Transformations & Continuities in Islamic Intellectual Thought Conference – Law

– Okay, so let’s get started. Panel Three is going
to be focusing on law. So we started to get a bit
into law in the last panel, with the last two panelists, and we’re going to continue on kind of explorations of law in
the 16th and 18th century with three really fantastic papers that I’m looking forward to hearing. The first paper is going
to be by Dr. Talal al-Azem from the Oxford Center of Islamic Studies in the University of Oxford. He’s a Mohammed Noah Fellow there. And his paper is going to be on Ibn Abidin reading the Madhhab. – For the sake of time, just going to jump straight in. So the Madhhabs of Islamic jurisprudence are ancient institutions, originating from the
first centuries of Islam. Generations after generations of scholars have delivered opinions
on questions of praxis, debated these opinions, transmitted them, checked their chains of
transmission against their sources and continually reviewed their relevance to changing times and circumstances. In addition, these Madhhabs were not merely scholarly traditions. Over the centuries they had become self-regulating guilds of jurists. That is to say, not regulated
by government or state, at least directly. Which provided the
judiciary with its judges and society with its
jurist consults, or muftis. Later, of course, the
Madhhabs became the basis of the Mamluk’s Empire’s
pluralistic judiciary. This embodiment of the Madhhabs within the legal system in society led to new jurisprudential problems, but also creative solutions. The primary concern of the architects of this jurisprudential tradition was to ensure that the rules
formulated by the Madhhabs were applied consistently, that the rulings issued were predictable, and that such legal functionaries
could be held accountable to their guilds and to society at large. The totality of these
jurisprudential mechanisms, doctrines, and procedures
is what we might call the Madhhab-Law Tradition. As a point of contrast, for example, with our notions of common-law traditions or civil-law traditions. This tradition of jurisprudence was shared by all four post-formative Sunni Madhhabs. And within this historically
evolving Madhhab-Law tradition, two jurisprudential doctrines
stood as the cornerstones. The first is the practice of Tarjih, or real determination, and the second is the regime of Taqlid, or binding precedence. Tarjih, lexically, is the
weighing up of different things. And, technically, it’s the
granting of preponderance to one legal opinion within
the Madhhab over others. Such that that opinion
goes from opinion to rule. The rule of the Madhhab. This is what we might
call rule determination. The opinions transmitted
from the foundational jurists were assessed and one
eventually came to serve as the Madhhab’s rule. And the purpose of this Tarjih was to resolve rule indeterminacy. That is, when a mufti or
a judge had to pronounce, what do they pronounce
upon any particular case. And this rule indeterminacy
resulted, in large part, from the fact that there are
hundreds upon hundreds of years of legal Fiqh scholarship to deal with. Tarjih answers the problem of how to move from a plethora of legal opinions
that could be to one rule that could be used by lower
ranking judges or muftis. The resulting regime of
binding juristic precedent is what is known as Taqlid, and it’s, of course, the basis of the jurisprudence attempts to achieve a consistent, predictable, and a rational legal system. The scholarly discussion as to the mechanisms of
this Madhhab-law tradition occur not in academic fora
or in courts, but in books. And these books have
argued, refined and debated one another’s positions over centuries. By the late 18th century
and the early 19th century a thousand years or more of
literature had accumulated for each of the Madhhabs. To say the least, this
could be bewildering and daunting to even the
greatest of scholars. To say nothing of
everyday jurists or muftis who had to provide responses,
or halal judgements, on a very wide array of
legal and moral questions every single day. So how do they navigate
such a labyrinth of texts? Well, bound as they were
to issuing judgements according to the Madhhab jurisdiction to which they were appointed. Hanafis being appointed
to hanafi jurisdictions, Malikis otherwise from
the Mandel period onwards. The question is really, how do they discover the rule? After the rule formulation
and review had taken place, how do practicing jurists
discover what they should use? This paper will attempt to
further our understanding to the solutions developed
by early, modern jurists exactly to this question. And I’m going to be looking
at one particular author: Mohammed Ibn Abidin. A foremost and famous Ottoman-era
Hanafi Marathi jurist, who died in the early 19th century. His magnum opus was Radd al-Muhtar, The Response of the Bewildered. I believe a little indication to how bewildering the tradition can be. Which is a super-commentary
itself, a hashiyah, on the Fiqh work Durr
al-Muhtar by al-Haskafi, who had died in the late 17th century, itself having been a commentary on a 16th-century primary text. It was while writing his Radd al-Muhtar, this super commentary
which in published form is sometimes up to 20-odd volumes, that he composed a smaller treatise, called “uqud rasm al-mufti,” or the couplets of the mufti’s task. So this is a didactic poem, treating the heuristic procedures
to be followed by a mufti, upon which he wrote his own commentary. And it’s in the commentary the Ibn Abidin instructs and teaches
the reader of his tract how to read the Madhhab. That is to say, which books to read, what not to read, how to read
them, and for what purposes. So, I’m going to focus on a few lines and a few sections of
this broader treatment. So, the first question is about reading to discover the rule. In other words, the broader question is how did Ibn Abidin approach
this millennium-old library of Hanafi literature and
what drove him to do so. And I think he answers this question in the first pages of his
commentary, of his treatise. He does so by connecting the necessity of learning how to
navigate the written corpus of the Madhhab to the
question of rule formulation in the Madhhab-law tradition. He begins by citing a number of jurists from across the Madhhabs,
not only from his own school, to establish two points. First, that there is a ijma, a consensus, as to the necessity of relying
upon the binding precedent, upon the Tarjih-Raja position. And second, the necessity
of knowing the juristic rank of the scholar whose rule formulation you propose to adopt. In other words, as he
says in his own words, “You will realize, if you
reflect upon these points,” he says, “you will realize
how little confidence “can be placed in the fatwas issued “by the majority of people today. “As they merely rely on one of the most “recently written works, “and especially those
works which have not been “critically reviewed,
(speaks foreign language)” And we’ll come back to this point, as to what this means. So at the very outset of his treatise as to how a jurist is
to discover the rule, Ibn Abidin is rooting the issues in books. And, more specifically, the
necessity to rely upon books that have been critically reviewed and warning against
those that have not been so checked and so reviewed. Now what are the problematic
qualities of such works? Well, Ibn Abidin lists a few. He says they are overly succinct and brief to the degree that they
appear riddle-like. In their brevity they
contain many elisions, supat, omitting key opinions and rules, and they deem preponderant opinions that are actually contrary
to the rule formulated by the Madhhab. Sometimes going so far as to give tarjih, to give preponderance to an opinion from a completely different school that no scholar from this
tradition had ever held. In other words, these books
cannot be relied upon. But he goes to an even
more fundamental problem, namely that the scholarly
quality of the books and their authors might be unknown, and, thus, unreliable. This could be for any number of reasons. The author and his
scholarly qualifications are not recorded in the Madhhab’s
talhapat, or literature, and thus the person is imperfectly known. The work transmits weak opinions or the books are so
abbreviated, as we said, that they might be
confusing to the untrained. So, this is the basis of his critique of a certain subset of works. But this is not the only
reason that mistakes in identifying the binding
rule of the Madhhab abound. Part of the problem, he laments, is how jurists read. The lazy reading practices,
that is, of his own age. Muftis were reaching for
only one, single book when they came to issue
their fatwas or their fabah. To make matters worse, these books were usually the
more recently published mutun, or groundworks of samad, and they were foregoing
reading earlier works in order to check the claims of these most recent samads. So this was not just a matter
of poor reading habits, but it was professional negligence. Muftis and judges were falling into a fundamental error of scholarship, namely they weren’t
checking their sources. Thus, many of the widespread errors as to the raja position of the school can go back to a single author’s error, due either to, he says, a
mistake made when copying, called (speaks foreign language) or a slip of the eye even
(speaks foreign language) Anyone who has tried to
transcribe a manuscript knows exactly the dangers involved. This error is then
perpetuated by later scholars who uncritically copy, relate
