104 Order and Disorder: Power and the Law

tions, and personal privileges. These formed the operative core of public law, defining the relationship of individuals to the state. The amount of taxes a resident paid on his house, the authority of governors and tax farmers, the tax privileges of Janissaries— these were matters regulated by official rules. A tax register authorized by the sultan was a binding document; the residents were obligated to pay the rates specified for them, and those who were mistakenly omitted enjoyed freedom from them until the books were corrected. Multitudes of people in the city carried official papers certifying certain rights, powers, or tax exemp­tions. To those who on occasion protested in court that the issuing of such privileges harmed them the qadi had one invariable answer: such are the sultan’s orders and they must be obeyed.47 The ruler’s will was law; its fairness was not subject to debate in the court.

Also part of state law were criminal codes that supplemented the sharica’s provisions and went beyond them to widen the prerogatives of the authorities in enforcing public order. The codes defined precise punishments for the many criminal offenses for which the shari'a desig­nated no specified penalties. In the interest of maintaining order they gave the authorities wide powers, and also elaborated on the legal responsibilities of individuals and groups to conflict themselves prop­erly and assist in the tasks of law enforcement.4® )These rules, which shaped in some fundamental ways the status of individuals vis-a-vis the authorities, were also enforced by the qadis.

To this legal corpus which evolved outside the sharica the community added what amounted to customary law. Many arrangements and prac­tices that guided water distribution, construction, and market activities in the city developed by formal agreement within groups or through informal communal consensus. Being largely unwritten, their validity was usually confirmed by the testimony of expert witnesses. To the extent that they were proven to be “established custom” (al-muctad al- qadim, al-cada al-qadima) the court enforced them as law. When some bakers began to produce a new kind of bread in 1768, a group of their colleagues who were threatened by the success of this innovation were able to block it by proving in court that it violated the local custom, established by the bakers’ guild, of producing only four specific types of bread.49 The qadi declared that “the old custom must stand undis­turbed” — a dictum that was echoed time and again in judicial verdicts.50

Despite the language used to identify them these “old customs” included rules that were neither frozen, nor old, nor universally ap­proved. They were made and unmade daily. Power, not age, shaped

Order and Disorder: Power .and the Law 105

them and secured their hold. The process is displayed most vividly in the trade guilds, which manufactured a large body of customary rules regarding entry into occupations and promotion within them; access to raw material and jobs; shop licenses; wages; product quality; and prices. The prominent interests in the profession shaped these “customs” and maintained them while they proved useful, defending them against members who challenged or violated them. When economic conditions changed or the weight of interest and influence within guilds shifted, members appeared in court to pronounce modified rules, which were soon conveniently known as the “old customs.” 5' Small groups were the usual participants in this process of shaping “customs,” but the legal effects touched the entire community. The aggregate of guild rules, for instance, determined the structure of the city’s commodity and job markets.

With the sharica immune to change and state law subject to forces largely beyond local control, customary law figured as the main channel through which the townspeople could shape the legal norms of their community. It gave some legislative expression to local interests. The adaptable nature of customary and state laws lent flexibility to the legal system, allowing it to respond to shifting conditions in those areas most sensitive to change: the economy, administration, and public policy. The shariea, for all its centrality as the hallmark of Islamic society, thus left considerable room for legal adaptation and discretion in areas not governed directly by its rules. Outside it thrived a whole body of secular laws, regulations, and customs which possessed a life of their own and were recognized as perfectly valid legal norms binding on the public.

Alongside its complex of laws Aleppo had also a network of institu­tions for their enforcement, in the form of both a police apparatus to prevent and handle crime and a system of courts to adjudicate disputes and protect legal rights. The official police machinery was unimpressive in size, but the law equipped it with formidable powers to impose security regulations on the public and to arrest, investigate, fine, im­prison, and execute. Guided by a law-and-order approach to issues of public security, the state gave its delegates extensive authority and discretion. It even recognized the pasha as an “administrative judge” (hakim al-curf or hakim al-siyasa) with the power to pass sentence on criminals independently of the sharica court. While the authorities were prohibited from abusing the rights of individuals, the very scope of these rights was considerably diminished at the outset by the latitude granted to officials by the system.

