Legal documents have survived from the medieval Islamic world in considerable quantity, but the mystery of their quotidian production and use abides. The mystery concerns personnel and physical location: Who wrote documents, and where? Where did witnesses sign them? To what extent were judges involved in their production and handling?
Over the past quarter-century, answers to the question of judicial venue have changed. The change is attributable in part to Wael Hallaq’s influential article on qāḍīs and their archiving practices.[1] The consensus had taken for granted that “qạḍī courts” were brick-and-mortar spaces. Hallaq’s article reduced them to an appurtenance of the qāḍī himself. In a recent survey of the medieval Islamicate judiciary, Delfina Serrano Ruano summarized the state of play as follows: “For all the pre-modern period, qạḍī courts (maḥkama, [pl.] maḥākim) were presided over by a single person,” who worked with or without assistants as allowed “by the appointing authority,” and “received the litigants and decided their cases in [his] domicile or in the mosque”—not in a dedicated structure. “Witnesses’ declarations [were] made in the presence of the qāḍī”; he signed those declarations with the witnesses still present.[2]
The question Hallaq’s article asked is why so few records have survived from before the Ottoman period. His answer: not because they didn’t exist; to the contrary, he argued on behalf of a “formal institution and systematic practice” of court-based record-keeping.[3] The problem, rather, was that qāḍīs’ archives were handed down to their successors for only a single generation. A qāḍī would keep the archives of the previous qāḍī, but not of the one before him.[4] The court was similarly attached to the qāḍī himself; it was “nothing but an extension of his function and judicial personality.” He “had no specific place in which to hold court sessions,” and convened them instead in “the central or peripheral mosque, its courtyard, a public square, the market, or even [his] own house.”[5]
Hallaq therefore proposed modifying our understanding of the etic term “court” to reflect the emic terms majlis al-ḥukm or majlis al-qaḍāʾ, which could be translated literally as “assembly of adjudication” or less literally as “tribunal.”[6]
The argument that qāḍīs kept records wasn’t radical, as Hallaq himself pointed out: it was there for all to see in the long-form sources, which referred to records “in the possession of our master the judge” (ladā mawlānā al-ḥākim), or dīwān al-qāḍī (or al-qāḍāʾ).[7] The more radical idea was the recentering of the court on the person of the qāḍī. That idea took root in the literature: the qāḍī is now considered the sine qua non of legal proceedings.
Hallaq wasn’t the first to modify the “court” in “qāḍī court” and turn it into something more nimble and less permanent; in 1945, Émile Tyan had drawn the field’s attention to notaries and their centrality in the Islamic judicial system, an effort that Hallaq reiterated in a 1995 article.[8] I suspect that the field so readily embraced it the second time around because it arrived in the wake of other late-twentieth-century attempts to prune back the Islamicate organizational landscape and focus instead on individual actors and their ties of patronage and reciprocity: for instance, Hodgson’s occasionalism, Goitein’s mercantile society and Mottahedeh’s acquired loyalties.[9]
While Hallaq’s article opened a long-overdue reassessment of both the dīwān and the qāḍī, I believe it went too far on the former matter and not far enough on the latter. The problem that animated the article—why have so few judicial records survived?—was a red herring: plenty of original judicial documents have survived from before the Ottoman period, among them the Ḥaram al-Sharīf and Mamluk-era Egyptian documents of which Hallaq was aware[10] and the ones from the Cambridge Geniza collections that Geoffrey Khan had published several years earlier,[11] to which one might add the judicial documents preserved in the Umayyad Mosque in Damascus, among many others that space and time do not permit me to enumerate.[12] The survival of documents gives us reason to reassess Hallaq’s theory of judicial archiving; what the documents themselves can tell us about the circumstances of their production and use is another. How central was the qāḍī to the judicial system and its documentation?
