Table Of ContentSHAR^#AAND CUSTOM IN LIBYAN TRIBAL SOCIETY
STUDIES
IN ISLAMIC LAW
AND SOCIETY
edited by
Ruud Peters and Bernard Weiss
volume
24
^#
SHAR A AND CUSTOM IN LIBYAN
TRIBAL SOCIETY
An Annotated Translation of Decisions from the
Ê# §
Shar a Courts of Adj biya and Kufra
BY
AHARON LAYISH
WITH A LINGUISTIC ESSAY BY ALEXANDER BORG
BRILL
LEIDEN•BOSTON
2005
This book is printed on acid-free paper.
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A C.I.P. record for this book is available from the Library of Congress.
ISSN 1384–1130
ISBN 90 04 14082 4
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CONTENTS
Preface ........................................................................................ vii
Acknowledgments ...................................................................... xix
Introduction: Sharì'a and Custom in Tribal Society .............. 1
THE DOCUMENTS IN ENGLISH TRANSLATION
AND ANNOTATION
1. Personal Status and Succession .......................................... 13
(1) Marriage (docs. 1–11) .................................................... 13
(2) Divorce (docs. 12–38) .................................................... 55
(3) Relations between Parents and Children (docs. 39–44) 137
(4) Succession and Testamentary Waqf (docs. 45–54) ...... 162
2. Homicide, Bodily Injury and Defamation of Women’s
Reputation (55–60) .............................................................. 199
3. Slaves and Manumitted Slaves (docs. 61–62) .................... 227
4. Property, Obligations and Contracts (docs. 63–68) .......... 233
5. Evidence and Court Procedure (docs. 69–70) .................. 257
6. Qà∂ìs’ Legal Opinions (docs. 71–72) .................................. 265
APPENDICES
Bibliography .............................................................................. 273
Glossary of Arabic Legal Terms and Phrases ........................ 285
Name Index of Qà∂ìs, Nà"ibs and Other Judicial Clerks ...... 303
General Index ............................................................................ 305
“Orality, Language, and Culture in Arabic Juridical
Discourse” by Alexander Borg ................................................ 317
PREFACE
The present work is a sequel to my previous book, Legal Documents on
Libyan Tribal Society in Process of Sedentarization (Wiesbaden, 1998), whose
object was to present an edition of 72 court decisions together with
a critical apparatus, a glossary of Arabic legal terms, a bibliography,
and facsimile reproductions of the original documents.1
The purpose of this companion volume is to make available an
English translation of the Arabic texts together with a detailed com-
mentary, an English glossary of Islamic and customary legal terms
and phrases pertinent to the documents under study, an integrated
bibliography relating to both volumes, and an index arranged accord-
ing to subject matter.
The facsimile reproductions of the original Arabic legal documents
presented here were kindly made available to the author by Prof.
John Davis of Oxford University who photographed the originals in
the course of anthropological field research in Libya.2 They contain
a selection of judgments addressing such matters as personal status,
succession, homicide and bodily injury, property, obligations and con-
tracts, etc. The judgments were handed down by the Sharì'a Courts
of Ajdàbiya and Kufra during the period from the early 1930s to
the early 1970s.
The significance of the sijill (record) of the sharì'a court as a source
for legal and social history has already been discussed in detail in
the Introduction to the first volume. Suffice it to mention here the
crucial fact that the sharì'a court is the locus where normative Islam,
as represented by the qà∂ì (rather than the muftì), comes face to face
with social reality as reflected in the norms of tribal customary law.
The nature and extent of this interaction between the two juridical
systems, i.e., the shar'ì (in its Màlikì version) and the customary,3 and
the concomitant differences noted in their respective Weltanschauungen
as they emerge from the court cases, constitute the main thrust of
this research.
