Islam, Mālikı̄ Law, and Contracts 293

single ventures. But, as Goitein recognizes, “the relationship of partners

could be maintained during a lifetime or even through generations.”79 The
obligations and responsibilities of principals and agents, as well as the
mandate rules, were very detailed in Mālikı̄ legal manuals.80 They pre-
empted myriad problems that could arise in such partnerships, from
assessing losses incurred because of market trends to dealing with the
deceptive actions of agents.81 One rule stipulated that the contract was
canceled on the death of a principal merchant. If the agent died, then it
could be either canceled immediately from the time of death or upon
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receiving the news. The fact that the Mālikı̄ tradition recognized “the
validity of a partnership investment in the form of goods,” and not simply
cash investments, sets it apart from other Islamic legal traditions.82 More-
over, partnerships involving labor were treated in the same way as those
involving goods or cash.83
The flexibility of Mālikı̄ law made it very adaptable to the long-distance
trading environment of western Africa. Still, it is important to note that
when it came to matters pertaining to interfaith relations, it was more
intransigent than other legal schools. If it allowed for on-the-spot
exchanges between traders of different religions, Mālikı̄ law considered
interfaith partnerships to be potentially usurious and therefore reprehen-
sible. Other Sunni legal doctrines, on the other hand, fully endorsed part-
nerships between Muslims and non-Muslims.84 Yet in the Saharan context,
where Jews and Muslims had enduring commercial relations, trans-
Saharan traders ignored Mālikı̄ prescriptions. Both Muslims and Jews
obviously found such partnerships profitable because they could bypass
interdicts on usury by lending to one another. Such interfaith partnerships
prevailed in the western caravans as well as in the central caravans circu-
lating between Tripoli and the central Sudan.85

Function of Documents in Islam

While the Qur’ān places great emphasis on the importance of writing and
recording contracts, documents such as contracts were not considered
official legal instruments in Islamic law. The reasoning was that
Copyright 2009. Cambridge University Press.

79
Goitein, Letters, 12.
80
Seignette, Code, 211–24; Kamali, Islamic Commercial Law, 176–7.
81
Udovitch, “Origins,” 196–202.
82
Udovitch, Partnership, 155; and “Labor Partnerships,” 64, n. 2.
83 84
Udovitch, Partnership, 76. Kuran, “Islamic,” 420–1.
85
Diadie Haı̈dara, Juifs; Al-H andı̄rı̄, “Tat āwar tijāra al-qawāfil,” 67–8.
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 294 Business Practice and Legal Culture

documents functioned as transcripts of witnessed oral agreements and

therefore were only descriptions and not representations of actual con-
tracts. This attitude presumably stems from a concern about the possi-
bility of document tampering and forgery. The premise was that the oral
testimony and sworn oath of faithful Muslims were more reliable.
Contracts between sedentary investors and traveling associates, mer-
chants and trade agents, were always drafted in the presence of witnesses
who were known and therefore trustworthy members of the community.
In principle, all literate Muslims could draft contracts as long as they were
witnessed by either two men, or two women and one man, following the
Qur’ān. They were written “in sight of God” and therefore were con-
sidered to be personal agreements between contracting parties as opposed
to public records. As such, written contracts were informational tools
representing proof of transaction, and arguably their recording enabled
trust between traders (an argument developed further in the next two
chapters). In the case of a dispute, however, a written contract, in and of
itself, could not be used as free-standing evidence in a court of law, in
accordance with Islamic legal practice which placed value on testamentary
evidence. In Mālikı̄ law a contract had a legal value only when all those
involved in its drafting – the contracting parties and their witnesses – could
testify to the authenticity of the document. In other words, the written
document was simply a record of an oral agreement.
The function of documents in Islamic law is critical to understanding

the inherent inefficiency of Islamic institutions. Emile Tyan was the first to
draw attention to this particularity, but aside from his work, that of
Joseph Schacht, Jeannette Wakin, Baber Johansen and the original con-
tributions by anthropologist Messick, this institutional flaw has hardly
attracted the attention of historians of Muslim societies.86 Despite the
emphasis in Islam on recording transactions, documents such as debt
contracts had no legal standing in and of themselves, with some excep-
tions. Tyan explained the rationale as follows: “in principle, from the
point of view of legal proof, there was no difference between the written
and the non-written agreement: in both cases, the element that constituted
the proof was exclusively the witnesses’ testimony.”87 The underlying

86
Tyan, Histoire de l’organisation judiciaire and “Notariat”; Schacht, Introduction, 80–1;
Johansen, “Formes de langage et fonctions publiques”; Wakin, Function of Documents
in Islamic Law; and Messick, Calligraphic. Only passing reference to the problematic
function of documents in Islamic legal practice was made by M. Khalid Masud,
R. Peters, and D. Powers, “Qād ı̄s and Their Courts,” 28.
87 _
Tyan, “Notariat,” 10.

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 Islam, Mālikı̄ Law, and Contracts 295

principle in Islamic legal theory was the belief that the spoken word was
the most “authentic” form of proof.88
Yet it is important to realize that there were marked differences in
the function of documents across the four Sunni doctrines of Islamic
law. The H anafı̄ legal school held the most conservative position by
_
prohibiting the introduction of documents in a court of law.89 Mālikı̄
tradition, on the other hand, recognized certain special circumstances
under which written documents, after proper authentication by qualified
witnesses, could be used.90 In practice, therefore, Malı̄kı̄ law was more
flexible when it came to using documentary evidence.91 This is perhaps a
distinct feature of Mālikı̄ law which recognizes the need to consider local
customs (‘āda and ‘urf) in certain legal circumstances. This judicial
practice, known as ‘amal, which was especially well developed in the
Moroccan legal literature, recognized that Islamic legal rules could not
be strictly applied in all cases where consideration had to be given to
what was in the best interests of the public (mas lah a).92
_ _
Orality was therefore central to the legal process of Muslims that
hinged on human memory despite the emphasis on writing. Indeed, the
paper economy stands in sharp contrast to the lack of faith in paper in
Islam. That Islamic legal systems did not experience the transition from
reliance on oral testimony to written evidence as legal proof, or the
transition from ars dictaminis to ars notaria, goes a long way toward
explaining their inherent institutional constraints. The fact that written
documents, such as contracts, had no legal standing in and of themselves,
without the oral testimony of those who had witnessed the transaction
and could swear to its authenticity, reduced the size, scope, and
endurance of Muslim capital accumulation in the long run. But this does
not detract from the importance of literacy for promoting entrepreneur-
ship and complex finance, as well as for supplying informal enforcement
mechanisms.

88 89
Johansen, “Formes de langage,” 337. Ibid., 82–4.
90
Wakin, Function, 9. If properly witnessed, they could be used as informational
devices. As Tyan explained, many Malı̄kı̄ scholars, starting with the eleventh-
century Ibn Farh un, were quite outspoken about their opinion that anything that
_
allowed for the truth to be known was a valid source of evidence. See Tyan,
“Notariat,” 6–7.
91
This is made clear in a nineteenth-century inheritance report documenting the efforts of
debtors and creditors at the death of their trade partners to make due on their
contractual obligations. The qād ı̄ examined contracts and executed procedures based on
_
the good faith of the contracting parties, as seen in Chapter 7.
92
Schacht, Introduction, 30, 61–2; Stewart, Islam, 69–70.

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