and perpetuate the error, and then lazy readers consult, at best, a few of these later sources, find these two or three sources all agree, of course in error, and thus issue their fatwas on the basis of this erroneous reading of the Madhhab. Ibn Abidin gives a few examples here. I’m, for the sake of time, going to skip over them, but just to give a category, one question is the
example is the question of financially commissioning
someone to recite the Quran. Which, he says, the later school, many of the authors came to a position that it was permissible, but they did so on the basis of one, if I’m not mistaken 12th-century Hanafi who did an incorrect tarjid,
in Ibn Abidin’s view, and perpetuated this view such
that it had become the norm and people were paying
other people, basically, to do acts of worship, which he said is not the position of any of the founding members or later scholars, for that matter, of the school. After providing these examples, Ibn Abidin warns that
even authors of prominent and widely read works have
succumbed to this error of uncritically perpetuating in an incorrect instance of Tarjih. And it’s at this point
the Ibn Abidin pauses for a brief promotion of his
own, then, work-in-progress, the Radd al-Muhtar ala ad-Dur al-Mukhtar. He says the virtue of his own
work that he was then writing was that he tells us at every stage in reviewing any given opinion, all the preceding views
and attributes these views by quoting their sources at length. In other words, he doesn’t suffice himself with mere mention of the received rule, but he quotes, verbatim,
passage after passage after passage from earlier texts to show what the true rule is, and thus perform a
process of critical review of the ground text that his
commentary is based upon. So he’s doing the spade work, as it were, for the muftis and for the pahdis. He’s tracing the opinions
to their original sources and tracing these opinions through the historical body of
literature to conform his reading and to ferret out any later misreadings and who introduced them. And it is at this juncture in our text that Ibn Abidin establishes a principal of the Madhhab-law
tradition of jurisprudence, and claims cross-Madhhab consensus, namely the impermissibility of reading, and thus issuing, fatwa from a single, or a small number, of texts. He does so by citing Ibn Hajar al-Haytami, who we just heard something about. He cites, likewise, An-Nawawi, who, likewise, we had heard of just in the previous presentation, both Shafiite scholars
and a range of others to establish that this is something that in entire Madhhab-law tradition and all the Madhhabs that comprise it are in agreement about. This is the passage that he cites from al-Haytami and from An-Nawawi, in which An-Nawawi eviscerates the people who would read a handful of works and then claim to be, on that
basis, fuqaha, or jurists. So in this fashion Ibn Abidin draws this particular discussion to a close. He says, “Being widely read
and being skilled enough “to navigate the literature
are both necessary qualities “of being a jurist. “For without it, a jurist
is prey to falling error, “to discover the binding
rule of the Madhhab.” So, a sound reading
strategy, one might say, is a sine qua non of working within the Madhhab-law tradition. A necessary consequence of the cumulative and conservative nature of a long-lived, yet living, legal tradition. He then turns to strategies for navigating the Madhhab’s corpus and for
reading particular books. As we’ve already mentioned, Ibn Abidin argues that
one cannot always assume that latter-day authors,
however prominent, had always approached the books that they were reading and drawing upon with sufficient criticality. Thus it’s incumbent, he says,
upon every mufti and judge to know how to discover the rule by knowing which books to consult and how to read them. And towards this end, Ibn Abidin provides a number of pointers. When to read certain types,
or genres, of Fiqh literature, how to identify an author’s
nomenclature for tarjih, but also, importantly, how
to read between the lines to know when the author is
implicitly deeming a position to be the rule of the Madhhab in the very structure of his writing. So in the final lines of
section nine of his poem, Ibn Abidin addresses a topic that scholars in the 16th and 17th century, in the later period of rule review, had discussed and debated before him. And this is the question as
to the relationship between mutun, shuruh, and a fatawa. Drawing on, again, a long-standing debate over hundreds of years, Ibn Abidin states that mutun,
either by their nature, written to establish
the rule of the Madhhab. As a working method,
the authors of the mutun limited themselves to transmitting only the correct, the raja, position. They didn’t mention multiple
positions on any question, nor did they debate them. And so an author can
assume that if a matan, or the mutun as a whole,
agree on something, that this is indeed the rule, even though they did
not explicitly say so. Again, he proceeds by
drawing from various works of the century-old corpus evidence for this exact point. That this was the view of all the authors who had written texts. Now, he continues, he said
if there is a conflict between what is found in the mutun and between the shuruh and the fatawa, then one relies on the mutun. He says this is always the case unless the authors of the non-mutun works have explicitly granted
preponderance, sasiyah, to an opinion not taken by the mutun. So if you have a matan
and you have a commentary, and the commentary explicitly
says the matan’s wrong and this is the right position, then the mufti of quality
is to follow that position. Likewise, positions found in the shuruh are given priority over
those found in the fatawa. Why? Because the fatawa works were written to compile the personal
selections, the icthi arat, of the later mashayikh, the later scholars of the Hanafi school. These positions have not,
they are individualistic, and they did not undergo the
same type of critical review that the mutun and the shuruh underwent. And as such, the fatawa can only be used on questions that the mutun and
the shuruh are silent about. He then turns to identifying tarjih and he says there are two types: implicit and explicit. In an implicit form of tarjih is those of works such as
(speaks foreign language) or the (speaks foreign language) a very famous text used
in the Ottoman realms in which the authors always
position the fatwa position, or the rajah opinion first. So if they list more than one position, one it’s implied that that first position, that first rule is the raja. In other books, it might be the opposite that after a listing,
it is the final position and he says, this is the norm outside of the two previously mentioned
texts (speaks foreign language) As for other works, there are some that go against both of these things, and they explicitly
give their instructions at the beginning of their texts. In which he case he says, simply follow the instructions of that book. And finally, he says there are some works which don’t do any of the above. Rather, they will rationalize one opinion out of the list of positions, and this rationalization
is an indication that they deem that position to be the dominant. So this is how one reads works that have not explicitly stated what the rule of the
school is meant to be. On the other hand, we do have books that are explicit in their tarjih in their denotation of the fatwa position. And they do so through
a certain nomenclature. So he treats at length
at this point two terms, sahih and asahh, the correct position and the more correct position. And again, it’s a very lengthy passage but in short he says, if the sahih is the position given in one book and the asahh on the same question is given in another
book, some scholars said you should take the sahih position, something that’s somewhat
counter-intuitive on the basis that they
both agreed this is sahih, but they disagreed that
the other one is asahh so go with that one. And he mentions books
that follow this method. However he said, the more dominant thing unless you see somebody explicitly saying that’s what they’re going to do, you should assume that the asahh position is actually the position to be followed and that’s why they gave it
the title, the more correct. The corollary of both
of these things is that, anything that’s not mentioned
to be sahih or asahh, one can assume to be marjuh,
to be a weak position that has been left. Unless, and here again another caveat, he says unless the text has its own usage, in which case again, follow that method of that particular book. So as you can see, there is
a great degree or variation and his point in this treatise, is to gather them all
together and give the reader, a set of keys as to how to unlock and understand this tradition, within the context of rule formulation. Now, that was all if
the sahih and the asahh were in two different works. Sometimes he says, you
find the same two terms being used in the same work, the same author saying this
is sahih and this is asahh. Here, he says, if all the terms
are of a comparative nature, then we simply leave the decision to the discretion of
the qadi or the mufti. In other words if the author says, il asahh, or bil awla or arfaq or something of the sort,
then the judge or the mufti can justifiably take
any of these positions and in fact they should reflect upon what is best for the
person or the case at hand. However, he said if one of the terms is definite and decisive,
then only that position can be followed. He then spends another page or so with question after question
in a similar fashion. What if a single author reviews two different formulations
from two different authors, how do we deal with this, what do we do with scholars
who use a single term but apply it to more than one position, et cetera, et cetera. In short, the point that
