By Carl F. Petry (Northwestern University)
This essay is part of the Islamic Law Blog’s Roundtable on Islamic Legal History & Historiography, edited by Intisar Rabb (Editor-in-Chief) and Mariam Sheibani (Lead Blog Editor), and introduced with a list of further readings in the short post by Intisar Rabb: “Methods and Meaning in Islamic Law: Introduction.”
The following discussion is guided by questions raised for the Roundtable on the state of the field on methodology in Islamic legal history, convened by the Program in Islamic Law at Harvard Law School:
1) How has the availability of new sources and methods shaped the study of Islamic law and legal history?
2) What is your chosen approach to the historical study of Islamic law, and why?
3) How have critical approaches from other fields in the humanities and social sciences, ranging from gender and feminist studies to critical race theory, informed the study of Islamic law?
1) With regard to sources, my field encompasses textual works compiled by Egyptian and Syrian authors active between ca. 647-8/1250 and 922/1517, when these regions were governed by the Mamlūk Sultanate based in Cairo. Although this period was recognized for its exceptional diversity and sheer quantity of written products initially by the Ottomans in the 10th/16th century (after they occupied the Sultanate and inventoried its archives and libraries), from the latter decades of the 20th century its historiographical corpus has been analyzed from new methodological perspectives. Textual sources include narrative chronicles (upwards of 100 major works, ranging from world histories dating events from Creation to the author’s own time to surveys of specific regions or urban centers that were more chronologically limited), encyclopedias, collections of prose essays and poetry, biographical dictionaries of political and scholarly notables, legal compendia by jurists who affiliated with one of the four schools of Sunnī Sharīʿa, surveys of urban and rural topography, manuals of agronomy, tax registers and cadasters. Over the last several decades these sources have been subjected to quantitative analysis via digitalization and data bases, and interpretation based on theoretical approaches that seek to go beyond tracing literal depiction of events to discern contexts and nuances of the societies in which authors and compilers wrote these depictions. This process has evolved to the extent that “Mamlūk Studies” are now recognized as a distinct sub-field of pre-modern Islamic/Middle Eastern historiography, complete with journals and publication series linked to the period.
Many authors of historiographical texts were magistrates who presided over litigation in Sharīʿa courts or scholars who expounded on jurisprudence in madrasas as stipended instructors. Individuals often combined these principal functions of the civilian elite. Perhaps the most prominent historian of the Mamlūk era, Ibn Khaldūn (d. 808/1406), served as a senior qāḍī of the Mālikī madhhab in Cairo during the final years of his career, which he spent refining his history of the Maghrib (Kitāb al-ʿibar) or the explanatory preamble to it (al-Muqaddima fiʾl-taʾrīkh). Much of the subject matter in the chronicles and manuals of pedagogy they authored was steeped in legal procedure and theory. A substantial percentage of incidents they described involved cases heard in court proceedings. Historiography of the Mamlūk period is therefore rich in material that serves the study of jurisprudence and the politics surrounding law suits and criminal acts. Although not reliable for statistics that formal registers of legal proceedings offer, historical texts provide a substantive foundation for study of juristic practice in theory and the contexts behind several aspects of transgressive behavior (theft, corruption, fraud, vice, heresy and homicide).
2) My own approach to this field involves the study of crime and transgressive behavior, primarily in Cairo and Damascus, seats of the highest civil and military tribunals in the Mamlūk Empire. The chronicle literature compiled by jurists reveals what they thought about crime and how they prioritized its severity. The myriad cases depicted in chronicles of the Mamlūk period provide, in their sum, a gauge of apprehension on their compilers’ part over the threat to public order and security of property posed by groups in society disposed to commit crime and violence (as such a propensity was imagined by those positioned to comment on it). By choices these jurist/chroniclers made about whom they selected for commentary, they were imposing their own indictments about categories of persons most likely to disrupt the established order, menace property holders, inflict bodily harm, impugn accepted practices of religion, or to take life itself. The range of cases and their diversity may be interpreted as a measure of the authors’ priorities on matters of order and security. The categories of crime that figured prominently in historiographical narratives depict activities their authors speculated over the most as contravening public security, violating asset rights, blaspheming against accepted canons of belief, or terminating lives of the innocent (or, by implication, of those who warranted execution). With full acknowledgment of biases arising from the chroniclers’ selectivity of cases, their narration of crimes provides a discourse more nuanced than laconic entries in court registers. The latter’s regularity of coverage is offset by terse factuality and its formulaic template. Many incidents appearing in chronicles, by contrast, are discussed in detail, their circumstances elaborated and motives of defendants and plaintiffs hypothesized. Their authors often identified eyewitnesses, critiqued the credibility of testimony, reflected on political controversies stemming from trial proceedings, and remarked about the severity or leniency of sentencing.
While narrative chronicles are biased toward perspectives of the privileged in society, wielders of power, and agents who manipulated instruments of law enforcement to their own benefit, they sporadically give voice to the marginalized people who committed many crimes. Narrators of criminal activity during the Mamlūk period often conveyed a grudging sense of respect for perpetrators who adroitly pulled off a scheme, hatched an innovative plot, or suffered brutal punishment for behavior deemed deviant or sacrilegious by ʿulamāʾ as self-proclaimed guardians of propriety.
