[The following is the introductory chapter from The Grammars of Adjudication, which is forthcoming.]

 

Introduction: Adjudication and judicial decision making as discursive formations

This book [The Grammars of Adjudication] has been long in the making. Originally construed as an exploration on the writing of history for Ottoman societies, it has gradually evolved into an inquiry over the possibility of constructing discursive formations centered around the agency of an active self for those same societies. In effect, the present study combines both dimensions--the writing of history in light of discursive formations--as discourses are looked upon through their historical formations.

Notions of agency, self, and discourse, have become common ground in western civilization, but are rarely elaborated for civilizations whose contribution to modernity is considered as problematic. In the case of Ottoman societies, contemporary historiography has been in the last few decades focusing on the objective side of social and economic relations. Such relations are looked upon as objectively organized by means of the institutions that made their existence possible. The downside of such an approach, however, is that all kinds of textual evidence, out of which the historian patiently reconstructs the institutional logic of those societies, are used precisely in their role as "material evidence" for what effectively took place. Those texts--often referred to as "records" or "documents"--are, however, seldom discussed in terms of their discursive formations and the representations that they carry. We are therefore in the strange situation where all kinds of texts achieve an evidentiary role through their excessive historiographical use, but the way such texts were drafted, including their discursive logic and their authorial intentions, remain for all purposes unexplored. The Ottoman Empire thus looks endowed with a richly intriguing civilization matérielle without, however, the corresponding systems of thought.

To be sure, Ottoman societies did not manifest the creative energies of the early Islamic empires, so that their intellectual movements and infrastructures look no more than a continuation of movements that had matured through 'Abbasid absolutism, and of practices introduced during the Seljuq, Mongol, and then Mamluk rules. Such practices were mainly characterized by a general decline of centralized bureaucratic values in favor of more parceled out and fragmented jurisdictions governed by militarized amirs ("princes"), in conjunction with the urban power of the notables (a'yan). Thus, the excessive militarization of public life, in conjunction with the massive ownership of rural lands by the state, has placed the urban bourgeois and merchants classes into a position of subservience to the local notables, who for the most part received their land-tenures from the amirs, on the one hand, and the militarized imperial bureaucracies, on the other. In short, and despite attempts to create a semblance of urban life through investments in mortmain properties (waqf, pl. awqaf) funded either by private parties or high-ranking officials, cultural and political life was still heavily dominated by the imperial center, so that no effective bourgeois life came into existence, one that would have at least provided for a semblance of cohesion and autonomy to the cities.

The Ottoman Empire was thus grosso modo a continuation of such practices and their perfection into what turned out an effectively planned bureaucratic experience with a multitude of regional back ups. Yet, despite the bureaucratic achievements and organization, in particular in the domain of the law (qanun), it remains to be seen what the discursive formations for those societies looked like: What was their mode of organization in relation to the societies from which they had emerged, and according to which logic were they related to past practices?

To begin, we need to question why is such an enterprise necessary, and what are its benefits within the historiographical writings of the modern Middle East. Discourse analysis forcefully brings into the picture the "modes of thought" predominant in a society at a particular juncture. It thus forces us to think in terms of the main societal ideas without, however, necessarily breaking them into their disciplinary components. Aspects of a legal discourse, for example, might be shared by mystical sufi practices, which, in turn, might act in conjunction with broader components of state ideology. If our overriding concern is focused on representation and discourse it is because texts embody or enact meaning, and make ideas palpably present to the imagination. In other words, texts embody a "personality" of their own, but only if their logic is in toto respected and reconstructed.

To be sure, the notion of "text" need not be limited, as it often is, to the "literary" production of a society, and should be expanded to all kinds of written material available to the scholar. For the purposes of this study, a heterogeneous textual material--but all of which falls within a broad definition of the "legal"--has been juxtaposed together with the explicit aim of looking at judicial norms from a multitude of perspectives. Thus, fiqh manuals, epistles, responsa (fatawa, s. fatwa), shari'a court records, minutes of the regional councils, and sultanic legislation, have all been brought together to perceive their inner logic and how they embody meaning in their practices. The purpose is to perceive the overall logic of such discursive practices, which were dispersed along several institutional frameworks, from the assemblies of the scholars of the law, and up to the shari'a courts, regional councils, and sultanic legislation.

Such an enterprise, however, does not come without its own risks and methodological problems. To begin, and even though I've repeatedly used in this book the expression "Ottoman legal system," it remains uncertain whether such diverse discursive practices could in effect all fit within one "system," meaning a comprehensive set of normative values that would act together in one coherent whole. I address specifically that issue in Chapter 4, namely the question of the legal representations of property, and what emerges is an inconclusive amalgam of diverse representations whose overall incongruence only reflects the diverse institutional frameworks from which they had emerged. Thus, while private property transfers, mostly along kinship lines through procedural fictions, took place through the shari'a courts and hence obeyed some of the basic rules of Hanafi practice, state-owned miri lands fell for the most part under the jurisdiction of the regional councils. More importantly, however, the late Hanafis did not contribute much towards an understanding of the miri-iltizam system and remained entrenched in the old parochial concepts of property, rent, and taxation. In short, we are left with various notions of property and contractual rights originating from different aspects of the "system."

In effect, the problem comes in conjunction with another poorly understood phenomenon. It is thus generally assumed that a legal system operates in conjunction with a socio-economic one. Yet, and considering the problems in defining the "legal" in such societies, which I will limit to juridical and judicial norms, the encounter with an "economic" sphere as such is even more problematic. In fact, and this should come as no surprise, there were no autonomous discourses of "economy" or "political economy" in Ottoman societies. If "economics is a form of social inquiry peculiar to capitalist societies," then it is indeed unsurprising that Ottoman societies failed to produce such a literature. Yet, much of contemporary Ottoman historiography has specifically centered on what it labeled as the "socio-economic" without addressing the fundamental issue of a lack of an indigenous literature on the "economic." But considering the impossibility of such a literature, the issue then becomes of whether the "socio-economic" could be addressed on its own, as if endowed with its own rationale and mode of existence.

Indeed, the problem runs much deeper since not only the "economic" could not be addressed outside the "legal," but both spheres, in turn, cannot co-exist outside the discursive totalities of Ottoman societies. For that very reason, I use both "economic" and "legal" in conjunction with a totality of discursive practices, while I avoid Hanafi "law" in favor of the more elusive Hanafi practice. The point here is to be alert on how those societies have discursively framed their own practices, while avoiding simple-minded anachronisms. Then, at another level, the construction of discursive practices would take into consideration how those societies had framed their views on the state, the economy, the market, and the law. Otherwise, such entities would seem like oppressive words without much content, and with modern connotations injected into them.

I therefore assume that in Ottoman societies neither the "economic" obeyed the rules of nineteenth-century capitalism, nor did the "legal" as such fall within the domain of "rational" law. In fact, as I argue in Chapter 3, the laws of property and contract were not even framed within clearly defined notions of "production" and "labor." Moreover, since both the economic and legal cannot be dissociated from the totality of discourses produced in society, their respective roles must therefore be thought in conjunction with the religious, moral, political, and hence with the linguistic components of those cultures.

Considering that Ottoman societies did not produce an economic literature as a form of inquiry, by contrast the fiqh as a form of jurisprudential knowledge could pose itself as a domain whose mode of inquiry was total, even encompassing an implicit economic rationale. To begin, I argue in Chapter 1 that the scholars who worked in the domain of the fiqh did so on the basis of a total experience, and with an awareness that both the juridical norms and the customary practices of a particular society could only be formulated within a linguistic framework, one which in effect begins with God's discourse (khitab) as a source of normative rules and open for interpretation through the enterprise of the fiqh. It is within such a framework that property and contractual rights would find their place--one where ex cathedra rights had a prime importance. But property and contracts notwithstanding, the "economic" would have to be formulated through the juridical norms of the fiqh and the process of judicial decision making. With such an undertaking, we will, to be sure, reach a level of legal and economic inquiry that would not have to rely solely upon modern notions.

