TILL GOD INHERITS THE EARTH
THE MEDIEVAL AND EARLY MODERN IBERIAN WORLD EDITORS
Larry J. Simon (Western Michigan Uni...
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TILL GOD INHERITS THE EARTH
THE MEDIEVAL AND EARLY MODERN IBERIAN WORLD EDITORS
Larry J. Simon (Western Michigan University) Gerard Wiegers (Radboud University Nijmegen) Arie Schippers (University of Amsterdam) Donna M. Rogers (Dalhousie University) Isidro J. Rivera (University of Kansas) VOLUME 31
TILL GOD INHERITS THE EARTH Islamic Pious Endowments in al-Andalus (9-15th Centuries) BY
ALEJANDRO GARCÍA SANJUÁN
LEIDEN • BOSTON 2007
On the cover: Arabic inscription commemorating the restoration of a Sevilian mosque's minaret under the supervision of the ߧÈib al-aÈb§s Abå #Umar b. •ayyib (472 h/1079) Courtesy of Cabildo de la Iglesia del Divino Salvador de Sevilla and R. Valencia. This book was published with financial support of the University of Huelva.
This book is printed on acid-free paper.
Library of Congress Cataloging-in-Publication Data García Sanjuán, Alejandro. [Hasta que Dios herede la tierra English.] Till God inherits the earth : Islamic pious endowments in al-Andalus (9 - 15th centuries) / Alejandro García Sanjuán. p. cm. — (Medieval and early modern Iberian World ; v. 31) Includes bibliographical references and index. ISBN-13: 978-90-04-15358-5 ISBN-10: 90-04-15358-6 (hardback : alk. paper) 1. Charitable uses, trusts, and foundations (Islamic law)—Spain. 2. Waqf—Spain—History. 3. Spain—History— Sources. I. Title. II. Series. KKT526.G3713 2006 346.46’064—dc22 2006049273
ISSN 1569-1934 ISBN-13: 978-90-04-15358-5 ISBN-10: 90-04-15358-6 © Copyright 2007 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910 Danvers MA 01923, USA. Fees are subject to change. printed in the netherlands
Surely We shall inherit the earth and all that are upon it, and unto Us they shall be returned Qur"àn, XIX, 40 Trans. A.J. Arberry And Zachariah—when he called unto his Lord, ‘O my Lord, leave me not solitary; though Thou art the best of inheritors’ Qur"àn, XXI, 89 Trans. A.J. Arberry It should be known that history is a discipline that has a great number of approaches. Its useful aspects are very many. Its goal is distinguished Ibn Khaldùn, al-Muqaddima Trans. F. Rosenthal
CONTENTS
Preface and Acknowledgements ................................................ Glossary of Arabic Terms ........................................................
ix xi
Chapter 1 Chapter 2
1
Sources used .................................................... The use of Islamic jurisprudence as a documentary source ........................................ Chapter 3 Origins and early development of the institution .......................................................... Chapter 4 The Legal Framework: general elements of donations .......................................................... Chapter 5 The family or private a˙bàs ............................ Chapter 6 The aims of pious a˙bàs .................................. Chapter 7 The organisation of mosques and the role of pious endowments ...................................... Chapter 8 The officials responsible for managing the endowment: nàΩir, qà∂ì and ßà˙ib al-a˙bàs ...... Chapter 9 Legal Theory versus Practical Needs: causes and mechanisms to altering donations .......... Chapter 10 Pious endowments in the context of the Andalusian Social Formation .......................... Conclusion .................................................................................. Appendix I
24 55 82 142 184 243 293 337 392 436
Jurists and fuqahà": identification and alphabetical index ............................................ Inventory and breakdown of fatàwà included in the Mi'yàr .................................................... Tables of Data ................................................ Location of Ibn Rushd’s fatàwà ...................... Graphs .............................................................. Texts in Translation ........................................
457 467 477 479 484
Sources ........................................................................................ Bibliography ................................................................................ Index ..........................................................................................
523 527 539
Appendix II Appendix Appendix Appendix Appendix
III IV V VI
448
PREFACE AND ACKNOWLEDGEMENTS
The present work is the English version of my book Hasta que Dios herede la tierra. Los bienes habices en al-Andalus (siglos X–XV), published in 2002. I have a particular interest in making clear from the beginning that this work is not a mere translation of its Spanish predecessor. On this premise, three general remarks must be made. In the first place, I have made a special effort to include the most recent books and articles, published after 2002, in the field of Islamic pious endowments, and even others existing prior to that date which were neglected in the Spanish version for different reasons. On the other hand, even if it is true that the general structure and the body of the text are broadly the same, some relevant changes have been introduced in several parts of the book, with the aim of improving perspectives, presentation of subjects, formulation of ideas and even literary style. In the third place, the corpus of documentary sources has been slightly enlarged with new texts and translations, making it richer. For all these reasons, I consider this book a new version of the Spanish one and not a simple translation, even if my conclusions still remain the same. The aforementioned work was the result of my Ph.D. entitled Los bienes habices en al-Andalus, siglos X al XV. Estudio socio-económico de una institución islámica a través del análisis de las fuentes jurídicas. (The Pious Endowments in al-Andalus, 4th–9th/10th–15th centuries. A social and economic study of an Islamic institution through the analysis of legal sources). That dissertation was carried out at the Department of Medieval History of the University of Seville and co-directed by Dr. M. González Jiménez and Dr. R. Valencia. It was publicly defended on Monday December 21st 1998 at the Faculty of Geography and History of the University of Seville. I wish to thank all members of the panel for their useful and accurate observations which have helped me to improve several aspects of the contents of this work. I would also like to express my sincere gratitude to other colleagues who had the kindness to provide me with their invaluable assistance. I would like to single out Dr. P. Chalmeta who offered suggestions and ideas of great scientific value for the contents of the original research. I am also grateful for the bibliographical help given by
x
preface and acknowledgements
J. Mª Carabaza Bravo, M. Fierro and my friend Dr. 'Alì Tawfùq. The latter, an expert in translation technique, was also extremely helpful in the interpretation and translation of some Arabic texts. I also wish to thank the Department of Education and Science of the regional Government of Andalucía which, by awarding me a scholarship within the program for the Development of Teaching and Research Personnel, allowed me to devote four years to the completion of my Ph.D. at the University of Huelva. This institution funded several visits to national libraries so that I could consult their resources. Particular thanks are due to other persons whose assistance cannot be measured in scientific, academic or professional criteria, but in terms of affection and friendship although, in some cases, both facets are intertwined. In this respect, I owe a great deal to Fernando, who originally suggested this book to me and also supported it generously. I am also grateful to José Luis for his help in several hateful chores, like adapting the transcription system to the English language and compiling the index, and to Alexia Grosjean for making a final check of the translated text. It goes without saying that any errors or omissions this book may contain are, obviously, of my own making and not attributable to those who provided help and support.
GLOSSARY OF ARABIC TERMS
The purpose of this lexicon or glossary of terms is to make this book easier to consult considering the abundance of Arabic terms and concepts employed throughout it. Many of them are, moreover, legal technical terms for which available modern dictionaries (F. Corriente, J. Cortés, H. Wehr, R. Blachère, etc.) do not provide accurate translations. Throughout my research, furthermore, I have also occasionally used Arabic terms without providing their definitions and, as a result, non-Arabist readers may find it difficult to recall the meaning of this or that concept. That is why I have included this glossary where each term appears with the appropriate reference in the Encyclopédie de l’Islam whenever one is available. To further complement this glossary or, rather, to get a broader range of meanings for particular words included in it, the reader is encouraged to look up the Vocabulario de Historia Árabe e Islámica by F. Maíllo Salgado (Madrid, 1996). For a more specialised view readers should consult the lexica and glossaries included in some studies on Islamic law. In my view, the most thorough and detailed one still is, despite having been written in the first quarter of the last century, found in D. Santillana’s classical work, Istituzioni di diritto musulmano malichita, between pp. 657–798 of volume II. Others less thorough are also worth consulting, among them L. Seco de Lucena’s Documentos arábigo-granadinos (pp. 149–164 of the Arabic section), J. Schacht’s Introduction au droit musulman (pp. 243–250) or, more recently, that included in the collective work Islamic Legal Interpretation. Muftis and their Fatwas (London, 1996, pp. 403–414). 'Àda
custom, practice (see 'urf ) (E.I.2, I, 174–179, G.-H. Bousquet and J. Prins). Adhàn call to prayer made by the muezzin from the minaret (E.I.2, I, 193–194, T.W. Juynboll). Al-a˙kàm al-khamsa ‘the five qualifications’, legal value system which classifies all human actions into five concepts: obligatory (wàjib or far∂ ), advisable (musta˙abb or mandùb), indifferent (mubà˙), reprehensible (makrùh) and illicit (˙aràm).
xii 'Amal Anqà∂ 'Aqd 'Aqib, pl. a'qàb Ar∂ bay∂à' Aß˙àb 'Àßib Aßl Bà†il Bay' Bay'a
Bayt al-màl
Bayyina Bid'a Bìmàristàn Birr Bulùgh Dallàl Dàr Îarar Îay'a Dhàt Faddàn
Faqìh, pl. fuqahà"
glossary of arabic terms legal practice (E.I.2, I, 439–441, T. De Boer and L. Gardet). building materials of a ˙ubs or value accrued to it in the shape of crops cultivated or buildings erected on it. contract (E.I.2, I, 328–330, C. Chehata). descent, posterity. lit. ‘white earth’, land under cultivation. (see ßa˙àba). agnate, relative from male line of descent. property. Fundament, legal principle. invalid (E.I.2, II, 849–852). buying and selling or any kind of commutative contract (E.I.2, I, 1144–1146, J. Schacht). ceremony of allegiance and proclamation of medieval Muslim rulers by the ‘flock’ of believers or ra'iyya (E.I.2, I, 1146–1147, E. Tyan). lit. ‘the house of the money’, public treasury (E.I.2, I, 1176–1183, N. Coulson, C. Cahen, B. Lewis and R. Le Tourneau). corroborating testimony (E.I.2, I, 1185–1186, R. Brunschvig). religious innovation, heresy (E.I.2, I, 1234–1235, J. Robson). hospital (E.I.2, I, 1259–1262, D.M. Dunlop, G.S. Colin and B.N. Schsuvaroglu). piety (E.I.2, I, 1273, L. Gardet). puberty (E.I.2, I, 1024). town crier, auctioneer (E.I.2, II, 104–105, G.S. Colin). house. damage, harm. country estate, domain. substance, essence of something (E.I.2, II, 227, F. Ra˙man). ‘Yoke of oxen’. Unit of measure (area) equivalent, in Egypt, to 6,368m2; in a broader sense, field, plot of land (E.I.2, VII, 140, s.v. misà˙a, C.E. Bosworth). legal scholar, expert in fiqh (E.I.2, II, 774, D.B. McDonald).
glossary of arabic terms Faqìr, pl. fuqarà" Farà"i∂ Far∂ Far∂ 'ayn
Far∂ kifàya Fatà, pl. fityàn
Fatwà
Fay"
Finà" (pl. afniya) Fiqh Fì sabìl Allàh
Futyà Ghalla Gharar Óadìth Óàjj
xiii
ascetic or mystic, person who voluntarily leads a life of poverty (E.I.2, II, 775–776, K.A. Nizami). system of compulsory hereditary quotas (E.I.2, II, 802, T.W. Juynboll). compulsory act for a Muslim (E.I.2, II, 809, T.W. Juynboll). individual duty which all Muslims must carry out, e.g. the so-called ‘pillars of Islam’ (prayer, fasting, zakà and pilgrimage). collective duty carried out by some within a community so that the rest is exempt from it, e.g. jihàd. ‘young’, ‘brave’. In the Córdoban caliphate, officers serving the ruler, usually slaves in origin, and playing the higher roles in the administrative hierarchy (E.I.2, II, 856). legal ruling issued by a muftì, expert in fiqh or Islamic law (E.I.2, II, 886–887, E. Tyan and J.R. Walsh). properties seized by force whose ownership theoretically belongs to the umma (E.I. 2, II, 889, F. Lokkegaard). ‘courtyard’. In fiqh the open space surrounding a house. Islamic jurisprudence (E.I.2, II, 906–912, I. Goldziher and J. Schacht). ‘in God’s name’, expression used in a generic sense as a synonym of charitable or pious deed whereas, in its narrow sense, it refers to a donation made for the jihàd or effort undertaken to expand Islam (E.I.2, VIII, 699, C.E. Bosworth, s.v. sabìl). the issuing of a fatwà. harvest or revenue generated by land. fate, non-determination. account of the sayings or actions of the Prophet which make up the sunna (E.I. 2, III, 24 –30, J. Robson). pilgrimage to Mecca, one of the five pillars of Islam (E.I.2, III, 33–40, B. Lewis).
xiv Óajr Óammàm Óaqq Allàh Óawz Hiba Óißn, pl. ˙ußùn Óiyàza Óubs, pl. a˙bàs Óukm 'Ibàdàt I'dhàr
Ifranj
Iftà" Ijmà' Ijtihàd
Ikhtilàf 'Ilm al-farà"i∂ Imàm Imàma Ishfà'
glossary of arabic terms legal incapacity affecting minors, slaves, insolvent debtors, etc. (E.I.2, III, 52, J. Schacht). public baths (E.I.2, III, 142–149, J. Sourdel-Thomine and A. Louis). lit. ‘divine right’ which can be identified as ‘public law’ in contrast with ˙aqq àdamì or ‘private law’. boundary or city limits (E.I. 2 , III, 309 –310, G. Deverdun). donation of a free property (E.I.2, III, 361–362, Y. Linant de Bellefonds). rural fortress (E.I.2, III, 515–520, H. Terrase, A.D.H. Bivar and J.C. Bottoms). takeover of a donated asset. pious endowment (used in the western Islamic world), see waqf. a judge’s or law expert’s ruling (E.I.2, III, 568–570, A.-M. Goichon and H. Fleisch). religious duties or liturgical practices (E.I.2, III, 668–669, G.-H. Bousquet). final exhortation by a qà∂ì to parties involved in a legal case so that they can expose their arguments before he issues a ruling. Arabic term designating the Franks and, in general, Europeans (E.I.2, III, 1070–1073, B. Lewis and J.F.P. Hopkins). (see futyà). legal consensus among fuqahà" on a particular issue (E.I.2, III, 1048–1052, M. Bernard). personal effort on the part of the jurist to interpret a legal case (E.I.2, III, 1050–1053, D.B. MacDonald and J. Schacht). disagreements in jurists’ points of view (E.I.2, III, 1088–1089, J. Schacht). lit. ‘science of the parts’, inheritance law (see farà"i∂ ). person in charge of leading the prayer. See imàma. imamate, office of imam (E.I.2, III, 1192–1198, W. Madelung). special prayer held during the month of Ramadàn, also known as taràwì˙.
glossary of arabic terms
xv
claims on a property belonging to someone else arguing previous rights. Isti˙sàn technique of legal argumentation based on the consideration of equity (E.I.2, IV, 267–270, R. Paret). Isti"jàr contract drawn up to hire services. Istir'à" duplicate of title deed or secret document stating the reason why someone is forced to act in a particular way. Istißlà˙ method of legal argumentation based on the application of the criterion of maßla˙a or ‘public interest’ (E.I.2, IV, 267–270, R. Paret). 'Itq manumission of a slave. 'Iwà∂ compensation (E.I.2, IV, 298–299, Y. Linant de Bellefonds). Jà"i˙a natural calamity or disaster likely to result in a decrease in the amount of money paid as rent or the rescission of a contract. Jà"iz licit, permitted, one of the a˙kàm al-khamsa (E.I.2, II, 400, C. Chehata). Jamà'a community, sometimes used in legal rulings with the specific sense of rural community (E.I.2, II, 417–424, J. Berque). Jàmi' main mosque where the Friday prayer is celebrated at noon; according to Malikis, this can only be conducted in one of the local mosques. Kharàj territorial tax originally paid only by dhimmìs (E.I.2, III, 1062–1087, C. Cahen). Kha†ìb preacher in charge of uttering the khu†ba prior to the noon Friday prayer (E.I.2, IV, 1141–1142, J. Pedersen). Khaybar oasis located 150 kms. from Medina (E.I.2, IV, 1169–1174, L. Veccia Vaglieri). Khilàf see ikhtilàf. Khu†ba sermon delivered by the kha†ìb (E.I.2, IV, 76–77, A.J. Wensinck). Kirà" lease (E.I.2, V, 129, A.M. Delcambre). Madhhab legal school, four of which are Sunni (Màlikì, Óanbalì, Óanafì and Shàfi'ì). Madrasa centre specialised in the teaching of fiqh and, in general, of Islamic sciences (E.I.2, V, 1119–1144, several authors). Ma˙jùr minor or disabled person. See ˙ajr. Makhzan public treasury; by extension also administration, State (E.I.2, VI, 131–135, s.v. makhzan, E. Michaux-Bellaire and M. Buret). Isti˙qàq
xvi
glossary of arabic terms
abominable, reprehensible, one of the a˙kàm alkhamsa. Màl, pl. amwàl money, assets (E.I.2, VI, 205, M. Plessner). Manàr minaret, towers from where the muezzin calls out to prayer (E.I.2, VI, 345–355, R. Hillebrand, J. Burton-Page and G.S.P. Freeman-Grenville). Mandùb advisable action, one of the a˙kàm al-khamsa (E.I.2, VI, 393). Manfa'a usufruct, benefit. Marja' ultimate aim of a pious or public nature which must accompany a family donation or mu'aqqab, in anticipation of the line of descent dying out Mas"ala, pl. masà"il question or query posed to the muftì (E.I.2, VI, 621–624, H. Daiber). Mashhùr lit. ‘known’ or ‘publicised’; in cases of legal disagreement it refers to the view held by the majority of jurists of the madhhab (E.I.2, VI, 706, G.H.A. Juynboll). Mashwara legal query (E.I.2, VI, 712–714, B. Lewis). See shura. Masjid mosque (E.I.2, VI, 362–428, J. Pedersen). Maßla˙a, pl. maßàli˙ general or public interest (E.I.2, VI, 727–729, M. Khadduri). Maßrif, pl. maßàrif aim or purpose of a ta˙bìs. See wajh and qaßd. Maw∂i' place, field. Mawlid birth, specifically that of the Prophet whose celebration by the fuqarà" was regarded as a bid'a by fuqahà" (E.I.2, VI, 886–889, H. Fuchs, F. de Jong and J. Knappert). Milk property, in both an abstract and concrete sense (E.I.2, VII, 61, A.M. Delcambre). Minbar (E.I.2, VII, 74–81, J. Pedersen, J. Golmohammadi and J. Burton-Page). Mìràth inheritance (E.I.2, VII, 108–115, J. Schacht and A. Layish). Miskìn, pl. masàkìn poor in dire need (E.I.2, VII, 146–147, F. Buhl and C.E. Bosworth). Mu"adhdhin muezzin in charge of calling out to prayer from the mosque’s minaret. See adhàn. Mu'aqqab lit. ‘differed’; family donation made in favour Makrùh
glossary of arabic terms
xvii
of the donor’s descendants ('aqib) in a continuous succession until the line of descent becomes extinct in which case it must be handed over to the marja' or last-instance beneficiary. Mu'àwa∂a barter or exchange (E.I.2, VII, 265, O. Spies). Muftì jurist, faqìh specialised in issuing fatàwà. Mughàrasa contract of co-plantation (E.I.2, VII, 348). Mu˙abbas 'alay-hi beneficiary of a ta˙bìs. Mu˙abbis donor of a ˙ubs. Mujtahid faqìh who practises ijtihàd. Munya ‘wish’, ‘desire’. In Andalusian Arabic, ‘orchard’. Murù"a or muruwwa manhood, virility or virtus; the set of ideal qualities found in an Arab man (E.I.2, VII, 636–638, B. Fares). Musàqà contract of irrigation (E.I.2, VII, 658, M.J.L. Young). Mushàwar faqìh member of the shùrà. Mustaftì person who asks for a fatwà to be issued. Musta˙abb (see mandùb). Mustakhlaß private patrimony of the caliph. Mu†laq lit. ‘free’, ‘loose’; applied to a ˙ubs it refers to that whose aim is not known, either because the donation deed is lost or it does not include stipulations to that effect. Muzàra'a contract of agricultural partnership (E.I.2, VII, 824, M.J.L. Young). Nàzila, pl. nawàzil legal case, occurrence presented to a jurist so that he can issue a fatwà (E.I.2, VII, 1054–1055, C. Pellat). NàΩir administrator of a ˙ubs designated by the donor (E.I.2, VII, 846, A.J. Wensinck). Nißàb minimum amount exempt from paying the zakà set at 5 awsuq. Qabàla leasehold contract affecting a number of assets (mill, salt mine) equivalent to the kirà" (E.I.2, IV, 337–339, C. Cahen). Qab∂ handover of the donated asset to a beneficiary (E.I.2, IV, 340, Y. Linant de Bellefonds). Qarya village (E.I.2, IV, 708, A.N. al-Wohaibi). Qaßd see wajh.
xviii
glossary of arabic terms
community, tribe (E.I.2, IV, 812, A.J. Wensinck). pious deed. urban suburb (E.I.2, VIII, 361–362, E. Lévi-Provençal). small mosque, oratory (E.I.2, VIII, 372). See zàwiya. flock, it designates all members of society who swear an oath of allegiance to a ruler via the bay'a (E.I.2, VIII, 417–420, C.E. Bosworth and S. Faroqhi). Raqaba substance of something or of an asset, as opposed to manfa'a which refers to the enjoyment or usufruct of an endowment. Ra"y a faqìh’s personal opinion. Riwàya version of a faqìh’s personal views (E.I.2, VIII, 563–565, S. Leder). Íadaqa Quranic concept referring to the notion of charity or alms-giving (E.I.2, VIII, 729–737, T.H. Weir and A. Zysow). Ía˙àba Muhammad’s companions whose testimony is a source for the Sunna (E.I.2, VIII, 856–857, M. Muranyi). Íà˙ib al-a˙bàs deputy of a qà∂ì responsible for managing the a˙bàs, documented in al-Andalus between the 3rd–5th/ 9th–11th centuries. Íà˙ib al-ßalà in charge of leading the prayer at Friday mosques in big towns, an office usually linked to that of the qà∂ì. Ía˙ì˙ valid, right (E.I.2, VIII, 865–866, G.H.A. Juynboll, R. Peters, M.G. Carter). Íalà prayer, one of Islam’s five pillars (E.I.2, IX, 956–965, G. Monnot). Íalàt al-jumu'a Friday midday prayer (E.I.2, II, 607–608, S.D. Goitein). Íalàt al-janà"iz funerary prayer. Samà' lit. ‘audition’; in legal texts it refers to oral testimonies, 'alà-l-samà', for instance in order to set up a ta˙bìs (E.I.2, IX, 1052–1055, J. During and R. Sellheim). Íarf transfer of revenues from a ˙ubs to another, for instance from a mosque with a surplus to another in need. Sawàd lit. ‘blackness’. Name of one of the territories conquered by the caliph 'Umar (E.I.2, IX, 90–91, H.H. Schaeder). In Ibn al-'A††àr’s treatise for notaries it has the meaning of ‘area covered with trees’. Qawm Qurba Raba∂ Ràbi†a Ra'iyya
glossary of arabic terms
xix
testimony (E.I.2, IX, 207, D. Gimaret). Islamic law (E.I.2, IX, 331–338, N. Calder and B.M. Hooker). Shar† in a general sense, clause. It refers to the stipulations made by a donor regarding the aim of his donation, that is its beneficiary or beneficiaries, the way in which the usufruct of its revenues must be allocated, etc. (E.I.2, IX, 370–372, W.B. Hallaq, I.R. Netton and M.G. Carter). Shuf 'a right to retract (E.I.2, IX, 513–514, M.Y. Izzi Dien). Shùrà Andalusian institution made up of fuqahà" in charge of advising a qà∂ì and, in the case of Córdoba, the emir or caliph (E.I.2, IX, 524–526, C.E. Bosworth, M. Marín and A. Ayalon). See mashwara. Shur†a office of the police (E.I.2, IX, 529–531, J.S. Nielsen and M. Marín). Sunna Prophetic tradition, consisting of all the ˙adìths or accounts of the sayings and deeds of Mu˙ammad (E.I.2, IX, 913–917, G.H.A. Juynboll and D.W. Brown). Sùr rampart (E.I.2, IX, 917–919, A. Northedge). Ta˙bìs donation of an asset via the legal procedure of a ˙ubs. Taqlìd adherence to or imitation of another jurist’s opinion (E.I.2, X, 148–149, N. Calder). Thaghr, pl. thughùr borderland. Thulth lit. ‘third’, it refers to the third of free disposal allowed to a testator in his will. Thumma lit. ‘then’, ‘afterwards’, a particle used in a ta˙bìs to indicate the separation between parents and children as beneficiaries of a donation. Umm walad lit. ‘mother of a child’, concubine who gives birth to her owner’s child. 'Umrà donation for life in which a beneficiary does not enjoy ownership but only the usufruct. 'Urf (see 'àda). 'Ushr tithe, amount paid as zakà. Ußùl al-fiqh sources of the fiqh: the Quràn, the Sunna, the ijmà' and the qiyàs. Shahàda Sharì'a
xx Wajh Wàjib Walad, pl. awlàd Waqf, pl. awqàf Waßiyya Zakà Zàwiya
glossary of arabic terms aim or purpose selected by a donor for his ta˙bìs, see maßrif and qaßd. compulsory action for all Muslims, one of the a˙kàm al-khamsa. son. ˙ubs (used in the Near East). will. one of Islam’s five pillars and the only tax which Muslims are legally obliged to pay. In al-Andalus, typical building of the Nasrid period used as a gathering place by a group of fuqarà". It is confused with the ràbi†a during the 15th century.
CHAPTER ONE
SOURCES USED
1. Introduction This book is based mainly, although not exclusively, on the systematic use of Islamic jurisprudence as a means of gaining knowledge about a particular aspect of Andalusian society, namely the institution of pious endowments. The first two chapters are devoted to analysing the written sources I have consulted, albeit each from a different perspective. In this one, I will describe all the sources used, both in Arabic (legal or otherwise) and in Spanish. In the following, more analytical chapter, I will focus on methodological issues arising from the problems posed by the use of Islamic jurisprudence as documentary sources for historical research.
2. The Mi'yàr al-Mu'rib by A˙mad al-Wansharìsì The main documentary source providing most of the information for the present study is the legal compilation by the Maghribi faqìh A˙mad al-Wansharìsì (d. 914h/1508) entitled al-Mi'yàr al-mu'rib wal-jàmi' al-mughrib 'an fatàwì 'ulamà" Ifrìqiya, wa-l-Andalus wa-l-Maghrib.1 At the beginning of the 20th century E. Amar published a partial translation of this work2 and, from then onwards, it has often been used by French and Arab authors—such as H.R. Idris and M. Talbi, among others– for studying the medieval Maghrib due to its great length and the extensive variety of topics it deals with (legal, economic, social, fiscal, cultural and religious, etc.). More recently, it continues to be of great interest to those researching the history of al-Andalus for, in spite of the fact that its author is Maghribi, the
1
Ed. M. Óajjì et al., Rabat-Beirut, 1981–1983, 13 vols. E. Amar, “La pierre de touche des fetwas de A˙med al-Wansharìsì”, Archives Marocaines, XII (1908) and XIII (1909). 2
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compilation includes a significant number of legal texts by Andalusian legal experts. We can single out, in this respect, two scholars among the many others who have benefited from the legal material in the Mi'yàr. The first is the American D.S. Powers, who used the work as a source for studying the Islamic inheritance system, aspects of the legal organisation, and also the topic of pious endowments.3 The second one is the French scholar V. Lagardère who, in his Histoire et société en Occident musulman au Moyen Âge. Analyse du Mi'yàr d’al-Wan“arìsì (Madrid, 1995), translates excerpts from and summarises 2,144 texts taken from al-Wansharìsì’s work.4 V. Lagardère’s study has without doubt, further to its other merits, facilitated access to this documentary source which is central to the study of some aspects of the history of al-Andalus. His work has nevertheless concentrated on translation, rather than on historical or legal analysis,5 a field in which most of the work remains to be done. Unquestionably, one of the aspects most comprehensively dealt with by the Mi'yàr, as far as the amount of information is concerned, is that of pious endowments. In spite of this, the topic has not drawn special attention from those who have approached the work. Some of the fatàwà on pious endowments were included in the aforementioned selection by E. Amar.6 Likewise, J. López Ortiz analysed and
3 D.S. Powers, “A court case from fourteenth-century North Africa”, Journal of the American Oriental Society, 110/2 (1990), pp. 229–254; “Fatwàs as sources for legal and social history: a dispute over endowment revenues from fourteenth-century Fez”, Al-Qan†ara, XI/2 (1990), pp. 295–341; “On judicial Review in Islamic Law”, Law and Society Review, 26/2 (1992), pp. 315–341; “The Màliki family endowment: legal norms and social practice”, International Journal of Middle Eastern Studies, 25/3 (1993), pp. 379–406; “The Islamic Inheritance System: A Socio-Historical Approach”, in C. Mallat and J. Connors (eds.), Islamic Family Law, London, 1993, pp. 11–32 and Arab Law Quarterly, VIII/1 (1993), pp. 13–29; “Legal Consultation (Futyà) in Medieval Spain and North Africa”, in C. Mallat (ed.), Islam and Public Law, London, 1993, pp. 85–106; “Kadijustiz or Qà∂ì-Justice? A Paternity Dispute from Fourteenth-Century Morocco”, Islamic Law and Society, I/3 (November 1994), pp. 332–366; “The Art of Legal Opinion: al-Wansharisi on Tawlìj”, in M.K. Masud, B. Messick and D.S. Powers (eds.), Islamic Legal Interpretation. Muftis and their Fatwas, London, 1996, pp. 98–115. 4 F. Vidal Castro, Al-Qan†ara, XVII/1 (1996), pp. 246–254, remarks that the 2,144 fatàwà translated by V. Lagardère, most of them only partially, represent about 5% of all those included in the Mi'yàr. 5 In this respect, it seems necessary to point out that his book’s subtitle (Analyse du Mi'yàr d’al-Wan“arìsì ) is misleading as he does not analyse anything but confines himself, as I have stated, to translating excerpts of the fatàwà. 6 E. Amar, “La pierre de touche”, XIII, pp. 313–395.
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translated numerous fatàwà by Nasrid jurists included in El Escorial manuscript no. 1096, a number of which are also included in the Mi'yàr; and some tackle cases concerning pious endowments.7 Similarly, V. Lagardère has done a bit of work on the material dealing with pious endowments both in Campagnes et paysans d’Al-Andalus (Paris, 1993)—in three of the chapters he summarises certain fatàwà (pp. 154–159, 278–282 and 349–350)—and, particularly, in Histoire et société where he has abridged 288 fatàwà on the topic (chapter IV: biens de mainmorte, pp. 211–291), although this is only a translation without applying critical apparatus and often in very reduced or shortened form. Several authors have tackled the subject of ˙ubs in the Western Islamic world basing their research on the fatàwà included in alWansharìsì’s work;8 there are also publications on separate topics which contain documents pertaining to pious endowments.9 These are, however, mostly studies on specific aspects which do not analyse either the material or the data supplied by the texts thoroughly. 2.1. The information on ˙ubs: location and quantification The bulk of legal questions on ˙ubs is found in volume VII of the Mi'yàr; entitled nawàzil al-a˙bàs, it is entirely devoted to this topic and covers 514 pages. A number of fatàwà, nonetheless, do not deal with the topic.10 Apart from volume VII, only volume III is entirely
7
J. López Ortiz, “Fatwas granadinas”, pp. 119–127. In chronological order, M. Lahmar, “Les ˙ubus dans la société et le “ar' d’après le Mi'yàr d’Wan“arìsì”, Les Cahiers de Tunisie, XLI–XLII (1990), pp. 121–177; D.S. Powers, “Fatwas as sources for legal and social history: a dispute over endowment revenues from fourteenth-century Fez”, Al-Qan†ara, XI/2 (1990), pp. 295–341; ibid. “The Maliki Family Endowment: Legal Norms and Social Practice”, International Journal of Middle Eastern Studies, 25/3 (1993), pp. 379–406; M. Shatzmiller, “Waqf khayrì in Fourteenth-Century Fez: Legal, Social and Economic Aspects”, Anaquel de Estudios Árabes, 2 (1991), pp. 193–215; A. Giladi, “Three Fatàwà on Lending Libraries in North Africa and Spain”, Arabica, LXIV (1997), pp. 140–143. 9 M.I. Calero Secall, “Comares en el Mi'yàr al-Mu'rib de al-Wan“arìsì”, Homenaje al Profesor José María Forneas Besteiro, Granada, 1994, II, pp. 925–940; M. Marín, “Documentos jurídicos y fortificaciones”, Actas I Congreso Internacional Fortificaciones en al-Andalus (Algeciras, noviembre-diciembre 1996), Algeciras, 1998, pp. 79–87. 10 Al-Wansharìsì, Mi'yàr, VII, pp. 94–99; VII, p. 99 (trans. E. Amar, “La pierre de touche”, XIII, pp. 364–365); VII, p. 103 (trans. E. Amar, “La pierre de touche”, XIII, p. 375); VII, p. 105; VII, pp. 113–114 (trans. V. Lagardère, Histoire et société, p. 277, no. 230); VII, pp. 114–115; VII, pp. 117–118 (trans. V. Lagardère, Histoire et société, p. 278, no. 234); VII, p. 128; VII, p. 137 (trans. V. Lagardère, Histoire et 8
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devoted to a single topic, in this case marriage; this fact is itself indicative of the socio-economic importance of this type of endowment in the medieval Western Islamic world. According to my own estimate, this volume comprises about 466 fatàwà representing 7.7% of the approximately 6,000 which, some experts claim, are included in the Mi'yàr.11 There are 227 fatàwà by Andalusian authors in volume VII concerning issues of pious endowments, that is almost half (48.7%) of the approximately 466 that comprise the volume. Scattered data on the topic can also be found, albeit very scarcely in just 20 texts, in several other volumes of the book.12 In total, therefore, I have used 247 legal queries in this study. All this material, divided into periods and arranged according to the legal experts from whom legal advice is sought, appears as an appendix at the end of this book (see Appendix II). I will sum up now the more important conclusions reached after evaluating these texts. If we examine the information chronologically, we can observe an obvious trend: the earlier the period, the fewer the number of texts and vice versa (see Appendix V, Figure 1). In this respect, the strong predominance of texts from the Nasrid period (14th–15th centuries) is revealing: the 53 fatàwà from the 14th century and the 73 from the 15th century, plus another eight that, I believe, can be traced back to this period, amount to 134, thus representing over half of
société, p. 288, no. 271); VII, p. 141; VII, p. 146; VII, pp. 154–155 (trans. V. Lagardère, Histoire et société, p. 289, no. 276); VII, p. 156 (trans. V. Lagardère, Histoire et société, p. 285, no. 258); VII, pp. 160–161; VII, p. 163; VII, p. 165 (2 fatàwà); VII, p. 204; VII, pp. 204–205; VII, p. 452; VII, pp. 457–458; VII, p. 469; VII, p. 473; VII, p. 482 (trans. V. Lagardère, Histoire et société, p. 255, no. 150). 11 Amount suggested by D.S. Powers, “Fatwas as sources”, p. 297 and “The Art of Judicial Opinion: on Tawlij in Fifteenth-Century Tunis”, Islamic Law and Society, V/3 (1998), p. 363; M.K. Masud et al., “Muftis, Fatwas and Islamic Legal Interpretation”, in M.K. Masud et al., Islamic Legal Interpretation. Muftis and their Fatwas, London, 1996, p. 10; F. Vidal Castro, “El muftí y la fetua en el derecho islámico. Notas para un estudio institucional”, Al-Andalus-Magreb, 6 (1998), p. 291, this scholar adds that “if the approach to be adopted were that of taking into account fragments or single sentences [their number] would double”, Al-Qan†ara, XVII/1 (1996), p. 252. 12 Distributed as follows: volume I (6 fatàwà): Ibn Lubb (pp. 149–150, repeated in VIII, 368–369), al-Saraqus†ì (158), al-Óaffàr (162 and 331/334), Ibn Siràj (162–163) and Ibn al-Óàjj (382); volume V (1): p. 37 (repeated in VII, 144); volume VIII (7): several authors (54–55), Ibn Ward (56–62), Ibn al-Makwì (142–143), Ibn al-Óàjj (171–172 and 289), Ibn Siràj (235) and Ibn Lubb (370); volume IX (5): Ibn Zarb (147–147), Ibn Lubb (482, 485 and 485–486) and Ibn al-Óàjj (589); volume X (1): Ibn al-Óàjj (445–446).
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the total 247 I have quantified (54.2%). This predominance is natural for this period’s legal experts are closer to the author of the compilation and, moreover, some were his contemporaries, which indicates that they must have been well-known among Maghribi legal circles in the 15th century. They are followed, in order of importance, by 12th-century jurists, who provide 50 fatàwà representing 20.2% of the total, then by those from the 11th century (23 fatàwà, 9.3%) and from the 10th century (21, 8.5%), with only 4 fatàwà dating from the 9th century (1.6%). Finally, 15 more texts (6%) should also be added which I believe stem from an Andalusian context although their authorship is disputable, either because their author is known but not identified in bio-bibliographical dictionaries or because I have not been able to establish the authorship. The first phase of the history of al-Andalus is the most poorly documented as only fatàwà by Ibn Óabìb (d. 238 h/852–853) and Ibn Sulaymàn (d. 302 h/914) are available from the period prior to the caliphate. The total absence, in volume VII of the Mi'yàr, of Andalusian texts and authors from the 13th century is revealing, a fact that could be explained by the advance of Christian conquests in the aftermath of 609 h/1212 and the subsequent political fragmentation of the Almohad empire, or by the hostility shown to Màlikì jurists by some Almohad caliphs, namely al-Manßùr (580–595 h/1184–1199). With regard to the number of jurists involved, there are 34, to whom three others I have not been able to identify must be added: Abù Ibràhìm al-Andalusì, Abù l-Óasan al-'Àmirì and Ibn al-'A††àr, whom I regard as Andalusian, however, for several reasons. The best represented periods are the 11th century (9 jurists, 26.4%),13 followed by those from the 14th century14 and 15th century,15 each with six legal experts (12, 35.2%). Also, there are five fuqahà" from both the 10th century16 and the 12th century17 and two (0.8%) from the
13 This period’s authors are: Abù 'Abd Allàh b. 'Attàb, Ibn Sahl, Abù 'Abd Allàh b. ManΩùr, Abù 'Abd Allàh b. Óamdìn, Mu˙ammad b. Isma'ìl, Abù l-Qàsim b. 'Attàb and Ibn al-Qa††àn. 14 Ibn Lubb, al-Óaffàr, al-Shà†ibì, Ibn 'Allàq, Ibn Juzayy and Abù l-Óasan b. Ma˙sùd. 15 Al-Mawwàq, al-Saraqus†ì, Ibn Siràj, Ibn ManΩùr, Ibn Fatù˙ and al-Minthùrì. 16 Ibn Zarb, Ibn al-Makwì, Ibn Lubàba, al-Lu"lu"ì and Ibn Abì Zamanìn. 17 Ibn 'Attàb, Ibn al-Makwì, Ibn Sahl, Ibn ManΩùr, Ibn al-Fakhkhàr and Ibn Abì Zamanìn.
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9th century ( Ibn Sulaymàn and Ibn Óabìb). In fairness to A. Mª Carballeira, she points out that 30.3% of the legal documents she uses is from the 10th century, 26.4% from the 11th century and 42.2 from the 12th.18 Table 1. Number of fatàwà by author Jurist Ibn Lubb Al-Mawwàq Al-Saraqus†ì Ibn Rushd Ibn al-Óàjj Al-Óaffàr Ibn Siràj Ibn Zarb
Period
Number of fatàwà
Rate
Nasrid Nasrid Nasrid Almoravid Almoravid Nasrid Nasrid Caliphate
31 24 24 22 18 13 13 12
12.5 9.7 9.7 8.9 7.2 5.2 5.2 4.8
Individually, the author most frequently quoted is Ibn Lubb (d. 782 h/1381), with 31 fatàwà (12.5% of the total amount), followed by the Nasrid al-Mawwàq and al-Saraqus†ì, with 24 each (9.7%), and Ibn Rushd with 22 (8.9%). These four authors are the only ones who have more than 20 fatàwà and together they add up to 101, representing 40.8% of the total number of 247. There are also another four who are quoted more than ten times: Ibn al-Óàjj (18, 7.2%), al-Óaffàr and Ibn Siràj with 13 (5.2%), Ibn Zarb with 12 (4.8%). The only eight authors with more than ten fatàwà each constitute a quarter of the total 31 but together they are responsible for 157 fatàwà, that is 63.5% of the total amount. The remaining 23 identified authors have seven or fewer fatàwà and they provide a total of 60 texts (24.2%). Another 30 fatàwà have not had their authors identified or are issued collectively (12.1%). Thus, as a whole, there is a Nasrid predominance in all aspects: more than half of the fatàwà (134, 54.2%), a third of jurists (12, 35.2%) and several of the fuqahà" most often mentioned (Ibn Lubb, al-Mawwàq and al-Saraqus†ì) belong to this period. All the jurists whose information I have consulted in the present study appear listed at the end of this book (see Appendix I), where biographical references are supplied for each of them. 18 A. Mª Carballeira, Legados píos y Fundaciones Familiares en al-Andalus (siglos IV/X–VI/XII), Madrid, 2002, p. 348.
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Apart from the estimates carried out by F. Vidal Castro, no other sufficiently precise percentage calculations regarding the contents of al-Wansharìsì’s19 legal compilation exist, a book which, regardless of its great relevance for the history of the medieval Western Islamic world, is still hardly known as far as details of chronological periods, location of texts and authors quoted in it are concerned. I believe that these types of analyses are necessary in order to more accurately understand the content of this vast legal work, thus enabling us to more precisely evaluate its worth as a source for the history of al-Andalus. 2.2. General issues With regard to the content of the information it is necessary to make a general distinction between family and pious donations since, as they are actually two different institutions, they refer to radically different legal, social and economic aspects. This is why I have chosen to treat them as two separate realities serving diverse purposes (see Chapters VI and VII). From a quantitative point of view, legal questions on pious a˙bàs are more numerous than those dealing with family donations. Thus, as opposed to the 60 concerning family matters (26.4% of the total), there are 137 (60.3%) dealing with pious a˙bàs.20 Within the latter, the more numerous are, by far, legal queries on properties belonging to mosques (80, 39.2%), whereas those tackling aspects related to other aims are comparatively very rare (see Appendix V, Figure 2). 19 M. Lahmar, “Le ˙ubus dans la société et le “ar' d’après le Mi'yàr d’Wansharìsì”, Les Cahiers de Tunisie, XLI–XLII (1990), pp. 121–177, pp. 134–135, makes some remarks based on unconfirmed percentages, stating that the whole distribution of the jurists who appear in the Mi'yàr is as follows: 35% Andalusian, 16% Western Maghrib, 16% Central Maghrib, 12.5% Ifrìqiya and 4.5% Middle East. He points out as well that 16% of the jurists mentioned have not been identified. These figures, however, are not corroborated by any inventory nor by references to estimates carried out by other authors. 20 In the same way but relating to the whole legal material of al-Wansharìsì’s work, M. Shatzmiller, “Islamic Institutions and Property Rights: the Case of the ‘Public Good’ Waqf ”, Journal of the Social and Economic History of the Orient, 44/1 (2001), 50, states that ‘75% of the 400 different fatàwà deal with endowments for the public good, the rest with family waqf ’. A different view can be found in A. Mª Carballeira, Legados píos, p. 353, ‘es el ˙ubs ahlì al que se alude con más frecuencia en la literatura jurídica (un 48’8% frente al 37’9% del ˙ubs khayrì)’ [‘juridical literature refers to the ˙ubs ahlì more frequently (48.8% as opposed to 37.9% dealing with the ˙ubs khayrì’].
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As for the content of legal questions, in the case of family donations the most frequently raised issue is that of determining who is entitled to be a beneficiary according to the stipulations laid out by the donor concerning the way in which the asset is to be distributed; the terminology regarding the type of family descent employed is here very important. Likewise, a significant number of questions focuses on problems arising from the beneficiary’s taking possession (˙iyàza) of the asset, especially in the case of parents’ donations in favour of underage children. In pious donations, the range of issues raised in legal queries is broader due to the fact that this type of donation presents more complexity in its management and right of usufruct. I have adopted a theme-based approach to study them reflecting the purpose for which donations are made and distinguishing between those set up for the benefit of mosques—by far the best documented—and the rest, namely: charitable (the poor and sick), educational and military. I have also devoted other chapters to questions of management and the clash between legal criteria and economic needs stemming from the exploitation of assets. Apart from these two main categories of fatàwà, there are others dealing with more specific issues such as donations established by non-Muslims for the benefit of mosques. More technical questions concerning legal problems pertaining to the rules governing donations are also dealt with, such as procedures for taking possession of them, women’s testimony during the latter, the legal meaning of the terminology involving descent and its effects on the way assets are transferred, etc.
3. Andalusian compilations of jurisprudence Given the absence in al-Andalus of treatises on the management and jurisprudence of pious endowments similar to A˙kàm al-waqf by Hilàl b. Ya˙yà, known as Ya˙yà al-Ra"y from Baßra (d. 247/859), and A˙kàm al-awqàf by Abù Bakr A˙mad b. 'Amr al-Shaybànì (d. 261 h/875), known as al-Khaßßàf, main qà∂ì of Baghdad,21 it is necessary to resort to general compilations of jurisprudence by Andalusian
21
Al-Khaßßàf, Kitàb al-awqàf, Cairo, 1322 h.
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legal experts. I detail below those I have used for this work highlighting in each case its particular relevance for the study of pious endowments.22 The earliest one is that written by Mu˙ammad b. Óàrith alKhushanì (d. 361 h/971), entitled Ußùl al-futyà fi-l-fiqh 'alà madhhab al-imàm Màlik, which includes a brief appendage devoted to cases of pious endowments.23 In spite of its early date, the paucity of information greatly diminishes its relevance. It is followed chronologically by the qà∂ì Abù l-Mu†arrif 'Abd al-Ra˙màn b. Qàsim al-Sha'bì alMàlaqì (402–497 h/1011–1103) compilation, edited with the title of al-A˙kàm by al-Íàdiq al-Óalwì (Beirut, 1992). Although it does not include a section specifically devoted to a˙bàs, it comprises 35 questions on the topic, which represent 2.8% of the total 1,182. Its importance lies in the fact that it is one of the earliest compilations in al-Andalus where its author incorporates fatàwà by renowned jurists from the 4th–5th/10th–11th centuries such as Ibn al-Makwì, Ibn Lubàba, Ibn Abì Zamanìn, Ibn Zarb, Ibn al-Fakhkhàr as well as fragments from Ibn al-Hindì’s unpublished notarial treatise. In terms of the amount of information it supplies, this book has less relevance. Further, although the editor unfortunately does not state it, more than half of the material (23 questions) concerning pious endowments can also be found in al-Wansharìsì’s Mi'yàr.24
22 The most recent work dealing with the legal sources from the Islamic West is that of P. Guichard, ‘La production juridique et les sources jurisprudentielles dans l’Occident musulman’ in C. Carozzi and N. Taviani-Carozzi (eds.), Le temps de l’Histoire. Le Médiéviste devant ses sources, questions et méthodes, Publications de l’Université de Provence, 2004, pp. 51–63. 23 Ed. by M. al-Majdùb Abù l-Ajfàn, 'Umar Ba††ìkh, Tunis, 1985. See the review of this edition by M. Marín in Al-Qan†ara, VII (1986), pp. 487–489. The cases concerning pious endowments can be found in pp. 249–252, no. 427 to 432. 24 The references to cases of pious endowments in al-Sha'bì’s compilation followed by their equivalent in the Mi'yàr, when appropriate, are the following: no. 27 (pp. 80–81), al-Wansharìsì, Mi'yàr, VII, p. 431; no 51 and 52 (89–91), VII, pp. 427–428; no 54 and 55 (91–94), VII, pp. 428–431; no 56 (94–96); no 105 (117); no 106 (117–118); no 125 (125), VII, pp. 435–436; no 148 (135), VII, p. 218 and VII, pp. 431–432; no 154 (137–138); no 169 (141–142), VII, p. 426; no 171 (142–143), VII, p. 423; no 172 (143); no 182 (146), VII, p. 432; no 184 (147), VII, p. 432; no 188 (148), VII, p. 432; no 192 (149–151); no 194 (151), VII, p. 66; no 195 (151–152), VII, p. 435; no 196 (152–154); no 197 and 198 (154), VII, pp. 65–66; no 199 (154–157), VII, pp. 433–435; no 208 (164), VII, p. 436; no 249 (179), VII, p. 436 and VIII, p. 175; no 318 (203); no 319 (203); no 324 (205), VII, p. 218; no 339 (212); no 467 (259–260); no 1082 (490), VII, p. 64, VII, p. 218 and VII, p. 424–425; no 1097 (495), VII, p. 65; no 1111 (499); no 1119 (502) and no 1132 (508), VII, p. 64–65 and IX, p. 399.
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Before Ibn Rushd, the most important legal compilation is that of 'Ìsà b. Sahl (d. 486 h/1093), written in 472–473 h/1079–1080 and based on two main sources from the 10th century: the first is the Ibn Ziyàd’s A˙kàm, which is supposed to be the first written codification of Islamic Andalusian jurisprudence, by al-Óabìb A˙mad b. Mu˙ammad b. Ziyàd (d. 312 h/924), who, when he was appointed as qà∂ì in Córdoba in 291 h/903–904, was the first to order the fatàwà to be written and compiled;25 the second is the Masà"il of Abù Bakr Mu˙ammad b. Yabqà b. Zarb (317–381 h/929–991), who was also qà∂ì in Córdoba, at the time of Ibn Abì 'Àmir, probably since 367 h/977. A complete edition of Ibn Sahl’s compilation, which includes a long chapter on pious endowments, has been available since 1997,26 and there are also previous partial publications, undertaken by M. 'A.-W. Khallàf.27 Some of those sections contain cases dealing with the issue of ˙ubs, most of them included in the Mi'yàr.28 The great appeal of this invaluable source has been shown recently by C. Mazzoli-Guintard in her study on urban solidarities in Córdoba during the 10th–11th centuries which provides excellent proof of the importance of Islamic jurisprudence for the history of urbanism in al-Andalus.29 Another very important legal source is Kitàb al-fatàwà by the faqìh Abù-l-Walìd b. Rushd from Córdoba (d. 520/1126), grandfather of the philosopher Averroes and one of the most famous jurists in the
25 Al-Khushanì, Qu∂àt Qur†uba, p. 149 (trans. J. Ribera, p. 237): fa-kàna awwal qà∂in ∂amma ahl al-fiqh al-mushìrìn 'alay-hi fì aq∂iyati-hi ilà ∂ab† futyà-hum wa-zimàm ra"yihim bi-kha†† aydì-him wa-lam yakil dhàlik ilà kha†† kàtibi-hi wa-là ilà kha†† nafsi-hi thumma takallafa ba'da dhàlik ta"lìf tilka al-aq∂iya wa-jam' tilka al-a˙kàm fa-ja'ala min-hà ajzà". 26 Ibn Sahl, Dìwàn al-a˙kàm al-kubrà. Ed. R. al-Nu'aymì, Riyad, 1997, 2 vols., II, pp. 1065–1125. 27 M. 'Abd al-Wahhàb Khallàf, Wathà"iq fì a˙kàm qa∂à" ahl al-dhimma fì-l-Andalus, Cairo, 1980; Wathà"iq fì a˙kàm al-qada" al-jinà"ì fì-l-Andalus, Cairo, 1980; Thalàtha wathà"iq fi mu˙àrabat al-ahwà" wa-l-bida' fi-l-Andalus, Cairo, 1981; Wathà"iq fì-l-†ibb alislàmì fì-l-Andalus, Cairo, 1982; Wathà"iq fì shu"ùn al-'umràn fì-l-Andalus: al-masàjid wal-dùr, Cairo, 1983; Wathà"iq fì shu"ùn al-˙isba, Cairo, 1985; Thami El-Azzemmouri, “Les nawàzil d’Ibn Sahl, section relative a l’i˙tisàb”, Hesperis-Tamuda, XIV (1973), pp. 7–107. 28 Ibn Sahl, Wathà"iq fì a˙kàm qa∂à" ahl al-dhimma fì-l-Andalus, pp. 65–69 and 68–70; al-Wansharìsì, Mi'yàr, VII, pp. 438–439, 59–60 and 70–71; Ibn Sahl, Wathà"iq fì shu"ùn al-˙isba, pp. 62–93; al-Wansharìsì, Mi'yàr, VII, pp. 446–451; Ibn Sahl, Wathà"iq fì shu"ùn al-'umràn, pp. 75–77; al-Wansharìsì, Mi'yàr, VII, pp. 481–482 and IX, pp. 30–33. 29 Vivre à Cordoue au Moyen Âge. Solidarités citadines en terre d’Islam aux Xe–Xie siècle, Rennes, 2003.
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history of al-Andalus,30 whose legal rulings have been published in two editions: that by al-Mukhtàr b. al-ˇàhir al-Talìlì (Beirut, 1987) and the more recent one by M. al-Óabìb al-Tajkànì (Casablanca, 1992).31 Although I have consulted both editions, al-Talìlì’s is more comprehensive and has, furthermore, the advantage of locating each fatwà in later compilations such as the Mi'yàr. To make cross-referencing more manageable for the reader I have compiled a table with the precise location of Ibn Rushd’s fatàwà in both editions and in the Mi'yàr (see Appendix III). As regards the topic of a˙bàs, this compilation offers more detailed information to the extent that, due to its author’s influence and prestige and the amount of data it provides, Ibn Rushd’s compilation of fatàwà is the second most important source I have consulted after al-Wansharìsì’s. According to al-Talìlì’s edition, the work contains 49 questions (masà"il ) related to cases involving a˙bàs, thus representing 7.3% of the total amount of 666. More than half (26) are included in the Mi'yàr. According to al-Tajkànì’s edition, the number of fatàwà involving pious endowments is 40, that is 11.1% of the total number of 358. Besides this quantitative value, the work has an added quality through its origin, since Ibn Rushd is the leading jurist of the Almoravid period throughout the Western Islamic world and his influence on Màlikism, both Andalusian and Maghribì, is indisputable. Finally, we must mention the work of one of Ibn Rushd’s contemporaries: Abù-l-Fa∂l 'Iyà∂ b. Mùsà al-Ya˙ßubì (476–544/1083– 1149), qà∂ì of Ceuta and Granada and author of a compilation entitled Madhàhib al-˙ukkàm fì nawàzil al-a˙kàm, edited by M. b. Sharìfa in 1990 and translated into Spanish by D. Serrano Ruano.32 As for its contents, the information on cases concerning pious endowments is not abundant and is confined to the chapters devoted to a˙bàs and prayer (pp. 193–207 and 304 of the aforementioned edition, 347–364, 490–491 and 494 of the translation), parts of which are also found in the Mi'yàr.
30 He is mentioned by al-Shaqundì, Risàla fì fa∂l al-Andalus, trans. by E. García Gómez, Madrid, 1934, p. 53 as one of the five prominent Andalusian jurists, together with Ibn Óabìb, al-Bàjì, Ibn al-'Arabì and Ibn Rushd “the grandson”. 31 See the comparative review of both editions by D. Serrano Ruano in AlQan†ara, XV/2 (1994), pp. 531–534. 32 D. Serrano Ruano, La actuación de los jueces en los procesos judiciales, Madrid, 1998.
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As I have shown, a given text or fatwà often appears in several of the aforementioned compilations. That is the case, for instance, with Ibn Rushd’s fatàwà, as he is an enormously influential author and therefore frequently quoted by other jurists to make their work more authoritative; thus, a great deal of his fatàwà are also found in al-Wansharìsì’s or even in qà∂ì 'Iyà∂’s compilations. As we shall see in the next chapter, variations occur in the different versions of a fatwà, usually the omission of some element of the text by alWansharìsì. As a result, I have resolved to provide the reader with references to all sources where a specific fatwà" appears.
4. Notarial treatises and other legal sources The second type of legal texts I have used in my research is that of treatises on public notary forms, manuals intended for notaries which contain models or formularies of the different legal acts requiring a written document: marriages, sales, donations, lettings, wills, etc.33 In an article published in 1972, P. Chalmeta urged scholars to shift their attention to this kind of texts, although no Andalusian treatises had been edited at the time.34 Currently, out of the known nine treatises, four have been published, as we shall see later, whereas an equal number still remains to be published.35 With regard to a˙bàs, the information they supply focuses on various aspects: the purpose of the donation (private or public), type of goods donated and beneficiaries, rules to carry the former into effect, the taking of possession [of donated assets], etc. Likewise, as W.B. Hallaq points out, treatises on notary forms offer information concerning the modalities and adjustments between legal theory and legal practice taking place in specific areas and periods.36
33 See F.J. Aguirre Sádaba, “Notas acerca de la proyección de los kutub al-wathà’iq en el estudio social y económico de al-Andalus”, Miscelánea de Estudios Árabes y Hebraicos, 49 (2000), 3–30. 34 P. Chalmeta, “De historia hispano-musulmana: reflexiones y perspectivas”, Revista de la Universidad de Madrid, XX (1972), pp. 156–160. 35 Those by Ibn Abì Zamanìn (10th century), Mushtamal fì ußùl al-wathà"iq; alBuntì (11th century), al-Wathà"iq wa-l-masà"il al-majmù'a; Ibn al-Hindì (11th century), Dìwàn; al-Matì†ì (12th century), Kitàb al-nihàya and Ibn Fat˙ùn (12th century), alWathà’iq. 36 W.B. Hallaq, “Model Shurù† Works and the Dialectic of Doctrine and Practice”, Islamic Law and Society, II/2 (1995), pp. 132–133.
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Because of its antiquity and the wealth of information it contains, the Kitàb al-wathà"iq wa-l-sijillàt by Ibn al-'A††àr (d. 399 h/1009) from Córdoba, must be singled out.37 P. Chalmeta remarked on its contents: “these wathà"iq are, in general terms, lengthier and less significant than later works. They usually provide several versions of the same texts, accompanied by comments and clear and instructive explanations, apart from legal references and comments on jurisprudence. Ibn al-'A††àr used genuine documents deprived of personal references. The task of erasing names, dates and amounts was not complete (unless it was the work of latter copyists), thus allowing us to identify several works. One can be traced back to 370h, another to 384–385 and a third one dated between 381 and 392”.38 The wealth of information about pious endowments is quite remarkable. There are fifteen formularies which deal with the subject either directly or indirectly: those specifically on donations or ta˙bìs (pages 171–176, 177–179, 180–185, 203–205 and 206–210), scattered references to alms giving (ßadaqa) in formularies (214–216 and 218–221), acts of istir'à", both regarding a˙bàs (232–233, 234 and 235) and manumission of slaves (281–282) and registry documents (tasjìl ) (236–237, 588–594, 595–596, 620–624 and 626–634). The treatise entitled al-Muqni' fì 'ilm al-shurù†39 by Ibn Mughìth from Toledo (d. 459 h/1067) is also very interesting, although, compared to the previous one, its texts contain less information and, as a whole, the volume of data it supplies is smaller, with only eight formularies including information on a˙bàs. It must be stressed, however, that the aforementioned cases in both treatises are of a different nature, thus making both particularly interesting. Ibn al-'A††àr’s includes a higher number of formularies concerning family donations, especially focusing on the casuistry inherent to the processes of delimiting and specifying beneficiaries. It is also interesting to discern who the ultimate beneficiaries (marja' ) are as designated by the donor. Ibn Mughìth’s treatise, despite providing a smaller amount of information, includes more formularies on donations for the public
37 Ed. by P. Chalmeta and F. Corriente, Formulario notarial hispano-árabe, Madrid, 1983; trans. by P. Chalmeta and M. Marugán, Formulario notarial y judicial andalusí, Madrid, 2000. 38 P. Chalmeta, ‘Acerca del 'amal en al-Andalus: algunos casos concretos’, Anuario de Historia del Derecho Español, 57 (1987), p. 350. 39 Ed. F.J. Aguirre Sádaba, al-Muqni' fì 'ilm al-shurù†, Madrid, 1994.
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benefit—actually four of them devoted respectively to a mosque (wathìqa ta˙bìs milk 'alà masjid, pages 324–325), donation of weapons and horses (wathìqa ta˙bìs al-khayl wa-l-silà, 325–326), a plot of land to build a graveyard (wathìqa ta˙bìs ar∂ li-dafn ajsàd mawtà al-muslimìn, 327) and for the benefit of the sick (wathìqa ta˙bìs 'alà mar∂à, 323–324). Likewise, information is also supplied by two other formularies, one recording the hiring of a prayer-leader (imàm) for a mosque (wathìqa isti"jàr khàdim li-masjid, 202–204) and another concerning the leasing out (qabàla) of a˙bàs (224–225). Chronologically, the next treatise is al-Maqßad al-ma˙mùd fì talkhìß al-'uqùd by al-Jazìrì (d. 585 h/1189)40 which, similar to Ibn Mughìth’s, provides specific formularies of ta˙bìs for the benefit of mosques ('aqd ˙ubs 'alà masjid, pages 286–287 of the cited edition), hospices for the poor ('aqd ˙ubs dàr 'alà-l-masàkìn, 287) and a plot of land for a cemetery ('aqd ˙ubs fì ar∂ li-maqbara). Like the others, it includes formularies for family donations ('aqd ˙ubs, 284–286) and for personal assets and chattel (horse, sword, a copy of the Qur"àn and books on law, 288 and translation 49–50). The most remarkable aspect is, perhaps, that it provides formularies for issues not tackled by the others such as the distribution of benefits resulting from a pious endowment ('aqd bi-ijtimà' gallat al-˙ubs, 293–295) and annulment ('aqd yub†il al-˙ubs, 298). As with Ibn Mughìth’s, it also includes a formulary for hiring a prayer-leader for the mosque ('aqd ijàrat khàdim li-l-masjid, 243). Finally, I have also used other legal sources which, because of the scant information they provide, can be considered of lesser importance. Nonetheless they sometimes contain very useful data. That is the case of Bidàyat al-mujtahid wa-nihàyat al-muqtaßid by Ibn Rushd ‘the grandson’, better known as Averroes (d. 595 h/1198),41 the wellknown Córdoban philosopher, surgeon and jurist. Although he does not devote a section specifically to pious endowments, he does make some interesting remarks on the topic, which are especially relevant given his authoritative opinion. I would also include within this group the following works: Abù Is˙àq Ibràhìm b. al-Óàjj al-Gharnà†ì’s treatise on notary forms (d. 579 h/1183);42 Risàla fì-l-fiqh, by Abù
40
Ed. A. Ferreras, al-Maqßad al-ma˙mùd fì taljìß al-'uqùd, Madrid, 1998. Ibn Rushd, Bidàyat al-mujtahid wa-nihàyat al-muqtaßid, ed. 'Alì Mu'awwa∂ and 'Àdil A˙mad 'Abd al-Mawjùd, Beirut, 1997, 2 vols.; trans. by Imran Ahsan Khan Nyazee, Ibn Rushd the Distinguished Jurist’s Primer, Doha (Qatar), 1994–1996, 2 vols. 42 Ed. Mu߆afà Naji, al-Wathà"iq al-mukhtaßara, Rabat, 1988. 41
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Mu˙ammad 'Abd Allàh b. Abì Zayd al-Qayrawànì (310–385 h/923–996);43 al-Qawànìn al-fiqhiyya by the Nasrid jurist Abù l-Qàsim b. Juzayy (d. 741 h/1340), a work which has been described as a treatise in comparative law and includes a brief chapter on a˙bàs44 and Tabßirat al-˙ukkàm by Ibn Far˙ùn (d. 799 h/1397), an author of Andalusian origins from Medina whose work is primarily based on contributions by Andalusian jurists such as Ibn Abì Zamanìn, Ibn Rushd, Ibn Hishàm, etc.
5. Secondary sources Although legal sources provide the bulk of the information available to us on the issue of pious endowments, excessively relying on a single type of text is not a sensible strategy. That is why I have tried to compile all the information available in writings of a different nature. First of all, from a chronological standpoint, non-legal sources are the most important for the study of pious endowments in alAndalus in the period prior to the caliphate, being the least wellknown period. The epithet ‘secondary’, moreover, is not at all to be interpreted in a qualitative sense, but merely in a quantitative one, for the information stemming from non-legal sources, albeit, scarce, is of enormous interest as it complements our perspective on the topic and allows us, sometimes, to overstep the too-static vision conveyed by jurisprudence. For that reason, its extreme scarcity is to be lamented, as a greater availability of extra-legal information would have greatly enriched our knowledge of the institution. The histories of judges include a certain amount of relevant data as the latter were in charge of the general supervision or the management of pious endowments. In al-Andalus there are two of these histories. The earliest one is the History of the Córdoban judges by Mu˙ammad b. Óàrith al-Khushanì (d. 361 h/971),45 one of the
43
Ed. and trans. L. Bercher, La Risâla ou Epître sur les éléments du dogme et de la loi de l’Islâm selon le rite mâlikite, Argel, 1980, 8th ed. 44 Ibn Juzayy, al-Qawànìn al-fiqhiyya, Libya-Tunisia, 1982, pp. 374–377; see M. Arcas Campoy, “Teoría y práctica del fiqh en la Granada nazarí”, in C. Castillo Castillo (ed.), Estudios nazaríes, Granada, 1997, p. 17. 45 Al-Khushanì, Qu∂àt Qur†uba wa-'ulamà" Ifriqiya, ed. 'I. al-'A††àr al-Óusaynì, Cairo, 1994, 2nd ed.; trans. by J. Ribera, Historia de los jueces de Córdoba, Madrid, 1914 (reissued Seville, 1985).
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non-legal sources that provides a great deal of information and whose main relevance is that of the antiquity of its references, from the emirate and the caliphate. The second is the History of the judges from al-Andalus, by the author from Málaga Abù l-Óasan al-Nubàhì (14th century), which contains a considerably smaller amount of information on pious endowments.46 Among the manuals of ˙isba, the least interesting is the Risàla fì àdàb al-˙isba wa-l-mu˙tasib by A˙mad b. 'Abd Allàh b. 'Abd al-Ra"ùf from Córdoba (10th century),47 which includes a brief section on the supervision of pious endowments (al-naΩar fì-l-a˙bàs) that hardly provides any relevant information. More important is, however, the Risàla by the author from Seville Ibn 'Abdùn, from the Almoravid period.48 Biographical dictionaries and compendia constitute a typical Arab literary genre which was widely practised in al-Andalus. They record the life and works of intellectuals, especially ‘men of religion’ ('ulamà" and fuqahà") who participated directly in the issuing of pious endowments, in different ways. In this respect, biographical dictionaries have proved useful as regards the figure of the qà∂ì’s deputy and his role in the management of those assets (ßà˙ib al-a˙bàs), and also the one in charge of the prayers (ßà˙ib al-ßalà) whom I refer to when tackling the subject of donations in favour of mosques. The works of Ibn al-Fara∂ì (351–403 h/962–1013),49 the qà∂ì 'Iyà∂ (476–544 h/1088–1149)50 and Ibn Bashkuwàl (494–578 h/1101–1183)51 are
46 Al-Nubàhì, Ta"rìkh qu∂àt al-Andalus, ed. E. Lévi-Provençal, Beirut 1948; ed. and trans. A. Cuellas Marqués, Al-Marqaba al-'ulyà de al-Nubàhì (La atalaya suprema sobre el cadiazgo y el muftiazgo), Granada, 2005. 47 Ed. E. Lévi-Provençal, Documents pour servir a l’histoire sociale et économique de l’Occident musulman au Moyen Âge, Cairo, 1955, pp. 69–116; trans. by R. Arie, ‘Traduction française annotée et commentée des traites de ˙isba d’Ibn 'Abd alRa"ùf et de 'Umar al-Gharsìfì’, Hesperis-Tamuda, I/1 (1960), pp. 5–38; I/2, pp. 199–214 and I/3, pp. 349–386. 48 Ibn 'Abdùn, Risàla fi-l-qa∂à" wa-l-mu˙tasib, ed. by E. Lévi-Provençal, ‘Un document sur la vie urbaine et les corps de metiers a Seville au debut du XIIe siècle: le traite d’Ibn 'Abdùn’, Journal Asiatique, CCXXIV (1934), pp. 177–299; trans. by E. García Gómez, Sevilla a comienzos del siglo XII. El tratado de Ibn 'Abdùn, Seville, 1992, 3rd ed. 49 Ibn al-Fara∂ì, Ta"rìkh 'ulamà" al-Andalus, ed. 'I. al-'A††àr al-Óusaynì, Cairo, 1988, 2nd ed. 50 'Iyà∂, Tartìb al-madàrik wa-taqrìb al-masàlik li-ma'rifat a'làm madhhab Màlik, several eds., Rabat, 1980–1983. 51 Ibn Bashkuwàl, Kitàb al-ßila, ed. 'I. al-'A††àr al-Óusaynì, Cairo, 1994, 2nd ed.
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the most insightful; others such as Takmilat al-ßila by Ibn al-Abbàr from Valencia (595–658 H/1199–1260)52 and al-I˙à†a fì akhbàr Gharnà†a, by the author from Granada Lisàn al-Dìn b. al-Kha†ìb (d. 776 h/1374),53 also contain some data. Although chronicles generally provide the least amount of information on the subject matter of this research, they always contain, however, insightful data due to the context in which they are produced and to their scarcity. Among those including references to pious endowments are Ibn al-Óayyàn’s (377–496 H/987–1076) alMuqtabis,54 al-Bayàn al-Mughrib by Ibn 'Idhàrì (14th century),55 the anonymous Dhikr bilàd al-Andalus (14th century)56 and al-Lam˙a albadriyya by Ibn al-Kha†ìb (14th century)57 which, on a few occasions and usually succinctly, provide some data concerning the performance of specific emirs, caliphs or judges on a˙bàs. The same applies to the literary anthologies penned by Ibn Bassàm (d. 543 h/1148) and Ibn Sa'ìd al-Maghribì (d. 685 h/1286) where sometimes we just find passages already quoted by earlier texts.58 Even though it does not include information about al-Andalus, I have also resorted on occasions to the ri˙la or travelogue by Ibn Jubayr (540–614 h/1145–1217)59 the author from Valencia who travelled throughout Egypt, the Arabian Peninsula, Iraq and al-Shàm at the end of the 12th century. It is of interest here because it reflects an Andalusian’s vision of the organisation of pious endowments in
52 Ed. F. Codera, Madrid, 1887, 2 vols. (BAH V–VI); ed. 'Abd al-Salàm alHarràs, Casablanca, n.d. (Dàr al-Ma'àrif ), 4 vols. 53 Ed. Mu˙ammad 'Abdallàh 'Inàn, Cairo, 1973–1977, 4 vols. 54 Ibn Óayyàn, al-Muqtabis (V), ed. P. Chalmeta, F. Corriente and M. Íub˙, Madrid, 1979; trans. M.J. Viguera and F. Corriente, Crónica del califa 'Abdarra˙màn III an-Nàßir entre los años 912 y 942, Saragossa, 1981; ibid., al-Muqtabis (VII), ed. 'A.-R. 'Alì al-Óajjì, Beirut, 1965; trans. by E. García Gómez, Anales palatinos del califa alHakam II, por 'Isà ibn Ahmad al-Ràzì (360–364H/971–975 J.C.), Madrid, 1967. 55 Ibn 'Idhàrì, al-Bayàn al-mughrib (II), ed. E. Lévi-Provençal and G.S. Colin, Histoire de l’Afrique du Nord et de l’Espagne Musulmane intitulée Kitàb al-Bayàn al-Mughrib, Leiden, 1951; al-Bayàn al-mughrib (III), ed. E. Lévi-Provençal, Histoire de l’Espagne musulmane au XIeme siècle, Paris, 1931; trans. by F. Maíllo Salgado, La caída del Califato de Córdoba y los Reyes de Taifas, Salamanca, 1993. 56 Ed. and trans. by L. Molina, Madrid, 1983, 2 vols. 57 Trans. by J.M. Casciaro, Historia de los reyes de la Alhambra, Granada, 1998. 58 Ibn Bassàm, al-Dhakhìra fì ma˙àsin ahl al-jazìra, ed. I. 'Abbàs, Beirut, 2000, 4 vols.; Ibn Sa'ìd al-Maghribì, al-Mughrib fì ˙ulà l-Maghrib, ed. Shawqì Îayf, Cairo, 1953, 2 vols. 59 Ed. Beirut, n.d., Dàr Íàdir; trans. by R.J.C. Broadhurst, The Travels of Ibn Jubayr, London, 1952.
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Egypt and al-Shàm at the time, with some insightful remarks and comments on the contemporaneous Andalusian reality which he must have known well as a legal scholar and a man involved in the ‘high politics’ of the period, having acted as secretary to Granada’s Almohad governor before his travel. Although, as we shall see in the next chapter, medieval Islamic societies have not generated a significant amount of archival documents, several hundred have been preserved in al-Andalus (343 according to C. Barceló and A. Labarta), most of which can be traced back to the 14th (75) and 15th centuries (245).60 The most important edition of these documents is that by L. Seco de Lucena; among them, there is a will dated 16 Jumàdà I of 856 h (4/6/1452) which includes a donation of a˙bàs for the benefit of the fortress of Archidona (˙ißn Arjidhùna) and the ràbi†a of Belicena, in the district of Vega (Granada).61 There are also other documents—still not published—which deal with the issue of pious endowments, among them those concerning the management of the properties owned by the main mosque of the town of Calatorao (Qal'at al-Turàb), in the province of Saragossa, dated in 801 h/1398 and another from Mu˙ammad IX the left-handed’s chancellery dated 15 Rabì' II 833 h (11/1/1429) which exempted the main mosque of Berja from paying taxes on its a˙bàs.62 Among the corpus of epigraphic evidence existing in al-Andalus, three texts contain references to the subject of pious endowments; two of them are from the 11th century and report on the reconstruction work being undertaken on two mosques.63 The third epigraphic remains are of a later date and commemorate the erection of a hospital (màristàn) in Granada at the behest of the Nasrid sultan Mu˙ammad V in 767 h/1365 and include the subsequent provision of awqàf.64
60 C. Barceló and A. Labarta, ‘Los documentos árabes del reino de Granada. Bibliografía y perspectivas’, Cuadernos de la Alhambra, 26 (1990), pp. 113–119. 61 L. Seco de Lucena, Documentos arábigo-granadinos, Madrid, 1961, pp. 12–15 (Arabic text) and 12–15 (translation). 62 J. Ribera y Tarragó and M. Asín Palacios, Manuscritos árabes y aljamiados de la biblioteca de la Junta, Madrid, 1912, pp. 238 and 261–262. 63 E. Lévi-Provençal, Inscriptions arabes d’Espagne, Leiden-Paris, 1931, pp. 38–39, no 31 and pp. 68–69, no 60. 64 E. Lafuente Alcántara, Inscripciones árabes de Granada, Madrid, 1859, pp. 172–175; E. Lévi-Provençal, Inscriptions arabes d’Espagne, pp. 164–166, no. 176.
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6. Granada’s habices books The use of ‘external’ sources to increase our knowledge of al-Andalus is the result, on the one hand, of the scarcity and laconism of Arabic sources as regards certain aspects of the workings and organisation of Andalusian society and, on the other hand, of the fact that some of those sources, written shortly after the conquest, constitute real ‘palimpsests of an obliterated society’.65 P. Guichard has probably been, through his numerous studies on the Western regions of alAndalus (Sharq al-Andalus), the scholar who has best shown the need to make use of such documentation. The presence of references to Islamic pious endowments in Christian sources becomes apparent from the moment important Andalusian towns fall into Christian hands. In this respect, it can be considered a parallel issue to the emergence of the Mudejar problem whose origins are usually traced back to the aftermath of the conquest of Toledo in 478 h/1085. Generally, however, the usefulness of Latin and Romance documents for the study of Islamic pious endowments is quite limited, with the exception of the so-called ‘books of ˙ubs’ written from the beginning of the 16th century onwards and whose relevance is, to say the least, similar to that of Arabic sources themselves. Prior to that period and to the conquest of Toledo, references are very rare due, to a great extent, to the incomplete and exiguous character of the documentation available on that long period. Even the documentation linked to the process of re-population undertaken in Western Andalusia during the 13th century, in particular the books of ‘repartimiento’ (re-distribution), is, as I have tried to highlight in another work, negligible as far as the study of pious endowments is concerned since it provides no information whatsoever on the subject.66 That is not the case, however, in other instances, as in the book of the ‘repartimiento de Murcia’, where references to endowed properties are quite numerous.67 65 The expression is used by A. Malpica Cuello, ‘De la Granada nazarí al reino de Granada’, in R. Soto i Company et al., De al-Andalus a la sociedad feudal: los repartimientos bajomedievales, Barcelona, 1990, pp. 119–153. 66 See A. García Sanjuán, ‘Los bienes habices y la repoblación de Andalucía en el siglo XIII: el caso de Sevilla’, Historia. Instituciones. Documentos, 26 (1999), pp. 211–231. 67 See J. Manzano Martínez, ‘Aproximación a la estructura de la propiedad musulmana de la tierra en la huerta de Murcia (siglo XIII)’, in Castrum V. Archéologie des espaces agraires mediterranéens au Moyen Âge, Madrid-Rome, 1999, pp. 219–239.
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More abundant and of better quality is the information supplied by the a˙bàs books, inventories written after the conquest of the kingdom of Granada whose purpose was to compile a comprehensive list of Nasrid pious endowments turned into war bounty. Significantly, the appearance in Spanish language of the Arabic loanword ‘habices’ (Spanish term for a˙bàs) takes place against this backdrop.68 Following the rules of the war of conquest already in place in the 11th century, some of the capitulations of surrender issued by the Catholic monarchs included clauses guaranteeing respect for the Muslims’ internal organisation and their normative and legal specificities, along with goods catalogued as pious endowments. No indication is afforded by the earlier ones, those established for the towns of Comares (4/5/1487), Purchena (7/12/1489) and Almuñécar (December 1489); Almería is the first case and its terms of surrender were drawn up in Écija on 11 February 1490, followed by Granada (25/11/1491).69 But this situation only lasted for a number of years since, after the revolt of 1499, the capitulations were suspended and all the Mudéjars from Granada were forced to convert. Taking into account that the existence of pious endowments can only be justified within an Islamic context, the de iure disappearance of Andalusian Muslims means that the presence of such assets would no longer make sense, the latter being divided up among different entities by the Crown. In order to achieve this, it was necessary to know in advance which properties were earmarked for distribution and their exact locations, which is why the aforementioned books of habices were written. A considerable number of them have been published and studied to date, thus highlighting the widespread existence of these assets throughout all the Nasrid kingdom.70 I have listed these works here.
68 See F. Maíllo Salgado, Los arabismos del castellano en la Baja Edad Media, Salamanca, 1998, 3rd ed., pp. 425–426. 69 Apud M.A. Ladero Quesada, Los mudéjares de Castilla en tiempo de Isabel I, Valladolid, 1969, pp. 106–110 (document no 14), 127–130 (no 27), 137–139 (no 31), 141–144 (no 34) and 172–182 (no 50). 70 This shows that B. Vincent’s remark is wrong, “Las rentas particulares del reino de Granada en el siglo XVI: fardas, habices, hagüela” in B. Vincent, Andalucía en la Edad Moderna. Economía y sociedad, Granada, 1985, p. 86: he states that it was likely that both in the East (Almería, Vera, Baza and Guadix) and in the West (Málaga, Ronda, Vélez-Málaga, Loja and Alhama de Granada) ‘they were not familiar with the system of a˙bàs’.
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a. M.C. Villanueva Rico and A. Soria Ortega catalogued fifteen books of habices71 and the first author published those corresponding to the years 1505 and 1527,72 covering the capital Granada, although her interest is focussed on the toponymic data they provide. b. M. Espinar Moreno is the scholar who has carried out the most extensive research on these documents: for his Ph.D. dissertation he analysed and published the book of habices from 1547–154873 and has done the same with the documents corresponding to the villages of Churriana de la Vega, Dílar, Gójar, Gabia la Grande, Cájar and Baza in later articles. He has also published Arabic documents from the 14th and 15th centuries translated to Spanish by the legal scholar Mahoma Brocon in the 16th century that include references to donations for the benefit of several mosques in Granada.74 Together with J. Martínez Ruiz he analysed and published part of the Apeo y deslinde de los habices de las tahas de Ugíjar, Andarax, Berja y Dalías (1530)75 and 71 M.C. Villanueva Rico and A. Soria, ‘Fuentes toponímicas granadinas. Los libros de bienes habices’, Al-Andalus, XIX (1950), pp. 457–462. 72 M.C. Villanueva Rico, Habices de las mezquitas de la ciudad de Granada y sus alquerías, Madrid, 1961 and Casas, mezquitas y tiendas de los habices de las iglesias de Granada, Madrid, 1966. The absence of a preliminary study in both editions can be partially remedied by the article by M.T. Martínez Pérez, “Las mezquitas de Granada en los libros de Habices”, Andalucía Islámica, IV–V (1983–1986), pp. 203–235. 73 M. Espinar Moreno, Estructura económica de las iglesias alpujarreñas a través de los libros de habices, unpublished Ph.D. diss., Granada, 1980. 74 M. Espinar Moreno, “Bienes habices de Churriana de la Vega (1505–1548)”, Cuadernos de Estudios Medievales (1978–1979), pp. 55–78; ‘Apeo y deslinde de los habices de Dílar (1547)’, Miscelánea de Estudios Árabes y Hebraicos, XXIX–XXX (1980–81), pp. 135–161; ‘Habices de Gójar. Notas para el estudio de la alquería. Bienes habices’, Cuadernos de Estudios Medievales, X–XI (1982–1983), pp. 105–149; ‘Gabia la Grande: toponimia y onomástica según los libros de habices’, in Estudios Románicos dedicados al prof. Andrés Soria Ortega, Granada, 1985, vol. I, pp. 71–88; ‘Notas sobre la alqueria de Cájar (1505–1547), Cuadernos de Estudios Medievales, XIV–XV (1985–1987), pp. 47–60; ‘Notas sobre la estructura urbana y rural de la villa de Ugíjar a través del libro de habices de 1530’, in La ciudad hispánica en los siglos XIII al XVI, Madrid, 1987, pp. 489–505; ‘De la mezquita de Maharoch al monasterio de San Jerónimo. Noticias para el urbanismo y la arqueología de Granada (1358–1505), Cuadernos de Estudios Medievales y Ciencias y Técnicas Historiográficas, XVIII–XIX (1993–1994), pp. 73–97; M. Espinar Moreno and J. Abellán Pérez, ‘Las rábitas en Andalucía. Fuentes y metodología’, in M. de Epalza (ed.), La Ràpita Islàmica, Història Institucional i altres Estudis Regionals (I Congrés de les Ràpites de l’estat Espanyol, 7–10 setembre 1989), San Carlos de la Rápita, 1994, p. 135. 75 M. Espinar Moreno and J. Martínez Ruiz in Ugíjar según los libros de habices, Granada, 1983. This survey was only carried out in the first two districts (†à'a) but not in the other two for unknown reasons. The document includes the inventory of the a˙bàs owned by the mosques of the named villages, in the hands of the Church by virtue of a certificate dating from 14th October 1501.
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the Apeo y deslinde de los habices de las alquerías de la Vega (1547–1548),76 documents from the ‘Archivo de la Curia’ of the Archbishopric of Granada (room B, section ˙ubs). c. P. Hernández Benito has published and studied the book of habices dating from October 1503 (A.G.S., E.M.R., bundle 90–2nd) which includes the a˙bàs of the capital that the Crown kept for itself, all those destined to beneficence earmarked for the poor, ransom of captives, hospitals, instruction and houses of ablutions. The document consists of the report commissioned to Juan de Porres, treasurer of Vizcaya, in order to record his affairs in Granada regarding the a˙bàs and properties belonging to the Crown. The report was drawn up by a deputy of the treasurer, Pero Gutiérrez.77 d. Likewise, C. Trillo San José analysed and published a record of grants and leasings of a˙bàs dating from the years 1501 and 150278 (A.G.S., E.M.R., bundle 90–2nd) e. With regard to Almería, we rely on the work of María del Mar García Guzmán based on the documentation from 1496 concerning the monastery of Santo Domingo and the Hospital Real, as well as the recently published survey of the a˙bàs belonging to the Church of Abla dating from 1550.79 One of the most important documents, mostly because of its antiquity, is an inventory or record of ˙ubs dating from 1501 (A.G.S., C.M.C., 1st epoch, bundle 131) that covers both the region of the Alpujarra and the valley of Lecrín and the coastal districts (Almuñécar, Motril and Salobreña). That document, issued immediately after the Mudéjar revolt, records the assets distributed in each district or taha (from the Arabic †à'a) and in each village under the jurisdiction of
76 M. Espinar Moreno and J. Martínez Ruiz, Los Ogíjares (estructura socio-económica, toponimia, onomástica, según el libro de habices de 1547–1548), Granada, 1983. 77 P. Hernández Benito, La vega de Granada a fines de la Edad Media según las rentas de los habices, Granada, 1990. 78 C. Trillo San José, La Alpujarra medieval según las rentas de los bienes habices, Granada, 1988. Unpublished B.A. dissertation. 79 M. del M. García Guzmán, ‘Bienes habices del convento de Santo Domingo de Almería (1496)’, Estudios de Historia y de Arqueología Medievales, II (1982), pp. 29–42; ‘Los bienes habices del Hospital Real de Almería (1496)’, Homenaje al profesor Juan Torres Fontes, Murcia, 1987, vol. I, pp. 561–573; M. Espinar Moreno, ‘Bienes habices de Abla y Abrucena (1447–1528)’, in Homenaje a la memoria del prof. Dr. Emilio Sáez, Barcelona, 1989, pp. 385–394; C.J. Garrido García, ‘El apeo de los habices de la Iglesia parroquial de Abla (Almeria) de 1550. Edición y estudio’, Miscelánea de Estudios Árabes y Hebraicos, 46 (1997), pp. 83–111.
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the former in the Alpujarra. Although it has served as documentary evidence in several studies, mainly for the aforementioned book by C. Trillo,80 it still remains unpublished. The main appeal of these documents doubtless resides in the possibility of gathering quantitative information, which is vital if we are to ascertain the transcendence of a socio-economic institution such as pious endowments, but it is actually the field in which our knowledge of the former is most deficient as Arabic texts do not include data of this nature. Another factor that helps to highlight the value of these sources is also their use in the drawing-up of original Arabic documents. Thus, we know that when writing the book of habices of 1503, Juan de Porres had direct access to the documentation supplied to him by the convert Fernando de Moratali, which contained data on the management of Nasrid a˙bàs.81 Similarly, the inspector Francisco de Ávila relied on the services of three newly converted neighbours of the village of Ugíjar as surveyors of the a˙bàs found in that village (Fernando Almerini, Juan el Modaguar and Benito de Villalva), “los quales son personas abiles e tienen entera notyçia de los dichos bienes”,82 whereas in the Ogíjares the survey was conducted in June 1547 by Francisco el Hatit and Luis Abdulhaque.83 Before coming to the end of this section I must warn that I have only made selective and indirect use of the information found in the books of habices of Granada; I have never tried to undertake an exhaustive analysis of the data contained therein for that would have required another study. Thus, I have confined my work to using that documentation as a complement to the information provided by Arabic sources.
80 It has also been used by C. Trillo San José and P. Hernández Benito, ‘Topónimos de la Alpujarra según un manuscrito de rentas de habices’, Miscelánea de Estudios Árabes y Hebraicos, XXXVII/1 (1988), pp. 285–306; C. Trillo San José, ‘El poblamiento de la Alpujarra a la llegada de los cristianos’, Studia Historica. Historia Medieval, VII (1989), pp. 187–208. 81 “La qual dicha quenta yo, Pero Gutierres, vezino de Granada hasedor del sennor Juan de Porres tesorero de Vyscaya en el cargo de los hauizez de la dicha Óibdad de Granada que son a su cargo doy por cierta, leal y verdadera segud que me fue dada por Fernando de Moratali vezino de la dicha Óibdad nuevamente convertydo, sacandolo de los libros de aravygo que en su poder estaban” apud P. Hernández Benito, La Vega de Granada, pp. 274–275. 82 Apud M. Espinar Moreno, Ugíjar según los libros de hábices, p. 132. 83 M. Espinar Moreno and J. Martínez Ruiz, Los Ogíjares, p. 23.
CHAPTER TWO
THE USE OF ISLAMIC JURISPRUDENCE AS A DOCUMENTARY SOURCE
1. Introduction Before analysing the information found in the aforementioned sources, it is necessary to cast a methodological look at the nature of the documentary material which forms the basis of this analysis. This is due to the crucial role that our sources of information play in any work of historical research. Indeed, without testimonies of whatever provenance or character a source has it would not be possible to write History. The nature of the documents used by historians is, however, very varied and inevitably raises many questions which can be encapsulated in this single one: what is the relationship between the information available and the reality of the subject matter? Applied to the topic at hand the question would thus be: to what extent do the sources available to us reflect what pious endowments really represented in al-Andalus? Given the pivotal role played by Islamic jurisprudence in this study, I intend here to gauge its relevance vis-à-vis the history of al-Andalus in general and that of pious endowments in particular.
2. Islamic jurisprudence and historical analysis: a general evaluation Using jurisprudence as a source for studying medieval Islamic societies constitutes a methodological approach inaugurated in the 1940s and 1950s by specialists in the history of North Africa such as R. Brunschvig R.H. Idris, M. Talbi, C. Cahen and others. Since that time it has become increasingly popular and is now considered a consolidated line of research within the historiographical community, partly thanks to the growing abundance of published—and, in some cases translated—texts. In Andalusian studies, extensive use of legal sources started later, after the mid-1980s, as P. Guichard pointed
islamic jurisprudence as a documentary source
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out in a recent article where he analysed the historiographical development of this trend from its origins.1 As opposed to so-called narrative sources, that is ‘the accounts deliberately devoted to inform readers’,2 Islamic jurisprudence ensures the presence of a certain degree of impartiality and neutrality as it was not produced in an attempt to make history, in the sense of voluntarily exerting an influence on the interpretation that a social collective makes of the past. Legal texts, like any other written source, are certainly not aseptic and pure but, rather, they sometimes respond to vested interests and justify certain courses of action, conducts or actions, adopted either by social groups or political authorities. In general, however, they afford a less subjective insight than that provided by chronicles. But to be aware of their virtues is as important as knowing their shortcomings in order to accurately determine the possibilities that this material offers. Thus, legal sources do not allow us to surpass some of the restrictions imposed by narrative sources, mainly the impossibility of reaching reliable estimates. The utter absence of quantitative information prevents us from knowing some aspects of Andalusian society to any satisfactory degree. This does not mean, however, that we should cease to make use of that information; it just means that we ought to be aware of its limitations, including that of creating a merely qualitative variety of history.3 P. Guichard has perhaps been the scholar who has most optimistically expressed his hopes for the opportunities offered by the systematic use of jurisprudence compilations.4 He believes that their
1 See P. Guichard, ‘Litérature jurisprudentielle et histoire de l’Espagne musulmane: la lente intégration des fatwà/s màlikites à l’historiographie d’al-Andalus’, Comptes-Rendus de l’Academie des Inscriptions et Belles-Lettres, 1999, avril-juin, pp. 757–779. On this subject, see also M. Fierro, ‘Spanish Scholarship on Islamic Law’, Islamic Law and Society, 2/1 (1995), pp. 43–70. 2 M. Bloch, Apologie pour l’Histoire, Paris, 1967, 6th ed., p. 24. 3 P. Chalmeta, ‘La España musulmana’, p. 482; ‘Introducción al estudio de la economía andalusí (siglos VIII–XI)’, in F. Maíllo Salgado (ed.), España. Al-Andalus, Sefarad. Síntesis y nuevas perspectivas, Salamanca, 1990, 2nd ed., p. 114. 4 P. Guichard, Les musulmans de Valence, pp. 32 (note 21), 35 and 254; ‘The Social History of Muslim Spain’, p. 681; ‘La formación de al-Andalus’, in A. Malpica and T. Quesada, Los orígenes del feudalismo en el mundo mediterráneo, Granada, 1994, p. 67; La España musulmana. Al-Andalus omeya (siglos VIII–XI), Madrid, 1995, pp. 116–117; ‘La société andalouse, mythes et réalités’, Le Monde Arabe dans la Recherche Scientifique, 9 (1998), p. 27.
