The Opening Formula and Witness Clauses in Arabic Legal Documents from the Early Islamic Period.

Author:Khan, Geoffrey
Position:Essay
 
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INTRODUCTION

Among the extant Arabic papyri datable to the first two Islamic centuries (seventh-eighth centuries CE) there are a number of legal documents. Some of these were written in the Umayyad period when Greek was still being used by the local population as an administrative and legal language. Indeed, some of the extant Arabic legal documents are bilingual texts that are accompanied by a corresponding Greek document. These early Arabic documents come from the period of cultural transition. They were used side by side with the Byzantine Greek tradition of documents or immediately after Greek ceased to be used. From this period of cultural transition we also have Coptic legal documents, which began to be produced in increasing numbers after the end of Byzantine control of the region. The Coptic documents closely replicate the formulaic structure of the Byzantine Greek legal documents, which reflects the fact that the Coptic documents developed essentially by a process of language shift in the writing of documents among a local population that had previously used Greek documents. (1) As a result, the language changed, but the substrate Greek formulaic structure continued.

An examination of the early Arabic legal documents shows that these documents did not arise by the same process that lay behind the Coptic legal documents. The Arabic documents exhibit radical differences in structure from that of the Greek and Coptic documents in the early Islamic period (Khan 1994b, 2008). Distinctive elements of the formulaic structure of the Arabic documents include an opening identificatory component, which often contains a demonstrative pronoun ("This is a release," "This is what so-and-so bought"), the predominant use of the third person objective style, the placement of the date at the end, and the listing of witnesses without autograph witness clauses. The Greek and Coptic documents of the late Byzantine and early Islamic periods, by contrast, generally have the format of a so-called cheirographon, which resembles the structure of a letter, opening with a date and a personal address formula (e.g., "X to Y greetings"), subjective style (i.e., use of the first and second person), and autograph witness clauses. (2) The early Arabic formularies are overall much simpler than the Greek and Coptic, and they lack many of the clauses that make the Greek and Coptic more legally watertight, such as warranty clauses or validity clauses, and the general prolix rhetoric that is characteristic of the documents of the Byzantine period. (3)

I

The Arabic formulary was not based on the Greek or Coptic, but was an independent tradition that was brought by the early Muslims to the lands that they conquered. This is demonstrated clearly in the case of a few bilingual Arabic-Greek documents from the first century AH that are of a legal nature. (4) The Arabic versions of these bilingual documents exhibit, in particular, two of the distinctive features of the early Arabic documentary tradition that differ from the Byzantine Greek tradition, viz., the initial identificatory component and the witness formula.

The well-known bilingual document PERF 558 (P.Vindob. G. 39726) (Grohmann 1952: 113-15), which is dated in the year 22h [643], is a receipt for the provision of sheep issued by the Arab commander Abdullah ibn Jabir. The Arabic document opens, after the basmala, as follows:

[phrase omitted] This is what Abdallah ibn Jabir and his companions have taken with regard to sheep for slaughter from Ahnas (5) The Greek version, by contrast, opens with an epistolary address formula characteristic of cheirographa:

[phrase omitted] The commander (c)Abdallah, to you, Christophoros and Theodorakios, pagarchs of Herakleopolis The Arabic text in the bilingual receipt PERF 585 (P.Vindob. G. 39744) (Stoetzer and Worp 1983) dated 15h [694f.J opens, after the basmala, with the identificatory noun bara'a "quittance (from liability)" and the document is in objective style:

[phrase omitted] Quittance from Sufyan ibn Ghunaym [for Apa Kyros, son of Kyros] of the people of the city of Ushmun [ ] for himself [i.e., releasing Apa Kyros from liability] The Greek text lacks the identificatory initial noun and is presented in subjective style:

[phrase omitted] Sufyan, son of Ghunaym, to you Apa Kyros, son of Senuthios, from the town of Hermopolis A bilingual contract recording a release from labor dated 67h [686f.] has been discovered in the excavations at Nessana (P.Ness. 56) (Kraemer 1958, 3: 156-60). The Arabic document closes with a list of names of witnesses without signatures, whereas the Greek has an autograph witness clause in the first person [phrase omitted] "I bear witness").

