Messick Writting Identities

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Written Identities: Legal Subjects in an Islamic StateAuthor(s): Brinkley MessickSource: History of Religions, Vol. 38, No. 1, Islam and Law (Aug., 1998), pp. 25-51Published by: The University of Chicago PressStable URL: http://www.jstor.org/stable/3176518.

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Brinkley Messick WRITTEN IDENTITIES:LEGAL SUBJECTS INAN ISLAMIC STATE

BEFORE THE NOVELIn a branch of inquiryconcerned with the advent of the nation-state out-side of Europe, attention has been given to the place of local literatures,especially various receptions of the realist novel, in the elaboration ofmodern identities. As one starting point, the influential work of Bene-dict Anderson underscored historical links around the world betweenthe appearanceof the central Westernliterary genre, the novel, and theadvent of the key political form, the nation-state. Together with news-papers, which Anderson refers to as one-day best-sellers, early non-Western novels entailed new imaginings of types of individualism andof community associated with the conceptual coming into existence of anational citizenry.1Building critically on Anderson'swork, in a volumecalled Nation and Narration, Homi Bhabha urges us generally to en-counter the nation as it is written. 2 While generally welcoming hisemphasison the imaginingof thenation,Anderson'smajorcritics have in-terrogatedhis view of nationalism as a modular phenomenonbased onWesternforms. Thus,ParthaChatterjeehas sought to recover the makingof difference that markedthe imaginings of anticolonial nationalistsin Bengal.3 Here I consider a setting, highland Yemen, which is unusual

1 Benedict Anderson, Imagined Communities,rev. ed. (London and New York:Verso,1991).2 Homi Bhabha, ed., Nation and Narration (New York:Routledge, 1990), p. 2.3 ParthaChatterjee,The Nation and Its Fragments(Princeton,N.J.: PrincetonUniversityPress, 1993).? 1998 by The University of Chicago. All rights reserved.0018-2710/99/3801 -0002$02.00

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WrittenIdentitiesin that it did not experience direct Europeancolonial rule. In addition,although I will repeatedly make reference to the emergence of modernpolitical forms in twentieth-centuryYemen,the thrustof my inquirycon-cerns the relation of local literatures,and writings generally, to the con-struction of a distinctive set of non-Western dentitiesprior to the rise ofthe nation-state.In regard to the birth of the novel, an importanttheme, whether inEuropeor in the non-West,concerns the genres and discursive forms thatpreceded the appearanceof what some have considered a key index ofmodernity.As opposed to the situation in Europe, in the non-West therise of the novel (to invoke Ian Watt'sfamous title) is commonly as-sumed to involve a nonindigenousphenomenon,at least at the outset.4Inher comparative study, Travelsof a Genre, Mary Layoun, for example,examines the imperial-era development and eventual hegemonic pre-dominance of this imported narrativeform in three settings: Greece,Japan, and the Middle East. In all three locales, in differentways, thenovel metaphorically colonized preexistent narrativeproduction. 5Re-ferring specifically to the Arab Middle East, the region with which I ambroadlyconcerned, Layoun also maintains thatdespite the presence of adiversity of generic forms priorto the appearanceof the novel, therehadbeen no single narrative orm thatwas clearly preeminent. 6Accordingto the historical and regional coverage of the Modern Arabic Literaturevolume in the CambridgeHistoryof Arabic Literature eries, the earliestprototypeof this important orm dates to 1870, in the work of the Syr-ian Christian Salim al-Bustani.7One candidatefor the firstfully realizedArabic novel is Zaynab,by MuhammadHusaynHaykal, which appearedin 1913.8The closest indigenous narrative ormwas the maqamah,a kindof prose genre characterizedby highly elaborated rhetoricaldevices, in-cluding a form of rhyming in prose known as sajc.9

As was also the case in the closely connected sphere of Arab printjournalism, beginning in the early to mid-nineteenthcentury,andequallyin the areas of historiographyand legal reform and codification, the ad-vent of the Arabic novel required mportantdevelopments in the written4 Ian Watts, The Rise of the Novel (Berkeley: University of CaliforniaPress, 1957).5 Mary Layoun, The Travelsof a Genre (Princeton, N.J.: Princeton University Press,1990), pp. 10-11.6 Ibid., p. 9.7 M. M. Badawi, The Background, n ModernArabic Literature,ed. M. M. Badawi,The Cambridge History of Arabic Literature (Cambridge: Cambridge University Press,1992), pp. 10, 16; andRoger Allen, TheBeginnings of the ArabicNovel, in Badawi, ed.,pp. 181-82.8 But this is disputed terrain. See Allen, pp. 181-82; and Hilary Kilpatrick, TheEgyp-tian Novel from Zaynab to 1980, in Badawi, ed., pp. 223-69.9 Allen, p. 180;andSabryHafez, TheModer Arabic ShortStory, n Badawi,ed., p. 270;see also Layoun, pp. 60-61.

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History of ReligionsArabic language.10What occurredin the Middle East, however, was notwhatAndersonsaw occurringelsewhere, namely,thereplacementof clas-sical languages (such as Latin), which pertainedto old sacral cultures,by rising vernaculars, he print-languages f the several nation-states.11By contrast,each of the several Arabiccolloquials, thatis, the distinctivespoken languages of the respective Middle Eastern and North Africanstates or regions, would remainstigmatized, experimental,or, when used,mainly confined to written dialogue, rather than undergoing a generalpromotion to the status of primary print language. However, importantrefinements did occur across the domains of new writtenusage in Arabic,implementedby writerssuch asjournalists,historians,fictionauthors,andlaw code drafters,to meet a range of newly perceived needs, especiallyin relation to new types of readers.Among journalists and literati (oftenthe same individuals), the new goal was to write in a style which thelearned will not despise, and the ignorant will not need to have inter-preted. 12Likewise, among late nineteenth-centurycentral Middle East-ern legislators, newly streamlined and accessible legal language wouldmean that a code, for the first time, could be composed in a mannerwhich would be sufficientlyclear so that anyone could study it easily andact in conformity with it. 13Such linguistic innovations also were prem-ised on criticisms of what had gone before, of the ornate artificialitiesof the old prose writers as of the obscure technical usages of the legalspecialists.If such were the textual overtures of modernity in the central MiddleEast, that is, in the heartlands of the OttomanEmpire, which includedSyria, Iraq,and especially Egypt,14 in the ArabianPeninsula, as in eachof the other regions of the Arab world, there is a parallel but also quitespecific history in these matters.15Even the two Yemens, South andNorth, have their own textual histories. In the south, where the colonialBritish were installed from an early date (1839), the first novel is said tohave been written in 1939 by a leading Adeni journalist, MuhammadCAliLuqman.16n the north,where there was no direct colonial presence,critical discussion turns around books such as al-Rahina (The hostage),published in 1984 by Zayd Mutic Dammaj with the subtitle riwayah

10Ami Ayalon, The Press in theArabMiddle East (London and New York: Oxford Uni-versity Press, 1995).11Benedict Anderson (n. 1 above), p. 44.12 Cited in PierreCachia, The Critics, in Badawi, ed., p. 409.13 Cited in Brinkley Messick, The Calligraphic State (Berkeley and Los Angeles: Uni-versity of California Press, 1993), pp. 55-56.14 See Kilpatrick.15There is no treatmentof the moder Arabian Peninsula literatures n ModernArabicLiteratureexcept for a list of names on p. 328. See, however, Salma Jayyusi, The Litera-ture of ModernArabia: An Anthology (London: Kegan Paul, 1988).16 CAbd l-RahmanFakhri,Al-Kalimah (Beirut: Dar Ibn Khaldun, 1983), pp. 75-82.

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WrittenIdentities(novel).17 A prominent Yemeni literary critic, CAbdAllah al-Baraduni(1993, p. 227), however, poses the question, Is al-Rahina a novel? 18Simply put, the timing of the appearancesand the specific agendasof re-alist fiction in the two Yemensmay be seen to roughlycoincide with theirrespective colonial-era andmodernpolitical predicaments: outhernwrit-ers were concerned with the challenges and identity issues posed by theWest in the form of the colonial power, while a northernauthor such asDammaj imaginatively reworks,for a republican-era eadership, he verydifferent highland experience of rule by the twentieth-century Zaydiimams.

