could have afforded to pay their fees.

  • 46 Cf. Jennings R., « The Office of Vekil », p. 164-168.

60These remarks have much in common with the analysis of wakīl in 17th-century Kaiseri in Central Anatolia by Jennings based on the law court registers. Agents appeared in 6 % of all cases in the Kaiseri court, far less frequent than in the Ṣāliḥiyya court. One-third of female parties asked for an agent in the Kaiseri court, which was also less than in the Ṣāliḥiyya court. As for the relation between the client and the agent in the Kaiseri court, about 30 % of the agents were relatives of their clients, while Jennings could find no tendency for professional agents or notables to regularly act as agents in the court.46

61The question which we must address next is why the procedure of testimony by the witnesses and certification by attestors was so thorough for procuration contracts.

62Of note here are frequent records of a curious type of lawsuit in which the seller/lessor would ask his agent to claim payment of a debt owed by a third party before concluding the main contract of sale/lease. The debt was usually as small as ten qurūsh. The debtor (defendant) would acknowledge his debt, but deny the validity of the procuration contract between the seller/lessor and the agent. Then the agent would ask the witnesses to the main contract to testify as to the validity of procuration, and the witnesses, after being again certified by the attestors to the main contract, would testify that it was indeed a procuration contract that conferred complete authority in accordance with Islamic law. The judge would then approve the validity of the claim and order the debtor to pay.

63The registers record 82 cases of such lawsuits of identical process and judgement, with only slight variations in the amount of debt.

  • 47 There appeared as debtor: Qāsim b. Muḥammad (LCRD. 647-40, 57, 63, 66, etc.), Aḥmad b. ‘Umar al-Kh (...)

64This lawsuit was not conducted in cases where the buyer/lessee asked for an agent. The point of contention was the validity of procuration, which was denied by the debtor. Considering this point, we may assume that the real purpose of the lawsuit was to certify the validity of procuration once more, and to prevent the seller/lessor from bringing a lawsuit against the agent or the buyer/lessee in case the agent had sold or leased property without his consent. The frequent appearance of the same person as debtor suggests these lawsuits were not real but fictitious.47 It is quite striking that such fictitious lawsuits were recorded almost without fall (only eight sale contracts and two lease contracts are without such lawsuits), even though registration was done from notes. This suggests that such fictitious lawsuits were thought necessary procedure among ordinary people as well as those of the legal profession.

  • 48 LCRD, 647-64, 110, 660-5, 20 and others.

65When the seller/lessor was a minor, it was possible for the agent (or guardian) to sell or lease property without consent of the owner. Some cases therefore arose where the permission of the judge on selling/leasing the property of the minor was requested. This gave rise to another sort of fictitious lawsuit, in which the selling agent of the minor would bring suit against the buyer after concluding the main sale contract, alleging that the sale price was not legal (54 cases). The buyer would then ask the witnesses of the main contract to testify that the price was indeed a valid and proper valuation of the minor’s property. The judge would then reject the agent’s claim and certify the validity of the sale.48 Both fictitious lawsuits were a way of preventing agents from abusing their authority, but the strictness of the procedure for certifying the validity of procuration, in reverse, suggests the real possibility of such abuse by agents having existed.

2.5. WITNESSES AND AUTHENTICATION SYSTEM

  • 49 Sghacht J., An Introduction, p. 192-3.

66In Islamic law the most important kind of evidence (bayyina) is the testimony of witnesses to authenticate the validity of the contract and other legal affairs. Circumstantial evidence is not admitted, and written documents are regarded merely as aids to memory and to be admitted as evidence only in so far as they are confirmed by the testimony of witnesses. The conditions of witnesses were regulated in detall.49 Furthermore, acquaintances, attestors and confirmers attended the court to give oral evidence and to affirm the validity of legal matters. There was no case which was confirmed only by the parties themselves without the above-mentioned attendants, and it meant that nobody could engage himself in legal and economic networks among the people unless he had someone who attended the court to affirm his right. Here we shall examine those whose role was to affirm in court.

  • 50 Acquaintances: Kurds (LCRD, 669-149, 691-58, 120), Husbands (669-188, 197, 691-114), Brothers (669 (...)

67First we shall look at the acquaintances who attended court to identify (‘arrafa) the parties and the witnesses for procuration and lawsuit. In some cases relatives to the parties took this role. When the parties were of minority groups such as the Kurds or village dwellers from outside Damascus, they were likely to ask their relatives or persons from the same village. Exceptionally, officiais such as the mukhtār (quarter chief) and the court clerk attended the court as acquaintances or witnesses.50 On the whole, one finds no tendency for notables and specific persons to assume such roles frequently, rather the parties tended to ask relatives and friends suitable to the circumstances. The reason why court witnesses and acquantainces for Kurds and villagers would be drawn from their own communal networks was that they had no such neighborhood or family connections in the Ṣāliḥiyya Quarter that could be used for such work.

68On the other hand, some persons frequently attended the court as attestors. They also took the roles of acquaintances, witnesses, agents and confirmers. We list in Table 6 the names of twenty such persons who attended the court more than ten times to do such work.

  • 51 LCRD. 660-143.
  • 52 LCRD, 669-132.

69Among them, seven attended the court more than fifty times, and the most frequent one was Ṣāliḥ b. Muḥammad al-Saqqā’amīnī, who attended court 133 times, or once a week. Notoriously, specific persons attended the court in pairs as attestors, including the al-Kinnānī brothers and the al-Saqqā’amīnī’s, while Ṣāliḥ b. Muḥammad al-Saqqā’amīnī and Maḥmūd b. Shaykh Adīb also attended the court 84 times together. The regular attendants at court listed in Table 6 must have been familiar with each other. Eleven of them were mentioned in the registers as dwellers of the Ṣāliḥiyya Quarter: Ṣāliḥ al-Kinnāni’s house was located at the Zuqāq al-Nawā‘īr (lane of the Mill behind the Muḥyī al-Dīn Jāmi‘).51Ṣāliḥ b. Muḥammad al-Saqqā’amīnī had a house at the Maḥallat al-Maḥkama where the court stood.52 In any event, these regular attendants at the Ṣāliḥiyya court did not appear at other courts of Damascus even if cases there concerned the Ṣāliḥiyya Quarter or one of its suburbs.

70We shall next discuss who were the regular attendants at the Ṣāliḥiyya court. The biographical sources describe only one regular member and the relatives of two regular members. Although the al-Kinnānī, al-Saqqā’amīnī and Sukkar families are mentioned, there is no information on the individuals concerned. As the sources list only those prominent in Damascus society as being a‘yān (notables) or mashāhīr (famous), this indicates that the regular members of the Ṣāliḥiyya court were not so famous in the city, even though they were famous in the Ṣāliḥiyya Quarter. This may be natural, when considering that the nā’ibs and clerks at the Ṣāliḥiyya court, who ranked higher in court than regular attendants, are not mentioned in the biographical sources.

  • 53 Muḥammad Sa‘īd b. Hasan Baqdūnis sold the right to use a shop and its equipment (kadak wa khulūw) (...)

71The registers afford us scant information on the regular court attendants. From this scarcity of information it is safe to assume that they were not very active in the economy.53

72I shall next investigate the social role of the regular court attendants on the basis of the scant information provided in the biographical sources.

