By Lev Weitz
For the past three decades, scholars have enriched the study of premodern Islamic law with a growing enthusiasm for ‘law in action’—law not only as the sharʿī norms laid down and debated in juristic treatises, but as the processes and practices through which judges, muftīs, and everyday litigants interacted with those norms to order their lives, their relationships, and the institutions of their societies. Scholarship in this vein has used court records to show us the ins and outs of gender relations in Ottoman Palestine; fatwās to take us into the weeds of water rights and land tenure in medieval Morocco; and chronicles to depict the simultaneously stern and mundane administration of market justice in Mamluk Cairo. Court records, fatwās, chronicles—historians following the law-in-action turn have eagerly sought out a widening array of documentary and literary source materials to add to Islamic legal studies’ bedrock corpus of ḥadīth, furūʿ, and uṣūl texts. Yet at least one promising body of material remains stubbornly under-studied and under-incorporated into the wider social history of Islamic law: the thousands of pre-Ottoman Arabic legal documents preserved on papyrus, paper, and parchment and scattered across collections in the Middle East and North Africa, Europe, and North America.
In this series of essays, I will delve into one corner of this material to provide some examples of how we can productively incorporate Arabic documents into the study of premodern Islamic law. I am interested in how documents can add to our understanding of two principal areas: the development of Islamic law in provincial and rural areas, where the majority of premodern populations lived but which are largely invisible in normative and literary sources; and the social worlds of the people who wrote documents, brandished them before judges, and tried to preserve them against the ravages of time, humidity, and vermin. To this end, this and the following three essays will use documentary sources to explore Islamic legal institutions in the medieval Egyptian countryside, the multiple Arabic scribal idioms that produced the documents we study today, and the lives of villagers in the Fayyūm Oasis. I hope the reader will come away with at least a bit of curiosity for the further potential of the thousands of other Arabic documents that I have neither discussed nor seen.
Arabic Papyrology and the Social History of Islamic Law
I’m far from the first to note just how much Arabic documents stand to add to Islamic legal studies—you can read a rousing call to action in a previous Islamic Law Blog essay here, as well as January’s essays by Marina Rustow, Amel Bensalim, and Athina Pfeiffer. Yet, despite the scholarly acknowledgment of the importance of documentary studies, a disciplinary-methodological division between students of documents and students of Islamic law persists, in large part because of the evident challenges to working with premodern documents. Arabic paleography is a beast and a subdiscipline unto itself. Published documents, which are many but only a small portion of the total number of surviving documents, are found across a range of specialist edited volumes and articles.
Perhaps most daunting is the chaotic randomness inherent to the dispersed corpus of pre-Ottoman Arabic documents as it exists today. Most pieces of documentary Arabic papyrus, paper, and parchment housed in modern libraries were unearthed in a variety of findspots, mostly in Egypt, in the nineteenth and early twentieth centuries by an assortment of European travelers, beholden to one degree or another to a colonial power, and local entrepreneurs. They were dispersed through the antiquities market to be reconstituted in the form of modern library collections, the contents of which are thus in no way congruent to the archive of any premodern institution but reflect the haphazard character of discovery and dispersal. More recent archaeological excavations operating according to modern scientific standards now turn out document collections of clear provenance, and several major documentary corpuses stem from more evidently organized institutional settings, such as that of St. Catherine’s Monastery at Mt. Sinai or the Jerusalem sharīʿa court documents found at the Ḥaram al-Sharīf. But in general, students of Arabic documents do not work with an archive. We can’t show up to Dār al-Wathāʾiq in Cairo and request the tax files from 223 AH. We don’t know what we can ask of the documents until we dive in to find out.
Nonetheless, databases with newly digitized sources and related tools are available to ease the process. Foremost among them is the Arabic Papyrology Database (hereafter APD), which facilitates browsing and text-searching thousands of published Arabic documents, and its associated checklists and bibliographies of documents and studies. The Comparing Arabic Legal Documents database is another useful tool. If you start to comb these databases, reading alongside the major published collected editions and their images of the original documents, patterns worthy of study will emerge from the material despite the seeming randomness of its collection.
My following essays will be exercises in picking out and pursuing a few such patterns to see what kinds of insights into premodern Islamic law they reveal. I’ll be particularly interested in documents from the Fayyūm Oasis and, to a lesser extent, the Nile Valley district of al-Ushmūnayn: provincial locales that have provided the lion’s share of documents in many library collections, in no small part because of their proximity to the desert and its powers of preservation. As often as possible, I’ll make use of and link to documents with full text entries in the APD, as well as to online images of the originals, to show the possibilities that these digital tools offer for socio-historical study.
Pulling a First Thread
Let’s start by using the APD to identify a simple pattern in the documentary record, the implications of which we’ll follow in the next essay. A convenient place to begin is with contracts of sale. Having worked with this material for the last few years, I have the sense that the contract of sale was for many medieval subjects the emblematic legal document—extant examples most often concern the transfer of real property, including houses, land, and productive trees and vines, and they thus functioned as evidence of title to what was usually an individual’s most valuable possession. If we go to the Documents tab of the APD and search for “Contract of sale” with an origin in the Fayyūm, we’ll see in the righthand column several place names recur as find spots, including Ṭuṭūn, Naqlūn, Buljusūq, and Uqlūl.
