Take Me to Khiva: Sharīʿa as Governance in the Oasis of Khorezm (19th–Early 20th Centuries)


In: Islamic Law and Society
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  • 1 Institute of Iranian Studies, Austrian Academy of Sciences

  • 2 Institute of Iranian Studies, Austrian Academy of Sciences


It is commonly held that the settlement of disputes in Muslim-majority areas depended on “judges” and “arbitrators” who settled disputes independently or facilitated reconciliation by means of mediation, either judicial or extra-judicial. In the resulting narrative, the state occupies only a marginal place, at best. In this essay, we contend that this narrative creates an artificial opposition between the Islamic state and sharīʿa, an opposition predicated on the reified notion of Islamic law as the exclusive preserve of Muslim legists (ʿulamāʾ), that is, a self-contained jurisprudence inaccessible to the uninitiated and to state officials. Materials from modern Khorezm call into question the application of this binary interpretive model and shed light on an Islamic juridical field in which Muslims brought their affairs to state officials because they had the power to coerce parties to achieve a settlement and enforce a decision, either formal or informal.


Abstract

It is commonly held that the settlement of disputes in Muslim-majority areas depended on “judges” and “arbitrators” who settled disputes independently or facilitated reconciliation by means of mediation, either judicial or extra-judicial. In the resulting narrative, the state occupies only a marginal place, at best. In this essay, we contend that this narrative creates an artificial opposition between the Islamic state and sharīʿa, an opposition predicated on the reified notion of Islamic law as the exclusive preserve of Muslim legists (ʿulamāʾ), that is, a self-contained jurisprudence inaccessible to the uninitiated and to state officials. Materials from modern Khorezm call into question the application of this binary interpretive model and shed light on an Islamic juridical field in which Muslims brought their affairs to state officials because they had the power to coerce parties to achieve a settlement and enforce a decision, either formal or informal.


Introduction


In 1951 we surveyed the district of Shumanai. [When we reached] the Lenin collective farm (kolkhoz) we wrote down the following story about events occurring in this area at the end of the nineteenth century. Jomart-Bay, from the Kyshlak tribe, arranged for his son, Tlegen, to marry the daughter of Babajan-Kotyr, of the same tribe. The betrothal was performed, and the customary dowry (kalym) was paid. According to sharia (po shariatu), Babajan’s daughter was already considered Tlegen’s legal bride (zakonnoi nevestoi), but she did not want to marry Tlegen because she was in love with another man, Amed the Uzbek. The lovers ran away from the native nomadic encampment (aul) to the Turkmens. Then Jomart-Bay asked the governor (khakim) of Jani-Kala, Orazymbet-Baytal, to [intercede] and bring back the bride. The governor, who did not want to take responsibility for this case because it dealt with a violation of sharia laws, turned to the ruler. The khan of Khiva presented this conflict to the chief justice (kazi-kalian). Into this troublesome case intruded the judge Bekbauly, a relative of Jomart-Bay, who had just completed his studies in a Khivan madrasa and had been appointed to the office of qadi in the Shumanai district. In the meantime, the fugitives were apprehended and brought to Khiva, where a hearing took place. The girl’s father, Babajan-Kotyr, and her brother, Erlenes-Naib, also came to Khiva. They offered to return the customary dowry to Jomart-Bay in exchange for the girl who, according to sharia, was already considered legally wedded to Tlegen (po shariatu uzhe schitalas zakonnoi zhenoi). The girl refused categorically to join Tlegen. According to sharia, the woman did not have the right to request a divorce, and, in this case, the husband did not agree to [a consensual separation]. Tlegen stated that if the girl did not want to marry him, then she must be judged according to sharia. He would accept whatever judgment [was given]. When they asked the girl’s father, he responded that a girl who violates the laws of sharia tarnishes the reputation of her father and must be judged according to sharia. At the insistence of the qadi Bekbauly, the chief justice sentenced both the girl and Amed to death. The girl requested that they kill her before Amed. Tlegen took a dagger and killed the girl before the people gathered there; then he killed the man. Before she died, the girl removed a golden earring and gave it to Tlegen.1

Shumanai is a district (raion) in Karakalpakstan, a region nestled between modern Uzbekistan, Turkmenistan, and Kazakhstan. It is named after a tributary of the Amu Darya river that flows in the northern part of the Khorezmian oasis in Uzbekistan. In the 1950s Shumanai was inhabited largely by Karakalpaks who, before Sovietization, were subjects of the Khanate of Khiva, which was ruled by the Qunghrat dynasty. The author of this text was Razambet Kosbergenov, a prolific anthropologist who participated in a Soviet archeological and ethnographic expedition that surveyed Khorezm.2 As a Karakalpak himself and someone who had access to local knowledge, Kosbergenov was tasked with collecting ethnohistorical material about Karakalpak communities that had lived under Qunghrat rule in the nineteenth and early twentieth centuries.3

Connoisseurs of Soviet ethnography will probably dismiss this text as exotic and ham-handed. Indeed, the account conveys a level of brutality and romanticism redolent of Soviet fiction that depicts the region as being ruled by cruel “Oriental despots” flanked by merciless ʿulamāʾ. The description of the death sentence is unrealistic: Islamic law would, of course, condone retaliation in cases of battery, homicide, and sexual offense. Nowhere, however, does one find cases in which aggrieved parties were urged to retaliate against runaway brides – at least not in legal materials from pre-colonial Central Asia. In fact, it was common among the Karakalpaks to buy back runaway brides.4 One is also struck by the attempt to sketch out sharīʿa in a few rough strokes. This excerpt suggests that Islamic law in Khorezm was applied à la lettre. In fact, a wife might secure a consensual separation (a khulʿ-type of divorce) in which she “redeems herself from the marriage for a consideration,”5 usually by relinquishing her deferred dower. Such a practice is well attested in local sources.6 Also, the qāḍī Bekbauly stands out as a gloomy character: freshly graduated from a Khivan madrasa, he plays the role of the solicitous judge who ensures the diligent application of the law. In addition, the expression “according to sharia” seems to serve a literary function. This was probably an editorial intervention by Kosbergenov or his informants designed to endow the story with additional rhetorical force.


We do not know whether the events described in this ethnographic account occurred precisely in the way in which they have been reported to us, but that is not our concern here. We chose this text for its intrinsic historical significance. Indeed, it sheds light on the system of conflict resolution installed in Khorezm by the Qunghrat dynasty in the nineteenth century and which was the subject of systematic recordkeeping during the period of the Russian protectorate (1873–1920). The peculiarity of this system lies in the central role played by the royal court (dargāh-i ʿālī) in Khiva in enforcing the settlement of disputes. For our purposes, it is important to note that, in Kosbergenov’s ethnographic account, the groom’s father did not bring the case to a local judge or turn to local notables, that is, to the Karakalpak tribal headmen (s or kadkhudās), who either mediated between the parties or arbitrated the case. Instead, he brought the case to a provincial governor who was not affiliated with the tribe,7 who then passed the case on to the khan. As the story goes, the Khivan ruler had the chief justice (qāḍī kalān) adjudicate the claim. This scenario is frequently encountered in cases reviewed in the Khorezmian provinces, where governors solved disputes, usually in an informal fashion.8 Less frequently did they defer to the khans. But another scenario, slightly more complex, also manifests itself: the plaintiffs filed their claims directly with the royal court in Khiva, and the court instructed agents to solve the dispute and report back. In this scenario, governors, judges, and arbitrators either held ­trials or achieved settlements only when the royal court instructed them to do so.


This essay is about the preeminent role played by the Qunghrat khans and their officials in the resolution of conflicts in the oasis of Khorezm and the neighboring regions. It argues that they were the primary judicial authorities to whom most petitioners addressed their claims. This essay thus sets out to explore an Islamic juridical field (in the Bourdieusian sense) in which Muslims brought their affairs to state officials because they had the powerto coerce parties to achieve a settlement and enforcea decision, either formal or informal. Significantly, a clear sense of hierarchy rather than a notion of jurisdiction informed Muslims’ choices to take legal action. Indeed, in modern Khorezm responsibility for the resolution of conflicts fell on the royal court and the governors, while qāḍīs did not adjudicate of their own volition. The earliest attestation to this peculiar state of affairs comes from the Russian envoy to Khiva Nikolai Murav”ev who, in 1821, noted that qāḍīs “do not have any right to hear cases … only conflicts of little significance” and when they do so “they have to report to the Khan about whatever wrongdoing and crime.”9 In fact, judges usually heard cases only when the royal court or the governors instructed them to do so, mostly in cases in which respondents denied a claim (inkār). As we shall see, a denial activated the transferal of a case to a qāḍī. We shall return to this topic and discuss the subordination of qāḍīs to Qunghrat court officials and their procedural limitations later.


The Qunghrats’ pattern of governance calls into question the conventional understanding of the relationship between sharīʿa and the state. Indeed, studies on dispute resolution in the Islamic world, especially in Central Asia, tend to give greater importance to legists than to the state, that is, the Muslim ruler and his representatives in court. It is usually held that the settlement of disputes in Muslim-majority areas depended on “judges” (qāḍīs)10 and “arbitrators” (ḥakīms)11 who settled disputes independently or facilitated reconciliation by means of mediation, either judicial or extra-judicial.12 In the resulting narrative, the state occupies only a marginal place in the judicial field.13 As a consequence, a number of important studies on the subject of Islamic law suggest that the state provided either a court of second instance, by offering a maẓālim appellate system,14 or a mechanism of governance that affected legal hermeneutics, by which it ultimately constrained juristic independence. The following quotation from the magisterial work of Wael Hallaq15 may help the reader to appreciate the force of our argument:


Aside from judicial appointments which were nominally, if not symbolically, hierarchical, the administration of justice was largely limited to the self-structured legal profession. If there was a hierarchy it was within the profession itself, and as in nature epistemic rather than political or social. Yet, the hierarchy within Islamic law was largely universal and self-sufficient, unlike the hierarchy existing in the judicial system of the nation-state, a hierarchy that ultimately reports to the higher political orders. The referential authorities of the qāḍī are other qāḍīs and muftīs. Hard cases were decided with the juristic assistance of the muftī, and appeals did not usually travel upward in a hierarchy, but were heard by the succeeding judge. And even when some complaints were made to the highest offices of the “state” (as happened in the Ottoman Empire), they were made directly and given – with explicit intention – the personal attention of the ruler. This was a personal form of justice, not corporate.


In a recent article devoted to the maẓālim tribunals in the Mamluk period, Yossef Rapoport calls the view that “the ideal form of Islamic law is independent of the state,” the “dominant paradigm.”16 Over the last years, however, several scholars have shown that this view is untenable for the post-Mongol history of the Muslim world. Indeed Guy Burak17 and Sami Ayoub18 have clearly illustrated the degree to which in the Ottoman period jurists conferred legal authority upon sultanic orders and thus how Islamic jurisprudence depended on the intervention of the sovereign and his court.


By building on this recent literature, we contend in this essay that the dominant narrative in the field of Islamic legal studies creates an artificial opposition between the state and sharīʿa, an opposition predicated on the reified notion of Islamic law as the exclusive preserve of Muslim legists (ʿulamāʾ), that is, as a self-contained juristic domain inaccessible to the uninitiated, and specifically, to state officials. While previous studies calling into question this binary interpretive model have focused exclusively on the Ottoman Empire, this article discusses the putative separation of sharīʿa from political power on the basis of material from Central Asia.


One may well object that any discussion of the dominant narrative in Islamic legal studies about the purported marginality of the royal court and its bureaucratic apparatus on the basis of sources from Khorezm is an enterprise doomed to failure. Indeed one of our reviewers remarked that


Khorezm was a relatively small region where most subjects of the khan could actually travel to Khiva to seek justice from the royal court. The literature the authors try to challenge, on the other hand, is based on evidence from the much larger Ottoman Empire. Going to the capital to seek justice from the court was virtually out of the question for the great majority of Ottoman subjects due to the vastness of the empire.


This sounds like a fairly commonsensical objection. But commonsense may not explain how a system of justice functioned in the past. It is of course true that an appeal to the royal court required travel. It was not the case, however, that people covered only relatively short distances to pursue justice: “Paris is well worth a mass”, as the saying goes. This point is clearly demonstrated in a mid-nineteenth century report about a Turkmen woman who lived on the coast of the Caspian Sea and who endured frequent beatings by her husband. She sought legal divorce. Doubting that she would be able to secure such a ruling from local Turkmen elders, she brought her case to Khiva, where “she requested and obtained a divorce from the Khan”.19 In this specific case, it seems, a divorce was worth facing the perils of difficult travel. Was distance the one and only factor that mattered for appellants when deciding whether or not to petition the royal court? The answer must be in the negative, as suggested by evidence from the Ottoman Empire. “Despite the expense and danger of travel,” James Baldwin reminds us, “some provincial petitioners, including some from as far as Egypt, journeyed to Istanbul to present their petitions in person.”20 In addition, the efficiency of postal communication in the Ottoman Empire allowed subjects to rely “on courier networks to transport their petitions to the palace.”21 We here begin to see that categories such as “small” and “big” or “far” and “near” are insufficient to make sense of a culture of legality. True, Khorezm looks like a small region on a map. However, in the nineteenth century, travel presented more challenges to the inhabitants of the Khorez­mian oasis and its surrounding regions than it did to Ottoman citizens who could avail themselves of infrastructures lacking in the Khanate of Khiva. Also, we know little about travelers’ perceptions and even less about the subjectivities of petitioning to, and appealing to, a Muslim ruler. Why should one assume that Karakalpaks living in nomadic encampments in the district of Chimbay imagined the Khivan royal court as “closer” than, say, Levantines in Egypt thought of the dīwān in Istanbul? Consider the case of one Sayyid Aḥmad Khwāja, a nephew of the Bukharan ruler Amīr Ḥaydar. Sayyid Aḥmad Khwāja, who was the governor of Nurata, set out for hajj in 1851. Despite his royal ­pedigree, Sayyid Aḥmad Khwāja was unable to exit the emirate and join the globalized routes of Muslim pilgrimage. His travelogue opens with a shamefaced story about venturing into the domains of the Khans of Khiva by hiring the wrong scout. If one is a Manghit dynast who never braved the world outside of the emirate, the wisest thing to do is to rely on a Turkmen guide, one would assume. But one should also make sure that such a guide is experienced, not one who does not know much beyond the road to and from his village. Thus, the introduction to Sayyid Aḥmad Khwāja’s travelogue is in fact a series of ­anecdotes illustrating how easy it was to get lost when travelling into Kho­rezm through the Kyzylkum desert without any reliable form of “local knowledge.” By peppering his sayyāḥat-nāma with contempt against the inefficient Turk­men guide and detailing the route from one well to another, Sayyid Aḥmad Khwāja teaches us an important lesson not only about diversification in the business of hajj in the age of the steam engine, but also about our, often misguided, assumptions about what it meant to travel in the past.22

This essay has four parts. The first offers a brief historical background on the Khivan Khanate and the establishment of the Russian protectorate. The second explains the governmentality that shaped the system of conflict resolution known in Khivan sources as ʿarḍ-dād. The third discusses some aspects of the court protocol during audiences at the Qunghrat royal court. The fourth addresses the mechanics of the system of conflict resolution as it is reflected in the available sources.