73The persons whom we read about in the biographical sources are not the frequent attendants at court, like the al-Kinnānī brothers and al-Saqqā’amīnī’s, but Muḥammad al-Tikrītī, al-Saqaṭī and al-Nābulusī who attended less than thirty times. Muḥammad al-Tikrītī was described as follows:

  • 54 Shaṭṭī M., A‘yān Dimashq, p. 358; Cf. ḤiṢnī M., Muntakhabāt, II, p. 791-792; ‘Ulamā’ 14H, I, p. 12 (...)

74« His grandfather was an a‘yān and leader of the Ṣāliḥiyya Quarter. He belonged to the Shāfi‘ī law school, taught at his house and at Muhyī al-Dīn Jāmi’, and was famous for settling problems vital to the inhabitants. The inhabitants used to visit him for consultation when conflicts broke out among them, and his knowledge and sincerity produced good settlements ».54

75Ibrāhīm al-Nābulusī (d. 1356/1937-38) was a descendant of a famous thinker, ‘Abd al-Ghanī al-Nābulusī, and considered one of the notables (wujūh). We have the description of his father ‘Abd Allāh (d. 1309/1891-92):

  • 55 Shaṭṭī M., A ’yān Dimashq, p. 347; ‘Ulamā’ 14H, I, p. 106.

76« He belonged to the Ḥanafī law school, treated the problems of the inhabitants with all his courage and ability and took the roles of attorney and agent at the law court, although there were few attorneys at that time. He collected enough wealth that he was able to buy a house in the ’ Amāra Quarter, and other property in the Shāghūr Quarter and Ṣāliḥiyya Quarter, which he all endowed for his descendants in 1297. He holds dignity among the governors and insisted on what is right (ḥaqq) and was not afraid to be blamed ».55

  • 56 LCRD, 647-58, 93, 660-109.

77His father attended the court only three times,56 but as his father was over sixty years of age, it may be right to assume that the status of the quarter notable had been transmitted to Ibrāhīm, the son.

  • 57 ‘Abd al-qādīr (Bīṭār ‘A.-R., Ḥilyat al-bashar, II, p. 916; ḤiṢnĪ M., Muntakhabāt, II, p. 669; Shaṭ (...)

78The third source is on the al-Saqaṭī family who migrated to Damascus from the Biqā’ district of Lebanon. ’Abd al-Qādir (d. 1205/1790-91), professor of the ‘Umariyya Madrasa and superintendent of its waqf properties, enjoyed the confidence of the inhabitants, and his grandson, Ṣāliḥ (d. 1245/1829-30 or 1242/ 1826-27) became a preacher (Khaṭīb) of the Muzaffarī (Ḥanbalī) Jāmi’ (in the Ṣāliḥiyya Quarter). Both were renowned in the city.57

  • 58 Shaṭṭī M., A‘yān Dimashq. p. 394; cf. Furfūr S., A‘lām Dimashq, p. 198.
  • 59 ‘Abd al-Majīd (LCRD, 660-54, 669-83, 691-71), ‘Abd al-Ghanī (647-116, 160. 660-86, 669-151, 179, 6 (...)
  • 60 Lessee of orchard (LCRD, 647-37), Seller (660-116), Buyer (660-143).

79As for their family at the time of registers, ‘Abd al-Majīd (d. 1318/1900-01), son of Ṣāliḥ’s nephew, was told « to be such an influential man that the inhabitants of the Ṣāliḥiyya Quarter visited him to ask him to solve their troubles and reconcile their conflicts. »58 Although ’Abd al-Majīd attended the court as agent only three times, Ṣāliḥ’s sons, ‘Abd al-Ghanī and Ismā‘īl, attended six and ten times respectively.59 The former held the title of Efendī and it is known from the registers that he leased and sold an orchard in the suburbs of Ṣāliḥiyya three times.60 Only ‘Abd al-Majīd is mentioned as a notable in the biographical sources and his officiai position was merely a deputy of the nāẓir for waqf properties of the ’Umariyya Madrasa. This may suggest that the dignity and influence of the family had begun to decline.

80The common feature of the above-mentioned three was that they were consulted by inhabitants to solve problems without their holding any administrative office. Thus, we may regard them as notables of the Ṣāliḥiyya Quarter. These notables, in fact, did not attend the court frequently. Muḥammad al-Tikrītī attended twenty-six times, but only twice as attestor and fifteen times as confirmer. Among the confirmers we find more dignitaries and influential personages because their role was to confirm the whole process at the end. Among the al-Nābulusī family, ‘Abd Allāh al-Nābulusī attended a few times, and Ibrāhīm attended twelve times, and in the case of the al-Saqaṭī family, Ṣāliḥ’s sons, ‘Abd al-Ghanī and Ismà’īl attended more frequently than ’Abd al-Majīd, who was the most influential member of the family.

81From what we have considered so far, we may safely assume that most of the regular attendants at court, who were not mentioned in the biographical sources, must have helped the inhabitants in ordinary legal matters, while a few influential attendants were asked to do the more important work of solving conflicts.

82Further consideration should be given to the character of the consultant, for we find many consultants and mediators in Damascus mentioned in the biographies. Most of them held no administrative office, like regular attendants at the Ṣāliḥiyya court, although some were appointed to such offices as qāḍī , nā’ib and muftī. We may point out the following common features between the consultants of the Ṣāliḥiyya Quarter and those of Damascus.

  • 61 Ahmad al-Kuzbarī (Shaṭṭī M., A ’yān Dimashq, p. 51), Salīm al-’Attār (ḤiṢnĪ M., Muntakhabāt, II, p (...)
  • 62 Shaṭṭī M., A‘yān Dimashq, p. 352; cf. ḤiṢnĪ M., Muntakhabāt, II, p. 704; ‘Ulamā’ 14H, I, p. 111.
  • 63 Shaṭṭī M., A‘yān Dimashq, p. 190.
  • 64 Salīm al-’Attār (Shaṭṭī M., A‘yān Dimashq, p. 336), al-Ḥalabī (Ibid., p. 191; ḤiṢnĪ M., Muntakhabā (...)

83Firstly, they were frequently visited by such varied strata of people as and a’yān, merchants and commoners, and from distant districts as well as nearby, almost every day and every night.61 Secondly, they dealt with legal problems in dally life, as Abū al-Faraj al-Khaṭīb (d.1311/1893) « cited fatwās (legal pronouncements) of the Shāfi‘ī and Ḥanbalī law schools on every kind of problem, from religious to matrimonial, that is about divorce and remarriage. »62 Thirdly, they were said to mediate fair agreements, as ‘Abd Allāh al- Ḥalabī (d. 1286/1870) « had settled a fine agreement which contented both parties, and had never received rewards and gifts for it, but made his living off the silk trade. »63 Their abilities to mediate reconciliations and the trust they enjoyed among the community was held in respect among the governors.64

  • 65 « Reports of the Administration of Justice in the Various Provinces of the Ottoman Empire », Parli (...)

84How effective were their settlements? Their problem-solving initiatives were not officiai, but private, as few held offices as qāḍī or nā’ib, and they judged cases at their own residences. Legal action may have followed their settlements. The consul report in the nineteenth century told that « almost every case, whether criminal or civil, is often practically decided out of doors before it comes on for judicial hearing, by the system of interviewing Judges and members all around, or by bringing pressure to bear upon them by influential persons when personally unapproachable, a matter, however, of very rare occurrence ».65

  • 66 al-Alshī (Bīṭār‘A.-R.; Ḥilyat al-bashar, II, p. 639; Shaṭṭī M., A‘yān Dimashq, p. 406). Cf. also, (...)
  • 67 Shaṭṭī M., A‘yān Dimashq, p. 336.

