MESA Banner
Beyond Fatwas: Obligation and Prohibition of the Pilgrimage in Five Legal Genres
Abstract
Islamic legal studies focused on fatwas, jurists' responses to legal questions, have proliferated in the past few decades. Scholars have praised this legal genre as offering a unique window onto the intersections of law and society. As David Powers has argued, the questions reveal the types of concerns raised by individuals in specific socio-historical contexts, while the answers show us how jurists adapted the law to particular cases. Fatwas are most often contrasted with substantive legal manuals (mutun), which set forth a legal school's basic, agreed-upon laws which are good for all times and places. Yet there is a rich array of Islamic legal genres left unaddressed by this strict dichotomy between fatwas and mutun. This paper argues that fatwas lie at the far end of a spectrum, rather than being completely unique, with regard to their degree of context-specificity. In order to demonstrate this point, this study examines the treatment of one legal issue in the MtlikM school of law, the ability to undertake the pilgrimage, across five distinct legal genres: 1) mutun, 2) commentaries on mutun (shurnh), 3) supra-commentaries (hawish ), 4) works of al-haw dith wa'l-bida', devoted to denouncing illegitimate practices, and 5) fatwas. In the two prominent Moliko mutun, the Ris la of Ibn Abi Zayd al-Qayraw?n (d. 386/996) and the Mukhtasar of Khalel b. Ishaq (d. 776/1374), the authors duly note that Muslims' obligation to undertake the pilgrimage to Mecca is conditional upon their ability to do so, but this qualification receives no special attention. On the other hand, several prominent jurists, including Tunisians al-Lakhmd (d. 478/1085), al-Mhzar (d. 536/1141) and al-Burzuld (d. 841/1438), and the Andalus Ibn Rushd the Grandfather (d. 520/1126), declared all Muslims in the Islamic West in their eras to be incapable of performing the pilgrimage (for various reasons), and thus prohibited from attempting the journey. By examining this condition of ability in Miliko shuroh, hawbshi, and works of al-hawhdith wa'l-bida', I demonstrate that the leap from an obligatory pillar of the religion to a prohibited act is not accomplished in a single bound. Rather, numerous qualifications and contextual considerations are presented in these intermediate genres. My analysis highlights al-Hattrb's (d. 954/1547) Mawlhib al-Jalal, a commentary on the Mukhtasar, and on Ibn al-Hmjj's (d. 737/1336) al-Madkhal, on reprehensible innovations; both authors prohibit the pilgrimage under certain circumstances. This study concludes that legal genres other than fatwas deserve greater attention as potential historical sources.
Discipline
Law
Geographic Area
Maghreb
Spain
Sub Area
None