By James E. Baldwin
In this court record from Cairo, dated August 3, 1667, two connected disputes are resolved by ṣulḥ (mediation). Shukr ibn ʿĀmir accuses Shaʿbān ibn Nāfiʿ of theft, while Shaʿbān accuses Shukr of assault. Shukr fails to provide evidence to substantiate his claim, while Shaʿbān provides two witnesses for his claim. If the dispute had been adjudicated, the judge would have dismissed Shukr’s claim of theft and held him liable for the assault. However, the litigants choose to enter mediation, which results in a very different settlement: Shaʿbān makes a modest payment to compensate Shukr for the alleged theft, and drops his claim of assault. This case shows that ṣulḥ enabled Ottoman courts to resolve disputes in ways that departed significantly from those allowed by the procedures of adjudication. It suggests that ṣulḥ may have been one of the key mechanisms by which Ottoman courts were able to accommodate local values and expectations, a dynamic of the Ottoman legal system that many historians have remarked on.
This Ottoman court record from seventeenth-century Cairo provides an example of a dispute that was submitted for adjudication but ultimately resolved through ṣulḥ (mediation). In this case, two parties attempt to litigate two connected disputes – a claim of theft and a claim of physical assault – before the parties choose to enter into mediation. The proceedings and outcome are fascinating because they illustrate how the rights available under a ṣulḥ agreement could deviate considerably from the parties’ rights with adjudication. This case also suggests that social hierarchies and expectations greatly influenced the ṣulḥ process.
Case: Text of the Court Record
Egyptian National Archives, Sijillāt maḥkamat Bāb al-Sharʿiyya, register 623, entry no. 309
لدي الحاكم الحنفي بعد ان صدر التخاصم والتداعي بين السيد الشريف شكر بن السيد عامر السايس وبين شعبان بن نافع المتسبب بسبب ما ادعاه السيد شكر المذكور على شعبان المذكور بانه كان خادما عنده في صناعة السياسة وتوجه معه الى ادرنه في سنة سبع وسبعين والف وان شعبان المذكور اختلس منه جميع زبون جوخ تمر هندي قيمته خمسة غروش وشاش قيمته غرشا واحدا وطربوش احمر قيمته غرشا واحدا وقميص رومي قيمته غرشا واحدا وتقميطة قيمتها ثلاثة غروش وقيمتها (sic) ثلثي غرش وبارجه[؟] بيضا قيمتها غرشان اثنان ونصف غرش وزبون صغير ابيض قيمته غرشا واحدا ولباس […] ابيض قيمته غرش واحد وطالبه باحضار ذلك ان كان موجودا او بقيمته ان كان معدوما
وسال سواله عن ذلك فسيل المدعى عليه المذكور اجاب بالانكار في ذلك فطلب من المدعي المذكور البيان على ذلك فخرج وعاد ولم يحضر بينة تشهد له بذلك ولم يلتمس يمينه على ذلك
وبعد ما ادعاه شعبان المذكور على السيد شكر المذكور بانه تعدي عليه في يوم تاريخه وضربه واشهر عليه السلاح ليقتله واذاه بذلك فسيل المدعى عليه المذكور اجاب بالانكار في ذلك فطلب من المدعي المذكور البيان على ذلك فخرج وعاد واحضر كل من المحترم محمد بن يوسف الغيطاني والمحترم احمد بن محمد الحمار المعدلين لديه بشهادة المحترم سلامة بن سلامة وخاطر بن شحادة النجار النجار (sic) واستشهدهما عما يعلمانه من ذلك فاقاما شهادتهما لدى مولانا الحاكم المشار اليه اعلاه بمعرفة المتداعيين المذكورين اعلاه وان السيد شكر المذكور تعدي على شعبان المذكور وضربه واشهر عليه السلاح ليقتله في يوم تاريخه شهادة شرعية مقبولة
تكلم بينهما متكلم في الصلح فاصطلحا على ان السيد شكر المذكور قبض من شعبان المذكور ثلاثون نصفا فضة القبض الشرعي بالمجلس وصدر بينهما اقرار بعدم الاستحقاق وتباري عام مطلق موسع[؟] الاسقاط من الجانبين ومن جملة ذلك ولا اسبابا ولا قيمة لها ولا تعديا ولا ضربا ولا علقة ولا […] ولا حقا من ساير الحقوق ولا يمينا باسمه سبحانه وتعالى ولا شي قل ولا جل لما سلف من الزمان والى تاريخه
وتصادقا على ذلك كله وثبت الاشهاد بذلك لدي مولانا الحاكم المشار اليه اعلاه بشهادة شهوده ثبوتا شرعيا وحكم بموجب ذلك الحكم الشرعي واشهد على نفسه بذلك وبه شهد في ثاني عشر صفر الخير سنة ثمان وسبعين والف وحسبنا الله ونعم الوكيل
الفقير عبد الباقي البحيري والشيخ عبد العظيم الوارسي والشيخ شرف الدين الفقري
Case: Translation of the Court Record
Before the Ḥanafī judge:
A dispute and claim was initiated before the judge between al-Sayyid al-Sharīf Shukr b. al-Sayyid ʿĀmir al-Sāyis and Shaʿbān b. Nāfiʿ, a shopkeeper. The aforementioned al-Sayyid Shukr claimed that the aforementioned Shaʿbān used to be employed by him in his work as a stable groom and that he traveled with him to Edirne in the year 1077 [1666–7], and that [during that trip] the aforementioned Shaʿbān stole from him all of the following [items]: a broadcloth undergarment of tamarind [color?] worth five ghirsh, a muslin [cloth] worth one ghirsh, a red hat worth one ghirsh, a Rūmī [from or in style of the central Ottoman lands] shirt worth one ghirsh, a girdle worth three and two-thirds ghirsh, a white piece of cloth[?] worth two and a half ghirsh, a small white undergarment worth one ghirsh, and white [….] underpants, worth one ghirsh. [Shukr] demanded that [Shaʿbān] return these items if he had them, or [pay] their value if he did not.
Shukr made this request [in court], and the aforementioned defendant was questioned. He replied by denying [Shukr’s claim], and he demanded evidence of his claim (bayān) from the aforementioned plaintiff. The plaintiff left [to gather evidence], then he returned but failed to produce evidence (bayyina) to corroborate [his claim], and he did not demand an oath [of denial from Shaʿbān].
Furthermore, the aforementioned Shaʿbān counter-claimed that the aforementioned al-Sayyid Shukur had, on that day, attacked him, hit him, and drawn his weapon [with intent] to kill and injure him. The aforementioned defendant [this now refers to Shukr] was questioned and he replied by denying the claim, and he [in turn] demanded evidence (bayān) from the aforementioned plaintiff [this now refers to Shaʿbān]. [Shaʿbān] left [to gather evidence], then he returned and brought the respected Muḥammad b. Yūsuf al-Ghīṭānī and the respected Aḥmad b. Muḥammad al-Ḥammār, whose integrity was established [in front of the judge] by the testimony of the respected Salāma b. Salāma and Khāṭir b. Shaḥāda al-Najjār. [Shaʿbān] asked them to testify as to what they knew about the matter. They presented their testimony to our master the aforementioned judge, with the knowledge of the aforementioned litigants. [They testified] that, on that day, the aforementioned al-Sayyid Shukr attacked the aforementioned Shaʿbān, hitting him and drawing his weapon to kill him. [Their] testimony was [regarded] as admissible and in accordance with the law (maqbūlatan, sharʿiyyatan).
[Then] a mediator conducted mediation with the two, and they agreed to the following:
The aforementioned al-Sayyid Shukr received thirty silver niṣfs from the aforementioned Shaʿbān, which he received in court in accordance with the law. The two declared that neither had any claim against the other, and [they declared] a general, complete absence of debts, and the dropping by each side of all claims: [that is,] no [claim for] goods, nor for the value of them, nor claim of attack, nor hitting nor beating, nor [….], no claim for any other right, no claim for an oath in the name of God almighty, may He be praised, and no thing great or small, from any time in the past until today.
[Shukr and Shaʿbān] mutually agreed on all of this. Their agreement was attested to before our master the aforementioned judge by the testimony of [the court] witnesses, in accordance with the law. [The judge] ruled in accordance with this [agreement] and in accordance with the law. [The judge] attested to this [ruling], which was witnessed on the twelfth of the excellent [month of] Ṣafar, in the year 1078 [August 3, 1667].
God is sufficient for us and He is the best guide.
- al-Faqīr ʿAbd al-Bāqī al-Buḥayrī
- al-Shaykh ʿAbd al-ʿAẓīm al-Wārisī
- al-Shaykh Sharaf al-Dīn al-Faqarī
Although it is presented as a single entry in the court records, this case actually consists of two separate claims. First, there is Shukr’s claim that his former servant Shaʿbān stole from him a quantity of goods, worth a total of sixteen and one sixth ghirsh, during a trip to Edirne. This theft allegedly took place a year before the court case. Second, there is Shaʿbān’s claim that Shukr had attacked him in the street, drawn his weapon, and threatened to kill him. This assault allegedly happened on the day of the court proceedings. The scribe has arranged the record conceptually, dividing it into the two separate claims, rather than writing a narrative. We cannot be certain of the chronology, but it seems likely that the chain of events was as follows: Shukr encountered Shaʿbān in the street earlier that day, having not seen him since the time of the alleged theft. Enraged, he attacked him, but bystanders intervened and took the pair to the nearest qāḍī, to whom both explained their stories.
