ARAM, 9-10 (1997-1998), 7-18 L. WIEDERHOLD 7

THE RELEVANCE OF SHARI{A (LEGAL IDEAL) AND (JURISPRUDENCE) TO LEGAL PRACTICE IN AND *

LUTZ WIEDERHOLD

In history, as well as in present times, concepts of law and justice have played a critical part in defining cultural identity.1 Therefore, in putting the le- gal ideal of , shari{a, at the heart of their notion of society, today's radi- cal Islamic movements, as well as secular governments pretending to base their legal systems on Islamic essentials, are doing nothing extraordinary.2 However, with growing awareness of the results of the tendentious presenta- tion of historical events in the descriptive sources, it hardly needs to be empha- sized that historical arguments, brought forward as a justification for keeping up particular rules of shari{a in contemporary societies, must not be taken at face value. Interestingly enough, some Western studies of the past decades – just like some advocates of a partial or comprehensive Islamization of law – convey the impression that the books of jurisprudence (fiqh) provided a normative tem- plate for daily legal practice in historical societies called “Islamic”. In some cases, positive norms (furu{) were interpreted as reflecting the actual decision which the qa∂is took in dealing with a particular legal question.3 In others, the * This article is the revised version of a paper given at the Joseph Schacht Conference on Theory and Practice of Islamic Law, Leiden/Amsterdam 1994. Parts of it have also been pre- sented to the 8th International Conference of ARAM: The in Bilad al-Sham: History and Archeology, 1997. The generous support of the Volkswagen Foundation and the Ger- man Academic Exchange Service (DAAD) allowed me to prepare it during my stay at the Orien- tal Institute (Oxford) and as a Senior Associate Member of St. Antony's College (Oxford) in the 1994/95 academic year. I am very grateful to Michael Carter, U. Haarmann, W. Madelung, and D.S. Richards for helpful comments on several draft versions. Needless to say, any remaining mistakes are mine and mine alone. 1 In this context, cultural identity refers to the self-definition of a people (a cultural entity) in its relation to others. Elvin Hatch, “Culture,” The Social Science Encyclopedia, ed. Adam Kupfer and Jessica Kupfer, (London: Routledge & Kegan Paul, 1985), 178-9; Rupert Brown, “Social Identity”, ibid., 771. 2 See, for example, H.J. Liebesny, The Law of the (Albany: State University of New York Press, 1975); J.N.D. Anderson, Islamic Law in the Modern World, (New York: New York University Press, 1959); al-Tayib Z. al-Abdin, “The Yemeni Constitution and its Religious Orientation,” Arabian Studies, 3 (1976), 115-25. 3 For a recent critique of this notion, see M. Kh. Masud, Islamic Legal Philosophy. A Study of Abu Ishaq al-Sha†ibi's Life and Thought, (Delhi: International Islamic Publishers, 1994 (2nd ed.)), 14, 16; H. Krüger, “Abdoldjavad Falaturi et. al., Beiträge zum Islamischem Rechtsdenken, Wiesbaden/Stuttgart: Franz Steiner Verlag, 1986,” (review article), Der Islam, 70/2 (1993), 367- 70. 8 THE RELEVANCE OF SHARI‘A AND FIQH history of Islamic law was studied as a history of institutions, the characteris- tics of which were almost exclusively described on the basis of works of litera- ture which provide relatively little information about the actual functioning of these institutions, in a particular socio-political context.4 As several more recent studies5 suggest, the collection and interpretation of available information about the extent to which the shari{a was seen as a norm for daily legal practice in an Islamic society should draw on a variety of liter- ary genres offering themselves as a supplement to furu{ and uÒul al-fiqh.6 Among these are not only fatwa-collections, shuru† manuals, and particular le- gal documents, but also poetry,7 travel accounts, historiography and biogra- phy.8 Indeed, it hardly needs to be stressed that even when utilizing all these kinds of source materials, a reliable reconstruction of daily legal practice in Mamluk society, the subject of the following remarks, is seriously impeded by manifold uncertainties about these sources.9 An examination of the nature of these un-

