The q[a.bar]d[i.bar]s of Fust[a.bar]t-Misr under the T[u.bar]l[u.bar]nids and the Ikhsh[i.bar]dids: the judiciary and egyptian autonomy.

• Author: Tillier, Mathieu
• Position: Report

The second half of the third/ninth and the fourth/tenth centuries are of particular importance for the development of the judiciary in the central lands of the 'Abb[a.bar]sid caliphate. At the end of the mihna and the victory of Sunnism under al-Mutawakkil (r. 232-47/847-61), the caliphate agreed not to interfere in the legal sphere, thus allowing the principal schools of law to complete their development toward their classical structure. (1) In Iraq the q[a.bar]d[i.bar]s were allowed more judicial freedom, thanks to the growing independence of the legal system and to the political weakness of the caliphate, (2) while in Egypt the provincial rulers and two successive dynasties, the T[u.bar]l[u.bar]nids (254-92/868-905) and the Ikhsh[i.bar]d[i.bar]ds (323-58/935-69), profited from the caliphate's weakness and imposed their autonomy de facto. (3)

The role played by the judiciary in this process is still unclear, as is the impact of Egyptian autonomy on the development of the local judiciary.4 In this article, I intend to study the relationship between the Egyptian governors and the judiciary, from the accession of Ahmad b. T[u.bar]l[u.bar]n in 254/868 until the arrival of the Fatimids in 358/969. My main source of reference is Raf 'al-isr 'an qad[a.bar]t Misr, a biographical dictionary written by Ibn Hajar al-'Asqal[a.bar]n[i.bar] (d. 852/1449), which focuses on the history of Egyptian q[a.bar]d[i.bar]s. (5) Although he wrote this dictionary five centuries after the fact, Ibn Hajar relies heavily on contemporary works: primarily that of Ibn Z[u.bar]l[abar]q (d. 386/996), who wrote a now lost Akhb[a.bar]r qud[a.bar]t Misr dedicated to the q[a.bar]d[i.bar]s of the T[u.bar]l[u.bar]nid and the Ikhsh[i.bar]did periods, (6) and secondarily that of Ibn Y[u.bar]nus (d. 347/958), author of two biographical dictionaries about Egyptians and strangers who settled in Egypt. (7) Whereas another late author such as Ibn al-Mulaqqin (d. 804/1401-2), who also wrote a book on Egyptian q[a.bar]d[i.bar]s, culled his material in order to construct a hagio-graphical narrative of judges whom he mostly regards as saints, (8) Ibn Hajar did not stray from his sources. Even if he tends to reorganize and synthesize the information provided by his predecessors, as a comparison between his Raf' al-isr and al-Kind[i.bar]'s Akhb[a.bar]r qud[a.bar]t Misr shows, (9) Ibn Hajar usually quotes them faithfully and almost in extenso, avoiding any obvi-ous manipulation. This makes his book a fairly reliable source for the history of the T[u.bar]l[u.bar]nid and lkhsh[i.bar]did periods.

In what follows several elements will be taken into consideration: (1) the institutional relationship between political power and the judiciary (who appointed the qadis, how were they selected, and did the government choose local scholars or did the q[a.bar]d[i.bar]s come from outside the province?); (2) the financial ties between the governors and the q[a.bar]d[i.bar]s, which were not only symbolic of the delegation of power, but could also denote the subservience of the judiciary to the government; (10) (3) the daily interactions between the q[a.bar]d[i.bar]s and the governors; (4) the judicial practice of the q[a.bar]d[i.bar]s; and (5) their reputation. Although Ibn Hajar omits chains of transmitters (isn[a.bar]ds), which probably appeared in Ibn Z[u.bar]l[a.bar]q's book, it is likely that most of the reports regarding q[a.bar]d[i.bar]s were put into circulation and transmitted by elites who were directly concerned with political affairs. (11) Therefore, I assume that the q[a.bar]d[i.bar]s' biographies reflect the views of their contemporaries--other scholars in particular--and the way they looked upon the relationship between the q[a.bar]d[i.bar]s and the government.

THE T[U.bar]L[U.bar]NIDS (254-292/868-905)

When Ahmad b. T[u.bar]l[u.bar]n (r. 254-70/868-84) arrived in Fustat as governor (am[i.bar]r), it had been an established practice for over a century for the caliph to appoint the q[a.bar]d[i.bar]of Fust[a.bar]t. (12) The relationship between the judiciary and the central government kept the ambitions of governors in check, since they were no longer the only representatives of the caliph in the province--they had to share power with other officials such as the q[a.bar]d[i.bar]. When 1bn T[u.bar]l[u.bar]n sought regional autonomy, two principal problems arose: control of the finances and control of the judiciary. (13) As early as 258/871 Ibn T[u.bar]l[u.bar]n discharged Ibn al-Mudabbir, the head of fiscal administration in Egypt, and sent him to Syria. At the same time, he discharged the s[a.bar]hib al-bar[i.bar]d, chief of the postal and intelligence services, whose responsibility inter alia was to keep a watch on the province on behalf of the caliphal government. (14) The q[a.bar]d[i.bar] Bakk[a.bar]r b. Qutayba, however, an appointee of the caliph al-Mutawakkil (r. 246-70/860-84) and originating from Iraq, held onto his position until his death in 270/884. (15) Ibn T[u.bar]l[u.bar]n probably realized that dismissing and replacing Bakk[a.bar]r would be too dangerous. Bakk[a.bar]r was a pious man, (16) respected by the Egyptian populace, (17) and his arbitrary dismissal would have certainly weakened the amir's position in the province. Moreover, Ibn T[u.bar]l[u.bar]n's political designs relied largely on being able to control income from Egyptian taxes, and the q[a.bar]d[i.bar] Bakk[a.bar]r does not seem to have opposed any of these ambitions. It is also probable that Bakk[a.bar]r was a political asset, from whom Ibn T[u.bar]l[.bar]un expected his government to acquire an aura of legitimacy. However it may be, he chose to keep a q[a.bar]d[i.bar] who was the caliph's delegate and who received his instructions from Baghdad. (18) This was a risky choice, since Bakk[a.bar]r could easily become a dangerous opponent.