he’s trying to raise is that the author, I’m sorry, the reader must beware and be aware of the usages within the tradition and
within specific texts. So to conclude, I have two major points I’d like to conclude upon. First is that just as the rules, regulating rule formulation, tarjih, and binding precedent, taqlid, were instruments shared by
all of the remnant Madhhabs and united them in one Madhhab law tradition of jurisprudence, so too were the general rules surrounding reading the Madhhab’s literary tradition shared between them. Not only the Hanafi of Nuceym or Ibn Humam but also Shafiites like
Ibn Hajar al Haytami know we were enlisted by Ibn
Abidin to insist upon the necessity of reading widely and the impermissibility of
passing fatwa or judgment if one is not skilled enough
to read the tradition. So this then is one of the
objectives of his task, of his treatise excuse me, which is to train the jurist as to how to skillfully read widely. The second and perhaps larger point that I’d like to conclude upon is regarding the importance of tahrir or rule verification for Ibn Abidin. And of course, modern Arabic usage, tahrir is the word that
we use for editing. Something an editor
does to a specific text. Within the Madhhab law tradition as described by Ibn Abidin, this tahrir or critical
review is not necessarily about a specific particular text but of questions being posed
within the texts of the school. So the goal then is
tahrir, it’s to liberate the truth on any given mas’alah from errors that had been made by inattentive copyists, bad
executions of rule formulation, incorrect transmissions or
in short, shoddy scholarship. This is a form of legal and moral realism. That while the sharia may be
unknowable in its entirety, or might be known in its entirety and knowable perfectly only to God, the position of the Madhhab can be known and must be sought after, and discovered, how many ever layers of literary sediment may have come between
the mufti and this truth. This in the end was the Ijtihad or the intellectual struggle, of jurists bound by a Madhhab on the eve of the great
revolution in legal systems that were about to sweep
the Ottoman Arab realms later in the 19th century and this is why Ibn Abidin set out to write his Radd al-Muhtar,
his super commentary, to serve as this critical verifier, this muhat that, not just
for the positive laws of the tradition, but of
the Madhhab law traditions’ very jurisprudence and
relevance to his era, thank you. (audience applause) – Thank you, next we have
Sohaib Baig, a PhD candidate at the University of
California Los Angeles. – Alright, so this paper focuses on a series of itinerant
Sindhi Hanafi jurists as well as keen interlocutors
from Afghanistan, Delhi and Gujarat, who participated in the intellectual world of
the Hijaz in the 16th century. This paper pursues two main questions. It explores to what extent the Madhhab and its institutions organized the intellectual relationships, of South Asian Hanafis
in the Indian Ocean, reflecting the first half of the title. Second, it analyzes the
epistemological status of Hadith as a source of law in their writings and in their engagements with
their main rival in the Hijaz, the Shafiite school we just learned about in the previous panel. So following imperial
unrest in Afghanistan amidst Mughal and Safavid competition and most notably the
Arghun invasion of Tartar in lower Sindh in the 16th century. Many Sindhis headed
outwards, outwards of Sindh for different destinations, called the Abdallah Ibn Ibrahim slowly made his way to Ahmedabad where he met the famous Hadith scholar and Sufi Sheik Ali Ibn Mutakhin who was a famous scholar,
who also circulated between Gujarat and Hijaz multiple times. From there, this scholar the Abdallah, eventually moved to the
Hijaz with his two sons, Rahimtullah Al-Sindhi
and Amiruddin Al-Sindhi who occupy the major
portion of this paper. Where his two sons studied Hadith under Ibn Hajar al Haytami,
whom we heard about amongst many others. In the Hijaz, while the Madhhab
as an institution flourished in madrassas often designated
to particular Madhhabs, other institutions such as ribats, the grand mosques of the
Haramayn and the dial Hadith, presented scholars with opportunities to engage other schools of thought and disciplines outside
jurisprudence, such as Hadith. As this Sindhi scholars
moved to the Hijaz, they began to think and write about the questions they faced there. The vast majority of
Rahimtullah Al-Sindhi’s work was on the (speaks foreign language), the discipline of the
rights of pilgrimage. Consisting of encyclopedic
tomes in smaller abridgments, meant as handy Hajj guides for pilgrims. Rahimtullah wrote his
(speaks foreign language) in 1543 in Medina while
still in his early 20s. Drawing upon more than
150 sources of Hanafi law, Rahimtullah laid out in
the encyclopedic detail, the procedures and
rulings of the pilgrimage in the Hanafi school. Unlike many of the
Hanafi jurists he cited, he deliberately avoided discussing the reasoning and evidence
behind these verdicts and strove instead to
compile and synthesize the vast array of differences
amongst Hanafi scholars. His goal was not to justify
Hanafi positions against critics it was to compile Hanafi opinions, and to a lesser extent,
to engage where necessary in tarjih and tashih, which
we just learned about, to borrow terms of rule
formulation and rule review or the processes of determining the preferred legal
position of the Madhhab. He thus participated in
a juristic enterprise, that became prominent in
the post classical era of Hanafi thought as the
“jurisprudential engine” that enabled scholars to
navigate the complex terrain and inherit plurality
of Hanafi jurisprudence. One of his abridgments in turn became subject to a
commentary by Mullah al Iqari, a scholar who left Hirat in the aftermath of the Safavid invasion and
studied at some length Mecca, with an uncle of Rahimtullah
Al-Sindhi amongst many others. So if Rahimtullah Al-Sindhi demonstrated a prolific attention to law, his brother Amiruddin is known more as a scholar of Hadith Mecca. Amiruddin wrote a commentary on the (speaks foreign language)
with those traditions that only consisted of three
links and a transmission in the chain of transmission between al-Bukhari and
the prophet himself. Now Amiruddin was a teacher
of Abdul Wahab al Mutakhi at Dehlawi, another Hanafi
Hadith scholar of the Hijaz and actually a prominent successor of Ali al Mutakti’s Sufi
order known as el-Mutakti. Amiruddin licensed him specifically in the Mishkat al-Masabih, a famous Hadith compilation
from the early 14th century. Abdul Wahab al-Dehlawi in turn was a main Hadith teacher and Sufi master of the more famous and
recognized Abdul-Haq al-Dehlawi who was more widely known for
a number of key contributions to the field of Hadith
studies in South Asia. In fact Abdul-Haq reached a Hijaz just a few years after
Rahimtullah’s death, and he met Amiruddin in Mecca and received an Hijaza from him. Abdul-Haq’s transmission of the Mishkat within his famous Arabic
commentary of the text, reached from Abdul Wahab
to Amiruddin al-Sindhi. So already in the late 16th century, an important connection was made between the scholarship of Delhi and
Sindh in the Hijaz itself. While these South Asian
Hanafis firmly self identified with the Hanafi Madhhab in
terms of legal doctrine, in social terms, a
picture was more complex. All received Hijazas from,
or studied at some length with several Shafiite scholars of Hadith. It is also possible to
notice the formation of a generation of Hanafi
scholars of Hadith in the Hijaz. Abdul-Haq al-Dehlawi’s long
tenure of Hadith study, under Abdul Wahab al Mutakhi, who in turn had Hanafi
teachers in Amiruddin al-Sindhi and Ali al-Mutakti,
represented a stark contrast to the generation of
Ali al-Mutakti himself. Ali al-Mutakti’s Hanafi teachers were the ones he had
encountered in South Asia whether in Multan or
Gujarat but not in Mecca. The production of a Hanafi layer of Hadith scholars in the
Hijaz, following Ali al-Mutakti arguably endowed the Hanafi community with more social and intellectual depth. As will be discussed below,
this is one way of understanding the much more vocal Hanafi positions, and critiques of Shafiite scholarship from Abdul-Haq al-Dehlawi and
Mullah Ali al-Qhari as well. So even as Hadith scholarship formed an area of intermism,
interaction and encounter, the overarching importance of the Madhhabs was visibly prominent and
paramount in the Hijaz. The Haramayn at Mecca long had instituted separate congregational prayers for the four schools of thought complete with separate physical stations. This brought the Madhhab
system to a very public level and transformed it into something architecturally visible, in
which it will be manifest to everyone in the Hijaz
beyond the debates of scholars in particular legal or
educational settings. In 1518, just a year after the
Ottomans conquered the Hijaz and the Ottomans as Hanafis themselves even built a grand dome
of the Hanafi Malkam, but it was opposed by rival schools and it was eventually demolished. The debate then on the
validity or lack thereof of (speaks foreign
language) provides a measure of the social and legal
depth of the Madhhab as an institutional reality
in 16th century Mecca. The Sindhis as relative
newcomers to the Hijaz gave the whole question of praying behind a person of a different
Madhhab considerable thought. Rahimtullah al-Sindhi wrote a treatise where he argued for limited
and contingent permissibility for a Hanafi to pray behind
someone of a different Madhhab. He supplied copious lists and codes from both early and late Hanafi scholars across Egypt, Iraq,