3) Narrative chronicles from the Mamlūk period provide substantive details on women’s deportment and transgressive behavior, depictions of which connote an enhanced degree of effrontery linked to their gender and seductive potential that threatened established behavioral norms (uniformly set by men). Authors focused most frequently on allegations of unsupervised movement or immodest dress worn in public spaces. Natural disasters such as floods or plague epidemics often motivated the ruling authorities to place restrictions on women’s mobility, with the implication that gendered effrontery violated Qurʾānic stipulations (such as 4:34), and provoked Divine retribution. Such restrictive measures were also justified by a perception that sexual temptation by unchaperoned women prompted soldiers to riot or to lose their combat readiness. This apprehension was particularly noticeable in narratives appearing during and after the Ottoman occupation of Cairo in 922/1517. While incidents consistently depicted the subordination of female mobility to patriarchal control, the repeated issuance of proclamations with formulaic phrasing implies that male oversight routinely lapsed and that women were eager to reassert their autonomy of movement and dress. Edicts governing women’s unsupervised visits to mosques, shrines of popular saints, and family tombs reveal the suspicion that women might illicitly tryst with men during their independent forays in public. Since narrative sources were written solely by men, who described court proceedings presided over exclusively by male jurists at all levels, the issue of equity with regard to perspectives must be considered when weighing this category of source as credible evidence for legal procedures involving women. The woman’s viewpoint, either as plaintiff or defendant, victim or perpetrator, is discernible only through a male lens. This is a significant qualification, and one that is rectified to some extent in registers of criminal proceedings from the Ottoman period and later.
The issue of source credibility is of equal, or possibly more, importance when terms indicating ethnic or racial identity linked to women appear in chronicle narratives. The sources are rife with incidents in which these terms appear, but their meanings are often complicated by inexplicit phraseology or hazy contexts. Incidents involving transgressive behavior on the part of female slaves figure prominently in narratives that touch on ethnicity and race. While terms indicating “color” (such as bayḍāʾ or sawdāʾ) appear consistently in references to female slaves, how such terms were interpreted, and what meanings were conveyed by their use is often unclear. Since “whiteness” is often attributed to slaves of Turkic, Circassian or Mediterranean European origins in translations of Mamlūk-era sources, while “blackness” is often generically assumed to designate sub-Saharan African origins, more nuanced distinctions between these categories implied by contemporary authors are difficult to interpret. For example, the chronicler of the late Mamlūk period, Ibn Iyās (d. 930/1524) distinguished between “Ethiopian” (Ḥabashiyya) and “black” (sawdāʾ) when he discussed the successful attempt by an Ethiopian slave to win freedom for herself and her infant daughter from her Jewish owner by manumission via conversion to Islam as witnessed by a prominent Mālikī qāḍī. Another slave held by the Jew, denoted simply as “black,” was mentioned with no further elaboration, the implication being that she remained chattel without an option for manumission. In modern concepts of ethnicity, the term “Ethiopian” would convey, at the least, the impression of a “person of color,” if not generic “blackness.” To Ibn Iyās, it conveyed an impression of enhanced agency, possibly due to religion (the Ḥabashiyya may have been Christian [although Ibn Iyas made no such reference either way], and thus the member of a monotheistic community with rights under law).
Recovery of such distinctions remains a challenging but essential task for historians who seek to explore matters of ethnicity, gender and race in the pre-modern period and their place in litigation. The sources provide rich raw material, decipherment of which will prompt robust debates over interpretation.
 Such registers are lacking during the Mamlūk period; reasons for which are debated in the field. They appear in Cairo and other major cities decades after the Ottoman occupation.
 Cf. Carl F. Petry, The Criminal Underworld in a Medieval Islamic Society: Narratives from Cairo and Damascus under the Mamluks (Chicago: Middle East Documentation Center, 2012).
 Cf. Ronald C. Jennings, “Women in Early 17th Century Ottoman Judicial Records: The Sharia Court of Anatolian Kayseri,” Journal of the Economic and Social History of the Orient 18, no.1 (1975): 53-114.
 For context to criminality as an aspect of protest or reaction to perceived injustice, see Amina Elbendari, Crowds and Sultans: Urban Protest in Late Medieval Egypt and Syria (Cairo: AUC Press, 2015), ch. 5; Robert Irwin, The Arabian Nights, A Companion (New York: I. B. Tauris, 2004), ch. 6: Low Life.
 Ibn Iyas, Badāʾiʿ al-zuhūr fī waqāʾiʿ al-duhūr (Cairo/Wiesbaden, 1975), 5: 442.
(Suggested Bluebook citation: Carl F. Petry, Crime during the Mamluk Period and the Study of Legal History, Islamic Law Blog (Jan. 18, 2021), https://islamiclaw.blog/2021/01/18/crime-during-the-mamluk-period-and-the-study-of-legal-history/)
(Suggested Chicago citation: Carl F. Petry, “Crime during the Mamluk Period and the Study of Legal History,” Islamic Law Blog, January 18, 2021, https://islamiclaw.blog/2021/01/18/crime-during-the-mamluk-period-and-the-study-of-legal-history/)