Regarding the place of the novel in the Middle East, however, a gen-eral point made in ModernArabic Literature is that it perhapswas notthe novel that was the most significantnew narrative orm adoptedfromthe West, but ratherthe short story.19A Yemeni critic, CAbd l-CAzizal-Maqalih, concurs, stating that the short story was the literaryart formwhich responded to new needs. 20The key modern Yemen literary fig-ure in this genre was MuhammadAhmad CAbd l-Wali (1940-73), whopublished his first collection of stories in 1966 before his tragicdeath inan air crash.21 n Yemen, however, perhapsa still strongercase could bemade for the centralityof poetry,which underwent ts own revolutioninthe handsof the majornationalistleader-poetssuch as MuhammadMah-mud Zubayri, and others. In Yemen, poetry may have been the predom-inant premoderngenre and, transformed, t may remain the predominantmodern one as well. Literarycriticism (al-naqd al-adabi) as it is cur-rently practiced n Yemenoverwhelminglyconcernspoetry, ncludingalsopopular or vernacularpoetry.22Each of the three leading Yemeni crit-

17Zayd Mutic Dammaj,The Hostage, trans.May Jayyusi andChristopherTingley (NewYork: InterlinkBooks, 1994).18 CAbdAllah al-Baraduni,al-Thaqafa wa-l-thawrafi al-yaman, 3d ed. printing(Beirut:Dar al-Hadatha, 1993), p. 227. In a review of Dammaj,TheHostage (the English transla-tion), Througha Duwaydar'sEye, in YemenUpdate (vol. 36 [1995]), Steven Caton refersto The Hostage as a novella (p. 34). Dammaj is primarilyknown as a writer of shortstories. Generic histories of the novel, notoriously difficult to pin down in any case, as animportedform must be complex. At the outset, the form has in some sense arrived butis not fully realized; subsequently, it is established but also alreadymodified in dialoguewith indigenous genres. Chatterjee(n. 3 above) remarksaboutpopularBengali novels thatit is often difficult to tell whetherone is reading a novel or a play (p. 8).19Badawi (n. 7 above), p. vii; Hafez (n. 9 above), p. 270.20 'Abd al-'Aziz al-Maqalih, Introduction, n Zayd Muti' Dammaj,al-CAqrabBeirut:Dar al-'Awda, 1982).21Fakhri,pp. 83-90; al-Maqalih, p. 5.22In Modern Arabic Literature(n. 7 above), Yemeni literatureand Yemeni critics suchas al-Maqalih and al-Baraduni are taken into considerationonly in the chapter, Poetryinthe Vernacular, by MarilynBooth. Fornew, unpublishedwork on poetrygenres and iden-tity in Yemen, see Lucine Taminian, Poetryand the Making of Identity in Yemen, pre-sented at a conference in Hamburg,Germany, Yemen in Modem Times, September1997;and W. Flagg Miller, PoeticEnvisionings:Identitiesof Person andPlace in YaficiCassettePoetry, presented at the Middle East Studies Association Annual Meeting, Providence,R.I., November 1996.

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History of Religionsics, al-Baraduni,al-Maqalih,andAhmad Muhammadal-Shami,also is animportantpoet with majorcollections to his credit. For thatmatter,how-ever, the three must also be considered among the leading historians ofmoder Yemen.

AN ISLAMIC STATEThe non-Westernpolity to be focused on here is the former Islamic stateof highland (North) Yemen. In the 1950s andpriordecades, Yemen wasled by a classic form of Muslim ruler, an imam, a commander of thepen and the sword, a spiritual and temporal leader who was also, asa trainedjurist, the final legal authorityin his state. Both Imam Yahya(d. 1948) and his son Imam Ahmad(d. 1962) also were studentsof liter-ature,especially poetry,andequally of history.Although chronologicallypart of the twentieth century, their patrimonial polity was premodernwith respect to many aspects of its agrarianeconomy and its social andpolitical relations. In examining several textual genres dating from be-fore the Republican Revolution of 1962, I ask what we can learn about,to coin a provisional term,the premodern shariCa ubject. Roughly put,this sharica subjectwas to a state based on the implementationof Islamiclaw (the sharica) what the citizen would be to the succeeding republic.The late imamic period I consider is a time of transitions marking theappearanceof the modern Yemeni citizen, the characteristic subject ofthe nation-state.This, then, is an exploratorydiscussion, of identities intexts, and of a non-Western, pre-nation-state polity, specifically an Is-lamic state, as it is written.I take a cue in what follows from RaymondWilliams, who arguedthatthe disciplinary horizons of (pre-culturalstudies) literary criticism andconventional notions of literature ended to limit our appreciationofthe multiplicityof writing. 23 have alreadymentioned in passing somelocal Yemeni examples of literature n the conventional sense-novels,shortstories, andpoetry-and, also in passing, such genres asjournalismandhistory writing.After some furtherbackgroundon the general textualculture of the late imamicperiodand on the doctrinal level of the law, theremainderof my discussion concerns mundanelegal documents. I con-sider Arabic records and legal instruments, ncluding lists, contracts,andcourtjudgments. Such ordinarygenres of the local bureaucraticandlegalliteratures are,I argue,importantsites for the imaginative constructionof a specific subjectivity. I consider how names are recorded;how iden-tity is established, inscribed, and affirmed;and also how rights in thebody are defined. Later,I link these features to discursive techniques forthe constitution of personalauthority n writtenforms, especially throughrepresentationsof humanpresence and intention. The entextualizations

23Raymond Williams, Marxism and Literature (New York: Oxford University Press,1977).

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Written Identitiesof identity in such writings and their subsequent interpretationand ar-chivization, that is, theirpatternsof production,use, andretention,shedlight both on the natureof the sharica subject as well as on the specificscope of the old Islamic state. In examining such ordinaryrecords andlegal documents, I seek access to a far broader social stratumof subjectinscription than is found in narrowlyelite writings such as formal trea-tises of legal doctrineandhistories, andlater,the early novels. This widecoverage-contracts to novels-is not meant as some sort of analyticfeat.Rather,my aim is to treat he several levels of Islamiclegal texts, and theirsignificance in understandinga historically specific subjectivity,within asketched-in context of otherperiod genres. Togethersuch texts representa particular ocal multiplicity of writing, a multiplicity interconnectedin ways unlike their perceived separatestatuses in the modern West.What sortof textualcultureprecededthe advent of the Yemeni nation-state(bornin the revolution of 1962) andthe appearanceof suchimportedliterary genres as the novel? First, some caveats. National or regionalspecifications concerning literarycurrentsand innovationsmust not erector presuppose overly rigid territorial boundaries. Texts and the peoplewho created, transmitted,andread them circulatedinterregionally n var-ious ways. The highlandswere in constantcontact,mainly throughcamelcaravan and (by the 1950s) truck trade links, with Aden and its colo-nially stimulatedproductions,including newspapers, law codes, and theliterary genres, and, via Aden, with the world at large. Readers priortothe revolution of 1962 in the relatively isolated Yemeni northwere beingexposed to a few importedbooks from places such as Egypt, includingthe historical novels of Jurgi Zaydan.Those in the south, studyingin co-lonial schools, were getting, among otherthings, Shakespeare.The pointis that the textual backdropsfor the appearanceof the novel and othernew forms in particularlocales are both quite distinct and necessarilyalso based on a variety of extralocal contacts. Not entirely separate isthe question of the beginning of nationalist hinking, as distinct fromthe formal revolutionaryinstitution of the new state form in 1962. Theoppositional nationalist movement in the north, dating from the 1930s,entailed its own new textualactivities, again, injournalism, aw, andliter-ature,and there were variousresponses, including co-optationsand inno-vations, on the partof the imamic regime. In addition,the early northernnationalists spent crucial periods in British Aden and also had contactswith Arab nationalists elsewhere. In sum, despite the comparativeisola-tion of the highlands, the last decades of the formerIslamic state of theZaydi imams must be understooddiscursively, in termsof its textualcul-ture, as already hybridized, at least at the level of the elite.A corollary I have pursuedelsewhere concerns the particularYemenihistory of the facilitating modern technology of print, which in Ander-son, as the compound concept print-capitalism, s given pride of ana-

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History of Religionslytic place.24A single newspaperexisted in the highlands, but it was animamic state product rather than a commercial enterprise, as was thecase in Aden. In the highly politicized domain of history writing, begin-ning in the 1920s and 1930s and continuing until after the revolution,there were importantdiscursive shifts, especially regardingsuch mattersas the address of a much expandedreadership,who eventually would beidentified, after the revolution, in national terms as the citizens (mu-watinin) and as the people (shacb).25Such changes were associatedwith the end of the manuscriptera of historiographyand were linked tothe availability of print, although it should be noted that most Yemenihistories of the imamic era were printedoverseas, mainly in Cairo.

