• The Aim of the Seminar~by MIURA Toru
• What was the typical contract in China?...~by TAKAMIZAWA Osamu
• Theory and Practice of Contracts in the Islamic World~by IWATAKE Akio
• Contracts between rulers and ruled in the Malay world~by NISHIO Kanji
• Supplementary Remarks~by KISHIMOTO Mio

1-1 A contract society

For several years now I have been studying Islamic (shari‘a) court documents from Damascus in the latter half of the nineteenth century. These are records of transactions related to daily life - buying and selling, loans, claims and liabilities, marriage and inheritance. Even when inheritances and trading transactions were of a very small amount, the inhabitants of Damascus brought witnesses when making contracts and registered the contracts in the court.

• The subjects of the contracts were always individuals, and included women and minors.
• Two witnesses were necessary to conclude a contract. This implies that the authentication of claims required the witness of a third person. Those who did not have such personal networks were therefore excluded from anything in connection with claims.
• This customary behaviour regarding contracts has continued from the early Islamic period to the present time, though with changes in form and intensity.

(See MIURA Toru, “Qadis and witnesses: judgements and mediation in Islamic law,” [in Japanese], Rekishigaku kenkyu 717 [1998])

1-2 What did guaranteeing a contract entail?

1-2-1 Documents

Contracts could be made orally, but to avoid conflict people were encouraged to put them in writing (Koran) and in actual fact, professional notaries drew up the contract and registered it. In ancient China too we can find the attitude that lawsuits could be prevented through contracts. This custom of contracts exchanged in written form between interested parties is not, however, found in South-East Asia. Why is this?

1-2-2 Witnesses

In Islamic courts, witnesses needed only be formal witnesses; they did not need to have any knowledge about the truth or falsity of the contents of the contract. This was a system which gave objectivity through bringing in a third person. It was fundamentally the same as a mediator intervening to bring an end to a conflict.

1-2-3 The position of the state and the administration

In the Ottoman period, contracts were lodged in the courts and recorded in registers. What was the relationship between the state and the administrative organs, and contracts? In China, it seems that there was the tendency until 1400 for contracts by individuals to predominate over land registers managed by the state (Valerie Hansen).

1-2-4 God

Allah has a mighty presence. The Islamic Community (umma) was established as a contract between God and Man, and Islamic law is considered to have been given by God. Even in the process of law suits, when the plaintiff could not present proof, a decision could be reached according to whether or not an oath had been sworn to Allah.

In addition, statesmen exchanged pledges of alliance with God as a witness, and concluded political contracts with retainers and subjects by making petitions to God (R. Mottahedeh).

1-3 How could contracts be broken?

How did people protect themselves against breaches of contract? Also, how were such breaches punished?

1-3-1 In Islamic law, a written contract was not per se valid evidence in court, and so, if the party concerned or the witness denied it, it had no validity. This can be regarded as an inconsistency with the usual practice concerning written contracts.

1-3-2 As long as the witness fulfilled the formal conditions, it was possible to draw up a contract which was contrary to the fact (for example, a false contract for the loan of a million yen). Incidents of fraud where the judge and the notary were in collusion are reported in historical materials. The privatization of waqf (endowments) also occurred through lawful procedures. Where can we find measures to prevent such “lawful” illegal practices?

1-4 Mediation

Many conflicts were mediated by notables before they were taken to court. Did such mediation come into being on the premise of formalized Islamic law? Or does it represent a relaxation or deviation of it? Compare with the “didactic admonition by reason and human considerations” of civil courts in China.

1-5 Contracts by groups (legal bodies)

In Islamic law there is no recognition of anyone as the subject of a contract other than the individual. Groups such as the household, village or trade associations did not have rights. Company (legal person) organization was not recognised and so capital and labour were merged through contracts based on a partnership between individuals. In China and Japan, village-level contracts, made by mutual agreement among villagers, were known, but the existence of expressed village or urban law is not known in the Middle East (customary behaviour concerning water rights and contracts for the harvest were also based on the unit of the individual). Should we consider this, not in the category of Islamic law, but as customary law (‘ada)?

1-6 Oral contracts

Oaths such as wallahi (by God) and inshallah (if God wills it) are used as devices to guarantee the veracity of an everyday promise, and people are also consciously aware of oral promises as being strong promises. There is the need to explain written contracts and court records as a part of legal culture.

