From the point of view of economic history, the ideal way to study any institution of commercial law would be to compare the information contained in legal codes and treatises with the material relating to its application in economic life as manifested by actual contracts, letters, and business records found in archives and other repositories. In the case of the early centuries of the Islamic period, available sources unfortunately preclude such a procedure. Theoretical legal texts exist in abundance, but any corresponding documentary material is for all practical purposes non-extant. In order to determine if the framework in which the trade and commerce of the early Islamic period was carried on--a trade known to have been active and important--we must of necessity rely on legal treatises for most of our information, which trying wherever possible to call upon whatever meager help other literary sources may provide.
In the absence of documentary and similar sources, the possibility of investigating the quantitative aspects of trade is all but eliminated. However, in those areas of trade which have been described as qualitative, such as the variety of goods exchanged, the specialization of the merchant class, and the complexity of business methods, legal and other literary sources provide a great deal of valuable information. It is with the institutions of partnership and commenda in the early Islamic period, two of the qualitative components of trade, that Abraham L. Udovitch makes his primary focus in Partnership and Profit in Medieval Islam.
Partnership and Profit in Medieval Islam
By ABRAHAM L. UDOVITCHPRINCETON UNIVERSITY PRESS
Copyright © 1970 Princeton University Press
All right reserved.ISBN: 978-0-691-03084-5Contents
PREFACE...............................................................viiI. INTRODUCTION.......................................................3II. PROPRIETARY PARTNERSHIP (Sharikat al-milk.........................17III. THE HANAFI MUFAWADA PARTNERSHIP..................................40IV. HANAFI LIMITED INVESTMENT PARTNERSHIP ('Inan).....................119V. MALIKI PARTNERSHIP.................................................142VI. THE COMMENDA (Mudaraba, Qirad, Muqarada)..........................170VII. ISLAMIC LAW: THEORY AND PRACTICE.................................249BIBLIOGRAPHY..........................................................263GLOSSARY..............................................................273INDEX.................................................................277Chapter One
Introduction
Commercial Law and Economic History
From the point of view of economic history, the ideal way to study any institution of commercial law would be to compare the information contained in legal codes and treatises with the material relating to its application in economic life as manifested by actual contracts, letters, and business records found in archives and other repositories. In the case of the early centuries of the Islamic period, available sources unfortunately preclude such a procedure. Theoretical legal texts exist in abundance, but any corresponding documentary material is for all practical purposes non-extant. In order to determine the framework in which the trade and commerce of the early Islamic period was carried on—a trade known to have been active and important—we must of necessity rely on legal treatises for most of our information, while trying wherever possible to call upon whatever meager help other literary sources may provide.
In the absence of documentary and similar sources, the possibility of investigating the quantitative aspects of trade is all but eliminated. However, in those areas of trade which have been described as qualitative, such as the variety of goods exchanged, the specialization of the merchant class, and the complexity of business methods, legal and other literary sources provide a great deal of valuable information. It is with the institutions of partnership and commenda in the early Islamic period, two of the qualitative components of trade, that this study will be concerned.
Pooling resources, whether in the form of cash, goods, skills, or a combination of these, is one of the indispensable components of any extended commercial activity. In Islamic law, the partnership and commenda contracts are the two basic legal instruments by which this can be accomplished. Joseph Kohler, an eminent legal historian of the early part of this century, has asserted that the decline of Islamic commercial hegemony in the Middle Ages was due in a large part to the limitations placed by Islamic law on the development of associative relationships. Whether the role of commercial legal institutions was as decisive in the economic history of the medieval Near East as Kohler suggested is open to discussion; there can be no question, however, that the institutions of Islamic commercial law are factors to be considered before any judgment can be made concerning the economic growth and decline of the medieval Muslim world.
Historians of the commercial law of the medieval West generally agree that legal techniques not only reflected but also influenced economic practices. If we assume at least the same for the medieval Muslim world, then, in spite of the absence of archival documents, a thorough investigation of the major institutions of Islamic commercial law will not only be a chapter of "Handelsrechtsgeschichte," but may also serve as an indicator of the level and complexity of those fields of economic activity in which the institution was applicable.
Islamic Law and Practice
From the outset, one confronts the rather complex question of the nature of the shari'a (Islamic sacred law) and the fiqh (Islamic jurisprudence), and the corollary problem of the propriety of using Muslim legal treatises as a source for the investigation of economic and social institutions. Any assumed harmony between medieval Islamic law and the actual practice of that period has been brought into serious question, and even completely denied by severaleminent Islamists.
Beginning with the mid-nineteenth century, translations of a number of fiqh manuals into European languages made Islamic legal material available for the first time to Western legal historians and comparative legal scholars. Some of these translations were of questionable accuracy, and the non-Arabist legal scholars treating the material were unable to compensate for this deficiency by referring back to the original sources. In addition, these scholars approached the corpus of Islamic religious law on the assumption that it was a determining factor in the actual practices of the Muslim world, and attempted to impose some consistency within the material by applying their own concepts of legal classification to it. Two of the leading orientalists of the day, C. S. Hurgronje and I. Goldziher, reacted to what they considered to be a misconception and abuse of fiqh material by attempting to provide an analysis of the fiqh in its Islamic historical context.
Fiqh in their view is not, strictly speaking, law, and any attempt to treat it as such would inevitably be misleading. It is, rather, a religious doctrine of duties (Pflichtenlehre) claiming jurisdiction over every aspect of human life. The most important problems of civil, ritual, and criminal law are, in this respect, on the same level as formulae of greeting and amenities of table manners. Those aspects of life which the law encompasses in other societies and cultures form only one part of the fiqh and, therefore, according to this view, any purely legal approach to fiqh would lead to misunderstanding.
Furthermore, the fiqh had very little to do with actual practice. It was only of theoretical significance and was developed by the religious scholars according to the paradigm o£ what they considered to be a golden age, namely, the period of the first four caliphs. The religious-legal scholars saw their task as that of creating an ideal doctrine of how things ought to be; and the fact that things were not as they ought to be can be amply documented by the numerous references to transgressions of the law. The law was destined for the ideal society and did not take into account the needs of a corrupt world. As Hurgronje summed it up: "... all classes of the Muslim community have exhibited in practice an indifference to the sacred law in all its fulness, quite equal to the reverence with which they regard it in theory." By implication, he also ruled out the use of legal material as a source for any study except that of the development of Islamic theoretical legal doctrine as one of the important elements of Muslim intellectual life.
The works of Goldziher and Hurgronje on the nature and origins of Islamic law and jurisprudence were a great advance in their own day both in indicating how this material should be approached and in showing that the conventional Muslim view concealed rather than revealed the truth. Their view of the origins...