1 Background


In the early twentieth century, the chancellery of the Khanate of Khiva began systematically to preserve reports on matters pertaining to conflict resolution. Under Qunghrat rule, court attendants, governors, and legists operating in the major urban centers in the oasis of Khorezm addressed such reports to the royal court in Khiva and, specifically, to the office of the yasāwulbāshī.


This chancery output reflected a bureaucratic disposition that manifested itself following the Russian subjugation of the Khivan Khanate in the nineteenth century. In accordance with the Gandumiam Peace Treaty signed in August 1873, the Qunghrat dynast Muḥammad Raḥīm Khān II relinquished to the tsar the lands east of the Amu Darya, while retaining limited sovereignty over the territories west of the river. Russia’s subjugation of Khiva was similar, in certain respects, to the “protectorates” in North Africa. In 1881 the French intervened militarily and defeated the army of the Bey of Tunis in response to raids by the Khmir tribe into Algerian territory, which was part of the French empire and its overseas territories (Outre-Mer).23 Similarly, in Khorezm in 1873, the Russians decided to confront the army of the Khan of Khiva after the latter had sent his raiders into the Russian-ruled Kazakh steppe to pillage.24 Both France and Russia apparently were responding to a threat to the integrity of their dominion and sovereignty. In addition, the military operations that paved the way for France and Russia to expand their rule over Tunis and Khiva, respectively, were followed by peace treaties. In both cases, the treaty served to define legislatively the relationship between France and Tunisia and Russia and Khiva. The Gandumian (Chaghatay, Gandūmqān) Treaty, however, was a self-contained and vague set of regulations that did more to complicate than clarify the status of the Khanate of Khiva and its subjects vis-à-vis the Russian Empire.25 The indeterminacy of the Gandumian Treaty might reflect a purposeful political choice. Indeed, its vagueness endowed Russians with room to maneuver against the interests of the Khivans on subjects as complex as water rights.26 But this form of governance was far from unique in the age of European colonialism. As Kristin Mann and Richard Roberts note about the history of African protectorates, “significant ambiguities existed surrounding the legal authority that parties possessed to conclude these protection agreements and impose the new systems of colonial rule that developed.”27

There were also substantial differences between the Russian and French protectorates. Tunisia was home to several European communities, especially merchants: Italian and Maltese British subjects were living in Tunis when the Bey surrendered to the French army, the Italians outnumbering the British.28 By contrast, before 1873 the European presence in Khiva was conspicuous by its absence, despite the presence of mostly British and Iranian agents who spied for the British and Qajar empires. The oasis of Khorezm, and Khiva in particular, was also known to various European merchants, Orientalists, and adventurers. These figures did not, however, reside in the country. In sum, the largest nonnative community in Khiva and its environs at the time of the Russian invasion consisted of Iranians and Russians, mostly slaves of the Qunghrat dynasty. In Tunisia prior to the French-Tunisian treaty (called the Bardo Treaty), European subjects could count on the notion of extraterritoriality. In the capitulation treaties that he signed with most of the European powers in the Mediterranean, the Bey of Tunis relinquished his jurisdiction over European foreigners. Thus, subjects of Austro-Hungary, Italy, and Britain enjoyed legal immunity and could bring their affairs to their consular courts in Tunis. In this respect, too, Khiva was different. Russians were reluctant to install a resident with consular powers in Khiva, as they had done in Bukhara. Nor could they reach a decision on the issue of establishing justices of the peace in the territory of the protectorate, even though, during the first decade of the twentieth century, the community of Russian merchants had grown.29

The Russians did little to change the existing legal system in the protectorate. They did, however, hold the Khivans accountable when the latter heard complaints from or against Russian subjects. For example, if a Kazakh Muslim subject committed an offense in the territory of the Khivan protectorate, the aggrieved party would usually file a claim with the royal court in Khiva. Article 15 of the Gandumian Treaty required the royal court to report to the commandant in Petroaleksandrovsk (present-day To’rtko’l). The Russian official would write back to Khiva and instruct the royal court to hear the case. The case would then be transferred to a governor and, if the defendant denied the claim, to a judge or arbitrator. Every institution reported back to its superior: the judge to the governor, the governor to the Khivan royal court, the court to the commandant in Petroaleksandrovsk. The trial was the last link in a long chain of justice. We can trace this chain by following the surviving paper trail, which clearly reflects a process of bureaucratization that affected recordkeeping in the Khivan chancery.


One unintended consequence of bureaucratization was the increased visibility of dispute settlement in the documentary record. Indeed, the Russian takeover in Khorezm brought about a formalization of certain chancery practices, which otherwise would not have come down to us.30 One such practice consists of writing reports sent to the office of the yasāwulbāshī about the resolution of conflicts. These reports shed light on a legal system that operated in the region at least from the beginning of the nineteenth century. Since similar practices existed in the Emirate of Bukhara and the Khanate of Khoqand, this “system” may be regarded as representative of post-Chinggisid Central Asia.31 Such a system reflects a shift from earlier political configurations that centered on notions of shared sovereignty,32 to a highly centralized and bureaucratized state formation (whatever we may imagine this to be), which came into being in the wake of Nādir Shāh Afshār’s military campaign in Central Asia (1740).


It would be misleading, in our view, to explain the prominence of Qunghrat officials in the local system of conflict resolution in light of the so-called “nomadic political tradition,”33 often said to have informed patterns of governance in the khanates of Central Asia and beyond.34 Indeed, there is little of Chinggisid pedigree in the ways in which Qunghrat officials articulated their legal authority over the resolution of conflicts in Khorezm, unless one wants to superimpose a purported “nomadic steppe tradition” (as the cliché goes) on things Central Asian regardless, again, of the very meaning that we accord to such tradition. We learn from a Russian observer that prior to the rise to power of the Qunghrats “adjudication belonged exclusively to the clergy, but with the establishment of dynastic rule in the khanate, the clergy lost almost all its judicial power.”35 This statement suggests that the “system” that we see reflected in the available evidence in which the Khans of Khiva and their officials en-joyed more legal authority than the qāḍīs, was certainly an innovation of the ­Qunghrats, at least in the oasis of Khorezm. To be sure, the Qunghrats were a dynasty of Uzbek tribal origin. However, nothing in our sources suggests that their Turko-Mongol ethnicity mattered more than sharīʿa in the dispensation of ­justice.


Before we turn to a detailed discussion of the legal procedure in Khorezm known as ʿarḍ-dād (or simply ʿarḍ),a term that denotes a formal ceremony in which a subject submits a grievance to the ruler and files a claim with the royal court, two notes of caution are in order.36 First, as elsewhere in the Islamic world, a petition (ʿarḍ) represents a default mode of communication between the chancery and a subject, whether an officeholder or a member of the general populace. Indeed, any form of communication with the royal court, whether a plea of allegiance or a news report (wāqiʿa),37 was formulated as a petition and crafted in compliance with the requirements of this genre. However, under the Qunghrats, the terms ʿarḍ-dād and ʿarḍ were used specifically to denote a system of justice at the center of which were the khan and his court. It would be misleading to characterize this system as a “petitioning system,” a term that connotes a larger body of textual practices that includes, but does not coincide with, the legal institutions under consideration. Historians of Islam usually regard petitions as part of the maẓālim system, which made it possible for Muslims to seek redress when confronting official malfeasance. The term maẓālim is conspicuous by its absence in Khivan bureaucratese. In addition, under the Mamluks the royal court operated as a court of second instance.38 This was not the case in Khorezm, where Qunghrat subjects brought their claims directly to the court of the khan, without first filing their lawsuits with judges. In this context, the Khivan royal court seldom served as a higher court with powers of judicial review.


Second, and more important, Khivan subjects presented their complaints to the khan orally, not in writing.39 This marks a substantive and decisive difference from legal practices in other Muslim societies, which required that Muslims present their complaints to the ruler in form of a written petition.40 Of course, it is possible that the Qunghrat polity also welcomed written petitions and that Qunghrat chancellery practices may have been as elaborate as elsewhere in the region. The Qunghrats promoted a culture of documentation that has left us the richest repository of Arabic-script texts from Central Asia covering the period from the late eighteenth century to the establishment of Russian rule (1873), the so-called Archive of the Khans of Khiva. This archive contains numerous documents that can be called petitions.41

2 Governance (1800–1860)


Little is known about courtly life in Khiva and even less about justice in the oasis of Khorezm. There is no doubt, however, that the Qunghrats regarded ʿarḍ-dād as an efficient instrument in upholding and dispensing justice. That hearing the affairs of their subjects was an important part of Qunghrat governance is attested both by court chroniclers and occasional observers – Russian military officials and European travelers. Readers conversant with treatises on the Islamic theory of government (dawlat) and the genre of mirrors for princes may note that the ability to dispense justice (ʿadālat) has been one of the necessary attributes of the ruler since the beginnings of Islamic rule.42 Significantly, Khivan court chronicles from the early nineteenth century draw attention to the fact that listening to the claims of his subjects and settling their disputes is a central activity of the sovereign himself (the khan). These chronicles offer vivid accounts of such activities.


One of the first Qunghrat rulers, Muḥammad Raḥīm Khān I (r. 1806–25), who undertook several military campaigns to restore the territorial unity of Khorezm, paid frequent visits to different parts of the khanate, where he heard petitions and complaints from the public.43 By all accounts, this procedure was perceived by Khivan authorities as an important tool – together with military campaigns, resettlement policies, and maintenance of the irrigation system – to ensure that the new dynasty would establish its power within the new territories that were brought under control. Khivan chronicles provide many accounts of how the royal court operated as an itinerant system of conflict resolution that followed the process of consolidation of Qunghrat power in the region. In this scenario, Muḥammad Raḥīm Khān I acted in the capacity of peripatetic judge.


With the stabilization of political life in Khorezm, this legal practice became more institutionalized and thus more visible. The seeds of such institutionalization had been planted under Allāh Qulī Khān (r. 1826–42), most notably with the construction of a new royal palace in Khiva called Tāsh Hawlī (“Stone Courtyard”). On the occasion of this monumental project, the ruler commissioned the construction of a “chamber of petitions” (ʿarḍ-khāna) that was designed to allow the khan to receive the claimants and hear their grievances directly. The chamber was built so that the hearing would be “suitable to the royal status” of the rulers (pādshālīqgha lāyiq),44 whereas, previously, hearings took place at the royal court (kuhna arīkda [sic]), that is, in the apartments of the khan, without any special procedure.45 It is here that we can appreciate the importance of hearing the grievances of the populace for the Qunghrats: the dispensation of justice was not only a form of governance deployed to bring the ruler closer to the many concerns of the subjects, but also a physical and permanent attribute of sovereignty that was embodied in the architecture of the royal court.


A few mid-nineteenth-century texts exemplify the degree to which the royal court reacted to claims brought to the attention of the khan by the general public. The first one is dated to 1858 and illuminates a case in which a tribal headman was accused of the unlawful detention of a woman:


This is the royal order to Bīk-Fūlād Bī [endowed with] the vestiges of loyalty [to us]. A certain Yūsuf has now come here and claimed that you are keeping his wife at your home under duress (zūrlīq qilīb) and are not letting her go free. Now, if what Yūsuf says is true, you should return his wife to him. If you deny his claim (ūzgā sūzīng būlsa), you should both come to the royal court for a hearing (qamtū dargāh-i ʿālīgha kilīb) and solve [the conflict]. So orders this royal instruction (ʿināyat-nāma) that we wrote.46

The claimant, Yūsuf, was a layman who regarded access to the legal services of the royal court as a lever against the tribal headman (). Yūsuf probably understood that, had he filed a claim with a judge, the outcome would not have been favorable. A qāḍī might not have been in the position to summon a local notable such as Bīk-Fūlād Bī and hold a trial. Power relations mattered.