4 To mention only a few examples: H.F. Amedroz, “The Office of Kadi in the Ahkam Sultaniyya of Mawardi,” Journal of the Royal Asiatic Society, 2 (1910), 761 ff.; idem, “The Mazalim Jurisdiction in the Ahkam Sultaniyya of Mawardi,” Journal of the Royal Asiatic Soci- ety, 3 (1911), 635ff. For Mamluk times this also applies to a certain extent to Emile Tyan, Histoire de l'organisation judicaire en pays d'islam, (2nd ed.) (Leiden: E.J. Brill, 1960). It needs to be stressed in this context that al-Qalqashandi's ∑ubÌ al-a{sha can be understood only to a cer- tain extent as a description of the actual functioning of institutions of Mamluk society. It must rather be viewed as a template for their ideal organization. See, for example, D. Ayalon's evalu- ation of al-Qalqashandi's book for a non-legal phenomenon, the tarkhaniyyat, in his article “Dis- charges from service, banishments and imprisonments in Mamluk society,” Israel Oriental Stud- ies, 2 (1972), 25-50, esp. 32. At the same time, there are offices mentioned in the descriptive sources which are not dealt with in the institutional literature. See Barbara Schäfer (ed. and tr.), Die Chronik as-Suga{is, (Wiesbaden: Franz Steiner, 2a/1, (edition) 1977; 2b/2, (translation) 1985); part 2, 74, note 85; 76, note 89. 5 For instance, B. Johansen, “Eigentum, Familie, und Obrigkeit im Hanafitischen Strafrecht,” Welt des Islam, 19 (1979), 1 ff.; B. Messick, The Calligraphic State – Textual Domination and History in a Muslim Society, (Berkeley: University of California Press, 1993), 4-5. Studies on law under the Mamluks based on a variety of sources are, for example, A. Schimmel, “Kalif und Kadi im spätmittelalterlichen Ägypten,” Welt des , 24 (1943) 3-128; J. H. Escovitz, The Office of Qa∂i al-qu∂at in under the BaÌri Mamluks, (Berlin: Klaus Schwarz Verlag, 1984); Jorgen Nielsen, Secular Justice in an Islamic State: MaÂalim under the BaÌri Mamluks 662/1264-789/1387, (Istanbul 1985); {Ali Ibrahim Îasan, Tarikh al-Mamalik al-BaÌriyya, (Cairo: Maktabat al-nah∂a al-miÒriyya, 1967), esp. 370-405. 6 The literature on the sources and theoretical principles of Islamic law. 7 See, for example, W. Reinert, Das Recht in der Altarabischen Poesie, (unpublished PhD dissertation), Köln 1963. 8 L. Wiederhold, “Legal doctrines in conflict: the relevance of madhhab boundaries to legal reasoning in the light of an unpublished treatise on taqlid and ijtihad,” Islamic Law and Society, 3 (1996), 234-304, esp. 248-249. 9 See, for example, the observation by a scholar working on legal documents from Ottoman Cairo to the effect that, reading these materials, we have to bear in mind that the archives of par- ticular legal institutions do not reflect the whole range of judicial activities in a particular society (Salwa {Ali Ibrahim Milad, “Registres judicaires du tribunal de la ∑aliÌiya Nagmiya – Etude des Archives,” Annales Islamologiques, 12 (1974), 161-244, esp. 161). This also applies to Mamluk documents. L. WIEDERHOLD 9 certainties is not the main concern of the present paper. However, to note one example, it has been observed that historiographical and prosopographical works tend to describe different spheres of society in accordance with the spe- cial interests or the professional and social backgrounds of their authors. Read- ing the account of Taqi al-Din al-Subki's (d. 756/1355) resistance to emir Arghun's (d. 750/1349) attempt to interfere with matters of the rendering of fatwas,10 for example, we must not forget that the one who relates the episode, being as-Subki's son, is likely to have written with a certain prejudice in fa- vour of this outstanding Shafi{i scholar in particular and with sympathy for the fuqaha} in general. In the following, however, I should like to present a few points that will il- lustrate the usefulness of historiographical and prosopographical sources in delineating legal circumstances in urban11 Mamluk society of the second half of the 8th/14th century.

1. SHARI{A AND THE FUQAHA} – THE RELATION BETWEEN LEGAL LITERATURE AND LEGAL PRACTICE

It stands to reason that, in an investigation of the practice of Islamic law, the relation between legal literature and daily jurisdiction should be taken to be a matter of crucial importance. At first glance, descriptive sources appear to be disappointingly reticent in this respect. In the sources examined for this study, there was only a small number of passages providing insight into the process of decision making and the degree to which fiqh manuals were utilized in this process. Closer investigation of those passages of legal works which point out the special purpose for which they were written, provides a possible explana- tion for this deficiency. Many of these works were designed predominantly to serve the needs of students of law in the process of legal training.12 The au- thors often ostentatiously emphasized that they would present their subjects in a concise manner in order to facilitate the accessibility of the book's contents to students.13 A passage in the introduction to Ibn Îajar al-{Asqalani's Bulugh al-maram stands proxy for a great number of similar statements in other