2. TAKAMIZAWA Osamu (The University of Tokyo, Institute of Oriental Culture; Chinese Law)

2-1 Is Chinese society a contract society?

It is mistakenly said that “A contract is an agreement of intention; its premise is individualism, whose core is the freedom of intention. Consequently, Chinese society, which has no tradition of individualism, is not a contract society.” In extant contractual documents from Qing period China there can be found expressions like “voluntarily” (ziyuan) and “willing” (ganyuan), which seem to suggest that what has been done has been at the wish of the person concerned. The exchange of such contracts was an everyday occurrence. Therefore, in the sense that this signifies “an agreement of intention,” China can be termed a contract society. We need to follow the following steps in examining this. First, we should ask why we have this image that China does not appear to be a contract society. On this point, it is necessary to inquire into the existence (or non-existence) of a subject of the contract which is not an individual, like an enterprise or a legal person, and examine how the power of the state works within finances and services. Second, we should look to see how in China itself the specific way in which contracts are made has been considered, and particularly how many types of contract there are.

2-2 Was zulin rental or lease?

In modern Chinese, zuren broadly encompasses a variety of activities from a finance lease, in essence close to a monetary loan, to rental. Japanese jurists apparently find many points of concern about this definition and its legal character. While the zulin business began in China in the 1980s, it was towards the end of that decade and particularly from the mid 1990s that such concern began to arise.

2-3 Are the types of contract universal?

Next we survey from a modern perspective the types of contract that exist in the civil code and in contract law. What emerges from this is that there has been study of foreign law and at the very least we can deny that there has been little interest in foreign law. Further, when we consider the background, we can discern both internationally-related elements and elements of the domestic system, for example in the need to revise the unequal treaties and to create a system for a socialist state based on the planned economy mechanism (as well as participation in the international market through the introduction of a market mechanism).

2-4 Daily exchanges between individuals regarding finances and services exist, whatever the period and whatever the region. Therefore there is always an agreement of intention, and therefore to argue that a contract society is based on individualism and freedom is to argue according to extremely limited conditions. It is necessary also to discuss exchanges at the enterprise and legal person level. Differences in how these are carried out determine the framework through international relations and internal and national systems.

3. IWATAKE Akio (Kansei Gakuin University, School of Humanities; Iranian History)

Theory and Practice of Contracts in the Islamic World

3-1 In the Islamic world, written contracts were drawn up based on Islamic law, and subsequently contract making became the focus of study. As can be seen in legal devices called hiyal (a means of circumventing illegal items such as interest), legal techniques in relation to contracts were developed to a high degree.

3-2 Waqf (endowments) developed with the purpose of avoiding the subdivision of wealth as a result of equal inheritance, and waqf documents were produced for this. A person setting up the waqf, including nobles and bureaucrats, made the endowment as an individual based on his rights of ownership, and clauses forbidding the intervention of the state and the administration were respected by the governing authority of the time.

3-3 Despite the religious character of Islamic society (a morphology of belief based on the absolute existence of God and the leadership of the Muslim community), God was not concerned with it in any real sense, and established individuals formed links according to the law. Islamic law was flexible in taking in the realities of life, and pressure from a society permeated by this law was enough to make contracts respected.

4. NISHIO Kanji (Sabah-Malaysia University; Malay history)

Contracts between rulers and ruled in the Malay world: an analysis of Malay documents including the Sejarah Melayu

4-2 After the seventeenth century, the islands of South-East Asia were incorporated into the Malay world, with a common language (Malay), customs and religion (Islam). In general, a concept of contracts had not developed in the local languages, but after the seventeenth century, under the influence of Islam, the idea of a contract was introduced which acted to relativise royal prerogatives.

4-3 Only the royal line of Malacca possessed a concept of a royal prerogative (daulat), which was based on rule by supernatural power. In the seventeenth and eighteenth centuries, both rulers and ruled swore oaths by Allah: for subjects it was an oath of loyalty, that “Even should the king be cruel or unjust (zalim), the subjects will not be disobedient.” At the same time, “The king will not put his subjects to shame,” “If the king is the first to break his oath, his subjects may follow suit,” “Those who violate the oath will receive the penalty of Allah.” These served to relativise royal prerogatives.

