Congrès Mondial des Études sur le Moyen-Orient et l'Afrique du Nord

Barcelone du 19 au 24 Juillet 2010


HISTORY OF ISLAMIC LAW - 1/2 (025) - Panel

· Langue: English

· Description:
Chair: Katherine E. Hoffman (Northwestern University)

Paper presenter: Sabrina Joseph (Assistant Professor, Zayed University), “Upholding the Integrity of Shari'a in Ottoman Syria: 17th-18th Century Jurists and Their Laws on Land Tenure”
This article examines some of the discrepancies between qanun (state laws) and shari’a (Islamic law) in the realm of land laws in seventeenth and eighteenth century Ottoman Syria. By the seventeenth century, the majority of arable lands were state lands or pious endowments (waqfs) worked by tenant cultivators and harecroppers whose rights and obligations were shaped by state laws that had been streamlined and reconciled to shari’a law during the sixteenth century. Local jurists and scholars, however, challenged certain usufruct laws, upholding in the process the integrity of Islamic law while insinuating that somehow state laws did not fully abide by the tenets of shari’a law. Challenging qanun in the realm of lands laws was particularly significant given that state laws had traditionally played a more prominent role than shari’a in shaping land tenure. After providing a brief overview of the shari’a/qanun debate as it has evolved among scholars in the field, this paper will utilize fatawa and legal commentaries to examine three realms of land law over which jurists sought to assert shari’a over qanun. These include: laws on peasant mobility; women’s usufruct rights; and the general governance of waqf lands. Ultimately, juristic rulings on these issues afforded usufruct rights to peasants which protected them from abuse and contributed to a system of landholding that promoted ‘multiple layers of ownership’. Specifically, I will discuss how jurists supported peasants’ freedom of movement and expressed opposition to oppressive state policies and taxes meant to hinder their mobility. The paper will go on to examine the laws governing women’s usufruct rights, highlighting the differences between their inheritance rights to private property and their right to assume usufruct on state and waqf lands. Drawing on elements of shari'a law, jurists in certain respects afforded women broader usufruct rights to arable lands than sultanic laws of the period. Finally, I will examine how jurists asserted their control over waqf properties (by regulating fair rent, for example), thereby challenging state encroachment and control over such lands. On the one hand, by promoting the continued vitality of the law at the local level and its responsiveness to changing realities, local jurists contributed to the adaptability and longevity of the Ottoman land regime. However, by challenging those tenets of the law that deviated from shari’a principles, legal scholars also asserted the authority of the ulama over matters traditionally reserved for the state.

Paper presenter: Fakhri Bsoul (Lecturer, Kaye Academic College), “The Vanishing of Ibn al- Mundhir Muhammad Ibn Ibrahim al-Naysaburi, Methodology in Islamic Jurisprudence”.
Ibn al-Mundhir, Muhammad b. Ibrahim Naysaburi (242/856-319/931), Imam al-Haram, a jurist of Mecca, a mujtahid, a muhaddith and a mufassir, was one of the leading scholars in ikhtilaf [ disagreement] during the third century A.H. However, in modern scholarship he has not gained much attention or recognition, despite the fact that he was highly regarded by his contemporaries and biographers, and that he wrote abundantly.Ibn al-Mundhir is a great scholar and an absolute Mujtahid, he was not a head of a school of ‘Fiqh’ Having his agreements and disagreements with other Fuqha’ who were masters of schools like Abu Hanifa, Malik, al-Shafi’i and Ibn. Hanbal. Ibn al-Mundhir was the first scholar to compile a list of questions in which he listed 765 questions on worship and social transactions. He did not ''survive'' in spite the fact that many of the prominent scholars such as al-Khalal, and Ibn Qudama quoted him.In reading to Ibn al-Mundhir''s treatise by writing he illustrated the opinions of previous jurists concerning cases of varying opinions. Although Ibn al-Mundhir was an important mujtahid, there is nothing in the available literature that deals with him aside from occasional references by his contemporary biographers. He was claimed by the Shafi'i and Hanbali schools as one of their own even though he was not affiliated with them. It is very important to mention that most of the well known scholars, mainly the later jurists, have heavily relied on the works of Ibn al-Mundhir. Ibn al-Mundhir gathered between the science of Hadith and Jurisprudence. So, he is a jurist speaker; but jurisprudence overcame him, and he expanded in it. The great witness and best evidence on his wide knowledge about Hadith, and its rules and regulations is his Book, '' al-Awsat'' in which he collected what the scientists disagreed. It is considered the greatest old encyclopedia on jurisprudence known till now.

Paper presenter: Nasran Mohamad (Professor, National University of Malaysia), “The Political Situation during Al-Nawaw's Lifetime and his Contribution to Shafi'i Juristic Work”
The central concern of this study is to present the possible relation between political reality during al-Nawawi’s time and his contribution to produce various Islamic knowledges especially in the field of Islamic jurisprudence. Al-Nawaw’ (631-676/1233-1277) was one of the most important Shafi'i jurists in the seventh/thirteenth century. He lived in a Muslim world which was threatened both internally and externally. Internally, there was the growth of political sectarianism intent on controlling the caliphate, while externally the Muslim world was coming under foreign attack, being threatened in the West by the Crusaders and in the East by the Mongols. In spite of this (or possibly because of this), he produced a body of juristic work of great significance. The work of al-Nawaw’ proves that his preference in writing was to analyse the concepts and problems inherited, rather than to take on or create new ones. He continued to analyse the inherited concepts and problems, even when these had no bearing on the practical life of ordinary Muslims.

Paper presenter: Toru Miura (Professor, Ochanomizu University), “The Changing Role of Sharia Court in 18th and 19th Centuries: The Salihiyya Court Records in Damascus”
Recent studies of court records are focusing on the role of sharia courts in local societies, though they have been used as socio economic data for a long time. My former study of the Salihiyya court in the latter half of the 19th century has clarified that ordinary people recorded there their contracts, especially transacts of immovable properties and inheritances, to assure their ownership and avoid future conflicts. This study examines the function of the Salihiyya court of Damascus, comparing the registers of the 18th and 19th centuries. We notice that the 18th registers were shorter and simpler in terms of recording formula than those of the 19th century. Why did they become more complex in the 19th century? What caused changes of the registration and contents? By answering to these questions, I would make clear that the sharia courts were not eternally constant, but changed its role according to the social conditions.