The second text elucidates the handling of homicide cases filed with the court of the khan:


This is the royal order to ʿAbdī. A certain ʿAvaḍ-Murād has now come to the royal court and appealed (ʿarḍ) to us, saying that he has a claim for blood-money against you (sanda khūn daʿwām bār dīb). Now, if what he says is true, you should both come to the royal court for a hearing (qamtū dargāh-i ʿālīgha kilīb) and solve [the conflict]. This royal order was written on 28 Jumādī al-Thānī 1277 [11 January 1861].47

Several observations of the ruler performing the ʿarḍ-dād at the royal court were recorded by Europeans who visited Khiva under various circumstances. One of the richest accounts comes from the pen of the Hungarian Orientalist Arminius (Ármin) Vámbéry, who happened to witness the hearings while staying at the residence of the ruler during his visit to Khiva in 1863:48

Because at this hour arz [< ʿarḍ], that is, an open audience, is held almost every day, in the khan’s residence, by the main entrance and everywhere we went, there gathered a crowd of visitors of all ranks, genders, and ages. They were all dressed casually; many women even came with babes in arms. Nobody’s presence was recorded, and those who gained admittance were therefore those who were best able to jostle .… [After a short wait in the waiting room], two yasauls respectfully took me by the hand, the curtain was raised, and I saw the khan of Khiva .… He was seated on the dais, which had a view of the terrace, leaning with his left hand on a velvet pillow and holding a small golden scepter in his right.49

This practice is also attested in Russian sources from the period preceding the conquest of the khanate in 1873. The account of one eyewitness who found himself in Khiva in the 1860s invites us to consider whether or not the ʿarḍ-dād was perceived as a “court hearing” (pravosudie):


Every day, around two o’clock, [the khan] goes to court to hear cases and complaints. In the summer quarters, court is held right in the courtyard, in which are arranged earthen couches; the khan sits on one of these, on a velvet pillow, leaning on his hand for greater comfort, and hears complaints.50

These accounts mention ʿarḍ-dād as an established legal practice in Khiva and as a distinctive feature of the khanate’s legal culture. These observations are strikingly similar to those found in local material, which emphasize that ʿarḍ-dād was regularly conducted with the participation of the khan and the khanate’s senior officials, in the 1860s and in the period following the Russian conquest of 1873. For example, the court historian Bayānī notes that Muḥammad Raḥīm Khān II (r. 1865–1910) spent an hour every day in his reception room, before sunset, dispensing justice (ʿadl-u dād mashghūl idīlār) by hearing petitions from the public.51 Further eloquent attestation of the importance of the ruler’s participation in the regular hearing of lawsuits is found in a description left by Bābājān Tarrāh (1878–1971), who served Muḥammad Raḥīm Khān II (r. 1864–1910) as court poet and scribe (mirzā).52 Describing the last years of the life and reign of the khan, the author reports that the deterioration of the ruler’s health, especially his partial paralysis, made the regular holding of the ʿarḍ-dād procedure very difficult.53 The khan himself, according to Tarrāh, proposed that the hearing of complaints from the public be delegated to the hereditary prince, Isfandiyār Töra. Clearly fearing rumors among the population and possible disturbances caused by the absence of the ruler, the khan’s retinue was able to ensure his continuous personal involvement in the procedure.54 As Tarrāh relates, a special carriage was constructed to bring the khan to the “chamber of petitions” immediately before the ceremony. During the reception of complainants, one of the court attendants, a certain Dawlat Murād, would prop up the khan’s back as he sat on his throne. “Thus,” concludes Bābājān Tarrāh, “Muḥammad Raḥīm Khān II heard the complaints of his subjects even within one year [of his death].”55

Khivan authors who report on long-term absences and illnesses of the ruler considered the complications that such situations caused for the hearing of complaints. In recounting Isfandiyār Khān’s frequent absences from the country, Ḥasan-Murād Laffasī informs us of the individuals who would replace the ruler and act as judges. Similarly, Tarrāh refers to physical difficulties that jeopardized the performance of the ʿarḍ-dād as one of the complications in governance faced by the court elite because of the aged Muḥammad Raḥīm Khān’s illness. The emphasis placed by local authors on the challenges posed to hearing the complaints is further evidence of the fact that the ʿarḍ-dād was a prominent function of the ruler.


3 Protocol


Settling disputes at the royal court required compliance with official protocol. The khan and other court officials who participated in the ʿarḍ-dād received complaints from the public and heard cases almost every day. The procedure, however, had a ceremonial aspect as well. There are two sources that may help us to recover some of the fundamental details of this ceremony as it was practiced at the court of the Khivan rulers at the beginning of the twentieth century. The first comes from Nil Lykoshin (1860–1922)56 and comprises part of the official report to the chancellery of the governorship-general in Tashkent, which he wrote after his first visit to the court of Isfandiyār Khān in his capacity of commandant (nachal’nik) of the Amu Darya Department in late May 1912.57 The second source was written in Chaghatay by a local jurist,58 Bābājān Safar ūghlī (Rus., Safarov). His description of the ʿarḍ-dād is found in his History of Khorezm (Khwārazm tāʾrīkhī), a work written in 1957, four years after the death of Stalin. This treatise elucidates the history of the region from the end of the nineteenth century to the beginning of the twentieth.59

Both narratives contain detailed descriptions of the protocol followed in the ʿarḍ-dād ceremony at court. Lykoshin’s account, from the perspective of a bystander witnessing the ceremony by force of circumstance, focuses primarily on its formal aspects.60 As a one-time observer of this procedure, Lykoshin offers only a snapshot of the event. His account obscures the ceremonial dimension of the performance and detaches it from its wider context, that is, the events preceding and following the ceremony. The author is inclined to see the ceremony as a primitive formalistic procedure that “reeks of the past”:


About six o‘clock in the evening, the usually deserted courtyard, decorated with tall columns in the Moorish style, suddenly perked up.... Sometime later, the harem door opened, whence Isfandiyār Khān Bahādur proceeded to the place where he sits to mete out judgment and punishment. Not far from the only entrance into the courtyard there is a small stone platform, covered with a large felt mat. The khan sits on the dais in Asian style, and before him they lay out an ancient gun in its case and a small hatchet, also old – these are the insignia of power. The khan wears an expensive gold-trimmed saber of the Asian type, and on his head, in place of the usual fur hat, he has an equally large hat of lamb fur, but with a red top; this hat is the equivalent of a crown. By the khan’s hand they place a kettle of green tea and a cup. Even before the khan’s entrance, a maḥram 61 takes up a position not far from the khan’s dais and stands perfectly still, with his head bare. From time to time, these maḥrams are silently replaced by others newly entered into the courtyard. The old man Yūsuf Yasāwulbāshī begins the ceremony .... The time for parsing the people’s complaints has come .... The khan’s subjects complain to him about each other and ask for the restoration of rights violated by others of his 


subjects. The petitioner, having entered through the door, stops at the entrance, quite far from the khan, so his complaint is pronounced in a very loud patter, the supplicant almost yelling, as if he hopes to prove the severity of his grievances and to penetrate the soul of the khan with his cries. The khan, having allowed the supplicant to finish his brief complaint, says only one word, turning to the Yasāwulbāshī. This is probably an order to sort out the case. The petitioner exits, another enters.62

Safarov’s description differs considerably from Lykoshin’s. It was not based on personal experience. Rather, the author probably conveyed common knowledge about the ceremony that was circulating among the inhabitants of Khiva. In fact, Khwārazm tāʾrīkhī was composed four decades after the fall of Qunghrat rule in Khorezm, long after the events described. Together with other historical works written in Khiva at this time, Safarov’s work may be categorized as a late development of what we may call vernacular historiography. A characteristic feature of his works is the attempt to continue the so-called Khivan historiographical tradition by maintaining the same structural elements and relying on both written texts and oral material.


At the same time, Safarov’s writings lack the flowery phrases characteristic of pre-Soviet Khivan historiography. He also avoids laudatory assessments of the actions and intentions of Khiva’s ruling circles. The greatest difference, however, concerns the exposition and layout of the material. Whereas traditional Khivan chronicles offer a sequential narrative of events in dynastic history organized around the rule of an individual sovereign, Safarov’s works offer aggregated material gleaned from a variety of sources (often with bibliographic information), but they do not always have a single, logically connected, and cohesive narrative outline. In addition, his account of the ʿarḍ-dād brings to mind the epistemological paradigms that are typical of Soviet-period Uzbek historiography. This is apparent in the author’s tendency to characterize certain administrative practices of the khanate as archaic and by his couching them in a discourse of corruption:63

To receive petitions from the public (fuqarālārnīng ʿarḍdārlārī), the khan dispenses justice (ʿarḍ-dād qīlādī) on a daily basis, sitting on his throne for one hour. Beside him sit the qushbigī, the mihtar, the naqib, the ātālik, and the shaykh al-Islām. The mīrshab, together with ten other people – the yuzbāshi and the jallāds – stand beside the khan with sabers bared. Two īshīk-āghā, armed with axes and knives, stand on either side of the gate, guarding the entrance to the reception room (ʿarḍ-khāna). Summoning the [next] petitioner (ʿarḍchī), the foremen (dahabāshī) with unsheathed sabers, lead him into the reception room, where the yasāwulbāshī stands between the khan and the petitioner, who stops thirty meters from the khan’s throne. [The yasāwulbāshī] conveys the petitioner’s greeting and his petition to the khan and transmits the khan’s questions and decision to the petitioner. So it occurs and has become the custom (ʿurf-ʿādat), that the khan should not communicate directly (ūz tūghrisīdān) with his subjects (fuqarālār).64

These passages from Lykoshin and Safarov offer a glimpse of early-twentieth-century practices and, specifically, recount an event that occurred during the reign of Isfandiyār Khān (r. 1910–18). Emphasizing the ancient origin of the ceremony that, in his words, “reeks of the past,”65 Lykoshin evidently assumed that what he saw reflected a long-standing legal practice taking place at the royal court. Similarly, Safarov’s characterization of the ceremony as “custom” (ʿurf-ʿādat) attests indirectly to the perceived antiquity of this practice.


Lykoshin and Safarov illuminate two key elements of the ʿarḍ-dād that point to the peculiarity of the institution. The first element, which is procedural, concerns the manner in which petitioners appealed the ruler. Claimants always petitioned the khan orally and directly. Similarly, the ruler’s response to a particular petition was delivered orally, through the medium of the yasāwulbāshī. It is tempting to see in the oral dimension of such petitions a manifestation of earlier juridical practices, when the khan heard public grievances. Such practices are attested during the rule of Muḥammad Raḥīm Khān I. But there is another aspect to orality. Addressing the khan orally was consistent with the peculiar etiquette of communication between sovereign and subject. This etiquette implies a direct personal communication, thus symbolizing the expression of personal homage to the ruler and a humble willingness to put the decision on his question (as well as his fate) in the hands of the ruler.


The second key element of the ʿarḍ-dād is the centrality of the yasāwul­bāshī. This element is clearly institutional, for his function was not limited to attending the ceremony or to serving as an intermediary between the khan and the petitioner. The yasāwulbāshī and the special office under him (yasāwulbāshī khidhmatī) would be responsible for initiating and overseeing all subsequent investigations into petitions and their resolution, as well as for handling and archiving the documentation.


The regular hearing of public claims had to be ensured, even during periods when the supreme ruler found himself outside of the khanate. The Khivan historian Ḥasan-Murād Laffasī informs us, for example, that, during his periodic visits to St. Petersburg for an audience with the Russian emperor, Isfandiyār Khān appointed proxies for receiving public complaints (fuqarānīng ʿarḍ-dādī ūchūn).66 This same practice was also used by the khan when he found himself outside of the capital in extraordinary circumstances.67

4 The Yasāwulbāshī Office


As we have seen from the accounts of Lykoshin68 and Safarov,69 the yasāwul­bāshī took part in the ʿarḍ-dād ceremonial at court and conferred on this institution a symbolic status. He acted as an intermediary by transmitting the content of the petition to the khan and by conveying to the subject the decision of the ruler.70 In addition, the yasāwulbāshī played an important role in the resolution of disputes. Narrative sources and chancellery documentation are both clear that the yasāwulbāshī not only asked the supplicants about the content of their petitions but also referred the supplicants to other Qunghrat officials who would investigate the case and oversee the settlement of the dispute.71

4.1 Instructions


After a plaintiff had filed a claim with the royal court, the yasāwulbāshī would write an instruction called fatak.72 Conventionally addressed to the disputing parties, the instruction stipulated the appointment of a special attendant (yasāwul) who, acting as a plenipotentiary court representative, escorted the plaintiff back to the locus rei, initiated the investigation with the help of local Qunghrat officials (governors, legists, and notables), and facilitated the resolution of the conflict. The results of the investigation, together with the stipulations of the settlement, were then brought to the yasāwulbāshī office and recorded, in brief, on the reverse of the fatak. These written reports were deposited at the office of the yasāwulbāshī as evidence, in the event of a future reopening of the case. The outcome of dispute settlements was duly recorded also in special registries (daftars), containing the names of claimants (dādkhwāhchīlār) and stewards, and some basic information about the claim, as well as a summary of the resolution of the conflict.73 Thus, pace Lykoshin, there is sufficient evidence that there were chancellery and archive practices associated with this system of conflict resolution. The fatak paper trail and the ensuing bookkeeping, of course, could not be produced without the clerks known as dīwānīs. The yasāwulbāshī also had at his disposal a handful of guards (nawkar) appointed to escort the plaintiffs who filed their claims with the royal court. In 1873 the Russian Orientalist of German origins, Aleksander Kun, produced a survey of the political and administrative organization of the khanate in which he noted that


the yasāwulbāshī disposes of a few assistants, the so-called yasāwuls. As soon as he receives an order from the khan to investigate a case, he [the yasāwulbāshī] dispatches one of his assistants together with the claimant to the place in which the wrong occurred. At the end of the inquest the yasāwulbāshī collects from the claimant 3 ½ tenga, i.e. 70 kopecks for every 19 kilometers covered while on duty.74

In sum, the yasāwulbāshī presided over an “office” called, in Khivan bureaucratese, khidhmat. This office occupied a separate room in the khan’s residence.75

The following example illustrates how the yasāwulbāshī appointed a guard as attendant (yasāwul) and instructed him to settle the case by means of a fatak. The fatak sheds light on a conflict that arose in the wake of an engagement. When the groom’s father failed to deliver the deferred dower to the bride’s family, the latter filed a claim with the royal court in Khiva. There the yasāwulbāshī issued the fatak and entrusted it to the guard. In the terse report written on the reverse of the document, the guard indicates that he assembled the parties and persuaded the groom’s father to pay the deferred dower and commit to the defrayal of other wedding gifts. The guard’s note also suggests that the agreement was solemnized before a qāḍī in the form of an acknowledgment (iqrār) made in the presence of two witnesses. The certificate in question was, no doubt, a marriage contract.76

[Recto]


Saʿādat Bīka, daughter of Muḥammad Safā, and Khāl Murād, son of Khudāy Bīrgān, are engaged (fātiḥa-khānd ītib). Although the [bride’s parents] received thirty ṭillā as [part of] the customary dower (qalīng pūlī), the [groom] failed to pay the remaining sum and other liabilities relating to the wedding (qālgan tūyāna lawāzim). He avoided providing explanations, and four years have passed without his saying anything. For this reason, [Muḥammad Ṣafā] filed a claim against the [groom’s side]. On this basis, let the parties come to the royal court of our lord, may his rule last forever, together with Sulṭān Yūzbāshī yasāwul, and settle the case. The attendant’s fee should not exceed two tanga for each farsakh. This instruction was drawn up on Tuesday, 9 Shawwāl 1328 [14 October 1913].


