Isğāl and Išhād (justice mamluk)


The numbers of isğālāt and išhādāt during the Mamluk period were indeed considerable, and time and ample investigation are necessary in order to measure their range in a meaningful, if not exhaustive, manner. This is especially true because the typology of Mamluk legal documents must be dealt with from the start if we consider the many questions to which the notarial treatises (kutub al-šurūṭ) have only provided a few answers. It would therefore be judicious to bring to light the greatest possible number of kutub al-šurū as a prelude to the typology stage in order to avoid doing much of the same work twice and making the task even more onerous that it already is. While the documents must belong to the group that has already been consulted for this project, earlier kutub al-šurūṭ (Ṭaḥāwī, Ṭaḥāwī‘s Kitāb al-šurūṭ al-kabīr, for example) and those from distant geographical areas (al-Andalus for Ibn al-ʿAṭṭār al-Umawī, Kitāb al-Waṯā’iq wa-l-siğillāt, Ḫurāsān for Sarḫsī, al-Mabsūṭ ''Kitāb al-šurūṭ'' vol. 30; Yarqand etc.) would facilitate a comparative reflection on the Mamluk isğālāt and išhādāt, and would also reveal the contrast that exists between Mamluk notarial practices on the one hand and those of earlier generations and other contemporaneous Muslim countries on the other.  

I am convinced that, thanks to this approach, which favors quantitative analysis, the two types of Mamluk documents in question will gain clarity and their juridical specificity will appear more distinctly. In truth, the CALD database remains for the time being the only efficient and available tool that satisfies the research requirements that I mentioned regarding Mamluk legal documents. This would be a way of shedding light on the Mamluk notarial tradition, whose indicative elements appear clearly in documents from legal practice, namely the legal acts that are to be found in great number in the CALD, in order to highlight the distinctive characteristics of legal pieces called Isğālāt and išhādāt. This will only be the case, however, if these characteristics are different from those already recorded in contemporary notarial works and especially in Ğawāhir al-ʿuqūd, by al-Asyūṭī. This author establishes a number of formal rules to which an act of isğāl from the period must correspond. While these rules were observed to a certain extent, they left free rein to the inventiveness of the copyist or judge as long as the changes he made to the form had the primary object of being practical and effective in procedural material.

We must therefore be aware that we are here dealing with one of the central disciplines of Muslim jurisprudence, namely notarial law. It is at the heart of our European ILM (Islamic Law Materialized) project. Its thesis is that notarial practice demonstrates a process of constant innovation from a strictly practical point of view, all the while maintaining its dependency on Muslim law. It offers formal models according to needs that vary according to time and place. This, alas, has lead to the seductive but untenable thesis suggested by some notable specialists of Islam (including J. Schacht), according to whom notarial law (because it was very little studied if not ignored by the legal discipline) may have grown too distant from Muslim law, with which it consequently maintained only an occasional relationship that does not imply a cause-and-effect mechanism. All in all, can we not say therefore that Muslim did not constitute the main source of ʿilm al-šurūṭ, which appears to be a discipline that enjoyed a level of autonomy that remains to be measured?

But the reality of the historical links between the exercise of notarial practices and normative law in the Muslim world leaves no room for doubt. The judges and the entire personnel of the Mamluk legal apparatus were, like their Muslim peers everywhere else, driven by the same concern for adaptation but never completely dissociated themselves from the Muslim legal substrate. Furthermore, although there is a minor difference between the model of isğāl as it was practiced in Bilād al-Šām and the one that was adopted in Egypt, both regions attest to this adaptation in their respective legal acts. The legal history that followed, despite the minute formal differences that are visible in the texts, depended on the study and analysis that were carried out on these acts. I will limit the examples I give here to three passages copied in bold characters (qalam ġalīẓ) that may be found in both these models from geographically neighboring regions (acts from Ḥaram al-Šarīf and those from Sinaï): the judge’s special mark (ʿalāma), the date written in his own hand and the ḥasbala as a ritual formula that closes the act.