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relevance is comparable to the archives found in Christian societies5 and that al-Wansharìsì’s compilation should be considered as important as the documents found in the Cairo Genizah.6 With regard to this, P. Chalmeta wrote in 1994: ‘we are entering a new phase. Political history, based on nothing more than chronicles, has been left behind once and for all. The incorporation of data garnered from fatàwà, notarial formularies, etc. began to flesh out the inevitable political-chronological skeleton years ago. Now, thanks to the ever increasing use of documents and the results drawn from archaeological digs, new paths are being opened (legal, institutional, socioeconomic, on daily life, history of mentalities, tastes and fashions, etc.). If this trend persists it is likely that medieval Muslim history will, in the short term, gradually catch up with medieval Christian history so that their difference will now be merely quantitative rather than qualitative, as has been the case hitherto’.7 It is a matter of expediency to make use of jurisprudence in the field of Andalusian studies as it has enabled us to tackle problems and issues which can only be thoroughly analysed by resorting to it. Legal sources allow for the emergence of new approaches to issues which are little-known or unknown through traditional narrative sources, such as rural society. This is why scholarly interest in this type of sources has been growing during the last ten years, with particular emphasis on certain aspects of Andalusian studies. A few exemples must suffice to show that the use of Islamic jurisprudence as an historical source has engendered a substantial body of scholarly literature on different subjects. The nature of the rural system in al-Andalus has been a central point of discussion in the scholarly debate which has developed since the 1980s on the character of Andalusian society.8 Although certain aspects of their organisation may remain elusive, it is obvious that,
5 P. Guichard, ‘La documentation chrétienne et les structures rurales de l’Espagne orientale à l’èpoque musulmane’, La Civilisation d’al-Andalus dans le temps et dans l’espace, Tetouan, 1994, p. 91. 6 P. Guichard and V. Lagardère, ‘La vie sociale et économique’, p. 202; M.K. Masud et al., ‘Muftis, Fatwas and Islamic Legal Interpretation’, p. 22. 7 See his review of Y. Ragib, Marchands d’étoffes du Fayyoum au III/IX siècle d’après leurs archives (actes et lettres) in Anaquel de Estudios Árabes, 5 (1994), pp. 184–186. 8 See A. García Sanjuán, ‘El concepto tributario y la caracterización de la sociedad andalusí: treinta años de debate historiográfico’, in A. García Sanjuán (ed.), Saber y sociedad en al-Andalus. IV–V Jornadas de Cultura Islámica, Huelva, 2006, 81–152.
islamic jurisprudence as a documentary source
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as P. Guichard points out,9 the study of rural communities must be the result of combining archaeological breakthroughs and the detailed analysis of legal texts. In 1993, V. Lagardère published the first monograph on this rural system broadly based on the use of jurisprudence, although clearly defective from several points of view.10 The subject of pious endowments can also serve as a revealing point of reference in this respect since many of the legal questions posed to scholars of law in the Nasrid period on the topic involve assets belonging to rural communities. Another field of research in which the use of Islamic jurisprudence has been growing in recent historiography is urbanism. As M. Acién points out, at present the relationship between Islamic law and urbanism is one of the more productive research lines in the study of cities.11 The international seminar held in Madrid in 1997 and published as L’urbanisme dans l’Occident musulman au Moyen Âge. Aspects juridiques (Madrid, 2000) is probably the most significant step taken in this direction until now. However, the works of J.P. Van Staëvel are amongst the major contributions to the field already showing that legal sources are an invaluable tool for the study of Islamic urbanism.12 Another recent and remarkable example of these developments is C. Mazzoli-Guintard’s book on urban solidarities in the city of Córdoba during the 10th–11th centuries, based mainly on the legal compilation of Ibn Sahl.13 In view of these recent developments, much more can and should be done. Pious endowments are a case in point since their study could not be undertaken without making use of jurisprudence. On
9 P. Guichard, ‘La documentation chrétienne et les structures rurales de l’Espagne orientale à l’èpoque musulmane’, p. 91. 10 V. Lagardère, Campagnes et paysans d’al-Andalus (VIIIe–XVe s.), Paris, 1993; M. Shatzmiller, ‘L’organisation du travail dans l’Islam médiéval d’après les fatàwà: le cas du Mi'yàr’, Itineraires d’Orient. Hommages a Claude Cahen. Res Orientales, VI (1994), pp. 367–380. 11 ‘La formación del tejido urbano en al-Andalus’, in J. Passini, La ciudad medieval. De la casa al tejido urbano, Cuenca, 2001, p. 16. 12 See, among others, ‘Casa, calle y vecindad en la documentación jurídica’, in J. Navarro Palazón, Casas y palacios de al-Andalus, Barcelona, 1995, pp. 53–61; ‘Influencia de lo jurídico sobre la construcción. Análisis d’Ibn (sic) al-Imàn (sic) alTutili (Tudela, final del siglo X)’, in J. Pasini, La ciudad medieval: de la casa al tejido urbano, Cuenca, 2001, pp. 215–241. 13 Vivre à Cordoue au Moyen Âge. Solidarités citadines en terre d’Islam aux Xe–XIe siècles, Rennes, 2003.
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this premise, some scholars have stressed the specific importance of the use of fatàwà for studying the waqf, although in 1998 M. Hoexter still felt that this type of legal literature ‘until now has received too little attention from scholars’.14 The present study aims to analyse the pious endowments system in al-Andalus mainly through a specific and detailed use of Islamic jurisprudence.
3. Islamic jurisprudence and its social context According to J. Schacht, the history of Islamic law is dictated by the contrast between theory and reality.15 It is precisely this contrast that hinders historians from using Islamic jurisprudence for the most important criticism raised against it is its excessively hypothetical and theoretical character, and its lack of a direct connection to the society in which it is practised.16 As I shall try to prove, that criticism stems from a lack of knowledge of the actual work of legal scholars and of the formal nature of the material included in the jurisprudence compilations. In order to argue against this view of a separation between Islamic jurisprudence and social reality it is necessary to analyse the legal texts themselves. As al-Wansharìsì’s work is the main source for the present study, I will use some references from volume VII in particular, albeit not exclusively. I will also make use of Ibn Rushd’s compilation, the most important of Andalusian sources. My work in this respect has not, however, been comprehensive but, rather, selective as the aim is only to illustrate some of the arguments I will try to present with some texts. This doubtless entails that a more thorough approach would provide new examples and textual references to enrich the debate. First of all, a conceptual distinction must be made which is sometimes not taken into account. As noted, Islamic jurisprudence is often
14 R.S. Humphreys, Islamic History, p. 218; M. Hoexter, ‘Waqf Studies in the Twentieth Century: The State of the Art’, Journal of the Economic and Social History of the Orient, XLI/4 (1998), p. 484. 15 J. Schacht, Introduction au droit islamique, p. 165. See on this R.S. Humphreys, Islamic History, pp. 210–211. 16 See C. Cahen, ‘Considerations sur l’utilisation des ouvrages de droit musulman par l’historien’, in C. Cahen, Les peuples musulmans dans l’Histoire Médiévale, Damascus, 1977, p. 82.
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thought to have a hypothetical or theoretical character when what it is actually stressed is its seemingly rigid or dogmatic nature. The well-known fatwà issued by al-Wansharìsì regarding Marbella’s Mudéjar community helps shed light on this question.17 In it, al-Wansharìsì completely disregards the historical environment in which Marbella’s Muslims lived, formulating his legal ruling in a very strict tone based on the application of the precepts of the sharì 'a. The jurist detaches himself from reality and issues his fatwà basing his judgement merely on the implementation of Islamic law and not on the specific circumstances of the period, hence its dogmatic undertones. It seems clear, however, that the basis of the legal question which led to the fatwà is inextricably linked to the actual conditions of the period and the area where it originated. Thus, although al-Wansharìsì’s fatwà can be regarded as a dogmatic view, reluctant to take contemporary conditions into account, the origins of the question are, however, hardly speculative or hypothetical but, in fact, absolutely real and genuine. In the light of this example, we can remark that the relationship between the fatwà and the surrounding social reality which gives rise to it must be tackled first by distinguishing the two different parts comprising the fatwà. One is the case that initiates the inquiry (nàzila) and, the other is the legal scholar’s response, that is the fatwà itself. Since the two parts are different both in form and content, the question of their relationship to the actual circumstances will have to be answered separately according to each part. Assuming that ‘most of the useful data and information contained in a fatwà can be found in the section corresponding to the legal query’,18 a principle which is not always followed, the problem we face vis-à-vis the consultation is as follows: when a faqìh or muftì issues a fatwà, does he always do so in response to an incident or a problem that is really occurring? According to this hypothesis, the fatwà would be instrumental in shedding light on aspects of society as a whole in its broadest sense. Its role would diminish, however, if fatàwà were just responses to questions and doubts posed to specific masters by their disciples or students in order to learn their opinion
17 Al-Wansharìsì, Mi'yàr, II, pp. 119–131; trans. E. Amar, ‘La pierre’, XII, pp. 192–194; F. Maíllo Salgado, ‘Consideraciones acerca de una fatwà de al-Wan“arìsì’, Studia Historica. Historia Medieval, III/2 (1985), pp. 181–191. 18 F. Vidal Castro, Economía y sociedad, p. 233.
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on theoretical issues which had not necessarily happened. They would be the result of students’ curiosity, eager to know their master’s stance on cases likely to occur. The same could be said if the fatwà were a mere construct—the product of a legal scholar’s mental speculations on theoretical issues not related to actual events—, rather than the response to a current matter. In principle, as some scholars have already indicated,19 the existence of fatàwà that address both types of queries, namely those based on theoretical and actual cases, must be acknowledged. We will find some examples of this type concerning pious endowments at the end of this chapter. In accordance with the opinion of several authors,20 however, I believe that, on most occasions, the fatàwà contained in the major compilations of jurisprudence are not mere mental or theoretical elaborations on the part of legal scholars but are responses to genuine cases. The first argument against the thesis that questions are ‘hypothetical’ in character stems from the very nature of the role of the faqìh as an expert entrusted with the task of issuing responses or fatàwà to specific problems. The books devoted to instructing muftìs (àdàb al-muftì ) do indeed stipulate that the jurist must not issue a fatwà on a non-existent or hypothetical case, one that has not taken place in real life.21 It seems that the Màlikì madhhab was more stringent in this regard as there is evidence that Màlik b. Anas refused to rule on cases which he regarded as not plausible or too contrived,
19 R. Daga Portillo, ‘Los nawàzil y géneros relacionados en la literatura jurídica: fetuas y masà"il’, Miscelánea de Estudios Árabes y Hebraicos, XL–XLI/1 (1991–1992), p. 81; F. Vidal Castro, Economía y Sociedad, p. 180 and ‘El muftí y la fetua en el derecho islámico’, pp. 302 and 318. 20 S. Ghuràb, 'Kutub al-fatàwì wa-qìmatu-hà al-ijtimà'iyya. Mithàl nawàzil alBurzulì’, Hawliyyàt al-Jàmi'a al-Tùnisiyya, 16 (1978), p. 71; F. Maíllo Salgado, ‘Consideraciones acerca de una fatwa de al-Wan“arìsì’, p. 181 and ‘Del Islam residual mudéjar’, in F. Maíllo Salgado (ed.), España. Al-Andalus. Sefarad. Síntesis y nuevas perspectivas, Salamanca, 1990, 2nd ed., p. 131; F. Vidal Castro, Economía y Sociedad, p. 234 and ‘El Mi'yàr de al-Wan“arìsì (m. 914/1508). II: Contenido’, p. 225 and review of V. Lagardère’s Histoire published in Al-Qan†ara, XVII/2 (1996), p. 247; D.S. Powers, ‘The Art of Legal Opinion: al-Wansharìsì on Tawlìj’ in M.K. Masud, B. Messick and D.S. Powers (eds.), Islamic Legal Interpretation. Muftis and Their Fatwas, London, 1996, p. 100; W.B. Hallaq, ‘From Fatwàs to Furù'’, pp. 38 and 61; A. Zomeño, Dote y matrimonio en al-Andalus y el Norte de África, Madrid, 2000, p. 37. 21 See E. Tyan, Histoire de l’organisation judiciare en pays d’Islam, Leiden, 1960, p. 219; M. Sulaymàn 'Abdallàh al-Ashqar, Al-Futyà, pp. 9, 14 and 21; D.S. Powers, ‘Legal Consultation (Futyà) in Medieval Spain and North Africa’, in C. Mallat (ed.), Islam and Public Law, London, 1993, p. 87.
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an attitude that S. Ghuràb defines as ‘being firmly rooted in reality’ (tashabbuth bi-l-wàqi' ).22 In his treatise, Ibn Óamdàn includes a chapter devoted to what the procedure is ‘if someone presents a case which has not happened’, whose mere inclusion already indicates that the usual and common practice was to make enquiries about incidents that had actually occurred, not about hypothetical events. Ibn Óamdàn states that in the latter case the muftì is not obliged to answer, although it is advisable for him to do so. He then adds that if the petitioner’s aim is to know what the likely ruling would be if the case presented did occur, there is nothing wrong in answering.23 Sometimes, the texts of legal questions themselves show that the question posed to the legal expert refers to a real occurrence. For example, quite often, the individual who asks for a legal ruling (mustaftì) employs certain expressions or sentences when presenting the case which reveal it to be a genuine incident. One of them is the use of the verb nazala (‘to happen’, ‘to occur’) and the feminine active participle nàzila (pl. nawàzil), whose common meaning is that of ‘unfortunate event’24 whereas in its technical-juridical use it refers to ‘case’ or ‘lawsuit’. W.B. Hallaq remarks that nàzila refers to the question posed by the mustaftì, whereas the fatwà refers specifically to the jurist’s solution to that question, that is, his response.25 According to Sa'd Ghuràb, the presence of that term is indicative of the ‘firm grasp on reality’ typical of Màlikì compilations of fatàwà. Similarly, F. Vidal Castro states that ‘it is possible to know whether we are dealing with a real event thanks to an indication that, on occasions, appears at the end of the question and is usually rendered with the formula nazalat’.26 Al-Wansharìsì’s compilation includes cases that shed light on the meaning of such a formula and also others where the verb waqa'a, synonym of nazala, is used.27
22 S. Ghuràb, ‘Kutub al-fatàwì’, p. 69. See also C. Pellat, E.I.2, ‘nàzila’, VII, p. 1054, ‘nàzila’. 23 Ibn Óamdàn, Íifat al-fatwà, p. 30. 24 See Ibn ManΩur, Lisàn al-'arab, XI, pp. 665–666. There he defines nàzila as al-shadìda tunzil bi-l-qawm. 25 W.B. Hallaq, ‘From Fatwàs to Furù'’, p. 46, note 87. C. Pellat, ‘nàzila’, E.I.2,VII, p. 1054, believes that this peculiarity is a distinctive feature of the Màlikì school of law. See also M.K. Masud et al., ‘Muftis, Fatwas and Islamic Legal Interpretation’, p. 10 and F. Vidal Castro, ‘El muftí y la fetua en el derecho islámico’, p. 303. 26 F. Vidal Castro, Sociedad y economía, p. 180 and ‘El muftí y la fetua en el derecho islámico’, p. 318. 27 Al-Wansharìsì, Mi'yàr, II, p. 137, II, p. 158 (trans. V. Lagardère, Histoire et
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Another aspect that illustrates the link between legal queries and real-life events is the presence of legal documents in the texts, which can also be traced elsewhere than in legal sources.28 The petitioner often supplemented the case description with a copy of certain related documents in order to provide the legal expert with as much detailed information as possible. In most cases, these documents’ existence was recorded but, on occasions, the copyist includes a complete or partial transcription of them providing data such as the geographical provenance of the legal query, the complete names of the people involved and the date when the text was issued. This allows us to place both the query and the muftì’s ruling in a context thus turning these legal questions into a source of information of enormous interest. It is true, however, that examples of this type of consultations are scarce in al-Wansharìsì’s compilation. One of them is the will of the shaykh Abù Zayd b. Khanùsa and his mother Fà†ima bint Abì-l-Fa∂l al-Zarhùnì, transcribed in entirety and on which Tilimsan’s legal experts like Ibn Marzùq and Abù-lFa∂l Sìdì Qàsim al-'Uqbànì issued fatàwà.29 Likewise, the petitioner of some legal advice sought from the faqìh Abù 'Amr b. ManΩùr from Algeciras included the complete transcription of two documents (rasm) which provide detailed information on the case, as I have shown in a previous article.30 As D.S. Powers shows, the inclusion of original documents was particularly important in cases dealing with family donations whose resolution largely depended on the interpretation of the textual formulation of the deed of donation.31 Ibn Rushd’s compilation includes a case in point, an instance of donation of a pious endowment (ta˙bìs) with a copy of the original document recording the name of the parties involved, the date and place where the donation took place: Mu˙ammad b. Khalìfa donated the corn market building he owned
société, p. 72, no 291), VII, p. 14, VII, p. 218 (trans. V. Lagardère, Histoire et société, p. 278, no 234), VII, p. 188, VII, p. 248, VII, p. 262, VII, pp. 303–304 (trans. V. Lagardère, Histoire et société, p. 254, no 147), VII, p. 347, VIII, p. 470, XI, p. 213. 28 On the presence of legal documents in non-legal sources, see M. Fierro, ‘Documentos legales en fuentes andalusíes’, Al-Qan†ara, XXII (2001), 205–209. 29 Al-Wansharìsì, Mi'yàr, VII, pp. 311–321. 30 Al-Wansharìsì, Mi'yàr, IX, pp. 261–265. See A. García Sanjuán, ‘Una fetua del siglo XIV sobre un pleito sucedido en Algeciras’, Almoraima. Revista de Estudios Campogibraltareños, 20 (October 1998), pp. 9–16. 31 D.S. Powers, ‘Legal Consultation (Futyà)’, pp. 90–91.
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in Badajoz, near the dyers’ quarter (ßabbàghìn), to his daughter Najma and her offspring in the month of Jumàdà II of 458 h (April 30 to May 28, 1066).32 A similar case is reported by Ceuta’s qà∂ì 'Iyà∂ concerning a donation made by Óammud b. Khalaf b. Abì Muslim al-Íadafì in favour of his son Yùsuf and the latter’s descendants at the end of the month of Dhù-l-˙ijja of 483 h ( January 25 to February 22, 1091).33 In this case, as the text itself remarks, we are not dealing with the original document but with the declaration of the witnesses involved. On other occasions, a transcribed document is included, albeit only with the ‘skeleton’ intact and lacking all the data that would have made it possible to set it in a specific context. That is the case of the fatwà issued by Ibn Rushd à propos a case raised in the village of Saltés (Huelva) involving two men who disagreed on the sale of part of an orchard and in which the faqì˙ is referred to a copy of the contract signed by the two parties.34 Finally, there are cases in which the existence of such contracts is known only because the muftì reports in his ruling that he has consulted, read and pored over copies sent to him by the mustaftì as supplementary evidence to help him issue his fatwà. Copies of the contract are not included, however, neither in the text of the legal query nor in the response.35 Other elements help to determine, with varying levels of precision, the connection between a fatwà and the specific case it is addressing; these criteria may appear in an isolated or combined fashion and allow us to set a legal question in a geographical and/or chronological context. This gives a particular relevance to these documents, as I have pointed out. An example of this is the first fatwà included in the seventh volume of the Mi'yàr where the exact location of where the dispute broke out, specific references to the activity of a given main mosque and, at the end, as an appendix, a paragraph containing what F. Vidal Castro describes as an ‘identifying subscription’ are provided;36 it consists of the invocation of the muftì’s 32
Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, III, pp. 1634–1635, no 650. 'Iyà∂, Madhàhib al-˙ukkàm, pp. 193–198 (trans. D. Serrano, pp. 347–351). 34 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, II, pp. 1135–1137, no 351; ed. alTajkànì, II, pp. 1000–1003, no 272. See A. García Sanjuán, ‘Una fetua de época almorávide sobre un pleito sucedido en Saltés’, Huelva en su Historia, 8 (2001), 391–401. 35 Al-Wansharìsì, Mi'yàr, VII, pp. 228–229. 36 F. Vidal Castro, Economía y sociedad, p. 178; ‘El muftí y la fetua en el derecho islámico’, pp. 314–315. 33
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testimony in order to authenticate his response, including the complete date when the latter was issued (day, month and year).37 The reference to the main mosque of al-Madìna al-Bay∂à" already indicates the specific area that the question originates from and that, therefore, the faqì˙ ’s response cannot be a product of his own imagination. Similarly, the content of the question and the subsequent response clearly reveal that a specific problem concerning that main mosque is raised, as concrete data on the organisation of its employees and salaried men and its internal structure of operations are given. Finally, at the end of the muftì’s response the following passage is attached: ‘Praise be to God. The illustrious, perfect, pious and distinguished faqìh, muftì and professor Abù Mu˙ammad 'Abdallàh al-'Abdùsì testifies that the response that begins with the words ‘praise be to God’ and ends with ‘with His grace and favour’ was written by the mentioned faqìh himself who gave it in response to the legal query (nàzila). [Witnesses], who know him and know that he is highly capable of uttering such an invocation, offer the corresponding testimony on the 25th of the blessed month of Rajab of the year 825 h (15/7/1422). God shows us His benevolence’.
This last paragraph or ‘identifying subscription’ confirms that the fatwà was issued in response to a legal question on a specific reallife case (referred to as nàzila) and informs us that it was written by the faqì˙ himself and even provides us with the exact date of the event. Regardless of whether the problem dealt with by the fatwà is more or less representative, the fact that the context is clearly set is itself very relevant when it comes to tackling the study of medieval societies which have not left a significant amount of archival documents. Certainly, texts of the aforementioned type are rather scarce in al-Wansharìsì’s work; most frequently, fatàwà contain just some of the cited elements rather than all of them at once. However, other texts also present similar elements of contextualisation, although without such profusion of details, enabling us to state that the fatwà is a response of a specific event of real life and not the answer to a hypothetical legal query posed by a disciple or an entelechy resulting from the jurist’s mental boredom. In a number of cases, fatàwà contain identifying subscriptions like the previous one, including the presence of precise dates. Most of
37
Al-Wansharìsì, Mi'yàr, VII, pp. 5–6.
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them are from the 9th/15th century,38 although there are also some from the 8th/14th century.39 Rarer, however, are dated texts penned by authors from previous centuries.40 Geographically, they are mostly fatàwà issued by Maghribì legal experts, although there are some Andalusian ones from the Nasrid period.41 Ibn Rushd’s compilation on numerous occasions records the provenance of the question being raised as well as the date, as shown in the following examples, dealing with pious endowments. Ceuta’s qà∂ì Abù-l-Fa∂l 'Iyà∂ addresses eleven questions to Ibn Rushd at the end of 515 h (early March 1122).42 The eighth43 and ninth44 deal with cases of pious endowments. Also, in Rama∂àn of 516 h (3–11/2–12–1122) he addressed five legal queries (masà"il)45 to him, the last one of which deals with a case involving a˙bàs.46 Later on, in the second half of the same month and year he seeks his help again with fifteen difficult cases;47 the thirteenth case also deals with a matter involving a˙bàs.48 38
Al-Wansharìsì, Mi'yàr, VII, 12–15 and 297–298 [in this second version the texts with the utterance of the testimony are not included] (trans. V. Lagardère, Histoire et société, pp. 242–243, no 107), VII, pp. 209–211 (trans. V. Lagardère, Histoire et société, p. 238, no 98). 39 Al-Wansharìsì, Mi'yàr, VII, pp. 56–62 (trans. P. Guichard and V. Lagardère, ‘La vie sociale’, pp. 204–205; V. Lagardère, ‘La haute judicature’, pp. 179–180 and Histoire et société, pp. 363–364, no 321; D. Serrano, ‘Dos fetuas sobre la expulsión de mozárabes’, pp. 173–182); al-Wansharìsì, Mi'yàr, VII, pp. 481–482 and IX, pp. 30–33; al-Wansharìsì, Mi'yàr, VII, pp. 234–235 (trans. V. Lagardère, Histoire et société, p. 274, no 221). 40 Al-Wansharìsì, Mi'yàr, VII, pp. 56–62 (trans. P. Guichard and V. Lagardère, ‘La vie sociale et économique’, pp. 204–205; V. Lagardère, ‘La haute judicature’, pp. 179–180 and Histoire et société, pp. 363–364, no 321; D. Serrano, ‘Dos fetuas sobre la expulsión de mozárabes’, pp. 173–182), VII, pp. 481–482, IX, pp. 30–33 and Ibn Sahl, Dìwàn, II, pp. 1214–1215; ed. Khallàf, Wathà"iq fì shu"ùn al-'umràn, pp. 75–77 (trans. V. Lagardère, Histoire et société, p. 263, no 182); Mi'yàr, VII, pp. 234–235 (trans. V. Lagardère, Histoire et société, p. 274, no 221). 41 Al-Wansharìsì, Mi'yàr, VIII, p. 470, IX, pp. 261–265 (trans. V. Lagardère, Histoire et société, p. 424, no 255; A. García Sanjuán, ‘Una fetua del siglo XIV sobre un pleito sucedido en Algeciras’, pp. 12–15), XI, 39–42 (trans. V. Lagardère, Histoire et société, pp. 479–480, no 76). 42 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, II, p. 1037; ed. al-Tajkànì, II, p. 1070. 43 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, II, pp. 1049–1050, no 310, ed. alTajkànì, II, pp. 922–923, no 241; al-Wansharìsì, Mi'yàr, VII, p. 461. 44 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, II, pp. 1050–1051, no 311; ed. alTajkànì, II, pp. 923–924, no 241; al-Wansharìsì, Mi'yàr, VII, pp. 461–462; 'Iyà∂, Madhàhib al-˙ukkàm, pp. 197–198 (trans. D. Serrano, pp. 351–352). 45 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, II, p. 1215; ed. al-Tajkànì, II, p. 1070. 46 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, II, p. 1222, no 394; ed. al-Tajkànì, II, pp. 1076–1077, no 293. 47 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, II, p. 1226; ed. al-Tajkànì, II, p. 1080. 48 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, II, p. 1244, no 408; ed. al-Tajkànì, II, pp. 1094–1095, no 293.
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Between late Jumàdà I and early Jumàdà II of 517 h (end of Juneearly July 1123), some people from Badajoz arrive in Córdoba and address twenty-two questions to him;49 three of them (sixth, seventh and eighth) concern pious endowments.50 At the end of 518 h ( January–February 1125), the fuqahà" from the province of Priego (Bàgha) sent ten questions to him;51 two of them deal with cases of pious endowments.52 In a growing number of cases the element that allows the fatwà to be placed in a particular context is the geographic factor, rather than the chronological. With regard to questions addressed to Andalusian jurists we find references to cases raised in and addressed from or concerning a number of populations, urban as well as rural: ˙ißn Alfamín (Toledo),53 qaryat Aktsl/Aktbìl (?),54 Alhama (Granada),55 Almería,56 Arjona ( Jaén),57 Baza (Granada),58 Badajoz,59 Ballish60 49
Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, III, p. 1353; ed. al-Tajkànì, II, p. 1127. Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, III, pp. 1267–1269, no 418–420; ed. al-Tajkànì, II, pp. 1133–1135, no 304. 51 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, III, p. 1353; ed. al-Tajkànì, II, p. 1209. 52 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, III, pp. 1358–1359, no 479 and 480; ed. al-Tajkànì, II, pp. 1213–1214, no 315. 53 Ibn Sahl, Dìwàn, I, pp. 635–637; al-Wansharìsì, Mi'yàr, VII, p. 477 (trans. V. Lagardère, Histoire et société, p. 287, no 266). See D. Serrano Ruano, ‘La escuela de alfaquíes toledanos a través del Mi'yàr de al-Wan“arìsì’, Revista del Instituto Egipcio de Estudios Islámicos, XXX (1998), p. 139. 54 Ibn Sahl, Dìwàn, II, pp. 809–810. 55 Al-Wansharìsì, Mi'yàr, VII, pp. 147–148 (trans. V. Lagardère, Histoire et société, pp. 288–289, no 273). 56 Al-Wansharìsì, Mi'yàr, VII, pp. 91–92 (trans. V. Lagardère, Histoire et société, p. 279, no 239); Ibn Sahl, Dìwàn, II, 1065–1067; al-Wansharìsì, Mi'yàr, VII, p. 477–478 (trans. V. Lagardère, Campagnes, p. 108 and Histoire et société, p. 263, no 181. 57 Al-Wansharìsì, Mi'yàr, VII, p. 151 (trans. V. Lagardère, Histoire et société, p. 278, no 236). 58 Al-Wansharìsì, Mi'yàr, VII, pp. 115–116 (trans. V. Lagardère, Histoire et société, pp. 277–278, no 233), VII, pp. 121–122 (trans. pp. 264–265, no 184), VII, pp. 123–124 (trans. Mª. I. Calero, ‘Afectación’, pp. 178–179), VII, pp. 124–125 (trans. V. Lagardère, Histoire et société, p. 284, no 255 and p. 286, no 263; Mª I. Calero, ‘Afectación’, pp. 179–180), VII, p. 133. 59 Ibn Sahl, Dìwàn, II, pp. 717 and 1095; al-Wansharìsì, Mi'yàr, VII, p. 437 (trans. V. Lagardère, ‘Structures étatiques’, p. 93 and Histoire et société, p. 269, no 202). 60 Al-Wansharìsì, Mi'yàr, I, pp. 276–278 (trans. V. Lagardère, Histoire et société, pp. 61–62, no 299), VII, p. 140 (trans. p. 265, no 188), VII, p. 142 (trans. P. Guichard and V. Lagardère, ‘La vie sociale’, p. 222; V. Lagardère, Histoire et société, p. 266, no 190), VII, p. 143 (trans. V. Lagardère, Histoire et société, p. 266, no 191), VII, p. 143 (trans. V. Lagardère, Histoire et société, p. 266, no 192), VII, pp. 145–146, VII, pp. 148–149 (trans. V. Lagardère, Histoire et société, p. 288, no 273), VII, pp. 149–150, VII, 154 (trans. V. Lagardère, Histoire et société, p. 261, no 174), VII, 50
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(Vélez, Málaga),61 Castril (Granada),62 district (†à'a-'amal ) of Comares (Málaga) and four of its villages63 (Qù†a-Aqù†a,64 al-Zanj, al-Zàwiya and Qar†ama),65 Córdoba,66 kùrat Galìra (Granada),67 Málaga,68 qaryat Qabr Tjlysh/T˙mlyn/Qjysh (?),69 ˙ißn Íàli˙a70 (Zalía, Málaga),71 Tarifa
p. 157 (trans. V. Lagardère, Histoire et société, p. 285, no 259), VII, p. 184 (trans. V. Lagardère, Histoire et société, p. 286, no 261). 61 A. Carmona, Al-Qan†ara, XXV (2004), p. 260 holds that Ballish is not Vélez (Málaga) but Vélez Rubio (Almería): ‘nada en el texto nos permite asignar tal topónimo con total seguridad a esa población malagueña; por el contrario, algunos indicios en esos textos, como el carácter fronterizo de la población, y la inseguridad de esa frontera por el caso de cristianos que obligó a desalojar algunas aldeas’. Carmona’s argument could not be more irrelevant, mainly because Vélez-Málaga was also, obviously, a frontier place during the Nasrid period. Moreover, there is much clear evidence in favour of the identification of Ballish-Vélez, but here I will only quote one. Mi'yàr, VII, 140, makes a clear connection between Ballish and ˙ißn Íàli˙a, which is to be identified with the actual castle of Zalía, located only 11 km. north of Vélez. In this consultation, a man from Ballish converted a piece of land (maw∂i' ) into ˙ubs in favour of the people from ˙ißn Íàli˙a, so they could build a tower in the place called 'Ayn ˇu˙ma, outside the ˙ißn. Obviously, it is not impossible that a man from Vélez Rubio (Almería) established a foundation in favour of ˙ißn Íàli˙a, in Málaga, but it would be much more likely to be somebody from the nearby place of Vélez, especially taking into account that this fortress was one of the main places in the line of defence of Vélez. 62 Al-Wansharìsì, Mi'yàr, VII, p. 130 and 132–133 (trans. V. Lagardère, Histoire et société, p. 287, no 269; Mª I. Calero, ‘Afectación’, 178–179). On Qashtàl, see M.C. Jiménez Mata, La Granada islámica, Granada, 1990, p. 240. 63 Al-Wansharìsì, Mi'yàr, VII, p. 276, VII, p. 153 (trans. Mª I. Calero, ‘Comares’, p. 938; P. Guichard and V. Lagardère, ‘La vie sociale’, p. 221; V. Lagardère, Histoire et société, p. 261, no 172), VII, pp. 153–154 (trans, Mª I. Calero, ‘Comares’, p. 939 and V. Lagardère, Histoire et société, p. 261, no 173), VII, p. 162 (trans. Mª I. Calero, ‘Comares’, p. 939 and V. Lagardère, Histoire et société, p. 268, no 198). 64 See J. Pascual Barea, ‘De *Mons Acvtvs al castillo de Cote (˙ißn Aqù†)’, Archivo Hispalense, LXXVIII, no 239 (1995), pp. 11–24 and V. Martínez Enamorado, AlAndalus desde la periferia. La formación de una sociedad musulmana en tierras malagueñas (siglos VII–X), Málaga, 2003, index. 65 The text says qaryat Qur†uba but it must be a mistake as it ought to say Qar†ama, as suggested by E. García Gómez in the ‘Advertencia útil’ [Useful warning] included in his translation of Ibn Óayyàn, al-Muqtabis (VII), p. 17. 66 Al-Sha'bì, al-A˙kàm, p. 154, no 197 and 198; al-Wansharìsì, Mi'yàr, VII, pp. 65–66 (trans. E. Amar, ‘La pierre’, XIII, pp. 321–323), VII, p. 220 (trans. V. Lagardère, Histoire et société, pp. 255–256, no 153), VII, pp. 240 and 281. 67 Ibn Rushd, Kitàb al-fatàwà, ed. Al-Talìlì, III, pp. 1390–1391, no 499; alWansharìsì, Mi'yàr, VII, pp. 458–459 (trans. V. Lagardère, Histoire et société, p. 271, no 209; A. Mª Carballeira, Legados píos, pp. 121–122). 68 Al-Wansharìsì, Mi'yàr, VII, p. 281; VII, 228–229. 69 Ibn Sahl, Dìwàn, II, p. 1109. 70 Al-Wansharìsì, Mi'yàr, VII, p. 139 (trans. by V. Lagardère, Histoire et société, p. 262, no 186), VII, p. 184 (trans. by V. Lagardère, Histoire et société, p. 286, no 261). 71 See V. Martínez Enamorado, Al-Andalus desde la periferia, index.
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(Cádiz),72 qaryat ˇurrijìla (Málaga)73 and Valencia.74 As we can see, most of the locations correspond to the present provinces of Málaga and Granada; this can be linked to the fact that a high percentage of jurisprudence on pious endowments dates from the Nasrid period, as noted above (Chapter 1). Finally, another criterion for ascertaining the genuine character of the questions addressed to legal experts is their direct link to events related to the given period’s political situation, and references to the activity of certain rulers or historical figures; this provides clear proof of the non-hypothetical or theoretical nature of these texts. Among them, there is the case of the collective fatwà issued in mid-Rama∂àn of 888 h/October 1483 by a large group of Nasrid muftìs—up to fifteen of them—on the revolt certain quwwàd and knights led against the sultan Abù-l-Óasan and in support of his son 'Abdallàh, known as Boabdil.75 Similarly, there is the fatwà issued by Abù 'Abdallàh b. Óamdìn (d. 521h/1127) on paying the salary of the governor of the region of South Eastern al-Andalus from the rents collected from buildings and shops built by al-Manßùr 'Abd al-'Azìz b. Abì 'Àmir and Wà∂i˙ al-'Àmirì.76 Another text shows that Ibn Tashufìn wrote to Almería’s qà∂ì Mu˙ammad b. Ya˙yà, known as Ibn al-Farrà", requesting him to collect a certain fiscal contribution (ma"ùna) and the delivery of the corresponding amount.77 The same connection to a period’s political developments appears in a fatwà dealing with ‘the sales undertaken by the Banù 'Abbàd’ and the popular protests sparked by Ibn Rushd’s ruling on the matter.78 Also, another of Ibn
72 Al-Wansharìsì, Mi'yàr, VII, pp. 466–467 and Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, III, pp. 1340–1341, no 467 (trans. V. Lagardère, ‘La haute judicature’, p. 164, ‘Abù l-Walìd ibn Ru“d’, p. 216, ‘Structures étatiques’, p. 71 and Histoire et société, p. 271, no 210. 73 Ibn Sahl, Dìwàn, II, p. 1119–1120. See V. Martínez Enamorado, Al-Andalus desde la periferia, index. 74 Al-Wansharìsì, Mi'yàr, VII, pp. 234–235. 75 Al-Wansharìsì, Mi'yàr, XI, pp. 148–150 (trans. V. Lagardère, Histoire et société, p. 482, no 86; F. de la Granja, ‘Condena de Boabdil por los alfaquíes de Granada’, Al-Andalus, XXXVI/1 (1971), pp. 145–176). 76 Al-Wansharìsì, Mi'yàr, VI, pp. 160–161 and Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, III, pp. 1562–1563, no 572 (trans. V. Lagardère, ‘Structures étatiques’, pp. 78, 90–91 and Histoire et société, p. 181, no 313). 77 Al-Wansharìsì, Mi'yàr, XI, p. 132 (trans. V. Lagardère, Histoire et société, p. 477, no 63). 78 Al-Wansharìsì, Mi'yàr, VI, pp. 97–98 (trans. V. Lagardère, Histoire et société, p. 182, no 316).
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Rushd’s fatàwà describes the rebellion of Sa'ìd b. A˙mad b. Zayfal in Segura de la Sierra (˙ißn Shaqùra) in the 5th/11th century.79 Among the questions on a˙bàs there are some which can be set in a specific political context. At the end of a long text regarding family ˙ubs (˙ubs mu'aqqab) some documents are quoted, presented to the judge and legal expert Abù 'Abdallàh Mu˙ammad b. 'Alì b. Óamdìn, which included donations made by Almanzor in favour of one of his daughters, an umm walad and a son respectively.80 On another occasion, Granada’s jurist al-Mawwàq81 is asked about the possibility of manufacturing a piece of artillery (naf†) in order to bring down the walls of Alhama; this fatwà reports on a particular episode of the war of Granada. There is then a set of criteria enabling us to place a given fatwà within its context; sometimes, moreover, the same text exhibits more than one of these elements. It would be very interesting to accurately determine the percentage of the Mi'yàr’s texts containing this type of data. In spite of the numerous studies devoted to this source, the exact nature of its contents still remains largely unknown due to its great length, the absence of reliable and comprehensive indexes, and the inevitable tediousness of this kind of studies.
4. Abstraction: depersonalisation and decontextualisation That there are a great number of legal questions which sometimes appear under different guises—very abstract, depersonalised and out of context—is clear; handling this type of texts can be a very arduous task. A fatwà which epitomises this point, by the Andalusian jurist Ibn Da˙˙ùn and selected because of its conciseness and brevity, is translated as follows:82 ‘He was asked about [the case of ] a man who donated a ˙ubs and stipulated in one of the clauses that [the former] were used for the
79
Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, I, pp. 288–290, no 54; ed. al-Tajkànì, I, pp. 234–235, no 49; al-Wansharìsì, Mi'yàr, IX, pp. 539–540 (trans. V. Lagardère, Histoire et société, pp. 417–418, no 193). 80 Al-Wansharìsì, Mi'yàr, VII, pp. 412–413. 81 Al-Wansharìsì, Mi'yàr, VII, pp. 147–148. 82 Ibn Sahl, Dìwàn, II, p. 1110; al-Wansharìsì, Mi'yàr, VII, pp. 64 and 218 (Ibn Zarb) and 424–425 (Ibn Da˙˙ùn) (trans. V. Lagardère, Histoire et société, p. 256, no 156; A. Mª Carballeira, Legados píos, 143).
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The text is particularly short and succinct: no mention is made of where the legal advice was sought, what fortress we are dealing with and when the fatwà was issued; no reference is made to other aspects which could provide insights into this matter such as the specific aims pursued by the donation, though it is remarked that the latter had been recorded in the appropriate document. In this, as in other instances, the information regarding the specific case has been omitted, that is the names of the people involved, concrete places, dates, etc. This gives the fatwà that typically hypothetical and merely theoretical character which has given rise to the perception of Islamic jurisprudence as a mental construct detached from contemporaneous reality. The concrete references have given way to others of a generic nature which, in the field of pious endowments, usually are terms like ‘a man’ (rajul ), ‘the donor’ (al-mu˙abbis), ‘the beneficiary’ (almu˙abbas 'alay-hi ), etc. As for the specific donation, it is also common to use generic concepts, such as milk, which designate a property, usually real estate, both urban and rural; sometimes, slightly more precise terms are used so that we can distinguish between rural landed property, like ar∂ or maw∂i' (‘piece of land’), ∂ay'a (‘farm’), and urban such as rab' (‘building’), dàr (‘house’) and ˙ànùt (‘shop’). We must acknowledge the fact that, in principle, most of the fatàwà available to us in the several compilations of jurisprudence follow the ‘out of context’ model, though this is a mere personal impression, given the lack of comprehensive and systematic studies on the issue. That predominance has actually been used as an argument to raise the objections I mentioned earlier à propos the hypothetical and merely theoretical nature of Islamic jurisprudence, with no link whatsoever to the reality of the period. This abstraction from reality, however, does not necessarily mean that the question and its fatwà refer to a hypothetical case—an action which, as it has been indicated, would constitute a breach of the ethical principles ruling the dispensation of futyà in the Màlikì school of law—but, rather, that there are other reasons that justify such situations and reveal that that decontextualisation is either the result of a deliberate action on the part of the jurist or the outcome of circumstances inherent to the processes of transmission and text copying.
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The abstract character of many of the available fatàwà is the result of a premeditated stance, the application of a specific legal technique known as ‘abstraction’ (tajrìd ). That technique involves purging all concrete personal references to the time and place involved in the case from the text and it leads to the omission of the names of the parties involved as well as of the provenance of the question. Its application is dictated by the fact that the jurists’ aim is to reduce reality to legal language83 since the fatwà is not an ephemeral legal opinion but rather, as W.B. Hallaq remarks, it is destined ‘to transcend the individual case and its worldly reality’, a view shared by other scholars.84 Thus, from a concrete and real case, the faqì˙ wants to give a more widely applicable and universal dimension to his answer, one that transcends the confines of that particular issue; this compels him to omit all the elements that may link the response to the specific case he is asked to rule on. As J. López Ortiz points out, the faqì˙ is not a lawyer but a theoretically impartial legal adviser whose aim is mainly to realise the ideal of divine law, whereas his interest in specific facts is only perfunctory.85 A similar thing happens with treatises on notary forms, the other section of legal texts used in this research. In principle, they only offer a ‘frame’ for the legal action to be undertaken whose ultimate outcome we do not know due to the lack of original documents. However, that type of documentation was doubtless consulted when the treatises were written, but specific data were eliminated in order to focus on what was required to produce the formulary. This explains the fact that dates or references to facts and dates occasionally sneak in them: 'Ibn al-'A††àr used authentic documents which he depersonalised. The task of deleting names, dates and amounts proved incomplete (unless it was the work of later copyists) which is why we can identify several writings. One was written in 370, another in 384–385 and a third one can be dated between 381 and 392’.86 83
D.S. Powers, ‘The Maliki Family Endowment’, p. 386. W.B. Hallaq, ‘From Fatwas to Furù'’, p. 34; M.K. Masud et al., ‘Muftis, Fatwas and Islamic Legal Interpretation’, pp. 22–23; P.S. van Koningsveld and G.A. Wiegers, ‘The Islamic Statute of the Mudejars in the Light of a New Source’, Al-Qan†ara, XVII/1 (1996), p. 35. 85 J. López Ortiz, Derecho musulmán, pp. 77–78. 86 P. Chalmeta, ‘Acerca del 'amal en al-Andalus: algunos casos concretos’, p. 350. W.B. Hallaq has scrutinised the relationship between the process of drawing up notarial treatises and the documentary practice in ‘Model Shurù† Works and the Dialectic of Doctrine and Practice’, pp. 109–134. 84
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In relation to the aforementioned difference between late and early fatàwà (see above), we must consider the fact that many of the jurists who wrote the texts included in al-Wansharìsì’s compilation were his contemporaries; he must have known some of them personally, in particular those who carried out their duties in the town where he spent the last period of his life, Fez. Thus, it is likely that when writing his compilation, al-Wansharìsì had access to first-hand documents and texts by those authors, even the original texts of the fatàwà; the inclusion of identifying subscriptions of the legal experts at the end of their responses and some explicit statements by alWansharìsì himself in certain instances seem to suggest this.87 In fact, it seems that the fatàwà that provide enough elements to set them in a particular geographic and chronological context are in most cases the work of later jurists, that is from the 14th–15th centuries. On the contrary, the fatàwà of earlier authors or from more distant geographic areas, like al-Andalus, would only be known to him by means of second-hand references, that is through manuscripts containing collections of fatàwà by those authors not in their original version but in a rehashed fashion, copied and recopied numerous times. Let us remember that the immense majority of Andalusian fuqahà" quoted in the Mi'yàr are renowned jurists whose texts must have been widely circulated among all of the Maghrib’s legal circles— authors such as Ibn Sahl, Ibn Rushd, Ibn al-Óàjj, 'Iyà∂ or Ibn Lubb, to single out only a handful of the most well-known. Because they were not first-hand references the copyists might have easily depersonalised them in an attempt to turn them into ‘exemplars’ (exempla) subject to be applied in legal questions concerning similar facts and thus transcending the level of the specific case. That is indeed the aim and ultimate raison d’être of the existence of compilations of jurisprudence with a definite didactic mission. Likewise, those fatàwà lacking any context at all, or only having a sketchy one, are usually shorter than the later ones set in a clear context. This also suggests the possibility that, in the process of textual transmission, a reduction or elimination of elements regarded as secondary on the part of copyists and compilers may have taken place; the latter were mainly interested in the skeleton of the text, i.e. the essential part comprising the legal argumentation to turn it thus into a brief, con-
87
Al-Wansharìsì, Mi'yàr, VII, pp. 27, 389, 396 and 486–514.
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cise and clear example of a case which could be applied to similar circumstances.88 In that process of abbreviation important elements of the text are often bowdlerised, as al-Wansharìsì himself remarks in a few instances.89 On other occasions, those textual ‘amputations’ can be checked out by collating different versions of the same fatwà, when they are available as in Ibn Rushd’s. On comparing the versions transmitted by al-Wansharìsì with their original counterparts included in Ibn Rushd’s compilation it is apparent that certain elements of the original have been suppressed from the version ultimately incorporated in the Mi'yàr. That is the case of a query addressed to Ibn Rushd from Granada regarding an individual’s donation in favour of his two umm walad. In al-Wansharìsì’s version two important elements related to the original are missing: firstly, the place where the query originated (Granada) and, secondly, an element of the content.90 If we examine other compilations we notice the same phenomenon, for instance in a text of Ibn Sahl’s A˙kàm al-kubrà on a ta˙bìs. The original version alludes to a Jew who donated a property to his daughter and her offspring and, were she not to have any progeny, it was to be used for the benefit of the poor Muslims in Lorca (Murcia).91 Al-Wansharìsì’s version, however, does not mention that town.92 Still more revealing is the omission of data and summary of the text in a case dealing with the tenants of a number of pious
88 W.B. Hallaq, ‘From Fatwàs to Furù'’, pp. 31–32 refers to this matter when she makes the distinction between ‘primary’ and ‘secondary’ fatàwà; the first are understood to be those which have preserved most of their original form and are included in lengthy repertories together with other authors’, as in the case with al-Wansharìsì, al-'Alamì or al-Burzulì, or exclusively devoted to fatàwà by a single author such as Ibn Rushd’s compilation. Usually, primary fatàwà were put together by the jurists themselves or their associates. Thus Ibn Rushd’s was the work of his disciple Ibn al-Wazzàn. However, ‘secondary’ fatàwà are those which have undergone later alterations because they have not been transmitted through collections of fatàwà but via works of fiqh or otherwise. W.B. Hallaq himself provides an example of this kind of procedure à propos the case of one of Ibn Rushd’s fatàwà issued as a result of a murder: ‘Murder in Córdoba: Ijtihàd, Iftà" and the Evolution of Substantive Law in Medieval Islam’, Acta Orientalia, 55 (1194), pp. 55–83. 89 Al-Wansharìsì, Mi'yàr, VII, p. 248. 90 Al-Wansharìsì, Mi'yàr, VII, pp. 463–464 and Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, II, pp. 1207–1209, no 387 and ed. al-Tajkànì, II, pp. 1063–1065, no 290. 91 Ibn Sahl, Dìwàn, II, pp. 1119–1120; ed. Khallàf, Wathà"iq fì a˙kàm qa∂à" ahl al-dhimma fì-l-Andalus, pp. 68–69. 92 Al-Wansharìsì, Mi'yàr, VII, pp. 59–60 (trans. E. Amar, ‘La pierre’, XIII, pp. 367–370 and V. Lagardère, Histoire et société, p. 268, no 199).
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endowments in Córdoba, who complained of having suffered a plague of insects in their orchards and other setbacks and demanded as a result a cut in the rents they were bound to pay by contract.93 Similarly, it is through a fatwà by Ibn Zarb found in al-Sha'bì’s compilation that we know it is the judge Ibn Salìm who addresses the question to him, whereas in the Mi'yàr version this detail is missing and the query commences straight away with the usual formula of ‘he was asked about’ (su"ila 'an).94 On another occasion, Ibn Zarb is also the one querying his companions over an issue, whilst one of the versions of this fatwà in the Mi'yàr has Ibn Zarb as the addressee.95 It is also true, however, that it is sometimes al-Wansharìsì who transmits the more complete version of a text rather than the one that appears in another compilation.96 There are countless examples like these that highlight the need to compare, whenever possible, all the available versions of a given fatwà. The matter is compounded by the occasional errors, rather than textual amputations, that hamper the interpretation of a text or result in an erroneous translation.97 For the above reasons, whenever I quote a fatwà I collate all the available versions, as well as the appropriate translations, complete or partial, when they exist.
93 Ibn Sahl, Dìwàn, II, pp. 1136–1157; ed. Khallàf, Wathà"iq fì shu"ùn al-˙isba, pp. 24–25 and 62–93; al-Wansharìsì, Mi'yàr, VII, pp. 446–451 (trans. V. Lagardère, Campagnes, pp. 155–159 and Histoire et société, pp. 258–259, no 165). 94 Al-Sha'bì, al-A˙kàm, pp. 142–143, no 171; al-Wansharìsì, Mi'yàr, VII, pp. 423 (trans. E. Amar, ‘La pierre’, XIII, p. 328 and V. Lagardère, Histoire et société, pp. 256–257, no 158). 95 Al-Sha'bì, al-A˙kàm, p. 495, no 1097; al-Wansharìsì, Mi'yàr, VII, pp. 65 and 423 respectively. 96 Al-Sha'bì, al-A˙kàm, p. 154, no 197 and 198; al-Wansharìsì, Mi'yàr, VII, pp. 65–66. 97 This happens on a couple of occasions such as in the fatwà by Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, III, p. 1269, no 420; ed. al-Tajkànì, II, 1135, no 304 and its corresponding version in al-Wansharìsì, Mi'yàr, VII, p. 465. Also between 'Iyà∂, Madhàhib al-˙ukkàm, pp. 304–305 (trans. D. Serrano, p. 491) and al-Wansharìsì, Mi'yàr, VII, pp. 70–71 (trans. V. Lagardère, ‘La haute judicature’, p. 184 and Histoire et société, p. 274, no 222). The same case appears between two versions of a same fatwà in al-Wansharìsì, Mi'yàr, V, p. 37 and VII, p. 144 (trans. E. Amar, ‘La pierre’, XIII, pp. 373–374 and V. Lagardère, Histoire et société, p. 267, no 194).
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5. Social and historic representativeness of the fatwà Even if one supports the hypothesis that most of the fatàwà included in the great repertories of jurisprudence are responses to cases occurring in real life, we must question other aspects when using them as a source of information. Specifically, I am referring to the issue of how representative the cases raised are in relation to the society where they originate. In principle, we could assume that when a fatwà is required it is because there is doubt on a particular matter, which implies that the matter being considered is not frequent and commonplace as, otherwise, there would be no need to ask the jurist for his expert opinion. According to this hypothesis, the fatwà would be hardly representative of the society it appears in, and rather a rarity or a very peculiar case that provides a slanted and biased view of reality. I believe there are several elements which refute this view of how socially representative a fatwà is. Any text is, necessarily, only a partial representation of the period’s reality, though legal texts have an advantage over narrative ones, namely their higher degree of neutralism. Besides this general reasoning, there are more tangible ones as well, associated with the nature of Islamic jurisprudence itself. First of all, jurisprudence has to tackle the same problems regularly since, as F. Vidal points out, ‘there are answers for unresolved questions, open-ended or of permanent currency in Islamic society that are raised one century after another and on which every muftì expresses an opinion’.98 This point is highlighted through the study of the several methods employed to maintain city walls, as one of the sources of funding for maintenance works was, in fact, pious endowments.99 Al-Wansharìsì’s compilation shows that there are stereotypical themes which are often repeated in different periods throughout the centuries. With regard to the specific case of a˙bàs, the numerous questions on methods of transmission of family donations (mu'aqqab), the use of materials (anqà∂ ) from a building with the status of ˙ubs which has collapsed or is in ruins, the possibility of substituting the property (ta'wì∂ ), alterations to the use of benefits deriving from a mosque, the transfer of rents between mosques or between different
98 99
F. Vidal Castro, Economía y sociedad, p. 234. M. Marín, ‘Documentos jurídicos y fortificaciones’, p. 85.
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a˙bàs, the sale of a ˙ubs, etc. The fact that the same themes are reiterated in fatàwà from different periods, as we shall see in the course of the present study, confirms the fact that the former were not as infrequent or extraordinary as formerly thought. On occasions, the texts themselves clearly indicate how often the same case might be raised before the muftì; as he provides evidence showing that a particular problem has already been raised in the past, either before other fuqahà" or before him.100 In contrast to the frequency of queries on the management and usufruct of a˙bàs, I have only been able to find one instance in which the legal scholar shows surprise as a result of the question addressed to him.101 Another argument against the notion of the lack of social representativeness in jurisprudence has been stressed by M. Lahmar in relation to the origins of the Mi'yàr itself. The book was written in response to the practical requirements of pedagogy, namely to facilitate the work of law students, fuqahà" and judges; this means that the cases selected must have been somewhat representative.102 Thus, following this way of reasoning, the urge to instruct inherent in alWansharìsì’s compilation means that the texts contained in it were selected according to how frequently they took place in real life. To the statement that when a query is addressed to a legal expert it is because it involves a rare or uncommon matter we must argue that reality is complex and variable enough so as to bring about new cases and situations continuously; the latter are unforeseen and unresolved and they must be adequately addressed by the law according to the Islamic viewpoint. Reality changes, evolves, is continually being modified and that continuity of change engenders new situations and problems which the fuqahà" must tackle, trying to find a suitable response to them in accordance with the Islamic ideal or a given period’s conception of the latter. The need to adapt the law to changing conditions is indeed behind the emergence of the figure of the muftì and his legal rulings since both the Qur"àn and the Sunna do not comprise universal casuistry, as Ibn Khaldùn claimed in his
100 Al-Wansharìsì, Mi'yàr, VII, p. 39, VII, p. 45 (trans. V. Lagardère, Histoire et société, p. 243, no 109), VII, p. 51 (trans. V. Lagardère, Histoire et société, p. 243, no 110), VII, p. 179, VII, p. 263 (trans. V. Lagardère, Histoire et société, p. 225, no 59). 101 Al-Wansharìsì, Mi'yàr, VII, p. 133. 102 M. Lakhmar, ‘Les ˙ubus dans la société’, p. 139.
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analysis of the origins of fiqh (al-waqà"i' mutajaddida là tuwaffì bi-hà alnußùß).103 Similar to the role of the muftì is the issue of ijtihàd or the jurist’s personal ‘effort’ to find a legal response to a particular question. Adapting the law to the conditions of reality is linked, in the case of Islamic law, to the existence of two concepts, both closely connected: ijtihàd and taqlìd. Whereas the ijtihàd refers to the idea of personal ‘endeavour’ on the part of the jurist in an attempt to find an answer for a specific case or problem, taqlìd means ‘imitation’ and it refers, in legal terminology, to the ‘scholastic’ acceptance of the commonly-held or predominant view in the madhhab in respect of a certain issue. The problem arises when trying to determine the historical process followed by both types of practice, which leads us to the widespread debate on whether a ‘closure of the gates of ijtihàd’ took place or not, i.e. an historical moment from which time forwards ijtihàd ceased to be in use and was overshadowed by taqlìd. As S.P. Ali-Karamali and F. Dunne indicate, three stances can be observed among the scholars who have approached the subject: the supporters of such ‘closure’, those who deny it and a third group of ‘undecided’ scholars.104 Even though he might not have been the first to express his support for the theory of the interruption of the ijtihàd ,105 J. Schacht was nevertheless one of its main supporters and publicists. In his view, in contrast to the usual resort to personal opinion (ra"y) during the early period of development of Islamic law, the idea that personal reasoning was only possible among the great masters of the past began to spread from the second half of the 9th century onwards; the concept of taqlìd, defined by the same author as ‘the unreserved endorsement to the doctrines of established schools and authorities’,106 became prevalent from the beginning of the 10th century. This change led to the appearance of the muftì muqallid, ‘he who accepts another legal expert’s view at face value’.107 However, ‘the shift from 103 Ibn Khaldùn, al-Muqaddima, VI, 7 (trans. F. Rosenthal, p. 345; trans. V. Monteil, III, 931). 104 S.P. Ali-Karamali and F. Dunne, ‘The Ijtihad Controversy’, Arab Quarterly Law, IX/3 (1994), pp. 238–257. 105 In their review of available academic work on this issue in English, S.P. AliKaramali and F. Dunne, ‘The Ijtihad Controversy’, pp. 241–242 and 254–256, single out L. Ostrorog, The Angora Reform, 1927, as the origin of the almost unanimous opinion that the ‘gates of ijtihàd were shut’. 106 J. Schacht, Introduction au droit musulman, p. 64. 107 M. Sulaymàn 'Abdallàh al-Ashqar, Al-Futyà, p. 29.
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the system of the ijtihàd to that of taqlìd’, as J. Schacht designates this process, took place slowly and gradually, giving rise to a gradation in the exercise of the ijtihàd. Likewise, the taqlìd did not become prevalent without resistance as it had its detractors from the outset, among them Dàwùd b. Khalaf (d. 270 h/884), founder of the Ωàhirì school, Ibn Tumart (d. 524 h/1130), ideologue of the Almohad movement, and the famous Óanbalì jurist Ibn Taymiyya (d. 751h/1328). J. Schacht admits, nonetheless, that even during the period of taqlìd ‘manifestations of original thought’ still took place, though only with regard to ‘abstract and systematic formulations which did not affect decisions on positive law nor the classical doctrine of the ußùl al-fiqh’ and that the creative activity of late thinkers was not less intense than that of their predecessors.108 J. Schacht’s theories were not unanimously embraced and several authors denied or voiced reservations on the universalism of the ‘closing of the door of ijtihàd’, for instance J. López Ortiz.109 It is largely W.B. Hallaq, however, who has cast the most serious doubts on the ideas on ijtihàd expressed by J. Schacht -accepted by numerous luminaries via ‘academic taqlìd’—in a number of works published from the early 1980s.110 According to W.B. Hallaq, questioning the existence of fuqahà" capable of exercising ijtihàd is a phenomenon that begins only in the early 12th century, in direct connection to certain theological postulates concerning the imminence of the Last Judgement, one of whose harbingers would be the disappearance of knowledge ('ilm). Furthermore, he has shown that the concept of the ‘closing of the gate of ijtihàd’ (insidàd bàb al-ijtihàd ) is a rather late phenomenon (16th century). Likewise, even if we acknowledge the
108 J. Schacht, Introduction au droit musulman, pp. 65–66. According to S.P. AliKaramali and F. Dunne, ‘The Ijtihad Controversy’, pp. 243 ‘this statement indicates that Schacht is really aware that the closing of the door of ijtihàd was really only a result of theory and was never really implemented in practice’. 109 J. López Ortiz, ‘Fatwas granadinas’, p. 83. 110 Among them see ‘Was the Gate of Ijtihad Closed?’, International Journal of Middle Eastern Studies, 16/1 (1984), pp. 3–41, ‘On the Origins of the Controversy about the Existence of Mujtahids and the Gate of Ijtihad’, Studia Islamica, 63 (1986), pp. 129–141, ‘Ußùl al-Fiqh: Beyond Tradition’, Journal of Islamic Studies, 3/2 (1992), pp. 172–202, ‘Ifta’ and Ijtihad in Sunni Legal Theory: A Developmental Account’, in M.K. Masud et al., Islamic Legal Interpretation: Muftis and Their Fatwas, London, 1996, pp. 33–43. Besides these works, he devoted his Ph.D. thesis, still unpublished, to the subject: The Gate of Ijtihad: A Study in Islamic Legal History, University of Washington, 1983.
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fact that that closing might have taken place in certain areas of the Islamic world at a given period, it is difficult to support the idea that it led to a universal and simultaneous interruption of the practice of ijtihàd throughout the Islamic world.111 The jurisprudence on pious endowments that I have studied show us that some Andalusian Màlikì jurists used to practice legal personal reasoning. This is the case of the 11th century jurist Ibn 'Attàb in a legal query related to the matter of building around mosques: he concludes his fatwà by saying that the legal authorities of the school do not provide solutions for the specific case of the Friday mosque, and that what he has given is his personal opinion on the matter (dhàlik ijtihàdì 'alà qawli-him).112 In other cases, jurists used to take their arguments from the original sources of the Islamic Law, a practice which can also be considered as a form of personal legal reasoning. In the same period, for instance, Ibn al-Qa††àn refused the donation made by a Jew in favour of a Córdoban mosque and justified his opinion in a ˙adìth.113 However, Ibn Rushd, the main jurist of his time, at the start of the 12th century, quoted several Qur"ànic verses in a fatwà where he answered a legal question related to private foundations.114 These and other examples let us know that those jurists were more closed to ijtihàd than to taqlìd. Although it is true that jurists from Nasrid times used rather to go back to the Córdoban tradition in their legal reasoning than to the original sources of Islamic Law, very often they were also original in their arguments and tried to accommodate the rules of the institution to the changes of circumstances, as we shall see below.115 Thus, reality generated new situations and possibilities which legal experts had to address continuously; this fact compelled them to practise at least a certain degree of ijtihàd. For example, the Màlikì
111
S.P. Ali-Karamali and F. Dunne, ‘The Ijtihad Controversy’, p. 245. Ibn Sahl, Dìwàn, II, pp. 1214–1215; ed. Khallàf, Wathà"iq fì shu"ùn al-'umràn, pp. 75–77 (trans. V. Lagardère, Histoire et société, p. 263, no 182). 113 Al-Wansharìsì, Mi'yàr, VII, pp. 65 (trans. E. Amar, ‘La pierre’, XIII, pp. 321–323). 114 Kitàb al-fatàwà, ed. al-Talìlì, II, pp. 1120–1130, no 349; ed. al-Tajkànì, II, pp. 986–996, no 270. 115 On this particular issue, see Mª I. Calero, ‘Afectación de las rentas de los habices de las mezquitas en fetuas nazaríes del siglo XV. El caso del poeta-alfaquí al-Bas†ì’, in C. Del Moral (ed.), En el epílogo del Islam andalusí, Granada, 2002, pp. 162–163. 112
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faqìh Ibn Abì Zayd claimed, relying on the opinion of the Umayyad caliph 'Umar b. 'Abd al-'Azìz (99–101 h/717–720), that ‘jurisprudence must innovate as far as men innovate, introducing new transgressions of the law’ (tu˙addith li-l-nàs aq∂iyya bi-maqdar mà a˙dathù min al-fujùr).116 The following text by the Fez legal scholar al-Yàlißùtì (d. 705 h/1305–1306) may help illustrate this point; in it he is consulted on the case of a man who seeing himself in the throes of death gave his house away as alms (ßadaqa). I am not particularly interested in the matter dealt with by the fatwà, so I will omit details. What I really want to stress is the fact that, after having uttered his response, al-Yàlißùtì stated that ‘this is my personal opinion on the matter as I have not relied on any text whatsoever’.117 That is, in as late a period in the Middle Ages as in the 7th/13th century, a faqih issued a fatwà and states that, not being aware of the existence of any jurisprudence on the case, he had relied on his personal judgement when reaching a ruling on the case brought to his attention. A revealing example of the emergence of a new social problematic not encountered in the Islamic legal tradition is what we can call the Mudéjar question. In al-Andalus as well as in Sicily and the Near East, from the moment that Islam began to retreat territorially in the face of Christian military advances, large swathes of Muslim population were trapped in regions ruled by non-Muslims (dàr al-˙arb). From that period onwards, an issue appeared which had not been previously broached since, until the 5th/11th century and in most cases, Islam had been an expanding —not regressing — religion. The problem was what were all Muslims then living in lands ruled by non-Muslim authorities, and who had not been able or wanted to emigrate to the dàr al-islàm, to do. Legal experts from different periods issued several opinions on this controversial question.118 In the case of ˙ubs jurisprudence also plays an important role as a means of adapting the theory of the institution to the needs and conditions of the socio-economic reality. As I devote a chapter to the analysis of this issue, I will now only sketch some of the basic
116
Ibn Abì Zayd, Risàla, pp. 260–261. Al-Wansharìsì, Mi'yàr, VI, p. 171 (trans. E. Amar, ‘La pierre’, XIII, pp. 409–410). 118 A. García Sanjuán, ‘Del dàr al-Islàm al dàr al-˙arb: la cuestion mudéjar y la legalidad islámica’, in Actas del I Congreso de Historia de Carmona, Seville, 1998, pp. 177–187. 117
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elements comprising it. From a theoretical point of view, the ˙ubs has two basic traits, namely a pious aim (qurba) and a perpetual character (ta"bìd), which made it virtually impossible to alter the stipulations laid down by the donor concerning the use and the conditions of usufruct of the property. Both theoretical elements, however, give the institution a rigid character that clashes with the shifting nature of economic circumstances and social needs. That is why questions in which the jurist is faced with the need to change or alter this or that aspect of a particular ˙ubs are frequently found in the corpus of jurisprudence used for this study. In general, legal scholars are in favour of adapting to the circumstances of the moment as long as this brings about some kind of benefit (maßla˙a) to the institution or its beneficiaries. These cases confirm the idea that ‘simple jurisprudential rulings could become legal rules’,119 commonly accepted and widespread, either because they address unprecedented problems, because they represent a general benefit (maßla˙a) for the Muslim community, they are a matter of expediency (∂arùra) or, sometimes, because they lead to the adoption of local customs or usages ('àda, 'urf ). The fact that a legal expert is asked to resolve a particular issue does not mean that the latter is rare, unusual or contrived but, rather, that the person who asks for a fatwà to be issued is someone who does not know the law, at least in this specific point, and therefore resorts to the jurist. In this respect, it is clear that the overwhelming majority of the Andalusian population, made up of peasants, was not familiar with the law, apart from its more general aspects such as the fulfilment of the main cultural duties (prayer, fasting, etc.) or the most basic legal precepts. To this we must add the fact that for a Muslim, in theory, all aspects of life are linked to his faith; this even forces him to establish a direct link between his beliefs and daily activities, and the actions of the faqìh in charge of issuing fatàwà are based on that assumption.120
119 F. Maíllo Salgado, ‘Del Islam residual mudéjar’, in F. Maíllo Salgado (ed.), España. Al-Andalus. Sefarad: síntesis y nuevas perspectivas, Salamanca, 1990, 2nd ed., p. 132. 120 See M. Sulaymàn 'Abdallàh al-Ash˚ar, Al-Futyà, p. 17; J. Schacht, Introduction au droit musulman, p. 66.
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Though the argument presented in the previous pages is valid for most of the fatàwà included in compilations such as al-Wansharìsì’s or Ibn Rushd’s, it is undeniable that they are not all the same as regards their content and the type of information they provide. Thus, some of them contain a higher incidence of theoretical elements. They are fatàwà which, in principle, lack any element that leads us to assume there is a connection with a particular case in real life as when the issue is presented no record, complete or incomplete, of facts indicating an underlying specific event, protagonists and dates, is included; we are dealing, rather, with a question, mostly raised in a general and concise fashion, on a technical issue of a legal nature. A typical example of this type of fatwà is that issued by al-Wansharìsì himself in response to a question addressed to him in 884 h/1479–1480 by a student from Fez in connection with taqlìd and ijtihàd .121 We can also find this type of query concerning pious endowments. Thus, several questions can be found in Ibn Rushd’s compilation in which clarification is sought on several technical aspects of the donation such as the issue of the terminology employed in family donations to refer to children and descendants and their several meanings, a polemical and controversial topic on which Ibn Rushd issued a long fatwà.122 It can be observed in this case that the introduction or exposition of the question is very short and direct, hardly three sentences, another difference vis-à-vis fatàwà that address real cases in which the expository part is sometimes far longer than the response since the individual who asks for the former is forced to describe the facts to the legal expert so that he can have a complete picture of the problem. Similar to that fatwà by Ibn Rushd, both because of its technical-juridical character and the issue tackled, is a long text by the qà∂ì-l-jamà'a of Córdoba Abù 'Abdallàh Mu˙ammad b. 'Alì b. Óamdìn (d. 508 h/1114); in it, the faqìh incorporates a digression on the legality of including the children of the donor’s daughters as beneficiaries of the grandfather’s ta˙bìs.123 On another occasion, Ibn Rushd is asked about the legality of accepting a woman’s testimony
121
Al-Wansharìsì, Mi'yàr, XII, pp. 9–42. Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, I, pp. 1120–1130, no 349; ed. alTajkànì, I, pp. 986–996, no 270. 123 Wansharìsì, Mi'yàr, VII, pp. 399–413. 122
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in the donation of pious endowments,124 a purely technical and legal question in which, as in the prior example, the presentation of the case is reduced simply to the formulation of the question; interestingly, the mustaftì is here another faqìh, Abù 'Abdallah Mu˙ammad b. 'Abdallàh b. Óassùn (d. 519 h/1125–1126) from Málaga. I believe, notwithstanding, that these examples are exceptional as most of the texts consulted and used in this research seem to address specific and real problems, though they are usually presented in a rather depersonalised and out-of-context legal form, deprived of references that might allow us to establish a link with those facts. If we acknowledge the fact, then, that most of the fatàwà are not mere mental constructs, the result of legal experts’ intellectual activity, but, rather, that they reflect, to a certain extent, the reality of a given aspect of the society in which they originate, it is possible then to make use of the data they provide and subject them to quantitative analysis. In order to do that, I have outlined a basic corpus of fatàwà including data that may be considered as essential for the study of the ˙ubs, that is the donated asset, the beneficiary and the type of donation depending on whom is to benefit from it, family or pious endowment. That corpus comprises 227 fatàwà mostly taken from the Mi'yàr (202 fatàwà) and, to a lesser extent, from Ibn Rushd’s (16 fatàwà), al-Sha'bì’s (5 fatàwà) and 'Iyà∂’s (4 fatàwà) compilations. All this material is gathered in several tables including the name of the author of the text, its location and the essential data which I referred to previously (Appendix III). I have not included in this corpus fatàwà which, though having been used in specific sections of this book, do not provide any of the basic data. In some cases they are fatàwà of a theoretical nature in which the issue being raised is technical, usually regarding a particular legal aspect of the donation. In more numerous cases they are fatàwà which, though dealing with a specific aspect of the ˙ubs, do not include the data I indicated above such as purpose of and type of asset donated, etc. That is the case, for instance, of questions about the extension of the main mosques of Ceuta and Murcia125
124 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, I, 231, no 42; al-Tajkànì, I, p. 189, no 37. 125 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, I, pp. 262–269, no 46 and II, pp. 1077–1079, no 324; ed. al-Tajkànì, I, pp. 214–219, no 41 and II, pp. 946–948, no 262.
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where what is at stake is elucidating whether it is lawful to force a shopkeeper whose business is part of a pious endowment to sell it in order to fund the extension works, especially considering its theoretically inalienable character. My aim, when creating this basic corpus, has been to exploit all the available texts in a systematic way, establishing quantitative magnitudes in relation to some basic aspects of this research, such as comparing both types of donation (pious and family), the different types of assets or properties included in donations, etc. I am aware that the value of those data is very relative and questionable as the provenance of the samples cannot be considered representative at all. The fatàwà analysed show a particular social reality with regards to pious endowments in al-Andalus, though we cannot determine to what extent that image is a faithful representation of the historical reality behind them. I am also aware that the lack of more precise and comprehensive information does not make it possible to gain a better understanding. This problem, however, is inherent, to the historian’s work since ‘there is no other historical reality but the one we write about for the past, by definition, does not have a real existence unless we write it or describe it’.126 That is why, though the quantitative conclusions drawn from the study of the corpus must be interpreted with reservations, it is certain that they represent the only data available to us and it is imperative to make the utmost use of them, though the conclusions we reach are not as reliable as we would like them to be. However, as it will become apparent throughout the book, it is satisfactory to verify that, for some aspects, the information that the corpus provides corresponds to that found in the books of a˙bàs, where quantitative data are more abundant. That is doubtless an indication that the information provided by legal texts is quite accurate and constitutes a valuable source of knowledge about Andalusian society. Likewise, that coincidence confirms the hypothesis I have been defending throughout this chapter: that Islamic jurisprudence is not a mental construct without any connection to its background but, on the contrary, it is closely linked to the social reality from where it stems.
126
P. Guichard, La España musulmana, p. 6.
CHAPTER THREE
ORIGINS AND EARLY DEVELOPMENT OF THE INSTITUTION
1. Introduction This study of pious endowments in al-Andalus covers the period between the 9th and 15th centuries, a chronological framework dictated by the fact that most of the available information is from that long period. There are also data from the period of the emirate, that is the 8th–9th centuries, though they are very scant and are mostly found in non-legal sources. In this chapter I will try to analyse those early data on the existence of pious endowments in al-Andalus prior to the caliphate. But first, it seems necessary to set the topic in a more general context and I will resort to two parameters in order to do that. On the one hand, there is the theoretical justification for the existence of this type of property by Islamic ideology through the legal fundaments that sustain it, based on the Qur"àn and, most of all, the prophetic tradition (Sunna). On the other, there is, from a chronological point of view, the highlights in the development of pious endowments during the first three centuries of Islam. 2. Pious endowments during the first centuries of Islam All the available indicators point to the fact that there is no documentary evidence subject to corroboration to confirm that the waqf was a legally consolidated institution; there is no evidence either that the practice was socially widespread. The same fact, however, leads us to assume that the formative process can be traced back in time. The problem is trying to ascertain how the former took shape during that process until giving rise to the reality we are familiar with from the 9th century onwards, and which factors determined its emergence and development. Obviously, it is a very complex question as it is partly linked to the circumstances affecting the very origins of Islamic society, many aspects of which are poorly known.
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Whereas Muslim scholars and textual sources coincide in linking the emergence of the institution to prophetic tradition, with few references to the existence of parallels with similar institutions in other societies, several experts have shown the likely impact foreign influences had on the genesis of the institution. As is usual in these cases, the historiographic debate can be resumed from three main positions: the foreign influence or origin, the inner pre-Islamic Arab roots and, finally, the eclectic position.1 As for the first ones, it has been suggested that the waqf could be the Islamic version of donations piae causae from the Roman and Byzantine periods, the Jewish qodesh and even Persian pat ruvan. The foreign hypothesis has been considered, in chronological order, by J. Schacht, N.J. Coulson and, more recently, M. Gil, among others.2 In 1961, C. Cahen rejected the foreign theory and suggested there were links between the waqf and certain practices of pre-Islamic Arabs, like the institution of the ˙aram.3 The third or eclectic position bases its arguments on both foreign and Arab-Islamic elements. Taking as a starting point the existence of two types of waqf depending on the aim sought by the donor (private and charitable), S. Denoix has put forward a hypothesis based on a ‘double inheritance’: the family one would derive from the preIslamic inheritance characteristic of the Óijàz whereas the charitable or pious would be the result of the influence of Byzantine piae causae and the Jewish qodesh.4 More recently, P.C. Hennigan argues that the waqf ‘is infused with elements of foreign practices’, but it is not, stricto sensu, a ‘borrowed institution’. On these premises, he develops the theory of the ‘unconscious borrowing’: by the middle of the 3rd century, when the Óanafì treatises of al-Khaßßàf and Hilàl
1 The best and more recent revision of this debate can be found in P.C. Hennigan, The Birth of a Legal Institution. The Formation of the Waqf in Third-Century A.H. Óanafì Legal Discourse, Leiden, 2004, pp. 50–70. The more recent study by Y. Lev, Charity, Endowments and Charitable Institutions in Medieval Islam, Gainsville (Florida), 2005, has not been available to me. 2 J. Schacht, ‘Early doctrines on waqf ’, Koprülü Armagani (Mélanges Koprulu), Istanbul, 1953, which I have been unable to consult; N.J. Coulson, A History of Islamic Law, Edinburgh, 1964, p. 28; M. Gil, ‘The Earliest Waqf foundations’, Journal of Near Eastern Studies, 57/2 (1998), 125–140. 3 C. Cahen, ‘Reflexions sur le waqf ancien’, Studia Islamica, 14 (1961), pp. 37–56; R. Peters, ‘Wa˚f ’, E.I.2, XI, p. 60, in whose opinion Cahen’s conclusions ‘seriously weakens the argument of Byzantine influence’. 4 S. Denoix, ‘Formes juridiques, enjeux sociaux et strategies foncieres’, Revue des Mondes Musulmans et de la Méditerranée, no 79–80 (1996), pp. 16 and 20.
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al-Ra"y were written and the Islamic institution was legally codified for the first time, ‘there existed within Islamic society a range of trust-like practices whose foreign roots had long since been severed and were now seen as a continuation of the practices of the Prophet and his Companions’.5 Were we to search for precedents in other societies, contemporaneous or past though established in the same geographic area, they would be easy to find due to the presence of similarities between the three Abrahamic religions, among other things. But to show more or less similar parallels in other societies does not necessarily imply the existence of influences or of a genetic link. If we take into account, moreover, that historians of Islam have sometimes gone too far in their quest for ‘external precedents’ for realities, norms, values, beliefs and institutions, the possibility of an extra- or pre-Islamic origin must be viewed with caution. We must also consider the possibility, however, that though there might be an original connection with other similar institutions, the later development of the waqf turns it into a unique reality, endowed with its own specifically Islamic traits. 2.1. Traditions about the earliest waqf When tackling the problem of when, how and why Islamic pious endowments emerge, we must first take into account that we are dealing with an institution so that, far from trying to find a precise date and a concrete originator, the obvious and the accessible thing from a methodological perspective is to try to narrow this process down to the phase or period when that institution began to take shape, as well as the respective social context. However, being Islamic institutions, this proves rather difficult as sources systematically tend to attribute their origins to Mu˙ammad, doubtless as a way of legitimising realities created a posteriori; this makes any attempt to shed light on the issue even more daunting. Although it is possible that, during the ten years he ruled the first umma (1–10 h/622–632), Mu˙ammad could have established some of the foundations upon which the institutions typical of Islamic society later emerged, it is of course puerile to attribute to him—without further evidence—the
5
P.C. Hennigan, The Birth of a Legal Institution, pp. 52 and 66–70.
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genesis of all of them. A different matter is that, later on, as a way to legitimise them, jurists resorted to his demeanour, his attitudes or sayings, the ˙adìths, in order to justify the existence of this or that practice or institution.6 Although, as we shall see further on, fuqahà" justify the existence of pious endowments by invoking the Qur"àn, the exact origin of the institution is, however, linked to the Sunna. The six main compilers of ˙adìth record the tradition reporting what is regarded as the first pious donations carried out, at the behest of Mu˙ammad, by 'Umar b. al-Kha††àb after the conquest of the oasis of Khaybar in mu˙arram 7 h (May 628), consisting of a field of palm trees known as Thamgh. When 'Umar asked the Prophet what he could do with that property, the answer was as follows: ‘if you want, sequester its principal and give (the yields) away as alms’ (in shi"ta ˙abbasta aßlahà wa-taßaddaqta bi-hà).7 Apart from this one, al-Khaßßàf records other versions of this tradition, the first of which differs only very slightly from the previous (in shi"ta ˙abbasta aßla-hà wa-taßaddaqta bi-thamaratihà); the second, however, is somewhat different (a˙bis aßla-hu wasabbil thamarata-hu),8 including the imperative sabbil as opposed to the past tense taßaddaqta. In spite of the afore-noted unanimity of views on 'Umar’s tradition, the existence, however, of another ˙adìth on the issue must be highlighted; according to it, the earliest waqf would have consisted of seven orchards (˙awà"i†) which the Jew Mukhayrìq, slain at the battle of U˙ud on 6 Shawwàl 3 h (22/3/625), left Mu˙ammad in inheritance. The Prophet subsequently donated them as alms (ßadaqa).9 According to al-Khaßßàf, traditionists are not agreed when it comes to deciding which of the two ˙adìths must take precedence.10 The 6 See M. Fierro, ‘El derecho màlikì en al-Andalus: siglos II/VIII–V/XI’, AlQan†ara, XII/1 (1991), p. 127. 7 Al-Bukhàrì, Ía˙ì˙, no 2532 and 2565; Muslim, Ía˙ì˙, no 3085; al-Tirmidhì, Sunan, no 1296; al-Nasà"ì, Sunan, no 3542, 3543 and 3544; Abù Dàwud, Sunan, no 2493 and Ibn Màjah, Sunan, no 2387; al-Bukhàrì, Ía˙ì˙, ed. M. 'Alì al-Qu†b and H. al-Bukhàrì, section LV (wills), chapters 22 (no 2764), 28 (no 2772) and 29 (no 2773) (trans. O. Houdas and W. Marçais, II, pp. 272–273, 275–276). I quote here the translation of P.C. Hennigan, The Birth of a Legal Institution, p. 110. See a complete version of the ˙adìth in R. Peters, ‘Wa˚f ’, E.I.2, XI, p. 59. 8 Al-Khaßßàf, A˙kàm al-awqàf, pp. 5 and 5–6. 9 Al-Khaßßàf, A˙kàm al-awqàf, pp. 1–2. 10 Al-Khaßßàf, A˙kàm al-awqàf, pp. 4–5. M. Gil, ‘The Earliest’, 126 and 135–140, consider that the earliest Islamic foundations were made with properties taken from the Jews and then ‘the usual notion that the first waqf was the one created in Khaybar cannot be correct’.
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truth is, however, that 'Umar’s donation ended up being regarded as the earliest waqf as it was recorded in the aforementioned six ‘canonical’ compilations of traditions. Regardless of this fact, it is important to stress the contents of the ˙adìth in relation to the later development of the institution, an aspect in which two elements stand out: a) With regard to the concept of ownership, the expression a˙bis/ ˙abbasta suggests the idea of immobilising an asset, that is making it inalienable: a˙bis is the imperative of the verbal form IV of the root ˙bs and ˙abbasta is the second person, masculine singular, of the past tense of the same root whose meaning is that of ‘retain’ or ‘hold’. From that root the maßdar ˙ubs (pl. a˙bàs) is derived which will eventually become the most common term used to designate pious endowments in the Western Islamic world, as opposed to the term waqf (pl. awqàf ) which is widespread in the East. The distinction, moreover, between the asset itself (aßl) and the fruits (thamara) or revenues generated by it is implicit here; this is another of the characteristic traits of an asset turned into a ˙ubs vis-à-vis the legal concept of ownership. b) The second element is the presence of an aim to which 'Umar must devote the fruits of the land. With regard to this, the analysis must focus on the expression taßaddaqta bi-hà or, in the other version, sabbil thamarata-hu. As I will analyse the issue of the aim in the following section, however, I will not dwell on this aspect here. 2.2. The Qur "ànic justification: the ßadaqa In spite of the fact that the roots ˙bs and wqf are both found in the Qur"àn,11 pious endowments are not a Qur"ànic institution in the sense that they lack direct justification in the Islamic sacred text. As we have seen, Islamic jurists trace its origin back to the prophetic tradition. Those jurists, however, strove to provide the institution with a Qur"ànic association by playing up its connections with several concepts employed in that text, especially those of ‘alms’ (ßadaqa), an action undertaken ‘for the cause of God’ ( fì sabìl Allàh), ‘pious
11
V, 106 and XI, 8 (˙bs); VI, 27 and 30, XXXIV, 31 and XXXVII, 24 (wqf ).
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deed’ (qurba) and ‘divine reward’ (thawàb); the first two are probably the most important. The concept of ßadaqa appears thirteen times in the Qur"àn and, as C. Cahen notes, it originally designated any type of charitable deed or alms-giving.12 In this sense, it is enormously flexible and is linked both to legal alms (zakà) and, generally, to any idea or notion of charity. Jurists used this to attribute a Qur"ànic origin to an institution which does not originally appear postulated in the Islamic sacred text. In accordance with this interpretation, the link established between waqf and ßadaqa is the result of legal scholars’ efforts to find a Qur"ànic reference or justification for all Islamic institutions in the same way, for instance, that the stewardship of the public market (sùq) was ‘islamicised’ by relating it to the Qur"ànic precept of ‘command good actions and forbid wrongdoing’.13 The waqf is thus justified as a peculiar type of alms-giving (ßadaqa), mainly characterised by its perpetual nature and the inalienability of the asset given away in donation. This genetic link between both concepts is recorded in al-Khaßßàf ’s treatise; ßadaqa and waqf are used interchangeably to refer both to the donation of Mu˙ammad himself and to 'Umar’s further indicating that certain traditions attribute the earliest waqf, in the guise of a ßadaqa, to the Prophet. Al-Khaßßàf also defines the waqf on one occasion as ‘immobilised alms’ (ßadaqa mawqùfa),14 thus showing, on the one hand, the link between both concepts and, on the other, the fact that ßadaqa and waqf already constitute two different types of alms during his lifetime. Of the ßadaqa, he states that the donor surrenders his ownership over the property and transfers it to the beneficiary whereas the waqf ceases to be the donor’s property and is then not owned by anyone. He also notes that the waqf can neither be owned by the donor nor by his heirs for it is only licit provided that it does not return to the latter as an heirloom, but it is unlawful if treated as an inheritance.15
12
‘Reflexions sur le waqf ancien’, p. 45. P. Chalmeta, El señor del zoco en España, Madrid, 1973, pp. 248, 288, 346–347, 629 and 635. 14 Al-Khaßßàf, A˙kàm al-awqàf, p. 30. R. Peters, ‘Wa˚f ’, E.I.2, XI, p. 59 considers this expression as representative of the, at least, four legal institutions existing in the 2nd and early 3rd century subsumed later under the heading of waqf. Andalusian legal sources from the 3rd century contain the equivalent expression ßadaqa mu˙arrama mu˙abbasa, see Ibn Óabìb, Kitàb al-wà∂i˙a, 65 (Arabic) and 77 (trans.). 15 Al-Khaßßàf, A˙kàm al-awqàf, pp. 19–20 and 22. 13
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Regarding the purpose of both donations, he believes that the concept of ßadaqa is well known among people and its use does not require further elaboration as it refers to alms handed out in favour of the poor. On the contrary, the waqf can be made in favour of the poor or the well-off, of specific or unknown individuals, which is why a particular aim must be specified (al-waqf ya˙tàj ilà tafsìr watabyìn wajhi-hi ).16 In spite of that differentiation between waqf and ßadaqa, the relationship between both concepts became established and ‘petrified’ so that, for instance, a late author like Abù Bakr Mas'ùd al-Kasanì (d. 587 h/1189) defines the waqf as ‘alms in perpetuity in God’s name’ (ßadaqa jàriya fì sabìl Allàh).17 This definition is very revealing as it combines the two Qur"ànic concepts (ßadaqa and sabìl Allàh) which jurists use to justify their existence and link it to Islamic ideology. Similarly, that relationship is manifest in some Andalusian notarial treatises that use the formula ‘document of ˙ubs [set up as alms-giving] in perpetuity’ (kitàb ˙ubs ßaqaqa mu"abbada) as a heading for the deeds drawn up for this type of donations.18 2.3. The development of the institution in the 3rd/9th century Apart from the data provided by prophetic tradition and the Qur"ànic justification for pious endowments, historical analysis proves that such an institution only appears as a fully-fledged reality and codified in written form from the 3rd/9th century onwards. This fact must be understood as a reflection of the development of a social practice. That legal consolidation must in turn be placed in relation to two processes inextricably linked to the characteristics of the waqf and that take place during the first centuries of the hijra: social Islamisation and the systematisation of Islamic law ( fiqh).
16
Al-Khaßßàf, A˙kàm al-awqàf, pp. 30–31. Apud M. Hoexter, ‘Óuqùq Allàh and ˙uqùq al-'ibad as reflected in the Waqf institution’, Jerusalem Studies in Arabic and Islam, 19 (1995), p. 137. There is a ˙adìth which records the idea of the ‘alms to perpetuity’ (ßadaqa jàriya), apud M. Mu˙ammad Amìn, al-Awqàf wa-l-˙ayà al-ijtimà'iyya, pp. 15–16; see A.J. Wensinck, Concordance et indices de la tradition musulmane, III, p. 285. 18 Ibn al-'A††àr, Kitàb al-wathà"iq, ed. by P. Chalmeta and F. Corriente, pp. 171 and 177 (trans. P. Chalmeta and M. Marugan, p. 386 and 391); al-Jazìrì, al-Maqßad, p. 284. 17
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A basic consideration, one worth stressing here, must be made from the outset. The waqf is an institution that responds to the logic of the Islamic concept of society. This does not necessarily imply that vast numbers of Muslims were required for the institution to operate. In fact, as we shall see in the case of al-Andalus (see infra), there is widespread evidence of its existence during the emirate, that is before most of the population of al-Andalus became Muslim. The social diffusion of the institution could only take place, however, alongside Islamisation, that is the conversion of significant groups of people to Islam, because, although the fiqh allows donations by nonMuslims, it does not seem reasonable to assume that an Islamic institution became so widespread prior to the conversion of a high percentage of individuals. In this respect, the conclusions drawn by R.W. Bulliet indicate that it was only from the 3rd/9th century that most of the populations of Iran, Irak, Syria and Egypt converted to Islam.19 As for the development of Islamic law, the rise of the 'Abbàsids in 132 h/750 heralded a new phase. The 'Abbàsid caliphate placed itself under the symbol of the quest for a system of organisation more suitable to the requirements of Islam than the Umayyads. One of the means to achieve that adaptation, perhaps the main one, was the articulation of the fiqh which, in J. Schacht’s view, had already acquired its main traits by then.20 It is not possible to speak at that time, though, of the existence of madhàhib in the sense of ‘personal’ schools of law, associated with a master’s opinion as the latter only appeared from the mid-3rd/9th century. It was, in fact, in the 2nd/8th century that al-Awzà"ì (d. 158 h/774), Abù Óanìfa (d. 150 h/767) and Màlik b. Anas (d. 175 h/795) carried out their work, whilst al-Shàfi'ì (d. 204 h/820) and Ibn Óanbal (d. 241 h/855) are even from a slightly later period. Thus, the chronology of the process of formulation of the fiqh itself makes it possible to set boundaries to the configuration of an institution whose structure and final content doubtless owe a great deal to the work of 'ulamà" and legal scholars.
