By Lev Weitz
My last essay in this series showed how Arabic documentary sources can extend our view of the practical operation of Islamic law from urban centers into medieval countrysides that are largely invisible in literary and normative sources. In this essay, we’ll again use documents to shed light on an otherwise obscure facet of law in medieval society. Our subject is legal pluralism, and our goal is to consider how documents can give us a finer sense of the multiple systems of norms other than ‘Islamic law proper’ through which the peoples of the medieval Islamic world moved—that is, the multiple sources of authority and their associated rules that set boundaries and possibilities for how individuals could structure their lives and relationships.
It’s no surprise to say that Islamic law, by which I mean generally the body of norms delineated in the fiqh corpus and associated writings, was not the only game in town in the medieval Islamic world. That non-Muslims had their own legal traditions and could make use of their own communal courts, for example, was a standard feature of most any Islamic society. We also know that political authorities frequently served as dispensers of justice, principally, we imagine, in the setting of the complaints courts (maẓālim) presided over by sultans and viziers. Yet despite these facts, Islamic studies as a field maintains an overriding focus on the sharīʿa and qāḍī courts, and pays less regard to other normative orders and institutions that functioned alongside and in concert with them. That focus is in many respects understandable, not least in light of the obvious religious and social centrality of the sharīʿa to medieval Muslim societies and the prominence of juristic sources in the Islamic literary tradition. But much remains to be done to give a more holistic, integrative account of the normative structures that shaped medieval Islamic societies. Here documents are eminently useful, as a perusal of the documentary corpus turns up many items that deal with matters of law but whose formulary and diplomatics diverge from Islamic notarial standards. Such documents did not emerge from a and do not straightforwardly track fiqh rules; rather, they are material testimony to other normative orders that structured medieval social life in a legally plural environment.
By the ninth century, documents produced by notaries trained in fiqh conventions and intended for use (if necessary) in the courts of qāḍīs or their subordinates become reasonably straightforward to identify. Their extensive but largely standardized formulary exhibits clear connections to Islamic juristic writing, especially the model documents described in shurūṭ manuals, as Geoffrey Khan has shown. After their main text they feature two and often more witness signatures in accordance with sharīʿa evidentiary standards. And they sometimes have a registration note in the upper left corner indicating that an official entered their contents into a judicial register.
Take this example, an agreement over the division of property between a brother and sister in the Fayyūm village of Ṭuṭūn in 451/1059. Formally, the document is a third-person testimony (“The witnesses named at the end of this document testified…”) to the two parties’ acknowledgment (iqrār) of the property division the document spells out. Multiple examples of precisely this format can be found in the chapter on iqrārs in al-Ṭaḥāwī’s book of formularies, Kitāb al-Shurūṭ al-ṣaghīr (d. 321/933); al-Ṭaḥāwī’s book seems to have been quite influential on notarial practice in Egypt. Five witnesses sign at the document’s end, some in their own hand and some writing for those who can’t. Al-Ḥasan b. Ibrāhīm b. Rizq verifies in the upper left corner that the document has been registered. Take a look at the original document to see the layout.
All provincial Fāṭimid-era notarial documents tend to look like this—whether deeds of sale, debt, quittance, settlement, endowment, or any other genre—and share a package of formulaic and diplomatic features that mark them as products of the world of fiqh-defined notarial conventions and sharīʿa courts.
In that light, what are we to do with a document like this, a quittance from the Nile Valley town of al-Ushmūnayn for rent paid for a mill?
The document is certainly legal in character, as it pertains to the rights and obligations of the individuals involved. But its similarity to our model sharīʿa document stops at the basmala (the opening invocation of God’s name). It is short and lacks any detailed formulary; it is written not by a third-party notary in the standard third-person style, but in the first person by the individual receiving the money; no witnesses testify to its contents; it looks like little more than a scrawled note, a stark contrast to the comparative elegance of much sharīʿa notarial style. Indeed, a clearly Islamic notarial quittance has much more in common in formal terms with the settlement agreement described above than with this quittance for rent, its ostensible genre-mate: the notarial quittance is framed as an iqrār and includes witness signatures and a registration note.
