ADMINISTRATIVE TRADITION AND CIVIL JURISDICTION OF THE CORDOBÁN SÀHIB AL-AHKÀM * (I)

«The shoemakers of Cordoba ralhed against a muhtasib who had warned pubhcly about the bad quality of their work. They demanded from the wazir sahib al-ahkàm Ibn al-Layt that he should be expelled from their market and be detained from acting within it. The document presented by the claimant to Ibn alLayt as judge attested to the damage caused by the muhtasib and his use of force against them {tasallutuhü 'alayhim), thus deserving expulsion from their market. In consequence, the wazir sahib al-ahkàm Ibn al-Layt consulted the jurists whether this claim should be granted.» This case taken from the/atowâ-collection al-Ahkàm al-kubm by the ^̂ âçfJ Ibn Sahl (d. 468/1093)^ might, in a broader Islamic context, be interpreted as a complaint against the market inspector {muhtasib) addressed to a higher official, namely the wazïr sahib al-ahkàm. In the Cordobán setting, however, it is quite evident that the shoemakers sued a private person who had caused damage to them by his conduct. In describing this person as muhtasib, i.e. someone acting on behalf of the Koranic formula «demanding good and forbidding evil»,^ the source already alludes to the rightfulness of his action: We learn that both jurists consulted gave a legal response (fatwà) strongly objecting to the shoemakers' claim. According to the famous jurisconsult Muhammad Ibn 'Attâb (d. 462/1070), «anybody opposing him [i.e. the muhtasib] is more apt for expulsion from the market than he is. Their unsoHd work is to the considered fraud and usury of Mushms' property and should

This reading is corroborated by sources specifying the madina office of Cordoba as surpj^'^ or combing both offices in one title."^^For centuries, the sàhib al-madina dealt with capital crime within the city.^He commanded unmounted police forces {sural, sing, surp) and cavalry {fursan) f"^ Yet, the surta office was not exclusively called «madma» in al-Andalus, as later chroniclers like Ibn Khaldûn and Ibn Sa'id suppose."^^Both offices existed simultaneously during the 3rd/9th and 4th/10th centuries.In the second half of the 4th/10th century, provincial governors were generally invested with the «high police» during the reign of al~Hakam II, but no such representative existed in the city {madina) of Cordoba.The sàhib al-madma of Cordoba ranked after the chamberlain {hàgib), above governors and high-police commanders during court ceremonies."^'^We have every reason to believe that the sàhib al-madma was in the charge of the «high police» within the Umayyad capital."^^For the present enquiry on the sàhib al-surta wa-1-süq, it is most interesting that, in Cordoba, the fight against crime and the penal justice, which are usually connected to the concept of surta, were not the sole responsibility of nor restricted to the officer bearing the term «surta» in his title.
Our main source on holders of the süq and surta office are biographical dictionaries on religious scholars invested with these assignments."^^Although ^^ Ibn Hayyán, al-Muqtabas fi akhbar balad al-Andalus, part. VII (ed. A. al-Haggi, Beirut, 1965) , 22, 30, 94, 118, 136, 184, 198, 212, 230.^^ This would also explain the invocation «amoung us» in the lost Muqtabas-iràgm&ni, mentioned above in note 39, whose author, Ibn Hayyàn was a citizen or Cordoba.Compare also Millier,Gerichtspraxis,[111][112][113][114][115][116][117] displaying a longer chronological perspective, religious prosopographical literature, however, is a poor guide to administrative offices and titles.In most biographical notes of any scholar, neither the period in office nor its exact designation are given.Hardly ever, for example, were the distinct swrto-categories mentioned, although they continued to exist since the end of the 2nd/8th century.
With the division of the surta into two and later three categories, however, the designation sahib al-surta, which we find quite frequently in the biographical notes, could not possibly have been the official title.This lack of accuracy can be explained by the character of these sources, which are more concerned with the transmisión of religious knowledge than with administrative assignments of a scholar.^^We are therefore not always in a position to decide whether offices mentioned in a biography were held simultaneously or consecutively.The inaccuracy of religious biographical literature may be demonstrated by two examples in conjunction with annalistic sources.According to an ordinary biographical note in one of the biographical dictionaries, Yahyi b.'Abd Allah ai-Qabrî (d.326/938) held the offices to surta sugrà, süq and the mint (sikka).^^However, we learn from a fragment of Ibn Hayyàn's annals, al-Muqtabas, that in this specific case al-Qabii held these offices consecutively for short terms.Besides that, he was also an officer of the «high police» {surta kubra) and town inspector, although neither office was mentioned in his scholary biography.^^The second example is the sahib al-radd Oudge of repulsion) Muhammad b.Muhammad b.AM Zayd ['Abd al-Rahmàn] (d.333/944-5).^^Not mentioned in his note on scholary biography, however, were his appointments as sahib al süq, sahib al-surta, al-'ulyà and sugra?^Although both examples are from the reign ^0 Compare Gilliot, C, «tabakàt» in EP, X, 7-10, esp.8. ^' Ibn Al-Abbir, «Apéndice a la edición Codera de la 'Tecmila' de Aben al-Abbâr», éd.M. Alarcón and A. González Falencia, Miscelánea de estudios y textos árabes.Madrid, 1915, 174-690, n.° 2.727.^^ Appointed in the year 311 as surta sugrà 313 as süq and later to the office of inheritance (mawàrit), (Ibn 'Idin,Boyan,O,185 and 191).After a gap in our sources until the year 319, when he was appointed to the madina and also dismissed {ibid., p. 205 and Ibn Hayyân, al-Muqtabas, part V, ed.P. Chalmeta, F. Corriente and M. Subh, Madrid/ Rabat, 1979, 314), he was appointed to the mint (sikka) in the year 320 and dismissed one year thereafter (Muqtabas V, 243 and 330); from 322 to 323 he held the süq office {ibid., 355 and 376).