10 For a detailed examination of this case, see my paper “Poisoned flesh (al-LuÌum al- masmuma) – fuqaha{ and umara} as concurrent authorities in Mamluk Egypt and Syria,” (pre- sented to the Annual Meeting of the American Oriental Society, Madison (Wisc.), 1994. 11 The degree of implementation of shari}a rules in rural areas remains another point of inse- curity in the assessment of the validity of source information. Cf., for instance, B. Messick, The Calligraphic State, 65. 12 For a similar statement on adab al-qa∂i literature, see I. Schneider, Das Bild des Richters in der “Adab al-Qa∂i” – Literatur, (Frankfurt a.M.: Peter Lang), 1989, 167. 13 For the same conclusion drawn from different sources, see B. Messick, The Calligraphic State, 3. 10 THE RELEVANCE OF SHARI‘A AND FIQH works,14 saying: “This is a concise book which comprises the most important traditions indicating rules of the divine law. I wrote it in an effective way so that the one who memorizes it will be outstanding among his colleagues, the beginner student may resort to it and the consummate researcher cannot dis- pense with it.”15 As to the historiographical and prosopographical literature, a discernible distinction is made between two groups of specialists in the legal sciences, one of them comprising those who use their skills in solving actual legal questions and issuing legal decisions, and the other comprising those who prefer to pur- sue their studies in seclusion from the conflicts of social life. Jurists of the sec- ond group are described as “withdrawing themselves from men, not mingling with or visiting frequently the holders of offices”, like the Îanbali Ibn Rajab (d. 795/1393)16, or as “not attending any gatherings, not issuing fatwas, and withdrawing themselves from men”, like Shams al-Din Ibn Qa∂i Shuhba (d. 782/1380).17 Usually, the tendency to seclude themselves from legal disputes in daily life is presented as a laudable trait of these scholars, while scholars who participate actively in the sphere of jurisdiction are sometimes described with an undertone of disapproval as eager for paid positions and constantly as- sociating with representatives of the state.18 An anecdote from Ibn Îajar's collection of biographies of Egyptian qa∂is, Raf{ al-iÒr {an qu∂at MiÒr, illustrates the animosities between these two groups of fuqaha} and, at the same time, provides further reason to be suspicious about the significance of fiqh manuals for the sphere of legal practice, hinting at the animosities between those fuqaha} who refused to take up a legal office and those who saw nothing wrong at all in being legal functionaries. Burhan al-Din b. Jama{a,19 one of the most prominent chief qa∂is of his time, was once teased by a guest of his who obviously belonged to the type of faqih purely

14 See the introduction to al-Zarkashi's Qawa{id al-fiqh, where the author states: “…The ba- sic terms collected in this book organize the sources of the [Shafi{i] legal doctrine accompanying (the student) to the origins of their terminology for the purpose of (his) studies…I arranged (the book) in an alphabetic order to facilitate its utilization…,” (L.Wiederhold, Das Rechtslexikon Qawa{id al-fiqh und sein Autor – Rechtswissenschaft und Rechtspraxis in der Zeit Badr al-Din al-Zarkashis, (unpublished PhD dissertation, Halle 1993), 46. 15 Fa-hadha mukhtaÒar yashtamilu {ala uÒul al-adilla al-Ìadithiyya li-}l-aÌkam al-shar{iyya Ìarrartuhu taÌriran balighan li-yaÒira man yaÌfiÂuhu min bayna aqranihi nabighan wa- yasta{ina bihi al-†alib al-mubtadi} wa-la yastaghniya {anhu al-raghib al-muntahi (Ibn Îajar al- {Asqalani, Bulugh al-maram min adillat al-aÌkam, ed. Ri∂wan M. Ri∂wan, (Beirut: Dar al-kitab al-{arabi, 1383 A.H.), 9. 16 Ibn Qa∂i Shuhba, Tarikh, ed. {Adnan Darwish (Damaskus: Institut Français de Damas, 1977), 477. 17 Ibn Qa∂i Shuhba, Tarikh,51. 18 See, for instance, Ibn Îajar's remarks on Shihab al-Din AÌmad b. Isma{il b. al-Îusbani (d. 809/1412) (Ibn Îajar, Inba}al-ghumr bi-abna} al-{umr, ed. Îasan Habasi (Cairo 1969), 2:524). 19 Ibrahim b. {AbdarraÌim (d.790/1388), see Ibn Îajar al-{Asqalani, Inba} al-ghumr, 1, 355; idem, Raf{ al-iÒr {an qu∂at MiÒr, (vol. 1), ed. Îamid {Abdalmagid, MuÌammad al-Mahdi Abu Sana, (Cairo 1957), 29. L. WIEDERHOLD 11 interested in reading and writing, because the perfectly organised bookshelves in his house indicated that the books were not read by their owner.20 There are many episodes in the descriptive sources casting doubt on the in- fluence of legal literature upon daily practice in the courts and the Ìawanit, the little booths near the marketplaces where the sub-qa∂is functioned. Since we cannot, consequently, infer from the sources that there was any kind of utiliza- tion of fiqh manuals in the process of decision making, be it for the sake of a strict implementation of fiqh rules or as a mere aid to memory, we might, at least, suppose that intense instruction, forcing the students to learn legal books by heart, enabled fuqaha} to decide on legal questions, in general accordance with fiqh rules. As a matter of fact, some legal functionaries are praised by their biographers as thoroughly skilled scholars with a firm knowledge of both uÒul al-fiqh and furu{. For example, the Shafi{i judge and mufti Badr al-Din Ibn Shajara (d. 787/1385) was admired by his contemporaries for his ability to de- duce solutions for actual legal problems from the principles of legal theory.21 It may also be inferred from a passage in Ibn Qa∂i Shuhba's chronicle that a sound knowledge of legal theory was an indispensable precondition for be- coming an accepted mufti. The Shafi{i Shihab al-Din al-Zuhri (d. 795/1393) authorized two of his sons and other scholars to issue fatwas only after they had studied the MukhtaÒar of Ibn al-Îajib with him. This treatise was a widely used work of uÒul al-fiqh in Mamluk times.22 As far as qa∂is are concerned, however, many of them are described as having been more or less ignorant about even the basic tenets of Islamic jurisprudence. The Îanafi qa∂i Ibn al- {Adim, for example, was described by Ibn Qa∂i Shuhba as modest and as caus- ing hardly any harm to anybody, but was described at the same time as not be- ing sufficiently trained.23 The same chronicler comments fatalistically on the installation of a certain Shams al-Din Ibn {Abbas as judge of Baalbek, saying that the new qa∂i was ignorant but that man would depend on God in every- thing. The qa∂i of Baalbek was also responsible for the traditionary school of the town – the dar al-Ìadith – but, in Ibn Qa∂i Shuhba's view, Ibn {Abbas lacked the intellectual capacity to fill this position.24 Another scholar who served as Maliki chief judge under Sultan al-Åahir Barquq (d. 801/1399), namely Ibn Khaldun, will perhaps be excused more readily for having filled the position without any deeper knowledge of fiqh. However, his compatriots from the Maghreb, who considered his abilities in this field to be limited, were

