By Omar Farahat
This is the second of two posts that discuss sixteenth-century Egyptian Ottoman court records. In the first post, I offered translations of three decisions and briefly explained their context. In this post, I provide some reflections on the structure of those records and its implications.
The structure of a court judgment typically reflects the function of the court and judge and their logic of operation. Ottoman court records have enjoyed much scholarly attention as a source of knowledge about the social and historical contexts in which they operated.[1] This post, by contrast, focuses on their linguistic structure and what it could tell us about the role of the judge. These records reveal a conception of the court as a place within which disputes are balanced according to the authoritative system of the sharīʿa.[2] The initiation of the litigation proceeding was an action that disturbed the social equilibrium, and the adversarial process in which the judge played the role of both facilitator and locus of authority was designed to carefully restore this equilibrium.
All records, whether or not involving litigation, are invariably presented as a single long sentence.[3] The structure of the records that involve litigation is particularly designed to logically articulate the unfolding of the proceedings in a clear and concise manner. In this long sentence that summarizes the details of the proceedings, there are always a number of key verbs that appear in more or less predictable places and reflect the judicial actions made by the parties involved. Those action verbs vary in their voice and substance, but all are in the past tense. In principle, claims, counter-claims, and judicial orders are expressed in the active voice, except when it is an action so routinely done by the judge that his name need not be mentioned, such as asking the defendant to respond to the initial accusation, or asking the plaintiff for evidence supporting his or her claim. The employment and distribution of those verbs highlights the structure of the court proceeding in a way that illustrates the constant actions aimed to disturb and reinstate the social equilibrium that the court proceeding represents. In other words, each verb represents an action that attempts to tip the scale in one direction or another, with the judge pushing towards finding a state of equilibrium, which in some cases requires the intervention of his coercive powers.
The first verb almost invariably describes the action initiating the proceeding before the judge, and, therefore, virtually all of the records involving an active litigation include the verb “to claim” (iddaʿā or iddaʿat) in their first line or two. The second important verb usually concerns the nature of the plaintiff’s demands, for it is not sufficient to simply claim a certain state of affairs, but the plaintiff is also expected to make a specific request. The most common verb used in this context is “to request” or “to demand” (ṭālaba). A clear sign that procedures are primarily constituted of the actions of the disputants is that the claimant always has to make a specific claim, followed by a response or counterclaim. Typically, the claim in its narrow sense would consist of a narrative that traces the history of the emergence of the plaintiff’s alleged right(s).[4] Also, the claimant is often careful to mention that the defendant owns sufficient funds, or, in the case of an heir, that she has legally acquired the inheritance in question. Upon making this claim, the plaintiff demands the right in question, and often the record goes as far as mentioning that the plaintiff “requested that the judge ask the defendant about that [matter].”[5] Claims pertaining to monetary rights are complex in nature, since they are, in themselves, subject to dispute on two levels: (1) the existence of the right; and (2) the satisfaction of the right. The very fact of bringing a claim to demand the satisfaction of a right presumes that the plaintiff claims the existence of a right and denies its satisfaction. These assumptions play an important role in determining the dynamics of provision of evidence. Another claim that can be built into the claimant’s demands is the validity of legal representation. In some instances, the defendant will admit the existence and lack of satisfaction of the right in question but will demand proof of the fact that the claimant has the appropriate legal capacity.[6]
After the claim(s) and demand(s) are made, the judicial action moves temporarily to the judge, who has to give the defendant a chance to respond. The judge’s role is usually mentioned in the passive voice “hence (s)he was asked [about those allegations]”[7] (fa-su’ila(t)). As a rule, when someone is referred to with a pronoun without explanation, this is understood as a reference to the judge. Then the defendant’s response or counterclaim, as the case may be, is described in the active voice. This, in most cases, consists of requesting that the plaintiff provide proof, or make a different allegation. “Asking to provide proof,” of course, implies denial, which is crucial, since this is the point at which the process becomes a litigation in the proper sense. Given its obviousness, “he denied” (ankara(t)/ ajāba(t) bi l-inkār) is not always mentioned, since it is implied by the request of proof from the claimant. It must be noted also that request of evidence can be general (e.g., ṭalaba l-bayān) or specific.[8]
A more unique type of counterclaim, from which follows a unique kind of testimony, pertains to the state of legal majority of the plaintiff. In a somewhat unusual case, Muḥammad b. Qāsim al-Andalusī al-Ḥāyik filed a complaint against his own mother who had up to this point been managing his share of his father’s inheritance. His claim solely aimed to establish the fact that he had reached the age of legal capacity: “balagha rashīdan ṣāliḥan li-dīnihi wa dunyāh (he has emerged as an adult fit for matters of life and religion.)”[9] In that case, two male witnesses were brought to testify that they knew the son in question, and that he is in fact a righteous adult fit for matters of life and religion. The decision in that case was limited to a declaration of legal capacity, with no mention of financial effects since those were not raised by either party.[10] As we can see, the judge does not attempt to take initiative even with regards to the most obvious legal consequences, but merely offers litigants an arena of authority within which their claims are balanced, until his decisive action is required to finally redress an imbalance.
After contestation/demand of evidence, the judge’s passive voice returns in order to re-direct the proceeding towards the plaintiff, “thus proof has been requested [from the plaintiff]” (ṭuliba minhu(ha) l-bayān).[11] At this point, the proceedings have gone full circle, from the plaintiff’s claim and request, to the defendant’s response, and back to the plaintiff for evidence. If, however, the respondent’s counterclaim is a matter that requires evidence, the proceeding will be reversed: the plaintiff will be asked to respond and, in case of denial, evidence will be requested from the defendant.
