Commentary :: Let’s Lose Lawyers (2-4)

At the end of the last post we met the negotiorum gestor, an administrator of the business of another, even without any mandate from the principal. The argument for this and for the more recognizable representative, who receives an explicit appointment by the principal, we learn (from Ulpian), was made from “necessity.”  In the Digest, we read:

1 ULPIAN, Edict, Book 9: A procurator is one who transacts the business of another on a mandatefrom his principal. 1. A procurator may have been appointed either for all his principal’s business or only for one item of it, either in his principal’s presence or by message or by letter; although certain people, as Pomponius writes in his twenty-fourth book, do not consider that a person taking on a mandate for only one item of business is a procurator, just as a man who has undertaken to convey a thing or to convey a letter or message is not properly called a procurator either. But it is more reasonable to consider a person appointed for one piece of business only as also a procurator. 2. A procurator is a very necessary institution for enabling those who will not or cannot look after their own affairs to sue or be taken to court through the agency of others. 3. A procurator can be appointed even in his absence (emphasis added).[1]

Historians dedicated to the study of Roman law will indicate at every other turn in their presentation that there is a lot that they don’t know. (Of course, I know less than all of them.)  On the question of litigation, in particular, and procedure in general, Ernest Metzger has it that: “Our understanding of Roman procedure relies on diverse sources, none of which is satisfactory on its own, and even taken together are only adequate.”[2]

Then comes his explanation of how deep the problem is: “The Romans did not reflect on their procedural law the way they reflected on their private law. They did not linger over modes of pleading or representation.  If a rule of procedure was unfair or inappropriate, it was mended without a view to the system of litigation as a whole.”[3] The rules kept changing, and not all changes are recorded—is a short and sweet way of putting it.

The Romans are not alone in allowing legal representation of these two types: mandated and un-mandated.  In medieval Islam, legal representatives came in diverse shapes and manners in a variety of cities, towns and countries; they were presumed, in many cases, to be technically savvy, and in any case, to have the interest of the principal as a guide, but they were not professional lawyers in any sense. The representative may be authorized or unauthorized (wakīlfuḍūlī), a slave representing his master in a market dealing (‘abd ma’dhūn), who could (in theory) be male or female and (in both theory and practice) Muslim or non-Muslim,[4] or a relative representing a family member in a nuptial or a criminal matter (walī al-nikāḥwalī al-damm‘āqil).[5] In both systems, one may simply represent another, in contracts and court appearances, even without being authorized to do so by the principal—doing in some cases the work of a Good Samaritan.


The standard lawyer in Kufa in Iraq, in the 1st/7th and 2nd/8th centuries, let’s remember, is a jurist. Kufa had its share of these practicing jurists (judges and professors of law), including Shurayḥ b. al-Ḥārith (d. 80/699), al-Nu‘mān b. Thabit (better known as Abū Ḥanīfa, d. 150/767), and Muḥammad b. al-Ḥasan al-Shaybānī (d. 189/805). The latter, Shaybānī wrote fifty-seven tracts, documenting his legal views and those of his teachers, known collectively as al-Mabsūṭ or al-Aṣl. Of these, no single tract or chapter, is dedicated to faḍāla, or unauthorized acts on behalf of the absent, as was the case in the Ulpian’s Digest. However, questions of faḍāla appear in the laws governing sales, rentals, marriage contracts, and even the exaction of punishment on behalf of a victim’s family.

The fuḍūlī is a legal agent missing either anyor explicit“instruction to represent” by the absentee principle. An appointed agent may also be missing “detailed instruction” as to how to represent the absentee principle. In the Chapter on ‘Currency Exchange,’[6] Shaybānī addresses the case of a market-agent who was asked in Kufa to exchange currency without specifying a desirable currency market in which the exchange should be done (the principal’s desire was not clear). This exchange is valid, Shaybānī rules, whether done in nearby Ḥirāʾ (a few miles away) or all the way in al-Baṣrah (close to 300 miles away) or even in Damascus (c. 600 miles) or Mecca (c. 1,000 miles).[7] In this case, we see that some agreements, while sustaining a degree of vagueness, must be enforced with reference to a type of common sense. The distant markets may operate on different standards, but these standards are presumed, in principle, to be intelligible to traders from surrounding lands.

One extraordinary element of wakāla, acting via an agent, in 2nd/8th century Iraqi society, emerges in the area of criminal law.  Criminal law, to us, may be the “most public” of all public law.  Enforcement of the criminal punishments is the fundamental responsibility of the state. The state, as Max Weber would have it, is the only entity that can render legitimate violence. In Arabian society, long before Islam, custom had it, it seems, that the purpose of “retaliation” was settling disputes after crime. Retaliation (qiṣāṣ) applied in all attacks on the body leading to harm, from a slap on the face to murder. And the family, clan or tribe had the jurisdiction over this.