20 Fa-qala (the scholar) ya maulana qa∂i al-qu∂at ma aÌsana taÒnif hadhihi al-kutub wa- ramaza ila annahu qalil al-ishtighal biha li-anna kathrat al-ishtighal tunafi Ìusn al-taÒnif ghaliban, (Ibn Îajar al-{Asqalani, Raf{ al-iÒr, vol. 1, 31). 21 Ibn Qa∂i Shuhba, Tarikh, 177. 22 Ibn Qa∂i Shuhba, Tarikh, 280. 23 Kana {afifan sakinan qalil al-adha lakinnahu qaÒiran fi al-{ilm jiddan (Ibn Qa∂i Shuhba, Tarikh, 167). 24 Ibn Qa∂i Shuhba, Tarikh, 193. 12 THE RELEVANCE OF SHARI‘A AND FIQH astonished to learn that Ibn Khaldun had been appointed qa∂i al-qu∂at, and re- vised their estimation of this revered office.25 Ibn Qa∂i Shuhba also reports that in ∑afar 788/March 1386, the Maliki {Alam al-Din al-QafÒi was dismissed from the position of Maliki judge of after a tenure of one year and seven months. Al-QafÒi had obtained the appointment by procuring it from the governor of Damascus. The other Damascene judges, however, made it clear in a letter (to a non-specified authority of the Mamluk state) that they would not accept al-QafÒi as a colleague any longer because of his excessive stupidity and ignorance. It is reported that al-QafÒi did not get another judgeship after this event, but that he had already obtained a judgeship twice before.26 A cer- tain {Abd al-Karim al-Qubaybati was also dismissed from the position of Maliki judge of ∑afad because he was renowned for his ignorance and vile- ness.27 Another example may suffice to prove that, in the period under consid- eration, knowledge and mental capability were, more often than not, not the main criteria for the appointment of judges. Ibn Qa∂i Shuhba informs us that in 786/1384 two qa∂is, one Îanbali and one Maliki, were appointed in the town of ∑afad, and that the Îanbali was even more stupid and impure than the Maliki. At the same time, both of them are described as open to bribes and greedy.28 Altogether, the level of instruction of many of the qa∂is leaves little hope that decisions in particular cases were made according to the norms conveyed in fiqh manuals, even if we take into account the fact that judges often based their decisions on legal advice issued by qualified muftis. A combination of nepotism, protectionism, Mamluk interference with matters of appointment, and the greed and vanity of semi-educated scholars, often prevented learned and thus more suitable men from being appointed qa∂i. The number of hints of consultation of fiqh manuals in the process of decision making is negligible. Apart from this, the shaky political circumstances of the second half of the 8th/14th century affected the legal system of the state to a considerable degree. Internal Mamluk feuds often caused the chief judges, at least, to leave the ur- ban centres for a time. In 778/1376, for example, during the revolt against the then reigning Sultan al-Ashraf Sha{ban (d. 778/1376),29 the Shafi{i and the Îanafi chief judges left Cairo, returning only after the situation had become settled again.30 In the following year, the position of the Shafi{i chief judge in Cairo remained vacant for four and a half months because Burhan al-Din b.