The most compelling interpretation of our scrawled-note quittance and other documents like it points us to normative orders that partially overlap with but are not simply subsumed under the sharīʿa. This document is best understood in the context of a realm of private commercial norms governed not by the written rules of a juristic tradition but by customary conventions and principles—Abū Bakr owed Yuḥannis rent, and Yuḥannis wrote him a receipt when he received it. In the medieval era as in any other, commercial dealings were an area of life in which norms governing rights and obligations were recognized and expected to be honored, and written attestations to those rights and obligations added solidity and solemnity. There are any number of reasons why Abū Bakr and Yuḥannis may not have employed a professional notary to draw up their quittance—the cost, the bother, perhaps an already close relationship between the two of them—but importantly, they still saw fit to formalize the transaction in writing.
I’ll leave to legal theorists the question of whether we should call the norms of commerce constituted through documents like our quittance ‘law’ or something else; but that there was such a normative order in operation is suggested by the other comparable examples, usually acknowledgments of or quittances for debt (see here and here for a few more), that turn up in any trawl through the APD or a major published document collection. The lack of standardized and extensive notarial formulary, absence of witnesses, and sometimes the Christian name of the scribe, like Yuḥannis on our quittance, all point to a context of production outside the orbit of sharīʿa notaries and courts. We can, at the same time, imagine a rent dispute between Yuḥannis and Abū Bakr winding up before a qāḍī, just with deficient documentation. The normative order we’ve been discussing operated at a remove, but was unlikely to have been completely extricable, from sharīʿa justice.
We can tease out further strands of these interlocking normative orders if we think a bit more about who the individuals writing private commercial legal documents were, and where they might have learned their letters. No definitive answers are forthcoming, but certain features of the documents lead me to suspect that some non-notarial scribes had day jobs as fiscal officials. Private commercial legal documents are frequently framed in the first person—‘I received (qabaḍtu) the money’—as are many tax receipts and leases of state land, the two genres that we most frequently encounter fiscal officials writing. The individuals like Yuḥannis who wrote personal deeds of debt and quittance had to have learned their Arabic letters somewhere; if they do not appear to have been following Islamic shurūṭ models, it’s plausible that they received a different professional scribal formation in preparation for working for the fiscal administration rather than for the Islamic judiciary.
If this interpretation is correct, it shows one way a non-sharīʿa normative order could be built and put into motion over time: scribes took conventions from one tradition of practical writing, the fiscal sort, and put them to use in another area that required the recording of obligations, private commercial affairs.
Fiscality itself is, in fact, another normative order central to lived experience in the medieval world (and every other time and place—death and taxes and all that) that bore a close relationship to the sharīʿa but was institutionally separate from sharīʿa courts. Documentary sources make tangible both the connections and the distinctions. The juristic tradition discusses extensively several forms of taxation, including the jizya paid by non-Muslims and the kharāj on productive properties. That these taxes were construed as sharʿī is in no small part why medieval Islamic governments collected them. But the clerks who dealt with this business, at least in Egypt, appear on the whole to have been trained in scribal conventions different from the notarial ones of sharīʿa documents (though some features were certainly shared between them). Compare this quittance for a kharāj payment (original image on the verso here) to this notarial quittance for a private debt. The latter has all the trappings we expect (iqrār framing, witness signatures, registration note); the former is a short receipt with no resemblance to the kinds of documents that jurists advised notaries to write. Unlike the idiosyncratic, scrawled-note rent quittance discussed above, the tax receipt fits a standardized model of its own. But again, the marked difference from the notarial style illustrates a partial institutional distinction between two normative orders: that of the sharīʿa courts, on the one hand, and the arena of subjects’ fiscal obligations to the state, on the other. This distinction operated despite significant points of overlap: taxation functioned partly on the basis of and in service to sharʿī principles, while sharīʿa courts could become involved in affairs that implicated state representatives, not only those between private individuals. It’s also possible, of course, that some notaries worked also for the fiscal administration, though the strong presence of Christians in the latter role is a significant counterweight.
