Muḥammad Al-Ḥabīb Al-Hīlah
While the chief concern of Muslim jurists (fuqahāʾ) has always been to establish principles for dealing with every event necessitating the administration of justice in society within the circumstances of the age, they perform at the same time a number of other functions. The most important of these are:
(a) the application and interpretation of the axioms of law.in order to provide independent rulings (ijtihādāt) and legal precepts (aḥkām) which may serve to guide later generations in legal matters arising in their times;
(b) the accurate and factual representation of day-to-day life in such a way as to provide later scholars of history and civilization with unimpeachable historical data, thereby enabling them to undertake their research in a manner at once diligent, scientific, and scrupulous. In this way, Islamic jurisprudence remains one of the disciplines most in tune with human development, and most responsive to the needs of natural social change; it offers later generations the best of the legislative practices formulated by their predecessors.
The records of formal legal opinions (fatāwā) are perhaps amongst those legal works most representative of the data of human social development inasmuch as they provide us with a factual image of society. They are in effect court archives, listing the most important nawāzil and the thorniest legal cases of their age.
If the juristic records show us precepts conceived by the jurist, or group of jurists, and characterized according to their particular experiences — experiences which are necessarily limited – the fatāwā collection present us with the realities of life for every class in society. They throw light on the true nature of transactions undertaken between people, whether as individuals or groups, and they provide us with a factual record of how society reacted to various problems that arose, both political and non- political. They reveal for us, furthermore, the consequences of development within society.
Each of the many thousands of fatāwā which have come down to us represents realistically, and without distortion, a factual incident as submitted by the individual. The muftī is then brought in to offer a Iegal ruling on basis of his individual interpretation (ijtihād), a ruling which was often subsequently subject to much analysis and comment from jurists and religious scholars. For this reason, contemporary researchers have come to regard the fatāwā collections as being among the most useful sources for the study both of judicial legislation and of history and civilization.
Muslim jurists in both the East and the West have collected and recorded fatāwā and have attached great importance to them. Jurists in the East, however, were wont to entitle their records kutub al-fatāwā, while those in the Maghrib and Andalusia were not content to leave the matter at that: they termed their records also kutub al-nawāzil, for they demonstrated the rulings for cases that had happened (nazalat); kutub ajwibah, because questions that had arisen were resolved through them; kutub asʾilah, because they were compiled as a result of questions raised; and kutub aḥkām because they demonstrated particular rulings relating to particular cases. For this reason, later generations in the Maghrib have taken to referring to the muftī as the nawāzilī, on account of his being a specialist in responding to nawāzil which occur.
My reason for devoting this paper to a discussion of Andalusian and Maghribī nawāzil from the middle of the fifth, to the end of the ninth century of the hijrah is that this was a momentous stage in history, rich with significant events.
In Andalusia the internicine problems of the Mulūk al- Ṭawāʾif were on the rise, while the Maghrib started to feel the consequences of the advance of the Banū Hilal. The Christian offensive against Andalusia was launched. Toledo fell, followed by Cordoba, Seville, and, finally, Granada. At the same time, the Norman campaigns against the eastern shores of the Maghrib were stepped up. Great Islamic dynasties such as the Almoravids, the Almohads, and the Marinids were established, only to disintegrate. Great migratory human waves shifted and interlocked: the migration of the people of Andalusia, for example, when they fled from the north of their land to the centre, then to the south, and, finally, to Morocco and Algeria; and internal migrations of the people of the Maghrib, occasioned by alternating swings of power between the various dynasties whose survival depended upon zealous tribal partisanship.
This period, therefore, was one in which there was considerable ebb and flow of the borders of the lands of Islam and Christendom, increased confrontation between the two sides, and a growth in the variety of transactions being negotiated, ranging from the military to the cultural. Accordingly, the muftī-jurists had to respond to the exigencies of life for Muslims existing in those volatile times. They formulated fatāwā and legal responses designed to assist in the sphere of formal transactions, particularly those undertaken between Muslims and non-Muslims. A portion of this material came to constitute a body of precedents and precepts which proved valuable to jurists through the ages, and remains especially so today.
