Written documents as legal proof in Islamic law

Until recently, academic research considered the use of written documents by qadi courts throughout history as one of the major signs of the disconnection of Muslim legal thinking (fiqh) from applied law. This paradigm of a theory-practice-gap in “Islamic law” was built upon a reduced understanding of fiqh’s procedural laws, which only included oral forms of testimony (šahāda), acknowledgement (iqrār) and judicial oath (yamīn) as potential elements for judicial proof (bayyina), and therefore relegates “writing” (kitāba) to the rank of a mere indicator (dalīl). New important documentary evidence challenges this truism on the rejection of written proof that was first promoted by scholars like Joseph Schacht, Émile Tyan and Robert Brunschvig in the middle of the 20^th century and still finds its way into academic publications on Islamic law.

Legal documents challenge the theory–practice antagonism

The academic evidence that supports a call for a thorough revision of our understanding of Islamic law and Muslim legal thinking in history is based on the comparative study of legal documents. A close reading of thousands of Arabic legal documents on the subjective rights of individuals from the 8^th to the 16^th centuries has revealed important changes in the documents’ structures and formulations that nevertheless link in with the common legal language known from fiqh-lawbooks.¹

The growing influence of legal thought on applied law

As these documentary relics of legal practice changed in their content and use of juridical terminology over time, we notice a growing influence of Muslim legal thinking (fiqh) on applied law. Seen from the angle of a relation between theory and practice in Islamic law, the jurists’ law acquired the necessary authority for determining notarial and judicial practice only after its “formative period”. This finding contradicts previous scholarship that had imagined fiqh to correspond fully with social and economic realities only in its formative period.

The attestation (šahāda) as an example for legal development in practice and theory

The earliest specimen of Umayyad and 8^th century ʿAbbāsid documents mentions the name of four or more witnesses within its texts written by a scribe without further sign of authentication apart from the judge’s bulla. This does not correspond to the later fiqh rule of two witnesses for legal proof. From the end of the 8^th century onwards, we find separate witness annotations increasingly being written by the witnesses themselves as signs of authentication.

By the end of the 10^th century, but no earlier, the legal theory of dividing testimony (šahāda) into two succinct steps may be traced, the “assumption of testimony” (taḥammul al-šahāda) and “performing the testimony” (adā’ al-šahāda). Thus, there was a time when Muslim legal thinking corresponded perfectly to the fact that witnesses were engaged with testifying by writing and later performed this attestation orally. The jurists’ law fixed the legal obligation of an oral attestation for any person, who had written “I have attested” or impersonally “has attested” on a document with its signature. The qadi could then choose to accept this testimony for proof or not. Traces of these judicial procedures are found on documents from the 13^th century onwards, but we expect to find other examples upon closer examination of a wider corpus. At present, we have only seen earlier documents since the late 10^th century, when qadis begin to write at the top of witness-signed documents “I have attended to this”, or when a judge affirmed that he “confirms the validity”. The only possible explanation for this is that witness signatures no longer meant judicial verification and proof-acceptance, as had been the case with earlier documents.

Professional witnesses

During the 8^th and 9^th centuries Arabic legal documents were also signed by witnesses, after a major shift at the beginning of ʿAbbāsid -rule in the 780s, when authorities reduced the number of “honourable witnesses” registered with the qadi courts. For this time, we do not yet have a coherent juridical theory of legal proof, as the earliest juridical writings on the teachings of the respective school founders, Abū Ḥanīfa, Mālik, Šāfiʿī and their disciples, sometimes refer to individuals using contradictory rules. The later law schools had not yet been established as bearers of juridical dogma, as we find in the institutionalized guild law schools (Melchert)² and their law manuals from the 10^th century onwards. The legal frame within the Abbasid Empire therefore could not have been exclusively provided by existing circles of legal scholars, and it is more than probable that the legal order was still dominated by the caliphs throughout the 8^th and 9^th centuries and possibly later.

A new theory of the qadi’s ḥukm

With the emergence of the jurists’ law as “sharia” from the 13^th century onwards³, devoid of any reference to political or legislative power other than legal hermeneutics, Mamluk jurists developed a theory that made the consequences of a qadi judgement in a case compulsory for other judges: the mūǧabat al-ḥukm theory. As a consequence, judicially certified ḥukm documents no longer needed oral confirmation, but served as “attestation” to the notarized facts, rights, and obligations by their authentication marks. This explains the increased number of preserved qadi documents from the 13^th century onwards as they served as legal proof. And this fact corresponded perfectly to legal theory.

Ottoman practices

This said, oral witness procedures were never replaced, as we can see in Ottoman ḥuǧǧa documents that refer to notarial documents. However, the official annotation of such documents in court registers (siciller, siǧillāt) under the auspices of a qadi or his deputy judge and witnesses instrumentary (šuhūd al-ḥāl) then served as proof without further recourse to oral attestation.

To sum up: the function of documents as legal proof has a long and changing history. For the early times we generally ignore procedural law as practiced by qadis under the caliphal legal order. With the jurists’ law imposing itself as the normative reference for the qadi trials, notarial practices changed, and from then on closely followed juridical casuistry on procedural laws. These were the basis for a legal theory that admitted proof value to qadi documents, confirming the establishment of facts (ṯubūt), with or without a subsequent formal decision (ḥukm). Schacht and the other scholars cited did not look closely enough into juridical casuistry and neglected the study of Arabic legal documents and their authentication marks in pre-Ottoman times.

In the future, the variety of documents collected in the CALD-database, originating from al-Andalus to Khurasan, will hopefully illustrate and provide evidence for similarities and differences concerning the use of documents as proof within the Islamic legal tradition.

Topic to be followed up.

1. For first results see C. Müller, “Power of the Pen : Cadis and Their Archives. From Writings to Registering Proof of a Previous Action Taken” in Manuscripts and Archives. Comparative Views on Record-Keeping, A. Bausi et alii (eds.), Berlin 2018, 361—385; for a link to the database CALD see here. [↩]
2. C. Melchert, The formation of the sunnī schools of law: 9th-10th centuries C.E., Leiden 1997. [↩]
3. C. Müller,  “Islamische Jurisprudenz als Gottesrecht: Die schariatische Wende des 12. Jahr­hunderts”, in Islamische und westliche Jurisprudenz des Mittelalters im Vergleich, C. E. Lange, W. P. Müller & C. K. Neumann (eds.), Mohr Siebeck, Tübingen 2018, 57-83, and idem, “La fabrique de la charia en Islam : actes notariés et épistémologie juridique à l’épreuve de l’histoire” in 80 ans de l’Institut de recherche et d’histoire des textes, F. Bougard and M. Zink (eds.), Paris 2019, 51-62. [↩]

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