The idea that an irregular layout of streets characterizes the Islamic city has been abandoned because it has been shown that in cities founded by Muslims there is planning with a regular layout and because the labyrinthic appearance is in fact produced by historical evolution.
Maribel Fierro y Luis Molina
ILC-CCHS & EEA (CSIC)
Islamic law distinguishes between the true street, open at both ends, which is a public road where everyone (Muslims and non-Muslims) has the right to circulate, and the alley that most authors consider a private thoroughfare that belongs in co-ownership with the neighbors.
Public roads
The ruler or his delegates were responsible for establishing a Friday mosque in the urban centers that required one, establishing the location of government and treasury buildings, the souk, the walls and its gates, as well as the public roads that connected all those structures, especially those that went from the political-religious center of the city to the gates. Those were the public roads. Nobody owned them. As Jean-Pierre van Staevel has stated:
«The public road is like a river, something of general utility, which is not susceptible to appropriation but rather to the right of use, of passage and circulation, which is why the law focuses on what causes damage to that right.»
In Late-Empire Mérida, according to Miguel Alba, it has been possible to detect how members of the elites managed to take over public spaces. In Muslim Córdoba we know of an analogous attempt to do so, studied by Christine Mazzoli-Guintard. The chamberlain of the emir ʽAbd Allāh, Ibn al-Salīm (d. 914), took over part of the street by incorporating it into his garden and surrounding the space he had stolen from the street with a wall. This happened between 888 and 907. The jurists issued —as was normal— contradictory opinions about what the chamberlain did. But the majority were against it, and Ibn al-Salīm was ordered to destroy the wall that gave material expression to his monopolization of a public road. In this case, someone had set himself up as muḥtasib, denouncing what the chamberlain had done. Some years later, Ibn ‘Abd al-Ra’ūf stipulated that no one could benefit in his own interest from roads and tracks. In January 972, the caliph crossed a neighborhood of Córdoba with his entourage and was able to see that a street that bordered a moat had become very narrow, so he had the shops that lined that street bought up and then destroyed to ensure circulation through it.
Ibn al-Imām of Tudela attributes this defense of public space to the Prophet: “Whoever takes possession without right of a piece of land, a field, a public road or the finā’ of a house, God will put on him a collar of the width of seven fields on the day of Judgment.” The tradition —of dubious authenticity— establishes a punishment of a religious nature (it will take place in the afterlife) and not a legal one. The Maliki jurist of Qayrawan Saḥnūn (d. 820) condemned all usurpation of public roads, with restitution being obligatory even if twenty years had passed «because public roads do not prescribe.» But he introduces two correctives:
- It accepts the fait accompli regarding the usurped land if there is a building that is occupied, the possession of which has been in place for some time, there has been no protest and the exact origin of the occupation has been forgotten. This long possession over time implies that the occupant is protected against a possible claim, but without conferring full and effective ownership. It is, in any case, a door open to abuse, especially in times of disorder or weakness of authority, and one which can lead to usurpations of the public domain being tolerated and to encroachments on public roads.
- Saḥnūn prohibited appropriation of the finā‘ if this meant that passage along the road was impeded, which implies that anything that does not impede passage is admitted. Another Maliki jurist admits the fait accompli as does Ibn al-Imām of Tudela when the invasion of public roads is so slight that it does not bother anyone, specifically, if the passage of camels loaded with bundles can take place, establishing the minimum dimension of the public road as 7 cubits (between 3.36 and 3.78 meters). This was the width initially estimated for a private street by the founder of the Maliki school, which the Malikis ended up adopting for public roads.[1] Muhammad b. Talīd (d. 908) connected the width of the street with those who pass through it: if they are men, seven cubits; if cattle and cows also pass through it, 20 cubits. There were other jurists who were more severe. In Tunis, the qadi Ibn ‘Abd al-Rafī` ordered Ibn al-Rāmī (14th century), a master mason, to destroy the shops that had been built by the residents of a street, in all sections of that street, regardless whether the street had narrowed a lot or a little. The fact that he was so firm in his sentence indicates that he felt supported by a strong ruler, since leniency seems to have been the norm.
Other cases of appropriation of public roads mentioned in legal opinions are the construction of a drinking trough or the case of dyers who spread their dyed and wet fabrics on the street, disturbing passers-by and soiling their clothes. Shopkeepers also tended to monopolize public roads with their stalls and in the case of a souk in Tunis, the judges tried to prevent it but were unsuccessful.