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of 'Abd al-Rahmán III and biographical data is available to scholars over many centuries, such discrepancies have to be accounted for less by this ruler's personality, but because chronicles as well-documented as the Muqtabas of Ibn Hayyàn are lacking for most other periods.There is no reason to believe that in other times biographical entries on scholars were more precise in regard to administrative offices, which were unimportant or even detrimental to a scholar's reputation.
As a consequence, the exact designation of the Cordobán «sàhib al-surta wal-süq» cannot be studied exclusively on the basis of biographical dictionaries.The more exact chronological literature, however, and even the most detailed Muqtabas by Ibn Hayyàn, offers tantalizingly little information on the sàhib al-süq, an office which was not closely connected to the Umayyad court.^^Nevertheless, a decisive shift can be observed between the reign of 'Abd al-Rahmán III (300/912-350/961) and that of his successor, al-Hakam 11 (350/961-366/976).During the first period, superintendence of the market {süq) is always mentioned on its own, without connection to the surta.The office is called «Khuttat al-süq»^^ and demisssions or appointments in office refer to the «süq» assignment.^'^During that historical stage, the sàhib al-süq had an office in the central markets,^^ and part of the surta office maintained a presence in the Great Mosque.^^In contrast to this, the superintendent of the market, during the years 361/971-364/975, is always designated as sàhib alsurta wa-1-süq by the same author Ibn Hayyàn.^^It seems from all appearances that, at some point or another, the surta became regulary attached to the «süq» office.This connection must have been so institutionalized that Ibn Hayyàn, with all this diligence in matters of titles and hierarchies, did not find it necessary to add the respective surta-ranking, be it high, middle or low, to this officer's designation.There is therefore strong reason to beUeve that sàhib al-surta wa-1-süq was the official title of the superintendent of the markets in the capital Cordoba since the second half of the 4th/10th century.Unfortunately, the stages of this transformation cannot be examined more closely, due to a gap in historical documentation between the years 330/942 to 361/971, that is the period between the so-called fifth and seventh parts of the Muqtabas fragments.
5^ See Ibn Hayyàn, Muqtabas, III, 20, for the times of the emir 'Abd Allah (275/888-300/912).^^ See above, 61.^ Muqtabas VII,66,71,77,100,153,198,212f.Such a transformation of titles -not to speak of changes in competencescould hardly have happened in the form of merging two independent imperial offices {surta and süq) into a single one, which would have implied a substantial reduction in administrative personnel.In fact, the opposite was the case: at the beginning of 'Abd al-Rahmàn Ill's rule in 300/912, each division of the surta, big and small, was invested by a single person, and in 317/929 the surta alwusta, «middle pohce», was inaugurated in the same manner.^'This situation had completely changed half a century later: each police division was granted simultaneously to several state officials.Governors of provinces held either the «high police» or the «middle police»,^^ judges of smaller towns were often invested with the «small poHce».^^The multiplication of surta posts may be explained 'by an increasing need for loyal officers administrating those regions that came under Caliphal control during the 4th/10th century.There was a strong link between «high police» and mihtary responsibilities.^"^Manuela Marin's statement that the surta «has become a kind of official rank or grade in the hierarchy of the Caliphal administration in close association with the army»,^^ definitely is true for the «high» and «middle police».The difference in ranking and payment between «high» and «small police», however, was enormous.As qàdi in the province holding the «small police» received 30 Dinar monthly,^^ an amount the superintendent of the markets in Cordoba had received one century earher.^^The payment of a holder of «high police», who usually held the rank of a wazin must have been considerably higher.*^^In the second half of the 4th/10th century, the Cordobán market-police officer (sahib al-surta wa-l-süq) had the same rank as commanders of the «small police» AQ.XXI, 2000 THE CORDOBÁN SÀHIB AL-AHKMI 67 and was at a clear distance from officers of the «high» and «middle police».^^If these divisions did in fact correspond to a certain penal authority, the one of the sàhib al-surta waA-suq could not have been another than the one of the «small police».This hypothesis that combined titulation as al-surta wa-1-süq arose in the framework of multiple surta officers since the 4th/10th century, seems, at first sight, to be proved wrong by the example of two scholars from the 3rd/9th century.-^^Some anecdotes of the mhib ahkàm al-surta wa-1-süq Ahmad b. 'Àsim -^possibly identical with Ibrahim b. 'Àsim (d.256/870)^^-referred to his time in the sidq, and only the süq, office.^^The succession of two different offices is even more evident in the second example of the sàhib al-surta wa-1-süq Muhammad b. al-Hárit (d.260/874), who held the «small police» and was later additionally invested with the sikq office.^^The Cordobán superintendent of the market, at that time, was not automatically invested with the surta, nor was it unnecessary to mention his surta ranking.