After the initial back-and-forth between plaintiff and defendant, the proceedings become less predictable, since from this point on, all depends on the kinds of proofs and counterclaims that are provided, if any. The typical conclusion of a case takes place with a decisive action of the judge, always in the active tense, usually accompanied by honorific expressions in relation to the judge, such as “may God protect him” or an equivalent phrase. This decisive action is typically the pronouncement of a judgment (in the form “has decided”, ḥakama)[12] but it can also consist of issuing a command (amara amran shar‘iyyan),[13] or just amara.[14] Amr and ḥukm appear to be technically different, since amr is the action by virtue of which the judge requires performance by one of the parties, whereas ḥukm is a declaration backed by the authority of the sharī‘a that a given right is existent. Thus, in some cases the judge is said to have “resolved and commanded” (ḥakama wa amara),[15] although in some instances one or the other is omitted.
The judge does not merely grant the claim, but rules a given party to be entitled to a given property, specifies the property from which payment is to be made (e.g., min mukhallafāt al-mutawaffā al-madhkūr (from the inheritance of the deceased in question), and declares the defendant devoid of excuse (dāfi‘) or counter-claim (maṭʿan).[16] In certain cases, performance of the right in question in compliance with the court decision is noted in the record.[17] In other instances, post-judgment compliance is recorded as follows “the said claimant received (qabaḍa) in the legal way (qabḍan shar‘iyyan) from the above-mentioned defendant, the above claimed amount […] in presence and inspection (bi l-ḥaḍra wa l-muʿāyanah), nothing was paid in excess and nothing was left unpaid.”[18] This admission of performance would also include a final legal confirmation (taṣḍīq) by the claimant which would render satisfaction of the right an established legal fact.[19] In successful cases in which the demand does not concern the payment of a sum of money, the judge’s resolution may consist of a command to perform the action demanded by the claimant. For instance, in disputes that involve rights over an inheritance, the judgment may consist of an order to allow the claimant to manage the inheritance in question in place of the defendant.[20]
The conclusion of the case does not always proceed from a decisive judicial action but could emerge from an understanding between the parties. For instance, in one case, after the defendant denied the claim that he had co-signed a third-party obligation towards the plaintiff, this latter decided to release the defendant (faragha minhu) and to substitute him with another guarantor (istabdalahu). In that scenario, the judge, rather than intervene to rule the claim valid or invalid, rules the “legal” (sharʿī) transaction that took place before him (ladayhi) in force and witnesses its validity as of the date in question.[21] In cases in which one of the parties concedes to the other, which technically ends the contentious nature of the process, and the judge’s role becomes one of confirmation and documentation, rather than management of a dispute. In that case all that the judge needs to do is simply “witness” (ishhād) the resolution of the dispute. Of course, this witnessing is, in itself an act of registration and validation of such resolution. In rare cases, the same record would mention an active dispute that is resolved by a judicial action of the judge, immediately followed by the amicable resolution of another dispute between the same parties that is recorded and approved by the judge.
Overall those records portray the sharīʿa court as a venue of social power that functions within a web of social relations and expectations. However, as can be seen in the translated examples, the judge was not simply and systematically attempting to push people back into their communities,[22] since in order for that to be the case the court would have to be conceived of as existing outside of the realm of social relationships. Rather, the court offered litigants a venue, well-integrated into the social order, that allows for the management of ruptures in the social balance, which, when required, could lead to the coercive intervention of the court’s apparatus.
Notes:
[1] For example, Leslie P Peirce, Morality Tales Law and Gender in the Ottoman Court of Aintab (Berkeley: University of California Press, 2003); Charles L. Wilkins, Forging Urban Solidarities: Ottoman Aleppo 1640-1700 (Leiden: Brill, 2010); Women and the City, Women in the City: A Gendered Perspective to Ottoman Urban History, ed. Nazan Maksudyan (New York: Berghahn Books, 2014).
[2] ʿAbd al-Raḥīm ʿAbd al-Raḥmān, Wathāʼiq al-maḥākim al-sharʻiyya al-Miṣriyya ʻan al-jāliya al-Maghāribiyya ibbān al-ʿaṣr al-ʿUthmānī, 4 vols. (Zaghwan: Markaz al-Dirāsāt wa-al-Buḥūth al-ʻUthmānīyah wa-al-Mūrīskīyah wa-al-Tawthīq wa-al-Maʻlūmāt, 1992-2004).
[3] The single-sentence format is also familiar in civil law systems, including many Arab countries, having root in French court judgment forms. See Catherine Elliott, Eric Jeanpierre and Catherine Vernon, French Legal System, 2nd ed. (Pearson, 2006), 158.
[4] See note 2 above, vol. 1:20, 21. See also 1:152.
[5] Ibid., 1:16.
[6] Ibid., 1:44.
[7] Ibid., 1:62.
[8] Ibid., 1:62.
[9] Ibid., 1:83.
[10] Ibid., 1:83.
[11] Ibid., 1:16, 40.
[12] Ibid., 1:21.
[13] Ibid., 1:40.
[14] Ibid., 1:19.
[15] Ibid., 1:44.
[16] Ibid., 1:19.
[17] Ibid.
[18] Ibid., 1:71.
[19] Ibid. 1:70.
[20] Ibid., 1:81.
[21] Ibid., 1:21.
[22] Lawrence Rosen, The Justice of Islam: Comparative Perspectives on Islamic Law and Society (Oxford; New York: Oxford University Press, 2000), 39.