This essay demonstrates Ibn Taymiyya’s engagement of historiography in iftāʼ. It draws upon fatwās on pilgrimage to Ascalon, travel to shrines of al-Ḥusayn in Ascalon and Cairo, and visits to Jerusalem and Hebron. Ibn Taymiyya weaves sophisticated historical narratives into his legal reasoning against visiting tombs of prophets and Ahl al-Bayt. He exposes lacunas, contradictions and unreasonable assertions in truisms about bodies of prophets and saints and their cults. He argues against ziyāra to such sites, blaming Shīʿīs for spreading the innovation at a particularly vulnerable time for Islam. His attack on notions of the religious merits of Jerusalem and of murābaṭa hinges upon his reconstruction of the history the Dome of the Rock and of the Islamic frontier. History leads him to stress the temporality of territorial definitions and their dependence on context. His argumentation resonates in works of later writers, demonstrating the continuing relevance of his fatwās.
This article traces the genealogies of the legal concept ‘spreader of corruption’. Although some scholars working on Ottoman law consider this concept to be part of the Ottoman ḳānūn tradition, the history of its adaptation by Ottoman jurists actually dates back to the Qarakhanid period (eleventh century CE). It acquired its legal meaning as a result of jurisprudential debates among Ḥanafī jurists in the context of political turmoil and violent factionalism among madhhabs. Later, Seljuq and Golden Horde legal-textual traditions served as conduit for Ottoman jurists to adapt the concept in order to apply it to a variety of criminal acts. This article explores how the ‘spreader of corruption’ concept was reinterpreted over the centuries and how it contributed to the enforcement of law in the Ottoman context.
This essay contributes to a longstanding concern with the place of ethics in Islamic law, suggesting a reorientation of the debate through a consideration of the role of habituation in works of uṣūl and furūʿ. I demonstrate that the well-known emphasis on habituation in Aristotle’s ethics, and its underlying conception of character, exerted a heavy influence on writers of akhlāq works. I then examine the development of three fiqhī concepts – idmān, iqāma and iṣrār –to show how jurists embedded this conception of moral behavior in the discursive fiqh tradition, linking their disapproval of persistent sinful or morally distasteful behavior to a tangible legal effect: the forfeiture of the violator’s standing before the court. Based on this finding, I argue that jurists and moralists operated in a shared universe of normativity in which the commitment to habituation as a premier mode of ethical cultivation was held in common.
In 1869, the British allowed Muslims to sit as judges on the High Court. This article explores the legal opinions of the first Muslim judge to be appointed to the High Court, Syed Mahmood. Straddling two competing worlds – that of Cambridge University and that of his native India – Justice Mahmood both legitimated and resisted colonial judicial power. In this essay I will demonstrate how British judges interpreted points of Islamic law within an English legal framework, and how these interpretations contradicted their translated texts of Islamic law, yet became the foundation of legal precedents established through the doctrine of stare decisis. Despite participating within the British colonial judiciary, Mahmood challenged these precedents, demonstrating his ability to navigate the paradoxes of colonial power to secure for himself a legitimate platform from which he could argue his juridical interventions. The efficacy of these challenges, however, ultimately was restrained by the institutions and structures of the colonial jural project.
Soon after the Lajnat al-Hurriyāt al-Fardiyya wa-l-Musāwāt (“Committee on Individual Rights and Equality”) submitted its report in June 2018 to the president of Tunisia, Beji Caid Essebsi, the latter ordered the legislature to amend the 1956 family law to achieve equality between men and women in inheritance and property rights. Although the authors of the report had written forcefully about how Islamic texts (the Qurʾan and sunna) are compatible with modern law, some of their recommendations suggested a broad inclination to reform the law outside religious tradition and as part of the exigencies of the civil state. These events and ideas brought to the fore questions such as whether classical Islamic law is reformable or obsolete. This paper aims to show that interpretations of Islamic texts that result in radically different inheritance laws have existed since at least the third Islamic century. Inequality has persisted always for political and institutional reasons, not substantive ones.