Central Asia and South Asia and sketched out four large
positions across literature. First that was permissible
only if the Imam made sure to conform to the Hanafi school in matters of conflict and if
not then it was impermissible. Second that it was permissible if it was known with certainty that the Imam would
violate the Hanafi school. And if it was known that he
would violate the Hanafi school then it was impermissible. Third that it was never permissible and fourth that it was always permissible. According to Rahimtullah the first was actually the strongest. That is that the, it was only permissible if the Imam made sure to
conform to the Hanafi school in matters of conflict. He argued that the Shafiites
consider certain things as recommended that the Hanafis consider as violating the prayer such
as (speaks foreign language) or the act of raising one’s
hands in ritual prayer. Here, as in his work on
pilgrimage, Rahimtullah al-Sindhi was not defending the Hanafi school vis-a-vis other schools of thought. He did not furnished evidence to debate other schools of thought but simply referred to the positions of a whole series of Hanafi jurists to sketch out a broad overview. There was not much consideration of the Hanafi school’s formation as a school in and of itself, and whether this may be related to the development of the positions held by different Hanafi scholars. This represented a perspective that took the historic
existence of these differences along with appliance entirely for granted. And did not differentiate
between the views of early and late Hanafi scholars. It is not surprising
that such a firm division led to unique predicaments in
the courtyard of the Haramayn. For instance in some
prayers, that the Shafiites held their congregation
earlier than the Hanafis. Hence if Hanafis followed
Rahimtullah’s rulings to the letter, they would have to refrain from joining the Shafiite congregation even if the witness is called to prayer in the vicinity of the Haramayn which itself was subject to censure. Amiruddin, the brother wrote a treatise attempting to provide a solution namely to join and pray, about what the intention of Nafl or Sunna behind a Shafiite Imam who
led the obligatory prayer before the Hanafis did. Amiruddin presided a
number of Hanafi positions based upon a particular Hadith that established a permissibility of praying Sunna or Nafl behind an Imam who was leading the third prayer or the obligatory prayer. Then he approached the question of praying behind a person
of a different Madhhab and here he said, that
the best has been spoken regarding this question is by
Sheik Rahimtullah his brother and he provided a brief
summary of the four positions his brother had listed earlier. However his conclusion was different. He favored the second
position instead of the first, that it was permissible to pray behind someone of a different Madhhab. If it was known with certainty that he would commit actions that would invalidate a Hanafi prayer. Nor did he agree with
Rahimtullah’s position that actions such as
(speaks foreign language) nullified the Hanafi’s prayer. He argued that was a shared
or anomalous opinion. A more serious critique
came from Ali al-Qhari who explicitly critiqued
Rahimtullah’s position in his treatise and we’ve
already mentioned how he was also a commentator
on his works on pilgrimage. Ali al-Qhari argued that
the multiple congregations of the Haramayn was a
new innovation or bid’ah. It was not present in
the time of the prophet, the companions or even the four Imams. It was Hanafi jurists
from the next generations such as Abu al-Layth
al-Samarqandi and Helwani who began to argue that
it was only permissible to pray behind someone
of a different Madhhab if he was careful not to
violate Hanafi positions. Ali al-Qhari interpreted their
deliberations on this matter as not of permissibility
or impermissibility per se but simply as something
that would or would not contain karaha or disapproval. Hence, even if the Imam did
not adhere to Hanafi positions it would be permissible to pray behind him though it could be makruh or disliked. Indeed Ali al-Qhari
argued that it was only with the rise of dah’asab
or factional partisanship from both sides that
scholars began to criticize praying behind an Imam
of a different Madhhab. It was for this reason that this division was instituted in the Haramayn. Ali al-Qhari deemed a bid’ah hasanah as a laudable innovation because it would prevent unnecessary disputes amongst Hanafi or Shafiite
jurists who might witness each other committing acts that would violate their Madhhabs. Ali al-Qhari does present
the most critical perspective of the three scholars
distinguishing between early moments in Hanafi law
and its later development and the role of social
contestation between the Madhhabs. It is important to note
that all three scholars were migrants to the Hijaz, who most likely had never seen
such an arrangement before. And all had substantial interactions with Shafiites such as
Ibn Hajar al-Haytami. Yet all were in support of
this Madhhab-based division though to different degrees. Rahimtullah al-Sindhi presented
the strictest of position regarding the invalidity of
praying behind Shafiite Imams. Amiruddin attempted to validate perfroming involuntary prayers behind Shafiite Imams. Ali al-Qhari considered
adhering to Madhhab lines as the strongest position but deemed it as a question
of karaha or disapproval. Through all the different positions, all were engaged in legal scaffolding, a term which I borrow from Sherman Jackson which entailed adjusting existing laws through new divisions, exceptions, distinctions, prerequisites and so forth. Instead of a direct engagement with scriptural sources of law. In other words, all of
them were engaged primarily with Hanafi text rather than creating new interpretations of scripture. This discussion illustrates
how the Madhhab continued as a paramount legal framework even as these Hanafis embraced the study of the Hadith sciences. Now this discussion did not really involve defending opinions against
other schools of thoughts. However, debates and comparisons
with Shafiite scholarship did occupy the attention
of Abdul-Haq al-Dehlawi and Ali al-Qhari. When Ali al-Qhari wrote a vehement defense of the Hanafi school in Abu Hanifa against a very early
attack by Imam al-Juwaini from the 11th century, a Shafiite scholar of the early celgic period
who wrote at the time, when the Shafiite and Hanafi divide was much more polemical and even violent. This treatise by Mullah al-Qhari attracted so much opposition
that he had to write another treatise clarifying his remarks. In highlighting the support he had from other Shafiite scholars in Mecca. The fact that such an early critique from the 11th century was being revived and cited by Ali al-Qhari, is an indication that
Shafiite and Hanafi tensions continued in the 16th century despite the enshrinement of each Madhhab in the institutional orthodoxy that had come into prominence
since (mumbles) period. Even Abdul-Haq al Dehlawi at one point had been so taken by Shafiite arguments that he considered switching Madhhabs. It was his teacher Abdul
Wahab al Mutakhi’s case for the Hanafi contribution
to the Hadith sciences that convinced him not to do so. Both Ali al-Qhari and
Abdul-Haq wrote commentaries on the Mishkat al-Masabih,
the famous Hadith compilation. Abdul-Haq actually wrote
separate commentaries in both Persian and in Arabic, a complete analysis of both and comparison awaits a full study. For Ali al-Qhari, a fundamental reason that prompted him to
write a commentary was, as he explained that most
existing commentators of the Mishkat were Shafiite, and would justify Shafiite
positions in their works while dismissing the
Hanafis as people (mumbles) or opinion who did not incorporate Hadith in their methodology. Ali al-Qhari does endeavor to explain and defend Hanafi
rulings so that commoners who did not have an
understanding of legal evidences would not doubt whether
the rulings or the Hanafis contradicted their
evidence of their religion. Here the social function of
writing Hadith commentary was explicitly meant to
defend the Hanafi Madhhab against the Shafiites for the benefit of an Arabic reading public. This was despite the
fact that Ali al-Qhari opened his introduction with a list of both Hanafi and Shafiite scholars, he had studied this Hadith’s work with and those who had granted him Hijazes. In effect the larger brunt
of Ali al-Qhari’s efforts were not to overcome the Shafiites as a socially distinct group. This might have been in Celgic times, but simply to defend the legitimacy of the Hanafis in the presence
of an Arabic reading Awam. In Mecca they attached
great epistemological priority to Hadith. Now this Hadith based
critique of the Hanafis did not simply extend to an Arabic public. When Abdul-Haq returned to Delhi, he endeavored to defend
the Madhhab system, the concert of Taqlid legal precedence and the Hanafi Madhhab. In particular in his
(speaks foreign language) This was a Persian commentary on a text written by the famous
lexicographer al-Fayruzabadi. Abdul-Haq, mentioned in his introduction that al-Fayruzabadi had become
critical of the Madhhabs claiming that they did not
have a solid foundation on authentic traditions. Abdul-Haq aimed to establish
the veracity of that and the authenticity and
strength of the Madhhab jurists though his main purpose
was to defend the Hanafis. In his commentary, Abdul-Haq
provided a quick breakdown of the Hadith sciences
discussing the different types of traditions, the hierarchies, the rise of Hadith compilations and their particular features. He attempted to legitimate the existence of legal differences into simultaneously to
