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The grammars of adjudication

Zouhair Ghazzal



Texte intégral

‘āda, habit

ālat al-qatl, tool-of-killing

ālat ādda, sharply edged tool, considered enough for anafīs to determine intentional killing

‘āqila, “professional milieu” of a culprit charged of homicide, and which might be requested by court action for a partial or total payment of the blood money

a‘yān, s. ‘ayn, notables (in pl.), also tangible objects (s. or pl.)

abūkāt, from the French avocat, lawyer; introduced by the second half of the nineteenth century due to the nonexistence of professional lawyers prior to that period

adab al-qāī, the rules of judicial decision making

‘adam, the nonexistence of a thing

a, to cultivate a land that was left over as mawāt

ahālī, ahl, people of a locality

ajnabī, foreign, someone outside the agnatic group per se

ajzā’, bodily parts, or more generally, fragments

al-milla al-rāfia, “the confession of refusal,” meaning the Shī‘īs

‘amār, buildings, built area either in the city or countryside

‘amd, intentional killing

amr, order

amwāl al-aytām, funds of orphans

amwāl amīriyya, taxes and surtaxes due to the state

ankara, to deny

ar, land

ar-u al-kharāj, land subject to the kharāj (q.v.) tax

arshad, the most “mature” among all beneficiaries

‘aaba, kin, agnation, consanguinity, blood relationship

‘aabiyya, group feeling

al, essence

‘ashīra, clan

awāmir sulāniyya, sultanic orders, ordinances

‘ayn, pl. a‘yān, tangible object, and in its plural form the notables of a city

in, intrinsic or hidden meaning, or the inner side of the manifest meaning (bāin)

bay‘ al-wafā‘, sale with a right of the seller to repurchase (redeem) the property by refunding the purchase price

bayyina, evidence

burhān, proof

bustān, garden, a small cultivable land in the vicinity of the city

çiftlik, farm or mazra‘a

ārib, assailant

dīwān, the paperwork of the judge in the classical Islamic systems; became referred to as sijill in Ottoman times

dār, home

da‘wa, lawsuit

dalīl, evidence, indication

dayn, debt

dayyān, lender

defter, Arabic daftar, Turkish for register

defterdār, higher Ottoman official whose authority within a province was next to the governor (wālī)

dukkān, shop

dustūr, law, constitution, codes

faqīh, pl. fuqahā’, jurist, practitioner of the fiqh

farā’i, branch of the fiqh devoted to successions and the division of an inheritance fairly among its beneficiaries

fatwā, pl. fatāwā, responsum delivered by a jurisconsult

fiqh, jurisprudence, legal school, also “knowledge”

ghab, unlawful usurpation

āditha, event

ādithat al-fatwā, a unique occurence—or event—that prompted a muftī’s fatwā (q.v.)

ānūt, small shop

anafī, one of the four schools of the Sunnī fiqh, adopted by the Ottomans as their official legal system

aqq, right, obligation

aqq ‘aynī, the right over the tangible object, which is accorded once the property passes from seller to buyer

aqq shakhī, personal right, a modern notion taken from Roman law

īla, pl. iyal, legal subterfuge, procedural fiction (see Table 2-2)

ujja, record of a transaction or a contract

ukm, ruling

‘ibādāt, religious rituals

ijmā‘, consensus

ijtihād, act of independent reasoning and interpretation excercised by a mujtahid (q.v.)