Who were those who made such appropriations? If they were powerful people, those affected could not initiate litigation and this lack of action against them could lead to acquisitive prescription (ḥijāza). The Qayrawani jurist al-Suyūrī (d. 1067) was asked about the case of a person who had included part of the public road within his house and against whom the neighbors had initiated litigation after twenty years. He replied that what had been built should be destroyed, restoring to the road what had been taken over if the evidence (bayyina) was clear. There could be no acquisitive prescription in this case. The temptation to appropriate seems to have been strong and must have occurred frequently: for this reason, al-Jazīrī (d. 1189), author of a compilation of notarial documents, includes an act for cases of invasion of public roads.
The alleys or walkways
Dead-end streets and alleys were considered private property over which neighbors, whether individuals or family groups, had rights. Their benefit is common to all neighbors and therefore no one has the right to install anything in them —be it a door, overhang or pit, in any area— if it is not with the agreement of the other people who reside there. On the other hand, each neighbor has a right of preferential use (mirfaq) along his wall, next to his gate. Therefore, neighbors are interested in showing generosity to others, allowing, for example, their neighbor to put a beam in their walls or giving them the right of way, as well as not disturbing each other (a person cannot open a door directly opposite his neighbor’s door to avoid visual intrusion). To prevent litigation, they are encouraged to reach consensus and act together.
Aside from those issues that were in the hands of the ruler, the formation of a city depended largely on the decisions and actions of those who resided in the neighborhoods, since when they built their houses and other structures they were influenced by the properties adjacent to them to which they had to adjust their own designs. The street alignments responded to the structures that were created along them and the changes that occurred in them. The system was self-regulating and adaptive.
The neighborhood in an Islamic city belongs to its inhabitants and in some way is an extension of the houses, which is why Juan Zozaya said that the narrow alleys penetrating the urban blocks follow the same guidelines as the corridors in the houses, as an access system to homes or rooms. The internal roads of the neighborhoods depend largely on the discretion of their inhabitants and hence a branching network of streets is formed.
These neighborhood streets or alleys that branch off from public roads are known as adarves and can end up being dead ends. The jurists do not seem to have bothered to fix the width of the alleys. The founder of the Maliki school simply said that their width should be equivalent to the distance that would allow the passage of a load on a saddle, possibly referring to the two symmetrical loads on a camel accompanied by its owner.[2]
This type of alleys are attested in Andalusi Arab sources from very early dates. Leopoldo Torres Balbás concludes: “The residential neighborhoods of the Spanish-Muslim cities were, therefore, largely formed by a juxtaposition of walkways, whose doors opened onto streets of free traffic. The walkway could be open at its other end to a street or a pen [for livestock], or closed, that is, in the latter case, without an exit. Sometimes it was reduced to a small street or alley —adarvillo or adarvejo in medieval Castilian— and other times it had several streets or alleys and even, on occasions, like that of the Sueca in Toledo, a small square in which a market was held. On the walkway there could be few or many houses, depending on its extension. We have seen thirty-three in an alley in Mallorca and nine in Dabuchec in the same city.”
What types of actions were allowed to neighbors whose residences faced the alleys? Could they act as they wanted, for example, opening doors,[3] or did they have to agree on any modification or innovation? For the Malikis —again— the principle of lā ḍarar rules: each neighbor can do what he wants as long as he does not bother the others. The practice of Córdoba was that any additional door required the agreement of the neighbors. The Qayrawani jurist al-Suyūrī was asked about a house at the end of an alley whose owner built an extension extending three cubits into the road; he also covered the extension with a gallery that included a kitchen. The answer was that he was required to return it to the original state. Saḥnūn had already said that it was necessary to have the consensus of the neighbors for any change to be made to an alley, so presumably the owner had not sought such a consensus. The Cordoban jurist Ibn ʽAttāb (d. 1069) issued a fatwa in which he concluded that, if the neighbors agreed to repair a walkway, anyone who refused to contribute should be forced to do so.