25 Kunna na{uddu khi††at al-qada} a{Âam al-manasib fa-lamma balaghana anna Ibn Khaldun wala al-qada} {adadnaha bi-}∂-∂idd min dhalika (Ibn Îajar, Raf{ al-iÒr, 344). 26 Ibn Qa∂i Shuhba, Tarikh, 180. 27 Ibn Qa∂i Shuhba, Tarikh, 184. 28 Wa-qila innahu (the Îanbali) ajhal min al-Maliki wa-anjas…man zada al-{a†a} Ìakama lahu bi-}l-tashahhi, (Ibn Qa∂i Shuhba, Tarikh, 139) 29 EI1, s.v. Sha{ban. 30 Ibn Îajar, Inba} al-ghumr, 1, 132. L. WIEDERHOLD 13

Jama{a escaped the confusion of the rivalry between the officers Aynabak and Aqtamur without appointing a deputy. Siraj al-Din al-Bulqini finally accepted the office.31

2. SHARI{A AND THE MAMLUKS

As is commonly accepted, part of an historical-sociological analysis of law must be the examination of a coercive apparatus able and ready to apply means of coercion for the purpose of the enforcement of norms.32 In Mamluk times this apparatus, at least the means of physical coercion, was concentrated to a large extent in the hands of the military elite. Therefore, the implementa- tion of shari{a rules depended on the Mamluks' attitude towards these rules. With respect to this, there are two opposing tendencies discernible in the sources.

2.1. Mamluks as the patrons of shari{a The Mamluks appeared as patrons of shari{a on a large scale, not only by endowing schools and Òufi convents as places of instruction in fiqh,33 but also, more actively, by enforcing fiqh rules in certain legal cases. In the historiographical sources, some Mamluk officials are described as defenders of a shari{a-oriented concept of justice. Tankiz (d. 741/1341), the highly popular governor of Syria, for example, is described by the chronicler al-Shuja{i as always having abided by the rules of the shari{a in dealing with legal matters and doing justice to whomever appeared before him. Al-Shuja{i emphasizes this, adding that Tankiz never favoured one of his officers when he had a legal dispute with one of the locals, even when the local was from the lower class.34 31 Ibn Îajar, Inba} al-ghumr, 1, 156; Also the so-called “court of appeal” (naÂar al-maÂalim: about maÂalim see Nielsen, Secular Justice, esp. 41) suffered in times of political disturbances. In 791/1389, for instance, when Sultan Barquq was preparing for a decisive blow against the forces of Yalbugha al-NaÒiri, who was then advancing against Cairo, he decreed the suspension of the maÂalim and called on the people to take the protection of their property and their lives into their own hands – wa-nudiya bi-anna al-sul†an azala al-maÂalim… wa-ya}muru al-nas bi-Ìif amti{atihim wa-durihim wa-an yudarribu al-aziqqa wa-an yuqatilu {an anfusihim wa-Ìarimihim, (Ibn Qa∂i Shuhba, Tarikh, 273). 32 See, for example, Philip Selznick, “The Sociology of Law”, International Encyclopedia of the Social Sciences, ed. D. S. Sills, vol. 9, 50-58, esp. 51. 33 See J. Berkey, The Transmission of Knowledge in Medieval Cairo – A Social History of Islamic Education (Princeton: University Press, 1992); L. Fernandes, The Evolution of a ∑ufi – Institution in Mamluk Egypt: The Khanqah, (Berlin: Klaus Schwarz Verlag, 1990). 34 Wa-aqama (Tankiz) al-aÌkam al-shar{iyya wa-anÒafa al-maÂlum min al-Âalim wa- kanat al-a{wamm wa-}l-tujjar idha ishtakat min aÌad min al-umara} aÌ∂ara dhalika al-amir wa- awqafahu ma{ahu yaswa wa-yasma{ kalam al-ithnayn wa-idha al-Ìaqq li-}l-{ammi {ala al-amir akhraqa bihi wa-rasama {alayhi wa-yaqul aysh fa∂alaka al-lah {alayhi Ìatta tataqawwa {alayhi wa-taÂlimuhu, (B. Schäfer, Die Chronik as-Suga{is, 1, 119-120). 14 THE RELEVANCE OF SHARI‘A AND FIQH