Thanks to the graduate students I taught in Fall 2022, with whom I’ll be sharing subsequent posts in this venue, I now think we can modify the “qāḍī” part of the phrase “qāḍī court.” The documents that we studied together persuaded me that judicial proceedings had less to do with qāḍīs than I had previously assumed. I now believe that Hallaq was right to point to archiving as one of the qāḍī’s functions, but perhaps not for the reasons he intended.
Please go find yourself some documents … but how?
It was with these questions in mind that I spent the last four months with my graduate students studying judicial documents of the fifth/eleventh–sixth/twelfth centuries. In a post in this venue two years ago, I had noted that in the long-form sources, “the institutional settings in which [judicial] scribes worked are often not visible to us.” Documents offer us a better shot at reconstructing judicial practice, and there is an urgent need to teach students how to read them. Having written that, I felt compelled to put my money where my mouth was—hence my Fall 2022 seminar.
Since I know the Egyptian material best, we focused our energies on it, with glances toward Ifrīqiya and Syria. We spent the first few weeks doing a rough survey of the genres in the published repertoire and working on three techniques that are essential for working with unpublished medieval Arabic documents. I’ll offer a brief recap of those techniques, and in my next post, attempt to demonstrate how they help recast the role of the qāḍī in judicial proceedings.
Batch-reading
The first technique we worked on was batch-reading: hunting for documents in library catalogs and footnotes, grouping them by genre, and reading them against each other in order to use what is clear in some to fill in what is unclear in others — working from the known to the unknown.
Diplomatics
The second technique was diplomatics, the study of documents focusing on their repeated parts: structure and formulae, the bits historians often ignore as “mere boilerplate” in favor of the charismatic fungible parts, such as dates, names, places and human drama. Diplomatics can illuminate the institutional settings in which documents were composed; it can also highlight the tendency of scribes to borrow from each other’s linguistic and legal traditions.[13] Quite apart from these noble reasons for paying attention to diplomatics, it also helps you decipher documents more quickly and accurately by telling you what to expect. Accurate expectations are the paleographer’s unsung apprentices.
Palaeography
The final technique is palaeography. I discourage people from diving into the task of deciphering without first doing some batch-reading and studying the structure and formulae of documents. If you’ve tried, then you know that Arabic documents are sadly deficient in dots, and even more sadly abundant in abusive ligatures. They also abound in graphemes that seem to have melted into their neighbors. The dearth of dots will sometimes require you to cycle through the tooth-letters (bāʾ, tāʾ, thāʾ, nūn and yāʾ, as well as tāʾ marbūṭa, which scribes rendered as a tooth) and slot them into various positions until the word yields meaning (Fig. 1), but cultivating a solid set of expectations saves you some of that grapheme-level struggle.
But if undotted teeth can try one’s patience, abusive ligatures inspire a false sense of certainty. You will read alif-lām sequences as lām-lām until you get used to them. By week 2, my students were avoiding this trap (Fig. 2).
As for melting-character infractions, anyone who writes quickly is liable to commit them. But medieval Arabic scribes writing something other than a long-form text-for-hire simply skipped entire characters or left them implicit. Since Arabic is compact to begin with—the average length of a word is just under five letters—missed strokes are an added challenge. Arabic papyrologists have borrowed terms for them from Greek papyrology: Verschleifung, “flattening,” and résorption, “reduction” of the number of strokes (Fig. 3).
These three skills — batch-reading, diplomatics and paleography — work in combination. If you can’t decipher a document, look for the formulae; if you don’t know the formulae, read in batches until you can map them.
I learned this tripartite hack from Geoffrey Khan. When I first met him in 2007, I had just begun struggling to read Fatimid petitions. Before saying hello or shaking his hand, I had a question for him: “How did you manage to read those Khurāsānī tax-receipts?”[14] He replied with characteristic modesty: “Oh, I don’t read the words in sequence. I take fifty documents that say the same thing and work both ends against the middle.” What he was telling me, in effect, was start from the macro (batch reading), work your way to the meso (structure and formulae), and only then, dive into the micro (deciphering graphemes).
Three opening moves in judicial records
As an example of how these three techniques work in practice, I’ll put Khan’s judicial documents into three buckets depending on their opening phrase.