A major and distinctively Islamic genre of history writing, one espe-cially instructiveabout notions of the individual, is the biographicalhis-tory (the tarajim or tabaqat works). Included in such works, for manycenturies in Yemen as across the Muslim world, were biographical en-tries on a stratumcomposed of noted scholars, major religious figures,educated leaders, and literati.26This classical form of entextualizationof individual biographies was highly stylized and elaborated, and fre-quently included excerpts of poetry, writtenby jurists as well as men ofletters, as expressive tokens. Based as they were on premodernnotionsof identity, status, andknowledge, on formationin the defunct old-styleschool (the madrasa) and on a social patternof restrictedliteracy, suchbiographical histories are no longer being written. The last of the genrein Yemen appearedafter the revolution.27As a genre they have not beenreplaced, except by such different and quintessentially modern works asWho's Who in the Arab World andby such new genres as autobiogra-phy.An importantsubgenreof scholarly identity,the ijaza, or academiclicense, the textual artifact of concluded madrasa study, was a per-sonalized document issued by a particular eacher to a particularstudentconcerning mastery of specific books, or parts of books. The ijaza haslikewise given way, in the familiarregime of a Ministryof Education,tonation-state-issued and standardizeddiplomas.

LEGAL TEXTSDoctrinal Islamic legal discourses, especially those of the premodernera, that is, prior to efforts at Western-style codification, the earliest of

24See Messick, The Calligraphic State (n. 13 above), chap. 6., Brinkley Messick, Onthe Questionof Lithography, Cultureand History 16 (1997): 158-76; and Benedict Ander-son (n. 1 above).25See Messick, The Calligraphic State, chap. 6.26See WadadAl-Qadi, BiographicalDictionaries: InnerStructureand CulturalSignifi-cance, in The Book in the Islamic World,ed. George N. Atiyeh (Albany: State Universityof New YorkPress, 1995).27MuhammadZabara,Nuzhat al-nazar (San'ca: Markaz al-Dirasat, 1979), publishedposthumously.

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Written Identitieswhich began in the central Middle East in the late nineteenth century,involved law of a specific cultural and historical variety. The Islamicsharica or, more specifically, the humanlyauthoredlegal corpus knownas the fiqh, pertained to a different type of political authoritythan thenation-state. It comprised a different range of material, including, forexample, chapterson ritual mattersin additionto those on contracts andcriminal law, and it was different in discursive terms as well. Wheresome of the old law books were written in condensed or rhymedform tofacilitate memorization, republicanlaw after the revolution would takethe discursive form of numberedcode artifactsin the internationalstyleof legislation.

Unlike the situation in virtually all the colonial settings across theMuslim world, from North Africa to the subcontinentand SoutheastAsia,in highland Yemen the sharica jurisdiction was the exclusive type ofofficial venue, and its coverage was not limited, as elsewhere, to the nar-row sphereof family law. The sharicacourts were staffedby single qadiswho heard a full arrayof cases concerning landedand commercialprop-erty relations and criminal matters.In the prerevolutionaryperiod, a dis-tinction existed between literature adab) and law (fiqh), but therewere not as yet separate tracks of academic formation. Up until 1962,there were no lawyers in Yemen in the specialized sense. Anyone whohad had any madrasa training beyond the elementary years of Quranicschool hadbeen exposed to the basic texts of thefiqh, which was the prin-cipal subject of advancedinstruction. This common formationin the lawmeant that individuals who went on to become historians or poets, forexample, shareda basic legal knowledge with those who became no-taries,judges, or provincial governors. After the revolution, by contrast,Islamic law would be displaced from its position as the centerpiece ofinstructionto become one among a numberof separateandparallelfieldsof academic study that could be pursuedby studentsat the new nationaluniversity.Tentative moves toward codification began in Yemen before midcen-tury, but modern codification per se did not begin in earnest until rela-tively late, in the 1970s. An innovative, but still recognizeably classicalfour-volumefiqh commentary, Taj al-mudhhab, was published in 1940.28Unlike all its many highland predecessors back through the centuries,this book firstappearedandcirculatedas a printedwork.As the critic al-Baradunireports,the new law book was enthusiasticallyreceived.29Likethe Ottomancode draftersof the late nineteenthcentury, wentieth-century

28 Ahmad b. Qasim al-'Ansi, Al-Tajal-mudhhab,4 vols. (1940; reprint,Sanca': Dar al-Hikma al-Yamaniyya, 1993).29 CAbdAllah al-Baraduni,Al-Thaqafa wa-l-thawrafi al-yaman, 3d ed. (Beirut:Dar al-Hadatha, 1993), pp. 145-52.

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History of ReligionsYemen jurists had begun to express their general fatigue with the longfiqh treatises and in particularwith the difficultyof extracting applicablerules.30The Tajwas saluted for its concision (not new in and of itself asthere is a classical genre of abridgment ) ogether with its simplicity ofexpression. Specifically, the Tajeliminated the former attention to con-tradictorypositions typical of the old commentaries. It focused narrowlyon the Zaydi school of the ruling imam ratherthan systematically citingthe views of other schools, such as the Shafi'is. In footnotes (also an in-novation), the authorcross-referenced the relevant opinions (ikhtiyarat)of the imam and he also took the unusual step of explicitly mentioning,often with a tone of resignation, the practices of custom. In all theserespects, the Tajalso contributedto redefiningthe categories of authorand reader within the doctrinal corpus of the local legal literature.Later, in the fifties, with legal codification the rage all across the MiddleEast, there was an importanteffort, authorizedby the ruling imam, tofurtherreduce the perceived complexities andprolixities of the localfiqhliteratureto a concise, modern-style set of articles, but the results of thiswork were not published until long after the revolution. After the revo-lution, as in the Ottomancase a century earlier, the authorshipof lawgenerally would be removed from the hands of individuals such as imamsand virtuosojuristsandmadeinstead the collective responsibilityof draft-ing committees andlegislative bodies. At the same time, the formal iden-tities and legal rights of the new, nation-state-erasubject categories, thecitizens and the people, would be enshrined in newly promulgatedtypes of texts such as the Yemeni Constitution.

PAPER IDENTITYI turn now from the early imported genres, and from poetry, his-toriography,and the doctrinal level of the law, all elite and specialistliteratures, to some of the mundane state records and ordinary legaldocuments of the era. It may initially be observed that imamic Yemen ofthe 1950s (and before) was a society and state without identity papers inthe moder sense. Yemen was not yet a nationof citizens, of technicallyhomogenous individuals (in Benedict Anderson'ssense) differentiatedby theirequivalent identifying documents.Therewere, of course, numer-ous otherunwrittenmarkersof prerevolutionary dentity, including, thenas now, dialect (indicating, in gross terms, e.g., origins in Upper Yemenvs. Lower Yemen) and especially attire,once highly elaborated accord-ing to status and occupation and now mostly dissolved, with the oldstratathemselves, into the comparativelymodular dress of the classes ofcitizen.