Strikingly often, the historiographical sources convey information about people who were brought before a qa∂i after infringing shari{a norms by slan- dering the prophet MuÌammad or his companions (sabb al-nabi, sabb al- ÒaÌaba), or by drinking alcoholic beverages (khamr). The slandering of the prophet was an offence obviously dealt with only in fiqh works composed after the compilation of the formative texts of the Sunni madhhabs. For example, the 5th/11th century scholar al-∑ughdi (d. 461/1068) deals with this offence very briefly in the chapter on apostasy (ridda), saying that he who insults the prophet (sabba al-rasul) is an apostate (murtadd) and belongs to one out of ten categories of Muslims who may be killed.35 A passage in al- Nawawi's Minhaj al-†alibin, one of most important fiqh manuals for legal in- struction in 8th/14th century Egypt and Syria, comes to much the same.36 The pious atmosphere of the time under consideration, which was probably encour- aged by the Mamluks for reasons of political stability, apparently demanded an extension of this penalty to people who insulted the prophet's companions as well. In 786/1384, for instance, the prominent scholar Ibn Makki al-Jizzini was brought to trial, because he had allegedly abused {A}isha and {Umar using abominable words. The fatwas of a Îanafi and a Shafi{i mufti classified the de- fendant's slandering as an act of apostasy (ridda). A Maliki qa∂i presided over the ensuing trial. Leaving aside the particulars of this trial, it is worth mention- ing that the qa∂i was summoned at a particular point, we do not know by whom, to impose capital punishment. After asking Îanafi and Shafi{i muftis – and this time also a Îanbali judge – for their approval, the Maliki qa∂i37 pro- nounced judgement. Finally, Ibn Makki was beheaded near the Damascene Citadel and later became famous among the Shi{is as the first martyr ash- shahid al-awwal.38 Interestingly enough, the mentally handicapped murtadd, in accordance with rules laid down in the fiqh manuals,39 often escaped capital punishment. Ibn Îajar relates the story of a man who denounced his own apos-

35 Al-∑ughdi, al-Nutaf fi al-fatawa, ed. SalaÌ al-Din al-Nahi, (Beirut: Dar al-Furqan, 1984), 2, 694. 36 Al-Nawawi, Minhaj al-†alibin, ed. L.W.C. van den Berg (Batavia: Imprimerie du Gouvernement, 1889-91), 3, 205: Al-ridda hiya qat{ al-islam bi-niya aw qawl kufr aw fi{l suwa}a qalahu istihza}an aw {inadan aw i{tiqadan fa-man nafiya al-Òani{ aw al-rusul aw kadhdhaba rasulan. See also Shihab al-Din al-Qalyubi, Jalal al-Din al-MaÌalli, Îawashi {ala Minhaj al- †alibin, (Cairo: al-Ma†ba{a al-Maymaniyya, 1306 A.H.), part 4, 164. Al-Qalyubi explicitly in- cludes the slandering of the prophet's companions in the chapter of ridda: (qawluhu (al-Nawawi) “aw kadhdhaba rasulan” kharaja ma law… kaffara al-Òahaba). 37 Ibn Qa∂i Shuhba, Tarikh, 134-135. 38 On this particular case and on sabb al-nabi and sabb al-ÒaÌaba as punishable acts in Mamluk times, see L. Wiederhold, “Blasphemy against the Prophet MuÌammad and his Com- panions (sabb al-nabi, sabb al-ÒaÌabah): The Introduction of the Topic into Shafi{i Legal Litera- ture and its Relevance for Legal Practice under Mamluk Rule,” Journal of Semitic Studies, 42/1 (1997), 39-70. 39 See, for example, Ibn al-Mundhir, al-Ijma{, ed. Fu}ad {Abd al-Mu}min AÌmad, (Qa†ar: Dar al-Da{wa 1402 A.H.), 122. L. WIEDERHOLD 15 tasy in Cairo in 781/1379. The muÌtasib, a certain Jamal al-Din, beat him and put him into prison. A little later, a doctor examined the delinquent and came to the conclusion that he was deranged. Consequently, the man was detained in hospital (sujina fi al-maristan).40 As mentioned above, the Mamluks also demonstrated fidelity to shari{a norms in fighting against the consumption of alcoholic beverages. The sources report several raids aimed at the destruction of wine jugs in the Christian quar- ters of Cairo and Damascus.41 In 790/1388, even a Mamluk functionary (mu- qaddam al-mamalik) became subject to physical punishment after he was found drunk on the banks of the Nile. He was beaten, dismissed from office and banished from Cairo.42 The Mamluks also apparently supported drastic measures against infringe- ments of the norms of legal procedure. Al-Maqrizi's Suluk li-ma{rifat duwal al-muluk contains an account of the punishment of several persons who had borne false witness during a trial (shuhud az-zur) in Cairo. The wrongdoers were flogged, their beards were shaved, and in this pitiable state they were finally displayed to the populace as a warning.43 The number of examples demonstrating the interest of leading Mamluks in preserving particular norms of shar{ia could be extended. The actual objective behind the Mamluks' pro-shari{a attitude, after all, seems to have been of a political nature. It is, therefore, to be expected that this attitude changed as the political circumstances and intentions changed. This may be illustrated by epi- sodes in the historiographical sources in which representatives of the military elite are described as having violated shari{a norms.