1. Hādhā kitāb, “this is a document of …”
Some documents open with the declarative hādhā kitāb, “this is a document of ….” The demonstrative pronoun “this” refers to the document itself.
Khan traces this “‘monumental’ type of introductory formula” to South Arabian legal inscriptions. This is already an arresting historical perspective, the fossilized remains of a prior legal culture. In those inscriptions, the use of hādhā kitāb probably reflects “the fact that the document had the status of a legal instrument of proof.”[15] Embedded within the phrase, in other words, is a legacy of accepting written instruments as proof.
In Khan’s corpus, there is only one type of document that opens with hādhā kitāb: powers of attorney (hādhā kitāb wikāla, “this is a power of attorney document”).[16] In earlier documents from Egypt and from Khurāsān, it is common; but after the watershed of the third/ninth or fourth/tenth century, documents shied away from announcing themselves as judicial instruments.
2. Hādhā mā + verb, “this is what so-and-so did”
The initial hādhā works differently in other document types: hādhā mā + verb, “this is what so-and-so did.” In this opening gambit, the demonstrative pronoun refers not to the document itself, but to the object of the legal act, such as property that has changed hands. That property can be a house, a quantity of money or the object of an endowment.
Bills of sale open with hādhā mā ishtarā, “this [property] is what the declarant has bought”; marriage contracts open with hādhā mā aṣdaqa, “this [marital gift] is what the groom has granted to the bride”; sureties open with hādhā mā ḍamina, “this [quantity of money] is what the declarant has pledged”; and endowment deeds with hādhā mā taṣaddaqa, “this [property] is what the declarant has endowed.” The opening hādhā points to the property; the documents’ “plotline” is to identify that property, often at length, to remove any doubt about which property is intended.
3. Opening with a verb
Still other judicial documents open with a verb. Their plotline points neither to themselves nor to the object of the legal act, but merely to the fact that this act has taken place. Frequently the object in question is abstract; because there is no concrete referent, the hādhā opening is ruled out. Acknowledgments of debt (iqrārāt, sing. iqrār) open by stating that a declarant (muqirr) has acknowledged (aqarra) a debt or loan (al-muqarr bihi) to a beneficiary (al-muqarr lahu). Similarly, one form of declaration opens by stating that witnesses have offered testimony (shahida), and then states the substance of their declaration.[17]
In all three types of judicial record, the opening clause establishes a fact in the perfect tense. This is a tiny but important fact: the document is phrased to emphasize the fact that it is merely the record of a legal act that has already taken place. The document itself does not constitute the act. This is also why the parties to the legal act don’t sign the documents; they are players in an offstage drama that has concluded before they find a notary to write it up and witnesses to sign it.
With those three opening moves, you can start mapping the document types and working from the known to the unknown. You’re also ready to approach the technical literature. Khan’s philological introductions in ALAD are confusing at first, but gold-mines of information. His chapter on bills of sale, for instance, contains a tour d’horizon of medieval judicial documents from across the breadth of the Islamic world—al-Andalus, Sicily, Damascus, upper and lower Egypt, Ardabīl and Yārkand—with comparisons to bills of sale in five shurūṭ collections.[18] It could easily form the basis of a doctoral dissertation or a multi-year seminar.
You’re now also ready to wean yourself from dependence on what the long-form sources tell you about what documents say and how they worked; you can ask the documents to tell you instead. The way documents are laid out, structured and phrased solves some of the mysteries of judicial procedure in general and “qāḍī courts” specifically—and this is what my students and I will cover in our next three posts.
Notes:
[1] Wael B. Hallaq, “The qāḍī’s dīwān (sijill) before the Ottomans,” Bulletin of the School of Oriental and African Studies 61 (1998): 415–36.
[2] Delfina Serrano Ruano, “Qadis and Muftis: Judicial Authority and the Social Practice of Islamic Law,” in Routledge Handbook of Islamic Law, eds. Khaled Abou El Fadl, Ahmad Atif Ahmad, and Said Fares Hassan (London: Routledge, 2019), 156–71 (quotation on 160).