4-4 By the relativisation of the royal prerogative through the oath, the nobility developed the view that they would “revere a righteous (adil) king and oppose a cruel and unjust (zalim) one.” The king, in turn, gave weight to an ideal image (nama) of a gentle and cultured ruler.

5. Supplementary remarks (KISHIMOTO Mio)

I have been given the sense in the course of this seminar of a clear division between business contracts (reports by TAKAMIZAWA and IWATAKE) and contracts between the ruler and the ruled (NISHIO’s report), and am now rather interested in the mutual connections between the two. I would like to discuss this briefly below.

As we have seen from TAKAMIZAWA’s report, from at least the Song period in China, important forms of economic activity, such as land transactions and tenancy, were conducted through “voluntary” (ziyuan) contracts. This is strongly characteristic of a contract society. However, in terms of laws safeguarding rights of ownership and legal structures guaranteeing their effectiveness, that is, the institutional infrastructure supporting contracts, the Chinese market possessed a freedom more aligned to the law of the jungle, full of uncertainty, because of the powerlessness and passivity of the Chinese state. In order to weather this insecurity, people relied on the patronage of influential figures and on moral ties within voluntary occupational groups. This is not the kind of society where private contracts are supported by the official (anstalt) system (what we normally think of as a “contract society”), but rather one where there is a tendency for the very system supporting the contract to be formed privately and voluntarily (through networks and contracts). How should we view such social characteristics?

Recently TERADA Hiroaki has argued that in Ming and Qing China both the form of the system itself and the business contracts made within it were expressed by the word yue (“agreement”), and that this word meant a condition of being of one mind, where the alternatives of agreement and coercion did not apply. This is a very interesting interpretation which radically reconsiders the question, taking into account both what Weber calls a “status contract” and a “personal contract.” Though as a novice in the area I am hesitant to offer a suggestion, perhaps it would be possible to approach the question of bay‘ in Islamic society from a similar perspective.

There has in recent research into Chinese history (for example, ADACHI Keiji, History of the Autocratic State, in Japanese) been quite a strong emphasis on the voluntary and the private (a deficiency of official and institutional characteristics) in intermediate groups (and by extension, the social system). In my opinion, there is among scholars in the field of Chinese studies a tendency to emphasize the instability of the Chinese economic system in a fairly pessimistic way (in contrast to the West and Japan). The “tendency for the state to try to get a consensus from the persons concerned, avoiding using its power to force a decision” that TAKAMIZAWA pointed out in his argument perhaps indicates a weakness in the power of the “official” system.

I think that in the past I have emphasised the differences between western and Japanese societies on the one hand and Chinese society on the other, and there is certainly a problem with extreme stereotypes. However, an anstalt type state, and formal, rational laws have at their base the (silent) consent of living people and practical custom and I think we should try to make fair comparisons exercising sobre understanding. We should also think about the social contract as the basis for an impartial state from the broad perspective of comparison in terms of “state power and consent.”

I have long tended to think of Islamic society and Chinese society more in terms of their similarities than their differences. Both societies have the common characteristic that a contract between individuals is predominant in economic activities (this is different in feeling to premodern Europe and Japan). I have read (in an essay by Ira M. Lapidus) that in Islamic society the system itself was a networking. On this point, I feel Islamic and Chinese societies are “similar” (reflecting similarities of interest of various scholars in their target society). However, Japanese scholars of Islamic society, compared with scholars of Chinese study, do not have the same pessimism and doubts about the stability and health of the system, but rather have a strong confidence in it. Why should this be? To tell the truth, I used to think that scholars of Islamic society had a kind of simple optimism about the system that supported the market and contracts, and that this was coupled with a sense of opposition against the theory of western progress with the result there was a certain lack of scepticism towards the Islamic social system. However, I have recently come to think that my distrust was misplaced. Islamic society consists of faith, which regulates human behaviour as a categorical imperative transcending worldly authority, and of law, which is backed by faith, and it might well be true that this gives rise to a fundamental trust regarding the system. This view has been strengthened by IWATAKE’s report and the questions which followed it. This represents a large point of difference with China. I have until now tended to think that Chinese society and Islamic society were “similar,” but in the future I would like to reconsider at a fundamental level about where “differences” might be found.