85The next question is whether they were rewarded for their mediation efforts. Al- Ḥalabī was said to receive no rewards, and Zāhid al-Alshī (d. 1320/1902) was praised because « he did not receive a bribe (rishwa) how much was offered, and did not side with influential persons, whoever they might be. »66 Salīm al-‘Aṭṭār (d. 1307/1889-90), however, « did not deny taking rewards for his judgements, although he did not forsake rights (ḥaqq) or admit to injustice. He expended all his income - his rewards for mediation, his salary as professor at the Sulaymān Takiyya and from his land in villages - on his own house and on his visitors ».67

  • 68 Bowring reported the widespread existence of bribes among the qādh of Damascus in the 1830’s (Bowr (...)

86Refusai of rewards was praised in the biographical sources because it was unusual, and it is safe to assume that most mediators must have received rewards within the bounds of acceptable convention68

  • 69 Amīn al-Nābulusī (Shaṭṭī M, A‘yān Dimashq, p. 379; ‘Ulamā’ 14H, I, p. 147).
  • 70 Aḥmad al-Mālikī ((Bīṭār ‘A.-R., Hilyat al-bashar, I, p. 244; Shaṭṭī M., A‘yān Dimashq, p. 52), Amī (...)

87Finally, one may ask why their decisions were accepted. The answer lies in their legal knowledge, judgement suited to the circumstances and their invisible aura of dignity. The last was expressed as being a « protector of rights (ḥaqq) and justice (‘adl) »69 or a man of chivalry (muruwwa) or man of honor (shahāma).70

  • 71 In Islamic Law it was permitted to receive rewards for giving testimony when the witness had littl (...)

88From the above considerations we may conclude that these legal experts outside the court were consulted about the ordinary problems faced by people and advised them on the legal procedure of a case brought before the court. The men mentioned in the biographical sources were influential notables in Damascus, while the regular attendants of the Ṣāliḥiyya court were notables of the quarter and their followers who were concerned with the problems of the residents of the quarter, and who acted as witnesses, agents, attestors, etc. and gave advice. Regulars in court must have received some rewards judging from the frequency of their attendance.71 Depending on the importance and nature of their problems, people could choose to receive legal advice from city notables, quarter notables and their followers.

2.6. TEMPORARY WITNESSES

89At the end of both deeds and court registers, names were written under a line that signified temporary witnesses (shuhūd al-hāl). In principle these witnesses were supposed to sign their own names, but in practice they were written by the scribe on the deeds as well as in the registers. Their names were omitted in case of inheritance, and one finds cases where only the name of the scribe was recorded.

90Table 5 lists those persons whose names were frequently recorded as temporary witnesses in the Ṣāliḥiyya registers. The total number of temporary witnesses was 2,526, an average of 2.89 persons per document. Most were recorded as holding the offices of kātib (clerk), muqayyid (scribe), muhdir (court summoner) and bawwāb (gatekeeper).

  • 72 Ḥujja, A202 (1292/2/9), H129 (1292/3/27).
  • 73 LCRD, 691-148, 171.

91Among the most frequent, we know that Aḥmad Barjāq, who served 502 times as a temporary witness, was a scribe from his scribe’s seal on a deed.72 Muḥammad Sa‘īd al-Nābulusī (443 times) was a chief clerk of the Ṣāliḥiyya court, and Muḥammad Amīn Barjāq, who appeared as a temporary witness 383 times, served 326 times as a scribe. The occupation of ’Abd al-Majīd al-Nàbulusī (260 times) is recorded as a kātib in LCRD 663. Al-Ḥājj Qāsim (192 times) and Aḥmad al-Khayyāṭ (177 times) were recorded as being court attendants or gatekeepers, and the latter’s house was in the quarter of the Ṣāliḥiyya court.73 Since these six persons attended court frequently, once a week, they can be treated as quasi officers of the court.

  • 74 Jennings R., « Limitation », p. 161-163.

92The backgrounds of the temporary witnesses accord with the analysis of their counterparts in the Kaiseri court in the 17th century by Jennings. There too, regular court officers such as court attendants (muhzir, in Ottoman Turkish) served as temporary witnesses.74

93In the Ṣāliḥiyya court, only court officers appeared as temporary witnesses. Court officers assumed the role of temporary witness as part of their usual work, and legal parties did not need to ask for anyone to be a witness. But the authentication provided by these temporary witnesses could only have been a formality, as their names either were not written in their own hands or often just omitted.

3. LAWSUITS

3.1. FICTITIOUS LAWSUITS

94As mentioned before, formai lawsuits were brought to assert the validity of procuration contracts in cases of sale or lease where the real owner was represented by an agent. Similar formalistic lawsuits were brought in other cases of sale or lease contract. Their claims, procedures and judgements were always the same, signifying that they were regarded purely as nominal lawsuits.

  1. Claim by the agent for payment of debt (82 cases).
  2. Invalidation of a contract of sale for a minor’s property for reason of improper price (54 cases).
  3. Claim for conclusion of a new lease with higher rent (60 cases). Invalidation of a lease contract (4 cases).
  4. Invlidation of a sale contract for fruit trees (36 cases).
  5. Invalidation of a sale contract for reason of improper price (6 cases).
  6. Invalidation of a sharecropping contract for fruit trees (2 cases).

95Lawsuit (a) is to assert the validity of procuration, and (b) is to assert the validity of sale by the guardian, both of which are intended to prevent any future conflict.

  • 75 LCRD, 647-83, 85, 93, 660-2, 29 and others. Similar lawsuits are found in the Ṣāliḥiyya court regi (...)

96In the (c) type of lawsuit, after concluding a lease contract, there would appear a new applicant who wished to rent the same property by paying 25 % more rent than stipulated in the present contract. The subsequent process was similar in all cases: the lessor, hearing a new proposal, would begin by stating that the present contract lacked validity (ṣiḥḥa), and citing four reasons: the long term of the lease, the multiple number of lessees, the improper amount of rent, and the lease’s inconsistency with the public interest (maṣlaḥa) of the waqf endowment. The lessee would then contradict this statement by citing the legal opinion of the Shāfi‘ī law school as to its validity, and that the rent price was proper and consistent with the public interest. He would further insist on the validity of the present contract, and that it would do harm to raise the present rent. The applicant and lessor would not agree to this, and would demand supporting evidence (ithbāt). The lessee would ask the witnesses, who after being certified by the attestors, to testify in the presence of the lessor and the applicant that the present contract was consistent with the public interest of the waqf and that it would do harm to raise the rent. Then the Shāfi‘ī judge would approve the validity of the present contract, rule that the present rent and other ternis of the contract must not be changed during the lease period, and bind the lessor and the applicant to abide by it. Finally, the Ḥanafī judge (nā’ib) would confirm (anfadha) this judgement.75

97This lawsuit seemed to be necessary when making a lease contract, and is found in 60 cases, or 93.7 % of the total. In cases without such lawsuits to raise the rent, another lawsuit was brought for invalidation of the present lease contract by insisting on the lengthy period of the lease or the improper amount of rent (4 cases). These other lawsuits belong to the same category.