Although the record is presented as a single case, from a procedural standpoint the judge treated each claim separately. Shaʿbān denied Shukr’s claim of theft and asked Shukur to produce evidence, which he could not. At that point, Shukr could have demanded that Shaʿbān swear an oath, but he declined to do so. Shukr then denied Shaʿbān’s claim of assault and demanded that he produce evidence. Shaʿbān brought two witnesses, whose integrity was confirmed. They testified that Shukr had indeed attacked Shaʿbān, hit him, drawn his weapon, and threatened to kill him. Their testimony was valid and deemed admissible by the judge.
Under the rules of adjudication in Islamic law, Shukr had failed to establish his claim, while Shaʿbān had succeeded in establishing his. If the case had proceeded to judgment, on the one hand Shaʿbān would have been able to demand either compensation or retaliation in kind for any bodily injury he had suffered, and could have possibly also demanded taʿzīr (discretionary) punishment for Shukr. On the other hand, Shukr would have had his claim for theft thrown out and been unable to demand any restitution. Instead of proceeding to judgment, however, Shukr and Shaʿbān entered mediation.
As is usual in Ottoman court records, the mediation process was not documented: only the resulting agreement was. This agreement is remarkable in how far it deviates from the parties’ rights under adjudication: it is almost a complete reversal. The litigants agreed that Shaʿbān would pay Shukr thirty silver niṣf, presumably in compensation for the alleged theft (although the record does not explicitly state this). Shukr waived any further financial claims against Shaʿbān, while Shaʿbān waived any claims of assault against Shukur.
The compensation Shaʿbān agreed to pay to Shukr did not come close to the total value of the goods alleged to have been stolen. Shukr’s original claim was for goods worth sixteen and one-sixth ghirsh, which at the usual exchange rate of 30 silver niṣf to one ghirsh was equal to just over 485 niṣf. However, Shukr had failed to prove his claim of theft, so prior to the ṣulḥ agreement he was legally entitled to nothing at all. Meanwhile, Shaʿbān dropped his claim against Shukr for assault and beating, even though he had already proved it to the satisfaction of the judge.
We can only speculate as to how Shukr achieved this dramatic reversal of fortunes, but some things seem apparent. First, given Shukr’s actions earlier in the day, it seems likely that the implicit threat of further violence hung over the negotiations. Second, given that the outcome deviated so significantly from the parties’ legal rights, it seems likely that the mediator sympathized with Shukr. In common with most Ottoman court records, this record does not identify the mediator. On the assumption that this role was generally assigned to people of above-average social status, he is likely to have felt greater affinity with Shukr. There was a clear status imbalance between the two litigants. Not only was Shaʿbān Shukr’s former servant, but Shukr was also a sayyid. Perhaps the mediator thought that Shukr’s attack on Shaʿbān was a legitimate response to insubordination, despite its illegality. Or perhaps he disapproved of what Shukr had done, but still thought it would be inappropriate to punish him. Whatever the details, some form of social pressure convinced Shaʿbān to waive his legal rights and to pay compensation voluntarily, even though the law did not oblige him to do so. Ṣulḥ was the procedural mechanism that allowed the result of the court case to deviate so far from the outcome that adjudication would have produced.
Modern historians of the Ottoman Empire have paid more attention to adjudication than to ṣulḥ, partly because the latter process was not documented as clearly by Ottoman court scribes. However, ṣulḥ was a critical component of the Ottoman legal system. It was used to resolve a significant proportion of lawsuits: in their quantitative study of a large sample of court records from Kastamonu, Metin Coşgel, and Boğaç Ergene found that 34% were resolved via ṣulḥ.
It is important for historians to try to work around the limitations of the sources to provide a fuller account of the ṣulḥ process and its place in the justice system. This case suggests that ṣulḥ was at the heart of two phenomena observed by historians of Ottoman law. The first is that the justice provided by the courts was heavily inflected by status and class: in other words, that elites enjoyed a distinct advantage over their social inferiors. While the procedures of adjudication were relatively egalitarian, the unstructured ṣulḥ process allowed greater weight to be given to the voice and interests of an elite litigant. It required the consent of his or her opponent, but the social pressure to agree to ṣulḥ may have been significant. The second phenomenon is the fact that Ottoman courts accommodated the norms and expectations of the local communities they served. Sometimes, the mechanism for accommodation was recognition of customary law (ʿāda or ʿurf), but the court records usually refer to customary law only in certain contexts (e.g., the regulation of artisanal trades). Ṣulḥ was another such mechanism: it allowed an outcome that was legally correct but seen as unfair to be adjusted to meet local ethical and cultural expectations. In the case of Shukr v. Shaʿbān, it appears that the mediator saw an elite man’s act of violence as justified, or mitigated, by norms of social hierarchy and vengeance.