The title sàhib al-surta wa~l-süq for the Cordobán market inspector developed in the 4th/10th century and survived the fall of the Umayyad Caliphate in 422/1031.Whereas in other city-states the expression wilàyat al-süq or ahkàm al-süq prevailed throughout the 5th/l 1th century, the Cordobán market inspector was always referred to as sàhib al-surta wa-1-süq during Gahwarid rule.^"^By that time, the surta office in an Umayyad tradition had lost much of its former importance.When the Umayyad Caliph al-Mustakfi (414/1024-416/1025) tried to revitalize the old imperial offices, he could not find adequate candidates and sold the office of «high police» without being able to pay salaries later on.These offices never bore any real power.^^References to the police categories disappear from the sources, with one exception from Zïrid Granada.^^In the course of time, even in Cordoba the expression sàhib al-surta wa-1-süq was sometimes substituted by the designation «sàhib al-ahkàm», which was less connected with the Umayyad administrative tradition.'^'^68 C. MüLLER

AQ. XXI, 2000
To sum up this discussion, we find the term al-surp wa-1-süq to be a fixed expression for over one century designating one specific office.To categorize some of Ibn Harîs's cases as surta, as Khallaf has done, does not make much sense as long as which specific authority is not known.^^In this context, we have to see the Cordobán sahib al-surta wa-1-süq more as the superintendent of markets with additional surpi functions than as the police commander controlling the markets.Ibn Sahl, when talking about the rise of the market inspector Abu 'All Ibn Dakwan to the qadi office in 435/1043, called his assignment ahkàm al-surta wal-süq,^^ but used the term sahib al-süq in case records of the same judge.^^

THE SAHIB AL-AHKAM AS NON-ÔÂDJ JUDGE IN THE REALM OF HISBA
Contrary to sahib al-surta wa-1-süq, the Cordobán market inspector since the Umayyad Caliphate in the 4th/10th century, the temi sahib al-ahkam is used for scholars exercising a judicial office in the post-Umayyad-tradition of the 5th/11th century, mostly in the biographical literature.^*Whereas «surpi» and «süq» reflect Umayyad administrative traditions, the term sahib al-ahkam designates a judicial function in general, and a non-qàdi judge specifically.Juridically speaking, «ahkàm», the plural of «hukm», means «binding judgments», and in consequence the «holder of judgments» (sahib al-ahkam) had the authority to pass such judgments.Sometimes ahkàm was used attributively to the name of an assignment, like ahkàm al-surta,^^ ahkàm al-surta wa-1-süq,^^ but also ahkàm al-qadà\^^ thus designating explicitly which kind of judgments the official was authorized to.We have some reason to believe that «ahkàm» was used for a specific judicial office by the second half of the 5th/l 1th century, whose holder was designated as sahib al-ahkam}^ Biographical ^^ Khallaf's explanation of surta with ahkàm or hakim, BChallàf, Ta 'rikh al-qadà ', 467 and 487, disregards the historical development of these titles as well as their specific context in various sources.
