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Paper Routes: Inscribing Islamic Law across the Nineteenth-Century Western Indian Ocean

Published online by Cambridge University Press:  12 September 2014

Fahad Ahmad Bishara
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Extract

Sometime during the middle of the nineteenth century, a correspondent from the interior of Oman wrote to the jurist Sa‘id bin Khalfan Al-Khalili (c. 1811–70) with an observation: “The Mazru‘is have wealth on the Swahili coast [al-Sawāḥil] and wealth in Oman.” This in itself was no surprise: the Mazru‘is, along with scores of other Arab clans, included a branch that had long since established its political authority in Mombasa, on the coast of what is now Kenya, but lately, the correspondent suggested, things had been changing. Members of the Mombasa Mazru‘is were now coming to Oman armed with wakalas (powers of attorney) from unknown scribes, for the sale of their familial properties in their ancestral homeland. “He [the Mazru‘i] sold what God likes from these properties and took the value… and the yield was separated from the property owners.” The people's acquiescence to the state of affairs was of particular surprise to the questioner. Days, months, and years went by, he noted, and the property owners (arbāb al-amwāl) did not seem the least bit interested in changing the system, “and the people, as you well know, come and go via this sea, from Oman to the Swahili coast, with confidence that they know [bi-ḥukm al-iṭma'ināna annahum ‘alamū].”

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Law and History Review , Volume 32 , Issue 4 , November 2014 , pp. 797 - 820
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Copyright © the American Society for Legal History, Inc. 2014 

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References

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6. See also Pearson, Michael, The Indian Ocean (London: Routledge, 2003)Google Scholar, 62, 82; and Risso, Patricia, Merchants and Faith: Muslim Commerce and Culture in the Indian Ocean (Boulder, CO: Westview Press, 1995), 104–6.Google Scholar

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9. The differences between “lexicon” and “grammar” notwithstanding, what I hope to convey is how Muslim legal discourse gave terms, categories, and ontologies to a commercial world, while resisting the need to clearly define the shorthand terminology I use.

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13. Ibid., 108.

14. Ibid., 249–52; and Cooper, Frederick C., Plantation Slavery on the East Coast of Africa (New Haven: Yale University Press, 1977)Google Scholar, 52.

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18. Bankruptcy proceedings from the Zanzibar National Archives (hereafter ZNA) clearly illustrate this chain of agricultural credit. See the ZNA HC2 series.

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27. McDow, “Arabs and Africans,” 152–64; ZNA AM 1/3: 36

28. ZNA AM 3/1: 80.

29. ZNA AM 3/1: 77.

30. Wilkinson, The Imamate Tradition, 30, 56, 333 n. 20.

31. Ghubash, Hussain, Oman: The Islamic Democratic Tradition (London: Routledge, 2006), 122–25, 132–33Google Scholar.

32. For a useful discussion of a similar contract in southern Yemen, see Boxberger, Linda, “Avoiding Ribā: Credit and Custodianship in Nineteenth- and Early-Twentieth Century Hadramawt,” Islamic Law and Society 5 (1998): 196–213Google Scholar.

33. Fahad Ahmad Bishara, “A Sea of Debt: Histories of Commerce and Obligation in the Indian Ocean, c. 1850–1940” (PhD diss., Duke University, 2012).

34. Rushd, Ibn, The Distinguished Jurist's Primer: A Translation of Bidāyat al-Mujtahid wa Nihāyat al-Muqtaṣid, Vol. 2 (Reading, UK: Garnet Publishing, 1995), 250–55Google Scholar. Ibn Rushd's work is a twelfth century treatise on comparative Islamic jurisprudence.

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36. Al-Khalili, Ajwibat Al-Muḥaqqiq Al-Khalīlī, 4:139.

37. Ibid., 4:131–32, 149, 167–68.

38. Ibid., 4:136.

39. Al-Salimi, ‘Abdullah bin Humayyid, Jawābāt Al-Imām Al-Sālimi [Imam Al-Sālimi's Responses] Vol. 4, electronic edition (Muscat, Oman: Ministry of Awqaf and Religious Affairs, 2005)Google Scholar, 404, 513,

40. Al-Khalili, Ajwibat Al-Muḥaqqiq Al-Khalīlī, 4:136–37.

41. Ibid., 4:127–28, 132–33, 137–38, 141, 144–45, 150–51.

42. Al-Rustāqi, Manhaj Al-Ṭālibīn, 7:151, 154.

43. Ibid., 7:152.

44. Ibid., 7:152–54.

45. On Latin American notaries, see Burns, Into the Archive; on notaries in early-modern Europe, see also Nussdorfer, Laurie, Brokers of Public Trust: Notaries in Early Modern Rome (Baltimore: Johns Hopkins University Press, 2009).CrossRefGoogle Scholar