Yet, despite the fact that we have come to regard the nawāzil collections of Andalusia and the Maghrib as a corpus of material of similar nature, the circumstances and conditions in which they were collected and classified were in fact sometimes quite dissimilar. This gave rise to a diversification of method, and a variation in the means and techniques adopted for the purposes of their compilation, based on the various causative factors. Having traced these developments and scrutinized them thoroughly, we can distinguish four principal categories for the methodologies whereby the nawāzil books were compiled. These I now set forth, accompanied by brief examples.
The first category of nawāzil records may be described as a body of material, compiled by a muftī-jurist, wherein he collects his own legal responses (ajwibah) alongside those of his contemporaries or predecessors from various lands. He then classifies them according to the categories of fiqh. The result is a large collection, containing numerous nawāzil, and demonstrating a wealth of responses, the wide-ranging scope of the juristsʾ ijtihād, and providing us with abundant information of both historical and cultural interest. Of the most famous collections of this type, we may single Out two works of distinction; one, by the Tunisian al-Burzulī, the other by al-Wānsharīsī of the Maghrib.
The Jāmiʿ masāʾil al-aḥkām li-mā nazala min al-qaḍāyā bi-al-muftīn wa- al-ḥukkām otherwise known as the Fatāwā, or the Nawāzil, or the Diwān of al-Burzulī, his full title being Abū al-Qāsim b. Aḥmad al-Balawī al- Qayrawānī, famous as al-Burzulī (d. 841/1438). This is a weighty text, drawn from numerous sources and extensive in its subject matter, and remains one of the most consulted references for writers on fiqh and fatāwā. It is organized according to the principles of fiqh books but contains extra chapters on invocation (al-adʾiyah), preaching (al-waʾẓ), and medical science, in addition to other subjects not directly related to fiqh. It is a text which is still to found in manuscript, copies of which exist in the libraries of Tunis, morocco, and Egypt, and elsewhere1.
There are three abridged versions of at-Burzulī’s Nawāzil. The first was written by his student Abū ʿAbd Allāh al-Būsaʿīdī al-Bijāʾī in 826/14232. The second is also by a student, Aḥmad b. ʿAbd al-Rahman al-Yazlaytanī (known as Halulu al-Qarawi, living in 895/1490)3. The third was written by the jurist Aḥmad b. Yaḥyā al-Wānsharīsī al-Tilmisānī4.
The second example of this category of nawāzil records is the work entitled Al-Miʿyar al-muʿrib, wa-al-jamiʿ al-mughrib ʿan fatāwī ahl Ifrīqiyah wa-al-Andalus wa-al-Maghrib5, written by Aḥmad b. Yaḥyā al- Wānsharīsī al-Tilmisānī (d. 914/1508), One of the many important features of this work is that it brings together a great deal of material drawn from the fatāwā records of Andalusia and the Maghrib, preserving thereof some of what has been lost. The compiler classified his material according to the system of fiqh, citing certain treatises which were written in response to questions on different matters. He completed the work in 901/1495.
The second category of nawāzil records is one in which the responses of jurists belonging to one region or city are brought together. Of those works comprising the fatāwā of the native scholars of one particular area, two outstanding examples may be mentioned.
The collection entitled Aḥkam Ibn Sahl, known as Al-Iʻlām bi-nawāzil al- aḥkām, written by ʻIsa b. Sahl al-Asadī al-Gharnāṭī (d. 486/1093). This is considered to be one of the oldest collections of Andalusian nawāzil in its sphere, the author having devoted it almost exclusively to the fatāwā of Andalusia and included only a few instances of fatāwā from Qayrawān. It is rich in historic and cultural information on the Andalusia of the fifth century of the hijrah, and portrays rare types of relationships between the Muslim, Christian, and Jewish cohabitants of the land. Entries are classified according to the categories of fiqh. This work was critically edited in a doctoral these is (1991) for Al-Imam University in Riyadh by the Saudi scholar Nūra al-Tuwayjrī, and several contemporary scholars such as ʾAbd al-Raḥmān al-Fāsī and Muḥammad ʿAbd al-Wahhāb Khallāf have profited from al-Gharnāṭī in conducting their research on Andalusia. Numerous copies of this work are to be found, the most significant of them being three old and transcripts. One is an Andalusian copy written in 501 AH6. The second is also of Andalusian origin (although it is preserved in Tunis) and was written in 691 AH7. The third is of Maghribī origin and is now in Saudi Arabia8; it is written in the hand of Shaykh Aḥmad al- Wānsharīsī, author of the Miʻyār, referred to above.