30 See Messick, The Calligraphic State, p. 55.

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WrittenIdentitiesIn the imamic era people did not carryon their persons (which con-sequently did not exist as such) the commonplace contemporarypieces

of personal documentation that include national identity cards, driver'slicenses, military conscriptionpapers, or bank account cards. Such doc-uments these days identify the Yemeni citizen by name and by one ormore types of registered number,just as such individuals now have anumberedpostal address,a telephonenumber,and a vehicle license num-ber. Withprint, advancingcommercialization,professionalization,bureau-cratization,universal education, and internationalwage-labormigration,individuals also now have entirepersonaldossiers of documents, includ-ing certificatesof birth andresidence, diplomasof scholastic attainment,employment records,various sorts of attestationsof marital,military,ortax status, and, for many, theirpassports.31 ntegralto this familiar mod-ern story of identity constructionis the now ubiquitous photo studio thatproduces the required photographs to be placed on the various docu-ments and reproduces the necessary multiple copies of the documentsthemselves.Imamic Yemen was a society without such proliferating, character-istically modern documents of personal identity, but it was not, to putit mildly, a society without written documents. The old state did keeprecords,and these included, for example, tax (zakat)andcharity (sadaqa)lists and also simple personnel lists for the military and other adminis-trations. This was not the massively detailed bureaucraticregime of theold OttomanEmpire, althoughthe Ottomans n their time around he turnof the centuryin Yemen had tried to reform local bookkeepingpractices.Imamic state recordkeeping generally was characterizedby its informal-ity, both in the concrete sense that its documentationpractices predatedreliance on printed forms and in the conceptual sense that it was nothighly elaborated, rationalized, or standardized.32While the state keptseveral types of lists, individuals typically held no personalversions, nocertificates, whetheroriginals or copies, to retain and use for themselves.Simple, handwritten receipts were given for the in-kind collection ofthe agrariantithe, texts that gave one's name, village, and the type andamount of grain.Names, as they appearon the charitylists, for example, are instructivein their informality. They are different in this respect from either theformal names found on the legal documents of the period or from theseveral types of honorifics and otherwise extended names common to

31 A limited numberof passports were issued by the imamic state-to diplomats, stu-dents studying abroad,and some merchants,such as those who regularlytraveled to Adenor to the Hijaz.32 See Messick, The Calligraphic State, pp. 187-92 and 237-41.

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History of Religionsentries on notable individuals in the biographical histories. The charitylists for the quartersof the Yemeni town of Ibb are typical, although itshould be noted that this charity institution was an urbanphenomenonand Yemen in the 1950s was mainly a countryof villages and ruralpop-ulation. As opposed also to the modem legal name, which now includes apermanent,Western-style family name (selected and established whenthe first identity papers were created some years after the revolution),these names are practical and local in their identifying style and refer-ents. One charity list includes in reference to women, for example, thewife of MuhammadAsad, the sister of AhmadNagi, the 'family' ofFaqih Ahmad Muhsin, and the mother of MuhammadLatif. At thetime the lists were compiled, many women were not publicly identifiedby their first names. At home, but in the presence of guests, older menstill call out to their wives using a son's name. When it came time, in1975, to conduct the first national census, under the republican govern-ment, the problem of recordingthe names of wives, daughters,and sis-ters arose. Especially in ruraldistricts, a patriarchwould be offended andperhapsviolent if a census takerasked for the firstnameof family women.A humorous skit was put on at the time in the town of Ibb to raisepeoples' consciousnesses. A young actorplaying the traditionalturbanedtribesman smoking his long pipe is addressedand immediately enragedby the suit-wearing young teacher inquiringabout his women's names.But also on one old charity list, however, perhaps indexing differencesof statusandtown residency,one reads, the free woman Muhsina and herchildren, the divorced woman RabiCa, nd, simply, Halimadaughterof al-Mubayyad.Many other names have further pragmatic identifications prefacingtheir names and pertaining mainly to the various afflications or socialvulnerabilities that made them deserving of charity: the sick ,

the afflicted , the aged , the dumb , the in-sane , and the orphans . The local idiosyncratic practi-cality, as opposed to the standardizedmodernityof identifications on the1950s charity lists, is furtherindicated by some identifications based onspecified locations in specific quarters: in the house of QasimAli, for example, as partof the individual's dentifying one-line entry,orsuch identifying characteristicsas the son of Sinanwith the cut-off leg.Such naming devices indicate a local town society of known individ-uals, a version of a face-to-face society based on gender and other so-cial differences, rather than a modern one of theoretically equivalentcitizen-strangers. The character of such lists speaks also to the limitedbureaucraticreach andrationalization of the imamic state andto the lim-ited degree of control and organizationby the state of private identities.The extremely restricted,or at least informal and unelaboratedsphereof

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WrittenIdentitiesaction of this state, in fact, poses a general problemfor the use of suchnotions as private and public. 33With the public sphere of the stateso little elaborated, we need other language to describe the very largedomain of the private.If imamic Yemen was a society largely without identity papers per-tainingto individuals as such, therewas, however, a proliferationof writ-ten documents associated with propertyrelations. To the extent that itwas documentedin this agrarian ociety, individualidentitywas attachedto landed property.Key dimensions of identity were mediatedby prop-erty relations, between legal dyads such as seller andbuyer, landlord andtenant, deceased and heir. An individual who was not an owner, tenant,or heir was, by virtue of his or her noninscriptionin any such propertyrelations, likely to be an undocumentedindividual.The rugged mountains,valleys, andhigh plateausof the Yemeni coun-tryside are carved up into innumerable small terraces,curved and irreg-ular in shape. Each such terrace is identified by a name, and sometimesalso by collective names for sets of terracesor areasof cultivation. Someof the names are those of individualsor descent groups,but they aretyp-ically very old. None refer to living persons, except in a few instances tocontemporarydescendants.Each of the thousandsuponthousandsof ter-races in any region is documented,often multiply so. As a minimum,foreach piece of land, however small, ownershipis establishedby a writtendeed or, moreprecisely, an instrumentof sale andpurchase(a basira), orelse by an entry in an estate division document (afarz, orfasl) pertain-ing to an individual'sownership throughinheritance.In addition, for allterraces that were sharecropped,which was the most widely practicedform of tenure, there usually was a furtherdocumentof lease (ijara). Incontrastto the propertyregime of a nation-state,however, all such doc-uments were retainedexclusively by the landlordsor owners in questionin theirpersonal archives andregisters.The state archivednone of thesedocuments, not even as copies or in the form of notations.Such texts renderedsuch partiesas a landlordanda sharecropping en-ant, for example, formally equivalent on paper, as contractingindividu-als. At the same time, however, sharecropping eases also offeredpartialrepresentationsof the many technical features of subordinance.This isbased, in the specifics of each text, on a stated relation of a propertyowner, a ruraltenant,anda particularplot of land. In addition to the har-vest shares, such contractsspecified other local obligations, includingthemaintenanceof terracewalls, therequireduse of nightsoil, the deliveringof a specified quantityof clarified butterto the landlord,and the provi-sion to the landlordof one or moredays of additional,corvee-style laborat his house. In the case of sharecropping eases, the legal contracts,the

33See Aijaz Ahmad, In Theory (London and New York:Verso, 1995), pp. 107-9.

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History of Religionsijaras, were importantartifactsof key human identities andrelationships.If each contract s a legally phasedmicronarrative, ollectively such textsrecord a local historyof relations of production.As opposed to the purelyelite quality of works of literary art, historiography,or legal doctrine,these were texts that connected the propertiedelite, andordinarypropertyholders as well, with the masses of cultivators, subjects whose storieswere not otherwise written.A distinctive legal form of private property(known as milk) was, andis, a fundamentalsharica institution. With the exception of endowments(waqf), landed propertyin Yemen was individually owned, as a conse-quence either of purchaseor throughthe system of partible inheritance,and it could be alienated by sale and by other means such as gift. Themodernity of this property system is striking, as is the more thanthousand-year-old(mercantile) capitalist orientation that is characteris-tic generally of the sharica. The modernity of this propertyregime wasconditioned in numerous ways, however. An individual's freedom ofaction in selling a propertycould be limited by such distinctive, shariCa-based legal constraints as a form of sale preemption or by the impedi-ment of prior conversion into an endowment. At the same time, thepredominance of individual ownership in Yemen was distinctive incomparison to the property regimes common to many other parts of theMiddle East. These were characterized not so much by shariCa-basedindividual propertyas by either state control and lease of land, as in themiri propertyof the former OttomanEmpire, or by forms of collectiveholding, such as musha' lands of the Arab Levant.As a consequence, where an importantshift in propertyrelations andin associated legal subjectivities is clearly evident in both doctrine anddocumentation from about the mid-nineteenthcentury in the Arab prov-inces of the OttomanEmpire,as miri or mushac lands were converted toregistered individual title, in Yemen, where the propertyregime alreadywas based on individualownership,transitions n propertyrelations(whichalso occurred muchlater)aremuchmore difficult to recognize. Importantchanges nevertheless were under way in mid-twentieth-centuryYemenipropertyrelations, and these were associated with advancing commer-cialization and with the beginnings of large-scale wage-labor migrationsout of the highlands. But because of the alreadyexisting modernity ofthe highland Yemeni propertyregime, such changes were not so directlyreflected in, that is, they requiredno changes in, the legal formulationsof the associated propertydoctrine or documentation. In the land doc-uments, change nevertheless is subtly markedby shifts from paymentsin kind to cash, shortened lease periods, or shifting styles in the writingitself.34

34See Messick, The Calligraphic State (n. 13 above), chap. 12.