19 20
R.W. Bulliet, Conversion to Islam in the Medieval Period, Cambridge, 1979. J. Schacht, Introduction au droit musulman, p. 49.
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Taking into consideration both starting points, the chronological highlights shown by documentation are easy to discern and, as I have remarked, the 3rd/9th century is the turning point. The oldest testimonies available to us on this institution date from that period; they are of varying origin and character: legal texts, epigraphy and the earliest donation deed (waqfiyya). From the legal point of view, the existence of the two first manuals or codes of jurisprudence regarding pious endowments indicates that the degree of development achieved by those assets at the time must have been important enough to convince some there was a need for the former. Undoubtedly, the work that best reflects the legal articulation of the waqf in the 3rd/9th century is the treatise by the Óanafì al-Khaßßàf who, in the first chapter, repeatedly draws attention to three aspects destined to become essential and inherent characteristics of the institution, thus showing the degree of legal maturity the latter reached during that period: a. Ownership of the asset. The donor must give up any claims of ownership over the donated asset which ultimately becomes nobody’s property.21 He defines a waqf as ‘the eternal and [given in] perpetuity, which does not belong to anyone and does not revert to the ownership of the donor nor of his heirs’. On the issue of who is entitled to the ownership of a piece of land whose rents are donated in perpetuity by its owner in his will for the benefit of the indigent (masàkìn), al-Khaßßàf stresses that that piece of land belongs to no one and its rents must always be given to the destitute.22 b. Perpetual character (mu"abbad ). The donation must serve a purpose in perpetuity: ‘the waqf is that which is permanent and perpetual, that which does not belong to anyone and does not come back to the ownership of the donor nor of his heirs. The a˙bàs (wuqùf ) of the companions of God’s Messenger (aß˙àb) were permanent and in perpetuity’. To underline the character of perpetuity, he claims that Mu˙ammad’s companions used the following
21 For the disagreements among the legal madhàhib about the ownership of the waqf see R. Peters, ‘Wa˚f ’, E.I.2, XI, p. 62. On the Islamic concept of ownership see L. Gardet, ‘La propriété en Islam’, Ibla (1947), pp. 109–134, in particular 124–128, dealing with the waqf property. 22 Al-Khaßßàf, A˙kam al-awqàf, pp. 19 and 20.
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formula when making their donations: ‘in perpetuity, till God inherits it, He who will inherit the heavens, the earth and its inhabitants, for He is the best heir’.23 c. Charitable purpose. The perpetual character is ensured and guaranteed by the presence of a charitable purpose when making the donation; it is expressed by means of the Qur"ànic concept of qurba (IX, 99), either from the outset or later on, in the case of private or family donations (see infra). Thus, al-Khaßßàf ’s treatise represents the earliest testimony of the existence of the waqf as a fully-fledged institution from the legal point of view; this evinces, on the one hand, the existence of an important social practice and, on the other, it encourages that practice itself by creating a legal instrument which enables the resolution of the most awkward cases. As for the Màlikìs, Màlik b. Anas’s Muwa††a", the only extant work by the founder of the school, does not contain any chapters on the waqf. However, the Mudawwana, a pivotal work for the development of western Màlikism which consists of a number of questions addressed by Sa˙nùn (160–240 h/777–854) to Ibn al-Qàsim on Màlik’s views on specific issues, does contain a chapter divided into fifteen sections on ˙ubs;24 this is one of the earliest testimonies of their existence in the western Islamic world. It is also in the 3rd/9th century then that the institution is codified within the Màlikì madhhab. In this sense, it is necessary to stress the influence exerted by Sa˙nùn and his Mudawwana on the introduction of the latter in al-Andalus, reflected in the number of disciples who studied with him in Qayrawàn. The first model of waqfiyya or notarial deed of donation is found in al-Shàfi'ì’s Kitàb al-umm.25 However, it is in the earliest Arab documents, the papyri, that the first direct evidence of a donation is found. Dating from the mid-3rd/9th century, it is part of the collection of texts from the Egyptian oasis of El Fayum which, as its publisher points out, is not only the earliest testimony of private archives in Islam, but is also the earliest commercial archive from
23 Al-Khaßßàf, A˙kam al-awqàf, pp. 19 and 20. The last sentence is common in Andalusian notarial treatises and is used to stress the perpetual and eternal character of donations and derives from the combination of two Qur"ànic verses (XIX, 40 and XXI, 89). 24 Sa˙nùn, al-Mudawwana, XV, pp. 98–111. 25 Apud M. Mu˙ammad Amìn, al-Awqàf wa-l-˙ayà al-ijtimà'iyya, pp. 376–384.
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the Middle Ages. The papyrus includes a donation of private or family waqf, specifically a house, made by three children of A˙mad b. 'Abd al-Mu"min (Abù Óurayra Ja'far, Abù 'Adì Thàbit and their sister Raysan) for their own benefit; this constitutes the first attested waqfiyya document.26 The first testimonies of a practice destined to achieve an enormous success, namely the donations of copies of the Qur"àn, also date from the mid-3rd/9th century. The first case involves the earliest known Qur"àn that the governor Amajur (256/264 h/877–878) donated as waqf in favour of the mosque of Damascus and whose pages were dispersed throughout the world for reasons and in a period that remain unknown. Further, three copies of the Qur"àn now kept at the National Library of Egypt were donated as ˙ubs in 267 h/880, 268 h/881–882 and 270 h/883–884.27 Epigraphic evidence does not supply any information on the existence of donations until the beginning of the 4th/10th century. In 1994 a marble tombstone was found in Ramallah (West Bank) bearing the following inscription with nine sentences dating from circa 300 h (912–913):28 This field (˙aql ), next to a well known as al-Óiyar al-Barraniyya, comprising all its rights and the well found on it, were donated as a waqf by Abù Bakr Mu˙ammad b. 'Alì al-Madharà"ì, God bless his soul, in favour of this water cistern (misqà) and the [reservoir] (˙aw∂ ) annexed to it, in accordance with the clauses stipulated by Mu˙ammad b. 'Ali in his donation deed, until God inherits the earth and those who dwell on it, for He is the best heir.
As M. Sharon shows, this epigraphic inscription is similar to that found in 1966 in Ramla and dating from 301 h (913–914) in which Fà"iq al-Khàdim, a former slave freed by the caliph al-Mu'tamid 'alà Allàh (256–279 h/870–892), donated a hostel ( funduq) as waqf.29
26 Y. Ragib, Marchands d’etoffes du Fayyoum au IIIe/IXe siècle d’àpres leurs archives (actes et lettres): Les actes des Banu Abd al-Mu"min, Cairo, 1982, pp. 36–45. 27 Y. Ragib, ‘Les plus anciens papirus arabes’, pp. 4–5. 28 M. Sharon, ‘Waqf inscription from Ramla c. 300/912–13’, Bulletin of the School of Oriental and African Studies, 60/1 (1997), pp. 98–107. 29 M. Sharon, ‘A Waqf inscription from Ramlah’, Arabica, XIII (1966), pp. 77–84. Published and translated again in the article quoted in the note above.
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2.4. State intervention and the role of the qà∂ì State intervention in the management of pious endowments during the early period of Islam is another element that helps us to gauge the spread of the institution. According to M. Mu˙ammad Amìn, that interference took place first in Egypt before anywhere else. At first, the usufruct of the awqàf had been under the control of the beneficiaries or the administrator, provided that the donor had so stipulated in the clauses of his donation. The situation changed, however, when the management of such assets was assigned to a special department (dìwàn) at the behest of the judge Tawba b. Namir al-Óa∂ramì in 118 h/737, under the rule of the Umayyad caliph Hishàm b. 'Abd al-Malik (724–743), according to the information provided by al-Kindì (d. 350 h/961) in his Kitàb al-wulà wa-l-qu∂à.30 The management of these properties was then put in the hands of the qà∂ì at a certain time, a fact that explains why manuals such as al-Khaßßàf ’s were written by judges. A question comes to mind concerning this topic: why was the qà∂ì given authority over pious endowments and no separate office (khu††a) in charge of dealing with this function created? In principle, we can assume that the explanation for this fact resides in the evolution of the institution of the judicature itself. Following Ibn Khaldùn’s reasoning, the qà∂ì’s competences can be of two types, the original and the additional. In the period of the Rightly-guided caliphs, his main task was simply to settle disputes between individuals. As we know, however, the judicature is the result of a delegation of functions on the part of the political authorities, so that as caliphs and kings focussed their efforts on matters of high politics they delegated functions to the qà∂ì, whose range of action gradually widened. Control of the awqàf was one of those additional functions assigned to him.31 Al-Màwardì also refers to the attributions of the qà∂ì in relation to pious endowments, stating that his competences comprise safeguarding the property and ensuring that it prospers and making sure that the profit it generates is employed in accordance with the aims
30 Apud E. Tyan, Histoire de l’organisation judiciaire, p. 380; H. Rabie, ‘Some financial aspects of the waqf system in Medieval Egypt’, Al-Majalla al-Ta"rìkhiyya al-Mißriyya, 18 (1971), p. 8; M. Mu˙ammad Amìn, al-Awqàf wa-l-˙ayà al-ijtimà'iyya, p. 48; N.J. Coulson, A History of Islamic Law, p. 33. 31 Ibn Khaldùn, al-Muqaddima, III–31, pp. 244–245 (trans. F. Rosenthal, p. 174; trans. V. Monteil, I, 440).
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stipulated. Likewise, he must respect the existence of the administrator appointed by the donor and if there was none, take upon himself the management of that property.32 As M. Hoexter remarks,33 however, the competences that al-Màwardì confers on the qà∂ì vis-à-vis the awqàf are less clearly defined than those bestowed upon the officer in charge of appeals (wilàyat al-maΩàlim). In the chapter devoted to that office al-Mawàrdì34 indicates that one of the ten duties of its holder is to supervise these assets (mushàrafat al-wuqùf ), a task that he must perform differently depending on what category (∂arbàn) is at stake, distinguishing between public ('àmma) and private (khàßßa). With regard to the public ones, he points out that his role is to perform his official duties, subjecting them to scrutiny (tasaffu˙), although no grievances (mutaΩallam) have been raised concerning them and checking that they are used for the purpose for which they were donated, thus respecting the clauses drawn up by the donor. He states that they can gain knowledge about their status in three ways: by perusing the magistrates’ archives (dawàwìn al-˙ukkàm), whose mission it is to preserve legal rulings (˙iràsat al-a˙kàm), consulting the state archives (dawàwìn al-sul†ana), or by resorting to ancient works. As for the private ones, the holder of the court of appeals (wilàyat al-maΩàlim) must only intervene if requested to do so by one of the parties, that is when complaints are voiced by some of the beneficiaries as a result of a feud. That the official in charge of the court of appeal is charged with the task of safeguarding pious endowments can perhaps be explained by the fact that this duty was sometimes performed by the qà∂ì himself, already from the early 9th century as Ibn Khaldùn shows.35
3. The beginnings of pious endowments in al-Andalus The earliest references trace the appearance of the first ˙ubs in alAndalus back to the 8th century, though these references are rather unreliable and cannot be considered as definitive. The chronology
32
Al-Màwardì, al-A˙kàm al-sul†àniyya, p. 90 (trans. E. Fagnan, p. 144). Idem. 34 Al-Màwardì, al-A˙kàm al-sul†àniyya, pp. 103–104 (trans. E. Fagnan, pp. 170–171). 35 Ibn Khaldùn, al-Muqaddima, III–31, p. 245 (trans. F. Rosenthal, p. 174; trans V. Monteil, I, 440). 33
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of the development of pious endowments corresponds then with what we know regarding the Near East; there are only reliable and variegated testimonies on their modus operandi from the 9th century onwards; they deal with three basic aspects: the purpose of donations, their management by the qà∂ì and his assistant, and the development of a jurisprudential casuistry. Although some scholars have supported the influence of the Roman-Byzantine piae causae on Islamic pious endowments between the 7th–8th centuries (see supra), in the specific case of al-Andalus there is no trace of any continuity between Roman-Visigothic institutions and the Islamic institution of pious endowments. Before commencing to analyse the available data, it is necessary to recall what has already been pointed out à propos the Near East, namely the great time gap separating textual sources (always dating from the 10th century onwards) from the subject matter and the scarcity of data regarding the issue in the period prior to the caliphate.36 Under these conditions, the early development of a˙bàs during the first stages of the history of al-Andalus presents numerous gaps and raises many doubts that cannot be elucidated due to the lack of sufficient information. In principle, the factor of Islamisation must be taken into account, although we lack a thorough study on the development of this process in al-Andalus. If we admit that it was only from the mid-10th century that most of the population was Muslim,37 it is obvious that prior to that period the practice of ta˙bìs
36 Though not as much as suggested by I. al-Qàdirì Bùtshìsh, ‘Milkiyyat al-ar∂ fì-l-Andalus khilàl 'aßr al-Imàra’, Al-Manàhil, 37 (1989), pp. 177–179. 37 In 1979, R.W. Bulliet, Conversion, pp. 124, suggested the year 350 h/961 as the ‘midpoint of Spanish conversion’, though some scholars have shown the need to qualify this statement ever since. According to P. Chalmeta, review published in Hispania, LVII/3 (1997), p. 1143, that hypothesis should be reviewed; he does not clarify, however, in what respect. More resolutely, M. Fierro, ‘Árabes, bereberes, muladíes y mawàlì. Algunas reflexiones sobre los datos de los diccionarios biográficos andalusíes’, in M. Marín and H. de Felipe, EOBA VII, Madrid, 1995, p. 49, note 39, believes that the results deriving from Bulliet’s study ‘must not be accepted until it can be discerned what database he used for the Andalusian case, more specifically, what names convinced him that he was dealing with converts’. A similar view appears in M. Penelas, ‘Some remarks on Conversion to Islam in al-Andalus’, AlQan†ara, XXIII/1 (2002), 193–200; Other authors stress the fact that the process of Islamisation was more swift, among them M. Barceló, ‘Un estudio’, pp. 107–108; M. de Epalza, ‘La islamización de al-Andalus: mozarabes y neo-mozarabes’, Revista del Instituto Egipcio de Estudios Islámicos, XXIII (1985–1986), p. 172; P. Guichard, ‘Otra vez sobre un viejo problema: orientalismo y occidentalismo en la civilización de la España musulmana’, En torno al 750 aniversario. Antecedentes y consecuencias de la conquista de Valencia, Valencia, 1989, I, p. 86.
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could not have been widespread, at least socially. This contrasts with the greater availability and abundance of testimonies from the early 10th century. Only two documentary references that trace the existence of pious endowments in al-Andalus back to the 8th century are available; both are not reliable as they are likely to be a rehashing of earlier texts. According to M. 'Abd al-Wahhàb Khallàf, based on the Ri˙la of the Moroccan ambassador al-Ghàssanì (17th century), the first donation would have been made by the wàlì al-Sam˙ b. Màlik alKhawlànì (99–112 h/719–730) at the behest of the Umayyad caliph 'Umar b. 'Abd al-'Azìz from Damascus; it consisted of a graveyard for the Muslims of Córdoba, specifically on the esplanade (ba†˙à") known as the ‘suburb’ (raba∂ ).38 However, none of the three Arabic chronicles that record this event refer to the fact that that graveyard was connected to the institution of pious endowments.39 We might be dealing with an extrapolation based on the identification of waqf with public properties: according to Màlikìs, certain properties of public use like cemeteries, bridges, walls, pathways, mosques, etc. had the same legal status as pious endowments and were understood to be inalienable assets belonging to the community of the faithful. The second passage that mentions the existence of pious endowments in al-Andalus during the 8th century is found in a late anonymous text, the Dhikr bilàd al-Andalus, from which the vizier al-Ghassànì must have borrowed it. It is set against the backdrop of the beginning of works to build the congregational mosque of Córdoba at the behest of 'Abd al-Ra˙màn I (138–172 h/756–788)40 who in 169 h/ 785–786 bought the site (maw∂i' ) of the Christian church of Saint Vincent from the Christians for 100,000 dinars and, in 170 h/786–787, laid the foundations and began the construction of the mosque whose cost amounted then to 200,000 dinars, monies that he had borrowed from ‘the sums generated by pious endowments’ (màl al-a˙bàs).41 This 38 M. 'Abd al-Wahhàb Khallàf, Ta"rìkh al-qa∂à" fì-l-Andalus, p. 584 and ‘Khu††at al-a˙bàs fì-l-Andalus’, pp. 200 and 346; al-Ghassànì, Ri˙lat al-wazìr, p. 108 (trans.) and 116 (Arabic). 39 Fat˙ al-Andalus, p. 46 (trans. M. Penelas, p. 36); Ibn al-Qù†iyya, Ta"rìkh iftità˙ al-Andalus, p. 38; Ibn 'Idhàrì, al-Bayàn al-mughrib (II), p. 26. 40 Also in Egypt the earliest waqf is associated with the erection of the first mosque, that of 'Amr b. al-'Àß, whose site was donated as ßadaqa in 21 h/641 by Qaysaba b. Kulthùm al-Tujìbì, according to Ibn Duqmaq, al-Maqrizì and al-Suyù†ì, apud M. Mu˙ammad Amìn, al-Awqàf wa-l-˙ayà al-ijtimà'iyya, pp. 33–34. 41 Dhikr, I, p. 115 and II, p. 123; al-Ghassànì, Ri˙la, p. 22 (trans.) and p. 19 (Arabic text).
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reference to the use of funds derived from the a˙bàs (which?) to start building Córdoba’s mosque is not , however, found in any of the Arabic sources which recount this episode. That is the case with al'Udhrì (11th century), although his account is incomplete, and the anonymous chronicle Fat˙ al-Andalus (11th–12th centuries) shows that the emir spent 100,000 gold dinars (80,000, according to others) for this construction but does not indicate their provenance.42 It is the same in the case of the Maghribi Ibn 'Idhàrì.43 The chronicler Ibn al-Athìr also alludes to this event but he is quite laconic about it.44 Perhaps it is not legitimate to cast doubts on the verisimilitude of this passage from the Dhikr just because it is not corroborated by other texts, even though the latter are more reliable. For all these reasons I think that it is justified to be cautious when dealing with this information. There is one more piece of information dated in the middle of the 8th century which has been viewed as related to the practice of pious endowments. It deals with the qà∂ì 'Abd al-Ra˙màn b. ˇarìf al-Ya˙ßubì (d. 138 h/755), who reportedly donated to Umm al'Abbàs and Umm al-Aßbagh, sisters of the emir 'Abd al-Ra˙màn I, a certain amount of money (màl): the document (ßàkk), which was read by the qà∂ì A˙mad b. Mu˙ammad b. Ziyàd to Mu˙ammad b. 'Abd al-Malik b. Ayman, stipulated that, as the deceased was the mawlà of the two sisters, then they have to inherit from him (wajaba la-humà mìràthu-hu).45 Although some are of the opinion that this is a case of pious endowment,46 it seems to me to be rather a matter of inheritance. These are the only three references that might indicate the existence of pious endowments in al-Andalus during the 8th century and none of them seems reliable enough. Thus, it is from the 9th century that more abundant, multifaceted and contrasting information can be found that describes the development of this institution in al-Andalus thoroughly. The two references cited above deal with the
42
Al-'Udhrì, Tarßì', p. 123; Fat˙ al-Andalus, p. 107 (trans. M. Penelas, 93–94). Ibn 'Idhàrì, al-Bayàn al-mughrib (II), pp. 58 and 229. 44 Ibn al-Athìr, al-Kàmil fi-l-ta"rìkh, VI, p. 109. 45 Al-Khushanì, Qu∂àt Qur†uba, p. 40 (trans. J. Ribera, p. 82), who in this case takes the forms waqqafa and tawqìf, while, as we shall see, in all his other references to pious endowments he always uses the form a˙bàs. 46 A. Mª Carballeira, Legados píos, p. 217. 43
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town of Córdoba; the same is the case with those from the 9th century. Obviously, that does not imply that pious endowments were confined to that town since the sources for that period devote their attention mostly to the events taking place at the capital; we could fall into the trap of forcibly manipulating the information available to us due to the Córdoban bias pervading Arabic sources. The information available on a˙bàs during this first phase of their existence can be classified in three groups. The first consists of testimonies on donations carried out for several purposes; the second deals with the management of a˙bàs by the qà∂ì and his assistant, and the third focuses on the development of jurisprudential literature regarding the different aspects of the institution. Among the first donations of pious endowments the ones involving the foundation of mosques are predominant. Alongside this aim, there are also noticeable assets devoted to two other purposes: namely, to assist the poor and students. Among the earliest references are the donations made by 'Ajab and Mut'a, two of the favourite concubines of the emir al-Óakam I (180–206 h/796–822):47 Among his preferred concubines, whose worthy actions have been recorded alongside his and his successors’ memorable deeds, are 'Ajab, mother of this son Abù 'Abd al-Malik Marwàn, who gave her name to 'Ajab’s mosque in Córdoba’s western suburbs and the munya48 of the same name located on the banks of the river, donated by her to the infirm as a pious endowment, and Mu'ta, mother of his son Abù 'Uthmàn Sa'ìd, namesake of his brother Sa'ìd al-Khayr, often confused due to the fact that they bore the same name, who gave her name to another mosque, also situated to the west of Córdoba, together with the adjacent graveyard. Both were endowed by her, apart from many other properties donated for pious and charitable aims as she was among the most generous women of the time.
These donations have not been dated but we can argue, nonetheless, that they constitute the earliest available reference to the existence of pious endowments in al-Andalus, together with another we will refer to when studying the role of the qà∂ì. The existence of 'Ajab’s munya and the leprosy that occasioned its endowment is
47
Ibn Óayyàn, al-Muqtabis (II–1), p. 93. The common Arabic meaning of munya is ‘wish’, ‘desire’ and also ‘object of desire’. In the Andalusian Arabic it is used as ‘orchard’ and gives the Spanish word almunia, with this precise meaning. See R. Dozy, Supplément, II, p. 628: ‘vaste jardin’. 48
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confirmed by numerous Arabic sources since a suburb would later emerge in the area where both were located. All this information will be scrutinised in more detail later on when dealing with donations with public goals (see Chapter 6). The first explicitly dated reference involves the emir 'Abd alRa˙màn II, who ordered the erection of large congregational mosques in al-Andalus in 234 h/848–849, according to the anonymous author of the Dhikr. His female slaves tried to compete with him in the building of mosques and the subsequent donation of pious endowments (awqàf ) to sustain the former; this could indicate that the emir’s foundation was accompanied by a donation of assets. The complete text in the Dhikr is as follows:49 In 234 the imàm 'Abd al-Ra˙màn b. al-Óakam ordered the building of large mosques in the rest of al-Andalus; for this reason, pulpits were also built for sermons. His female slaves competed with him in erecting and making mosques available; for this they set up pious endowments. Thus, and to emulate the example of the imàm, the mosques of ˇarùb, Majd, al-Shifà" and Mut"a were erected.
Ibn Sa'ìd al-Maghribì also records this fact and says that 'Abd alRa˙màn II’s female slaves were eager to build mosques and perform charitable deeds (tawalla'a jawàrì-hi bi-binà" al-masàjid wa-fi‘l al-khayr).50 We can compare this passage as well with the references found in other texts about the Córdoban mosques, known, as was common in cases like this, by the name of the founder. Some of them led to the appearance of neighbourhoods or suburbs named after specific mosques.51 Alongside the chronicles, the second group of sources for the first pious donations are the biographical dictionaries, which contain some information about pious endowments made by scholars and religious men from the 9th century. One of these involves the renowned author of several genres 'Abd al-Malik b. Óabìb, though references to him differ from each other. According to late Nasrid Ibn al-
49 Dhikr, I, p. 142 and II, p. 151; al-Ghassànì, Ri˙la, p. 24 (trans.) and p. 20 (Arabic text); see M. Marín, ‘Las mujeres’, p. 112. 50 Ibn Sa'ìd, al-Mughrib, I, p. 45; Ibn al-Abbàr, al-Takmila, ed. M. Alarcón y C.A. González Palencia, p. 398, no 2852. 51 Ibn Bashkuwàl, Íila, I, p. 49, no 92 and p. 174, no 404; see E. García Gómez, ‘Notas sobre la topografía cordobesa en los Anales palatinos de 'Ìsà al-Ràzì’, AlAndalus, XXX (1965), pp. 353–355.
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Kha†ìb, Ibn Óabìb donated the olive grove he owned in Vera in favour of the mosque of Córdoba.52 As he died in 238 h/852–853, this would have been one of the earliest pious endowments documented in al-Andalus alongside another involving the donation of books by another legal expert which I shall deal with afterwards. Several versions of a legal question addressed to him concerning the donation of oil for the benefit of a mosque are also available.53 The third reference deals with Ibn Óabìb’s intervention in relation to a private endowment made by the emir 'Abd al-Ra˙màn II, as we shall see below. We do have other complementary information about donations made during the 9th century by three pious men cited in biographical dictionaries. The Córdoban jurist Hàrùn b. Sàlim (d. 238 h/852–853) gave away his books and entrusted them to an A˙mad b. Khàlid.54 Hàrùn had studied with famous local jurists like 'Ìsà b. Dìnàr and Ya˙yà b. Ya˙yà, as well as with Ashhab b. 'Abd al-'Azìz and Aßbagh b. al-Faraj in the Mashriq, so that it is likely that the books involved were works of jurisprudence recording his masters’ teachings. Qàsim b. Óàmid al-Umawì (d. 254 h/868) did the same with his books.55 Also during that century, 'Abdallah al-'Urshànì al-Asadì (d. 262 h/ 875–876) from Saragossa, described as a very religious and pious man, gave away alms and endowments (kànat la-hu ßadaqàt wa-˙ibasàt), without specifying the final recipient of his donations.56 To sum up, the earliest mentions of pious donations refer almost exclusively to the town of Córdoba and deal with assets devoted to three types of functions: religious (mosques), charitable (the sick) and educational (books). Besides them, there is also evidence of the existence of a˙bàs for the poor of Córdoba at the start of the 10th century as we shall see below. Within those three functions, and the general dearth of data notwithstanding, items linking pious endowments to mosques are dominant. This applies to two of them from
52
Ibn al-Kha†ìb, I˙à†a, III, p. 549. Al-Sha'bì, al-A˙kàm, p. 508, no 1132; al-Wansharìsì, Mi'yàr, VII, pp. 64–65 and IX, p. 399 (trans. V. Lagardère, Histoire et société, pp. 405–406, no 136). 54 Ibn al-Fara∂ì, Ta"rìkh, II, p. 166, no 1530; Ibn Óayyàn, al-Muqtabis (II), p. 221. His other biographers do not record this episode: al-Khushanì, Akhbàr, p. 339; al-Óumaydì, Jadhwat al-muqtabis, p. 341, no 859; al-Îabbì, Bughyat al-multamis, no 1417; 'Iyà∂, Tartìb al-madàrik, V, p. 142. 55 'Iyà∂, Tartìb al-madàrik, IV, p. 466. 56 Al-Khushanì, Akhbàr, 220–221, no 285. 53
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the 8th century, of doubtful reliability, as well as another two from the 9th century like the one involving 'Abd al-Ra˙màn II and his daughters or 'Abd al-Malik b. Óabìb’s donation. This predominance of pious endowments associated with mosques deserves a special comment. Indeed, the foundation and/or extension of mosques has been interpreted as a symptom of the growth of Muslim populations in some towns in recent studies.57 It is also considered as a catalyst for the development of urbanisation observable in al-Andalus through Arabic sources from the early 9th century.58 The creation of pious endowments is linked to both processes, although the extant testimonies are confined to the case of Córdoba. As I have remarked, one of the distinguishing features of pious endowments is the fact that they are controlled by qà∂ìs, first documented in Egypt in 118 h/737 according to al-Kindì (see supra). The precise moment when pious endowments were first entrusted to qà∂ìs in al-Andalus remains unknown; the first references to this issue can be traced back to the 9th century. Although I have devoted a single section to studying the role of the qà∂ì in the administration of these assets (see chapter 7), I will analyse here the earliest documentary evidence on the matter. Chronologically, the first mention of this involves al-Faraj b. Kinàna al-Kinànì, assigned to the army ( jund ) of Palestine and resident in Sidonia (Shadhùna). After his travels to the Mashriq seeking wisdom, where he studied with Ibn al-Qàsim and other scholars, he was appointed as qà∂ì-l-jamà'a by the emir alÓakam I at an unknown date.59 The reference concerning his management of pious endowments is related to the so called rebellion of the suburb (raba∂ ) in Córdoba, when the qà∂ì came out in defence of one of his neighbours who was about to be arrested (he was supposed to have taken part in the riots), but then the chief of the guards (a'wàn) said to him: ‘this is none of your business, go back to your pious endowments (a˙bàs) and your rulings’.60 The allusion 57 See M. Fierro and M. Marín, ‘La islamización de las ciudades andalusíes a través de sus ulemas (s. II/VIII-comienzos del s. IV/X)’ in P. Cressier and M. García-Arenal, Genèse de la ville, pp. 65–97, in particular p. 71. 58 C. Mazzoli-Guintard, ‘L’urbanisation d’al-Andalus au IXe siècle’, in Genèse de la ville, pp. 99–106. 59 Biographies in al-Khushanì, Akhbàr, p. 295, no 398; Ibn al-Fara∂ì, Ta"rìkh, I, p. 391, no 1030; al-Óumaydì, Jadhwat al-muqtabis, p. 309, no 762; al-Îabbì, Bughyat al-multamis, no 1291; 'Iyà∂, Tartìb al-madàrik, IV, pp. 144–145. 60 Al-Khushanì, Qu∂àt Qur†uba, p. 64 (trans. J. Ribera, p. 117); al-Nubàhì, Ta"rìkh qu∂àt al-Andalus, p. 53 (trans. A. Cuellas, 207).
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to this historical event helps us to date the incident, which must have taken place shortly after the rebellion in 202 h/818.61 Apart from the donation of 'Ajab’s munya, this is probably the earliest reference to the existence of a˙bàs in al-Andalus. One case happened in Córdoba during the qà∂ìship of Sulaymàn b. Aswad62 concerning a house located in the neighbourhood (raba∂) of the Jew’s gate, in the felt makers’ alley ( fì-l-durùb al-mansùb ilà-llabbàd). That house was owned by Mu˙ammad b. Zuhayr and, after his death, by his two children 'Abd Allàh and Fà†ima, although they were both abroad, in the Mashriq and in Guadalajara respectively. Witnesses testified all of this to the qà∂ì A˙mad b. Mu˙ammad63 in Rabì' I 276 h ( July 4–August 2, 889) or 296 h (November 28–December 27, 908) and reported to him that, to the best of their knowledge, neither of the two heirs sold their share of the house. The case was presented to the qà∂ì who ordered the house to be seized and included along with the pious endowments (∂amma-hà ilà-l-amwàl al-mu˙abbasa), under the supervision of the aß˙àb a˙bàsi-hi .64 This case show us the qà∂ì’s role as the general manager of public urban goods, his authority to deal with neglected private properties and his competence as administrator of public pious endowments. The first reference to goods donated in favour of the poor, one of the most ‘genuine’ aims of pious endowments, is from the time of the emir 'Abdallàh (275–300 h/888–912), who wanted to appoint Abù-l-Ghimr b. Fahd as qà∂ì of Córdoba. Some courtiers, however, preferred al-Óabìb A˙mad b. Mu˙ammad b. Ziyàd al-Lakhmì, among them the ßà˙ib al-madìna Mu˙ammad b. Umayya and Jidhmìr al'Ajamì. The latter appeared before the emir and, in order to discredit Ibn Fahd, told him that when leaving the palace he had met a group of beggars (masàkìn) who had expressed their grievances to
M. Marín, ‘Inqibà∂ 'an al-sul†àn’, p. 132, dates it to 198 h/813. He was twice appointed as qà∂ì by the emir Mu˙ammad I (238–273 h/852–886), the second time was in the year 263 h/876–877, see al-Khushanì, Qu∂àt Qur†uba, pp. 107 and 122 (trans. J. Ribera, pp. 178 and 200). 63 He must be A˙mad b. Mu˙ammad b. Ziyàd b. 'Abd al-Ra˙màn al-Lakhmì (d. 312 h/924–925), who was twice appointed as Córdoban qà∂ì, first between 238 h/852–853 and 250 h/864–865, and then several times by 'Abd al-Ra˙màn alNàßir until his death in 312 h/924–925, see al-Khushanì, Qu∂àt Qur†uba, pp. 97–101 and 160–162 (trans. J. Ribera, pp. 162–168 and 253–256). See his biographical references in M. Marín, ‘Nómina’, no 175. 64 Ibn Sahl, Dìwàn, II, p. 1083–1084. 61 62
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him claiming that ‘if the emir appointed (Ibn Fahd), the latter would squander our assets because of his zeal and lust, and bring ruin to our pious endowments (a˙bàs)’.65 In the end, the emir resolved to appoint al-Óabìb. There is another important reference concerning pious endowments in favour of the poor in Córdoba during the qà∂ìship of Aslam b. 'Abd al-'Azìz, in the first quarter of 10th century.66 'Iyà∂, one of his biographers, provides us with three relevant items of information about his role. In the first place, the pious endowments increased (kànat al-a˙bàs fì ayyàmi-hi awfar mà kànat), presumably as a side-effect of his personal management or as a natural result of the progressive development of the institution. Secondly, he changed the way the proceeds were distributed among the poor by introducing a regular and fixed biannual system, whereas his predecessor had done it several times during the year. Finally, he was the first qà∂ì who convoked the ulamà" and the 'udùl to be present for that distribution, probably to gain their advice and make the process more transparent, whereas his predecessors used to decide who would benefit by only considering their personal view (li-man ra"ù-hu ahla-hà).67 Already from the 9th century the first mention of a qà∂ì’s deputy specifically in charge of controlling pious endowments occurs. As all the available data refer to Córdoban qà∂ìs’ assistants, the Umayyad capital remains the focus of attention. This reference is another passage found in al-Khushanì’s work, later borrowed by Ibn al-Abbàr. It is in the biography of the qà∂ì Mu'adh b. 'Uthmàn b. 'Uthmàn b. Óassàn b. Yukhàmir b. 'Ubayd b. Mu˙ammad b. Mu˙ammad b. 'Afnàn al-Sha'bànì (d. 234 h/849), who ‘thought well of everyone and entrusted the management of his a˙bàs in Córdoba to a man whom he considered honest; he later changed his opinion of him’.68 From the period prior to the caliphate there are reports of four figures who acted as assistants to the qà∂ì to carry out this function:
65
Al-Khushanì, Qu∂àt Qur†uba, p. 147 (trans. J. Ribera, p. 234). According to al-Khushanì, Qu∂àt Qur†uba, pp. 156, 159 and 162–163 (trans. J. Ribera, pp. 246, 252 and 256–257), he was appointed twice as qà∂ì by 'Abd al-Ra˙màn III, the first time between 300–309 h/913–922, and the second between 312–314 h/924–927. 67 'Iyà∂, Tartìb al-madàrik, V, p. 197. 68 Al-Khushanì, Qu∂àt Qur†uba, p. 86 (trans. J. Ribera, p. 146); Ibn al-Abbàr, Takmila, ed. F. Codera, no 1164, ed. al-Óarràs, II, p. 204, no 557. 66
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Zayd al-Ghàfiqì, a delegate of the qà∂ì A˙mad b. Ziyàd, appointed by the emir Mu˙ammad I;69 Mu˙ammad b. 'Ubayd Allàh b. Hàshim b. Sàbin b. Íumayl b. Bashìr, mawlà of the emir al-Mundhir and administrator of pious endowments (nàΩir fi-l-awqàf ) with the qà∂ì Aslam b. 'Abd al-'Azìz, died in the course of the military campaign against Pamplona (312 h/924–925);70 someone called Abù Ya˙yà acted on behalf of Mu˙ammad b. Salama, qà∂ì under the emir 'Abdallàh;71 and finally Makkì b. Íafwàn b. Sulaymàn b. Salìm from Elvira (d. 308 h/920 or 318 h/930) who, according to three of his biographers (al-Khushanì, Ibn al-Fara∂ì and Ibn al-Kha†ìb), administered his town’s a˙bàs.72 We know very little about these assistants as the biographical dictionaries only mention that they held that office. It is difficult to ascertain what type of assets were actually under their control and what kind of competences had been conferred on them, although I will elaborate further on the figure of the qà∂ì and his assistants in the chapter devoted to the administration of pious endowments. A third aspect which begins to emerge in reports from the 9th century is that of the development of a jurisprudential casuistry on pious endowments, similar to the process already discussed as taking place in the Islamic East. Studies devoted to the introduction of legal doctrines in al-Andalus show that, after a short period following the Islamic conquest in 92 h/711, when al-Awzà"ì’s school spread, Màlikism very quickly became the prevalent madhhab in al-Andalus, from the moment Umayyad rulers gained power in Córdoba in 138 h/756, although jurists of other Sunnì schools of law were also tolerated.73 The earliest Andalusian legal work which includes a 69
Al-Khushanì, Qu∂àt Qur†uba, p. 100 (trans. J. Ribera, p. 168). Ibn al-Fara∂ì, Ta"rìkh, II, p. 35, no 1184. 71 Al-Khushanì, Qu∂à† Qur†uba, p. 140 (trans. J. Ribera, p. 224). 72 Al-Khushanì, Akhbàr, p. 201, no 258; Ibn al-Fara∂ì, Ta"rìkh, II, p. 151, no 1481; al-Óumaydì, Jadhwat al-muqtabis, p. 329, no 821; al-Îabbì, Bughyat al-multamis, no 1368; 'Iyà∂, Tartìb al-madàrik, V, p. 220; Ibn al-Kha†ìb, al-I˙à†a, ed. Shaqqùr, p. 38, no 25, who dates his death to 618 h/1221–1222. 73 See the classical work of M. 'Alì Makkì, Ensayo sobre las aportaciones orientales en la España musulmana y su influencia en la formación de la cultura hispano-árabe, Madrid, 1968, pp. 61–67 and 90–110. In the most recent and complete study on the subject, M. Fierro, ‘La política religiosa de 'Abd al-Ra˙màn III (r. 300/912–350/961)’, Al-Qan†ara, XXV/1 (2004), 119–156, ídem, ‘Proto-Malikis, Malikis and Reformed Malikis in al-Andalus’, in Bearman, P., Peters, R. and Vogel, F.E. (eds.): The Islamic School of Law. Evolution, Devolution and Progress, Cambridge (Mass.), 2005, pp. 57–76, develops new ideas about the preference of the Umayyad Andalusian rulers for Màlik’s school. 70
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section on these assets is probably al-Wà∂i˙a by the aforementioned Ibn Óabìb, who seems to have played a relevant role in introducing Màlikì legal doctrines on pious endowments in al-Andalus. This is revealed in his intervention in a private endowment, the first of this type in al-Andalus, as far as I know. The founder was the fourth Umayyad ruler of Córdoba, 'Abd al-Ra˙màn II al-Awsa† (206–238 h/822–852), who, in the year 222 h/836–837, entrusted some goods (amlàk) placed in certain village (qarya) in favour of the two daughters he had with Umm 'Abdallàh, whose names are not mentioned by our source. The emir decided to establish a sequence of beneficiaries on three levels: first, his two daughters; if they died the waqf should go to another two unspecified daughters; thirdly, and here lies the legal problem, the emir decided to appoint himself as the final beneficiary (marja' ) if he was still alive when the second line of beneficiaries died or, if he was dead, to his male children to the exclusion of his female descendents (ilà waladi-hi dùna jamì ' warathati-hi min nisà"i-hi). The emir appointed two important jurists, Ya˙yà b. Ya˙yà and Mu˙ammad b. Khàlid, to write the document and then he presented it to Ibn Óabìb, who reported to the emir that his endowment was not legal as upon designating himself as beneficiary the goods became private property (ßàra la-hu bi-dhàlik màlan), and they therefore would be transferred to his male children as inheritance (li-anna-hà waßiyya li-wàrith) upon his death. Ibn Ya˙yà and Ibn Khàlid acknowledged their error and recognised that Ibn Óabìb was right ( fa-aqarrà bi-mà qàla wa-qàlà huwa al-˙aqq). Then Ibn Óabìb suggested a solution to the emir, to make his will in a legal way (bi-†arìqat al-ßawàb). The solution was simply to remove the emir as final beneficiary, and instead to designate his male children or anybody else he wanted, regardless of whether he was dead or alive. The emir accepted Ibn Óabìb’s proposition and then appointed him to write the ta˙bìs document with the new conditions, but, unfortunately, Ibn Sahl decided not to copy the text as he thought it was much too long (law-là †ùl al-kitàb la-naqaltu-hu bi-kamàli-hà). The emir showed Ibn Óabìb the documents of the other four endowments he made for his daughters, all of which were also written by the two jurists mentioned above. These four a˙bàs were made for Shifà", mother of Mu†arrif, and her children, Ihtizàz, mother of al-Mughìra, and her children, Mawshida, al-Mundhir’s mother, and her children and ˇarùb, 'Abdallàh’s mother, and her children. Ibn Óabìb found
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these were also unlawful as the emir was always designated as beneficiary, so the jurist changed them just like the first document.74 This very interesting case leads us to point out two important ideas. First, we see that in the first half of the 9th century, Ibn Óabìb died in 238 h/852, the legal doctrine of pious endowments had not yet become widespread and fully developed in al-Andalus and also that the Màlikì norms and traditions were not known by very prominent jurists such as Ya˙yà b. Ya˙yà and Ibn Khàlid. Second, Ibn Óabìb’s relevant intervention in the field of private endowments reveals the crucial role he played in the introduction and diffusion of Màlik’s school in al-Andalus.75 Some legal questions addressed to fuqahà" from the period prior to the proclamation of the Umayyad caliphate of Córdoba in 316 h/929 or who largely carried out their functions before the latter period are also available. The contents of each fatwà will be analysed later in the appropriate chapter, but I wish to stress here the wide range of themes they comprise. 'Abd al-Malik b. Óabìb’s deals with one of the most frequent issues raised in questions on pious endowments, namely what jurists call taßrìf or ßarf, that is the possibility of transferring the surplus of the benefits generated by a ˙ubs to another, in this particular case the surplus oil from a mosque to others within the same village.76 Íàli˙ Ayyùb b. Sulaymàn’s (d. 302 h/914) deal with several issues. The first one is about the ta˙bìs of a horse, the second about a feud between the beneficiary of a donation and the donor’s heirs and the last one about another case of transfer of benefits (taßrìf ).77 Mu˙ammad b. 'Umar b. Lubàba (d. 314 h/926) deals with problems about an asset that reverts back to the donor after the death of the beneficiary and another involving a woman who makes a donation by making a head signal shortly before dying. Al-Lu"lu"ì’s fatwà is about a case concerning the sale
74
Ibn Sahl, Dìwàn, II, pp. 1074–1079; al-Wansharìsì, Mi'yàr, VII, p. 417. This intervention is not mentioned in the more complete biographical study of Ibn Óabìb by J. Aguadé as an introduction to his edition of Ibn Óabìb’s, Kitàb al-Ta"rìkh, Madrid, 1991, pp. 15–56. M. Fierro, ‘Proto-Malikis, Malikis and Reformed Malikis in al-Andalus’, p. 65, shows that Ibn Óabìb represented a different tendency among Andalusian proto-Màlikìs, ‘because he was not Ibn al-Qàsim’s transmiter’, and that ‘there was rivalry between Ibn Óabìb and Ibn Ya˙yà’. 76 Al-Sha'bì, al-A˙kàm, p. 508, no 1132; al-Wansharìsì, Mi'yàr, VII, pp. 64–65 and IX, p. 399 (trans. V. Lagardère, Histoire et société, pp. 405–406, no 136). 77 Al-Wansharìsì, Mi'yàr, VII, pp. 76 and 104 (trans. V. Lagardère, Histoire et société, p. 254, no 148), VII, pp. 104–105, VII, p. 105. 75
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of the ˙ubs.78 Finally, one of these queries reveals the existence of pious endowments in favour of mosques and the poor in several villages (qurà). In their fatwà, the jurists of the Córdoban shùrà (Mu˙ammad b. Walìd, 'Ubayd Allàh b. Ya˙yà, Ayyùb b. Sulaymàn, Ibn Lubàba and Ibn Mu'àdh) note that the administrators of these goods declared that most of the a˙bàs were ancient and only a few recent, thus showing not only the spread of the institution in rural areas during the second half of the 9th century, but also that this diffusion had happened much earlier.79 This is enough material to confirm the existence of these a˙bàs, not only in the region of Córdoba, where the aforementioned legal scholars performed their duties, but also probably in other areas of al-Andalus since queries could originate in any locality. The institution, however, was still undergoing legal development in the 10th century, as revealed by references to the role of the Córdoban qà∂ì Ibn al-Salìm as the creator of certain legal practices. These innovations involved two specific aspects: the inclusion of the donor’s grandchildren from the maternal side of the family as beneficiaries and the transfer of surplus from one asset to another regardless of their different aims (see chapters 4, 7 and 8). From the 10th century onwards there is a more significant flow of information to study a˙bàs. Jurisprudential literature is more abundant, with fatàwà by Ibn Zarb (d. 381 h/991)80 and also al-Lu"lu"ì (d. 348 h/959).81 But we rely, most of all, on Ibn al-'A††àr’s (d. 399 h/1009) valuable notarial treatise, also from the caliphal period and the main source for the study of pious endowments at the time. In fact, it constitutes the earliest testimony that the institution in al-Andalus underwent a wide-ranging and profound legal development, similar to the status of Ibn al-Khaßßàf ’s treatise regarding Irak a century earlier. It is natural to think then that before Ibn al-'A††àr
78 Al-Wansharìsì, Mi'yàr, VII, pp. 103–104, VII, p. 104 (trans. E. Amar, ‘La pierre de touche’, XIII, p. 328 and M. Shatzmiller, ‘Women and property rights in al-Andalus’, p. 251). 79 Ibn Sahl, Dìwàn, II, pp. 1120–1121. 80 Al-Sha'bì, al-A˙kàm, p. 490, no 1082; al-Wansharìsì, Mi'yàr, VII, pp. 64, 218 (attributed to Ibn Da˙˙ùn) and 424–425; VII, pp. 65, 66, 421–423, 426, 426–427, 427–428 and 428–431; IX, pp. 147–148. 81 Al-Sha'bì, al-A˙kàm, pp. 80–81, no 27; al-Wansharìsì, Mi'yàr, VII, p. 431 (trans. E. Amar, ‘La pierre de touche’, XIII, p. 373 and V. Lagardère, Histoire et société, p. 255, no 151).
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wrote his treatise, pious endowments must have been quite a widespread and common reality in al-Andalus, as the varied and detailed formularies included in it and the fatàwà mentioned above show. The Islamisation of the native population, the indispensable social base for their wide dissemination, advanced simultaneously.
CHAPTER FOUR
THE LEGAL FRAMEWORK: GENERAL ELEMENTS OF DONATIONS
1. Introduction To correctly understand the institution of pious endowments it is imperative to analyse and know its technical aspects, traditionally a prime focus of attention which has engendered substantial scholarly literature. The major contribution to our knowledge of the doctrine of waqf in Sunnì legal schools is probably the very complete and comprehensive study by M. 'Umar al-Kubaysì (1977), even if its publication in Arabic only makes it useful to specialist scholars. It has recently been joined by the much more concise article in the Encyclopaedia of Islam, by R. Peters and other authors. In the specific case of the Màlikì school the classical study by O. Pesle (1941)1 is still useful: it provides an overview of the legal doctrine on pious endowments. The general legal trends of the institution are thus certainly very well known. It would therefore be pointless to present here a mere repetition of outlines already sufficiently studied. My goal in this chapter is not to provide an exhaustive coverage of Màlikì legal doctrine on pious endowments, but rather a specific analysis of the main features of Andalusian jurisprudence. Thus I will confine my analysis to the cases described in the corpus, always striving to link legal aspects to the historical reality of the institution in al-Andalus. There are no sources specifically focussed on the jurisprudential casuistry of pious endowments in al-Andalus like that of al-Khaßßàf ’s. The reasons for this dearth are not easy to make out, given the widespread development of pious endowments in al-Andalus and the volume of jurisprudence which has been preserved on the issue, a corpus so large that it constitutes, together with the books of habices from Granada, the most important documentary source for its study.
1 He relies broadly on the Nasrid notarial treatise of Ibn Salmùn, al-'Iqd almunaΩΩam, which clearly deserves a modern critical edition.
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As we have seen, the earliest evidence of that jurisprudence can be traced back to the 9th century, although the legal development of the institution is only noticeable from the 10th century, thanks to Ibn al-'A††àr’s notarial treatise. From that period onwards, the availability of jurisprudence increases, thus making it possible to gain better knowledge of the technical characteristics of the institution. Focussing on these sources, I will try to analyse the legal requirements governing pious endowments in Andalusian jurisprudence. This entails, first of all, a reference to the founder as his free will is the first step in the development of that institution. As it is a voluntary action, we must first establish the reasons that might lead a Muslim to give up certain assets and devote them to a cause regarded as pious. Subsequently, we will look at the other requirements relevant to the figure of the founder, the clauses that the latter was allowed to include, the property donated and its rules for usufruct, etc.
2. Theory and practice of the institution According to the anthropologist J. Beattie, the notion of social institution entails, on the one hand, a system of action and, on the other, a belief and value system as well as a system of ideas.2 In other words, the analysis of any social institution requires us to distinguish two different aspects or levels. One is theoretical or ideological, concerning the justification for the existence of that institution or the need for it. The other is practical, concerning the way in which the institution evolves and is effectively applied in a historically determined society. Obviously, both aspects or spheres of analysis are closely linked since the practice of the institution must be connected with its raison-d’être or its theoretical definition-justification. In the case of a socio-economic institution, any good understanding of the practical or historical aspects requires sufficient information to allow more reliable and objective conclusions to be drawn. Quantitative information is almost non-existent as regards al-Andalus as it only comprises the data available in the books of habices from the Granadan kingdom. Our knowledge of the practical aspects of the institution is therefore highly unsatisfactory. On the theoretical
2
J. Beattie, Otras culturas, p. 72.
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level, however, there is enough data available to form a clearer picture. In this respect, it is undeniable that a˙bàs correspond to the internal logic of Islamic ideology which enables us to explain two basic aspects that form its theoretical dimension: the reason for their existence and an explanation of its practical application. When discussing the theoretical justification of pious endowments, the legal experts explain that their existence is based on the Qur"àn, through the notions of alms (ßadaqa) and the deed undertaken fì sabìl Allàh, which are thus associated with the precepts of piety and charity; the latter pervade Islamic doctrine. Likewise, the generalisation of social practice of ˙ubs is also explained by the influence of Islamic ideology. Making pious endowments (ta˙bìs) is part of what is known in Islamic law as tabarru'àt, a category that also includes other types of donations (ßadaqa, hiba) and the different methods of freeing slaves ('itq, mukàtaba, tadbìr). Al-Jazìrì conveys that idea of ‘voluntariness’ and defines the ˙ubs as ‘a supererogatory pious act’ (al-˙ubs min nawàfil al-khayr).3 Such voluntary acts of largesse are not regarded as compulsory actions (wàjib), within the notion of human acts foreseen by Islamic Law, but rather as recommendable (mandùb or musta˙abb) as pious deeds (qurba).4 If donation is not then compulsory for a Muslim, it is necessary to seek an explanation for the reasons that may lead a believer to part with some or all of his belongings for a particular purpose. In this respect, we should focus on the expression ‘recommendable action’ (musta˙abb): recommended by whom and for what reason? It is clear that recommendation constitutes ideological compulsion, the only factor that, given the absence of a legal obligation, can impel groups and social classes to act in a particular way. The reason, moreover, that leads a Muslim to donate an asset must be directly linked to the selected aim. That is, in order to understand the founder’s motives it is necessary to pay attention to the purpose of the donation, defined on the basis of the Qur"ànic concepts of ‘pious deed’ (qurba) or action undertaken fì sabìl Allàh. 2.1. Pious aims The wish of the Muslim believer when making a donation is, or at least should be, as with any other pious deed, to please God. But 3 4
Al-Jazìrì, al-Maqßad, p. 288. See J. Schacht, Introduction, p. 104.
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this wish is not gratuitous; it has, in fact, a very specific aim: to obtain a divine reward, a concept expressed by the Qur"ànic term thawàb. This wish must be made clear by the founder when making his donation, as shown in one of the earliest documented examples, the inscription regarding a donation by Fà"iq al-Khàdim found in Ramla and dated 301 h/913–914.5 Andalusian jurisprudence also reflects the use of the concept of thawàb as a reward earned by the founder in return for his pious deed.6 As A. Lambton remarks, the most plausible criterion for a correct understanding of the institution is to consider pious endowments as a product of Islamic ideology. The ultimate aim of human existence is to attain the salvation of the individual, for we should not forget that islàm stems from aslama which means ‘to be saved’. Thus, the donation constitutes a means to attain salvation, a worthy and pious action in this world (al-dunyà) that dignifies its author before the divinity and helps him get his reward (thawàb) in the hereafter (al-àkhira).7 Though it is clear that the institution has historical rather than ideological origins, those origins remain mostly unknown (see chapter 1), so that the most plausible explanation must be based on Islamic ideology, the one that compels the believer to relinquish ownership of his possessions, freely and voluntarily, devoting them to a specific purpose in order to please God and obtain His favour. 2.2. Spurious reasons: family donations and other Albeit that, from a theoretical point of view, the donation of a˙bàs must be the result of a pious intention, in truth that was not always the case. The available documentation shows that pious endowments could be used as a means to achieve goals which, in principle, have nothing to do with what is usually considered as ‘pious’ from the Islamic viewpoint. The definition of the concept ‘pious’ can certainly be wide and encompass several variants but in practice, it takes the form of charitable or munificent actions whose beneficiaries are not specific people but the totality of members of the umma or the lessfavoured groups like the poor or the infirm. 5
Apud M. Sharon, ‘A Waqf Inscription’, p. 106. Ibn al-'A††àr, Kitàb al-wathà"iq, pp. 173 and 181 (trans. P. Chalmeta and M. Marugán, pp. 387 and 394); Ibn Mughìth, al-Muqni', pp. 324 and 327; al-Jazìrì, al-Maqßad, pp. 285 and 287; al-Wansharìsì, Mi'yàr, VII, p. 139. 7 A. Lambton, ‘Awqàf in Persia: 6th–8th/12th–14th’, Islamic Law and Society, IV/3 (1997), p. 308. 6
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Family donations, made for the benefit of specific individuals, are perhaps the most convincing example of this deviation from the original raison d’être of pious endowments. As we have seen in more detail when analysing this type of donation (see chapter 3), families use the institution for exclusively private purposes, as opposed to its original public nature. This is clear when we observe that in family a˙bàs it is permissible to use the donated goods for purposes without pious intent, like the one recorded in Ibn al-'A††àr’s notarial treatise where the institution is used by an individual in debt as a means to keep his possessions out of the hands of debt-collectors by taking advantage of the inalienable character of ˙ubs property.8 This allowed the debtor to declare himself insolvent before his creditors, claiming, for instance, that he had endowed his goods or possessions in favour of his children; this prevented creditors from demanding the sale of those assets as a way of paying off his debts. In cases such as this the key issue was to be able to determine whether the donation had taken place before or after the debt had been incurred. The matter became more complicated, though, if it was not possible to specify dates due to the loss of documents. There are also some cases of pious donations in which the founder’s motives do not correspond with the purpose and, possibly, not even with the theory, behind the institution. In this respect, the jurisprudence records a revealing example of a question addressed to Ibn Lubb about the building and donation of an oven for the benefit of a mosque in order to reduce the income generated by another oven located opposite and belonging to another mosque. Ibn Lubb rules that, although in cases such as this the law prescribes the demolition of the mosque built to cause damage to the other, it is preferable not to interfere in order not to exacerbate matters further.9 Even more revealing is the case of a man who owned some land and found out one day that his neighbours had felled some trees. This event made him very fearful and he decided to donate his possessions to a mosque, not for any pious concern, but in order to avoid conflicts with his neighbours. Later on, the man tried to invalidate his donation alleging that he had not followed the appropriate procedures required, meaning that there had not been any pious 8 Ibn al-'A††àr, Kitàb al-wathà"iq, pp. 626–634 (trans. P. Chalmeta and M. Marugán, pp. 902–912). 9 Al-Wansharìsì, Mi'yàr, VII, pp. 203–204.
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purpose behind it. Ibn Siràj’s response was that a donation remained valid unless it could be proved that there was no pious motivation.10 This implies that pious intent, as with presumption of innocence, is always assumed and that, in order to annul a donation, a lack of pious motive had to be demonstrated. There was a special type of document for this kind of situation that enabled the founder to withdraw a donation made without any sort of pious motive whatsoever. In that case, the founder was invariably required to have drawn up another notarial document, dated before or at the same time as the donation, asserting that, due to whatever circumstances—usually out of fear of something or someone—, he had been compelled to make such a donation, which he now withdrew and reneged on as no pious motives had led him to take such action nor had it been made in order to seek God’s favour and secure His reward. The founder’s assertions had to be believed to invalidate the donation as, if it was an act of spontaneous generosity, the founder had acted freely in this respect (mutabarri' ) and there was therefore no reason to suspect that he was lying.11 2.3. The relevance of studying the aims The key to understanding the institution lies in the alleged pious motivations and the ideological veneer, that is the purposes which the donation was meant to serve, since, as al-Khaßßàf remarks, ‘when a purpose is not stated, there is no waqf ’ (lammà lam yatabayyan fì ayy wajh yakùn lam yakùn waqf ).12 Similarly, the jurist Abù 'Uthmàn Sa'ìd al-'Uqbànì points out in a fatwà that a waqf lacking a purpose is impossible and that the worst admissible case is a donation whose founder had not stated a specific aim, in which case jurists are to assign it an appropriate, that is pious, purpose.13 All donations must, therefore, invariably have a pious aim. One fact must be considered regarding this point: as the why (the founder’s motives) and the what for (the aim) are inextricably linked,
10 Al-Wansharìsì, Mi'yàr, VII, p. 119 (trans. V. Lagardère, Histoire et société, p. 260, no 167). 11 Ibn al-'A††àr, Kitàb al-wathà"iq, pp. 233–235 (trans. P. Chalmeta and M. Marugán, pp. 372–375); al-Jazìrì, al-Maqßad, pp. 296–297. 12 Al-Khaßßàf, A˙kàm al-awqàf, p. 32. 13 Al-Wansharìsì, Mi'yàr, VII, pp. 217 and 238.
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then if the reason is the desire to make oneself worthy before God and obtain His reward (thawàb), the aim must be something that pleases God. We have a good example of this in a question addressed to Ibn al-Óàjj about the building of a mosque near another with malicious intent (qaßd al-i∂ràr). In this case, the jurist asserted that such a mosque must be demolished, because the aim of the founder is not to seek piety (li-anna-hu lam yaqßid fì ta˙bìsi-hi al-birr).14 But even though, in a number of cases, the motivation may not be a sincere wish to please the deity, the aim must necessarily answer the Islamic ideal of piety. It is much more useful in this respect to focus on analysing the aim rather than the founder’s motives. The key role of jurists’ work in articulating a practical definition of the institution must obviously be emphasised at this stage; as interpreters of God’s message (the Qur"àn) and experts on the knowledge of divine law (sharì'a), they are the ones who ascertain which aims please God and which do not. That is why their normative function regarding the institution of pious endowments is pivotal. In the case of al-Andalus, this is reflected, for instance, in the opposition of Nasrid fuqahà" to donations made for the benefit of fuqarà", which are associated with Sufì doctrines and are thus inimical to the interpretation of Islam advocated by jurists. Another issue that must be considered is that, although individual factors are influential when selecting a particular aim, social constraints doubtless play a role as well, conditioned by the specific historical context. Whilst, in abstract or theoretical terms, pious endowments are always thought of as being inspired by the same motivations—regardless of particular locations or periods—, since they are the product of the pious and more or less fervent nature of the Muslim believer (apart from the specific cases shown above), the particular aim to which a donation is devoted, on the contrary, also depends on the usual practice of a particular period and area, that is the social, historical and chronological context. As this is a historical study, what I am interested in is the what for, that is the purpose or aim for which assets are donated, rather than the why of the donation; it is the aim which will make it possible to analyse the reality of that institution and gauge its relation with the structure of a particular Islamic society, al-Andalus in this
14
Al-Wansharìsì, Mi'yàr, VII, pp. 229–230.
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case. Although, in theory, the founder’s motivation is always pious, it is not possible to establish the genuine reasons behind every individual’s actions, being an issue that involves individual mentalities. Assets are always donated, however, for something, for a specific and tangible purpose, and that aim is an objective reality subject to analysis through documentary sources and instrumental in furthering our knowledge of the institution in a particular Islamic society. To sum it up, both aspects of the institution (the why and the what for) are indicative of the importance of Islamic ideology as a factor explaining and justifying its existence: the why is the divine reward (thawàb) and the what for is the pious deed undertaken fì sabìl Allàh, a generic definition that the work of jurists and social practice will ultimately specify in a number of aims, the ones most frequently stated in the available documents.
3. The founder’s personal requirements The endower’s free well is a necessary condition for a ta˙bìs to be implemented, but not the only one since there are a number of requirements that must be fulfilled so that the former can be lawfully undertaken. Among them we must single out the following: being a Muslim, an adult, being in good health when making the donation and being the legal owner of the asset to be donated. 3.1. Religious condition: the endowments of the non Muslims Though the management and usufruct of Islamic pious endowments are under the control of Muslims, legal doctrine does not completely exclude, however, the participation of non Muslims in the institution, as founders or as beneficiaries. This specific aspect of the relationship between Muslims and non Muslims is developed in different kinds of legal sources such as pious endowments treatises, like alKhaßßàf ’s, and those devoted to the legal status of dhimmìs, like Ibn Qayyim’s.15
15 Al-Khaßßàf, A˙kàm al-awqàf, 335–342; Ibn Qayyim, A˙kàm ahl al-dhimma, I, pp. 601–606. See J.N.D. Anderson, ‘The religious element in Waqf Endowments’, Journal of the Royal Central Asiatic Society, 38 (1951), p. 295; A. Fattal, Le statut légal des non musulmans en pays d’Islam, Beirut, 1958, p. 143; R. Peters, ‘Wa˚f ’, E.I.2, XI, p. 61.
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As for the case of al-Andalus, our sources provide very little and scarce information about the relationship between pious endowments and non Muslims, most of it coming from the legal corpus. According to legal Màlikì doctrine, a Muslim can legally include dhimmìs among the beneficiaries of his donation, but it is not lawful to make a pious endowment for a church.16 The late Nasrid Ibn Juzayy agreed with this opinion,17 but we don’t have any historical evidence in al-Andalus of donations made by Muslims including non Muslims as beneficiaries. The only three legal queries provided by our sources on this issue deal with donations made by dhimmìs, specifically by Jews. The main feature of these questions is the fact that they are focussed on the legality of such donations, explicitly their perpetuity or irrevocability, and, as we shall see, there was controversy among Andalusian jurists about this issue. The oldest information we have about the problem of the irrevocability of dhimmì’s endowments comes from the biography of the jurist Abù Mu˙ammad al-Aßìlì (d. 392 h/1001–1002). It is reported that Ibn Abì 'Àmir, Almanzor, wanted to buy the land of a certain church (ar∂ mawqùfa 'alà ba'∂ kanà"is ahl al-dhimma) but, when he consulted the jurists to get their authorisation, all of them refused, except al-Aßìlì.18 In this case, it is not only highly significant that a ruler as powerful as Almanzor consulted jurists before taking a final decision, but it is also notable that the majority of the jurists at the time were of the opinion that church land made into waqf was irrevocable. Ibn Sahl held the same opinion, as revealed in a fatwà which deals with the case of a Jew who donated one complete qal'a19 and a half of another in favour of his daughter and her offspring and, were she not to have any descendants, in favour of the Muslim poor from
16
See O. Pesle, La théorie et la pratique des habous, p. 46. Ibn Juzayy, al-Qawànìn al-fiqhiyya, p. 375. 18 'Iyà∂, Tartìb al-madàrik, VII, p. 140. On this jurist see the remarks made by M. Fierro, ‘Proto-Malikis, Malikis and Reformed Malikis in al-Andalus’, p. 71. 19 The use of qal'a in this context seems obscure. Its common meaning is ‘fortress’ and this is the sense of the Spanish words alcalá and alcolea, which came from the Arabic. But, as is well known, one of the main requirements regarding the founding of a waqf is that the founder must be the legal owner of the goods and there is no trace of individual castles or fortresses in al-Andalus possessed as private properties. Moreover, it seems difficult to admit such a donation on the part of a Jew. A. Mª Carballeira, Legados píos, p. 266, holds that qal'a means here a property placed in a high and fortified zone. Al-Wansharìsì’s version of that legal query (see next footnote) gives in its place 'aqàr, that is, ‘real estate’. 17
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Lorca (Murcia). The donation was enacted but ‘a certain powerful individual’ (rajul la-hu sul†àn) forced the founder to sell him half of the ˙ubs, an action that raised objections on the part of the founder himself or the beneficiaries, claiming that such a sale was null and void. In his fatwà, dated in Sha'bàn 481 h (October 20–November 17, 1088), Ibn Sahl remarks that the sale must be declared null and the object sold must be reverted into a ˙ubs for two reasons. First, because Muslims are the ultimate beneficiaries and second, because any sale carried out under coercion is unlawful and must be invalidated. Ibn Sahl has two sources for his fatwà. One is the Aßbagh’s version of Ibn al-Qàsim’s opinion from al-'Utbiyya, saying that bishops are not allowed to sell the lands of the churches and that only which is legal for Muslims is also legal for them in their a˙bàs (là yajùzu la-hum fì a˙bàsi-him allatì ya˙bisùna-hà 'alà wajh al-taqrìb illà mà yajùzu li-l-muslimìn fì a˙bàsi-him). He also quotes al-Nawàdir, by Ibn Abì Zayd, where it is said that the sale of a˙bàs, both to the people of the book and to Muslims, must be declared null and the building erected on them must be pulled down. He concludes by saying that the question was addressed to him again three years later, in Rama∂àn 484 h (October 17–November 15, 1091), and that his fatwà remained the same.20 But even if we don’t have any textual evidence, there seems to have been a great deal of controversy among Màlikì jurists concerning the pious endowments founded by dhimmìs. In fact, the aforementioned rule taken from Ibn al-Qàsim assimilates donations made by non Muslims and by Muslims. But there was also a strong tendency within the school against this assimilation, at least going by Màlikì Andalusian jurisprudence.21 That is revealed in a fatwà of the Córdoban faqìh Abù 'Umar b. al-Qa††àn where he declares the donation by a Jew of a house (dàr) in favour of a Córdoban mosque to be illegal. He bases his opinion, which is contrary to the legal Islamic tradition, on a ˙adìth taken from the chapter devoted to jihàd in the Mudawwana, where Mu˙ammad refused the help of an unbeliever
20 Ibn Sahl, Dìwàn, II, pp. 1119–1120 (in footnote); ed. Khallàf, Wathà"iq fì a˙kàm qa∂à" ahl al-dhimma fì-l-Andalus, pp. 68–69; al-Wansharìsì, Mi'yàr, VII, pp. 59–60 (trans. E. Amar, ‘La pierre’, XIII, pp. 367–370; Lagardère, Histoire et société, p. 268, no 199). 21 For O. Pesle, La théorie et la pratique des habous, pp. 34–35, this was the prevailing view within the Màlikì school.
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who wanted to fight with him in Badr: ‘I shall not seek help from a polytheist’ (lan asta'ìna bi-mushrik).22 The text goes on23 quoting another version of Ibn al-Qàsim’s opinion on the subject of the irrevocability of dhimmìs donations, different from that of the aforementioned text of Ibn Sahl revealed through Aßbagh. This second riwàya is taken from 'Ìsà b. Dìnàr and says that the bishop is allowed to sell the church’s land if the dhimmìs are up to date in their payment of the poll tax (idhà kànù yu"addùna mà 'alay-him min al-jizya). Then, the anonymous faqìh makes some interesting remarks. He is of the opinion that the legality of the infidel’s endowment (ijàzat ˙ubs al-kuffàr) and the invalidity of its being bought is only true in the case when the seller is not the same person who made the endowment, as that would render the sale illegal (al-bà"i' huwa ghayr al-mu˙abbis fa-ßàra min bàb al-taΩàlum). So, the only person who can legally sell that endowment is its own founder. But according to Aßbagh, says the text, the Muslim judicial authority should not forbid such a sale, nor make it null and void if it happens, nor make their donations valid and licit, because none of this is his business. To explain this he makes an analogy with the case of the freeing of a slave, an act even more sacred than a pious foundation (a'Ωam ˙urma): if a Christian states that he will free his Christian slave when he becomes Muslim but then he decides to sell the slave, he has the right to do so (kàna dhàlik la-hu wa-lam yumna' min-hu).24 The third legal question that we have on this issue is addressed to Ibn 'A††àb and deals with the case of a Muslim who bought an orchard ( jinàn) from two Jews. After thirteen years, he resolved to donate it in favour of his children and then, if they had no descendants, for the benefit of students, the ransom of prisoners and the
22 Al-Wansharìsì, Mi'yàr, VII, pp. 65 (trans. E. Amar, ‘La pierre’, XIII, pp. 321–323). See the ˙adìth in Muslim, Ía˙ì˙, no 3388 and Ibn Óanbal, Musnad, no 24003. 23 There is another version of this part of the text, al-Sha'bì, al-A˙kàm, p. 154, no 197 and 198. It seems that here al-Wansharìsì mixed different texts, because this part is another different fatwà, also dealing with a donation from a Jew (under the heading su"ila 'an yahùdì ˙abbasa ˙ubsan thumma bìya' fa-qàma walad al-mu˙abbis liyufsakh al-bay' ) but whose authorship is not clear, maybe Ibn al-Makwì or Mu˙ammad b. Mughìth al-ˇulay†ulì. 24 In his remarks on this fatwà, A. Carmona, Al-Qan†ara, XXV, 2004, p. 258, does not mention al-Sha'bì’s version and wrongly translates idhà kànù yu"addùna mà 'alay-him min al-jizya (‘si fuera para pagar la #izya a que están obligados’) which leads him to a simple misunderstanding of Ibn al-Qàsim’s opinion.
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release of slaves from bondage. Thirteen further years after the donation had been made, a nephew of the two Jews cited above, claimed that his uncles left the orchard to him and his offspring, brandishing a document written in Arabic (wathìqat ta˙bìs bi-ja†† islàmì ) in which a number of Muslims appeared as witnesses; the document also showed that one of the uncles remained the nominal owner of the orchard until the nephew reached adulthood and was authorised to take over the property. Ibn 'A††àb decided in favour of the Muslim owner in his fatwà based on the same arguments that Ibn al-Qa††àn used. He asserted that, for many reasons which he did not wish to detail, the dhimmìs’ pious endowments are very different from those owned by Muslims; he mentions one, though, because it concerns the aforementioned case. He goes on to say that whereas a Muslim cannot annul or revoke his donation, as it is the qà∂ì’s duty to safeguard all a˙bàs by authenticating them with witnesses and registering them in his archive, the dhimmìs can, however, annul or sell their ˙ubs if they so wish and, in that case, the qà∂ì is not authorised to safeguard them or to enact them because they are legally flawed. This is 'Ìsà b. Dìnàr’s version of Ibn al-Qàsim’s opinion: the ‘people of the pact’ (ahl al-ßul˙) have the right to sell the land belonging to their church if that is their wish and as these lands form part of their a˙bàs. This is why, he proceeds, the sale of the orchard by the two Jews is absolutely lawful and valid ( jà"iz nàfidh) and the complaint has no legal basis; it would not even have been sustained at the time of the sale and, for that reason, even less so thirteen years after the sale was carried out. Ibn 'Attàb holds that the ta˙bìs made by the Muslim is also legal and valid, and therefore the qà∂ì should validate it without worrying whether the foundation made by the Jews was justly possessed or not and without considering the testimonies of the witnesses. The Jew, concludes the jurist, has the right to make a claim against the founders and sellers of the ˙ubs in their courts (˙ukm ahl dìni-him).25 Nearly one century after these cases, during the Almoravide rule in al-Andalus, important groups of Andalusian Christians were deported to the North of Africa accused of supporting the Christian king
25 Ibn Sahl, Dìwàn, II, pp. 1117–1119; ed. Khallàf, Wathà"iq fì a˙kàm qadà" ahl al-dhimma fì-l-Andalus, pp. 26–28 and 65–68; al-Wansharìsì, Mi'yàr, VII, pp. 438–439 (trans. E. Amar, ‘La pierre’, XIII, pp. 384–387; V. Lagardère, Histoire et société, p. 262, no 178).
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Alfonso I’s of Aragón attack in 519 h/1125 on Andalusian territory, an episode which has been widely studied.26 Once more, the problem of the irrevocability of the pious endowments made by dhimmìs was posed to the jurists, especially because church goods began to be confiscated in favour of Islamic mosques. The qà∂ì 'Iyà∂ gave a fatwà wherein the dhimmìs’ pious endowments are not viewed as sacred (a˙bàs ahl al-dhimma là ˙urmata la-hà) and therefore his founder is allowed to sell them if he is still alive, and the same when dealing with ancient endowments in the hands of the dhimmìs, they have freedom to do the same (lam yuta'ara∂ù fì-hà). Ibn Ward had the same opinion, stating that their endowments are not irrevocable (làzima) because they were not made for God, but for idols (lam yurad bi-hà wajh Allàh wa-là ˙ubbisat la-hu bal li-l-jibt wa-l-†àgùt).27 The available information demonstrates that there were some legal differences between Andalusian jurists on two questions related to the pious foundations of dhimmìs. First, although it had been a legal principle in Islamic law since the 9th century that endowments established by non Muslims in favor of Muslim institutions were legal, this is denied by Ibn al-Qa††àn in his fatwà, when he declares the donation of a house by a Jew in favour of a Córdoban mosque to be null and void. Most of the jurists seem to accept these kinds of donations, but they disagree about their irrevocability, and the two divergent opinions are both based on the authority of Ibn al-Qàsim. Al-'Utbì’s version, quoted by Ibn Sahl, states that the a˙bàs of dhimmìs and Muslims were equal, so its sale was not legal; to the contrary, Aßbagh’s version is that the foundations made by non Muslims were not the same as Islamic a˙bàs, and therefore dhimmì’s have the right to sell these properties. The first opinion seems to have been prevalent at least until the 10th century, as it is revealed in the legal query made by Ibn Abì 'Àmir, but during Almoravide’s rule the fact that churches’s a˙bàs were not irrevocable was dominant.
26 See V. Lagardère, ‘Communautés mozarabes et pouvoir almoravide en 519H/1125 en Andalus’, Studia Islamica, 67 (1988), pp. 99–119 and D. Serrano Ruano, ‘Dos fetuas sobre la expulsión de mozárabes al Magreb en 1126’, Anaquel de Estudios Árabes, 2 (1991), pp. 163–168. 27 'Iyà∂, Madhàhib al-˙ukkàm, pp. 203–205 (trans. D. Serrano, pp. 359–361); alWansharìsì, Mi'yàr, VII, 73–75.
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3.2. Gender, adulthood and state of health Another of the conditions that the founder must fulfil is that he or she must be of adult age. Islamic jurisprudence is always understood, obviously, from a man’s perspective; that is why, for instance, notarial formularies always regard the founder as a man. There is evidence in different sources, however, of donations made by women. First of all, some chronicles refer to foundations set up by women from the elite, specifically from the family circle of Umayyad rulers. This is the case of the previously mentioned donations by 'Ajab, alÓakam I’s favourite, by 'Abd al-Ra˙màn II’s concubines (see chapter 3) and by his daughter al-Bahà" bt. 'Abd al-Ra˙màn (d. 305 h/917), who used to copy the Qur"àn and make pious donations.28 To these could be added those undertaken by Marjan, the caliph 'Abd al-Ra˙màn III’s favourite. When alluding to the rivalry between his wife Fà†ima and the aforementioned Marjàn, who ultimately managed to gain the upper hand, Ibn Óayyàn states that ‘her rival Marjàn outperformed her with the pious deeds she carried out, unmatched by any of an-Nàßir’s wives, such as the alms she generously gave and the help she provided, the mosques she had erected and the pious endowments she set up’.29 Ibn Bashkuwàl’s biographical dictionary reports that Khadìja bt. Ja'far b. Nußayr b. al-Tammàr al-Tamìmì (c. 394 h/1003–1004), wife of the jurist 'Abdallàh b. Asad, donated many books in favour of her daughter.30 We are also aware, thanks to Castilian documents from the 16th century, of a donation made by the wife of the so-called ‘rey Chiquito’ in her will— she died in 1493 in Andarax and was buried in Mondújar—for the benefit of whose mosque she established several assets.31 There is also information in legal texts concerning women from lower social strata who made donations for several purposes, private and public. We have one case dated in the first half of the 11th century dealing with a certain 'À"isha bt. Fulàn who gave away part 28 Ibn al-Abbàr, al-Takmila, ed. M. Alarcón y C.A. González Palencia, p. 400, no 2858. 29 Ibn Óayyàn, al-Muqtabis (V), p. 6 (trans. Mª J. Viguera and F. Corriente, p. 19). On donations by women from the social elite, see M. Marín, ‘Las mujeres’, pp. 111–112 and G. López de la Plaza, Al-Andalus: mujeres, sociedad y religión, pp. 65–75. 30 Ibn Bashkuwàl, Íila, II, p. 654 no 1532. 31 Apud M. Gómez-Moreno, ‘El cementerio real de los nazaríes en Mondújar’, Al-Andalus, VII (1942), p. 275.
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of her orchard (qa†ì' min janna) to her husband 'Abdallàh and their son and his offspring and, as ultimate beneficiaries, for the sick from Córdoba.32 In another legal question Ibn Abì Zamanìn is asked about a woman who gave her little daughter the house where she lived appointing the father of the girl as responsible for taking possession (qab∂ ) of it, a fundamental requirement to validate the foundation in the Màlikì normative.33 The question was whether taking possession (˙awz) is valid in the case where the mother died in the house. In his fatwà, the jurist decided that this ˙awz was not complete (tàmm) but incomplete (∂a'ìf ), because the mother did not leave the house, and therefore if she died while living in the house, the daughter would receive the house as inheritance (mawrùtha).34 We also know of foundations made by women for public purposes, such as the celebration of the night of the Prophet’s birthday (mawlid ),35 the founding of a zàwiya,36 a donation of half a house and half a vineyard to a mosque,37 a donation in a will.38 Some legal questions focus on formal aspects of the donation, as in the case of a woman who made a donation while under the tutelage of her father and another who conducted it on her deathbed by nodding with her head.39 Whether man or woman, the founder must fulfil two requirements: be of adult age, as already noted, and be in good health and exercising his full legal capacity at the time of the donation. These aspects are raised in three legal queries. The one addressed to Ibn Lubb40 deals with the case of a woman who made a donation while under
32
Ibn Sahl, Dìwàn, II, p. 1090–1091. See R. Peters, ‘Wa˚f ’, E.I.2, XI, p. 61: ‘a wakf is not binding and irrevocable until the property has actually been transferred to the beneficiaries or the administrator’. 34 Al-Sha'bì, al-A˙kàm, p. 135, no 148; al-Wansharìsì, Mi'yàr, VII, pp. 218 and 431–432 (trans. E. Amar, ‘La pierre’, XIII, p. 333; V. Lagardère, Histoire et société, pp. 275–276, no 225). 35 Al-Wansharìsì, Mi'yàr, VII, p. 114 (trans. V. Lagardère, Histoire et société, p. 277, no 231). As we shall see in chapter 6, donations made for this purpose were deemed illicit by legal experts. 36 Al-Wansharìsì, Mi'yàr, VII, pp. 115–116 (trans. V. Lagardère, Histoire et société, pp. 277–278, no 233), VII, p. 118 (trans. E. Amar, ‘La pierre’, XIII, pp. 367–368 and V. Lagardère, Histoire et société, p. 276, no 226). 37 Al-Wansharìsì, Mi'yàr, VII, pp. 130–131. 38 Al-Wansharìsì, Mi'yàr, VII, p. 183. 39 Al-Wansharìsì, Mi'yàr, VII, p. 104 (trans. E. Amar, ‘La pierre’, XIII, p. 328 and M. Shatzmiller, ‘Women and property rights’, p. 251), VII, p. 274. 40 Al-Wansharìsì, Mi'yàr, VII, p. 274 (trans. E. Amar, ‘La pierre’, XIII, p. 323 and M. Shatzmiller, ‘Women and property’, p. 228). 33
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her father’s tutelage although with the latter’s approval: the jurist feels that this ta˙bìs must be annulled since the father has no right to deprive the younger son under his tutelage of any assets without due compensation; he indicates that this donation shows that there is ‘clear connivance’ between the father and the beneficiary. He then remarks that the overwhelming majority of jurists of the Màlikì school (mashhùr) believe that, were a father to donate a house or a piece of land for pious reasons, the latter must return to his ownership. Legal practice demands the annulment of such a donation. The fatwà concludes by pointing out that this is the case when the father acts as a founder, whilst in the case of the daughter acting as founder, annulment is even more imperative since it is an act of munificence conducted by a person legally unauthorised to do so; this procedure is absolutely illicit. Another matter is that of the founder’s health at the time of the donation. Two texts deal with this issue. The first concerns the case of a woman who, on her deathbed, donated her trees to a mosque by nodding with her head, doubtless because her physical condition prevented her from speaking and writing. Ibn Lubàba’s response is that if the witnesses believe that the founder is still lucid and that it is clear and beyond doubt that she has understood them and her head gesture demonstrated her agreement, the donation is legal. But if the witnesses have any doubts, the case becomes illicit.41 There is also a question addressed to Ibn Rushd42 from Lisbon involving a father who donated his house and a piece of land to his two sons when he was ill: the question does not refer to the founder’s health when making the donation, nor does Ibn Rushd in his response. This fact does not seem to raise any problems. 3.3. Economic and socio-professional status There is hardly any information about the economic status and social rank of founders. As is well-known, Arabic sources reduce the complex array of social levels to two categories comprising the elite or aristocracy (khàßßa) and common people ('àmma), both too generic
41 Al-Wansharìsì, Mi'yàr, VII, p. 104 (trans. E. Amar, ‘La pierre’, XIII, p. 328 and M. Shatzmiller, ‘Women and property’, p. 251). 42 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, II, pp. 959–960, no 275; ed. alTajkànì, II, p. 850, no 224.
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and undefined to be truly representative but indicative of the social duality that usually characterises pre-capitalist formations where middle classes are often a small minority and almost invariably urban. There are some references, however, to intermediate groups of notables, designated with several labels in texts. Once again, the content of the available information differs depending on its provenance. Chronicles shed light on donations made by the social elite, more specifically by rulers because of their more refined level: these donations, very scarce in al-Andalus, will be analysed later (see chapter 10). It would also be fitting to include in this group donations by favourites of emirs and caliphs mentioned earlier (see supra). Legal texts, on their part, are not very useful in this respect. Because of the principle of legal abstraction (tajrìd), the founder is always referred to in general terms, either as ‘founder’ (mu˙abbis) or, simply, as ‘a man’ (rajul ), apart from the few examples of donations made by women (see supra) and two other exceptional cases already commented on in chapter 2. The few references which offer more precise information come from biographical dictionaries and all, obviously, deal with donations made by 'ulamà" and fuqahà" whose beneficiaries are, apart from a few significant exceptions, mosques (their preferential sphere of action) or students (aspiring to join the community of men of religion). This is the case of the donations mentioned above (see chapter 3) by Ibn Óabìb and Hàrùn al-Salìm (9th century). Apart from these, there are other references involving the legal scholars Qàsim b. Sa'dàn (10th century),43 Mu˙ammad b. 'Ìsà b. Faraj b. Abì-l-'Abbàs b. Is˙àq al-Tamìmì (11th century),44 Faraj b. Abì-l-Óakam b. 'Abd al-Ra˙màn b. 'Abd al-Ra˙ìm al-Ya˙subì (d. 448 h/1057)45 and Mu˙ammad b. Mu˙ammad b. Mu˙àrib al-Íarì˙ì (d. 750 h/1349), known as Ibn Abì-l-Jaysh.46 All of them will be commented on later in relation to their respective aims; I will abstain here, then, from elaborating any further on them. The only case where the recipient of a donation was not a mosque or students is that of Khalaf b. A˙mad b. Khalaf al-Anßàrì, known as al-Ra˙awì (d. 420 h/1029), and described as
43
Ibn al-Fara∂ì, Ta"rìkh, I, pp. 408–409, no 1072. Ibn Bashkuwàl, Íila, II, p. 528, no 1225. 45 Ibn Bashkuwàl, Íila, II, p. 436, no 986. See his biographical references in M.L. Ávila and M. Marín, ‘Nómina’, no 1332. 46 Ibn al-Kha†ìb, al-I˙à†a, III, pp. 79 and 81. 44
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‘very munificent’ (kathìr al-ßadaqa), who donated some pigeons in order that the rents generated by them could pay for horses to be employed ‘in God’s name’ ( fì sabìl Allàh), that is, according to the more common use of that expression, for the jihàd .47 The information on the Córdoban textiles merchant (bazzàz) Khalßa b. Mùsà b. 'Umràn al-Ràyyì al-Zàhid (d. 376 h/978), an ascetic and righteous man and famous for his good deeds (zà˙id fà∂il mashhùr bil-fa∂l ba'ìd al-ism bi-l-khayr) according to Ibn al-Fara∂ì, is exceptional. Upon giving up his work, he donated his house to his children and their descendants and, were they not to have descendants, to the neighbouring mosque, known as i'tizàz.48 It is, therefore, a private or family donation, though of great interest due to the relative contextualisation of the information and the reference to the mosque as ultimate beneficiary. With regard to the origin of founders, the existing information mainly concerns the urban milieu, in particular the capital, Córdoba (see chapter 1). There are also, however, a number of legal queries dealing with a˙bàs stemming from the rural milieu, from villages or farmsteads. These questions date from the Nasrid period and involve almost exclusively properties owned by mosques (see chapter 7).
4. Stipulations and clauses 4.1. The founder’s freedom In accordance with the ‘recommended’ character of pious endowments, regulations grant the founder a great deal of freedom when drawing up the clauses of his donation, in three basic aspects. First, he can decide which beneficiary to nominate and, in the case of family donations, can establish a particular strategy of transmission (ta'qìb) among his descendants regarding the enjoyment of its profits (see chapter 5). Second, the appointment of a person entrusted with administering the rents generated by the endowment can only occur
47 Ibn Bashkuwàl, Íila, I, pp. 164–165, no 378; 'Iyà∂, Tartìb al-madàrik, VIII, p. 49 does not include this episode in his biography. 48 Ibn al-Abbàr, Takmila, ed. F. Codera, I, p. 61, no 194; ed. Al-Harràs, I, p. 253, no 866. His two other biographers do not record this event: Ibn al-Fara∂ì, Ta"rìkh, I, p. 167, no 422 and al-Îabbì, Bughyat al-multamis, no 732.
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in accordance with the stipulations set by the founder (see chapter 8). Third, apart from specifying an aim in general terms, the founder was free to decide which particular institution/group the endowment is earmarked for and the way in which its usufruct is to be shared. This is what legal texts refer to as qaßd, maqßad, maßrif or wajh. With regard to donations in favour of mosques, it was often the case that the founder did not only specify which particular mosque his endowment was destined for, but he also selected a particular purpose: he could decide that rents were to make up the imàm’s or muezzin’s stipends, or used to purchase oil for lighting or prayer mats, etc. In this case, jurists use the form a˙bàs mu'ayyana, ‘specific’ or ‘particular’ a˙bàs, that is, founded for a specific purpose. When the donation is made in generic terms in favour of the mosque, without specifying the purpose, it is usually indicated through the expression ‘for the benefit of the mosque’ (li-maßàli˙ al-masjid). Both types of donation present different problems regarding the way in which they are run and the manner in which they are to be managed and their usufruct is to be carried out (see chapters 7 and 8). The jurisprudence shows that the founder’s decision about what purpose his donation is to serve enjoys a very high normative rank. When the document was being drawn up, the founder should be asked about all aspects ( faßl ) of the donation as well as his aim (niyya) in every one of them since he was entitled to establish the clauses of his donation.49 That is why, as al-Jazìrì states, ‘the regulations governing pious endowments vary depending on the different verbal formulations’ (takhtalif a˙kàm al-a˙bàs bi-ikhtilàf alfàΩi-hi).50 More bluntly, a fatwà states on this issue that ‘the founder’s words are akin to the legislator’s, their requirements must be followed, based on their stipulations and their outward meaning’;51 very similar wording can be found in another fatwà whose authorship remains disputed.52 According to Ibn Rushd, not even the founder himself is authorised to alter his will or allege his real intentions are not reflected in the text of
49
Ibn al-'A††àr, Kitàb al-wathà"iq, p. 172 (trans. P. Chalmeta and M. Marugán, p. 387); al-Jazìrì, al-Maqßad, p. 286; Ibn Juzayy, al-Qawànìn al-fiqhiyya, p. 376. 50 Al-Jazìrì, al-Maqßad, p. 289. 51 Al-Wansharìsì, Mi'yàr, VII, p. 285: alfàΩ al-mu˙abbis ka-alfàΩ al-shàri' yajib mutabà'at madlùlàta-hà bi-i'tibàr nußùßi-hà wa-Ωawàhiri-hà (the authorship of this ruling is doubtful). 52 Al-Wansharìsì, Mi'yàr, VII, p. 280: alfàΩ al-mu˙abbis ka-alfàΩ al-shàri' yajib mutàba'atahà wa-l-wuqùf 'alà muqta∂ayàti-hà.