 On ṣulḥ see Aida Othman, “And Amicable Settlement is Best: Ṣulḥ and Dispute Resolution in Islamic Law,” Arab Law Quarterly 21 (2007), 64–90. For studies of ṣulḥ in the Ottoman Empire see Işık Tamdoğan, “Sulh and the 18th Century Ottoman Courts of Üsküdar and Adana,” Islamic Law and Society 15 (2008), 55–83; Boğaç Ergene, “Why did Ümmü Gülsüm go to Court? Ottoman Legal Practice between History and Anthropology,” Islamic Law and Society 17 (2010), 215–44; James E. Baldwin, Islamic Law and Empire in Ottoman Cairo (Edinburgh: Edinburgh University Press, 2017), 49–54, 124–35.
 This transcription follows the Arabic orthography typical in seventeenth-century court records in omitting the letter hamza in most situations. Otherwise, the document’s spelling and diacritics have been regularized.
 The standard litigation procedure in Islamic law is as follows: if the defendant denies the plaintiff’s claim, the plaintiff is required to produce evidence. If the plaintiff cannot, he or she can require the defendant to swear an oath. If the defendant takes the oath, the plaintiff’s claim is dismissed. For an overview of procedure see Joseph Schacht, An Introduction to Islamic Law (Oxford: Oxford University Press, 1982), 188–98.
 A witness’s testimony was only valid if the witness was a person of integrity (ʿadāla). The witness’s integrity through a process called taʿdīl or tazkiya: the qāḍī asked the opinion of further witnesses, whom he already knew to be honest.
 The court witnesses were employees of the court who observed proceedings and testified to their validity, signing off on each entry in the court register and on each document issued by the court. On the role of court witnesses in Ottoman Cairo, see ʿAbd al-Rāziq Ibrāhīm ʿĪṣā, Tārīkh al-qaḍāʾ fī Miṣr al-ʿUthmāniyya, 1517-1798 (Cairo: al-Hayʾa al-Miṣriyya al-ʿĀma, 1998), 301–10.
 Taʿzīr was punishment at the discretion of the qāḍī, and could be imposed for many different offenses. The fiqh (legal) literature allowed qāḍīs to impose a wide variety of punishments as taʿzīr, including various kinds of corporal punishment and public admonishment. In the early modern Ottoman Empire, taʿzīr usually consisted of whipping. On the concept of taʿzīr see Rudolph Peters, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-First Century (Cambridge: Cambridge University Press, 2005), 65–68; Intisar Rabb, Doubt in Islamic Law: A History of Legal Maxims, Interpretation and Islamic Criminal Law (New York: Cambridge University Press, 2015), 35–39.
 The judge may have encouraged them to do so: Islamic jurisprudence considered mediation preferable to adjudication and urged judges to use it whenever possible. See Othman, “And Amicable Settlement,” 73–80.
 The title sayyid indicated descent from the Prophet Muḥammad. Sayyids formed an elite class in Ottoman cities; for Cairo see Michael Winter, Egyptian Society under Ottoman Rule, 1517-1798 (London: Routledge, 1992), 179–92.
 Ergene, “Why did Ümmü Gülsüm,” 223–7.
 Metin Coşgel & Boğaç Ergene, The Economics of Ottoman Justice: Settlement and Trial in the Sharia Courts (Cambridge: Cambridge University Press, 2016), 167–69. Coşgel & Ergene used a sample of 1293 lawsuits dated between 1684 and 1790.
 See Coşgel & Ergene, Economics, 164–209, 252–319; Boğaç Ergene, Local Court, Provincial Society and Justice in the Ottoman Empire: Legal Practice and Dispute Resolution in Çankırı and Kastamonu, 1652-1744 (Leiden: Brill, 2003) 66–75; Hülya Canbakal, Society and Politics in an Ottoman Town: ʿAyntāb in the Seventeeth Century (Leiden: Brill, 2006), 123–49.
 Or rather, it was egalitarian within the category of free adult Muslim men: slaves, minors, non-Muslims, and women were disadvantaged in various ways.