98To determine the real purpose of these lawsuits, we should take note of the fact that most cases of lease were for rental of waqf properties and were heard by the Shāfi‘ī judge (or Ḥanbalī judge) who would permit long-term rentals. Among the applicants, we frequently find Aḥmad b. ‘Umar al-Khayyāṭ , Aḥmad b. Khalīl, Qāsim b. al-Ḥalabī and Muḥammad b. ’Abd al-Qādir appearing as debtors in the (a) type of fictitious lawsuit for payment of debt. In the (c) type of lawsuit for raising of rent, they must be nominal plaintiffs, without possessing any real objection. The rate of desired rent increase was also nearly constant at 25 %, further suggesting that the lawsuit was not brought by the actual applicants, but was purely for the sake of formality.

99The controversial points were the lease period and amount of rent to be paid. Since in the original contracts the waqf properties were leased at a low rent for a long term of six to nine years, the real problem was whether the lease of waqf properties for such return was in the best interest of the waqf. The lessee insisted on the validity of such contracts by appeal to the Shāfi‘ī or Ḥanbalī law schools. In essence, the problem thereforc was whether such scholastic opinions were valid or not.

  • 76 LCRD, 647-83, 158, 669-107.

100Witness testimony was crucial in arriving at a judgement. It was usual for the witnesses to procuration contracts on behalf of the lessee to testify to the validity of the lease contract at the original rent, but in some cases the witnesses to a procuration contract for the lessor also testified as to the validity of the lease contract. (This happened when the lessee didn"t have a procuration contract, and had no agent or witnesses to testify on behalf of one).76 It may seem curious that witnesses should testify against the interest of their clients, but it becomes understandable once we recognise that the lawsuit itself was fictitious.

  • 77 al-Qarāfī (d. 584/1285) states that all validly dedueed views endorscd by one of the four Sunni sc (...)

101The judgement was intended to approve the validity of the original contract and to prohibit rent increases during the term of the lease. Finally, this judgement was confirmed by the Ḥanafī judge (nā’ib). Accordingly, the real purpose of the lawsuit was to prevent long-term, low-rent lease contracts concluded under the Shāfi‘ī or Ḥanbalī judge to be invalidated by the Ḥanafī law school in the future.77 The percentage of rent increase that was sought (25 %) may have implied the permissible range of increase if and when it were deemed necessary.

  • 78 LCRD, 669-196, 691-65, 128 and others.

102Both (d) and (f) lawsuits concerned fruit trees on agricultural land (orchards, bustān). In general the fruit trees (ghirās) in the orchard were privately owned and separate from the land itself for purpose of sale or lease. Type (d) lawsuits were for the vendor to cancel a sale contract after concluding it on the grounds that the fruit trees were not permitted to be sold to anyone other than the joint-owner. The buyer would contest this by claiming that the sale was valid according to the Shāfi‘ī (or Ḥanbalī) law school. A judge of this school would then approve the sale contract and prohibit the vendor from violating it. This would then be confirmed by the Ḥanafī judge (nā’ib).78

  • 79 Yanagihashi H., « The Right of Pre-emption in Islamic Law », p. 71 (in Japanese).

103The orchard trees were important forms of capital, and were often jointly owned by such persons as nāẓir of waqf land, former lessees, etc. It is natural that co-owners would be greatly concerned about their partners or cultivators, as the fruit harvest from the trees depended on how well the orchard was managed. In addition, the co-owner and the cultivator of the trees had the right of pre-emption to first purchase the fruits picked from the trees.79 The lawsuit was to prevent any future violation of the sale contract by the co-owners.

  • 80 LCRD, 660-86, 691-28, 47 and others.

104Lawsuits of type (f) were to confirm the validity of the sharecropping contract for the trees in which the cultivator gave one percent of all the harvested fruit to the co-owners.80

  • 81 LCRD, 660-70, 691 -100 and others.

105Type (e) lawsuits were to assert the validity of sale prices obtained for property of the deceased and to prevent them from being contested in the future by heirs to the estate.81

106From these considerations it is very clear that all the above-mentioned lawsuits were not real, but were only nominal, and intended to prevent future violation of present contract terms. The next question to be addressed is why such a complicated process of bringing nominal lawsuits was needed when making a sale or lease contract.

107One reason is the complexity of ownership in a society where many sorts of rights were entalled in property and many persons had claim to it. The transfer of one’s right necessarily influenced the rights and interests of others. A nominal lawsuit should be regarded as a legal technique to prevent possible conflict from arising.

108Another is the instability of evidence in the Islamic law system. In Islamic law the evidence of a contract ultimately depends on the testimony of witnesses. As neither written documents nor the state authority directly certified the rights of individuals, it was possible for the parties or witnesses to cancel or violate a contract by changing their testimony. Fictitious lawsuits were intended to prevent such violations by repeating the statement and testimony of both the parties and the witnesses.

  • 82 LCRD, 669-196, 691-65, 128.

109Were such nominal lawsuits actually heard in court? Among the defendants in cases for payment of debt and applications to raise the rent, we can find the name of Aḥmad b. ‘Umar al-Khayyāṭ, court attendant, and Sa‘īd al-Kinnānī who were recorded as having attended the court.82 As the nominal lawsuit was to prevent the possibility of future conflict, it was necessary to record the statements of real, not fictitious, persons. We should note that many persons, including regular attendants and court officiais, were required to testify in court to carry out these fictitious lawsuits.

3.2. PROCEDURE OF ACTUAL LAWSUIT

110The Ṣāliḥiyya registers recorded eighty-two real lawsuits, other than the nominal ones. Here I shall consider how rights were judged by examining trial procedure.

111The contents of lawsuits brought to the Ṣāliḥiyya court concerned civil matters such as sale, inheritance, debt, etc., apart from crime and administration. Among the parties (plaintiff and defendant) are found females, minors and relatives.

112The results and processes of trials are classified in Table 7. Plaintiffs (imudda 7) won 58 cases (76.3 %), defendants (nutdda ’ā ’alay-hi) won 17 cases (22.4 %), and one case ended in reconciliation. Judgements seemed to favour the plaintiffs, which suggests that they had more evidence than the defendants.

  • 83 Cf. Schacht J., An Introduction, p. 188-198; tyan E., Histoire de l’organisation judiciaire, p. 23 (...)

113In Islamic law the burden of proof lies with the plaintiff, and when he cannot give evidence, the trial is settled by an oath (yamīn). The plaintiff here means the person who makes a claim, and the burden of proof could shift many times in the course of the same lawsuit, as the defendant became a plaintiff (claimant) by stating a counterclaim. Evidence should be derived from the testimony of witnesses (in principle, two men of exemplary justice), while circumstantial evidence and written documents are not admitted in principle. The role of the judge is only to control the proceedings and to judge according to formalistic regulations of Islamic law, while he has little or no scope of discretion to judge the reliability of testimony or other evidence.83

114At the trial the plaintiff first states the claim, which the defendant is asked to approve or not. If the defendant approves (i‘tirāf), the judge immediately decides the case. If the defendant denies the claim, the plaintiff must then give evidence to support his claim (ithbāt, bayyina). When the plaintiff succeeds in this, the trial is closed. If not, an oath is taken.