2.2. Mamluks as adversaries of shari{a In 789/1387, the Shafi{i, the Îanafi and the Maliki judges in Îama were imprisoned because the Sultan had been told that they intended to resist their dismissal which he had decreed earlier.44 The three qa∂is had been forced to

40 Ibn Îajar, Inba{ al-ghumr, 1, 198; for a similar case see Ibn Qa∂i Shuhba, Tarikh, 10. 41 See, for example, Ibn Îajar, Inba} al-ghumr, 1, 370. 42 Wa-fiha (in the year 790/1388) gha∂aba al-sul†an {ala Bahadur muqaddam al-mamalik bi- sabab annahu wujida sakranan fi bayt {ala al-baÌr fa-∂arabahu wa-amara bi-nafyihi ila ∑afad, (Ibn Îajar, Inba} al-ghumr, 1, 352). However, it is not related whether the muqaddam al-mamalik was punished according to the shari{a norms. For the penalty for drinking alcoholic beverages, see EI1, s.v. Khamr; Ibn Îajar, Bulugh al-maram, 231-2; al-∑ughdi, al-Nutaf fi al-fatawa, 2, 643-5, (the penalty being 80 lashes according to Abu Îanifa and 40 according to Malik). Abu IsÌaq al-Shirazi al-Shafi{i also holds that the Ìadd-punishment for drinking alcoholic beverages is 40 or 80 lashes respectively (al-Tanbih, ed. A.W.T. Juynboll [Batavia: E.J.Brill 1879], 310); J. Schacht, G. Bergsträsser's Grundzüge des Islamischen Rechts, (Berlin, Leipzig: Verlag von Walter de Gruyter & Co., 1935), 100. 43 Al-Maqrizi, al-Suluk li-ma{rifat duwal al-muluk, (Cairo: Ma†ba{at lajnat al-ta}lif wa-}l- tarjama wa-}l-nashr, 1958) 2/3, 915. 44 Ibn Qa∂i Shuhba, Tarikh, 223. 16 THE RELEVANCE OF SHARI‘A AND FIQH quit their office because they had protested against the Sultan's governor of Îama, Sudun al-{Uthmani, and his permssion to sell wine in the town.45 The chronicler al-Shuja{i relates al-Nashw's (d. 740/1339) cruelty46 towards numerous subjects of Sultan al-NaÒir MuÌammad b. Qalawun (741/1341) in a ruthless attempt to fill the Sultan's treasury. In this, al-Nashw constantly vio- lated the norms of descent and distribution (al-fara}i∂) and the manumission of slaves.47 The manumission of female slaves who were mothers of the master's (sayyid) children, and who then obtained the status of umm walad,48 was dealt with in fiqh manuals of the time and was a subject which Ibn Îajar found im- portant enough to mention in his Bulugh al-maram.49 As noted earlier, this work was intended to be a concise collection of the most relevant traditions concerning legal matters. One could object that all the cases of infringement of Islamic law committed by al-Nashw were the fault of a single individual, with- out any complicity of the Sultan as the highest official of the Mamluk state. In several cases, however, al-NaÒir MuÌammad gave his more or less explicit consent to the activities of his agent, or at least turned a blind eye to his ac- tions. This was so in the case of the amir Sayf al-Din Bugha, the dawadar, who complained about al-Nashw on behalf of a Circassian merchant. The Sul- tan asked al-Nashw about the amir, and al-Nashw replied that there would be an amount of money which Sayf al-Din would still have to pay to the treasury. Without further investigation, the Sultan gave al-Nashw permission to punish the amir.50 The levying of taxes which were not justified by the shari{a (mukus) pro- vides another example of the fact that Mamluks may be viewed as protecters of the divine law only to a limited degree. More often than not, Mamluk offi- cials were criticized by pious scholars for collecting mukus. In 788/1387, for example, the instigator of a conspiracy against Sultan al-Åahir Barquq, a cer-