‘ilm, knowledge based on the scriptures

‘ilm al-fiqh, jurisprudential knowledge

‘ilm al-kalām, theology

iltizām, Ottoman tax-farming system, or rent-payment system through the multazim

imām, head of a school, sect or group

inkār, denial

irth, inheritance

istibdāl, property substitution for the purpose of benefiting a waqf (q.v.)

istinā‘, contract providing for the manufacture and purchase of a specified item

ithm, sin, offense

jamā‘a, group of people

jināya, pl. jināyāt, the act of the killing of a soul (nafs); a homicide

kīs, “bag,” or 500 piasters

kātib, scribe

kalām allāh, the word of God, the Qur’ān

kashshāf, mustakshif, someone who “explores” a homicide scene at the request of a judge

khāne, the Ottoman household unit for taxation purposes

kharāj al-muqāsama, “tax” imposed in the early Islamic empires in which the peasant shared part of his produce for using state-owned lands

kharāj al-waīfa, land flat-tax in the early Islamic empires, or the “rent” for using state-owned lands

kham, opponent

kham jāid, denying opponent

khaa’, error

khuūma, conflict that led to a litigation

kitāb, book, section of a manual

liwā’, administrative unit of a province

mīrī, Ottoman land-tenure system, state-owned lands

mālikāne, land granted as a life-appointment

ma‘dūm, nonexistent

ma‘na bāinī, hidden intrinsic meaning

ma‘na aqīqī, literal and manifest meaning

ma‘na majāzī, metaphorical meaning

madhhab, school of jurisprudence (fiqh)

maall al-‘aqd, the licit object of legal obligation

mahjūr shar‘-an, legally abandoned

majālis al-Tanīmāt, the regional councils of the Tanz˝īmāt (q.v.)

majlis, pl. majālis, place of meeting to contract, or to conduct a hearing (courtroom), or, more generally, a place of assembly such as a parliament or council

maqū‘, lump-sum payment of a tax

marad, “investment” that a tenant would make in a waqf’s property to secure a long lease

mashāyikh al-awāyif, elders of a confessional group

mashadd maskeh, right of cultivation, and which the tenant must purchase from the previous tenant in order to compensate the latter for the invested labor and to transfer that right

malab, request made to a scholar and for which he is expected to issue a responsum

mawāt (pl.), dead lands, which might be unsuitable for cultivation and left as such for a long period of time; always used in plural

mawqūf, the blocked properties dedicated to a waqf (q.v.)

mawqūf ‘alayhim, the beneficiaries of a waqf (q.v.)

mazra‘a, farm; equivalent to the Turkish çiftlik

milk, private property

milla, Turkish millet, confessional and political system of the Ottoman Empire in which various religious groups (ā’ifa, millet) were provided “autonomy” within the system at large

mūjib, pl. mūjibāt, obligation

mu‘āmalāt, s. mu‘āmala, pecuniary transactions

mubā, permitted, permissible

mudda‘ī, plaintiff

mudda‘ī ‘alayhī, defendant

muftī, jurisconsult

muaṣṣil, person responsible for collecting taxes and surtaxes in a locality or region, and considered of a higher status to the multazim (q.v.)

mujarrad, single, bachelor, classification mostly used for statistical purposes

mujtahid, genuine interpreter and scholar who relies on his own independent reasoning

multazim, Ottoman tax-farmer

muqāa‘a, pl. muqāa‘āt, Ottoman tax-unit granted to a tax-farmer by auction

muqallid, a scholar of lower rank who cannot rely on his own reasoning and therefore follows a mujtahid

murābaa, markup contract of sale

mushā‘, commonly owned property

mutakallimūn, theologians

mutawallī, waqf’s administrator

iya, smaller administrative division to the province

nā’ib al-qāī, deputy judge

ir, waqf’s administrator

nafs, soul

naṣṣ, text, or Text, as in the case of a text of divine nature

nawādir, less authoritative works of the school, literally “rarities”

niyāba ‘āmma, public prosecution office, which was nonexistent in Ottoman times

niyya, intention

ī, judge

ī al-quāt, chief judge

qānūn, law, statute, official legal text emanating form teh imperial center (sultan)

qānūnnāme, set of regional codes legislated by the Ottoman bureaucracy and which acted in parallel to anafism

qaa, to rule, to draft a final decision

qaā’, religious office or function of the judge

qarāba, kin

qar, loan

qad, purpose, an intended action

qawā‘id kulliyya, the general rules of anafism, formulated explicitly for the first time by Ibn Nujaym