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the document, provided that the latter is clearly and unequivocally formulated (naßß jalì ), unless it contravenes any principles of the Law (shar' ).53 There was only one exception to this rule: as the Nasrid Ibn Salmùn points out, in the case of goods consisting of real estate, the proceeds must be used primarily for the building, even if the founder stipulated otherwise.54 Because of the pivotal importance of the clauses set by the founder, J. Schacht defined the waqf as a ‘strictly individualistic’ institution, in the sense that the founder’s requirements were legally binding.55 It is actually prescribed by the Sunna, based on the ˙adìth that states that ‘the clauses stipulated by Muslims must be observed, unless it is a clause that allows that which is illicit or forbids that which is licit’.56 A considerable number of the legal queries and fatàwà included in the corpus of jurisprudence are devoted to putting the founder’s wishes regarding the aim of his donation into effect. This shows the significance of this aspect and also its complexity since many of those queries or cases arise in response to difficulties encountered while trying to realise the founder’s wishes due to different reasons (see chapter 8). In general, jurists insist that the founder’s wishes (qaßd or wajh) must be fulfilled and cannot be tampered with. In fact, when confronted by any legal question addressed to them with the purpose of undermining any of these stipulations, jurists often decline to respond to them. That is the case, for instance, in a query addressed to Ibn Siràj from Granada regarding some books donated to the library of Granada’s main mosque; the founder had set a clause so that they could only be consulted in the library and readers were prevented from borrowing them, apart from some who could only do so after paying a deposit or leaving something as security. Ibn Siràj replies that it is not licit to transgress the clause set by the founder as this is tantamount to disposing of someone else’s property without permission and also that the profits generated by
53 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, II, pp. 729–730; ed. al-Tajkànì, I, p. 652. 54 See O. Pesle, La théorie et la pratique des habous, pp. 87–88: yubda" min fà"id hàdhàl-˙ubs bi-ißlà˙i-hi wa-binà" mà wahiya min-hu wa-in shara†a al-mu˙abbis khilàf dhàlik lam yuqbal. 55 J. Schacht, Introduction au droit musulman, p. 171. 56 Óadìth transmitted by al-Bukhàrì, al-Tirmidhì and Abù Dàwud, see A.J. Wensinck, Concordance, III, p. 99 and quoted in several fatàwà on pious endowments, see al-Wansharìsì, Mi'yàr, VII, pp. 288, 340 and 485.
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the endowment must be used in accordance with the conditions established by the founder.57 There is also a fatwà on the issue of lending books by A˙mad al-Qabbàb in which he remarks, on the authority of Ibn Rushd, that in the case that, for instance, the founder only indicates some ways in which the usufruct must be used but does not single out any other possible way, his stipulations must be strictly adhered to; if he had resolved to donate his books so that they could be ‘read and consulted’, no one could copy them.58 Another query deals with the case of an endowment donated to the qàri" al-'ilm (?) and the reciter of ˙adìths (qàri" al-˙adìth) and raises the issue of whether it is possible to favour one of the two and allow him to enjoy that endowment more than the other; Ibn Siràj retorts that this is only possible if the document recording the donations contains any indication that might support such interpretation.59 Also on the same issue, there is another question involving the case of a donation made in favour of whoever read the Qur"àn on the founder’s grave on a particular night; the issue at stake is whether it is lawful for the reader to stay at home, at the mosque or somewhere else other than the tomb while the Qur"àn is recited. Al-Mawwàq’s response is that the purpose of the donation to the reader is that God’s mercy (ra˙ma) pervades the place where the former is made, meaning that the same effect will not be achieved when the recitation is made at home rather than by the grave and only the one who respects the founder’s clause could be the beneficiary of that donation.60 On another occasion, the case considered is that of a fortress (˙ißn) which owned a piece of land with the status of ˙ubs; esparto was growing on it but the people living there (ahl al-manzil ) decided to set fire to it and thus make the land suitable for other seeds. The response (al-Qàbisì?) was that if the founder’s wishes were that the land remained an esparto field, no changes should be attempted.61
57
Al-Wansharìsì, Mi'yàr, VII, pp. 227–228 (trans. A. Giladi, ‘Three Fatàwà on Lending Libraries’, p. 143). 58 Al-Wansharìsì, Mi'yar, VII, p. 293 (trans. E. Amar, ‘La pierre’, XIII, p. 361; V. Lagardère, Histoire et société, p. 230, no 73; A. Giladi, ‘Three Fatàwà’, p. 143). 59 Al-Wansharìsì, Mi'yàr, VII, p. 228. 60 Al-Wansharìsì, Mi'yàr, VII, p. 149. 61 Al-Wansharìsì, Mi'yàr, VII, p. 38 (trans. V. Lagardère, Histoire et société, p. 214, no 14).
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It was not always possible or desirable, however, to respect the founder’s wishes in all cases and, in fact, legal records reveal the existence of a conflict—which will be tackled in chapter 9—between legal theory and the socio-economic reality of the institution. This conflict engenders a number of problems and issues submitted to the arbitrage of jurists whose fatàwà fluctuate between the compulsory adherence to the stipulations and clauses set by the founder and the need to use donations for practical purposes. In some cases, the rule of ta"bìd and the obligation of respecting the original stipulations of the donation was justified with reference to the Qur"ànic text, specifically to verse 181 of sùrat al-baqara: ‘If any man changes it after hearing it, the sin will rest upon those who change it; surely, God is All-hearing, All-knowing’.62 As we have seen, pious endowments are not an institution of Qur"ànic origins and certainly this specific verse has no relation to the notion of charity or the practice of alms-giving, both very usual in the Islamic sacred book and closely linked to our institution (see chapter 3). But this verse is related to the rules of inheritance, as the Qur"ànic commentators established.63 Due to the relationship of this verse with the norms of inheritance and the close link between wills and pious endowments, the jurists use the aforementioned religious premise to stress the relevance of the notion of perpetuity on which the institution is based. Thus, with this reference to the Qur"ànic text, the notion of perpetuity attained a higher legal level and therefore it became more difficult to avoid. The oldest reference in Andalusian legal literature to this Qur"ànic justification of the ta"bìd can be found in Ibn 'Abd al-Ra"ùf who, at the time of the Córdoban caliphate, wrote a treaty on ˙isba where he refers to the need to preserve the a˙bàs and not to change them, justifying his statement in Qur"àn II, 181:64 ‘Pious endowments are linked to wills. Altering the shape they have been given must be forbidden as God Almighty said that ‘if any man changes it after hearing it, the sin will rest upon those who change it; surely, God is All-hearing, All-knowing’. Those who try to exploit a˙bàs for their own benefit, profit from them or use them for a purpose other than that
62
Trans. A.J. Arberry. See, for instance, Tafsir al-Qurtubi. Classical commentary of the Holy Qur "an, trans. A. Bewley, London, 2003, I, pp. 458–459. 64 Ibn 'Abd al-Ra"ùf, Risàla, pp. 83–84 (trans. R. Arié, p. 33). 63
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The same verse is quoted in a fatwà from Nasrid times in which the jurist refused to change the proceeds of some pious endowments even for reasons of military or security needs. These proceeds came from pious endowments donated in favour of Qur"ànic readers and the poor but some people ( jamà'a) wanted to use it in favour of the castle of Íàli˙a, in the territory of Málaga, depicted as being in a weak position (li-kawni-hi ∂a'ìfan), probably under threat from the Christians. The jurist, of dubious identity, rejected any change by referring to the Qur"ànic verse.65 Certainly, to the best of my knowledge, this is the only instance of the use of this Qur"ànic principle in the available Andalusian jurisprudence. 4.2. Difficulties in the application or interpretation of clauses Apart from those hypothetical cases concerning the introduction of changes in the requirements set by the founder, there is also a whole set of casuistry regarding problems derived by the absence of stipulations or insufficient knowledge of them due to different reasons, as well as problems arising from the practical impossibility of putting some of those stipulations into practice. Several factors could result in a lack of knowledge on the specific aim of a donation. The most basic is the failure of the founder to make specifications on this respect in his ta˙bìs; other factors include the loss of the original document or, simply, because, as time passed by, the original clauses of a donation had fallen into oblivion, as in a case addressed to Ibn al-Makwì.66 On occasions, it is stated that the purpose of a donation is not known, but the reasons for this are not mentioned.67 Those assets whose purpose is not known were usu-
65
Al-Wansharìsì, Mi'yàr, VII, p. 139. Al-Wansharìsì, Mi'yàr, VII, p. 435. 67 Al-Wansharìsì, Mi'yàr, VII, pp. 118–119 (trans. V. Lagardère, Histoire et société, pp. 259–260, no 166), VII, pp. 125–126 (trans. V. Lagardère, Histoire et société, pp. 286–287, no 264), VII, pp. 126–127, VII, pp. 155–156. 66
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ally called ‘free’ or ‘loose’ (˙ubs mu†laq), in the sense that they were not earmarked for any specific use. They are the assets which are generically designated in Christian documentation as ‘çabal alhayrat’ or subul al-khayràt (‘pious aims’), handed over to Granada’s cathedral chapter.68 In cases when specifics were not recorded, local custom ('àda) or the opinion of the legal expert who had been consulted were applied. For some jurists, if the case occurred in a rural area, assets of unknown purpose had to be devoted to mosques as that was the most frequent type of donation. Abù 'Umar b. al-Qa††àn, on the contrary, states that they must be used for the building of walls (binà" al-sùr), whereas Ibn al-Óàjj remarks that they must be distributed among the poor and the indigent.69 Ibn Lubb tackles the case of certain endowments ('uhùd wa-a˙bàs) in Almería whose purpose (maßrif ) was not known as they were previously located in Pechina and were altered when local residents moved to Almería. The sovereign (mawlà) later ordered that a salary deducted from the profits generated by those endowments was to be assigned to the students of the town as a maintenance grant and the individual requesting the legal advice asks whether such action is lawful. Ibn Lubb’s response is that a˙bàs of unknown purpose must be devoted to charitable aims so that it is permissible to use them for the benefit of the students or for other purposes.70 Local habits or customs, likewise, were often invoked as the norm to apply when it came to allocate rents. That is the case, for instance, of a fatwà requested by A˙mad al-Wansharìsì himself in 876 h/1471– 1472 on the occasion of his appointment as teacher of fiqh at a madrasa71 and of Abù-l-Óasan’s response on the case of cisterns donated to mosques and whose use, in accordance with the founder’s wishes (qaßd), is not known.72
68 Apud P. Hernández Benito, La Vega de Granada, pp. 49–50, 113 (no 24) and 180 (no 633): in the last reference ‘otra casa de olleria adelante de la susodicha que se dise hauiz de Çubul Alhayr que es cualquier obra pia’ is mentioned. 69 Al-Wansharìsì, Mi'yàr, VII, pp. 291 and 442 (trans. V. Lagardère, Histoire et société, pp. 271–272, no 212). 70 Al-Wansharìsì, Mi'yàr, VII, pp. 91–92 (trans. V. Lagardère, Histoire et société, p. 279, no 239). 71 Al-Wansharìsì, Mi'yàr, VII, pp. 347–354 (trans. V. Lagardère, Histoire et société, pp. 253–254, no 146). 72 Al-Wansharìsì, Mi'yàr, VII, p. 340 (trans. V. Lagardère, Histoire et société, p. 214, no 16).
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On occasions, the purpose of a donation was known but not the stipulations or clauses that governed the exact manner in which the usufruct of the endowment was to be enjoyed, perhaps because the document recording the donation was lost;73 in that case the most frequent alternative was to make use of local custom ('àda) as a means of solving any issues regarding the ˙ubs’ management or usufruct.74 In some cases, the peculiarity of a certain clause prevented a donation from taking place, as shown in a fatwà issued by Mu˙ammad b. Marzùq, a jurist from Tlemcen, on a plot of land donated in favour of a ‘lecturer’, probably at a madrasa; the founder set certain conditions which, according to the person requesting the legal advice, were not met by anyone then. For that reason, he proceeded, ‘the 'ulamà" reject the numerous clauses included in the ˙ubs’. The question arises, then, of whether the land must be left uncultivated until someone who meets all the requirements turns up or handed over to the person who more closely fits the ‘ideal’ of beneficiary stipulated by the founder. Ibn Marzùq opts for the second alternative and replies that the land must be handed over to the ‘person who most closely fits this ideal type from among the people of the locality’.75 A similar situation arises in a question addressed to the Syrian jurist al-Nawawì concerning a man who stipulated that the rents generated by his waqf were to be used to buy clothes for the orphans and distributed ‘on the 14th day of the following month of sha'bàn’. The jurist points out that that clause must be ignored as the time selected by the founder has already passed and the distribution must be carried out as a qa∂à", rather than an adà"".76 The same matter arises in a query addressed to the Ifriqì jurist 'Izz al-Dìn b. 'Abd al-Salàm77 involving a man who founded a mosque stating in the clause of his waqf that its preacher (imàm) must be a follower of the 73
'Iyà∂, Madhàhib al-˙ukkàm, p. 195; al-Wansharìsì, Mi'yàr, VII, pp. 67 and 91–92. Al-Wansharìsì, Mi'yàr, VII, pp. 118–119 (trans. V. Lagardère, Histoire et société, pp. 259–260, no 166), VII, pp. 125–126 (trans. V. Lagardère, Histoire et société, pp. 286–287, no 264), VII, p. 340 (trans. V. Lagardère, Histoire et société, p. 214, no 16). 75 Al-Wansharìsì, Mi'yàr, VII, pp. 43–44 (trans. V. Lagardère, Histoire et société, pp. 226–227, no 63). 76 Al-Nawawì, Kitàb al-manthùràt, pp. 87–88; al-Wansharìsì, Mi'yàr, VII, p. 270 (trans. E. Amar, ‘La pierre’, XIII, p. 361). The meaning of adà" is to fulfil a religious precept at the appropriate time, whereas qa∂à" indicates a later time, see E. Amar, ‘La pierre’, XII, pp. 37 and 144 (note 1). 77 Al-Wansharìsì, Mi'yàr, VII, p. 270 (trans. E. Amar, ‘La pierre’, XIII, pp. 331–332). 74
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Màlikì rite. The person seeking a fatwà asks whether that clause is licit and whether appointing an imàm from a different madhhab would not be authorised. Ibn 'Abd al-Salàm’s response is, in principle, in favour of applying the clause, thus concluding that an imàm belonging to a madhhab other than the one specified by the founder cannot be appointed. He does not regard it as lawful either that the imàm meeting the founder’s requirements and benefiting from the endowment later decides to switch allegiance to a different madhhab. He warns, however, that were all the imàms of the locality to belong to a certain rite, with no one belonging to a different one, the donation must be carried out (˙amala-l-waqf 'alà dhàlik). A clause must not be applied either if it causes any damage to the donated asset: when asked about a house in need of repairs which was donated in favour of a mosque’s imàm, al-'Abdùsì replies that if the founder had stipulated that it must not be repaired but left in ruins, such clause must be invalidated.78 Obviously, the donation deed could not foresee all the potential situations that could arise concerning the purpose of the ta˙bìs and the stipulated clauses. Faced with unforeseen situations, the faqìh was to come up with a solution for the issue at hand, always striving to stick to the original conditions as closely as possible. Similarly, there are often problems when interpreting the founder’s wishes accurately due to ambiguous formulations or to the fact that the former do not follow the more usual casuistry. That is the case of a question addressed to Khalaf b. Abì Bakr b. Ni'ma regarding a madrasa which includes a number of beneficiaries (prayer leaders, muezzin, teachers, caretakers, etc.) but lacks any stipulations regarding how to proceed if the rents raised from the endowments were not sufficient to pay all of them. His answer is that the administrator and the doorman must receive their full salary because they perform essential duties to ensure the continuity of the madrasa. Once their wages had been paid, the remainder must be equally divided among the imàm, the muezzin, teachers and students.79 A similar theme can be observed in a question posed to al-Mawwàq about some endowments in Baza donated in favour of poor students.
78 Al-Wansharìsì, Mi'yàr, VII, p. 274 (trans. V. Lagardère, Histoire et société, p. 248, no 126). 79 Al-Wansharìsì, Mi'yàr, VII, pp. 17–18 (trans. V. Lagardère, Histoire et société, pp. 289–290, no 278).
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According to the case account that we have, there were some who, in spite of being employed, went to class on occasions in order to take advantage of the rents raised by those endowments. The individual who requests the legal advice claims that ‘we are not sure of whether those described above may benefit from the aforementioned pious endowments’ and goes on to remark that the aim (maqßad) of the founder was, seemingly, that the beneficiaries were to be those exclusively devoted to a life of study and deprived of any other source of income. The response supports this line of argumentation.80 There is another legal query that raises a similar matter, also concerning a donation made for several purposes, including the support of Baza’s poor students. The administrator is unsure as to whom the beneficiaries must be since, he states, there are some whose fathers are wealthy and they live with them, but there are also others who are no longer under their father’s tutelage and are poor but live with and are supported by their fathers. Likewise, he also has doubts as to whether non-local poor students are entitled to benefit from the donation as the deed stipulates that it has been set for the benefit of local poor students. Ibn ManΩùr’s answer is that the founder’s will (qaßd ) must be respected according to the interpretation of the words with which the latter has been expressed. In this respect, he states that there is no difference between a poor student who has no father or a student who has a wealthy father because the fact that the father is rich does not imply that the son is also rich, in particular, he notes, if the son has reached puberty and no longer lives off his father; there is nothing wrong, however, with a father helping out his son or the latter employing that money to purchase books or paper . . . he is equally entitled to his portion of the endowments’ dividends. Living with his father does not prevent the son from benefiting from the ˙ubs either. As for the students who are not from town but are resident there, they are also to receive their share if they are poor, unless the donation deed includes any explicit reference indicating that they must be excluded as beneficiaries.81 The same question is posed to al-Mawwàq, but his answer is different.82
80 Al-Wansharìsì, Mi'yàr, VII, pp. 124–125 (trans. V. Lagardère, Histoire et société, p. 286, no 263). 81 Al-Wansharìsì, Mi'yàr, VII, p. 124 (trans. V. Lagardère, Histoire et société, p. 284, no 255). 82 Al-Wansharìsì, Mi'yàr, VII, p. 130.
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The problem tackled in other cases is that the founder’s will was not always clear, in which case it fell upon the legal expert to act as interpreter of the textual formulation of the particular document. Ibn Rushd addresses this issue in a fatwà in which he interprets the meaning of the particle ‘after’ (thumma) with regard to the way in which a family donation is likely to be transmitted (see chapter 5). In his view, when the founder employs ambiguous words or those with more than one meaning, the most obvious meaning must prevail if the founder has already died and it is not possible to seek his help to clarify the terms of his donations; if he were alive he would be the most suitable person, and the one entitled, to shed light on the matter.83 In another legal question he deals with the case of man who donated an oven ‘so that it could be used to meet the needs of the mosque, such as lighting, the purchase of prayer mats and repairing the walls’. The issue centres on the interpretation accorded to the expression ‘in favour of the mosque’ ( fì manàfi' al-masjid) as there are two possibilities, open and restricted.84 A similar occurrence can be found in a query addressed from Almería to Ibn 'A††àb concerning a man who donated a farmstead (∂ay'a) in his will ‘in favour of his poor relatives, both from his father’s and his mother’s side, starting with the most needy and with his closest relatives taking precedence’. Among the relatives who claimed to have a right to benefit from the endowment, the text mentions, on the one hand, his maternal aunt’s and uncle’s children, that is his cousins from his mother’s side of the family, and, on the other hand, some cousins of his maternal grandfather’s and the children of one of his mother’s cousins. The latter have offspring as well, both adults and underage, and all of them struggle to be included among the beneficiaries of the ˙ubs, so that the person asking for a fatwà (mustaftì ) wonders whether some have precedence over the other and, if that was the case, what the ranking would be. As Ibn 'A††àb himself remarks in the opening lines of his response, the founder’s formulation is somewhat ambiguous.85
83 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, II, pp. 729–730, no 168; ed. alTajkànì, I, p. 652, no 143. 84 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, I, pp. 592–597, no 132; ed. al-Tajkànì, I, pp. 520–523, no 121. 85 Al-Wansharìsì, Mi'yàr, VII, pp. 477–478 (trans. V. Lagardère, Campagnes, p. 108 and Histoire et société, p. 263, no 181).
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A similar case is raised in the legal question addressed to the Maghribi jurist 'Umar al-Fishtàlì concerning a man who, shortly before his demise, donated an orchard ‘in favour of his hometown’s mosques’. Doubts are cast on whether the latter comprised only the most famous mosques, well-known by everyone, rather than all those standing in the town.86
5. Inter vivos and testamentary donations The founder had two choices when making his donation, inter vivos or as a testamentary bequest. As a charitable deed, the ta˙bìs was an undertaking commonly included in wills; this explains the fact that the short chapter devoted to the ‘supervision of a˙bàs’ (al-naΩar fi-l-a˙bàs) in Ibn 'Abd al-Ra"ùf ’s Risàla commences as follows: ‘pious endowments are linked to wills’ (al-a˙bàs muta'allaqa bi-l-waßàyà).87 There are also two verses in the Qur"àn (II,181 and IV,11) which, as part of the Qur"ànic legislation on inheritance, are often quoted as norms regulating pious endowments; according to this view, the ta˙bìs is also likely to be studied as a part of the Islamic inheritance system (see chapter 5). Both types of donations differ in some respects, mainly due to the limited powers available to a Muslim when making his will; there are some Qur"ànic precepts on inheritance which can not be disregarded. D.S. Powers sums up those differences as follows.88 With regard to the contents of the donation, in the inter vivos type the founder could, if that was his wish, include all his assets. The testator, however, can only make use of the so-called ‘third of free disposition’ (thulth) whilst the other two thirds must be distributed among his legal heirs following some rules contemplated in Islamic legislation on inheritance ('ilm al-farà"i∂ ).89 As regards the beneficiaries, in the inter vivos donation, the founder can select whomever he chooses, his children included, whereas the testamentary donation can never
86
Al-Wansharìsì, Mi'yàr, VII, pp. 239–242. Ibn 'Abd al-Ra'ùf, Risàla, p. 83. 88 D.S. Powers, ‘The Màlikì Family Endowment’, pp. 382 and 387. 89 See on this D. Santillana, Istituzioni, II, pp. 499–550. According to J. Schacht, The Origins, pp. 201–202, this restriction is based on an Umayyad administrative regulation. 87
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be made in favour of the legal heirs as the law prevents some from benefiting from it to the detriment of others. Whereas the inter vivos donation takes place immediately, the testamentary is only operational after the testator’s demise. Finally, the inter vivos type is irrevocable, whilst the testamentary donation can be altered or annulled by the testator since it can not become operational until after the founder’s death. In order to understand the relationship between testamentary donations and Qur"ànic regulations on inheritance it is necessary to take into account the restriction imposed by the norm of the third of free disposition because, as Ibn Abì Zayd indicates, ‘bequests in favour of a legitimate heir are not admissible and the former must be made out of the third of free disposition; that exceeding such a third will be returned to the heirs, unless the latter confirm the bequest’.90 That is, the testamentary donation is rather more restrictive than the inter vivos and that is why, perhaps, it does not appear so frequently in the corpus of jurisprudence. In this respect, it can be stated that the ta˙bìs has several advantages vis-à-vis wills as it allows the founder to make use of all his personal patrimony, arranging the way it is to be transmitted at will. Secondly, it allows the founder to appoint whomever he wishes as beneficiary, even his own heirs, whereas no type of testamentary bequest can be made in favour of a heir, unless the previous agreement of all the other co-heirs has been obtained. Thirdly, the ta˙bìs excludes all the assets included in it from hereditary means of transmission as the ˙ubs ‘is not sold, nor donated, nor passed on in inheritance’ (là yubà', là yùhab wa-là yùrath). Thus, the founder could find a very effective way to elude restrictions over the free testamentary disposition of his assets imposed by Islamic regulations on inheritance, avoiding the obligation of transmitting his possessions to relatives with whom he had fallen out or of seeing his family patrimony scattered among distant lineages as a result of the agnatic character of transmission of lineage among Arabs (see chapter 5). This is confirmed by the fact that almost all of the available legal queries deal with issues raised by unsuccessful heirs. We have, for instance, the case of a man who donated all his properties ( jamì' amlàki-hi ) to his children and their offspring ('alà awlàdihi wa-'alà a'qàbi-him wa-a'qàb a'qàbi-him), in a legal question addressed
90
Ibn Abì Zayd, Risàla, pp. 220–221; see J. López Ortiz, Derecho musulmán, p. 223.
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to Ibn al-Makwì from Seville.91 This is also the case in a query dealing with man who donates a fourth of a property (rab' ) to another who is not his relative and, in the aftermath of the testator’s death, his heirs received the remaining three fourths of the property and tried to force the former to sell his part. The man refused to do so. The opinions expressed by Mu˙ammad b. Ismà'ìl, Ibn Rushd, Ibn al-Óàjj and Mu˙ammad b. Dàwud are all in his favour.92 Sometimes, the problem focuses on the inclusion, in the donation deed, of vague formulations that invited different interpretations so that several of the founder’s relatives claimed to have the right to be considered as beneficiaries. That is the case in the afore-noted question addressed to Ibn 'A††àb from Almería. He is asked about a man who made a testamentary donation, a farmstead (∂ay'a), ‘in favour of his poor relatives, both from his father’s and his mother’s side, starting with the most needy and with his closest relatives taking precedence’ (see above). Another similar case is discussed in a query addressed to al-Yàlißùtì (d. 705 h/1305),93 from Fez, regarding a man who donated all his properties to his younger children and tried to include in this donation all the things he would to acquire from that moment till his death. It is asked whether this clause is licit; al-Yàlißùtì answers by distinguishing between two possibilities. If the founder is not burdened by debts that make him insolvent and is also in good health or he is ill but recovers speedily, then all his assets must be considered as included in the donation. If, on the contrary, he is in debt, then he can only donate the things he owned prior to his becoming indebted. Also, if he was not in debt but became ill and died as a result of that illness, he is not entitled to donating a˙bàs except with the express consent of the heirs, as the actions of a sick man who dies as a result of his affliction are regarded as a testament (waßiyya). However, when the founder had a charitable aim in mind, problems such as this did not arise among heirs. This is clear in a legal question addressed to al-Mawwàq involving a man who stipulated 91 Al-Sha'bì, al-A˙kàm, p. 146, no 182; al-Wansharìsì, Mi'yàr, VII, p. 432 (trans. V. Lagardère, Histoire et société, p. 257, no 159). 92 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, III, pp. 1571–1573, no 581; alWansharìsì, Mi'yàr, VII, pp. 75–76. 93 Al-Wansharìsì, Mi'yàr, V, p. 162 (trans. V. Lagardère, Histoire et société, p. 153, no 184).
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in his will that with his third of free disposition a faddàn was to be purchased so that the profits generated by it could be used to buy bread for the weak and the indigent during the holy month of Rama∂àn. He also commanded that, if part of the third still remained unused, it had to be added to the alms (ßadaqa) together with the land. As, in fact, a certain amount of money from the third still remained, al-Mawwàq is asked whether it must be used to purchase a plot of land (maw∂i' ) later to be turned into a ˙ubs like the previous faddàn or, on the contrary, given away among the poor during Rama∂àn or otherwise. He replied that that money must only be handed out if a suitable property, or part of it, cannot be found; if one is found, however, it must be purchased and the money obtained as rent (kirà") distributed in Rama∂àn.94 The only extant Andalusian original documents of ta˙bìs are, indeed, two testamentary donations conducted by Abù Yazìd Khàlid in 1430 and 1452 respectively. They are doubtless the most suitable example to study this type of donation. In the first, the founder stipulated that 20 gold dinars were to be deducted from the third of free disposition in order to buy food and distribute it among the poor and the infirm. The rest of the third would be devoted to ransoming captives and would be divided into two halves, one earmarked for men and the other for fatherless women. He later made another bequest whereby he donated a plot of land fit for irrigation in the village of Belicena (Granada) in favour of a ‘ßùfì lodge (ràbi†a) based there and of a well adjacent to it comprising the building, ropes, buckets and other utensils’. A few years later, and shortly before dying, it seems that he used his right to modify the will—as another one dated in June 1452 has been preserved—and completely changed his previous arrangements. Thus, he resolved that a faddàn and a threshing floor (andur) were to be deducted from the third of free disposition and donated in favour of the fortress of Archidona (˙ißn Arjidhùna), alongside a piece of land for irrigation which he handed over to his partner’s, Qàsim al-Jaysh, two sons. He finally added that if part of the third still remained after both donations had taken place the former would be delivered to Archidona’s fortress.95
94 Al-Wansharìsì, Mi'yàr, VII, pp. 182–183 (trans. E. Amar, ‘La pierre’, XIII, pp. 338–339 and V. Lagardère, Histoire et société, p. 289, no 274). 95 L. Seco de Lucena, Documentos arábigo-granadinos, pp. 12–15 (Arabic) and pp. 12–15 (trans.).
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With regard to the object or goods made into ˙ubs, the first consideration to take into account is that only private property which is legitimately owned can be donated. There are legal questions in the corpus dealing with problems related to this subject and maybe one of the earliest is the case of the faddàn donated by the fatà ˇarìf 96 in favour of his mosque in qaryat ˇurrijìla, a piece of land which was supposed to come from ar∂ al-jizya, that is, dhimmì ’s lands, the only ones forced by law to pay the jizya. The jurists, Ibn Lubàba, Ayyùb b. Sulaymàn, Ibn Walìd and Ibn Ghàlib, argued in their fatwà that the faddàn must continue as a pious endowment until definitive proof (bayyina) was presented to the judge clearly demonstrating that it came from màl al-jizya, in which case he should do the right thing (mà yajib).97 Donations documents had to include a detailed description of the asset and its location when landed property was donated so that it could be identified if necessary. All this allows us to analyse the types of assets, real estate (rural and urban) and personal property (goods and chattels), that were most frequently donated. Notarial formularies advise the inclusion of the description of the asset donated in the document and, although it does not constitute a required section, it is believed that its inclusion helps to complete the donation.98 Ibn al-'A††àr reports on the manner in which this description must be carried out, completely in the first formulary and then summarised in the rest.99 Two types of asset are contemplated: ‘house’ (dàr) and milk, a term generically used to indicate the concept of private property and usually applied to a plot of land or rural property (see infra). As regards the house, the description must include several elements: the area of the town where it is located (eastern or western) as well as the ‘suburb’ (raba∂), the ‘neighbourhood’ (˙awmat masjid ) and the exact boundaries of the house in relation to the cardinal points. Ibn al-'A††àr warns that the description must be discarded if it is not 96 He is not mentioned by M. Meouak, Pouvoir souverain, administration centrale et élites politiques dans l’Espagne umayyade (II e–IV e/VIII e–X e siècles), Helsinki, 1999. 97 Ibn Sahl, Dìwàn, II, pp. 1119–1120. 98 Ibn al-'A††àr, Kitàb al-wathà"iq, p. 181 (trans. P. Chalmeta and M. Marugán, p. 394). 99 Ibn al-'A††àr, Kitàb al-wathà"iq, pp. 171–172, 177 and 180–181 (trans. P. Chalmeta and M. Marugán, pp. 386, 391 and 394–395).
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detailed and all notarial treatises point out that the formula ‘with all its rights, uses and benefits, both stemming from or inherent to it’ must be inserted at the end of it.100 With regard to rural real estate (milk), Ibn al-'A††àr remarks that the village (qarya) which it belongs to, as well as the district and province followed by the description of all the elements it comprises must be recorded: houses, courtyards, threshing floors, stables, fallow and barren lands, olive orchards, fig-trees, vineyards, etc. As in the previous case, the description must conclude with the following formula: ‘With all its rights up to the outside boundaries (˙awz) of this village as well as those parts of the mentioned properties located in the ‘territories of neighbouring villages’, and, if he so wishes, he can add ‘on its four sides, without the founder retaining any right, ownership, usage or utility on these assets, as he has handed his donation (ta˙bìs) over to his present children and those he may sire during the rest of his life in equal parts’.
6.1. Typology: personal property and real estate From a theoretical point of view, the most perfect ˙ubs is that which is established on real estate property as it adapts better to the requirement of being in perpetuity (ta"bìd ) and jurisprudence shows that most of the assets donated were landed property. There are 139 fatàwà which specify the type of asset donated or perused in the legal advice, thus representing a 61.2% of the total amount of 227 that make up the corpus used. The overwhelming majority of those fatàwà involve landed property, 125 out of 139 (89.9%), and the type of asset at stake can be determined in almost all of them, although sometimes generic terms are used which prevent us from discerning what kind of real estate they involve: milk (pl. amlàk, usually, albeit not always, indicating a plot of land)101 and ußùl.102 More obscure is 100
Ibn Mughìth, al-Muqni', p. 323. Ibn Sahl, Dìwàn, II, p. 810; al-Wansharìsì, Mi'yàr, VII, p. 66 and al-Sha'bì, al-A˙kàm, p. 151, no 194; Mi'yàr, VII, p. 157 (trans. V. Lagardère, Histoire et société, p. 285, no 259), VI, p. 246, VII, pp. 220 and 477 (trans. E. Amar, ‘La pierre’, XIII, p. 390), VII, pp. 270–272, VII, p. 432 and al-Sha'bì, al-A˙kàm, p. 146, no 182 (trans. V. Lagardère, Histoire et société, p. 257, no 159); Mi'yàr, VII, p. 440 (trans. E. Amar, ‘La pierre’, XIII, pp. 375–376), VII, pp. 452–453 and Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, I, pp. 320–322, no 70; ed. al-Tajkànì, I, pp. 256–258, no 65 (trans. V. Lagardère, ‘La haute judicature’, p. 164; ‘Abù l-Walìd b. Ru“d’, p. 215 101
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the precise meaning of the term qal'a used in a legal query dealing with a pious endowment founded by a Jew (see above). Within the real estate, rural properties are clearly predominant: 77 fatàwà (33.9%) out of the total amount and a 55.3% of the total 139 where the type of asset is mentioned; the main feature is the use of a significant number of terms and concepts. Most are of a generic nature, limiting our ability to ascertain accurately what type of agricultural property and produce are being discussed. Among them we could single out: andur (threshing floor),103 ar∂ (land),104 ∂ay'a (country estate),105 faddàn106 (yoke of oxen), ˙aql (field, sow field),107 maw∂i' 108 and makàn109 (place or location) and dimna (smallholding).110 Some terms are less vague, like jinàn, janna (orchard).111 Other, less
and Histoire et société, pp. 270–271, no 208); Mi'yàr, VII, pp. 463–464 and Ibn Rushd, Kitàb al-fatàwà, al-Talìlì, II, pp. 728–733, no 168, pp. 1034–1037, no 302 and pp. 1207–1209, no 387, al-Tajkànì, I, pp. 650–657, no 143, pp. 910–912, no 240 and II, pp. 1063–1065, no 290. Ibn Mughìth, al-Muqni', pp. 323, 324 and 327, employs the term milk in the sense of urban real estate when he says that ‘all the property located in such town’ ( jamì' al-milk alladhì bi-˙à∂irat kadhà); when he refers to a piece of land he uses the term ar∂, as in the formulary to make a donation for a graveyard. 102 Al-Wansharìsì, Mi'yàr, VII, p. 454 (trans. V. Lagardère, Histoire et société, p. 257, no 163). 103 Al-Wansharìsì, Mi'yàr, VII, pp. 163–164. 104 Al-Wansharìsì, Mi'yàr, VII, pp. 108–110, VII, p. 119 (trans. V. Lagardère, Histoire et société, p. 260, no 167), VII, pp. 119–120. 105 Al-Wansharìsì, Mi'yàr, VII, pp. 477–478 (trans. V. Lagardère, Histoire et société, p. 263, no 181); Ibn Rushd, Kitàb al-fatàwà, al-Talìlì, I, pp. 345–349, al-Tajkànì, I, pp. 275–279, no 77. 106 Ibn Sahl, Dìwàn, II, pp. 1119 and 1039; al-Wansharìsì, Mi'yàr, VII, pp. 128–129 (trans. V. Lagardère, Histoire et société, p. 287, no 267), VII, pp. 150–151, VII, pp. 182–183 (trans. E. Amar, ‘La pierre’, XIII, pp. 338–339 and V. Lagardère, Histoire et société, p. 289, no 274), VII, pp. 199–200, VII, pp. 202–203, VII, pp. 226–227, VII, p. 459. 107 Al-Wansharìsì, Mi'yàr, VII, pp. 234–235 (trans. V. Lagardère, Histoire et société, p. 274, no 221). 108 Ibn Sahl, Dìwàn, II, p. 1079; al-Wansharìsì, Mi'yàr, VII, pp. 89–91 (trans. V. Lagardère, Histoire et société, p. 279, no 237), VII, p. 91 (trans. V. Lagardère, Histoire et société, p. 279, no 238), VII, p. 114 (trans. V. Lagardère, Histoire et société, p. 277, no 231), VII, p. 127 (trans. V. Lagardère, Histoire et société, p. 287, no 266), VII, p. 134 (trans. E. Amar, ‘La pierre’, XIII, p. 374), VII, p. 140, VII, pp. 183–184, VII, pp. 206–207, IX, pp. 475–476 (trans. V. Lagardère, Histoire et société, pp. 420–421, no 207). 109 Al-Wansharìsì, Mi'yàr, VII, pp. 234–235 (trans. V. Lagardère, Histoire et société, p. 274, no 221). 110 Al-Wansharìsì, Mi'yàr, VII, pp. 139 and 145–146. 111 Ibn Sahl, Dìwàn, II, p. 1117; ed. Khallaf, Wathà"iq fì a˙kàm qa∂à" ahl al-dhimma, p. 65; al-Wansharìsì, Mi'yàr, VII, pp. 438–439 (trans. E. Amar, ‘La pierre’, XIII, pp. 384–387 and V. Lagardère, Histoire et société, p. 262, no 178), VII, p. 440, VII,
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frequent, terms refer to the agricultural produce cultivated, whether vineyards (karm)112 or, mostly, olive orchards (zaytùn, ußùl zaytùn).113 On other occasions, trees are mentioned,114 as well as other related words such as sha'rà",115 or also a particular kind of tree, the mulberry tree.116 Sometimes, several of these expressions are combined, such as field with olive trees (ar∂ wa-zaytùn),117 field and trees (ar∂ wa-shajar),118 field, fruit trees, mulberry leaves, olive trees and other,119 plot of land with olive trees (dimna bi-zaytùn).120 There are fatàwà with mixed references such as a house and an orchard ( janna),121 a house and a field,122 half a house and half a vineyard.123 There are a number of legal queries dealing with donations of qurà (sing. qarya)124 which must be emphasised; this type of donation
pp. 446–451 and Ibn Sahl, Dìwàn, II, p. 1136; ed. Khallaf, Wathà"iq fì shu"ùn al˙isba, pp. 62–93 (trans. V. Lagardère, Campagnes, pp. 155–159 and Histoire et société, pp. 258–259, no 165), X, pp. 369–370; Ibn Rushd, Kitàb al-fatàwà, al-Talìlì, I, pp. 621–624, al-Tajkànì, I, pp. 543–545, no 125; al-Sha'bì, al-A˙kàm, pp. 94–96, no 56. 112 Al-Wansharìsì, Mi'yàr, I, p. 382, V, p. 37 and VII, p. 144 (trans. E. Amar, ‘La pierre’, XIII, pp. 373–374 and V. Lagardère, Histoire et société, p. 267, no 194). 113 Al-Wansharìsì, Mi'yàr, I, p. 158 (trans. E. Amar, ‘La pierre’, XII, p. 68), I, pp. 162–163 (trans. V. Lagardère, Histoire et société, p. 58, no 213), VII, p. 112 (trans. V. Lagardère, Histoire et société, p. 280, no 241), VII, pp. 118–119 (trans. V. Lagardère, Histoire et société, pp. 259–260, no 166), VII, pp. 125–126 (trans. V. Lagardère, Histoire et société, pp. 286–287, no 264), VII, pp. 132–133 (trans. V. Lagardère, Histoire et société, p. 287, no 269). 114 Al-Wansharìsì, Mi'yàr, VII, p. 104 (trans. E. Amar, ‘La pierre’, XIII, p. 328 and M. Shatzmiller, ‘Women and property rights’, p. 251), VII, p. 152 (trans. V. Lagardère, Histoire et société, p. 276, no 227). 115 Al-Wansharìsì, Mi'yàr, VII, p. 153 (trans. P. Guichard and V. Lagardère, ‘La vie économique’, p. 221, V. Lagardère, Histoire et société, p. 261, no 172 and M.I. Calero, ‘Comares’, p. 938). The word sha'rà" is close to sha'àr, with the meaning of ‘trees’, but also could be related to sha'ìr, ‘barley’. 116 Al-Wansharìsì, Mi'yàr, VII, pp. 99–101 (trans. E. Amar, ‘La pierre’, XIII, pp. 334 –337, V. Lagardère, Histoire et société, pp. 276–277), VII, p. 143 (trans. V. Lagardère, Histoire et société, p. 266, no 192). 117 Al-Wansharìsì, Mi'yàr, VII, p. 136 (trans. V. Lagardère, Histoire et société, p. 278, no 235). 118 Al-Sha'bì, al-A˙kàm, p. 151, no 194; al-Wansharìsì, Mi'yàr, VII, p. 66. 119 Al-Wansharìsì, Mi'yàr, VII, pp. 112–113. 120 Al-Wansharìsì, Mi'yàr, VII, p. 141 (trans. V. Lagardère, Histoire et société, pp. 265–266, no 189). 121 Al-Sha'bì, al-A˙kàm, p. 117, no 105; al-Wansharìsì, Mi'yàr, VII, p. 94. 122 Ibn Rushd, Kitàb al-fatàwà, al-Talìlì, II, pp. 959–960, no 275, al-Tajkànì, I, p. 850, no 224. 123 Al-Wansharìsì, Mi'yàr, VII, pp. 130–131. 124 Al-Wansharìsì, Mi'yàr, VII, p. 123 (trans. V. Lagardère, ‘Structures étatiques’, p. 79 and V. Lagardère, Histoire et société, p. 284, no 254), VII, pp. 123–124 (trans.
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is also documented in other Islamic medieval societies such as Egypt under both the Ayyubids and the Mamluks125 and Persia.126 It is likely that, in these cases, qarya is not used in its most common meaning of collective rural settlement (village) but rather that it designates a rural property or farmstead.127 Other references which ought to be included within this section on rural properties are the three concerning mills.128 Castilian documentation is also helpful for studying the typology of assets commonly included in donations. The book of habices of 1501 reveals that, among the Alpujarra’s pious endowments from the 15th century, the most numerous were trees and, within them, mulberry trees, which constituted 75.21% of all the trees donated as ˙ubs, outstripping in terms of percentage points the other species found in all the †à'as of the region. They are followed by olive trees (13.84% of the trees donated as ˙ubs in the Alpujarra) and then by chestnut trees (3.14%), fig trees (2.74%), grapevines (1.53%), ‘almeces’ (1.26%), walnut trees (0.84%), cherry trees (0.69%), poplar trees (0.38%) and others only making up tiny percentages such as apricot trees, pomegranate trees, apple trees, pear trees, plum trees, etc.129 Vines and vineyards, however, are not usually assets donated as ˙ubs although, apart from in Poqueira, Luchar and Albolody, they can be found in all the other †à'as of the Alpujarra.130 With regard to urban properties, there are 36 fatàwà; references to houses (18),131 shops (4)132 and ovens (4),133 fanàdiq (sing. funduq)
V. Lagardère, ‘Droit des eaux’, p. 117 and V. Lagardère, Histoire et société, p. 284, no 255), VII, p. 130 and al-Sha'bì, al-A˙kàm, pp. 152–154, no 196; al-Wansharìsì, Mi'yàr, VII, pp. 228–229; VII, p. 479. 125 See M. Mu˙ammad Amìn, al-Awqàf wa-l-˙ayà al-ijtimà'iyya, pp. 62–63 and 105; C. Cahen, ‘Le régime des impôts dans le Fayyùm Ayyùbide’, p. 25. 126 See A. Lambton, ‘Awqàf in Persia’, p. 313. 127 See P. Guichard, ‘Le problème des structures agraries en al-Andalus avant la conquête chrétienne’, Andalucía entre Oriente y Occidente, Córdoba, 1988, pp. 161–170. 128 Al-Wansharìsì, Mi'yàr, VII, pp. 140–141 (trans. V. Lagardère, ‘La vie économique’, p. 222 and Histoire et société, p. 265, no 188), VII, p. 145 (trans. V. Lagardère, ‘La vie économique’, pp. 222–223 and Histoire et société, p. 267, no 195), VII, pp. 461–462; Ibn Rushd, Kitàb al-fatàwà, al-Talìlì, III, pp. 1050–1051, no 311, al-Tajkànì, II, pp. 923–924, no 241; 'Iyà∂, Madhàhib al-˙ukkàm, pp. 197–198. 129 Apud C. Trillo San José, La Alpujarra, pp. 180–202 (graph) and 211 (comparative table). 130 Apud C. Trillo San José, La Alpujarra, pp. 223–227. 131 Al-Wansharìsì, Mi'yàr, VII, pp. 65–66 (trans. E. Amar, ‘La pierre’, XIII, pp. 321–323), VII, p. 72, VII, pp. 75–76 and Ibn Rushd, Kitàb al-fatàwà, al-Talìlì, III, pp. 1571–1573, no 581; Mi'yàr, VII, pp. 93–94, 99 and 259, VII, pp. 104–105,
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(4),134 buildings (rab'àt, 2 fatàwà),135 baths (˙ammàm),136 workrooms for textiles (†iràz),137 a house, given in donation, and holding a jug of water so that people visiting the market could drink from it,138 houses, shops and ovens.139 Compared to the number of references to real estate, those concerning personal property are very scarce; they appear only in 14 fatàwà, that is 6.1% of the total and 10% out of the 139 legal questions which specify the asset subject of donation. Ibn al-'A††àr mentions in one of his formularies the donation of articles for personal use, like jewels and several kinds and varieties of fabrics and items of clothing, all given away so that they could be borrowed by the poor when getting married.140 The corpus of
VII, p. 158, VII, pp. 198–199, VII, pp. 218 and 431–432 and al-Sha'bì, al-A˙kàm, p. 135, no 148 (trans. E. Amar, ‘La pierre’, XIII, p. 333 and V. Lagardère, Histoire et société, pp. 275–276, no 225); Mi'yàr, VII, pp. 220–221 (trans. V. Lagardère, Histoire et société, pp. 255–256, no 153), VII, p. 223, VII, pp. 277–278 (trans. E. Amar, ‘La pierre’, XIII, pp. 358–361), VII, pp. 281–285, VII, pp. 423–424, VII, pp. 425–426 (trans. V. Lagardère, Histoire et société, p. 256, no 157), VII, p. 439 (trans. E. Amar, ‘La pierre’, XIII, p. 329 and V. Lagardère, Histoire et société, p. 263, no 178), VII, p. 443 (trans. V. Lagardère, Histoire et société, p. 273, no 216), VII, p. 446 (trans. V. Lagardère, Histoire et société, p. 273, no 219), VII, p. 461 and IX, p. 406 (trans. E. Amar, ‘La pierre’, XIII, pp. 391–393). 132 Al-Wansharìsì, Mi'yàr, VII, p. 129, VII, p. 151 (trans. V. Lagardère, Histoire et société, p. 278, no 236), VII, pp. 451–452 and VIII, p. 288 (trans. E. Amar, ‘La pierre’, XIII, p. 53 and V. Lagardère, Histoire et société, p. 270, no 206); 'Iyà∂, Madhàhib al-˙ukkàm, pp. 205–207 (trans. D. Serrano, pp. 361–363). 133 Al-Wansharìsì, Mi'yàr, VII, pp. 201–202 (trans. E. Amar, ‘La pierre’, XIII, p. 391 and V. Lagardère, Histoire et société, p. 280, no 244), VII, pp. 203–204, VIII, p. 235; Ibn Rushd, Kitab al-fatàwà, al-Talìlì, I, pp. 592–598, no 132, al-Tajkànì, I, pp. 520–523, no 121. 134 Al-Wansharìsì, Mi'yàr, VII, pp. 466–467; Ibn Rushd, Kitàb al-fatàwà, al-Talìlì, III, pp. 1340–1341, no 467 (trans. V. Lagardère, ‘La haute judicature’, p. 164, ‘Abù l-Walìd b. Ru“d’, p. 216 and Histoire et société, p. 271, no 210); Ibn Rushd, Kitàb al-fatàwà, al-Talìlì, I, pp. 469–470, no 96 and III, pp. 1634–1635, no 650, al-Tajkànì, I, p. 405, no 90; 'Iyà∂, Madhàhib al-˙ukkàm, pp. 198–199 (trans. D. Serrano, pp. 352–353). 135 Al-Wansharìsì, Mi'yàr, VII, pp. 146–147, VII, pp. 439–440; Ibn Rushd, Kitàb al-fatàwà, al-Talìlì, III, pp. 1569–1571, no 580. 136 Ibn Rushd, Kitàb al-fatàwà, al-Talìlì, I, pp. 667–668, no 154, al-Tajkànì, I, p. 591, no 132. 137 Al-Wansharìsì, Mi'yàr, VII, p. 199 (trans. V. Lagardère, Histoire et société, p. 280, no 242). 138 Al-Wansharìsì, Mi'yàr, VII, pp. 184–185 (trans. V. Lagardère, Campagnes, p. 281 and Histoire et société, p. 286, no 262). 139 'Iyà∂, Madhàhib al-˙ukkàm, pp. 193–197 (trans. D. Serrano, pp. 347–35). 140 Ibn al-'A††àr, Kitàb al-wathà"iq, p. 206 (trans. P. Chalmeta and M. Marugán, p. 367).
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jurisprudence also contains cases involving the donation of oil for lighting mosques,141 a jug of water142 and books.143 Among the cases involving personal property we also find donations of slaves and animals. The donation of slaves is contemplated in Ibn al-'A††àr’s treatise; this suggests that it was not only lawful144 but also that it must have taken place, albeit not very frequently, judging by the scarcity of references to the subject in the available documents. Ibn al-'A††àr’s quotation is found within a formulary devoted to assets donated in order to take part in the jihàd and specifically mentions the ifranjì and the jilliqì slaves.145 Their purpose was that of assisting ‘the warriors who fight in order to spread the faith or any other pious aim’, indicating that any donation of this type that inflicted any harm on the slave would be considered unlawful.146 Likewise, Ibn Far˙ùn reports the case of the slave donated to serve at a mosque (al-'abd al-mu˙abbas fì khidmat al-masjid ), but I have only been able to find one query regarding that case in the corpus.147 As for animals, the most frequently mentioned is the horse, also always in connection with the jihàd. That is the case in notarial treatises148 and the corpus only provides six cases on the issue of donations of horses149 (see chapter 6). There is also the aforementioned 141 Al-Wansharìsì, Mi'yàr, VII, pp. 64–65, IX, p. 399 and al-Sha'bì, al-A˙kàm, p. 508, no 1132 (trans. V. Lagardère, Histoire et société, pp. 405–406); Mi'yàr, VII, pp. 200–201. 142 Al-Wansharìsì, Mi'yàr, VII, p. 162. 143 Al-Wansharìsì, Mi'yàr, VII, pp. 227–228. 144 See D. Santillana, Istituzioni, II, p. 423. 145 E. Lapiedra Gutiérrez, Los cristianos peninsulares vistos por los árabo-musulmanes a través de la terminología de sus crónicas, Alicante, 1997, pp. 248–257: ifranjì designates all Europeans in general and, in particular, Catalonian and Aragonese; jilliqì refers, in general, to Christians from the north western part of the Iberian Peninsula whether they are Leonese, Castilian or Portuguese. 146 Ibn al-'A††àr, Kitàb al-wathà"iq, p. 207 (trans. P. Chalmeta and M. Marugán, pp. 367–368); see R. Vesely, ‘De la situation des esclaves dans l’institution du wakf ’, Archiv Orientalni, 32 (1964), pp. 345–353. 147 Ibn Far˙ùn, Tabßirat al-˙ukkàm, I, p. 221; al-Wansharìsì, Mi'yàr, VII, p. 485. 148 Ibn al-'A††àr, Kitàb al-wathà"iq, p. 206 (trans. P. Chalmeta and M. Marugán, p. 367); Ibn Mughìth, al-Muqni', pp. 325–327. 149 Al-Wansharìsì, Mi'yàr, VII, p. 104 (trans. V. Lagardère, Histoire et société, p. 254, no 148), VII, pp. 181–182 and Ibn Rushd, Kitàb al-fatàwà, al-Talìlì, II, pp. 313–314, no 66, al-Tajkànì, I, pp. 251–252, no 60 (trans. V. Lagardère, ‘La haute judicature’, p. 163, ‘Abù l-Walìd b. Ru“d’, p. 215, Histoire et société, p. 270, no 205), Mi'yàr, VII, p. 218 and al-Sha'bì, al-A˙kàm, p. 205, no 324 (trans. V. Lagardère, Histoire et société, p. 257, no 162), Mi'yàr, VII, p. 423 and al-Sha'bì, al-A˙kàm, pp. 142–143, no 171 (trans. E. Amar, ‘La pierre’, XIII, p. 328 and V. Lagardère, Histoire et société, pp. 256–257, no 158), Mi'yàr, VII, pp. 485–486; Ibn Rushd, Kitàb al-fatàwà, al-Talìlì, III, pp. 1573–1574, no 582.
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case of the doves donated by Khalaf b. A˙mad b. Khalaf al-Anßàrì so that the profits rendered by them would pay for horses to be employed fì sabìl Allàh (see supra). A very common situation seems to have been the donation of parts of goods which, sometimes, were shared with other owners. There are a great deal of legal questions dealing with problems related to this type of donations, for instance when the goods donated were indivisible: in these cases, the sale of the shared goods was lawful, even with regard to the parts donated as pious endowment (see chapter 9). 6.2. Special cases: foodstuffs Among personal properties there were some whose donation aroused legal concerns regarding the requirement of perpetuity (ta"bìd ), as opposed to those assets whose use entails their consumption. Among them are foodstuffs, whose usufruct entails their consumption and for this reason are considered unlawful within the school, as revealed in the opinions of Nasrid jurists like Ibn Juzayy and Ibn Salmùn.150 A fatwà by Abù Mahdì-l-Mawàsì encapsulates rather fittingly the issues arising from the donation of this kind of goods, in connection with the ta˙bìs set up by 'Alì b. Óumayd al-Sufyànì in favour of Abù Sa'ìd b. Mu˙ammad al-Sabtì involving ‘all of the stone-pit known as Ibn Kulayb’s and the cultivations found there’ ( jamì' maq†a' Ibn Kulayb wa-l-ghars al-qà"im bi-hi ). The man requesting the fatwà asks whether such a donation is lawful, given that the beneficiary will not be able to enjoy usufruct of it ‘until after he has destroyed it, digging the earth and felling the trees’, this being tantamount to ‘selling the ˙ubs and destroying its substance’. The legal expert agrees with the mustaftì and points out that, thanks to local custom ('àda), it is certain that the usufruct of such a stone-pit (maq†a' ) entails ruining it and obliterating its parts little by little until all of it disappears. This is akin, therefore, to donating foodstuffs, a practice banned by the 'ulamà", as it is only possible to exercise usufruct of them by destroying their substance, thus besmirching the nature of the ˙ubs. However, he proceeds, there are discrepancies regarding the donation
150 Ibn Juzayy, Al-Qawànìn al-fiqhiyya, p. 375; Ibn Salmùn, apud O. Pesle, La théorie et la pratique des habous, p. 37.
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of goods whose usufruct can only be exercised by exchanging them for others, such as money given as a loan; those who support this practice, however, do not regard this as a ˙ubs as the beneficiary is entitled to sell them, whereas ‘one of the characteristics of a ˙ubs is its inalienability’ (min khàßiyyat al-˙ubs 'adam jawàz bay'i-hi ). Anyhow, it is not the same issue as that dealt with in this case as their status is that of edibles; the donation of the stone-pit (maq†a' ) will therefore be invalid, as well as its sale, as is the case with foodstuffs. As A˙mad al-Wansharìsì himself says when commenting on al-Mawàsì’s fatwà, the term ta˙bìs means the prohibition of exercising the right to freely dispose of the donated asset and to destroy it, so that one can only describe it as ˙ubs if the latter is not altered or destroyed.151 The Maghribi legal expert Ibn al-Qabbàb expresses similar opinions when consulted on the case of a man who received a donation of foodstuffs for him to consume and asked the founder to annul the prohibition (˙ajr) of the ˙ubs and make it a hiba so that he could share them with other people or dispose of them in whichever way he wished. The founder granted his wish and the beneficiary handed those foodstuffs to other people. The faqìh replies that it is licit to donate any thing whose substance is not altered when usufruct of it is exercised, like a plot of land, a house, cattle and other similar assets. A thing whose usufruct necessarily entails the loss of its substance, as is the case with foodstuffs, does not constitute, however, a ˙ubs but, rather, a hiba or a ßadaqa.152 Another legal query on the subject is addressed to the Nasrid Abù 'Abdallàh al-Saraqus†ì and deals with the case of a certainly original donation. It involves a man who stipulated in his will that a hundred qada˙ of barley were to be deducted as a ˙ubs from his third of free disposition and lent to poor peasants unable to buy seed so that they could sow it on their lands; once the harvest arrived and new seeds germinated, they were to return the amount taken in loan to its place of origin. That is, the founder set up a sort of seed ‘bank’ for poor peasants. In his response, al-Saraqus†ì states that the masters of the Màlikì school are divided into two groups as
151 Al-Wansharìsì, Mi'yàr, VII, pp. 343–347 (trans. E. Amar, ‘La pierre’, XIII, pp. 353–358). I take into account here the remarks made by A. Carmona, AlQan†ara, XXV (2004), p. 259. 152 Al-Wansharìsì, Mi'yàr, IX, pp. 163–164 (trans. E. Amar, ‘La pierre’, XIII, p. 348).
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regards the donation of foodstuffs (ta˙bìs al-†a'àm). Some regard it as invalid due to the afore-noted reason that assumes that for a ˙ubs to be lawful it is to be set on that upon which usufruct can be exercised without consuming its substance: according to this view, the ˙ubs must be annulled and be transformed into an inheritance. Other jurists, among them Ibn Rushd, reject the ta˙bìs of foodstuffs but accept it when it takes place. He ends his response by indicating that in the case of choosing the first option, it would be advisable for the heirs to respect the founder’s decision, although they are not obliged to do so.153 Lastly, there is a case in which enquiries are made regarding someone who donates his cows’ milk in favour of the poor and, a few years later, would like to change the purpose of his donation so that, in the aftermath of his death, his cows can be donated in order to ransom captives. The reply states that if he had entrusted the task of distributing the milk to a third party, he would have no right to shift the aim, whilst if he undertook this duty himself, he could make use of it as he pleases for, if he does not assign it to a specific purpose and it remains under his ownership when he dies and has not been handed over to someone else responsible for distributing the donation among the poor, it would be regarded as an inheritance.154 The predominance, indeed, of donations of real estate—and agricultural lands in particular-followed by urban buildings is clear. Even though we can venture this estimate, we lack, however, enough data to gauge the weight of pious endowments in the Andalusian economy in a particular period or phase. There are references in some Andalusian sources to the broad extension reached by pious endowments in the Mahsriq. For instance, during his visit to Damascus in 580 h/1184, the Andalusian traveler Ibn Jubayr mentioned the vast abundance of this kind of goods in all the country when describing the places of worship and monuments around the Syrian capital.155 Similarly, during his qà∂ìship in Cairo in 786 h/1384, Ibn Khaldùn,
153
Al-Wansharìsì, Mi'yàr, VII, pp. 120–121 (trans. V. Lagardère, Histoire et société, p. 264, no 183). 154 Al-Wansharìsì, Mi'yàr, VII, pp. 76 and 105: in the first version the fatwà is addressed to the fuqahà" al-Andalus and in the second to Abù Íàli˙ Ayyùb b. Sulaymàn. 155 Ibn Jubayr, Ri˙la, p. 248: ˙attà inna al-balad takàdu al-awqàf tastaghriq jamì' mà fì-hi. See A. García Sanjuán, ‘Les awqàf à Damas à la fin du XIIe siècle à travers la relation de voyages d’Ibn ]ubayr’, Bulletin d’Études Orientales, forthcoming.
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whose family emigrated from Seville after the Christian conquest of the city in 1248 and personally visited Granada, stressed the innumerable diffusion of awqàf in the Egyptian capital.156 There is nothing similar to this in our sources with regard to al-Andalus and, therefore, maybe this information could be taken as indirect references of the greater economic relevance of pious endowments in the Mashriq. The aforementioned reference of Ibn Khaldùn to the large proliferation of pious endowments in Cairo is confirmed by modern scholarly studies. According to M. Mu˙ammad Amìn, towards the end of the Mamluk period (approximately 1250 h/1517) in Egypt ten qirà† of agricultural land had been turned into waqf, representing almost half of the twenty-four existing in the whole country. This author also states that ‘most’ of the buildings of Cairo and al-Fus†àt were waqf .157 Whether one agrees or not with these conclusions— they may seem exaggerated—the truth is that the greater availability of Egyptian documents makes it possible, nonetheless, to suggest estimates of this nature, whereas in the case of al-Andalus the sources do not allow it. Whilst family donations involve, almost exclusively, real estate— basically land and dwellings- beneficent donations involve both types (goods and real estate). The fact that jurisprudence does not supply a single case of family donation consisting of personal belongings is quite significant. The type of assets given in donation for ‘pious’ purposes varies, however, depending on the concrete undertaking: horses, donkeys, swords and slaves for the jihàd and land, houses, shops, ovens, etc., for mosques or for the sick and the poor.
7. Testimony (shahàda) The testimony of witnesses was a very important element in the act of foundation, specially when problems or conflicts arose, because it was the legal way to validate the waqf. There are a number of legal questions dealing with this issue which reveal that there were three
156 A. Cheddadi, Ibn Khaldûn. Le voyage d’Occident et d’Orient. Autobiographie, Paris, 1980, p. 154. 157 M. Mu˙ammad Amìn, al-Awqàf wa-l-hayà al-ijtimà'iyya, p. 98 (note 5) and 278.
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ways of testifying.158 The first and most common was the written testimony contained in the donation document, which is called al-shahàda 'alà-l-ja††. When the act of foundation was not made in a written document, then the testimony of witnesses was oral, being called alshahàda 'alà-l-samà'. There was a third way of certifying the validity of the ˙ubs when no written document exists or it was lost and the witnesses were dead. In those cases, a pious foundation could be validated by common knowledge or local tradition, a type of validation called al-samà' al-fàshì in legal sources. The usual formula in notarial treatises for the testimony in a written document was: ‘the witnesses confirm that what the founder X has declared is true and his testimony can be invoked and used against him concerning what has been recorded supra’.159 After that, the signatures of the founder and the witnesses are recorded and the document is dated; several copies of the deed are made available to the founder and beneficiaries. The witnesses also had to act as referees for the founder and vouch for him as Ibn al-'A††àr notes that if they are aware of the fact that he is the legal owner of the property which is being donated the donation is even more complete. This circumstance should be recorded thus: ‘the witnesses know that the founder is the legal owner of the property he is giving in donation through this document and has not relinquished ownership on any part of it nor lost control of it, as far as they know, up to the moment when this deed is being recorded’.160 In the formulary used to donate horses and weapons, Ibn Mughìth includes a reference concerning the fact that eye-witnesses must be present when the founder of a certain asset surrenders the latter to the person entrusted with managing it: ‘the witnesses provide testimony regarding the recipient, who is their acquaintance, and have witnessed the handing over of the object given out in donation by the founder and how the said recipient has taken possession of it’.161 The death of any of the witnesses taking part in the donation or the loss of the donation deed could lead to another document being
158
See for instance Ibn Sahl, Dìwàn, I, pp. 150–168. Ibn al-'A††àr, Kitàb al-wathà"iq, p. 184 (trans. P. Chalmeta and M. Marugán, p. 399); Ibn Mughìth, al-Muqni', pp. 324 and 326. 160 Ibn al-'A††àr, Kitàb al-wathà"iq, p. 184. 161 Ibn Mughìth, al-Muqni', p. 326. 159
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recorded at the request of the beneficiaries in which the testimony supporting the legitimacy of the operation could be revalidated; a formulary for this eventuality is included in Ibn al-'A††àr’s treatise.162 In his legal compilation, Ibn Sahl includes a long text with different parts dealing with this kind of testimony. In the first part he copies three documents of this kind taken from his main source, the A˙kàm of the qà∂ì Ibn Ziyàd,163 but he asserts that the jurists (shuyùkh) involved in it did not stipulate the way in which this kind of testimony should be made (kayfiyyat shahàdat al-samà' ) nor for how long a time it is valid to make it (al-mudda allatì tajùzu fì-hà). In the second part Ibn Sahl explains that the witness must say that he knows a given house, located in a given place and with given limits, and that for twenty or thirty years prior to his testimony he has been hearing from honest people (ahl al-'adl wa-gayru-um) that a given house or a given property (milk) was ˙ubs in favour of a given mosque or the sick from a given place, or in favour of a given man and his offspring, and that the ˙ubs was respected in the right way (kànat mu˙tarima bi-˙urmat al-a˙bàs). This is, he says, the legal practice ('amal) for this aspect. Ibn Sahl goes on to explain different aspects of this kind of testimony, in view of the varying opinions held on questions which are controversial. For example, in the book of Ibn Óabìb it is said that Mu†arrif and Ibn al-Màjishùn hold that two witnesses are enough, but it is recommended (a˙abb ilay-nà) to have more, while in al-Thamàniyya, Ibn al-Màjishùn says that at least four witnesses are required, because this is the number stipulated in cases of unlawful sexual intercourse (zinà). The same jurists and Aßbagh hold that this oral testimony (shahàdat al-samà' ) is valid for fifteen years, while, in al-Mawàziyya, Ibn al-Qàsim says that Màlik’s opinion was that such a period was not valid, except when there is a great epidemic ( fì kathrat al-wabà"), because in this situation, as when much time has passed (tùl al-sinìn), things become forgotten (indarasa al-amr).164 Finally, in the third part of this long text Ibn Sahl includes a real case which happened in Córdoba concerning a house. The witnesses testified to the qà∂ì A˙mad b. Mu˙ammad b. Íàli˙ b. Ma'àfì that
162 Ibn al-'A††àr, Kitàb al-wathà"iq, pp. 236–237 (trans. P. Chalmeta and M. Marugán, pp. 376–377). 163 Ibn Sahl, Dìwàn, II, 1085–1087. 164 Ibn Sahl, Dìwàn, II, 1087–1089.
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they were aware that since 255 h/868–869 and until 293 h/905–906 (or 273 h/886–887), the house was a ˙ubs in favour of Walìd b. Muwaffaq and Umm al-Kunùz bt. Muwaffaq, and another two people, and their offspring, and that they know all these beneficiaries in person and by their names, and that they had lived there until they died and that their children have done the same after them. Then the document describes the transfer of the ˙ubs between beneficiaries for several generations after the death of Walìd and Umm al-Kunùz. At a certain moment, the house seems to have been purchased, although the text is not clear on this point, as the same Ibn Sahl notes below, and the legal answer, given by six jurists ('Ubayd Allàh b. Ya˙yà, Ibn Lubàba, Ayyùb b. Sulaymàn, Mu˙ammad b. Walìd, Ya˙yà b. 'Abd al-'Azìz and A˙mad b. Ya˙yà b. Abì 'Ìsà), is that this sale must be declared null and void and the ˙ubs rendered to those who would be considered as legal beneficiaries.165 The testimony constituted an essential element when, for instance, feuds à propos the legitimacy of a certain ˙ubs occurred. One that has been preserved involves the case of a man who owned an asset donated to him by his father whose ownership was claimed by the daughter of his maternal aunt, that is his direct cousin; the latter alleged that the ownership of this ˙ubs had been jointly shared by her mother and her cousin’s father, that is her uncle.166 A factor which must be taken into account when perusing Ibn Rushd’s response is that although it is not explicitly indicated, one is to deduce that the beneficiary of the said ˙ubs is not in possession of the donation deed as its witnesses can only confirm its validity ‘according to what they have heard’ ('alà-l-samà' ). Thus, Ibn Rushd notes that if those witnesses (shuhùd ) who have given testimony 'alà-l-samà' were to do the same when it came to preserving the inviolability of the ˙ubs, then the testimony of those claiming that the asset does actually constitute a property is more valid; if they do this, instead, relying on their own personal knowledge, without hesitation and with absolute conviction, one will then have to act in accordance with the testimony which appears fairest. The donation of personal belongings required, apart from the appropriate document duly testified, the existence of some indication 165
Ibn Sahl, Dìwàn, II, 1089–1090. Al-Wansharìsì, Mi'yàr, VII, p. 441; Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, III, p. 1567, no 577. 166
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authenticating their condition as ˙ubs. In this respect, Ibn Rushd points out that books had to include some indication of the fact that they had been given in donation alongside the signatures of witnesses authenticating this fact.167 A similar arrangement applied to horses, which had to be appropriately branded in order to ascertain that they constituted a ˙ubs, as indicated in one of Ibn Mughìth’s formularies and confirmed by two fatàwà issued by Ibn Zarb and Ibn al-Fakhkhàr168 (see Chapter 6). One issue related to this aspect of the legal act of founding a pious endowment is the validity of a woman’s testimony.169 Ibn Rushd, in response to a question posed by the legal scholar Abù 'Abdallàh Mu˙ammad b. Óassùn (d. 519h/1125) from Málaga, notes that the predominant and most widespread view among Màlikì jurists (al-mashhùr al-ma'lùm) is that this kind of testimony is valid ('àmila) considering the fact that, as far as testimonies are concerned, a˙bàs fall under the category of assets and there are no disagreements when it comes to accepting a woman’s testimony in this type of cases. However, he warns, Ibn Màjishùn and Sa˙nùn believe that women’s testimonies are only valid in those cases where a witness has been allowed to swear an oath so that if it is understood that the ownership of a ˙ubs can be disputed based on a witness’s oath, one would have to conclude that a woman’s testimony cannot be taken into account. He remarks, though, that the views expressed by 'ulama" differ on this particular issue.170 The same jurist was asked by someone from Lisbon about a case I have already referred to concerning a father and his four children, two sons and two daughters, who donated his house and a piece of land to his sons while his daughters acted as witnesses and gave testimony on the implementation or start of the ˙ubs in favour of their
167 Al-Wansharìsì, Mi'yàr, VII, pp. 181–182; Ibn Rushd, Kitàb al-fatàwà, ed. alTalìlì, III, pp. 1573–1574, no 582 (trans. V. Lagardère, ‘La haute judicature’, p. 163, ‘Abù l-Walìd b. Ru“d’, p. 215 and Histoire et société, p. 270, no 205). 168 Ibn Mughìth, al-Muqni', p. 326; al-Wansharìsì, Mi'yàr, VII, p. 218 (trans. V. Lagardère, Histoire et société, p. 257, no 162), VII, p. 423 (trans. V. Lagardère, Histoire et société, pp. 256–257, no 158). 169 See M. Arcas Campoy, ‘El testimonio de las mujeres en el derecho màlikí’, Homenaje al Prof. Jacinto Bosch Vilá, Granada, 1991, I, pp. 473–479. D. Peláez Portales, ‘La habilitación de testigos en el derecho musulmán medieval’, Cuadernos de Historia del Derecho, 6 (1999), pp. 301–324, does not consider this aspect. 170 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, I, p. 231, no 42; ed. al-Tajkànì, I, p. 189, no 37.
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brothers. The issue is that, although both had been married for years, the father still considers them as under his tutelage (wilàya) and the individual making this query asks whether their testimony is legal or not. Ibn Rushd indicates that, by virtue of their marriage, both daughters are regarded as adults and therefore their intervention as witnesses when the ˙ubs is set up by their father is valid.171 As J. López Ortiz points out, ‘in order for a woman to be emancipated she must have, apart from having reached puberty, consummated her marriage and given express consent, with all the formalities hereby attached, or must have reached an age when she is likely not to find a suitable husband any longer; that age is arbitrarily set by the fuqahà’.172
8. Standard formulas: perpetuity of a donation One of the fundamental requirements of a ta˙bìs is its perpetual character and, as a result, the donation deed must always include certain formulas recalling the Qur"àn whose aim is to highlight the eternal and inalterable nature of a donation. They commonly go after the reference to the ultimate beneficiary (marja' ), precisely to stress the connection of the ˙ubs with that particular purpose; they are, almost invariably, identical, with slight variations. The most usual wording is based on a combination of the Qur"ànic verses XIX, 40 and XXI, 89, thus:173 For ever and ever and until the end of times, without altering their state or modifying the aims for which such properties were donated, till they are inherited by God, remaining under His tutelage, according to the original stipulations of the ˙ubs, for He is the heir of the earth and all those dwelling on it and He is the best inheritor. Whoever tries to change or alter it will be accountable to God and, lacking any intercessor or convincing arguments, He will mete out His revenge. Whoever acts unjustly knows what punishment is in store for him.
Ibn Mughìth, for his part, includes a shorter version in his formularies, albeit with identical meaning:174 ‘˙ubs eternal and in perpetuity for 171
Ibid., II, pp. 959–960, no 275; II, p. 850, no 224. J. López Ortiz, Derecho musulmán, p. 136. 173 Ibn al-'A††àr, Kitàb al-wathà"iq, pp. 173, 178 and 181 (trans. P. Chalmeta and M. Marugán, pp. 387, 391 and 394). 174 Ibn Mughìth, al-Muqni', pp. 324, 325 and 328. 172
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ever and ever, while there is dawn and the wind blows, until God inherits the earth and its dwellers, for He is the best heir’. The eternal or perpetual character stressed by these formulas is not simply rhetorical in nature; together with the notion of pious aim, it in fact constitutes one of the essential elements in the legal definition of a ˙ubs. That is why we sometimes observe how jurists command that an asset be returned to its original condition of pious endowment even though some years may have elapsed since it was originally donated, as shown by a fatwà issued by Ibn Rushd175 concerning the case of the endowments of a certain village used in usufruct by a man as a ˙ubs donated in his favour and that of his descendants; the assets were sold by the beneficiary without the buyer having any knowledge of what type of property he was actually acquiring. When, seventy years later, the seller’s son brings to everyone’s attention that those assets were ˙ubs by producing the corresponding document, Ibn Rushd orders that they be reinstated to their original condition. Cases such as this do not prevent a˙bàs from being put for sale or having their conditions of usufruct altered on many occasions (see Chapter 9). Similarly, texts also sometimes provide indications as to the age of some a˙bàs or how much time has passed between the moment they were donated and the time a problem arises and the intervention of a faqìh is requested to shed light on the matter, like in the case of a forest in the district ('amal) of Comares (Málaga), donated in favour of the mosque the previous century.176 Ibn al-Makwì refers in one of his fatàwà to a man who donated a field in favour of his poorest relatives on his father’s side and the arrangement lasted for at least eighty years.177 Ibn Sahl is asked about a group of women who decide to lease a plot of land for a period of fifty years although, in the end, the jurist does not approve of the leasehold period as he deems it too lengthy.178 In the following ruling, Ibn al-Qa††àn
175 Al-Wansharìsì, Mi'yàr, VII, pp. 452–453; Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, I, pp. 320–322, no 70; ed. al-Tajkànì, I, pp. 256–258, no 65 (trans. V. Lagardère, ‘Abù l-Walìd ibn Ru“d’, p. 215, ‘La haute judicature’, p. 164 and Histoire et société, pp. 270–271, no 208). 176 Al-Wansharìsì, Mi'yàr, VII, p. 153 (trans. P. Guichard and V. Lagardère, ‘La vie sociale’, p. 221; V. Lagardère, Histoire et société, p. 261, no 172). 177 Al-Sha'bì, al-A˙kàm, pp. 151–152, no 159; al-Wansharìsì, Mi'yàr, VII, p. 435. 178 Ibn Sahl, Dìwàn, II, pp. 717–730; al-Wansharìsì, Mi'yàr, VII, p. 437 (trans. V. Lagardére, ‘Structures étatiques’, p. 93 and Histoire et société, p. 269, no 202).
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annuls the lease of an orchard adjacent to al-Zahrà", to the east of Córdoba, let for thirteen years.179 Al-Óaffàr is asked about a field donated as a graveyard fifty years earlier.180 Ibn 'A††àb rules on a feud involving a Muslim and a Jew à propos an orchard donated thirteen years previously181 and Ibn Rushd refers to a man who had donated a piece of land to be used as a burial place and was used for that purpose for thirty years.182 In other instances there is no mention of the time which has elapsed but a vague allusion to it is often made.183 Immediately after indicating that the donation was made in perpetuity, the founder must confirm that he is aware of the ‘legal repercussions’ (qadr) and the ‘material value’ (mablagh) of his action as well as the fact that his intention was pious when establishing the donation, as, if the contrary were the case, it would lack any legal validity and could be annulled by virtue of the concept of ‘reservation’ (istir'à"). The written document drawn up based on all these elements, requirements and clauses was kept by the founder and made available to the successive beneficiaries if the donation involved a family ˙ubs. That document was legally binding and could be used as evidence before the qà∂ì when grievances or complaints arose affecting the ta˙bìs or a founder’s assets, for instance when the latter was in debt as shown by the previous fatwà by Ibn Rushd or another by the same faqìh regarding a very similar case.184 If a document was lost or became corrupt, proof of a donation could be demonstrated before the qà∂ì by resorting to the testimony of the witnesses who had participated in the process or that of others who had known them, or even because it was common knowledge that a donation had gone ahead ('alà-l-samà' al-fàshì ). Ibn 'A††àb notes in a fatwà, however, that in spite of the fact that damage to the document
179 Al-Wansharìsì, Mi'yàr, VII, p. 438 (trans. V. Lagardère, Histoire et société, p. 261, no 175). 180 Al-Wansharìsì, Mi'yàr, VII, p. 150. 181 Al-Wansharìsì, Mi'yàr, VII, pp. 438–439 (trans. E. Amar, ‘La pierre’, XIII, pp. 384–387 and V. Lagardère, Histoire et société, p. 262, no 178). 182 Al-Wansharìsì, Mi'yàr, VII, pp. 458–459 (trans. V. Lagardère, Histoire et societé, p. 271, no 209). 183 Al-Wansharìsì, Mi'yàr, VII, p. 139 (trans. V. Lagardère, Histoire et société, p. 265, no 186). 184 Al-Wansharìsì, Mi'yàr, VII, p. 462; Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, II, pp. 1114–1115, no 344; ed. al-Tajkanì, II, p. 981, no 265.
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represents a serious drawback, it does not necessarily lead to its revocation.185
9. Modalities of agricultural exploitation and usufruct The last aspect we need to turn our attention to is that of the methods of usufruct of pious endowments which must be included in this chapter due to their pronounced legal character. In effect, at least from the 4th/10th century, accounts of production in al-Andalus, both in towns and in the countryside, were characterised by the prevalence of contractual modalities contemplated in the fiqh, whose variety is clearly demonstrated by notarial treatises and jurisprudence. Those same contractual modalities apply to pious endowments; there are no differences between the latter and private properties. In this context, the corpus of jurisprudence provides information that there were two contractual modalities of agricultural exploitation of the assets donated as pious endowments: lease and sharecropping, the latter applying exclusively to rural properties. When the lease involves a residence or urban building, it is known as kirà", whereas if it involves land or another rural asset it is called qabàla. As we shall see, the difference between kirà" and qabàla is actually purely nominal as, from a legal perspective, both contracts are identical. As for share-cropping, it is well-known that the fiqh recognises three different types of contracts, each with its specific characteristics: farming (muzàra'a), irrigation (musàqà) and co-plantation (mughàrasa).186 Discrepancies exist on the last mode as to whether its use is legal or not in properties turned into a˙bàs. Ibn al-'A††àr supplies several examples of leases of a˙bàs in one of his formularies, specifically of lease (kirà") of a residence and of qabàla, of farming or of irrigation involving rural properties. As he unequivocally states at the end of the said formulary, in the section devoted to jurisprudence, the undertaking of any of these contracts on the part of the beneficiary when receiving his ˙ubs amounts to his taking possession of the asset (˙iyàza).187 185
Al-Wansharìsì, Mi'yàr, VII, p. 455. On these contracts see P. Chalmeta, ‘España musulmana’, p. 494 and ‘Estructuras socio-económicas’, p. 37; V. Lagardère, Campagnes, pp. 125–154. 187 Ibn al-'A††àr, Kitàb al-wathà"iq, pp. 180–185 (trans. P. Chalmeta and M. Marugán, pp. 394–400). 186
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9.1. Leasehold A first type of usufruct, probably the most widespread, was letting the property in return for a monthly cash payment. There are two types of contract in this respect which, albeit identical, are given different designations depending on the type of endowment involved. The first, called kirà", is the lease of an urban building, either a residence or a shop. The second, known as qabàla, applies to the leasing of rural properties, especially land but also mills and other buildings. There are two separate terms designating the leasing of a property: one is that of ‘lease’ (kirà") used in the appropriate context whilst the other is that of qabàla which can be literally translated as ‘guarantee’. In fact, both concepts refer to the same type of contract and the only difference seems to reside in the fact that each one of them is employed for a specific type of asset. With regard to the contract of kirà" Ibn al-'A††àr speaks of a contract drawn up for a period of two or more years and paid monthly.188 But the contract of qabàla is more frequently used in relation to pious endowments; its meaning in this context must not be confused with the one it has in fiscal terminology as the same concept designates, in al-Andalus, the leasingout of the collection of fees levied ad valorem on commercial transactions.189 Thus, the contract of qabàla is not exclusive to a˙bàs but it could also be drawn upon private properties. Notarial treatises include formularies of qabàla involving salt mines, mills and orchards.190 With regard to its content, the qabàla involves leasing out the usufruct of the asset in exchange for paying a certain amount in cash or in kind, as shown in Ibn al-'A††àr’s work à propos salt mines. It is interchangeable therefore with the concept of kirà" and, in fact, both terms are often interchanged. This is the case in treatises written for the instruction of future notaries: Ibn al-'A††àr employs the
188 Ibn al-'A††àr, Kitàb al-wathà"iq, pp. 181–182 (trans. P. Chalmeta and M. Marugán, pp. 394–395). 189 P. Chalmeta, ‘Estructuras socio-económicas’, p. 44. Owing, probably, to his predatory behaviour, Ibn 'Abdùn, Risàla, pp. 220–221 (trans. E. García Gómez, pp. 104–108, nos 61 to 66), describes the collector of these taxes or mutaqabbil (spanish alcabalero) as ‘the wickedest of God’s creatures’ and is extremely scathing in his criticism of him. 190 Ibn al-'A††àr, Kitàb al-wathà"iq, pp. 199–202 and 391–392 (trans. P. Chalmeta and M. Marugán, pp. 352–356 and 613–614); Ibn Mughìth, al-Muqni', pp. 221–224 and 225–228.
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term kirà" at the end of a formulary on qabàla and refers in another to the lessee (mutaqabbil ) as muktarì;191 Ibn Mughìth uses the verbal forms taqabbala and iktarà interchangeably192 and al-Jazìrì asserts that some notaries customarily begin a lease contract with the term qabàla, when involving an orchard and a mill and a salt mine, although he considers it more appropriate to use the term kirà".193 Examples of the use of both concepts of kirà" and qabàla interchangeably can also be found in jurisprudence.194 Sometimes the form kirà" is employed in relation to the lease of a piece of land, as in the case posed to Ibn Rushd from the town of Málaga.195 According to A. Lambton, the practice of letting pious endowments did not contribute to the development of agriculture due to the reluctance on the part of the tenant to improve cultivation conditions in a property which, after all, did not belong to him; this attitude could gradually lead to deterioration of the agricultural property involved.196 This was the major factor leading to the decline of the revenues yielded by a˙bàs during the 16th century: negligence on the part of landlords who ‘were not particularly interested in the upkeep and improvement of the said a˙bàs and whose only worry was to secure the payment of rents due to them’.197 This resulted in a change of system, with leasing giving way to census whose perpetual character gave those subject to the latter a more enhanced degree of association with the property. Perhaps this is the reason why jurists insist on limiting the contract of qabàla temporarily in order to pre-empt the possibility that a tenant’s lack of interest towards land which did not belong to him could be damaging to the property. According to Ibn al-Qàsim’s tradition of Malik’s opinion, private a˙bàs ('alà qawm bi-a'yàni-him), should
191
Ibn al-'A††àr, Kitàb al-wathà"iq, pp. 183 and 201. Ibn Mughìth, al-Muqni', p. 221. 193 Ibn Mughìth, al-Muqni', p. 215. 194 Al-Wansharìsì, Mi'yàr, VIII, p. 287 (trans. P. Guichard and V. Lagardere, ‘La vie sociale et économique’, pp. 231–232; V. Lagardére, Histoire et société, pp. 352–353, no 270). 195 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, I, pp. 621–623; ed. al-Tajkànì, I, pp. 543–545, no 125. 196 A. Lambton, ‘Awqàf in Persia’, p. 318. 197 K. Garrad, ‘La renta de los habices de los mezquinos de las Alpujarras y valle de Lecrín’, pp. 46–47. On the imposition of censuses on a˙bàs in the hands of the Church see C.J. Garrido García, ‘El apeo de los habices de la iglesia parroquial de Abla (Almería) de 1550’, p. 92. 192
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not be rented for more than two years because of the possibility of the benficiary’s death (li-l-garar alladhì fì-hi bi-intiqà∂ qabàlat man màta min-hum). As for the public foundations, the Córdoban legal tradition ('amal) stipulated a leasing of four years for lands and only one year for urban real estate, that is, houses, shops and fanàdiq: these goods were rented every year in Córdoba in a public auction lasting eight days just after the lamb feast ('ìd al-a∂˙à), the main celebration of the Islamic calendar, which occurs on the 10 of Dhù-l-˙ijja. This was, according to Ibn Sahl, Ibn al-'A††àr’s opinion, which he certifies himself (hàdhà alladhì shàhad-nà na˙nu bi-Qur†uba).198 Thus, the formulary of qabàla in Ibn Mughìth’s treatise notes, à propos the leasing of endowments belonging to mosques, the poor and the infirm, that Toledo’s judges advised that the contract had not been subscribed for more than four years, lest they were dilapidated when entrusted to tenants for long periods of time since the benefits derived from spreading manure or other types of fertiliser on the fields did not last beyond that period in the opinion of experts in the subject.199 The last comment regarding the possibility of an asset being frittered away at the hands of a tenant is quite indicative of the prevailing idea that a tenant did not endeavour to improve the property nor ensure its upkeep by, for example, fertilising it frequently enough. Nasrid jurists were of the same opinion and they stipulated the need to limit the leasing of public pious endowments. Ibn Salmùn suggests a maximum period of two years, although he also records Ashhab’s views according to which a lease was lawful for a period of four years or even longer.200 Al-Shà†ibì states in a fatwà that letting a ˙ubs for an unspecified period, or one regarded as too lengthy, is not a legal procedure: its unspecified nature would be akin to an ‘unknown lease’ and too long, giving the individual making use of the endowment an ideal opportunity to seize it upon the death of those who knew the terms under which the donation had been made
198
Ibn Sahl, Dìwàn, II, pp. 722 and 1095. Ibn Mughìth, al-Muqni', pp. 224–225. Reproduced with some additions in alSha'bì, al-A˙kàm, pp. 259–260, no 467 and al-Wansharìsì, Mi'yàr, VII, p. 437 (trans. V. Lagardère, Histoire et société, p. 257, no 159). 200 Apud P. Cano Ávila, ‘Jurisprudencia andalusí en el arrendamiento de tierras’, in J.Mª Carabaza Bravo and A. Tawfik (eds.), El saber en al-Andalus. Textos y estudios (II), Seville, 1999, p. 27. See also O. Pesle, La théorie et la pratique des habous, pp. 115 and 118. 199
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and those who had been witnesses. He adds that as the rent can be increased as time goes by, letting it out for a long time would be detrimental to the interests of the ˙ubs.201 But even if that legal tradition was prevalent, the renting of pious endowments properties for more than the recommended period was not unlawful and, in fact, there was controversy over this issue. This view is held by Ibn Rushd in his response to a case concerning a property donated in favour of the poor tribesmen of the Banù Is˙àq. He remarks, to conclude his arguments, that the manager (nàΩir) must not let goods donated to mosques, the poor or to other charitable purposes for more than four years (in the case of land) or one if it consists of a house, as that is the time limit imposed by legal practice with regard to the renting of pious endowments (hàdhà jall 'amal al-nàs wa-'alay-hi ma∂à 'amal al-qu∂à fì kirà" al-a˙bàs). But, in fact, what he says is that ‘it is not advisable’ (là yanbaghì) and, therefore, if the nàΩir deems it expedient, he is allowed to let it out for a longer period (ma∂à wa-lam yufsakh), according to Ibn al-Qàsim’s tradition of Màlik’s opinion.202 On this premise, a legal disagreement is recorded by Ibn Sahl concerning the case of an orchard ( janna mu˙abbasa) in Córdoba which was rented for twelve years. The question was posed to Abù Bakr Ya˙yà, ßà˙ib a˙kàm qa∂à"-l-jamà'a and son of the qà∂ìl-jamà'a Abù Bakr Mu˙ammad b. Yabqà b. Zarb. Before giving his sentence, the magistrate asked the fuqahà", who disagree about the need of voiding the rent because of its very long duration (ikhtalafù fì naq∂ al-kirà" li-†ùl al-mudda).203 The scant jurisprudence available on the subject of leases focuses as well, partly, on the issue of the duration of the contract. Some of the consultations show us the prevalence of the legal tradition coming from the Córdoban Màlikì school. This is the case in a query addressed to Ibn al-Óàjj and related to a plot of land donated in favour of a man and his son that was rented for four years. Similarly, Abù 'Umar b. ManΩùr answered a question regarding some pious endowments (amlàk mawqùfa) in the town of Vélez (Málaga) belonging to a local Friday mosque and to the poor which were affected 201 Al-Wansharìsì, Mi'yàr, VII, p. 106 (trans. M. Lahmar, ‘Les ˙ubus dans la société et le “ar'’, pp. 168–170 and V. Lagardère, Histoire et société, pp. 281–282, no 250). 202 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, I, pp. 290–293, no 55; ed. al-Tajkànì, I, pp. 235–237, no 50. 203 Ibn Sahl, Dìwàn, II, p. 722.
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by an overflowing river and the subsequent flooding certifying that the norm was respected, because all those goods were leased for four years, according to the prevalent custom ('alà-l-'àda fì kirà" al-a˙bàs).204 But the Córdoban legal tradition was not always respected, as revealed in several legal queries which refer to lease contracts subscribed to for longer periods of more than four, seven,205 twenty and even fifty years. There is one case presented to the Córdoban qà∂ì Ya˙yà b. Mu˙ammad b. Yabqà b. Zarb206 which deals with part of an orchard (qa†ì' min janna) rented for twelve years: he considered it valid in view of the opinion of those jurists who agree with the renting of pious endowments for a long time (mukhtàran li-qawl man ajàza 'aqd al-kirà" fì-l-˙ubs li-mithl hàdhihi-l-mudda). To the contrary, Ibn alQa††àn rendered void a thirteen year lease of an orchard ( janna) placed near al-Zàhira, on the east side of Córdoba, whose beneficiaries were the Banì Bar†àl.207 The last case, addressed to Ibn Sahl from the town of Badajoz, deals with a plot of land owned by some women who rented it to a number of tenants for a period of fifty years. The jurist holds that this kirà" must be invalidated, whether it involves a property set up as a ˙ubs or any other under a different form of tenure, as its duration exceeds by far the limits usually applied to that modality of contract (li-†ùli-hà wa-khurùji-hà 'an al-ma'rùf ). At the end he makes an analogy saying that such a delay (ta"jùl) in the case of sales and kàli", the deferred part of the dowry, would make both the marriage and the sale null and void.208 As we have seen above, this type of contracts were adjudicated in towns by means of public auctions, an aspect on which several testimonies are available. The first is a reference, in a query regarding
204 Al-Wansharìsì, Mi'yàr, VIII, p. 289 (trans. V. Lagardére, Campagnes, pp. 158–159 and Histoire et société, p. 361, no 310), VII, p. 157 (trans. V. Lagardère, Histoire et société, p. 285, no 259). 205 Ibn Sahl, Dìwàn, I, pp. 635–637; al-Wansharìsì, Mi'yàr, VII, p. 477 (trans. V. Lagardère, Histoire et société, p. 287, no 266). See D. Serrano Ruano, ‘La escuela de alfaquíes toledanos a través del Mi'yàr de al-Wan“arìsì’, Revista del Instituto Egipcio de Estudios Islámicos, XXX (1998), p. 139. 206 He was appointed by Abù-l-Walìd b. Jahwar shortly after Rabì' I 440 h/August 1048 and was in charge for seven years until his death in 447 h/1055. See Mª J. Viguera, ‘Los jueces’, p. 128 and his biographical references in Mª L. Ávila, La sociedad hispanomusulmana, nd. 1094. 207 Ibn Sahl, Dìwàn, II, pp. 1091 and 1093; al-Wansharìsì, Mi'yàr, VII, pp. 438. 208 Ibn Sahl, Dìwàn, II, p. 1095; al-Wansharìsì, Mi'yàr, VII, pp. 437 (trans. V. Lagardère, ‘Structures étatiques’, p. 93 and Histoire et société, p. 269, no 202).