describe his differences as proof of the necessity of Taqlid. On much of his criticism
was directed against those who rejected the Madhhabs as a whole. Abdul-Haq also took the time to address the intimate differences of the Shafiites and Hanafis. He dedicated a section to addressing the claims that the Shafiites had a strong scriptural foundation in Hadith whilst the Hanafis legislated
according to opinion. Even in contradiction
to Hadith literature. This idea, Abdul-Haq
stated was entirely wrong and completely ignorant
and was attributable to the dah’asab or factional partisanship of some Shafiite scholars,
who in their commentaries would discuss the
legitimacy of the traditions used by the Hanafis. Here we find an echo of the same complaint Mullah al-Qhari had made as well. For both of them the charge of the Hanafis had a weak scriptural basis
had to be taken seriously. This itself was indicative
of the importance of Hadith scholarship amongst Hanafis of the late 16th and early 17th century. These Hanafis remain largely faithful to the larger Hanafi tradition, engaged in legal scaffolding to navigate the textural oceans of jurisprudence and arrive at different injunctions and defended the Hanafi school of thought on the basis of it’s concordance with prevalent notions of
the authority of the Hadith. So to wrap up, this paper
traces the enduring vitality of the Hanafi Madhhab in world of Hadith scholars and jurors
across the Indian Ocean. The initial generation
of Sindhi Hanafi scholars in the 16th century contributed to the consolidation of Hanafi law regarding issues peculiar to the Hijaz such as pilgrimage and directly confronted though not exclusively by
Hanafis of the Indian Ocean. The emergence of Arabic text and commentaries on the rise to pilgrimage served to organize the plurality
of Hanafi jurisprudence and thereby make Taqlid more feasible and Hajj practicable for both the scholar and the lay pilgrim. These texts were read by (mumbles) and Hanafi scholars as far as
Bosnia and Gujarat and Syria. In addition the Madhhab
identity and practice was continuously sustained
in the face of large crowds and diversity in Mecca through separate prayer stations at the Haramayn. Even as many Hanafis
pursued Hadith studies under Shafiite scholars,
the Sindhi Hanafis served to incur another
generation of Hanafi migrants to the Hijaz who began to develop defenses at the Hanafi Madhhab against critiques mainly
regarding its reliance on Hadith. These scholars including
Abdul-Haq and Ali al-Qhari dew up on the authoritative
copies of Hanafi law and Hadith literature to answer criticism from Shafiite rivals. This blend of Hanafi jurisprudence became a major part of
the collective milieu of the Sindhi, Gujarati, Delhi
and Afghan migrant community in the Hijaz only to
be seriously challenged and critiqued by their
successors in the 18th century, thank you. (audience applause) – Thank you, next we have
Professor Asma Afsaruddin from the university, I always forget this, Indiana Bloomington, there we go. – Good afternoon everyone. Let me begin like everyone else by thanking the organizers
of this conference. A special shout out to Sohaira and Amira for including me in the program. And I’m afraid I have
no bells and whistles, I’m very low-tech so I’m just
simply going to read my paper. So in this paper I present the views of the well known 12th or 18th century Yemeni jurist and reformer,
Muhammad Ibn Ali ash-Shawkani who died in 1250 or 1834. Specifically on the topic
of the participation of non-Muslims in the military jihad. And these views are taken
from his legal manual, Nayl al-Awtar, which will then be compared to the views of earlier jurists. Like many of the scholars of his time his views are anchored
primarily in Hadiths that are selected by him
to bolster his position on this topic and I think
that measures very well with the two other papers we just heard. A broader discussion of his world view and religio-intellectual orientation helps us appreciate the
evolution of his theological and legal perspectives
in the 18th century. Ash-Shawkani was born
in Yemen in 1173 or 1759 and received his education there. He began to issue fatwas by the age of 20 declaring himself to be a mujtahid mutlaq and unrestricted religious
authority before turning 30. He wrote about 250 books
and taught Koranic exegesis, jurisprudence, rhetoric, grammar and law. In 1795, he was appointed the chief judge or the qadi al-qudat of
the Zayd Imamate in Yemen, a position in which he remained
until the end of his life. Following in the footsteps of eminent Yemeni scholars like Muhammad
Ibn Ibrahim al-Wazir, al-Hassan Ibn Ahmed al-Jaleel and others, he came to reject the
schools of law or madheheb and embraced instead the
idea of strict adherence to the foundational texts of Islam namely the Koran and Hadith. So ash-Shawkani’s approach
is actually quite different from the other jurists
we just heard about. Ash-Shawkani in fact
emphasized in his written works the importance of
exercising absolute Ijtihad. He opposed Taqlid which he regarded as blind acceptance of or submission to legal methodology, according to which a Muslim simply followed the
legal rulings of a scholar and or legal school rather
than personally attempting to understand God’s will. In his emphasis on Ijtihad, ash-Shawkani was of course not exactly
breaking new ground. Beginning at least in the 15th century, most of the leading scholars at the Zayd school of law in Yemen wrote on Ijtihad and many compiled books and held views almost identical to those of ash-Shawkani. For ash-Shawkani, believers are equal. Through rigorous study, any
member of the Muslim community could be elevated to the rank of mujtahid. This approach comes across quite clearly in ash-Shawkani’s Koranic hermeneutics as evidence in his well known tafsir work, Fath al-Qadeer which was
written between 1808 and 1814. In this spirit of emphasizing Ijtihad ash-Shawkani emphasizes in this work that the exegetical reports
going back to the companions should not be treated as irreproachable but rather are to be subjected
to critical investigation. Exegetical reports that can be determined to be authentically of prophetic origin, be treated as binding but since such reports are few in number the remaining should
be treated to a careful linguistic analysis and he
calls it tafsir bil luqha. He emphasized polyveiland
readings of the Koranic text based on such linguistic readings and often abstained from
taking firm positions in the absence of clear proof
(speaks foreign language) to the point that he did not
evidence clear partisanship with any school of thought. The well known modern Egyptian scholar Muhammad Hussein Dhahabi,
described his work as a Zayd commentary,
a statement that needs to be qualified by this
fact of a distinctive lack of an overt spirit of
loyalty to the Zayd school on the part of ash-Shawkani. The abandonment of the then
dominant system of madheheb in favor of independent legal reasoning by ash-Shawkani during the 18th century historically manifests
in his earlier legal work Nayl al-Awtar. Ash-Shawkani’s immediate environment was a key factor in the adoption of this anti-Madhhab stance on his part. In the 18th century the Zayd state dominated most of geographical Yemen and was headed by the Imams
of the house of Qassim. They sought to establish dynastic and patrimonial forms of rule, which clashed directly
with the traditional Zayd politocal doctrine
that only persons fulfilling strict scholarly, physical
and ethical qualifications could become Imams. A convergence of interests arose between the Qassimate rulers and the anti-Madhhabi jurists. And this was based on a firmer footing when ash-Shawkani assumed
the post of chief judge from 1795 until 1834. In return for state patronage, ash-Shawkani developed a Sunni-oriented legal and ideological framework that legitimized Qassimate rule. In this period, the majority
of the state subjects were actually Sunni Muslims, following the Shafiite Madhhab. And this Sunnis found favor under and would identify with
ash-Shawkani’s teachings that appeared more Sunni than Zayd. In addition to this local influences the larger currents of pan-Islamism and Islamic modernism that characterized significant parts of the
Muslim majority world at that time, also appears to have been a seminal source of influence on ash-Shawkani’s thinking
and intellectual production. As Ahmed Dhalal has
noted, the 18th century was a period of great
intellectual vitality in the 18th century and now
I’m going to quote from him. Comparable in its scope,
intensity and quality, through the cultural activities
of the classical period, intellectuals from
virtually all the regions of the Muslim world, systematically
attempted to scrutinize the epistemological foundations
of inherited knowledge and to reformulate the traditional, Islamic disciplines of learning. No other fields of study
received more scrutiny than the field of Usul,
theoretical principles in particular Usul al Fiqh, principles of jurisprudence
or legal theory and Usul al-Hadith, the theory of Hadith, end of quote. Ash-Shawkani’s legal perspectives will now be illustrated by
looking at a specific section within the Nayl al-Awtar. This is the section
contained in this chapter on jihad and international law. (speaks foreign language) Dealing with the issue of
whether it is permissible for the people of the book,
primarily Jews and Christians to take part in the military jihad. The specific section will then be compared with similar sections, in
earlier legal treatises. Notably the very early CR work of the late second or
eighth century historian, jurist and Hadith scholar
of Abu Ishaq Ibrahim Ibn Muhammad Ibn al-Harith al-Fazari, originally from Koufar,