The big picture is that the normative orders of medieval Islamic societies, from the sharīʿa to commercial custom to taxation, were multiple, overlapping, and complex; documents can illustrate the contours of those complexities more precisely than other sources. We know, both intellectually and intuitively, that human societies are structured by multiple layers of laws and norms, not a single, all-powerful law of the state. I’ve tried in this essay to put a slice of that layering on display by comparing documents written by notaries, everyday commercial partners, and fiscal officials in medieval Egypt. The documents demonstrate the diversity of practitioners and instruments of a legal nature that medieval subjects put to use on the ground. Together, these constituted some of the Islamic world’s multiple normative orders, from rough-and-ready commercial law to the fiscal operations of the state, that were inflected by the Islamic legal tradition proper even as they stood apart from the work of professional notaries and judges.
 The literature is enormous. See for a classic starting point John Griffiths, “What Is Legal Pluralism?,” Journal of Legal Pluralism and Unofficial Law 18 (1986): 1-55; in Islamic studies, Uriel I. Simonsohn, A Common Justice: The Legal Allegiances of Christians and Jews under Early Islam (Philadelphia: University of Pennsylvania Press, 2011).
 See Simonsohn, Common Justice.
 This subject needs considerable further study. See Mathieu Tillier, “The Mazalim in Historiography,” in The Oxford Handbook of Islamic Law, eds. Anver M. Enon and Rumee Ahmed (Oxford: Oxford University Press, 2019), 357-80.
 Scholars continue to debate just how central to historical experiences of Islam the juristic tradition was. See Shahab Ahmed, What Is Islam? The Importance of Being Islamic (Princeton: Princeton University Press, 2016), 117-29.
 Geoffrey Khan, “The Pre-Islamic Background of Muslim Legal Formularies,” ARAM 6 (1994): 193-224.
 Yūsuf Rāġib, Actes de vente d’esclaves et d’animaux d’Égypte médiévale (Cairo: Institut français d’archéologie orientale, 2002), vol. 2, 116–20.
 Abū Jaʿfar al-Ṭaḥāwī, al-Shurūṭ al-ṣaghīr, ed. Rawḥī Ūzjān (Baghdad: Riʾāsat Dīwān al-Awqāf, 1974), 507-32.
 The image is of Christian Gaubert and Jean-Michel Mouton, Hommes et villages du Fayyoum dans la documentation papyrologique arabe (xe-xie siècles) (Geneva: Libraire Droz, 2014), doc. 5 (P.Fay.Villages 5).
 The concept of the medieval law merchant is germane here, but whereas Abraham L. Udovitch argued, for example, that Ḥanafī law absorbed and accommodated the customary mercantile instruments, we have here the use of documents for which sharʿī models exist but are being ignored. See Partnership and Profit in Medieval Islam (Princeton: Princeton University Press, 1970), 249-61.
 See for a comparable discussion Mathieu Tillier and Naïm Vanthieghem, “Deux quittances de loyer pour un four,” Bulletin of the American Society of Papyrologists 54 (2017): 157-65.
 On institutionally distinct scribal traditions and hands in Fāṭimid Egypt, see Marina Rustow, The Lost Archive: Traces of a Caliphate in a Cairo Synagogue (Princeton: Princeton University Press, 2020), 83-110. Much work remains to be done.
(Suggested Bluebook citation: Lev Weitz, Tax Receipts and Rent for a Mill: The Multiple Normative Orders of Medieval Islamic Societies, Islamic Law Blog (Apr. 20, 2023), https://islamiclaw.blog/2023/04/20/tax-receipts-and-rent-for-a-mill-the-multiple-normative-orders-of-medieval-islamic-societies/)
(Suggested Chicago citation: Lev Weitz “Tax Receipts and Rent for a Mill: The Multiple Normative Orders of Medieval Islamic Societies,” Islamic Law Blog, April 20, 2023, https://islamiclaw.blog/2023/04/20/tax-receipts-and-rent-for-a-mill-the-multiple-normative-orders-of-medieval-islamic-societies/)