One major advantage of an approach that reconstructs the discursive norms of a society is that a blatant anachronism with modern notions could be avoided. It has thus become customary to question the "economic" in modern Middle Eastern societies with notions such as unemployment, inflation, price, profits and earnings, not to mention the dubious division between state versus private enterprises, all of which assume fully operative capitalist economies and hence an economic form of inquiry developed by those societies. Yet, nothing remains more uncertain than such presuppositions. For one, they assume that the same concepts could be fully operative and meaningful across the board. For another, there is no concern with any language produced by the societies in question which might shed some light on how the economic is thought in conjunction with the legal or political. Finally, capitalism in its developed form assumes at its bare minimum a process of capital accumulation, a market allocation, and sharply divided realms between private and public, all of which have yet to materialize in our kind of societies before some basic economic notions become operative and meaningful.

Our démarche is therefore concerned with the status of "knowledge" ('ilm, ma'rifa) in Ottoman societies, and whether from such a standpoint future research could follow the thread up to the colonial and post-colonial periods, thus opening to the possibility of a historically construed social, economic, and legal thought. Several caveats, however, stand in our way to complete such an operation. To begin, the historicity of the fiqh enterprise is in question, and we are confronted with the broader problem of the representational in pre-modern discourses. In fact, even though such discourses do normally act within a notion of time and space, they do not historicize their practices in such a way as to perceive their discursive units as the outcome of a particular historical epoch. They act against time, it is safe to assume, by looking at their enterprise globally in terms of a totemic origin and founding fathers whose achievements constitute the "foundations" (usul) of the school (madhhab). A "hermeneutic circle" thus develops where the layers upon layers of interpretations were left without their historical connotations. The historian is thus left with the arduous task of historicizing the hermeneutic enterprise of past scholars, but again, the difficulty here would be to behave anachronistically and assume that each historical period comes with its own social relations and brands of discourses. In fact, such a modern view of historical change, one that usually assumes a "democratic" approach from the bottom of social relations up to the legal and political relations, might force into Ottoman societies a discursive coherence that was probably not even there in the first place. Moreover, and since scholars did not frame their own enterprise historically, this lack of historical self-reference cannot be projected by a modernist discourse at all costs. In short, the historical nature of change in Ottoman societies is a difficult matter with which we need to experiment more carefully before reaching any conclusions on the nature of that change.

The other difficulty hinted at earlier, and that's in conjunction with the historical problem outlined above, concerns the way "cases" and "texts" were constructed. Again, as before, anachronism is a danger. In fact, we are used to systems of justice where the "case" is constructed as an external object of investigation, and whose outcome should be objectively scrutinized. Such objectively construed procedures, however, besides their social cost, assume an epistemological ground which is far from being universally applied. From all the cases contained in this book, it is not that difficult to discern that an objective epistemology stance does not apply here, and that the object of each case tends to be construed through procedures, and often on a fictional basis (see Table 2-2). Thus, the contact with the object is not what really counted, and what mattered were procedures of validation (more so than verification and objectification), mostly through witnessing, but also through a bargaining between the two parties and the judge. But since witnessing did not involve any examination or cross-examination, and since the "facts" were provided by the participants themselves and their validation was at the mercy of the other party, the construction of each case rested on purely procedural matters.

To avoid anachronism we need to listen carefully to the texts of the scholars and see how they managed to formulate their legal concerns within broader notions of language, discourse, interpretation and hermeneutics (see Chapter 1). Both custom and the practices of the courts were perceived in terms of their linguistic components which were to be limited mostly to the "external meaning" (al-ma'na al-haqiqi) accepted within the community. That meaning could even override an established norm in the canon, unless originating from a Text (nass) of a holy nature. Evidence within the court system was, in turn, based on the linguistic performance of the disputants and the judges (see Chapter 8), so that an acknowledgment (iqrar) from the other party, or a silence on evidence, meant the acceptance of statements uttered in court of an evidentiary nature. Even in homicides, evidence was no differently managed as it did not rely upon an objectification of the crime, but rather on the tool-of-the-killing as evidence (see Chapter 11). Litigation thus absorbed communal feuds by proposing contractual settlements.

The set of methodological problems explored thus far reveals difficulties that scholars encounter with pre-modern discourses in general, and also points to the broad division between formally rationalized systems and those not formal enough to engender systematic codes. In the same way that economics as an autonomous discourse only begins to exist with the advent of capitalism, and so does a formalized system of justice. In Ottoman societies, there was too much influence from the religious and political, and too much of an economy that was based on status and rank and the massive state ownership of property (hence capital as rent), for the judicial to act as an autonomous system on its own with all the implications for such an autonomy (for example, a predominance of purpose contracts over contractual settlements affected by status). Thus, even though modern research has pointed to the fact that even "formal" systems of justice tend to be influenced by extra-judicial factors, in particular when it comes to crime and punishment, the difference between modern systems of justice under laissez-faire capitalism, and others where the juridical acts in conjunction with extra-legal norms, should not be underestimated. Such distinctions are crucial to understand the transitional character of many legal and economic systems today.

The blank point in contemporary historical research
Ottoman historiography has created a "neutral" discourse--from the "outside"--for the social and economic history, which, in the last few decades has set itself as the dominant genre. Texts and documents are thus used for different purposes, but the material is not worked through them; that is, this socio-economic history is reconstructed without knowledge as to how those texts themselves generate knowledge of those same entities that modern historiography envisages as "essential" from its own perspective. But not only should we ask whether they were "essential" from the perspective of those texts which served as the "raw material" for the historian's own narrative, but more important, whether they all came as one of those discursive tropes that organized the textures of those indigenous texts. Were such things as labor, employment and unemployment, price, taxation and rent, raised to the status of discourse, and under which circumstances? The modern historiographical discourse achieves, at times, even for societies with an abundant literature and a massive documentation, as is the case with the Ottoman Empire, the status of the anthropological narrative, which is primarily aimed towards those sociétés sans écriture. Because they lack that capacity of writing their own narratives--even though their oral mythologies are looked upon as narratives of their own--the anthropologist becomes the one who reconstructs in writing the discursive narratives that those societies could not complete on their own. And even if the anthropologist manages to multiply interviews, personal observations, and direct fieldwork notes, her narrative remains reconstructed without much challenge from indigenously created texts. Historians of the Ottoman Empire, even though have at their disposal a massive textual evidence, behave in a way no different from an anthropologist who has to reconstruct everything from scratch, while using everything at her disposal precisely as mere evidence, no more. We are therefore faced with societies whose discourses seem to be of no major interest to the historian: either that they look remote from the historian's preoccupations, or else they are silent on what modern historiography is mostly preoccupied with (particularly the Braudelian civilisation matérielle), or that the "factual elements," which they supposedly carry, have more value than the discursive representations themselves.

The essential question therefore comes down to being able to construct the historical evolution of all kinds of discursive practices for Ottoman societies, while bypassing the dubious distinctions of "theory" and "practice," or "material life" and "epiphenomenal superstructures." Thus, and to limit myself to one obvious example regarding the traditionally accepted "material infrastructures," such things as property, contract, tort and crime, all shared similar representations within the discourse of the fiqh, and it remains to be seen whether it would be possible to trace them within an historical perspective of any value. This implies, for example, that a concept such as property would be discernable specifically for the nineteenth century, and that an evolution of that concept would be possible to track down from the previous periods. But, upon closer examination, we are faced, on the one hand, with the possibility of several discourses on property emanating from different power relations, and with the other possibility that the practices of the courts and the firmans emanating from the imperial center might also reveal a not so explicit discourse on property, on the other. By then, the whole problem of congruence (or lack of) of all those discursive practices--assuming, of course, that several did in effect co-exist--would be crucial. Property would then look not only as something that would be acquired, possessed and occupied, transmitted, inherited, purchased or leased, or confiscated by the state, but also as something that is normatively constructed alongside contract, tort and crime.