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Written IdentitiesMost legal instrumentsof the twentieth-century mamic era were writ-ten by privatenotaries who operatedwithout any form of state license or

supervision. These legal specialists functioned in an institutional spacethat was, again, neither public nor private in the moder sense. It waslocated outside the purview of the Islamic state andinvolved serving thepublic with acquired legal knowledge in a marketplace-demand ashion.Notary publics, licensed lawyers, and registries of written deeds are el-ements of a peculiarly modern type of property regime, an importedversion of which appearedin the various regions of the Middle East inapproximately the same periods as the new literary genres. Each suchgenre category of literature, he legal and the literary,representeddif-ferent textual dimensions in the development of complex local versionsof the modern individual.

LEGAL NAMESUnlike the informal names discussed earlierin connection with the statecharitylists, sharicapropertydocumentsrequired he use of formal legalnames. I want to turn now to identityconstitutionin connection with suchnames in a different type of period legal writing, a sharica courtjudg-ment. I take as anexample the text of a murdercase from 1960, in the lastyears of the imamate.The judgment document opens as follows:In the sharicacourt of the government eat of IbbProvince, he claim wasentered romMuhammad Abduh assanandhis wife, the free womanHamdadaughter f Muhammad Ali acid, esidents f thevillageof CAdanMaghraba,regionof BaladShar,after dentificationf theaforementionedndhiswomanby HajjCAbud. CAli ndQasimNu'man,against he[individual] resentwiththem at the legal session, CAliMuqbil CAbdal-CAzizal-Shamali, saying (dual)in theirclaim, andindicating he accused,thathe killed theirson Ahmadb.Muhammad Abduh assan,with intentandenmity,by a stabof his dagger,amortal tab,onthe left sideof thementionedmurdered an.Themurderedman)dropped eadfrom t at that nstantandfell upon hegroundwithouta sparkoflife in him.35

In this era before family names had been chosen, registered, and en-tered on all mannerof personaldocuments, individuals involved in legalcontracts or in litigation were identified legally by their tripartitename(ism thulathi), comprisingtheir own first name,their father's irstname,

35Fora partialtranslationandanalysis of thejudgmentdocument see BrinkleyMessick,L'ecritureen proces: Les recits d'un meurtredevant un tribunalsharCi, Droit et societe,forthcoming.

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WrittenIdentitiesthe accused hadacknowledged the crime, was askedby thejudge to iden-tify him in the courtroom. It is reportedin the record that he indicatedthe father of the murderedman. Then, CAliMuqbil was pointed out tothe witness and the witness said, 'that'sCAliMuqbil'.With respect to witnesses unknownto the court,which was the typicalcase, further dentifiers were required.The testimonies of the first set ofwitnesses to appearfor the claimants' side are recordedin the judgmentdocument, and this passage is followed by one in which the identities ofthe witnesses are established: The (identities) of the aforementionedwitnesses were made known by Hajj CAbud . 'Ali and Qasim Nucmanand M. Qasim al-'Awadi and al-Faqih CAliQa'id al-'Umal. And theytestified also to the probity [Cadala]of the witnesses and that they didnot know with respect to any of them any aspersion.As I have discussed in my book, witnessing, like academic instructionin the old system, was based on the ultimate authorities of humanpres-ences and the spoken word.41A just (Cadl)witness is the ideal con-veyer of truth,which was anchored n his or her identityas a Muslim andin the assumed accuracy of the senses in an individual of full capacity.A witness is an individual who was both at the scene and, later, presentbefore the court. He or she is a transmitterof the securestform of humanknowledge. A local society is a community of potential witnesses withthe obligation to act as a witness based on Quranicverses. The linkagesof witnessing also are comparableto those engaged in the transmissionof hadiths (traditionsof the Prophet). Witnessing is horizontal and com-munitybased, while hadith transmission is historical andgenealogical innature.In the doctrineconcerningwitnessing, andin hadithstudies, thereare comparable critical methods for inquiries into the integrity of thehuman links: the method of jarh wa tacdil, disparagingand declaringtrustworthy, s characteristicof both fields. In courtcases, an initial stagein the validation of witnesses is their identification, by the supportingidentifiers,who also declare that the witnesses are Cadl,orjust. A poten-tial laterstage is when an opponent presentswitnesses againstthe claim-ant'switnesses, that is, witnesses of jarh, or disparagement.

LEGAL BODIESThe initial claim in the cited murder case also contains the followingpassage: The aforementioned murdered man has no heirs except hisparents,his father and his mother,the aforementionedaccusers, andtheydemand sharicretaliation(qisas) fromthe one specified in the claim, thisfor his murderingof a Muslim with intent and enmity.

41 Messick, The Calligraphic State, chap. 11.

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History of ReligionsA distinctive feature of homicide trials prior to the revolution, andprior to the existence of an office of public prosecution, was that they

were privately brought, by the awaliya' al-dam, those with rights tothe blood, that is, in a period and doctrine-specific sense, rights to theperson. These rights are sometimes also referredto as concerning a nafs,a soul or person. In any claim broughtin this manner,it is importantto go beyond identification of the claimants to specify their status in re-lation to, in this case, the deceased, andto indicate whether there areanyothers who might also have relevant statuses. Here the case is broughtby the victim's father and mother, who are asserted to be his only heirs.In sharica law it is the awliya' al-dam who have the right to demandretaliation (qisas) if they can prove their case. Thus, the initial eyewit-nesses for the claimants also support the basis of the parents' claim:Each of them also bore witness to the fact that the deceased's heirs areconfined to his father and his mother and that he has no heirs except forthem. The Republic of Yemen now has a state prosecutorialoffice (theniyaba) that is charged,by legislation of 1977,with a newly createdpub-lic responsibility for bringing homicide cases to trial under the terms ofthe new penal code and the law of criminal procedure.42 n the Islamicstateof the 1950s, by contrast,homicides, and crimes in general, engagednot a public interest of the state (althoughit did provide the legal forum)but that of privatevictims, theirheirs, and the kinspeople of the accused.As is true to a lesser extent in all types of prerevolutionary itigation,kinshipterms andargumentswerecommonly deployed in homicide cases.In their doctrinal works, the jurists themselves carefully distinguishedbetween the meaning of words in the language (classical Arabic) ver-sus their technical usage in the sharica. In the written court records,some familiar kin terms, including many importantrubrics of identityspecification, take on specific legal significance. In the course of the trialat hand, for example, the two sides repeatedly arguedin the language ofkinship. The claimants assert that group spirit (casabiyya, Ibn Khal-dun's famous term for kinship solidarity among tribesmen) moved theiropponents to bring false testimony. Specifically, it is argued, the oppo-nents illegally broughtwitnesses from their own clan, their Cashira,andfrom those under theirsway, their tenantfarmers. It is furtherarguedthatthe witnesses for the defense were among the potential blood-money-paying relatives of the accused, which shoulddisqualify them. These wit-nesses are described as descendant from a single grandfather, nd thusas constitutinga single compensation (ghurm) group. Finally,it is claimed

42 See Brinkley Messick, Prosecution in Yemen: The Introduction of the Niyaba,International Journal of Middle East Studies 15 (1983): 507-18.

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Written Identitiesthat they are defending the accused as one of their agnatic cousins, oneof their awlad al-'amm.