who died circa 186 or 802 also with the (speaks foreign language) of the Maliki jurist Sahnun,
who died in 240 or 845. Al-Habi al-Qabir of the
Shafiite jurist al-Mawardi who died in 450 or 1258. The Kitab al-Mabsut by the
Hanafi jurist al-Sarahsy who died in 490 or 1096 and al-Mukhni or the well known Hanbaly
jurist Ibn Qudamah who died in 620 or 1223. In the section titled, seeking
the help of polytheists, (speaks foreign language) ash-Shawkani refers to actual polytheists, that is pagan Arabs from the
time of the prophet Muhammad as well as the monotheistic
people of the book. It is a very short section
reflecting the fact that this topic is actually
not of much interest or relevance during the 18th century and that this question had been more or less resolved by this time. The inescapable conclusion
that emerges from this section is that seeking the help of non-Muslims during a military jihad,
is not a desirable practice and that essentially,
there is no difference between polytheists
and Jews and Christians when it comes to such practices. Ash-Shawkani actually
lists merely three Hadiths that are directly relevant to this topic. The first rather long Hadith,
that ash-Shawkani narrates is as follows, it is narrated by Aisha and she relates that when
the prophet left for Badr a man known for his resolute
courage and strength, who wished to join the military expedition caught up with him. The companions rejoiced
with this possibility when the man spoke saying,
“I came to you to follow you, “and to suffer, whatever
bit of fate befalls you.” At that the prophet asked him, “Do you believe in God and his messenger?” He said no, to which the
response was “Go back, “for I will not solicit the
help of a polytheist or mushri” he did this a second time and
received the same response. When the man caught up with
the prophet a third time, this time he identified
himself as a Muslim and the prophet allowed him to
participate in his campaign. Ash-Shawkani accepts the
reliability of this Hadith and does not assess its
chain of transmission and simply notes that its
recorded by Ahmed Ibn Hanbal and Muslim Ibn Hajaj. Ash-Shawkani then goes on
to list a second Hadith narrated by Khabib Idn Abd-Rahman from his father, who
reported from his grandfather who stated, “I approached
the messenger of God, “peace and blessings be upon him, “who wished to go on a
military campaign at a time “when I myself and
another man from my people “had not embraced Islam.” So he said to him, “We’re
embarrassed by the fact “that our people witness
battle with you but we do not.” The prophet asked “have
you embraced Islam?” and we said no. And he said “we do not seek
the help of polytheists “against polytheists.” At that we entered Islam and
we witnessed battle with him. The final Hadith is one
that expressly allows non-Muslims, in this case Jews to fight alongside
Muslims in their battles. It is a Hadith narrated by Azuhri, died 124 or 742 in which he states, “The messenger of God, peace
and blessings be upon him “requested the assistance of Jews “during the battle of Khaybar “and he gave them a full
portion of the spoils.” Ash-Shawkani records that this is a Hadith recorded by Abu Daoud as a mursal, report that is a report
in which the name of the companion is missing. Ash-Shawkani assesses the reliability of this Hadiths in the following way. He notes that the one narrated
by Khabib Ibn abd-Rahman was recorded by a Shafiite
and (speaks foreign language) It was also recorded by Ahmed
Ibn Hanbal and Atah Barani and so he says their list of narrators are to be regarded as trustworthy
(speaks foreign language) He then proceeds to discuss
the Hadith from Azuhri which he notes was recorded by Abu Daoud and (speaks foreign
language) as a mursal report and he comments that mursal reports related by Azuhri are weak. To counteract this weak Hadith, Ash-Shawkani records a variant report narrated by a Shafiite
going back Ibn abd-Bess who said that the prophet had sought the assistance of non-Muslims but did not give them
a share of the spoils. But he also notes that al-Baihaki had said that this version came only from Hassan Ibn al-Mara whom
he characterized as weak. After comparing all these reports ash-Shawkani declares that
the Hadith from Aisha proves that it’s not permissible to
seek the help of the unbeliever as just the one from Habib Ibn abd-Rahman. It is contradicted by only the one that was narrated Azuhri
which was proven to be weak. Ash-Shawkani notes that
the Hadawia themselves and this is the legal
school prevalent in Yemen did not permit asking unbelievers and the morally reprobate,
he uses the terms (speaks foreign language)
for help in battle unless the Imam was accompanied by a large group of Muslims, who could prevent the non-Muslims and those who are reprobate
from overpowering them. Ash-Shawkani concludes that
the evidence as a whole therefore makes it impermissible to ask non-Muslims for
assistance during battles. The lone mursal report from Azuhri cannot overturn this conclusion. When we compare ash-Shawkani’s perfunctory discussion of this topic with discussions by earlier jurists, we find that this was a topic that actually exercised
their minds quite a bit. In al-Fazari’s early
(speaks foreign language) there are a number of reports which indicate a variety of
practices among early Muslims which point to both egalitarian and non-egalitarian perspectives
towards non-Muslims. Azhuri in fact is the early source for al-Fazari for the
egalitarian position. Al-Fazari relates that the
early pietist Meccan scholar Ibn Juraich who died in 767, stated that he had heard Azuhri respond when queried regarding the share of the people of the treaty, al-ul-Ahad who campaigned with Muslims, that they were entitled to two shares like the two shares of Muslims. Azhuri had pointed to the
precedence set by the prophet who gave Jews who took
part in battles with him two shares like the Muslims. In another report related by al-Fazari from the early Syrian jurist al-Alzhei who died in 157 or 773, and who was a frequent
source for al-Fazari. Axhuri is quoted as saying, that the (speaks foreign language) when they campaigned with Muslims were entitled to the two shares allotted for Muslims. In the section titled Kitab al-Jihad in (speaks foreign language) the third or ninth century
Maliki jurist Sahnun, addressed the question of
whether Muslims may seek the help of non-Muslims during battle. And he refers to the
Egyptian Fathi abd-Rahman Ibn al-Qassim al-Ataki,
who died in 191 or 806, was a prominent disciple of Malik, who said that he had not personally heard Malik pronounce on the matter, but his own opinion was that
he saw no harm in the practice. The issue of asking non-Muslims
for their assistance remains a fraught one
and laden with ambiguity for al-Mawardi in the
13th century as well. In his al-Habi al-Qabiy,
al-Mawardi calls a Shafiite who deemed it permissible to
ask non-Muslims for their help during a military campaign, if that redowned it to
the benefit of Muslims. The well known prophetic precedents are the enlistment of Jews from
the (speaks foreign language) and the recruitment of Safuen
Ibn Umaiyah, a polytheist, during the battle of Hunayn
after the fall of Mecca during the prophet’s time in 630. Following a Shafiite, al-Mawardi maintains that the assistance of
non-Muslims may be sought particularly when Muslims are in need of their assistance
and Muslims are assured of their good intentions, otherwise, such assistance may not be sought. In the Kitab al-Mabsut, Asarahsi in the late fifth or 11th century records reports that
support both positions. He therefore attempts
to find a modus vivendi between these two diametrically
opposed viewpoints by suggesting that the
assistance of non-Muslims may be solicited when they fight
under the banner of Muslims but not when they do as
an independent contingent. Like al-Mawardi before
him, Asarahsy emphasizes pragmatic and common will considerations in arriving at this position. The seventh or 13th century Hanbaly jurist Ibn Qudamah in his al-Mughni, says in regard to non-Muslims
who campaign alongside Muslims with the permission of the Imam that they maybe given a full share of the spoils equal to a Muslim’s. He notes that this was a
position of Ahmad Ibn Hanbal (speaks foreign language) Ibn Qudamah further notes that the prophet had sought the help of
Jews in his campaigns and had given them their full share and had done the same with the
polytheist Safuen Ibn Umaiyah during Hunayn and who was therefore entitled to a full portion
of the one who’s heart is to be reconciled
(speaks foreign language) and this is a reference to Koran 960. So in conclusion, ash-Shawkani’s erasure of the diversity of legal positions adopted by earlier jurists
in their Fiqh works allows for more monochromatic
and much narrower views on the role of non-Muslims
in the military jihad to emerge in his work. This comparison with his predecessor’s allows us to observe that
ash-Shawkani’s discussion of the military jihad, based primarily on selected prophetic Hadith, allows him to reject or simply disregard the opinions of a number
of the earlier jurists and this is actually as a result of his exclusive focus on Hadith. And this disregard for the diversity of juridical views from
the earlier period, may be attributed to his
general anti-Madhhab stance. In contrast to ash-Shawkani’s very brief treatment of this topic, we
find that pre-modern scholars like Ibn Qudamah and al-Mawardi paid quite a bit of
attention to this topic even though it had become a moot one during their time as it had
during ash-Shawkani’s time. If you read only ash-Shawkani’s
account of this topic we would be tempted to think that this was not a topic
