An Historical Anthropology of Justice

 

The Ottoman Sharî‘a Courts of Beirut

and Damascus

 

 

 

 

 

 

Zouhair Ghazzal

zghazza@luc.edu

zouhairghazzal.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

FIRST DRAFT—NOT FOR QUOTATION


I

 

The historiography of the modern Middle East and that of the Ottoman Empire in particular are now dominated by a social history mainly based on the sharî‘a (Islamic Holy Law) court records of the main cities of the empire, in addition to the millions of documents left over by five centuries of Ottoman bureaucracy.[1] The law-court records cover a wide variety of judicial acts ranging from the simplest, like buying and selling property, to the more complex like erecting, protecting, and dismembering a waqf,[2] calculating a succession, and including also divorce and marriage problems, with a minority of penal cases. These topics have seduced a generation of researchers hoping to write a new social history based on these archives or a similar set of documents that would combine the economics of Ottoman societies with sociological and anthropological analyses. In addition, the bureaucratic archives of Istanbul would integrate the political with social history.

      These series of archival sources are naively considered as representing “reality” and are supposed to provide us with new pieces of information about the societies under study. For example, a document describing the selling of a property in Damascus would give us the facts about, among others, the price, type, and location of this property, the names and probably the professions of the buyer(s) and seller(s), etc. In short, this kind of data is “real” in the sense that it provides us with information which is “true,” factual and non-distorted.

      This type of relation with what historians usually refer to as “primary sources” is not peculiar of course to Middle Eastern historiography only. One of the main impacts of the Annales school has been to transfer modern historiography from a narrative of political and military events to a narrative of “non-events,” the latter including mainly the social and economic dimensions of society and also what is nowadays referred to as l’histoire des mentalités. The important thing to know for our perspective here is that this trend which emerged in the late 1920s not only shifted the process of writing history from one level to another, but also worked for over half a century with the illusion that this newly discovered socio-economic level is a key element in any historical interpretation. The archival sources supposedly are “reality” itself.

      In a recent editorial published two years ago (1988),[3] the Annales gave a warning to its readers that we might be witnessing a second more crucial turning point. This new critique of historiography has as its main target the “primary sources” hitherto considered as the basis for writing any serial history. These archival sources are not identified anymore with “reality,” whatever the denotation of the latter term may be. They are rather considered as “social constructions,” an attitude that implies a totally new relation to the archival sources.

      To begin with, the archival sources are not the innocent pieces of information that shall provide us with the data we are looking for, an attitude that the great majority of historians still adopt today. Not only may they serve the strategies of a particular class or social group, but more importantly they belong, or are in relation, to a series of discourses, be it judicial, economic, and political. In order to illustrate more concretely my thesis, let me take as an example the law-court archives of Ottoman Beirut and Damascus.[4]

      I mentioned earlier that the main procedure in studying the court archives is to take bits of information from a randomly selected sample. What I would like to suggest here is a way among several others to go beyond pure positivism and empiricism. As a first possibility, one could think of analyzing these documents as an ordinary text, be it judicial, philosophical, or political—what the French call analyse du texte. Documents are thus considered as textual references and the text itself becomes the primary reference. This hermeneutical approach presupposes that the religious law-court documents have a certain “coherence” in the sense that they might exhibit a “meaning” that the historian reconstructs and interprets. There is no need to go as far as Jacques Derrida in proclaiming that “there is nothing outside the text” because the whole issue of the “context” shall be of central importance to us. The interpretation of any archival source should lead us towards a reconstruction of the meaning and intentionality of social institutions and individual actions. What is meant by the fact that the law-court documents are “social constructions” is this: the judicial discourses, acts, trials, qâdî decisions, and so on, are all part of a judicial apparatus (dispositif) which regulates all kinds of discursive and non-discursive practices.[5] Thus any court document is part of an ensemble of power strategies within this apparatus and can only be properly interpreted in relation to these varieties of judicial practices.

 

II

 

The Ottoman judicial system was a dual one.[6] On the one hand the Ottomans kept the Islamic sharî‘a (Holy Law) with all the interpretations that followed, those of the four orthodox Sunni schools, with the Hanafi school of thought occupying a privileged position as the most flexible of the four. On the other hand, and because of the limits and lacunae that we find in the sharî‘a, the Ottomans had to keep side by side with the latter a series of “secular” codes and laws which were referred to as the qânûn and qânûnnâme. This dichotomy was not new since it had existed in both the Umayyad and ‘Abbasi Empires. The Ottomans, however, heightened and seriously worked out this distinction between the religious and secular laws.

      In fact, since the very first centuries of Islam, there existed alongside the jurisdiction of the sharî‘a, a series of secular legal codes, judicial practices, and offices such as the muhtasib, or inspector of the market, who dealt with trade and craft-guild contraventions and offences against Islamic morals. And since Islamic law is very general and global about all kinds of criminal offenses, a wide range of the latter were examined and punished by the head of the police of the city and other secular officials. What also remained outside the jurisdiction of the qâdîs were the Courts of Complaints or the famous madhâlim instituted by the caliphs and which, in Ibn Khaldun’s definition, “combine the power of the sovereign’s authority with the justice of the qadi’s judicature.” In short, since the earliest Islamic times, the Islamic sharî‘a  was insufficient to institute a coherent system of justice that would be effective and that would encompass a multiplicity of legal codes that the qâdîs would apply. For this reason, a series of secular codes were always present. The latter were seldom extracted from and influenced by the regional “customary laws” (‘urf) which were left unwritten, implicit, and at the level of the unconscious.[7]

      The Ottomans kept this distinction between the two sources of the law and were much more ambitious than their predecessors in systematizing the secular part. For this purpose, the sultans did something unprecedented in Islam. They promulgated comprehensive and detailed regulations called qânûn which are a general outline of the secular part of the law, and gave orders to assemble them in the form of regional codes known as qânûnnâme. It is in  the latter that we find the most concrete and detailed part of the law. However, the qânûnnâme are not as systematic and rationalized as they should have been. There are many repetitions, contradictions, and ambiguous points in those judicial texts.