io6 Order and Disorder: Power and the Law

O f the judicial courts that enforced the law in the city none ap­proached the qadi’s in importance. Although commonly known at the time as the sharica court (al-mahkama al-sharHyya or majlis al-shar(), it enforced state and customary laws as well as Islamic law. With its comprehensive jurisdiction, plurality of public functions, and official standing as the chief court of the land, it dominated the legal scene. In it was centered the mainstream of legal business. The court opened its chambers to complaints by members of all classes and groups. The non- Muslims resorted to it, as also did women, who figure prominently in the registers. The court admitted all matters, including the most petty. Its staff handled on the average some four thousand legal cases a year. Only a portion of this business passed through the hands of the qadi himself. From his seat in the Great Courthouse (al-Mahkama al-Kubra) he supervised four court offices, each run by a deputy judge (naHb) appointed from among the local ulama. The qadi delegated court busi­ness to his deputies in return for a sum, making sure to reserve for himself the more lucrative cases.52

Court fees and dues were among the chief sources of income of the qadis, who recouped the cost of purchasing their appointment and covered their expenses from the proceeds of their office rather than from a fixed salary. They collected a fee on everyi legal document issued. In addition, they claimed 10 percent of the .sum contested in legal suits, and certain shares of all estates executed as well as of the income of pious foundations and orphans audited by the court. On some suits they charged as much as 1,000 and even 7,500 piastres in court expenses,53 Opinion in the city held the fees to be exorbitant; in 1 770 the ashraf demanded that they be reduced considerably.54

The qadis came to preside over a well-established system functioning comfortably with a steady staff and venerable routines. The deputy judges as well as the interpreters (turjmans), bailiffs (muhdirs), scribes (katibs and muqayyids), dividers of estates (qassams), and investigators (kashshafs) came from local ranks and often held office for many years. They provided the court with a stable cadre of professionals well versed in local ways and judicial practice. Many of the scribes were the sons of scribes; they absorbed their notarial skills at home from fathers who prepared them early for clerical careers.55 In periods of transition when a new qadi was not yet arrived, the court continued to operate normally under a local alim who served as substitute judge (mawlakhilafa). Ahmad Effendi al-Kawalcibi ran the court as a substitute for a whole month in 1768.56

Order and Disorder: Power and the Law 107

The importance of the shari'a court in enforcing the law rested in good measure on its function as a notarial office rather than merely a forum for settling disputes. Residents went there routinely to register loans, divorce settlements, business partnerships, purchases of real es­tate, and various other transactions and contracts. The court issued to them officially notarized deeds (bujjas) written in Arabic or Turkish, and kept copies in its registers for future reference. This protective practice helped to order contractual relations, to discourage violations, and in general to add an element of security and trust to agreements. The resort to written title deeds smoothed the web of transactions in the real estate market and diminished the potential for mischief. Al­though oral contracts did hold in court, experience taught the townspeo­ple the wisdom of recording rights and obligations on paper. Many of their agreements they drew up without the court’s assistance. They hired the services of trained scribes to write legal documents, and sought advice from ulama about legal questions. The community had no profes­sional lawyers to provide legal services and represent litigants in court. Those who pressed suit in the shari:a court or were summoned there to answer charges pleaded their own cases before the judge or appointed a proxy (wakil), usually a relative or associate, to speak on their behalf.

The court’s notarial business actually far outweighed its judicial load. As the breakdown of cases demonstrates, the townspeople resorted to the court more often to obtain useful or officially required legal papers than to press suit. Out of 363 cases registered in one sample month (Rabi' II, 1 164/February-March 1751), the number of legal suits amounted only to 52 (14 percent). Most of them involved claims of property and debts, with only a handful of criminal charges of theft and assault. Registrations of the sale of houses and other real property accounted for almost half of the total (176 cases). Another 39 cases recorded the endowment of property, the transfer of offices and tax farms, business partnerships, and guild arrangements, while the remaining 96 cases set down the terms of divorce between couples, arrangements for child support, division of estates, repayment of debts, and renouncement of claims to certain pieces of property.

Conflict was actually more common and the population more litigious than the court records indicate. People had some of their disputes settled in the other available formal and informal forums. The sharica court ranked as the foremost judicial institution in the city, but without being the sole body for settling legal business. As administrative judges the pashas were authorized to try offenders who violated public order and