that earlier jurists had vigorously discussed
and actually held multiple often contradictory positions on it. Based on prophetic practice
or sunnah, relevant Hadiths as well as pragmatic considerations of maslaha or common will. From a diachronic point of view, ash-Shawkani’s perfunctory
treatment of this topic skews the historical
record on this question. From a legal and
theological point of view, ash-Shawkani tends to promote the view that there was a monolithic
and dogmatic position on the subject of non-Muslims, fighting alongside Muslims
based primarily on Hadith when in fact the reality was
quite different as we saw, thank you. – [Man] Actually I was going to ask you about Ibn Abidin’s Imperial context. He lived under the Ottomans and I was going to ask if he was in dialogue with the scholarship and with the understanding of law and application of law
in the central lands of the Ottoman Empire. As we know, the Sheik
ul-Islam the chief jurist was a significant person
in the legal process. I presume that if someone
from the central lands of the Ottoman Empire
wrote a book about tarjih the preference among the
many opinions of scholars he would probably mention the
significance of Sheik ul-Islam in this process. His opinion determines the
(speaks foreign language) So does Ibn Abidin takes
this into consideration or was he in dialogue with
only scholars from Syria or other Arab lands? My question for Professor Sohaib is about the Hanafi scholarship in India in the 16th century. Was there an indigenous tradition of defending Hanafi opinions
on the basis of Hadith or this way of making
scholarship, Hanafi scholarship with reference to the Hadith, was something transferred
from Hijaz to India? Thank you. – Yes so my question is
directed to Dr. Asma. I’m curious about like
the debate that occurred when the first Gulf War happened. And the Saudi religious scholars, for me they seem very anti-Madhhab. Did they rebuke Shawkani’s view about seeking aid from non-Muslims? How was maybe his opinion utilized by scholars to either argue
for or argue against including non-Muslims in (mumbles) – After (mumbles) we talk
about the Saudi system. – Well just as, in general in the region because for me some of the scholars seem very anti-Madhhab so how do they… – My question is actually
on the three presentations. What is the purpose of your presentations? I ask myself, you basically
addressed a commentator but you didn’t situate them historically. At the moment they were
giving interpretation. In other words, are
you actually presenting the point of view of these commentators as an interpretation of their view or are you looking at them as
representative of their time? Because they are a creation of their time. Now they did not create themselves, they are historical persons, right? So in what way does their opinion actually reflect their time if
they have historical meaning? Otherwise you’re saying,
you’re basically giving an a biography, basically in a vacuum. In other words, you’re not historicizing these individuals, to the
point that I can relate to them as meaningful historically. So as I said unless you really mean to give us a biography without context which means it’s just a vacuum. – Ash-Shawkani is actually quite popular among modernists really
because people like Abdou and then before him also Afghani. They actually wanted to get
beyond the madheheb system. They said it was time for Muslims to actually go back to
the sources themselves and ash-Shawkani may be seen as a precursor of this
trend that really took hold in the 19th century and then 20th century. But then others have also argued that this anti-Madhhab stance was also adopted by people we
tend to call fundamentalists, they are the Islamists where they also say that we reserve the right to
go directly to the texts and kind of impose our
understanding on the text. But in defense of the modernists, like Abdou they never actually said we’re gonna jettison
the whole intellectual and legal tradition but they said we should critically engage it. So ash-Shawkani is read in multiple ways that serve the purposes
of the intended audience or the intended group. But the historicization,
I don’t think that was, was that directed at me as well. Oh in general. Because I thought–
– No, no but basically I’m asking your methodology. What is your purpose in choosing these particular individuals
or historical figures? – Well because I’m placing ash-Shawkani in the context of a larger legal discourse and comparing with his predecessors. And so I try to give a
little bit of the background in which he is articulating
these opinions. Of course it’s hard to
do full justice to that in the span of 20 minutes, but I think your point is well taken. Of course we must
historicize these debates. They are cropping up at
a certain time in history and it’s in response to
the immediate environment and I totally agree with you there and I hope some of that did come across in my presentation at least
to the best that I could. – Yeah, there is Hadith scholarship before the 16th century in South Asia coming from Central Asia from Iran (speaks foreign language) it’s a different text circulating there but traditionally the
emphasis has been placed on 16th century and particularly
Abdul-Haq Dehlawi because he actually moved back to Delhi and began to teach Hadiths there unlike the other Sindhis who we discussed. And his line of students
continuous from his own children to the other students onwards
to (speaks foreign language) time as well so it is a
prominent presence in Delhi. Regarding historicization of these texts, that was really the intent of
what I tried to do over here which is to place ’em both in the context of social history and intellectual history to see how contestations between different schools of law sort of force people to redraw boundaries of the Madhhabs. And to see what happens when, a field of Hadith scholarship
encounters jurisprudence in legal scholarship and to see what kinds of interactions emerge then. – Just to draw a line under the comments both in response to Said Rifat’s question. In my own work I’m interested in, everything that’s been said and specifically though
drawing out what was meaningful to these people so as jurists, what meaning do they find in the systems of jurisprudence that they constructed? Of course that cannot be
understood in isolation of their social or material settings but at the same time we often
run the risk as historians of not paying attention
to what they were saying and what arguments they
were bringing forth when constructing such systems so, the point in today’s very brief 20 minutes as was mentioned presentation was to try to give some of their own jurisprudential reasoning in the same way that we might listen to
somebody lecturing today in the Law faculty of
Chicago, or here or there as to why jurisprudence and
the jurisprudential system that they’ve constructed
is important in short. As to the question of
Dr. Atchal, a few things. Number one, Ibn Abidin was a secretary, one of four secretaries
to the mufti of Damascus. In this context, he was acting differently than he was as a pure Fiqhi, as a jurisprudent or as a jurist author. And of course this distinction in roles is something that, Wyle
Hallaq and Norman Calder and others have discussed at length. And so his interest here in this treatise is Fiqh qua Fiqh and not how it interacts with the siasa or other one
might say para Fiqhi structures. So I don’t find any
evidence in this treatise or in this sections of his paschia where he treats the same question of the Sheik ul-Islam or
of the other institutions that you’re mentioning. He does address these things in a different context elsewhere but not from the perspective
of the Madhhab jurisprudence. And I think because he sees them, I think this requires more work as related but distinct realms so they’re in conversation but they’re not identifiable as one. – I said I have a sort of
a narrow question first and then one’s that little bit wider. What particular collections of Hadith were the most popular as you went along? And I am most interested
in Bukhari in particular. Where do you see him
and when does he become more of a marjaf or
most of these (mumbles) I’m trying to see when he begins to, again I’m trying to contextualize and why Bukhari appeared when he appeared or became so important and where. This would be interesting
to see his genealogy but since he is the most important today and perhaps the most infamous. The bigger question actually
comes from your presentation at the beginning but it follows here. You talked about 100 years in which this tradition was developing, great. What came before and what’s the impact of what came before on this tradition? I’m particularly
interested in the taxonomy that was used in Fiqh in particular something that I’ve been talking about and I think you people must
know something about it. And where did this methodology and the taxonomy they set up coming from? Can we really look for Roman origins? Is there a role for urf there? In your own research, what do you see, I’m very, very curious,
only it’s not my field but it’s something that I’ve
met with with gender studies and I would, if you can illuminate me I’d be very, very grateful, thank you. – Specifically regarding Mullah Ali Qhari, do you find a specific influence that he had among Indian scholars, and did that influence if it was there extend beyond strictly Hadith study or did some of his more
legal and theological works also find a readership in India? – Couple last questions so,
Talal in your presentation one of the things that
was most interesting was it almost seemed like Ibn