^9  sense within juridical arguments, but not for a specific person.^^As an exception, the hakim of Sevilla is mentioned in a case from the year 476/1083-4, which, however, does not belong to the original body of the text and is transmitted in one manuscript only.^^In juridical literature, hàkim may designate any judge including the qàdi, but more specifically it referred to a non-qàdi judge}^^ In Andalusian biographical dictionaries, the use of hàkim was restricted to non-^adi judge and only applied in the biographical sketches of third persons: the father,*^' son*°^ or non-^âç^ judge for whom the portrayed person worked as a secretary,*^^ was called «hàkim» in biographical notes on others.'^"^From their biographical notes, however, we learn that these persons either held various non-qàdi offices or, from the end of the 5th/11th through the 6th/12th century, were designated as sahib al-ahkàm}^^ Thus, the «hàkim Qurtuba» Ibn 'Abd al-Ra'üf (d.425/1034)'°^ was sahib al-mazàlim,^^'^ and the «hàkim wa-sâhib al-surta of Cordoba» Yahyâ b. 'Ubayd Allah Ibn Aslam, who flourished in the 4th/10th century,*^^ held many different offices.'^'^As a hypothesis based on these examples, we may claim that the term «hàkim» was used by later compilers in a summarizing manner, but not by Ibn Hay y an.Besides, from the end of the 5th/llth through the 6th/12th century, the term «hàkim» was increasingly applied to the same persons as were called sahib al-ahkàm}^^ AQ.XXI, 2000 THE CORDOBÁN SÀHIB AL-AHKÀM

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In Almoravid times, along with this summarizing use in biographical literature, the term hàkim designated a specific office.Ibn 'Abdùn, the Sevillian writer of the turn of the 5th/l 1th century, informs us that the hakim was a judge with limited jurisdiction, subordinate to the qadi}^^ Contrary to the mhib al-ahkàm in an Umayyad tradition of surUi wa-süq, the Almoravid hàkim was appointed by the qàdi.He was supposed to attend the latter's sessions and consult the qàdi in all important affairs.''^Such an obligation to attend the qàdi's session, however, contradicts Tyan's assumption that «hàkim» in al-Andalus generally referred to a judge in a small town.^'^It is true that before the Almoravid conquest, judges in smaller cities were also called «hàkim», but they do not resemble the hàkim office described by Ibn 'Abdùn.The hàkim of towns like Bayyása (Baeza), al-Sumuntan (Somontin) and Tiskar (Tiscar), was appointed by the ruler and not by a qadiJ^"^ This reality is reflected in the biographical literature, which mentions a link between sàhib al-ahkàm and qàdi only for scholars at the end of the 5th/11th and during the 6th/12th century.^' ^ With the muhtasib, a second office subordinate to the judge existed during the Almoravid period.According to Ibn ' Abdün, the muhtasib was nominated by the qàdi with the acknowledgement of the ruler.^^^ This obUgation to inform the ruler is not mentioned for the hàkim.Further differences between the two offices may be concluded from Ibn 'Abdùn's account.The muhtasib should only judge according to the obligatory rules of the divine law {sarVat al-islàm), both in matters of property (ruqàb al-amwàl) and in litigation (khisàm).His office was supposed to help the qàdi establish the rightful religious order and prevent the decay of public conduct.^^^ The emphasis on a s^n'a-guided jurisdiction of the C. MüLLER AQ.XXI, 2000 muhtasib under the control of the qâdi may be explained by the Almoravids' claims to be religious reformers.'^^Most of the hakim's jurisdiction, on the contrary, aimed at settlement (islàh) between people, and he had to be experienced as a notary as well.'^^This describes him as a judge for everyday affairs rather than as a bulwark of religious purity.But both offices, hàkim and muhtasib, give rise to some unanswered questions: why are they not clearly distinguished in the Andalusian biographical literature?In this respect, the subordination of the sahib al-ahkàm under a qàdi mentioned for that period'^^ is common to both offices and does not help to identify them.Nor do we know from Ibn 'Abdün's account whether the Almoravid muhtasib lacked the authority to pass a hukm, as al-Qaráfí later postulated in his concept of the muhtasib office.^^' The Almoravids introduced the office of «muhtasib» as superintendent of markets and public moral in al-Andalus at the end of the 11th century.^^^Before that, the market inspector of Cordoba was never called muhtasib.In cases collected by Ibn Sahl in his al-Ahkam al-kubra, «muhtasib» always referred to the claimant in the court of a judge, but never to the judge himself.^^^In the middle of the 5th/llth century, a claimant was called muhtasib when he had no personal or contractual legal claim against the defendant, but based the suit on a violation of public order or morals: he acted privately in pursuit of the Koranic hisba maxim «to promote good and forbid evil».^^"^Ibn Hazm's reference to a muhtasib in pre-Islamic Mecca is to be understood in this sense, not as an office.^^^ To the best of my knowledge, there was no connection between «public mandate» and the muhtasib as guardian of public morals ^^^ in the Mâlikî ' ^^ Besides the case of the shoemakers at the beginning of this article, compare Ibn Sahl, Ahkàm, 441-5, 1007, lOlOf., 1011 and 1032-5 (the last four also edited in Hisba, 51-60, 'Umràn, 53-63, and Nawàzil p. 22-4 and 34-6), see also al-Khusanî, Qudàh, 226.
' ^"^ Compare Chalmeta, Señor del zoco, 406-8; ibid., p. 396f.and 472, for the title of the superintendent of the market in al-Andalus, ibid, 346-51, on hisba and süq office.See l^an.Histoire, 618-622 for the Koranic source of hisba and its collective obligation to all Muslims as fard kifàya.