The practice of closing an alley with a door is attested in cities such as Qayrawan during the 10th century and in Andalusi cities from the 13th century. Ibn Saʽīd (d. 1286) recorded that in the cities of al-Andalus there were walkways with doors that were closed at night and that on each street there were armed watchmen each with a light and a guard dog. This precaution was necessary to avoid night-time assaults, robberies and murders. This was done not only for reasons of security against thieves and perhaps against soldiers who demanded payments, but —as Jean-Pierre van Stäevel has pointed out— for the process of crystallization of family and neighborhood solidarity groups, resulting from shared space. This practice could lead to litigation when there was again no consensus between the neighbors or when one of the neighbors was disturbed by the noise of the door when it was opened and closed. In Tunis, the owner of several houses that opened onto an alley put up a door to close it, but the owner of one of the houses that also opened onto the alley reported him to the judge and he ordered that the door be demolished and that with the sale of the rubble the operator in charge of the demolition had to be paid. Another case —studied by Mazzoli-Guintard— records that a man built a house whose rear faced a dead end alley that belonged to a family group (qawm). The man opened a door into that alley. After three years, the people in the alley sold their house and the buyer wanted to have the door closed, claiming that it was a recent modification. The jurists consulted answered that the new owner had no right to protest and that only the sellers had that right, that is, only if there had been litigation prior to the sale could the new buyer have had the right to act.
Overhangs
Roman law explicitly prohibited the construction of overhangs on a public road. In Islamic and specifically in Maliki law there is nothing similar. Again, the Maliki jurists allowed these constructions as long as they did not cause inconvenience to passers-by. Saḥnūn further said that if someone owns a house on each side of a street he can build a bridge between them, while another jurist, Ibn Ziyādat Allāh, prohibited it although we do not know if the circumstances were the same. This permissiveness can be understood as an extension of the concept of finā‘. Among the conditions imposed is the fact that these extensions over the road should not block the light, although the fact that these overhangs resulted in shade could not be frowned upon in hot places. These types of constructions also had to be high enough to allow the passage of those who were mounted. The possibility of lowering the street is even considered to avoid injuring them.
Other matters giving rise to legal discussions
Unlike Roman law, Islamic law does not impose any protection of the external appearance of houses and streets. What happens when a building has fallen into ruins on a street and the place is filled with garbage? Saḥnūn said that the owner was responsible for the cleanliness of the place, it was enough that he had only disturbed a neighbor. But if he caused more annoyance, all the neighbors were responsible for cleaning the place, because, as Ibn Abī Zayd said, it was most likely that the neighbors would have been the ones who had thrown away the garbage.
Regarding water evacuation, a distinction was made between rainwater and sewage. The evacuation of rainwater from a house to the street was not frowned upon as long as it did not affect the neighbor in front because the street was narrow. In an alley it was prohibited unless a custom had been established. If it was dirty water, it was prohibited for it to flow out into the street.
The door of the ablution room of a mosque that faced the street was moved towards the interior of the mosque. From that moment on, children and people who were not permitted to enter the mosque began to enter the ablution room. Some people in the neighborhood thought that the door should be put back in its previous place and some of the scholars consulted agreed.
The following question arose: the ruler had built some shops that people rented in order to trade and next to those shops there were three mosques with salaried imams. One of the shopkeepers began to pray in the middle of the day and in the middle of the afternoon, standing amidst the shops at the time of prayer and calling people to come and pray with him. The other shopkeepers began to do so, and stopped going to the ‘official’ mosques. The consulted jurists condemned the practice of praying in the souk. Among the few hadiths (traditions of the Prophet) that deal with issues related to the streets is one in which it is prohibited to pray in them.
A shopkeeper told his employee to pour water on a public road and as a result one person died. The Hanafi jurist Abū Yūsuf was of the opinion that if the shopkeeper benefited from wetting the street, he was responsible for the damage that such an action could have caused. If someone rides an animal on a public road and the animal trips and kills someone, its owner is liable, but only if the animal used its front legs (which the owner controls), not its hindlegs or tail, which the owner does not control. He is also responsible if he had stopped the animal in the middle of the street, but not if the animal was moving. In general, in the case of a domestic animal, the owner is not responsible. When Mālik was asked about the balcony of a house that had fallen, killing a passerby, he responded that the person who had it built cannot be held responsible.
Final remarks
The idea that an irregular layout of streets characterizes the Islamic city has been abandoned because it has been demonstrated that in cities founded by Muslims there is planning with a regular layout and because the labyrinthic appearance is in fact produced by historical evolution. When does it occur and why?
