Jurisdiction over Germination

By Omar Khaled Abdel-Ghaffar

This post is part of the Digital Islamic Law Lab (DILL) series, in which a Harvard student analyzes a primary source of Islamic law, previously workshopped in the DIL Lab.


Qalqashandī’s rendering in ​Ṣubḥ al-Aʿshā of an earlier decree for the appointment of a Ḥanbalī judge provides important insights into the quadripartite judiciary of the Mamlūk sultanate. The piece demonstrates how the position of the Ḥanbalī ​madhhab was rather polemical, being the smallest, poorest, and most recent of the four main schools of Sunnī law. This post explores these tensions as articulated in the appointment decrees, as well as the implications of one of the points of law in which the Ḥanbalī judge was expected to specialize, namely the conditions of the sharecropping contract.

The text in question probably dates to the 14th (C.E.) century, and is a model designed for aspiring scribes. The text articulates a sultanic decree of appointment of a Ḥanbalī judge, and outlines various points that the Sultan expects the judge to adjudicate according to his school’s rulings. I focus on the significance of one point in particular: that of sharecropping.


I will present the content of a declaration of appointment of a Mamlūk era (1250-1517) Ḥanbalī judge and explain how the declaration clarifies the position of Ḥanbalī fiqh​ in the Mamlūk legal system. I argue that Ḥanbalī jurisdiction over agricultural law, as articulated in the passage, ties the interests of the Sultan with those of the sharecropper, placing the landowner at a position of relative disadvantage. Ḥanbalī fiqh​ occupied an important role in rural Mamlūk law despite the explicitly small number of ​waqfs (charitable trusts). The school’s stance on sharecropping diffused the power of land-owning officials in favor of both the sharecropper and the Sultan. This decree indicates that the Ḥanbalī judge had special jurisdiction over matters related to sharecropping contracts, a position I argue protects the Sultan from overly ambitious military officials by granting sharecropping farmers mobility and a degree of independence.

I will first present background information regarding Qalqashandī’s larger text where this contract appears. Then, I will explore the wording of the appointment decree, highlighting how the text demonstrates a tension between sultanic authority and the position of the judge. Finally, I will point out where the decree places sharecropping contracts under the jurisdiction of the Ḥanbalī judge, and argue that the (at that time) unique Ḥanbalī ruling allowing sharecroppers to own the seeds in a sharecropping contract made the Ḥanbalī judge an important albeit unpopular figure for the Sultan in his effort to maintain his domain over the kingdom.

Background on the Text

Shihāb al-Dīn Aḥmad b. ‘Alī al-Qalqashandī al-Fazārī’s (d. 821/1418) magnum opus, Ṣubḥ al-Aʿshā fī Ṣināʿat al-Inshā (Daybreak for the Night-Blind in the Craft of Chancery, completed 1412), was originally a seven-volume work of the ​adab al-kātib​ genre, a genre written by and for premodern Arabic-speaking bureaucrats seeking to master the craft of chancery. Throughout the book, Qalqashandī presents various contracts, correspondences, and appointment letters which he finds to be exemplary.

Qalqashandī takes the selection in question from ​Kitāb al-Taʿrīf bi’l muṣṭalaḥ al-sharīf by Shihāb al-Dīn Aḥmad b. Faḍl Allāh al-ʿ​Umarī (d. 1349).[1] Al-ʿUmarī, like al-Qalqashandī, was a Mamlūk administrator whose work also offers instructions on the drafting of chancery documents. The text is a formulary model for a judge’s ​wāṣiyya, a “recommendation of appointment.” Al-ʿUmarī begins with a generic formula, and recommends that a different ending be used for the appointment of a judge from each ​madhhab​, each culmination adding points specific to the various schools of law.

The Decree Appointing a Ḥanbalī Judge

The ending recommended for the Ḥanbalī judge is mentioned last. It opens almost aggressively; there is an extended warning for the judge on points of mainstream Sunnī creed that early Ḥanbalī scholars deviated from. The tension is articulated clearly: the scribe is instructed to write that anyone who gives voice (​ṣawt) to such opinions will be met with the whip (​sawṭ). The judge is advised to adhere strictly to the authentic (​ṣaḥīḥ) narrations of Imām Ibn Ḥanbal and his associates (aṣḥābih) and to not venture into opinions of scholars seen as unconventional or disreputable. Ironically, while praising Ibn Ḥanbal and his illustrious students, the secretary is instructed to mention the whip of the ‘Abbāsid Caliph al-Mu​ʿ​taṣim, under which the Imām famously suffered. Only a few lines separate the whip threatening an unconventional Ḥanbalī judge from the whip which actually tormented the eponymous saint. The text is therefore explicit that the relationship between the body of the Ḥanbalī scholar and the person of the executive has been—and may continue to be—tumultuous.

The Sharecropping Contract in the Appointment Decree

The secretary then begins listing the points on which the judge is to take special care, including affairs regarding ​waqf​ trusts and the case of the abandoned wife. The judge is instructed to give verdicts in accordance with the rulings that are agreed upon in the ​madhhab​ on each issue. The very last point upon which he is instructed is:

المعاملة التي لولا الرخصة عندهم فیها لما اكل اكثر الناس الا الحرام المحض ولا اخذ قسم الغلال و المعامل هو الذي یزرع البذور و یحرث الارض

“Al-mu​ʿ​āmala allatī lawlā al-rukhṣa ʿi​ndahum fīhā lamā akala akthar al-nās illā al-ḥarām al-maḥḍ, wa-lā ukhidha qism al-ghilāl wal-muʿ​āmil huwa alladhī yazra​ʿ​ al-budhūr wa yaḥrith al-arḍ”

“[On t]he conduct which, without the dispensation presented by them [i.e., the Ḥanbalī jurists], would have caused most people to consume food that is outright prohibited, and would have prevented them from partaking in the harvest. The conduct [refers to] the laborer who plants seeds and tills land.”