A major problem, however, comes into the picture whenever reconstructing the logic of discourses that are locked into their past. Because, for example, the fiqh literature works in reference and in a self-declared harmony with a variety of canonical texts, whose scope varies in importance from the scriptures to the foundational texts of the school, one needs a great deal of skill to discern what would then be considered as "belonging" to a specific period, say, the nineteenth century. In effect, an opinion is typically stated in conjunction with an analogical set of statements from earlier periods, and which could be put together in no particular textual order, but all of which were brought for the specific purpose of manifesting an adherence to a tradition. The difficulty then becomes in being able to discern from the plethora of declared opinions and counter-opinions in the shuruh and fatawa manuals, both of which were the dominant nineteenth-century genre, the ones that manifest the author's "own period." We should therefore discern with great care what scholars and lawyers delimited as their own "space" (that is, geographic era) and own period, so that such commonly used terms as biladu-na and zamanu-na have to be contextualized within the layers of discourse which juxtapose various periods together.

We are therefore placing together a great variety of texts--shuruh manuals, epistles (rasa'il), edicts (firmans) and sultanic legislation, responsa and court records, etc.--into a single space--that of the present study. The purpose is to see how various texts, which for the most part have been created independently of one another, and which might have ignored one another's existence, can still work together. In fact, the "unity" of both the juridical and the judicial (the decision making of the courts) is always assumed but never fully investigated. How do all those discursive elements come together, and should they come together at all? What purpose does a discursive practice serve if it fails to "connect" to what it was supposed to adhere to in the first place? If, for example, legal doctrine, the shuruh manuals, and the rasa'il, were a world apart from the fatawa and court records, then what purpose did they serve within the enterprise of judicial decision making? And, more importantly, is it possible to discern a historical existence for all those discourses, one that would root them within a specific historical phenomenon rather than simply discern occasional changes in their structure? In short, we would like to render visible the structural principles beneath all the discursive practices that we are bringing together within the space of this study, and, more important, to unearth essential affinities between discourses that might seem remote from one another. How, in this totalizing perspective, these spheres can be reconciled, fused, integrated, and eventually collapsed into each other so as to form a single coherent historical phenomenon is precisely the ideological problem at stake? Or, alternatively, if such discourses fail to reconcile, then what are the implications of such a failure?

Adjudication in light of judicial decision making
This study is divided between the early chapters that pose the status of Hanafi doctrine in its fin-de-siècle period before it was phased out as the main source of law and adjudication, on the one hand, and other chapters that propose individual histories of court and regional councils cases, on the other. The purpose is therefore to analyze judicial decision making and its relation to legal doctrine formation. One thing that clearly emerges from the case studies is that their procedures were perfectly well routinized to the point that the judge was only left with a predictable outcome. In fact, most of them were contained within well regulated procedural fictions that would formally pose the case as a litigation between disputants each claiming long vested rights over a property or set of properties. By contrast, even though genuine litigations had a more unpredictable structure and outcome, "hard" cases were nevertheless settled thanks to a mufti's fatwa (Chapter 7), but those were a rarity in a sea of well routinized procedures. In effect, such well crafted procedures simplify tremendously the task of selecting cases through "type-contracts." Cases could be organized into different topoi such as sharecropping, waqfs, crimes, property transfers, and then finessed even further into smaller subtopics; the problem then becomes one of finding a global structure, if any, for each topoi: for example, did some or all of the sharecropping cases fall under one general structure? If the answer is positive, then it wouldn't matter for our purposes which case is chosen. In fact, once a particular procedural structure is detected as a topoi, other similar cases, either from earlier or later periods, would only matter as long as they manifested significant procedural differences, at least ones that would show a substantive shift. Otherwise, the small varieties that might be detected within a topoi--or a type-contract--could be relevant from the standpoint of social history in that the data contained in each case would form the base for a statistical, descriptive, or analytical work of some kind. However, the meaning of such data is primarily revealing in the context of the structure of adjudication that made the case possible in the first place, while social and economic history only helps in widening that legal context by bringing societal elements that the law only vaguely assumes as present. Procedural fictions (Table 2-2) were thus no more than concealed contractual settlements whose purpose was to validate property rights that would have been otherwise difficult under normal procedures. Each one thus constitutes on its own a type-contract, or a contractual formula, which greatly helps in unearthing the structure of cases that would otherwise be incomprehensible and dissociated from one another.

The meaning of specific procedures could thus be individually detected for each case. Considering that the fiqh manuals were generally short on procedures--and even more so on procedures that would effectively work at that particular time, location, and case--how were they worked out, and who constructed them? And, finally, how did they relate to the fiqh literature? One way to understand court procedures is to perceive them as discrete units--or as "plug-ins"--which could make sense either individually in relation to the fiqh literature, or as part of a procedural structure, hence in relation to one another and to the case at hand. Let us assume for the sake of simplicity that a procedure involves five different steps beginning with the plaintiff advancing her claims against the defendant, and ending with the judge closing the case with a ruling. Generally speaking, each step ought to be looked upon as conforming either to a general or specific rule in the fiqh; but when all steps are placed together side by side in the order that they were introduced in the case, a procedure emerges and the implications of each step might indeed change within that context. For example, several of our cases involves a debt-procedure (Chapter 5). In Hanafi practice, the concept of debt shares a long history beginning with the notion of debt as a form of property: the debtor owns as property what his creditor exchanged with him (tamlik al-dayn), and is again possessed by the creditor once the debtor refunds his debt; it thus falls side by side with the property of the tangible thing ('ayn), and "usufruct" (manfa'a) (a fourth form of property consists in the husband possessing his wife's vulva, an outcome of the marriage contract). However, the debts that initiate our cases were not genuine ones, and their purpose was precisely to initiate a (fictitious) lawsuit so that the defendant's (or his representative's) non-payment of a (symbolic) debt from the plaintiff (or her representative) becomes a delictum that needs to be addressed by a shari'a court. But such a reading of the debt-procedure is only possible in the context of the case as a whole, which might end up with a contractual settlement (or a type-contract) in which the debt only served to initiate the suit and to identify the alleged disputants and their representatives.

Once the plaintiff kicks his or her claim, it then becomes a question of who--between plaintiff and defendant--can furnish evidence, and how that evidence is furnished. On both counts, however, the courts clearly and unmistakably follow either the general or derivative rules of the fiqh (see below), but it all comes as to how they were juxtaposed together in conjunction with other procedural links in order to constitute a "case." In fact, once looked upon in the context of the case as a whole, the procedural links will, to be sure, be perceived altogether differently.

Out of the large number of opinions that were produced in the long history of the fiqh, some were forgotten and fell into desuetude, while others were still debated by jurists even though their practical significance remained uncertain, and a final category of opinions was "in use," at least in the shari'a courts. But what was it then that defined, for Hanafi practice, its major paradigms for a historical period? And did such a practice think in terms of a congruence with a historical phenomenon? In fact, it is one thing to construct the coherence of a body of fiqh texts by working out its historical evolution, and it is another to identify it with a historical phenomenon.

The issue that is of concern to us is that of adjudication. Adjudication, even though primarily a court activity, is not limited to the latter. In Islamic law, scholars and lawyers adjudicate between the opinions of their contemporaries and predecessors; and muftis have also to adjudicate, hence to draft responsa whenever presented with a hypothetical (fictitious) or actual (genuine) issue; so that the adjudication of a judge is one among several possible ones, even though the system as a whole only opens up to the wider public through the courts and their judges, hence their importance.