' 25 Howeverf Buckley, R. P., «The Muhtasib», Arabica 39 (1992), 59, note 1. '2^ Santillana, D., Istituzioni di diritto musulmano malichita con riguardo anche al sistema sciajïita, 2 vols., Rome, 1926Rome, -1938, esp. I, 23, esp. I, 23.The term hisba seems to have gradually replaced the older «suq» since the second half of the 5th/llth century, although «suq» was retained as a local expression by authors hke Ibn Baskuwal (d. 578/1183).^^^Ibn Sahl explains that the sàhib al-süq was also called sahib al-hisba, because his main task was to investigate fraud as well as false weights and measures in the market.'^^In 11th century al-Andalus, the mhib al-surta wa-l-sûq Hasan Ibn Dakwàn (d.451) was referred to as «mutaqallad al-hisba».' ^^ The office of hisba was therefore known as well as the old Umayyad expression wilàyat al-süq.But we must firmly warn against viewing the terms hisba and ihtisab as synonyms; nor was the person holding the hisba office (sàhib al-hisba) called muhtasib at that time.'^'Ibn Sahl used the term ihtisab to designate court action in cases of mostly public -sometimes also private-interest which did not violate any contractual rights.His «chapter on ihtisab»^^^ contains a vaiiety of cases from the markets, public order and construction, disputes between neighbors as well as penal suits.These cases did not all involve the supervision of the markets, nor did they all fall within the purview of the sàhib al-süq.As a matter of fact, only a few cases in the «ihtisàb-ohdL^iQx» of Ibn Sahl were presided over by the sàhib al-surta wal-süq; most of them were heard by the qàdi and some by the sàhib al-madina.This disjunction between the suq or hisba office and the ihtisab is most evident in a case labeled as «ihtisab», in which the wazir Ibn Salîm (d.302/914) had his garden wall extended by narrowing the public path.Apart from the fact that cases from this period generally were collected from the qàdi al-gamà'a Ahmad b.Ziyad (d.312/924),^^^ one of Xht fatàwà addressing the presiding judge referred to the «qudàh before you».^^"^There is no indication that in such a context «ihtisab» was restricted to a specific judicial authority in the way later authors.

JURISDICTION OF THE MARKET INSPECTOR
We will now turn to the judicial cases of the Cordobán sahib al-surta wa-lsüq or sahib al-ahkàm.According to Ibn Sahl, the sahib al-süq was called sahib al-hisba because most of his jurisdiction concerned forgery, or more precisely, counterfeit (giss), deception (khadl'a), debts (dayn) and manipulation of weights and measures in the market.^^^Cases dealt with by this official during the 5th/11th century, however, reveal much wider judicial activities than supervision of markets, nor are they confined to those cases found in Ibn SahFs chapter on ihtisàb.From more than 20 cases heard by Ibn Hans between the years 456/1064 and about 461/1069, five more heard by other judges around 460/1068 to 464/1072,'^'^ and four cases from the first half of the 5th/l 1th century, ^^^ we learn that the market inspector of Cordoba dealt with contract law in commerce, marriage and divorce, as well as with all kind of disputes within famihes, between neighbors and over real estate.
When dealing with this kind of claims, the market inspector applied the Màlikî law of procedure, insofar as can be drawn from our sources.He employed a court secretary (kàtib) like a qàdi, who notarized all material facts of court proceedings.'^^His court sessions were -at least sometimes-held in the Great Mosque'"^^ situated in the midst of the markets, possibly by using the same enclosure in the gallery of the Great Mosque that was set up for the sahib al-surta by al-Hakam I next to the one for the qàdi al-gamà'a}"^^ In all known C. MüLLER AQ.XXI, 2000 Some of the judicial cases of the sahib al-ahkàm, however, are closely connected to the markets and may be considered as an extension, if not part, of his control activities.'"^^Another case that came before Ibn Harîs, aside from the one of the shoemakers cited at the beginning, also concerned production methods and quality control in the market: a private muhtasib claimed that the use of tin instead of silver in the varnish (sandarüs) used for stirrups, saddles and the like, was fraudulent practice.He presented an istir'à' document'"^^ attesting to its signatories' knowledges that, from old habit ( 'àda) and custom ( 'urf), the varnish put on the leather of shoes, saddles and bridles was made of silver exclusively.According to these witnesses, the use of tin -the less precious material-was fraud and damaging to the markets.Even if the producer could distinguish between both materials, any buyer incapable of doing so was subject to fraud and damage.As required for an istir'à' document, the signatories testified to its content in the judge's tribunal held in the Great Mosque of Cordoba.The defendant alleged that he had always produced varnish on the basis of tin.The market inspector conferred with the board of jurisconsults, whose opinions in this case suggested various rulings: Ibn 'Attáb considered the use of tin legitimate, since the sacred law forbids men to use silver except for signet-rings, swords and copies of the Quran.Ibn al-Qattàn, on the other hand, wanted to punish the use of tin, which he considered in contradiction to old custom and thus fraud, and the third jurist, Ibn Malik, looked at the case on an individual level: he conceded that the defendant should bring testimonial evidence for his alleged custom of using tin, which, so we can conclude, could free him from being charged of fraudulently inaugurating tin varnish.It is important to note that he was not requested to prove a general custom of using tin.From this case, we learn that silver varnish must have been widely used in Cordoba in contradiction to norms of the fiqh.These three responsa (juridical expertises) touch different layers of legal rights: Ibn 'Attáb deals with a set of legal norms rendering certain products illicit for a certain group of people, Ibn al-Qattan protects consumers against fraudulent innovations based on a notion of local custom, and Ibn Malik grants to the individual the right to pursue one's own way of producing things if this has not been challenged before.In contrast to the formerly cited shoemakers' case, here it is not known which ruling was implemented: acquittal as proposed AQ.XXI, 2000 THE CORDOBÁN SÀHIB AL-AHKÀM 77 by Ibn ' Attâb; fraud as suggested by Ibn al-Qattàn; or continuation of the lawsuit if the defendant submits new testimonial evidence.^"^^ Other cases in the realm of economic activities rather concern contractual law than the general supervision of the market.The claimants in these cases are never called muhtasib, which indicates that their claim was based on a contract with the defendant.