[Verso]


Saʿādat Bīka, the daughter of Muḥammad Ṣafā b. Yaʿqub Bāy, who is a member of the Īsh Niyāz Bājbān community, returned to Khāl Murād, the son of Khudāy Bīrgān b. ʿAwaz Muḥammad, who is a member of the same community. [This happened] in Manāq.77 [The parties] then agreed on the wedding ceremony (tūy ītib birmāk) and [the bride’s party] received [the deferred] customary dower (qālīng mālī). Khudāy Bīrgān said that he will deliver to Muḥammad Ṣafā new clothes together with other wedding gifts (ṭūyānalār). This [promissory note] was notarized (iqrār yāzīldī) in the presence (shāhidlarī) of the yasāwul and Gadāy Niyāz Bābā b. Ḥamīt Niyāz.78

Generally speaking, in nineteenth-century Central Asia a wedding consisted of three rituals. One was the betrothal. By reciting the opening sura of the Qurʾān (fātiḥa), the bride and the groom commit to the wedding. The second was the solemnization of the marriage (nikāḥ) in the form of a contract, usually before a mullah.79 The third was the celebration (tūy).80 The three rituals took place at the home of the bride, but the expenses of organizing the celebration fell exclusively on the groom’s family.81 Such expenses, called tūyāna, consisted mainly of gifts to the bride’s family. The groom’s family also paid a dower (qālīng), which included a sum of money as well as clothes, jewelry, etc. Apparently, our sources do not distinguish between Islamic and customary dower, and we are led to infer that, in Khivan bureaucratese, qālīng was understood as, and used as a synonym of, mahr.82 One would expect the dower to be paid directly to the bride and thus become her property.83 However, our sources show that qālīng was usually paid to her parents. Khorezmian jurists opined that such payment should be regarded as temporary. That is to say, the dower was given in trust (amānat) to the parents, but the bride would recover her property after the solemnization of the marriage.84

4.2 Rescripts


Writing practices connected to the ʿarḍ-dād went beyond the fatak genre. Quite a few rescripts were addressed to the yasāwulbāshī office and stored there. They show that a provincial governor (ḥākim) might inform the yasāwulbāshī office in detail of the progress of an investigation into a claim filed with the royal court by reporting whether the parties to a dispute had resolved the conflict, or, less frequently, if one party intended, out of dissatisfaction with the course of the proceedings, to return the case to Khiva (Khīwaga bārurman dīb; dargāh-i ʿālīlarga bārurman).


In July 1912, for example, the governor of Urgench reported to the yasā­wul­bāshī the settlement of a dispute concerning the disposal of water shares. The text demonstrates how the resolution of a conflict often required the participation of several actors representing different social forces. After a claimant had submitted a petition to the royal court in Khiva, the yasāwulbāshī appointed a guard to act as attendant. The latter did not act alone. He convened a hearing, probably in Urgench, in the presence of both the governor and the representatives of the community to which the parties belonged. The local notables who represented the locale no doubt had access to some kind of privileged knowledge – they must have known the details of the dispute, hence their attendance. The following text shows how the attendant and the governor pushed the parties to a settlement and sanctioned it:


Let it be known to the office of Muḥammad Maḥram Yasāwulbāshī, refuge of the vizierate (wizārat-fanāh) and repository of nobility (najābat-dast­gāh), our lord (āqā), that a certain Muḥammad Yaʿqūb from Chātkūfrūk went to the royal court (dargāh-i ʻālī) and submitted a petition (ʿarīḍa) [claiming] that Bābājān, Ṣābir, Dūndī Bīka, Karīm Birgān, Qālandār, and Saʿādat Bīka do not let water flow into his water canal (suv yūlī). He also mentioned that these individuals had assaulted him and his brother. [The royal court thus] appointed Muḥammad Sharīf, the guard (nawkar) of ʿAbd al-Sattār Says85 [to the office of] attendant (yasāwul). [Muḥammad Yaʿqūb] drove [the attendant to the locale]. The latter let the above-mentioned [individuals] reach a settlement (madhkūrlārnī yarāshdīlār) before us, together with the representatives of the local community (ahl-i īlāt būlūb). I wrote this notification (khaṭṭ) to inform your office on 27 Rajab [1330] [12 July 1912].86

Governors wrote such rescripts for various reasons. A deep sense of accountability no doubt shaped such practices, but the crafting of rescripts also acquired importance when a conflict affected the public. In the following case, a Turkmen appealed to the royal court in Khiva about a robbery. The royal court appointed a guard who proceeded to mediate the case. In the presence of the governor, the guard organized a public hearing with the headmen representing the communities of the two parties. A settlement was reached, but it seemed insufficient to prevent further escalation of the conflict. The notification of the settlement addressed to the office of the yasāwulbāshī thus acquires the status of a pledge indicating that the parties assumed responsibility to avoid new conflicts. From this we may infer that, in this case, the actors in this dispute must have regarded the involvement of a sharīʿa court as less effective than the royal court in achieving the purpose of avoiding further conflict.


FIGURE 1
FIGURE 1 A governor’s report to the yasāwulbāshī about the settlement of a dispute, TsGARUz, f. I–125, op. 1, d. 498, l. 94. Courtesy of the Central State Archive of Uzbekistan.


Citation: Islamic Law and Society 24, 1-2 (2017) ; 10.1163/15685195-02412p02

Let it be known to the yasāwulbāshī, the pivot of glory and happiness, our lord, that a certain Gildī Muḥammad, a Choudur,87 claimed (dīb) that, in his absence, during the night, a certain Qūshān and ʿAna Muḥammad broke into his house and robbed him of three hundred manāt. Accordingly, ʿAyd Bāy, the guard of Ghāyib Yūzbāshi, was appointed [by the royal court] as attendant. [The latter, together with] the kadkhudās of Gildī Muḥammad and his opponents (sūzīnīng daʿwāgarlārī)―Qūshān and ʿAna Muḥammad―came [before me] and reconciled the two parties (īkkī ṭarafnī riḍālīqgha yitkūrdīlār). And now, in order to avoid further disturbances among the people (fuqarālārnī halāk būlmāslīqī wajhīdīn), this notification was entrusted to the guard. We inform your office about this event. This report (khaṭṭ) was written in the year 1335 [1916–17].88

4.3 The Governors and the Qāḍīs

The yasāwulbāshī office produced reams of paper attesting to the participation of qāḍīs in the system of conflict resolution in Khorezm under Qunghrat rule. Rescripts to the yasāwulbāshī indicate that, after the issuance of a fatak precipitating the procedure we have illustrated in the preceding sections, the defendant’s denial of the claim would lead the governor to activate the judges and thus transfer the case to them. In addition, while governors often transferred cases to the judges, it was usually the former alone who were held accountable for the resolution of the conflict and thus reported back to the royal court in Khiva. This suggests that qāḍīs generally held a position in the hierarchy lower than that of the provincial governors. Let us test this proposition.


A certain Ūrāḍ Bāy from the city of Gurlen owed two hundred ṭillā to one Īsh Murād. According to a preliminary agreement, Ūrāḍ Bāy was required to pay Īsh Murād thirty ṭillā and entrust to another man, Muḥammad Yūsuf, a horse valued at forty ṭillā. The creditor, however, did not treat this payment as part of the debt. Consequently, Ūrāḍ Bāy decided to take legal action against both Īsh Murād and Muḥammad Yūsuf and traveled to Khiva to file his claim. An attendant escorted the claimant to meet the respondents. Muḥammad Yūsuf probably denied that the payment of the horse was connected to Ūrāḍ Bāy’s debt to Īsh Murād. The lawsuit was then transferred to a qāḍī, before whom, after Ūrāḍ Bāy was unable to produce evidence, Muḥammad Yūsuf swore an oath and won the case. By contrast, the claim concerning the thirty ṭillā was heard on the spot. It is unclear who solved the dispute, but the attendant reported to the royal court that the claim was relinquished.


FIGURE 2
FIGURE 2 Yasāwulbāshī’s instructions (fatak) to Jumʿa Qulī Yasāwul, TsGARUz, I–125, op. 2, d. 633, l. 53. Courtesy of the Central State Archive of Uzbekistan.


Citation: Islamic Law and Society 24, 1-2 (2017) ; 10.1163/15685195-02412p02

[Recto]


Ūrāḍ Bāy from Māylī Changul owes two hundred ṭillā [to a certain] Īsh Murād from the citadel of Khiva. [The debt has been] recorded (khaṭṭlī). [Ūrāḍ Bāy] entrusted to [a certain] Muḥammad Yūsuf from Māylī Changul a horse that was valued at fifty ṭillā, as part of his debt (qarḍgha birmākchī būlūb). He also paid thirty ṭillā [in cash] to the aforementioned Īsh Murād. [Nevertheless], the payments were not treated [as covering the debt], and, as a result, [Ūrāḍ Bāy] is still held liable to pay two hundred ṭillā. For this reason, [Ūrāḍ Bāy] has filed a claim (daʿwā) against these individuals. Let them come to the royal court together with Jumʿa Qulī Yasāwul, the guard (nawkar) of Bahādur Bāy Īshīk Āqāsī, and resolve [the dispute]. The attendant’s fee is four tanga per parasang. This instruction was written on 17 Dhū l-Ḥijja 1328 [20 December 1910] to convey the royal order (amr-i ʿālī) of our lord, may his rule last forever.


FIGURE 3
FIGURE 3 The attendant informs the yasāwulbāshī about the resolution of the conflict, TsGARUz, I–125, op. 2, d. 633, l. 53 ob. Courtesy of the Central State Archive of Uzbekistan.


Citation: Islamic Law and Society 24, 1-2 (2017) ; 10.1163/15685195-02412p02

[Verso]


This claim was transferred to a sharīʿa [court]. With respect to the horse valued at fifty ṭillā, Muḥammad Yūsuf took an oath. The claim against the aforementioned Īsh Murād concerning thirty ṭillā was not heard in a sharīʿa [court]. [The dispute] was resolved and [the resolution] was notarized (ṣaf būlūb wa khaṭṭlāshūb). [The royal court] was informed on 22 Dhū l-Ḥijja 1328 [25 December 1910].89

Conflicts over water rights were common in the oasis of Khorezm. The following example reflects a conflict between two communities (dawr) of water-­users living along the banks of the lower reaches of the Qūshbigī Yāf canal,90 a stream that flows northwest from Lavzan, the latter an important tributary of the Amu Darya.91 On behalf of one community, two individuals filed a lawsuit with the royal court, claiming that the other water users had not fulfilled their duties of maintenance for the last two years. In Khorezm, maintenance of the irrigation system consisted of two main activities, saqa qāzū and ābkhurī qāzū. The first activity, which involved cleaning the upper channels (saqa) of a canal, was under the direct supervision of the central administration; the second activity, which involved cleaning the tributaries (ābkhurī), was carried out by the local communities.92

The communities of water users were required to organize this maintenance in accordance with established practices (taʿāmul). In this case, the claimants lamented that, by neglecting its duties, the neighboring community impeded the flow of water to the lower reaches of the canal, thereby complicating the irrigation process. In an attempt to resolve the conflict, the yasāwulbāshī ordered a governor to make further inquiries into the case. The governor was clearly endowed with powers to assess the veracity of the claim. If the claim was valid, he was expected to enforce maintenance obligations. If the respondents entered a counterclaim, the governor would transfer the case to the qāḍīs. Note that the formula used to describe this last procedure – “we entrusted it to the sharīʿa” (sharīʿatgha qūshdūk/sharīʿatgha tāpshūrdūk) – means that the case was transferred to local judges who would treat the dispute according to the probative procedures of Islamic adjudication. This does not mean, however, that, the governor (or the attendant) did not hear cases according to sharīʿa. It means, rather, that the counterclaim triggered the qāḍīs’ implementation of probative procedures, i.e. (1) to request that the plaintiffs produce testimony, (2) to invite the respondents to swear an oath, or (3) to ask the parties to bring legal opinions in support of their position. The implementation of such procedures was clearly the prerogative of qāḍīs. However, it should be mentioned that nothing in our sources suggests that governors (or attendants) implemented either customary laws or a body of laws that was regarded as non-sharʿī.93 They point, instead, to a procedural specialization of qāḍīs within the Islamic juridical field whereby such specialization was regarded (by jurists as well as by scribes in general) as a distinct activity, even if it was not discretely discontinuous from the sharīʿa applied by representatives of the royal court.


FIGURE 4
FIGURE 4 Muḥammad Yaʿqūb Bāy b. Jabbār Qulī Maḥram’s report to the yasāwulbāshī about the outcome of a dispute heard by qāḍīs in Manāq, TsGARUz, f. I–125, op. 1, d. 498, l. 44. Courtesy of the Central State Archive of Uzbekistan.


Citation: Islamic Law and Society 24, 1-2 (2017) ; 10.1163/15685195-02412p02

Our source basis, and this document in particular, also shows that legal actors in Khorezm were aware of the legal instruments at their disposal. As soon as the respondents realized that the plaintiffs would produce testimony and win the case, the former informed the governor, Muḥammad Yaʿqūb Bāy b. Jabbār Qulī Maḥram, that they would take the case to the royal court.


Let it be known to the office of the yasāwulbāshī, the refuge of the vizierate, our lord, that Bābājān and ʿAbdu Karīm from Manāq [claimed that] above their community (dawr), on the banks of the upper reaches of the Qūshbigī Yāf canal, [there is a group of people] that disposes of twenty water-shares ()94 under the supervision of Allāh Bīrkān Mīrshab and Nāwāḍā Mīrāb. During the last two years the latter group has not carried out the maintenance works (qāzūshmāydūr) in the lower reaches of the canal (āyāq). Since ancient times (qadīmdīn), it is established practice (taʿāmul) that all water users should clean the local ditches proceeding from the lower reaches toward the main stream (sāqā). [As a result,] you ordered (būyrūq) that the aforementioned people be questioned and [if the claim is found to be sound], make them clean the canal according to the ancient practices. [You also established that,] if the [respondents] enter a counterclaim (bāshqa daʿwālār), the dispute must be heard at a sharīʿa [court]. We thus arranged for a hearing according to Islamic law. The qāḍī-īshāns from Manāq, who are skilled in sharīʿa, ordered the appellants (āriḍa-gūy)95 to produce their witness (guwāh). When the appellants were about to bring their witness, [the defendant] Allāh Bīrgān Mīrshab stated that he intended to go to Khiva (Khīwāgha bārūrman dīb) [and present the dispute to the royal court]. In wishing you well, we wrote this notification (khaṭṭ) to inform you about this [event] on 22 Jumādā al-Awwal 1335 [16 March 1917].96

Documentation originating in the office of the yasāwulbāshī indicates that there was a procedural distinction between the way in which conflicts were resolved by royal court attendants and governors, on the one hand, and by judges, on the other. One might say that the royal court attendants and the governors represented a tribunal of “equity,”97 a quick way to dispense justice, while the qāḍīs followed the more elaborate rules of procedure and evidence typical of Islamic law.