[3] Hallaq, “Qāḍī’s dīwān,” 415.
[4] See the counterarguments in Marina Rustow, The Lost Archive: Traces of a Caliphate in a Cairo Synagogue (Princeton University Press, 2020), 67–73.
[5] Hallaq, “Qāḍī’s dīwān,” 418.
[6] He continued: “Ideally, [‘court’] should be substituted by ‘assembly,’ reflecting the Arabic word ‘majlis.’ But since the use of ‘assembly’ could prove awkward, we might well retain ‘court’ but with the full understanding that we are speaking about a different type of adjudicatory organ.” Ibid., 421.
[7] Ibid., 418–19.
[8] Émile Tyan, Le notariat et le régime de la preuve par écrit dans la pratique du droit musulman (Beirut, 1945; Harissa, 1959); see also Wael B. Hallaq, “Model Shurūṭ Works and the Dialectic of Doctrine and Practice,” Islamic Law and Society 2 (1995): 109–34.
[9] Marshall G. S. Hodgson, The Venture of Islam: Conscience and History in a World Civilization, 3 vols. (Chicago, 1974), esp. 2:436–49; S. D. Goitein, A Mediterranean Society: The Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza, 6 vols. (Berkeley, 1967–93), esp. 1:64–69; Roy Mottahedeh, Loyalty and Leadership in an Early Islamic Society (Princeton, NJ, 1980); and see further Nathan Hofer, The Popularisation of Sufism in Ayyubid and Mamluk Egypt, 1173–1325 (Edinburgh, 2015), 16–19; Rustow, Lost Archive, 523–24, n.16.
[10] Hallaq cites Linda Northrup and Amal Abul-Hajj, “A Collection of Medieval Arabic Documents in the Islamic Museum at the Haram al-Šarif,” Arabica 25 (1978): 282–91; Monika Gronke, Arabische und persische Privaturkunden des 12. und 13. Jahrhunderts aus Ardabil (Aserbaidschan) (Berlin, 1982); as well as two books dealing with Mamluk-era documentation: Hasanein Rabie, The Financial System of Egypt, A.H. 564–741/A.D. 1169–1341 (London, 1972) and Maḥmūd Ḥammūda, al-Madkhal ilā dirāsat al-wathāʾiq al-ʿArabiyya (Cairo, 1980), 187–213. See also Hallaq’s remarks at 416, n.6: “the present article was primarily precipitated by a deep conviction that pre-Ottoman court records have once existed in multitudes, and that, more importantly, at least some of these will eventually be discovered. … [A]ccounting for the failure of these records to survive does not mean that some will not finally be recovered.” See also Donald P. Little, A Catalogue of the Islamic Documents from al-Haram aš-Šarīf in Jerusalem (Beirut-Wiesbaden, 1984); Huda Lutfi, Al-Quds al Mamlūkiyya: A History of Mamluk Jerusalem Based on the Haram Documents (Berlin, 1985); and now also Christian Müller, “The Haram al-Sharīf Collection of Arabic Legal Documents in Jerusalem: A Mamlūk Court Archive?,” al-Qanṭara 32 (2011): 435–59; Müller, Der Kadi und seine Zeugen: Studie der mamlukischen Ḥaram-Dokumente aus Jerusalem (Wiesbaden: Harrassowitz, 2013); and Müller, “Les actes notariés en droit musulman (VIIIe–XVIe siècles),” Studia Islamica (2022): 1–23. Microfilms of the Ḥaram al-Sharīf collection have now been digitized by the McGill University Library.
[11] Geoffrey Khan, Arabic Legal and Administrative Documents in the Cambridge Genizah Collections (Cambridge, 1993). There is still no complete catalog of the Arabic-script judicial documents from the Geniza. Over the past four years, the Princeton Geniza Lab team has tentatively identified more than seven hundred unpublished Arabic judicial documents. See Alan Elbaum, Marina Rustow and Yusuf Umrethwala, “Unpublished Arabic Legal Documents in the Princeton Geniza Project Database as of October 2022.”