In Cordoba, businessmen contracted weavers to produce a defined amount and quality of cloth, for which they payed in advance.In the court of Ibn Harïs, Muhammad b.Ahmad b.Safwàn acknowledged the receipt of a certain amount of gold from the brothers 'Abd Allah and Muhammad Ibn Khayra in return for weaving ten silk garments.This was confirmed by 'Abd Allah Ibn Khayra, who claimed that the six garments the weaver brought to court were handed to him.In an istir'à' document presented to the court, some witnesses had attested that they knew both sons of Khayra, 'Abd Allah and Muhammad, to be general mandate partners {sarikcin mutafiwidàn)^^^ at the time the document was drawn up in Gumàdâ I 458 (April, 1066).This testimony was duly certified by witnesses in court (tabata) as was his brother's absence while away in the North African city of Fez for the last year.If both parties, weaver and cloth merchant, had hoped for a quick resolution by the judge, they were mistaken: Ibn Harïs had the garments confiscated and consulted the jurists.^^*He may have become aware of the legal dangers involving rights of absentees through a case of the repayment of a debt owed by an absentee, which took place at that time.^^^The legal problem was that any renewed claim for delivery by the absent brother could only be ruled out if the second employer was in fact the general mandate partner of his brother.Ibn 'Attâb held that the partnership was legally attested.After the brother had sworn an oath that their partnership was not dissolved, the garments could be delivered and the absentee's right of legal hearing was deferred (irgà' al-hugga)}^^ The other jurists, Ibn al-Qattàn and Ibn Malik, considered the testimony of the partnership to be very weak.Ibn al-Qattan held that the partnership was not considered a legal fact unless it was attested to on the basis of personal knowledge; not if this assertion was based on 'hearsay', as C. MüLLER AQ.XXI, 2000 in the presented document.Ibn Malik proposed that two of the document's witnesses should testify to their knowledge about this kind of partnership and then attest the existence of such a partnership between both brothers.Then the judge should accept the partnership and declare the present brother to be the proxy of the absentee.Since a proxy could acknowledge the delivery on behalf of the absentee, the weaver would be protected from any further claims.Our source does not reveal the outcome of the case, but Ibn Sahl considered the last fatwà to be the most complete of all three.^^"^ In another case, a weaver had fled town without delivering the cloth, and the man contracting to have labor performed (musta 'mil) later claimed compensation should be payed from the inheritance of the inheritance of the weaver's father.In the court of Ibn Harîs, the musta'mil Muhammad b.Ahmad had a contract certified, dating from Sa'ban 451 (beginning with September 12, 1059).This contract stipulated a payment of «10 good old gold mitqàl» to Mufarrig b.Mubarak for the weaving of 40 garments in a given quality.Muhammad asserted the acquittal of payment to Mufarrig on the grounds that the weaver had started his work.Mufarrig, however, never delivered, but left town in the company of his brother for the East Coast (Sarq al-Andalus).The father must have died three years later in Cordoba; and the musta'mil ten months later sued the father's widow for Mufarrig's share of the inheritance, which he specified as 12 hand mills and their leases.The court duly certified two istir'a' documents: the one attesting to the death of Mubarak and his heir, his widow Munaggàt and his sons from another marriage, Mufarrig and Muhammad.The other istir'a' document attested to the brother's departure for the East Coast, three years ago, without having returned, to the best of the witnesses' knowledge.Summoned to court, the widow acknowledged the inheritance of 12 hand mills which happened to be in their house in the quarter of the Jews Gate, in 'Ibn 'Abd Allah'-street.Since the death of her husband ten months ago, she had leased them.She claimed expenses for the reconstruction and the use of the mills.^^^ The jurists disputed whether the testimony in its present form was sufficient to rule out the possibility that Mufarrig had already died before becoming his father's heir and whether the brothers were in fact far enough away not to be summoned to court.Only if these points had been resolved positively, so the answer of Ibn 'Attàb, would the claimant have to find ways to prove the father's ownership of the mills.He could then swear to his claim, and the hand mills would be sold at an appropriate price.Mufarrig's share would go to the claimant to cover the debts, any sum remaining and the brother's share were to be deposited.In this case the weaver should ge his right for a legal hearing postponed (irgà' al-hugga).If the claimant failed to establish his rights, the mills need not to be sold and could continue to be leased.In a fatwa much criticized by Ibn Sahl later on, Ibn al-Qattan saw no problems in the question whether Mufarrig was still alive at his father's death or not, nor with his unknown place of residence, but said that the property rights of the defendants should be attested to.^^^ The next steps in this case are unknown to us, but eventually the musta 'mil must have succeeded in getting the hand mills sold, because Ibn 'Attâb commented in a second/aiwa on how the demands of the musta'mil should be calculated.According to his opinion, the calculation must be based on the 10 golà-mitqâl given as advance, rather than on the work to be done or its value.The reason given was that the advance was intended to prevent the employed {musta'gar) from changing his musta'mil-which is nothing more or less than indentured service.Such a dependency was allowed by all other jurists who totally agreed with Ibn 'Attab's second/aiwâ.