qawad, punishment

qawl, authorized opinion by a recognized scholar

qiyās, reasoning by analogy

quā, punishment

rāshid, the most mature among the beneficiaries

ra‘iyya, ra‘āyā, in singular or plural refers to the “subjects” of the Empire who are perceived as a “flock” on the top of which rules a sultan as a “guardian” to his “subjects”

raf‘ yad, to vacate a property that has been subjected to unlawful usurpation

ribā, usury

rib, gain, profit

ribish, excessive gain

rujū‘ ‘an al-waqf, act of revoking some or all of the original stipulations of a waqf (q.v.)

āibayn, the two companions, meaning Abū anīfa’s two disciples, Abū Yūsuf and Shaybānī

ul, settlement

salīkh, land with no plantations

salam, advance loan; purchase of item known by specification or description for delivery at a later specified time, with payment of price in full at time of contract

sanjāq, province, administrative division

shāhid, witness

shaddād, pl. shaddādūn, special category of peasants protected by various forms of legislation and by the regional councils

shahāda, testimony

shar‘, canon law based on the scriptures

shar, interpretation

shar adab al-qāī, intepretation of the rules of judicial decision making

shar mulā’im li-l-‘aqd, conditions appropriate to the contract

shibh al-‘amd, quasi-intent

shurū, stipulations, conditions

shurū al-tazkiya, conditions of approval

shurū, s. shar, stipulations

sijill, pl. sijillāt, court register; name associated with the “bound” registers of the Ottoman sharī‘a courts, thus replacing the classical unbound dīwāns

sula, power

sulān, head of a ruling dynasty

ā’ifa, religious group, a corporation, a craft-guild

abaqa, pl. abaqāt, generation of scholars, bio-biographies based on a specific juristic typology of the school

taghyīr wa-l-tabdīl, changes that might have been introduced in the origininal act of a waqf (q.v.)

tajdīd, the renewal of a tradition based on a new interpretation

takhrīj, a form of reasoning and interpretation by analogy

tamlīk al-‘ayn, ownership of the tangible object, transmitted through a contract of sale

tamlīk al-bua‘, possession of the husband of his wife’s genatalia, which for anafīs was granted through the contract of marriage

tamlīk al-dayn, ownership of the debt which entails for the borrower an obligation to reimburse

tamlīk al-manfa‘a, ownership of the usufruct as a result of a tenancy contract

Tanīmāt, Ottoman reforms which began with the edict of 1839

taqlīd, the following of a tradition based on already established opinion

taqlīd, the following of a tradition

tarika, succession

taarruf, right of possession

tawkīl, contract of representation

‘ulamā’, s. ‘ālim, corporation of the scholars of Islam

‘umla, money, currencies

umūr ‘āria, contingent matters

‘urf, custom, linguistic custom

‘uba, community

uūl al-fiqh, the basic rules on which a legal school is based

‘ushr, the old classifical form of tithe, or one-tenth of the produce

verghi, “impôt foncier,” equivalent to 4/1000 of the value of lands subjected to the ‘ushr (q.v.)

wālī, governor of a province appointed by the imperial center

wāqif, founder (benefactor) of a waqf

wa‘ yad, occupation, a common anafī notion that gives the right of “possession” to anyone who has worked on a land for a period of time

wakīl, representative

walī al-dam, next of kin of a murdered victim

waqf, pl. awqāf, blocked properties whose “usufruct” is the property of its beneficiaries

waqfiyya, the document where the stipulations of a waqf are drafted

waiyya, will

yatīm, pl. aytām, orphan

āhir, manifest meaning, in opposition to its intrinsic meaning (bāin)

āhir al-riwāya, a anafī term to denote the uūl al-fiqh of the school based on Shaybānī’s six manuals, which were agreed upon by later jurists

zakka, to approve

zukkiyat al-bayyina, evidence has been validated

© Presses de l’Ifpo, 2007

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