      Although the Ottomans kept promulgating their secular qânûn texts from the 16th till the beginning of the 19th centuries, the qânûnnâme were only powerfully effective during the 16th century at the time of Sulaymân the Lawgiver. This is due to the fact that the successive promulgation of the secular texts to a point that made them the ultimate reference for Ottoman law, met with the traditional hostility of the body of the ‘ulamâ’, the learned fraction of the Ottoman hierarchy. This hostility, at a time when the state was very strong, was hidden and implicit. In fact not only the ‘ulamâ’ were unable to stop the process of codification of the secular law but the sultans decreed, and this is the second major innovation of the Ottomans, that the regulations of the secular law were also to be applied by the qâdîs in their courts of law. There was thus, during the 16th century, a total submission of the latter to the state. But this does not mean that the ‘ulamâ’ were not consulted at all. On the contrary, since the secular part could not, in principle, contradict any of the precepts of the sharî‘a, the ‘ulamâ’ and in particular their head, shaykh-ul-Islâm, were permanently consulted. However, since the beginning of the 17th century, at the moment when the power of the state started to deteriorate, the promulgation and application of the qânûnnâme became more and more sporadic, and the revival of the sharî‘a became a reality. Moreover, the religious law-courts started to neglect the secular part. Most of the qânûnnâme that were still in force after the 17th century were in reality slightly updated texts to the old ones.

      For the period we are concerned with, the 19th century, the situation is even more complicated. In addition to the religious and secular parts of the law, during the reforms/Tanzîmât period, the Ottomans started to promulgate a series of legal codes which not only were secular but moreover adaptations of Western codes to the Ottoman context. What shall be of interest to us during this reform period is more the way law in general was practiced in the religious courts than the contents of the various codes in force at that time. The judicial practices are rarely discussed in the modern historiography of the Middle East. The reason might be the need for an articulation of an anthropological dimension in our analysis of what I called earlier the “apparatus of justice,” which encompasses all kinds of discursive and non-discursive practices, with social history.

 

III

 

One of the major problems that confronts historians of Arabo-Islamic societies is that of the role and function of justice. This comes from the dichotomy of the Islamic sources of the judicial codes that we briefly described earlier. The dichotomy of this system consists in having an idealized sharî‘a which cannot be altered and with limited practical implications as to economic and social life on the one hand, and a secular law which although intended in the first place to be practicable seems to leave several blanks that the provincial qâdîs of the religious law-courts have to deal with on their own. Islamic justice is often portrayed as devoid of any rational and systematic codes and that the qâdîs have to take “arbitrary” decisions on matters not clearly codified in judicial treaties. As we noted earlier, the Ottoman system of justice, especially at the moment of the “decline” of the state, delegated too much power to the provincial qâdîs without providing them with the codes they often needed.

      It might seem paradoxical that in  the Arab/Islamic societies where the individual subject is always part of a genealogical, confessional, ethnic, and geographical affiliation, that this individual is the most problematic element of every judicial case. This means that the qâdî has to know and assess the social origins of the litigants and to gather as much information as possible on them for each case he is dealing with. By “social origin” we mean the nisba or “attributive affiliation” of an individual which is not restricted to kin only but also to geographical, political, and legal affiliations. In societies where the oral is more influential than the written, people have the tendency to focus more on the individual and the concrete, and the qâdî has to discover and make an assessment of these individualities. The Ottoman societies were never concerned to make the transition by means of the abstraction of language from the individual to the public. Language is the medium of abstraction which enables us to objectify our own subjective experiences. But the use of language as a tool for objectification requires the existence of a “public space” as a means for communication. The possibility of such a sphere was always problematic in Arab/Islamic societies. Islamic jurisprudence was never concerned in working out an abstract, rationalized judicial code that would pass from the individual to the more general and the public and vice versa. It was primarily concerned in delimiting its field, what are the things to be discussed in court and how they should be discussed. In other words, jurisprudence does not impose an abstract, transcendent code on society but is part of the process of networking through alliances. For the same reason, no social group could impose itself once and for all because establishing networks and alliances, and imposing one’s power are long-term processes. What Ibn Khaldûn called the “delusion of nobility” is nothing more than the impossibility of the nobility to establish itself on a long-term basis without permanently working out its alliances.

      This fascination with the person rather than the abstract individual, and with the oral rather than the written, which characterized the Ottoman and Islamic societies, might give us some clues as to the functioning of the judicial apparatus. One of the main problems in any judicial system is the use of reliable witnesses.[8] And the witness issue cannot be dissociated from that of truth: “How do we know that a witness is telling the truth?” There is also another aspect to the problem that might be connected to the first one concerning the status of the persons chosen as witnesses. Could any person be a witness, and on what basis is the choice made?

      In a Western judicial system, a witness is judged on some material evidence that allows the jurors to decide whether he or she is telling the truth or not. The whole system is based on the simple idea that everyone ought and should tell the truth and that such a truth does exist and should be discovered and known.