In homicide cases triedunder the auspices of a sharica system such asexisted in Yemen, a version of the legal institutionof inheritancerightsis engaged, and it is in this connection that the father and mother arereferredto technically as the victim's heirs (waratha).Individualiden-tity, in legal terms, is closely bound up with the sharica's renderingsof familial relations, including its premodern form of individualism,based on partibleinheritance;its distinctive version of the nuclear fam-ily; its particularassertions of womens' rights; and its continued, butbackgroundedreliance on the rights of the male-line descent group, theCasaba. The relevantawliyya al-damin a homicide case, those with rightsto the blood or to the person, hose who can bring a claim, are pre-cisely the victim's heirs in the estate inheritance sense. On the other sidein such cases a similar kin group constellation is engaged by the litiga-tion process. The case at hand ended in a finding of guilt and gave theright of legal retaliation to the claimants, who called on the state toexercise it. Another potential outcome, however, was the acceptance ofblood money, that is, financial compensation instead of retaliation.Insuch outcomes two kin groups confronted each other as the payers andthe recipients of the money transferred.The Caqila,a word common incolloquial discourses of tribe, and equivalent to the male-line descen-dants, were the specific legal individuals who paid the blood money onthe murderer's ide and received it on the victim's side.Such relations of individuals to their kin groups are potentially com-plex and, as the homicide case illustrates, situational.Analyses of suchrelations, of course, also represent one of the conventional sites foranthropologicaldiscussions of personhoodand identity.43 n the anthro-pology of the Middle East, such discussions have centered also on theapplicability of the venerable theory of the segmentary lineage. It iscommonly claimed that the shari'a law of homicide served to reduce thesphere of legal retaliationto the perpetratorof the homicide alone, thushelping to combat the endless cycle of killings and the multiple retribu-tions of feuding in the pre-Islamic past.44This further llustrationof theindividualismthat runsthroughthe sharicais attachedto a concept of in-dividual guilt, anchoredultimately in an individual intention to kill. Butin the doctrine, just as egalitarian notions coexist with countervailing

43 See, e.g., CliffordGeertz, Person, Time, and Conduct in Bali, in TheInterpretationof Cultures (New York:Basic, 1973); and Clifford Geertz and Hildred Geertz, Kinship inBali (Chicago: University of Chicago Press, 1975).44See, e.g., N. J. D. Anderson, Homicide in Islamic Law, Bulletin of the School ofOriental and African Studies 13 (1951): 811-28.

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History of Religionsconcepts of hierarchy,so sharicaconstructions of individual identity co-exist with rights pertainingto social collectivities, including both kins-men and the Muslim community (the umma).45As is illustratedby the example homicide case, the physical body isitself understoodin legal terms. Homicide falls in the general legal cat-egory of wounds (jinayat) and standardchapters are devoted to thissubject in the fiqh works. There also were small, specialized treatises(the urush works), some in rhyme for easy memorization, that set levelsof monetarycompensationfor everythingfrom a bruiseto a death. Whereheirs can receive compensation for a death, wounded individuals receivecompensation themselves. In addition to their elaborate conceptions ofthe body and its potential injuries, these written compensation rules areone of several importantsites for the legal specification of social differ-ences along the lines of gender (a woman's murder is compensated athalf the rate of a man) and, in former times, freedom versus slavery.In the injuries doctrine, the identity of the body merges with that ofa commodity. The fiqh manuals thus also discuss injuries to property.46The wound evaluation doctrine also is coupled with a premodernmed-ical science. In the homicide case, the corpse was carriedin to the townto the district officer, who made a simple examination, the only such

medical exam, and he issued a report.He evaluated the body, not as aprofessional coroneror medical examiner,but using the body and woundterminology of the old treatises. The lethal stab wound from whichhe died is simply identified as located in his side below his left ribs(and)penetratingthe abdomen. Since this historically specific regime ofbodily techniques did not include the familiar modern technology offingerprintingto establish identity and to connect individuals with ob-jects, the bloody daggerthat also was brought n representeda fairly sim-ple piece of evidence. The eventual evidential importof both the corpseand the dagger rested instead with the assembled men, the witnesses ofthe crime who appearedbefore the district officer.ContemporaryYemenilaw now requires moder-style medical examinations to implement itsnew code of criminal procedure,but the requisite expertise is lacking.

LEGAL INTENTFrom legal identity construction in connection with formal naming andthrough he associatedtechniquesof witnessing, and withrespectto rightsin the body, I turn now to the individualsharica subject as fundamentallyconstituted by intent. All sharica analyses ultimately turn on matters of

45See Messick, The Calligraphic State (n. 13 above), pp. 152-66.46See, e.g., al-CAnsi n. 28 above), p. 312.

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WrittenIdentitiesintent.47Central to winning a homicide case, to continue the previousexample, is the establishingof homicidal intentby means of evidence. Inthe case at hand,the requireddoctrinalformula,that the murderoccurredwith intent andenmity, s frequently quotedin the record,beginning inthe opening claim. On the basis of his case materials fromMuslim courtsin Morocco, Lawrence Rosen has led the way in the anthropologicalstudy of legal intentionality,stressing the connection between such cul-turalconceptions and relatedconcepts of the person.48Rosen has empha-sized the social-contextual, namely, how overt acts and social identitiesare understoodby judges and others as indices of the inner intentionalstate. By contrast, I want briefly to indicate how Muslim jurists of theZaydi school in Yemen formally conceptualize intention and how thisbearson theirtheoreticalanalyses of spoken words andwritings, specifi-cally the sorts of Yemeni legal documents discussed earlier.In contract law, with sale as the model, Muslim jurists of the fiqhgroundedtheiranalyses in the existence, or not, of the requisiteintention,or consent, between the parties. Among Yemeni jurists, however, therewere importantdifferencesof opinion concerningtherelationshipof spo-ken contractual words to intent. One view, that of the fifteenth-centuryImam al-Murtada,held that contractual words had legal significance asindicators of consent and that, as a consequence, linguistic analyses ofcontractual expression were required.49The opposing view is exem-plified by Imam Yahya, the Yemeni ruler who died in 1948. The imamissued a concise personal opinion on the issue, which states, [Specific]wordings (alfaz) arenot conditions in sale, thatis, in the offer andaccep-tance, or in lease, since the crux of authorityis mutual consent (taradi)regardingall that is indicated. 50n the late nineteenthcentury,the new

47See Y. Linant de Bellefonds, Traitede Droit MusulmanCompare,3 vols. (Paris:Mou-ton, 1964). In a recentarticle, TheValorizationof the Body in Muslim Sunni Law (Prince-ton Papers: Interdisciplinary Journal of Middle Eastern Studies 4 [1996]: 78), BaberJohansencontrasts two spheres of the law, the commercial and the social, the formerbased on analyses of intent and the latter nvolving a strict formalismwith very little placefor intent. In another recent article, Intention and Method in Sanhuri'sFiqh: Cause asUlterior Motive (Islamic Law and Society 4, no. 2 [1997] 201), Oussama Arabi discussesthe work of the influentialmid-twentieth-centuryEgyptiancode drafter,CAbd l-Razzaqal-Sanhuri,on the issue of intent. It was Sanhuri'smodernist aim to find notions of ultimateintent in Islamic law similar to those in modernFrench aw. Although all four Sunnischoolsof law agree on the importancein contracts of the specific subjective condition of consent(rida, taradi), they disagree on the legal weight of largerintentions, which Arabi refers toas ultimate, ulterior, and driving.48See LawrenceRosen, Intentionalityandthe Conceptof the Person, n CriminalJus-tice, ed. J. R. Pennock and J. W. Chapman(New York:New YorkUniversity Press, 1985),pp. 52-77, The Anthropology of Justice: Law as Culture in Islamic Society (Cambridge:Cambridge University Press, 1989), and LawrenceRosen, ed., Other Intentions(SantaFe,N.M.: School of American Research Press, 1995).49 Imam al-Murtada,Kitab al-Azhar (n.p., 1973).50'Abd Allah al-Shamahi, Sirat al-'arifin (San'a': Matbacatal-MaCarif, 937), p. 6.

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History of ReligionsOttomancivil law code, the Majallah, had articulateda similar generalprinciple: Decisive in contracts is intentions and meanings, not word-ings and forms. According to the Yemeni commentator on the imam'sopinion, neither the particular egal forms (siyagh) nor the wordingsof an agreementconstitute conditions.51 Rather, he states, the crux inimplementing a sale or in cancelling it is the consent of the exchangersand their [having] parted consenting. This consent, however, is seatedinternally, specifically in the heart. For purposes of legal analysis, theexistence, or not, of consent or, more precisely in bilateral contracts,of mutual consent (taradi), and thus of the legality of the transaction,and thus also the existence of the propertyrights and of whatever iden-tities are entailed, may be established throughan examination of man-ifest expression (zahir al-khitab) or by means of an available sign orindication (imarah). This determination nvolves any avenue of com-munication, any way we can learnof the occurrence of consent, by anymethod we perceive it, whether act or word. The point is to establishconsent to the exchange, to taking and giving in the case of a salecontract,by means of what is knowntechnically as contextualevidence(qarina).52A basic tension in such analyses is that the wordings they[the parties to the contract] stipulated representone of the basic formsof this contextual evidence.At the same time, however, contractualwordings represent only thevoiced word (al-qawl), which translates what is in the spirit (nafs).53 Inand of itself, then, the specific wording employed in sale and relatedbi-lateral contracts is not to be considered constitutive or binding, but thissame wording may serve as a principaltype of contextual indicator con-cerning that which is constitutive and binding, namely, consent. In suchanalyses, in a culturally specific foundationalism, it is assumed that abedrock of humanauthorityand truthexists, but also that it is located ata remove from ordinary discourse, internally (in the heart, or in thespirit )in the elemental language, if that is the appropriate erm, ofhumanintention (qasd, niyya).54In anotherdomain of legal acts, however, this worksdifferently.In con-trastto sale and the relatedbilateralcontracts,in the domain of unilateral