In the following case, damages were claimed for an injury of the horse's leg after the seller had already left town.^^^A man had bought a horse considered to be healthy for 24 Carmonian gold-mitqàl which he paid to the seller Bahri al-TalbL He alleged that the horse was affected by an old injury.In order to confirm his right to damages, he had the contract of the sale from the end of Ramadan 457 (the beginning of September, 1065) certified in the court of Ibn Hans.Two expert witnesses attested in court on 14th Dü'l-Qa'da (October, 18) of the same year to injuries of the horse that were older than the date of the sale and therefore called for a reduction of the price.In contrast to other cases of claims for damages, e.g. for a slave girl^^^ or for houses,^^^ what was disputed here was not the amount or kind of damage, but how the buyer could recover his money from C. MüLLER AQ.XXI, 2000 the absent seller.Several witnesses attested in court that they knew Bahri al-Talbî personally and by name, and that, until then, he had enjoyed a good reputation.However, he had left Cordoba one month ago with an unknown destination.
The market inspector provided the jurists with a written summary of the case, including copies of all three documents, the contract of sale, testimony of damages to the horse and testimony on the person of the seller.The major legal problem was the fact that the absent seller could not be summoned to exercise his right of legal hearing, since his destination was not known.To reach a decision in such cases, the buyer was allowed to an oath, in which he confirmed his claim and that he had not yet renounced it, thus preventing a repetitive claim on the same grounds.This aspect was formulated by Ibn 'Attâb.Two jurists, Ibn al-Qattán and Ibn 'Abd al-Samad, wanted a final deadline (talawwum) before the claimant could take this oath, and Ibn Malik did not mention its second half, the denial of renunciation.After the oath, so Ibn 'Attâb, the horse would be sold in the market, its price being handed over to the claimant, who retained claim to the remaining sum.Should the selling price exceed the original price, the surplus had to be deposited for the absentee.In contrast, Ibn al-Qattan recommended that additional property belonging to the absentee should be sold to cover the remaining debt.Ibn Malik added that the judge should keep a record of this case in copy and postpone the defendant's right of legal hearing in court.
Somewhat different from this claim for damages was the case of a horse that had been sold and resold in various cities of al-Andalus and had finally died from exhaustion before it could be returned to its original owner.At the beginning, the original owner of a mare claimed for restitution of property rights (istihqàq, hereinafter referred to as 'vindication') against a horse dealer before the hakam of Carmona.After his property rights had been attested and he had taken the necessary oath, the judge issued a ruling that included the assessed value of the animal."^^ The dealer in turn had bought the mare from a man in Cordoba.He therefore asked the judge for a document of 'vindication' (mustahiqqa) addressed to the Cordovan sahib al-ahkàm Ibn Hans to substantiate his rights vis-à-vis the seller.He deposited the assessed value of the mare in Carmona and rode on her to Cordoba.In Cordoba, dealer and seller went to the market inspector Ibn Hans, and the document of 'vindication' issued in Carmona was certified.The seller acknowledged the sale and asserted that he in his turn had bought the mare from a Toledan man, who had left the city some time ago.The ), then deposited the assessed value of the mare and rode with it to Toledo.Upon this return from Toledo, the Cordobán seller asserted his agreement with the former owner {sàhib) in Toledo and handed the mare over to the horse dealer.^^* Usually, he would then receive his deposit, 40 mitqàl, and the horse dealer would take the mare back to Carmona, return it to its original proprietor and receive his own deposit in turn.But things went differently: the mare died one day after the horse dealer took her.He, as a consequence, sued the Cordobán seller in the court of Ibn Harîs, alleging that the defendant had killed the mare by riding too fast and outstripping his travel company from Toledo by a whole day.The parties found a compromise and the horse dealer received 15 mitqàl.
Informed about the mare's death, the proprietor claimed from the horse dealer those 15 mitqàl he had received possibly in addition to the amount deposited for the mare in Carmona.In a first fatwà in this case, Ibn 'Attâb conceded to the proprietor the 40 mitqàl assessed for the mare in Cordoba, but nothing else.The market inspector seems to have passed a ruling accordingly.
