Summarized by Rami Koujah
This post is part of the Roundtable on the History of Islamic International Law. It is a summary of Mathieu Tillier‘s contribution titled “Dispute Settlement in the Medieval Islamic World” to volume eight of the Cambridge History of International Law series, co-edited by Intisar Rabb and Umut Özsu.
Mathieu Tillier’s chapter on “Dispute Settlement in the Medieval Islamic World” surveys the venues, procedures, and juridical systems for the adjudication of legal disputes in Islamic lands. He focuses on disputes involving non-Muslim parties, where non-Muslim litigants fall into one of several categories: dhimmī, a non-Muslim residing in Islamic territory with permanent protected status; mustaʾmin, a non-Muslim from beyond the frontier who is a beneficiary of safe passage (amān); and ḥarbī, a foreigner belonging to hostile territory (dār al-ḥarb) who did not benefit from mustaʾmin status. Tillier also discusses disputes involving Muslims belonging to a rebellious political power, ahl al-baghy (rebels) or ahl al-ahwāʾ (“people of passions”). His chapter shows how the rules and procedures governing a case changed depending on the venue and parties involved.
Tillier begins by discussing the early development of the institution of qāḍī, a Muslim judge appointed by a ruler with a local jurisdiction who was responsible in the main for disputes between private individuals. Tillier states that the Umayyad era (40-132/660-750) witnessed procedural experimentation in the qāḍī’s court and that judicial procedures began to crystallize after the ʿAbbāsid Revolution of 132/750. The legal literature defining court procedure that emerged in the ʿAbbāsid period pay little attention to foreign non-Muslim litigants; instead, Tillier notes, Muslim jurists discuss such litigants in chapters on the law of war and international relations (kutub al-siyar). This is also the context in which disputes with Muslim rebels are discussed. The legal literature shows that disputes with foreign non-Muslims became a growing concern after the stabilization of the Islamic empire’s frontiers in the second half of the second/eighth century.
Due to the absence of studies treating judicial conflicts in the first century of Islam, Tillier utilizes primary sources to present an overview of international and inter-community conflict resolution until the fifth/eleventh century. The judicial landscape changes from the sixth/twelfth century onwards with the rise of the Crusader states and establishment of commercial treaties between Muslim and foreign states.
Tillier proceeds chronologically. In the first centuries, the qāḍī’s primary role was to adjudicate disputes involving at least one Muslim litigant while Jewish, Christian, and Zoroastrian communities had their own judicial institutions. Tillier discusses two different theories of Islamic law’s jurisdiction: the majority held that Islamic legal rules apply wherever Muslims go, while the Ḥanafīs adopted a territorial doctrine of jurisdiction. Tiller mentions how these theories affected a jurist’s ideas on the authority and capacity of judges.
In this period, Tillier writes that legal procedures were basically the same irrespective of the litigants’ identity, with few exceptions. The situation changed in the ʿAbbāsid period, where procedures began discriminating against non-Muslims, primarily in the admissibility of testimonial evidence. In this regard, non-Muslims litigants were equally discriminated against, whether they were dhimmīs or mustaʾmins.
Tillier also discusses how non-Muslims in foreign territory could use proxies to represent them in court and the specific developments this underwent. He also shows how these foreign litigants were accommodated in various ways by Muslim courts.
Tillier then discusses two cases involving foreign non-Muslim litigants between Egyptian Muslims and Nubians in the second/eighth and third/ninth centuries. Nubia was a neighboring non-Muslim territory that had a treaty with the Muslims but maintained tense political relations. The cases illustrate the role of governors, qāḍīs, ambassadors, and proxies in the procedure of international disputes that took on political significance.
As far as disputes between dhimmī litigants in early Islam, Tillier mentions the role that Jewish and Christian judges played in their communities. He mentions the role of Muslim courts in adjudicating their claims and how members of these non-Muslim religious communities navigated different judicial venues, including Muslim ones. Non-Muslim judges, Tiller states, were considered by most Muslim jurists to function as arbitrators and their subject-matter jurisdiction was accordingly limited.
Tillier argues that Umayyad rulers saw their judicial systems as state institutions, widely available to non-Muslims, rather than Muslim institutions as they came to be viewed during the ʿAbbāsid period. In such cases, non-Muslims continued to be subjected to prejudicial evidentiary standards regarding their testimony in the view of most Muslim jurists.
Tiller mentions how the spread of Muslim courts and the evidentiary obstacles non-Muslims faced drove them to adapt their notarial habits. He then discusses lawsuits between mustaʾmins, writing that they followed the same rules as those applied to dhimmīs but different in certain regards. Tillier details a dispute between two Christians, a Melkite and a Copt, under the last Umayyad Caliph, Marwān II (r. 127-132/744-750), over a church that the Melkites had accused the Copts of seizing from them. This case illustrates how Christians appealed and adapted to administrative and judicial procedures, and the evidentiary procedures entailed.
Next, Tillier discusses trans-frontier disputes between Muslims. Jurists rarely consider the possibility of Muslims appealing to foreign courts. Tillier mentions several notable exceptions and the role played by military judges, but points out that our knowledge on this matter is limited by the sources.
Muslims did outline rules and procedures of disputes between rival Muslim communities, where one considers itself to be the “righteous people” (ahl al-ʿadl) and regards the other as heterodox rebels (ahl al-baghī). This included disputes between members of rival sectarian communities, and Tillier mentions how jurists of different sects elaborated different sets of rules.
Moving on to the late Middle Ages, Tillier begins his survey of litigations between Muslims and non-Muslims with the Crusader states of the Levant. He writes about the judicial institutions Muslims could appeal to in the Latin states. We know more, he states, about judicial relations between the Crusader states and the Islamic territories, and he discusses the case of Usāma ibn Munqidh’s (d. 584/1188) appeal to Frankish justice.
Commercial treaties with the maritime Republics changed the judicial landscape. Tillier discusses the several ways this occurred and the commercial motives that incentivized Muslims to introduce changes. The treaties with the Italian merchant Republic included terms as to how disputes involving foreign merchants would be handled in Islamic lands. Depending on the identity of the litigants involved, judicial bodies included qāḍīs, consuls representing the Republics, and sultanic institutions. The latter took precedence as an authority during the second half of the eighth/fourteenth century, a judicial system the Mamlūks called siyāsa that implemented procedures more favorable to non-Muslim litigants. Tillier closes with a brief discussion of courts in Ottoman Anatolia and the new judicial institutions developed there in collaboration with Venetian and Genoese states.