51Ibid., pp. 6-10.52 See Wael Halaq, Notes on the TermQarinain Islamic Legal Discourse, Journal ofthe American Oriental Society 108 (1988): 475-80. See also N. J. D. Anderson, IslamicLaw in Africa (London: FrankCass, 1970), p. 372, where qarina is defined as context,indication, circumstantial evidence.53al-Shamahi,p. 8, where the association of consent and nafs is explicit.54 In the sale chapterof fiqh works, qasd frequently is used; in the icbadat (ritual) sec-tions, niyya is more common. According to one definition the two are interchangeable: al-Niyya is al-qasd andal-irada, which are found in the heartof the individual of full capacity,[and is] not simply al-lafz [wording],nor simply faith (al-ictiqad) or knowledge (see n. 2,by an unidentifiedannotator, n al-'Ansi, p. 38).

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WrittenIdentitiesacts, such as repudiation(talaq) of a wife by the husband,there is no re-ciprocal, dialogic form of utterances(such as the offer andacceptancein sale). Instead, the types of utterances evaluated in discussions of re-pudiationare unilateraldeclarationsby the husband.In this legal domain,wording lafz) can have independentweight. Furthermore,while a salecan be constituted at the level of intentionalone, however, a repudiationcannot: It cannot occur simply with intention, rather wording is re-quired. 55n fact, unilateralrepudiationsbecome bindingand enforceableif certain correct wording is spoken.From this legal perspective, the problem of meaning within humanrelations is structuredby a foundationalismthatlocates the site of mean-ing generationinternally,within the heartor spirit,andbeyond directob-servation.In humanrelations,specifically in the legal formsof exchange,with the bilateral sale contractas the model, determinativemeaningfor-mation is understood to be situated at a crucial remove from the livedsign world of language. Analyzing mutual intentionalityand consent inthe complex situation involving two participantsto an undertakingre-quires an effortto understandwhat Bakhtin would refer to as dialogicallyconstituted meaning.56Given the assumed gap between intentionforma-tion and all forms of expressionandsignification, egal analysesamountedto attemptsto erect bridges to the inaccessible from the accessible. Theinterpretivework of scrutinizingspokenwords,rejected by some Muslimjurists such as the twentieth-century Yemeni Imam Yahya, but advo-cated and elaboratedby others in earlier generations, representssuch abridging effort. Analytically different, as noted, is the situation of theunilateral declaration.Supposedly unclutteredby a response from an in-terlocutor and the latter's intention, intentionality in unilateral acts cancome closer to being directly reflected in manifest expression.Bakhtin has writtenof the authoritativeword that we encounteritwith its authorityalreadyfused to it. 57 n the social and linguistic viewof the Muslimjurists, humanmeaning constitution occurs at the level ofintention formation,and it is only in the theory of the unilateralact thatauthoritative ntentionalityapproachesbeing fused with the spokenword.Otherwise, the authoritativeword exists in the deeper, or prior, lan-guage of human ntentions, in relation to which the externallanguageofcontractualrelations is, according to the majorityview, epiphenomenal.The limit case here, I suggest, is the divine word, in which, by defini-tion, there is no separationof intentionality and expression. It is para-digmatically the Word of God, in the Quran, that is encountered byMuslims with its authority already fused to it. Like the divinity, the

55Imam Al-Murtada,al-Bahr al-Zakhkhar(Cairo, Matbacatal-Sacada,1947), 3:155.56 M. M. Bakhtin, TheDialogic Imagination (Austin:University of Texas Press, 1981).57 Ibid., pp. 342-43.

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History of Religionssource of authority in human intentions is, again in Bakhtin's terms,located in a distanced zone. Ultimately, neither knowledge of GodAlmighty nor of the interiors of others' intentionalities are fully attain-able by humans,but these sources of authoritativemeaning, these localesof truth, remained the identified goals of interpretive effort. Meaningconceived of as constituted in a distanced zone activated and moti-vated a distinctive semiotics, a legal science of manifest signs integraltoan interminable,yet always incomplete andalso always contested humanpursuitof understanding.58

WRITTEN INTENTThus far, my discussion of legal intent, and by extension, the funda-mental constitution of the sharica subject, has referred to such manifestforms as spoken words and gestures. A furtherlayer of problem is en-gaged in considering manifestations of intent in written representation,in the textual creation of what I referred to earlier as paper identity.The issue in question is the technical status of writing itself. By writ-ing (kitaba), Muslim jurists generally refer to something concrete andenduring: Itis necessary thatit leave a trace (athar) which may be seenexternally, and this does not occur unless it is [inscribed] writing, as inwritings on paper or boards or stone, etc., on which the letters of thewriting remain inscribed. This could even include writing with earth orflour, or upon them. 59Written representationhas different implications in unilateral versusbilaterallegal acts. As with the spoken word, writing in the context of re-pudiationis special because it is associated with unilateralexpression (bythe husband).It is the singly acting individual'sproperor autographwrit-ing. In bilateralcontracts,speech is envisioned as the normalmedium forthe offer and the acceptance, but these reciprocal expressions may takethe form of either word or action, with the latter including writing. Itis importantto emphasize that the jurists speak here of writing as asecondary modality of possible expression by the partyor partiesto legalactions. At this level, they are not concerned with writing in the broadersense of the written legal instrumentssuch as the propertydocuments Ifocused on earlier.

58 This legal semiotics was a simplified version of the analytic frames elaborated in theMuslim language sciences, notably in Cilmal-bayan, or rhetoric.Thus, one jurist explainsthat among jurists the term kinaya means indirect expression in general ratherthan itstechnical meaning of metonymy among the language specialists. In al-Hasanb. AhmadJalal,Daw' al-nahar, 4 vols. (Sanca':MaktabatGhamdan,1985), 3:905-6, Jalalstates, theintention in [the use of the term]kinaya here is not the kinaya of the science of Rhetoric.59The bracketedword is from a source text, a matn, located in a surroundingpassage ofa commentarywork, a sharh. The word luh refers to the writing boards used by students.See Al-cAnsi (n. 28 above), 2:122.

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WrittenIdentitiesA second opinion by Imam Yahya, however, mainly concerns suchnotarialtexts, that is, the legal documentation(basiras, ijaras, etc.) pre-

pared after the contract or disposition by an individual not party to it:Reliance (al-'amal bi) on writing is acceptable if its writer is knownand he has a reputationfor probity. 60The focus of this formulation is on the acceptance of written legaldocuments as evidence in court. This opinion addressedthe widespreaduse of such documents in Yemen. At the same time, it rancounterto thethrustof the doctrinalfiqhon the matter,which envisions only oral formsof evidence. Here again, however, the imam's opinion accords with aprinciple established in the new-style OttomanMajallah. But even thislate nineteenth-centuryprinciple is backhanded: Writingand seals arenot to be relied upon in and of themselves, but if they are free fromsuspicion of forgery and fabrication, they may be relied upon, that is,they may be the determiningelement of the judgment without requiringsupportof anothertype. 61Before the Turksintroduceda type of noncompulsorydocument reg-istry in certain of their Yemeni courts in the second Ottoman period(1872-1918), there was no state archiving of legal documents such asdeeds andwills. Underthe succeeding imamicstate, individualsremainedfree to have their legal instruments entered in court registers, but mostdocuments were not recorded,as I noted earlier. In Yemen, as elsewherein the Middle East, legal documentsfiguredcentrallyas evidence in manytypes of court cases, but in thefiqh this importantsocial reality of doc-umentaryusage was not directlyreflected.While they mention such legalwritings in passing, the chapters on evidence, or testimonies (shaha-dat), strongly emphasize verbal witnessing as the norm. It was in theseparateand specialized stipulations (shurut) literature,also authoredby jurists,thatdocumentarypracticewas addressed.62 hese shurutworks,including a late nineteenth-centuryexample from Yemen, provided de-tailed guides for the preparationof sound instruments.According to the generalfiqh doctrine,notarial documentscould enterthe realmof evidence, butonly by means of accompanyingoraltestimonyas to their authorshipand contents.63Documents did not stand alone inthe courtforumportrayed n the doctrinal treatises.Togetherwith the in-scribing notary,the witnesses to a contract had to be presentat the orig-

60 I have previously addressedthis ikhtiyar(see Messick, The Calligraphic State [n. 13above], chap. 11, where I translatedand discussed the commentaryon it by al-Shamahi[n. 50 above], pp. 31-33).61 Art. 1736, al-Majallah, pp. 250-51.62 See now Wael Hallaq Model ShurutWorks and the Dialectic of Doctrine and Prac-tice, Islamic Law and Society 2, no. 2 (1995): 109-34.63 Al-CAnsi,4:104-5.