The Ottoman shari'a courts were endowed with at least two interrelated but distinguishable functions: they determined facts, and they interpreted authoritative legal texts; it is also debatable whether they contributed in making any new law, or even pushed for new public policy. Only the second function, that of interpreting texts, is the most familiar and least problematic, while the other two could pose serious arguments. What kind of fact-finding did the courts do? Little, if anything at all. To take one example among many, the reliability of the long list of disputed properties, usually included in each litigation (see Chapter 5), was hardly disputed by the courts. In fact, it was up to the opposing party to accept or challenge the accuracy of such factual information either partially or in toto. Moreover, confirmation was left to a couple of witnesses, which anyhow were never subjected to examination or cross-examination: their veracity was also left to be accepted or rejected by the other party. There was nothing that could be described as "investigative procedures" in any of the homicide and criminal cases analyzed in Chapter 11: indeed, in contractual settlements the aim was neither to investigate, punish, discipline, incarcerate, or rehabilitate an alleged criminal, but only to seal a contractual settlement between the parties. There are many arguments that could be put forward either in favor or against fact-finding in Ottoman courts, some of which will be explored as we progress along our cases, both the civil and criminal, but it is possible to limit at the outset any false expectations as to the nature of "facts" in those courts. Fact-finding, as practiced in most modern legal systems, assumes investigative procedures that fit within a particular epistemology of knowledge, one that, since the eighteenth-century Aufklärung philosophy, assumes the duality of a knowing subject and an object to be known. Whatever the nature of the investigation, be it scientific, legal, or social (e.g. administrative), the assumption is that the object to be known must be constructed with the suitable research tools independently of one's subjective assessments (or values). Needless to say, if the Ottoman courts did develop at all any investigative procedures in any of the civil or criminal cases, their epistemological background is very different from the one commonly assumed today. To begin, a "case," whether one eligible for a court hearing or a fatwa, is perceived in Hanafi practice as haditha, or "event," that is, as something unique enough all by itself so as to necessitate the intervention and care of a legal authority, be it a judge or mufti. The treatment of a case-as-event, however, required less a policy of fact-finding from the court authorities than finding a just and honorable solution to all involved. In short, facts were selectively brought by the parties, and it was left to them to corroborate, accept, suspect, or reject.

Which brings us to the other crucial and equally controversial issue of judicial policy making. We know for certain that courts were supposed to interpret legal texts and base their decisions on such readings of texts, and this, to be sure, they did very well. (I temporarily leave here the issue of whether that involves interpreting texts of previous cases, and thus whether precedent plays any role.) However, policy making is involved whenever the courts create a new law--and one with "public" implications--one that either did not exist in the texts as such, or could not be reached through interpretation. Islamic law accepts ijtihad, or independent reasoning by means of analogy (qiyas), to all jurists who have reached the status of mujtahids, and the Hanafis did accept ijtihad even for judges. So the question is to see whether the judges did create new laws that led to policy making. The nineteenth century proves less promising than the previous ones: by that time, cases were far more routinized and more predictable; their range of topics had been reduced considerably even before the modernization of the courts (guilds, for example, ceased since the late eighteenth and early nineteenth century, to refer their litigations to the shari'a courts); and "hard" cases--whenever there was one, which was a rarity--were routinely pushed to a mufti, if not by the judge himself, then by one of the parties (Chapter 7). All this does not point to any policy-making activity (or newly defined judicial decision making) and the enactment of new laws for that matter. It might indeed seem paradoxical that over time the activities of the courts have gradually grossly been simplified, with less and less out-of-the-norm cases showing up, while everything else does suggest that Ottoman economies and societies became more imbued with commercialism. Yet, in spite of the legislative activity in the pre-reform era, much of it was not destined to the shari'a courts in the first place. Indeed, sultanic legislation, even though at times communicated to the courts and made visible in their registers (Chapter 10), was primarily destined to the regional councils, even those of the pre-Tanzimat. In effect, judicial policy making as such belonged to those councils to such a point that their policies often bypassed the legislation that they routinely received (Chapter 9).

But despite the aggressive nature of the regional councils and the fragmentary nature of their legislative and decision-making process, the shari'a courts were not left without some judicial inventiveness of their own. To be sure, one of the most underestimated and poorly-understood practices of the courts were those involving fictitious litigations (Table 2-2). Procedural fictions were nothing but simulated contracts or conveyances validated through a fictitious litigation and a ruling. The aim was thus to go beyond a rigid law of contract and its limitations. But does that constitute genuine law making or simply patching up bits and pieces of old procedural methods? As those litigations will be examined at length, let me suggest at this point that fictitious litigations did not touch upon substantive law but only stretched its procedures so as to accommodate the needs of the times. In effect, and between the full ownership known as milk and the state ownership of miri lands, exists several categories of "possession," often referred to as "occupation" (wad' yad). The fact that possession was neither full ownership nor a form of lease as such, has led to a movement that requested ownership after a period of property occupation and use. Even though the general notion for claiming a property right through occupation was endorsed among Hanafis, it was left to the courts to routinize all procedural matters to such a point that the hands-on technique became a main source for fictitious litigations, and hence for contractual settlements and conveyances. Moreover, the Hanafi law of contract has been much expanded through fiction to accommodate contracts where neither the delivery of the product nor the mode of payment were quasi-simultaneous.

The study of Ottoman adjudication remains frayed with obstacles, some are in relation to modern scholarship, while others are of an ideological or political nature which reflect how the judicial perceives itself and how it is perceived in society. In the last three decades, historians have manifested a particular attention towards the shari'a courts documents, but only did so from the point of view of social history thus bracketing off adjudication altogether. As to the firmans, laws, and edicts, they were neglected both as a source of social history and adjudication, but whenever taken seriously, the forms of adjudication implied in such documents was never an issue all by itself.

But if adjudication has been forgotten in modern scholarship, it is because it is mostly perceived as a passive practice--that of "applying the law." What do judges do but "apply the law"? Applying the law generally implies either a direct interpretation of a text or statute, or at best, a risky interpretation, one that forces the text in a direction hitherto unheard of. Thus, even the possibility of a fully creative adjudication, one that pushes for new judicial policies is typically occulted. Even in democratically administrative societies like the United States, judges are perceived as "applying the law" in an impartial and just way, to the point that it has often been argued that judicial policy making should be looked upon as pure heresy and a deceit of the system, or a politicization of the legal, which in itself degrades the system, and only recently have such attitudes began to change.

How court narratives work: the benefits and limits of case analysis
This study, which is centered on a selection of cases from Beirut and Damascus, would like to question the following premises: (1) What is a legal "case" in the context of an Ottoman shari'a court? (or, alternatively, what does constitute a court case?); (2) Are "cases" relevant enough to be studied for their own sake on a one-by-one basis?; (3) Is the shari'a court judicial decision-making process a case-law system, and what is exactly meant by that term?; (4) Assuming that "cases" are important enough on their own to get us into the system, how do we then analyze cases: should they be looked upon as narratives that follow the same rules of speech as any other narrative? Or are they primarily legal narratives that obey the ground rules of the fiqh discourse?; (5) How do independent cases interconnect with one another so as to provide a broader picture regarding the inner functioning of the court system, and possibly even the legal system as a whole?; (6) Are there cases that could be regarded as more important--or more relevant (i.e. "leading" cases)--than others so as to establish a hierarchy of cases within the system?

Students of the shari'a court records--in particular the Ottoman period, whose records have survived the most--are generally faced with the non-interest that those cases have received in legal circles. In fact, court cases, which are now particularly valued by historians, have just begun to receive the attention they deserve from legal historians and lawyers as well. However, those same cases have rarely, if at all, been the subject of attention by the jurists of the Ottoman period, or the pre-Ottoman for that matter. Thus, unlike the responsa, which often ended up compiled, revised, and edited, for purposes of maintaining the tradition among muftis and scholars, or even for learning how to create new responsa through an ijtihad process, the court cases have at no point in Islamic history been subject to any degree of scrutiny from scholars and lawyers. Nor did judges, who commanded the judicial decision-making process, manifest any interest in compiling even what might be considered as their "leading" cases. Moreover, the peculiar status of the shari'a courts as the bearers of law for the communities that they represented, left them outside the hegemony of the state bureaucracy, whether central or local, and hence no attempt was made to bureaucratize the system either. Nor was there any attempt by the Hanafi authorities, whose teaching and recruitment methods were conserved within the narrow circles of the 'ulama', to bureaucratize the system and keep track of decision making, or to create a systematic judicial review (or "law reports"), which would have had at least prompted more interest in the inner workings of the courts.