      Reading the minutes of the religious law-court sessions in Beirut and Damascus gives the impression of a key role played by witnesses while the deliberations were taking place, but there were no sophisticated forms of judicial inquiry to test the truthfulness of the witnesses’ statements (at least as compared to our modern standards), and there were no court’s experts that would help the qâdî in gathering and verifying the information presented to him.[9] To understand why this was so we should keep in mind the following methodological precaution: the problem of witnesses and the truthfulness of their statements should be considered within the wider context of the Arab/Islamic cultures. Truth statements in this context are more like bargaining positions than statements intended to be verified by some material evidence. In order to make the above abstract arguments more concrete, I would like to illustrate them with a few examples from the law-court documents.

      In a case from a Beirut waqf document of 1844,[10] the plaintiff claimed that his deceased father, the founder of the waqf, orally modified the original content of his will. Thus, the new will was orally made and not added in a written form to the original text. To support his case, the qâdî required from the plaintiff whatever evidence he had. The latter brought several witnesses (shuhûd) to court, two of them “representing” the chief of the corporation of the notables (naqîb al-ashrâf) of Sidon, unable to attend in person. The court, after a long debate, moved in favor of the plaintiff. The interesting point in this case is that an oral alteration of the will made by the founder, before his death, and certified by at least two reliable witnesses was considered as equal in value to a written alteration of the will. The court considered as legitimate “what the founder said, and not what he wrote in the will of the waqf.

      In a modern judicial system, any oral alteration to a previously written document would, of course, be considered invalid. This is due to the fact that we live today in societies where any relevant piece of information should in court be preferably presented in a written form. The written is generally considered more decisive and reliable than what is orally transmitted. The judicial system of the Ottoman Empire obviously operated with in a different logic. For example, in the case summarized above, the plaintiff had to convince the qâdî less by the truthfulness of his statements than by presenting him with witnesses whose testimony he could not possibly refuse. Thus the naqîb al-ashrâf being one of the highest authorities in town made a testimony whose value could hardly be questioned. It is as if the plaintiff faced the judge with the question, “Could you possibly doubt the testimony of the naqîb al-ashrâf ?” This case clearly shows that inside the court each one of the litigants presented himself with a strategy meant to convince the qâdî that he was left with but one decision to make. This proceeding depended less on convincing arguments by the litigants than on their social networks and affiliations. Obviously the qâdî had to express interest in the social origins of those appearing before him and “it is less his arbitrary decision or an abstract rule of law that seems to apply than the standards—often quite variable across regions—of the particular locale of this court.”[11] This seems contrary to the Western standards where the testimony of any witness should be considered as valuable in itself independently of the social origins of the person.[12] In Ottoman courts, the social origins, race, sex, and even the number of witnesses appearing were all decisive factors for the qâdî. These courts stressed the person rather than the single event and thus felt more comfortable with oral than with material testimony.

      At this point of our analysis, a question comes to mind: “If the aim of justice in Ottoman and Islamic societies was not an impartial system of arbitration, and if the whole question of knowing  truth was secondary, what was then the role and function of justice?” We already have several elements of the puzzle which need a preliminary synthesis. But before doing this, there is still the problem of “customary law” (‘urf) to be dealt with. It is a historical fact that in Ottoman societies the “customary law” was more powerful and played a greater role than the qânûn. “Customary laws” share this power of being implicit, not written, and are above all in the unconscious of society. Since most conflicts, even in urban areas like Beirut and Damascus, were solved through “customary laws,” what was the qânûn needed for? In the second part of this paper, I briefly sketched the history of the Ottoman qânûn and its relation to the sharî‘a. The point was that although the qânûn is a written code and much more detailed than the sharî‘a, it never aimed at constructing abstract rules of law that seemed to cover the diversities of all possible events. “The categories of Islamic legal thought, like those in other domains of this culture, are frameworks that delimit, not structures that govern.”[13] Thus the qânûn delimited for the qâdî his judicial field but it left open his field of action. Compared to “customary laws,” the qânûn dealt with problems of property, inheritance, personal status, and penal cases as well. In short, it was limited to cases such as property that needed some state regulations. As we noted earlier, Islamic societies survive through the flexibility of their alliances and networks. But serious problems might arise and familial or personal feuds might inhibit the permanent process of reconstructing such networks. It is at this point that the qâdî might end up being very useful by promoting this process. His role was to put people back into a position of negotiating their own ties. Whenever the process was blocked at some point, the qâdî had to intervene.

 

IV

 

Any system of justice seeks the preservation of the main institutions in a particular society. In the case of Ottoman Syria, there were three interrelated levels, the distribution of land, kinship relations, and gender representations, which overlap at some point with the apparatus of justice.

      In Middle Eastern societies and in Ottoman Syria in particular, the distribution, circulation, and cultivation of land was a political problem. By this we mean that the land tenure system was in direct relation to the distribution of political power in the societies of Bilâd ash-Shâm. Thus, in inner Syria and in particular around the main cities of Damascus and Aleppo, land was directly controlled by the a‘yân/multazim (tax-farmers) class of the cities. The size of the iltizâm (tax-farming system) and that of the land in question often determined the influence of a particular family or clan. There was a horizontal integration of power which had the cities as its center and the surrounding countryside as the targeted space, together with a vertical integration where the urban a‘yân/multazims controlled the rural ones. The main concern of the urban a‘yân/multazim class was indeed to integrate within its close circle of power the smaller tax-farmers of the countryside. Similarly, in Ottoman Mount Lebanon, a well defined hierarchy existed between the muqâta‘ji[14] (tax-farmers) families of the two main confessional groups, the Maronites and the Druzes. The importance of a muqâta‘ji family depended on a multitude of circumstantial factors from its “acceptance” by the Ottoman governor to its relation to the ruler of Mount Lebanon. However, the size, location, and fertility of the muqâta‘a (fiscal unit) to which a particular family was tied were all decisive factors in determining its prestige and importance.

