Property, Proof, and Paper: Contestations of Legal Entitlement in Islamic Law
Panel V-12, 2024 Annual Meeting
On Wednesday, November 13 at 11:30 am
Panel Description
Notions of property and entitlement have evolved significantly in the Middle East and North Africa across empires, religious institutions, and the formation of modern states. One of the most critical elements of these developments has been the treatment of property entitlement–individual, communal, state, or otherwise–in Islamic law (fiqh). Scholars have illustrated various ways by which Muslim jurists constituted property concepts, yet the ways in which jurists envisioned establishing these concepts in practice–namely, through means of proof–remain far less understood. This panel advances historical understanding of the relationship between property entitlement and the Islamic legal modes by which their holders established proof for it. Its three respective papers do so by examining this relationship for the respective concepts of scheduled manumission (kitāba) of enslaved persons, revenues of the religious endowment (waqf), and landed property entitlement (milkiyya). All three concepts were critical to economic life of the Middle East and North Africa for centuries, all three were well-developed norms in Islamic jurisprudence, and all three depended on tangible evidence of establishing entitlement to the enslaved person, religious endowment, and land, respectively.
The papers of the panel therefore examine prevailing practices for constituting evidence of the respective legal concepts as part of the concept in itself. The first paper examines a Mamluk-era Egyptian notary manual to argue that scheduled manumission depended on a defined process embodied in the precise stipulations of paper documentation. Relatedly, the second paper contends that it is impossible to understand how religious endowments produced wealth in rural and agrarian areas without attention to local testimonies to establishing bloodline. Finally, the third paper likewise centers testimonial practices in twentieth-century Morocco as a core tension between Islamic legal and French colonial visions of a landed property regime. All three papers point to proof as a critical yet oft-overlooked element of legal practice that was intrinsic to notions of property entitlement and Islamic law more broadly. In the end, this contention calls for understanding the stipulated procedures for establishing fact as part and parcel of legal history of the Middle East and North Africa.
As in many other pre-modern societies, slavery was ubiquitous in the Islamicate world. It is therefore not surprising that it was discussed at great length by Muslim jurists. However, their understanding of slavery as a legal institution goes far beyond a simple binary distinction between freedom and slavery. This is particularly evident in their debates over forms of scheduled manumission such as the kitāba, a contract that allowed an enslaved person to fulfill certain contractual obligations over a period of time in exchange for manumission. While an unqualified declaration of manumission (Ar. ʿitq) terminates the ownership relationship between master and enslaved person instantaneously, the legal status of a mukātab or mukātaba is characterized by a gradual transfer of property rights over time. The enslaved person enters a process in which they become the owner themselves until completely ceasing to be the property of their former owner after the fulfillment of the contract.
I examine how this process is reflected in model deeds for kitāba composed by the Egyptian al-Asyūṭī (d. 880/1475) in his notarial manual Jawāhir al-ʿuqūd wa-muʿīn al-quḍā wa-l-muwaqqiʿīn wa-l-shuhūd written at the end of the 9th/15th century. In this period, shortly before Ottoman conquest of Egypt, notarial deeds in combination with oral testimony served as an important means to establish property claims. The study of these model contracts thus allows us to obtain a deeper understanding of jurists’ rendering of the gradual transfer of property rights from the master to the enslaved person within a kitāba contract. Moreover, it affords us insights into legal practice that is otherwise obscured by the nearly absolute lack of documentary and archival sources concerning this type of manumission in the pre-Ottoman period.
This paper aims to explore how the legal mechanisms allow exploitative relationships under the guise of charity, using the processes by which waqf revenues were reported as a case study. According to the dominant vision within the field, medieval waqf was a legally enshrined system by which grantors could ensure the wellbeing of their communities and their souls through selfless acts of ongoing charity. In rural context especially, the waqf capitalized on a large network of local notables whose testimony was trusted by officials and whose word became therefore essential to the functioning of the waqf.
Wealthy grantors created the waqf through a series of contracts typically stipulating the grantor’s bloodline as the primary beneficiary and upon the bloodline’s extinction establishing some charitable cause as the alternate beneficiary. Most studies have focused on the waqf’s effects on urban beneficiaries, overlooking how this wealth was accumulated. Historiographical sources depict generous patrons distributing wealth to various causes. Although some waqf property was urban, much of it in fact came from farmland in villages far away from the sites of wealth distribution. My research in documentary sources reveals the pre-history of this wealth, and how it made its way to its various beneficiaries through the trusted testimonies of locals.
Entitlement to landed property was one the core legal concepts perpetuating colonial rule across the world. In the case of French colonial “Protectorate” Morocco (1912-1956), the intense focus on reforming land law attests to its centrality to France’s so-called mission civilisatrice. This paper examines the colonial encounter with Islamic legal forms of documenting land transactions in early Protectorate Morocco. It argues that practices of establishing proof—in this case, through authentic notarized documents—emerged as the central point of colonial engagement with Islamic (shari’a) court practice in Morocco. Whereas many colonial powers forced all land to be subject to titles in a public register, French authorities in Morocco made property registration (Fr., immatriculation; Ar., tahfiz) optional. As a result, shari’a courts remained competent for any unregistered property dispute—even for those involving European litigants. How then did French administrators “respect” Islamic legal practice while encouraging European purchase of unregistered land in the hands of Moroccan Muslims?
I examine this question through the private Islamic legal contract of property entitlement (milkiyya). In doing so, I examine original court archives to show that French administrators intensely focused their procedures for drafting Islamic legal documents in an attempt to recast the milkiyya as an Islamic legal analogue for property title. After first pointing to the rich Islamic legal traditions of documentation, I show that French authorities declared documentation practice outside the “religious” domain of Islamic law that they promised to protect. By forcing notaries to register these documents in court registers, French officials attempted to subject Islamic legal criteria for establishing documentary fact—namely reliable testimony and notarization—to central state mediation. By extension, this process placed the localized criteria for testimony at the forefront of confrontations between shari’a court personnel and French colonial surveillance. In the end, I suggest that processes of property documentation provide immense untapped insight into the court-level impact of colonial legalities on Islamic law in courts.