1 See Layish, Legal Documents.
2 For details, see Layish, Legal Documents, Preface.
3 Though it is sometimes admittedly difficult to distinguish between them in the
documents. See Layish, Divorce, 2–4.
viii preface
It may be that the Libyan Bedouin, the object of this study, iden-
tify their day-to-day legal practice indiscriminately with the sharì'a4—
a perception that is, of course, anthropologically significant; but the
historian of Islamic law cannot simply accept this assumption. A
clear distinction exists between orthodox sharì'a and tribal customary
law,5 and when the Bedouin are following custom, the scholar must
point this out.
Each of these legal systems embodies the outcome of a distinct
historical process. In exploring them in a methodical fashion, the
analyst is able to show how legal experts, as opposed to laymen,
conceptualize the law, thereby revealing the line separating every-
day perceptions of the law from the knowledge of legal specialists.
It should be borne in mind that, whatever may be the layman’s
viewpoint on the relationship between sharì'a and tribal custom, such
a distinction exists in classical Islamic law whose proponents, includ-
ing the Màlikì fuqahà", do not, broadly speaking, recognize custom
as an official source of law.6
There is ample evidence that the Libyan qà∂ìs themselves are fully
aware, in their judicial practice, of the distinction between sharì'a,
custom ('àda) and statutory law (qànùn).7 They often make substantial
concessions to custom by meeting it half way at the expense of the
sharì'a with a view to bringing the Bedouin closer to normative Islam.8
The Bedouin of the Awlàd 'Alì in the Western Desert are also
aware of the differences between tribal customary law and sharì'a;9
4 See Evans-Pritchard, 63 (the Bedouin of Cyrenaica “assume that their customs
are Muslim customs”).
5 Cf. Gellner, Saints, 68, 105ff., 129ff., 135; Rosen, 194–97, 201, 206; Davis,
SocialPerspective, 12. On methodological problems pertaining to the distinction between
sharì'a and custom, see Layish, Legal Documents, 3.
6 See Schacht, Introduction, 62. For further details, see Introduction below,pp.1–10.
7 Glossary, s.v. 'àda; 'urf; qànùn. See, e.g., doc. 1; Layish, Tajdìda; idem, Divorce,
175–76, 185–91.
8 See, e.g., Layish, Divorce, 170–208; idem, Dàr 'adl; idem, khul'; idem, The Qà∂ì’s
Role; idem, Blood money.
9 Obermeyer notes that the Awlàd 'Alì in the Western Desert make a very clear
distinction between the sharì'a which “was given by God, and...guides man con-
cerning what is good and what is bad,” and the 'awà"id (tribal customs) that are
made by human being for the benefit of Bedouin; they claim that the 'awà"id are
in harmony with the sharì'a, though not in everything for it does not originate from
the sharì'a (Obermeyer, 193, 214, 270). Murray notes that prior to the establish-
ment of sharì'a courts, the Awlàd 'Alì used to adjudicate cases related to marriage,
divorce, inheritance, wills, and gifts before special courts, that is, tribal courts in
which tribal customs were applied; since then, however, they resort to the sharì'a
courts and readily accept their decisions (Murray, 328).
