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Nativism Contra Acculturation: the Formation of Mālikī and Ḥanafī Schools of Law

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Nativism Contra Acculturation: the Formation of Mālikī and Ḥanafī Schools of Law NATIVISM CONTRA ACCULTURATION: THE FORMATION OF MĀLIKĪ AND ḤANAFĪ SCHOOLS OF LAW A Dissertation submitted to the Faculty of the Graduate School of Arts and Sciences of Georgetown University in partial fulfillment of the requirements for the degree of Doctor of Philosophy in Arabic and Islamic Studies By Youssef Haddad, M.A. Washington, D.C. April 15, 2019 Copyright 2019 by Youssef Haddad All Rights Reserved ii NATIVISM CONTRA ACCULTURATION: THE FORMATION OF MĀLIKĪ AND ḤANAFĪ SCHOOLS OF LAW Youssef Haddad, M.A. Thesis Advisor: Felicitas Opwis , Ph.D. ABSTRACT Reconstructing the formation and evolution of the four Sunni Islamic schools of law is a precarious endeavor that requires investigating distinct, yet overlapping, factors. Notwithstanding the importance of the doctrinal differences among the madhāhib , understanding the sociopolitical and economic forces that contributed to their emergence is equally instrumental. Through a reading of the sociopolitical landscape in the Islamic empire from the middle of the 2nd/8th century till the middle of the 3rd/9th, this study reveals a set of sociopolitical forces that were intrinsic to the development of law and subsequently the schools of law. Ranging from fiscal policies to civil unrest and revolutions, this dissertation explores the historical context in which the Ḥanafī and Mālikī schools developed, both of which dominated and defined the conversation in the legal space for the generations to follow. Through a chronological approach, this project identifies some of the legally extraneous yet decisive forces and events that shaped Islamic law, among which are: sociopolitical relations between Arabs and non-Arabs; the progression towards the Islamization of law; the political activism of some of the ‘ulamā’ in light of the shifts in balance of power; the role of the students of Mālik and Abū Ḥanīfah; the evolution of the type of legal authority; and state patronage and institutionalization of the two schools. Central to this discussion is the tension between acculturation and nativism, iii the two defining discourses that shaped Islamic identity, constantly trading places between being the discourse of power and that of resistance. iv ACKNOWLEDGEMENTS This dissertation would not have been possible without the unwavering support of my advisor Felicitas Opwis. She meticulously read every draft and always provided me with insightful comments. She pushed me to think through my arguments and to express myself. Her guidance and encouragement helped me overcome the many obstacles I faced. I am forever in her debt. I am indebted to the Arabic and Islamic Studies Department at Georgetown University for providing me with all the financial support I needed to focus on this project, and more importantly for creating a welcoming and warm atmosphere. I am also grateful to Ahmed El Shamsy and Steven Judd for their invaluable comments on my dissertation. Their works have greatly inspired me. I would like to thank Abdul Rahman Chamseddine, Sirine Shabaya, Stuart Yasgur, Bashar Haydar, Hani Hassan, Seraj Assi, and Fadi Mansour for their friendship and the many inspiring discussions we had. I can’t thank them enough for their contribution to my intellectual and academic growth. I am thankful to my family who set me on the path of self-betterment, knowing that I can always rely on their support. Finally, I wouldn’t have managed to take on the challenge of pursuing a doctoral degree hadn’t been for the sacrifices, unconditional love, and support of my wife Biesan Abu-Kwaik. Her belief in me kept me going in this journey. Thank you all, Youssef Haddad v TO MY WIFE BIESAN , THANK YOU FOR SHARING LIFE ’S JOURNEY WITH ME YOU MAKE THE MUNDANE MAGICAL vi TABLE OF CONTENTS Introduction ...................................................................................................................... 1 Chapter 1 Historical Reconstruction and the Question of Authenticity ......................... 10 Chapter 2 The Formation of the Islamic Schools of Law in Contemporary Studies ..... 24 Chapter 3 The Path from Customary to Islamic Law .................................................... 44 Chapter 4 Political Dissidence and State Sponsored Knowledge Production ............... 79 Chapter 5 The Birth of the Iraqi and Medinan Socio-Religious Movements .............. 108 Chapter 6 The Coming of Age of the Ummah ............................................................. 150 Chapter 7 Mālikism in al-Andalus: From Resistance to Power ................................... 186 Conclusion ................................................................................................................... 