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Documents

By:
G. Burak
Source:
The [Oxford] Encyclopedia of Islam and Law What is This? An English-language legal reference for scholars of Islamic studies and Western engaged readers presenting the history and development of Islamic Law.

Documents

A document, from a legal perspective, is any written record that fulfills a function in the legal procedure and establishes a legal fact. As in many other legal traditions, in the Islamic tradition, documents are used quite extensively in various legal procedures and for different purposes. Therefore, the content of the documents, the circumstances in which they are compiled, the conventions they follow, and the terms used to describe their different types vary considerably. They range, to mention a few examples, from a court record (sijill) to an endowment deed (waqfiyyah), to sultanic/caliphal decrees and edicts (rasm/berat), to registers (daftar). The most general terms for documents in the Islamic legal tradition changed over time and space but among the most commonly used terms are ṣakk, wathīqah (mostly in North Africa and Islamic Spain), ruqʿah, khaṭṭ, and kitāb.

The discussion of the use of different types of documents is scattered throughout the fiqh literature, but it is mainly concentrated in the segments dedicated to transactions between members of the Muslim community (muʿāmalāt). Much of the discussion is in the chapters and individual works devoted to the etiquette of the judge (the Adab al-qāaī literature), which deals with the conduct of the judge and the court. The reliance on written records in the Islamic legal tradition is not particularly surprising given the fairly extensive use of documents and written records throughout the Near East, Central Asia, and North Africa in late antiquity. The early Islamic empires inherited a wide range of documentary and bureaucratic practices from their late antique predecessors. Extant papyri from late antique and early Islamic Egypt, for example, reveal clear continuities in terms of the content of documents and their use. The Qurʾan itself attests to the use of documents in early Islamic Arabia and encourages the believers to keep records: “When you contract a debt for a fixed term, record it in writing. Let a scribe record it in writing between you…. Be not averse to writing down [the contract], whether [the amount] is small or great, with its terms” (Qurʾan 2:282). Moreover, the Prophet himself is said to have drafted and used documents of different types in his legal transactions.

Nevertheless, like many other legal traditions, the Islamic legal tradition has developed specific criteria to determine the authenticity and the legal reliability of a written record. More broadly, the Islamic legal tradition’s attitude toward the use of documents needs to be considered as part of the more general approach of the Islamic tradition toward the written word. At the basis of this approach is the emphasis on the historical/social context in which the written text is produced and on specific social institutions and practices, namely the chain of transmission, that are intended to guarantee the authenticity and reliability of the text. On the basis of this approach, over the centuries Muslim jurists and scholars have developed a continuum on which different textual artifacts could be placed. On the one end of the continuum are the texts that are considered most reliable, due to their wide circulation (tawātur, a transmission of a text through multiple chains of transmission). Among those texts one could list the Qurʾan, the canonical compilations of Hadīths (though not the individual ḥadīths they contain, which are rarely deemed to have reached tawātur from the Prophet), and several fiqh works. On the opposite end are written records whose authenticity needs to be established by reliable witnesses who could provide information about the circumstances in which the text or the document was compiled, and the identity of the author and the addressee.

Although the reliance on witnesses to substantiate the authenticity of a document is fairly common in the Islamic legal traditions across schools of law and the Sunni/Shiite divide, in different historical contexts, different types of documents fell along the aforementioned continuum. For example, Ḥanafī jurists who operated in eleventh- and twelfth-century Central Asia argued that the personal records of merchants and moneychangers as well as edicts and decrees issued by the governor could be used as valid evidence without the corroborating testimony of witnesses. Similarly, in the seventeenth century jurists who were affiliated with the Ottoman dynasty justified the use of imperial registers (daftar in Arabic, defter in Turkish) as independent, uncorroborated evidence, based on the rulings of their eleventh- and twelfth-century predecessors and on the Ottoman archival practices. Other seventeenth-century Ḥanafī jurists, however, argued that the imperial register could not be admitted as independent evidence, thus stressing the importance of the reliable testimony of witnesses and/or of the chain of transmission of evidentiary authority.

While certain documents do not require corroborating testimony because of a specific social and institutional context that guaranteed their authenticity and reliability, other types of documents were considered valid evidence due to the role they fulfilled in the legal procedure. Ḥanafī jurists from Central Asia and elsewhere, for example, contended that if an author employs the well-known notarial conventions, employs direct speech, and his addressees’ identities are clear, the document might be considered a direct speech act and thus could be used without the testimony of witnesses. That said, in cases in which the authenticity of the document is contested, witnesses are required to attest to its authenticity and to the circumstances in which it was written. Another type of document that does not require corroborating testimony are documents that record an act that already had an effect on the legal procedure. Therefore, at least in the Ḥanafī tradition, a document recording the fact of admission (iqrār) does not require additional testimony.

There were instances in which polities and legal systems that considered themselves Islamic utilized documents that were not considered reliable or valid evidence by some jurists. In Mamluk Egypt, for instance, siyāsah and maālim tribunals that were presided over by the sultan or his deputy admitted documents that did not constitute valid evidence, according to the procedures as they appear in fiqh manuals. In the Ottoman imperial legal system, as has already been noted above, the records of the Ottoman administration were often considered reliable evidence even when they were not supported by witnesses.