Historical evolution could have been influenced by the inheritance of Late Antiquity, by urban insecurity or by the action of family groups. According to Bulliet, the abandonment of wheeled traffic must be taken into account. The decisive factor seems to be the influence of Islamic law, which allows appropriations of the street that little by little give it an irregular layout. Despite initial reluctance, Maliki jurists showed great tolerance when the appropriated land had been built on for a long time, when the affected person had not protested and especially when the intruding construction did not affect traffic. For van Staëvel, the obstruction of a road and its transformation into an alley occurs by evolution and is circumstantial, not structural. Mazzoli-Guintard also reminds us that the impression of disorder is wrong: there is a hierarchy between the streets that responds to the needs of economic and social life. Thus, in Murcia there were four categories of streets: the main communication routes, few in number, that connect the center of the city with the urban gates; then, the streets that leave these main roads to articulate the sectors of the city around them, the main streets of the neighborhoods; thirdly, secondary public streets that complete the street network of a neighborhood; fourthly, the alleys that represent the last ramifications of the system and that give access to the homes. Contrary to the traditional interpretation of a city that was transformed anarchically by individual initiative, the legal works reveal a city managed by its citizens for their common benefit, resorting to the judicial apparatus to regulate the abuses of its neighbors.
NOTES:
This overview —which is based on the studies cited in the Bibliography, where the references of the examples given are found— was presented in 2017 at the VIII Toletum Workshop Connecting cities? Communication routes in the Iberian Peninsula, University of Hamburg. https://www.toletum-network.com/es/2017/10/toletum-viii-staedte-verbinden-kommunikationswege-auf-der-iberischen-halbinsel/.
[1] Cf. the width of 5 and 6 meters of the Mérida roads.
[2] In 1845 the width of a street in Cairo was determined by measuring the width of two camels loaded with bales.
[3] Mazzoli-Guintard has pointed out that the frequency of litigation that the opening of doors in the streets gave rise to is reflected in the fact that al-Jazīrī in his compilation of notarial forms includes a document to denounce the damage caused by the opening of a door.
Further reading:
- Acién Almansa, Manuel, «El origen de la ciudad en al-Ándalus», Al-Andalus, país de ciudades. Actas del Congreso celebrado en Oropesa (Toledo), del 12 al 14 de marzo de 2005, Toledo, Diputación Provincial, 2008, 15-22.
- Alba Calzado, Miguel, “Características del viario urbano de Emerita Augusta entre los siglos I y VIII”, Alicante: Biblioteca Virtual Miguel de Cervantes, 2007.
- Brunschvig, Robert, «Urbanisme médiéval et droit musulman», Revue des Études Islamiques 15 (1947), 122-155.
- Cañizar Palacios José Luis, “Consideraciones sobre aspectos jurídico-legislativos en relación con las vías públicas de Hispania durante la Antigüedad Tardía«, Hispania antiqua 29 (2005), 225-236.
- Carballeira Debasa, Ana María, “La ciudad en al-Andalus: Estructura y funciones del espacio urbano”, El mundo urbano en la España cristiana y musulmana medieval, Oviedo, Universidad, 2013, 75-92.
- Cressier, Patrice, Maribel Fierro and Jean-Pierre van Staëvel (eds.), L’urbanisme à l’Occident médiéval au Moyen Age: aspects juridiques, Madrid: Casa de Velázquez / CSIC, 2000.
- Epalza, Mikel de, “Espacios y sus funciones en la ciudad árabe”, Simposio Internacional sobre la Ciudad Islámica, Zaragoza, Institución Fernando el Católico, 1991, 9-30.
- Gutiérrez Lloret, Sonia, “De la civitas a la madina: destrucción y formación de la ciudad en el sureste de Al-Andalus. El debate arqueológico”, Actas del IV Congreso de Arqueología Medieval Española. Sociedades en transición. Tomo I: Ponencias (Alicante, 4-9 octubre de 1993), Alicante, Asociación Española de ArqueologíaMedieval-Diputación Provincial de Alicante, 1993, 13-35.
- Hentati, Nejmeddine, «La rue dans la ville de l’Occident musulman médiéval d’aprés les sources juridiques malikites», Arabica. Journal of Arabic and Islamic Studies 50 (2003), 273-305.
- —, “Évacuation des eaux usées dans la ville de l’occident musulman médiéval d’après les sources malikites”,Al-Andalus Magreb 21 (2014), 23-55.
