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Pushing the Boundaries of Late Ottoman Hanafism: Ibn Abidin’s Extension into Early Modernity
Abstract
By the seventeenth century, the Hanafi legal school (madhhab), as the adopted madhhab of the Ottomans, had extended to the far reaches of the Empire. Despite this cosmopolitan reach, Hanafi jurists in localities throughout the Empire proved its malleability. To elucidate this dialectic between the global and local, this paper explores shifting notions of property in the Hanafi school in early modernity and, more broadly, highlights the contestability of madhhab boundaries, revealing the contingency of these boundaries on spatial context. Early Hanafism only considered tangible assets (‘ain) as having financial value and therefore made it difficult to justify the sale of the intangible right (?aqq) to usufruct (manfa’a) associated with another’s property. This posed a problem for the renters of endowment properties (waqf) who, because they did not own the property, were deterred from investing in infrastructure on the property if it was not to remain in their legacy. The dilemma was circumvented in the Ottoman Arab Provinces when it became customary for renters to pay an additional occupancy fee, above the rent, ensuring that the property would remain in their possession–and could even be bequeathed–as long as they paid the additional fee. The seventeenth-century Cairene Hanafi jurist Hasan al-Shurunbulali rejected this circumvention as a mere subterfuge, which he considered as transgressing the boundaries of Hanafism in its appeal to Maliki doctrines. In the nineteenth century, the Damascene Hanafi jurist Muhammad Amin Ibn Abidin, arguing against al-Shurunbulali, challenged the notion that the circumvention was exclusive to Malikism and rationalized the sale of intangible rights within Hanafism. In doing this, Ibn ??bid?n expanded and redefined the boundaries of the madhhab to embrace transactions that had hitherto been excluded. The paper therefore reveals the contentious nature of madhhab parameters in certain times and locations. Likewise, this position of Ibn Abidin is significant because it is the basis for contemporary Hanafi fatwas permitting the alienability of present-day intangible assets, such as intellectual property and franchise rights. Accordingly, Ibn Abidin’s thought is noteworthy in understanding how the Hanafi legal system transitioned to accommodate aspects of the modern economy.
Discipline
Law
Geographic Area
All Middle East
Sub Area
19th-21st Centuries