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the lease of some ˙ubs-shops, to a ‘broker of pious endowments’ (dallàl al-a˙bàs).209 The dallàl was an intermediary or broker who performed his duties at the market (sùq) and was in charge of putting certain merchandise into auction. This is exemplified by treatises of ˙isba, such as al-Saqa†ì’s (7th/13th century) from Málaga who devotes an entire chapter to the jallàs and the dallàl or simsàr 210 and, to a lesser extent, Ibn 'Abdùn’s, which alludes to the ‘wheat broker’ (dallàl al-˙in†a) and the person dealing with houses (dallàl al-dùr).211 The case that best exemplifies this procedure is, nonetheless, that of orchard tenants ( jannàt) in Córdoba blighted by different natural calamities (plagues of insects and rabbits) and other setbacks at the beginning in 407 h/1016 which forced them to demand a reduction in the contract of qabàla from the qà∂ì (see Chapter 8). In the responses of two of the fuqahà" advising the qà∂ì on this matter reference is made to the procedure followed in the adjudication of these orchards, resolved through a public auction led by the dallàl. The first is Abù 'Alì-l-Óasan b. Ayyùb b. Óaddàd, who starts his ruling by indicating that the qà∂ì must instruct the ßà˙ib al-a˙bàs to produce all the contracts signed in relation to those orchards in order to check whether there was any clause lending support to the claim levelled by the tenants (mutaqabbilùn). If none could be found, the latter would not be entitled to state, once the contracts signed by them had been pored over, that the dallàl gave them his word in the presence of witnesses that they would be treated fairly and this constituted a sort of tacitly-accepted clause; neither were they authorised to state that they had heard him say something to that effect, nor that Córdoba’s orchards and neighbouring areas have been let under these conditions. 212 The next ruling was issued by Abù Mu˙ammad 'Abdallàh b. Ya˙yà b. Da˙˙ùn and in it, contrary to the tenants’ requests, he argues that everyone is fully aware of the conditions and circumstances affecting those orchards; the dallàl, in fact, does not attempt to conceal them but, in contrast, makes com-
209
Al-Wansharìsì, Mi'yàr, VII, p. 129. Al-Saqa†ì, Kitàb fì àdàb al-˙isba, pp. 58–61 (trans. P. Chalmeta, pp. 391–397). 211 Ibn 'Abdùn, Risàlà, pp. 231, 232 and 239 (trans. E. García Gómez, pp. 129, no 99, pp. 131–132, no 104) and p. 151, no 155). 212 Ibn Sahl, Dìwàn, II, pp. 1139–1140; ed. Khallàf, Wathà"iq fì shu"ùn al-˙isba, p. 68; al-Wansharìsì, Mi'yàr, VII, p. 447 (trans. V. Lagardère, Campagnes, p. 156 and Histoire et société, p. 258, no 165). On this case, see C. Mazzoli-Guintard, Vivre à Cordoue, p. 54. 210
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ments on them among the groups gathering at the time of the auctioning and adjudication of the qabàla.213 9.2. Share-cropping contracts The other two legal modalities of usufruct of pious endowments are share-cropping contracts, specifically the muzàra'a and the mughàrasa. Apart from these two, the fiqh contemplates a third, that of irrigation (musàqà),214 not documented in the jurisprudence employed in this monograph but doubtless also used as Ibn al-'A††àr includes this possibility in one of his aforementioned formularies. According to P. Chalmeta, share-cropping (muzàra'a) was the most frequent form of agricultural exploitation, at least in medium-size and large properties.215 It represents a type of contract based on the contribution by the owner and the share-cropper of equal amounts of seed, tilling, utensils and land; although each contribution is of a different nature, they must have the same value and the harvest will be equally split between both ‘partners’. Three combinations are regarded as lawful in this respect: a) both parties provide half of the land each, one supplies the seed and the other the toil; b) the owner provides the land and the seeds and the share-cropper or labourer works the land and c) each provides half of the seeds, the owner supplies the land and the share-cropper the agricultural work.216 The modality of muzàra'a envisaged by Ibn al-'A††àr vis-à-vis a ˙ubs property is the third of those mentioned above: both provide half of the seeds, the owner provides the land and the share-cropper the work and the utensils.217
213 Ibn Sahl, Dìwàn, II, pp. 1141–1142; ed. Khallàf, Wathà"iq fì shu"ùn al-˙isba, p. 70; al-Wansharìsì, Mi'yàr, VII, p. 448 (trans. V. Lagardère, Campagnes, p. 156 and Histoire et société, p. 258, no 165). 214 On this type of contracts see V. Lagardère, Campagnes, pp. 148–150 and the models supplied by treatises for notaries. Ibn al-'A††àr, Kitàb al-wathà"iq, pp. 83–97 (trans. P. Chalmeta and M. Marugán, pp. 190–199); Ibn Mughìth, al-Muqni', pp. 273–282. 215 P. Chalmeta, ‘España musulmana’, p. 494 and ‘Estructuras socio-económicas’, p. 37. 216 See V. Lagardère, Campagnes, p. 128; P. Chalmeta, ‘Historia, derecho y tierra’, in F. Díaz Esteban (ed.), Batalius II. Nuevos studios sobre el reino taifa de Badajoz, Madrid, 1999, pp. 12–24. 217 Ibn al-'A††àr, Kitàb al-wathà"iq, pp. 183–184 (trans. P. Chalmeta and M. Marugán, pp. 397–399).
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The other modality is the contract of mughàrasa, usually covering vineyards or fig trees.218 The owner provides the land and the labourer (mughàris) everything else so that when the land starts to produce yield it is split between the owner and the labourer, either in equal parts or with the labourer receiving a third or a quarter. So, in principle, this kind of contract is contrary to the general rule of perpetuity and inalienability of pious endowments and, although it is recorded in jurisprudence, the Màlikì school holds that the mughàrasa is not lawful in a˙bàs219 and the absence of references to it in Andalusian notarial works for the instruction of would-be notaries is symptomatic in this respect. Jurisprudence is rather laconic on this issue. One of the main texts reflects Ibn al-Óàjj’s views according to which it is not permissible to let land turned into a ˙ubs by means of a contract of mughàrasa as this is tantamount to selling part of it. If the contract is subscribed, though, and land belonging to a mosque is surrendered, Ibn al-Óàjj states that two courses of action can be undertaken. If the mosque receives rents, the latter will be used to pay those who sowed the land an amount equivalent to the money spent on seeds whilst the yield and the land will remain under the ownership of the mosque; if the mosque does not collect rents, the labourer will be regarded as being associated with the land in a proportion equivalent to the amount spent on seeds. The land will first be valued uncultivated and then once it has been brought into cultivation. The tenant will not be allowed to exercise the right of option but will be encouraged to pay for the value of the land as this would be more beneficial to the ˙ubs, especially in Ibn al-Màjishùn’s opinion expressed à propos the case of a private property claimed by its owner. When the land at stake is under claim because it constitutes a ˙ubs and contains buildings, Sa˙nùn believes that if the beneficiaries refuse to pay the cost of the building work, the subject of the claim could ask for the value of the land and invest the money in purchasing more land which he could later on turn into a ˙ubs and devote to the same purpose. He notes, lastly, that if one follows the version (riwàya) transmitted by Ibn al-Faraj on the lawfulness of selling a dilapidated ˙ubs
218 P. Chalmeta, ‘España musulmana’, p. 494, ‘Estructuras socio-económicas’, p. 37 and ‘Historia, derecho y tierra’, pp. 24–29. 219 D. Santillana, Istituzioni, II, p. 318; P. Chalmeta, ‘Historia, derecho y tierra’, p. 27.
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property, it must be concluded that drawing a contract of mughàrasa on land turned into a charitable endowment would be a lawful operation if the land involved is barren (mash'ara) and has not been ploughed at all.220 The second query is anonymous and is generically addressed to ‘the jurists of the council’ (su"ila ba'∂ shuyùkh al-shùrà); it deals with someone who lets ˙ubs land through a contract of mughàrasa and the field is sown by the tenant with the result that the seeds germinate. The response must be accepted and endorsed by later magistrates as there are disagreements on this issue.221 A commentary by alWansharìsì follows afterwards (introduced by qultu, ‘I said’) pointing out that Tlemcen jurists (shuyùkh) issued fatàwà favourable to the same course of action à propos land belonging to the ya'qùbì madrasa of the town of Umm al-'Uluww. Another case refers to a plot ( faddàn) belonging to a mosque whose seeds did not take root and a man was asked to render the land fertile again, which was why he assumed he was entitled to the ownership of the land and seized half of the vineyards. Al-Mawwàq’s view is that he is not allowed to seize that part of the ˙ubs and his labour must be regarded as a charitable deed.222
220 Al-Wansharìsì, Mi'yàr, VIII, pp. 171–172 (trans. E. Amar, ‘La pierre’, XIII, pp. 134–135; P. Guichard and V. Lagardère, ‘La vie sociale’, p. 227; V. Lagardère, Campagnes, pp. 153–154 and Histoire et société, p. 360, no 306). 221 Al-Sha'bì, al-A˙kàm, p. 179, no 249; al-Wansharìsì, Mi'yàr, VII, p. 436 and VIII, p. 175 (trans. V. Lagardère, Histoire et société, p. 340, no 198). 222 Al-Wansharìsì, Mi'yàr, VII, pp. 128–129 (trans. V. Lagardère, Histoire et société, p. 287, no 267).
CHAPTER FIVE
THE FAMILY OR PRIVATE AÓBÀS
1. Introduction Studying the institution of pious endowments entails drawing a distinction between the two types of donation that existed and which were determined by the nature of the final recipient selected by the founder: private or public. This distinction was, in fact, recognized by Muslim jurists, as we shall see below. From the 9th century, these two different types of foundations can be traced in our sources: those made in favour of specific individuals, usually the founder’s relatives, and those aimed at benefiting all Muslims or certain collectives, such as the poor, the sick, fuqarà", etc. This chapter is intended to highlight the fact that, although they are legally a single unit, both represent completely different institutions socially and economically. This fact casts doubt on the possibility that private donations, or family donations rather, can be considered genuine pious endowments, the latter being understood as those whose aim is to provide a general or public service. From a chronological point of view, the earliest testimony of the existence of private donations in al-Andalus is that made by emir 'Abd al-Ra˙màn II in 222 h/836–837; there is, however, very little information on them during the period prior to the caliphate and, as a result, we have to rely on Ibn al-'A††àr’s treatise for instructing notaries—from the 10th century—in order to detect solid evidence of their fully-fledged development. Apart from being from a much later period, the information available is quantitatively inferior when compared to that of pious donations. The corpus of jurisprudence consulted in this work provides 60 questions dealing with issues pertaining to private or family donations. This represents 26.4%— out of the total 227 that make up the corpus—as opposed to the 60.3% represented by the 137 which deal with cases involving pious donations (see Appendix V, figure 2).1 It would, however, be unsound 1
M. Shatzmiller, ‘Islamic Institutions and Property Rights: The Case of the
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to assert, on the evidence afforded by these data, that private donations were less frequent than public ones. It is significant, for instance, that most of the formularies contained in Ibn al-'A††àr’s treatise involve private donations; this is not the case, though, with other treatises like Ibn Mughìth’s and al-Jazìrì’s, both of which supply a smaller number of formularies. Generally, we do not have concrete data on individuals, dates, places, etc., as jurisprudence almost invariably omits any reference to the personal details of those involved in the consultations. Some cases of this type of donations have been preserved, however, and they have been looked at in the previous chapter.
2. Legal theory versus socio-economic reality When studying private or family donations the need to distinguish between the two levels that configure the reality of the institution of pious endowments becomes apparent: on the one hand, legal theory and, on the other, social and economic reality. This distinction allows us to verify that, although from a legal perspective there is only one type of ˙ubs, they actually constitute two different realities with radically different purposes, even to the extreme of having to treat them as two distinct institutions. In order to understand the exact nature of private foundations, reference must be made to the basic precepts that sustain the legal theory of the ˙ubs in relation to its aim; this approach will reveal that this type of endowments does not comply with the former. As for the type of charitable aim selected, we have already seen that, in principle, the main requirement is that it must be pious, based on its definition as perpetual alms for God’s cause (al-waqf ßadaqa jàriya fì sabìl Allàh). In spite of the ambiguity of such a generic definition, in daily practice and from the earliest testimonies available to us onwards, the pious nature of the foundation means that
Public Good Waqf ’, Journal of the Social and Economic History of the Orient, 44/1 (2001), p. 50, claims that 75% of the 400 fatàwà from al-Wansharìsì deal with pious endowments, and the rest with family waqf, although this assertion is not justified by any kind of quantitative approach. On the contrary, A. Mª Carballeira, Legados píos, pp. 354–355, supposes that legal sources deal primarily with private a˙bàs (48.8%) more than with public ones (37.9%), but she does not include any quantitative analysis either.
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a donation must be made for a purpose which ultimately benefits some disadvantaged social collective (poor or sick) or, alternatively, made in general terms and devoted to aspects associated with the general interest of the umma, like mosques, graveyards, the duty of jihàd, etc. According to this point of view, it is obvious that family donations, devoted to specific individuals, would not fall within the concept of ˙ubs as their sphere of influence is strictly private, not public. Secondly, the aim must be in perpetuity and that implies that it must be something which is not consumable or bound to whittle away. The inadaptability of the family ˙ubs to theory is also clear in this respect since, as the beneficiaries are specific individuals, their lineages are likely to die out. Even though, as it has been pointed out, there are no differences between pious endowments with regard to the aim selected by the founder from a legal perspective, fuqahà" were aware that differences did exist in real life; even the terminology employed differs when applied to one or the other kind of final recipient. This distinction is clear, for instance, in al-Màwardì’s treatise when he reports that ‘pious endowments are of two kinds: public and private’ (al-wuqùf ∂arbàn 'àmma wa-khàßßa).2 Likewise, Andalusian Màlikì jurists used different concepts and expressions depending on what kind of aim is at stake. When referring to family or private donations, they usually used the expression ‘in favour of specific individuals’ ('alà qawm bi-a'yàni-him or 'alà mu'ayyanìn),3 whereas when dealing with pious donations they resorted to other formulas ('alà wajh min wujùh al-birr, 'alà maßrif min maßàrif al-birr, a˙bàs subul al-khayràt wa-anwa' al-qurubàt).4 Castilian a˙bàs books identified this type of donations with expressions like ‘çabal alhayrat’ or ‘çubul alhayr’,5 referring to ‘todas las cosas e lo que pueden gastar en cualquier obra pia’ [‘all things and the expenses they might incur in as a result of a charitable deed’].6 In spite of this lack of adherence of private donations to the theoretical precepts of ˙ubs, these donations are completely consistent with the Muslim conception of charity, as N.A. Stillman has pointed 2
Al-Màwardì, al-A˙kam al-sul†àniyya, p. 103 (trans. E. Fagnan, p. 170). Al-Wansharìsì, Mi'yàr, VII, p. 204; al-Jazìrì, al-Maqßad, p. 289. 4 Al-Wansharìsì, Mi'yàr, VII, pp. 92, 118, 123, 131, 143, 148 and 200; al-Jazìrì, al-Maqßad, p. 294. 5 Apud P. Hernández Benito, La Vega de Granada, p. 113, no 24. 6 Apud C. Trillo San José, La Alpujarra, p. 366. 3
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out, based on the idea that ‘charity begins at home’, providing the perfect religious justification for this kind of foundations.7 In fact, both kinds of endowments (private and public or pious) appear codified and legalised at the same time. There are ˙adìths that trace these donations back to Mu˙ammad’s times; al-Khaßßàf ’s treatise, likewise, provides a great deal of information on them and elaborates on the jurisprudential casuistry pertaining to the designation of beneficiaries. In the Màlikì tradition, most of the Mudawwana’s chapter devoted to the ˙ubs also deals with private and family donations, as does Ibn al-'A††àr’s treatise. How is the private ˙ubs then justified theoretically in spite of its non-compliance with the two basic legal requirements regulating this type of donations? A legal stratagem is used for this purpose: any private or family ta˙bìs must include a last-instance beneficiary (marja' ) who or which is to become the owner of the donated asset once the line of beneficiaries has died out (the founder’s relatives) provided that it fulfils the required charitable purpose (qurba) and whose usufruct is enjoyed in perpetuity (ta"bìd ). It is assumed, of course, that that ultimate beneficiary must be selected from among the undertakings usually contemplated in the pious ta˙bìs, be it an institution (mosque, madrasa, ribà†, zàwiya), the poor, the sick, fì sabìl Allàh, etc. The legal ruse is obvious as the chances that an asset donated by a father in favour of his children and their descendants may one day end up in the hands of that hypothetical ultimate beneficiary were very slim; this would have entailed the extinction of all direct lines of descent stemming from the original founder. Thus, the disappearance or extinction of one line of descent does not mean that its share must necessarily be apportioned to the ultimate beneficiary (marja' ); in fact, it is distributed among the surviving groups of beneficiaries. This was stipulated in the donation by dint of the formula: ‘if any of them were to die childless, his share will be handed over to the other [beneficiaries]’, either ‘in equal shares between them’ or ‘in accordance with the clause drawn up for this eventuality by the founder’. Only when all beneficiaries passed away without descent was the donation to be devoted to the pious enterprise foreseen 7 N.A. Stillman, ‘Waqf and the ideology of charity in medieval Islam’, I.R. Netton, Studies in Honour of Clifford Edmund Bosworth, hunter of the East: Arabic and Semitic Studies, Leiden, 2000, 2 vols., I, pp. 362–363.
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by the founder.8 Sometimes, however, the possibility that it might be handed over to other beneficiaries is even contemplated; the clause of poverty could be invoked, for instance, whereby the founder has the right to donate the asset to his living poor relatives—either on his father’s side or on both his parents’ sides—if his children and their offspring die before he does.9 That way, it was virtually impossible for the donated asset to be surrendered for a charitable purpose (see infra). It would suffice to point out that the corpus of jurisprudence only records one instance where all the beneficiaries’ descendants die out and the donation is devoted to the pious undertaking selected by the founder.10 We are obviously facing here a case of a waqf being used for purposes other than those it was to serve originally. Historiography is unanimous in establishing that private waqf was a means to circumvent the strict Islamic normative on inheritance according to which the testator’s powers to dispose of his assets as he pleases is confined to a third of them (thulth), whereas the other two thirds must be distributed following the system recorded in the Qur"àn and called al-farà"i∂.11 As J. López Ortiz remarks, ‘the nature of the Muslim testament is a direct result of these constraints and that is why it is diametrically opposed to the Roman [model] as the former’s function is not that of regulating the inheritance process but, rather, only pious endowments’.12 It is likely that the legal fiction of the family or private ˙ubs responds to the wish to avoid the limitations imposed by Qur"ànic inheritance laws as it endows the founder with greater powers to dispose of his patrimony. Perhaps the best argument justifying this analysis is the fact that the private ˙ubs was almost exclusively a family one. Treatises for
8
Ibn al-'A††àr, Kitàb al-wathà"iq, p. 173 (trans. P. Chalmeta and M. Marugán, p. 387); Ibn Mughìth, al-Muqni', pp. 323–324; al-Jazìrì, al-Maqßad, p. 284. 9 Al-Jazìrì, al-Maqßad, p. 284. 10 Al-Wansharìsì, Mi'yàr, VII, p. 277 (trans. E. Amar, ‘La pierre’, XIII, pp. 358–361). 11 G.-H. Bousquet and F. Peltier, Les successions agnatiques mitigées: étude comparée du régimen successoral en droit germanique et en droit musulman, Paris, 1935, pp. 145–150; O. Pesle, La théorie et la pratique des habous, p. 73; L. Gardet, La cité musulmane, p. 87; X. de Planhol et al., Islamic Society and Civilisation, pp. 519 and 561; D.S. Powers, ‘The Islamic Inheritance System’, p. 23; N.A. Stillman, ‘Waqf and the ideology of charity’, p. 367; R. Peters, ‘Wa˚f ’, E.I.2, XI, p. 59; P.C. Hennigan, The Birth of a Legal Institution, pp. 92–93. 12 Derecho musulmán, p. 214.
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the instruction of notaries only contemplate the donation in favour of the founder’s children. This indicated that the overwhelming majority of private donations must have taken place within the family circle, although there is no impediment, in private, to a ta˙bìs being made in favour of an individual who does not belong to that circle. Another argument supporting this view is also that of the differences existing between family donations and those made for philanthropic purposes. First of all, the jurisprudential casuistry generated by both types of donations is completely different. The most significant aspect in the study of family donations is the adoption, by the founder, of the strategy of transmitting the asset between the successive beneficiaries (ta'qìb), hence the concept of ˙ubs mu'aqqab applied to the endowment donated in favour of the founder’s offspring ('aqib, pl. a'qàb), one generation after another. The issue of discrimination based on gender plays a major role in this strategy. I am referring here to the exclusion of the founder’s daughters from the group of beneficiaries and, particularly, of a daughter’s children (awlàd al-bint), a matter closely linked to the structure of the traditional Arab family characterised by the prevalence of two elements, agnatism and endogamy. The other major problem recorded in jurisprudence is the ˙iyàza, the asset’s take-over by the beneficiaries. Pious donations, conversely, generate legal questions dealing with the management methods and the administration of endowments. The usufruct of an asset donated in favour of particular individuals is enjoyed by the beneficiaries as another private property, with the caveat, however, that it must not be alienated. With regard to charitable aims, however, two types of donations must be distinguished: one in favour of a specific institution or a pious purpose. In principle there is no institution established that is purposely commissioned to carry this out—e.g. donations made for military purposes, the maintenance of frontier outposts, the ransom of prisoners or those generically made in favour of the poor or the infirm of a certain town. This aspect will be dealt with in depth in the chapter devoted to the management of pious endowments (see chapter 8). The two types of donations also have different social and economic impacts as the first is confined to the sphere of the family or domestic economy whereas the second has wider social repercussions as it entails the transmission of assets and wealth from the sphere of the private to the public economy.
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For all these reasons, in practice—if not in legal theory—it can be stated that family donations and public or pious donations constitute not only two different legal types of donation but also two distinct realities.
3. The strategy of transmission Notarial formularies drawn up to carry out family donations always start with the founder naming their beneficiaries, including their prospective children and the latter’s descendants: ‘X donates [. . .] to his children Y and Z as well as his daughter A and all the other children he may sire, whether male or female, if God Almighty wishes so, etc.’ (wa-li-kulli walad yu˙dath la-hu dhakar aw-unthà bàqì 'amri-hi).13 The text then specifies whether the children involved are adults or minors as this would be a crucial factor when carrying out the take-over of the donated asset (˙iyàza). The fact that the founder could appoint his yet unborn children as beneficiaries must be stressed first of all, because it represents a pecularity of the Màlikì school.14 Al-Jazìrì points out that a donation made in favour of a nasciturus was legitimate ( yajùzu al-ta˙bìs 'alà-l-˙aml ), and invoked the authority of several jurists, Mu˙ammad b. 'Abd al-Malik b. Ayman, Mu˙ammad b. Is˙àq b. al-Salìm, Ibn Zarb and Ibn al-Hindì, to support his argument. The following possibilities might arise in this case: if he was born alive, the donation became effective; if he died after birth, the donation must be handed over to the founder’s remaining heirs; if there was a miscarriage or he was stillborn, it must return to the founder or his heirs.15 But a family donation was not only made in favour of a founder’s children; a common feature of this type of donations was the settinginto-place of a strategy of transmission within the family aimed at benefiting future descendants (ta'qìb). Most of the questions addressed to legal scholars deal with this. A founder had several options when choosing the strategy of transmission he wanted his donation to adopt. If the beneficiaries were the main factor in this equation, 13
Ibn al-'A††àr, Kitàb al-wathà"iq, pp. 171 and 180 (trans. P. Chalmeta and M. Marugán, pp. 386 and 394); Ibn Mughìth, al-Muqni', p. 323; al-Jazìrì, al-Maqßad, p. 284. 14 R. Peters, ‘Wa˚f ’, E.I.2, XI, p. 61. 15 Al-Jazìrì, al-Maqßad, p. 293.
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gender played a decisive role: he could exclude his daughters from the outset or, were he to include them, he could then exclude their children. He also had another option which we can label ‘generational’ as he could decide that the usufruct of the ˙ubs was to be enjoyed by fathers and their sons simultaneously or, alternatively, that sons could only exploit the endowment after their fathers’ demise, alongside their uncles. Legal documents do not record, however, cases where the firstborn enjoyed any advantage vis-à-vis his younger siblings; this eventuality is neither contemplated in treatises for notaries nor discussed in any of the legal questions studied in this monograph. The documentation consulted does not allow the verification of the hypothesis advanced by M.J. Rubiera and M. de Epalza purporting that the waqf constitutes a factor that may help to explain the existence of villages in al-Andalus known by an anthroponym, that is the existence of a clan-based toponymy.16 In connection with this hypothesis, however, there are some references in legal documents to the existence of ‘˙ubs villages’ (qarya mu˙abbasa);17 this fact might support that hypothesis as any donation requires that the founder be its legal owner. 3.1. The discrimination of women: preference for male children and complete exclusion of the daughters According to legal Màlikì practice, the founder had several possibilities to discriminate against his daughters as beneficiaries of his private endowment. A founder could apply, first of all, a privilege clause (taf∂ìl, mufà∂ala) in favour of his sons and to the detriment of his daughters. In order to do this, he had to omit the formula ‘in equal parts between them’ ('alà-l-sawà" bayna-hum) from the document and insert instead the well-known Qur"ànic verse (IV,11) ‘to the male the like of the portion of two females’ (li-l-dhakar mithl ˙aΩΩ al-unthayayn), one of the most important in relation to the Sunnì normative of inheritance.18 This reference highlights the close link between inheritance 16
Xátiva musulmana (segles VIII–XIII), Játiva, 1987, pp. 30–31. Al-Wansharìsì, Mi'yàr, VII, p. 123 (trans. V. Lagardère, ‘Structures étatiques’, p. 79 and Histoire et société, p. 284, no 254), VII, pp. 123–124 (trans. V. Lagardère, ‘Droit des eaux’, p. 117 and Histoire et société, p. 284, no 255), VII, p. 130 and alSha'bì, al-A˙kàm, pp. 152–154, no 196; al-Wansharìsì, Mi'yàr, VII, p. 479. 18 For R. Kimber, ‘The Qur"ànic Law of Inheritance”, Islamic Law and Society, 5/3 (1998), p. 305, it is the linchpin of the entire Sunnì system and also provides a specific Qur"ànic anchor for the Sunnì device of ta'ßìb. 17
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norms and private family donations, usually stipulated as part of the testament: as the Córdoban faqìh Ibn 'Abd al-Ra"ùf states, ‘pious endowments are related to testaments’ (al-a˙bàs muta'llaqa bi-l-waßàyà).19 But, in spite of the founder’s legal right to discriminate against his daughters based on Qur"ànic stipulations of inheritance, Màlik’s opinion was that preference for male children was only binding when explicitly mentioned by the founder, meaning, in his opinion, that preference was not the general rule, but the exception. This Màlik opinion was the prevalent legal tradition in al-Andalus, as clearly stated by Ibn Óabìb, one of the founders of Andalusian Màlikism:20 It is said in the book of Ibn Óabìb: I heard Mu†arrif and Ibn alMàjishùn saying: Màlik said, and this is our opinion and the legal practice ('amal ) in our country (balad ), that male and female are equal in the ˙ubs and that the male shall not have the same share of two females,21 unless this is stipulated. Ibn Óabìb said: this is the opinion of all Màlik’s disciples (aß˙àb).
Apart from giving preference to his male descendants over his female ones, a founder could even exclude his daughters completely as beneficiaries of his endowment. In this case, there was no reference to Qur"ànic norms and, as in the first possibility, the exclusion of the daughters had to be clearly stated in the donation deed by means of a specific formula immediately after designating the sons as the sole beneficiaries, for instance ‘no share whatsoever must be allocated to female descendants’ (là ˙aΩΩ li-l-banàt fì dhàlik) or ‘for his male children with exclusion of the female’ (li-banìhi al-dhukùr dùnal-inàth).22 Andalusian Màlikì jurists, then, consider the complete exclusion of the daughters as beneficiaries lawful, even if they disapprove of the practice, as al-Jazìrì shows when saying bluntly that, although that clause is licit, it is nonetheless reprehensible ( yukrah la-hu dhàlik fa-in waqa'a ma∂à).23 A third way of legal discrimination against the founder’s female descendants was available. In this case, daughters were included as
19
Ibn 'Abd al-Ra"ùf, Risàla, p. 83 (trans. R. Arié, p. 33). Ibn Óabìb, al-Wà∂i˙a, pp. 65–66 (Arabic) and 77 (trans.). 21 Clear reference to Qur"àn V, 11. 22 Ibn al-'A††àr, Kitàb al-wathà"iq, pp. 172 and 180 (trans. P. Chalmeta and M. Marugán, pp. 386 and 394). 23 Al-Jazìrì, al-Maqßad, pp. 286 and 290. A. Mª Carballeira, Legados píos, p. 269, holds wrongfully ‘la prohibición de la exclusión del derecho de las hembras a participar en el ˙ubs, estipulada por los màlikíes’. 20
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beneficiaries, but only as long as they remained single, being excluded from the ˙ubs from the moment they got married (man tazawwajat min-hunna khurrijat 'an al-˙ubs).24 This third legal right of the founder to protect his donation is closely related to another broadly examined issue in our legal sources, the exclusion of the daughter’s children as beneficiaries, a subject which I will discuss below. The presence of these different clauses in treatises serving as a guide for notaries when drawing up the ta˙bìs documents reveals not only the founder’s legal right to discriminate against or exclude his daughters, but also that these donations where discrimination or exclusion of daughters as beneficiaries actually occurred. In any case, there are two different issues which must not be confused, even though they are interwoven by the same discrimination principle. I am referring, on the one hand, to the aforementioned issue of the exclusion of a founder’s daughters and, on the other, to the possible exclusion of the daughters’ children from among the beneficiaries which I will describe in a separate section (see infra). 3.2. Fathers and sons simultaneously The ˙ubs could be passed on to a founder’s heirs in two different ways: either to each generation separately, or to all successive generations, where all the founder’s heirs qualified as beneficiaries and enjoyed the usufruct of the endowment as a whole, even though they belonged to different generations. If the founder wanted beneficiaries to include descendants (a'qàb) along with their father while the latter remained alive, he must state so in the document by inserting the expression ‘and in favour of his children and their descent while the latter have offspring’ (wa-'alà a'qàbi-him wa-a'qàb a'qàbi-him mà tanàsalù); in this case, the presence, in principle, of the conjunction ‘and’ indicates that the ˙ubs was to be shared by both parents and their children jointly.25 This was Màlik’s view and, as Ibn Rushd points out, there were no disagreements on this issue within the Màlikì school of law.26 The 24 Ibn al-'A††àr, Kitàb al-wathà"iq, p. 210 (trans. P. Chalmeta and M. Marugán, p. 371). 25 Ibn al-'A††àr, Kitàb al-wathà"iq, p. 172 (trans. P. Chalmeta and M. Marugán, p. 387); al-Jazìrì, al-Maqßad, p. 285. 26 Sa˙nùn, al-Mudawwana, XV, p. 103; Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, II, p. 1035, no 302; ed. al-Tajkànì, II, p. 911, no 240.
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founder, furthermore, had the right to decide whether the beneficiaries were to dispose of the asset in equal parts or, on the contrary, each had to receive their own share. Ibn al-'A††àr reports that the founder’s will had to be clearly stated in the document. If he wanted children to receive the same portion allocated to their fathers, after including the formula ‘and in favour of their children’, he must also insert the expression ‘and their children’s descendants in equal share’. If a founder, however, did not want the arrangement to be equitable, he must leave the last sentence out.27 There is a case of deliberate equality included in a question addressed to al-Saraqus†ì involving a man who made a donation in favour of his children and their offspring, both male and female, with parts equally distributed between them (sawiyyatan). He let it be known that if the latter were to become extinct, half of the plot would be handed over to a mosque and the other half would be allocated to a reader so that he could recite from the Qur"àn by the founder’s tomb and those of his relatives. After his death, the founder was survived by two sons (S1 and S2) and a daughter (D), who split the piece of land into three parts of identical size, or three thirds. The transmission of the donation took place thus: the first born son (S1) passed away first and was survived by two daughters who inherited his third; the daughter (D) died shortly afterwards and her brother (S2) received her third and added it up to his own. This fact may suggest that the daughter could not pass her part on to her children, although it is also possible that she did not have any as the text does not mention anything in this respect. Finally, the founder’s other son (S2) also died and was survived by three daughters who inherited their father’s two thirds. Once the first generation of beneficiaries had died out, that is the founder’s three children, the situation was as follows: S1’s two daughters received a third of the donation whereas S2’s three daughters retained the two thirds inherited from their father, namely his own and his sister’s. Faced with this unfair distribution, the jurist is asked whether another must be undertaken in order to restore some semblance of equity among the five female beneficiaries, S2’s three daughters and S1’s two daughters. Each would then receive one fifth of the donation ‘as they
27 Ibn al-'A††àr, Kitàb al-wathà"iq, p. 172 (trans. P. Chalmeta and M. Marugán, p. 387).
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belong to the same generation (†abaqa wà˙ida)’. The response is laconic but very revealing: the clause of equality inserted by the founder in the donation deed means that the property must be divided into five identical parts, in fifths in this particular case, without anyone’s share exceeding the others’.28 Problems arose when the founder did not make his wishes crystal clear and, especially, when the economic status of the children differed when the asset was about to be passed on. Ibn al-Qàsim’s view on this issue was to give the advantage to the most needy but, despite this pro-Qàsimi tendency within Andalusian Màlikism, it seems that the usual practice in al-Andalus was to disregard differences in economic status when distributing a donation, thus adhering to Ibn al-Màjishùn’s views. This is the position held by Ibn Rushd à propos the apportioning of the ta˙bìs set by Óammùd b. Khalaf b. Abì Muslim al-Íadafì in favour of his son Yùsuf and his descendants, dated at the end of Dhù-l-˙ijja 483 h (25–1/22–2–1091).29 It seems, however, that the Qàsimì tradition was also influential and that the economic factor played an important role in the transmission of a ˙ubs. When no specification had been made when making a donation, al-Jazìrì reports that, by default, it had to be enjoyed in equal shares; he quotes the opinion of Mu˙ammad b. A˙mad (Ibn al-'A††àr?), nonetheless, according to which the most needy had preference over the wealthy (yu"tharu al-a˙waj fì-l-a'qàb fa-mà fa∂ala lil-a˙waj ßurifa 'alà-l-ghanì).30 Likewise, Ibn Abì Zayd asserts that ‘people in need have preference over any others when it comes to enjoy the usufruct of a property set as a foundation or the produce it may yield’ (yu"tharu fì-l-˙ubs ahl al-˙àja bi-l-suknà wa-l-ghalla).31 This is also observable in a case addressed to Ibn Rushd himself by the qà∂ì 'Iyà∂ in late 515 h/1121–22 and involving the ta˙bìs of a windmill
28 Al-Wansharìsì, Mi'yàr, VII, p. 141 (trans. V. Lagardère, Histoire et société, pp. 265–266, no 189). 29 According to 'Iyà∂, Madhàhib al-˙ukkàm, p. 196 (trans. D. Serrano, p. 350): ‘Ibn al-Qàsim’s doctrine, the one upheld by the majority of jurists (mashhùr), is to give preference to the poor over the rich (when apportioning the donation) and to those who have dependents over those who do not. Others have asserted that no one should have any advantage over his peers—irrespective of whether they are in need or living in opulence—and this is what Ibn al-Màjishùn prescribes. Our legal custom ('amal ) follows his example with regard to reversible a˙bàs (a˙bàs mu'aqqaba), as is the case in this consultation (. . .)’. 30 Al-Jazìrì, al-Maqßad, pp. 303–304. 31 Ibn Abì Zayd, Risàla, pp. 234–235.
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carried out by a father in favour of his two sons ‘equitably and in equal parts between them both’ (bi-l-sawiyya bayna-humà wa-l-i'tidàl ) and later of their descendants. When they died, they left numerous descendants; one of the brothers, however, had sired more children than the other and some of them lived in precarious conditions. Ibn Rushd is asked whether the ˙ubs must be shared ‘according to particular needs’ ('alà-l-˙àja), in equal parts or, rather, each must retain the part formerly owned by their father. Ibn Rushd replies that all the descendants of both beneficiaries must receive the same share if they have similar economic status, whereas if some are in more need than the others, the poor will receive a bigger share, depending on the size of their respective families.32 Also, in another fatwà he issued in response to a query from one of the fuqahà" of the shùrà of Jaén in 513 h/1119–20 regarding a family donation made by a father in favour of his sons and their offspring with the formula ‘I donate my property in favour of my two sons X and Y, then to their descendants and the latter’s progeny while they continue to have descent’ (milkì hàdhà ˙ubs 'alà ibnayà Fulàn wa-Fulàn thumma 'alà a'qàbi-himà wa-a'qàb a'qàbi-himà mà tanàsalù). À propos this textual formulation (naßß), Ibn Rushd asserts that Màlik’s views transmitted in the Mudawwana is that those belonging to the second and third generations of beneficiaries, children and grandchildren of the founder’s two sons, could also benefit from the donation simply if the founder inserts the particle ‘and’ as there does not exist any disagreement (ikhtilàf ) on this issue. There are differing opinions, however, on the question of whether the donation must be split into identical parts or according to the particular needs of each individual; he points out that, on this issue, legal practice ('amal ) dictates the adherence to the criterion of equality, regardless of the beneficiaries’ gender or their economic status (wealthy and poor alike).33
32 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, II, pp. 1050–1051, no 311; ed. alTajkànì, II, pp. 923–924, no 241; al-Wansharìsì, Mi'yàr, VII, pp. 461–462; 'Iyà∂, Madhàhib al-˙ukkàm, pp. 197–198 (trans. D. Serrano, pp. 351–352). See the remarks made on this issue by D. Serrano in ‘La práctica legal ('amal ) en al-Andalus’, pp. 179–180 and 187–188. 33 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, II, p. 1035, no 302; ed. al-Tajkànì, II, p. 911, no 240.
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3.3. Sons after fathers but together with uncles If a founder did not want the children of beneficiaries to be included in that group together with their parents, he must not use the copulative particle ‘and’ and use instead the particle thumma (‘then’, ‘afterwards’), indicating that children were not to enjoy the usufruct of the property at the same time as their parents, but only after the latter’s demise. Ibn al-'A††àr remarks that this notion could be further reinforced if, after including the particle ‘then’ (thumma), the expression ‘after them’ (ba'da-hum) was also inserted.34 Fatàwà sometimes include other expressions also used to suggest or stress the notion of separation between generations of beneficiaries, such as alawwal fa-l-awwal min-hum.35 An anonymous fatwà provides an example of this type of generational transmission. It describes how a man donated a number of properties (amlàk) in favour of three of his sons by inserting in the donation deed the formula ‘and after them, in favour of their descendants and the latter’s descendants, thus one generation after the other, so that any of my sons who passes away will be able to pass his share on to his descendants and then to their children, and the children of their children; whoever dies without descent will be able to pass on his share to the aforementioned brothers’. As the unknown jurist who issues the ruling indicates, according to this formula, children can not benefit from a donation simultaneously with their fathers and are forced to await the death of the latter in order to do so.36 Thus, the use of thumma by the founder meant that children would only enjoy the usufruct of a ˙ubs once their father had passed away. Its use, however, engendered another difficulty as it was not at all clear whether that particle also forced them to wait until after their father’s brothers, their uncles, had also died; i.e. whether members of a single generation were forced to await the complete extinction of the previous one in order to enjoy the usufruct of a certain ˙ubs. Ibn Rushd’s testimony is, once again, instrumental in shedding light on a specific aspect of the family donation, in this particular case by clarifying the meaning of the inclusion of the particle thumma in
34 Ibn al-'A††àr, Kitàb al-wathà"iq, pp. 172–173 and 236 (trans. P. Chalmeta and M. Marugán, pp. 386–388); al-Jazìrì, al-Maqßad, pp. 285–286. 35 Al-Wansharìsì, Mi'yàr, VII, p. 67. 36 Al-Wansharìsì, Mi'yàr, VII, pp. 270–271.
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this type of donations. In his view, that particle did not imply that the donation had to pass from one generation to another automatically but, rather, ‘generationally’, i.e. not fathers and their children simultaneously, but rather nephews and uncles at the same time. The text that best encapsulates this notion is a fatwà37 in which he responds to a query originating in Jaén involving a man who made a donation in favour of his daughter and all her children— whatever their sex—and then those children’s descendants, indicating the mode of transmission by the expression ‘then, after them’ (thumma min ba'da-hum). Apart from the first daughter (A), the founder had another one (B) and two sons (C and D). The first-born (A) died and was survived by two children (male and female, A1 and A2) who immediately became beneficiaries alongside their two uncles (C and D) and their aunt (B).38 Later on, both children (A1 and A2) passed away and the asset returned to the hands of the founder’s remaining daughter and two sons (B, C and D). One of the founder’s sons (C) died afterwards, leaving two children (C1 and C2) who claimed to have a right over the property together with their uncle (D) and aunt (B), the founder’s only remaining children. The latter refused to do that arguing that the donation stipulated that descendants ('aqib) would only benefit from the donation once the beneficiaries had died, in accordance with the aforementioned formula used by the founder (thumma 'alà a'qàbi-him min ba'da-hum). In his response, Ibn Rushd believes that, in accordance with the formula employed here, the use of thumma by the founder refers to the separation of parents and children, that is that a child must not be a beneficiary at the same time as his father. Conversely, that particle did not have the same meaning when applied to uncles and nephews as, in order to do so, the founder should have uttered the
37 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, I, pp. 620–621, no 146; ed. al-Tajkànì, I, pp. 541–543, no 124. According to Y. Ragib, Marchands d’étoffes, pp. 38–39, Màlik defined the meaning of wa—implying that all could make use of the ˙ubs simultaneously-, but not that of thumma, with regard to whether the children of a recentlydeceased beneficiary have the right to benefit from the ˙ubs even though some of their uncles, also beneficiaries, are still alive or, on the contrary, the former had to wait their turn—their uncles’ demise—prior to disposing of the ˙ubs; this reveals the existence of a transmission from generation to generation. This is the view upheld by Ibn Rushd in this fatwà. 38 The text uses the term 'amm ('ammay-himà wa-'ammati-himà) to refer to the maternal uncles. In fact, 'amm designates a paternal uncle, whereas the correct term to describe an uncle from the mother’s side of the family is khàl.
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words ‘and then in favour of his descendants once everyone else was deceased ’ (thumma 'alà a'qàbi-him ba'da inqirà∂ jamì'i-him). After the beneficiary’s demise, then, his children could enjoy the usufruct of the ˙ubs alongside his brothers, that is uncles and nephews simultaneously rather than one generation after another. Ibn Rushd’s argumentation on this issue is based on linguistic considerations and its correct understanding depends, to a great extent, on a good grasp of the idiosyncrasies inherent in the Arabic language. To sum it up, it is based on the fact that two plurals affixed with a plural personal pronoun linked by the particle thumma indicate individual, rather than collective, succession. In order to illustrate this argument, he resorts to examples borrowed from daily parlance and also from Qur"ànic language. He states, first of all, that it is right when someone says ‘I purchased ten houses and later sold them’, even though he did not dispose of them all at the same time but, instead, one after another, that is buying one and selling it afterwards and so forth, etc. Likewise, he quotes a verse from the Qur"àn (sùrat al-˙ajj, XXII, 66): ‘It is He who gave you life, then he shall make you dead, then He shall give you life’ (wa-huwa alladhì a˙yà-kum thumma yumìtu-kum thumma yu˙yì-kum) and explains that, in it, the presence of thumma indicates individual, not collective, succession. He concludes by asserting that examples of this type are frequently found both in the Qur"àn and common language. After some time Ibn Rushd received news from Jaén again;39 his response had not been well received and had met some resistance, either from the parties concerned or from some local faqìh. The text does not shed light on the matter and only mentions that ‘some people were opposed to that response’. It is not at all clear how much time had elapsed between the moment Ibn Rushd issued his first fatwà and the time the question was again posed to him; the earlier ruling is just referred to as ‘old response’ ( jawàb qadìm). We do not know the contents of the argumentation brandished by those opposed to Ibn Rushd’s response; the latter are only referred to generically as al-mukhàlif. It is merely reported that Ibn Rushd’s argumentation, based on the aforementioned verse from the sùrat al-˙ajj, is considered ‘flimsy’. If argued, in sum, that nephews could not enjoy the
39 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, II, pp. 728–733, no 168; ed. alTajkànì, I, pp. 650–657, no 143.
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usufruct of the asset together with their uncles: the founder made his donation in favour of ‘specific individuals’ (a'yàn) and, after them, of the rest so that whilst one of those beneficiaries (a'yàn) remained alive, no others could lay any claims on the property as ‘it only belongs to them by virtue of what the founder has stipulated in that respect’. Once their line of descent had died out then others could benefit from the donation. It seems that the mukhàlif ’s argumentation was more elaborate but we only have it in a summarised fashion. Whichever the case, the fact that the interlocutor describes the formula employed by the founder as ‘a clear and unequivocal text’ (naßß) must be stressed here. One of Ibn Rushd’s arguments will be aimed, precisely, at refuting that idea and demonstrating that the formula used by the founder is far from being unequivocal. Although the second response is rather lengthier that the previous one, Ibn Rushd does not include any novel arguments and contents himself with reiterating those wielded in his first response, albeit expounded in more detail and a more elaborately. The basis (aßl ) that sustains his argumentation is the fact that the founder’s will must always be adhered to. Thus, if he used a clear and unambiguous text (naßß jàlì) for his donation, his instructions must be strictly followed, even though the founder had verbally stated that what he intended to do was actually the opposite of what had been recorded in the donation deed. However, when the founder made use of ambiguous words, or words susceptible to more than one interpretation, the appropriate course of action was to interpret them in their more common or likely sense (aΩhar)40 if the founder was already deceased and thus unable to clarify the terms in which his donation had been carried out. This is, in fact, the case in the episode in which he is involved here since the formula used by the founder (thumma 'ala a'qàbi-him min ba'da-hum) could have two different interpretations: either that the donation was to pass on to the descendants only after all the beneficiaries had passed away or, rather, pass on to the descendants of dead beneficiaries until their own line of descent became extinct. He then reiterated the arguments of a linguistic character already wielded in his former response, those of the common language and Qur"àn, XXII, 66. Once the ambiguity of the formula has been exposed, as well as the possibility of interpreting it in 40 According to W.B. Hallaq, ‘Model Shurù† Works’, pp. 130–131, the concept of aΩhar is synonymous with aßa˙˙ and he translates it as ‘stronger’.
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two different ways, the remainder of his response is aimed at demonstrating why his particular interpretation of the text is the most accurate. The first argument in this respect is based on the laws of inheritance according to which, when a man passes away, his son has greater right to his properties than the deceased man’s brother. That is why, in the case under consideration here, a beneficiary’s son must not be deprived of his fair share to his uncle’s advantage if an unmistakable indication (naßß) to this eventuality existed in the donation deed; this was not the case here, as it has been previously pointed out. It must also be taken into account, moreover, that the ‘likeliest’ instance was that the founder had made his donation ‘as an heirloom’ ('alà sabìl al-mìràth) since, if he had failed to use the expression ‘and in favour of their descendants’ (wa-'alà a'qàbi-him), it was actually in order to allow children to enjoy the usufruct of the asset alongside their parents. He had used the particle thumma, conversely, to ensure that the usufruct must not be enjoyed by both simultaneously; this did not entail, however, that they were to wait for their uncles to pass away as ‘this runs counter to people’s religious sentiments and their charitable deeds’. The next argument is borrowed from one of Ibn Zarb’s postulates concerning another aspect of the ˙ubs. According to Ibn Zarb, for the children of a founder’s daughter to be considered as beneficiaries, this proviso must have been clearly stipulated by the founder. Thus, usual formulas of the type ‘in favour of my sons X and Y, my daughter A and her offspring’ did not mean that a daughter’s children became beneficiaries; only the sons’ children did. For a daughter’s children to be regarded as beneficiaries, the founder must use a more explicit formula such as ‘in favour of my daughter and her offspring’ or ‘in favour of my son X and my daughter Y and their descendants’. As Ibn Rushd reports, Ibn Zarb did not think that the expression ‘in favour of their descendants’ ('alà a'qàbihim) applied to the descendants of all of the founder’s children and only allowed the inclusion of a daughter’s children if a clear and unequivocal text or formula (naßß jàlì) stipulated so, one that did not leave any room for ambiguities. Using the form of this postulate,41 41 But not its content as Ibn Rushd is opposed to Ibn Zarb’s views regarding the exclusion of the children of the founder’s daughters among the beneficiaries (see infra).
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Ibn Rushd transplanted it to the issue (mas"ala) under discussion, indicating that the share of the ˙ubs held by a deceased beneficiary must not be passed on to his brothers, to the detriment of the deceased man’s children, unless there existed an unequivocal formulation (naßß jàlì) to that effect; this was not the case here, as the affixed pronoun him-hum found in the expression ‘and then, after them, in favour of their descendants’ (thumma 'alà a'qàbi-him min ba'da-hum) does not necessarily refer to all of the founder’s children, but only to those who passed away. The third and last argument brandished by Ibn Rushd to support his interpretation of the text is based on the assumption by his interlocutor that the founder’s words represented a clear formulation (naßß) according to which the beneficiaries’ children must not enjoy the usufruct of a ˙ubs until after the former are all deceased is arbitrary and again invokes the Qur"àn to justify his way of reasoning, specifically IV,11 and IX,103. With regard to the first, he remarks that its content did not constitute a clear text (naßß) but, rather, a generalisation which must be nuanced. Thus, for instance, the verse does not refer to infidels or to slaves. As for the second, ‘deduct out of his assets alms to cleanse and purify them with it!’ (khudh min amwàli-him ßadaqa tu†ahhiru-hum wa-tuzakkì-him bi-hà), he recalls that some 'ulamà" consider that the zakà must not levied on the insane and the young and also that Màlik believes that it must not be imposed on slaves either: ‘if that were an unequivocal formulation (naßß), applying to the assets of all Muslims’, he asserts, ‘there would not be so many glaring discrepancies on the matter’. Based on these examples gleaned from the Qur"an, the formula used by the founder (thumma 'alà a'qàbi-him min ba'da-hum) would not be an unequivocal formulation (naßß) either; it does not indicate that the donation must be passed on to the beneficiaries’ children only when all the former have died; the most likely occurrence might have been that the founder wanted his donation to be passed on ‘in favour of the descendants of dead beneficiaries’. This option is considered as the ‘likely wish of the founder’ (al-aΩhar min iràdat al-mu˙abbis) and Ibn Rushd asserts that the suggestion that this formula represents an unequivocal text is untenable ( fa-l-qawl bi-anna dhàlik naßß laysa bi-qawl ).42
42 Al-Tajkànì’s edition contains a mistake which completely distorts the meaning of the sentence: fa-l-qawl bi-anna dhàlik laysa bi-naßß laysa bi-qawl.
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Apart from this important fatwà in which he defines the theoretical framework of the issue regarding the use of the particle thumma, there are other rulings by Ibn Rushd which reveal how he applies the legal principles hitherto enunciated to specific cases. In one of them he responds to a query originating from Granada concerning the case of a man who stipulated in his will that all his properties located in a number of villages were to be donated in favour of his two umm walad,43 called Surayya and Hanà-l-'Aysh. They were to receive equal shares so that, if one of them were to pass away, her part would go to A˙mad and al-Óasan, the founder’s cousins, also divided up in equal portions. If one of the latter died childless, his share would go to his brother; if both died or their lineages died out, their shares would be passed on to the other branch ( fakhdh thànì) of the founder’s cousins and their descendants. If they died childless, their assets would then go to a third branch of cousins ( fakhdh thàlith) and their progeny and, lastly, if they were to die childless, the ˙ubs would be surrendered to the fuqarà" and the poor living in Granada and Elvira. Apart from this strategy of transmission, the founder inserted in one of the clauses the formula ‘to the male the like of the portion of two females’ (Qur"àn IV,11).44 Based on these premises, the transmission took place as follows. Hanà-l-'Aysh died first and all the endowment passed on to Surayya. While the latter was still alive, A˙mad passed away childless and his assets were inherited by his brother al-Óasan who also died later on leaving some children, both sons and daughters. One of al-Óasan’s sons died and left a son; shortly after this death Surayya passed away. Some of al-Óasan’s other children died afterwards, leaving both sons and daughters. The question focuses on whether children are entitled to become beneficiaries alongside their parents—and, for that matter, nephews and uncles—and, if that is the case, how is the ˙ubs to be divided up. Ibn Rushd’s response is that the transmission must be carried out ‘generationally’, that is that children and parents—as well as nephews and uncles—must enjoy the usufruct of the asset simultaneously, always in conformity with the clause ‘for a male a share equivalent to that held by two women’, according to the founder’s stipulations. 43 Umm walad literally means ‘mother of a child’ and designated a female slave who gave birth to her master’s child in medieval times. 44 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, II, pp. 1207–1209, no 387; ed. alTajkànì, II, pp. 1063–1065, no 290; al-Wansharìsì, Mi'yàr, VII, pp. 463–464.
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There is also another fatwà issued in response to the case of a ta˙bìs whose formulation is as follows: ‘˙ubs made by X in favour of his son Y and then, after the latter’s demise, of his descendants and the descendants of their descendants’ (˙abbasa Fulàn b. Fulàn 'alà ibnihi Fulàn thumma 'alà 'aqibi-hi min ba'da-hu wa-'aqib 'aqibi-hi ). He was asked whether, after the beneficiary’s demise, his grandchildren were entitled to enjoy the usufruct of the ˙ubs alongside their parents due to the use of ‘and’ or one collective after the other ('alà-l-tartìb) due to the presence of the expression thumma. The query was answered by three different scholars, but not unanimously. Abù-l-Qàsim b. Aßbagh b. Mu˙ammad held that it ought to be enjoyed from generation to generation by virtue of the use of the expression thumma by the founder; the particle does not need to be repeated after each of the generations it refers to. Conversely, Ibn al-Óàjj and Ibn Rushd made distinctions between the different generations: the descendants of the first generation of beneficiaries, that is the founder’s grandchildren, were not to enjoy the usufruct of the ˙ubs together with his son as the founder had used the expression ‘and then in favour of their descendants’ (thumma 'alà a'qàbi-him) in this particular case. The third generation, however, could enjoy the usufruct at the same time as the second, parents and children simultaneously, as, in this case, the founder had used the expression ‘and in favour of their descendants’ (wa-'alà a'qàbi-him), linking both generations by means of the copulative ‘and’.45 3.4. Family and pious donation: in favour of poor relatives A family donation could sometimes have a more definite pious purpose, such as the designation of the founder’s poor relatives as direct— not secondary—beneficiaries. This is epitomised by a legal question sent to Ibn 'Attàb from Almería concerning a man who had stipulated in his will that a farmstead (∂ay'a) be donated as an alms—˙ubs (˙ubs ßadaqa) for the benefit of his poor relatives (∂u'afà" ahli-hi ), both from his father’s and mother’s sides of the family, with the proviso that close kinship was to be the only condition to benefit from this pious arrangement; the beneficiaries were to receive food and clothing.46 45 Kitàb al-fatàwà, ed. al-Talìlì, pp. 1568–1569, no 579; al-Wansharìsì, Mi'yàr, VII, pp. 440–441 (trans. A. Mª Carballeira, Legados píos, 245–246). 46 Ibn Sahl, Dìwàn, II, pp. 1065–1067; al-Wansharìsì, Mi'yàr, VII, pp. 477–478 (trans. V. Lagardère, Campagnes, p. 108 and Histoire et société, p. 263, no 181).
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There is also another fatwà, by Abù 'Umar b. al-Makwì, regarding a plot of land donated by a man in favour of his poor relatives ('alà ∂u'afà" ahli-hi li-sulbi-hi ). After eighty years or more had elapsed since the donation had been first made, no one knew who the last beneficiary (marja' ) designated by the founder was to be; in fact, his poor relatives had all died and only a few grandchildren remained. He was asked whether the donation was to be handed over to them as a private property (mu†laqan). Ibn al-Makwì replied that if his grandchildren happened to be poor, the asset could be passed on to them, but not as a private property; if they were not in need, the asset should be surrendered to the poor (masàkìn) until one, from among his descendants, met that requirement, i.e. poverty.47 Another similar possibility was establishing a combination of charitable aims, selecting, in the first place, a pious purpose but making it subservient to a more personal motive—albeit charitable as well— like the presence of people in need among the founder’s relatives. That is the case of a legal query dated in shawwàl 731 h (13–5/10–6– 1336) responded to by an anonymous jurist and concerning the ta˙bìs of someone by the name of Abù 'Abdallàh al-Óaddùdì who donated the rents generated by an orchard in favour of some lepers; he included a clause, though, whereby if any of his descendants, male or female, happened to be in a situation of extreme need (˙àja shadìda), the orchard would be passed on to them until they achieved an improvement in their condition; only then would the rents be allocated back to the lepers. It is an original combination of two equally charitable aims; one has a more philanthropic slant whereas the other is of a strictly personal nature.48 3.5. In favour of the closest relatives A founder could sometimes include in his ta˙bìs expressions which, although intended to designate his beneficiaries, usually sparked feuds among his descendants due to their imprecision. They are terms alluding to the founder’s descendants or relatives or to the beneficiaries in a vague and ambiguous way such as ‘in favour of my closest relatives’. 47 Al-Sha'bì, al-A˙kàm, pp. 151–152, no 195; al-Wansharìsì, Mi'yàr, VII, p. 435 (trans. A. Mª Carballeira, Legados píos, 224). 48 Al-Wansharìsì, Mi'yàr, VII, pp. 186–187 (trans. V. Lagardère, Histoire et société, p. 231, no 80, who believes that this fatwà originated among the fuqahà" of Fez).
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Al-Jazìrì is perhaps the jurist who best defines the content of the concept of ‘agnates’ ('aßaba). According to Ibn al-Qàsim, Màlik held that, once the line of beneficiaries had died out, women were to be allowed to join their ranks and that included daughters, mothers, sisters, grandmothers and paternal aunts, but wives were left out. According to 'Ìsà, Ibn al-Qàsim’s view was that a brother’s daughters ought to be considered ‘agnates’ as well whereas, according to Sa˙nùn, whoever was not the founder’s legal heir was not to be allowed to benefit from his donation and this included both paternal ('amma) and maternal (khàla) aunts. Ibn Óabìb, for his part, indicated, based on the authority of Ibn al-Màjishùn, that the view unanimously endorsed by the learned men and magistrates of alAndalus was that, as far as women were concerned, only daughters, sons’ daughters, sisters and those designated a founder’s heirs should be considered as beneficiaries. Daughters’ daughters, paternal aunts, a paternal uncle’s or a brother’s daughters and mothers, however, must not be included among the beneficiaries as ‘they were not encompassed by the notion of descent’ (idh laysat min jadhm al-nasb); grandmothers, both paternal and maternal, and wives were also barred.49 There is also some jurisprudence on these matters. One is the case dealt with by a Córdoban law expert regarding a father who donated a plot of land with trees planted on it to his son with the proviso that, after the latter’s demise, it would be passed on ‘in favour of his son’s closest relatives’ as a property, rather than as a ˙ubs. This led to a conflict between the father’s brother and the mother’s two brothers as the beneficiary died childless. In accordance with the agnatic notion of the family characteristic of Arab societies, the anonymous jurist’s response is that the paternal uncle is a closer relative to the beneficiary than his maternal uncles as both are associated with the grandfather’s lineage. Thus, in conformity with the founder’s clause, the sadaqa belongs to him.50 On this subject there is also a case arising from Almería and posed to Ibn 'Attàb which we have already alluded to. Ibn 'Attàb’s fatwà is aimed at settling the feud between a founder’s relatives who, at the time the fatwà was demanded, were the following: his maternal
49 50
Al-Jazìrì, al-Maqßad, pp. 291–292. Al-Sha'bì, al-A˙kàm, p. 151, no 194; al-Wansharìsì, Mi'yàr, VII, p. 66.
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aunt’s children (banù khàlati-hi), his paternal uncle’s children (banù 'ammi-hi ), his mother’s paternal cousins51 and the children of his mother’s paternal cousin,52 all of whom have children, both adults and underage. All of them, together with their children, were fighting among themselves in order to benefit from the ˙ubs and the jurist is asked to ascertain who is entitled to enjoy the usufruct of the donation and whether some have any privileges on the property; he is also asked to clarify the order (rutba) the would-be beneficiaries are to follow and who is to take precedence from then onwards. In his response, Ibn 'Attàb asserts that, in accordance with its external formulation (Ωàhir), the founder wanted the beneficiaries to be selected gradually depending on whether they had close ties of kinship with him. Thus, provided that all the aforementioned individuals are in financial need, he states that the closest relatives to the founder are his immediate cousins, his maternal and paternal aunts’ children. Once they have benefited from the foundation, and provided that a surplus still remains, the next closest relatives among the aforementioned are the children of his mother’s paternal uncle, his mother’s paternal cousins and the children of his mother’s paternal cousin, alongside his mother’s maternal cousins, all of them subject to identical treatment when it came to apportioning any assets. He concludes by remarking that, had the testator revealed the identity of the designated beneficiaries to his executors, this would have prevented the beneficiaries from having to prove their claims.53 Similarly, a legal question stemming from Badajoz and addressed to Ibn Rushd involves a case of the same nature54 concerning a ˙ubs donated in favour of the poor members of the Banù Is˙àq lineage; the same issue is discussed in a query from Denia about a man who donated some properties in favour of his daughter and her descendants, including a clause whereby were his daughter to die childless while he was still alive or, alternatively, if she and her children all died during his lifetime, he would take hold of the ˙ubs again. If the
Banù 'amm abì ummi-hi, lit. ‘the children of the paternal uncle of his mother’s father’. 52 Banù bint 'amm ummi-hi, lit. ‘the children of the daughter of his mother’s paternal uncle’. 53 Ibn Sahl, Dìwàn, II, 1065–1067; al-Wansharìsì, Mi'yàr, VII, pp. 477–478 (trans. V. Lagardère, Campagnes, p. 108 and Histoire et société, p. 263, no 181). 54 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, I, pp. 290–293, no 55; ed. al-Tajkànì, I, pp. 235–237, no 50. 51
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founder had already passed away, however, and his daughter died childless shortly afterwards—or her children happened to pass away as well—the ˙ubs would be passed on to ‘his closest relatives’.55
4. The issue of daughters’ children A significant aspect of family donations is that concerning the inclusion or exclusion as beneficiaries of the children of a founder’s daughters and their offspring. We have already seen that the founder could exclude his daughters from his donation if he so wished, or give precedence to his sons over his daughters (see supra). We will see now whether daughters, when included among the beneficiaries, could pass their share on to their descendants. The issue here centres on the fact that traditional Arab society follows an agnatic hierarchy where membership to the family clan is only transmitted through males. Thus, a woman’s son sired by a man belonging to a different family or clan is not a member of the woman’s clan, but of her husband’s. When a father, therefore, made a donation in favour of his sons and their descendants, it proved problematic to decide whether his daughters’ children ought to be considered as beneficiaries as, if they had married outside of the family group, their children could not be regarded as legitimate descendants of the founder as they were members of the family of his daughter’s husband. Another factor to take into consideration is the abundant terminology existing in Arabic on descent and the legal sense assigned to each term. The issue of daughters’ children was already broached in alKhaßßàf ’s treatise56 and in the Mudawwana, as we shall see in what follows. Evidence on this matter is found in al-Andalus from before the 10th century and it seems that the Andalusian jurists’ view on this aspect differs from that held by the rest of Màlikì legal authors. The most important text available on the subject is a long fatwà issued by Ibn Rushd where he defines the meaning of all Arabic terminology existing on descent and its uses regarding the transmission of donations.57 Other interesting references are Ibn al-'A††àr’s 55 Kitàb al-fatàwà, ed. al-Talìlì, I, pp. 164–165, no 5; ed. al-Tajkànì, I, pp. 145–146, no 5. 56 A˙kàm al-awqàf, pp. 28–29. 57 Kitàb al-fatàwà, ed. al-Talìlì, II, pp. 1120–1130, no 349; ed. al-Tajkànì, II, pp. 986–996, no 270.
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and al-Jazìrì’s treatises for would-be notaries and a lengthy text found in the Mi'yàr under the heading maqàla mufìda fì-l-a˙bàs, written by the faqìh, imàm and qà∂ì 'alà-l-jàma'a of Córdoba Abù 'Abdallàh Mu˙ammad b. 'Alì b. Óamdìn (d. 508 h/1114). He elaborated at great length on the arguments brandished by those both in favour and against the inclusion of a daughter’s children.58 4.1. Màlik’s view The issue of daughters’ children constitutes an old conundrum in Islamic jurisprudence. As Ibn Óamdìn indicates, both Màlik’s opinion and that held by his detractors are based on the interpretation that each makes of the term ‘son’ (walad, pl. awlàd ) and on its particular meaning in Arabic.59 The position of the founder of the Màlikì madhhab is recorded by Sa˙nùn in the Mudawwana: if the founder states ‘I donate this house in favour of my son’, using the expression 'alà waladì (‘in favour of my son’), the house will be his son’s and the latter’s sons, whereas daughters’ sons will have no rights at all. The argument containing this restrictive interpretation of the term walad is based on Qur"àn IV, 11, where awlàd is supposed to mean only and exclusively sons.60 The ‘orthodox’ Màlikì interpretation was, therefore, that a donation undertaken via the formula 'alà waladì excluded all of the founder’s descendants stemming from the female line of the family, that is, daughters’ children, as ‘they are not sons nor descendants of their grandfather, the founder’, as Ibn Óamdìn points out.61 It is, obviously, a notion characteristic of an agnatic and patrilineal society such as the traditional Arab society in which only the male is accorded the privilege of transmitting membership to a particular lineage. This notion that one’s own descent is only that arising from the father’s side is encapsulated in the following verses: ‘our children are the children of our sons and our daughters; our daughters’ sons are the
58 Al-Wansharìsì, Mi'yàr, VII, pp. 399–413. According to Ibn Óamdìn himself, this long digression constitutes an explanatory prologue on a number of documents made available to him on some donations made by Almanzor. 59 Al-Wansharìsì, Mi'yàr, VII, p. 410. 60 Sa˙nùn, al-Mudawwana, XV, p. 103. See O. Pesle, La théorie et la pratique des habous, pp. 78–79. 61 Al-Jazìrì, al-Maqßad, p. 290; al-Wansharìsì, Mi'yàr, VII, p. 400.
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sons of distant men’.62 They convey the conviction that, even though daughters are regarded as members of the father’s lineage, they have no capacity to transmit membership to that lineage. According to Ibn Óamdìn, the Qur"ànic verse, the aforementioned verses and the unanimous consensus (ijmà' ) of the jurists with regard to the exclusion of daughters’ sons whenever that expression is employed are the three reasons why, in Arabic, the concept walad does only refer to sons, as do other terms used to describe descent.63 Ibn Rushd, for his part, points out that the interpretation, stemming from Màlik’s views recorded in the Mudawwana, according to which a ˙ubs made through the expression ‘in favour of his son and his son’s son’ ('alà waladì-hi wa-walad waladi-hi ) implies the exclusion of any descendants born through the female side of a family, is based on two arguments. From a legal standpoint, the concept of walad applies to descendants with whom one has ties of inheritance and lineage (mìràth and nasab); this is not the case with daughters’ sons (walad al-banàt) who, in spite of being the children of a founder’s child (his daughter), are not his heirs nor part of his lineage. One must assume, then, that when using the term walad, the founder refers to those belonging to his lineage who are likely to be his heirs as inheritance and lineage are the notions deriving, in his view, from the term walad. Most people, likewise, believe that the concept walad applies only and exclusively to sons so that if someone without any male descendants is asked ‘do you have any children?’ (idhà sa"alta a˙adu-hum hal la-hu walad wa-la ibn la-hu dhakar), he will reply ‘I have no sons, only daughters’ (laysa lì walad wa-innamà lì ibna). Thus, according to this argument, it must be assumed that the founder employs the concept walad in its customary and common meaning ‘even though this contradicts its meaning in Arabic’ (wa-in khalafa dhàlika mawjib al-lafΩ fì-l-lisàn al-'arabì), in the same way, he proceeds, that someone who swears that he will not eat meat or eggs does not break his word if he eats fish and roe, regardless of the fact that, linguistically, both constitute meat. According to the precedence recorded in the Mudawwana, both Ibn Rushd and Ibn al-'A††àr assert that jurists are unanimous in maintaining that the formula 'ala wal-
62 Ibn al-'A††àr, Kitàb al-wathà"iq, p. 204 (trans. P. Chalmeta and M. Marugán, p. 402); al-Wansharìsì, Mi'yàr, VII, pp. 400 and 410; al-Sha'bì, al-A˙kàm, p. 150. 63 Al-Wansharìsì, Mi'yàr, VII, p. 400.
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adì excludes as beneficiaries the sons of a founder’s daughters, on the analogy (qiyàs) of the common interpretation given to Qur"àn, IV, 11 as agreed by tradition and consensus (ijmà' ) among jurists.64 But, although Màlik settled the issue as far as the use of the formula 'alà waladì is concerned, many other aspects still remained to be elucidated however and the Màlikì madhhab was divided on the question of whether ‘the daughter’s children’ (walad al-banàt) should be included or excluded from the group of beneficiaries. A founder could employ many other formulas in his ta˙bìs, including the variegated Arabic terminology on descent. This is where discrepancies among legal experts arise, especially with regard to the use, by a founder, of some expressions which include an explicit mention not only to a founder’s children but also to their descendants. That is, the use of formulas including the ta'qìb or specific reference to successive generations of a founder’s descendants. On this issue, as Ibn Óamdìn admits, disagreements among jurists of all periods of history were unrelenting (wa-lam yazil al-khilàf wàqi'an fì hàdhihi-l-mas"ala bayna fuqahà" kull waqt ilà halumma jarran).65 4.2. The opinion of Andalusian Màlikì jurists In spite of Màlik’s legal opinion recorded by Sa˙nùn in the Mudawwana, Andalusian Màlikì jurisprudence was broadly in favour of the inclusion of daughters’ sons of the founder as the general rule of private endowments. Ibn al-'A††àr states clearly: ‘among us, fatàwà have established that the expression in favour of his children X and Y and the latter’s children entails the inclusion as beneficiaries of daughters’ sons as daughters are also a founder’s children and, thus, his daughters’ children are, therefore, his children’s children’. Ibn Rushd confirms this view when he remarks that the term walad includes both men and women (lafΩ al-walad ya'ummu al-dhakar wa-l-unthà); as a result, the expression ‘in favour of my children and their children’ ('alà waladì wa-walad waladì) is equivalent to ‘in favour of my children, male and female, and all their offspring’ ('alà waladì dhukùri-him wa-inàthihim wa-'alà awlàdi-him kullu-hum).
64 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, II, pp. 1121–1122, 1123 and 1124; ed. al-Tajkànì, II, pp. 987–989; Ibn al-'A††àr, Kitàb al-wathà"iq, p. 204 (trans. P. Chalmeta and M. Marugán, pp. 401–402); al-Jazìrì, al-Maqßad, p. 291. 65 Al-Wansharìsì, Mi'yàr, VII, pp. 400–401.
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One important issue is the origins of this legal opinion about the inclusion of daughter’s sons. Jurists are all agreed in attributing the generalisation of this legal practice ('amal) to the Córdoban qà∂ì Mu˙ammad b. Is˙àq b. al-Salìm, who used to issue his rulings based on fatàwà by most contemporaneous legal scholars and his own personal opinion (ra"y). Besides this qà∂ì, Ibn Rushd also includes his master, the faqìh Abù Ja'far b. Rizq, as one legal reference for this opinion. Ibn al-'A††àr asserts that, for Andalusian jurists, daughters’ children are to be included as beneficiaries up to the rank of descent set by a founder; this view is confirmed by Ibn Rushd when he notes that ‘if a founder insists on inserting the ta'qìb, daughters’ children are included up to the rank of descent determined by him, according to the masters (shuyùkh), although this is not the best known of Màlik’s views’. Ibn Óamdìn also invokes this reasoning but he seeks the authoritative endorsement of Ibn Abì Zamanìn.66 In the fatwà in which he analyses all the terminology existing on descent, Ibn Rushd records another formula designed to appoint would-be beneficiaries which also proves controversial. It is an expression very similar to the previous one (Ibn al-'A††àr makes no distinction between them) but slightly different in that it employs the affixed personal pronoun (third person plural: hum-him) as a substitute for a specific reference to the children, that is ‘in favour of my children and their children’ ('alà waladì wa-awlàdi-him) or, in the plural form, 'alà awlàdì wa-awlàdi-him, with the same meaning. Ibn Abì Zamanìn, in his Maqrab, includes a version (riwàya) according to which Màlik’s view is that daughters’ children are not to be included as beneficiaries when using this formula; Ibn Rushd considers, on the contrary, that it constitutes an analogical derivation (qiyàs) introduced by Ibn Abì Zamanìn on Màlik’s opinion regarding the exclusion of the walad al-banàt based on the expression ‘in favour of my child and my child’s child’ ('alà waladì wa-walad waladì). His opinion on this issue is based on the fact that ‘the ancient masters did not differentiate between both expressions nor did they alter the meanings of both words, in accordance with what has been previously explained that, in spite of contradicting their true meaning in Arabic,
66 Ibn al-'A††àr, Kitàb al-wathà"iq, pp. 204 and 205 (trans. p. 402); Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, II, pp. 1122, 1125 and 1128/ed. al-Tajkànì, II, pp. 988, 991 and 994; al-Wansharìsì, Mi'yàr, VII, pp. 407–408; al-Jazìrì, al-Maqßad, p. 290. See P. Chalmeta, ‘Acerca del 'amal en al-Andalus’, p. 354.
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common usage in spoken language indicates that they only apply to males, thus excluding women; the plural pronoun of the expression his children, however, applies to them all’, that is to men and women. In this way, those jurists claiming that a daughter’s children must be included as beneficiaries taking as a basis the expression ‘in favour of my child’s child’ ('alà walad waladì) or, in the plural form, ‘in favour of my children and my children’s children’ ('alà awlàdì waawlàd awlàdì), also include them when this form is employed with the affixed personal pronoun. Ibn Rushd even believes that this modality of asserting the obligatory nature of the inclusion as beneficiaries of a daughter’s children is even more evident (abyan) when the other formula is used instead, that is without the affixed personal pronoun ('alà waladì wa-walad waladì).67 Ibn Rushd refers to other ways of designating descent which do not spark so much antagonism such as ‘in favour of my children, both sons and daughters, and their children’ ('alà awlàdì dhukùri-him wa-inàthi-him wa-'alà awlàdi-him). He asserts that none of Màlik’s texts can be invoked to support this expression; the most obvious conclusion (al-Ωàhir min madhhabi-hi ) is, however, for a founder’s daughters’ children to be included as though they had been designated by name one after another. He recalls, nonetheless, a question, quoted in Ibn al-Mawwàz’s work, which has served as an argument for some jurists to exclude a daughter’s children whenever this formula is employed: it is the case of an asset donated through the expression ‘in favour of his children, sons and daughters’ ('alà waladi-hi al-dhakar wa-l-unthà), so that if any of them were to die his/her child will take up their place among the beneficiaries—in spite of the fact that Màlik had remarked on this respect that daughters’ children would not be entitled to do this. Ibn Rushd brands this tradition as ‘weak and lacking [strong enough] fundaments’ (riwàya ∂a'ìfa khàrija 'an al-ußùl ) and does not consider it appropriate to support arguments nor build up analogies taking it as a basis. He thus concludes that ‘the view in favour of the inclusion is clear and unambiguous’ ( fa-l-qawl biidkhàli-him fì hàdhihi-l-mas"ala bayyin là shubhata fì-hi ).68 The last of the five possible formulas suggested by Ibn Rushd in connection with the concept of walad is the one based on the expression 67 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, II, pp. 1124–1126; ed. al-Tajkànì, II, pp. 990–991. 68 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, II, p. 1126; ed. al-Tajkànì, II, p. 992.
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‘in favour of my children, mentioned by name, both sons and daughters, and of their children’ ('alà awlàdì wa-yusammì-him bi-asmà"i-him dhukùri-him wa-inàthi-him wa-'alà awlàdi-him). In this case, the children of a founder’s daughters are also included as beneficiaries, according to the Màlikì madhhab, and Ibn Rushd reports that there is a great deal of unanimity on this issue and quotes ‘all those belonging to it, old and contemporary, Ibn Abì Zamanìn, Abù 'Umar alIshbìlì [b. al-Makwì] and my own masters, both those I met personally and those I did not’. Similarly, al-Jazìrì notes that this formula is unanimously accepted by all jurists, old and modern, apart from Ibn Zarb who, he claims, was mistaken on this respect. Ibn Óamdìn refers to this type of donation in which beneficiaries are mentioned by name. If the founder only included his children’s names, without specifically referring to their descendants, the usufruct of the ˙ubs must only be enjoyed by his children with the result that, once they had passed away, the asset would return to the founder as inheritance (as though it were an 'umra) or his closest relatives. If the founder, on the contrary, after naming his children as beneficiaries, did mention their descendants, both his sons’ and daughters’ children would be included. In this sense, Ibn Óamdìn states that it is as if there were two ta˙bìs: one in favour of the founder’s children— in which the latter’s offspring are not included—and another in favour of the founder’s grandchildren, both his sons’ and daughters’ children.69 After this detailed analysis of the five questions (masà"il ) raised by the use of the term walad in its various formulas and combinations, Ibn Rushd’s fatwà proceeds to the analysis of the remaining terminology and starts by asserting that 'aqib equals walad and no disagreements exist among 'ulamà" as to their genuine meaning (là farq 'inda a˙ad min al-'ulamà" bayna lafΩ al-'aqib wa-l-walad fi-l-ma'nà). This way, he continues, differences among legal experts (shuyùkh) focus on the use of the terms dhurriyya and nasl .70 He then quotes Ibn al'A††àr, who distinguishes between both and claims that simply mentioning the term dhurriyya, without further elaboration, implies the inclusion of a daughter’s children; this is not the case of nasl, which
69 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, II, pp. 1126–1127; ed. al-Tajkànì, II, p. 992; al-Jazìrì, al-Maqßad, p. 290; al-Wansharìsì, Mi'yàr, VII, pp. 404 and 406. 70 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, II, pp. 1128–1129; ed. al-Tajkànì, II, p. 995.
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is akin to the concepts of walad and 'aqib in the sense that they only include daughters’ children as beneficiaries when the founder resorts to the formula of repeating the concept in order to emphasises the levels of descent and transmission (takrìr lafΩ al-ta'qìb). In his treatise, Ibn al-'A††àr certainly asserts that a donation ‘in favour of my descendants and my descendants’ offspring’ ('alà naslihi wa-nasl nasli-hi) has the same effect as the formula ‘in favour of my children and my children’s children’ ('alà waladì wa-walad waladì) in that both exclude a founder’s daughters—following Màlik’s views on the issue—and include them at the same time in accordance with the ‘apparent’ meaning of a founder’s words. As for the concept of dhurriyya, Ibn al-'A††àr justifies his view in favour of the inclusion of daughters’ children on Qur"àn VI, 84–85:71 ‘if a founder employs the expression ‘in favour of my progeny’ ('alà dhurriyatì) there is no doubt as to the inclusion as beneficiaries of daughters’ children’. He bases his assertion on those Qur"anic verses, according to which Jesus is regarded as belonging to Abraham’s lineage (dhurriyya) in spite of being descended from the mother’s side of the family as Mary’s son.72 Ibn Rushd endorses Ibn al-'A††àr’s interpretation regarding the concept of dhurriyya and describes it as ‘correct argumentation’ (i˙tijàj ßa˙ì˙) so that, although there are some who claim that a daughter’s child is not part of a man’s dhurriyya and Ibn al-'A††àr’s argumentation with regard to the aforementioned verse is flimsy, he admits, nonetheless, that he does not wish to expand his commentary due to the fallacious character of such an interpretation.73 Al-Jazìrì, on the contrary, thinks that Ibn al-'A††àr’s distinction between dhurriyya and nasl is nonsense as all the terms designating descent are identical as far as the issue of the inclusion or exclusion of a daughter’s children is concerned.74 The last term analysed by Ibn Rushd in his fatwà is ibn (pl. banùn or abnà"), on which he has a very succinct commentary. He first asserts that if a founder employs ‘in favour of my children’ ('alà banì),
71
‘And We gave to him Isaac and Jacob—each one We guided, and Noah We guided; and of his seed David and Solomon, Job and Joseph, Moses and Aaron— even so We recompense the do-gooders—Zachariah and John, Jesus and Elias; each was of the righteous’. 72 Ibn al-'A††àr, Kitàb al-wathà"iq, pp. 208–209 (trans. P. Chalmeta and M. Marugán, pp. 369–370). 73 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, II, p. 1129; ed. al-Tajkànì, II, p. 995. 74 Al-Jazìrì, al-Maqßad, pp. 290–291.
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‘in favour of my daughter and her children’ ('alà bintì wa-banì bintì) or ‘in favour of my daughter and her children’ ('alà banì wa-banìhim), the result is the same as if he used the terms walad and 'aqib, regardless of whether one assumes that the plural form includes the feminine or does not, in which case the donation remains exclusively within the male line of descent. The same occurs when he employs the expression ‘in favour of my children, sons and daughters’ ('alà banì dhukùri-him wa-inàthi-him), whether they are mentioned by name or not.75 4.3. Analysis of jurisprudence Thus far we have focused on the ‘theoretical analysis of the issue concerning the exclusion or inclusion of daughters’ children. In order to complete the study of this aspect all the previous considerations must now be contrasted with the information supplied by cases posed to fuqaha" in order to ascertain as far as possible to what extent the views and theories hitherto analysed were put into practice. I start with the legal questions addressed to Ibn Rushd, not only due to chronological considerations but also because of their pivotal role when addressing all these problems, as shown in the previous section. Among his rulings on the subject, one must be singled out because of the depth of its arguments: one that he issued in response to a query made by one of the legal experts acting as a councillor in the shùrà of Jaén in 513 h/1119–2076 concerning a man who donated a property in favour of his two sons and their descendants uttering the words: ‘I donate my property as a ˙ubs in favour of my two sons X and Y and then in favour of their descendants and the latter’s offspring so far as they perpetuate themselves’ (milkì hàdhà ˙ubs 'alà ibnayà Fulàn wa-Fulàn thumma 'alà a'qàbi-himà wa-a'qàb a'qàbihimà mà tanàsalù). Ibn Rushd was asked about the most suitable way to transmit this donation and whether daughters’ children were to be included or excluded. He retorted that, based on Màlik’s views, three outcomes were possible, one against and two in favour. The one against holds that daughters’ children are not to be included at all since ‘a daughter’s child’ (walad al-bint) is not ‘a descendant’ ('aqib) of the founder. From the two favourable ones, the first 75 76
Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, II, p. 1130; ed. al-Tajkànì, II, p. 996. Ibn Rushd, Kitàb al-fatàwà, II, pp. 1034–1037, no 302; II, pp. 910–912, no 240.
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insists on including grandchildren—from the female side of the family—of the two beneficiaries designated by the founder as the daughters of both of them are his descendants (the founder’s) and the daughters’ children are descendants of both of their descendants. That is, considering the fact that the founder has established three ranks of descent (children, grandchildren and great grandchildren), daughters’ children must be included up to the latest level of the hierarchy. The fourth level of descent (the founder’s great-greatgrandchildren) will not be included, however, unless the founder has made this explicit by uttering the words ‘and then in favour of their descendants, their descendants’ descendants and the offspring of their descendants’ descendants’ (thumma 'alà a'qàbi-himà wa-a'qàb a'qàbi-himà wa-a'qàb a'qàb a'qàbi-himà). That is, each time the founder increases the scope of his donation’s beneficiaries to encompass a further generation, daughters’ children are included up to that level. Conversely, if the founder summarises the issue by saying ‘and then in favour of their descendants while they keep on perpetuating their lineage’ (thumma 'alà a'qàbi-himà ma tanàsalù) without adding the expression ‘their descendants’ descent’ (a'qàb a'qàbi-himà), grandchildren stemming from the female side of the family will not be then regarded as beneficiaries. This is the option considered by Ibn Rushd as the more appropriate one; his master Abù Ja'far b. Rizq issued fatàwà on this respect and legal practice ('amal) is also based on this view as it is deemed to be the most adequate (aΩhar al-aqwàl ).77 The third possibility is the less stringent as it purports that both great grandchildren and great-great-grandchildren stemming from the founder’s female line of descent must be included as beneficiaries, as indicated by the insertion of the verb form ‘while they perpetuate themselves’ (mà tanàsalù) after ‘and then in favour of their descendants and their descendants’ descendants’ (thumma 'alà a'qàbi-himà wa-a'qàb a'qàbi-himà). Great-great-grandchildren would not be included, however, if the founder had not employed the expression ‘while they perpetuate themselves’ (mà tanàsalù). That is, this interpretation differs from the previous one in that the expression ‘while they perpetuate themselves’ (mà tanàsalù)78 is accorded more importance. 77
Ibn Rushd, Kitàb al-fatàwà, II, p. 1036; II, p. 910. The verb tanàsala is the 4th form of the verbal root nsl and carries the meaning of ‘to reproduce oneself ’ or ‘to multiply’. The term nasl derives from the same root; it is one of the other Arabic terms used to describe the concept of ‘descent’ or ‘lineage’. 78
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There is also the aforementioned query arising in Granada concerning the case of a man who stipulated in his will that all his properties located in a number of villages were to be donated in favour of his two umm walad. As this question has partly been analysed already, I will not dwell on some of its details and focus, instead, on the aspect I am interested in here. When selecting his two paternal cousins (al-Óasan and A˙mad) as beneficiaries if the progeny of the two original beneficiaries all died, the founder used the expression ‘in favour of both of their descents and the latter’s progeny’ ('alà a'qàbi-hima wa-a'qàb a'qàbi-himà), that is designating two generations of beneficiaries. Based on this point, Ibn Rushd believes that al-Óasan’s daughter’s children are to be beneficiaries as the daughter is comprised within the concept of 'aqib. However, as the founder did not go beyond the second generation when selecting his beneficiaries, Ibn Rushd holds that the third generation of descendants—through al-Óasan’s female line of descent-, i.e. his greatgrandchildren, must not be included as only those whose genealogy goes back to al-Óasan and his children, whether sons or daughters, are entitled to enjoy the usufruct of the ˙ubs.79 There is, lastly, a fatwà in which he responds to the case of an asset (màl) jointly owned by two brothers who donated it, one in favour of his son and the other of his daughter; after their children’s demise, the asset would be passed on to ‘all of their descendants, both male and female’ with the result that the share belonging to the one dying childless must be passed on to the other beneficiaries. Thus, after all of them had passed away, three daughters remained alive, one of whom passed away leaving behind some children. Ibn Rushd was asked whether the latter were entitled to become beneficiaries alongside the two daughters of the founders’ descendants, the last remaining members of the family. Ibn Rushd’s response does not shed a great deal of light, but it is quite simple: both of their daughters’ children must be included among the beneficiaries80 Ibn al-Óàjj was another important jurist who issued several rulings on this issue; although his arguments are not as coherent as Ibn Rushd’s, his views are somewhat different. In a legal query he 79 Ibn Rushd, Kitàb al-fatàwà, II, pp. 1208–1209; II, p. 1065; al-Wansharìsì, Mi'yàr, VII, p. 464. 80 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, II, p. 1139, no 353; ed. al-Tajkànì, II, pp. 1004–1005, no 274; al-Wansharìsì, Mi'yàr, VII, pp. 462–463 (trans. A. Mª Carballeira, Legados píos, 253–254).
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is asked whether the use of the formula ‘in favour of my child’ ('alà awlàdì) by the founder without further elaboration is to be interpreted as including both sons and daughters. Ibn al-Óàjj invokes local custom ('urf al-balad ) as the legal code to be applied in order to solve this issue: if local custom indicated that that expression only refers to sons, daughters will have no rights, whereas if the customary practice is that daughters are usually included in donations conducted in the area, they will then be included as beneficiaries. If no customary law is available in the region, he concludes, differing views (ikhtilàf ) exist as to the way the matter is to be settled.81 The two other legal queries deal with more concrete cases. The first involves a father who donated a ˙ubs—intended as alms—(˙ubs ßadaqa) in favour of his sons 'Abd al-Malik and Ya˙yà, and of his mawlà 'Abdallàh al-Íaghìr, as well as of all of their descendants; he designed a strategy of transmission organised around the formula ‘in favour of their descendants and their descendants’ descendants as long as they continue perpetuating themselves’ ('alà a'qàbi-him waa'qàb a'qàbi-him mà tanàsalù), so that the share belonging to whomever passed away first must go to the rest of beneficiaries and that belonging to someone who died without descent or whose offspring eventually died out must be passed on to the remaining beneficiaries. The mawlà 'Abdallàh died first, shortly followed by 'Abd al-Malik who left a daughter. There remained as possible beneficiaries, then, Ya˙yà and his niece, 'Abd al-Malik’s daughter. In Ibn al-Óàjj’s view, 'Abd al-Malik’s share was to be handed over to his daughter, not to his brother.82 The use of the term 'aqib by Ibn al-Óàjj is here quite inclusive, following the interpretative trend adopted by Ibn Rushd, that is referring both to males and females. The third and last fatwà addresses the case of a donation made through the expression ‘in favour of my child and his descendants’ ('alà waladi-hi wa-'aqibi-hi ). The jurist is here asked whether the founder’s great-granddaughter—through the female line of descent— can be considered as descending from her great-grandfather. He replies that she cannot and adds, moreover, that she is not even her grandfather’s—the founder’s son—descendant. According to this
81 Al-Wansharìsì, Mi'yàr, VII, p. 444 (trans. V. Lagardère, Histoire et société, p. 273, no 218). 82 Al-Wansharìsì, Mi'yàr, VII, p. 442 (trans. V. Lagardère, Histoire et société, pp. 272–273, no 21; trans. A. Mª Carballeira, Legados píos, 257–258).