      What is of interest to us in this complex social structure is the role of justice. What was its role and function in a mostly rural society? How did the judicial discourse cross the boundaries with the social practices and institutions which constituted the conditions for its emergence?

      In what follows, we shall consider two documents related to properties owned by the Shihâb family which was politically dominant in Mount Lebanon since the middle of the 18th century, and we shall particularly focus on the properties of Bashîr II (1767-1851), the despotic ruler of Mount Lebanon before he left the country for exile after the Egyptian withdrawal from Bilâd ash-Shâm in 1840.

      Since gender relations are directly related to land tenure and shape the entire judicial discourse, it would be useful at this point to start with a description made by the “historian” Mikhâyil Mishâqa on how Bashîr got seduced by his first wife:

 

               When Emir Yûsuf summoned his maternal uncle Emir Bashîr from Hâsbayyâ and treacherously killed him, he deputized the young Emir Bashîr we have just mentioned to sequester the murdered Emir Bashîr’s possessions. He went to Hâsbayyâ and, while accomplishing his mission, saw the murdered man’s widow, who had borne him two daughters, Khaddûj and Nasîm. She was the Lady Shams al-Murîd, sister of the Emir Qa‘dân who resided in the village of ‘Abayh in the Upper Gharb of the Lebanon. At that time the members of [the Shihâb] family married amongst themselves and were unconcerned with a difference in religion, so the [Hâsbayyâ Shihâbs] married the daughters of, and gave their own daughters in marriage to, the emirs of the Matn, even though at that time they were Druze and were only gradually converted to Christianity... When Emir Bashîr Shihâbî saw this widow’s beauty he made up his mind to ask for her as a wife. He married her, and she later bore him three sons, Emir Qâsim, Emir Khalîl, and Emir Amîn.[15] 

 

Marriage and property in the Arab world and in the Ottoman Empire are confusing issues, not only because of the diversities of practices and the existence of several schools of interpreting the holy texts, but also due to the fact that these societies do not always apply their own set of “rules.” In fact, applying a particular “rule” or choosing not to is part of a set of strategies that a social actor could opt for. Thus, in the case of Mount Lebanon, although the general “rule” to be observed was that of marriage between parallel cousins, and more specifically with the paternal’s uncle daughter, bint al-‘amm, exogamy, defined as marriage outside the family and clan or even outside the confessional group, existed side by side as an alternative.[16] Thus, although, as the above quotation specifies, the members of the Shihâb family, who were Druzes gradually converting to the Maronite sect, married among themselves and were unconcerned with a difference in religion, one of Bashîr’s wives was Circassian. In this particular case, the decision to marry a woman from outside one’s clan is a political strategy. Taking some distance from one’s own kin could be one such strategy, and making alliances with a distant family/clan could be another. The exogamy “alternative” was generally restricted to families within the same confessional group. In practice exogamy meant alliances with alien families and the absorption/subordination of weaker families to the strongest. It was also a form of “exchange” in the sense that a weak family could give some of its women in exchange for signs of recognition and prestige. In 19th-century Mount Lebanon, exogamic relations had greatly outnumbered endogamic marriages sensu stricto, that is between parallel cousins as such. Furthermore, the endogamic “rule” seems not to have been respected among the lower ranking families.

      “Inheritance and blood-revenge were two sides of the same coin,” writes Jack Goody on marriage and property in the Arab world, “the latter being clearly dependent upon clan membership.”[17] This observation is even more true to Ottoman Mount Lebanon than to anywhere else in the Arab world. In a society where murder and blood-revenge were frequent even among brothers and cousins, property and inheritance were at the root of any domestic and political conflict. Thus Emir Bashîr II was summoned “to sequester the murdered Emir Bashîr’s possessions” including the wife of the latter which he later married. Women, property, and murder were in fact in close relation to each other.

      To understand this relationship between gender, violence, and politics one should start with the first element of “contradiction,” the domination of women by men. The “contradiction” consists in a naked form of aggression and domination which is concealed as “natural,” hence perfectly legitimate in the eyes of the men who practice domination over women. (Some women, in turn, enjoy watching those who play the games of domination.)[18] This politics of domination is of course not restricted to Arab societies only. It is indeed a universal phenomenon and is probably best explained in psychoanalytic terms.[19] For our purposes here, we shall start with this problem of domination and see what kind of social and political relations emerge out of it. Of course, our final aim is to analyze how the apparatus of justice articulates with the social institutions and in particular with gender representations.

      Lévi-Straussian anthropology takes it for granted that every society perseveres in its being around three forms of exchange: exchange of signs (culture), commodities (economy), and women (“the emergence of symbolic thought must have required that women, like words, should be things that were exchanged”).[20] The latter claim, that women are “exchanged,” presupposes domination by men and a non-reciprocity between the sexes. “Exchange” should be taken here at two different levels, literally and symbolically. At a first level, and restricting ourselves to Ottoman Mount Lebanon, women were exchanged as any other commodity since their “exchange” could include anything from brideprice to dowry. In Islamic societies, under later Islamic law, all women had an explicit right to inherit (as we shall see later this rule was not followed among the Maronites of Mount Lebanon); while under Sunni rules, in force in Ottoman Beirut and Damascus, women were only entitled to a reduced share—usually half—compared to that of their brothers, they also received an endowment at marriage (or divorce). These endowments, benefits, or gifts go back and forth in two directions, between the parents of the groom and those of the bride. Few weeks before the marriage, the parents of the groom (or the groom himself) had to offer the family of the bride the first part of the mahr, marriage prestation, known as muqaddam in Arabic, “what comes first.” In case of divorce or death of the bride, they would have to present the mu’akhkhar, the second and last part of the prestation. On the other hand, the parents of the girl didn’t send her empty handed to her husband’s home. She used to go there “equipped” with a jihâz (from the verb jahhaza, to equip). The mahr was usually either in cash or in precious goods, gold, silver, or jewelry. As to the jihâz, it used to include a variety of commodities, mainly clothes—the idea being that the young girl should not go empty handed, with nothing of value to wear, thus relying on the good will and generosity of her husband. Thus the bride’s family had to show, even in cases of extreme poverty, that their daughter was well taken care of and that she led an honorable life under parental guidance, and that they therefore expect the same kind of generous treatment from the groom’s house.