208 Bibliography ................................................................................................................ 214 vii INTRODUCTION Law in its broadest sense could be defined as a set of rules of conduct prescribed and enforced by a legal authority. The British legal scholar William Blackstone defines it as “a rule of civil conduct, prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong.” 1 Laws are put in place by a process of interpretation of a sacred book, a document, or a constitution, and interpretation is “the process of determining the true meaning of a written document.” 2 Correspondingly, Islamic law or sharī‘ah : Designates a rule of law, or a system of laws, or the totality of the message of a particular prophet. In so far as it designates a system of laws it is synonymous with the word shar‘, which is probably the more common word in juristic literature for divine law. The verb Shara‘a may appear with God as subject (following Ḳur’ānic usage)… and the word shāri‘ (law-giver) refers characteristically to Muḥammad in his function as model and exemplar of the law. In a rare extension of meaning, the word shāri‘ is transferred to the jurists, thereby highlighting the creative aspect of their interpretative activity. 3 Once laws are enacted, enforcing them is arguably straightforward insofar as punishment for infringements is exacted by a state apparatus. Interpreting the source of legislation, the founding 1 William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 2016), 3:1. 2 “Interpretation,” in A Dictionary of Law , ed. J. Law, 8th edition, 335 (Oxford: Oxford University Press, 2015). 3 Norman Calder and M.B. Hooker, “Sharī‘a,” in The Encyclopaedia of Islam, Two , eds. P. Bearman, Th. Bianquis, C.E. Bosworth, E. van Donzel, & W.P. Heinrichs, (Brill Online, 2012), http://dx.doi.org/10.1163/1573-3912_islam_COM_1040 . 1 text, however, is the thorny endeavor. Interpretation can range from strict literalism to extreme liberalism, and throughout history those two legal approaches existed in almost all civilizations. Legal interpretation in the Islamic tradition, called fiqh , is no different in that regard as “the term fiqh refers commonly to religious knowledge, especially knowledge of Islamic law derived through legal reasoning ( ijtihād ) (al-Shīrāzī, 1:157), and the term faqīh (pl. fuqahāʾ) to someone who possesses such knowledge.”4 Opinion based interpreters, known as aṣḥāb al-ra’y , “were the proponents of the use of independent legal reasoning to arrive at legal decisions,”5 while, scholars known as ahl al-ḥadīth were the partisans of tradition or adherents to “the normative custom of the community, which was in due course identified with the sunna of the Prophet.” 6 It is out of the array of interpretive approaches to law that four schools of legal thought were established in classical Sunni Islam. These canonized schools, termed in Arabic madhāhib (singular madhhab ), are named after their founders: Abū Ḥanīfah b. Thābit al-Nu‘mān (d. 150/767), Mālik b. Anas (d. 179/796), Muḥammad b. Idrīs al-Shāfi‘ī (d. 204/820), and Aḥmad b. Ḥanbal (d. 241/855). These four scholars, and subsequently their students, held different legal approaches, yet, overlapping in some respects. Each ‘ālim had his own legal voice and methodological approach, ranging from 4 Ahmed El Shamsy, “Fiqh, faqīh, fuqahā’,” in The Encyclopaedia of Islam, Three , eds. Kate Fleet, Gudrun Krämer, Denis Matringe, John Nawas, Everett Rowson, (Brill Online, 2015), http://dx.doi.org/10.1163/1573-3912_ei3_COM_27135 . 5 Peter Hennigan, “Aṣḥāb al-Ra’y,” in The Encyclopaedia of Islam , Three , eds. Kate Fleet, Gudrun Krämer, Denis Matringe, John Nawas, Everett Rowson, (Brill Online, 2009), http://dx.doi.org/10.1163/1573-3912_ei3_COM_22177 . 6 Joseph Schacht, “Ahl al-Ḥadīth,” in The Encyclopaedia of Islam, Two, eds. P. Bearman, Th. Bianquis, C.E. Bosworth, E. van Donzel, & W.P. Heinrichs, (Brill Online, 2012), http://dx.doi.org/10.1163/1573- 3912_islam_SIM_0379 . 2 strict literalism to a ‘liberal’, less constraining, interpretation, and they contributed in framing the Islamic legal discussion, one that endures until today. As sharī‘ah is unquestionably at the heart of what ‘Islam’ is today, there is, unsurprisingly, no shortage of studies in the contemporary academic field on the evolution of Islamic legal thinking. Different theories have been put forward, and with the exception of Ahmed El Shamsy’s study of the formation of the Shāfi‘ī school 7 and Nimrod Hurvitz’s study of Ḥanbalism, 8 the academic probing of this subject has either taken the doctrinal differences among the schools as the focal point of school formation, or reduced them to socio-political movements. For instance, Joseph Schacht and Christopher Melchert posit the existence of regional schools
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