Rather than be left unbound in loose sheets, as they apparently were in pre-Ottoman times, cases were thus kept in their original qadi's registers (referred to as sijills in the Ottoman period, and diwans in the pre-Ottoman era), a process that definitely led to their long survival. But with no attempt from jurists to understand and formulate the modus operandi of decision making, those cases were left precisely for what they were supposed to be, as "events" (hadithas) for which the judge had to give a "just" and fair ruling. The point here is that jurists and scholars alike felt no need to re-adjust and re-conceptualize their doctrine of adjudication (referred to as adab al-qadi) in light of the findings of the courts. In short, the courts were supposed to "apply the law," and hence their inner workings represented no special interest not only to legal doctrine, but to the furu' and shuruh as well. But did courts apply the law to "facts"? The notion of "fact" was close to what jurists understood by haditha or waqi'a, but in either case the "fact" was not any detail as such, but more like an "event" for which the fiqh had no immediate solution, and that therefore lawyers and judges must have payed special attention to. Specifically, therefore, there was no conception of datum as such, but only of "events" that bear a particular significance to either doctrine or furu', some kind of datum-with-significance, if you wish. Those came side-by-side to the well known "questions" (matlab, mas'ala) of the fiqh manuals, in particular the shuruh, and, considering their importance, the faqih must have seriously considered as genuine challenges. But it is questionable, however, whether all those "questions" and "events" had eventually posed any challenge to doctrine so as to revise it substantively in any of its aspects. Thus, while "questions" and "events" were punctually treated and appended to the shuruh manuals as such, "cases" were left outside the realm of the fiqh manuals, whether usul or furu'.

The difficulty that a legal historian therefore encounters is one of methodology. If cases, apart from being simply remembered by judges and their scribes, and preserved in sijills (disputants were also provided with copies of the hukm) for purposes of conducting the usual court's business, had no particular impact, should the historian therefore create for them a role that did not exist in the first place? In other words, if Ottoman jurists and lawyers did not find it worthy to review their court cases, compile and edit them, and review, if necessary, their doctrine accordingly, then what kind of role is the modern historian supposed to find in those same cases? The importance of the question stems from the fact that, assuming that our enterprise is fully conducted, one can only hope for a hidden role to court cases, at least one that jurists never thought about, never addressed in their writings, but nevertheless had influenced the judiciary as such. Case analysis would thus acknowledge what the system itself had failed to admit in the first place. In other words, case analysis would have to construe a role to cases within the legal system in light of the non-acknowledgment of the system to such a role. An archeology of cases would thus achieve knowledge and understanding of the law by bringing cases, doctrine, and furu' together, an approach that the dogma of the fiqh avoided. Historians should therefore go beyond the assumption that the principles of the fiqh, which embodied anything from doctrine, usul, furu', shurut, shuruh, adab al-qadi, and responsa, were exemplified in the court cases. In fact, such an attitude considerably reduces the canvas of experimentation that could be applied to cases, and the possibility that their relevance goes not only beyond the prescriptions of the fiqh, but more importantly, contributes towards an understanding of societal values.

Ignored by pre-Ottoman and Ottoman jurists, the empirical investigation of cases is generally met with great reluctance by historians who are anxious when it comes to iconoclastic theories of legal decision, some of which tend to push towards inherently indeterminate and contradictory principles of adjudication. Contextual information proves to be the most problematic, and, in the face of uncertainty in terms of what the empirical elements of each case might bring, historians typically, if not unconsciously, revert to the opinions of scholars and lawyers that the law moves from case to case by following its integrity and its own internal logic. Such a logic, however, only reinforces the difficulties--all of which can be expressed in the form of conundrums--that any archeology of cases faces: If judges are only supposed to apply the law, what happens then when a judge encounters a case that does not fit within the usual norms of adjudication? When judges did provide an "explanation" to their hukm--which they seldom did--should such explanations be taken at face value as what eventually led to the ruling, or do we have to explore other possibilities and other motivations? And, alternatively, when no explanation is provided, and when the ruling seems to have been the outcome of old routinized procedures, where should the historian begin his investigation regarding the possible sources of ruling? What does constitute a "context" for a case, in particular that each one is represented as self-sufficient and heavily edited by the judge and his scribe? How is it possible to determine which part of the fiqh proved "relevant" for a ruling? Is it possible to speculate on the possibility that courts did not simply apply the law but also contributed in making it, in particular when faced by rigid laws and procedures that did not match the social needs of their own times?

Finally, the question of a possible hierarchy of cases, or that of "leading" cases. Again, as before, in the absence of the jurists' and judges' own evaluation of cases and with no explicit reference to any precedent (it is even debatable whether precedent as a rule of law did even implicitly exist), the historian is left with choices of his or her own making. The question is posed at its most obvious level when "referring" to or quoting specific cases: there were simply no standards for referring to cases or quoting them for that matter, and the historian is but left with an arbitrary choice of her own, which often amounts to a contemporary numbering of cases and their respective pages in registers. The arbitrariness of cases has therefore no easy solution, and like the oblivious attitude that jurists maintained towards case analysis, contemporary scholarship cannot simply reconstruct and impose an order that was originally not there. The historian would thus like to create a niche for cases whose memory and impact never went beyond the judge's courtroom, and within a system that neither had precedent nor law reports nor judicial review, and his enterprise would have to accommodate such a neglect as part of the system of meanings that the judiciary created for itself. Laws were not manmade, and the bearers of law came within a hierarchy that determined their degree of creativity in interpreting the scriptures; and the courts were thus only a small part of the system, with no contribution at all in lawmaking.

To be sure, the anxiety that the law faces à propos the empirical nature of court cases and their eventual dismissal is not only common to systems that could be affiliated with the sacred, meaning all systems based on divine revelations and scriptural texts. Thus, for example, to compare with another case-law system--even by no means sharing similarities with shari'a law--the English common law had all kinds of lawyers and scholars from Glanvill, to Bracton, and Blackstone, all of which based their assessment of the common law on published law reports (or law cases). But that reliance on cases was also limited and never went beyond a certain point, namely that of assuming that the system had an inherent logic of its own, and that cases did fit within that logic. Indeed, it is that purely empirical dimension to cases that lawyers and scholars find disturbing. However tight the system might have been in allowing disputants the right to use their own language within the courts, cases manifest a dimension that is hard to swallow within the norms imposed by the system.

Significance of the general rules
The notion of "coherence," as represented by scholars, would like to project an image of the fiqh as locked within its past while successfully adapting itself to the needs of the times while being faithful to its heritage (see Chapter 1). The problem, however, is that such internal representations, which modern scholars often adopt willy-nilly, fail to account for the priorities given to particular opinions at a specific historical juncture; and more important, it fails in explicating which legal doctrine prevails at a particular juncture since the assumption is that the body of furu' should always conform to the old established usul.

We therefore need to posit a situation where legal doctrine is formulated for the specific needs of judicial decision making: for each historical period, there should be a corresponding set of reformulated idiomatic notions that would have adapted to the societal conditions of that period.

A possible beginning for such an enterprise would be the "general rules (al-qawa'id al-kulliya)" of the Hanafis. Though it remains uncertain as to when such rules became operative, their history in Ottoman times is more known. In fact, their most complete formulation goes back to Ibn Nujaym, an early Ottoman Egyptian faqih, who in his al-Ashbah wa-l-naza'ir ("similarities") had compiled most of the rules that were to be known to Ottoman scholars up to the Majalla. But their systematic compilation did not evolve much until the Majalla in 1877, also known as the Ottoman Civil Code, consecrated them as the first 99 rules in its voluminous code. But even though they were supposed to constitute the usul, or "basic rules," for the other chapters, in particular those on contract, property, and adjudication, their order remains for the most part uncertain if not erratic, as if a first draft of an aborted enterprise, which pushed some modern scholars to bring more coherence into them. The positive aspect, however, of the Majalla's enterprise was that it brought all such rules together and numbered them, and, to my knowledge, they have not been subjected to substantial additions since then, even though few have been suggested. The point here is that the "general rules" ought to be looked upon as a revival of the old usul ("foundations") but in a different more practical form, one that would ease judicial decision making by making personal ijtihad more accessible to a larger number of scholars. Ibn Nujaym, who perceived such rules as an "art or a technique (fann)" all by itself, claimed that Abu Hanifa had already mastered all by himself seventeen of the rules, and that it was therefore "essential to know the rules that constitute the fiqh and through which all the ahkam came into being, and which in reality are the usul al-fiqh," so that "from the application of such rules a faqih achieves the level of ijtihad, even if he were only to draft a fatwa." Such jubilations, however, had something that sustained them among Hanafis. In fact, the beauty and power of the general rules resided precisely in that they were applicable to both the 'ibadat ("religious rituals") and mu'amalat ("pecuniary transactions") without, however, giving any priority to one branch of the fiqh over another. Thus, a rule could have repercussions in any of the fiqh numerous branches, or in only one. More important, the rules were not necessarily construed on general deontological principles that would serve as the basis for judicial opinion and decision making. The fact that some of these rules were neither based in religion nor in morality and ethics--at least not in a way that was overtly so--even though they might have been germane in the 'ibadat, is an indication that the rules' basic aim was to be primarily pragmatic. In fact, the purpose was very visibly to bring the enterprise of the fiqh to a point where it could self-generate its own rules without going through the tedious task of interpreting layers upon layers of opinions, even though the scholars always assumed and overtly stated that they would have to complete all that work for every act of ijtihad. But the appropriate knowledge of a specific rule, however, enabled a scholar at least to make a cogent guess as to what direction he ought to follow for his ruling, and it would definitely enable him to eliminate beforehand some false premises.