45 Wa-kana qad waqa{a baynahum wa-bayna al-na}ib Sudun al-{Uthmani li-inkarihim {alayhi ma aÌdatha min al-khammara wa-qiyamihim fi makhafatihi wa-izalat ma aÌdathahu, (Ibn Qa∂i Shuhba, Tarikh, 216). The Îanafi was spared from dismissal because he had not protested against the governor's offence. 46 An-Nashw, Sharaf al-Din ibn Fa∂lallah, was appointed inspector of the Sultan's private treasury (naÂir al-khaÒÒ) by al-NaÒir MuÌammad in 733/1333. For a short account of the activi- ties of al-Nashw, see Escovitz, The office, 155-7 and A. Levanoni, A turning point in Mamluk history. The third reign of al-NaÒir MuÌammad Ibn Qalawun (1310-1341), (Leiden: Brill, 1995), 73-80. 47 Wa-kull man tawaffa(hu al-lah) yu}khadhu mawjuduhu wa-la yu{†a li-warithihi shay} wa-la al- al-fard Ìatta anna mu{Âam al-tujjar yakunu lahum awlad min jawarihim fa-{indama yutawaffa yurma al-awlad wa-tunba{u walidatuhum, (B. Schäfer, Die Chronik as-Suga{is, vol. 1, 64; 2, 89). 48 J. Schacht, G. Bergsträsser's Grundzüge, 41. 49 264-5; 50 The chronicler's résumé of the story: Wa-baqiya kull man yataÌaddathu al-sul†an fihi (al- Nashw) yunsabu ila al-ghara∂ wa-shadda minhu, (B. Schäfer, Die Chronik as-Suga{is, vol. 1, 64; 2, 89). L. WIEDERHOLD 17 tain AÌmad b. al-Burhan, under interrogation by the Sultan after being de- tained, mentioned the practice of mukus as one of the conspirators' main rea- sons for their opposition to the sultanate.51 In the year 788/1386, a Shafi{i scholar from Damanhur named Shihab al-Din AÌmad b. al-Jundi was punished because he had dared to refuse the payment of mukus to the Sultan's tax col- lectors. Ibn al-Jundi was beaten and stripped of the right to stay in Damanhur. However, when the Sultan learned about Ibn al-Jundi's scholarly abilities and his piety, he asked his pardon, bestowed a robe of honour upon him, and per- mitted him to return to Damanhur as a mark of respect.52

CONCLUSION

In conclusion, historiographical and prosopographical works prove to be a valuable source for an historical-sociological analysis53 of the relationship be- tween fiqh and legal practice in Mamluk times. The examination of historiographical literature suggests that the manuals of jurisprudence must not be understood as a descriptive source for daily legal practice in Mamluk times, or, to put it differently, that jurisdiction was not Islamic in an absolute way. On the other hand legal practice, sometimes used as a synonym for legal cus- toms ({urf, {ada), did not basically and in general contradict the norms laid down in the fiqh manuals. In some fields of jurisdiction, cases were decided more or less constantly in accordance with the stipulations formulated in the legal literature. This applies especially to the infringment of religious norms, for example, insulting the prophet MuÌammad, but also to norms regarding the prohibition of alcoholic beverages. The political aims of a despotic regime and the ignorance of legal functionaries appear to have been among the most im- portant reasons for the violation of shari{a in jurisdiction in the sphere of legal practice.

51 Al-Maqrizi, Kitab al-Suluk, (Cairo: Ma†ba{at dar al-kutub, 1970), ed. Sa{id {Abd al-FattaÌ {Ashur, 3/2, 555. For a detailed examination of the conspiracy, see L. Wiederhold, “Legal-Reli- gious Elite and Temporal Authority in Mamluk Society. Conclusions drawn from the Examina- tion of a ‘Zahiri revolt’ in Damascus in 1386,” International Journal of Middle East Studies, 31 (1999), 203-235. 52 Al-Maqrizi, Suluk, 3/2, 550. On mukus as a legal problem in Mamluk times, also see B. Jokisch, Islamisches Recht in Theorie und Praxis. Analyse einiger kaufrechtlicher Fatwas von Taqi }d-Din AÌmad b. Taymiyya, (Berlin: Schwarz, 1996), 66-67. On mukus as a matter of dis- pute also in other places and periods of Islamic history, see H. Halm, “Die Fatimiden,” in Haarmann, Geschichte der Islamischen Welt, 177; C. Jennings, “Kadi, Court and Legal Proce- dure in 17th C. Kayseri,” Studia Islamica, 68 (1977) 133-171, esp. 160. 53 For a general approach, see Philip Selznick, “The Sociology of Law”, International Encyclopedia of the Social Sciences, ed. David S. Sills, vol. 9, 50-8; Donald Black, “The Boundaries of Legal Sociology”, in: Donald Black, Maureen Mileski (eds.), The Social Organi- zation of Law, (New York, London: Seminar Press 1973), 41-57; N. Luhmann, Rechtssoziologie (3rd ed.) (Opladen: Westdeutscher Verlag, 1987), esp. ch. 3 “Recht als Struktur der Gesell- schaft”. 18 THE RELEVANCE OF SHARI‘A AND FIQH

As far as matters of law are concerned, the was neither an “Islamic” nor, as recently suggested, a “secular” state.54 One could also say that it was an Islamic as well as a secular (and in this case a secular despotic) state. Students of the history of Islamic law are compelled to decide whether they prefer the summation of incomplete source material in a “faultless”, that is, cohesive and conclusive, outline of social or discursive reality,55 or whether they prefer the circumscription of countless “neither – nors” and “as wells”. At this point, the present author prefers the latter.

54 See G. Stauth, “Leonard Binder and the Hermeneutic of Authenticity – Critical Note”, Arabica, 11 (1993), 62-83, esp. 77. 55 For similar problems in social anthropology, see D. Zeitlyn, “Ethnography as fiction – or the lies we tell one another,” International Journal of Moral and Social Studies, 8/2 (Summer 1993), 175-8.