Abidin has a type of anxiety in terms of how people. I was saying in terms of the way that Ibn Abidin was writing his texts it almost seems as if there’s an anxiety that people don’t know how to engage in the process of legal reasoning. So I was wondering if
you can say something both in terms of how the judiciary was but also what was legal education within the Madhhab at the time that potentially may have
motivated Ibn Abidin’s treatise. And Then the question for Sohaib I have is you talked about how this
Sindhi Hanafi scholars that were coming to the Hijaz
were kind of opposed to, a new epistemological world of Hadith through this Shafiite scholars. To what extent do we see an impact of that on their legal reasoning? ’cause I know you were speaking about this debate about the
Hanafis praying behind people of other Madhhabs
but in that debate do we actually see a substantive change in terms of how they’re
engaging with Hadith? And then the last question
if I may is for Asma. What was Shawkani’s
argument beyond kind of his political context for
why you should be reasoning outside of the Madhhab because he clearly still
goes back to Madhhab text over and over again in his work but at the same time he’s saying when you actually make your opinion you should stand outside of the Madhhab so I was wondering, if
you could maybe make some brief comments on that. So again we’ll just go down the row and a couple of minutes to
answer all those questions. – Alkani references Ahmad
Ibn Hanbal in Muslim. I didn’t actually didn’t see, him referring to
al-Bukhari in this section. But then I have not actually consulted the whole Nayl al-Awtar, we’re
talking about a big book. It would take me maybe another
lifetime to plow through it. But I think jurists pick and choose just like anybody else
and they’re trying to find proof texts for their own positions though sometimes its self selecting because of that purpose. But here he’s more concerned I think about the quality of the isnah, the
chain of transmission that the traditional Hadith scholars concern where there isnah that is intact and therefore you can cite
that Hadith with reliability. And I think maybe that
collection is secondary to that although of course they
want to restrict it to the preferably the
(speaks foreign language) but Ahmad Ibn Hanbal’s collection is also very, very highly esteemed. He also mentions Thabarani’s work which is not as frequently consulted. So I think that might,
the criteria may shift and the preference for
the Hadith collections may shift depending on what
topic is being discussed. I think that the same
reasoning would apply to him, that he engages the Madhhab
often to criticize it. He actually gives complete short shrift to the views of his predecessors on this particular issue. He does not reference them at all. I wonder if it’s because,
it’s a fait accompli. The jurists have made up their minds that non-Muslims simply cannot take part in the military jihad. I see this in al-Mawardi
already in the 13th century. He’s arguing that jihad is now defined as a military activity that only free, sane adult males can engage in. Used to be that women
also took part in battle and he said women are also out. So he’s restricting,
al-Mawardi’s restricting the purview of the military jihad to only adult free-born Muslim men. So of course he’s influenced
by the Shafiite school. He constantly refers
to Shafiite positions. So I’m thinking that these decisions already articulated as early
as the 13th, 14th century are exerting considerable
influence on him. So in that section of his Nayl al-Awtar he only focuses on the Hadith that would bolster his position but when you look at
Sahnun’s treatment of it and you look at Asarahsy
and even Ibn Hanbal whom you might have thought, I’m sorry not Ibn Hanbal, Ibn Qudamah whom you thought might
have been more conservative on this position, he’s actually saying no, that there is considerable latitude in the Imam making a decision with regard to who can take part in a
military jihad and who cannot and oftentimes it’s maslaha
the main reason, not Hadith. I don’t see the Hadith-based discourse in the earlier positions
adopted by the madheheb but mainly is it going to redoubt
to the benefit of Muslims, if so, then yes, there
is a strong reason to be strong case to be made
for it, otherwise not. So you’re right, I think ash-Shawkani sort of goes in and out of
that empty Madhhab stance depending on the kind of
arguments he’s making. – Yeah so on the question of what Hadith texts are they reading. Well if you read their tharbats in their compilation of
the chains of Hijazes that they’ve received you
have Bukhari (mumbles) you have the Mishkat al-Masabih all of them are included
in Abdul-Haq Dehlawi’s (speaks foreign language)
and Sindhi’s narrations. So they are clearly getting
authorized in these texts but they’re commenting mainly
on the Mishkat al-Masabih as far as these particular
dissertations are concerned and but Mullah Ali Qhari and
Abdul-Haq Dehlawi also write books on the Usul al-Hadith and they have (speaks foreign language) in which he also accepts
the canonical positions of Bukhari and Muslim and the same goes for Abdul-Haq Dehlawi as well. His own primer on the Hadith sciences. As far as Mullah Ali
Qhari and his influence, in India, so Mullah Ali Qhari’s
work circulate everywhere. They’re almost as prolific maybe as (speaks foreign language) that the short treatises or big tomes, there’s all sorts of works from Bosnia to India to wherever. And his commentary on the
Mishkat is even studied today in South Asian madrassas as well so he’s had an enduring influence across a huge expanse
of geography and time. And as to the question of is
there a substantive change in the debate. So as far as this moment,
Rahimtullah Sindhi and Amiruddin Sindhi,
they don’t really seem to signify a real change in the methodology. But with Abdul-Haq Dehlawi
and Mullah Ali Qhari, you do find this attempt to
try to justify Hanafi positions not just simply on the basis
of their own self-contained Hanafi canon but on this Hadith literature which they have to sort
of fix and match up to, appease their audiences. Later in the 18th century though, there is a continuation of the Madhhab of the inter-prayer debate. And over there a Sindhi scholar, Hamad Akram Nasalpurri, he actually goes and critiques Mullah Ali al-Qhari and says that no, you
should not pray behind, if you’re Hanafi you should
pray behind a Shafiite because there’s no difference at all and just violating conjunctions
of the Hadith and so forth. So there is a shift later on. – As to your question the… Today’s presentation as I gave it was focused on specific tradition within the range of traditions of Fiqh, of moral theology and law that have developed over the centuries, over this century and a half. So the Madhhab law
tradition is one tradition. There were before the Madhhabs of course other ways of moral reasoning and of pronouncing on moral theology and as we heard since the
18th and 19th centuries there is other ways that have veered away from this particular tradition
and it’s jurisprudence. So in short, the question
that you are posing is so large as to not to
be able to really answer it directly in one answer, except to say that authors, jurists, jurisprudents like Ibn Abidin indeed were dealing with in conceptualizing urf, so
he has an entire treatise on that subject that Wyle
Hallaq has written on and at the same time we’re using this when serving for example as
the secretary to the mufti. So that much can be said as far as the to try to define the key
or historical moments, it’s a much larger broader question that simply the scope here unfortunately I don’t think can address. It’s not to skirt the issue,
it’s just to say that, the whole purpose of a
presentation like this is to identify key historical moments where new jurisprudential
mechanisms were created and to try to answer why
were they created now, why at this point? Why is he emphasizing this
restrictions on reading practices in this particular juncture
after a thousand years of literature have been written. So I hope that answers
in part your question. And if you like we can discuss more after. – (mumbles) I was just asking about actually (mumbles) except maybe I don’t have to do research (mumbles) basically there was a
shift that happened there. This is really where a
lot of things happen so that’s the question.
– Very good. As for the question on the anxieties and what does the judiciary
and the education at the time, again I’m going to limit my response just to the Arab provinces because it is the setting
in which he is writing and I’ll leave to others here who are better to speak about Istanbul
and the setting there. But in the context of the Arab provinces and of for example
Damascus, Jerusalem, Cairo and other cities in this area, the judiciary was since the
Ottoman conquest of these areas Hanafi dominant so the
shift from the qadi al-qudat being Shafiite to being largely a Hanafi but they retained in some
cities like Jerusalem and Cairo where you had
multiple judiciaries but now again with Hanafi being
the final arbiter so to say. Education-wise the
focus was on later texts so again they’re reading
as part of their education largely texts that have been written in the 16th to the 18th
or the 19th century, often written by scholars who
are in the Ottoman heartlands so to speak as well as
those who are in Hallab such as the author or from Hallab at least like the author of
(speaks foreign language) which of course becomes the main textbook even for the imperial madrassas and so this was also tack. This is I think best answered by looking at things like the thebat, the curricula vitae of
authors like Ibn Abidin which still requires further unpacking.

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