Monolingual Arabic papyri of a legal nature from the early Islamic period onward likewise have initial identificatory components. Some of the extant documents from the early period are written obligations that open with the identificatory phrase dhikr haqq "declaration of obligation," followed by the names of the creditor and debtor. The earliest attestation of this is in a document dated A2h [662f.], which contains a series of such written obligation documents (P.Louvre fonds Jean David-Weill 20) (Ragib 2007), e.g.,

[phrase omitted] Declaration of obligation of 'Umar ibn 'Asr over 'Umar ibn Malki A number of extant monolingual documents from the early period are quittances from obligation that open, as does the bilingual document discussed above (P.Vindob. G. 39744), with the identificatory noun bara'a, e.g., P.Michaelides A 744, dated 88h [707] (Khan 1994a):

[phrase omitted] A quittance for Jamila, the freedwoman of Umm Hunayda The demonstrative pronoun, which in many cases opens the initial identificatory component, is found already in the bilingual papyrus PERF 558 (dated 22h [643]) and can be reconstructed at the beginning of the bilingual contract from Nessana (67h [686f]; P.Ness. 56) (Kraemer 1958, 3: 156-60):

[This] is what [ ] al-Aswad ibn 'Adi It is found as well opening a variety of types of legal documents from the early Islamic period onward, e.g.,

Document of sale (150-159/767-775); Louvre E 6903 (Ragib 2002, 1: 46) [phrase omitted] This is what Ismail ibn Musa bought from 'Abd al-'Aziz ibn Sulayman Document of lease (180h [796]); P.Vindob A.P. 1151 (Grohmann and Khoury 1993: 118-19) [phrase omitted] T[his] is what Ahmad ibn 'Umar ibn Sari' leased Tax receipt documents issued by administrative officials that constitute a quittance (barah a) from liability to pay tax also sometimes open with a demonstrative pronoun and have an identificatory component with the form hadha kitab bara'a minfulan "This is a document of quittance from so-and-so" (Frantz-Murphy 2001: 64-65; Khan 2007: 28).

Similarly, demonstrative pronouns open other types of documents of a legal nature written in the early Islamic period that have been preserved only in literary sources, e.g., the peace treaty with Damascus (13h [634f.]) (al-Qadi 1989: 222, 252):

[phrase omitted] This is what Khalid ibn al-Walid granted the people of Damascus When the documents such as those cited above from the first two Islamic centuries refer to witnesses, their names are listed but they do not attach an autograph witness clause.

The corpus of Arabic documents from early Abbasid Khurasan datable to the middle of the second/eighth century (Khan 2007) provide further evidence for the fact that the early Muslims brought their own Arabic documentary formulary traditions to the conquered provinces. These Arabic documents, most of which are of a legal nature, were discovered together with a corpus of documents written in the Bactrian language. Several of the Bactrian documents overlap chronologically with the Arabic documents. Moreover, most of the Bactrian and Arabic documents come from the same family archive. The Bactrian documents continue a pre-Islamic formulaic tradition that has parallels in a variety of documents produced in Central Asia and the Near East during the pre-Islamic period (Sims-Williams 1997: 18). It differs clearly from the formulaic tradition of the Arabic documents, which have close parallels instead with contemporary Arabic documents from Egypt, indicating that the latter tradition must have derived from a common center. (6) Furthermore, there are differences in the physical structure between the Bactrian and Arabic documents. The Bactrian legal documents in the corpus have the form of "double documents," a traditional structure that is found in documents from Avroman of the Parthian period (Minns 1915) and was widespread in the Hellenistic and Roman Near East. It was used also in pre-Islamic Egypt up to the early Roman period, but was altogether replaced by the cheirographon by the Byzantine period (Keenan et al. 2014: 34-35). Such documents consisted of two copies, one rolled up and sealed and the other left open for consultation. The purpose of the sealed document was to function as an instrument of proof in the presence of a judge in the event of a dispute. This "double" structure is not found in any of the Arabic documents, apparently since it was not a feature of the Arabic documentary tradition that was brought to Khurasan by the Muslim conquerors.

The Arabic documents from Khurasan exhibit the distinctive features of the early Arabic formulaic tradition that have been identified above in the Arabic documents from early Islamic Egypt, the most conspicuous elements of which are the initial identificatory component and the listing of names of witnesses rather than autograph witness clauses. The identificatory component opens with a demonstrative pronoun, e.g.,

Emancipation of a slave (138h [755]); P.Khurasan 29 (Khan 2007: 152) [phrase omitted] This is what Ghalib ibn Nafi' emancipated A large proportion of the Arabic documents from Khurasan are tax receipts issued by administrative officials; they are presented, as above, in the form of a quittance (bara'a) from liability of tax...

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