  • 84 Wakin J., The Function of Documents, p. 43,50, 65-67; Tyan E., Le notariat, p. 71; Coulson N., Isl (...)
  • 85 Regular attendants: Ṣāliḥ al-Kinnānī (LCRD. 660-30, 114, 669-31), Ṣāliḥ al-Saqqā’amīnī (691-49, 52 (...)
  • 86 Efendī (LCRD, 691-53, 157, etc.), Aghā (647-6, 40, etc.). Bey (647-18).

115As Table 7 shows it, there were only nine cases (12.5 % of the total) where the defendant approved of the claim of plaintiff, while 56 cases were settled by testimony of the witnesses (77.8 % of the total). Witnesses were not restricted to those knowledgeable about the matters before the court,84 as can be seen by the testimonies given by regular attendants and officers of the Ṣāliḥiyya court.85 The witness did not need to have been an eyewitness; rather it was sufficient to attest to the veracity of the plaintiff’s statement in civil cases. Although it is possible that chance knowledge of the matters before the court may have decided who gave witness, one can assume that regular attendants and others took the role in response to requests from plaintiffs. Notables such as Efendī, Aghā, and Bey also served as witnesses, perhaps on account of their reputations for probity and reliability.86

  • 87 LCRD, 691-157.

116Next to be noted is the decisive influence of testimony. Reference was made in trial to written documents, but only as supporting or secondary evidence. For example, in trials concerning disputed ownership of a house, both the plaintiff and the defendant would claim ownership by producing the deeds of sale issued at the court, but finally the plaintiff would win the trial on the basis of witness testimony.87 No case brought by a claimant who was backed by witness testimony was ever lost. Testimony by witnesses was decisive evidence at the Ṣāliḥiyya court, in accordance with the principle of Islamic law.

117If the claimant, either the plaintiff or the defendant, falled to discharge the burden of proof, the trial was decided by oath.

  • 88 Coulson N., Islamic Law, p. 125.

118First the defendant was requested to take an oath of denial of the claim. If he took the oath, sworn on the holy Qur’ān, the judgement was secured in his favor. If he declined to take the oath, judgement would be given in favour of the plaintiff88

  • 89 LCRD, 691-161.

119To cite an example found in the registers, a plaintiff claimed repayment from his partner of 1,350 qurūsh in profit from a business venture, but the defendant insisted that they had previously agreed to defer his payment of 1,000 qurūsh, and therefore he only owed 350 qurūsh at that time to the plaintiff. The plaintiff denied any such agreement having been made and stated that 1,250 qurūsh remained in the defendanfs debt, and then demandcd that the defendant produce evidence to prove it. The defendant falled to produce corroborating evidence and demanded that the plaintiff take an oath. The plaintiff took the oath and the judge ordered the defendant to pay his debt of 1,250 qurūsh.89

  • 90 LCRD, 691-139.

120The paramount importance accorded to the oath may strike one as strange, since all that was needed to win a case was to take it. Yet in one trial a defendant refused to take an oath and lost the case.90 We should remember that the oath was sworn in the name of God, and that for Muslims, to make a false oath means to disobey God.

  • 91 LCRD, 669-83.

121We find one case settled by reconciliation. It was claimed that the defendant should close his gate facing the lane as it preventcd the plaintiff from opening the gate of his house, even though the defendant acknowledged that he had received no right to open the gate to the lane when he bought his house. The conflict was settled by the agreement of both parties to move the gate three dhirā‘, which was made when the nā’ib of the Ṣāliḥiyya court, the scribe and the inhabitants held a meeting at the defendanfs house, and Ṣāliḥ al-Kinnānī and ‘Abd al-Majīd al-Saqaṭī confirmed it.91

  • 92 Shaṭṭī M., A‘yān Dimashq, p. 406.

122It is noteworthy how such a problem of dally life was brought before the court, and solved by an agreement made at a meeting, and confirmed by regular court attendants. Al-Alushī, a nā ’ib, was told in a biographical source that « he would like to achieve reconciliation (musālaha) before the lawsuit, and if it were brought before the court, he would strive for what is right (ḥaqq) and would reject injustice witli all his effort. »92

  • 93 In Kaiseri court, governmental documents such as land registers, deeds issued at the law court and (...)

123The records of procedure in the Ṣāliḥiyya court show that trials proceeded according to the principle of Islamic law, in ternis of proof and oath. It also conforms to the analysis of the Kaiseri court by Jennings.93 Most decisive were the testimony of witnesses and the taking of an oath in the trial. As the burden of proof rested with the claimant, the claimant could win the trial if he succeeded in obtaining witnesses to testify on his behalf. Failure to do so meant that judgement would rest on an oath by the defendant. The division of roles between the claimant and defendant were not constant, but rather could be reversed by lodging a counterclaim. The defendant could obtain the burden of proof by such counterclaim, but could also lose the case if he could not produce well-grounded evidence. This procedure somewhat resembles a card game of trumps, with the judge present merely to see that the rules of the game are followed.

  • 94 Bowring stated in his report in 1839 that « the publicity of the proceeding in the courts served t (...)

124We must pay attention here to the fact that all concerned - parties, agents, acquaintances, witnesses, attestors, confirmers, temporary witnesses, scribes, etc. - were present in court during proceedings. Those attending would have had their own private opinions and judgements about the statements, claims, testimony and oaths made in the court. Although it was possible for either side to make false claims, to ask witnesses to give false testimony, or to take a false oath in order to win a case before trial, such inviting opportunities for malfeasance might have been offset by fear of a negative consequence: the loss of standing and respect in local society, such as the Ṣāliḥiyya Quarter.94

  • 95 Lawrence Rosen states, based on his field research in contemporary Morrocan court, that a statemen (...)

125There was another way to solve conflict, by reconciliation before it was brought to court. Out-of-court reconciliation and the trial inside the court should not be thought contradictory. They were both means by which parties could try to reconcile differences in the presence of legal experts and others. It may be useless to examine whether the statements of the parties and the testimony of the witnesses were true or not. They were regarded as trumps to be played at court, by which both parties sought to determine facts acceptable to both sides, not to find the truth itself. By understanding this point, we see that the procedure of Islamic law courts, where oral testimony and oaths were more decisive than objective evidence, was neither arbitrary nor lacking in objectivity. Instead, the bargaining process among those in attendance at court allowed concemed parties to find a common ground for agreement as a starting point of future relationships, even if the agreement was not fully satisfactory to either party.95 We may further state that both testimony and reconciliation are a system in which parties confer the casting vote on a third person (witness or mediator) who took a role of giving the decision objectivity.

  • 96 Bowring, Report, p. 103.
  • 97 Parliamentary Papers, 1881 (3008), LXXXII: 899, 903.
    Acknowledgement: This paper is a revised and e (...)

126The British consuls in the nineteenth century, as we have quoted them so far, often accused the judicial courts of corruption because the judges and other court officiais would not do anything without receiving bribes or fees. It would be overhasty, however, to regard these accusations as a one-sided Western view of the Oriental judicial system, for Britain itself tried to clean up such faults in its own military and judiciary organizations during the nineteenth century. We should note the statement of a judge that he « sold only the justice, and that he did not give dishonest decisions for the money received », although he was open to reeeiving bribes from both parties as his due fee. 96Here we should take note of two points. First, the salaries of court officials were at a low level and often delayed,97 which led them to depend on the bribes and other fees from the parties. Second, they may have believed justice could be attained by bargaining among the parties under the mediation of judges and other court-attendants, rather than by strict implement of the law.