In addition, one often observes that governors extorted a confession (iqrār) under duress (siyāsat), a procedure that the qāḍīs did not use. Several rescripts, however, complicate our effort to distinguish the law followed by governors from that followed by qāḍīs. In some cases, royal court attendants and governors informed authorities in Khiva to apply the sharīʿa – or this is at least what sources suggest. The next document deals with a dispute settled by a governor. A relative of a dead man filed a claim with the royal court and suggested that an assault might have caused the death. The court ordered the governor to make an inquest and settle the dispute. The governor summoned the relatives of the deceased, who stated that the man had been seriously ill before the fight; for this reason, they had no claim against the respondent. The claimant thus relinquished his claim, and the respondents received a release:


Let it be known to the office of the yasāwulbāshī, refuge of the vizierate and repository of power, our lord, that a certain Ḥaqq Muḥammad and a certain Sharīf from the community (qawm) [headed by] Mullā Yūsuf Āqsaqāl in Shāhābād98 had a conflict. Because of the death of Sharīf, we [proceeded] in accordance with your instruction (būyrūgh) to investigate the claim [filed by his relatives] (ālārnīng daʿwālārīnī), to resolve the conflict according to Islamic law on site (shūl ṭarafda sharīʿat farmāyishī bīla) and report to [your office about the resolution]. We therefore summoned and questioned the heirs (warathalārī) of the deceased Sharīf, [namely] Jumʿa Niyāz and Qurbān Bīka, [respectively] the son and the wife of Sharīf, together with his brothers, Rajab Bāy and Mullā Īsh Bāy. His heirs stated that Sharīf had quarreled violently [with Ḥaqq Muḥammad] three days before his death and that he was also sick (kasal). They thus acknowledged the relinquishment of the claim (daʿwāmīznī ūtdūk dīb iqrār qilīb) against Ḥaqq Muḥammad. Subsequently, Jumʿa Niyāz, son of Sharīf, acting on his own behalf (ūz ṭarafīdīn) and as proxy (wakīl) of his mother, Qurbān Bīka, with the testimony (shahādat) of his witnesses (guwāhlār), Yūsuf Āqsaqāl and Rajab Bāy,certified (khaṭṭlāshtūrūb) before the qāḍī-īshāns of Shāhābād the death (mawt) of his father and the relinquishment of his claim. This is the event (ṣūrat-i wāqiʿa) that was recorded on 27 Shaʿbān 1336 [7 June 1918] and was sent to your office.99

The following rescript exemplifies how difficult it is to disambiguate the law applied by the governor from the law followed by the qāḍīs, both referred to as sharīʿa. When her husband was unable to consummate marriage due to sexual impotence, a woman declared her intent to divorce him, a decision that led to a violent altercation between the spouses’ families. The bride’s father submitted a petition to the royal court and filed a claim for battery and injury. The office of the yasāwūlbāshī instructed the governor (ḥakīm) to deal with the conflict. The latter did so, as the text emphasizes, by hearing the case “according to Islamic law.” In the absence of additional empirical information, it is unclear what the governor meant by this. He certainly urged the parties to reach a settlement, as we have seen governors do in other cases. During the hearing, however, the respondents must have manifested dissatisfaction with the stipulations proposed by the governor and denied the claim. The established procedure in such cases required that the governor transfers the case to the qāḍīs. Things seem, however, not to have changed substantially with the involvement of the judges. Unhappy with the outcome, the husband declared his intention to file a counterclaim with the royal court. This course of action left the governor no choice but to send the parties to Khiva.


Let it be known to the office of the yasāwulbāshī, refuge of the vizierate and repository of nobleness, our lord, that a certain Qurbān Dūrdī Qarādāshlī had appealed to the royal court (darbār-i ʿālīlārīgha ʿarḍ ītib) and was entrusted with an instruction (nishāna); his daughter Bāyrām Sulṭān decided to divorce (āyirmāqchī) her husband (kuyuw)100 due to the latter’s failure to consummate the marriage (martnīng sharīʿat īshīgā yārāmāghān sabablī).101 [As a result,] Ārtūq Nīyāz, Ūrāḍ Nīyāz, Mullā Jūmʿa, ʿĀshīr, and Khwājam Birdī beat (ūrūb) Qurbān Dūrdī’s daughter, pulled her hair, and caused bodily harm (jarāhatdār ītib). On this account, the claim (daʿwā) of the aforementioned individuals was heard according to sharīʿa. Because [the parties] did not reach an agreement (yutūshmagāndīn kiyīn), I transferred [the case] to the judges (sharīʿatgha qūshūb). However, when the groom appeared before them (kuyuw ṭarafī sharīʿatgha bārgānda), they announced that they would go to the royal court (dargah-i ʿālīgha bārūrman). For this reason, I have summoned the aforementioned [individuals] and dispatched them to your office. This petition (ʿariḍa) was registered on 19 Dhū l-Ḥijja 1334 [17 October 1916].102

This text sheds light on the culture of accountability that informed the production of such rescripts. The governor’s main concern was to inform the royal court that he and his subordinates, that is, the qāḍīs, had done everything in their power to settle the dispute. Indeed, the fact that the parties would turn once again to the royal court meant that the governor had failed to comply with the instructions that he had received from the office of the yasāwulbāshī. His mentioning that he had heard the case according to sharīʿa may well have been a rhetorical move to claim that he had acted lawfully, that is, without making use of discretionary powers.


Conclusion


The ʿarḍ-dād system has both practical and symbolic significance. The latter manifested itself in the ritualization of the ceremony, which reflected the khan’s willingness to delve into the concerns and needs of his subjects and to administer justice. For subjects throughout the khanate, this procedure was a unique opportunity to meet their ruler, convey their complaints to him personally, and receive assistance in the resolution of their disputes. It is not by accident that Lykoshin characterizes the procedure as “a ceremony of singular service to the people, which gave the khan the reputation of being available to each of his subjects, personally listening to their complaints and restoring justice through his orders and decisions.”103 The proximity of the Qunghrat subjects to the authorities in Khiva was not illusory but real. The Russian Turkologist Aleksandr Samoilovich, on a mission to Central Asia in 1906 and 1907, noted that “the Khivan khan administers his people directly: every day he holds trials and dispenses justice, and every Khivan [subject] can attend his audience, unlike the Bukharan emir, who keeps himself far removed from his subjects behind a wall of officials and paperwork.”104

The motivations that prompted the populace to file their claims with the royal court varied considerably. They usually reflected the widely shared perception that agencies in Khiva were more powerful than provincial officeholders, say a qāḍī, and that the royal court’s sanctioning of a ruling would ensure its execution. This state of affairs manifested itself well beyond the borders of the Khanate. Qunghrat officials, for example, solved conflicts among the Kazakhs living in the Ust Yurt plateau and on the banks of the Uil river, who were formally Russian imperial subjects.105

To be sure, in Khorezm, as elsewhere in the Islamicate world, most claims were heard and resolved informally. The subject of this essay – the royal court’s role in the resolution of conflicts – accounts for only a fraction of what occurred in villages and provinces, away from Khiva, where local notables and elders regularly settled disputes. Many such conflicts that never made it to Khiva were resolved, instead, by provincial governors who had the power “to adjudicate small cases conclusively”, but also “to arrest criminals”, “deprive them of their freedom”, and “carry out physical punishments in cases involving ordinary people”.106

Deeds of acquittal (ibrāʾ) and amicable settlement (ṣulḥ) notarized by qāḍīs represent the lion’s share of legal documents that surface today from private collections in Khorezm.107 Such deeds of acquittal probably reflect the resolution of conflicts that first occurred informally, without the aid of a governor. Nor do we have evidence that qāḍīs participated in the achievement of such settlements. Indeed, it is likely that qāḍīs acted in these cases as mere notaries who certified settlements that had taken place prior to their crafting the deeds of acquittal. There is also, of course, the possibility that such amicable settlements were produced to secure the rights of a number of individuals who in fact never took legal action against one another. To say that informal settlements were integral to the local legal “system” is to state the obvious. However, all these observations do not detract from the argument that power relations among state officials mattered. Qāḍīs were subordinate to representatives of the royal court, serving as deputies for Khivan officialdom. As noted, parties would not bring their affairs to a judge unless they had agreed previously to have their dispute settled by a qādī, most probably in the hope of avoiding the expenses associated with an appeal to the royal court.108 Equally, qāḍīs would more often than not hear cases only when ordered to do so by a representative of the royal court. Consider the following example. On 14 November 1916 Aman Gildī Dīwānbīgī, a prominent official in Khiva under the rule of Isfandiyār Khān, wrote to a qāḍī and instructed him to forgive the debts of a certain Bīrdī Shakūr, who had passed away. The qāḍī was ordered to send his own trustee (amīn), together with one Bābājān, the guard of Dawlat Bīk Īshīk Āqāsī, to a locality called Ālāchalī, to estimate the inheritance of the debtor and to sell his possessions in the presence of the creditors. Then, the trustee and the guard would divide the money among the creditors according to Islamic law (sharīʿat bīrlān). Creditors who were also Russian subjects would be paid before Khivan subjects so that only the remaining sum would be divided among locals. Aman Kildī Dīwānbīgī concluded his order by requesting that the qāḍī report to him about the results of the division (ākhīrīnī mūndā maʿlūm ītmāklārī ūchūn).109 This and similar cases provide one possible clue to understanding how qāḍīs served in the Khivan judicial system and operated despite their structural lack of power.


In 1871 a Cossack serving the Russian imperial authorities in Orenburg, who was given the task of interrogating Khivan slaves released from captivity between 1869 and 1870, reported that “Khivan subjects report to him [the khan] about everything happening during the day, [and bother him with] every trifle, every [insignificant] case.”110 Qunghrat officials arguably devoted so much attention to the mundane affairs of their subjects because the ʿarḍ-dād offered the central government the opportunity to monitor local affairs in a regular fashion and thus to make timely adjustments in response to changing social circumstances. Justice mattered to Qunghrat officials because it provided the state with knowledge about the society over which it ruled. Equally, the Khivan legal system allowed subjects to speak and be heard. Justice was contingent on participation.


1 R. Kosbergenov, “Polozhenie karakalpakskogo naseleniia v Khivinskom khanstve v kontse XIX-nachale XX v.,” in Materialy i issledovaniia po étnografii karakalpakov, ed. T.A. Zhdanko (Moscow: Izdatel’stvo Akademii Nauk SSSR, 1958), 262.


2 The Khorezmian archeological and ethnographic expedition began in 1936 and lasted until after the demise of the USSR. It was headed by Sergei Pavlovich Tol’stov, a major figure in the history of Soviet archeology. Close to Joseph Stalin, he was the head of a gigantic academic enterprise that paved the way for major discoveries in the ancient history of Khorezm. See Valerij Germanov, “S.P. Tolstov: maître, docteur, commandeur, ou l’histoire à travers l’archéologie et l’ethnographie,” Cahiers d’Asie Centrale 10 (2002), 193–215.


3 On the Qunghrat dynasty, see Yuri Bregel, “The New Uzbek States: Bukhara, Khiva and Khoqand: c. 1750–886,” in The Cambridge History of Inner Asia: The Chinggisid Age, ed. N. Di Cosmo, A.J. Frank, and P.B. Golden (Cambridge: Cambridge University Press, 2009), 392–411.


4 It was customary for newly wedded Karakalpaks to remain in their parental home after marriage. This custom often led to the unfortunate situation in which spouses would meet only in secret and wives would also become pregnant by other men. See Tatiana A. Zhdanko, “Karakalpaki Khorezmskogo oazisa,” in Materialy i issledovaniia po étnografii karakalpakov, ed. T.A. Zhdanko (Moscow: Izdatel’stvo Akademii Nauk SSSR, 1958), 517–18.


5 Aharon Layish, Sharīʿa and Custom in Libyan Tribal Society: An Annotated Translation of Decisions from the Sharīʿa Courts of Adjābiya and Kufra (Leiden: Brill, 2005), 6. On khulʿ, see Yossef Rapoport, Marriage, Money and Divorce in Medieval Islamic Society (Cambridge: Cambridge University Press, 2005).


6 On Muslim wives and divorce in modern Central Asia, see Paolo Sartori, “The Evolution of Third-Party Mediation in Sharīʿa Courts in 19th- and Early 20th-Century Central Asia,” Journal of the Economic and Social History of the Orient 54.4 (2011), Appendix, 339–49.


7 Kosbergenov, “Polozhenie karakalpakskogo naseleniia,” 225–7.


8Voenno-statisticheskoe opisanie Khivinskogo oazisa, Pt. 2, Sostavleno General’nogo shtaba kapitanom Girshfel’dom. Pererabotano Nachal‘nikom Amu-Dar’inskogo otdela general-maiorom Galkinym (Tashkent: Tipografiia Shtaba Turkestanskogo Voennago Okruga, 1903), 23.


9Puteshestvie v Turkmeniiu i Khivu v 1819 i 1820 godakh gvardeiskogo general’nogo shtaba kapitana Nikolaia Murav”eva, poslannogo v sii strany dlia peregovorov (Moscow: Tipografiia Avgusta Semena, 1822), Part 2, 35.


10 Joseph Schacht, Introduction to Islamic Law (Oxford: Clarendon Press: 1965), 188–98; Wael B. Hallaq, The Origins and the Evolution of Islamic Law (Cambridge: Cambridge University Press, 2005), passim; M. Khalid Masud, R. Peters, and D. Powers, “Qāḍīs and Their Courts: An Historical Survey,” in Dispensing Justice in Islam: Qadis and Their Judgments, ed. M. Khalid Masud, R. Peters, and D. Powers (Leiden: Brill, 2006): 1–44. A notable exception to this trend is the work of Mathieu Tillier. See, e.g., his “Judicial Authority and Qāḍīs’ Autonomy under the Abbasids,” Al-Masaq: Journal of the Medieval Mediterranean 26.2 (2014), 119–31.