      At another level, and as we already noted earlier, the “exchange” of women was symbolic in the sense that a marriage from outside the clan could have some political consequences. The hierarchy of families was indeed a delicate one and marriage was a means for some of them to improve their prestige and power. And for the strongest, it was a way to absorb and subjugate the weakest.

      In the quotation from Mishâqa’s version of the events in Mount Lebanon throughout the 19th century, the murdered emir had his possessions and woman confiscated. Women and property were two sides of the same coin and political violence is nothing but a reflection of this domestic violence.[21]

      Let us now consider more closely the two documents from the Beirut law-court records where a property conflict between Bashîr’s (second?) wife and their daughter is presented.

      In the first document[22] we are told that Bashîr II had erected a private waqf  for himself and eventually, if the case applies, for his descendants (dhurriyatahu). Apparently, the original act of the waqf, whose content we only know through the declaration of the plaintiff (who is representing the dead emir), specified the well known rules of inheritance from one generation to another. As long as he was still alive, Bashîr would remain the sole administrator (nâzir) of his own waqf which consisted mainly of dozens of landed properties in the Kisruwân region. After his death, the revenues should be equally distributed among his male descendants only (az-zukûr duna al-inâth, the males without the females). As we noted earlier, the Sunnis used to follow the Islamic sharî‘a  for their successions. Thus the females had in general half of the males’ share. In this case, the restriction of inheritance to the male descendants of the family seems to have been a practice followed only by some of the Maronites of Mount Lebanon (or at least its upper class).[23] This practice probably limited the infinite fragmentation of land in a society where the muqâta‘a and iltizâm rights had direct political implications. Similarly, kinship relations, which in practice meant the “exchange” of women, were only a means for the redistribution of land and of political power. Property given to a woman was considered a “waste” because of the high possibilities that she could marry from outside the clan.[24] A closure in the text specifies that if no male descendants exist then the revenues of the waqf become the legitimate property of Bashîr’s (second?) wife (apparently from the Shihâb family). And after the death of the latter, her daughters would enjoy such a right on the condition that they would marry from the Shihâb family. Finally, if no descendants were found alive then the revenues should be distributed among the poor Maronites of the Shihâbs.[25] Thus the Maronites had access to the Sunni courts of Beirut for their property transactions, and even though the codes of the latter were frequently incompatible with those of Catholicism, the Sunnis accepted this dichotomy as part of the “taking care” policy of the millet system. In other words, the “minority” had to submit itself to the rule of the majority without loosing its own identity.

      The interesting thing about this document is the way individuals are ordered and hierarchized vis-à-vis the succession of the waqf.  The male descendants come first, then the women and in particular the wife and daughters, and finally the clan itself. Women had in fact an intermediary position between the men and the rest of the clan. They were what forced the clan to open itself to the outside, thus preventing total stagnation. Women were the medium, the “go-betweens,” through which all kinds of goods, properties, and signs were exchanged between rival clans in a permanent state of war. In the case above, Bashîr’s wife comes as a second priority. The reason might be that a divorced or widowed woman should be taken care of by her brothers and cousins (in this case apparently cousins to Bashîr) rather than rely exclusively on her husband’s fortune.

      This hypothesis is strengthened by the second case which involves Bashîr’s (third?) wife of Circassian origin and her daughter who is the plaintiff.[26] The daughter accused her mother of illegally controlling the revenues of a property originally belonging to her three half-brothers, Emirs Qâsim, Khalîl, and Amîn (one-third each). She further claimed that Amîn “gave” her his portion before he died, and that she inherited part of Qâsim’s one-third after his death. With the help of some witnesses the mother was able to win the case by proving that her husband had transferred his property rights to her. In this case, the wife, even though not belonging to the Shihâbs or even to the Maronite sect, was “given” by her husband a property estimated at 236,000 piasters. This shows, in opposition to the previous case, that the farthest is the woman from the clan of her husband, the more is he entitled to provide her with the necessary means to survive as a widow or even as a divorcée.

      Every system of justice is part of a long established and canonized tradition that in the majority of cases is explicitly stated in a written form. If the judicial texts establish the framework upon which the courts should rely for their deliberations, the tradition remains a general set of rules logically tied together. In fact, there is a language-in-use for the practices of justice that presupposes a particular tradition as its frame of reference. This language-in-use, which is more directly related to the daily practices of the courts than the tradition, is sometimes incompatible with the latter. Such an incompatibility does rarely pose any problem for the social actors, and this observation is not only true for the judicial systems but for our moral, ethical, and political choices as well. We in fact rarely work out systematically our judicial, moral, and political traditions to check whether they are in conformity with our daily practices. Thus the “gap” between systematic traditions and world-views and daily practices is not only a problem for the Islamic courts and the individuals living in these societies, but is indeed a more universal phenomenon. However, since the historical and social contexts show a great deal of variety, the same phenomenon might have different implications from one society to another.