Ancient Roman legal texts describe a similar circumstance. Ulpian states:

8 ULPIAN, Edict, book 8: A son-in-power [i.e., the manager of family affairs, who is the son of the father in the household] can also appoint a procurator for any action which he has the right to bring himself, and not just a son with a military peculium, but also any son-in-power. For example, if he has suffered insult, he will appoint one for an action for insult if it so happens that his father is away and his father’s procurator refuses to go to court; and this appointment of a procurator by a son-in-power himself will bein accordance with the law. Julian goes further than this and writes that if insult should be committed against a son-in-power, himself a father, by way of his own son, who is still in the same power and the grandfather is away, the father is able to appoint a procurator to exact retribution for the insult which the grandson of the absent man has suffered. A son-in-power will also be able to appoint a procurator to defend a case. Furthermore, a daughter-in-power will also be able to appoint a procurator for an action for insult.  As regards her appointing, in conjunction with her father, a procurator to exact payment of her dowry, Valerius Severus writes that it is needless since it is enough for her father to appoint in accordance with her wishes. But in my opinion, if her father happens to be away or of doubtful character, in a case where an action on dowry is usually available to a daughter, she can appoint a procurator. A son can also himself be appointed procurator both for prosecution and defense. (emphasis added).[8]

For Shaybānī, the son of a murdered victim may assign another the task of gathering evidence of the culpability of the murderer, but the same wakīl (the one to which gathering evidence was assigned) cannot simultaneously be charged with exacting the punishment on behalf of the victim’s son. The victim’s son must attend the retaliation. The victim’s agent retains the right to forgive the killer or to accept blood-money, which are two other options besides retaliation.[9]

Another, deceptively extraordinary instance of representation for legal purposes is slaves’ representing their masters. This is what, I think, became the ideal type of a legal agent. These slaves’ representation of their masters in the market spills over into a broad array of representation. Slave market-agents, as they manage large holdings, can appoint their own agents.  (I will call these first and second agents.) This condition leads to many dilemmas: e.g., whether the second agent is automatically dismissed upon the dismissal of the first.

Old precedents may indicate that this institution started shyly, and clever masters attempted to have it both ways, using their savvy slaves as business-agents then trying to get out of court rulings that didn’t suit them by claiming their slaves were not properly authorized. In the Chapter on “Slave Market Agents” (al-‘abd al ma’dhūn lahu bi-l-tijāra,), Kufa’s judge Shurayḥ b. al-Ḥārith affirmed a slave’s representation of his master, despite the master’s protestation that his slave lacked autonomous legal action (fa-qāla al-rajulu ‘abdī mahjurun ‘alayhi), after two upright witnesses testified that this master admitted his slave as his market manager in prior dealings.[10] Once a business manager, the slave could not be cancelled as the master’s representative when the latter didn’t like the results of the deal (or, if executed in a court, the decision in the case). Your representative may handle one case well and another case badly, but you can’t come back and question your representative’s authorization to represent you because you consider what they did as disadvantageous to you.

Where did Muslim jurists get the slave agent? Not clear to me. The Romans seemed to think of the slave as more or less a liability within the family, although one stunning discussion concerns whether a runaway slave who is elected prefect (governor, mayor) is duly elected, and the dominant view is that he is. [11] But in standard cases, slaves are ‘weak members’ of the family. They are either defeated enemies, criminals, or poor Romans who sold themselves into slavery with the hope of using their price in part or in full toward some kind of benefit. The status of slavery is then inherited by the slave’s progeny, which raises further complications to which we need not attend here. Here is the Digest, again:

3. GAIUS, Institutes, book 1: Certainly, the great divide in the law of persons is this: all men are either free men or slaves.

4. FLORENTINUS Institutes, book 9: Freedom is one’s natural power of doing what one pleases, save insofar as it is ruled out either by coercion or by law. 1. Slavery is an institution of the jus gentium, whereby someone is against nature made subject to the ownership of another .2. Slaves (semi) are so-called, because generals have a custom of selling their prisoners and thereby preserving rather than killing them: and indeed they are said to be mancipia, because they are captives in the hand (manus) of their enemies.

5. MARCIAN, Institutes, book 1: Of slaves, to be sure, there is but a single condition; of free men, on the other hand, some are freeborn (ingenui) and some are freed-men. 1. People are brought under our power as slaves either by the civil law or by the jus gentium. This happens by civil law if someone over twenty years of age allows himself to be sold with a view to sharing in the price. By the jus gentium, people become slaves on being captured by enemies or by birth to a female slave (emphasis added).[12]

The remaining two posts will take us, via cases and scenarios, toward an understanding of the task of the legal representative, whose ideal-type is the slave market-agent.


Notes to part 2:

[1] The Digest 3, 3, 1, 1-3.  That is Book 3, Title (Chapter) 3, Section 3, Subsections 1-3.  See notes 3, 4 and 5 in Post 1.

[2] Ernest Metzger, Litigation, in The Cambridge Companion to Roman Law272 (David Johnston ed., 2015) (footnote omitted).

[3] Id. (footnote omitted).

[4] M.b.H. Shaybānī, Al-Mabsut/Al-Asl vol. XI, at 376-382, 381(Qatar Religious Endowments Ministry/Ibn Hazm Publications ed. 2012) (c. 804-805).

[5] The authorized agent is a wakīl, the unauthorized or emergency representative, fuḍūlī; a slave representing his master in a market dealing is ‘abd ma’dhūn; a relative representing a family member in a marital, inheritance or a criminal matter is walī al-nikāḥwalī al-damm, and ‘āqil,respectively.

[6] See Shaybānī, vol. III, supra note 4, at 5-131 (on Kitab al-Sarf, whose opening pages are found at the tail of vol. II).

[7] Shaybānī, vol. III, supra note 4, at 88-89.

[8] The Digest 3, 3, 8.  That is Book 3, Title (Chapter) 3, Section 8.

[9] Shaybānī, vol. VII, supra note 4, at 5-6.

[10] Shaybānī, vol. VIII, supra note 4, at 495.

[11] The Digest, 1, 14, 1-3.

[12] The Digest,1, 5, 3-5.

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