11 On arbitrators, see Aida Othman, “‘And Amicable Settlement Is Best’: Ṣulḥ and Dispute Resolution in Islamic Law,” Arab Law Quarterly 21 (2007), 64–90; Wael B. Hallaq, Sharīʿa: Theory, Practice, Transformations (Cambridge: Cambridge University Press, 2009), 159–64.


12 Işık Tamdoğan, “Ṣulḥ and the 18th Century Ottoman Courts of Üsküdar and Adana,” Islamic Law and Society 15 (2008), 55–83; Sartori, “The Evolution of Third-Party Mediation.”


13 On this view, see Fernanda Pirie, The Anthropology of Law (Oxford: Oxford University Press, 2013), 97–103.


14 On maẓālim, see J.S. Nielsen, Secular Justice in an Islamic State: Maẓālim under the Baḥrī Mamlūks, 662/1264–789/1387 (Leiden: Brill, 1985), 9. On the role of the state in conflict resolution in the Ottoman period, see Yuval Ben-Bassat, Petitioning the Sultan: Protesters and Justice in Late Ottoman Palestine (London: I.B. Tauris, 2013), 24–8.


15 Hallaq, Sharīʿa: 362–63.


16 Yossef Rapoport, “Royal Justice and Religious Law: Siyāsah and Sharīʿah under the Mamluks,” Mamluk Studies Review 16 (2012), 74.


17 Guy Burak, “The Second Formation of Islamic Law: The Post-Mongol Context of the Ottoman Adoption of a School of Law,” Comparative Studies in Society and History 55.3 (2013), 579–602.


18 Samy Ayoub, “‘The Sulṭān Says’: State Authority in the Late Ḥanafī Tradition,” Islamic Law and Society 23.4 (2016): 239–78.


19 Mikhail Galkin-Vraskoi, Etnograficheskie i istoricheskie materialy po Srednei Azii i Orenburgskomu kraiu (St. Petersburg, 1868), 33.


20 James Baldwin, “Petitioning the Sultan in Ottoman Egypt,” Bulletin of the School of Oriental and African Studies 75 (2012), 507.


21 James Baldwin, “Petitioning the Sultan in Ottoman Egypt,” Bulletin of the School of Oriental and African Studies 75 (2012), 508.


22Sayyāhat-nāma-yi Sayyid Aḥmad Khwāja, MS Tashkent, Beruni Center of Oriental Manuscripts of the Tashkent State Institute of Oriental Studies (hereafter BCOM; formerly the Institute of Oriental Studies of the Academy of Sciences of Uzbekistan), inv. no. 4292: fol. 7b–12b.


23 Mary Dewhurst Lewis, Divided Rule: Sovereignty and Empire in French Tunisia, 1881–1938 (Berkeley: University of California Press, 2014), 1.


24 Seymour Becker, Russia’s Protectorates in Central Asia: Bukhara and Khiva, 1865–1924 (Cambridge, MA: Harvard University Press, 1968), 13–20. Khivan raids into the Kazah steppe prompted a Russian military expedition against the Khivan Khanate in the winter of 1839, under the command of General Perovski. The expedition failed miserably; Alexander Morrison, “Twin Imperial Disasters. The Invasions of Khiva and Afghanistan in the Russian and British Official Mind,” Modern Asian Studies 48.1 (2014), 253–300. The formation of a discourse on the abolition of the Central Asian slave trade was instrumental in building a consensus in Russia against the Khanate of Khiva. See Aleksandr Matveev, “Perceptions of Central Asia by Russian Society: The Conquest of Khiva as Represented by Russian Periodicals,” in Looking at the Coloniser: Cross-Cultural Perceptions in Central Asia and the Caucasus, Bengal, and Related Areas, ed. B. Eschment and H. Herder (Würzburg: Ergon, 2004), 290.


25 For an English translation of the Gandumian Peace Treaty, see Becker, Russia’s Protectorates: 316–8.


26 Akifumi Shioya, “Who Should Manage the Water of the Amu-Darya? Controversy over Irrigation Concessions between Russia and Khiva, 1913–1914,” in Explorations in the Social History of Modern Central Asia (19th–20th Centuries), ed. P. Sartori (Leiden: Brill, 2013), 111–36.


27 Kristin Mann and Richard Roberts, “Slave Voices in African Colonial Courts: Sources and Methods,” in African Voices of Slavery and the Slave Trade, vol. 2: Essays on Sources and Methods, ed. A. Bellagamba, S.E. Green, M.A. Klein (Cambridge: Cambridge University Press, 2016), 134


28 Lewis, Divided Rule, 8.


29O sudebnoi iurisdiktsii v Khivinskom khanstve, 1906, TsGARUz, f. I–2, op. 1, d. 205, ll. 3–82 ob. TsGARUz = Tsentral’nyi Gosudarstvennyi Arkhiv Respubliki Uzbekistan, Central State Archive of the Republic of Uzbekistan. Abbreviations used in references to Russian archives: f. (fond), holding; op. (opis‘), inventory; d. (delo), file; l. (list), sheet; ob. (oborot), verso.


30 For other examples of the formalization of chancery practices, see Paolo Sartori, “Murder in Manghishlaq: Notes on an Instance of Application of Qazaq Customary Law in Khiva (1895),” Der Islam 88.2 (2012), 217–57.


31 Paolo Sartori, Visions of Justice: Sharīʿa and Cultural Change in Russian Central Asia (Leiden: Brill, 2016), 40–103.


32 Martin Dickson, “Uzbek Dynastic Theory in the Sixteenth Century,” in Trudy XXV Mezhdunarodnogo Kongressa Vostokovedov (Moscow: Izdatel’stvo Vostochnoi Literatury, 1960), 208–16.


33 Yuri Bregel, “Tribal Tradition and Dynastic History: the Early Rulers of the Qongrats According to Munis”, Asian and African Studies 16.3 (1982): 396.


34 A forceful critique against the ostensible Turko-Mongol traditions that supposedly shaped notions of sovereignty in early-modern South Asia has been articulated by Ali Anooshahr, “On the Imperial Discourse of the Delhi Sultanate and Early Mughal India,” Journal of Persianate Studies 7.2 (2014), 157–76.


35 Anon., “Turkmeniia i Khiva,” Vsemirnyi puteshestvennik 8 (1870), 120.


36 The claimant is called ʿarḍ-dār in Persian and ʿarḍchī in Chaghatay.


37 On news reports (wāqiʿa-nawīsī) and the ensuing compositional genre, see Paolo Sartori, “Seeing Like a Khanate: On Archives, Cultures of Documentation, and Nineteenth-Century Khorezm,” Journal of Persianate Studies 9.2 (2016), 228–57.


38 Nielsen, Secular Justice in an Islamic State, 9. The maẓālim courts did not only operate as a court of second instance for cases of judicial misconduct. See now Christian Müller, “Maẓālim Jurisdictions at the Umayyad Court of Córdoba (Eighth-Eleventh Centuries CE),” in Court Cultures in the Muslim World: Seventh to Nineteenth Centuries, ed. A. Fuess and J.-P. Hartung (London and New York: Routledge, 2011), 93–104.


39 “The subjects came and submitted their grievances to the khan orally” (khalqlār kīlīb khāngha ʿarḍīnī āghzākī sūzlāb), ʿAbdullah Bāltayif, Khīwada Tāsh ḥawlī bināsīning tāpā-grafiyasī, Khiva 1950, BCOM, inv. no. 9321, fol. 24a; “all the civil and criminal cases are referred to him directly … and are heard always orally” (vse dela tiazhbennye i ugolovnye postupaiut priamo k nemu [khanu] , … i proizvodiatsia vsegda slovesno), Gregor I.Danilevskii, “Opisanie Khivinskogo khanstva”, Zapiski Russkogo Geograficheskogo Obshchestva V (1851), 134. Danilevskii was a Russian envoy to Khiva in 1842.


40 Ben-Bassat, Petitioning the Sultan,24–8; Writing the Mughal World: Studies on Culture and Politics, ed. M. Alam and S. Subrahmanyam (New York: Columbia University Press, 2012), 160.


41 For a preliminary attempt to assess the scope of the Archive of Khiva compared to the archives of other Central Asian polities, see Paolo Sartori, “On Khvārazmian Connectivity: Two or Three Things I Know about It,” Journal of Persianate Studies 9.2 (2016), 133–57.


42 Ann K.S. Lambton, “Justice in the Medieval Persian Theory of Government,” Studia ­Islamica 5 (1956), 91–119; idem, “Islamic Mirror for Princes,” in Atti del covegno internazionale sul tema, La Persia nel Medioevo (Roma, 31 marzo–5 aprile 1970) (Rome: Accademia Nazionale dei Lincei, 1971), 419–42; Maria E. Subtelny, “A Late Medieval Persian Summa on Ethics: Kashifi’s Akhlāq-i Muḥsinī,” Iranian Studies 36.4 (2003), 601–14.


43 Shir Muhammad Mirab Munis and Muhammad Riza Mirab Agahi, Firdaws al-iqbal: History of Khorezm, trans. Yuri Bregel (Leiden and Boston: Brill, 1999), 423, 457.


44 Bāltayif, Khīwada Tāsh ḥawlī bināsīning tāpāgrafiyasī, Khiva 1950, BCOM, inv. no. 9321, fol. 3b, 5b.


45Awwal waqtdā ʿarḍ sūrāsh ūchūn qīlinādūrghān ʿimāratnī bāshlādī. Khīwanī pāytakhtī būlghān kuhna arīk awwalghī khānlārdīn qālghān īdāra būlghānī ūchūn būl jāy bitgāncha shūl kuhna arīkda ʿarḍ-dād sūrāb ūltūrdī 1839-nchī mīlādīdīn kiyin shūl bināgha qūshūb ʿarḍ-khāna binālārnī ham bāshlāb āltī yil īchindā ānī ham bitkāzdī 1254-nchī hijrī yilindā khān ūyindā ūltūrghān waqtdā khalqnīng ʿarḍlārīnī shūl banā qīlghān ʿarḍ-khānadā sūrāshnī dawām qīldīrdī; ibid., fol. 10a.


46Khukm-nama khivinskogo khana Said Mukhamada Bakhadurkhana prikazyvaiushchii beku Gulam Bi vernut’ postradavshemu Iusupu ego zhenu, v sluchae nesoglasiia oboim iavit’sia v khanskii dvor dlia razbora étogo dela (1275/1858), TsGARUz, f. I–125, op. 2, d. 23, l. 1.


47Khukm-nama khivinskogo khana Said Mukhamada Bakhadurkhana povelevaiushchi poddannomu khana Abdi iavit’sia v khanskii dvorets vmeste s postradavshchim Avad Muradom, pretenduiushchi na krovnuiu mest’ (1275/1858), TsGARUz, f. I–125, op. 1, d. 24, l. 1.


48 Vámbéry was in Khiva under the rule of Sayyid Muhammad Khan (r. 1856–64).


49 Á. Vámbéry, Puteshchestvie po Srednei Azii iz Tegerana cherez Turkmenskuiu pustyniu po vostochnomu beregu Kaspiiskogo moria v Khivu, Bukharu i Samarkand, predpriiatoe s nauchnoi tsel’iu po porucheniiu Vengerskoi Akademii v Peshte, chlenom ee A. Vamberi (Moscow, 1867), 107–8. The English version of his travelogue differs substantially from the Russian. See Arminius Vámbéry, Arminius Vambéry: His Life and Adventures, 3rd ed. (London: T. Fisher Unwin, 1884), 200–1.


50 Seid-Mukhamed-Rakhim, “Khivinskii khan, i ego priblizhennye,” Turkestanskii Sbornik 42 (St. Petersburg: Tipografiia Ministerstva Putei Soobshcheniia, 1872), 120.


51 Muḥammad Yūsuf Bayānī, Shajara-yi Turk-i Khwārazmī, BCOM, inv. no. 9596, fol. 298a.


52 Bobojon Tarroh Khodim, Khorazm shoir va navozandalari, ed. A. Otamurodova and O. Abdurahimov (Tashkent: Tafakkur Qanoti, 2011), 30. According to the author, he was tasked by the sovereign with keeping a record of, among other things, the khanate’s poets and writers (shoir) and their creative works. As a result, he was in close contact not only with court literary circles but also with many prominent officials who regarded the composition of poetry as an effective way to make a successful career at court. Between 1965 and 1967, Tarrāh compiled an anthology of thirty-one court poets, along with his personal recollections. The first abridged edition of the text was published in 1994 as Khorazm navozandalari. XIX asr okhiri-XX boshlarida Sayid Muhammad Rahimkhoni soniy davrida yashagan shoirlar ­haqida esdaliklar (Tashkent: Ghafur Ghulom Nomindagi Adabiyot va San’at Nashriyoti, 1994).


53khalqni arz-dodiga chiqishga yaramas bo’ldi, ibid, 30.


54 According to Tarrāh, one of the khan’s closest and highest dignitaries, a certain Khudāyār Qūshbigī, justified his refusal to take over judicial powers in this manner: “You have read history; it is not proper [for the ruler] during his lifetime to devolve his authority (ikhtiyār) to his heir.” Ibid.


55 According to Tarrāh, one of the khan’s closest and highest dignitaries, a certain Khudāyār Qūshbigī, justified his refusal to take over judicial powers in this manner: “You have read history; it is not proper [for the ruler] during his lifetime to devolve his authority (ikhtiyār) to his heir.” 


56 Nil Sergeevich Lykoshin was an official of the Russian colonial administration in Turkestan as well as an Orientalist. He began his career in Turkestan in 1889 as a noncommissioned officer, advanced through the hierarchy, and, between 1914 and 1917, served as military governor of Samarkand District (oblast’) with the rank of major general. Between 1912 and 1914 he served as head of the Amu Darya Department and was closely involved in relations with the Khivan administration on a wide range of issues. He was famous for his research on the history, culture, and customs of Central Asia. On Lykoshin, see Alexander Morrison, “Sufism, Pan-Islamism and Information Panic: Nil Sergeevich Lykoshin and the Aftermath of the Andijan Uprising,” Past and Present 214.1 (2012), 255–314.