One should therefore imagine the general rules in terms of a pedagogical enterprise, one that would help scholars towards an understanding of the long history of the fiqh and its ramifications through a logical organization of its main premises. Obviously, such an enterprise assumes--even though Ibn Nujaym remains silent on this--that the old usul, as depicted in zahir al-riwaya, were no more convenient for bringing the vast heritage of the fiqh together, so that a sense of coherence was to be detected only if the fundamentals were rethought all over again. Hence such an enterprise, which came into being right at the beginning of Ottoman rule as if to initiate a new understanding of Hanafi practice altogether, intended to be primarily pragmatic while maintaining the traditional coherence and roots with the past.

Consider, for example, Ibn Nujaym's first rule--all of which will be integrated in the introductory chapter of the Majalla, albeit in a different order--that "there is no reward but in intention (la thawab illa bi-l-niyya)." If the reward for an action is in the intention attributed to it by the subject, does that imply that an act of sale, a lease, or a contract, must all be based on the intentions of those involved? In fact, the pragmatism that lies at the foundations of the "general rules" is that they cross all the branches of the fiqh without, however, being limited to any of the "parts (al-suwar al-juz'iyya: the fragmented images)." Thus, a sale is independent of intention, and so is swearing on God, which is convened whether it is taken willfully, or in an absentmindedness, or wrongly, or even under duress. On the other hand, while the various 'ibadat, from praying to fasting and paying the tax for the poor and needy, are all meaningless without the intention behind them, the act of judging, which Ibn Nujaym also includes among the 'ibadat, must be associated with intention, so that a judge must be aware why he is ruling in such and such a manner; and the same applies to all other rulers and government officials who need to be conscious of what their rulings, sanctions, and punishments imply. However, if swearing in God is independent of intention, oath-taking is, since it cannot be dissociated from its purpose. Thus far, therefore, the 'ibadat are the only ones subject in toto to the rule of intention, and regarding other activities such as judgeship, it all depends on whether we would like to associate them with the 'ibadat or not. On the other hand, and for the most part, transactions among individuals are not subject to that rule, and with the exception of oath-taking, most of the procedural cases in this study involving contractual settlements--with the notable exception of homicides--should not in principle be subject to the intention rule. But homicides are, because "they are related to the purpose of the killer in his killing." However, "whenever the purpose is linked to an inner behavior [amr-an batini-yyan] the tool of the crime itself serves to detect intention [uqimat al-ala maqami-hi]." In other words, and as will become evident in the chapter on crime (Chapter 11), the nature and substance of the tool of the killing, whether it is a wooden or sharply edged metallic object or something more malleable, is what determines intention all by itself. So there was a consensus among scholars that sharply edged metallic objects cannot be that innocent whenever used against a human body, in particular if their use results in the death of the victim. In short, using such tools is an indication of a willful act of killing, which must be punished by death because it involves ending the life of a soul (nafs).

The general rule of intention could thus be applied to different domains while subjected to different interpretations. Thus, the arguments that the jurists had elaborated for homicides, whether intentional or not, or committed by error, could not be applied to other domains since they were unique to that area alone, and were hence hard to be deductively reached from the general rule, which only tells us that an act of killing must be associated with intention. That, in turn, came in association with the fact that practically all the 'ibadat must be associated with intention: the general rules thus typically brought disparate things together, but that did not preclude, however, that specific rules might have been needed for each specific matter separately.

The set of rules that will be of most concern to us in this study are related to evidence, proof and persuasion. A general rule states that "certainty is not eclipsed with doubt [al-yaqin la yazul bi-l-shakk]" (Majalla, 4), out of which several other sub-rules are derived, one of which--"in essence things should be left as they were [al-asl baqa' ma kan 'ala ma kan]" (Majalla, 5)--determines a great deal of the procedural fictions that were in effect in the shari'a courts. The idea here is to accept the perseverance (istishab) of a situation (hala) until proven otherwise. Suppose, for example, that a debtor claims to have paid his debt while his creditor denies such a claim. If the debtor cannot substantiate his claim, and the creditor takes oath, then the judge could rule in favor of the latter. But if the debtor substantiates his claim and furnishes evidence, then the judge would rule in his favor. Therefore, the debt, considered in Hanafi practice as the property (milk) of the debtor, remains in the latter's "consciousness (dhimma)" until proven otherwise. In actuality, many of the cases presented in this study assume that rule: a property is ab initio the milk of X unless proven otherwise. That could entail all kinds of procedural fictions that would consecrate a property transfer from one family member to another (Chapter 5).

Besides generating contractual settlements in lieu of genuine contracts of sale or hire, or property transfers among members of the same family, the general rules of evidence had a much wider scope since, surprisingly, they even contributed towards fictitious peaceful settlements among the victim's kin and the alleged culprit (Chapter 11). In that case, the victim's kin would claim that the defendant is the murderer, which the alleged culprit strongly denies. However, once the plaintiff is summoned to furnish evidence, he claims he has none; but since the defendant had already denied all allegations, he could take oath as evidence, but he would rarely do so and prefer to wait for a ruling in his favor. (The option not to deny a criminal behavior under oath could be an indication that those culprits were after all involved in what they have been accused of. However, the purpose of procedural fictions was precisely to find a way out--a contractual settlement--where both parties would take advantage, without, however, pushing anyone to lie under oath, which in this case, would obviously be the defendant.) The judge is therefore left with the only possibility to rule in favor of the defendant. Thus, in a strange way the plaintiff loses a case that he or she had initiated all by him(her)self while the alleged culprit clears himself from any wrongdoing. There are several things that the plaintiff might receive in return, assuming, of course, that he is no dumb enough to initiate a lawsuit without any shred of evidence, but one of them seems more rewarding than others: the plaintiff, who poses him(her)self as the victim's closest relative thus requests a total control over the latter's inheritance, and that was to be guaranteed through the procedures of each case.

In their essence (fi al-asl), therefore, individuals are free of any wrongdoing (Majalla, 8), and if accused of any offense, be it a debt they were unable to pay or a crime, they maintain their innocence until fresh evidence proves otherwise. A plaintiff-debtor may thus request from his defendant-creditor, in case he is unable to furnish evidence of payment, to take oath for not having received the debt yet. In fact, the payment or non-payment of a debt, or a crime for that matter, are all looked upon as contingencies (umur 'arida) which are not in the essence of things: "the essence of contingencies is their non-existence [al-asl fi al-umur al-'arida al-'adam]" (Majalla, 9). We only know for certain the existence of beings as they have always existed, so that contingency is certainly doubtful unless proven otherwise; but oath-taking is the responsibility of the party that denied the contingency, such as denying that a payment ever occurred. Which bring us, once more, to the crucial issue of evidence. Many of the procedural fictions, which were the work of the shari'a courts in order to accommodate the proliferation of contractual forms, play around with evidence and its flexibility in Hanafi practice. Whenever contractual forms (or type-contracts) are limited and rigid--in the sense that they require quasi-"equal" and simultaneous exchange, and the exchange of things whose existence is certain (something that is yet to be produced is non-existent)--a way out is through fiction that would accommodate new formulas.