Al-Durar al-maknūnah fi nawāzil māzūnah written by the jurist Yaḥyā b. Musa al-Mazūnī al-Maghīlī (d. 883/1478). This is a compilation which, as explained in the introduction, brings together the nawāzil of the religious scholars of Tunis, Bijāyah, Algeria, and Tlemcen. The orientalist Jacques Berque has studied limited aspects of this work, based on only the second Section.9 I have been able to locate the complete text and profit from it10. This collection too is classified according to the categories of fiqh.
With regard to the nawāzil collections comprising the responses of jurists from only one city, two examples may be cited here:
Al-Ḥadīqah al-mustaqillah al-nadrah fi al-fatāwī al-ṣādirah ʿan al- Ḥaḍrah (i.e. Granada), by an anonymous author.11 The author says that in this work be collects together the nawāzil emanating from the ʿulamāʾ of Granada in all its eminence (Haḍrah Gharnāṭah). A reading of the text indicates that the work was compiled after 848 AH, the year in which Ibn Sirāj, the last muftī for whom the author uses the formula raḥimahu Allāh, died, and before 865 AH, the year of the death of the jurist Muḥammad al- Saraqusṭī, to whom. he refers often and to whom he wishes long life. The transcript is old and bears the writing of the muftī jurist, Aḥmad b. Zikrī al- Tilmisānī, who died in the year 900/1494. Issues are presented without order or classification and comprise the fatāwā of nine Andalusian jurists, as well as a very limited number of those pertaining to Maghribī jurists. Remarkably, the author of this work never once cites any of the fatāwā of Ibn Lubb12.
Majmūʾ fatāwā ʿulamāʾ Gharnāṭah written by Abū Qāsim Muḥammad b. Tarrakāz al-ʿAkkī al-Andalusī, entrusted with presiding over justice in Almeria in 854/1451.13 Nothing is known of his date of death. This work contains nawāzil from the jurists of Granada, including the aforementioned Ibn Lubb.
The third category of nawāzil records is one which collects the responses of only one jurist. These would have been collected, either by himself or by other, from rulings he had issued during his period in office as a muftī, or they would be responses to a group of questions put to him by a particular Source.
Examples of the collected nawāzil of an individual jurist include the fatāwā of Abū Walīd Muḥammad b. Aḥmad b. Rushd al-Jadd (d. 520/1126), compiled by his student, Muḥammad b. Abū Ḥasan b. al-Wazzān (d. 543/1148), who presented them without classification. There is also the coIlected fatāwā of the qāḍī ʿlyāḍ al-Yaḥṣubī al-Sabtī (d. 544/1149) entitled Madhāhib al-ḥukkām fī nawāzil al-aḥkām,14 a work completed by his son, ʿAbu ʿAbd Allāh Muḥammad b.ʿlyaḍ (d. 575/1179).
The nawāzil of the muftī of Andalusia, Abū Saʿīd Faraj b. Qāsim b. Lubb (d. 782/1381) were apparently collected on two separate occasions by two authors who remain anonymous. The first entitled his work Taqrīb al- amal al-baʿīd fi nawāzil al-ustādh Abū Saʿīd, the manuscripts of which reside in the Escorial,15 whilst the second entitled his work Nawāzil Ibn Lubb, and presented his material in an arrangement differing from that of his predecessor. A copy of this work of Tunisian origin is now in Madīnah.16
The second type of collection falling within this category is that which represents the responses of one jurist to specific questions. One of the most lucid examples of this type is the collection of Abū ʿAbd Allāh Mubammad al-Raṣṣāʿ al-Tunisī (d. 894/1489), who entitled his work Al-Ajwibah al- Tūnisiyyah ʿala al-asʾilah al-Gharnāṭiyyah.17 Al- Raṣṣāʿ was the most eminent shaykh of his day in Tunis: both its muftī and its ʿālim. He was sent twenty-five questions from Abū ʿAbd Allāh Muḥammad al-Mawwāq, the shaykh and muftī of Granada (d. 897/1492). These fatāwā pertain, for the most part, to controversial questions of fiqh, seven questions relating to statutes concerning the plague and two to those concerning mosques. The one unique transcript known of this work was read aloud to its author, al- Raṣṣāʿ, and bears his own handwriting. It is extremely important despite its poor condition and the difficulties it presents to the would-be reader.
