Some preliminary thoughts on the question of medieval qāḍī court archives

At the moment, I am enjoying Marina Rustow’s recently published tome The Lost Archive. Traces of a Caliphate in a Cairo Synagogue. The author is speaking to a number of points which interest me, but today I will concentrate on her discussion of Hallaq’s argument about archiving at qāḍīs’ courts.

Calling Marina Rustow’s book a tome is not unwarranted. On the one hand, with its appendices it amounts to almost 600 pages. And while it is not available in open access to my knowledge, I would call it a bargain: you pay less than a tenner for each 100 pages.{1}

On the other hand—and much more importantly—the book has a much wider argument than the title might suggest. Rustow argues for the existence of archives in the Medieval Middle East, and for their pruning as a regular feature and proof of their functioning. In other words, the fact that (state) documents ended up in the Cairo Geniza corpus was no an accident, but the result of a system of discarding documents which had stopped mattering. This kept the archives lean and functioning.

This is not a review though, and I have to admit that I am only one fifth into the book. What caught my eye and inspired this post, is Rustow’s discussion of Hallaq’s 1998 article “The qādī’s dīwān (sijill) before the Ottomans” (pp. 68-73).{2} Rustow begins her discussion by circumscribing their common ground:

Distinguishing between document production and document survival is a good place to begin […].

Marina Rustow, The Lost Archive, 70.

However, although Hallaq argues against the—then—conventional position that archives had not existed in the Medieval Middle East, his argument falls into another trap by assuming that judges’ records had not survived because their archives were not meant to survive for more than two generations. Each judge’s successor would copy from their predecessor’s records what they seemed worthy or necessary but the old registers would not be archived except by their owner—now a “private” individual.

Rustow rejects this explanation that documents have not survived because of a lack of institutionalised archiving by, on the one hand, drawing on sociological interpretations of what makes an “institution”, namely a set of social codes and practices which constitute a system complex “like languages” (p. 71). Other scholars such as Paula Manstetten or Nathan Hofer have already shown the value of this notion of “institution” for research on Medieval Islamicate societies.

On the other hand, Rustow makes a case for pruning as a central part of what archiving means and she questions Hallaq’s implicit assumption about the setup of a judge’s court:

The problem lies, I believe, in Hallaq’s conception of the qāḍī court as a one-man peripatetic operation without continuity or institutional memory. [… On the other hand,] Court registers presented a small percentage of the total documentary output of the pre-Ottoman Middle East. […] In addition to registers, there were freestanding deeds handed to the contracting or litigating parties.[…]

Marina Rustow, The Lost Archive, 71, 72.

There is two things in this quote, I would like to address, one briefly and one in more detail. The first concerns the documents given to and stored (perhaps even archived) by members of the populace.

Aḥmad Ibn Ṭawq, who has his own entry in this blog’s menu, was involved in several legal litigations which he retells in different levels of detail in his journal. One of the earliest entries, I presented one such passage, which demonstrates the lengths he had to go to to make his claims on benefits from an endowment heard. Archival practices come into play at two sides of his rendition. First, where did he get those documents of proof from? Did he keep his own archive or could he copy them from a more centralised archive? I would speculate it was a mix of both. Second, at the beginning he states that he submitted a wide array of documents, “all of it in a white cotton bag“, and at the very end that “all [documents ] were put into the basket in which are the letters/books (kutub)”.{3} His matter-of-fact description tells us at the least that there was a common—thus institutionalised—way to deposit legal documents for a litigation.

Yet, this example does not say much about the qāḍī’s court specifically. This brings us to the second source. At least during the Mamluk period, judges were exchanged regularly and according to a seemingly pre-arranged system, by which two judges would alternate taking the chief-judgeship every year to year-and-a-half.

The most detailed source on this practice, at least for Damascus, was written by the other person who has a menu entry here: in his work “al-Thaghr al-bassām fī dhikr man wulliya qaḍāʾ al-Shām” (“The Smiling Mouth regarding reports on who ruled as judge in Damascus”), Muḥammad Ibn Ṭūlūn does not only give an overview of the chief judges (organised by law school) of his hometown over the last few hundred years.{4} He documents, often to the month or even day, when they alternated.

The system that emerges from his rendition seems to have been stable over the Mamluk period. Two candidates alternated with each other in a steady rhythm. When one of them died or was discharged for good, he would be replaced with a new candidate, and the cycle continued. Ibn Ṭūlūn inserts a short biography of the new judge whenever that happened.

At which point then, would the records of a former judge then be copied? When they died? Or every time they handed over the position to the second candidate? Neither seems viable if transition was to go smoothly. Rather, it seems more likely that, as Rustow implies those chief judges had recourse to a larger bureaucratic apparatus which assured continuity.

And we know that by the later 15th century, some Damascene judges gained infamy for the size of their corpus of scribes and deputies. The Shāfiʾī chief judge Ibn al-Furfūr had upwards of ten deputies at one point during the 1480s.{5} Incidentally, Ibn Ṭawq also fulfilled scribal functions for the same man.

Yes, a bureaucracy existed, and it might well be that Ibn Ṭawq tapped into it when collecting the proofs for his claims mentioned above. It is the intricate details of this bureaucracy and its effects on people’s lives that require our attention.

Did each of those pairs of chief judges have their own register? Did each deputy have their own? Or did the scribal apparatus create one central register for all judges within each law school? Would this central register be copied again for the judge or judges ruling in a certain case? Which documents were written for the court archive and which for litigating parties? And how did those differ from each other in terms of format, layout or quality of paper and writing? To answer those questions, we have to heed Rustow’s advice and examine the documents themselves.

Cite this article as: Torsten Wollina, "Some preliminary thoughts on the question of medieval qāḍī court archives", in Damascus Anecdotes, November 22, 2020, https://thecamel.hypotheses.org/2166.
  1. Marina Rustow. The Lost Archive. Traces of a Caliphate in a Cairo Synagogue (Princeton: 2020. The book is also illustrated generously, and comes at less than $60. []
  2. Wael Hallaq. “The qādī’s dīwān (sijill) before the Ottomans.” Bulletin of the School of Oriental and African Studies 61 (1998): 415-36. []
  3. Aḥmad Ibn Ṭawq. al-Taʿlīq. Yawmiyyāt Shihāb al-Dīn Aḥmad Ibn Ṭawq. Mudhakkirāt kutibat bi-Dimashq fī awākhir al-ʿahd al-mamlūkī. Edited by Shaykh Jaʿfār al-Muhājir, 4 vols. (Damascus: Ifpo, 2000-2007), vol. 2: 847-848. []
  4. Muḥammad Ibn Ṭūlūn. al-Thaghr al-bassām fī dhikr man wulliya qaḍāʾ al-Shām. survives in two different drafts in manuscript: Cairo, Dār al-Kutub, MS Majāmīʿ Taymūr 79/2, and Princeton, Firestone Library, MS Garrett 196B []
  5. See Miura Toru. “Urban Society in Damascus as the Mamluk Era was Ending.” Mamlūk Studies Review 10, no. 1 (2006): 157–93. []

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