- Malpica Cuello, Antonio y García Porras, Alberto (eds.), Las ciudades nazaríes. Nuevas aportaciones desde la arqueología, Granada, Alhulia, 2011.
- Marín, Manuela, “Tudela en época islámica: a propósito de la obra de Ibn al-Imam”, El patrimonio histórico ymedioambiental de Tudela, Tudela, 2001, 23-31.
- Martínez Enamorado, Virgilio and Torremocha Silva, Antonio (coords.), Actas. 11 Congreso Internacional La ciudad en al-Andalus y el Magreb [Algeciras], Granada: Fundación El Legado Andalusí, 2002.
- Mateos Cruz, Pedro and Miguel Alba Calzado, «De Emerita Augusta a Marida», in L. Caballero Zoreda and P. Mateos Cruz (eds.), Visigodos y omeyas. Un debate entre la Antigüedad Tardía y la Alta Edad Media (Mérida, abril de 1999), Madrid, 2000, 143-168.
- Mazzoli-Guintard, Christine, Ciudades de al-Andalus. España y Portugal en la época musulmana (s. VII-X V), Granada, Editorial al-Andalus y el Mediterráneo, 2000.
- —, Vivre à Cordoue au Moyen Age. Solidarités citadines en terre d’Islam aux X-XI siécles. Rennes: Presses Universitaires de Rennes, 2003.
- —, “Que nul n’empiète sur la rue qui appartient à tous: à propos d’une tentative d’accaparement de la voie publique à Cordoue au début du Xe siècle”, Estudios sobre patrimonio, cultura y ciencia medievales IX-X (2007-2008), 165-183.
- Murillo Redondo, J. F., M. T. Casal García and E. Castro del Río, «Madinat Qurtuba. Aproximación al proceso de formación de la ciudad emiral y califal a partir de la información arqueológica», Cuadernos de Madinat al-Zahra 5 (2004), 261-262.
- Navarro Palazón, Julio and Jiménez Castillo, Pedro, Las ciudades de Alandalús. Nuevas perspectivas, CSIC-UZA-Cortes de Aragón – Instituto de Estudios Islámicos y de Oriente Próximo (IEIOP), 2007.
- Passini, Jean (coord.), La ciudad medieval: de la casa al tejido urbano: actas del primer Curso de Historia y Urbanismo Medieval, Cuenca, Ediciones de la Universidad de Castilla-La Mancha, 2001.
- Rèklayté, Ieva, Vivir en una ciudad de Al-Ándalus. Hidráulica, saneamiento y condiciones de vida, Zaragoza, Universidad, 2012.
- Torres Balbás, Leopoldo, “Los adarves de las ciudades hispanomusulmanas”, Al-Andalus XII, 1 (1947), 164-193.
- —, Ciudades hispanomusulmanas, 2 vols., Madrid, 1985.
- van Staëvel, Jean-Pierre, «Casa, calle y vecindad en la documentación jurídica», in Navarro Palazón, Julio (ed.), Casas y palacios de al-Andalus. Siglos XII Y XII, Granada, Fundación El Legado Andalusí, 1995, 53-61.
- —, Droit malikite et habitat à Tunis au XIV siècle. Conflits de voisinage et normes juridiques d’après le texte du maître-maçon Ibn al-Rami, El Cairo: Institut Français d’Archéologie Orientale, 2008.
- Torres Balbás, Leopoldo, “Los adarves de las ciudades hispanomusulmanas”, Al-Andalus XII, 1 (1947), 164-193.
- —, Ciudades hispanomusulmanas, 2 vols., Madrid, 1985.
- van Staëvel, Jean-Pierre, «Casa, calle y vecindad en la documentación jurídica», in Navarro Palazón, Julio (ed.), Casas y palacios de al-Andalus. Siglos XII Y XII, Granada, Fundación El Legado Andalusí, 1995, 53-61.
- —, Droit malikite et habitat à Tunis au XIV siècle. Conflits de voisinage et normes juridiques d’après le texte du maître-maçon Ibn al-Rami, El Cairo: Institut Français d’Archéologie Orientale, 2008.
- Yanagihashi, Hiroyuki, A history of the early Islamic law of property: reconstructing the legal development, 7th-9th centuries, Leiden: Brill, 2004.
- Zozaya, Juan, «Urbanismo andalusí«, Cidades e História, Actas del Congreso 1987, Lisboa, Fundaçao Calouste Gubenkian, 1992, 143-156.