127It should be concluded, from what lias been discussed, that the rules of Islamic law were still more followed by both common people and legal experts at the end of the 19th century when the Islamic legal system was being subject to change during the Tanzimat Reformation.

Table 1-1: Contents of the Ṣāliḥiyya Court Registers

Table 1-1: Contents of the Ṣāliḥiyya Court Registers

The percentage of each sharc is shown in parenthesis.

Table 1-2 - Contents of the Ṣāliḥiyya Najmiyya Court Register of Cairo, no. 439 (934/1527-28)

Table 1-2 - Contents of the Ṣāliḥiyya Najmiyya Court Register of Cairo, no. 439 (934/1527-28)

The author here redistributes the data of MĪLĀD, « Registres judiciaires », p.194-200.

Table 2-1 - Judges and Clerks (in Sālnāme)

Table 2-1 - Judges and Clerks (in Sālnāme)

Data for the Ṣāliḥiyya Court in Sālnāme is lacking for the year 1289.

Table 2-2 - Judges and Scribes

Table 2-2 - Judges and Scribes

J: Judges (nā’ib) S: Scribes (muqayyid) The percentage of each share is shown in parenthesis.

Table 3-1 - Residences of the Parties

Table 3-1 - Residences of the Parties

The percentage of each share is shown in parenthesis.

Table 3-2 - Social Strata of the Parties

Table 3-2 - Social Strata of the Parties

The percentage of each share is shown in parenthesis.
The number between the brackets [ ] is the average number of persons.
Ef: Efendi, Sh: Shaykh, Ag: Aghā, Be: Bey/Bīk, Pa: Pasha/Bāshā

Table 4 - Agents

Table 4 - Agents

The percentage of each share is shown in parenthesis.

Table 5 - Temporary Witnesses (shuhūd al-ḥāl)

Table 5 - Temporary Witnesses (shuhūd al-ḥāl)

M: Scribes (muqayyid), K: Clerks (kātib), T: Total Number of Temporary Witnesses

Table 6 - Frequent Attendants

Table 6 - Frequent Attendants

Roles. A: Acquaintants; Sh: Witnesses; T: Attestors; W: Agents; H: Confirmers; Ṣāl: the inhabitants of the Ṣāliḥiyya Quarter; AJ: the Inhabitants of the Abū Jarash Sub-Quarter in Ṣāliḥiyya; *: Famous Family in the Sālihiyya Quarter.

Table 7 - Lawsuits

Table 7 - Lawsuits

The percentage of each share is shown in parenthesis. Murṣad means loan to waqf property for its repair by the lessee who wishes long-term rental of it.

Notes

1 Cf. Schacht J., An Introduction; Tyan E., Histoire de l’organisation judiciaire; id., Le notariat.

2 The author have surveyed the works of Antoine Abdel Nour, Abdul-Karim Rafeq, Bruce Masters and others in Haneda M. & Miura T., éd., Islamic Urban Studies, p. 123-124, 130-132, 135.

3 Cf. Marino B., Okawara T., Catalogue, p. 41-48. EI2, « Maḥkama; 2. The Ottoman Empire, ii. The reform era (ca. 1789-1922), VI, p. 5-11; Heidborn A., Manuel de droit public, p. 216-274.

4 LCRD 647, 660, 663, 669, 691, 699. On history and society of the Ṣāliḥiyya Quarter, Miura T., « The Ṣāliḥiyya Quarter in the Suburbs of Damascus », Bulletin d’Etudes Orientales, 47, 1995.

5 Cf. AmĪn M., Catalogue des documents d’Archives du Caire; Little D., A Catalogue of the Islamic Documents’, Abd Al-LatĪf I., « Tawthīqāt »; « Wathīqa ». Referring to shurūṭ, Wakin J., The Function of Documents’, Guellil G., Damszener Akten des 8/14. Jahrhunderts.

6 Narrated in the chronicles in the Mamlūk period such as Ibn Iyās M., Badā’i‘, IV, p. 347; Ibn Tūlūn M., Mufākahat, I, p. 345; GhazzĪ N.-D., Kawākib, II, p. 118, 271.

7 Ibn Khaldūn ‘A.-R., Muqaddimat, I, p. 404-405; Ibn Khaldūn ‘A.-R., The Muqaddimah, p. 461-462.

8 In the 10/16th century Egyptian and Syrian biographical source of Kawākib, the accounts of notaries began to decrease in the latter half of the 16th century. This suggests that registration might be done by court clerks instead of notaries in Ottoman Syria.

9 IbnĀbidĪn M., Radd al-Mukhtār, V, p. 369-370.

10 LCRD, 649, p. 1, ḥujja, H129, A203. Bowring’s consul report on Damascus in 1839 also attested the custom of issuing a deed and registering it  : « Transfers or sales are not usually registered; but to render them more legal and valid, a hoget, or declaration of sales is made by the cadi, in which case the sale or transfer is registered » (Bowring J., Report, p. 101 ).

11 ShattĪ M., A ‘yān Dimashq, p. 151.

12 HisnĪ M., Muntakhabāt, II, p. 649-650.

13 LCRD, 648 (Maḥkamat al-Qassām), p. 2. These are the « Regulations on Sharia Court Registers and Lawsuits Records » which were enforced in 1290 A.H. in all courts of the Ottoman Empire. The original decree was issued in Ottoman Turkish (Düstūr, IV, p. 83-85). The regulations were translated into Arabie and recorded in the registers of Damascus courts. Although some differences of meaning exist between the Turkish and Arabic texts, my summary is based on the Arabic text.

14 LCRD 641-5, 647-3, 648-p.l84.

15 The same order above.

16 LCRD 641 -1,642-206,648-p. 184 (issued on 1291 /4/18-1874/6/4). In the records of inheritance, some kinds of charge for issue and registration were usually recorded.

17 LCRD 691-1.

18 We can see the seals and signatures of the judge of Damascus and the deputy judge in the deeds extant from this time; ḥujja, A202 (1292/2/9), H129 (1292/3/27), A203 (1292/8/3), H132 (1293/3/16).

19 LCRD. 649, 662, 641, 643, 654, 642. Maḥmūd Efendī was recorded in the Sālnāme of 1291 year, which meant he might assume the office of the judge in 1290.

20 Taking examples, LCRD 669-108 to 117, 243 to 247.

21 LCRD 647-135, 141, 166, 660-48, 669-234.

22 We see the name of a « dead court clerk » (al-kātib al-marḥūm), ‘Abd al-Majīd in the register, which means it was recorded after his death according to the remaining notes (LCRD, 663-47 to 52, 54, 56, 57).

23 LCRD 641 -1, 642-206, 648-p. 184.

24 Cf. note 15. No.663 also contains 33 cases of inheritance (50.8 %) which shows a great many of remaining inheritance documents after no. 647.

25 MĪlād S., « Registres judiciaires », p. 194-200. Examining the sharia court records of 17th century Egypt. El-Nahal shows scarcity of criminal cases there. In one year in the Bahnasā Court register less than 3  % of about five hundred cases were crimin al cases (El-Nahal G., Judicial Administration, p. 25). Cf. also ’Abd Al-‘AzĪz I., Ta ’rīkh al-qaḍā‘fi Miṣr.