57 Nil Lykoshin, Zapiska Nachal’nika Amu-Dar’inskogo otdela Polkovnika Lykoshina o sovremennom sostoianii Khivinskogo khanstva, 1912 god. TsGARUz, f. I–2, op. 1, d. 314. ll. 12–58.


58 B. Kazakov, Bukharan Documents: The Collection in the District Library, Bukhara, trans. J. Paul (Berlin: Klaus Schwarz, 2001), 44. See also Sobranie vostochnykh rukopisei AN RUz. Istoriia, ed. D.Iu Iusupov and R.P. Dzhalilov (Tashkent: Fan, 1998), 236–7.


59 Babadzhan Safarov, Khwārazm tāʾrīkhī (1864–1934), BCOM, inv. no. 10231.


60 As Lykoshin acknowledges, he was an unintentional witness to this ceremony because the windows of the embassy premises at the Khivan khan’s residence, where the Russian official was posted, looked out directly onto the outer courtyard of the palace, where the ʿarzdād took place. Lykoshin, Zapiska, ll. 15–16.


61 A maḥram was a proxy for the khan who carried out his personal instructions. According to Tarrāh, among the numerous maḥrams who served at court, a special position was occupied by the so-called ʿarḍ-khāna maḥramlarī, who were responsible for preparing the reception room for the daily ceremony and were at the khan’s disposal for its duration. See Khorazm shoir va navozandalari, 30.


62 Lykoshin, Zapiska,ll. 15–16 ob.


63 For example, Safarov notes that the administrative apparatus of the khanate consisted largely of illiterate persons appointed to their positions through patronage or bribes. See Safarov, Khwārazm ta⁠ʾrīkhī (1864–1934), BCOM, inv. no. 10231, fols. 12–13.


64 Safarov, Khwārazm tāʾrīkhī (1864–1934), BCOM, inv. no. 10231, fols. 18–19.


65 Lykoshin, Zapiska, l. 18.


66 Ḥasan-Murād Laffasī, Gulshan-i saʿādat, BCOM, inv. no. 7797, fols. 8a–8b, 17b, 80b, 83b.


67 One such circumstance, for example, occurred in 1916, when Isfandiyār Khān travelled, with all of his officials, to Tash-Ḥawuz for a meeting with Lieutenant General A. Galkin, governor general of Syr-Darya Oblast, after the latter had suppressed a large Turkmen uprising. At that time, the Khivan qāḍī Dāmullā Khudāybirgān Ākhund remained in Khiva in order to hear the claims of the public; ibid., fol. 64a.


68 Lykoshin, Zapiska, ll. 15–16 ob.


69 Safarov, Khwārazm tāʾrīkhī (1864–1934), BCOM, inv. no. 10231, fol. 18.


70 “To everyone who entered with a petition, the yasaulbashi loudly posed the question, ‘what is your petition (arzing nimadur)?’”M.Y. Yuldoshev, Khiva khonligida feudal yer egaligi va davlat tuzilishi (Tashkent: O’zbekiston SSR Davlat Nashriyoti, 1959), 283 n. 6.


71 Aleksandr L. Kun, Ocherk istorii zaselenia Khivinskogo khanstva s drevnikh vremen, sostav ego sovremennogo naseleiia, administratsiia i goroda khanstva, 1873, Institute of Oriental Manuscripts, St. Petersburg, Arkhiv Vostokovedov, f. 33, d. 8, l. 41 ob.


72Khorazm shoir va navozandalari, 30; Safarov, Khwārazm ta⁠ʾrīkhī (1864–1934), fol. 21.


73 See, e.g., TsGARUz, f. I–125, op.2, d.100. The register’s header reads, “Register of yasauls assigned to petitioners’ complaints in the month of Muharram 1333 AH [November 1914].”


74 Aleksandr L. Kun, Ocherk istorii zaselenia Khivinskogo khanstva s drevnikh vremen, sostav ego sovremennogo naseleiia, administratsiia i goroda khanstva, f. 33, d. 13, l. 41ob. According to Gregor von Helmersen, the office of the yasāwul generated a substantial amount of money and therefore many attempted to be appointed to such a position. See his “Izvestiia o Khive, Bukhare, Kokande i severo-zapadnoi chasti Kitaiskogo gosudarstva,” Istoriia Kazakhstana v zapadnykh istochnikakh XII–XX vv., 10 vols. (Almaty: Dayk Press, 2006), 5: 36.


75 The existence of offices with separate premises at the disposal of the khanate’s highest officials is mentioned in Vámbéry’s account. During his stay in Khiva, he repeatedly had contact with the mihtar, who, in his words, “together with his chancellery occupied one of the interior houses, just outside the entrance to the khan’s palace.” Puteshchestvie po Srednei Azii, 107. It follows that a dedicated space in the palace was probably assigned to the yasāwulbāshī.


76 See, for instance, Katalog khivinskikh kaziiskikh dokumentov XIX–nachala XX vv., ed. A. Urunbaev et al. (Tashkent and Kyoto: Izdatel’stvo Mezhdunarodnogo Institut po Izucheniiu Iazykov i Mira Kiotskogo Universiteta po Izucheniiu Zarubezhnykh Stran, 2001), doc. no. 205. There are several misinterpretations in the description of the document in question: for example, the term ṣaghīr is rendered as “orphan” rather than “minor”; cf. BCOM Ashapberova Akliia, papka (folder) 3, unnumbered folio [5].


77 On the location of Manāq, see Firdaws al-iqbal: History of Khorezm, 564, n. 277.


78 TsGARUz, I–125, op. 2, d. 633, l. 1–1 ob. The document is stamped with the seal of Shaykh Naẓar Yasāwulbāshī b. Muḥammad Murād Dīwānbīgī.


79 Apparently, the mullah needed the permission of an official (usually a qāḍī) to perform the marriage. Katalog khivinskikh, doc. no. 842.


80 N.P. Lobacheva, “K istorii slozheniia instituta svadebnoi obriadnosti (na primere kompleksov svadebnykh obychaev i obriadov narodov Srednei Azii i Kazakhstana),” in Sem’ia i semeinye obriady u narodov Srednei Azii i Kazakhstana, ed. G.P. Snesarev (Moscow: Nauka, 1978), 144–75, at 144. Lobacheva also suggests that settled Uzbeks (among whom we count the population of Khorezm) usually agreed on the stipulations of the customary dowry before the engagement; ibid., 173.


81 Sergei N. Abašin, “Qalïm und mahr in Mittelasien: Die moderne Praxis und die Debatten über Scharia und Adat,” in Rechtspluralismus in der Islamischen Welt: Gewohnheitsrecht zwischen Staat und Gesellschaft, ed. Michael Kemper and Maurus Reinkowski (Berlin and New York: de Gruyter, 2005), 195–207.


82 This evidence supports the view expressed in Abashin. Sharīʿa court documents from Khorezm used, instead, only the term mahr in referring to dower: Katalog khivinskikh, passim.


83EI2, s.v. “Mahr” (O. Spies).


84Katalog khivinskikh, doc. no. 1076. In the description of the legal opinion, the dower is referred to as kalym (Russ. for qālīng); the term does not occur in the original text. See also TsGARUz, f. I–125, op. 1, d. 495, l. 9.


85 Mukhamedjan Yŭldoshev writes that, in the Khanate of Khiva, the term says means “stable boy”; see Yŭldoshev, Khiva khonligida, 234. Babajan Safarov claims that, in Khiva, it denoted instead an office at the royal court. He notes that there were two says who commanded 45 subordinates who were charged with the care of the Khan’s stables; see Safarov, Khwārazm tāʾrīkhī, fol. 15.


86 TsGARUz, f. I–125, op. 1, d. 498, l. 42.


87 The Choudurs were a group of Turkmens who lived in the Khorezmian oasis, most of them in the Pārsū district (Lykoshin, Zapiska: l. 24 ob.); smaller groups lived in the districts of Tashauz, Shahabad, and Ambar-Kala. Yuri Bregel, Khorezmskie turkmeny v XIX veke (Moscow: Nauka, 1961), 30.


88 TsGARUz, f. I–125, op. 1, d. 498, l. 94.


89 TsGARUz, I–125, op. 2, d. 633, l. 53–53 ob.


90 The Qūshbigī Yāf canal was built in 1857 by Ḥasan Murād Qūshbigī; see Ia. Guliamov, Istoriia orosheniia Khorezma s drevneishikh vremen do nashikh dnei (Tashkent: Izdatel’stvo akademii Nauk Uzbekskoi SSR, 1957), 231. Mirzā ʿAbd al-Raḥmān, a local scribe who assisted the Orientalist Aleksander Kun in Khorezm at the time of the Russian conquest (1873), lists the Qūshbigī Yāf as one of the canals dug during the reign of Muḥammad Amīn Khān (r. 1845–55), noting that it flows south of Urgench, Dnevnik Mirzy Abdurakhmana, vedennyi vo vremia Khivinskogo pokhoda, Institute of Oriental Manuscripts, St. Petersburg, Arkhiv Vostokovedov, f. 33 op. 1, d. 221, ll. 24–9. On Alexander Kun and Mirzā ʿAbd al-Raḥmām, see Olga Yastrebova and Arezou Azad, “Reflections on an Orientalist: Alexander Kuhn (1840–88), the Man and His Legacy,” Iranian Studies 48.5 (2015), 675–94.


91 Yuri Bregel, An Historical Atlas of Central Asia (Leiden and Boston: Brill, 2003), 67, map 33. On the Amu Darya and its waters breaching into the Lavzan in the nineteenth century, see Guliamov, Istoriia orosheniia:218, 292;AkifumiShioya, “Irrigation Policy of the Khanate of Khiva regarding the Lawzan Canal. 1. 1830–1873,” Area Studies Tsukuba 32 (2011), 116.


92 See Guliamov, Istoriia orosheniia,261; Munis and Agahi, Firdaws al-iqbāl, 609 n. 607.


93 The involvement of qāḍīs usually led to a settlement (ṣulḥ), the stipulations of which were determined by local notables (āqsāqāls/kadkhudās), giving ample room for the specifics of local circumstances, established practices, and customary notions of justice.


94 In Khorezm, (lit. “water”) signifies a measure used to quantify a water-share. According to Iakh’ia Guliamov, the Qunghrats introduced standard irrigation units. They established that one was the quantity of water necessary to irrigate ten ṭanāb of land, and they allocated ten (called jabdī) to a community of landholders. Guliamov, Istoriia orosheniia,295. The Qunghrat bureaucracy recorded (and updated) the allocation of water shares to communities. See TsGARUz, f. I–125, op. 2, d. 508 and d. 510, l. 4 (ābkhūr yāflār).


95 In the text, āriḍa, instead of ʿarīḍa, for “appeal.”


96 TsGARUz, f. I–125, op. 1, d. 498, l. 44.


97 I here draw on Rapoport, “Royal Justice and Religious Law: Siyāsah and Sharīʿah under the Mamluks,” 75.


98 The town of Shāhābād (Shavat) is located on the left bank of the middle section of the canal bearing the same name: Kun, Ocherk istorii, fol. 53; M.I. Ivanin, Khiva i reka Amu-Daria (St. Petersburg, 1873), 9; Munis and Agahi, Firdaws al-iqbāl, 564 n. 278. In the eighteenth century, Shāhābād was one of the Besh-Qalʿa ( “Five Cities”), together with Khazarasp, Khanqa, Urgench, and Kyat. The name Besh-Qalʿa is used in contemporary sources to refer to southern Khorezm. Guliamov, Istoriia oroshcheniia, 199; Munis and Agahi, Firdaws al-iqbāl, 573 n. 318.


99 TsGARUz, f. I–125, op. 1, d. 498, l. 86.


100 Uzbek kuyov means both “groom” and “son-in-law.” This word choice makes perfect sense here as it is the bride’s father who recounts the events in this part of the narrative.


101 This phrase is clearly a circumlocution referring to sexual impotence. The term mart may well be a phonetic rendering of the word mard (male, masculine). The text reads literally, “due to the latter’s failure to do the legal thing that a man does”; cf. Layish, Sharīʿa and Custom, 37.


102 TsGARUz, f. I–125, op. 1, d. 498, l. 56–56 ob. The document is stamped with the seal of Muḥammad Karīm Yūzbāshī b. Ismāʿil.


103 Lykoshin, Zapiska, ll. 15–15 ob.


104 A. Samoilovich, Opisanie rukopisei knig, khraniashchikhsia v Khivinskikh pridvornykh knigokhranilishchakh i knigopechatniakh, MS St. Petersburg, Russian National Library, Manuscript Department, 671, d. 145, l. 1.


105 M.A. Terent’ev, Istoriia zavoevaniia Srednei Azii s kartami i planami, 4 vols. (St. Petersburg, 1906), I: 179.


106 V.A. Girshfel’d, A.S. Galkin, Voenno-statisticheskoe opisanie Khivinskogo khanstva, Part 2 (Tashkent, 1903), 23.


107Katalog khivinskikh; E. Karimov, Regesty kaziiskikh dokumentov i khanskikh iarlikov Khivinskogo khanstva XVII–nachala XX v. (Tashkent: Fan, 2007).


108 TsGARUz, f. I–125, op. 2, d. 606, l. 8.


109 TsGARUz, f. I–125, op. 1, d. 509, l. 145.


110 Esaul Lobasevych, “Pokazaniia russkikh plennykh, byvshikh v Khive, dannoe 16 iunia Orenburgskomu general-gubernatoru (v 1869–1870),” in Turkestanskii Sbornik, vol. 42 (St. Petersburg, 1871), 88.

  • 1

     R. Kosbergenov, “Polozhenie karakalpakskogo naseleniia v Khivinskom khanstve v kontse XIX-nachale XX v.,” in Materialy i issledovaniia po étnografii karakalpakov, ed. T.A. Zhdanko (Moscow: Izdatel’stvo Akademii Nauk SSSR, 1958), 262.

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  • 7

     Kosbergenov, “Polozhenie karakalpakskogo naseleniia,” 225–7.

  • 13

     On this view, see Fernanda Pirie, The Anthropology of Law (Oxford: Oxford University Press, 2013), 97–103.