preface ix
one of main reasons for their resort to the sharì'a court is the fac-
tor of equality of all parties before the sharì'a court, regardless of
tribal affiliation, origin, legal position, or social status.10
During the period of Italian rule in Cyrenaica (1932–42), they
retained the dual (religious and secular) judicial system dating back
to the late Ottoman period, and maintained the judicial and orga-
nizational autonomy of the sharì'a courts. This was carried out within
the Italian policy of Direct Rule, one of whose goals was the preser-
vation of Islamic law and local customs.11 A judiciary of three instances
of sharì'a courts headed by a supreme court for appeals was estab-
lished. A Judicial Board (hay"a qa∂à"iyya) consisting of six members—
four Màlikìs, one Ibà∂ì, and one Óanafì—was set up, and muftìs,
including the chief Muftì of the state, were nominated. The qà∂ìs
were also engaged as judges of civil courts and members of waqf and
district administrative boards. In day-to-day reality the Sharì'a Court
of Kufra dealt not only with matters of personal status, succession,
and waqf, but also with civil claims, contracts and property, homi-
cide, assault, and other issues—matters that theoretically came under
the jurisdiction of the civil courts. This may have been a carryover
from the period preceding the Ottoman reform of the judicial sys-
tem in 1860s.12
The dual judicial system survived in Libya after its independence
in 1952. The sharì'a courts retained sole jurisdiction in matters of
personal status, succession and waqf. A judgment of a sharì'a court
of first instance was subject to appeal to the Supreme Court (al-
ma˙kama al-'ulyà), which was established in 1929 with a view to re-
placing the two supreme sharì'a appeal tribunals—in Tripoli and
Benghazi—established in the early 1920s. In 1973 the sharì'a courts
were abolished and their powers transferred to the civil courts. Until
Qadhdhàfì’s coup in 1969, no codification of shar'ì law pertaing to
personal status, succession and waqf had been attempted. Qà∂ìs seek-
ing guidance in religious law, turned to the treatises on Islamic law
compiled by Màlikì jurists.13
10 See Layish, Legal Documents, 1–3, and the Inroduction to this volume below.
11 For further details, see Cicchitti, 485; Evans-Pritchard, 200–3, 209; cf. Layish,
Divorce, 5.
12 See Del Boca, vol. 2, 22; Ibn Mùsà, 251–56. For further details on the Sharì'a
Court of Kufra, see Layish, Blood Money. Cf. Agmon, The Family in Court.
13 The Ottoman failed to establish the Óanafì school in Libyan sharì'a courts.
See Ibn Mùsà, 66; Layish, The Qà∂ì’s Role, 84–86. The Libyan Civil Code provides
x preface
Most of the documents in this volume are judgments (˙ukm) in
which the qà∂ì hands down decision in disputes between the par-
ties. Some of the documents are official orders of a declarative nature
issued by the qà∂ì, such as validation of marriage contract, order of
succession, endorsement of power of attorney.14 Some of of the doc-
uments bear the title “attestation of the conveyance of evidence”
(shahàdat naql), a kind of official statement of fact pertaining to mat-
ters such as conjugal rights, succession, and property issued by the
qà∂ì. A copy of the authenticated testimony is given to the claimant
to be used for any practical purpose in future.15 Two of the docu-
ments were issued by the qà∂ì in the form of a legal opinion ( fatwà)—
theoretically not binding on the parties—not in his capacity as a
judicial authority, but rather as a muftì competent to hand down
decisions relating to religious law.16
Four kinds of witnesses have been distinguished in the documents:
(1) witnesses required to identify (ta'rìf ) the claimant or the primary
witnesses; (2) primary witnesses enlisted by the claimant for the pur-
pose of corroborating his contention; their testimonies are expected
to be based upon their knowledge of the facts; (3) witnesses required
to ascertain the primary witnesses’ credibility (tazkiya); and (4) court
notaries (shuhùd al-˙àl, 'udùl) whose task is to witness the entire pro-
ceedings as they transpired in court.17 In one case, the qà∂ì admitted
a collective testimony of twelve witnesses on the ground that a large
number of witnesses safeguards against fabrication of false evidence.18
The legal documents issued by the Sharì'a Court of Ajdàbiya dis-
play several characteristic features in the matter of structure and
style. They typically start with an introductory formula, the most
common being an invocation and a prayer for the soul of the Prophet,
his family and companions, intended to bring divine guidance to
bear in the processes of justice and to reinforce the validity and
binding character of the qà∂ì’s legal pronouncements.19 Tribute is
that in cases of lacuna the sharì'a in its Màlikì version should be applied. See
Khayrallàh, 203–4. Fore further details, see Layish, Legal Documents, 14–20.
14 See, e.g., docs. 2, 45, 47, 51. In Palestine and Israel such orders were registered
in a special sijill of legal documents (˙ujaj). See Layish, Women, 339; cf. Agmon,
Recording Procedures.
15 See docs. 4, 14, 48, 54, 57, 61, 67; Layish, Shahàdat naql.
16 See docs. 71–72.
17 For further details, see Layish, Shahàdat naql.
18 See doc. 69.
19 Cf. Messick, 227–28.