The fourth category of nawāzil is that which is written specifically in response to one legal issue. Such nawāzil abounded on issues of religious observances, transactions, and legal policy. Of this last, I have singled out two important types: the first concerns Muslim policy towards free non- Muslims (ahl al-dhimmah) and towards non-Muslims in general; the second defines the position of certain jurists with regard to Muslims living under Christian jurisdiction in Andalusia.
The Shaykh Muḥammad b. ʿAbd al-Karīm al-Maghīlī al-Tilmisānī (d. 909/1503) wrote a seminal treatise entitled miṣbaḥ al-arwāḥ fi usūl al- falāḥ, which came to be known as Al-Risālah al-Manṣūriyyah18. It was written in response to a question seeking clarification from him as to what was the responsibility of Muslims in avoiding non-believers (kuffār), and what rules to apply to the ahl al-dhimmah, especially the Jews of the Tawwāt region in southern Algeria. Sources relate that a serious problem arose in that area, owing to the way in which the Jews were conducting tnemselves and the reactions of the ʿulamāʾ. Al-Maghīlī adopted a most rigorous and rigid stance on this matter which aroused considerable opposition among his peers. These included the qāḍī al-Aṣnūnī al-Tunisī, Ibn Zikrī, al- Raṣṣāʿ, Yaḥyā al-Ghumārī, and Ibn Sabʿ as well as others who saw fit to commit their own responses to the case in writing. AIso associated with al-Maghīlī are seven responses to seven questions put to him by ʿAbd Allāh Muḥammad b. Abū Bakr (known as ʿAskiyāʾ), a king of the Western Sudan19. These responses relate, for the most part, to questions of legal policy, missionary methods, and ways of spreading Islam amongst neighbouring pagan tribes. They lay down the principal lines along which a new Islamic state might be administered.
With regard to the second type of document in this category, it may be illustrated by a treatise by Aḥmad b. Yaḥyā al-Wānsharīsī al-Tilmisānī (d. 914/1508), author of al-Miʿyār, mentioned above. The treatise is entitled Asnā al-matājir fi bayān aḥkām man ghallaba ʿalā waṭāni-h al-naṣārā wa-lam yuhājir, wa-mā yatarattabu ʿalayh min al-ʿuqubāt wa-al-zawājir20. In it, the author displays a severity which moves him to prohibit that a Muslim should be the subject of a Christian, and to declare unlawful any coexistence with Christians or habitation near them. This ruling, issued directly after the fall of Granada, made life particularly difficult for the Moriscan people and had disastrous consequences for them; for it cut them off from the lands of Islam.
Such an extreme position as that adopted by al-Wānsharīsī brings to mind a fatwā by the most eminent scholar of Mālikī fiqh of his time, al- Imam al-Māzirī al-Mahdawī (d. 536/1141). It addressed the same subject in comparable historical circumstances, for it was issued after Sicily fell to the Normans in 484/1091. Al-Māzirīʾs clear vision and broad-mindedness made his response both practical and tolerant. As a result, he left intact the bond that- existed between those Muslims residing in Sicily and those in the Islamic lands of Africa. As a result, the influence of Arab-Islamic civilization endured long in the land of Sicily. This summary presentation has, perhaps, allowed us to show the importance of nawāzil and fatāwā collections, so that serious academic foundations may be induced to co-operate with specialist researchers in their study and cataloguing.
This article was published in the following book:
The Significance of Islamic Manuscripts: Proceedings of the inaugural conference of Al-Furqān Islamic Heritage Foundation, 30th November_ 1st December 1991_ English version, 1992, Al-Furqān Islamic Heritage Foundation, London, UK, pp. 71-79.
Please note that some of the images used in this online version of this article might not be part of the published version of this article within the respective book