By doing so, he assumed that the assessed value in Carmona had been 35 mitqàl, the amount certified in the 'vindication' document issued by the hakam of Carmona.'^^The proprietor, however, alleged that this sum had in fact been assessed at 45 mitqàl and not at 35.The proprietor went to Carmona and returned with the written confirmation from its judge addressed to Ibn Haris that his first writing had contained a mistake and that the mare had indeed been assessed in Carmona at 45 mitqàl.Asked for their opinion, Ibn al-Qattán and Ibn Malik held that this confirmation must be accepted and that the horse trader should be liable to 45 mitqàl.Ibn 'Attáb, however, objected to lifting the former assessment of Ibn Haris, which he considered a binding ruling (hukm), and insisted on the sum of 40 mitqàl.Quite astonishing in this complicated case is how easily legal rights were claimed in various cities.The legal difficulty did not arise from the mare's sale and resale in the different places -which at that time belonged to different political entities-but from its death in Cordoba which resulted in a ruling based on the wrong account of the assessement in Carmona.It must be assumed that «leasing» a horse against an assessed deposit C. MüLLER AQ: XXI, 2000 for security was common practice in al-Andalus.Legally, it was constructed in terms of a salam, a sale with deferred delivery.'^^Three cases concerning the operation of henna mills near Cordoba, a claim for breach of contract by instalHng a mill, and a contract of sale combined with the agency to supervive cultivation work in the sold vineyard, belong to the jurisdiction of the sahib al-surta wa-l-süq Abu ' Alï Ibn Dakwàn before he became qàdi al-gamà 'a in 435/1043.In the first case, the act of the lease of henna mills at the river of Cordoba, issued by the jurist Ibn Dahhùn (d. 431/1039-40), stipulated that [Ahmad] leased from Sulaymàn b.Ahmad, a great-great-grandson of ' Abd al-Rahmàn III, for two years beginning on such-and-such a date, all his and his minor children's shares^^"* in the mills attributed as property (al-mansübatu li-milkin), and for which the leaseholder (mutaqabbil) Ahmad was to pay a given amount after some given time.At the end of this contract, Ahmad was obliged to concede that he knew these mills would work only in summer, not in winter.
When Ahmad claimed before the sahib al-süq îbn Dakwàn for the right to operate the mills also during winter, the jurists held contradicting views.The question was whether the mills, or rather their output, were guaranteed {ma 'mm) and whether the contract of lease (qibàla) was permissible or not.Ibn 'Attab explains that the acknowledged self-obligation of the leaseholder becomes a contractual condition.Stipulating payment in advance, ta'gil al-naqd, for the lease of mills is only allowed if these are guaranteed {ma'mïin).They are not ma 'mm, however, if a decrease in the water of the rivers is to be feared, because this includes 'illegal risk' (garar) in the contract.If the claimant proved that the mills are not guaranteed, so Ibn 'Attab, the lease for the remaining period must be annulled because of the stipulated advance payment.If this cannot be proved, the lease was valid and the leaseholder was entitled to operate the mills during summer and winter.'^^The jurist al-Qurasï considered the mills to be not guaranteed and the contract not valid; Ibn Gurg, on the contrary, thought the contract valid, the mills guaranteed and the leaseholder permitted to work the mills during the whole year.^^^An unnamed market inspector dealt with a breach of contract concerning the sale of a vestibule (ustuwàn) within a piece of real estate.The contract of sale.

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Consejo Superior de Investigaciones Científicas Licencia Creative Commons Reconocimiento 4.0 Internacional (CC BY 4.0) http://al-qantara.revistas.csic.esAQ.XXI, 2000 THE CORDOBÁN SÀHIB AL-AHKÀM 69 dictionaries use the term sàhib al-ahkàm to differentiate a judicial office from the qàdi}^ The term sàhib al-ahkàm, therefore, is not a short form of sàhib ahkàm al-qadà\^'^ but designates a non-^âç^ judge.At the end of the 5th/llth century, the «ahkàm» office stood in close relation to the superintendence of the market {süq), be it that the same person held both offices or that both designations meant about the same.^^In two cases of the last quarter of the year 464/1072, Muhammad b.Makkî was titled «sàhib al-süq» and «sàhib al-ahkàm wa-lahbàs»}^ In 'Àmirid times at the end of the 4th/10th century, we find scholars «appointed to surta and ahkàm».^^The third term used for the Cordobán judge Ibn Haris by Ibn Sahl was alhakam!^^ Contrary to the use of sahib al-ahkàm or ahkàm [office] throughout the 5th/Ilth to the end of the 6th/12th century, al-hakam obviously was not restricted to a specific office nor to non-qàdi judges.It was applied to a judge in Carmona,^" the sàhib al-mazàlim in Cordoba,^^ and even referred to the qàdi of Cordoba.'^'^Such use also differs from the general understanding of hakam as arbiter.^^Later collections substituted the possibly unfamiliar expression hakam with qàa.^^Yet another term for «judge» is in our sources.Ibn Sahl uses the expression «hàkim», pi.hukkàm, generally understood as judicial magistrate,^^ in an abstract C. MüLLER AQ.XXI, 2000