Proof is a strong term which implies strong constructed evidence: "what is assumed by proof is like what is taken for granted by perception [al-thabit bi-l-burhan ka-l-thabit bi-l-'ayan]" (Majalla, 75). Proof (burhan) is thus more global than evidence (bayyina), which is concerned with the fragments: thus, several pieces of evidence might lead to a convincingly articulated proof. Another general rule states that "while evidence attempts to establish an external conflict, oath-taking is to keep up with the essence of things [al-bayyina li-ithbat khilaf zahir, wa-l-yamn li-ibqa' al-asl]" (Majalla, 77), which could be associated with the well known hadih: "evidence is on the plaintiff, and oath-taking is on who denies" (Majalla, 76). Thus, evidence and oath-taking are necessarily not associated with the same phenomena: every conflict is about things that allegedly and externally are not in harmony with one another, and unless the plaintiff furnishes evidence, everything goes back to its essence (asl). Oath-taking, only when there is no convincing evidence, acts therefore like a shortcut to keep up with the essence of things. Moreover, since acknowledgment (iqrar) is no evidence unless proven so, what amounts to evidence are either written documents or oral testimonies through witnessing. The procedural fictions that will preoccupy us in this study will conflate all elements of the system of proof and persuasion together, thus relying on witnessing in conjunction with oath-taking in order to produce contractual settlements that would have been unthinkable in classical Hanafi practice. Thus, the general rule is that the plaintiff is the one who first initiates that "conflict of the external (khilaf al-zahir)," and has therefore to furnish evidence, so he cannot take oath because that procedure aims at keeping things as they were in their essence, that is, sheltered from any conflict. It is precisely the defendant who would like to keep up things in their essence, and his denial is accepted as long as the plaintiff was unable to furnish evidence.

There are several other procedures that will be dealt with in detail once we reach their corresponding cases. The relevant question at this stage, however, is to see whether all those rules, and the opinions and procedures which apparently were derived from them, did push for any new formulations in terms of Hanafi legal doctrine and fundamental concepts such as custom, property, contract, and evidence. For one thing, it is generally assumed that Hanafis were pretty much flexible when it came to custom, thus allowing all kinds of practices to be acknowledged as law. A general rule has even become norm since stated in Ibn Nujaym's Ashbah: "Custom serves as the basis for adjudication [al-'ada muhakkama]" (Majalla, 36), and with several other related sub-rules associated to. However, once the relevant texts are properly analyzed, the perception that will emerge will underscore a notion of custom as a leeway to emerging contractual settlements (Chapter 1). In actuality, what emerges from the shari'a courts is a situation where contractual forms, which in principle should not have been accepted, have been assimilated within the court procedures. Those were mostly related to types of contracts that either required a payment method involving an assessment in kind from a still inexistent produce, which was the case of most sharecropping contracts (musaqat and muzara'a); or contracts creating a de facto ownership out of a waqf property in the form of a long lease and investment known as the marsad; or contracts transforming tenants to de facto owners of their leased properties because of the khulu and gedik requirements (cash sums to be paid in advance to the previous tenant for vacating the place, and that would in itself safeguard the new one from the limitations of short leases and the like) (Chapter 3); or contractual settlements transferring properties between members of the same family to make the transfer valid and non-revocable through a judge's ruling, and through the fiction of the hands-on and hands-off technique (wad' yad and raf' yad) (Chapter 5); and, finally, last but not least, contractual settlements between the victim's kin and the alleged culprit, in which the latter receives full vindication in exchange for the plaintiff's control over the victim's succession and properties (Chapter 11). In addition to variations that such contractual forms might have been subjected to, there are still other yet to be discovered forms, but in their similarity they already indicate to a hunger for type-contracts that did not limit individuals to rigid settlements.

The point here is that such contractual forms were indeed legitimized, and hence became law, on the basis that they were already introduced by custom, and hence integrated within the broader corpus of the fiqh under the general rules that accept custom as the basis of adjudication and law. But an analysis of the law of contract, based on the texts of the Ottoman period, only shows a poor integration of all the contractual forms that emerged on a de facto basis with the classical notions of contract and property (Chapter 3). In effect, notions of contractual settlements and property rights (the former granting the latter), rent and tax, were not reshaped so as to accommodate the needs of the miri and iltizam system, and as if to make things worse, that system fell totally outside the scope of the concept of property as developed among the late Hanafis (Chapter 4). Thus, in one of the last major Hanafi manuals, a supplement to the Radd by the author's son, and which goes back to the second half of the nineteenth century, Ibn 'Abidin's son comments on a "question" to clarify the "meaning of property (ma'na al-tamlik)." But not only did the son not budge from what his father had already stated, he only recalls notions of property that overall go back to the 'ushr and kharaj era. Beginning first with a reminder that property and donation are two different things in both language and law, Ibn 'Abidin then digresses regarding what is legally eligible for tamlik. The act of tamlik is only completed from "uncultivated lands [mawat], or lands owned by the sultan, or from anything that the sultan gives as a muqata'a, and in which case he enjoys the right to cease property rights as already explained in the chapter on the 'ushr and kharaj." But that's no different a concept from what Ibn Nujaym had already stated in his Bahr, when Egypt had just emerged from the Mamluk era and Ottoman rule was in its infancy. Besides the fact that the reiteration of old opinions raises serious questions on their historicity, there is no place here for what the miri-iltizam system had created, namely properties, which in the final analysis, had lost their clearly established ownership status: in principle owned by the state--or the sultan--they became de facto "possessed" by the families or individuals to whom they were granted iltizam rights over long periods of time. Thus, in the previous volume to the Radd, an acknowledgment of ownership should in principle be granted to all those who have "occupied" and cultivated a land for a period of time, and whose status of ownership was either uncertain or "open." But that's not enough to clarify the ambiguous status of miri lands and the nature of the "rent" that was extracted from the peasantry in kind or cash.

The truth of the matter is that the notion of custom as developed in Hanafi practice is far less ambitious that what it might first seem. For one thing, the often quoted statements on the importance of custom in the ahkam in general only contributed in accepting all kinds of customary practices without a well thought out plan for a conceptual integration. Moreover, despite all the new contractual forms that the shari'a courts had been accustomed to, procedural fictions only helped in keeping the substance of the law fundamentally unaltered. By the second half of the nineteenth century, the shari'a system only survived as one of "communal" and private adjudication, as it did before but with growing restrictions, while the state had to rush towards the Napoleonic Codes to legislate on public matters. What led to such a downward turn of events was that Hanafi scholars looked at many of the practices that emerged throughout the Ottoman period--and in particular in matters of contract and property--as incongruent with their own conceptions and beliefs, and they had to be accepted on a de facto basis so as not to make things even more difficult for the common people, but that was done without a critical reexamination of the classical concepts in relation to those customary practices. In effect, the Hanafis accept their resignation to the realities imposed by the Ottoman state and its institutions in terms of the doctrine of al-masalih al-mursala, all those public interests, which were the outcome of various state legislations, and which from the standpoint of the fiqh are neither forbidden nor recommended. They thus constituted a no man's land between the qanun and the fiqh.

