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Law, Translation, and Material Culture in Medieval and Early Modern Islamic History

Panel VII-27, 2021 Annual Meeting

On Thursday, December 2 at 2:00 pm

Panel Description
  • Dr. Malissa Taylor -- Presenter
  • Omar Farahat -- Presenter
  • Dr. Shatha Almutawa -- Presenter
  • Mr. Nadir Ansari -- Presenter
  • Mohamud Mohamed -- Chair
  • Dr. Shatha Almutawa
    Silk Road trade that connected merchants from Nepal and India to the peoples of Iraq and the Arabian Peninsula (and vise versa) meant that Arabs were exposed to Buddhists and their beliefs before the advent of Islam. It is therefore not surprising that even though the Qur’an does not discuss or name Buddhism or the Buddha, names for the Buddha and Buddhist statues and structures existed in Arabic in the classical period. The rich Arabic texts that emerged as a result of exchange with Buddhist communities, and especially texts inspired by narratives about the life of the Buddha, appear in different forms in Sunni, Shi’i and Sufi literature from the classical period of Islam onward. These narratives not only show a variety of interpretations of the received narratives but also a history of transmission of Sanskrit, Pahlavi, and Manichaean texts into Arabic. The earliest Arabic versions of the Buddha’s life are different from each other. At the center of this study is a tenth-century Arabic text, Rasa’il Ikhwan al-Safa (The Epistles of the Sincere Brothers or the Epistles of the Brethren of Purity), that quotes the Buddha alongside respected prophets and philosophers from different religious backgrounds and retells the story of the Buddha’s life. While Arabic versions of the Buddha’s life show direct relationships to Pahlavi adaptations of the Buddha’s life, Ikhwan al-Safa’s version from the tenth century contains evidence of a relationship to Turkic Manichaean texts. I argue that Ikhwan al-Safa retain the asceticism of the original Buddhist narratives but reject other Buddhist ideas, creating a monotheistic, Neoplatonic asceticism of their own. Unlike other versions of the Arabic narratives of the Buddha’s life, Ikhwan al-Safa’s version heavily emphasizes the role of philosophy for salvation and eternal happiness. Still, Ikhwan al-Safa count the Buddha among the prophets and philosophers, quoting him alongside Abraham, Moses, Jesus, Muhammad, Socrates, Aristotle, and Pythagoras.
  • Dr. Malissa Taylor
    Recent studies on the relationship between the Ottoman kanun and the sharī‘a have emphasized the sultan’s ability to intervene in Hanafi fiqh, canonizing it and qualifying its application. However, the reigning perception in the field remains that the kanun did not substantially change any points of Hanafi doctrine. My paper will enhance our understanding of Ottoman legal practice by demonstrating a critical way in which the kanun did in fact revise Ottoman Hanafi doctrine. Additionally, I will show that the person most responsible for fomenting this change in Hanafi doctrine was none other than Mehmed Birgevi, a scholar famous for his conservatism and a most unlikely proponent of innovative change. Unlike the other Sunni schools, pre-Ottoman Hanafism rejected that the sultan could conquer a land and immediately proclaim it as property of the treasury, or bayt al-mal. By the mid-sixteenth century, Ottoman Hanafis took the position that the land was, for the most part, owned by the bayt al-māl, but maintained that treasury ownership had resulted from a long and piecemeal historical process: the cultivator-proprietors had died, or abandoned the land, or had become unable to work it. While the Şeyhülislam Ebu’s-Su‘ud Efendi famously took the position that the sultan could claim newly conquered land immediately for the treasury, he did not provide any argument to justify it other than administrative necessity. It was Mehmed Birgevi—often believed to be an ardent critic of Ebu’s-Su‘ud’s rulings on land tenure—who not only accepted this innovation, but also went to some length to create a juridical justification for it. The position that newly conquered land would immediately fall under treasury ownership, along with Birgevi’s justification of it, came to be universally espoused by the Hanafis in the Ottoman Empire both in fatwas and academic manuals, reversing the previous doctrine of the school. This change was peculiar to Ottoman Hanafism in the early modern period, and Hanafis outside the Ottoman Empire retained the school’s previous stance. Drawing from sources in both Arabic and Ottoman Turkish, this paper is based on published texts authored by Ebu’s-Su‘ud, Mehmed Birgevi, Şeyhizade, ‘Alā’ al-Dīn Ḥaṣkafī and Ibn ‘Ābidīn. It also examines manuscript copies of the “Fetavā-yı ‘Atā’i” of the eighteenth-century Şeyhülislam Mehmed ‘Ata’ullah and Nehriyyetü’l-Fetva, a work by an eighteenth-century mufti of Erzurum.