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response, therefore, only his son’s sons must be considered as rightful descendants ('aqib). He notes, as well, that the founder’s greatgranddaughter can only benefit from the donation if the founder has made specific arrangements to that effect by making use of the following formula: ‘in favour of my daughter or of my son’s daughter as well as of her descendants’. In the latter case, the great-granddaughter would have to be regarded as his descendant as a matter of fact.83 Ibn al-Óàjj interprets the term 'aqib in a very restrictive way in this fatwà, applying it exclusively to sons, as opposed to the open-ended interpretation followed in the previous fatwà. Other examples of ‘positive’ interpretation, that is favourable to the inclusion of daughters’ children, can be recalled here. For instance, there is the aforementioned anonymous fatwà dated in shawwàl 731 h (13–5/10–6–1336) regarding the ta˙bìs made by a so-called Abù 'Abdallàh al-Óaddùdì. He donated the rents generated by an orchard in favour of some lepers with the proviso that, were any of his descendants, whether man or woman, to be afflicted by penury, the land would then be passed on to them so that they could overcome the temporary setback. Once financial constraints had disappeared, the rents could be restored to the lepers. The issue under discussion here is whether, in that eventuality, daughters’ children were to be allowed as beneficiaries. The unknown faqìh replies favourably, based on the way the donation deed has been drafted.84 Another case favourable to the inclusion of daughters is a fatwà whose authorship remains doubtful (al-Saraqus†ì?), which I already referred to when analysing the meaning of thumma (see supra) and concerning the case of a man who donated a field of olive trees (dimnati-hi bi-zaytùn) in favour of his children and their descendants in equal shares, deliberately including both men and women, through the formula ‘in favour of my children and the children of my children, in equal parts between men and women as long as they perpetuate themselves’ ('alà awlàdì wa-awlàd awlàdì sawiyyatan bayna dhukùri-him wa-inàthi-him mà tanàsalù).85
83
Al-Wansharìsì, Al-Wansharìsì, p. 231, no 80, who 85 Al-Wansharìsì, 265–266, no 189). 84
Mi'yàr, VII, p. 443. Mi'yàr, VII, pp. 186–187 (trans. V. Lagardère, Histoire et société, assumes that this ruling is the work of a jurist from Fez). Mi'yàr, VII, p. 141 (trans. V. Lagardère, Histoire et société, pp.
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There is, however, a fatwà against daughters issued by Ibn Lubb dealing with a feud around the usufruct of a donation between two factions of the founder’s relatives: his brother’s sons (nephews) and his daughter’s sons (grandsons). The object of the dispute was a house at first handed over by the founder to his son—and to all the sons the latter might sire and all of their descendants ('alà waladi-hi wa-'alà kulli walad dhakar yakùn la-hu wa-'alà a'qàbi-him wa-a'qàb a'qàbihim). The fact that the founder specifically stated his wish that the donation was to be passed on exclusively to his male descendants is revealing. If no male descendants happened to be forthcoming, however, the founder stipulated that the foundation should be handed over to his daughters and their offspring ( fa-idhà inqara∂ù raja'a al˙ubs ilà banàt al-mu˙abbis wa-ilà a'qàbi-hinna wa-a'qàb a'qàbi-hinna). If this line of descent were to die out as well, the house should be passed on to his nephews (his brother’s sons) and their descendants ( fa-idha inqara∂ù raja'a al-˙ubs ilà awlàd akhì-l-mu˙abbis wa-a'qàbi-him wa-a'qàb a'qàbi-him). Thus, with all these arrangements, it so happened that the lineage of the founder’s son became extinct so that, according to what he had stipulated, the donation was passed on to his daughter, the founder’s only surviving direct descendant. After enjoying the usufruct of the donation during her lifetime, the daughter passed away and the property was inherited by her paternal cousins, the founder’s nephews. The daughter’s children, the founder’s grandchildren through the female side of the family, asked to be allowed to be considered as beneficiaries but the founder’s nephews snubbed their request alleging that they had preferential rights over the asset as a result of the clause inserted by the founder regarding the end of his descent. Ibn Lubb’s response is simple and blunt: the founder’s grandchildren (his daughter’s children) have no right to become beneficiaries as they are not his descendants (laysa li-l-˙afada fì-l-˙ubs dukhùl li-anna-hum laysa bi-'aqib); the legitimate beneficiaries are, then, his nephews, his brother’s sons.86 If the founder’s words are taken literally, as they appear in the text, it seems clear that he arranged—in case his son’s descendants were to disappear—for the house to be handed over to ‘his daughters and their descendants’ (ilà banàt al-mu˙abbis wa-ilà a'qàbi-hinna wa-a'qàb a'qàbi-hinna)
86
Al-Wansharìsì, Mi'yàr, VII, p. 223.
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regardless of whether the latter were to be only male, only female or both. We are to conclude, therefore, that we are dealing with a case of partial and restrictive interpretation of the concept of 'aqib on the part of the jurist who only applies it to the founder’s agnatic relatives, thus giving priority to nephews through the male lineage to the detriment of grandchildren stemming from the female side of the family, even though the latter are actually his direct descendants. 4.4. Family donations and tribal organisation in al-Andalus As we have seen, Màlikì Andalusian jurisprudence is generally favourable to the inclusion of a founder’s descent stemming from the female side of the family among the group of beneficiaries of a family donation. Ibn al-'A††àr’s and al-Jazìrì’s treatises include several references to instances where the founder discriminates against his daughters by, for instance, inserting the clause of preferential treatment accorded to sons based on Qur"àn, IV, 11, or even by directly excluding them as possible beneficiaries. This means that the founder did indeed have the right to dismiss his daughters and, by extension, all his descendants whose common ancestor had been a woman and refuse to accept them as beneficiaries of his ta˙bìs. However, regardless of the fact that al-Jazìrì condemns this exclusion as reprehensible, it is symptomatic that this caveat had to be expressly mentioned in the ta˙bìs document. That is, inclusion was the expected outcome whereas exclusion ought to have been a rarity; that is why it must be explicitly requested. For Andalusian jurists, moreover, most of the expressions usually employed to refer to one’s descent, based on the abundant Arabic terminology on the subject (walad, 'aqib, dhurriyya, nasab) applied both to sons and daughters. These terms, mostly masculine, are enormously ambiguous as to the gender they refer to. Thus, it was the jurists’ duty to determine whether these ambiguous terms, when included in ta˙bìs documents, referred just to sons or to both sons and daughters. The level of descent comprised within the donation thus reached the limits set by the founder in conformity with the insertion of the ta'qìb or formula regulating the successive generations of beneficiaries. The ‘egalitarian’ use of most of the terms employed to refer to descent implies that, in the family ˙ubs, the children of a founder’s daughters were regarded as beneficiaries. Ibn al-'A††àr agrees with
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Ibn Rushd in interpreting this terminology in its widest possible way, considering that walad includes both a founder’s sons and daughters; the same applies to terms such as 'aqib, dhurriyya and nasl. The same view seems to have been widespread among Maghribì jurists. A˙mad al-Wansharìsì was certainly one of them: when addressing a consultation made to him by Abù 'Abdallàh Mu˙ammad b. 'Abdallàh al-Yadùn, he claims that the terms 'aqib and walad refer both to male and female.87 This aspect of the transmission of family donations leads me to other considerations on the type of family organisation characteristic of traditional Arab society in which two concepts appear as preeminent: endogamy and agnatic ties. The first is epitomised, among Arabs, by the marriage with a paternal uncle’s daughter (bint al-'amm) which, according to P. Guichard, more than a ‘common practice’ constitutes a ‘real institution’.88 On the other hand, the concept of agnatic ties means that the transmission of the family name and the inheritance is rigorously patrilineal. There is a clear difference between these two elements, nonetheless: agnatic ties are fixed, invariable, whereas endogamy is not, in the sense that, although a frequent practice, it may not take place, that is there might be—and, in fact, there were—exogamous marriages.89 In a predominantly agnatic society such as the traditional Arab society, a ˙ubs can be interpreted as a strategy designed to protect a family’s patrimony. As the agnatic factor is stable, the key in order to interpret this function of the family ˙ubs resides in the type of marriage which a founder’s daughters are to go into. An endogamous marriage, with a male from the same lineage, results in the family patrimony being retained within the family whereas, on the contrary, marriage with a member of a different lineage means that the children resulting from that union will belong to a separate lineage from the founder’s and the share due to a daughter will,
87
Al-Wansharìsì, Mi'yàr, VII, p. 355. Al-Andalus, pp. 67–68. 89 As P. Guichard himself notes, Al-Andalus, p. 87: ‘the norm of betrothing one’s bint al-'amm cannot be regarded, even among the most reclusive and conservative groups, as an absolute obligation. A cousin may decide not to exercise his right and an uncle may be reluctant to take part as well, especially due to personal interest, in the social pressure which compels him to give his daughter to his nephew in matrimony. This social pressure varies, furthermore, according to the period, the place and social class’. 88
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therefore, be lost. In this respect, the fact that Andalusian legal texts reveal that the inclusion as beneficiaries of founders’ daughters and the latter’s children was the normal situation seems to suggest the idea that endogamous marriages were the most common; if it had been the opposite case, the logical outcome in an agnatic society would have been the prevalence of excluding descent via the female line. In spite of not being the prevalent trend, exogamous marriage could certainly take place and, probably in an attempt to cater for this contingency, notarial formularies contemplate the possibility that a father-founder can exclude his daughters as beneficiaries, thus preventing part of the donation from ending up in the hands of a different lineage, his daughter’s husband’s. Depending on the extent of exogamous marriages, the ta˙bìs has been regarded as an instrument forestalling the dispersion of a family’s patrimony through inheritance. As I have already observed, family donations help to circumvent Islamic inheritance laws: whereas a man can only freely dispose of a third of his assets in his will— the rest being distributed according to a pre-arranged plan—, the ta˙bìs inter vivos enables the founder to retain absolute control of his entire patrimony. Thus, if a father saw his daughter married to a man from a different lineage, he could establish a donation in favour of his sons of an unrestricted volume; this severely reduced the portion later distributed as inheritance. If a man did not have any sons, only a daughter—married, moreover, through an exogamous union—, the father-founder could designate his relatives from the male line of descent as his beneficiaries. However, the fact that including daughters among the beneficiaries was, I insist, the common practice seems to indicate that endogamous marriages were the most frequent or common and the ta˙bìs did not play such as prominent role as a hindrance to the dispersion of patrimony among different lineages after all. The data, of course, can be interpreted differently, following a different hypothesis suggesting that Arab tribal concepts were rather attenuated in Andalusian society already from the 4th/10th century. Jurists’ insistence, Ibn Rushd in particular, on the fact that a founder’s descent, from the female line, is also part of his lineage could be explained as an indicator of the waning of Arab tribal agnatic ties in al-Andalus during the 5th–6th/11th–12th centuries, or even earlier. Let us draw our attention to the fact that the Córdoban qà∂ì Ibn al-Salìm is unanimously considered as the source of the
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position in favour of the inclusion of descendants from the female line of descent. Whatever the case, it is undeniable that the study of these donations is crucial in order to better understand Andalusian family organisation and the methods of transmission of family patrimony.
CHAPTER SIX
THE AIMS OF PIOUS AÓBÀS
1. Introduction It is by studying the aims pursued through the donation of assets that it is possible to get an understanding of the role of the institution of pious endowments in relation to a particular Islamic society. In the previous chapter I analysed the donations made for a private or family-related purpose which, because of their socio-economic features, differ to a great extent from pious endowments, although, from a legal point of view, they constitute a single unit. The next two chapters will be devoted to studying the most important and genuine dimension of the institution, that devoted to aspects regarded as serving a pious purpose. Unlike family donations, pious foundations comprise a varied typology of aims which will have to be analysed both from a theoretical and a historical point of view. With regard to the available information, a first factor to take into account is that it is more abundant when it involves donations made with a specifically pious aim. As previously noted, in the corpus of jurisprudence I have studied, there are 137 legal questions related to pious foundations (60.3% of the total), and 60 queries on private or family donations (26.4% of the total amount of 227), thus there are more than twice as many on pious foundations (see Appendix V, Figure 2). To this we must add the information supplied by the books of habices from Granada and the few references garnered from other types of textual sources, like biographical dictionaries and chronicles. This can be an important indicator of the greater transcendence of this modality of the institution. The pious dimension is, furthermore, more important than the private one due to its more encompassing social effects on the rest of society. This first chapter on pious donations is divided in three parts. In the first, I will focus on the theoretical definition of ‘pious donation’ in order to determine subsequently the most common aims adopted in al-Andalus. The second will be devoted to instances of illegal
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donations as a result of the adoption of an aim that ran counter to the principles of Islam according to legal experts. In the third, I have compiled and studied the scant information available on three of the most recurrent aims: cultural and educational, charitable (poor and sick) and military, to which we should add the donations made to cemeteries. The number of legal questions on these aims is quite small: nine in the case of charitable and military, eight devoted to cemeteries and only five dealing with educational issues. A separate section will study donations made in favour of mosques which, being by far the best known, require a specific analysis.
2. Lawful and common aims Before studying in detail the different aims or uses of pious donations documented in our sources, it is necessary to make some general remarks on the subject, starting with theoretical considerations and ending with others of a more practical nature. We can distinguish up to three areas of analysis: firstly, the theoretical conception (Qur"ànic) of ‘pious donation’, characterised by its enormous ambiguity; secondly, the differentiation between that which is licit and that which is illicit, which demands a type of analysis that focuses on more concrete aspects and, lastly, the aims recorded in the documentary sources, both in the corpus of jurisprudence and in other non-legal texts. 2.1. Absence of explicit typification Legal texts show that ˙ubs cannot be established unless it serves a purpose and, further, that purpose must be expressed in specific, rather than in generic, terms (see chapter 4). No passage, however, incontrovertibly indicates to which causes a Muslim could devote his ta˙bìs. This is due to the fact that, in principle, the donor is free to choose the aim of his donation since the ˙ubs falls within the categories of spontaneous acts of generosity (tabarru'àt) and supererogatory pious deeds (nawàfil al-khayr) and, as a result, the donor is free to select a purpose and stipulate the clauses of his donation. Thus, there is actually no explicit definition of the typology of aims; on the contrary, as a legal text points out, ‘the donor’s will must be
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heeded as far as possible, unless it breaches the law’ ( yutabba' lafΩ al-mu˙abbis mà amkana illà li-màn' shar'ì).1 The definition of the waqf as ‘alms given in perpetuity in God’s name’ (ßadaqa jàriya fì sabìl Allàh) means that the aim of the ta˙bìs can be anything likely to be considered within the umbrella-like Qur"ànic concept of a deed undertaken fì sabìl Allàh which is profusely quoted in the Islamic sacred text. This expression designates any pious deed or action whose undertaking makes the believer worthy of praise by the divinity; this can be achieved through different means although, as we will see later, its meaning among Màlikì jurists came to be synonymous with the ‘effort’ ( jihàd ) to spread Islam, one of its most frequent usages in the Qur"àn.2 That is, after all, any action which brings the believer closer to God, a deed which pleases the divinity and by means of which the donor deserves to gain his reward (thawàb). This is in agreement with the ideology pervading the Qur"àn, which constantly exhorts the believer to dispose of his possessions or property by conducting this kind of actions and doing good deeds (II, 195, 216 and 262; XLVII, 38). The Qur"àn also contains exhortations against avarice and the greedy, whose attitude is frowned upon and seen as destined to suffer the divine punishment (III, 180; IV, 27 and 36–37; IX, 75–76; LVII, 23–24). These Qur"ànic exhortations to make donations fì sabìl Allah materialised, through the practice of the ta˙bìs, in a number of aims which fall within the general category of ‘pious deed’ (qurba) from an Islamic point of view. That is why when the fuqahà" refer to donations of a non-private nature as a whole they do so in terms of a˙bàs subul alkhayr, 'alà wajh min wujuh al-birr, etc. (see chapter 5). Similarly, those charitable aims are conceptualised by jurists as areas ‘of public interest’, which is expressed with the concept of maßla˙a among Màlikì legal scholars (see chapter 10). From a modern perspective, however, it is not easy to bring together that set of aims under a single concept. It is, on occasions, simply what we actually regard as charitable deeds (assistance to the poor and the sick) or, in other cases, as activities serving ‘the common good’ or providing a ‘public service’ such as education (assistance to students) and, lastly, some aims can
1 Al-Wansharìsì, Mi'yàr, VII, p. 291 (trans. V. Lagardère, Histoire et société, p. 272, no 212). 2 For instance, II, 154, 190, 217, 244 and 246; III, 13, 157, 167 and 169; IV, 74, 75, 76, 84, 94 and 95; V, 54, etc.
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only be interpreted from a strictly Islamic perspective, such as donations to mosques, ablutions halls, ràbi†as or those contributing ‘to disseminate the faith’. It is obvious that whereas certain aims can already be found in the earliest available texts on the institution (see chapter 3), this is not always the case since, given the flexibility of the notions of qurba and fì sabìl Allàh, both can incorporate new aims depending on the development of Islamic societies and the emergence of new realities and situations. The study of pious endowments and their aims must be carried out then not only in theoretical terms but also in specific ones, in accordance with the specificities of a particular society during a particular time or period. 2.2. The customary practice: notarial treatises and jurisprudence After the previous brief theoretical analysis we must try to determine the way in which the institution was practised in the case of al-Andalus. Due to the absence of a precise theoretical definition of the aims, the issue must be resolved by resorting to the reality reflected in the available documents. In this respect, the formularies of donation (ta˙bìs) found in notarial treatises are doubtless very useful. Since they were manuals written so that notaries could learn from and use them it is reasonable to assume that the examples included in them reflect the customary practice of the place and period when they were produced. Thus, it is natural that the purposes recorded in those formularies reflect the practice of the ta˙bìs in al-Andalus, that is the aims that donors pursued most frequently when giving away their assets for, had it been otherwise, they would not have been selected as models when composing this type of documents. The earliest of these, Ibn al-'A††àr’s treatise, only contains a formulary specifically devoted to pious ta˙bìs; in it he mentions different types of assets donated to serve three separate purposes.3 First of all, military: a horse ‘to wage war in God’s name’ (li-l-jihàd fì sabìl Allàh), a sword ‘to fight against the enemies opposed to the dissemination of the faith’, and a slave (ifranjì or jilliqì ) ‘so that he can assist the
3 Ibn al-'A††àr, Kitàb al-wathà"iq, pp. 206–207 (trans. P. Chalmeta and M. Marugán, pp. 367–368).
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warriors who fight in God’s name or serve any other pious purpose’ with the proviso that a donation made for any purpose that may inflict some harm to the slave is not lawful. Second, cultural: a donation of books. They are, specifically, books of law (dawàwìn 'ilm) donated in favour of ‘trustworthy students’ (thiqa †alabat al-'ilm) so that they can borrow them in order to copy, browse or study them; copies of the Qur"àn (maßà˙if ) for those who wished to read them; in that case a thorough description of their skin cover, the type of writing used, etc. must be included. Third, charitable: this includes the donation of jewels and several models and varieties of clothes for the poor (ahl al-∂a'f ) to take on loan and wear when getting married. Apart from that, Ibn al-'A††àr’s treatise does not contain specific formularies of ta˙bìs in favour of a given mosque or of the indigent, only a number of examples that appear mentioned in other treatises. There are references, however, to other aims besides the ones mentioned above in the shape of alternative beneficiary (marja' ): the mosques and the sick ‘from the opposite side of the river in Córdoba’,4 an expression that must refer to some care centre for the sick, perhaps a leper colony, located in that area of the capital. Another case5 alludes to a mosque and details the purposes it serves: repairs (ißlà˙), purchase of mats (˙ußur) used to cover the mosque’s floor, or of oil for the lamps and the payment of the administrator’s (qayyim) wages, or even for the site’s poor (masàkìn maw∂i' kadhà)—among whom the rent or the harvest (ghalla) will be distributed—, or for the infirm (mar∂à kadhà). In contrast to Ibn al-'A††àr’s, Ibn Mughìth’s and al-Jazìrì’s treatises are more detailed and include different formularies for several purposes: a mosque, the sick (only Ibn Mughìth’s), a plot of land to be used as a graveyard; military, horses and weapons, both fì sabìl Allàh; and educational: books or copies of the Qur"àn.6 In spite of
4 Ibn al-'A††àr, Kitàb al-wathà"iq, pp. 173, 235 and 590 (trans. P. Chalmeta and M. Marugán, pp. 375, 387 and 862). 5 Ibn al-'A††àr, Kitàb al-wathà"iq, pp. 180–181 and 235 (trans. P. Chalmeta and M. Marugán, pp. 375 and 394–395). 6 Ibn Mughìth, al-Muqni', pp. 324–328; al-Jazìrì, al-Maqßad, pp. 286–288. The Nasrid Ibn Salmùn includes also formularies for the mosque and the poor and the sick, see O. Pesle, La théorie et la pratique des habous, pp. 72–73.
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the formal differences, we can observe that the aims are practically identical, judging by the way they convey the information, with the exception only of the cemetery, which is not mentioned by the Córdoban formulary. This must be taken into account when evaluating the practical dimension of the ta˙bìs in al-Andalus: the theoretical scope of the notion of ‘pious donation’ is condensed, abridged and confined to a number of aims, those we have studied. This homogeneity in the aims recorded in the most important Andalusian notarial treatises is corroborated by the information provided by jurisprudence. As we shall see in detail further on (see infra), the aims which can be documented in legal queries are identical to those mentioned by notarial treatises: mosques, military aims, cultural-educational, assistance (poor and sick) and graveyards. We can thus conclude with a fair amount of certainty that those four were the range of application of the practice of the ta˙bìs in alAndalus, or at least the most frequent. These aims are not very different from those found in other regions of dàr al-islàm, apart from the absence of references to donations in favour of the two holy cities (al-˙aramayn), Mecca and Medina, very frequent in the area of the Mashriq. It is also important to stress the existence of foundations made for some less well-attested purposes which, for this reason, are very interesting. This is the case in a legal question addressed to Ibn Sahl and dealing with a house in Córdoba donated for ‘virtuous women’ (ßàli˙àt al-nisà"), which is the only one of this kind included in the corpus. It is not easy to clarify the exact meaning of the expression ßàli˙àt al-nisà", which implies the idea of women devoted to a pious life, maybe as a personal choice or forced by different reasons. The text says that one of those women wanted to get married or to come back with her husband, who repudiated her, and live with him in the house. The jurists disagree in their answers. Ibn Sahl and Abùl-Óasan 'Alì b. Mu˙ammad consider that she has the right to do it if her husband is unable to get a house on his own, just the same as she was ('adìm là yasta†ì ' 'alà iskàni-hà wa-yakùn fì dhàlik tibà'an lahà), which suggests that she was living in the house for economic reasons, probably after being repudiated by her husband. On the contrary, Abù 'Abd Allàh b. al-Faraj, 'Ubayd Allàh b. Adham, Ibn 'Attàb and Ibn al-Qa††àn said that if she was married she would have to leave the house, so she cannot live there with him. In
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conclusion, rather than indicating a type of convent, this legal question seems to reveal the existence of ‘shelter houses’ for repudiated women in 11th century Córdoba.7 The absence of certain aims is as significant as the enumeration of those included in formularies and in jurisprudence. With regard to institutions, for instance, there are no madrasas, hospitals, zàwiyas (ßùfì lodges), ribà†s or ràbi†as. On occasions, the absence can be explained simply due to chronological factors: both the madrasa and the hospital (màristàn) are originally Eastern institutions that reached the Western Islamic world at a very late date, particularly from the 14th century onwards; their impact was very limited in al-Andalus and mostly confined to the Nasrid period (see infra). As for ràbi†as and zàwiyas, although not mentioned in formularies, their presence is confirmed by Nasrid jurisprudence and other documents from the 15th century (see infra). This may perhaps explain their absence in the aforementioned notarial treatises which do not date from that period; this suggests that the religious and social phenomenon of the spread of both types of establishments takes place in al-Andalus at a late date. In the case of ràbi†as, however, this could simply be the result of a linguistic problem since that term seems to designate the small neighbourhood mosques of the Nasrid period. A common feature in all these donations, moreover, is the scarcity of information available on the issue. This fact prevents me from treating them in separate sections as will be the case with the mosques studied in the following chapter. In numerical terms, out of the 227 fatàwà that make up the corpus, only 48 have pious aims other than mosques, thus representing 35% of the 137 including one of those aims and 21.1% of the total amount. These figures highlight the exiguous documentation that this amount of fatàwà provides, especially if we bear in mind that we are dealing with several types of aims and, furthermore, that the period under consideration spans six centuries. 2.3. Combination of several aims Different aims could sometimes be combined in a single donation. This is clear, for instance, in a formulary included in Ibn al-'A††àr’s
7
Ibn Sahl, Dìwàn, II, p. 1122.
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treatise which indicates that if the direct beneficiaries of the ˙ubs were to die the profits derived from it would be devoted to military purposes: purchase of donkeys (dawàbb) to be used as beasts of burden fì sabìl Allàh, ransom of captives in enemy territory ( fakkàk alma"surìn fì dàr al-˙arb) or the erection of fortresses along the border (˙ußùn fì thughùr al-muslimìn). This formulary, however, mixes both military and welfare aims since it later stipulates that the profits would be divided up in that way ‘unless Muslims experience a pressing need’ and the harvest coincides with a period of famine (sana mujà'a), in which case they will be handed out ‘in favour of the poor and the needy’ ('alà-l-∂u'afà" wa-l-masàkìn). When conditions improve and the situation becomes stable, the profits would again be employed for the purposes (wujùh) set up originally.8 Some legal queries also deal with cases of donations made for more than one purpose, such as that of the man who found five silver dinars and, at the behest of the prayer leader (imàm) of the mosque, resolved to invest them in planting a tree whose fruit would be used to feed passers-by and, in case of surplus, would be allocated to ‘the weak and the poor’ ('alà-l-∂u'afà" wa-l-masàkìn).9 Similarly, there is also the case of a large village dependent on the fortress of Baza (qarya kabìra bi-˙ißn Bas†a) donated in favour of the fortress of Castril ('alà maßàli˙ ˙ißn Qashtàl), of the impecunious horsemen of Baza and of poor students; a fourth of the profits generated by the ˙ubs were to be deducted in order to pay the administrator’s salary.10 Another legal question, addressed to an unidentified jurist (al-Saraqus†ì?), tackles the case of a man who makes a donation in favour of his children and the latter’s descendants and, in the case of the family dying out, he designates a mosque and whomever recites the Qur"àn at his and his relatives’ graves as ultimate beneficiaries.11 Another fatwà issued by al-Mawwàq involves a piece of land (maw∂i' ) owned by a town’s old mosque whose sixth part belongs to a ràbi†a, a state of affairs that proves disadvantageous for the mosque.12 We also find
8
Ibn al-'A††àr, Kitàb al-wathà"iq, p. 178 (trans. P. Chalmeta and M. Marugán, pp. 391–392). 9 Al-Wansharìsì, Mi'yàr, VII, p. 152 (trans. V. Lagardère, Histoire et société, p. 276, no 227). 10 Al-Wansharìsì, Mi'yàr, VII, p. 123 (trans. Mª I. Calero, ‘Afectación’, 178). 11 Al-Wansharìsì, Mi'yàr, VII, p. 141 (trans. V. Lagardère, Histoire et société, pp. 265–266, no 189). 12 Al-Wansharìsì, Mi'yàr, VII, p. 134 (trans. E. Amar, ‘La pierre’, XIII, p. 374).
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examples of the presence of several aims within the same donation in Nasrid documents.13 Another aspect worth stressing in relation to the aims of donations is the extreme precision displayed by donors when selecting the former; it could vary noticeably depending on the circumstances. In general, it can be said that there were two options regarding the aim chosen by a donor for the assets he donated. A donation could sometimes be made in generic terms, for instance in favour of a certain mosque14 or of the poor, without stating in which way the usufruct of the assets donated had to be enjoyed. This type of donation ensured a greater degree of freedom to those responsible for managing it when disposing of the profits generated by the former and selecting how they were to be allocated. The donor, however, could state and detail to a great extent the aim of his donation: when it was made in favour of a mosque he had the right to specify the particular purpose his donation was to serve within that institution, like paying the wages of its prayer leader, its muezzin,15 its Qur"àn reader,16 sponsoring particular modalities of prayer, such as those carried out on the occasion of the ishfà',17 or to cover maintenance or repair work, to buy prayer mats,18 logs of
13 L. Seco de Lucena, Documentos arábigo-granadinos, pp. 12–15 (Arabic) and 12–15 (trans.). 14 Al-Wansharìsì, Mi'yàr, VII, pp. 138–139 (trans. V. Lagardère, Histoire et société, p. 265, no 185); Mi'yàr, VII, p. 332 (trans. E. Amar, ‘La pierre’, XIII, p. 366). 15 Al-Wansharìsì, Mi'yàr, VII, p. 155 (trans. V. Lagardère, Histoire et société, p. 252, no 142). 16 Al-Wansharìsì, Mi'yàr, VII, pp. 206–207 and IX, pp. 475–476 (trans. V. Lagardère, Histoire et société, pp. 420–421, no 207). 17 Special prayers performed after the afternoon prayer (ßalàt al-'ishà") during Rama∂àn. See al-Wansharìsì, Mi'yàr, I, p. 162, VII, pp. 113–114 (trans. V. Lagardère, Histoire et société, p. 277, no 230), VII, p. 156 (trans. V. Lagardère, Histoire et société, p. 253, no 144), VII, pp. 158–159 (trans. V. Lagardère, Histoire et société, pp. 285–286, no 260), VII, p. 159 (trans. V. Lagardère, Histoire et société, p. 290, no 281), VII, p. 163. They are also known as taràwì˙, as shown by a fatwà by Ibn al-Óàjj, see Mi'yàr, I, p. 162. 18 In documents written in 1528 on Abla (a locality in the province of Almería) the following testimony by Diego Xarquí, a local resident, is recorded: he claims that someone by the name of Abrahen Abulbaraque donated a small field ‘para esteras a la mesquita (. . .) e dende el dicho tiempo de los dichos cincuenta e doss años fasta que Abla se ganó de christianos, vido este testigo que la dicha haça la tenía la dicha mesquita de Abla, e de lo que rentaba la dicha haça compravan esteras para la dicha mesquita’, in M. Espinar Moreno, ‘Habices de Abla y Abrucena’, p. 394.
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wood, oil for lamps, etc.19 The donor could sometimes even go to great lengths when selecting the purposes served by his donation, as shown in the case of a mosque endowed with assets earmarked for different aims, among them the need to repair the building—namely the ceiling—but not the walls.20 In the case of a donation in favour of the poor, the donor could select those from a particular location, or a group of people suffering a particular kind of disease, as stipulated in one of Ibn Mughìth’s formularies (see supra), or those living in a certain town, like the frequently mentioned from ‘the bank of the river in Córdoba’. These assets earmarked for specific purposes are known among jurists as ‘specified a˙bàs’ (a˙bàs mu'ayyana) and were often the source of disputes over the allocation of the profits they generated. It was often the case that funds for one of the selected aims were supplied, whereas none were forthcoming to address other charitable enterprises. That is why jurists were often asked about the possibility of employing the profits generated by a particular asset—earmarked for a specific purpose– in order to meet other needs of a similar nature. 2.4. Theoretical aims and practical uses Alongside the information supplied by legal texts, other sources afford a different and less ‘orthodox’ image of the use or purpose given to pious endowments, to the extent that it sometimes seems that they were used discretionally to meet needs which did not necessarily correspond to the original aims of the donation. One of the available references on the issue is found in Ibn 'Idhàrì’s chronicle, in a passage that records the events that took place in Córdoba in 401 h/1010–1011 when the qà∂ì promised five hundred horses out of the a˙bàs’ proceeds so that they could be ridden by slaves.21 It seems that the judge tried to use the pious endowments
19
Al-Wansharìsì, Mi'yàr, VII, pp. 134–135, VII, pp. 139–140, VII, p. 184 (trans. V. Lagardère, Histoire et société, p. 265, no 187), VII, p. 142 (trans. P. Guichard and V. Lagardère, ‘La vie économique, p. 222 and V. Lagardère, Histoire et société, p. 266, no 190), VII, p. 160 and VII, p. 162 (trans. ‘La pierre’, XIII, p. 338), VII, p. 161, VII, p. 184 (trans. V. Lagardère, Histoire et société, p. 265, no 187), VII, pp. 183–184, VII, pp. 200–201. 20 Al-Wansharìsì, Mi'yàr, VII, pp. 134–135. 21 Ibn 'Idhàrì, Al-Bayàn al-mughrib (III), p. 104 (trans. F. Maíllo Salgado, p. 96).
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(màl al-a˙bàs) under his custody at his own discretion to meet a pressing need, probably as a result of popular pressure (see chapter 9). Similarly, Ibn 'Abdùn’s treatise records other discretionary uses of pious endowments. The first involves the town’s gatekeepers who, he remarks, must be allocated emoluments in payment for their services according to local custom ('àda); otherwise they would take advantage of their position to ‘pillage’ local residents (akl amwàl alnàs).22 He concludes, however, that it would be better to pay them a salary and this would be arranged by the administrator of pious endowments and unclaimed inheritances (ßà˙ib al-a˙bàs wa-l-mawàrìth).23 The other tackles the possibility that the qà∂ì may be forced to send a woman to prison; in this case she will not go to jail but will be confined ‘in the house of a matron of good reputation and renowned for her honesty who will receive, in return for these services, a salary out of the funds of pious foundations (bayt mal al-muslimìn)’.24 Previous sections of this chapter show that the two aims mentioned by Ibn 'Abdùn are not contemplated in legal texts (notarial treatises and fatàwà) and, although they cannot be regarded as illegal or unlawful, the use of a˙bàs to pay the salaries of both the town’s gatekeepers and the ‘jailers’ is striking nonetheless. Apart from the peculiar nature of those aims, it is worth remarking that, in contrast to the image of respect towards the donor’s will and of scrupulous management of a˙bàs conveyed by legal texts, Ibn 'Abdùn does not refer to the stipulations drawn up by the donor with regard to the assets at stake. He seems to suggest that those assets can be disposed of by the town’s authorities, mostly by the qà∂ì, at will without considering the purpose for which they were donated. The problem arises as a result of the lack of information provided by non-legal sources; this fact hinders any attempt to clarify the image conveyed by texts of a different nature. This is hardly startling, however, since legal sources themselves reveal the existence of a certain degree of flexibility when using the profits generated by pious endowments, as long as certain requirements were met (see chapter 7).
22 Expression found in the Qur"àn, for instance in II, 188: ‘do not rob each other’s possessions’. 23 Ibn 'Abdùn, Risàla, p. 223 (trans. E. García Gómez, p. 110, no 69). 24 Ibn 'Abdùn, Risàla, p. 209 (trans. E. García Gómez, p. 76, no 28).
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3. Unlawful aims I have formerly analysed the aspects linked to how the donor’s will with regard to the aims selected in the ta˙bìs was fulfilled (see chapter 4). As I mentioned then, legal experts usually tried to stick to his will, out of adherence to the legal principle, although this was not always the case. Sometimes this could not be done, either because the original document had been lost or because it was virtually impossible to carry out the donor’s commands; sometimes it was not advisable to do so, either as a result of economic considerations (see chapter 9) or because it was deemed that the selected aim was unlawful, an aspect which I shall focus on in this section. The ta˙bìs constitutes an act of generosity freely undertaken whereby the donor tries to please God and gain his reward (thawàb). The aim selected must then be of a pious nature, an abstract formulation embodied in a number of aspects previously studied (see supra). Not all aims, however, were considered likely to please God or, rather, those acting as interpreters of His will, that is the fuqahà". This is clear in the corpus thanks to some cases where legal experts refute the pious character of certain donations. One of them is the fatwà issued by Abù-l-Óasan al-Lakhmì when questioned on whether it was lawful or not to donate some latrines (qà'a mir˙à∂ mu'add li-rajì ' banì Àdam) in favour of a mosque with the proviso that the excrement be sold, perhaps to be used as fertiliser, and the profits thus generated devoted to meet the needs (∂arùriyàt) of the mosque. Obviously, the jurist replies that it was not, due to the impure nature of the asset donated.25 Another example is that of the case submitted to 'Ìsà al-Ghubrìnì concerning assets donated in favour of mosques attended by 'Ibà∂ì kharijites in Tunisia, whose beliefs were condemned by Sunnis. The jurist remarks that fighting this sect is a duty incumbent upon whoever has been endowed with power by God and, as a result, their ˙ubs must be annulled and transferred to the donor’s closest relative provided that he was a Sunnì .26
25 Al-Wansharìsì, Mi'yàr, VII, p. 343 (trans. V. Lagardère, Histoire et société, p. 216, no 26). 26 Al-Wansharìsì, Mi'yàr, VII, pp. 362–363 (trans. V. Lagardère, Histoire et société, p. 223, no 52).
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Another case of unlawful donation is that submitted to al-Saraqus†ì about a practice undertaken at the Friday mosque of Vélez by a character referred to as ‘the person in charge of distributing fragments from the Qur"àn’ (al-mutawallì li-tafrìq al-adjzà" al-qur"àniyya).27 When the preacher climbed to the pulpit and the muezzin called to prayer, this man placed himself next to the pulpit and began to address the audience as though he were the preacher (kha†ìb) with the words ‘God’s servants!’, and proceeded to explain why Friday was a special day. He then exhorted them to invoke the name of God and uttered another invocation afterwards in favour of the emir of the Islamic community and all the faithful and concluded with the words ‘the end of our invocation is: praise to God, the Lord of the worlds!’. Al-Saraqus†ì is asked whether this constitutes a legitimate practice (ßà"igh) or whether, on the contrary, it amounts to an illegal ritual innovation (bid'a) whose practice must thus be banned. If the latter were the case, he is also asked how the assets donated to fund this office (waΩìf ) are to be disposed of. Al-Saraqus†ì, together with the fuqahà" Ibràhìm b. A˙mad b. Fatù˙ and 'Abdallàh b. A˙mad al-Baqannì brand the alleged practiced as an ‘innovation’ (bid'a) and the former adds that the donation made to sustain this office must be annulled and handed back to the donor or his heirs, if they are known, or devoted to aims selected by the local magistrate (˙àkim) if the latter cannot be located. The edict issued by the sultan Mu˙ammad al-Manßùr bi-llàh al-Naßrì regarding the so-called ‘affair of the preacher of the column’ (qa∂iyyat kha†ìb al-sàriya), dated 22 Mu˙arram 858 h (22/1/1454) is then attached to the legal query. This edict, addressed to the qà∂ì of Vélez, the two kha†ìbs of the mosque, the military governor (qà"id) and the local viziers, instructs the authorities of the need to enforce the fatwà issued by the 'ulamà" from the capital.28 But most of the cases recorded in the corpus that prescribe the annulment of donations of this type involve those made in favour of brotherhoods of fuqarà" and they all correspond, chronologically, 27 The Qur"àn is divided into sections according to differing criteria. The best known of those divisions is that of sùras and àyas. There are also other parts, known as juz" (pl. ajzà") whose literal meaning is that of ‘part’ or ‘fragment’. I do not know whether there is a connection between this fact and the character referred to in the legal query as ‘the distributor of fragments of the Qur"àn’. 28 Al-Wansharìsì, Mi'yàr, I, pp. 276–278 (trans. V. Lagardère, Histoire et société, pp. 61–62, no 229).
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to legal questions dealt with by legal experts from the Nasrid period. These cases will be analysed later on when we address donations in favour of zàwiyas and ràbi†as.
4. Charitable The case of assets donated in favour of the poor is the most emblematic of what we consider as charitable undertakings nowadays. It would not be possible to understand these donations accurately outside the context of the Islamic notions of charity, equality and social justice as they are enunciated both in the Qur"àn and the Sunna. The study of the Islamic notion of charity has been broadly developed in recent historiography, which has engendered substantial scholarly literature.29 In the same way, A. Mª Carballeira has in recent years devoted several works to the study of poverty and charity in al-Andalus.30 Those works show, as N. A. Stillman points out, that pious endowments become the prime medium for the dispensation of charity in Islamic classical societies.31 The notion of charity is closely related to the concept of economic inequality and poverty in Islamic ideology. Scholars coming from very different intelectual traditions, like M. Rodinson or B. Lewis, hold that Islamic ideology does not question social differences based on the economic position.32 According to the Qur"àn, the economic inequality must not be disputed33 and private ownership is explicitly
29 See Sabra; N. A. Stillman, ‘Charity and Social Service in Medieval Islam’, Societas, 5:2 (1975), pp. 105–115; ídem, ‘Waqf and the ideology of charity in Medieval Islam’, in I. R. Netton, Studies in Honour of Clifford Edmund Bosworth, hunter of the East: Arabic and Semitic Studies, Leiden, 2000, 2 vols., I, pp. 357–372; Y. Lev, ‘Charity and Social Practice: Egypt and Syria in the Ninth-Twelfth Centuries’, Jerusalem Studies in Arabic and Islam, 24 (2000), pp. 472–507. 30 ‘Pobres y caridad en al-Andalus’, en C. De la Puente (ed.), Identidades marginales (EOBA, XIII), Madrid, 2003, pp. 53–91; ‘Pauvreté et fondations pieuses dans la Grenade nasride: aspects sociaux et juridiques’, Arabica, LII/3 (2005), pp. 391–416; ídem, ‘Indigencia y marginalidad en al-Andalus’, in A. García Sanjuán (ed.), Sociedad y grupos sociales en al-Andalus, Huelva, 2006, pp. 63–80. 31 N. A. Stillman, ‘Waqf and the ideology of charity’, p. 366. 32 M. Rodinson, Islam et capitalisme, Paris, 1966, pp. 36–44; B. Lewis, The political language of Islam, pp. 64–65, who states that Islamic ideology admits three types of social inequalities, based on economic position (rich-poor), gender (men-women) and personal legal status (free-slave). 33 See Qur"àn IV,32; XIV,71; XVII,21 and 30; XLII,12.
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endorsed by the Sunna, as shown by the ˙adìth which states that whoever dies while defending his property is a martyr (man qutila dùna màli-hi fa-huwa shahìd ).34 Under this premise, the concept of poverty in Islamic ideology as a form of economic inequality is similar to that found in Christianity; it is embodied in the idea of charity and in the practice of alms-giving. Poverty, economic inequality, is an inherent feature of human society and the believer is morally forced to try and alleviate it: the Qur"àn exhorts the faithful not to be greedy but to dispose of one’s own possessions by making pious donations in God’s name (see supra). Similarly, alms-giving is an activity recommended to Muslims on various occasions in the Qur"àn as a means to expiate wrongdoing.35 But my goal here is not to discuss the social role of the Islamic charity system, even if I don’t share the optimistic view which some have in this regard.36 A main feature of Islamic charity is its use by rulers when they wish to cultivate a pious image or reputation, for instance, by handing out alms to the poor. Arabic chronicles provide numerous examples of this practice on the part of Córdoban emirs and caliphs. Thus, in 197 h/812–813 a famine gripped al-Andalus and al-Óakam I tried to palliate it by distributing alms to the poor and vagrants. Similarly, after receiving the oath of allegiance (bay'a), 'Abd al-Ra˙màn II gave 5,000 dinars out of his privy purse to Córdoba’s poor.37 In
34 Recorded by the six main compilers of ˙adìth: al-Bukhàrì, Ía˙ì˙, no 2300; Muslim, Ía˙ì˙, no 201 and 202; al-Tirmidhì, Sunan, no 1338–1341; al-Nasà"ì, Sunan, no 4016–4024 and 4026–4027; Abù Dàwud, Sunan, no 4141–4142; Ibn Màjah, Sunan, no 2570–2572. See also al-Bukhàrì, Ía˙ì˙, section XLVI, chapter 33, no 2480; al-Nawawì, Riyà∂ al-ßàli˙ìn, p. 523, no 1355–1357. 35 See Qur"àn II,177, 215, 271 and 273; V, 89 and 95; VIII, 41; etc. 36 For instance A. Mª Carballeira, ‘Pobres y caridad en al-Andalus’, p. 86: ‘la constitución de bienes a˙bàs promovía la integración de indigentes en el seno de la sociedad, en un intento por permitirles gozar de las mismas oportunidades que el resto de la población’. If one of the main ta˙bìs’ requirements is to be made in perpetuity (ta"bìd), the fact that poverty is one of them reveals that this condition is thought of as ‘perpetual’, at least in theory. This is confirmed by al-Khaßßàf, A˙kàm al-awqàf, p. 32, and, among the Andalusians, by Ibn Lubb, in al-Wansharìsì, Mi'yàr, VII, p. 103, for who ‘the poor do not die out’ (al-masàkìn la yanqati'ùna abadan). In fact, A. Mª Carballeira in Legados píos, p. 172, footnote no 278, and pp. 198–199, holds a slightly different opinion. But in her more recent article ‘Pauvreté et fondations pieuses’, p. 414–415, she holds an ambiguous view on the social role of charity, because ‘la charité se révèle comme un instrument au service du fondateur’, but, at the same time, ‘la redistribution des richesses contribuait, finalement, à maintenir l’équilibre entre les différents groupes sociaux’. 37 Dhikr, I, pp. 131 and 139 (Arabic) and II, 139 and 147 (trans.).
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the fifteen years recorded in his extant chronicle of al-Óakam II’s caliphate (350–366 h/961–976), Ibn Óayyàn refers to four occasions when alms were handed out to the capital’s poor, always during the month of Rama∂àn.38 In 363 h no alms were given out but, at the behest of the qà∂ì Mu˙ammad b. al-Salìm, from the gates of the main mosque a town crier exhorted the inhabitants of Córdoba to give alms and so did the high judge in the course of his khu†ba.39 Acts like this must have been commonplace under that caliph as Ibn Óayyàn refers to them as a customary practice ('àda). We know, moreover, of two pious ta˙bìs set up by al-Óakam II, one to assist the poor along the border and another of an educational-charitable nature (see infra). As far as pious donations are concerned the fact that poverty is a very inclusive aim must be taken into account since it is often employed as a complement to other aims, like in some family donations made in favour of poor relatives (see chapter 5) and in pious donations such as those aimed at assisting impecunious students. 4.1. In favour of the poor To a certain extent donations in favour of the poor can be considered as the most ‘genuine’ embodiment of a pious endowment in the sense that it makes it possible to establish a link with the notion of alms-giving (ßadaqa), a connection stressed by jurists in order to provide the institution with a Qur"ànic endorsement (see chapter 3). Perhaps that is why Ibn al-Óàjj believed that assets donated without a specific purpose must be handed over to the poor and the indigent. Similarly, al-Jazìrì remarks that, were all the beneficiaries of a family donation to die out, the ˙ubs must be used to help the local poor ('alà-l-masàkìn wa-l-∂u'afà" min ahl maw∂i' kadhà) and, furthermore, that if the donor did not select any purpose, the donation should be earmarked for the poor (in qàla al-mu˙abbis ˙ubs faqa† wajaba ßarfu-hu ilà-l-fuqarà"), except in borderlands.40 Abù 'Umar b.
38 Ibn Óayyàn, al-Muqtabis (VII), pp. 23, 76, 110, 226 and 233–234 (trans. E. García Gómez, pp. 47, 98, 140–141, 268 and 275–276). 39 Ibn Óayyàn, al-Muqtabis (VII), pp. 149–150 (trans. E. García Gómez, no 167). 40 Al-Wansharìsì, Mi'yàr, VII, p. 291 and 442 (trans. V. Lagardère, Histoire et société, pp. 271–272, no 212; A. Mª Carballeira, Legados píos, pp. 139 and 176); alJazìrì, al-Maqßad, pp. 284, 289 and 292. This was Màlik’s opinion, following the
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al-Makwì expresses similar views with regard to a plot of land donated by a man in favour of his poor relatives; eighty years after the donation was made its ultimate purpose (marja' ), as stipulated by the donor, is no longer known and of his poor relatives only some grandchildren remain. Ibn al-Makwì states that if the grandchildren stem from poor backgrounds, the plot of land can be exploited for their benefit; if that is not the case, it will be earmarked for the poor until one of his descendants meets the requirements expressed in the donation deed.41 Ibn al-'A††àr mentions a very peculiar kind of charitable donation consisting of several models and varieties of clothes for the poor (ahl al-∂a'f ) to use on loan and wear when getting married, some of which are not easy to identify:42 thawb khazz or cloth of silk; Ωihàrat kattàn, a chemise or tunic of linen; khashkhàshiyya, a cloth made in Jurjàn;43 zahriyya (?); miqna' khazz or veil of silk; ridà" sharb or fine cloak made of linen and a sha†awiyya, a type of fabric from Sha†à, in Egypt.44 The earliest references to the existence of pious endowments in favour of the poor in al-Andalus can be traced back to the 9th–10th centuries and are related to the activities of some Córdoban qà∂ìs (see chapter 3). Among the scarce references to donations made by political authorities (see chapter 10), there are two by the caliph alÓakam II, whose custom of handing out alms to the poor of Córdoba after completing the fast of Rama∂àn has already been mentioned (see supra). Likewise, on the occasion of the completion of enlarging works at Córdoba’s main mosque in 355 h/965, the caliph resolved to donate a quarter of the proceeds (ghallàt) produced by the farmsteads (∂iyà' ) inherited from his father in all the regions and provinces of al-Andalus in favour of the poor (∂u'afà") from the border areas ('alà thughùr al-Andalus kàfa), unless a famine were to plague Córdoba, in which case profits would be devoted toward lessening its effects. It is likely that the donation was made at the Friday mosque itself
Nasrid Ibn Salmùn, al-'Iqd al-munaΩΩam, apud O. Pesle, La théorie et la pratique des habous, p. 88. 41 Al-Sha'bì, al-A˙kàm, pp. 151–152, no 195; al-Wansharìsì, Mi'yàr, VII, p. 435. 42 Ibn al-'A††àr, Kitàb al-wathà"iq, p. 206 (trans. P. Chalmeta and M. Marugán, p. 367). 43 See R. Dozy, Supplémement, I, p. 373. 44 See R. Dozy, Supplémement, I, p. 760, with reference to Yàqùt, Mu'jam, III, p. 388, no 7110: Sha†à was a little village (bulayda), near Dimyà†, in the Mediterranean coast.
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in the presence, as the chronicle recounts, of the fuqahà", key witnesses, notables (a'yàn al-nàs wa-wujùhu-hum), judges and prayer leaders. The caliph appointed his ˙àjib Ja'far b. 'Abd al-Ra˙màn al-Íiqlàbì and his vizier 'Ìsà b. Fu†ays as administrators of the foundation.45 Several aspects of these donations are worth commenting upon. Firstly, as noted earlier, there is the combination of two aims: on the one hand, the charitable aspect and, on the other, the ‘border’ aim. It seems more coherent, however, to include this donation among the charitable ones as no defensive or military purpose can be observed. This is indicative of its propagandistic character as alÓakam’s goal was probably to curry favour with people dwelling along the border—territories which were usually lukewarm towards the central power and a constant source of worries to Córdoba’s caliph throughout the Umayyad period—with this donation. I disagree on this point with E. Manzano’s interpretation of this donation since its aim was neither ‘to render assistance to border areas’ nor ‘the maintenance of the thughùr’, both expressions understood in their warlike or military sense, but, rather, to assist the poor of those regions specifically, as Ibn 'Idhàrì’s text clearly indicates. The discrepancy is significant since, as I have said, it is not a military donation, in spite of being earmarked for the border, but clearly a propagandistic one aimed at wooing the support of frontiersmen. I do not support the argument either that this donation was simply ‘a chronicler’s elaboration aimed at exalting the caliph’s decision to extend Córdoba’s mosque’. On the contrary, the donation must be viewed against the backdrop of al-Óakam’s policies in this respect. We have already referred to his practice of handing out alms during Rama∂àn every year; we could add to that the other ta˙bìs set up by him (364 h/975) that combines both aims, namely charitable and educational (see infra). Thus, this ‘frontier’ donation is consonant with the caliph’s attitude and must be viewed as part of his policy aimed at promoting an image of pious ruler; nothing casts doubts on its authenticity.
45 Ibn 'Idhàrì, al-Bayàn al-mughrib (II), p. 234. See on this donation P. Chalmeta, ‘España musulmana’, p. 525; D. Santillana, Istituzioni, II, p. 418; E. Manzano Moreno, La frontera, pp. 62–64. V. Lagardère, Campagnes, p. 102 and ‘Structures agraires et perception de l’espace’, pp. 138 and 148, wrongly points out that the donation was made ‘au profit de la mosquée de Cordoue’ and ‘à l’amelioration du sort des Cordouans pauvres’.
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The information supplied by the corpus of jurisprudence is rather scant. The majority of the legal queries record the existence of assets devoted to this purpose in towns, but there is also reference to pious endowments made for the poor in rural populations. A legal question from the second half of the 9th century informs us about pious endowments in several villages (qurà) donated in favour of mosques and the poor, named as ∂u'afà" and fuqarà". It seems that the problem was that the goods did not produce much and therefore the managers started to share their proceedings, part for the mosques and part for the poor (aqarra man bi-yadi-hi min al-a˙bàs shay" bi-mà bi-yadi-hi min-hà li-l-masàjid wa-mà min-hà li-l-fuqarà"). The question was answered by several Córdoban jurists, including Mu˙ammad b. Walìd, 'Ubayd Allàh b. Ya˙yà, Ayyùb b. Sulaymàn, Ibn Lubàba and Ibn Mu'àdh. In their fatwà, they note that most of these goods were ancient and only a few recent, which probably means that the specific goals of most of these a˙bàs were unknown; they add that the poor of these villages and the reparation of the mosques were both pious aims. On this premise, the jurists maintain, in the first place, that what the managers ordered was necessary (anna iqràrahum bi-mà ta˙ta aydì-him min hàdhihi-l-a˙bàs làzim la-hum), and, second, that following their decision was binding ( yajib tanfìdh dhàlik 'alà mà aqarrù bi-hi wa-ßannafù-hu mimmà jarat bi-hi al-˙ibàsa bi-hi ). This is, they conclude, how it must be done with all pious endowments of unknown origin which are attested only by those who act as managers (hakadhà yajib fì kull majhùl al-aßl lam yuthbit illà bi-iqràr man alladhì bi-yadi-hi ).46 However, this question leads us to other issues, such as the problem of social inequalities in the rural areas, a matter which has been discussed in the historiographic debate related to the characterization of al-Andalus as a tributary society and the ‘communitarian system’, based on tribal structures, prevalent in these rural populations.47 Thus, a question addressed to Córdoba’s legal scholars (10th century) refers to the existence of galleries and houses (al-saqà"if wa-l-
46
Ibn Sahl, Dìwàn, II, pp. 1120–1121. For this historiographic debate, see A. García Sanjuán, ‘El concepto tributario y la caracterización de la sociedad andalusí: treinta años de debate historiográfico’, in A. García Sanjuán (ed.), Saber y sociedad en al-Andalus. IV–V Jornadas de Cultura Islámica, Huelva, 2006, pp. 81–152. What I call the ‘communitarian system’ was defined by M. Barceló, ‘Vísperas de feudales. La sociedad de Sharq al-Andalus justo antes de la conquista catalana’, in F. Maíllo Salgado (ed.), España. Al-Andalus. Sefarad. Síntesis y nuevas perspectivas, Salamanca, 1990, 2ª ed., 99–112. 47
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dùr) located near the main mosque and donated as a waqf to provide accommodation for the poor (li-suknà al-∂u'afà"). Due to their old age and dilapidated state, it was necessary to demolish them and rebuild them from scratch so that they could be devoted to the stated aim. The emir of the faithful favoured this view and gathered the fuqahà" to ask for their views on the issue.48 Ibn Sahl’s A˙kàm al-kubrà includes a case involving a Jew who donated a property ('aqar) in favour of his daughter and her offspring and, were the latter to die out, in favour of Lorca’s poor Muslims.49 Castilian documents also supply some information in this respect; the inventory of a˙bàs from 1501 reveals that in the village of El Hiçan (†à'a of Alboloduy) there was a ‘habiz de los pobres forasteros que venían al Hiçan, dizese habiz alhobza’.50 The latter term derives from the Arabic word alkhubz (‘bread’) and most probably alludes to the aim to which the profits generated by the aforementioned ˙ubs were devoted. The use of donated assets varied according to the stipulations set by the donor. Thus, one of al-Jazìrì’s formularies deals with the donation of a house for the poor (masàkìn) which was to be let out and the rents thus collected distributed as alms among the needy. When no tenants could be found the house was to serve as an abode for the poor until someone willing to take the lease could be found.51 There is also a legal query in which al-Mawwàq is asked about a man who stipulated that his third of free disposal included in his will had to be used to purchase a faddàn and the profits generated by the latter employed to buy bread so that it could be distributed among the weak and the indigent during Rama∂àn. He arranged, likewise, for the remainder of the third—whenever available—to be added up to that ßadaqa alongside the faddàn. As a sum of money did actually remain from the third, al-Mawwàq was asked whether it should be used to purchase a plot (maw∂i' ) to be established as a ˙ubs, as was the case with the faddàn, or, on the contrary, handed out to the poor in Rama∂àn. His response was that that money should
48
Al-Wansharìsì, Mi'yàr, VII, pp. 220–221 (trans. V. Lagardère, Histoire et société, pp. 255–256, no 153). 49 Ibn Sahl, Dìwàn, II, pp. 1119–1120 (in footnote); ed. Khallàf, Wathà"iq fì a˙kàm qa∂à" ahl al-dhimma fì-l-Andalus, pp. 68–69; al-Wansharìsì, Mi'yàr, VII, pp. 59–60 (trans. E. Amar, ‘La pierre’, XIII, pp. 367–370; Lagardère, Histoire et société, p. 268, no 199). 50 Apud C. Trillo San José, La Alpujarra, p. 365. 51 Al-Jazìrì, al-Maqßad, p. 287.
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only been given as alms if a suitable property, or a portion of it, could not be found; if the latter was available, however, it must be purchased and the money obtained in the form of rent (kirà") distributed during Rama∂àn.52 Giving alms to the poor in Rama∂àn is a traditional Islamic custom (see supra), widely practised in al-Andalus as shown by other legal texts.53 In another fatwà the qà∂ì Abù-l-Óasan sìdì 'Alì Ma˙sùd reflects on the possibility of selling a plot of land which has been donated in favour of the poor during a year of famine. He states that such a procedure would be lawful as it would be better to sell the land than retain it and let the poor die of hunger; this has been the solution adopted on numerous occasions during years of famine.54 One of the problems arising from this type of donations is to determine what requirements a poor individual must fulfil in order to be considered as a beneficiary. We shall see further on how the same issue arises when dealing with the sick, although no reference is made to the poor in the documents we have perused. It is likely that it was up to the administrator in charge of each donation to decide who was to benefit from it. As he was responsible for supervising the appropriate usufruct of a ta˙bìs, he must decide who fell within the category of ‘poor’ and was therefore entitled to take advantage of the assets entrusted to his care. The only quantitative data available to gauge the importance of assets donated for this purpose are from the Christian period. They can be extrapolated, with caution, to the situation in place at the end of the Nasrid period. The record of a˙bàs from Granada and la Vega in October 1503 reveals that the assets for the poor, ultimately seized by the monarchy for itself, amounted to rents to the value of 247,598 maravedís, that is 67.7% of the 356,230.5 maravedís generated by all the crown’s a˙bàs and 17.1% of the total amount of 1,445,230.5 maravedís rendered by all the a˙bàs of Granada and La Vega55 (see Appendix V, Figures 4 and 5). B. Vincent remarks,
52
Al-Wansharìsì, Mi'yàr, VII, pp. 182–183 (trans. E. Amar, ‘La pierre’, XIII, pp. 338–339, V. Lagardère, Histoire et société, p. 289, no 274). 53 Al-Wansharìsì, Mi'yàr, VII, p. 143 (trans. V. Lagardère, Histoire et société, p. 266, no 192). 54 Al-Wansharìsì, Mi'yàr, VII, p. 332 (trans. E. Amar, ‘La pierre’, XIII, p. 366). 55 Apud P. Hernández Benito, La Vega de Granada, p. 57 (Table 1) and p. 60 (Table 4). I already pointed out in chapter 1 that the figures presented in the tables are not the same as those shown in the introductory study; there he indicates (p. 46)
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for his part, that in auspicious years the profits generated by the crown’s a˙bàs (including those belonging to mosques and captives) amounted to 3,000 ducados, a sum corroborated by the treasurer Luis de Mercado who, in May 1585, estimated that the profits produced by the a˙bàs in the period prior to the Morisco revolt of 1568 amounted to 2,000 ducados. The author considered that sum paltry and modest.56 Similarly, the aforementioned book of habices of 1501 shows the small relevance, in quantitative terms, of those donations in the area of the Alpujarra, trailing behind those established in favour of fuqahà", mosques and ràbi†as. Of all the regions’ a˙bàs, the assets earmarked for the poor and captives represented 13.1% of marshes, 14.74% of trees and 20.61% of young trees. In districts, the ones with the greatest number of donated assets were Ferreira (15.3% of marshes, 13.77% of trees and 14.28% of young trees), Jubiles (13.05%, 14.51% and 12.5%), Ugíjar (11.87%, 10.28% and 19.92%) and Andarax (16.43%, 9.8% and 16.28%)57 (see Appendix V, Figure 3). 4.2. In favour of the sick As with donations for the poor, those made in favour of the sick constitute another modality of individual charity, given the absence of a state official body or budget responsible for providing medical assistance. In a society, however, where the state did not provide medical services, this type of donations must have been the only source of livelihood for many sick people unable to perform remunerated work or without access to relatives who could look after them. As a result of the absence of public bodies and institutions devoted to ensure their welfare, it is likely that the infirm, the crippled and amputees wandered from one place to another in search of charity or towns with funds purposefully allocated for their maintenance. Ibn 'Abdùn’s treatise seems to indicate this when it states that he who has been sentenced to have a hand amputated should not be incarcerated but, rather, expelled from the town so that ‘he
that the assets for the poor represented 63.4% of the urban a˙bàs in the hands of the crown. 56 See B. Vincent, ‘Las rentas particulares del reino de Granada en el siglo XVI’, pp. 90–91. 57 Apud C. Trillo San José, La Alpujarra, pp. 384–385.
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can eke out a living out through people’s charity until his wounds heal’.58 The information available on donations made for this purpose is varied, both in terms of their source material and contents, although mostly insufficient. Most of it deals with Córdoba, the only town where the existence of pious endowments for the infirm can be confirmed, alongside the references to the hospital (màristàn) of Granada in Nasrid times. Chronologically, the earliest donation of pious endowments in favour of the sick documented in our sources is that made by 'Ajab, the emir al-Óakam I’s favourite , in the early 9th century. As far as the analysis of available data is concerned, we must commence with the section dealing with the legal framework in which these donations were made. There is only one notarial formulary that alludes to this type of aim. It is included in Ibn Mughìth’s treatise and it involves the donation of properties (amlak) in favour of ‘the infirm of that town’ ('alà-l-mar∂à alladhìn bi-maw∂i' kadhà), with a specific mention of the amputees and the blind (al-maqà†ì' wa-l-'umyàn min-hum). He further adds that the profits rendered by the donated properties must be distributed annually and it falls upon the founder to appoint the individual in charge of administering those assets on behalf of the infirm designated as beneficiaries.59 Ibn Mughìth’s formulary makes it possible to establish that the donation could be made generically, for the benefit of all kinds of infirm or, rather, for a particular type, as shown in a question addressed to Ibn Rushd concerning a case of family donation—five shops—made by a father in favour of his son that comprised as its last alternative beneficiaries (marja' ) the lepers and the blind of Granada in equal parts.60 The earliest reference to the existence of pious endowments in favour of the sick can be traced back to the rule of the emir alÓakam I (180–206 h/796–822) and deals with the Umayyad capital where a community of lepers seems to have existed from the early 3rd/9th century to the beginning of the 5th/11th century. The emir’s favourite wife, known as 'Ajab, donated a munya (hitherto
58
Ibn 'Abdùn, Risàla, p. 209 (trans. E. García Gómez, p. 77, no 29). Ibn Mughìth, al-Muqni', p. 328. 60 Kitàb al-fatàwà, ed. al-Talìlì, I, pp. 624–625, no 148; ed. al-Tajkànì, I, pp. 546–548, no 126. On lepers in al-Andalus see C. Mazzoli-Guintard, ‘Notes sur une minorité urbaine d’al-Andalus: les lépreux’, Homenaje al Profesor Carlos Posac Mon, Ceuta, 2000, I, pp. 319–325. 59
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known as munyat 'Ajab) which, in the course of time, gave rise to the development of a suburb bearing the same name.61 References to this country estate are abundant and come from several sources. Some of them deal with its status as a pious foundation for the sick lepers of Córdoba. That information stems, as it has been indicated, from different kinds of sources and its scope includes data from the 5th/11th century. This fact enables us to outline several aspects of the existence of Córdoba’s leper community, located on the southern banks of the river Guadalquivir, opposite the town. Some of the information available establishes a link between that leper colony and its condition as beneficiary of pious donations. That is the case in Ibn al-'A††àr’s notarial treatise. Although he does not provide any specific formulary on donations in favour of the infirm, he nonetheless mentions among the last alternative beneficiaries (marja' ) of certain private donations the sick people from the opposite shore of the river in Córdoba’ ('alà-l-mar∂à alladhìn bi-'idwat nahr Qur†uba).62 This most probably alludes to the leper community we are studying in spite of not mentioning this fact explicitly. Similarly, the qà∂ì 'Iyà∂ provides more data on the Córdoban leper community in his biography of the legal scholar Abù 'Abdallàh Mu˙ammad b. Ya˙yà b. Lubàba (d. 330 h/942) regarding the barter (mu'àwa∂a) of a majshar63 donated in favour of the sick of Córdoba in return for a munazzaha or recess property64 at the behest of the caliph al-Nàßir.65 This reference will be dealt with in detail further on when studying that political power’s attitude towards pious endowments (see chapter 10). Furthermore, there is a legal query involving the lepers from the banks of the river. It is addressed to Mu˙ammad b. Ghàlib and it involves the case of a man who donated four mudd (of wheat?) in favour of the lepers and amputees of Córdoba (al-judhmà wa-l-qu†' bi˙a∂rat Qur†uba) in his will. He was asked whether that donation should
61 See E. Lévi-Provençal, L’Espagne musulmane, p. 207, note 3; J. Zanón, Topografía, pp. 29 and 34. 62 Ibn al-'A††àr, Kitàb al-wathà"iq, pp. 173, 235 and 590 (trans. P. Chalmeta and M. Marugán, pp. 375, 387 and 862). 63 R. Dozy, Supplément, I, p. 195: ‘une propriété où il y a des serfs, des bêtes de somme, des boeufs, des outons, etc., une métairie, une hameau’. See J. Oliver Asín, ‘Ma#“ar = cortijo. Orígenes y nomenclatura árabe del Cortijo sevillano’, Al-Andalus, X (1945), pp. 109–126. 64 R. Dozy, Supplément, II, p. 671, ‘lieu de plaisance’. 65 'Iyà∂, Tartìb al-madàrik, VI, pp. 86–92.
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be made in favour of the lepers from the banks of the river ('ala-ljudhmà alladhìn bi-'idwat nahr Qur†uba) or, on the contrary, divided up within the capital itself (bi-˙à∂irat Qur†uba). Ibn Ghàlib’s response was that the donation must be divided up among the infirm from the banks of the river, thus fulfilling the testator’s will (hàdhà wajh mà aràda al-muwaßßì).66 As we mentioned earlier, a suburb gradually sprawled out of 'Ajab’s country estate which, according to F.J. Simonet,67 corresponds to the one referred to in the Calendario de Córdoba (4th/10th century) under the designation orto mirabili,68 Latin translation of munyat 'Ajab, that comprised the church and monastery of St Christopher. This suburb is also mentioned in Yàqùt al-Óamawì’s dictionary of locations as ‘a place’ ( jiha) of al-Andalus69 and gave rise to a particular nisba, al-munyì, that is ‘the one from al-munya’. Biographical dictionaries provide information on several personages from the 3rd/9th and 5th/11th centuries who lived or came from there. I have located six individuals bearing that nisba.70 In one case, it is even explicitly indicated that the individual whose biography is being recorded, Ibràhìm b. Dàwud (d. 327 h/938–939), lived there ‘among the lepers’ (kàna suknà Ibràhìm b. Dàwud bi-munyat al-'Ajab bayna-l-mujadhdhamìn).71 Apart from Córdoba’s leper community, there are no other references to the existence of similar establishments in other Andalusian
66 Al-Wansharìsì, Mi'yàr, IX, pp. 404–405 (trans. V. Lagardère, Histoire et société, pp. 407–408, no 151). 67 Historia de los mozárabes de España, Madrid, 1983, 4 vols., II, p. 329. 68 Calendario de Córdoba, pp. 110–111. 69 Yàqùt, Mu'jam, V, p. 253, no 11,679 (trans. G. `Abd al-Karim, p. 293, no 370). 70 Yùsuf b. 'Amrùs al-Munyì (d. 286 h/899): al-Khushanì, Akhbàr, p. 383, no 517; Ibn al-Fara∂ì, Ta"rìkh, II, p. 202, no 1618; 'Iyà∂, Tartìb al-madàrik, VI, p. 153. See M. Marín, ‘Nómina’, no 1597. Khalaf b. Sa'ìd al-Munyì (d. 305 h/917): al-Khushanì, Akhbàr, p. 84, no 93; alÓumaydì, Jadhwat al-muqtabis, p. 194, no 415; al-Rusha†ì, Kitàb iqtibàs al-anwàr, p. 67, no 23; Ibn al-Kharrà†, Ikhtißàr iqtibàs al-anwàr, p. 167, no 57; Yàqùt, Mu'jam see supra. See M. Marín, ‘Nómina,’ no 453. Mu˙ammad b. 'Abdallàh b. Mu˙ammad al-Bahrànì al-Mu"addib (d. 385 h/995–996): Ibn al-Fara∂ì, Ta"rìkh, II, p. 100, no 1370; Ibn al-Abbàr, al-Takmila, ed. al-Harras, I, p. 296, no 1026. See Mª L. Ávila, La sociedad hispanomusulmana, no 642. Mu˙ammad b. Mu˙ammad b. Masrùr al-Íaydalànì (d. 391 h/1001): Ibn Bashkuwàl, Íila, II, p. 455, no 1039; Mª L. Ávila, La sociedad hispanomusulmana, no 780. 71 Ibn al-Fara∂ì, Ta"rìkh, I, p. 24, no 30 (the text used here says mujadd.) See his biographical references in M. Marín, ‘Nómina’, no 26.
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towns. In fact, the rest of the little information available insists on the case of Córdoba. We mentioned earlier that, most probably, the infirm wandered from one place to another in search of sources of income to survive. Alongside the aforementioned reference by Ibn 'Abdùn, another example in this respect can be found in a legal query addressed to Ibn Sahl concerning a handful of sick people who arrived in Córdoba from other localities, settled there and asked to be registered as beneficiaries of the assets donated in favour of the infirm alongside local residents. Opinions differed as to when they must start benefiting from those assets. According to Ibn Sahl, it must be from the fourth day onwards provided that they express their will to settle in town (al-isti†àn bi-hà). Ibn Abì Salama, for his part, believes that they are entitled to it from the moment they can prove they have settled there.72 As for what kind of sick people must be considered as beneficiaries, Ibn al-Óàjj states that, in the case of lepers, a surgeon’s testimony would suffice whereas, in the case of amputees, they must be missing at least a fingertip (anmila) from a finger which prevents them from working for, as he states, the donor’s will is that those unable to work be the beneficiaries (qaßd al-mu˙abbis al-'ajz 'an al-'amal).73 Al-Nubàhì includes another reference to the use of pious endowments in favour of the sick in his biography of the qà∂ì Abù 'Abdallàh al-ˇanjàlì. It mentions the plague epidemic that swept Europe in the mid-14th century known as the Black Death. The qà∂ì al-ˇanjàlì, who was still alive when the epidemic first struck al-Andalus, ‘continued to preside over the administration of a˙bàs with his usual diligence; he made good use of their revenues and allocated them to those duly designated [as beneficiaries]’.74 If the madrasa was the most important Islamic educational institution (see infra), the màristàn, a Persian term employed by Arab sources to designate assistance centres for the sick and the mentally ill and widespread in Egypt, Syria and Irak from the 5th/11th century onwards, is the paramount institution in the field of medical 72
Ibn Sahl, Dìwàn, II, p. 1100; al-Wansharìsì, Mi'yàr, VII, pp. 240 and 481. Al-Wansharìsì, Mi'yàr, VII, pp. 341–342 and 456 (trans. V. Lagardère, Histoire et société, p. 272, no 214). 74 Al-Nubàhì, Ta"rìkh qu∂àt al-Andalus, p. 157. See M.I. Calero Secall, ‘La peste en Málaga, según el malagueño al-Nubàhì’, in Homenaje al profesor Darío Cabanelas, Granada, 1987, 2 vols., I, p. 66. 73
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care. In al-Andalus this type of establishment is only documented in the Nasrid period; the only known hospital in Granada was that built at the behest of Mu˙ammad V (755–760 h/1354–1359 and 763–793 h/1362–1391) in the month of Shawwàl of 768 h ( June 1367), according to the original commemorative plaque which shows that the foundation was supported by means of pious endowments (awqàf ) donated for its upkeep.75 Remnants of that hospital, located on the southern foothills of the Albaicín, could be seen standing until 1843, when they were completely demolished.76 Once again we must resort to the data supplied by Granada’s a˙bàs in order to gauge the quantitative importance of the assets donated for this purpose. The assets belonging to hospitals were seized by the monarchy and were divided into two groups: the ones owned by the madhouse, corresponding to the Nasrid màristàn whose income amounted to 45,282 maravedís (44,985 according to the document) in 1503, and the hospital for lepers of Saint Lazarus, opened by the Catholic monarchs in 1498 and whose income amounted only to 5,624 maravedís (6,235 according to the document). The greater relevance of the Nasrid màristàn, whose income represented 13.6% of the total profits generated by the a˙bàs in hands of the crown and 3.1% of the almost a million and a half maravedís derived from all the assets of La Vega, is therefore clear.77 As for the Alpujarra, the data from 1501 show that 20.72% of all the profits derived from leasing out the a˙bàs were allocated to the poor and captives.78 This information can be checked out in Appendix V, Figures 3 and 5. 4.3. Ransom of captives The last type of donation likely to be included in the section devoted to charitable donations, albeit notably different, involves those made
75 Published and translated by E. Lafuente Alcántara, Inscripciones árabes de Granada, Madrid, 1859, pp. 172–175 and E. Lévi-Provençal, Inscriptions arabes d’Espagne, pp. 164–165, no 176. See J.A. García Granados and V. Salvatierra Cuenca, ‘Un edificio rehabilitado en el siglo XIV: el maristán de Granada’, in Homenaje a Manuel Ocaña Jiménez, Córdoba, 1990, p. 107. 76 J. A. García Granados et al., El maristan de Granada. Un hospital islámico, Granada, 1989, pp. 21 and 29; F. Girón Irueste, ‘Los hospitales en la España islámica’, Jano, XXX, no 711, no 3 (February 1986), pp. 69–78. 77 P. Hernández Benito, La Vega de Granada, pp. 46 and 48. 78 C. Trillo San José, La Alpujarra, p. 357.
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for the purpose of ransoming prisoners. It is not necessary to stress the relevance of this issue in the case of the Iberian Peninsula where, for eight centuries, two social formations in almost constant struggle for territory co-existed. This enables us to understand why the topic of captivity, closely linked to that of border relations, has been dealt with in numerous studies. For Muslims, the ransom of captives was regarded as a collective duty for the whole community ( far∂ kifàya)79 by some Màlikì jurists, thus the importance given to this issue. Although the information available on the topic of captivity is, obviously, enormously abundant and variegated, I will only dwell upon a specific aspect, that of the ransoming of prisoners through the donation of pious endowments, an issue on which references are scarce. This modality is contemplated by Ibn al-'A††àr80 and there are two fatàwà, both from the Nasrid period, focused on the same matter, that of the responsibility of the administrator for the monies entrusted to him. The most common feature of this type of endowments centres on the nature of the asset donated: as money is an asset which is consumed by use, it seems that rescued captives were bound to return the amount paid in order to ransom them and thus ensure the perpetuity of the ˙ubs as, otherwise, that fundamental requirement would not be met. In the first fatwà, al-Saraqus†ì states that prisoners will not be exonerated from returning the same amount of money paid to ransom them, even though the administrator has done so since the latter can not dispose of someone else’s property. He believes as well that the ex-prisoner who has been rescued and declares he has returned the amount paid for his rescue will only be believed if he can provide proof to substantiate this.81 Ibn 'Allàq’s82 fatwà also focuses on the issue of the nàΩir’s responsibility but is more complete and provides more data on his activity. The amount entrusted to him amounted to 600 gold dinars and
79 See F. Vidal Castro, ‘Poder religioso y cautivos creyentes en la Edad Media: la experiencia islámica’, in Fe, cautiverio y liberación. Actas del I Congreso Trinitario (Granada, octubre 1995), Cordoba, 1996, pp. 73–96. 80 Ibn al-'A††àr, Kitàb al-wathà"iq, p. 178 (trans. P. Chalmeta and M. Marugán, p. 391). 81 Al-Wansharìsì, Mi'yàr, VII, pp. 161–162 (trans. V. Lagardère, Histoire et société, pp. 267–268, no 197). 82 Al-Wansharìsì, Mi'yàr, VII, pp. 207–208 (trans. V. Lagardère, Histoire et société, pp. 283–284, no 253).
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he received, apart from the money, documents in which certain qà∂ìs vouched for his personal integrity (amàna) and at the same time imposed on him the obligation of not employing the monies but in ransoming captives and always disbursing it after having secured guarantees and pledges that it would be paid back. The administrator first received the amount in silver and gold coins and claims to have lost 262 dinars after exchanging silver coins for gold ones since the former were of bad quality and lacking in weight. He claims also to have spent 616 silver dinars in several undertakings: drafting of documents, paying for certain items stolen from his house, ransoming of prisoners in enemy territory without the appropriate guarantees that the money would be returned, and exchanging gold coins for dirhams of insufficient weight and of bad quality. He is left with a total of 150 gold dinars. The administrator alleges that no claims can be made against him as his personal probity has been vouched for and he has acted, moreover, on a voluntary basis so that if he were to be considered responsible he would demand remuneration for his work. Ibn 'Allàq’s response is as follows: given his status as a trustworthy individual (amìn), he will not be considered responsible for any financial loss as a result of different exchange rates, nor for expenses derived from drawing up documents, nor for the items stolen from his house. He will be responsible, however, for the money he handed out without securing guarantees or pledges that it would be returned as he breached the clause imposed on him in this respect; he will also be responsible for all the money lost when employed for purposes different to those stipulated by the donor. As for demanding remuneration in return for his work, Ibn 'Allàq thinks that the simple fact that he has acted as a custodian of the money means that he has no right to it since the 'ulamà" believe that a depository cannot be remunerated for looking after the money left in deposit (wa∂ì 'a). With regard to his other actions, he would not be entitled to lay any claims if he had admitted that he was acting voluntarily (mu˙tasiban). Conversely, if he had made it clear that he was not acting on a voluntary basis and claimed to have carried out the job in return for a salary, he would be entitled to that after declaring on oath that that had been the case since this type of duty is usually performed by volunteers. Christian documents contain information on assets donated for two kinds of military enterprises. One of them is the ‘torre de las
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alcarias’ (‘tower of the al-qarya’) which, together with the assets donated to repair cisterns, bridges, pathways and ditches and the ones handed to the madrasa, were put under the ownership of Granada’s cathedral chapter by means of a royal edict issued on 20 September 1500. They generated profits amounting to 330,000 maravedís, out of which 80,000 corresponded to the a˙bàs in hands of the madrasa; the remaining 250,000 were devoted to other purposes, among them the towers.83 The other, and numerically most important, military enterprise is the ransoming of captives. The assets of Granada and La Vega donated for this purpose were divided into two parts: the Church seized the assets of Granada and the monarchy kept those belonging to surrounding villages. The fact that the assets donated for this purpose are, by far, the most numerous in villages (59.3% of the total profits) and are found in all of them—except in Huétor84—is striking. Regardless of the possible explanation for this phenomenon—perhaps it is linked to the also striking lack of a˙bàs for the benefit of mosques in those villages—, the latter may help highlight the adaptation of the ˙ubs to the social context in which it is immersed: the surge in donations for military purposes in a society such as the 9th/15th-century Nasrid kingdom, and the ransoming of captives in particular, is natural after all. According to K. Garrad, 42 prisoners were ransomed thanks to funds stemming from these a˙bàs in 1559; their freedom cost 2,250 ducados (848,000 maravedís), that is 200 ducados per ransomed captive.85
5. Military: waging the jihàd The third great group of donations comprises those made for military aims, as a means of contributing to the jihàd which I have investigated in an earlier work.86 In principle, this purpose is particularly
83
P. Hernández Benito, La Vega de Granada, pp. 37 and 113, no 24. La Vega, pp. 38, 50–51 and 66 (Table XI). 85 K. Garrad, ‘La renta de los habices de los mezquinos de las Alpujarras y valle de Lecrín’, Miscelánea de Estudios Árabes y Hebraicos, II (1953), p. 44. 86 A. García Sanjuán, ‘Frontera, #ihàd y legados piadosos en al-Andalus (siglos X–XV)’, III Estudios de Frontera. Convivencia, defensa y comunicación en la frontera (Alcalá la Real, 18–20 de noviembre de 1999), Jaén, 2000, pp. 317–330. 84
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important in the case of al-Andalus as a result of its status as a border area in relation to Christian territories and the connections of the jihàd with the defence of Islam’s borderlands. The jihàd is a duty incumbent upon all adult, male Muslims who are in good health, although its organisation and practice actually rested on the state; al-Màwardì considers it the sixth duty (out of ten) of the imàm in his role as ruler of the umma.87 In al-Andalus, it was one of the most important functions of the state and it is known that a third of the state budget was devoted to defence expenditures under 'Abd al-Ra˙màn III.88 As 'Abdallàh remarks in his Memoirs, ‘if rulers (salà†ìn) did not defend and protect their subjects, did not fortify their states, then their subjects would not find life pleasant nor would they enjoy living always in the same territory’.89 A Muslim’s contribution to the jihàd could either be personal or material and, in this respect, both the Qur"àn (IV, 95–96; IX, 41 and 44; LXI, 11; etc.) and the Sunna90 exhort the believer to spend their income on this type of endeavours. These donations are formally made alongside the Qur"ànic expression fì sabìl Allàh which, originally, designated any kind of pious deed; among Màlikì jurists, however, it came to designate exclusively any action undertaken or donation made to help the dissemination of the faith, that is as a synonym of jihàd. Thus, the Mudawwana establishes a clear link between a pious donation made fì sabìl Allàh and a military purpose (ghazw)91 and the same phenomenon is found in Andalusian notarial treatises where that concept is reserved for formularies devoted to donations of weapons and horses to be employed in the jihàd.92 There is very little information on these donations and it mostly comes from legal sources. Chronicles do not show clear evidence of
87
Al-Màwardì, al-A˙kàm al-sul†àniyya, p. 18. Ibn Sa'ìd, al-Mughrib, I, p. 183; Dhikr, I, pp. 163–164 (Arabic) and II, p. 174 (trans.). Of the other two thirds, one was employed in the erection of the palatine town of madìnat al-Zahrà" (it took 25 years) and the other was deposited in the royal treasury. 89 Tibyàn, p. 58 (trans. E. García Gómez, p. 83). 90 See al-Bukhàrì, Ía˙ì˙, section LVI, chapter 2, no 2786; al-Nawawì, Riyà∂ alßàli˙ìn, pp. 507–508 (no 1289), 512 (no 1308), 518 (no 1330), 519 (no 1338) and 521 (no 1349). 91 Sa˙nùn, al-Mudawwana, XV, p. 98. 92 Ibn al-'A††àr, Kitàb al-wathà"iq, pp. 178, 206 and 207 (trans. P. Chalmeta and M. Marugán, pp. 367–368 and 391); Ibn Mughìth, al-Muqni', pp. 325–326; al-Jazìrì, al-Maqßad, p. 288. 88
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the existence of an official policy aimed at establishing pious foundations in order to protect the border; this has been used as an argument to suggest the ‘lack of a Holy War deployment’ in alAndalus.93 Other elements must be taken into account, I believe. On the one hand, the absence of ‘political’ or official donations in favour of the border is hardly striking as the same case applies to all types of pious endowments and all the periods of Andalusian history. In fact, the lack of donations made by rulers is one of the distinctive features of pious endowments in al-Andalus in contrast with other medieval Islamic societies, like Ayyubid or Mamluk Egypt, for instance. On the other hand, although no quantitative information is forthcoming, it must be taken into account that such donations could be made by any Muslim citizen and that the presence, in notarial treatises, of donation deeds for that purpose doubtless reveals a social practice whose scope is difficult to quantify. Al-Jazìrì’s statement that ‘were the donor not to specify any aim, the donation must be devoted to the poor, except in the case of border areas (maw∂i' thaghr) where it should be devoted to purchasing horses, weapons or any other form of jihàd ( fì kirà' aw ßilà˙ aw ghayr dhàlik min sabìl al-jihàd )’ is revealing in this respect. In the same way, Ibn al-Qa††an was of the opinion that when there was a pious endowment of unknown purpose, it must be devoted to the the building of ramparts (binà" al sùr).94 Legal information distinguishes three types of military donation according to the nature of the assets donated and the aims selected. The first involves the provision of equipment, consisting of weapons and horses, for the participant in the jihàd. Others consist of assets donated for the upkeep or the building of walls and fortresses or for paying those employed as guards in them. The donation of personal property, among which some notarial formularies mention horses and swords (Hindu, Frankish or surayjì )95 and slaves (ifranjì or jillìqì)—all of them fì sabìl Allàh or li-l-jihàd fì sabìl Allàh—is typical of the military ta˙bìs.96 Due to their character
93
See E. Manzano Moreno, La frontera, pp. 64–65. Al-Jazìrì, al-Maqßad, p. 289; al-Wansharìsì, Mi'yàr, VII, p. 291 and 442 (trans. V. Lagardère, Histoire et société, pp. 271–272, no 212). Ibn al-Qa††an’s opinión is mentioned by Ibn Salmùn, al-'Iqd al-munaΩΩam, apud O. Pesle, La Théorie et la pratique des habous, p. 88. 95 See E. W. Lane, Arabic-English Lexicon, IV, p. 1344. 96 Ibn al-'A††àr, Kitàb al-wathà"iq, pp. 206–207 (trans. P. Chalmeta and M. Marugán, pp. 367–368); Ibn Mughìth, al-Muqni', pp. 325–326; al-Jazìrì, al-Maqßad, p. 288. 94
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of ‘mobile property’, Ibn al-'A††àr and al-Jazìrì admit the possibility that such assets remain under the ownership of the donor and must be handed to whomever is going to use them for the foreseen purpose and then returned to their owner so that the loan amounts in these cases to a valid take-over (al-'àriyya ˙iyàza tàmma).97 Ibn Mughìth, however, clearly rejects this form of take-over in his formulary which, apart from horses and weapons, includes books as well. As for the beneficiaries of this type of donations it seems likely that mounts, donkeys, swords and slaves ended up in the hands of conscripted soldiers (dunùd, ˙ushùd and bu'ùth) who must respond to military summons with their own military equipment whereas that of professional troops (a˙shàm), however, was supplied and paid for by the state.98 Only al-Jazìrì elaborates a bit more on the issue in his formulary when recording the donation of a horse and he indicates that the beneficiary has been selected because ‘he is a knight of renowned reputation and bravery’ (idh huwa min ahl al-furùsiyya mashhùr bi-l-najda wa-l-shahàma).99 We don’t have much information on this type of donations, although we can rely on a few data on those involving horses, animals whose importance for waging the jihàd is underlined both by the Qur"àn (IV, 62) and the Sunna. Thus, a prophetic tradition states that, when apportioning booty, the knight must receive two portions whereas the foot-soldier was entitled to one (li-l-faras sahmàn wa-li-l-rajul sahm).100 Another ˙adìth states that whoever immobilises a horse will see how its forage, its drink, its dung and its urine are weighed in his favour on Judgement Day.101 To the best of my knowledge, we only have two specific cases of this kind. The first is that of Daysam b. Is˙àq (d. 293 h/905–906), one of the rebels who supported Ibn Óafßùn, who used to turn horses and weapons into pious endowments in favour of the people of the borderlands.102 The second is that made by Khalaf b. A˙mad b. Khalaf al-Anßàrì (d. post 420 h/1029), a
97 Ibn al-'A††àr, Kitàb al-wathà"iq, p. 207 (trans. P. Chalmeta and M. Marugán, p. 368); al-Jazìrì, al-Maqßad, p. 292. 98 P. Chalmeta, ‘La España musulmana’, pp. 530–531. 99 Al-Jazìrì, al-Maqßad, p. 288. 100 Al-Bukhàrì, Ía˙ì˙, no 2863 (trans. O. Houdas and W. Marcais, II, p. 304); Màlik, Muwa††a", p. 364, no 21; Ibn Abì Zayd, Risàla, pp. 164–165. 101 Al-Bukhàrì, Ía˙ì˙, section LVI, chapter 45, no 2853 (trans. O. Houdas and W. Marcais, II, p. 301); al-Nawawì, Riyà∂ al-ßàli˙ìn, p. 518, no 1330. 102 Al-'Udhrì, Tarßì', p. 12.
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pious and charitable man (kathìr al-ßadaqa) who donated some pigeons so that with the profits they generated a horse (khayl) could be purchased for the jihàd fì sabìl Allàh.103 Again, most of the available information is supplied by legal texts and focuses on aspects concerned with the particular problematic arising from the donation of this type of goods due to its status as movable property. One of them was the existence of some indication proving its status as ˙ubs, as shown by two fatàwà and two formularies: it consisted of a mark made with a branding-iron on the beast’s leg identifying it as a ˙ubs property to prevent its sale or, in any case, make it easily identifiable as was the case with books.104 Another question addressed to Ibn Rushd105 raises the problem of who is responsible for paying for the forage of the donated horse. He replies that if the beneficiary refuses to pay the expenses, the horse will become the donor’s property once more if it is a personal ta˙bìs, whereas that if the donation was made in God’s name, the beast will then be handed to another beneficiary willing to feed him and use him for the designated purpose. The same question is posed to 'Abd al-Óamìd al-Íà"igh and responded to in identical terms.106 There is also a quantitative reference in Ibn 'Idhàrì’s chronicle to the events that took place in Córdoba in 401 h/1010–1011 when the qà∂ì promised 500 horses from the proceeds of pious endowments to fight the Berbers.107 It is one of the few benchmarks—the only one in fact—available to allow a gauge of the economic weight held by a˙bàs in the capital of al-Andalus. Although Ibn 'Idhàrì does not clarify the provenance of these proceeds, it seems likely that his reference also shows the use of the a˙bàs for different purposes than the original, as we shall see below (see chapter 9 and 10).
103 Ibn Bashkuwàl, Íila, I, pp. 164–165, no 378. This episode is not recorded by his other biographer 'Iyà∂, Tartìb al-madàrik,VIII, p. 49. 104 Ibn Sahl, Dìwàn, II, pp. 1108–1109; al-Wansharìsì, Mi'yàr, VII, p. 423 (trans. V. Lagardère, Histoire et société, pp. 256–257, no 158; A. Mª Carballeira, Legados píos, 156), VII, p. 218 (trans. V. Lagardère, Histoire et société, p. 257, no 162); Ibn Mughìth, al-Muqni', p. 326 and al-Jazìrì, al-Maqßad, p. 288. 105 Ibn Rushd, Kitàb al-fatàwà, al-Talìlì, I, pp. 313–314, no 66; al-Tajkànì, I, pp. 252–253, no 61. 106 Al-Wansharìsì, Mi'yàr, VII, p. 58 (trans. V. Lagardère, Histoire et société, p. 217, no 27). 107 Ibn 'Idhàrì, al-Bayàn al-mughrib (III), p. 104 (trans. F. Maíllo Salgado, p. 96): wa'ada bi-jamsumi"at fars min màl al-a˙bàs ya˙milu 'alay-hà murtajilat al-'abìd.