[12] Dominique Sourdel and Janine Sourdel-Thomine, “Trois actes de vente damascains du début du IVe/IXe siècle,” Journal of the Economic and Social History of the Orient 8 (1965): 164–85; Jean-Michel Mouton, Dominique Sourdel and Janine Sourdel-Thomine, Mariage et séparation à Damas au Moyen Âge (Paris, 2013); and Nadia Jamil and Jeremy Johns, “Four Sicilian documents — three Kalbid and one Norman — from the Qubbat al-Khazna in Damascus” (preprint version). See also Moez Dridi, “Un contrat de mariage sur parchemin d’une fille impubère en Ifrīqiyā pré-hafside,” in La Méditerranée connectée. Hommage au professeur Mohamed Tahar Mansouri, eds. Hayet Amamou and Mohamed Ouerfelli (Tunis, 2016 [2019]), 313–42; “The Arabic Papyrology Bibliography of Editions and Research”; and the annual Bibliographie raisonnée zur arabischen Papyrologie/Annotated Bibliography of Arabic Papyrology and Diplomatics.
[13] For more on diplomatics and institutions, see Eve Krakowski and Marina Rustow, “Formula as Content: Medieval Jewish Institutions, the Cairo Geniza, and the New Diplomatics,” Jewish Social Studies 20 (2014): 111–46.
[14] Geoffrey Khan, Arabic Documents from Early Islamic Khurasan (London, 2007).
[15] Geoffrey Khan, “Remarks on the Historical Background and Development of Early Arabic Documentary Formulae,” Asiatische Studien 62 (2008): 892.
[16] Khan, ALAD, n°61.
[17] There are, naturally, exceptions, such as declarations that open in the imperfect. There is an outlier record of lease from 410/1019 that begins not in the expected way, with the deictic hādhā mā istaʾjara fulān (this is what so-and-so rented), but directly with the verb istaʾjara, “he has rented”: Cambridge University Library, Taylor-Schechter (henceforth T-S) Misc. 20.155 (ed. Khan, ALAD, n°21). The fact that it was written in Tyre, not Egypt, probably doesn’t explain the difference; cf. Diem Werner, “Vier arabische Rechtsurkunden aus dem Ägypten des 14. und 15. Jahrhunderts,” Der Islam 72 (1995): 193–257. For a further difference, see Khan, ALAD, 145. Others open with a variant on the monumental perfect-tense declaration, e.g., lammā kāna bi-tārīkh … shāhada al-shāhidān, “On such-and-such a date, the two witnesses observed …” and lammā warada al-amr … wa-ḥaḍara man thabata khaṭṭahu, fa- …, “When the order came down … and the undersigned presented themselves ….” Khan, ALAD, n°s 54 and 55. Some variants may be holdovers from Greek and Coptic judicial instruments, which use a first- or second-person subjective style, as opposed to the third person objective style of Arabic documents: Khan, “Remarks,” 885–906; Jeannette Wakin, The Function of Documents in Islamic Law: The Chapters on Sales from Ṭaḥāwī’s Kitāb al-Shurūṭ al-Kabīr (Albany, 1972), 43–44 and 44, n.1.
[18] Khan, ALAD, 7–55.
(Suggested Bluebook citation: Marina Rustow, Are Medieval Arabic Judicial Documents as Opaque as They Look?, Islamic Law Blog (Jan. 10, 2023), https://islamiclaw.blog/2023/01/10/are-medieval-arabic-judicial-documents-as-opaque-as-they-look/)
(Suggested Chicago citation: Marina Rustow, “Are Medieval Arabic Judicial Documents as Opaque as They Look?,” Islamic Law Blog, January 10, 2023, https://islamiclaw.blog/2023/01/10/are-medieval-arabic-judicial-documents-as-opaque-as-they-look/)