YAACOV LEV THE ADMINISTRATION OF JUSTICE IN MEDIEVAL EGYPT FROM THE SEVENTH TO THE TWELFTH CENTURY EDINBURGH STUDIES IN CLASSI CAL ISLAMIC HISTORY AND CULTURE The Administration of Justice in Medieval Egypt Edinburgh Studies in Classical Islamic History and Culture Series Editor: Carole Hillenbrand A particular feature of medieval Islamic civilisation was its wide horizons. The Muslims fell heir not only to the Graeco-Roman world of the Mediterranean, but also to that of the ancient Near East, to the empires of Assyria, Babylon and the Persians; and beyond that, they were in frequent contact with India and China to the east and with black Africa to the south. This intellectual openness can be sensed in many interrelated fields of Muslim thought, and it impacted powerfully on trade and on the networks that made it possible. Books in this series reflect this openness and cover a wide range of topics, periods and geographical areas. Titles in the series include: Arabian Drugs in Early Medieval Mediterranean Medicine Zohar Amar and Efraim Lev The Abbasid Caliphate of Cairo, 1261–1517: Out of the Shadows Mustafa Banister The Medieval Western Maghrib: Cities, Patronage and Power Amira K. Bennison Keeping the Peace in Premodern Islam: Diplomacy under the Mamluk Sultanate, 1250–1517 Malika Dekkiche Queens, Concubines and Eunuchs in Medieval Islam Taef El-Azhari The Kharijites in Early Islamic Historical Tradition: Heroes and Villains Hannah-Lena Hagemann Medieval Damascus: Plurality and Diversity in an Arabic Library – The Ashrafīya Library Catalogue Konrad Hirschler A Monument to Medieval Syrian Book Culture: The Library of Ibn ʿAbd al-Hādī Konrad Hirschler The Popularisation of Sufism in Ayyubid and Mamluk Egypt: State and Society, 1173–1325 Nathan Hofer Defining Anthropomorphism: The Challenge of Islamic Traditionalism Livnat Holtzman Making Mongol History: Rashid al-Din and the Jamiʿ al-Tawarikh Stefan Kamola Lyrics of Life: Sa‘di on Love, Cosmopolitanism and Care of the Self Fatemeh Keshavarz Art, Allegory and The Rise of Shiism In Iran, 1487–1565 Chad Kia The Adminstration of Justice in Medieval Egypt: From the Seventh to the Twelfth Century Yaacov Lev A History of the True Balsam of Matarea Marcus Milwright Ruling from a Red Canopy: Political Authority in the Medieval Islamic World, From Anatolia to South Asia Colin P. Mitchell Islam, Christianity and the Realms of the Miraculous: A Comparative Exploration Ian Richard Netton Conquered Populations in Early Islam: Non-Arabs, Slaves and the Sons of Slave Mothers Elizabeth Urban edinburghuniversitypress.com/series/escihc The Administration of Justice in Medieval Egypt From the Seventh to the Twelfth Century Yaacov Lev Edinburgh University Press is one of the leading university presses in the UK. We publish academic books and journals in our selected subject areas across the humanities and social sciences, combining cutting-edge scholarship with high editorial and production values to produce academic works of lasting importance. For more information visit our website: edinburghuniversitypress.com © Yaacov Lev, 2020 Edinburgh University Press Ltd The Tun – Holyrood Road 12 (2f) Jackson’s Entry Edinburgh EH8 8PJ Typeset in 11/15 Adobe Garamond by Servis Filmsetting Ltd, Stockport, Cheshire, and printed and bound in Great Britain A CIP record for this book is available from the British Library ISBN 978 1 4744 5923 5 (hardback) ISBN 978 1 4744 5926 6 (webready PDF) ISBN 978 1 4744 5925 9 (epub) The right of Yaacov Lev to be identified as author of this work has been asserted in accordance with the Copyright, Designs and Patents Act 1988 and the Copyright and Related Rights Regulations 2003 (SI No. 2498). Contents Acknowledgements vi Introduction: Issues and Methodology 1 PART ONE The Cadi: Judge and Administrator 1 The Cadi’s Jurisdiction: Evolution and Consolidation 37 2 Sunnī Rulers and their Cadis 83 3 Ismāʿīlī Rulers and the Judicial System 111 PART TWO Judicial Institutions outside the Pale of Islamic Law 4 Criminal Justice and the Police 161 5 The Law of the Market 184 6 The Ruler’s Justice: The MaÕālim Institution 202 PART THREE The Administration of Justice in Non-Muslim Communities 7 Judicial Autonomy: Medieval Realities and Modern Discourse 231 8 The Administration of Justice in a Broader Perspective 259 Bibliography 265 Index 296 Acknowledgements I owe a great debt of gratitude to Petra M. Sijpesteijn and the Leiden Institute for Area Studies for their warm hospitality during my sabbatical at Leiden University in 2012–13. I became aware of the significance of papyrology, and Arabic papyrology in particular, through many conversations with Petra and Khaled Younes and Jelle Bruning, then Ph.D. students at the research project ‘The Formation of Islam: The View from Below’. The year in Leiden was formative for my understanding of how early Muslim history should be approached and studied. I owe an equally great debt of gratitude to Mathieu Tillier of the Sorbonne University, who read the first draft of the Introduction and Chapters 1–3 and offered many valuable corrections and thoughtful remarks. My colleagues