      Thus in the case of 19th-century Mount Lebanon, the Ottoman qânûn was faced with a multi-sectarian society whose traditions turned out to be in many cases not in conformity with the spirit of Sunni Islam in its Hanafi version. Still, the decisions of the court, at least from the examples we have seen, translate perfectly well in the context of a specialized discourse, the popular beliefs of the populations. Women were the agents through which property was being circulated inside and outside the clan, and the courts were there not for the protection of the rights of women but of those of the clan. If women acted as agents for the entire group, men, and in particular celebrity figures like Bashîr II, were both spokesmen for their group protecting its rights and interests, and individuals with a personal ethics. Only men had the luxury to personalize their actions, their properties, and personal relations.

 

 

V

 

We have the tendency to see the modern systems of justice in terms of “impartial” arbitration. According to a tradition that goes back to John Locke, the power of the legislative should be above all powers and especially political power. Looking historically at Locke’s assertions one realizes that they were primarily intended to free the legislative from the pressures of the political, and in particular the state, rather than to create an “impartial” system of justice. (One could easily argue that the Western systems of justice are class and race oriented even though there exists an “ideal” of justice which aims at treating individuals as “equal.”) The latter assertion, concerning an “impartial” system of justice, is in fact confusing. How can a particular system claim to be “impartial” when the law itself is a social phenomenon that cannot be dissociated from culture?[27] The difference between the Western and Islamic systems of justice is not a question of impartiality, whatever that may mean. The difference should be thought elsewhere, in the way both systems are social constructions of their own culture. “In Islamic law... the courts have long operated not as a counterbalance to the state but as a stabilizing device among contending persons...”[28] In the case of 19th-century Damascus and Beirut, when the power of the state was already weak, the function of the courts was more a reaffirmation of the power of the ‘ulamâ’ and their networks than the protection of the local populations from the power of the state or that of the Janissaries. To understand how these courts functioned in reality, we should consider them as part of the networks of the city. Their role was to keep those networks functioning by avoiding that feuds and conflicts between individuals, families, or groups degenerate into open acts of violence and wars. If the qâdî expressed a lot of interest in the social origins of those appearing in front of him, it was because he had to place the litigants back into a position where they could renegotiate their ties and alliances.

      This should lead us back to the issue of the non systematic character of Islamic law in general and the Ottoman in particular. Again, the difference with Western judicial codes is a cultural one. In fact, if the latter appear to be more systematic and rational, it is because the Western judicial systems which belong to the tradition of the Enlightenment philosophy claiming “universality,” aim at the creation of an abstract, coherent, and systematic discourse out of the individual events. Ideally, this type of discourse should cover all kinds of possibilities and a new set of statements should be added to the main body of texts when an unpredicted possibility comes into being. By contrast, “The categories of Islamic legal thought, like those in other domains of this culture, are frameworks that delimit, not structures that govern.”[29] This observation is not only valid to the Ottoman legal thought but goes back to the rules set out by the Imâm Shâfi‘î in the 12th century. Confronted with the question as to how Islamic legal thought is constructed, Shâfi‘î claimed that there are four basic sources of verification: (1) the Qur’ân, (2) the Sunna, (3) the consensus of the orthodox community, the umma, and (4) the method of analogy, qiyâs. If we look closely at the four steps, it becomes clear that unless a judicial opinion is clearly stated either in the Qur’ân or the Sunna, there is no clear cut method as to how it could be accepted since the third and fourth steps proposed by Shâfi‘î have no practical application. This shows that Islamic legal thought since its beginnings is only concerned by delimiting its field of study. And the remainder is left to the local practices of each court.

      There is still a wide gap between the written laws, sharî‘a and qânûn, which act as general guidelines and delimit the possibilities for the qâdî, and the local practices of each court. The reason is that the qâdî needs written codes that could support his decisions. Judges have no right to pronounce on what the law should be. This is usually left to scholarly opinion. It is at this point that the fatâwa, or “judicial consultations,” might be very helpful. The fatâwa are detailed replies written by eminent members of the learned hierarchy of Islâm, the ‘ulamâ’, to questions addressed to them by the local judges. Because the fatâwa are answers to very precise and concrete questions, they were, during Ottoman times, with the qânûnnâme, the most practical part of the law. They represented an “intermediary” solution between a divine sharî‘a and local judicial practices in need of some kind of orientation.

      Since the French Mandate period in Syria and Lebanon, the whole judicial system has been modernized. The new system is a strange combination of old judicial practices with Western ones. The religious qâdîs are left with Personal Status procedures. The modern judges, although often trained in Western schools of law, have often to opt for hybrid practices.

      The court system in Arab/Islamic societies and the Ottoman in particular should not be properly understood as something “autonomous” in the sense of deriving its own laws from a set of principles which have been “rationally” established. With this in mind, the qâdî becomes part of the conflicts and divisions of society rather than someone that is trying to transcend them.

 

Washington, February-November 1990



[1]For a recent evaluation of the status and present state of the Ottoman archives, see Kemal H. Karpat, “An Update on Turkish Archives,” Middle East Studies Association Bulletin, 23/2(1989), 181-187. The officials in the archives have revised downward the estimated total numbers of registers (defters) and documents from the earlier figure of 100 million to about 42 million.

[2]A waqf is a private or public endowment. The private, waqf ahlî, is erected for the support of the donor’s family, while the public, waqf khayrî, is created by the dedication of property for a charitable public cause.