26 Prof. Rafeq has already published an article on criminal cases involving violations of public morals (drinking of alcohol, prostitution, etc.) in 18th-century Damascus based on court registers, which might have been brought before the main court. Cf. Rafeq A.-K., « Public Morality ».

27 Sālnāme, IV, p. 81; V, p. 62; VI, p. 54-55; VII, p. 67; VIII, p. 86; XI, p. 93; X, p. 61.

28 Shaṭṭi M., A‘yān Dimashq, p. 238.

29 Mustafā al-Barqāwī (Shaṭṭī M., A ’yān Dimashq, p. 237; ’Ulamā’ 13H, II, p. 755), Zāhid al-Alshī (Bīṭār ‘A.-R., Ḥilyat al-bashar, II, P. 637-639; Shaṭṭī M., A‘yān Dimashq, p. 405; Furfūr., A‘lām Dimashq, p. 109).

30 Husayn al-Ghazzī (Shaṭṭī M., A ’yān Dimashq, p. 416; ’Ulamā’ 14H, I, p. 215), Muḥammad al-Jūkhdār (BĪṭār ‘A.-R., Ḥilyat al-bashar, III, p. 1345-46; ḤinĪ M., Muntakhabāt, II, p. 685; Shaṭṭī M., A‘yān Dimashq, p. 240; ‘Ulamā’ 13H, II, p. 756).

31 - Bīṭār ’A.-R., Ḥilyat al-bashar, III, p. 1330-31; Shaṭṭī M., A‘yān Dimashq, p. 248-249, 397; ‘Ulamā’ 13H, II, p. 595-596; ‘Ulamā’ 14H, I, p. 185; Furfūr S., A‘lām Dimashq, p. 89.

32 Shaṭṭī M., A‘yān Dimashq, p. 340; ḤinĪ M., Muntakhabāt, II, p. 767; ‘Ulamā ’ 14H, I, p. 93-95.

33Ulamā’ 14H, III, p. 57.

34 Ḥujja, H138 (1295/4/3).

35 Referring to the term of lease, the four Sunni law schools all confined it to one year in principle, while among the Hanafi scholars, Hilāl al-Ra’y (d. 245/859) permitted two-year lease contracts and qāḍīkhān (d.592/1196) permitted land lease of two or three years according to the term of harvest (Al-ra’y H,,Aḥkām al-waqf, p. 206; Fatāwā Qāḍī khān, III, p. 332-333). The Shāfi‘ī school permitted lease contract of as long as thirty years and the Ḥanbalī school also had a similar opinion (Ibn Qudāma M., Mughnī, VI, p. 6-7; HaytamĪ Ibn Ḥajar, al-Fatāwā al-kubrā al-fiqhiyya, III, p. 327).

36 LCRD, 669-145, 146.

37 An exception was the decree appointing Khānī Zāde, which defined his district of jurisdiction for cases of inheritance: the Ṣāliḥiyya Quarter, Akrād Quarter, villages of Barza, al-Tell, Dummar, and al-Hāma. (LCRD, 647-1, 1290/1/22-1873/3/22).

38 LCRD, 641-8, 642-112 and others.

39 Residents of ‘Amāra (691-132, 169), Sārūjā (691-42, 160), Mīdān (691-62, 80).

40 Cf. Ghazzal Z., L’économie politique de Damas, p. 39-46; Miura T., « The Ṣāliḥiyya Quarter », p. 137.

41 On women’s economic life, cf. Reilly J., « Women in the Economic Life ».

42 Schacht J., An Introduction, p. 119-120; Tyan E., Histoire de l’organisation judiciaire, p. 264-275.

43 LCRD, 660-141, 691-21 and others.

44 For example, Muhammad b. ‘Abd al-Qādir (LCRD, 669-195, 691-19, 28, 36, 53, 76, etc.); Ahmad b. ‘Umar al-Khayyāṭ (669-155, 228, 691-12, 21, etc.; ḥujja, H203).

45 QāsimĪ M., Qāmūs al- ṣinā‘āt, p. 497-498.

46 Cf. Jennings R., « The Office of Vekil », p. 164-168.

47 There appeared as debtor: Qāsim b. Muḥammad (LCRD. 647-40, 57, 63, 66, etc.), Aḥmad b. ‘Umar al-Khayyāṭ (669-103, 220, 691-28, 107, 699-25, etc.), and Muḥammad b. ‘Abd al-Qādir (669-180, 210, 691-70, 188, 191, 699-40, 41, etc.).

48 LCRD, 647-64, 110, 660-5, 20 and others.

49 Sghacht J., An Introduction, p. 192-3.

50 Acquaintances: Kurds (LCRD, 669-149, 691-58, 120), Husbands (669-188, 197, 691-114), Brothers (669-151, 157, 231, 691-37, 164). Witnesses: Kurds (647-38, 691-238, 691-21), Village dwellers (669-67, 76,181), Brothers (669-196,691-155, 164,179), Mukhtārs (647-50, 54, 691-22,43, 44, 61), Clerks (669-196, 691-34,35, 78). The testimony conducted by brothers, relatives and friends of the parties as witnesses is admissible, although one who is related through marriage to the parties, a mother or a child, is prohibited from testifying (Ibn Qudāma M., Mughnī XII, p. 69-70).

51 LCRD. 660-143.

52 LCRD, 669-132.

53 Muḥammad Sa‘īd b. Hasan Baqdūnis sold the right to use a shop and its equipment (kadak wa khulūw) located in the Ṣāliḥiyya Quarter for a price of 1,250 qurūsh. Baqdūnis had bought this right six years before, and leased the shop itself to the buyer through the same contract. He must have used the shop as a source of raising funds; LCRD, 660-87. The second information we glean is that ‘Abd al-Hādī al-Kinnānī had lent 300 qurūsh to a man who later died, listed in his inheritance document, LCRD, 663-33. Thirdly, Ṣāliḥ al-Kinnānī appears in the register as a nāẓir of waqf land endowed by his ancestor; ḥujja, H151 (1299/7/1).

54 Shaṭṭī M., A‘yān Dimashq, p. 358; Cf. ḤiṢnī M., Muntakhabāt, II, p. 791-792; ‘Ulamā’ 14H, I, p. 121; Furfūr Ṣ., A‘lām Dimashq, p. 319. He had his house in the Muqqadam Sub-Quarter registered in LCRD, 699-26.

55 Shaṭṭī M., A ’yān Dimashq, p. 347; ‘Ulamā’ 14H, I, p. 106.

56 LCRD, 647-58, 93, 660-109.

57 ‘Abd al-qādīr (Bīṭār ‘A.-R., Ḥilyat al-bashar, II, p. 916; ḤiṢnĪ M., Muntakhabāt, II, p. 669; Shaṭṭī M., A‘yān Dimashq, p. 185-186), Ṣāliḥ (Bīṭār‘A.-R., Hilyat al-bashar, II, p. 728; Shaṭṭī M., A‘yān Dimashq, p. 148).

58 Shaṭṭī M., A‘yān Dimashq. p. 394; cf. Furfūr S., A‘lām Dimashq, p. 198.

59 ‘Abd al-Majīd (LCRD, 660-54, 669-83, 691-71), ‘Abd al-Ghanī (647-116, 160. 660-86, 669-151, 179, 691-25), Ismā‘ īl (647-156, 660-39, 669-179, 669-222, 691-8, 68, 197, 699-21, 29, 30, 32).