Plan of the book
Most of the fiqh material is based on the works of Ibn Nujaym, Ibn 'Abidin, and the Majalla. Chapter 1 attempts to give a complete picture of the general epistemology of the late Hanafis through a selection of Ibn 'Abidin's writings, which point to the importance of language, tradition, and custom. Chapter 2 continues with a similar material but with a focus on judgeship, adjudication, and the ethics of judges. The material on contracts in Chapter 3 is the core of the book, considering that contractual settlements, either genuine or fictional, play such an important role in many court rulings. The first two chapters were thus meant to sketch Hanafism as a total experience, one that brings together the foundations of the school under its representations of language, discourse, tradition, and customary norms, while in Chapter 3 contractual settlements are introduced in conjunction with all the major representations of Hanafism. The chapter also brings together many type-contracts, most of which were fictional, under a handful of notions that either the scholars or modern scholarship have left dispersed. To accommodate such a dispersed material, one needs to go back and forth between all kinds of texts, ranging from the fiqh manuals to the court records, and this chapter introduces our first cases. In Chapter 2 seven fictional type-contracts have been tabulated in Table 2-2, as they will all be needed in the rest of the book, and the procedures will only become comprehensible once the corresponding cases have been analyzed. Finally, Chapter 4 completes this first theoretical part with a reflection on property from key chapters and sections of Ibn 'Abidin's Radd. The point here is to explicate the complexity of the procedures analyzed in the previous chapter by pointing to the fact that contractual settlements were what accommodated rigid property rights. Since the latter did not evolve much, it was left to the former to rethink what contracts can accomplish.

Chapter 5 inaugurates the case-analysis technique, and does so with two cases that show how the transfer of properties operated, through fictional procedures, among family members of the Maronite Shihabi clan in nineteenth-century Mount Lebanon. Chapter 6 continues the same task but with waqfs, and, again, through procedural fictions, waqf properties and their administration were validated through a judge's ruling in order to make them irrevocable. Both chapters point to several fictional procedures, such as the "debt," the unlawful hands-on ("occupation") and hands-off, and the "three-founders" technique, all of which were very common at the time, as they opened ways to bypass limitations inherent in the Islamic law of inheritance, contract law, and the Ottoman property system. By contrast, the two cases in Chapter 7 were both genuine litigations, and the second one shows the effects of responsa through a detailed analysis of a mufti's fatwa that authorized the judge to go ahead with an ex parte ruling. Finally, Chapter 8 completes the hermeneutic circle of case-analysis by pushing the "legal" framework adopted thus far into other directions, namely in terms of a perception of the "legal" through the lens of speech-act theory. In fact, the interpretation of cases cannot possibly obey to a single framework, which at its most basic level ought to concentrate on judicial decision making, and could be, pending on the historian's own personal ambitions, associated with other frameworks common to the social sciences, such as the linguistic and anthropological. How far can one go is a matter of personal evaluation and ambition.

The nature of judicial decision making in Ottoman societies would by and large remain incomplete if it were to be limited to the shari'a courts only, while leaving out other legislative and judicial instances. Chapter 9 provides a look at the adjudication of the regional council of Damascus during the early reforms of the 1840s, and my argument is that such judicial instances were not limited, as was the case with the shari'a courts, to decision making, but transcended it into policy-making activities as the concern here was mostly the status of state-owned lands, which the other courts hardly touched upon. Chapter 10 proceeds with this line of inquiry into an analysis of the nature of sultanic legislation. I was originally surprised to find in the court registers of Beirut either bilingual or monolingual sultanic firmans, all of which even though nicely fitted within the calligraphic structure of the registers, yet hardly made sense in terms of the practices of those courts. I argue that sultanic legislation was a parallel system to Hanafism, which for the most part followed its own syntax and grammar.

Finally, in Chapter 11, we come back to more shari'a court cases, but this time of a "criminal" nature. The reader might, however, be disappointed to know that the purpose of such cases was precisely to point out to the court that the crime did not happen and that the culprit was innocent of any wrongdoing, and that--we're into more contractual settlements--the plaintiff who was kin-related to the victim should have the exclusive right to the latter's inheritance and properties. The end section of the chapter also includes additional cases form the Damascus regional council, hence its location at the end of this book.

I question in a short epilogue the possibilities for a law and economics sub-discipline in Middle Eastern studies. Overall, I feel more excited about the prospects of integrating "third-world" studies into the hegemonic western disciplines, as Max Weber did a century ago, than go through the dubious cycle of the "critique of orientalism." Needless to say, I remain pessimistic about such prospects.

The reader will probably notice that the present book assumes other studies still in progress. In fact, I've been working in the last ten years on a number of projects, which for the most part are linked to judicial decision making. Ideally, the present study should have begun with the early seventeenth century (very few registers are available of earlier periods) and proceeded forward, which is what I plan to fulfill in subsequent research. Moreover, this book leaves the whole issue of the second era of judicial reforms, which began in the 1850s with the promulgation of new codes and the institutionalization in the 1860s of the newly designed nizami courts, in suspension. As far as Greater Syria is concerned, we're into virgin territory when it comes to the 1860s and their aftermath--up to the French Mandate--and undeniably this period deserves an independent research on its own.

To my mind the most crucial issue remains the drastic changes that the judiciary had to go through in particular during the second era of reforms. The historian who has followed the evolution of both the juridical literature and judicial decision making over several centuries feels betrayed by the sudden shift in tone that occurred with the implementation of Napoleonic codes in the Ottoman Empire. Should such a transformation be looked upon as a major overhaul, one that rendered the practices that we've discussing all along as ineffective, if not totally obsolete? Formally speaking, the system introduced since the 1860s signals a major shift, but that was only in the formulation of the law, which all by itself stands as very crucial, but, as I've argued all along, the practice of the law is what matters, which is the totality of the apparatus of justice. We thus need to inquire, regarding the transitional period from the 1860s up to the French Mandate in the 1920s, about the perception of all those newly promulgated codes and the process of their effective implementation, an approach that ought to be followed for the three decades of the Mandate. Then, by the late 1940s, right after independence, Syria and Lebanon had a new set of codes, but this time in Arabic, and also like their Ottoman predecessors of the previous century, they were a direct outcome of civil-law systems, mainly the French. For the most part, the codes in both countries are still fundamentally similar to what legislators and legists had drafted in the 1940s and 1950s. It would yet be very misleading to assume that the Ottoman system is done with once and for all on the basis that the whole apparatus of justice has been modernized, if not westernized. For one thing, traces of the Ottoman background are visible in both codes and practices, and the epistemic logic of the ancien régime could have well survived the hardships of the times.

In conjunction with the present study, I began in 1993 a legal anthropological research on the present-day Syrian court system, and with a particular focus on criminal procedures. Because the archives in that system do not survive that long--three decades at most--I was thrown directly in cases from the 1980s and 1990s at a time I was still struggling with my Ottoman cases. Needless to say, there couldn't have been a more shocking difference. Criminal procedures nowadays are assumed by state institutions and follow an inquisitorial line of searching for the truth until the culprit is found, so that there is nothing that resembles the shari'a cases in Chapter 11. A more complete research, however, would look at the Ottoman penal qanunname of 1858, and which remained in force throughout the Mandate, as the event that effectively triggered all change, and then describe how the newly designed courts effectively dealt with such a major transformation. An autopsy report, for example--as I came to discover from my own research--could follow all the medical requirements for that kind of expertise, and, at the same time, comply with social norms that refuse to look at a report in its objective facts only, which often leads doctors and medical examiners to moralize their facts (e.g. by adding to a report of a raped and then murdered teenage victim that she has been victimized because the moral values of the family and society have been degrading lately, and all this wouldn't have happened if parents were to take greater care of their children by enforcing stricter values). My point is that codes, procedures, and anything that the courts normally generate ought to be critically examined as part of the discursive practices of the apparatus as a whole, an approach that also focuses on a continuity with the past because "knowledge" within a society always survives with layers of the past, albeit selectively, and is the hardest to change.

A final word about how to effectively work with court records and the like. Once the "case" becomes an essential methodological aspect of one's démarche, regular note-taking in lengthy sessions in archive centers in Damascus and Beirut become ineffective and dangerously misleading: cases are too complicated to be treated in single sessions, and need all the background legal work to be fully appreciated and contextualized. For that reason, all cases in this book have been reproduced based on the original, and I therefore had a permanent access to them, thus rereading them and revising my own interpretations whenever needed. Without the collaboration of all those who authorized me to photocopy or photograph the required documents, this study would have been impossible. I simply hope that the whole process of accessing documents and reproducing them in Syria and Lebanon receives its share of rationalization.

 

 

 

Thursday, August 9, 2001

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