Miriam Frenkel and Oded Zinger of the Hebrew University generously shared with me their knowledge of Jewish history and Geniza studies, and offered many useful comments on Chapter 7. It was a great pleasure, and a great intellectual experience, to participate in and contribute to the ‘Histoire et archéologie de l’Islam et de la Méditerranée médiévale’ seminar at the Sorbonne University in October–December 2014. I am grateful to Anne-Marie Eddé, Annliese Nef and Sylvie Denoix for their welcome in Paris, and to Christophe Picard and David Bramoullé for their hospitality in Toulouse during a short visit to Le Miral University. The peer-review system has its imperfections, but I had the privilege of benefiting from corrections, suggestions and bibliographical references to sources and literature made by two anonymous readers on behalf of Edinburgh University Press. During the course of my research I received generous assistance from numerous libraries and librarians. I am much obliged to Marlis J. Saleh, who kindly introduced me to the vast resources of the Joseph Regenstein Library, vi acknowledgements | vii University of Chicago in the summer of 2016. Geula Elimelekh, who vastly expanded the Arabic collection at the Bar Ilan University Library, helped me in procuring sources and literature, while Dina Baum’s expertise with electronic resources proved invaluable. My thanks to all of them. Introduction: Issues and Methodology t the heart of the book lies the largely ignored question of to what extent Muslim law (sharīʿa) was applied in medieval Islamic states and whether A its precepts indeed governed the life of individuals and the conduct of society. This book, however, is not about the formation of Islamic law, but rather about judicial institutions which preceded and paralleled the formation of the law and remained in place unaffected by that formation. The book is also about the political-administrative history that shaped the way justice was administrated, and what the spheres of competence were of the various bodies that made up the system. Four judicial institutions were involved in the administration of justice in medieval Islam: the cadi, the chief of police (shur†a/‚āªib al-shur†a), the market inspector (ªisba/muªtasib) and the ruler (the maÕālim institution). There are ample sources and a considerable body of literature on the way the cadi operated and how justice was dispensed by the ruler. To what extent, however, the maÕālim court – not to say criminal justice dispensed by the chief of the police – adhered to and was congruent with the sharīʿa remains little-discussed. What is known about the chiefs of police in early Islam and the Fatimid period casts doubt as to whether sharīʿ law was applied in the cases adjudicated by them, and how the police gained a monopoly on the administration of criminal justice is another obscure question. The same set of questions is applicable to the ªisba law and the post of market inspec- tor; both became Islamised and perceived as the embodiment of the Koranic dictum of ‘commanding right and forbidding wrong’. Early ªisba manuals, however, are texts with no religious connotations, and the core of the ªisba regulations remained beyond the pale of the sharīʿa. Modern literature on medieval Islam perceives the sharīʿa as an 1 2 | administration of justice in medieval egypt embodiment of Islam as a system of beliefs and civilisation. Joseph Schacht, for example, has stated: Islamic law is the epitome of the Islamic spirit, the most typical manifesta- tion of the Islamic way of life, the kernel of Islam itself. For the majority of the Muslims, the law has always been and still is of much greater practical importance than the dogma.1 I would argue that medieval realities were complex, and that within the system of the administration of justice sharīʿa played a well-defined but narrow place since full congruence between the two obtained only at the cadi’s court. Medieval people and authors were well aware of the situation, which is implicitly reflected in their writings. As a means of realising that my observation is a fair and balanced reflection of medieval realities, one can begin with the famous Aªkām al-Sul†āniyya by Māwardī (974–1058). The topic of the ‘administration of justice’ is not dealt with as such by Māwardī, but the various components of the system are extensively discussed in several chapters. Māwardī’s account of the cadi institution is long and complex, and the discussion begins with the question of who is qualified for the appoint- ment: that is, a mature free-born Muslim male who is in full control of his faculties and endowed with proper moral qualities (ʿadāla) and knowledge of the law.2 According to Māwardī, a cadi’s jurisdiction, or fields of competence (aªkām), involves ten cases, which include resolution of disputes (munāzaʿāt), the securing of rights for those who legally possess them (istifā’ al-ªuqūq), establishing guardianship (wilāya), conducting marriages and divorces, dis- posing of legacies, supervision of pious endowments, and implementation of the punishments laid down by God (ªadd, pl.