60 Lessee of orchard (LCRD, 647-37), Seller (660-116), Buyer (660-143).

61 Ahmad al-Kuzbarī (Shaṭṭī M., A ’yān Dimashq, p. 51), Salīm al-’Attār (ḤiṢnĪ M., Muntakhabāt, II, p. 724; Shaṭṭī M., A‘yān Dimashq, p. 335), ’Ab dAllāh al-Halabī (Bīṭār ‘A.-R., Ḥilyat al-bashar, II, p. 1008-09; Shaṭṭī M., A‘yān Dimashq, p. 190-191).

62 Shaṭṭī M., A‘yān Dimashq, p. 352; cf. ḤiṢnĪ M., Muntakhabāt, II, p. 704; ‘Ulamā’ 14H, I, p. 111.

63 Shaṭṭī M., A‘yān Dimashq, p. 190.

64 Salīm al-’Attār (Shaṭṭī M., A‘yān Dimashq, p. 336), al-Ḥalabī (Ibid., p. 191; ḤiṢnĪ M., Muntakhabāt, II, p. 648).

65 « Reports of the Administration of Justice in the Various Provinces of the Ottoman Empire », Parliamentary Papers, 1881(3008), LXXXII: 900.

66 al-Alshī (Bīṭār‘A.-R.; Ḥilyat al-bashar, II, p. 639; Shaṭṭī M., A‘yān Dimashq, p. 406). Cf. also, Ahmad Bey (Shaṭṭī M-, A‘yān Dimashq, p. 325).

67 Shaṭṭī M., A‘yān Dimashq, p. 336.

68 Bowring reported the widespread existence of bribes among the qādh of Damascus in the 1830’s (Bowring J., Report, p. 103). The consul reports in 1880-81 often accused the corruption of judicial courts in Anatolia and Syria in the Ottoman dominance (« Report on the Administration of Justice in Anatolia », Parliamentary Papers, 1880 [2712], LXXXII  :934-935; « Reports of the Administration of justice », Parliamentaiy Papers, 1881 [3008], LXXXII  : 891, 896).

69 Amīn al-Nābulusī (Shaṭṭī M, A‘yān Dimashq, p. 379; ‘Ulamā’ 14H, I, p. 147).

70 Aḥmad al-Mālikī ((Bīṭār ‘A.-R., Hilyat al-bashar, I, p. 244; Shaṭṭī M., A‘yān Dimashq, p. 52), Amīn al-Nābulusī (Ibid, p. 379).

71 In Islamic Law it was permitted to receive rewards for giving testimony when the witness had little means of livelihood (Ibn Qudāma M., Mughni, XII. p. 19).

72 Ḥujja, A202 (1292/2/9), H129 (1292/3/27).

73 LCRD, 691-148, 171.

74 Jennings R., « Limitation », p. 161-163.

75 LCRD, 647-83, 85, 93, 660-2, 29 and others. Similar lawsuits are found in the Ṣāliḥiyya court register in the 18th century (LCRD, 88-16, 24, 26, 164, 223). Cf. Rafeq A.-K.., « Land Tenure Problem », p. 380-381.

76 LCRD, 647-83, 158, 669-107.

77 al-Qarāfī (d. 584/1285) states that all validly dedueed views endorscd by one of the four Sunni schools should not be rejected by the judges of other law schools, and Ibn Ḥajar al-Haytamī stated a similar opinion (Jackson S., Islamic Law and the State, p. 108-109; HaytamĪ Ibn Ḥajar, op. cit., p. 237).

78 LCRD, 669-196, 691-65, 128 and others.

79 Yanagihashi H., « The Right of Pre-emption in Islamic Law », p. 71 (in Japanese).

80 LCRD, 660-86, 691-28, 47 and others.

81 LCRD, 660-70, 691 -100 and others.

82 LCRD, 669-196, 691-65, 128.

83 Cf. Schacht J., An Introduction, p. 188-198; tyan E., Histoire de l’organisation judiciaire, p. 236-252; Heyd U., Ottoman Criminal Law, p. 241-247; Jennings R., « Limitation », p. 171-181; Coulson N., Islamic Law, p. 124-126. Heidborn states that the regulations of Mecelle in 1295/1878 changed the court procedure as it approved discretion of the judge, but maintained the traditional system of evidence such as testimony and oath (Heidborn A., Manuel de droit public, p. 387-397).

84 Wakin J., The Function of Documents, p. 43,50, 65-67; Tyan E., Le notariat, p. 71; Coulson N., Islamic Law, p. 126. In Islamic law, testimony should be done by a witness who has known the case by his own eye or ear in principle, but it admits the testimony of one who only asserts the claim of the parties in civil cases, although it is restricted to an eyewitness in criminal cases. (Ibn Qudāma M., Mughnī, XII, p. 19-24).

85 Regular attendants: Ṣāliḥ al-Kinnānī (LCRD. 660-30, 114, 669-31), Ṣāliḥ al-Saqqā’amīnī (691-49, 52), Maḥmūd b. Shaykh Adīb (669-154), Hasan b. ‘Umar Qāwuq (647-68), Maḥmūd b. al-‘Āze (691-108), Sa‘īd al-Akramī (691-157). Clerks (669-165).

86 Efendī (LCRD, 691-53, 157, etc.), Aghā (647-6, 40, etc.). Bey (647-18).

87 LCRD, 691-157.

88 Coulson N., Islamic Law, p. 125.

89 LCRD, 691-161.

90 LCRD, 691-139.

91 LCRD, 669-83.

92 Shaṭṭī M., A‘yān Dimashq, p. 406.

93 In Kaiseri court, governmental documents such as land registers, deeds issued at the law court and its registers were received, in case the parties had no witness to testify, but they needed to be confirmed by the testimony of court experts (Jennings R., « Limitation », p. 171-181).

94 Bowring stated in his report in 1839 that « the publicity of the proceeding in the courts served the ends of justice » where « the presence of auditors was a great check on misdecisions » (Bowring, Report, p. 104).

95 Lawrence Rosen states, based on his field research in contemporary Morrocan court, that a statement is rather like a price mentioned in the market-place, a figure that cannot be said to be true or false until it is accepted, validated by some additional act performed by oneself or another, and that the aim of the qāḍī is to put people back in the position of being able to negotiate their own permissible relationship (Rosen L., The Anthropology of Justice, p. 17,22,37-38). Iris Agmon also states: « The circumstances recorded in the sijill are not necessarily the true ones; they might form a bridge, between the dispute and the shari‘a » (« Muslim Women in Court According to the Sijill of Late Ottoman Jaffa and Haifa », p. 132).

96 Bowring, Report, p. 103.

97 Parliamentary Papers, 1881 (3008), LXXXII: 899, 903.
Acknowledgement: This paper is a revised and enlarged version of my Japanese paper titled « Sharia Court Registers in Nineteenth Century Damascus ( 1 ): Personal Networks around the Ṣāliḥiyya Court » which was published in Memoir of the Institute of Oriental Culture, 135, 1998. The research at the Center of Historical Documents in Damascus (Markaz al-Wathā’iq al-Ta’rīkhiyya bi-Dimashq) was conducted in 1994, 1995, 1998, and 1999, being financially supported by Japan Foundation, Japan Ministry of Education, Science, Culture and Sport, and Mitsubishi Foundation.

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Ochanomizu University - Japan

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