The erosion in the importance of the witnessed document was gradual and followed different temporalities in different parts of the Islamic world, but, generally speaking, it reached a critical mass over the course of the nineteenth and the twentieth centuries. The Ottoman Civil Code of 1877, the Mecelle [see MECELLE], declared that the witnessed document has no value in itself, although the code still regarded the testimony of reliable witnesses as the basic type of evidence. In the Ottoman lands, the erosion in the status of the witnessed document had started centuries earlier, as the Ottoman state administration gradually developed other practices to ensure the legal reliability of a document. European colonial powers and Westernizing legal reformers throughout the Islamic world also contributed to the decline in the importance of the witnessed document. Nonetheless, in many Islamic countries in the twentieth and twenty-first centuries, witnessed documents are still used in cases related to family law and personal status.

The fairly extensive use of documents in the Islamic legal tradition led to the emergence of several genres attempting to regulate and standardize the formulae for each type of document. Those manuals were intended for different users: some were written for notaries, while others were intended to assist the scribe and the judge in court. Among the former, one could mention the shurūṭ manuals or formularies, which contain model contracts or templates for all possible needs. The templates are stripped from specific details (the names of the parties involved, the amount of money owned/transferred, etc.). Another genre was the maḥāḍir and sijillāt literature which contained templates for use by the judge and his court clerks in keeping court records. More specifically, the maḥāḍir literature dealt with the records of the proceedings in court, while the sijillāt focused on the judgment and the qādī’s decision. At least in the Ottoman Empire, from the sixteenth century onward, a body of ṣukūk works was intended to assist the court scribe in drafting documents, in a similar manner to the works of the maḥāḍir and sijillāt genres.

Different schools of law developed their own body of manuals and formularies in different times and places. For example, Ḥanafī jurists were apparently the first to produce a significant corpus of shurūh works in the tenth century, to be followed by their Shāfiʾī colleagues a few decades later. The Ḥanbalīs, on the other hand, have not compiled any shurūh manuals. Mālikī jurists developed a different genre, the wathāʾiq genre, that in many ways is similar to the shurūh manuals, but which eventually became related with the manuals dealing with the procedures of the courts.

Modern scholars have debated whether those manuals and formularies were descriptive or prescriptive. Joseph Schacht and Jeanette Wakin argued that the shurūh manuals are closely related to the notarial practice. Other scholars, most notably Wael Hallaq, have stressed the more dialectical relationship between the manuals and the notarial practice. According to Hallaq, the jurists who authored those manuals constantly updated them based on current practice and on doctrinal developments in the school of laws and rooted out templates and rulings that were no longer in use.

See also MECELLE.

Bibliography

  • Ergene, Boğaç. “Document Use in Ottoman Courts of Law: Observations from the Sicils of Seventeenth- and Eighteenth-Century Çankırı and Kastamonu.” Turcica: Revue d’Etudes Turques—Peoples, Langue, Culture, Stats 37 (2006): 83–111.
  • Hallaq, Wael B. “Model Shurūṭ Works and the Dialectic of Doctrine and Practice.” Islamic Law and Society 2, no. 2 (1995): 109–134.
  • Johansen, Baber. “Formes de langage et fonctions publique: stereotypes, témoins et offices dans la preuve par l’écrit en droit musulman.” Arabica 44, no. 3 (1997): 333–376.
  • Lydon, Ghislaine. On Trans-Saharan Trails: Islamic Law, Trade Networks, and Cross-Cultural Exchange in Nineteenth-Century Western Africa. Cambridge: Cambridge University Press, 2012.
  • Lydon, Ghislaine. “A Paper economy of faith without faith in paper: A reflection on Islamic institutional history.” Journal of Economic Behavior & Organization 71 (2009): 647–659.
  • Messick, Brinkley. The Calligraphic State: Textual Domination and History in a Muslim Society. Berkeley: University of California Press, 1993.
  • Messick, Brinkley. “Evidence: From Memory to Archive.” Islamic Law and Society 9, no. 2 (2002): 231–270.
  • Schacht, Joseph. An Introduction to Islamic Law. Oxford: Clarendon Press, 1964.
  • Sijpesteign, Petra M. Shaping a Muslim State: The World of a Mid-Eighth-Century Egyptian Official. Oxford: Oxford University Press, 2013.
  • Tillier, Mathieu. “Le statut et la conservation des archives judiciaires dans l’Orient abbaside (IIe/VIIIe-IVe/Xe siècle): un réexamen,” in L’autorité de l’écrit au Moyen Age (Orient-Occident): XXXIXe congres de la SHMESP (La Caire, 30 avril-5 mai 2008) (La Caire, 30 avril-5 mai 2008), pp. 263–276. Paris: Publications de la Sorbonne, 2009.
  • Tyan, Emile. Le notariat et le regime de la preuve par écrit dans la pratique du droit musulman. Harissa: Impr. Saint Paul, 1959.
  • Wakin, Jeanette A. The Function of Documents in Islamic Law: The Chapters on Sales from Ṭaḥāwī’s Kitāb al-Shurūṭ al-Kabīr. Albany: State University of New York Press, 1972.
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