[3]“Histoire et sciences sociales. Un tournant critique?,” Annales E.S.C., March-April 1988, n.2, 291-293. Some of the responses to this editorial have been collected in the special issue of November-December 1989 celebrating the 60th anniversary of the Annales.

[4]Some of the theoretical discussions and conclusions in this paper are based on a field-study of 19th-century Damascus, see Zouhair Ghazzal, Les fondements de l’économie politique de Damas durant le XIXe siècle. Structures traditionnelles et capitalisme (Damascus: Institut Français de Damas, 1993), and the beginning of a similar comparative study of Beirut during the same period, see idem, “Case Histories from the Sunni Law-Court Registers of Beirut in the Middle of the 19th Century,” unpublished paper presented at the Middle East Studies Association (MESA) convention, Toronto, November 18, 1989.

[5]I am here translating dispositif with “apparatus” in the sense of Michel Foucault. There are usually two dimensions in any apparatus, the strata of visibility (non-discursive practices) and the statements’ strata (courbes d’énonciation, discursive practices). An apparatus like the prison, for example, has strata of visibility which by means of a particular type of architecture regulate the distribution of light within the space of the prison—to see without being seen: the idea behind what Foucault called the “panopticon.” On the other hand, the statements’ strata are the resultant of a multiple level series of discourses whether scientific, judicial, penal, political, esthetic, medical, etc., that regulate the distribution of discourses for an apparatus like the prison. For a discussion on the use of “apparatus” in Foucault, see Gilles Deleuze, “Qu’est-ce qu’un dispositif?,” in Michel Foucault philosophe  (Paris: Seuil, 1989), 185-195.

[6]Uriel Heyd, “Kânûn  and Sharî‘a  in Old Ottoman Criminal Justice,” in Proceedings of the Israel  Academy of Sciences and Humanities, 3(1969), 1-18; idem, Studies in Old Ottoman Criminal Law, ed. by V. L. Ménage (Oxford, 1973).

[7]As I have argued in a previous unpublished MESA paper (Toronto, 1989), the ‘urf and the qânûn should be regarded as two different and separate entities. In all societies customary laws and rules are practices that remain for the most part unconscious to the participants and are hence unwritten. When specialists of Ottoman law like Heyd describe the provincial qânûnnâme as “rationalizations” and adaptations of local “customary laws,” the reference here seems to explicit “rules” which for a long time were left unwritten (probably due to the lack of a strong centralized state), and which the Ottomans have decided to integrate in their legal corpus.

[8]Cf. Lawrence Rosen, The Anthropology of Justice. Law as Culture in Islamic Society (Cambridge University Press, 1989); idem, Bargaining for Reality: The Construction of Social Relations in a Muslim Community  (University of Chicago Press, 1984).

[9]In the practices of the religious courts of Beirut and Damascus, the qâdî usually summoned the plaintiff and/or defendant to bring to court the necessary witnesses in order to corroborate a point they were trying to make. Thus witnesses were convoked to court at any point in the proceedings, and there were usually two or three witnesses at a time. Furthermore, they usually came to court for a very specific purpose, like witnessing on something that had been orally uttered by a relative of the parties in conflict, or certifying that the founder of a waqf had later on modified the content of his will, and the like. Since the judge never questions the witnesses systematically to verify the truthfulness of their statements, it is as if the work expected from the judge concerning the reliability of the witnesses is done before they testify, and this by assessing their social “origins” and networks so that he could end up with a reasonable decision that would be accepted by both parties. It is for this reason that, following Lawrence Rosen, I suggested that the behavior of a judge in an Islamic court is more of a “bargaining” position than of reconstructing and discovering a particular “truth.” The latter standpoint presupposes an epistemological system where objective knowledge is possible, and the discovery of a “truth” is the primary task of a knowing Kantian subject confronted with an object to be known.

[10]This case and the two that follow are presented and analyzed in detail in an unpublished MESA paper (Toronto, 1989). They are reconsidered here within a different interpretive scheme.

[11]Rosen, The Anthropology of Justice, op. cit., 27.

[12]One could of course easily argue that the Western systems of justice are race and class oriented. The point I am trying to make here, however, presupposes that any system of justice, like all moral and ethical systems, is based on a utopian dimension. It is the dialectical relationship between the ideal utopia and “reality” that determines the effectiveness of a particular system. 

[13]Rosen, op. cit., 56.

[14]The term muqâta‘ji, tax-farmer, was usually limited to Ottoman Mount Lebanon, while that of multazim  was in use from the end of the 16th century throughout the Ottoman Empire.

[15]Mikhâyil Mishâqa, Murder, Mayhem, Pillage, and Plunder. The History of the Lebanon in the 18th and 19th Centuries  (Albany: State University of New York Press, 1988), 23. The original title of the memoirs is al-Jawâb ‘ala iqtirâh al-ahbâb (“response to a suggestion by beloved ones”), and the current translation and edition is by Wheeler M. Thackston, Jr.

[16]Dominique Chevallier, La société du mont Liban à l’époque de la révolution industrielle en Europe  (Paris: Paul Geuthner, 1971), 69.

[17]Jack Goody, The Oriental, the Ancient and the Primitive. Systems of marriage and the family in the pre-industrial societies of Eurasia  (Cambridge University Press, 1990), 363.

[18]“Excluded from power games, women are prepared to take part in them through the mediation of men who possess power: since differential socialization predisposes men to love power games and women to love those who play them, male charisma is partly the charm of power, the charm or seduction exerted by the possession of power in itself over bodies whose very sexuality is politically socialized...sexual experience itself is politically oriented.” Pierre Bourdieu, “He Whose Word is Law,” Liber, 1(1989), published as a supplement to the Times Literary Supplement.