  • 17

     Guy Burak, “The Second Formation of Islamic Law: The Post-Mongol Context of the Ottoman Adoption of a School of Law,” Comparative Studies in Society and History 55.3 (2013), 579–602.

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  • 18

     Samy Ayoub, “‘The Sulṭān Says’: State Authority in the Late Ḥanafī Tradition,” Islamic Law and Society 23.4 (2016): 239–78.

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  • 20

     James Baldwin, “Petitioning the Sultan in Ottoman Egypt,” Bulletin of the School of Oriental and African Studies 75 (2012), 507.

  • 21

     James Baldwin, “Petitioning the Sultan in Ottoman Egypt,” Bulletin of the School of Oriental and African Studies 75 (2012), 508.

  • 23

     Mary Dewhurst Lewis, Divided Rule: Sovereignty and Empire in French Tunisia, 1881–1938 (Berkeley: University of California Press, 2014), 1.

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  • 24

     Seymour Becker, Russia’s Protectorates in Central Asia: Bukhara and Khiva, 1865–1924 (Cambridge, MA: Harvard University Press, 1968), 13–20. Khivan raids into the Kazah steppe prompted a Russian military expedition against the Khivan Khanate in the winter of 1839, under the command of General Perovski. The expedition failed miserably; Alexander Morrison, “Twin Imperial Disasters. The Invasions of Khiva and Afghanistan in the Russian and British Official Mind,” Modern Asian Studies 48.1 (2014), 253–300. The formation of a discourse on the abolition of the Central Asian slave trade was instrumental in building a consensus in Russia against the Khanate of Khiva. See Aleksandr Matveev, “Perceptions of Central Asia by Russian Society: The Conquest of Khiva as Represented by Russian Periodicals,” in Looking at the Coloniser: Cross-Cultural Perceptions in Central Asia and the Caucasus, Bengal, and Related Areas, ed. B. Eschment and H. Herder (Würzburg: Ergon, 2004), 290.

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  • 26

     Akifumi Shioya, “Who Should Manage the Water of the Amu-Darya? Controversy over Irrigation Concessions between Russia and Khiva, 1913–1914,” in Explorations in the Social History of Modern Central Asia (19th–20th Centuries), ed. P. Sartori (Leiden: Brill, 2013), 111–36.

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    • Export Citation
  • 27

     Kristin Mann and Richard Roberts, “Slave Voices in African Colonial Courts: Sources and Methods,” in African Voices of Slavery and the Slave Trade, vol. 2: Essays on Sources and Methods, ed. A. Bellagamba, S.E. Green, M.A. Klein (Cambridge: Cambridge University Press, 2016), 134

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  • 28

     Lewis, Divided Rule, 8.

  • 32

     Martin Dickson, “Uzbek Dynastic Theory in the Sixteenth Century,” in Trudy XXV Mezhdunarodnogo Kongressa Vostokovedov (Moscow: Izdatel’stvo Vostochnoi Literatury, 1960), 208–16.

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  • 33

     Yuri Bregel, “Tribal Tradition and Dynastic History: the Early Rulers of the Qongrats According to Munis”, Asian and African Studies 16.3 (1982): 396.

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  • 35

     Anon., “Turkmeniia i Khiva,” Vsemirnyi puteshestvennik 8 (1870), 120.

  • 38

     Nielsen, Secular Justice in an Islamic State, 9. The maẓālim courts did not only operate as a court of second instance for cases of judicial misconduct. See now Christian Müller, “Maẓālim Jurisdictions at the Umayyad Court of Córdoba (Eighth-Eleventh Centuries CE),” in Court Cultures in the Muslim World: Seventh to Nineteenth Centuries, ed. A. Fuess and J.-P. Hartung (London and New York: Routledge, 2011), 93–104.

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  • 42

     Ann K.S. Lambton, “Justice in the Medieval Persian Theory of Government,” Studia ­Islamica 5 (1956), 91–119; idem, “Islamic Mirror for Princes,” in Atti del covegno internazionale sul tema, La Persia nel Medioevo (Roma, 31 marzo–5 aprile 1970) (Rome: Accademia Nazionale dei Lincei, 1971), 419–42; Maria E. Subtelny, “A Late Medieval Persian Summa on Ethics: Kashifi’s Akhlāq-i Muḥsinī,” Iranian Studies 36.4 (2003), 601–14.

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  • 50

     Seid-Mukhamed-Rakhim, “Khivinskii khan, i ego priblizhennye,” Turkestanskii Sbornik 42 (St. Petersburg: Tipografiia Ministerstva Putei Soobshcheniia, 1872), 120.

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  • 80

     N.P. Lobacheva, “K istorii slozheniia instituta svadebnoi obriadnosti (na primere kompleksov svadebnykh obychaev i obriadov narodov Srednei Azii i Kazakhstana),” in Sem’ia i semeinye obriady u narodov Srednei Azii i Kazakhstana, ed. G.P. Snesarev (Moscow: Nauka, 1978), 144–75, at 144. Lobacheva also suggests that settled Uzbeks (among whom we count the population of Khorezm) usually agreed on the stipulations of the customary dowry before the engagement; ibid., 173.

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  • 81

     Sergei N. Abašin, “Qalïm und mahr in Mittelasien: Die moderne Praxis und die Debatten über Scharia und Adat,” in Rechtspluralismus in der Islamischen Welt: Gewohnheitsrecht zwischen Staat und Gesellschaft, ed. Michael Kemper and Maurus Reinkowski (Berlin and New York: de Gruyter, 2005), 195–207.

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    • Export Citation
  • 91

     Yuri Bregel, An Historical Atlas of Central Asia (Leiden and Boston: Brill, 2003), 67, map 33. On the Amu Darya and its waters breaching into the Lavzan in the nineteenth century, see Guliamov, Istoriia orosheniia:218, 292;AkifumiShioya, “Irrigation Policy of the Khanate of Khiva regarding the Lawzan Canal. 1. 1830–1873,” Area Studies Tsukuba 32 (2011), 116.

    • Search Google Scholar
    • Export Citation
  • 110

     Esaul Lobasevych, “Pokazaniia russkikh plennykh, byvshikh v Khive, dannoe 16 iunia Orenburgskomu general-gubernatoru (v 1869–1870),” in Turkestanskii Sbornik, vol. 42 (St. Petersburg, 1871), 88.

    • Search Google Scholar
    • Export Citation
  • 1

     R. Kosbergenov, “Polozhenie karakalpakskogo naseleniia v Khivinskom khanstve v kontse XIX-nachale XX v.,” in Materialy i issledovaniia po étnografii karakalpakov, ed. T.A. Zhdanko (Moscow: Izdatel’stvo Akademii Nauk SSSR, 1958), 262.

    • Search Google Scholar
    • Export Citation
  • 7

     Kosbergenov, “Polozhenie karakalpakskogo naseleniia,” 225–7.

  • 13

     On this view, see Fernanda Pirie, The Anthropology of Law (Oxford: Oxford University Press, 2013), 97–103.

  • 17

     Guy Burak, “The Second Formation of Islamic Law: The Post-Mongol Context of the Ottoman Adoption of a School of Law,” Comparative Studies in Society and History 55.3 (2013), 579–602.

    • Search Google Scholar
    • Export Citation
  • 18

     Samy Ayoub, “‘The Sulṭān Says’: State Authority in the Late Ḥanafī Tradition,” Islamic Law and Society 23.4 (2016): 239–78.

    • Search Google Scholar
    • Export Citation
  • 20

     James Baldwin, “Petitioning the Sultan in Ottoman Egypt,” Bulletin of the School of Oriental and African Studies 75 (2012), 507.

  • 21

     James Baldwin, “Petitioning the Sultan in Ottoman Egypt,” Bulletin of the School of Oriental and African Studies 75 (2012), 508.

  • 23

     Mary Dewhurst Lewis, Divided Rule: Sovereignty and Empire in French Tunisia, 1881–1938 (Berkeley: University of California Press, 2014), 1.

    • Search Google Scholar
    • Export Citation
  • 24

     Seymour Becker, Russia’s Protectorates in Central Asia: Bukhara and Khiva, 1865–1924 (Cambridge, MA: Harvard University Press, 1968), 13–20. Khivan raids into the Kazah steppe prompted a Russian military expedition against the Khivan Khanate in the winter of 1839, under the command of General Perovski. The expedition failed miserably; Alexander Morrison, “Twin Imperial Disasters. The Invasions of Khiva and Afghanistan in the Russian and British Official Mind,” Modern Asian Studies 48.1 (2014), 253–300. The formation of a discourse on the abolition of the Central Asian slave trade was instrumental in building a consensus in Russia against the Khanate of Khiva. See Aleksandr Matveev, “Perceptions of Central Asia by Russian Society: The Conquest of Khiva as Represented by Russian Periodicals,” in Looking at the Coloniser: Cross-Cultural Perceptions in Central Asia and the Caucasus, Bengal, and Related Areas, ed. B. Eschment and H. Herder (Würzburg: Ergon, 2004), 290.

    • Search Google Scholar
    • Export Citation
  • 26

     Akifumi Shioya, “Who Should Manage the Water of the Amu-Darya? Controversy over Irrigation Concessions between Russia and Khiva, 1913–1914,” in Explorations in the Social History of Modern Central Asia (19th–20th Centuries), ed. P. Sartori (Leiden: Brill, 2013), 111–36.

    • Search Google Scholar
    • Export Citation
  • 27

     Kristin Mann and Richard Roberts, “Slave Voices in African Colonial Courts: Sources and Methods,” in African Voices of Slavery and the Slave Trade, vol. 2: Essays on Sources and Methods, ed. A. Bellagamba, S.E. Green, M.A. Klein (Cambridge: Cambridge University Press, 2016), 134

    • Search Google Scholar
    • Export Citation
  • 28

     Lewis, Divided Rule, 8.

  • 32

     Martin Dickson, “Uzbek Dynastic Theory in the Sixteenth Century,” in Trudy XXV Mezhdunarodnogo Kongressa Vostokovedov (Moscow: Izdatel’stvo Vostochnoi Literatury, 1960), 208–16.

    • Search Google Scholar
    • Export Citation
  • 33

     Yuri Bregel, “Tribal Tradition and Dynastic History: the Early Rulers of the Qongrats According to Munis”, Asian and African Studies 16.3 (1982): 396.

    • Search Google Scholar
    • Export Citation
  • 35

     Anon., “Turkmeniia i Khiva,” Vsemirnyi puteshestvennik 8 (1870), 120.

  • 38

     Nielsen, Secular Justice in an Islamic State, 9. The maẓālim courts did not only operate as a court of second instance for cases of judicial misconduct. See now Christian Müller, “Maẓālim Jurisdictions at the Umayyad Court of Córdoba (Eighth-Eleventh Centuries CE),” in Court Cultures in the Muslim World: Seventh to Nineteenth Centuries, ed. A. Fuess and J.-P. Hartung (London and New York: Routledge, 2011), 93–104.

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  • 42

     Ann K.S. Lambton, “Justice in the Medieval Persian Theory of Government,” Studia ­Islamica 5 (1956), 91–119; idem, “Islamic Mirror for Princes,” in Atti del covegno internazionale sul tema, La Persia nel Medioevo (Roma, 31 marzo–5 aprile 1970) (Rome: Accademia Nazionale dei Lincei, 1971), 419–42; Maria E. Subtelny, “A Late Medieval Persian Summa on Ethics: Kashifi’s Akhlāq-i Muḥsinī,” Iranian Studies 36.4 (2003), 601–14.

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  • 50

     Seid-Mukhamed-Rakhim, “Khivinskii khan, i ego priblizhennye,” Turkestanskii Sbornik 42 (St. Petersburg: Tipografiia Ministerstva Putei Soobshcheniia, 1872), 120.

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  • 80

     N.P. Lobacheva, “K istorii slozheniia instituta svadebnoi obriadnosti (na primere kompleksov svadebnykh obychaev i obriadov narodov Srednei Azii i Kazakhstana),” in Sem’ia i semeinye obriady u narodov Srednei Azii i Kazakhstana, ed. G.P. Snesarev (Moscow: Nauka, 1978), 144–75, at 144. Lobacheva also suggests that settled Uzbeks (among whom we count the population of Khorezm) usually agreed on the stipulations of the customary dowry before the engagement; ibid., 173.

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  • 81

     Sergei N. Abašin, “Qalïm und mahr in Mittelasien: Die moderne Praxis und die Debatten über Scharia und Adat,” in Rechtspluralismus in der Islamischen Welt: Gewohnheitsrecht zwischen Staat und Gesellschaft, ed. Michael Kemper and Maurus Reinkowski (Berlin and New York: de Gruyter, 2005), 195–207.

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  • 91

     Yuri Bregel, An Historical Atlas of Central Asia (Leiden and Boston: Brill, 2003), 67, map 33. On the Amu Darya and its waters breaching into the Lavzan in the nineteenth century, see Guliamov, Istoriia orosheniia:218, 292;AkifumiShioya, “Irrigation Policy of the Khanate of Khiva regarding the Lawzan Canal. 1. 1830–1873,” Area Studies Tsukuba 32 (2011), 116.

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  • 110

     Esaul Lobasevych, “Pokazaniia russkikh plennykh, byvshikh v Khive, dannoe 16 iunia Orenburgskomu general-gubernatoru (v 1869–1870),” in Turkestanskii Sbornik, vol. 42 (St. Petersburg, 1871), 88.

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    A governor’s report to the yasāwulbāshī about the settlement of a dispute, TsGARUz, f. I–125, op. 1, d. 498, l. 94. Courtesy of the Central State Archive of Uzbekistan.

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    Yasāwulbāshī’s instructions (fatak) to Jumʿa Qulī Yasāwul, TsGARUz, I–125, op. 2, d. 633, l. 53. Courtesy of the Central State Archive of Uzbekistan.

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    The attendant informs the yasāwulbāshī about the resolution of the conflict, TsGARUz, I–125, op. 2, d. 633, l. 53 ob. Courtesy of the Central State Archive of Uzbekistan.

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    Muḥammad Yaʿqūb Bāy b. Jabbār Qulī Maḥram’s report to the yasāwulbāshī about the outcome of a dispute heard by qāḍīs in Manāq, TsGARUz, f. I–125, op. 1, d. 498, l. 44. Courtesy of the Central State Archive of Uzbekistan.


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