Wednesday, November 20, 2013

Commerce and Obligation in the Islamic World, c. 1850-1919

[We are grateful to Nurfadzilah Yahaya, Mark Steinberg Weil Early Career Fellow, in Jewish, Islamic & Near Eastern Languages & Cultures at the Washington University in St. Louis, for this excellent report of a session at the recently concluded annual meeting of the American Society for Legal History.]

"Commerce and Obligation in the Islamic World, c. 1850-1919"

All three papers in this panel reflect on the remarkable resilience of debt often outlasting individual life spans of creditors and debtors. From the perspective of law reports, merchants' papers and debt-related deeds and contracts, these three papers effectively demonstrate that legal sites were definitely not neutral since some sections of society were more able to gain access to these legal arenas which enabled them to develop effective legal strategies in the long run. The three papers also suggest that levels of trust and reputation of legal actors within their own particular societies affected legal tactics, outcomes in courts and socio-economic mobility to a significant degree.

In his paper, Fahad Bishara (College of William and Mary) examined the relationship between debt, personhood and political economy in the cosmopolitan world of the Western Indian Ocean where one's socio-legal position was determined by one's genealogy. As a result, paper documents or 'waraqas' ended up incorporating non-Arabs such as Indians and Africans, including non-Muslims, into an Arab-Islamic genealogy. A recognizable genealogy, instead of wealth and property, was what enabled one to incur obligations. Although Muslim jurists concurred that only human beings could enjoy legal personhood and therefore could bear rights and duties associated with contracting, legal practitioners and merchants in the Indian Ocean had to incorporate a wide array of legal actors such as Hindu family firms that had to be transmuted into a legal 'person.' To fit the rules of contracting, the waraqas had to reflect high flexibility in order to create an equal contractual playing field for merchants. In addition, Bishara argues that merchants on the coast of East Africa tended to claim Arab patrilineal genealogies not only for mercantile prowess but also political prestige. Finally, Bishara implies that the waraqa resembled bills of exchange in the Indian Ocean in that they could change hands from one merchant to another except that the obligations of the original debtor remain fixed though these could be transferred to a willing party (including descendants). In effect, the waraqa functioned as the fundamental currency that configured both economic and political relations.

Will Hanley's (Florida State University) paper "Egypt’s Petty Moneylenders as Makers of International Law" argues that the implementation of international law tended to privilege foreigners at the expense of locals in Egypt towards the end of the nineteenth century. At the same time, he demonstrates how law was a necessary auxiliary tool for Egypt’s petty traders and moneylenders as part of his larger project to globalize the history of international law by describing a specifically Egyptian genealogy for its subaltern practice. In this way, Hanley demonstrates how nature of law is best understood through widespread practice, rather than origins. Focusing on Filippo Calleja, a Maltese moneylender of Alexandria, Hanley traces how these moneylenders used courts to conveniently establish installment repayment schemes. Rather than highlighting the smooth facility of common legal practices however, he highlights how the fluent use of the law led to the rise of a new class of foreigners that ultimately concentrated more wealth into their own hands unlike previous moneylenders in Egypt who were more obviously embedded in local societies.

Omar Cheta's (Bard College) paper “Legal Reform and Commercial Debt in Nineteenth-Century Egypt” explores debt litigation in nineteenth-century Egypt. Although the court was a way for creditors to claim debts, they might abstain for two reasons. First, their chances of getting back the full debt via litigation were slim. Also, litigation jeopardizes future relationships with the debtors. Hence, for the creditor, going to court was a deliberate escalatory move and not a neutral tactic to simply claim debts. Nonetheless, courts were still an attractive forum for providing standardized procedure for debt dispute resolutions. Worse comes to worse, the court was after all able to oversee the process through which the debtor forfeit control over his possession and liquidate his assets in order to pay part of his debts at least. Courts were however limited by insolvent debtors without assets who of course could not be immediately compelled to pay their creditors although the promise of future payment was still enforced by courts.  Cheta reveals that the status of the insolvent debtor is a unique one since he was separated from other prisoners both in terms of classification and spatially since they were incarcerated in different prisons from other criminals, Cheta's paper highlights the sophisticated efficiency of the court on two counts. First, courts appointed wakils, or representatives from among creditors to run negotiations more systematically. Secondly, courts ensured that they were not financially responsible for supporting imprisoned debtors by devising a scheme with the wakils to provide an allowance for debtors derived from their own sequestered possessions.

The discussant and chair, Intisar Rabb (New York University) urged the presenters to explore the legal consciousness of agents, moneylenders and merchants. She emphasized that law both enabled and constricted the power and ability of all actors. Barriers to entry into legal arenas include dishonesty and fraud. In response to Bishara, she questions whether genealogy ran with inheritance, especially since according to Islamic law, the estate takes first priority rather than the individual. According to to this logic, descendants do not have to clear their ancestors' debts. Touching upon Hanley's paper, Rabb asks how local moneylenders fared, compared to foreign moneylenders. Were there routinized institutions that catered to them specifically?

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