46. Messick, Brinkley, The Calligraphic State: Textual Domination and History in a Muslim Society (Berkeley: University of California Press, 1993): 226–30.Google Scholar

47. Al-Khalili, Ajwibat Al-Muḥaqqiq Al-Khalīlī, 4: 131.

48. Ibid., 4: 304–5.

49. For this idea, I draw on the brilliant work of Matthew Hull, whose reflections on files and bureaucracy in modern Pakistan inspire many of my thoughts here. Hull, Matthew, Government of Paper: The Materiality of Bureaucracy in Urban Pakistan (Berkeley: University of California Press, 2012)Google Scholar, 138.

50. After decades of Weberian and Foucauldian analyses of how documents serve as vehicles for state or organizational power, the idea that documents can shape associations—that they are actors in their own right—has become increasingly popular amongst social scientists. See also Latour, Bruno, Reassembling the Social: An Introduction to Actor-Network-Theory (Oxford, UK: Oxford University Press, 2005)CrossRefGoogle Scholar; Hull, Government of Paper; and Messick, The Calligraphic State.

51. Al-Khalili, Ajwibat Al-Muḥaqqiq Al-Khalili, 4:290

52. Here, I am drawing from the ideas and eloquent phrasings in Latour, Reassembling the Social, 222–23.

53. Depending on where one was, a frasila could range between around 16 kg. See also Fitzgerald, William Walter Augustine, Travels in the Coastlands of British East Africa and the Islands of Zanzibar and Pemba (London: Chapman and Hall, 1898), 263–64Google Scholar, 524, 535; and “Waṣiyyat Al-Shaikh Humayd bin Rashid bin Humayd Al-Yazīdī [Shaikh Humayd bin Rashid bin Humayd Al-Yazidi's Will],” July 2008 http://www.s-jjj.com/vb/showthread.php?t=87 (January 26, 2013). A mid-nineteenth century Somali report, however, identifies a frasila of frankincense as comprising only 9 kg; see Cruttendren, C. J., “Notes on the Mijjertheyn Somalees,” Journal of the Asiatic Society of Bengal 13 (1844): 332.Google Scholar

54. Na‘ā’im Khalid, “Al-qabḍ ‘alā ghashshāsh al-bahārāt fī Ta‘iz [The Capture of a Spice Fraud in Ta‘iz]” Al-Jumhūriyya, September 9, 2008, http://www.algomhoriah.net/newsweekprint.php?sid=69047 (January 26, 2013).

55. Not all waraqas would have been equally valuable. The aesthetic qualities of each—whether it bore a seal, the clarity of the writing, or whether it involved a pledge of property—would have shaped its value during the process of negotiability.

56. In a bill of exchange, the person in whose hands the bill of exchange ended up would have recourse to the original debtor and everyone else who may have endorsed it, for satisfaction of the debt.

57. In one case from 1874, a Pangani-based Indian merchant transferred to his Zanzibar creditor waraqas worth a whopping MTD 13,000—the value of nearly three large plantations, including slaves—to settle his accounts. Ramdas Jethani v. Dowarka Liladhur and Kanjee Liladhur (1875) ZNA HC 7/5. In 1877, another Khoja merchant, Salehmahomed Ebrahim, hypothecated his title deeds to four houses in Saadani, on the East African coast, to the Zanzibar merchant Ebrahim Passyani, for MTD 190. ZNA AA 12/19: 94. In another 1880 claim against the Tanga-based debtor Noorbhai Ebrahimji, the Zanzibar merchant Esmailji Jivanji collected 10 waraqas that Ebrahimji had in his possession: waraqas signed by Ebrahimji's debtors in the interior. Esmailji Jeevunji v. Noorbhai Ebrahimji (Tanga) (1880) ZNA HC 7/155.

58. When, in the summer of 1896, the Khoja Hirji Ramji sought to borrow MTD 300 from another Khoja, Rashid Nanji, he hypothecated seven waraqas, five of which involved titles to shambas; the other two were personal guarantees for MTD 96.5. He also hypothecated two mud huts, which he had presumably collected from his debtors. ZNA AM 1/4:38.

59. Hull, Government of Paper, 14.

60. Lorimer, Gazetteer of the Persian Gulf, Vol. 1 (Historical), 488.