Legal Documents As Sources for the History of Muslim Societies Studies in Islamic Law and Society
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Legal Documents as Sources for the History of Muslim Societies Studies in Islamic Law and Society Founding Editor Bernard Weiss Editorial Board Ruud Peters A. Kevin Reinhart Nadjma Yassari VOLUME 42 The titles published in this series are listed at brill.com/sils Legal Documents as Sources for the History of Muslim Societies Studies in Honour of Rudolph Peters Edited by Maaike van Berkel Léon Buskens Petra M. Sijpesteijn LEIDEN | BOSTON Library of Congress Cataloging-in-Publication Data Names: Peters, Rudolph, honouree. | Berkel, Maaike van, editor. | Buskens, Leon, 1962–, editor. | Sijpesteijn, Petra, editor. Title: Legal documents as sources for the history of Muslim societies : studies in honour of Rudolph Peters / Edited by Maaike van Berkel, Leon Buskens, Petra M. Sijpesteijn. Description: Leiden : Brill, 2017. | Series: Studies in islamic law and society ; 42 | Includes bibliographical references and index. Identifiers: LCCN 2017022411 (print) | LCCN 2017022712 (ebook) | ISBN 9789004343733 (E-book) | ISBN 9789004343726 (hardback : alk. paper) Subjects: LCSH: Legal documents (Islamic law) | Islamic law—History. | Law—Islamic countries—History. | Sociological jurisprudence. Classification: LCC KBP173.25 (ebook) | LCC KBP173.25.L44 2017 (print) | DDC 909/.097670072—dc23 LC record available at https://lccn.loc.gov/2017022411 Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 1384-1130 isbn 978-90-04-34372-6 (hardback) isbn 978-90-04-34373-3 (e-book) Copyright 2017 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner. Contents List of Figures and Tables vii Notes on Contributors viii Bibliography of Rudolph Peters xii Introduction 1 1 Rudolph Peters and the History of Modern Egyptian Law 12 Khaled Fahmy part 1 Regime Change and Legal Institutions 2 The Qadis’ Justice according to Papyrological Sources (Seventh–Tenth Centuries CE) 39 Mathieu Tillier 3 Delegation of Judicial Power in Abbasid Egypt 61 Petra M. Sijpesteijn 4 The Mahdi’s Legal Opinion as an Instrument of Reform Issues in Divorce, Inheritance, False Accusation of Unlawful Intercourse and Homicide 85 Aharon Layish part 2 Practices of Recording and Verifying 5 Identifying the ʿudūl in Fifteenth-Century Granada 109 Sergio Carro Martín and Amalia Zomeño 6 Crimes without Criminals? Legal Documents on Fourteenth-Century Injury and Homicide Cases from the Haram Collection in Jerusalem 129 Christian Müller vi contents 7 From Trash to Treasure Ethnographic Notes on Collecting Legal Documents in Morocco 180 Léon Buskens 8 Notes for a Local History of Falsehood 208 Brinkley Messick part 3 Daily Life 9 Waqf Documents on the Provision of Water in Mamluk Egypt 231 Maaike van Berkel 10 Ottoman Amān Western Ownership of Real Estate and the Politics of Law prior to the Land Code of 1876 245 Maurits H. van den Boogert 11 A Comparative Study of Contract Documents Ottoman Syria, Qajar Iran, Central Asia, Qing China and Tokugawa Japan 266 Toru Miura Index 293 List of Figures and Tables Figures 2.1 Al-Ushmunayn and its area, ninth-tenth centuries CE 54 3.1 P.Vindob. A.P. 2090 64 5.1 Simple and compound signatures 113 5.2 Combination of two signers-notaries 116 5.3 Combination of two signers-notaries 116 5.4 Non-professional witnesses’ names 120 5.5 Signatures of the same notary from 1481 to 1496 122 5.6 Sample of writing 123 6.1 Haram document number 30 168–169 6.2 Haram document number 75 170–171 6.3 Haram document number 292 172–173 6.4 Haram document number 373 174–175 6.5 Haram document number 628 176–177 6.6 Haram document number 642 178–179 7.1 A small store selling second-hand books and documents. Flea market mdina Rabat, March 2015 194 7.2 A legal document with the signatures of the ʿudūl taken out. Flea market Rabat, March 2015 195 7.3 The outer fold of a document from the Meknes collection on the transfer of property 198 7.4 Part of the same roll of documents with traces of taxation and control by the French protectorate authorities 199 11.1 Distribution of judges in the eighteenth century (LCRD 88) 269 11.2 Chronological distribution of cases, eighteenth and nineteenth centuries 270–271 11.3 Contents in the eighteenth and nineteenth centuries 272–273 11.4 Average number of parties in the eighteenth and nineteenth centuries 275 Tables 10.1 The duration of stay of Westerners in Istanbul, Sidon, ʿAkka, Latakia, and Tripoli in the late 1750s 255 11.1 Contents of the Tehran shariʿa court registers 279 11.2 Common items of contract documents for immovable property 285 Notes on Contributors Maaike