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History of Religionsinary event, the contract session. But in order for informationcontainedin a resulting document to be considered by the court, the witnesses ide-ally had to testify as to the document's contents and also had to com-plete their testimony by means of an oralreading (qiraDa) of the textin question.64 n theory,then, writings had to be converted to spoken tes-timony in order to have evidential value, althougha participant'srelationto his or her own writing representeda special case.65Such doctrinalreservationsconcerning the evidential status of writteninstrumentsshould give us pause as we attemptto formulate conclusionsabout the creation of sharia subjects in legal documents. If, in the esti-mation of the jurists, such texts could not stand alone as evidence incourt, what should their standing be for us in our effort to understandthe sharica subject of the period? In the first place, the doctrinal hand-wringing aboutthe evidential characterof such writings was only partofthe story. As noted, there was an intermediategenre, the shurut works,authoredby jurists and designed to provide models for correct instru-ments for the various types of transactions. More important,however,was the fact that in the courts of the midcenturyimamate realm, soundwritten documents were the standard orm of evidence in the great ma-jority of cases, which mainly concerned landed property.This wide androutine reliance on such documents should buttress our interest in themas keys to some aspects of identity and agency in the period.In the second place, however, the problematizingof such writings byjurists is crucial to understand,since it informs us about the culturalpa-rametersof the local analytic system. Behind these ordinarywrittenlegaldocuments is a system of thought grounded first in intent and, second,in human presences and the related authorityof the spoken word. Thejurists'cautious, even suspicious, treatmentsof such writings were asso-ciated notjust with the very real threat of forgery but also with other cir-cumstances of the late manuscripterajust priorto the rise of printcultureand the nation-state. In this era, writings had yet to be secured by eitherthe new authorityof printedforms or, more important,by the backing ofa state that would license notaries and lawyers and record and archivetheir written instruments.

64 Preferably,this reading is by the document's maker, hat is, the writer, who is theprincipalwitness or the text he has writtenand signed. The readingis to the two requiredwitnesses to the transaction,whose names, and sometimes also signatures, appearat thebottom of the typical document text. In testifying, the witnesses must be able to say, hereadit aloud to us and we listened, or, the other way around, we read it aloud to him andhe listened to our reading. As with all evidence, this reading also must occur before theface of the present and listening opposing party to the litigation, and before the judge.See also the formulationof Art. 1038 in Taysiral-maram (San'ca: High Judicial Institute,1986).65See my discussion of this in The Calligraphic State, pp. 209-11.

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Written IdentitiesCONCLUSION

I have attemptedto present some elements of a local history of the legalsubject as viewed throughthe medium of a changing cultureof writtenrepresentation. This has required an integration of several strands ofanalysis in a manner nspired,at least at the outset, by the ideas of Bene-dict Anderson and some of his later critics. The well-known approachesI have adopted from this tradition of scholarshipinclude the address ofthe state as an imagined phenomenon and the recourse to literatureas akey site for understandingsuch imaginings. I have departedfrom thistradition n threemajor respects. First,rather hanthe nation-state,I havesought to understand the less readily characterizedentity that existedprior to the institution of this perhaps too readily labeled modern typeof polity. In this respect, Yemen, specifically the northernhighlands(theformerYemen ArabRepublic), has a doubly distincthistory:it never wasa Europeancolony and, in the twentiethcentury, t was the realm of a lateagrarian-eraIslamic state. Although I have emphasized the features ofsubjecthood in the old Islamic state of Yemen, the historical analysis Ihave carried out has been based on repeatedcomparisonsbetween thoseforms and forms which appearedafter the revolution of 1962.The second major departurecenterson my concern with law. InvokingRaymondWilliams's notion of the multiplicityof writing, I examinedseveral types of texts characteristicof a local Islamic legal literature.In these texts I have sought to understandthe contours of what I pro-posed to refer to as the sharicasubject and, by extension, some qual-ities of the Islamic state of the period. Regarding subject and state, thehistory of the one is the history of the other, whether one refers to thesharica subject and a particular slamic stateor to the moderncitizen anda specific nation. Anotherway of understandingmy approach,however,is that in delineating the sharica subject of the period, I also, by neces-sity, undertake a genealogy of the abstractlegal subject, the citizen ofthe succeeding nation-state.My sketch of the sharica subject is only that, a sketch. Issues con-nected with the sharica subject were opened here only in tandem withissues connected with writtenrepresentation.My examples thus portraythe sharicasubjectas somethingof a commondenominator ndividual,engaged in a contract or in litigation. A more thoroughdiscussion wouldgo beyond simple invocations of such basic sociolegal categories asMuslim/non-Muslim,free person/slave, andmale/female and also woulddelve into such importantmattersas capacity/incapacity,majority/minor-ity, and sanity/insanity.Likewise, aside from a few words on the sharicaconstruction of kinship, only a fleeting glimpse was provided of a richfield of sharicaroles, for example, buyer/seller,husband/wife,deceased/heir, owner/tenant,and injurer/injured.

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History of ReligionsI sampledseveral quite differentgeneric levels of the Yemeni legal lit-erature,from ordinary egal instruments,to courtjudgments, to doctrinal

treatises, and I also tried to avoid thinking of the legal literaturein iso-lation. To this end I drew in some brief notes on Yemeni literature n theconventional sense, and on history writing and journalism. However, Ihave not made an attemptat the much largertask of connecting narrativestructures, orms of realism,andidentityissues in the variouslegal genreswith those in other types of written works.The thirddepartureconcerns writing itself. To avoid easy assumptionsabout the status of writing and written representation n my sources, Iaddressed the structuresof identity in the Yemeni writings of the period.At every juncture I highlighted aspects of the social scope and the cul-tural construction of these writings. Among the importantsocial dimen-sions of writing touched upon were the nonexistence of modernidentitypapersin the pre-nation-statepolity; the very different written and archi-val contours in the Islamic state of what are known, in a nation-state, aspublic and private spheres; and the significance of ordinary propertydocuments as popular inscriptions. I also suggested that the modemaspects of sharica law, including its individualism,private propertycon-structs, and contractualorientation,especially in relation to the specificfeatures of the privatepropertyregime of mid-twentieth-centuryYemen,meant that legal texts would not be a site of dramaticchanges. In a con-cluding discussion of the key place of intention in legal analyses, I setforth some foundational ideas in the Muslim theory of identity andagency. These ideas were then shown to inform, in theory, the evidentialstatus of written documents, texts that had been considered earlier interms of their genres and patternsof usage.Since the seminal essay by Marcel Mauss on concepts of the personand the self, anthropologists and historians have been interested inwriting accounts of subjectivity.66The main contributionI have intendedto make to this line of inquiry is to focus specifically on representationsof identity and subjectivity in written texts. In this respect my project isclosely related to a broader theme in new work in linguistic anthropol-ogy. Thus, in their introduction to The Natural Histories of Discourse,editors Silverstein and Urban state that in various ways all the papers intheir volume demonstrate that textuality and entextualizationpracticesturnout to be about 'identity'. 67

Columbia University66Marcel Mauss, A Category of the Human Mind: The Notion of the Person; theNotion of the Self, The Category of the Person, ed. Michael Carrithers,Steven Collins,and Steven Lukes (1938; reprint, Cambridge:Cambridge University Press, 1985).67Michael Silverstein and Greg Urban, eds., Natural Histories of Discourse (Chicago:University of Chicago Press, 1996), p. 10.

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