[19]In addition to the classical works of Freud, Melanie Klein, and Lacan, see also the “alliance” of some feminist movements with psychoanalysis in Jessica Benjamin, The Bonds of Love. Psychoanalysis, Feminism, and the Problem of Domination  (Pantheon, 1988), Elizabeth Grosz, Jacques Lacan. A Feminist Introduction  (Routledge, 1990) which is based on the work of Kristeva and Irigaray. What some of the feminist literature of the last decade has shown is that male domination is more a universal cultural phenomenon than a natural one. Domination, however, is not an “arbitrary” phenomenon in the sense that it is deeply rooted in the process that a child has to undergo in order to “discover” his sexual identity. This is done through a series of complex identifications with the parents which lead to the fear of castration and to the Oedipus complex. Some of the recent trends in the feminist literature are closer to Lacan than Freud. Lacan, in fact, has dissociated Freud’s theories from their “biologism” and rooted them in a theory of language that draws on the Saussurian distinction between the signifier and signified. By linking psychoanalysis to a modern theory of language, Lacan opened the psychoanalytic theories to the varieties of cultures and histories.

[20]For a feminist critique of Lévi-Strauss’ contention that there is a universal structure of regulating exchange that characterizes all systems of kinship, see Judith Butler, Gender Trouble. Feminism and the Subversion of Identity  (Routledge, 1990), 38-43.

[21]This, of course, is by no means restricted to Ottoman Mount Lebanon. In most American cities today, violence in all its forms—including rape, which paradoxically seems to increase the more society is getting sexually “liberated”—is an “expression” of the private and domestic violence between the sexes. Domination and male representations of women could be traced back even to the classical religious texts. See for example, Mieke Bal, Death and Dissymmetry. The Politics of Coherence in the Book of Judges (Chicago University Press, 1988); she concludes (231): “Reading the Book of Judges within the margins of the traditional readings has led us to realize how deeply violence is anchored in the domestic domain. I conclude with the suggestion that the political violence of wars and conquests is secondary in relation to the institutional violence of the social order. This violence seems to be the inevitable consequence of a social structure that is inherently contradictory. Between the two poles of the contradiction, x and y, the young woman, the virgin daughter, has to pay with her life for the society’s incapacity to solve the conflicts.”

[22]This case from the Beirut law-court archives is dated 20 Ramadân 1268/8 July 1852, the year following the death of Bashîr II (1851).

[23]In the next document, Emir Qâsim, Bashîr’s eldest son, who had three sons and four daughters had all of them inherit.

[24]Concerning the Druze, Mishâqa (op. cit., 190) notes that “they do not permit endogamous marriage closer than first cousins. They may not have more than one wife, who can be divorced but can never be taken back or gazed upon again. If a woman is divorced through her own fault, the religious leaders rule that the husband may take half of her property, and if the fault is the husband’s, the wife takes half of what he owns. As for inheritance, one may will his property to anyone he chooses, as Europeans do.”

[25]The Shihâbs were a multi-confessional family, originally Sunnis and gradually converting to Christianity. Bashîr II left his personal religious beliefs in darkness and was not eager to discuss them publicly. As a matter of fact, it is even unknown whether he did so in private. Obviously, by “hiding” his confessional identity, Bashîr sought a better control of a multi-confessional society whose subjects were not that eager to be controlled by a ruler outside their clan (for a long time Bashîr ruled Mount Lebanon from the minority Druze controlled region of Dayr al-Qamar) as these words attributed by Mishâqa to the emir show (he was speaking to one of his cousins, Emir Haydar al-Ahmad): “I recognize from the tenor of your words that they do not come from you, but from Shaykh Bashîr [Junblât, a Druze], for in his religious code they are allowed to dissimulate and, to protect themselves from danger, conform to whatever group they find themselves among. Christianity does not allow us to do that, even in mortal danger. If we are questioned about our faith, we are obliged to confess it boldly and unashamedly.” (Mishâqa, op. cit., 125) However, the popular gossip over the Christianity of Bashîr shows that he was never as open about his religious beliefs as in this text.

[26]The case is dated 4 Safar 1274/24 September 1857.

[27]“So those who had hoped to discover good reasons for making this rather than that judgment on some particular type of issue—by moving from the arenas in which in everyday social life groups and individuals quarrel about what it is just to do in particular cases over to the realm of theoretical enquiry, where systematic conceptions of justice are elaborated and debated—will find that once again they have entered upon a scene of radical conflict. What this may disclose to them is not only that our society is one not of consensus, but of division and conflict, at least so far as the nature of justice is concerned, but also that to some degree that division and conflict is within themselves. For what many of us are educated into is, not a coherent way of thinking and judging, but one constructed out of an amalgam of social and cultural fragments inherited both from different traditions from which our culture was originally derived (Puritan, Catholic, Jewish) and from different stages in and aspects of the development of modernity (the French Enlightenment, the Scottish Enlightenment, nineteenth-century economic liberalism, twentieth-century political liberalism). So often enough in the disagreements which emerge within ourselves, as well as in those which are matters of conflict between ourselves and others, we are forced to confront the question: How ought we to decide among the claims of rival and incompatible accounts of justice competing for our moral, social, and political allegiance?” Alasdair MacIntyre, Whose Justice? Which Rationality? (University of Notre Dame Press, 1988), 1-2.

[28]Rosen, The Anthropology of Justice, op. cit., 61.

[29]Ibid., 56.