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Another type of donation with a military purpose, defensive in this particular case, does not appear in formularies but is recorded in jurisprudential literature, one of the few cases in which this development is documented. I am referring to donations for the building—or, rather, for repairing—ramparts, an issue recently studied by M. Marín through the analysis of texts from the Mi'yàr.108 One of the earliest testimonies on this particular use of ˙ubs is the jurist Abù 'Umar b. al-Qa††àn’s assertion that the profits derived from pious endowments of unknown purpose must be diverted to this aim.109 Among the documented cases there is one addressed to the qà∂ì Abù-l-Fa∂l 'Iyà∂. In it he is asked about a section of a largely dilapidated rampart and whether it is lawful to pull down the rest of it if it is not needed and having it demolished would be beneficial. He replies that ramparts are a public asset useful to all Muslims and must be considered therefore as having the same value as their a˙bàs; they cannot be altered, moved, destroyed or modified unless the purpose for which they were donated is changed.110 'Iyà∂’s view highlights a use of the concept of ˙ubs applied to public assets or of public utility similar to that formerly analysed when discussing the use of the waqf as equivalent to the fay" (see chapter 3): 'Iyà∂ relies on the sense of inalienability and inalterability inherent to the ˙ubs in order to defend and protect what are regarded as public assets so that they can remain and be kept in use (chapter 10). There are two other available cases that allow us to verify that defence needs could lead to a shift in the usage of certain assets, such as contributing to the funding of repair works along ramparts. Thus, Ibn ManΩùr is asked about a ràbi†a adjacent to the ramparts of Vélez where prayers are only held during the month of Rama∂àn. The possibility of transferring the surplus generated from its pious endowments so that they can be used to finance reinforcement works in the walls or repairs in some border locations is broached. At first, the jurist believes that the surplus must be devoted to the upkeep of another ràbi†a although he later acknowledges the fact that Córdoban legal practice considers the possibility that it may be used for a pur108
M. Marín, ‘Documentos juridicos y fortificaciones’, pp. 79–87. Al-Wansharìsì, Mi'yàr, VII, p. 132 (trans. V. Lagardère, Histoire et société, p. 287, no 269), VII, p. 291 and 442 (trans. V. Lagardère, Histoire et société, pp. 271–272, no 212; A. Mª Carballeira, Legados píos, 139). 110 'Iyà∂, Tartìb al-madàrik, p. 207 (trans. D. Serrano, p. 363); al-Wansharìsì, Mi'yàr, V, p. 352 (trans. V. Lagardère, Histoire et société, p. 183, no 324). 109
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pose of public utility and concludes that it must be the qà∂ì who decides on the most appropriate solution.111 The same issue is raised more clearly in a legal query addressed to al-Mawwàq involving a field of olive trees belonging to the mosque of the village of Castril (Granada). The village only consumes a small portion of the oil produced there and the nàΩir of the mosque considered the possibility of selling the surplus oil for the benefit of the village walls or of the mosque itself.112 We have very few data on pious endowments in favour of castles or fortresses, known in Arabic as ˙ißn (pl. ˙ußùn). As P. Guichard points out, the main function of these fortresses was defensive, serving as refuges for the population living in neighbouring villages.113 Most of the available legal queries dealing with fortresses are addressed to Nasrid jurists, although this use appears documented at least since the 10th century as it is already mentioned as the final beneficiary (marja' ) in one formulary of Ibn al-'A††àr’s notarial treatise.114 Most of the legal questions supply very little useful information of an extra-juridical nature; they only reveal the existence of assets donated for that purpose in a particular location at a particular time. One, addressed to the fuqahà" Ibn 'Attàb and Ibn al-Qa††àn, for instance, deals with a man who had leased a piece of land set as a ˙ubs for the upkeep of the ˙ißn of Alfamín (Toledo) for a period of seven years’.115 Another query, albeit more succinctly, refers to the ‘administrator of the fortress’ pious endowments’ (al-nàΩir fi-l-a˙bas bi-l-˙ißn),116 the only reference I have managed to find regarding the existence of a nàΩir at a fortress. The only legal question where a donation (ta˙bìs) made in favour of a fortress (˙ißn) is explicitly mentioned is one addressed to Ibn ManΩùr concerning a ‘large hamlet 111 Al-Wansharìsì, Mi'yàr, VII, pp. 145–146 (trans. M. Marín, ‘Documentos jurídicos’, p. 81). 112 Al-Wansharìsì, Mi'yàr, VII, pp. 132–133 (trans. V. Lagardère, Histoire et société, p. 287, no 269 and M. Marín, ‘Documentos jurídicos’, p. 81, attributed to alSaraqus†ì). 113 ‘La Valencia musulmana’, in Nuestra Historia, Valencia, 1980, II, p. 265. 114 Ibn al-'A††àr, Kitàb al-wathà"iq, p. 178 (trans. P. Chalmeta and M. Marugán, p. 392). 115 Ibn Sahl, Dìwàn, I, pp. 635–637; al-Wansharìsì, Mi'yàr, VII, p. 477 (trans. V. Lagardère, Histoire et société, p. 287, no 266). See D. Serrano Ruano, ‘La escuela de alfaquíes toledanos a través del Mi'yàr de al-Wan“arìsì’, Revista del Instituto Egipcio de Estudios Islámicos, XXX (1998), p. 139. 116 Al-Wansharìsì, Mi'yàr, VII, p. 127 (trans. V. Lagardère, Histoire et société, p. 287, no 266).
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(al-qarya)’ in Baza donated in favour of the already mentioned fortress of Castril (˙ißn Qashtàl) and for other purposes as well; there exist two very similar versions of the same fatwà.117 There is also the case, published by L. Seco de Lucena, involving a man who arranged, in June 1452, for a faddàn and a threshing floor (andur) out of the third of free disposal (thulth) to be donated in favour of the fortress of Archidona (˙ißn Arjidhùna)118 (see supra). The remaining queries deal with legal issues such as the transfer of profits or alterations in the original aims, probably due to defence needs (see chapter 9). Thus, on a certain occasion, a query is made as to whether the assets donated in favour of a cleric who prays for the dead and the poor can be diverted and employed for the benefit of the fortress of Zalía (˙ißn Íàli˙a), in Málaga, because of its dilapidated state. The anonymous faqìh replies that that is not allowed and argues that the two beneficiaries of the profits raised from the ˙ubs are the only ones authorised to benefit from it and bases his injunction of the prohibition of fiddling with the regulations governing a ˙ubs property.119 Another, addressed to al-Saraqus†ì, refers to the fact that the villagers of a hamlet, located above an abandoned site three miles from Vélez and with access to abundant pious endowments, used the profits derived from the latter to erect a castle (˙ißn) and turn it into a stronghold.120 Also connected to this type of donations are those made in order to contribute to the maintenance or reinforcement of frontier posts or borderlands (thaghr). In spite of its connection with the border, it is not fitting to include in this group al-Óakam II’s donation for the reasons previously stated (see supra). As for jurisprudence, it affords only one example in a legal question addressed to Ibn Rushd from Tarifa involving a man who stated in his will that two hostels were to be donated for the benefit of a certain frontier post after his death.121 117 Al-Wansharìsì, Mi'yàr, VII, pp. 123–124 and 130 (trans. V. Lagardère, ‘Droit des eaux’, p. 117, Campagnes, p. 281 and Histoire et société, p. 284, no 255; Mª I. Calero, ‘Afectación’, 177–178). 118 Documentos arábigo-granadinos, pp. 12–15 (Arabic) and pp. 12–15 (trans.). 119 Al-Wansharìsì, Mi'yàr, VII, p. 139 (trans. V. Lagardère, Histoire et société, p. 265, no 186, here it is attributed to al-Saraqus†ì). 120 Al-Wansharìsì, Mi'yàr, VII, p. 144 (trans. V. Lagardère, Histoire et société, pp. 266–267, no 193). 121 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, III, pp. 1340–1342, no 467; ed. alTajkànì, II, pp. 1247–1253, no 324; al-Wansharìsì, Mi'yàr, VII, pp. 466–467 (trans.
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As we have seen, military donations could take different forms. In this sense, some queries show several examples of defensive ta˙bìs; they are all addressed to Nasrid legal scholars and three of them stem from the town of Vélez (Málaga). One case alludes to a man who donates a share of an oil mill in favour of the warriors defending the town and a plot of land (dimna) for the night guard who slept at the ramparts.122 The second case is so similar, in terms of approach and its theme—both concerning a nàΩir’s appointment— that they seem identical.123 Thirdly, there exists a text relating the case of a donation of a piece of land (maw∂i' ) in Vélez so that the dwellers of Zalía fortress could build a watchtower (burj) on a spot outside the walls (˙ißn) and known as 'Ayn ˇu˙ma. On this occasion, the legal question concerns the possibility of alienating the plot of land and using it for another purpose. The legal expert supports this action.124 As shown in the case of fortresses (˙ußùn), military needs might lead to an upsurge of legal queries concerning the possibility of modifying or altering the aim of donations made for specific purposes. In one case, al-Mawwàq is asked whether it is possible to use the funds raised after collecting the zakà and the subul al-khayràt wa-anwà' al-qurubàt, an expression perhaps referring to a˙bàs of unknown purpose, so that an artillery item (naf†) could be built to demolish the walls of Alhama;125 the weapon had to be turned into a ˙ubs for Granada’s main mosque afterwards. Al-Mawwàq starts his response by recalling the siege of Almería by the Aragonese king Jaime II, knows as al-Barshalùn, in 1309. Jaime II used a large wooden tower, higher than the town’s ramparts, to raid Almeria. He inflicted numerous casualties among its defenders. A group of six Muslims, however, managed to set fire to the tower and destroy it. They were rewarded for their feat. Al-Mawwàq, when drawing attention to this episode, tries to justify the manufacturing of the naf† in order to try
V. Lagardère, ‘La haute judicature’, p. 164, ‘Abù l-Walìd b. Ru“d’, p. 216, ‘Structures étatiques’, p. 71 and Histoire et société, p. 271, no 210). 122 Al-Wansharìsì, Mi'yàr, VII, p. 145 (trans. P. Guichard and V. Lagardère, ‘La vie sociale’, pp. 222–223, V. Lagardère, Histoire et société, p. 267, no 195). 123 Al-Wansharìsì, Mi'yàr, VII, pp. 140–141 (trans. P. Guichard and V. Lagardère, ‘La vie sociale’, p. 222, V. Lagardère, Histoire et société, p. 265, no 188). 124 Al-Wansharìsì, Mi'yàr, VII, p. 140. 125 Al-Wansharìsì, Mi'yàr, VII, pp. 147–148 (trans. V. Lagardère, Histoire et société, p. 288, no 272).
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and regain Alhama. He goes even further and claims that, on this occasion, this procedure is more expedient for, in the case of Almería, the fate of a town was at stake whereas now it is the fate of all alAndalus that is involved.
6. Cultural and educational The significant development of knowledge which occurred in alAndalus in several fields is well-known: not only specifically Islamic disciplines like Islamic law but also the more scientific ones such as philosophy, medicine, agronomy, etc. The development of knowledge relied, obviously, on the support of a well-organised education system with adequate resources to ensure its efficiency. The state hardly played any role in this process, which remained almost completely in private hands. This is probably why the role of pious donations in this respect has a more lasting impact than in others where the state has more direct involvement, like in defence. This argument has been highlighted by different scholars.126 We are not able at this stage, however, to estimate the importance of pious endowments in sustaining education and the transmission of knowledge in al-Andalus due, as we know, to the dearth of information and the absence of quantitative data. Another element to take into consideration with regard to this type of donations, à propos the aims hitherto studied, is that a great deal of them are closely linked to the collective of legal experts ( fuqahà") who can be regarded as the main social group benefiting from pious endowments in al-Andalus. On the one hand, they benefited through the donations from which the salaries and remunerations of masters were raised, both in primary education and, mostly, in secondary. Likewise, the donations aimed at helping impecunious students can also be considered as linked to the collective of men of religion since their purpose was to make possible and facilitate access of new members to it. On the other hand, donations for educational purposes documented in the sources mainly fall within two categories: books and allowances 126 See E.I.2, V, pp. 1129–1130, s.v. madrasa; L. Gardet, ‘Notion et principes de l’éducation dans la pensée arabo-musulmane’, in Enseignement en Islam et en Occident au Moyen Âge, Paris, 1977, p. 1.
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for students. The few data available on the existence of madrasas in al-Andalus—there are also references to properties donated as ˙ubs for their benefit—must be taken into account here. With regard to donations of books, the information is particularly scarce, although the impact of this modality must be evaluated in connection with their role in the educational sphere. According to a legal scholar, the works of fiqh and religious doctrine are an integral part of ˙ubs assets because of their contents.127 In al-Andalus this is one of the earliest documented aims of pious donations and evidence of this practice can be found in all periods of its history. The earliest references can be traced back to the 9th century, the donations made by Hàrùn b. Salìm and Qàsim b. Óàmid al-Umawì (see chapter 3). In the first half of the following century we have two more donations of books, that of Mùsà b. Sulaymàn al-Umawì (d. 293 h/906)128 and Qàsim b. Sa'dàn (d. 347 h/958).129 All of these cases involve men of religion. The only case concerning a woman is that of Khadìja b. Ja'far b. Nußayr b. al-Tammàr al-Tamìmì (c. 394 h/1003–1004), wife of the jurist 'Abdallàh b. Asad (see chapter 4). Ibn Bashkuwàl refers in similar terms to Mu˙ammad b. 'Ìsà b. Faraj b. Abì-l-'Abbàs b. Is˙àq al-Tujìbì (d. 485 h/1092–1093) who donated his books to the students dwelling on ‘the other side’ of the Mediterranean (al-'idwa), that is Andalusian students who had travelled to a North African town in search of knowledge.130 Finally, in the Nasrid period, Ibn al-Kha†ìb recounts how Mu˙ammad b. Mu˙ammad b. Muhàrib al-Íarì˙ì (d. 750 h/1349), known as Ibn Abì-l-Jaysh, died from the plague after having donated a large amount of money in alms and stated in his will that a considerable sum of money and his books were to be donated to students after his demise.131 The three notarial treatises consulted in this study mention, among books donated, works of ˙adìth (compilations by al-Bukhàrì, Muslim and Màlik b. Anas) and law (dawàwìn 'ilm). All of them record the donation of copies of the Qur"àn; when the latter are given away a detailed record of their shape, writing style, presence of adornments 127 Al-Wansharìsì, Mi'yàr, VII, p. 37 (trans. V. Lagardère, Histoire et société, pp. 213–214, no 13). 128 Al-Khushanì, Akhbàr, p. 189, no 235. 129 Ibn al-Fara∂ì, Ta"rìkh, I, p. 409, no 1072. 130 Ibn Bashkuwàl, Íila, II, p. 528, no 1225. 131 Ibn al-Kha†ìb, al-I˙à†a, III, p. 79.
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and type of case or chest containing it had to be made. These treatises also record the fact that, as regards the use of books, they were lent to trustworthy students so that they could consult, compare and copy them.132 The information provided by the corpus of jurisprudence is confined to a fatwà issued by Ibn Siràj133 concerning books donated in favour of Granada’s main mosque; this highlights the importance of the mosque as a place of learning. Because of their nature the donation of personal property, like books, required the existence of some distinctive mark proving their status as ˙ubs since, otherwise, they could be easily alienated. In this respect Ibn Rushd remarks in a fatwà that books which were donated must bear some indication of their ta˙bìs with the appropriate authentication signed by witnesses.134 Apart from donations of books, the other kind of donations for cultural and educational purposes recorded in the sources are allowances for students in the shape of pensions or grants. Because of the predominantly private character of education, both at primary and secondary levels, it is natural that donations were made partly to help poor students. All but one of the available references involve donations in favour of students preparing to join the community of men of religion (†alabat al-'ilm). The only exception is also the earliest reference to this type of donations. It is the ta˙bìs set by the caliph al-Óakam II (350–366 h/961–976), dated 1 Jumàdà I 364 h (17/1/975), comprising the saddlers’ shops (sarràjìn) in the market (sùq) of Córdoba in favour of the masters he had appointed to instruct the children of the capital’s poor families.135 This is one of the few references available to us on donations made by political authorities and the only one in favour of primary education, which was usually funded by pupils’ parents themselves. Apart from this, Christian documents include a reference to the ‘habizes que llevaba el alfaqui que bezava leer a 132 Ibn al-'A††àr, Kitàb al-wathà"iq, p. 206 (trans. P. Chalmeta and M. Marugán, p. 366); Ibn Mughìth, al-Muqni', p. 326; al-Jazìrì, al-Maqßad, p. 288. 133 Al-Wansharìsì, Mi'yàr, VII, pp. 227–228 (trans. A. Giladi, ‘Three Fatàwà on Lending Libraries’, p. 143). See C. Sánchez-Molini Saez, ‘Las bibliotecas y alAndalus’, in J.M. Carabaza Bravo and A. Tawfik, El saber en al-Andalus. Textos y studios (II), Seville, 1999, pp. 95–97. 134 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, III, pp. 1573–1574, no 582; AlWansharìsì, Mi'yàr, VII, pp. 181–182 (trans. V. Lagardère, ‘La haute judicature’, p. 163, ‘Abù-l-Walìd b. Ru“d’, p. 215 and Histoire et société, p. 270, no 205). 135 Ibn Óayyàn, al-Muqtabis (VII), p. 207 (trans. E. García Gómez, p. 247, no 20).
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los niños en Motril’136 [‘a˙bàs allocated to the faqìh who taught the children of Motril to read’]. The other testimonies deal with donations in favour of secondary students (†alabat al-'ilm). This type of donations, similarly to most of those made for the benefit of mosques, were intended for members of the community of ‘men of religion’, 'ulamà" and fuqahà", although in the latter case it would be more appropriate to consider them as men aspiring to join the ranks of the collective. The earliest known is that made by the legal scholar Faraj b. Abì-l-Óakam b. 'Abd alRa˙màn b. 'Abd al-Ra˙ìm al-Ya˙ßubì (d. 448 h/1057) who donated his home in favour of Sunna students (˙abbasa dàri-hi 'alà †alabat alsunna). Ibn Bashkuwàl, his only biographer, reports that he was from Toledo and counted among his masters 'Abdallàh b. Dìnàr, 'Abdallàh b. Ya'ìsh and Mu˙ammad b. 'Umar al-Fakhkhàr. He did not hold any charge nor was he appointed as a magistrate but he outperformed his contemporaries in knowledge, intelligence and virtue.137 The corpus of jurisprudence contains three legal queries involving donations in favour of students, all from the Nasrid period, addressed to Ibn Lubb and al-Mawwàq and focusing on the issue of the distribution of profits and the necessary requirements one had to meet to be counted as a beneficiary. Two questions are raised regarding assets donated in favour of out-of-town students in the first fatwà.138 The queries posed to al-Mawwàq come from Baza and both are aimed at ascertaining who was entitled to benefit from the profits generated by ˙ubs properties donated in favour of poor students. In the first he is asked whether a student with a wealthy father can be allowed to benefit from properties donated to help poor students.139 The second involves a teacher (mu"addib) and an artisan who, apart from having their own jobs, sometimes attended classes in order to take advantage of the funds originally intended to assist Baza’s poor students.140 136
Apud C. Trillo San José, La Alpujarra, p. 359. Ibn Bashkuwàl, Íila, II, pp. 436–437, no 986. See the rest of his biographical references apud M.L. Ávila and M. Marín, ‘Nomina’, no 1332. 138 Al-Wansharìsì, Mi'yàr, VII, pp. 264–265 (trans. V. Lagardère, Histoire et société, p. 281, no 246). 139 Al-Wansharìsì, Mi'yàr, VII, pp. 123–124 (trans. V. Lagardère, Histoire et société, p. 284, no 255). An almost identical version is in Mi'yàr, VII, p. 130 (trans. Mª I. Calero, ‘Afectación’, p. 177). 140 Al-Wansharìsì, Mi'yàr, VII, pp. 124–125 (trans. V. Lagardère, Histoire et société, p. 286, no 263; Mª I. Calero, ‘Afectación’, pp. 179–180). 137
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Castilian documents highlight the weight of these donations in the Nasrid kingdom. There are references to the existence of a˙bàs for out-of-town students in the town of Motril: ‘habiz que era para los que venían a estudiar a Motril de fuera parte, para ayuda a sus gastos’141 [‘˙ubs earmarked for those from outside Motril who came to study in that town, to help them with their expenses’]. According to the 1503 book of a˙bàs, the assets intended for that purpose were ranked as the third in terms of profits generated among the existing charitable endowments (see Appendix V, Figure 5) and were divided into two groups. The first was known as Maharoc and was aimed at assisting students. The goods donated for this purpose amounted to 29,486 maravedís, representing 67.8% of all the a˙bàs set for educational schemes. Other goods donated for the same reason were those belonging to schools, whose profits amounted to 32.2% of the total funds available to ‘teaching’ a˙bàs. The most important in the register of October 1503 are those belonging to Rabad Albayda (23.7%), Axarea (13.1%) and San Miguel (12.7%), all in the Albaicín quarter of Granada. Also among the properties owned by mosques, however, were some earmarked for educational aims such as the case of ‘gima Moabite’ ( jàmi' al-muràbi†ìn), the mosque with the highest income and part of whose assets are known as ‘de Moabite y Talaba’. As a whole, in terms of their funds, the a˙bàs set for educational purposes (Maharoc and schools) represent 10.8% of those comprising the philanthropic endowments which, as we have seen, were grabbed by the monarchy.142 The most important educational institution of medieval Islam was doubtless the madrasa. There are differing theories as to its origins although the fact is that it became widespread especially from the 5th/11th century onwards thanks to the support of the Saljukid Turks, in particular of NiΩàm al-Mulk, vizier of the sul†àn Màlik Shàh who founded the famous madrasa NiΩàmiyya in Baghdad in 459 h/1067, and also of Saladin in Egypt, Palestine and Syria during the 12th century.143 In spite of its enormous expansion throughout the Middle East and Central Asia, its impact in the Western
141
Apud C. Trillo San José, La Alpujarra, p. 359. See P. Hernández Benito, La Vega de Granada, pp. 48–49 and 63 (table VII). 143 See ‘Madrasa’, E.I.2, V, pp. 1119–1130; Y. Frenkel, ‘Political and social aspects of Islamic pious endowments (awqàf ): Saladin in Cairo (1169–73) and Jerusalem (1187–93)’, Bulletin of the School of Oriental and African Studies, 62/1 (1999), pp. 1–20. 142
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Islamic world was not so remarkable and began at a much later stage. In al-Andalus, the question of when and where madrasas emerged has long been a cause for debate, as shown by Mu˙ammad 'Abd al-Óamìd 'Ìsà in his unpublished Ph.D. dissertation on education in al-Andalus. He believes that the onlyfor on his part, has advanced the hypothesis that the so-called house of Mañara could have been the site of a madrasa in Seville in the 6th/12th century.144 According to Ibn al-Kha†ìb, when Abù 'Abdallàh Mu˙ammad b. Mu˙ammad b. 'Abd al-Ra˙màn b. Ibràhìm al-Anßàrì al-Íàli˙ì (678–754 h/1279–1353) erected the madrasa of Málaga, adjacent to the Friday mosque, he supplied it with properties (ribà' ) set apart as waqf .145 But the most famous and best known was that founded in Granada under the rule of Yùsuf I (733–755 h/1333–1354). Ibn alkha†ìb claims that it was built at the behest of Ri∂wàn al-Naßrì, vizier of several of Granada’s sultans. This is the most famous madrasa and its existence is corroborated by the archaeological remains found on its site. According to L. Seco de Lucena,146 construction must have started ten years before it was formally inaugurated, as shown by the foundation plaque dated Mu˙arram 750 h (22–3/20–4–1349).147 M. 'Abd al-Óamìd 'Ìsà believes, however, that building works must have commenced in 748 h/1347 and that it was already operational in 749 h/1348, although the official inauguration did not take place until 1349, as the plaque reveals.148 Even though the foundation plaque does not confirm it, Ibn alKha†ìb asserts that Ri∂wàn endowed it with assets to ensure its upkeep, specifically ‘productive land properties’.149 He reiterates this when, recording the biography of Mu˙ammad b. Qàsim b. A˙mad al-Anßàrì (d. after 770 h/1369), he remarks that the latter ‘enjoys a privileged position and makes a good income as he supervises the a˙bàs of the madrasa’.150 Christian documents also confirm the image
144 ‘Un solar entre murallas: la Casa de Mañara y su entorno durante la Alta Edad Media’, in D. Oliva Alonso (co-ord.), Casa Palacio de Miguel de Mañara: Restauración, Seville, 1993, p. 119. 145 Ibn al-Kha†ìb, al-I˙à†a, III, p. 191. 146 ‘El Óà#ib Ri∂wàn, la madrasa y las murallas del Albaycin’, Al-Andalus, XXI (1956), p. 295. 147 See E. Lévi-Provençal, Inscriptions arabes, pp. 158–160, no 172. 148 Historia de la enseñanza, pp. 495–496. 149 Ibn al-Kha†ìb, al-I˙à†a, I, p. 508 and al-Lam˙a al-badriyya, p. 120. 150 Ibn al-Kha†ìb, al-I˙à†a, III, p. 199.
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of wealth associated with Granada’s madrasa as it was handed over, by a royal decree issued on 20 September 1500, to the cathedral chapter—the latter adopted it as its seat—alongside all its assets whose income amounted to 80,000 maravedís This represented almost 25% of the income derived from all the a˙bàs handed over to the church, 330,000 maravedís according to the 1503 book of a˙bàs.151 7. Ràbi†as and ßùfì lodges (zàwiyas) Both Arabic texts and, mostly, Castilian sources shed light on the importance of donations in favour of these two institutions, especially in the Nasrid period. Some considerations must be made at first on both types of establishments, its main features and interrelations. Zàwiya means ‘angle’ or ‘corner’ and is a term that designates a kind of building mainly used as a gathering place for fuqarà" or poor ßùfì. In the East its origins date back to at least the 6th/12th century whereas in al-Andalus it is associated with the Nasrid period. The definition suggested by the tangerine traveller Ibn Ba††ù†a may help shed light on the meaning of the concept. He says that ‘the monastery is to Christians what the zàwiya is to Muslims’.152 Ràbi†a is, on the other hand, a concept closely linked to that of ribà† as both derive from the same root (rb†) and have, in fact, the same meaning (‘tie’, ‘link’, ‘bond’).153 In al Andalus, ràbi†a seems to designate, both in urban and rural areas, a place of worship or a small mosque, at least between the 14th and 15th centuries. The fact that, as is often the case in other aspects, Arabic terminology is eclectic and irregular must be considered though. The concepts of ribà† and ràbi†a are used interchangeably and both are also coterminous with that of zàwiya on a number of occasions, the three being used to indicate the same building.154 Similarly, L. Seco de Lucena pointed out that by the end of the 15th century Arabic texts
151
P. Hernández Benito, La Vega de Granada, pp. 37, 39 and 113, no 21. Ibn Ba††ù†a, Ri˙la, II, p. 437 (English trans. H. Gibb, p. 162). 153 On the semantic relation between both concepts see M. de Epalza, ‘La ràpita islámica: historia institutional’, in F. Franco Sánchez (ed.), La Ràpita en el islam. Estudios interdisciplinares, Alicante, pp. 5–28, esp. pp. 6–8. 154 L. Torres Balbás, ‘Rábitas hispanomusulmanas’, Al-Andalus, XIII (1948), pp. 476 and 479. 152
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used the term ràbi†a to describe a zàwiya.155 This may explain the fact that Christian documents contain abundant references to ràbi†as but only a few to zàwiyas: this is the case, for instance, of the famous zàwiya of Ibn Ma˙rùq or ‘the Burnt’ (see infra). Castilian documents also reveal that a ˙ubs had been established for the ‘rábita Azevya’ in the village of Nechite (†à'a of Ugíjar).156 The legal corpus shows that the term rabita was used as a synonym for small mosque.157 A legal query mentions a place (maw∂i' ) where an ‘old mosque’ (masjid al-'atìq) and a ràbi†a stood; here the adjective 'atìq may be employed as a means of distinguishing the two places of worship of the town.158 Another mentions a ràbi†a adjacent to the walls of Vélez where ‘prayers are not held except during the month of Rama∂àn’.159 Another reports the case of a village with a main mosque led by a salaried imàm as well as ‘a ràbi†a with no imàm or muezzin’.160 The frequent identification of the ràbi†a with the town where it is located reinforces the notion of the former as a place of prayer: one of the legal questions shows that the rivalry existing between two quarters of the same town was channelled through their respective ràbi†as.161 The 1501 book of habices reveals, moreover, that a great deal of the ràbi†as found in the Alpujarra bore the name of the neighbourhoods where they were located,162 a fact that somehow corroborates the idea I have just mooted. All these facts would compel us, after all, to assimilate these donations with those made in favour of mosques, thus confirming the latter’s economic weight in al-Andalus (see chapter 5). As for zàwiyas, they are always associated with the activity of fuqarà" (see infra), mystics who advocate selfimposed poverty as a lifestyle.
155 ‘De toponimia granadina’, Al-Andalus, XVI (1951), pp. 74–75; M.T. Martínez Pérez, ‘Las mezquitas de Granada en los libros de habices’, Andalucía Islámica, IV–V (1983–1986), pp. 203–235. She seems to be aware of this terminological distinction but disregards it. 156 Apud C. Trillo San José, La Alpujarra, p. 365. 157 See A. García Sanjuán, ‘Ràbi†as y ribà†s en el Mi'yàr de al-Wan“arìsì (m. 914/1508)’, in F. Franco Sánchez (ed.), La rábita en el islam. Estudios interdisciplinares, Alicante, 2004, 83–89. 158 Al-Wansharìsì, Mi'yàr, VII, p. 134 (trans. E. Amar, ‘La pierre’, XIII, p. 374). 159 Al-Wansharìsì, Mi'yàr, VII, pp. 145–146 (trans. M. Marín, ‘Documentos jurídicos y fortificaciones’, p. 81). 160 Al-Wansharìsì, Mi'yàr, VII, p. 164. 161 Al-Wansharìsì, Mi'yàr, VII, p. 201 (trans. E. Amar, ‘La pierre’, XIII, p. 391; V. Lagardère, V. Lagardère, Histoire et société, p. 280, no 244). 162 Apud C. Trillo San José, La Alpujarra, p. 367.
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As we can see, the topic, enormously complex and far-reaching, still needs to be analysed through studies devoted to specific aspects and a monograph which helps synthesise the information hitherto available on the subject. I will confine myself to try and analyse in the following pages the data available on the issue in relation with ˙ubs properties. 7.1. The Nasrid ràbi†as The abundance of ràbi†as at the end of the Nasrid period is evident mainly thanks to Castilian documents. Similarly, the fact that almost all of them owned pious endowments is confirmed by the frequency with which they are mentioned in the books of habices, undoubtedly one of the main sources for studying them: the books of 1505 and 1527 mention eighty-five ràbi†as, all located in the capital city of Granada163 and a hundred and thirty-four were spread throughout the villages of the Alpujarra according to the 1501 book of habices. There were fifteen in the village of Valor (†à'a of Jubiles) and ten in both Bérchules (†à'a of Jubiles) and El Hiçan (†à'a of Andarax).164 These documents also reveal the considerable amount of donations made to ràbi†as, the second largest owners of a˙bàs in the Alpujarra (see Appendix, Figure 3): they comprise in total 18.77% of marshes, 29% of trees and 24.58% of young trees. The wealthiest were those belonging to the †à"as of Jubiles (24.64% of marshes, 36.23% of trees and 62.5% young trees), Ferreira (23.39%, 34.8% and 57.14%), Andarax (20.82%, 40.47% and 26.63%) and Pouter (19.76%, 24.63% and 80%).165 In contrast with the importance of pious endowments linked to ràbi†as as reflected by the books of a˙bàs, references concerning the issue of pious donations in the corpus of jurisprudence are very scarce. Out of the five legal queries on the issue, only one specifies the place where it originated, Vélez.166 As far as their contents are concerned, most of them deal with prob-
163
See M.T. Martínez Pérez, ‘Las mezquitas de Granada en los libros de habices’, pp. 203–235. A table-synopsis showing the distribution—according to alms collections—of some of these ràbi†as can be found in M. Espinar Moreno and J. Abellán Pérez, ‘Las rábitas en Andalucia. Fuentes y metodología’, p. 135. 164 Apud C. Trillo, La Alpujarra, p. 363. 165 Apud C. Trillo, La Alpujarra, pp. 384–385. 166 Al-Wansharìsì, Mi'yàr, VII, pp. 145–146 (trans. M. Marín, ‘Documentos’, p. 81).
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lems arising from the management of funds generated by their assets.167 Nasrid documents published by L. Seco de Lucena also mention the ràbi†a of Belicena, a village in the Vega of Granada, as a beneficiary of a testamentary donation consisting of a plot of land for irrigation located in that village.168 In the case of zàwiyas the legal questions dealing with donations are always addressed to Nasrid legal scholars. Only one, however, mentions a particular location, Baza.169 They all focus on whether it is lawful or not to make donations in favour of these institutions, zàwiyas, invariably described as gathering venues for the ‘poor’ ( fuqarà"),170 individuals embracing a life of voluntary privations who used these establishments as refectories for their meals, usually accompanied by dances and chanting (dhikr).171 The fuqahà" condemn such practices unanimously and systematically, decrying the activities of those fuqarà" and branding them as heretical religious innovations (bid'a) (see infra). Among the testimonies available on donations in favour of zawiyas, several refer to the so-called zàwiyat al-Ma˙rùq or that ‘of the burnt’, mentioned in Christian sources under the name of ‘Maharoch’. Located in Granada, in the midst of the suburb of Najd,172 it was visited by Ibn Ba††ù†a in about 756 h/1355.173 Al-Maqqarì also refers to it174 and both sources agree in describing it as a residence for ßùfìs. This zàwiya is also called a ràbi†a, both in Arabic documents dated in April 1491 (ribà† al-wazìr al-Ma˙rùq and ràbi†at al-Ma˙rùq)175
167 Al-Wansharìsì, Mi'yàr, VII, p. 134 (trans. E. Amar, ‘La pierre’, XIII, p. 374), VII, pp. 145–146 (trans. M. Marín, ‘Documentos’, p. 81), VII, p. 164, VII, p. 199, VII, p. 201 (trans. E. Amar, ‘La pierre’, XIII, p. 391 and V. Lagardère, V. Lagardère, Histoire et société, p. 280, no 244). 168 Documentos árabigo-granadinos, pp. 14–15 (Arabic text) and 14–15 (trans.). 169 Al-Wansharìsì, Mi'yàr, VII, pp. 115–116 (trans. V. Lagardère, Histoire et société, pp. 277–278, no 233). 170 Apart from the legal questions quoted below see al-Wansharìsì, Mi'yàr, I, pp. 160–161 (trans. V. Lagardère, Histoire et société, p. 70, no 281). 171 See on this concept F.M. Pareja, Islamología, II, pp. 667–668. 172 See L. Seco de Lucena, ‘De toponimia granadina’, p. 68. 173 Ibn Ba††ù†a, Ri˙la, IV, 373. He reports: ‘I also met in Granada with the shaykh of shaykhs and eminent ßùfì, the faqìh Abù 'Alì 'Umar, son of the pious and devout shaykh Abù 'Abdallàh M. b. al-Ma˙rùq in whose zàwiya, beyond the ramparts of the town, I stayed for a few days as his guest’. This function of ßùfì lodges as hostels is also corroborated by the legal corpus (see infra). 174 Apud L. Seco de Lucena, ‘De toponimia’, p. 68. 175 L. Seco de Lucena, Documentos, pp. 120–121 (trans.) and pp. 111–112 (Arabic text), document no 65 (a and b).
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and in Castilian texts.176 This fact backs L. Seco de Lucena’s hypothesis on the shift in designation from zàwiya to ràbi†a (see supra). Some references indicate that the zàwiya owned some a˙bàs, like the Arabic documents recorded in Spanish preserved at the Archives of the Royal Chancellery in Granada. They include a will (from the 15th century) in which Yuçef Abinayar, son of Reduan Aduladin el Judemi (Castilian version of Ri∂wàn 'Adl al-Dìn al-Judhàmì), donated a piece of land to the ßùfì lodge.177 Similarly, another document from 1456 shows that the aforementioned Yuçef purchased three mulberry trees near the land donated by his father and handed them over to the zàwiya.178 Castilian documents confirm the existence of a ßùfì lodge in possession of a˙bàs in the village of Abrucena (Almería).179 7.2. The zàwiyas: hostility between fuqahà" and fuqarà" A considerable number of the legal queries included in the corpus of jurisprudence focus on the activities of fuqarà" and are addressed both to Nasrid and Maghribì legal experts. These texts are an essential ingredient in the analysis of ‘popular religiosity’ in al-Andalus during the last phase of its history, especially in the rural milieu. My aim is simply to focus on the cases concerning the sources of income of those communities of ‘poor’, their meeting places and activities funded through donations of assets in the shape of pious endowments. The issue of the funding of ßùfì brotherhoods (†arìqas) helps to shed light on the opposition of legal scholars to donations in favour of mystics, endorsed by political authorities (by Saladin in particular) in the East.180 As I have pointed out, a common thread in most of the fatàwà that deal with this issue is the legal scholars’ rejection of the activ-
176
P. Hernández Benito, La Vega, p. 48. Apud M. Espinar Moreno, ‘De la mezquita de Maharoch al monasterio de San Jerónimo’, p. 93 (document no 3). 178 Apud M. Espinar Moreno, ‘De la mezquita’, p. 94 (document no 5). 179 Apud M. Espinar Moreno, ‘Bienes habices de Abla y Abrucena’, p. 389. 180 See F. Rodríguez-Mañas, ‘Encore sur la controverse entre soufis et juristes au Moyen Âge: critique des mécanismes de financement des confréries soufies’, Arabica, LXIII/3 (1996), pp. 406–421 and J.-C. Garcin and G.C. Kozlowsky, ‘Recursos materiales e importancia económica de las órdenes sufies’, in A. Popovic and G. Veinstein (co-ord.), Las sendas de Allah: las cofradías musulmanas desde sus orígenes a la actualidad, Madrid, 1997, p. 270; Y. Frenkel, ‘Political and social aspects of Islamic pious endowments’, pp. 3–4, 7 and 10. 177
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ities and practices undertaken by fuqarà", already noticeable in alAndalus in the 6th/12th century as shown in a legal question issued by Abù Bakr al-ˇur†ùshì (d. 530 h/1126). In it al-ˇur†ùshì categorically asserts that ‘ßùfìsm is a false, baseless and abominable doctrine’ (madhhab al-ßùfiyya bi†àla wa-jahàla wa-∂alàla) and exhorts rulers (sul†àn) and their representatives to prevent its adherents from attending mosques. This is, he concludes, the view of the four Sunnì madhàhib.181 The animosity, however, was reciprocated: ßùfì’s opposition to legal scholars is also documented from the 12th century as Mu˙ammad b. al-'Arabì from Murcia (1165–1240) shows in his Risàlat al-quds. This work reflects ßùfìs’ rejection of the ‘official’ or orthodox Islam embodied in the figure of the fuqahà" whom Ibn al'Arabì finds absolutely contemptible.182 Al-Óaffàr183 is the author of one of the fatàwà concerning pious donations, in this case made to a ßùfì lodge in Baza founded by a woman which, in her absence, was taken over by fuqarà" for many years and where they gathered and welcomed visitors from out of town. After a number of years, she returned but died unexpectedly. Her brother inherited the lodge and claimed to be the lawful owner due to an error in the donation procedure; the deed recording the donation made no reference to the possibility of evicting the occupants of the zàwiya and regaining control of it. In his response, alÓaffàr refutes the claim based, as it is, on a legal formality and maintains that the donor has made herself no favour when donating the building to the fuqarà" for whom he has no affection whatsoever, in particular for those who flock to fortresses (˙ußùn) in the countryside and remote locations (al-mawà∂i' al-nà"iya 'alà-l-˙a∂ra).
181 Al-Wansharìsì, Mi'yàr, XI, pp. 162–163 (trans. V. Lagardère, Histoire et société, p. 478, no 64). 182 Ibn 'Arabì elaborates on this criticism in Risàlat al-quds, pp. 120–121: ‘But beware, oh my brother, of evil thoughts and may God prevent you from assuming that I castigate fuqahà" for the simple reason that they are legal experts, that is because they study Islamic law. No doubts can be cast on any Muslim for that reason since the nobility of Islamic law and the study or divine laws are obvious. The scholars I inveigh against are only those who take advantage of their knowledge for financial profit, those who study law to gain fame and reputation and curry the favour of people so that the latter speak of them, those who only deal with feuds and polemics, who, moreover, dare contradict the men of religion who only love the afterlife and are God-fearing, those whose inspiration comes from Allah and whose science comes directly from Him’ 183 Al-Wansharìsì, Mi'yàr, VII, pp. 115–116 (trans. V. Lagardère, Histoire et société, pp. 277–278, no 233).
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Most of them, he states, have strayed from the true faith and very few among them actually seek the truth (aktharu-hum 'alà ghayr al†arìqa al-mur∂iyya wa-l-mu˙aqqiqùna min-hum qalìl jiddàn). That is why, he proceeds, making a donation in their favour is tantamount to condoning and supporting their unlawful activities ('alà mà yartakibùna-hu mimma huwa khàrij 'an al-†arìq al-shar'ì). This is the argument the claimant should have brandished, rather than a formal oversight in the donation deed which is not legally admissible. There follows the response of another legal expert whose name is not revealed by al-Wansharìsì. The anonymous jurist is even more stern than al-Óaffàr in his rejection of this type of donations. He first reports that if the formal error were to be confirmed the donation would have to be revoked. But, like al-Óaffàr, he berates the aim selected for this donation claiming that the fact itself is a strong enough reason to have it annulled; it is a completely reprehensible action (li-anna-hu ˙ubs 'alà munkar min a'Ωam al-munkaràt) as its beneficiaries, the poor (fuqarà"-l-waqt), in particular those roaming the rural areas (al-qurà wa-l-˙ußùn), whose inhabitants are characterised by their ignorance ( jahl ) and the former cash in on their naivety to persuade them of the fact that their practices are typical of ‘the friends of God and the pious’ (†arìqat al-awliyà" wa-l-ßàli˙ìn).184 The truth is, indeed, that their practices consist of games and amusements through which the assets of people are squandered (akl amwàl al-nàs bi-lbà†il ),185 a Qur"ànic accusation found in other fatàwà (see infra). He ends his response by demanding the razing of their gathering places where, he maintains, ‘religion is treated like a game’ ( yattakhidhùna al-dìn lahwan wa-la'ban. Another fatwà, by Abù Is˙àq Ibràhìm b. Fa†ùh, deals with a zàwiya donated in favour of the poor ( fuqarà"-l-waqt). The case arises from the fact that the lodge is abandoned and in ruins; only the site (qà'a) where it stood remains. The person who makes the inquiry asks what the fate of the site must be and suggests three options: sell it and use the profit for some pious purpose, leave it as it is until the end of times or return it to the heirs of the woman who donated it. The
184 The same accusation appears in al-Wansharìsì, Mi'yàr, I, p. 117: wa-yuwahhimùna al-juhhàl anna mà yaf 'lùna-hu min dhàlik qurba ilà Allàh ta'àla wa-anna dhàlik †arìq al-ßàli˙ìn wa-l-awliyà". On the concepts of †arìqa and awliyà" see J.M. Pareja, Islamología, II, pp. 659–675 and 675–679. 185 Al-Wansharìsì, Mi'yàr, VII, p. 116.
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possibility of handing it over to other adherents of the †arìqa is discarded because of the heresies and monstrosities against the law (albidà' wa-l-umùr al-shan'ìa allatì la tajùzu shar'an) perpetrated by them after the disappearance of the ‘genuine’ (aß˙àbi-hà al-qà"imìn bi-hà 'alàl-˙aqìqa) followers of whom only fragmentary information (akhbàr) is known. Ibn Fatù˙ rules in favour of having the donation invalidated (ba†làn al-ta˙bìs) due to its unlawfulness; it must be returned to the donor’s heirs.186 Some of the legal queries involving fuqarà" reflect one of the most deep-rooted manifestations of popular religiosity among Muslims, that of the festival commemorating the Prophet’s birthday (mawlid al-nabì); its date is still in contention but it is usually celebrated on the 12th day of rabì' I. In spite of the warnings against this festivity proffered by fuqahà", one of the likely causes of its popularity in al-Andalus is the fact that its celebration was promoted in an attempt to overshadow Christmas (mìlàd), celebrated by both Muslims and Christians.187 A good indicator of its spread and prevalence in the whole of the dàr al-islàm is the fact that, in 1993, the journal of Cairo’s Al-Azhar University was forced to issue a fatwà authorising its celebration.188 The Mi'yàr contains a significant number of legal questions on the issue, although not all are linked to the topic of pious endowments,189 which are the only ones I will consider here. One is addressed to the ustàdh Abù 'Abdallàh al-Óaffàr190 and presents the case of a man who donated a mulberry tree (aßl tùt) for the festivities held on the night of the mawlid ('alà laylat mawlid sayyidi-nà Mu˙ammad ). After his death, however, his son tried to regain control of the tree. In his response, al-Óaffàr makes numerous remarks on the inappropriateness of celebrating the event as an Islamic festivity and, consequently, on the illegality of making donations for that purpose. He first recalls that the pious ancestors (aß˙àb and tàbi'ùn) did not use to gather on that night to perform acts of worship (li-l-'ibàda) nor did they 186 Al-Wansharìsì, Mi'yàr, VII, p. 118 (trans. E. Amar, ‘La pierre’, XIII, pp. 367–368, V. Lagardère, Histoire et société, p. 276, no 226). 187 F. de la Granja, ‘Fiestas cristianas en al-Andalus. Materiales para su estudio (I)’, Al-Andalus, XXXIV (1969), pp. 6–15. 188 See A. Schussman, ‘The Legitimacy and Nature of Mawlid al-Nabì (Analysis of a Fatwà)’, Islamic Law and Society, V/2 (1998), pp. 214–233. 189 Al-Wansharìsì, Mi'yàr, I, pp. 160–161 (trans. V. Lagardère, Histoire et société, p. 70, no 281). 190 Al-Wansharìsì, Mi'yàr, VII, pp. 99–101 (trans. E. Amar, ‘La pierre’, XIII, pp. 334–337, V. Lagardère, Histoire et société, p. 276, no 228).
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consider that night as different from any other. This is supported by the fact, he insists, that there is no agreement on when Mu˙ammad was born and had the occasion given rise to some special form of cult the date would be well-known. No act of worship can then be performed at a particular venue and on a designated occasion unless it has been prescribed by Islamic law. He further adds that allowing this type of celebrations would open a loophole which would be impossible to close, as others could wield the same argument to justify the celebration of events like the day of the hijra to Medina or the Prophet’s night voyage to Jerusalem. The best course of action, he states, is to follow the example of the ancestors (aß˙àb and tàbi'ùn), God’s chosen people, and act as they did, refusing to do what they did not sanction. He believes that the celebration of the Prophet’s birthday is, obviously, not one of the practices prescribed by the law (laysa bi-ma†lùb shar'an). That is why it may not be commemorated. As donations of goods to fund this practice encourage people to carry it out, the law demands (ma†lùb shar'an) that they be banned. The fatwà elaborates on the issue and thus it can be gleaned that the reason for the opposition to donations made for that purpose is that brotherhoods of fuqarà" would be the beneficiaries. It recounts that ‘nowadays’ these fraternities are something despicable as far as religious practice is concerned (shanì'a min shani' al-dìn) since they engage in chants and dances during their gatherings alleging that these are activities associated with the ‘friends of God’ (awliyà" Allàh). The truth is that they undertake them in order to attract alms and live off the generosity of people (akl amwàl al-nàs bi-l-bà†il), a Qur"ànic charge repeatedly levelled against the fuqarà".191 He therefore believes that the ta˙bìs in favour of their †arìqa is not licit and must be revoked and exhorts the donor to devote his money to another pious, but legal, purpose (bàb àkhar min abwàb al-qurubàt al-shar'iyya) and, were he prevented from doing this for whatever reason, he should try to lay claim to it. The ustàdh Abù Is˙àq al-Shà†ibì responds to the same question afterwards. He thinks that this celebration constitutes an innovation (bid'a mu˙ditha) and any religious innovation is an aberration (∂alàla). He snubs the donation made for this purpose since, in his view, it
191 Reiterated by al-Óaffàr himself in al-Wansharìsì, Mi'yàr, VII, p. 117 (trans. V. Lagardère, Histoire et société, p. 278, no 234).
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is not lawful to provide funds for an innovation to be performed and asks the qà∂ì to annul the will and ensure that the third is handed over to the heirs so that they can divide it up among them.192 Al-Óaffàr’s view is required on a similar case concerning a woman who donated a plot of land (maw∂i' ) in her will so that it could be sown. The seeds harvested from it would contribute to celebrate Mu˙ammad’s birthday. The poor ( fuqarà" hàdhà-l-zamàn) are, once again, the beneficiaries. They gather to invoke the name of God, perform chants and dances and then consume the goods donated. In his response al-Óaffàr points out that the donor’s will must be respected as well as her wish was to devote the profits generated by the land to a pious aim, one, however, genuinely charitable such as aiding the poor and the indigent (li-l-∂u'afà" wa-l-masàkìn).193 In spite of the opposition of fuqahà", it seems that their fatàwà had no effect since the celebration of the Mu˙ammad’s birthday was never eradicated and continued to attract donations. This is revealed by the fact that the 1501 book contains references to a˙bàs devoted to that purpose in the †à'as of Berja, Dalías, Andarax and Ugíjar. In the latter case, pious endowments established for that reason existed in all the villages of the district194 (see Appendix V, Figure 3). The testimony of the Morisco Diego el Cayjad, recorded in 1528 as a result of a dispute over some ˙ubs, also confirms the existence of assets earmarked for that purpose in the villages of Abrucena, Abla and Finana (Almería).195 The contrast between the abundance of testimonies in Castilian documents on the existence of ràbi†as and zàwiyas and the stern opposition of legal scholars to the activities of fuqarà" is nevertheless striking. Two hypotheses can be advanced in this respect. On the one hand, it seems that the fuqarà" enjoyed considerable support among the populace, especially in rural areas,196 and the volume of donations bears witness to this, probably because of the sympathy aroused by Sufi practices, a phenomenon characteristic of ‘popular religiosity’.
192
Al-Wansharìsì, Mi'yàr, VII, pp. 102–103 and IX, p. 252 (a larger version) (trans. E. Amar, ‘La pierre’, XIII, pp. 460–461, V. Lagardère, Histoire et société, p. 281, no 249 and p. 423, no 221). 193 Al-Wansharìsì, Mi'yàr, VII, p. 114 (trans. V. Lagardère, Histoire et société, p. 277, no 231). 194 Apud C. Trillo San José, La Alpujarra, p. 367. 195 Apud M. Espinar Moreno, ‘Bienes habices de Abla’, p. 391. 196 See P. Guichard, Les musulmans de Valence, p. 106.
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On the other hand, in spite of the views expressed by legal scholars, not all fatàwà were so critical. The opinion of Abù-l-Barakàt Mu˙ammad b. Ibràhìm b. al-Óàjj al-Balàfiqì, endorsed by Ibn Lubb, is symptomatic in this regard. Al-Balàfiqì reports in a fatwà that on both ‘sides of the straits of Gibraltar’ (al-'idwatayn) legal practice ('amal) tends to be indulgent toward the deviations attributed to the fuqarà" because of the hospitality they afforded to travellers at their zàwiyas197. Ibn Lubb maintains in a fatwà where he is asked about an individual who encourages people to imitate the practices of the fuqarà" that music and chanting are tolerated to a certain extent.198 It is also revealing that in a legal question addressed to the shaykh Abù Is˙àq al-Shà†ibì—the fatwà is dated to Dhù-l-qa'da 786 h/January 1385— the presence of fuqahà" in those gatherings is confirmed.199
8. Graveyards I will conclude this chapter with some commentary on the last type of charitable ta˙bìs: the donations for the benefit of or for the building of cemeteries, of which function we know the least because of the dearth of available documents. The general knowledge about graveyards in al-Andalus has been extensively developed thanks to recent archeological research, but the best and most recent study is currently that of M. Fierro, mainly based on Arabic texts and with special reference to legal sources.200 As with other sacred spaces, like mosques, the Islamic graveyard is a public space whose upkeep falls to state authorities. The narrative and legal sources provide us with a broad set of references clearly showing the role played by rulers and magistrates in this regard. In 972, when the caliph al-Óakam II paid a visit to the †iràz, he noticed the lack of available space in the Córdoban cemetery of
197 Al-Wansharìsì, Mi'yàr, XI, p. 38 (trans. V. Lagardère, Histoire et société, p. 478, no 65). 198 Al-Wansharìsì, Mi'yàr, XI, pp. 35–38 (trans. V. Lagardère, Histoire et société, p. 479, no 69). 199 Al-Wansharìsì, Mi'yàr, XI, pp. 39–42 (trans. V. Lagardère, Histoire et société, pp. 479–480, no 76). 200 M. Fierro, ‘El espacio de los muertos: fetuas andalusíes sobre tumbas y cementerios’, P. Cressier and others (eds.): L’urbanisme dans l’Occident musulman au Moyen Âge. Aspects juridiques, Madrid, 2000, pp. 153–188.
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Umm Salma. He arranged for a number of houses surrounding it to be bought and consequently demolished so that it could be extended.201 Ibn 'Abdùn, for his part, stresses the fact that the qà∂ì will be entrusted with its upkeep and laments the lack of space in Seville’s graveyard, insisting that the qà∂ì must make arrangements for the faddàn known as ‘Ibn Màris’ to be acquired by the treasury (bayt al-màl ) and turned into a cemetery.202 As M. Fierro pointed out in the aforementioned study, the founding of a cemetery was a pious action, as with a mosque, and the Andalusian notarial documents include the donation of lands for the burial of Muslims.203 From the theoretical and legal point of view, the public and sacred status of the Islamic graveyard leads to its assimilation with the concept of ˙ubs, as clearly established by the jurists (see chapter 10). As we have seen above, the legal Màlikì rule says that ‘there is no harm in mutual cooperation when it comes to God’s matters’ (see chapter 9). On this premise, it was considered lawful to enlarge a mosque by annexing a cemetery, because both are a˙bàs belonging to the Muslims (see chapter 10).204 The information available on donations of land to be turned into cemeteries is particularly scanty. Ibn al-'A††àr’s treatise does not provide any data on this issue, whereas Ibn Mughìth’s and al-Jazìrì’s each contain a formulary to record the donation of a plot in order to use it for that purpose.205 Neither is particularly useful as Ibn alMughìth’s is not complete and al-Jazìrì’s is rather concise. They are insightful enough, however, so as to show that the usual practice when making a donation was relinquishing ownership of a plot of land so that it could be used as a place of burial, as indicated by legal literature on the issue. The common trait of this very rare jurisprudence is that it always deals with problems of usurpations or inappropriate use of cemeteries, which are by definition public spaces where private initiatives are not allowed. That is the case in a legal query dealing with a man who bought an esplanade ('arßa) placed near a graveyard and made it into a pious endowment for the burial of his sons and his 201
Ibn Ibn and 148, 203 See 204 See 205 Ibn 202
Óayyàn, al-Muqtabis (VII), p. 92 (trans. E. García Gómez, p. 115, p. 78). 'Abdùn, Risàla, pp. 216–217 and 238 (trans. E. García Gómez, pp. 94–97 no 52–54 and 149). M. Fierro, ‘El espacio de los muertos’, p. 171. M. Fierro, ‘El espacio de los muertos’, p. 164. Mughìth, al-Muqni', p. 327; al-Jazìrì, al-Maqßad, p. 288.
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relatives. Beside the esplanade there was a house whose owner decided to create a door facing in the same direction as the esplanade. The founder’s heirs rejected this action and made a case against him: in their opinion, the owner of the house had no right to pass over the graves of their relatives, because this would lead to changes and an alteration of the pious endowment (takarruri-ka bi-l-dukhùl wa-l-khurùj 'alay-hà tabdìl li-l-˙ubs wa-tagyìr la-hu). Several jurists answered this question, like the Maghribis Abì Bakr b. 'Abd al-Ra˙màn and Abù 'Imràn, both of them were against the owner of the house. The final answer is that of Ibn Sahl, who was of the same opinion and argued that such an action would be unlawful even if the 'arßa was merely private property, and much more so when made into a pious endowment, because these are specially protected.206 This is also shown by a query posed to Ibn Rushd from the district of Galera concerning a man who donated a plot so that it could be used to lay Muslims to rest. The dead were buried there for thirty years but, after that time, the donor decided to erect public baths (˙ammàm) on the site, vowing to hand the funds derived from its usufruct over to the main mosque. He operated the baths for ten years and did not make any payments to the mosque. Ibn Rushd ruled that, once the inviolability of the ˙ubs had been breached, the donor had no choice but to pull the baths down and hand the money earned during the last ten years over to the mosque.207 In a ruling issued immediately afterwards on a similar case he adds that if anyone is prepared to pay the donor the expenses incurred as a result of building the baths, then the latter will not be demolished but kept intact as a ˙ubs in the hands of the mosque, ‘as the 'ulamà" have declared the fact that a˙bàs can aid each other is a valid practice’.208 The donor will not be allowed to refuse this as this solution is not harmful to his interests. If he has obtained some usufruct from the baths, as in the first case, the construction costs will be deducted from the amount due to him.
206
Ibn Sahl, Dìwàn, II, pp. 1114–1117. See M. Fierro, ‘El espacio de los muertos’, p. 161. 207 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, III, pp. 1390–1391, no 499; ed. al-Tadjkànì, II, pp. 1239–1240, no 322; al-Wansharìsì, Mi'yàr, VII, p. 458 (trans. V. Lagardère, Histoire et société, p. 271, no 209; A. Mª Carballeira, Legados píos, 121–122). See M. Fierro, ‘El espacio de los muertos’, pp. 170–171. 208 Ibn Rushd, Kitàb al-fatàwà, III, ed. al-Talìlì, pp. 1391–1392, no 500; alTadjkànì, II, pp. 1240–1241, no 322; al-Wansharìsì, Mi'yàr, VII, p. 459.
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There is also a fatwà by Abù-l-Óasan 'Alì b. al-Ni'ma, issued at Valencia’s Friday mosque in 536 h/1141–42, concerning the case of a graveyard of which a part has been fenced off and turned into an orchard (˙à"i†). His opinion is that the erection of a fence is not permissible and, consequently, that all the trees planted on the plot must be felled and the enclosure pulled down. If the person responsible for this action can not be found, the building materials used to erect the fence will be confiscated and used to pay for the demolition. Otherwise, the expenses will be paid off by the treasury (bayt al-màl ) for on this issue there was disagreement among jurists. In either case, if there is still money after selling the materials used for building the fence, it will be employed for the upkeep of bridges, pathways or wells belonging to all Muslims as a ˙ubs.209 Another query posed to an unknown scholar considers the legality of turning a cemetery into land for cultivation, after forty years during which no one has been buried there, or of using land and stones scattered on the site for building purposes. The jurist replies that this action would be illegal, even if the aim was to erect a mosque or a bridge. It is not lawful either to sow anything on the land as this would be tantamount to altering and tampering with the ˙ubs. If the land has been tilled, a rent must be paid in return; the money thus raised will be used to purchase burial shrouds and tombstones for the poor.210 Christian documents also underline the existence of these donations in some villages of the Alpujarra: in Cádiar, Mecina and Bombarón (†à'a of Jubiles) and Mairena (†à'a of Ugíjar) there are references to habiz almacaber, for the upkeep of the graveyard.211 The slight influence of assets donated for this purpose revealed by Arabic sources is corroborated by the book of a˙bàs of beneficence from October 1503. The a˙bàs earmarked for tombs are linked to those funding ablutions halls or ‘dar alguado’ (dàr al-wu∂ù") and, between them, they only represent 0.28% of all of Granada’s endowments. Those used to purchase tombs are the least important as they amount only to 210 maravedís.212 209 Al-Wansharìsì, Mi'yàr, VII, pp. 234–235 (trans. V. Lagardère, Histoire et société, p. 274, no 221). 210 Al-Wansharìsì, Mi'yàr, VII, pp. 456–457 (trans. V. Lagardère, Histoire et société, p. 291, no 288). 211 Apud C. Trillo San José, La Alpujarra, p. 373. 212 P. Hernández Benito, La Vega, pp. 49 and 60 (Table IV).
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Donations in favour of Qur"ànic readers (al-muqri"), hired to pray at the tombs of those who left specific instructions in this respect, are closely linked to cemeteries. There are very few references to this type of donations both in the legal corpus213 and in Castilian documents. There are testimonies in the region of the Alpujarra involving the villages of Alguazta (†à'a of Poqueira), Darrical, Esqueriantes, Unduron, Mairena (†à'a of Ugíjar), Paterna (†à'a of Andarax) and Abtura (†à'a of Lúchar), although their importance in terms of volume is negligible compared to other aims (see Appendix V, Figures 3 and 5). The fact that fuqahà" were the main beneficiaries of this type of donations must be stressed once again. This is clearly underscored by a Castilian text from 1501–1502 issued in Andarax that alludes to ‘otras tierras e morales que agora diz que perteneçen a nos que en la dicha Andarax estauan diputadas para que con la renta dellas los alfaquíes rezasen el Alcoran sobre las sepolturas de los moros muertos’ [‘other lands and mulberry trees now belonging to us in Andarax so that with the rents obtained from their lease the fuqahà" could recite the Qur"àn on the tombs of dead Muslims’].214 A similar arrangement could be found in the villages of Abla—where there was a small field consisting of four marjales and known as Fadin Almatea which ‘solíanla gozar los alfaquíes porque hazian çierta memoria en sepulturas’ [‘usually enjoyed by the fuqahà" because they conducted some memorials at the tombs’]—and Abrucena (both in the province of Almería). In the latter, there was a small plot comprising three marjales ‘que la poseya el alfaquí de la rabita de Alcudia del dicho lugar de Labruçena por çierta memoria que hazia en çierta sepultura el domingo y el jueves de cada semana’ [‘owned by the faqìh of the ràbi†a of Alcudia located in the village of Abrucena because he conducted memorials on a certain tomb on Sunday and Thursday of every week’].215 But Qur"ànic readers could also do their work at mosques, as is the case of Faraj b. Óadìda (m. 480 h/1087), who was appointed by the 'abbàsid ruler of Seville al-Mu'tamid as muqri" of the mosque built by his mother and stipulated for him a salary from the a˙bàs.216
213 214 215 216
Al-Wansharìsì, Mi'yàr, VII, pp. 139, 149 and 228. Apud C. Trillo San José, La Alpujarra, pp. 372–373. Apud M. Espinar Moreno, ‘Bienes habices de Abla’, pp. 389 and 391. Al-Marràkushì, al-Dhayl, V/2, p. 539, no 1053.
CHAPTER SEVEN
THE ORGANISATION OF MOSQUES AND THE ROLE OF PIOUS ENDOWMENTS
1. Introduction The greater availability of data on assets donated in favour of mosques enables us to devote a specific chapter to this function, in contrast to the other ones hitherto analysed. The quantitative information available to us regarding the study of pious endowments in general is very scarce and, further, the data on specific periods and areas are insufficient. These documentary limitations notwithstanding, it can be stated that, on the whole, mosques were the main beneficiaries of pious endowments in al-Andalus, as it has been stated for Islamic classical societies in general.1 Investigating the upkeep and sources of income of mosques is, obviously, a daunting undertaking. There are hardly any studies on the topic. I will confine my contribution to a brief introduction to the subject and later focus on pious endowments in particular as one of the—albeit not the only—sources of funding of mosques.
2. Sources of income The mosque is the ideal venue to pray (ßalà), the second of the five ‘pillars’ of Islam after the profession of faith (shahàda). In this respect, Muslim jurists refer to it as ‘house of God’ (bayt Allàh).2 This notion is endorsed by some prophetic traditions which refer to it in similar
1
N.A. Stillman, ‘Waqf and the ideology of charity’, p. 368: ‘the most inmediate object of much waqf charity from a very early period of Islamic history has been the mosque’. 2 Ibn 'Abdùn, Risàla, p. 214; al-Wansharìsì, Mi'yàr, VII, p. 70 and 'Iyà∂, Madhàhib al-˙ukkàm, p. 304 (trans. D. Serrano, p. 491 and V. Lagardère, Histoire et société, p. 224, no 53); Mi'yàr, VII, p. 142 (trans. P. Guichard and V. Lagardère, ‘La vie sociale’, p. 222 and V. Lagardère, Histoire et société, p. 266, no 190), VII, p. 258 (trans. V. Lagardère, Histoire et société, p. 224, no 55).
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terms.3 In addition to this role, the mosque, especially the Friday mosque, performs other important functions of a political and social nature in Islamic medieval societies which I will not dwell on here. Considering this central role in all Islamic societies, it is hardly striking that the references available indicate the existence of an abundant number of mosques in al-Andalus, both in towns and in the countryside. Arabic sources are usually not very reliable with regard to the figures they present, as is the case of the Dhikr when it claims that there were 490 mosques in Córdoba under 'Abd alRa˙màn I (138–172 h/756–788) and 13,870 under Almanzor, 800 of which located in the suburb of Secunda.4 Less prone to exaggeration, the geographers al-'Udhrì (11th century) and al-Bakrì (11th century), later quoted by al-Óimyarì, agree that Córdoba had 491 mosques in the 5th/11th century.5 As for Seville, Arabic texts report that there were 26 mosques, including the two Friday mosques and neighbourhood mosques,6 although it is likely that there were many more. According to A. Jiménez, the total number could exceed one hundred, a much higher figure than the twenty suggested by J. Bosch, a number which does not include all those whose existence is confirmed by Arabic sources.7 More reliable is the information supplied by Castilian documents, upon which J. González based his conclusion that there were 72 mosques in Almohad Seville, many of them simple oratories of very small size.8 In the same period the book of repartimiento records 21 in Jerez,9 although there must have been more.10 In her study based 3 See Muslim, Ía˙ì˙, no 1070 and 4867; Abù Dàwud, Sunan, no 1243; Ibn Màjah, Sunan, no 221; al-Nawawì, Riyà∂ al-ßàli˙ìn, p. 440, no 1023 and p. 448, no 1054; A.J. Wensinck, Concordance, I, pp. 237, 275 and 366 and IV, p. 31. 4 Dhikr, t. I, pp. 33 and 116 (Arabic); II, pp. 40 and 124 (trans.). 5 Al-'Udhrì, Tarßì', p. 124; al-Bakrì, Kitàb al-masàlik, II, p. 901; al-Óimyarì, Kitàb al-raw∂ al-mi'†àr, pp. 189 (trans.) and 157 (Arabic). 6 R. Valencia Rodríguez, Sevilla musulmana hasta la caída del califato, Madrid, 1988, pp. 585–597. 7 A. Jiménez Martín, ‘Mezquitas de Sevilla’, in M. Valor Piechotta (ed.), El último siglo de la Sevilla islámica (1147–1248), Seville, 1995, pp. 149–160; J. Bosch Vilá, La Sevilla islámica (712–1248), pp. 256 and 261 (although he does not admit it, it is very likely that he borrowed the figure from M.M. Antuña, Sevilla y sus monumentos árabes, p. 123, note 2). 8 J. González, Repartimiento de Sevilla, I, pp. 534–541. 9 See M. González Jiménez and A. González Gómez, El libro del repartimiento de Jerez, pp. 14 (no 69), 21 (no 140), 24 (no 162), 39 (no 321 and 324), 40 (no 334 and 335), 53 (no 465), 61 (no 541), 83 (no 766), 84 (no 771), 96 (no 893 and 895), 97 (no 908 and 909), 98 (no 922), 103 (no 974), 104 (no 980 and 981), 108 (no 1019), 174 (no 1713), 175 (no 1728), 177 (no 1739), 179 (no 1767) and 184 (no 1813).
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on Granada’s books of habices of 1505 and 1527—published by Mª C. Villanueva Rico—Mª T. Martínez Pérez records ‘137 quotations on different oratories’ (mosques, ràbi†as and gimas),11 most of them of small size, fluctuating between 6.25m2 and 92.28m2. Even though the crucial role of pious endowments in contributing to the upkeep of mosques in al-Andalus is indisputable, it is also clear that the entire funding system did not rely on the existence of ˙ubs assets since there were alternative sources of income; resorting to one or another depended on variable circumstances. The available data on the issue are almost invariably found in legal texts. They must be complemented by the succinct but nonetheless valuable references supplied by Ibn 'Abdùn. Biographical dictionaries, however, which reflect the conditions prevalent in urban centres, hardly provide any information on the subject. This is not surprising if one considers the quasi-telegraphic manner in which information is presented on most occasions. Ibn 'Abdùn’s Risàla is perhaps the source that best reflects the variety of sources of funding available to mosques. The people in charge of the upkeep of the Friday mosque of Ibn 'Adabbas in Seville (road-sweeper, lighting attendant, water carrier and well-digger) received a salary that was drawn from the proceeds generated by the a˙bàs allocated to the temple. As for the faqìh who must have been based in the galleries of the building in order to indoctrinate the faithful in matters of religion, Ibn 'Abdùn reports that the qà∂ì would apportion wages to him extracted from the heirlooms of ‘absentees’ or donations made as alms-giving’. The qà∂ì himself must also arrange for a salary—taken from the Public Treasury (bayt al-màl )— to be allocated to the imàm who visited the jail to lead the prayers of those incarcerated there. The expression employed by Ibn 'Abdùn suggests that the other imàms, those based in Friday mosques, also received a salary from the public treasury (see infra). Craftsmen and merchants had to pay the town crier (mundhir), hired to remind them of the times to perform canonical prayers, out of their own pockets. These references show, apart from the receipt of a salary in return for performing these duties, the diversity of sources where funds came from. In other cases, however, Ibn 'Abdùn indicates the 10 See P. Fernández, ‘Datos sobre la ciudad islámica de Jerez en el libro de Repartimiento’, Al-Qan†ara, VIII (1987), p. 129. 11 ‘Las mezquitas de Granada en los libros de habices’, pp. 231 and 233.
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condition of salaried (ràtib) men but not the source of the remuneration, like in the case of the builder and the muezzin based at the gate where funeral prayers were held. Similarly, when referring to the imàms and muezzins of the Friday mosque he does not report the payment of salaries, although, in the case of the former, we can assume that remunerations came from funds of the Public Treasury (bayt al-màl ) (see infra). 2.1. Needs: upkeep and personnel Mosques had two kinds of basic needs, as shown in the previous analysis. One of these, which can be regarded as primary needs, includes repair expenses and expenditures as a result of architectural reconstruction of the building and those derived from the acquisition of materials employed at the mosque comprising prayer mats (˙ußur) to cover the floors and lighting oil. The custom of praying on a carpet or mat stems, according to the Sunna, from the practice of Mu˙ammad himself and it seems to have been a rule regularly followed in al-Andalus. As for the need to have some sort of lighting, it is the result of holding the evening prayer (ßalàt al-maghrib) after sunset and the nightly one (ßalàt al-'ishà"), as well as others, depending on local needs and customs. Consumption of lighting oil depended, naturally, on the size and importance of the mosque. Thus, according to al-Idrìsì, Córdoba’s main mosque had 113 chandeliers (thurayyà) of which the largest one held a thousand lamps (mißbà˙) and the smallest twelve.12 Expenditures created by paying the wages of caretakers (khadama) employed at the mosque would have to be included in this section, like those mentioned by Ibn 'Abdùn (see above). Additionally, the financial needs resulting from paying the salaries of the personnel in charge of worship duties, the imàm, the muezzin and, occasionally, the preacher (kha†ìb) must be included. An issue that must be addressed regarding the latter is whether it is lawful to receive remuneration in return for performing religious duties. In spite of its highly professionalised character, the notion of receiving remuneration for performing worship-related duties was always frowned upon since, from a purist’s perspective, it was regarded as obtaining gain from some-
12
Al-Idrìsì, Nuzhat al-mushtàq, p. 208 (Arabic) and 258 (trans.).
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thing that, apart from being a compulsory requirement for all the umma, is also a holy duty. This also helps to explain why the material needs of the mosque, both connected to building work and repairs, were usually considered by the jurists as more important than the payment of salaries for those responsible for worship functions, namely imàm, muezzin and kha†ìb (see infra). There is a difference of opinion in the Màlikì school about the perception of salaries or remuneration in return for liturgical and religious duties. Ibn al-'Arabì from Seville (d. 545 h/1149) points out that early scholars did not approve of the fact that a salary was paid for performing religious duties ('ibàdàt), such as washing a corpse and interring it, calling to prayer, performing Rama∂àn prayers (taràwì˙) and teaching the Qur"àn and Islamic law.13 ‘To receive a salary for carrying out those tasks’, he states, ‘is tantamount to substituting earthly life for everlasting life’ (akhdh shay" 'alay-hà istibdàl bi-l-dunyà 'an al-àkhira).14 Other jurists are less disapproving. Ibn al-Makwì maintains in a fatwà that receiving a salary for reciting a section ( juz") of the Qur"àn is an objectionable action (makrùha), but not unlawful (˙aràm).15 Ibn Rushd the ‘grandson’ (Averroes), for his part, testifies to the existence of disagreements over the possibility of hiring muezzins.16 Several fatàwà by Maghribi scholars evince the refusal to endorse, on moral grounds, the payment of such remuneration. In one of them whose authorship has not been established (al-Qàbisì?), the jurist says, on the issue of children’s education at mosques, that they are not suitable places to earn a living (li-yatakassaba fì-hà al-arzàq).17 More closely connected to the issue of earning a salary, Abù Mùsà 'Ìsà b. Mu˙ammad b. al-Imàm al-Tilimsànì (13th–14th centuries) relates that opinions on the matter differ but he later maintains that the function of imàm is so highly regarded that it must not be tarnished
13 In the formulary designed to record the hiring of a teacher (mu"addib) to teach the Qur"àn to a child, al-Jazìrì, al-Maqßad, p. 242, remarks that Màlik regarded it objectionable that a salary (ujra) was paid in return for teaching fiqh, grammar (na˙w) and inheritance regulations ( farà"i∂ ), as well as selling books on those disciplines. 14 Al-Wansharìsì, Mi'yàr, I, p. 279 (trans. ‘E. Amar, La pierre’, XII, p. 55). 15 Al-Wansharìsì, Mi'yàr, VIII, p. 260 (trans. V. Lagardère, Histoire et société, p. 351, no 262). 16 Bidàya, II, p. 343 (trans. A.K. Nyazee, II, p. 268). 17 Al-Wansharìsì, Mi'yàr, VII, p. 36 (trans. V. Lagardère, Histoire et société, p. 213, no 12).
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by mundane arguments over money (manßib al-imàma 'aΩìm yajib an yajilla 'an mahànat al-ujra).18 The same view is expressed in a fatwà by Qàsim al-'Uqbànì (d. 830 h/1427)19 concerning the case of a tribe (qabìla) which decided to hire an imàm and apportion to him half of the a˙bàs held by their mosque. In his response, al-'Uqbànì opines that this is lawful provided that the administrator (qayyim) of the mosque deems it necessary and no one volunteers to act as prayer leader for free or, if one does, the latter is thought of as disreputable. Similarly, he points out in another fatwà that the ‘imàm who receives no salary is better and more perfect’ (al-imàm bi-ghayr ajr af∂al wa-akmal ).20 Abù-l-Óasan al-Íaghìr (d. 719 h/1319) alludes to this issue when he recalls that ‘existing disagreements over the payment of a salary in return for acting as imàm are well known’ (alijàra 'alà-l-imàma ma'lùm mà fì-hà min al-khilàf ).21 These considerations notwithstanding, and in consonance with the prevailing professionalism, however, receiving remuneration is the most common situation in practical life. It was even legally endorsed as Andalusians adopted Ibn 'Abd al-Óakam’s opinion in this respect. It was, in fact, one of the eighteen issues on which they differed from Ibn al-Qàsim’s views.22 The lawfulness of receiving a salary is corroborated by several texts, both from Eastern and Andalusian authors. Thus, al-Màwardì states, for instance, that it is legal to receive a salary—paid for by the public treasury—in return for performing the duties of imàm and calling to prayer at state mosques.23 Unfortunately, this is the only occasion when he refers to the issue of paying for these functions as he does not allude to popular mosques nor to the imamate during Friday prayers. In the sections on fiqh in the formularies drawn up to hire imàms, Ibn Mughìth and al-Jazìrì make some remarks on the issue. With regards to the lawfulness of receiving a salary in return for per-
18 Al-Wansharìsì, Mi'yàr, VII, p. 475 (trans. V. Lagardère, Histoire et société, p. 224, no 56). 19 Al-Wansharìsì, Mi'yàr, VII, pp. 478–479 (trans. V. Lagardère, Histoire et société, p. 226, no 62). 20 Al-Wansharìsì, Mi'yàr, VII, p. 139. 21 Al-Wansharìsì, Mi'yàr, VII, p. 332 (trans. V. Lagardère, Histoire et société, p. 230, no 79). 22 See A. Carmona González, ‘Las diferencias entre la jurisprudencia andalusí y el resto de la escuela de Màlik: el texto atribuido a Abù Is˙àq al-Garna†ì’, AlQan†ara, XIX/1 (1998), pp. 83–84. 23 Al-Màwardì, al-A˙kàm al-sul†àniyya, p. 129 (trans. E. Fagnan, p. 214).
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forming prescribed prayers only, Ibn Mughìth asserts that this action is frowned upon by Ibn al-Qàsim and Mu†arrif whereas it is condoned by Ashhab in the case where no one volunteers to carry out this duty for free. As for the act of accepting remuneration in return for leading the prayers specific to the month of Rama∂àn, he indicates that there are several versions as to which stance Màlik took on the issue. He concludes nonetheless that legal practice regards this as lawful.24 Al-Jazìrì, for his part, includes a shorter legal commentary on the topic and confines his intervention to remarking that this contract is lawful when it specifies all the tasks required at the mosque (cleaning, upkeep, liturgical duties) but reprehensible, however, if it is only drawn to lead communal prayers. He also indicates that Ibn 'Abd al-Óakam and Ashhab regard it as licit whereas Ibn Óabìb proscribes it.25 Regardless of these legal disagreements, however, it is undeniable that the mere existence of these formularies reflects a prevailing contractual practice whereby the imàm is paid a salary in return for performing specific tasks at the mosque, among them those related to prayers. Ibn Rushd considers the act of receiving a salary in exchange for teaching the Qur"àn as lawful26 and none of his or other Andalusian scholars’ fatàwà is opposed to this practice to pay those performing the functions of imàm, muezzin or any other associated with liturgical activities. He believes, on the contrary, that, as essential elements in carrying out those functions, they are entitled to receive a salary in return. Consequently, whenever he mentions a charge linked to liturgical duties Ibn 'Abdùn stresses his condition as ‘waged’ (ràtib). Perhaps the clearest indication of the glaring gap between the polemic over paying a material remuneration in exchange for performing religious or liturgical duties and reality is that involving the payment of revenues from a˙bàs to imàm s and muezzins. Andalusian fuqahà" do not regard this practice as unlawful or illegitimate at all; on the contrary, they endorse it wholeheartedly. Al-Saraqustì asserts that the imanate is a legal function (waΩìf shar'ì)27 and authors like
24
Ibn Mughìth, al-Muqni', p. 203. Al-Jazìrì, al-Maqßad, p. 243. 26 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, I, pp. 211–212, no 33; ed. al-Tajkànì, I, pp. 182–183, no 33; al-Wansharìsì, Mi'yàr, VIII, pp. 252–253. 27 Al-Wansharìsì, Mi'yàr, VII, p. 122 (trans. V. Lagardère, Histoire et société, pp. 264–265, no 184). 25
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Ibn ManΩùr or Ibn Lubb often state that the imàm is one of the essential elements (maßàli˙) of any mosque and is thus authorised to benefit from their revenues.28 Some scholars, nonetheless, believe that not all functions associated with a mosque should be remunerated with funds drawn from its pious endowments. Al-Saraqus†ì expresses this opinion in an aforementioned fatwà where he restricts the use of those revenues to so-called ‘basic needs’ (maßàli˙ ∂arùriya):29 If a new religious charge is created at the mosque and the former does not fulfil a basic need, such as a post as a teacher (mudarris), his holder is not entitled to benefit from its a˙bàs; if, on the contrary, it constitutes a basic need, such as in the case of the mosque becoming a Friday mosque, the imàm will then be entitled to receive a payment out of the a˙bàs in return for performing the khu†ba.
2.2. The role of the state Among the functions of any Muslim state is implementing policies to promote Islam. That entails the erection and upkeep of mosques by paying the salaries of the people in charge of worship functions and those taking care of the upkeep. Referring to religious functions (umùr dìniyya), among which he mentions the qà∂ìship, the issuing of fatàwà, teaching, leading prayers, giving the sermon and the call to prayer, Ibn Khaldùn states that it was usually the ruler (ßà˙ib al-dawla) who was responsible for paying the wages of those entrusted with the above.30 The chronicles sometimes include references to the payment of salaries by the ruler from treasury funds. Thus, in his ‘Memoirs’, the Zirid emir 'Abdallàh relates that his grandfather Bàdìs b. Óabbùs (429–465 h/1038–1073) ‘apportioned excellent wages to the fuqahà" and Qur"àn-reciters of Malaga, an action for which he became renowned everywhere since the former had been impecunious and living in penury hitherto’.31 Although he does not specify that those salaries were drawn from the Public Treasury (bayt al-màl ), it is likely that that was the case.
28 Al-Wansharìsì, Mi'yàr, VII, p. 123, VII, p. 127, VII, pp. 159–160 (trans. V. Lagardère, Histoire et société, p. 290, no 280), VII, p. 165, VII, pp. 201 and 259 (trans. E. Amar, ‘La pierre’, XIII, pp. 381–382). 29 Al-Wansharìsì, Mi'yàr, VII, p. 122 (trans. V. Lagardère, Histoire et société, pp. 264–265, no 184). 30 Al-Muqaddima, V–7, pp. 435–436 (trans. J. Feres, p. 693). 31 'Abdallàh, Tibyàn, p. 89 (trans. E. García Gómez, p. 137).
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Ibn 'Abdùn’s Risàla also provides information on the topic, albeit in a rather oblique fashion. Firstly, when referring to the imàms of Seville’s Friday mosque he does not mention how they were remunerated. He does indicate, however, the need to employ a salaried imàm (ràtib) who can visit the jails at the prescribed hours and lead the prisoners in their prayers. If that were the case, he asserts, the qà∂ì should assign a salary to the imàm drawn from Public Treasury funds ( yaq†a' la-hu al-qà∂ì ujra ma'a-l-a"imma min bayt al-màl).32 Regardless of the intrinsic interest of this information, whose meaning is clear, the expression used by Ibn 'Abdùn seems to indicate that the other imàms, that is probably those employed at the Friday mosque, also received salaries drawn from the bayt al-màl. This is merely an interpretative hypothesis as the text is not explicit enough. This hypothesis gains credence if we consider the fact that, when talking about the imàms of the Friday mosque, Ibn 'Abdùn does not refer to the payment of salaries from pious endowments’ revenues. It would be reasonable to assume then that their remunerations—which doubtless were paid to them—came from the bayt al-màl. Other references to the role of the Public Treasury in the funding of mosques are found in jurisprudence. One of them is alMawwàq’s response to a query involving a mosque in possession of endowments for specific purposes (a˙bàs mu'ayyana). The villagers wonder whether in order to repair the mosque walls funds can be drawn from revenues generated by assets donated for other purposes or, on the contrary, they must pay for the costs themselves. Al-Mawwàq’s view is that those assets must be employed in the purpose for which they were donated, thus fulfilling the donor’s will, whereas undertakings not funded by pious endowments must be funded by the state through the public treasury. Were the Public Treasury to be depleted of readily available revenues, then the need becomes a collective duty ( far∂ kifàya) that the whole community ( jamà'a) must undertake through some of its members.33 We also have access to a fatwà issued by Abù 'Umar b. ManΩùr about a mosque equipped with a hall where children learn the Qur"àn under the guidance of
32 Ibn 'Abdùn, Risàla, p. 209 (trans. E. García Gómez, p. 77, no 29—he translates bayt al-màl as ‘treasure of pious foundations’. See the discussion on this issue in Chapter 9). 33 Al-Wansharìsì, Mi'yàr, VII, p. 135.
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a teacher—seemingly the muezzin himself—who receives two dirhams a day in return, remuneration assigned to him by the sultan.34 Conversely, when Abù Is˙àq al-Shà†ibì is asked whether ˙ubs assets can be used in order to increase the salaries paid by mosques, he retorts that no text exists on the possibility of resorting to funds from the bayt al-màl to make that pay rise possible, whilst using pious endowments for this purpose will depend on the type of donation involved, that is whether it is devoted to a specific aim or its purpose is unknown (see infra).35 On a different occasion, however, he is approached by the scholar Abù 'Abdallah al-Óaffàr who enquires about a pay rise funded by the bayt al-màl and he replies that the increase is lawful if the employee deserves it because of his hard work and the amount he asks for seems reasonable. If that is not the case, he says, it is an issue on which differing opinions can be found among jurists.36 The petitioner then addresses al-Sha†ibì again recalling that he has had a pay rise like the one he is referring to for the last thirty years and he is not sure about how to proceed. On this occasion, the response places the issue on a moral ground as he replies that no one can force him to return the amount he has legitimately earned; it is up to him to decide what to do as his honour and probity are at stake and he will have to explain his actions on Judgement Day. He also indicates that the fact that the community of the faithful regards the acceptance of money as lawful is irrelevant; the individual whose reputation is at stake must turn a blind eye as only he is ultimately accountable for his actions.37 Ibn Juzayy, at the end of the brief chapter devoted to the a˙bàs in his al-Qawànìn al-fiqhiyya, states that a ˙ubs property must be returned to its original state by forking out from one’s own monies if necessary. If the latter is insolvent the bayt al-màl must reimburse the money. A horse set as ˙ubs, moreover, must be foraged with funds from the Public Treasury.38
34
Al-Wansharìsì, Mi'yàr, VII, p. 156 (trans. V. Lagardère, Histoire et société, p. 285, no 258). 35 Al-Wansharìsì, Mi'yàr, VII, p. 101 (trans. J. López Ortiz, ‘Fatwas granadinas’, pp. 120–122, V. Lagardère, Histoire et société, p. 281, no 247). 36 Al-Wansharìsì, Mi'yàr, VII, p. 110 (trans. V. Lagardère, Histoire et société, p. 283, no 251). 37 Al-Wansharìsì, Mi'yàr, VII, pp. 110–111. 38 Ibn Juzayy, al-Qawànìn al-fiqhiyya, p. 377.
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The possibility that the salaries of those in charge of worship may be paid with funds drawn from the Public Treasury leads us to consider the relationship between those who hold such positions and the state. Although none of the worship functions constitute state offices (khu†a†), the state’s direct intervention in the above cases certainly sets a parallel between liturgical attendants and other functionaries, as a result both of the source of their income and of the fact that such functions are not only liturgical but also play a vital role in preserving social and political stability. P. Guichard resorts to the term appareil de l’Islam in regard to this. The expression, coined by P. Nwyia, is used to designate the integral parts of Andalusian Islamic State organisation which also comprises the personnel in charge of performing worship and cultural duties.39 The founding of pious endowments in favour of mosques was also common practice among Islamic rulers when they wished to cultivate a pious image or reputation, as in the case of charitable donations in favour of the poor. We do not have a great deal of information about this kind of donations in al-Andalus. Arabic sources provide a few examples of how this practice was developed by the Córdoban emirs and caliphs and, in chapter III, we dealt with the the donations made by 'Ajab and Mut"a, two of the favourite concubines of the emir al-Óakam I (180–206 h/796–822), the emir 'Abd al-Ra˙màn II and his female slaves.40 We know also the case of a faddàn which was supposed to come from public lands (ar∂ al-jizya) and donated by fatà ˇarìf in favour of his mosque in the village of ˇurrijìla.41 Similarly, there is the case of the fatà Zuhayr who, during his rule of the Taifa of Almería between 419–429 h/1028–1038, enlarged the main mosque of the city and turned the fanàdiq and shops placed around it into pious endowments.42 2.3. The rural communities Alongside the information available on urban centres, a considerable percentage of the jurisprudence on mosques deals specifically with 39
P. Guichard, Les musulmans de Valence, pp. 23, 246, 334–335 and 340. Ibn Óayyàn, al-Muqtabis (II–1), p. 93; Dhikr, I, p. 142 and II, p. 151; alGhassànì, Ri˙la, p. 24 (trans.) and p. 20 (Arabic text). 41 Ibn Sahl, Dìwàn, II, p. 1119–1120. 42 Al-'Udhrì, Tarßì', p. 83; trans. M. Sánchez Martínez, p. 39. See also J. Lirola Delgado, Almería andalusí y su territorio, pp. 26–27. 40
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the rural milieu, both with fortresses (˙ißn, pl. ˙ußùn)43 and mainly with villages (qarya, pl. qurà).44 The context often reveals that we are dealing with a case stemming from a peasant milieu, even though the text does not make it explicit by using terms like qarya or ˙ißn. This jurisprudence shows the existence, in the rural milieu, of two modalities of hiring an imàm: with funds drawn from a˙bàs at the mosque’s disposal or through individual contributions by the members of the community. I mentioned previously the fatwà where al-
43 Al-Wansharìsì, Mi'yàr, VII, pp. 64, 218 and 424–425 (trans. E. Amar, ‘La pierre’, XIII, p. 362 and V. Lagardère, Histoire et société, p. 258, no 164), VII, pp. 119–120 (trans. V. Lagardère, Campagnes, p. 130 and V. Lagardère, Histoire et société, p. 260, no 168), VII, pp. 122–123, VII, p. 127 (trans. V. Lagardère, Histoire et société, p. 287, no 266), VII, p. 132 (trans. V. Lagardère, Histoire et société, p. 287, no 269), VII, p. 133, VII, pp. 137–138 (trans. V. Lagardère, Histoire et société, p. 260, no 170), VII, p. 139 (trans. V. Lagardère, Histoire et société, p. 265, no 186), VII, p. 140, VII, p. 151 (trans. V. Lagardère, Histoire et société, p. 278, no 236), VII, p. 477 (trans. V. Lagardère, Histoire et société, p. 263, no 180). 44 Ibn Sahl, Dìwàn, II, pp. 1119–1120; al-Wansharìsì, Mi'yàr, I, pp. 149–150 and VIII, pp. 368–369 (trans. E. Amar, ‘La pierre’, XII, p. 67 and V. Lagardère, Campagnes, pp. 171–172 and V. Lagardère, Histoire et société, p. 369, no 350), I, pp. 162–163 (trans. V. Lagardère, Histoire et société, p. 58, no 213), VII, pp. 64–65 and IX, p. 399 (trans. V. Lagardère, Histoire et société, pp. 405–406, no 136; A. Mª Carballeira, Legados píos, 95), VII, pp. 70–71 and 'Iyà∂, Madhàhib al-˙ukkàm, pp. 304–305 (trans. D. Serrano, p. 491 and V. Lagardère, ‘La haute judicature’, p. 184 and V. Lagardère, Histoire et société, p. 274, no 222), Mi'yàr, VII, pp. 89–91 (trans. V. Lagardère, Histoire et société, p. 279, no 237), VII, pp. 113–114 (trans. V. Lagardère, Histoire et société, p. 277, no 232), VII, p. 123 (trans. V. Lagardère, ‘Structures étatiques’, p. 79 and V. Lagardère, Histoire et société, p. 284, no 254), VII, pp. 123–124 (trans. V. Lagardère, ‘Droit des eaux’, p. 117 and V. Lagardère, Histoire et société, p. 284, no 255), VII, pp. 134–135, VII, pp. 138–139 (trans. V. Lagardère, Histoire et société, p. 265, no 185), VII, p. 142 (trans. P. Guichard and V. Lagardère, ‘La vie sociale’, p. 222, V. Lagardère, Histoire et société, p. 266, no 190), VII, p. 143 (trans. V. Lagardère, Histoire et société, p. 266, no 191), VII, pp. 143–144 (trans. V. Lagardère, Histoire et société, pp. 266–267, no 193), VII, p. 147 (trans. V. Lagardère, Histoire et société, p. 285, no 257), VII, pp. 148–149 (trans. V. Lagardère, Histoire et société, pp. 288–289, no 273), VII, p. 152 (trans. V. Lagardère, Histoire et société, p. 276, no 227), VII, p. 153 (trans. P. Guichard and V. Lagardère, ‘La vie sociale’, p. 221 and V. Lagardère, Histoire et société, p. 261, no 172 and M.I. Calero, ‘Comares’, p. 938), VII, pp. 153–154 (trans. V. Lagardère, Histoire et société, p. 261, no 173 and M.I. Calero, ‘Comares’, p. 939), VII, p. 154 (trans. V. Lagardère, Histoire et société, p. 261, no 174), VII, p. 158, VII, pp. 158–159 (trans. V. Lagardère, Histoire et société, pp. 285–286, no 260), VII, p. 162 (trans. V. Lagardère, Histoire et société, p. 268, no 198 and M.I. Calero, ‘Comares’, p. 939), VII, p. 164, VII, pp. 164–165, VII, p. 165 (trans. E. Amar, ‘La pierre’, XIII, p. 363), VII, pp. 332–333 (trans. V. Lagardère, Histoire et société, p. 230, no 79), VII, p. 452 and Ibn Rushd, Kitàb al- fatàwà, ed. al-Talìlì, I, pp. 320–322, no 70 and ed. al-Tajkànì, I, pp. 256–258, no 65 (trans. V. Lagardère, ‘La haute judicature’, p. 164, ‘Abù l-Walìd b. Ru“d’, p. 215, Histoire et société, pp. 270–271, no 208); al-Sha'bì, al-A˙kàm, pp. 152–154, no 196.