Each of these likely unfamiliar toponyms denotes a location in the Fayyūm’s southeast quadrant (Ṭuṭūn, Buljusūq, and Uqlūl are villages, Naqlūn a monastery), and as the second column shows, all the associated documents date from the 3rd/9th to 5th/11th centuries, the late ʿAbbāsid into the Fāṭimid period. We’ve got a pattern: a concentration of legal documents from a well-defined geography and timeframe, a solid basis for further study. In the next essay, we’ll see what these documents can tell us about the infrastructure of Islamic law in the rural province from which they originated.
 Though this phrase has been floating around for more than a century, to judge by a digital library catalog search, in Islamic studies it was memorably enshrined in the title of Kristen Stilt, Islamic Law in Action: Authority, Discretion, and Everyday Experiences in Mamluk Egypt (Oxford: Oxford University Press, 2011).
 The body of scholarship on premodern Islamic law from an intellectual history or doctrinal vantage point is, of course, large, well developed, and ever growing. A sampling of standout English-language studies on a variety of topics might include Kecia Ali, Marriage and Slavery in Early Islam (Cambridge, Mass.: Harvard University Press, 2010); Wael B. Hallaq, A History of Islamic Legal Theories: An Introduction to Sunni uṣūl al-fiqh (Cambridge: Cambridge University Press, 1999); Sherman A. Jackson, Islamic Law and the State: The Constitutional Jurisprudence of Shihāb al-Dīn al-Qarāfī (Leiden: Brill, 1997); Marion Holmes Katz, Prayer in Islamic Thought and Practice (Cambridge: Cambridge University Press, 2013); among many others.
 Judith E. Tucker, In the House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine (Berkeley: University of California Press, 1998); David S. Powers, Law, Society, and Culture in the Maghrib, 1300-1500 (Cambridge: Cambridge University Press, 2009); Stilt, Islamic Law in Action.
 See the discussion in Lev Weitz, “Islamic Law on the Provincial Margins: Christian Patrons and Muslim Notaries in Upper Egypt, 2nd-5th/8th-11th Centuries,” Islamic Law and Society 27 (2020): 5-52, at 11-14. For an excellent example of the productive incorporation of documents into Islamic legal history, see Mathieu Tillier, L’invention du cadi: La justice des musulmans, des juifs et des chrétiens aux premiers siècles de l’islam (Paris: Publications de la Sorbonne, 2017), 29-145. Major published collections of legal documents include Adolf Grohmann, Arabic Papyri in the Egyptian Library, vols. 1-2 (Cairo: Egyptian Library Press, 1934-36); Raif G. Khoury and Adolf Grohmann, Chrestomathie de papyrologie arabe (Leiden: Brill, 1993); Khoury and Grohmann, Papyrologische Studien: Zum privaten und gesellschaftlichen Leben in den ersten islamischen Jahrhunderten (Wiesbaden: Harrassowitz, 1995); and Michael Thung, Arabische juristische Urkunden aus der Papyrussammlung der Österreichischen Nationalbibliothek, Corpus Papyrorum Raineri 26 (Munich, Leipzig: K. G. Saur, 2006).
 See for an introduction Petra M. Sijpesteijn, “Arabic Papyri and Islamic Egypt,” in The Oxford Handbook of Papyrology, ed. Roger S. Bagnall (Oxford: Oxford University Press, 2009), 452-72.
 See Aziz S. Atiya, The Arabic Manuscripts of Mount Sinai: A Handlist of Arabic Manuscripts and Scrolls Microfilmed at the Library of the Monastery of St. Catherine, Mount Sinai (Baltimore: Johns Hopkins Press, 1955); Donald P. Little, A Catalogue of the Islamic Documents from al-Ḥaram aš–Šarīf in Jerusalem (Beirut: Orient-Institut der Deutschen Morgenländischen Gesellschaft, 1984); and the other document editions and studies listed at the Checklist of Arabic Documents.
 In this respect I’ll be dealing with comparable but different corpora from those studied by Marina Rustow, Amel Bensalim, and Athina Pfeiffer in their January essays. Their focus was the Arabic script documents from the Cairo Genizah, many though not all of which revolve around the capital of Fustat/Cairo in some way.
(Suggested Bluebook citation: Lev Weitz, Documentary Sources and Islamic Legal History: The View from the Provinces, Islamic Law Blog (Apr. 6, 2023), https://islamiclaw.blog/2023/04/06/documentary-sources-and-islamic-legal-history-the-view-from-the-provinces/)
(Suggested Chicago citation: Lev Weitz “Documentary Sources and Islamic Legal History: The View from the Provinces,” Islamic Law Blog, April 6, 2023, https://islamiclaw.blog/2023/04/06/documentary-sources-and-islamic-legal-history-the-view-from-the-provinces/)