The Long Divergence: How Islamic Law Held Back the Middle East

By Timur Kuran | Go to book overview

12
Foreign Privileges as Facilitators
of Impersonal Exchange

On May 9, 1665, Mehmet bin Mahmut, a Baghdad mer chant, sued Heneage Finch, the English ambassador to the Ottoman Empire, in an Istanbul court. A group of English merchants, complained Mehmet, would not repay a debt. The record is silent on why the ambassador was sued, rather than the merchants accused of default.1 When the trial began, the ambassador showed the kadi the text of an Ottoman-English treaty, which stipulates that in cases involving even one trader operating under the English flag, neither claims nor witnesses may be heard in the absence of documentary support (hüccet). Reminded of this agreement, the kadi asked Mehmet to prove his claim through written evidence. Mehmet replied that he lacked documentation, prompting the judge to throw out the case on procedural grounds.2

Had the alleged defaulters been Ottoman subjects, Mehmet would not have been required to document a debt contract. Under the prevailing interpretation of Islamic contract law, oral agreement was sufficient to validate the terms of a loan. By contrast, in English courts the trend was toward rejecting oral financial claims, unless backed by documentation. Evidently in England business was becoming less personal, and the courts were making the requisite procedural adjustments. This 1665 case thus suggests that Ottoman sultans of the late seventeenth century allowed trials involving English traders to accommodate the ongoing legal transformation in England. In the face of foreign demands, they were conceding, in effect, that “impersonal exchange,” the hallmark of modern economic relations, requires a different institutional frame-

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