Of the predominant opinions within the four schools of law at the time, the most laxity with regard to the terms of the sharecropping contract could be found in the Ḥanbalī school. Their stance was one that gave unique flexibility to the sharecroppers and therefore denied certain prerogatives to the landowners. Although a comparative study of terms of sharecropping is beyond the scope of this post, suffice it to say that what distinguished the Ḥanbalīs from the Ḥanafīs (the second most lenient school on the issue) was that Ḥanbalīs permitted the sharecropper to own the seeds himself. By entrusting the questions of sharecropping to the Ḥanbalī judge and mentioning explicitly the position of the seeds, the Sultan ensured that sharecroppers would enter into contracts where they themselves owned the seeds.


The Ḥanbalī allowance distances land owners from the harvest and places the sharecropper at a relative advantage in comparison to his potential position under the Ḥanafī ruling. This advantage comes at a cost to the landowner because, under the Ḥanbalī ruling, the sharecropper is a partner rather than a peasant: his right to the harvest is both a function of his labor and of his ownership of the seeds. The landowner, then, is not simply purchasing the labor of the sharecropper by giving the latter part of the harvest, nor can he replace the sharecropper with privately owned labor; the landowner enters into a cooperative with the laborer, one where the sharecropper is needed for his seeds as well as his labor.

On the surface level, the Ḥanbalī ruling seems to only govern the relationship between the landowner and the sharecropper, but the ruling also governs the relationship between the landowner and the Sultan himself. Qalqashandī does not go into great detail regarding the implications of this ruling in terms of agricultural power structures, but we can extrapolate that such a ruling may have been connected to attempts at diffusing the power of Mamlūk amīrs holding large land grants by giving sharecroppers increased mobility and independence. The landowner in cases regulated by such rulings needed to convince sharecroppers to tend his land. The extralegal taxes that Mamlūk amīrs levied on their peasants, taxes that characterized agricultural relations prior to the 14th century (C.E.) cadastral surveys, would not be helpful in such an endeavor.[2] As such, though the Sultan may have been using the Ḥanbalī ruling to confirm a common practice, he was also checking the monetary power of his amīrs. Through this decree, the Sultan bolstered his own authority, forming a connection between the rights of sharecroppers and his own authority as Sultan. By giving the sharecroppers this flexibility, the Sultan prevented his amīrs from taxing them illegally, thereby closing off all potential funds that were not directly tied to his person.

The text also has an anthropological implication: that the secretary is to write that “most people” (presumably most residents in the realm) would be consuming ​ḥarām harvests means that farmers predominantly owned the seeds of the crops that they farmed, or else some other term would have been used. The indication of the majority of people (​akthar al-nās​) probably means that most people in the realm consumed and were sustained by crops produced by sharecroppers who owned their own seeds. Methods of production in the Mamlūk realm have implications not only for the Mamlūk realm, but Mediterranean and global trends of consumption at the time: a large portion of the Fertile Crescent lay under Mamlūk rule—the entire Nile Delta, as well as large portions of the Tigris-Euphrates basin were under Mamlūk suzerainty up until the early 16th century (C.E.), not to mention the famous wheat fields west of Alexandria. It is highly probable therefore that as far north and west as Venice, people were eating bread cultivated by sharecroppers who owned their own seeds.


The section again closes ominously: although each judge is reminded to look after traveling scholars who stop in his jurisdiction, a unique line is placed for the Ḥanbalī judge: “the jurists of your school are exceptionally poor, due to the weakness of the charitable trusts [providing for them], for they are as light as lances ready to be flung…” The Sultan thus is reminding the judge that, unlike other schools, the judge does not have wealth that would allow him to be too haughty; a reminder again clarified through threats of physical violence, though this time metaphorically.

The Ḥanbalī madhhab,​ which is clearly unpopular amongst the sultans, wealthy donors, and the population at large, never gained the following that the Shāfi​ʿī​ or Ḥanafī madhhabs​ did. However, it seems to have been responsible for the nourishment and stability of the entire Sultanate. As I have demonstrated above, the flexibility provided by Ḥanbalī opinions on sharecropping allowed for greater mobility on the part of sharecroppers. This constrained land-owning ​amīrs​, thereby ensuring sultanic authority by closing off extralegal sources of revenue. In doing so, the Ḥanbalī ruling helped curb the rise of rival amīrs, potentially aiding in the centralization of authority in Mamlūk realms.


[1] Abul Abbās Qalqashandī, Ṣ​ubḥ al-aʿshā fī ṣināʿat al-inshā, vol. 11, (Cairo: Dār al Kutub, 1922), 196.

[2] Bilal Ibrahim, “Beyond State and Peasant: The Egalitarian Import of Juristic Revisions of Agrarian and Administrative Contracts in the Early Mamlūk Period,” ​Islamic Law and Society 16, no. 3/4 (2009): 337–82.

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