  • The paper presents the less studied Ḥanafī juristic approach toward Judaism and Christianity, which can have important ramifications for the inter-religious dialogue. It also foregrounds a limitation of the prevalent tafsīr studies which tend to ignore the non-exegetical Muslim literature (e.g. works on uṣūl al-fiqh) which simultaneously served as the site of exegetical activity. The Christian doctrine of Supersession considers the Hebrew Bible as pre-figuring the birth, passion, and resurrection of Christ (Kendell Soulen, Matthew Tapie, and Jules Isaac). This anticipation was fulfilled in Jesus in a double sense: it was fulfilled (accomplie), rendered obsolete (dépassée), and expired (périmé). The paper surveys Ḥanafī Qurᵓān exegeses and notable works on Ḥanafī legal theory, authored over the last millennium in different regions, to demonstrate that the notion of supersession, dominant among Christian communities once, was also mistakenly attributed to Islam in a broad-brush approach. The paper discusses Ḥanafī theories of law (uṣūl al-fiqh) which argue that the teachings of a prophet are not subject to time limits: their teachings are perennially valid by default till a particular provision is specifically abrogated by the same prophet or another. Islam, therefore, subsumes all the teachings of the previous prophets. They hold that the teachings of Moses, Jesus, and others are not alien but “ours” because they belong to “our Prophet.” They, however, accept only those earlier teachings that are found in the Qur’an and the Ḥadīth literature because they deem the biblical literature unreliable. Thus the locus of the inter-religious dialogue shifts to the motif of biblical authenticity or textual corruption (taḥrīf), a field now almost wholly governed by the secular methods of historical criticism: redaction, canon, form, and textual criticisms. If the Ḥanafī doctrine is acknowledged, the efforts to engage in a fruitful inter-religious dialogue will get squarely focused on the taḥrīf motif and is, therefore, consigned to the realm of the secular. Since the notions of subsumption of earlier laws, and corruption in biblical material have been discussed inadequately in the tafsīr works, and are understood fully in the light of works in other disciplines, the paper suggests that the discipline of tafsīr studies should open up to non-exegetical works in order to fully comprehend the Muslim understanding of their sacred texts.
  • Omar Farahat
    The distinction between general and specific terms and rulings is widely expounded in the Islamic legal tradition and in the modern study of Islamic legal theory. One aspect of the question of the “specialization of the general” that has particularly interested modern scholars is its potential to drive legal reform. For example, in “Is Historicism a Viable Strategy for Islamic Law Reform?” Mohammad Fadel explained that the specialization of general rules is a jurisprudential tool that has the potential of driving legal reform, including towards the formulation of more egalitarian legal principles (see also A. Zysow, The Economy of Certainty, 76-93). In this paper, I suggest a reconsideration of the general-specific dichotomy in Islamic jurisprudence, taking as a starting point al-Ghazālī’s intriguing claim that “no one can specialize the general.” I argue that underlying the question of legal rigidity or malleability that manifests in the general-specific debate is a deeper concern with the locus of the law, a concern that is shared by theocentric legal systems more broadly (e.g., J. Boler, “Aquinas on Exceptions in Natural Law”). I present this argument by juxtaposing the texts of three prominent jurists representing distinct Islamic theological positions: al-Ghazālī’s Mustaṣfā, al-Baṣrī’s Mu’tamad, and al-Samarqandī’s Mizān, who represent Ash’arism, Mu’tazilism, and Maturidism, respectively. Specifically, I maintain that the distinction between general and specific is reflective of a concern with the way in which the jurist relates to the text, and the text to norms, a dual concern that pervades classical uṣūl al-fiqh. Some scholars placed norms within language, conceiving the role of the jurist as one of evidence-finding. Others had a clearer division of labor wherein norms resided within divine intent, but words pointed to such intent. Contrary to some reformist suggestions, classical legal theory did not offer mixed theories that combined divine-intent based rulings with exceptions derived from contextual justifications. There was no model in which God intends a general rule, but the jurist restricts it based on social context. In short, I show that the debates on the general-specific dyad highlighted two distinct approaches to the question of the locus of norms, which placed normativity either in divine will or in language itself. This finding, I argue, can be further expanded to deepen our understanding of uṣūl al-fiqh as a theoretical endeavor designed to grapple with complex theoretical issues of legitimacy and law-making imposed by the revelation-centric nature of the law.