Ibn T[u.bar]l[u.bar]n's policy vis-a-vis the judiciary evolved toward the end of his rule, when a crisis erupted upon Bakk[a.bar]r's refusing to curse the regent al-Muwaffaq, as requested by Ibn T[u.bar]l[u.bar]n. The amir began to hold maz[a.bar]lim or claims court sessions where he dispensed justice himself. (19) As a consequence, most of the litigants abandoned Bakk[a.bar]r's court in the mosque, and the old q[a.bar]d[i.bar]was left unemployed. (20) Ibn T[u.bar]l[u.bar]n imprisoned Bakk[a.bar]r in 269/883, but never dismissed him officially; he only demanded that the q[a.bar]d[i.bar] appoint a deputy who would dispense justice in his stead.2I Egyptian judicial autonomy from the caliphate was not yet complete.

It is only after Ibn T[u.bar]l[u.bar]n's death that his successor, his son Khum[a.bar]rawayh (r. 270-82/884-96), completed his work, transforming the judiciary into a provincial institution independent from Baghdad. Bakk[a.bar]r died in 270/884, soon after Ibn T[u.bar]l[u.bar]n, but his position was not filled. Khum[a.bar]rawayh succeeded Ibn T[u.bar]l[u.bar]n without the caliph's endorsement, and a war soon broke out between Khum[a.bar]rawayh and the regent al-Muwaffaq (d. 278/891), which probably prevented the 'Abb[a.bar]sid caliphate from appointing a new q[a.bar]d[i.bar]. (22) For seven years, Fust[a.bar]t remained without. Instead, Khum[a.bar]rawayh built up the maz[a.bar]lim court as an important institution and appointed Muhammad b. 'Abda as head. (23) The malz[a.bar]lim exemplified the administration of justice by the political ruler, and by replacing the q[a.bard[i.bar] by such a court, the new amir probably intended to impose his control over the judgeship. (24) When his relationship with the central government regained a more peaceful footing, (25) Khum[a.bar]rawayh took the final step of restoring an official judiciary. In 278/891, Ibn 'Abda was formally appointed by the caliph al-Mu'tamid (r. 256-79/870-92)--since he was already in charge of the maz[a.bar]lim, it was clear that he answered to the amir. (26) The right of the T[u.bar]l[u.bar]nid amir to appoint his own q[a.bar]d[i.bar] was officially acknowledged two years later, in the treaty of 280/893 between Khum[a.bar]rawayh and the caliph al-Mu'tadid (r. 279-89/892-902), in which the T[u.bar]l[u.bar]nids were given "for three decades the right to direct Friday prayer, levy the land tax, and to appoint judges and civil/ fiscal administrators." (27)

With the judiciary officially linked to the caliphate during a large part of the T[u.bar]l[u.bar]nid period, the amirs had to interact with it cautiously. Ibn T[u.bar]l[u.bar]n chose not to impose his authority on Bakk[a.bar]r by force, but attended his had[i.bar]th circle regularly and showed considerable respect for his religious knowledge. (28) When Ibn T[u.bar]l[u.bar]n attended a funeral, it was always he who prayed over the dead person. However, when both he and Bakk[a.bar]r were present, the amir let the q[a.bar]d[i.bar] lead the prayer. (29) The prayer over the dead was not just a religious matter: it was usually the prerogative of the highest-ranking person attending the funera1. (30) It was, therefore, a symbolic recognition on Ibn T[u.bar]l[u.bar]n's part of Bakk[a.bar]r's superior religious authority. Moreover, Ibn T[u.bar]l[u.bar]n submitted willingly to the judicial process, even renouncing some financial interests in deference to Bakk[a.bar]r's judgment. (31) Bakk[a.bar]r was also able to criticize a defendant who had taken an oath before God but who had refused to swear by the head of the amir; Bakk[a.bar]r argued that Ibn T[u.bar]l[u.bar]n was merely a human being without suffering any consequences. (32) Although Ibn T[u.bar]l[u.bar]n's leniency may be the outcome of his personal respect for the q[a.bar]d[i.bar]s and the Islamic tradition they represented, it can also be read as a political posture. To establish his legitimacy, he had to show that he was supporting the judiciary and thus protecting the quotidian interests of the Egyptians.

The q[a.bar]d[i.bar]'s legal affiliation was not a major concern...