van Berkel is professor of Medieval History at Radboud University in Nijmegen. Her research focuses on the social and cultural history of Muslim societies, with a particular interest in literacy, court culture, and urban organization. Maurits H. van den Boogert (PhD Leiden University, 2001) is a historian of the Ottoman Empire. He has published two monographs, The Capitulations and the Ottoman Legal System (Leiden: Brill, 2005) and Aleppo Observed: Ottoman Syria Through the Eyes of Two Scottish Doctors, Alexander and Patrick Russell (Oxford: OUP, 2010), and (co)edited several collective volumes. He has also published a dozen articles on aspects of Ottoman history and the history of Oriental studies in Europe. He works for Brill. Léon Buskens holds a chair for Law and Culture in Muslim societies at Leiden University and is director of the Netherlands Institute in Morocco (NIMAR). His research is about Islamic law and society, and the anthropology of Muslim societies, with a particular interest in Morocco and Indonesia. He focuses at present on the multiple relations between scholarship on Islamic law and the prac- tices of colonial and post-colonial administration. In this framework he works on a study on the life and work of the Dutch Orientalist Christiaan Snouck Hurgronje (1857–1936). Khaled Fahmy is professor of History at the American University in Cairo, and currently the Shawwaf visiting professor at the Center for Middle Eastern Studies at Harvard University. His research interests lie in the social and cultural history of modern Egypt. Specifically, he has written on military history, history of law (shariʿa), history of medicine and of public hygiene – all with an emphasis on nineteenth-century Egypt. Aharon Layish (PhD 1973) is professor emeritus of the Hebrew University of Jerusalem. He has published extensively on modern trends in Islamic law with special reference to Israel, Islamization of tribal customary law in Libya and the Judean desert, notes on contributors ix the family waqf as a means of circumventing Islamic inheritance law and as a prop for the social and political order, marriage, divorce, succession and testa- mentary waqf in the Druze family, and reinstatement of Islamic law in Sudan. His recent publications are Sharīʿa and Custom in Libyan Tribal Society. An Annotated Translation of Decisions from the Sharīʿa Courts of Ajdābiya and Kufra, (Leiden: Brill, 2005); Legal Documents from the Judean Desert. The Impact of the Shariʿa on Bedouin Customary Law (Leiden: Brill, 2011). Forthcoming: Revival of Islamic Law in Late 19th Century Sudan. The Mahdī’s Legal Methodology and its Application. Layish was executive editor of Islamic Law and Society from 1994 until 2011 and president of the Israel Oriental Society from 2004 until 2006. Sergio Carro Martín studied Arabic and Islamic History at the Universidad de Salamanca (2007) and defended his master’s thesis at the Universidad Autónoma de Madrid (2011). He worked as a research assistant in the research team “Manuscript Heritage and the History of Texts” (Consejo Superior de Investigaciones Científicas [CSIC] – Centro de Ciencias Humanas y Sociales [CCHS], Madrid), where he began his research in Arabic paleography and legal documents. Since 2011 he has participated in the “DVCTVS National Papyrological Funds” project, man- aging the databases of the Spanish papyrological collections, and the Mummy Labels database of the “Death on the Nile” project. He is currently a PhD can- didate in the field of Arabic codicology at the Universitat Pompeu Fabra in Barcelona, focusing on the bureaucracy of pilgrimage during the first centuries of Islam. Brinkley Messick is professor of Anthropology and of Middle Eastern, South Asian, and African studies at Columbia University in New York. He was the chair of the anthro- pology department (2004–2011) and was founding co-director of the Center for Palestine Studies (2010–2015). Currently, he is director of the Middle East Institute. In 2009, he received the Outstanding Senior Scholar Award from the Middle East section of the American Anthropological Association. He has con- ducted research in Yemen and Morocco, and is the author of The Calligraphic State. Textual Domination and History in a Muslim Society (University of California Press, 1993), which was awarded the Albert Hourani Prize of the Middle Eastern Studies Association, and has been translated into Turkish (2016). He is co-editor of Islamic Legal Interpretation: Muftis and Their Fatwas (Harvard University Press, 1996). His historical anthropology of a textual tradi- tion, Sharīʿa Scripts, is forthcoming from Columbia University Press.