Arabic legal documents and socio-economic history

Legal documents were the main guarantee for people who went to law to keep their rights intact. Thus, they approached the notaries to have these legal instruments written down. The study of the social and economic history of Islam in premodern times, using the legal documents as the main source, should always have this premise in mind, as it was mainly individuals (and not those working in the legal system) who demanded the writing out of documents. In this sense, as historians, if we bear in mind this agency for the “consumers” of Islamic law, we will foster a more dynamic perspective in the study of Islamic societies.

One of the main questions is always whether the subjects of the law maintain a close relationship with the administration of justice or not, and what is the nature of this relation. The documents reflect this relationship from two points: the first, from below, shows how people seek to have their rights guaranteed through the administration of justice; the second, illustrates how the documents themselves are the product of administrative procedures. An analysis of the legal documents confirms a close connection between the subjects of the law, the legal rules, and the function of legal procedures. However, this connection to the law does not mean that the subjects of the law lived trapped inside a rigid frame of religious and legal duties, nor that their closeness to the legal system was complete or universal, but that the case was the contrary. The documents clearly show people’s engagement with, and use of, different sections of the law in multiple ways and circumstances. One of the main examples of this, for instance, is with regard to marriage gifts, as the main rules of Islamic law only oblige the bridegroom to pay a mahr to the bride’s father of more than a quarter of a dinar. It would be erroneous of us to think that this was the only economic exchange that occurred in Muslim marriages, and we would thereby be overlooking the complete social and economic picture of a complicated system of family transfer of property. The only legal requisite for any other marital gifts was that they should not be written down in the marriage contract as an exchange for the mahr. Many documents, other than the marriage contracts, evidence this practice. Another important example is the Islamic inheritance system, as we know that the document pertaining to the properties’ distribution does not reveal the complete transmission of properties within the family. In both examples, the families engaged, within the legal system, in a legal procedure that they know and use.

It is incontrovertible that the social and economic data gathered from legal documents, especially when compared with other legal sources, provide a large amount of material for the study of individual behaviors, as people interact on a specific date, and on a specific matter, with their families, neighbors, other owners, municipalities, and even with the state. On the other hand, comparative analysis of the documents shows how Islamic law represented applied law for all the subjects.

Comparative analysis of the documents also enables us to track certain individuals who are mentioned repeatedly in some geographical areas of the domains of Islam (notably Jerusalem and Granada), and we should be able to make a comparative study of the application of the law in different settings. In these cases, especially, we now are able to trace the documented lives of men and women and their legal encounters both inside and outside the family, which in turn has helped us understand how some families were interested in maintaining their own private legal archives that also contain their interactions with the clerks of the administration.

Women’s agency under Islamic law, their use of the legal instruments and the mechanisms by which they guaranteed their rights, are well represented in the documents. This leads us to conclude that they certainly not only controlled small budgets but were also the administrators and active owners of vast landed properties. In this sense, the documentary material promotes the “paradox of Muslim women”, for while they seem submissive and dependent at a social level, for them the field was open for independent economic activities as guaranteed by Islamic law. The scope of the preserved collections (Link to post on collections) also affords us the possibility of studying religious minorities in Islamic societies as well as their interconnections with the administration of law. It is relevant to question whether members of the minority communities needed to keep their written warranties within the Islamic legal system to a greater degree than their Muslim neighbors.

There is no doubt that the economic history of the Islamicate world would benefit from a thorough use of the CALD database, again with qualitative and not quantative questions. The documents provide material for the study of the prices, sizes, and values of movable and immovable properties, and the use of the coinage in different areas and throughout time. Obviously, this can only be done if we take into consideration regional and temporal parameters, as only a synchronic perspective will make this study relevant. With all these caveats, and provided that the preserved collections would permit it, we may try to map some urban and rural areas as well as to track the development of some neighborhoods and agricultural setting, using a micro-history approach that to date has not been considered possible with regard to premodern Islamic history. Obviously, connected with the documented history of the owners and their families, the perspective of a more accurate economic and social history of Islam might well be possible through the analysis of Arabic legal documents.

The most documented legal instrument in the CALD database is the sale contract, as we have specimens from all the geographical areas covered in the database. We cannot assume that sale contracts were the most frequently used deed by Muslims and non-Muslims, ­­only that they were possibly the most important type of legal document worth preserving safely. However, the larger economical context — transfer, donation, debts, inheritance, property rights — within the life of the subjects of the law in premodern times has led to the preservation of even more documents within a commercial context. On the other hand, family matters also represent an important number of legal documents in issues related to custody, inheritance, family obligations, donations. These documents illustrate the nature of the relation between families and the administration of an applied law.