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Óaffàr maintains that the appointment of the muezzin and ‘other necessary offices linked to religion, learning and knowledge’ rests upon the community ( jamà'at al-masjid) provided that their designation is made in accordance with the rules of law. It is necessary therefore to determine what led to the use of one or the other system. The analysis of the texts reveals that there was no single deciding factor but rather multiple elements likely to operate in one way or another; this also gave rise to a significant range of situations. If the mosque had access to pious endowments, the most frequent instance, it fell upon it to provide the necessary funds to hire an imàm. The purpose for which the assets were donated must also be taken into account, however, as the former could be generic ('alà maßàli˙ al-masjid) or it could apply to assets specifically earmarked for some of the usual charitable aims (a˙bàs mu'ayyana) such as paying for expenses incurred as a result of repair works, prayer mats and lighting oil or the salaries of ancillary personnel. In this respect, when asked whether it is lawful or not to assign a salary to the imàm drawn from the revenues generated by the ˙ubs, even in the case where the villagers are well off (aghniyà") enough to pay for their imàm themselves, al-Saraqus†ì believes that if the assets at stake were donated for charitable deeds in a broad sense ('alà maßàli˙ al-masjid mu†laqan min ghayr takhßìß) not expressly devoted to a particular purpose, and the expenses derived from lighting and purchasing prayer mats have been covered, it is then licit for the imàm to receive part of the revenues produced by those assets ( jàza an yu'†à al-imàm min fà"idi-hà 'alà-l-ijtihàd ).45 The contractual character of the arrangement between the imàm and the community is revealed by the terminology employed in legal queries as the texts usually use the verbal forms ittafaqa46 or iltazama.47
45 Al-Wansharìsì, Mi'yàr, VII, pp. 138–139 (trans. V. Lagardère, Histoire et société, p. 265, no 185). 46 Al-Wansharìsì, Mi'yàr, VII, pp. 122–123, VII, p. 132 (trans. V. Lagardère, Histoire et société, 287, no 268), VII, p. 147 (trans. V. Lagardère, Histoire et société, p. 285, no 257), VII, pp. 158–159 (trans. V. Lagardère, Histoire et société, pp. 285–286, no 160), VII, p. 164, VII, pp. 164–165. 47 Al-Wansharìsì, Mi'yàr, VII, pp. 70–71 and 'Iyà∂, Madhàhib al-˙ukkàm, pp. 304–305 (trans. D. Serrano, p. 490, V. Lagardère, ‘La haute judicature’, p. 184 and Histoire et société, p. 274, no 222), Mi'yàr, VII, pp. 113–114 (trans. V. Lagardère, Histoire et société, p. 277, no 230), VII, pp. 114–115 (trans. V. Lagardère, Histoire et société, p. 277, no 232), VII, p. 132 (trans. V. Lagardère, Histoire et société, p. 287, no 268).
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In most cases, that agreement is based on the apportioning of a ‘fixed salary’ (ujra ma'lùma) which is first documented in a case addressed to Abù 'Abdallàh Mu˙ammad b. ManΩùr. Alongside the fixed salary, the community ( jamà'a) pledged to till some lands on behalf of the imàm, providing the seeds and handing over to him the revenues generated by a vineyard.48 Sometimes the agreement included some special clauses such as those mentioned in a question addressed to Abù 'Umar b. ManΩùr. In it, the imàm agrees with the local villagers on an annual fixed salary, a portion of which will be paid in return for performing the ishfà' prayers during Rama∂àn.49 On occasions, the agreement is more specific and restricts the duties of the imàm to performing the prayers during the holy month of Rama∂àn.50 The imàm was usually hired for a year, a period already stipulated in Ibn Mughìth’s aforementioned formulary for recruiting imàms (see supra) as well as in several legal queries.51 In one of them Ibn ManΩùr shows that legal scholars, alluding to those destined to act as imàms, usually draw up one year contracts in rural communities (al-'adà fì-l-ghàlib anna ittifàq al-fuqahà" fì-l-bawàdì li-'àm).52 Biographical dictionaries report cases, however, where the incumbent remains in office for quite a long time.53 Some legal questions reveal the existence of certain individuals’ reluctance to fork out their share of the wages agreed between the community and the imàm for different reasons. Thus, Ibn al-Óàjj is asked to rule on the case of four member of the community who refused to deliver their share because they only returned to the village after dusk and left at dawn so that they did not have any opportunity to perform their prayers with the imàm. The answer was that
48 Al-Wansharìsì, Mi'yàr, VII, p. 147 (trans. V. Lagardère, Histoire et société, p. 285, no 257). 49 Al-Wansharìsì, Mi'yàr, VII, pp. 158–159 (trans. V. Lagardère, Histoire et société, pp. 285–286, no 260). 50 Al-Wansharìsì, Mi'yàr, VII, p. 113 (trans. V. Lagardère, Histoire et société, p. 277, no 230). 51 Al-Wansharìsì, Mi'yàr, VII, pp. 113–114 (trans. V. Lagardère, Histoire et société, p. 277, no 230), VII, p. 147 (trans. V. Lagardère, Histoire et société, p. 285, no 257), VII, pp. 158–159 (trans. V. Lagardère, Histoire et société, pp. 285–286, no 260). 52 Al-Wansharìsì, Mi'yàr, VII, p. 123. 53 Ibn al-Fara∂ì, Ta'rìkh, I, p. 68 (no 185), I, p. 266 (no 682), I, p. 340 (no 877), I, p. 375 (no 979), II, p. 11 (no 1112), II, p. 110 (no 1392), II, p. 182 (no 1569) and II, p. 204 (no 1626).
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if those men agreed to pay for his salary together with their neighbours, or it is customary ('urf ) that everyone contributes, they are then obliged to pay their share out of solidarity with the other members of the rural community. If this is not the local custom, however, or they did not agree to this arrangement, they are not bound to make any payments because ‘attending communal prayers is only a custom’ (shuhùd al-ßalà fì-l-jamà'a sunna). They will have to make a contribution, nonetheless, towards paying for duties carried out during Friday prayers as attendance at the latter is compulsory ( far∂ ).54 A similar case is tackled by 'Iyà∂. It involves a number of shepherds, all residents of the village, who refused to pay their share on the grounds that they spent many days away from it so that they seldom performed their prayers under the leadership of the imàm alongside the other villagers. His response is that all villages must have a mosque and prayers must be conducted there (iqàmat sharà"i' wàjiba 'alay-him wa-'alà kulli qarya iqàmat al-masjid wa-l-jamà'a). As for the shepherds, they will only be compelled to pay their share of the imàm’s wages if they perform their prayers at the mosque whereas if they do otherwise it will fall upon the other villagers to pay for his emoluments regardless of whether they visit the mosque or not given their status as permanent residents.55 A different view is held by Ibn Fatù˙ in a similar legal query concerning a group of villagers who agreed to pay an imàm a fixed salary (ijàra ma'lùma). Each was to pay an equal share but three of them refused to do so for unknown reasons. Ibn Fatuh believes that they must contribute because appointing an imàm is an obligation (iqàmat imàm wàjiba 'alay-him). Al-Saraqus†ì, on the contrary, maintains that only someone who has agreed willingly is bound to help pay an imàm’s wages (ujrat al-imàm là tajib illà 'alà man awjaba-hà 'alà nafsi-hi wa-iltazama-hà).56 Some cases reveal that the community, either because of lack of means to hire someone or simply in order not to incur the onerous expenses that this might lead to, sometimes tried to reach an agreement 54
Al-Wansharìsì, Mi'yàr, VII, p. 473 (trans. A. Mª Carballeira, Legados píos, 80). 'Iyà∂, Madhàhib al-˙ukkàm, pp. 304–305 (trans. D. Serrano, pp. 490–491); al-Wansharìsì, Mi'yàr, VII, pp. 70–71 (trans. V. Lagardère, ‘La haute judicature’, p. 184 and Histoire et société, p. 274, no 222). 56 Al-Wansharìsì, Mi'yàr, I, p. 156 (trans. E. Amar, ‘La pierre’, XII, p. 66; J. López Ortiz, ‘Fatwas granadinas’, p. 123; V. Lagardère, Histoire et société, p. 61, no 225 and p. 67, no 261). 55
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with the imàm based on the assets available to the mosque rather than supporting the arrangement financially itself. In some cases the administrator of the mosque’s assets refused to fund the agreement drawn by the community with its own income. This can be seen in a legal question addressed to al-Saraqus†ì regarding an imàm who reached an agreement with the dwellers of a village (ahl al-qarya) and imposed on them the condition that a beast was to be handed over to him to be ritually sacrificed (u∂˙iyya). When the villagers sought to honour this compromise and take an animal from those established as a˙bàs for the mosque, the nàΩir refused. The faqìh’s ruling is that the villagers are only authorised to take a cow from the mosque’s endowments in order to hand it over to the imàm if the former had been donated without specifying a particular charitable purpose (min ghayr ta'yìn 'alà wajh makhßùß) and provided that the mosque did not have more pressing needs such as undertaking repair works or purchasing prayer mats.57 In another similar case, the community ( jamà'at al-masjid ) requested that a salary for the imàm or the muezzin be drawn from an endowment donated for the purpose of financing building work and the purchase of prayer mats and oil. Al-Saraqus†ì snubs this request, arguing that the ˙ubs can only be used for the purpose selected by the donor (là yußraf fì ghayr al-maßrif alladhì 'ayyana-hu mu˙abbisu-hu la-hu).58 Conversely, there are two very similar legal queries in which the community reaches an agreement with the imàm in exchange for a salary drawn from the revenues produced by the assets owned by the mosque; the jurist ruling on both cases does not object to this arrangement. The first is dealt with by Ibn ManΩùr and involves the case of an imàm who agreed to lead the inhabitants of a town in their prayers in return for remuneration (taqwiya); the latter was not thought of as a salary but, rather, as a charitable donation ('alà wajh al-i˙sàn là 'alà wajh al-ijàra).59 The second was addressed to al-Mawwàq and closely resembles the previous one, even in the kind of vocabulary they both employ. In this particular case, the community also agrees to hand the imàm remuneration (taqwiya), drawn from the surplus revenues available to the mosque rather than from their own
57
Al-Wansharìsì, Mi'yàr, VII, p. 164. Al-Wansharìsì, Mi'yàr, VII, pp. 160 and 162 (trans. E. Amar, ‘La pierre’, XIII, p. 338). 59 Al-Wansharìsì, Mi'yàr, VII, p. 122. 58
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pockets (laysa min anfusi-him illà min wafr al-masjid mimmà fa∂ala 'alayhi ).60 I will conclude this section by recalling an undoubtedly unique case, albeit one that sheds light on the range of situations likely to emerge regarding the funding mechanisms to offset mosques’ expenditures. It is a legal query concerning a plot of land donated for the purpose of serving as a graveyard. After fifty years as a cemetery a number of trees had grown on the land and local residents collected their fruit and used the money raised by selling them to pay for the mosque’s needs.61 The jurisprudence adduced hitherto highlights the ways in which rural communities dealt with an important aspect of their daily life, the organisation of liturgical activities and the upkeep of the local mosque as well as that of the personnel employed by it. The most remarkable feature of these texts is that they contribute to underline the autonomy enjoyed by these rural communities when selecting the people entrusted with those duties and finding the financial means to pay for the subsequent expenditures (wages, the mosque’s upkeep), as opposed to the great urban Friday mosques (see supra). This is further proof of the relatively autonomous status of Andalusian rural communities as revealed by the studies carried out on the topic up to date.62 The different modalities for hiring an imàm lead to different outcomes as regards his demotion. As al-Jazìrì remarks, the neighbours of the mosque were not entitled to dismiss the imàm unless they could pinpoint any fault likely to tarnish his religious integrity ( jur˙a fì dìni-hi) or prove that he made mistakes while reciting the Qur"àn (la˙n fì-l-qirà"a). They could dismiss him, however, when a majority of the community or most of the men of religion found his activities reprehensible.63 Ibn Mughìth maintains that if the upkeep of the imàm was incumbent upon the community directly, they were authorised to dismiss him whenever they so wished. Even though the imàm
60
Al-Wansharìsì, Mi'yàr, VII, p. 132 (trans. V. Lagardère, Histoire et société, p. 287, no 268). 61 Al-Wansharìsì, Mi'yàr, VII, p. 150. 62 See P. Guichard, ‘Note sur quelques recherches en cours à propos de l’organisation collective des communautés rurales en al-Andalus’, Revue des Mondes Musulmans et de la Méditerranée, no 79–80 (1996), p. 259; M. Marín, ‘Documentos jurídicos y fortificaciones’, p. 82. 63 Al-Jazìrì, al-Maqßad, p. 243.
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had been hired by the administrator of pious endowments himself (ßà˙ib al-a˙bàs), the community was entitled to demand his dismissal if any shortcoming likely to blemish his religious probity ( jur˙a fì dìni-hi ) was observed.64 Al-Bàjì remarks, moreover, that if those demanding his dismissal represented only a minority, they had to demonstrate that his righteousness had been dented ( jur˙a fì dìni-hi) whereas in the case of a majority of the community being against him, proof was not necessary.65 These observations on an imàm’s dismissal process, made in the 11th century, are repeated verbatim in Ibn Salmùn’s notarial treatise (14th century) and reproduced in the Mi'yàr.66 A community’s power to dismiss its imàm is highlighted in a legal question addressed to Ibn Lubb regarding a mosque whose imàm had thus far been ‘a good man, highly qualified to perform his office’ (rajul min ahl al-khayr tawaffarat fì-hu shurù† al-imàma). After the demise of the village’s amir, however, he was pushed aside and replaced with a local man who performed his duties without being suitably qualified (là yußla˙ li-imàmat al-nàs) and used the mosque’s land for his own benefit. Ibn Lubb’s opinion is that if the ta˙bìs was made in favour of the imàm the former had to be enjoyed by whoever held the office. But he also warns that the appointment of an imàm is the community’s responsibility and it is therefore entitled to dismiss someone who does not fulfil the necessary requirements (li-l-jamà'a ta"khìra-hu 'an dhàlik in kàna la yußla˙).67 Similarly, in another fatwà by Ibn Siràj, a group of villagers dismiss the imàm for reasons which remain unknown.68
3. Mosques and their assets In al-Andalus, the prevalence of donations made in favour of mosques is indisputable. With regard to this, it is important to stress the fact
64
Ibn Mughìth, al-Muqni', p. 203. Al-Wansharìsì, Mi'yàr, VIII, p. 253. 66 Apud J. López Ortiz, ‘Fatwas granadinas’, p. 127; al-Wansharìsì, Mi'yàr, VII, p. 474 and VIII, p. 253. 67 Al-Wansharìsì, Mi'yàr, VII, pp. 89–90 (trans. V. Lagardère, Histoire et société, p. 279, no 237). 68 Al-Wansharìsì, Mi'yàr, VII, p. 120 (trans. E. Amar, ‘La pierre’, XIII, pp. 393–394; V. Lagardère, Histoire et société, p. 260, no 168). 65
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that, in spite of their different origins and chronology, there is a remarkable harmony between the two main sources of our study, the Islamic jurisprudence and the Christian books of habices, which both coincide, in different ways, to underline that prevalence. As far as the corpus of jurisprudence is concerned, the first indicator is the clear predominance of cases involving assets belonging to mosques, a total of 89 cases (39.2% of the 227 making up the corpus and 64.9% of the 137 dealing with pious donations) (see Appendix 5, Figure 2). Apart from this, some specific references found in a number of legal queries allow us to assert the fact that donations made for this purpose were more frequent in the rural milieu, as pointed out in an unfortunately anonymous text that maintains that donations in favour of mosques are the most common in villages (ghàlib ta˙bìs al-nàs fì-l-qurà).69 Similarly, the Ifrìqì jurist Ibn 'Arafa is once asked about the custom ('àda) of employing pious endowments for the benefit of mosques and their imàms whenever the purpose for which the former had been donated was not known for whatever reason.70 The antiquity of this type of donations must also be considered since several of the earliest references to the existence of pious endowments in al-Andalus are linked to mosques (see chapter 3). As for Castilian documents, the definition of ˙ubs assets included in a document preserved at the A.G.S. (Archivo general de Simancas) is indicative of the prevalence of donations in favour of mosques: ‘revenues from properties and bequests and assets from the a˙bàs endowed at the time of the Moors to mosques and legal scholars and clerics, and also for captives from the town of Granada and for its mosques and clerics and other things pertaining to them and for the mosques of villages’.71 The same can be said à propos the quantitative data supplied by these texts which will be analysed in the following section.
69 Al-Wansharìsì, Mi'yàr, VII, p. 291 (trans. V. Lagardère, Histoire et société, pp. 271–272, no 212). 70 Al-Wansharìsì, Mi'yàr, VII, p. 335 (trans. V. Lagardère, Histoire et société, p. 221, no 41): su"ila 'ammà jarat bi-hi al-'àda anna a˙bàs al-qurà idha juhilat maßàrifuha anna-hà 'alà-l-masàjid fì tilka-l-qarya wa-'alà a"immati-hà. 71 Apud B. Vincent, ‘Las rentas particulares del reino de Granada en el siglo XVI’, p. 84.
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3.1. The properties of Nasrid mosques Most of the information at our disposal on the characteristics of the economic assets of Andalusian mosques and their value concerns the Nasrid period, both that provided by jurisprudence and books of a˙bàs. It does not seem unlikely, however, that the conclusions drawn from those documents can be extrapolated to former periods, provided that the appropriate precautions are taken. The most significant difference between both types of sources is that only books of a˙bàs provide an opportunity to gauge the quantitative weight of assets donated in favour of mosques. Although the legal corpus consulted for this study makes it possible to broach the hypothesis that mosques must have been the main beneficiaries of these assets in al-Andalus, the texts do not provide any quantitative information indicative of their volume and impact. There are, at most, scattered references in this or that fatwà showing that a certain mosque has been endowed with considerable assets or that an ablutions hall has benefited from numerous donations.72 More often, we find information about the existence of a surplus generated by the mosque’s properties which can be earmarked for paying the wages or accommodation expenses of some of the attendants (imàm or muezzin) or allocated to different undertakings.73 This positive image is undermined, however, by other indications of a negative nature which show, for instance, that a village’s mosque is ‘very poor’ (∂a'ìf jiddan). It is reported of one mosque that it is ‘poor’ (∂a'ìf ); another’s ˙ubs is not enough to cover repair costs; the erection of a new Friday mosque renders the old one insolvent; the building of a brick oven for a ràbi†a leads to a downfall in the volume
72 Al-Wansharìsì, Mi'yàr, VII, p. 146, VII, pp. 148–149 (trans. V. Lagardère, Histoire et société, pp. 288–289, no 273), VII, p. 159 (trans. V. Lagardère, Histoire et société, p. 290, no 281). 73 Al-Wansharìsì, Mi'yàr, VII, p. 112 (trans. V. Lagardère, Histoire et société, p. 280, no 241), VII, p. 132 (trans. V. Lagardère, Histoire et société, p. 287, no 269), VII, p. 135 and Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, I, pp. 311–313, no 65, ed. al-Tajkànì, I, pp. 251–252, no 60; al-Wansharìsì, Mi'yàr, VII, pp. 139–140 (trans. V. Lagardère, Histoire et société, p. 265, no 187), VII, p. 144 (trans. V. Lagardère, Histoire et société, pp. 266–267, no 193), VII, p. 156 (trans. V. Lagardère, Histoire et société, p. 253, no 144), VII, p. 184 (trans. V. Lagardère, Histoire et société, p. 286, no 261); Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, III, p. 1359, no 480, ed. alTajkànì, II, pp. 1213–1214, no 315 and Mi'yàr, VII, p. 460; Ibn Rushd, Kitàb alfatàwà, ed. al-Talìlì, III, p. 1269, no 420, ed. al-Tajkànì, II, p. 1135, no 304 and Mi'yàr, VII, p. 465 (trans. A. Mª Carballeira, Legados píos, 93–94).
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of revenues collected by the old one; the case of a barren plot of land ( faddàn).74 Conversely, the abundance of cases on the possibility of transferring revenues from one mosque to another can be regarded as an indication of the existence of both mosques in need and others overflowing with revenues (see chapter 9). According to a tradition which had prevailed since the 11th century, the Catholic kings handed over to the Church the properties which belonged to the mosques in the kingdom of Granada since the conquest of Almería in 1489. This means, at least in theory, that the data on the number of assets in the hands of the Church in the region of Granada in the 16th century may reflect the situation current at the end of the Nasrid period, even if we take into account the partial alteration of the original conditions due to different factors during the course of the century.75 The studies carried out on the subject reveal the prevalence of a˙bàs belonging to mosques in two areas of the kingdom of Granada, the Vega and the Alpujarra. The assets of Granada’s mosques were handed over to the Church in a decree issued on 14 October 1501 and on 2 February 1502 the latter also took possession of the properties owned by the town for ransoming captives. When the donation of mosques’ properties was enforced in 1501, only nine years after the conquest, the value and distribution of those assets was not known. For that reason, the Catholic monarchy arranged for an inventory to be made and for an administrator ( Juan de Porres, treasurer of Vizcaya) to be appointed so that ˙ubs assets could be leased out and outstanding revenues be collected. The Church received its share until 1506, when it was awarded the management of its own a˙bàs as well as the collection of revenues generated by the latter. Between 1502 and 1504, however, Juan de Porres entrusted the assets of the Church to the bachiller Castellanos, the newly-appointed administrator. At the time, the
74 Al-Wansharìsì, Mi'yàr, VII, pp. 89–91 (trans. V. Lagardère, Histoire et société, p. 279, no 237), VII, p. 143 (trans. V. Lagardère, Histoire et société, p. 143, no 191), VII, pp. 146–147, VII, pp. 149–150, VII, pp. 199–200, VII, p. 201 (trans. E. Amar, ‘La pierre’, XIII, p. 391 and V. Lagardère, Histoire et société, p. 280, no 244). 75 C.J. Garrido García, ‘El apeo de los habices de la iglesia parroquial de Abla (Almería) de 1550’, pp. 87–88, remarks à propos of the survey of ˙ubs properties in Abla (Almería) in 1550 that ‘in the course of the 16th century all the assets owned by the Church were generically designated as a˙bàs regardless of whether they were or not. This is the case of the mulberry trees ordered by and bought by the Church mentioned at the end of the document’.
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capital generated by them amounted to 750,000 maravedís. This represented more than half (51.8%) of all the revenues then produced by all the a˙bàs of Granada and the Vega put together76 (see appendix 5, Figure 4). The data available to us for the region of the Alpujarra evince the predominance of assets under the ownership of mosques during the Nasrid period, as shown by C. Trillo San José (see appendix 5, Figure 3). Focusing on the 1501–1502 book of a˙bàs, this scholar estimates that, as a whole, the property owned by mosques amounts to over 50% of all the a˙bàs found in the several districts (†à'a) comprising the area, with the exception of that of Jubiles. In some, it represents more than half, such as in Poqueira (69.97% of the total value in that †à'a). In some villages the percentage could be higher, like in Beniodmin (†à'a of Poqueira, 100%) and Nieles (†à'a of Luchar, 89.08%). C. Trillo also maintains that ‘out of the total amount of rents collected after letting out the a˙bàs in 1502, only 20.72% is devoted to the poor and captives, whereas the remainder belongs, practically in its entirety, to mosques and ràbi†as since the revenues allocated to works aimed at improving infrastructure for public use were, as we have mentioned, extremely scarce’. Other insightful data gleaned from those documents is also that, on most occasions, the assets used to raise capital to pay the salaries of the faqìh entrusted with ritual duties at the mosque amount to 50% of all the properties at its disposal. This serves to emphasise, once again, the inextricable link between men of religion and pious endowments.77 With regard to the kind of properties donated to mosques, out of the 89 legal questions about mosques, 42 show what kind of asset is given in donation, that is less than 50% of the total number. Only one of them refers to a set of books donated in favour of Granada’s main mosque,78 whereas two others refer to oil,79 essential for lighting mosques. Among the others, one employs the term ‘properties’ (amlàk),80 applicable both to an agricultural property or an urban site, and the remaining 38 allude to rural outbuildings (28 fatwàs, 76
P. Hernández Benito, La Vega de Granada, pp. 38–40. C. Trillo San José, La Alpujarra, pp. 357–359. 78 Al-Wansharìsì, Mi'yàr, VII, pp. 227–228. 79 Al-Sha'bì, al-A˙kàm, p. 508, no 1132 and al-Wansharìsì, Mi'yàr, VII, pp. 64–65 and IX, p. 399 (trans. V. Lagardère, Histoire et société, pp. 405–406, no 136), VII, pp. 200–201. 80 Al-Wansharìsì, Mi'yàr, VII, p. 157. 77
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66.6% out of 42) and, to a lesser extent, urban buildings (11, 26.1%). As for agricultural land, for which jurisprudence uses several designations (ar∂, faddàn, maw∂i' and janna),81 lands with olive trees are mentioned more frequently than other types of produce.82 Urban buildings are rated as follows, in order of importance: houses,83 ovens,84 shops85 and a textiles workshop (†iràz).86 As we shall see, data provided by 16th-century Castilian documents confirm the predominance of landed property among the assets owned by mosques (see infra). Data included in the 1527 book of habices reveal that Granada’s 17 parishes owned a considerable number of urban properties, among them 82 houses and 116 shops, alongside 14 algorfas (lofts), 39 almacerías
81 Al-Wansharìsì, Mi'yàr, VII, pp. 89–91 (trans. V. Lagardère, Histoire et société, p. 279, no 237), VII, p. 94, VII, p. 104 (trans. V. Lagardère, Histoire et société, p. 254, no 148), VII, pp. 112–113 (trans. V. Lagardère, Histoire et société, p. 283, no 252), VII, p. 119 (trans. V. Lagardère, Histoire et société, p. 260, no 167), VII, pp. 119–120 (trans. V. Lagardère, Campagnes, p. 130, Histoire et société, p. 260, no 168), VII, p. 120 (trans. E. Amar, ‘La pierre’, XIII, pp. 393–394 and V. Lagardère, Histoire et société, p. 260, no 169), VII, pp. 128–129 (trans. V. Lagardère, Histoire et société, p. 287, no 267), VII, pp. 130–131, VII, p. 134 (trans. E. Amar, ‘La pierre’, XIII, p. 374), VII, p. 138 (trans. V. Lagardère, ‘La haute judicature’, p. 163, 'Abù-l-Walìd b. Ru“d’, p. 215, Histoire et société, pp. 269–270, no 204), VII, p. 139, VII, pp. 145–146, VII, pp. 150–151, VII, 151–152, VII, p. 153 (trans. P. Guichard and V. Lagardère, ‘La vie économique’, p. 221 and V. Lagardère, Histoire et société, p. 262, no 172), VII, p. 163, VII, p. 163, VII, pp. 183–184, VII, pp. 206–207 and IX, pp. 475–476, VII, p. 436 and al-Sha'bì, al-A˙kàm, p. 164, no 208 (trans. E. Amar, ‘La pierre’, XIII, p. 375 and V. Lagardère, Histoire et société, p. 257, no 161). 82 Al-Wansharìsì, Mi'yàr, I, p. 158 (trans. E. Amar, ‘La pierre’, XII, p. 68), I, pp. 162–163 (trans. V. Lagardère, Histoire et société, p. 58, no 213), VII, p. 112 (trans. V. Lagardère, Histoire et société, p. 280, no 241), VII, pp. 118–119 (trans. V. Lagardère, Histoire et société, pp. 259–260, no 166), VII, pp. 125–126 (trans. V. Lagardère, Histoire et société, pp. 286–287, no 264), VII, pp. 132–133 (trans. V. Lagardère, Histoire et société, p. 287, no 269), VII, p. 136 (trans. V. Lagardère, Histoire et société, p. 278, no 235). 83 Al-Wansharìsì, Mi'yàr, VII, p. 158, VII, pp. 198–199, VII, p. 443 (trans. V. Lagardère, Histoire et société, p. 273, no 216), VII, p. 461, IX, p. 406; Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, II, pp. 1049–1050, no 310, ed. al-Tajkànì, II, pp. 922–923, no 241; 'Iyà∂, Madhàhib al-˙ukkàm, pp. 202–203 (trans. D. Serrano, pp. 358–359 and E. Amar, ‘La pierre’, XIII, pp. 391–393). 84 Al-Wansharìsì, Mi'yàr, VII, p. 201 (trans. E. Amar, ‘La pierre’, XIII, p. 391 and V. Lagardère, Histoire et société, p. 280, no 244), VII, pp. 203–204, VIII, p. 235; Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, I, pp. 592–598, no 132, ed. alTajkànì, I, pp. 520–523, no 121). 85 Al-Wansharìsì, Mi'yàr, VII, p. 151 (trans. V. Lagardère, Histoire et société, p. 278, no 236); 'Iyà∂, Madhàhib al-˙ukkàm, pp. 205–207 (trans. D. Serrano, p. 361). 86 Al-Wansharìsì, Mi'yàr, VII, p. 199.
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(a kind of loft with separate access), 10 stables, 38 farmyards and other less sizeable properties (tarbeas—stables—, chambers, lots, ovens, etc.). All these urban properties generated revenues amounting to 112,904 maravedís (average of 6,641 mrs.). Individually, the wealthiest parish was that of San Juan de los Reyes with 16 houses, 19 shops, 7 farmyards, 7 algorfas, 6 stables, 6 chambers, 3 almacerías and other properties. The parish whose properties generated the most revenues was that of Santa María de la Alhambra, with 22,276 mrs. This sum was supplemented by 36,100 mrs. generated by other rural properties87 (see Appendix V, Figure 8). The best indication of the wealth of properties which a Nasrid mosque could potentially accumulate is perhaps Almería’s Friday mosque, on whose a˙bàs there are documents concerning the distribution of its assets after the fall of the town in 1489. On January 27 1496, Diego de Chinchilla was commissioned by the archbishop to ‘repartir todas las tierras calmas e heredamientos que la yglesia mayor desta çibdad de Almeria tenía e poseía seyendo mezquita’ [‘distribute all the fallow lands and inheritances owned by the main church in the town of Almería when it was formerly a mosque’].88 The clerk completed his task on March 15 of the same year, the main beneficiaries being the cathedral (50%), the monastery of Santo Domingo (33.3%) and the Hospital (16.6%). The section dealing with that monastery remains extant. As for rural properties, which were the most significant, it was allocated 1,429 olive trees and 388 tahullas of conquered lands located in five different villages (Gádor, Huéchar, Benahadux, Pechita and Huércal) as well as the lands adjacent to the town, the so-called ‘campo de Almería’ (Almería’s rural hinterland). Considering the fact that the monastery’s share amounted to 2/6 (33.3%) of the a˙bàs belonging to the Friday mosque, M. del M. García Guzmán estimates that the total amount of a˙bàs was as follows: 4,272 olive trees, 1,171 tahullas of fallow lands, 120 shops, two oil-producing mills, an earthen oven to bake bread and a tavern.89
87 These data are summed up by M. del M. García Guzmán, ‘Bienes y rentas de la Iglesia de Santa María de la Alhambra’, pp. 103–106, using the aforementioned document published by M. del C. Villanueva Rico, Casas, mezquitas y tiendas de los habices de las iglesias de Granada, Madrid, 1966. 88 Apud M. del M. García Guzmán, ‘Bienes habices del convento de Santo Domingo de Almería’, p. 38, document no 3. 89 M. del M. García Guzmán, ‘Los habices del Hospital Real de Almería (1496)’, p. 569.
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The above references reveal the affluence and land wealth of Almería’s main mosque and lead us to assume that the amount of properties owned by Nasrid mosques must have been very significant. We can therefore say that mosques were the main owners of pious endowments in al-Andalus, certainly during the last phase of Nasrid rule. This corroborates the references, oblique and less explicit due to their non-quantitati ve nature, found in Arabic texts. 3.2. The nàΩir Mosques which owned their own properties usually had an administrator. His mission was, solely and specifically, to manage the assets under a mosque’s ownership. One of the earliest references to the existence of this figure, however, involves Mu˙ammad b. al-Sàlim (d. 340 h/951) and reveals that the imàm himself could also act as administrator (imàm al-masjid al-jàmi' bi-Qur†uba wa-naΩara fì-l-awqàf ).90 Terminology is one of the first problems we must tackle as it is not uniform. The most frequent designation for the administrator of pious endowments was nàΩir, although two epigraphic inscriptions suggest the possibility that he was also referred to as ßà˙ib al-a˙bàs, a term usually employed to designate the delegate of the qà∂ì entrusted with the administration of pious endowments (see chapter 8). The first inscription is found in Toledo91 and includes a text commemorating the building of a mosque’s nave (balà†) in the month of rajab of 432 h (March 7 to April 4, 1041) ‘under the supervision’ ('alà yaday) of the ßà˙ib al-a˙bàs 'Abd al-Ra˙màn b. Mu˙ammad b. alBayrùla (d. 465 h/1072), identified by the biographical dictionaries,92 and Qàsim b. Kahlàn, an unknown figure. The second very similar inscription is found in Seville and refers to the repair works carried out at the beginning of Rabì' I of 472 h (1/9/1079) at a minaret (ßawma'a) at the behest of al-Mu'tamid b. 'Abbàd, also ‘under the supervision’ ('alà yaday) of the ßà˙ib al-a˙bàs and qayyim, Abù 'Umar A˙mad b. ˇayyib.93 Ibn Mughìth, in the formulary drawn up to 90
Ibn al-Fara∂ì, Ta"rìkh, II, p. 63, no 1257. E. Lévi-Provençal, Inscriptions arabes d’Espagne, pp. 68–69, no 60. 92 Ibn Bashkuwàl, Íila, I, p. 323, no 719 and al-Îabbì, Bughyat al-multamis, no 981. Neither refers to the fact that he acted as supervisor of a˙bàs. 93 E. Lévi-Provençal, Inscriptions, pp. 38–39, no 31; D. Oliva et al., ‘Fondos epigráficos del museo arqueológico de Sevilla’, Al-Qan†ara, VI (1985), pp. 460–461, no 8. 91
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hire imàms, also employs the designation ßà˙ib al-a˙bàs once when referring to the administrator of a mosque, but he uses the term nàΩir as well later on. Al-Jazìrì, however, employs the term qayyim in the formulary used to make donations in favour of mosques.94 The administrator was probably appointed by the town’s qà∂ì, as suggested by two notarial formularies,95 although the donor was entitled to entrust the management of an asset donated to a mosque to someone on whom he could rely. Certain factors could also lead to alternative arrangements as indicated by some cases found in the corpus of jurisprudence. The one dealt with by Ibn Lubb, for example, concerns an unspecified town’s a˙bàs whose supervision was entrusted at the behest of the sultan to the Friday mosque’s preachers as well as the local fuqahà" (ashyàkh); what type of assets were at stake is not known though. Some of them had been entrusted to the preachers by the donors themselves in clauses contained in the donation deed and the former managed them with total autonomy. As for the assets for which an administrator had not been appointed, the official decree established that they were to be controlled by the preachers and legal scholars collectively (ashyàkh).96 The text is insightful because it shows the political authorities’ meddling in the organisation of a town’s a˙bàs, even though the latter’s provenance remains unknown. The text subsequently remarks that both preachers and legal scholars (ashyàkh) agreed, after negotiations with the qà∂ì, to select a responsible and trustworthy individual ‘according to local custom’ so that he was in charge of the direct administration of the assets (taqdìm fì-l-a˙bàs 'alà-l-'àda fì dhàlik). To make the process more effective, it was decided that it was better to entrust the administration of those assets to a single individual. I will dwell on this text later on since the issue that gives rises to the legal question is not actually the appointment but the 94
Ibn Mughìth, al-Muqni', pp. 202–203; al-Jazìrì, al-Maqßad, p. 286. Ibn Mughìth, al-Muqni', p. 202; al-Jazìrì, al-Maqßad, p. 287. 96 At least this is my interpretation of the following somewhat obscure paragraph: su"ila 'an a˙bàs balad asnada al-naΩar fì-hà bi-muqta∂à al-amr al-sul†ànì li-l-khu†abà' bijàmi'i-hi al-a'Ωam wa-l-ashyakh wa-min al-a˙bàs jumla asnada al-naΩar fì-hà li-l-khu†abà" bil-jàmi' al-madhkùr mu˙abbisù-hà wa-shara†ù dhàlik fì aßl al-ta˙bìs wa-ßàra naΩar al-khutabà" fì-l-ta˙bìs bi-muqta∂à shar† al-muhabbis fì-mà asnadu-hu ilay-him min al-naΩar fì-hà mustaqillìn wa-munfaridìn bi-hi wa-bi-muqta∂à al-amr al-karìm fì sà"iri-hà mushtarikìn ma'a-lashyakh fì-l-naΩar fì-sà"iri-hà mimmà lam yusnad fì-hà al-naΩar la-hum wa-là li-ghayri-him li-wujùh al-naΩar bi-muqta∂à al-amr al-karìm. 95
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dismissal of the nàΩir, appointed unanimously after a process of bargaining and summarily dismissed by the qà∂ì a few months later.97 A similar question was addressed to al-Saraqus†ì from Baza concerning the mosques’ assets whose revenues did not cover the salaries of those employed to carry out liturgical duties and otherwise. The text points out that the assets had been mixed up ‘since ancient times’ and put under the direct control of a single administrator (mushrif ) with the result that part of their revenues was earmarked to cover the mosques’ basic needs and the rest to pay the wages of their personnel.98 As in the former case, a centralised control, a single manager, is set up for reasons of expediency in order to render their usufruct more efficient. It seems reasonable to assume that the administrator of an institution endowed with considerable assets received a salary, as did the other employees, for instance, of a Friday mosque. This is evinced by a formulary of donation in favour of a mosque found in al-Jazìrì’s work. In it, the payment of a salary to the administrator (ujrat qayyimi-hi ) is mentioned among the aims selected by the donor. There is no reference whatsoever to this particular point in jurisprudential sources. His duties at the mosque were manifold and comprised all those aspects associated with personnel, the management and modalities of usufruct of the mosques’ properties and the upkeep of the building. His main function was to ensure strict adherence to the purpose stipulated by the donor in his ta˙bìs, making sure that revenues were actually devoted to the aims originally selected, as al- Mawwàq clearly indicates in a case involving a mosque’s assets.99 With regard to a mosque’s properties, one of the administrator’s tasks was to let them out to the best bidder. Thus, Ibn Rushd states that a mosque’s a˙bàs, that donated to the infirm and other groups in need, must not be let out by the administrator for more than four years (in the case of land) or more than one (in the case of a household); were he to decide to let it out for longer, the contract was not to be
97
Al-Wansharìsì, Mi'yàr, VII, pp. 92–93 (trans. V. Lagardère, Histoire et société, p. 280, no 240). 98 Al-Wansharìsì, Mi'yàr, VII, pp. 121–122 (trans. V. Lagardère, Histoire et société, pp. 264–265, no 184). 99 Al-Wansharìsì, Mi'yàr, VII, p. 135.
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rescinded nonetheless.100 Another of his functions was also to ensure that there was a balance between the needs of a mosque and the amount of revenues at its disposal so that assets were used adequately in accordance with the aims stipulated in the foundation charter. In this respect, an issue which often arose in jurisprudence was that regarding how the surplus generated by mosques’ assets was to be employed. We shall pore over this in greater detail further on (see infra). The administrator must also prevent the endowment from being enjoyed by unauthorised usufructuaries, as shown by the case of man who tilled a plot of land ( faddàn) belonging to the Friday mosque, aware that it was a ˙ubs, for 20 years.101 Also among the administrator’s duties was maintaining the building in good condition and undertaking the necessary repairs to ensure its upkeep. Ibn 'Abdùn’s testimony is apposite in this respect. He recounts, with regard to Seville’s Friday mosque of Ibn 'Adabbas, that: ‘the potholes that may appear on the floor comprising the courtyard of the main mosque must be filled in with gravel so that they are not filled in with water and mud, and this task will fall upon the inspector of mainmorte assets and repairs will be paid with funds stemming from the latter (al-nàΩir fì-hi min a˙bàsi-hi )’.102 With regard to the mosque’s personnel, the formularies drawn up to hire imàms show that the nàΩir was responsible (al-nàΩir fì a˙bàs masjid kadhà) for recruitment.103 This aspect of his duties is not referred to, however, by jurisprudence. The latter reveals though that he acted as a referee to settle the frequent feuds arising as a result of disagreements regarding the usufruct of revenues paid to attendants. Al-Saraqus†ì stresses, on this issue, the complete independence enjoyed by the nàΩir, stating that his performance is not subject to the scrutiny of personnel (lam yaqif naΩar al-nàΩir 'alà muwàfaqat qawamat al-masjid ). The latter must carry out what is demanded of them and either perform their duties or reject the conditions under which they work but never try to impose conditions upon the nàΩir (kullu wà˙id min-hum bi-l-khiyàr fì qubùl mà 'ayyana la-hu wa-l-qiyàm bi-waΩìfi-hi aw raddi-hi ).104 100 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, I, pp. 290–293, no 55; ed. al-Tajkànì, I, pp. 235–237, no 50. 101 Al-Wansharìsì, Mi'yàr, VII, pp. 150–151. 102 Ibn 'Abdùn, Risàla, ed. E. Lévi-Provençal, p. 213 (trans. E. García Gómez, p. 86, no 41). 103 Ibn Mughìth, al-Muqni', p. 202; al-Jazìrì, al-Maqßad, p. 243. 104 Al-Wansharìsì, Mi'yàr, VII, p. 122 (trans. V. Lagardère, Histoire et société, pp. 264–265, no 184).
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The administrator’s powers can be observed in several legal queries. They did not only extend to ancillary personnel but also to imàms and muezzins. A fatwà deals with the case of an imàm who agrees to a payment of a certain amount of dirhams from the ˙ubs in order to purchase cattle with some villagers. The imàm wishes to receive that sum a few months before the celebration of the feast of sacrifice but the nàΩir rejects this arrangement. The response supports the administrator’s decision since the jurists consider that it is not lawful to receive a salary in return for performing the ishfà' prayers other than in Rama∂àn; likewise, the money to buy a beast to make a sacrifice can only be handed out when that festivity is about to take place.105 Another similar situation involves a muezzin who, despite being the beneficiary of the revenues generated by a maßriya, asks the administrator (muqqadam) to undertake repairs in it. The latter refuses to do so arguing that it falls upon the beneficiary to fund any necessary repairs. Abù-l-'Abbàs al-Sharìf ’s reply resembles the judgement of Solomon as he tries to split the costs: the muezzin will have to give up the benefit he gains from the maßriya and, were they to prove insufficient to cover all repair works, the administrator was obliged to make a contribution in order to raise the entire amount.106 This fatwà is immediately followed by another about the dispute between the administrator (muqqadam) of a mosque and a muezzin asked to hand back part of his revenues to the mosque; obviously, the muezzin refuses. In this particular case, although the muezzin does not possess any written proof certifying his condition as a beneficiary, the faqìh believes that the fact that he has been enjoying the usufruct of that ˙ubs for a number of years without any conflict of interests whatsoever constitutes proof as to the legality of the situation. He ends his ruling by pointing out that it falls upon the qà∂ì to rule on the case with the assistance of statements from legal experts.107 In one case the administrator also acts as a referee when there are disagreements as to whom must be considered as beneficiary of an asset. It is a query addressed to Ibn Lubb concerning a man who stipulated in his will that half a plot of land must be donated
105
Al-Wansharìsì, Mi'yàr, VII, pp. 164–165. Al-Wansharìsì, Mi'yàr, VII, p. 155 (trans. V. Lagardère, Histoire et société, p. 252, no 142). 107 Al-Wansharìsì, Mi'yàr, VII, pp. 155–156 (trans. V. Lagardère, Histoire et société, p. 252, no 143). 106
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in favour of the reader of prophetic traditions based at the Friday mosque. The problem is that two readers were based at that mosque, one performed his duties between the two evening prayers whereas the other worked after the morning prayers. Ibn Lubb’s view is that the nàΩir must settle the case according to his own judgement, either by naming one of them or both as beneficiaries. His advice is, however, that the afternoon reader should benefit in this case.108 The possibility that mosques administered assets donated for other purposes must also be taken into consideration. Christian documents seem to suggest this, specifically the 1503 book of a˙bàs which shows that certain mosques took over the management of some of the assets donated to the poor: according to the productivity rate of all the assets donated for this purpose, mosques managed 19.9% of those revenues.109 It is also likely that, at least in some cases, mosques acted as depositories for the revenues collected, not only from their own properties, but also from those donated for other purposes, such as for the poor, or perhaps from assets whose supervision was directly in hands of the qà∂ì (see chapter 8). 3.3. Criteria and principles of management It is a basic legal principle that the usufruct of a donated asset must be assigned to the purpose set by the donor. As for mosques, there were two possibilities for selecting the aim of a donation: either to make a donation in generic terms or one specific, that is, for a particular aspect within a mosque, be it to contribute to its general upkeep or to pay the wages of a mosque’s attendants. The choice of one or the other modality had different repercussions on the use of assets. Although adherence to the donor’s clause is a basic legal principle, other extrajuridical factors must also be taken into account for they also affect the way in which mosques disposed of their possessions due to the need for maximising their financial output. 3.3.1. Application of the donor’s stipulations In principle, the aim selected by the donor must be fulfilled at all costs and the revenues stemming from that ta˙bìs cannot be devoted 108 Al-Wansharìsì, Mi'yàr, VII, pp. 206–207 and IX, pp. 475–476 (trans. V. Lagardère, Histoire et société, pp. 420–421, no 207). 109 P. Hernández Benito, La Vega de Granada, pp. 46–48.
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to other undertakings. Thus, when assets donated for expressly determined aims (a˙bàs mu'ayyana) are involved, such as to pay employees’ salaries or contribute to a mosque’s general upkeep, jurists are reluctant to make any changes to the way revenues are allocated. Donations could sometimes spark disputes as to how the donor’s will was to be interpreted. This is evident in a query addressed to Ibn Rushd110 regarding a case where the way a donor’s intentions had been formulated was bound to lead to confusion when ascertaining the specific purpose chosen for his donation. It involves a man who donated an oven ‘so that it could be used to meet the needs of the mosque, such as lighting, the purchase of prayer-mats and the repairing of walls’. The issue centres on the interpretation accorded to the donor’s words as it is susceptible to two different readings: one open and one more restricted. Using wide-ranging interpretative criteria one could understand that the imàm’s wages must be deducted from the revenues generated by the oven as the donor resorts to a ‘generic formulation’ (ijmàl or al-lafΩ al-'àmm, according to the mustaftì) at the beginning of his donation when he indicates that the latter is made ‘to meet the needs of the mosque’ ( fì manàfi' al-masjid). A more restricted interpretation is also possible as the donor specified, after that generic expression, which particular aspects he wished to fund with his donation (lighting, prayer-mats and architectural repairs), without alluding to the remuneration of the mosque’s imàm at all. According to this restrictive interpretation, the imàm’s salary must not come from the oven’s revenues as the donor had not referred to that aim in his ta˙bìs whereas other purposes (those indicated above) had been expressly included. The fatwà has a second part dealing with the fact that the mosque’s nàΩir had been paying the imàm a salary deducted from the oven’s revenues for a period of time until one day, and for no apparent reason, he became aware of the irregularity of this practice. In his response, as I pointed out, Ibn Rushd insists on the need to stick to the donor’s wishes proffered in the formulation of the donation. He thus considers that the imàm has no right to the revenues generated by the oven as the donor named the aspects of the mosque’s upkeep he wished to fund; his will must be obeyed. He also believes, however, that no reimbursements must be demanded 110 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, I, pp. 592–597, no 132; ed. al-Tajkànì, I, pp. 520–523, no 121.
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from the imàm and no responsibilities attached to the administrator as a result. He bases his arguments on the reiterated ambiguity of the donor’s formulation and the subsequent lack of a clear and convincing argument ( yaqìn) which may help to settle the problem once and for all: as the donor had not stated that the imàm was to be included among the beneficiaries, the latter was not to benefit from the revenues produced by the ˙ubs but if, for whatever circumstances, he has received payments, he must not be penalised for that reason as the donor had not excluded him expressly in his donation deed. The lack of a clear and settled argument compels one to admit the possibility that the donor’s will might be in contradiction with the external or literal formulation of his donation. To compound matters, the imprecise character of the text may also be the work of a negligent copyist. Other fatàwà support the principle of carrying out the donor’s wishes. This is the case in a question addressed to Abù-l-'Abbàs alSharìf about a plot of land from which three mizcales were used to raise cash to pay for Rama∂àn prayers (the ishfà' ), thus leaving a surplus (muwaffara) of seventy. He is asked whether all the revenues generated by the land must be handed over to the person conducting the ishfà' or, on the contrary, whether the surplus can be employed to purchase another endowment. His reply leaves no room for doubt: if it was donated for a particular purpose, its revenues must be spent for that specific aim (idhà kàna 'alà mu'ayyanìn wajaba ßarfu-hu fì-him).111 The identical outcome can be found in a fatwà by al-Saraqus†ì involving a mosque whose pious endowments had been specifically donated to the three ‘classic’ undertakings formerly mentioned: manufacturing costs, prayer-mats and lighting oil. The community ( jamà'at al-masjid) wants to use them to pay the salaries of the imàm and the muezzin but the jurist does not allow it since a ˙ubs cannot be devoted to a purpose other than that stipulated by the donor; any attempt to fiddle or alter these arrangements must be regarded as a sin.112
111 Al-Wansharìsì, Mi'yàr, VII, p. 156 (trans. V. Lagardère, Histoire et société, p. 253, no 144). 112 Al-Wansharìsì, Mi'yàr, VII, pp. 160 and 162 (trans. E. Amar, ‘La pierre’, XIII, p. 338): al-˙ubs là yußraf fì ghayr al-maßrif alladhì 'ayyana-hu mu˙abbisu-hu la-hu (. . .) wa-man baddala kàna 'alay-hi ithm tabdìli-hi.
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Likewise, when replying to a question on the possibility of giving a pay rise to a mosque’s attendants, Abù Is˙àq al-Shà†ibì reports that it would depend on the type of ˙ubs at stake: if it is specific, he does not think that it should be devoted to a purpose other than that selected by the donor.113 Another example can be found in a fatwà by Ibn ManΩùr issued in response to the case of an imàm who reaches an agreement with a group of villagers in return for a stipend (taqwiya); the latter must come from the revenues available to the mosque. In his reply Ibn ManΩùr considers that this modality of hiring is lawful provided that the payment is made with funds flowing from a˙bàs not donated for other purposes or forming part of a generic donation made ‘in favour of the mosque’ without singling out a particular aim.114 3.3.2. Prioritising construction needs As we have seen above, there was only one case where it was lawful to avoid the founder’s stipulations: the proceeds must be used primarly for the needs of the building115 (see chapter 4). For this reason, the only reason which could justify the indiscriminate use of a mosque’s revenues, overruling any other consideration regarding the purpose given to its assets, was the fact that a building or property might suffer some deterioration. As M. Hoexter remarks, the interest of the particular beneficiaries became subordinate in that case to the need to preserve the ˙ubs from damage.116 In a number of fatàwà, jurists prioritise the need to undertake repair works after a mosque has undergone serious damage through the payment of employees’ wages. Ibn Rushd supports this view in the case of a Friday mosque whose two roofed naves (balà†àn musaqqafàn) have been burned and it lacked sufficient funds to repair them unless the money was deducted from the imàm’s salary; the imàm and the attendants in charge of cleaning the building refused to work unless they were paid. His response is that the need to keep the institution in good condition must take precedence over the wages owed to the
113 Al-Wansharìsì, Mi'yàr, VII, p. 101 (trans. J. López Ortiz, ‘Fatwas granadinas’, pp. 120–122; V. Lagardère, Histoire et société, p. 281, no 247). 114 Al-Wansharìsì, Mi'yàr, VII, p. 123: idhà kànat min a˙bàs al-masjid mimmà huwa yußraf fì maßàli˙ al-masjid li-anna al-imàm min maßàli˙i-hi. 115 See O. Pesle, La théorie et la pratique des habous, pp. 87–88. 116 M. Hoexter, ‘Óuqùq Allàh and ˙uqùq al-'ibàd ’, pp. 143–144.
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imàm. As for the attendants, a ‘fair stipend’ (ujrat al-mithl ) will be paid to those whose duties are essential to keep the building fully operational, that is opening and closing gates, sweeping floors and lighting, if no one volunteers to carry out the work for free (min ghayr ujra).117 The same jurist issues a fatwà on a similar case concerning a mosque whose central nave had collapsed and there were not enough funds to embark on repair works once lighting costs had been deducted and the salaries of imàms and attendants paid. He is asked whether it is permissible to divert revenues belonging to another mosque in order to pay for the affected area to be repaired. Regardless of the possibility of transferring funds from a well-off mosque to one in dire straits (see chapter 9), Ibn Rushd reiterates that it is compulsory (wàjib) to give priority to construction and maintenance needs over the salaries of imàms and ancillary personnel, if no volunteers to perform these duties are forthcoming for this would result in loss and damage (ta∂yì' wa-ta'†ìl) to the Friday mosque.118 The fact that these fatàwà by Ibn Rushd do not make any reference to the aim selected for the donation, namely whether it was specific or generic, is significant. This is probably due to the fact that, even though they might have been assets specifically donated in pursuit of a particular purpose (a˙bàs mu'ayyana), a mosque’s maintenance needs always took precedence. At least that is the impression conveyed by a fatwà that actually relies on Ibn Rushd’s view on the issue as an authoritative argument and points out that that jurist believed that a mosque’s needs outweighed paying its imàm’s wages. The author of the legal query adds that, apparently, this proviso also applies to the donations specifically made for the benefit of the imàm (Ωàhir futyà-hu wa-law kànat al-ujra min waqf imàm al-masjid al-mu'ayyana la-hu) for, were the revenues to be employed to cover the emoluments of the imàm and the muezzin, thus neglecting the mosque, their posts would soon be redundant (law ßurifat ghallat mà ˙ubbisa 'alà-l-imàm wa-l-mu"adhdhin wa-turika al-masjid mukhriban fa-là yakùn fì-hi imàm wa-là mu"adhdhin).119 Further on it is reported that 117 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, III, pp. 1267–1268, no 418; ed. alTajkànì, II, pp. 1133–1134, no 304; al-Wansharìsì, Mi'yàr, VII, pp. 464–465 (trans. A. Mª Carballeira, Legados píos, 77). 118 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, I, pp. 311–313, no 65; ed. al-Tajkànì, I, pp. 251–252, no 60; al-Wansharìsì, Mi'yàr, VII, pp. 135–136. 119 Al-Wansharìsì, Mi'yàr, VII, p. 292.
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revenues must first be employed to fund repair works in spite of the fact that the donor had made different arrangements ( yubda' min fà"id al-˙ubs bi-mà yakùn bi-hi ißlà˙u-hu wa-binà" mà wuhiya min-hu ˙attà law shara†a al-mu˙abbis khilàf dhàlik).120 Ibn 'Attàb expresses similar views when addressing a query on a mosque where the cost of repairs had eaten up all the revenues for one or two years with the corollary that the imàm had not been paid during this period. Unlike the cases described above, the way in which the question is posed here reveals that the imàm’s salary had been brushed aside given the pressing need to repair the mosque. The faqìh, that is, is not confronted by a dilemma but by a de facto situation which reflects the way in which mosques’ assets were administered.121 On this issue Ibn 'Arafa remarks that most donations include a clause whereby the imàm and the muezzin are only authorised to receive whatever money remains after having paid for the necessary repairs ( jall al-a˙bàs innamà tu˙abbis bi-shar† an yakùna li-lmu"adhdhin aw-l-imàm illà mà fa∂ala mimmà ya˙tàj ilay-hi al-˙ubs).122 3.3.3. Economic needs As we have just seen regarding the priority given to construction needs, although the obligation to adhere to the donor’s will (qaßd ) is an essential legal principle that jurists endeavoured to enforce, the economic reality derived from the administration of these assets imposed other types of needs that often ran counter to legal regulations. In other words, a contradiction exists between the inherent rigidity of the legal principle (adherence to the clauses stipulated by the donor) and the variable character of real conditions and economic imperatives. A mosque might own assets donated to it expressly for certain purposes, but not for others, a factor likely to give rise to situations where, for example, a donation made exclusively for the purchase of prayer mats and lighting oil could generate surplus revenues while, at the same time, funds to pay the salaries of the mosque’s personnel might not be available. The issue of the clash between theoretical principles and practical needs resulting from
120
Al-Wansharìsì, Mi'yàr, VII, p. 293. Al-Wansharìsì, Mi'yàr, VII, p. 473 (trans. A. Mª Carballeira, Legados píos, 80). 122 Al-Wansharìsì, Mi'yàr, VII, p. 335 (trans. V. Lagardère, Histoire et société, p. 220, no 40). 121
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administering and arranging the usufruct of pious endowments will be dealt with in a separate analysis due to the great number of legal queries focusing on it (see chapter 9). I will analyse in this section, nonetheless, the fatàwà tackling this topic in the specific context of mosques and leave the general analysis of this casuistry for a later chapter. The abundance of legal questions linked to this contradiction between both spheres (legal and economic) suggests that it is instrumental when studying the administration of mosques’ assets. Succinctly, we can state that Andalusian jurisprudence considers two solutions to this contradiction. First, an internal change in the distribution of a mosque’s revenues, that is diverting part of the sum devoted to a particular aim so that they can be employed for an unforeseen need. Second, an external transfer of revenues, usually drawn from the assets of another mosque or any other institution or pious deed. The second aspect will be treated in chapter 10 and I will focus here on the first one. Either of the two options indicated above, internal distribution of the revenues depending on existing needs or an ‘injection of cash’ from assets belonging to other mosques, in fact any other known to have been adopted (the combination of assets of disparate origins, see infra), represent a split from the legal principle that dictates that a donor’s will must be respected. This split, however, is seldom complete as, apart from in exceptional cases, no jurist allows for the revenues themselves to be diverted and made to serve a different purpose. Whenever an alteration is allowed, it is stated that the former must be based on surplus revenues. In strictly legal terms the existence of a surplus is not an option: if an asset is donated for a certain purpose, it is assumed that all the revenues it generates must be devoted to it unless the donor has made specific requests to the contrary. In fact, this is an issue not contemplated when a donation is being made since notarial formularies do not record any distinction between the realisation of a donor’s request and the presence of a surplus. The issue of surplus is doubtless the result of the contradiction previously mentioned, that is a corollary of the economic nature of the institution and a response to the need to increase the productivity and economic benefit of the assets as well as the result of the struggle to take advantage of them. To reconcile adherence to the legal principle and economic expediency, jurists admit the possibility that, once the targets set by the
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donor in his ta˙bìs are met, the surplus, if there is one, be devoted to other causes, always within reasonable boundaries. If the basic needs to guarantee the upkeep have been met, the surplus can be used to pay the salaries of the personnel involved in liturgical tasks. Similarly, if the general needs of a mosque are guaranteed, its surplus may be transferred to another in desperate need of income. In the only fatwà where he tackles a query on this issue, raised by a group from Badajoz who arrived in Córdoba between the end of Jumàdà I and the start of Jumàdà II of 517 h (end of June-beginning of July 1123), Ibn Rushd remarks that if the revenues of a mosque produce a surplus, once the salaries of the imàm and the other personnel have been paid and money to undertake basic maintenance needs has been secured, the latter must be put aside as savings for ‘a rainy day’. If it is considerable enough so as to acquire a property, the latter should be purchased and leased out so that its rents can be devoted to the same aims as the rest of the ˙ubs.123 Ibn Rushd’s favourable views on saving any likely surplus are brandished as an authoritative argument by al-Saraqus†ì in one of his fatàwà.124 Chronologically, most of the queries on this issue are addressed to jurists of the Nasrid period. Abù Sa'ìd b. Lubb is one of the jurists who responds to the most questions of this type. One of his fatàwà deals with the case of a mosque with a surplus olive production every year employed to help meet the needs of other mosques. Ibn Lubb states that the administrator is allowed to sell the oil surplus and use the money thus obtained to finance any internal need the mosque may have ( fì maßàli˙ al-masjid wa-manàfi'i-hi) whereas discrepancies (ikhtilàf ) occur regarding their transfer to other mosques (ßarf al-fà∂il li-masjid ukhrà aw li-a"immati-hà wa-khadamati-hà).125 He is later asked about oil donated for lighting a mosque from which the imàm tried to benefit. He replies that the revenues raised by the assets ( fà"id al-˙ubs) must be devoted to the aim selected by the donor. However, according to early jurists ( jamà'a min al-muta"akhkhirìn) such as Ibn al-Salìm from Córdoba, the surplus could be used to
123 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, III, p. 1269, no 420; ed. al-Tajkànì, II, p. 1135, no 304; al-Wansharìsì, Mi'yàr, VII, p. 465. 124 Al-Wansharìsì, Mi'yàr, VII, p. 122 (trans. V. Lagardère, Histoire et société, pp. 264–265, no 184). 125 Al-Wansharìsì, Mi'yàr, VII, p. 112 (trans. V. Lagardère, Histoire et société, p. 280, no 241).
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reward the imàm or fund any other need the mosque may have if money is left over once all the needs have been covered (ilà-l-imàm al-qà"im bi-waΩà"if al-masjid wa-ilà ghayri-hi mimman bi-yadi-hi maßla˙a ràji'a ilà-l-masjid ).126 Also, in another fatwà he supports the hiring of an imàm with funds drawn from the surplus generated by a mosque’s assets particularly, he indicates, if they were donated for unknown purposes or donated generically, without specifying which purpose they were to serve (là siyamà idhà kàna al-˙ubs majhùl al-maßrif aw 'alà maßàli˙ al-masjid).127 There is another case concerning a mosque endowed with assets expressly donated to undertake repair works and purchase prayer mats, lighting oil and candles so that prophetic traditions can be recited after dusk. Those assets generated an annual surplus of some dirhams over the years and the query focuses on whether, as the imàm lived in a rented house, it was lawful to use that surplus to acquire a house for the imàm to dwell in and thus avoid paying rent. The anonymous reply, although it could be attributed to al-Saraqus†ì, is favourable provided that the charitable aims set in the donation deed were duly attained (idhà kànat maßàrif al-a˙bàs al-madhkùra fi-lsu"àl muqàma 'alà mà yajib).128 There is no doubt that the question centres on what the minimum amount that can be regarded as a surplus is and who had the right to fix that amount as it is after all, at least partly, a subjective estimation. In principle, the assets donated to meet essential needs were not likely to spark disputes as it was the administrator’s decision to allocate the amount he deemed necessary to pay for repairs and buy new prayer mats and oil. But jurisprudence shows that frictions mostly arose from assets earmarked to provide revenues for the salaries of liturgical attendants. In this respect, the dilemma stems from the uncertainty of whether the holder of a religious post was allowed to or should receive all the revenues generated by the donation as remuneration for performing his duties, even when those revenues far outstripped the amount of money the beneficiary required for his upkeep—whatever the latter was thought to be—or, con-
126
Al-Wansharìsì, Mi'yàr, VII, p. 200. Al-Wansharìsì, Mi'yàr, VII, pp. 201 and 259 (trans. E. Amar, ‘La pierre’, XIII, pp. 381–382). 128 Al-Wansharìsì, Mi'yàr, VII, pp. 140 and 184 (trans. V. Lagardère, Histoire et société, p. 265, no 187). 127
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versely, whether the administrator was entitled, either for economic imperatives or the mosque’s needs, to freeze his salary and employ a share of those revenues, regarded as surplus, for other charitable deeds. As we shall see in the next section, the imàm seldom received fixed remuneration and was usually rewarded with a portion of the harvest or the usufruct of a plot of land. Apportioning a fixed salary was a measure likely to restrict the enjoyment of benefit one could draw from the ˙ubs, but not the free disposal of a property donated in his favour on the part of the beneficiary. Apart from employing surpluses, which is seemingly the most frequent option according to the jurisprudence consulted for this work, some fuqahà" suggest other means to bridge the gap between legal principles and economic needs. These are scattered references which are not in principle susceptible to generalisation. One, as we have seen, is to resort to the Public Treasury (see supra). It was the case al-Mawwàq was confronted with involving a mosque endowed with assets employed to cover building work and general repairs (li-l-binà"), specifically on the roof rather than the walls. Al-Mawwàq is opposed to any attempt at meddling with the purposes for which the ˙ubs was set up and says that those needs lacking assets from which funds can be raised to finance them must be dealt with by the bayt al-màl or, alternatively, by the community itself ( jamà'a) as it would constitute a collective duty (min bàb furù∂ al-kifàyàt).129 Similarly, a fatwà by al-Saraqus†ì records what seems to be another alternative arrangement or, rather, a de facto situation resulting from the course of events. The query comes from Baza where, as the assets owned by the different mosques proved insufficient to meet their needs, they resolved to pool them together and place them under the control of a single manager (mushrif ). The text does not indicate when that merger took place but it appears that it was done in ancient times (qadìman). A set quota (màl ma'lùm) was apportioned to each mosque, out of the total amount of revenues available, according to its needs and the remainder was divided up on the basis of the number of personnel each employed.130 The reference to ‘mixed a˙bàs’ (a˙bàs mukhtali†a) is repeated in another fatwà from the Nasrid period, issued by Abù Is˙àq al-Shà†ibì, which states that most of 129
Al-Wansharìsì, Mi'yàr, VII, pp. 134–135. Al-Wansharìsì, Mi'yàr, VII, pp. 121–122 (trans. V. Lagardère, Histoire et société, pp. 264–265, no 184). 130
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those assets were donated originally for a particular purpose but, due to reasons of expediency, they were put under the control of a single administrator. Later on, due to an oversight, the aim selected for one of them was eventually forgotten with the result that they were disposed of in the same way as the bayt al-màl. Al-Shà†ibì believes, however, that the fact that a˙bàs are merged does not mean that their revenues can be used as if they were those of the bayt almàl, that is using only existing needs rather than the purposes for which they were donated as a deciding factor. He argues, in this respect, that the key feature of the revenues deposited at the Public Treasury is that they are not intrinsically earmarked for a specific aim whereas the distinctive feature of the ˙ubs is its specificity (ta'yìn), that is the fact that they are devoted to a particular undertaking; if that specific aim (ta'yìn) is not known efforts must be made to employ the revenues produced from the ˙ubs in similar enterprises.131 In another legal query from the same period, the enquirer claims that many a˙bàs are mixed with private properties (kathìr min al-a˙bàs qad ikhtala†at bi-l-amlàk)132 and the absence of original instructions sometimes seems to lead to a merging of a˙bàs due to the fact that the purpose they were to serve originally is no longer known, as shown by a query posed to al-Mawwàq.133 3.3.4. Unknown aim or donation made in general terms The specific purpose a donation was due to serve was sometimes unknown either because the original deed had been lost or because the ta˙bìs had been conducted in general terms, that is without specific mention of a particular purpose (see chapter 4). In the first case, loss of the donation deed, the usual procedure was that the assets were used as they had been traditionally, as al-Mawwàq states in a fatwà (in lam yùjad aßl al-ta˙bìs fa-yabqà al-˙ubs yaßrif 'alà-l-wajh alladhì wajadat-hu al-jamà'a).134 That is the case of a muezzin who had long benefited from the rents of the ˙ubs but did not possess the original 131
Al-Wansharìsì, Mi'yàr, VII, pp. 101–102 (trans. J. López Ortiz, ‘Fatwas granadinas’, pp. 120–122; V. Lagardère, Histoire et société, p. 281, no 247). 132 Al-Wansharìsì, Mi'yàr, VII, p. 105. 133 Al-Wansharìsì, Mi'yàr, VII, p. 126: su"ila 'an masjid la-hu a˙bàs mawqùfa 'alay-hi là yu'lam aßl ta˙bìsi-hà wa-kànat kiswatu-hu wa-zaytu-hu fì-l-mustamirr qadìmam fì-l-a˙bàs al-mukhtali†a ka-amthàli-hi min al-masàjid. 134 Al-Wansharìsì, Mi'yàr, VII, pp. 125–126 (trans. V. Lagardère, Histoire et société, pp. 286–287, no 264).
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deed. The administrator asked him to give up part of his rents so that they could be employed for other needs but the muezzin refused. In his response, Abù-l-'Abbàs al-Sharìf remarks that unless the original document is found the muezzin should be allowed to maintain his privileges as the absence of feuds throughout the years seems to indicate that the usufruct is right ('adam al-munàza' ma'a †ùl al-sinìn yadull 'alà ßidq al-da'wà ghàliban).135 With regard to assets donated in general terms, it is the most convenient type of ta˙bìs as far as its management was concerned. The employment, by the donor, of all-encompassing expressions such as ‘in favour of the mosque’ ('alà maßàli˙ al-masjid) allowed him to cover all of a mosque’s needs and made it possible to administer the endowment without the constraints that could result from the inclusion of a clause of specification (ta'yìn) which al-Shà†ibì alluded to in the previous fatwà (see supra). The usual practice with these donations is, however, that jurists prioritise the maintenance needs of a mosque over the payment of salaries to its employees. The possibility of drawing funds from those revenues to pay the wages of the personnel employed to perform liturgical duties depends on the existence of a surplus, once the essential needs have been met, and it is justified on the premise that the ancillary personnel are an indispensable element in all mosques as indicated above. There is a considerable amount of jurisprudence on the discretionary use of funds contemplated in donations including a clause to this effect. The earliest texts were written by Ibn al-Óàjj and Ibn Rushd; both reckon that revenues must be used to pay for a mosque’s needs according to their importance for the building’s upkeep (alahamm fa-l-ahamm). Lighting costs, prayer mats and maintenance of the building itself take precedence; if any surplus funds are available they could be used to hire someone to lead believers in their prayers and deliver the Friday sermon, unless a volunteer can be found (in fa∂ala shay" ustu"jira man yuqìm al-khu†ba wa-l-ßalà in abà min al-ßalà †aw'an). Al-Wansharìsì adds an appendix to that fatwà with a commentary revealing that there is a similar legal view among Maghribi jurists. He recalls how, when al-Fishtàlì served as qà∂ì, people asked him to hire an imàm with the surplus funds available to the mosque.
135 Al-Wansharìsì, Mi'yàr, VII, pp. 155–156 (trans. V. Lagardère, Histoire et société, p. 252, no 143).
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Al-Fishtàlì agreed to this but imposed certain conditions: the a˙bàs used for hiring the imàm must be those for an ‘unknown purpose’ (majhùlat al-maßrif ), a surplus must be readily available, no one volunteered to fill the post and no philanthropist offered to pay the imàm’s wages.136 Several of the legal cases available on this issue are addressed to al-Saraqus†ì. The first one is rather generic and warns that the asset donated for a particular purpose cannot be used for a different aim whereas a donation made in general terms (li-maßàli˙ al-masjid) can be used to allocate remuneration to an imàm provided that all the essential needs, comprising manufacture, prayer mats and oil, have been met beforehand.137 A later fatwà records the case of an imàm who reaches an agreement with some villagers whereby a beast for the sacrifice (u∂˙iya) must be handed over to him. His intention was to take one belonging to the mosque’s pious endowments but the nàΩir snubbed his request unless he was compelled to do so by a legal writ (amr shar'ì ). Al-Saraqus†ì’s replies that if the community ( jamà'a) had agreed to hand over a beast out of their privately-owned cattle, the administrator must not give away any cattle belonging to the mosque. If, on the contrary, they had agreed to give him one of the cattle belonging to the mosque’s ˙ubs, they were allowed to do so provided that the endowment had been established in general terms and the mosque did not have any outstanding need affecting the building or for purchasing prayer mats.138 In another fatwà mentioned above, al-Saraqus†ì views the hiring of the imàm with funds derived from the pious endowments as lawful even though the villagers are well-off provided that they involve assets donated without a specific purpose and that maintenance needs (prayer mats and oil) have been covered.139 Apart from these, there is also a fatwà by Abù-l-Óasan al-'Àmirì where he is questioned on the legality of purchasing a ram and a goat with monies from the a˙bàs so that the imàm can milk it and 136 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, III, pp. 1567–1568, no 578 and alWansharìsì, Mi'yàr, VII, pp. 455–456 (trans. V. Lagardère, Histoire et société, pp. 273–274, no 220; A. Mª Carballeira, Legados píos, 74). A very similar pronouncement by Ibn al-Óàjj can be found in Mi'yàr, VII, pp. 291 and 295–296 (trans. V. Lagardère, Histoire et société, pp. 271–272, no 212). 137 Al-Wansharìsì, Mi'yàr, VII, p. 161. 138 Al-Wansharìsì, Mi'yàr, VII, p. 164. 139 Al-Wansharìsì, Mi'yàr, VII, pp. 138–139 (trans. V. Lagardère, Histoire et société, p. 265, no 185).
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sacrifice it at the feast of sacrifice ('ìd al-a∂˙à): he retorts that this would only be lawful if those assets had not been donated for a particular aim but, rather, generically handed over in favour of the mosque.140 As we saw in the previous section (see supra), Ibn Lubb also thought that the fact that the imàm received part of the surplus generated by the mosque’s a˙bàs was a licit practice, particularly, he asserts, ‘if they are a˙bàs used for an unknown purpose or donated generically’ (idha kàna al-˙ubs majhùl al-maßrif aw 'alà maßàli˙ al-masjid)141 and al-Mawwàq, for his part, reports that the muezzin is one of the essential elements of a mosque (min al-maßàli˙ al-ràji'a ilà-l-masjid mu"adhdhin yu'adhdhin bi-hi wa-yaqùmu bi-mu"ani-hi). That is why he sees no impediment in renting a house for him with funds raised out of assets donated in generic terms (là ba’s an tukrà la-hu dàr min fà"id alawqàf allatì hiya mawqùfa 'alà maßàli˙ al-masjid).142 Sometimes, local custom ('àda) can lead to variations in this scheme of revenue distribution, as evinced by the case of a mosque owning a field of olive trees (ußùl zaytùn) without any knowledge of whether it had been donated for the benefit of the imàm or for paying for lighting costs. The custom was that the oil was shared between the imàm and the mosque until the community refused to hand over the portion owed to the imàm. Ibn Siràj’s answer is that if it was customary for the imàm to receive a set quota, he was entitled to lay claim to it; if that was not the customary practice, however, the distribution of revenues must be carried out following the usual order of preference, that is the upkeep of the building, prayer mats and, finally, the imàm.143 The analysis of the texts thus leads us to assume that the way in which mosques’ endowments were administered followed three basic rules that tried to combine adherence to the legal principle supporting the implementation of the clauses stipulated by the donor and the need to organise the usufruct of a mosque’s assets so that it proved financially advantageous. Firstly, the ˙ubs must be used for
140
Al-Wansharìsì, Mi'yàr, VII, p. 160 (trans. V. Lagardère, Histoire et société, p. 290, no 280): in kànat al-a˙bàs ghayr mu'ayyana wa-innamà hiya 'alà-l-masjid fa-yajùz dhàlik bi-l-ijtihàd. 141 Al-Wansharìsì, Mi'yàr, VII, pp. 201 and 259 (trans. E. Amar, ‘La pierre’, XIII, pp. 381–382. 142 Al-Wansharìsì, Mi'yàr, VII, p. 126. 143 Al-Wansharìsì, Mi'yàr, VII, pp. 118–119 (trans. V. Lagardère, Histoire et société, pp. 259–260, no 166).
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the purpose selected by the donor, either to cover basic upkeep costs or pay the salaries of its employees. Secondly, the need to turn the endowment into an economically profitable venture gives rise to the notion of ‘surplus’, with the result that assets specifically donated to finance maintenance needs may generate a surplus once the former had been met; the people entrusted with religious functions are lawfully entitled to benefit from that surplus in the form of remuneration, a residence, etc. Thirdly, if, for whatever reason, the purpose for which the endowment had been originally established is no longer known or it had not been donated for a specific aim, jurists hold the view that the salaries of the personnel employed to perform liturgical duties are subordinate to the mosque’s maintenance needs. If any amount of money remains after ensuring that those needs have been met though, the imàm or the muezzin may benefit from the surplus. The following fatwà by al-Mawwàq sums up in a clear and precise manner the blending of legal elements and practical considerations by connecting all the relevant aspects hitherto described. The case is not formulated in easily accessible terms and it is likely that the text has been modified. The response, however, leaves no room for doubt as to the way one is to interpret this text:144 ‘If the a˙bàs of the mosque had been donated for specific purposes such as manufacturing costs or lighting, and there is no surplus, no money must be used for the aforementioned objective. However, if there is a surplus, if the a˙bàs serve no specific purpose and had been donated in general terms to fund whatever needs that may arise at the mosque, or if the purpose of the donation is no longer known, then the use of revenues for the stated undertaking is lawful if God deems it so’.
Judging from Ibn 'Arafa’s statement, we can assume that this way of administering mosques’ endowments constituted a common principle of Maghribi Màlikism: ‘most a˙bàs include a clause authorising the muezzin and the imàm to receive only the amount remaining after paying for the endowment’s needs, that is, lawfully, they may only dispose of the remainder of the sum not spent in repairs, renovation or improvement works’.145 144 Al-Wansharìsì, Mi'yàr, VII, p. 127 (trans. V. Lagardère, Histoire et société, p. 287, no 265). 145 Al-Wansharìsì, Mi'yàr, VII, p. 335 (trans. V. Lagardère, Histoire et société, p. 220, no 40).
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3.4. The usufruct of endowments by those in charge of liturgy Now the general criteria ruling the usufruct of mosques’ assets have been analysed, I will draw my attention here to a more specific aspect. Despite the existence of certain ethical and moral misgivings, jurisprudence reveals that, in al-Andalus, religious functions constituted a highly professionalised job and they were usually performed in return for remuneration and by individuals qualified in legal and liturgical disciplines (see supra). This remuneration could be secured, among other possibilities, by resorting to revenues generated by pious endowments. How the people who performed such functions benefited from the usufruct of those assets is an issue which has not been approached hitherto. In principle, the donor’s requirements usually played the most decisive role. That is, if the ta˙bìs included any indication or clause on the way the usufruct of the endowment was to be shared among beneficiaries, those rules were regarded as binding. A fatwà gives us an insight into the frictions this issue might engender. The query is posed to Ibràhìm al-Yaznàsnì, qà∂ì-l-jamà'a in Fez. It reports the case of a woman who donated her house in favour of a righteous, religious and virtuous man so that it served as his abode with the proviso that, after his demise, it would become the residence of his wife and his daughter. After his death, the house ended up in the hands of a student (†àlib) who, instead of using it as his personal residence, let it out in order to collect rents and remained at home. The claimant condemns the fact that the house is let rather than used as living quarters by the beneficiary and this is a breach of the clauses contained in the donor’s deed. The student refuses to leave the house nonetheless as, apparently, he manages to get the support of a number of fuqahà". His argument, borrowed from Ibn Rushd’s Kitàb al-bayàn wa-l-ta˙ßìl, is based on the assumption that if anyone were to bequest a house to a man for him to dwell in it, the beneficiary is allowed to let it out and collect a rent. Al-Yaznàsnì supports the claimant’s view and points out that the passage quoted from Ibn Rushd’s work has been misinterpreted as it actually must be rendered as follows: ‘Ibn al-Qàsim was asked about the case of the man who declares: I donate my house to so and so. Must the latter live in it or exploit it for his own gain? He replied: yes, he may exploit it. If he wishes he can live in it and exploit it as well’. The difference centres, then, on the fact that whereas in Ibn Rushd’s quotation the donor does not indicate any particular modality of
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usufruct and thus the beneficiary can use it as he prefers (personal residence or rented accommodation), in the case considered by alYaznàsnì, however, the female donor had clearly stated that she donated her house so that it could serve as a dwelling place for the beneficiary, not for him to let it out.146 Apart from the possible existence of clauses set by the donor, which appear to be infrequent, the corpus of jurisprudence shows that there were three main ways of arranging the usufruct of assets owned by mosques. Two can be considered indirect as they do not entail the existence of control over the asset by the beneficiary and consist in the allocation of a fixed annual salary or a share of the harvest in the case of agricultural land. In other cases, direct control of the ˙ubs by the beneficiary can be attested. Some of the testimonies at our disposal reflect a contractual relationship between the mosque and its employees. That is the case of the already mentioned formulary drawn up by Ibn Mughìth for hiring imàms, based on a contract designed to hire manpower (isti"jàr) in return for a salary to be paid in two instalments: one when the contract is signed and the other by mid-year or at the end of the year.147 In a legal question put to Ibn al-Óàjj there is a reference to a community (qawm) who hired an imàm by actually making use of this contractual figure.148 According to al-Saraqus†ì, the amount the imàm receives from a mosque’s a˙bàs or the monies paid by the community in order for him to lead their prayers constitutes a salary in payment for his work (ijàra 'alà 'amali-hi ); the same principles that regulate the price of products and services, that is the fact that they must be set rather than arbitrary, also apply to this agreement (ma'lùma là gharara fì-hà wa-là jahàla). This way, he adds, an imàm’s remuneration may not consist of still uncreated and non-existent fruits likely to become ripe: a contract of this kind must be rescinded and, in case it has been carried through, the imàm is to receive a salary equivalent to the amount of work performed.149
146
Al-Wansharìsì, Mi'yàr, VII, pp. 286–288. Ibn Mughìth, al-Muqni', p. 202. 148 Al-Wansharìsì, Mi'yàr, VII, p. 473. 149 Al-Wansharìsì, Mi'yàr, I, p. 158 (trans. E. Amar, ‘La pierre’, XII, p. 68; J. López Ortiz, ‘Fatwas granadinas’, p. 126 and V. Lagardère, Histoire et société, p. 61, no 226). 147
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References to the apportioning of a set salary are, however, rare. Most of the jurisprudence reveals, conversely, that the beneficiary obtained, in return for his work, a share of the harvest (ghalla, fà"id or fà"ida) yielded by the lands owned by the mosque for which he works ( fatàwà by Ibn Siràj, Ibn 'Allàq, Ibn ManΩùr and al-Mawwàq)150 and, at least on one occasion, there is evidence that the imàm receives part of the oil produced by the olive trees under a mosque’s ownership.151 Another fatwà alludes to the purchase of a ram and a sheep so that the imàm can have milk as well as a cow for the feast of sacrifice (Abù-l-Óasan al-'Àmirì).152 On occasions, the employee receives the rent of a leased building, as shown in a case dealt with by Abù-l-'Abbàs al-Sharìf involving a muezzin benefiting from the rent paid for the letting of a garret (maßriya).153 Similarly, another fatwà mentions a Qur"ànic reader who also receives the rent ( fà"id ) of an unknown property.154 Several legal queries stress the geographical mobility of the people employed in liturgical functions, especially imàms. In that eventuality, if an imàm leaves his post before ending his contract and is replaced by a substitute, al-Óaffàr thinks that the correct course of action is dividing the revenues of the ˙ubs by twelve (the months of the year) so that whoever acts as a muezzin or as imàm for the whole year receives the total amount and he who works only for part of the year earns a share of the money equivalent to the length of time worked.155 In an aforementioned query made to al-Saraqus†ì there is also a remark that, customarily, the harvest (ghalla) yielded by an olive field is divided up by twenty-four months and each imàm collects his share depending on the amount of time he has held the
150 Al-Wansharìsì, Mi'yàr, I, pp. 162–163 (trans. J. López Ortiz, ‘Fatwas granadinas’, pp. 125–126; V. Lagardère, Histoire et société, p. 58, no 213), VII, pp. 112–113 (trans. V. Lagardère, Histoire et société, p. 283, no 252), VII, pp. 122–123, VII, p. 128, VII, p. 139. 151 Al-Wansharìsì, Mi'yàr, VII, pp. 118–119 (trans. V. Lagardère, Histoire et société, pp. 259–260, no 166). 152 Al-Wansharìsì, Mi'yàr, VII, pp. 159–160 (trans. V. Lagardère, Histoire et société, p. 290, no 280). 153 Al-Wansharìsì, Mi'yàr, VII, p. 155 (trans. V. Lagardère, Histoire et société, p. 252, no 142). On the word maßriya, see R. Dozy, Supplément, I, p. 831. 154 Al-Wansharìsì, Mi'yàr, VII, p. 139 (trans. V. Lagardère, Histoire et société, p. 265, no 186). 155 Al-Wansharìsì, Mi'yàr, VII, p. 139 (trans. V. Lagardère, Histoire et société, p. 283, no 252).
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post.156 This division based on the duration of time a function has been performed for is the solution suggested by other fatàwà dealing with the same problem.157 Some texts reveal that, on occasions, the beneficiary exerted direct control over the endowment and had the option to exploit it directly or let it and retain the rents derived from this. When a plot of land is involved there are instances of the land being tilled directly by the beneficiary, as some fatàwà show,158 whereas in other cases he transfers it to a third party in order for him to till it following one of the contractual practices contemplated in the fiqh, either as a muzàra'a159 or as a lease.160 Abù-l-Qàsim b. Siràj rules on another case involving an imàm who reaches an agreement with the owner of a public oven whereby the latter hires an oven owned by the mosque; it is not known whether the imàm is its beneficiary or he is merely acting in his professional capacity as administrator of the mosque.161 Some of these legal questions refer to local custom ('adà) as the key factor when opting for one or the other type of exploitation. A query made to Ibn Lubb shows that, depending on the wealth of a mosque, the imàm might have access to different kinds of cultivated land from which he drew usufruct by different means.162 We are informed twice about an imàm who resides in a house belonging to the mosque (Ibn ManΩùr and anonymous);163 in another fatwà, 156 Al-Wansharìsì, Mi'yàr, I, p. 158 (trans. E. Amar, ‘La pierre’, XII, p. 68; J. López Ortiz, ‘Fatwas granadinas’, p. 126 and V. Lagardère, Histoire et société, p. 61, no 226). 157 Al-Wansharìsì, Mi'yàr, VII, p. 139, I, pp. 162–163 (trans. V. Lagardère, Histoire et société, p. 58, no 213). 158 Al-Wansharìsì, Mi'yàr, VII, p. 120 (trans. E. Amar, ‘La pierre’, XIII, pp. 393–394 and V. Lagardère, Histoire et société, p. 260, no 169). Mi'yàr, VII, pp. 89–91 (trans. V. Lagardère, Histoire et société, p. 279, no 237) deals with the case of an imàm of a village who has been demoted by a man without the consensus of the community. The individual demanding a fatwà asks whether the mosque’s land can be handed over to the new imàm so that the latter can cultivated as it is customary. 159 Al-Wansharìsì, Mi'yàr, VII, pp. 119–120 (trans. V. Lagardère, Campagnes, p. 130 and V. Lagardère, Histoire et société, p. 260, no 168). 160 Al-Wansharìsì, Mi'yàr, VII, pp. 155–156 (trans. V. Lagardère, Histoire et société, p. 252, no 143). 161 Al-Wansharìsì, Mi'yàr, VIII, p. 235 (trans. V. Lagardère, Histoire et société, p. 354, no 274). 162 Al-Wansharìsì, Mi'yàr, I, pp. 149–150 and VIII, pp. 368–369 (trans. E. Amar, ‘La pierre’, XII, p. 67; V. Lagardère, Campagnes, pp. 171–172 and V. Lagardère, Histoire et société, p. 369, no 350). 163 Al-Wansharìsì, Mi'yàr, VII, p. 140 (trans. V. Lagardère, Histoire et société, p. 265, no 186), VII, p. 158.
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al-Mawwàq sanctions the leasing-out of a house for the muezzin with funds taken from the revenues of the mosque’s assets which, seemingly, did not serve a specific purpose.164 As we have just seen, some employees sometimes received a salary in exchange for carrying out their duties. The jurisprudence suggests, however, that that system was not common but, rather, that the usual practice was for an imàm or muezzin to be allowed to dispose of the property (usually a house or a plot of land) as he saw fit and he benefited from its usufruct freely (either residing on it or renting it out) or obtained all the revenues or rents produced by the donation made in favour of the holder of the function then performed by him. Obviously, these two modalities were much more lucrative for the beneficiary than receiving a fixed salary. This is reflected by a query made to Ibn ManΩùr about the imàm of a village who reached an agreement with its inhabitants in return for an annual fixed salary (ujra ma'lùma fì-l-'àm) whereby a portion of the stipend would be paid to him in exchange for his performing the ishfà' prayers during Rama∂àn. The imàm later found out that the property used to raise funds for the ishfà' was more profitable than his allocation to perform prayers and so he demanded to receive the total amount. Ibn ManΩùr maintains in his reply that there are differing views (khilàf ) on the issue of whether a donation made so that a religious function can be carried out (al-a˙bàs al-mu˙abbasa 'alà waΩìf dìnì) can be regarded as equivalent to a lease (kirà"), that is as a contractual relationship or as a benefit (rizq). In other words, if the community or the administrator of a mosque could decide which sum or revenue produced by a given asset was to be allocated to whom or, alternatively, the holder of the religious post funded by a˙bàs automatically could claim a right over all the revenues generated by the latter. To treat it as a lease meant that the imàm was only entitled to receive the allocation he had agreed to and the administrator of the endowments (al-qà"im bi-amr al-a˙bàs) was not obliged to report to him. If, on the contrary, it was understood that the ˙ubs was a benefit (rizq), he was to receive the share of the a˙bàs strictly earmarked to finance the religious function the imàm was to perform (al-a˙bàs al-mu'ayyana li-waΩìfi-hi alladhì aqàma-hu), unless he had been informed in advance of the value of that ˙ubs and agreed
164
Al-Wansharìsì, Mi'yàr, VII, p. 126.
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to receive just a share of it. The second option is, according to Ibn ManΩùr, that supported by Ibn Lubb.165 As we have seen when considering the role of the mosque’s administrator, al-Saraqus†ì asserts his independence in a fatwà when he claims that the administrator does not require the consensus of the mosque’s attendants to carry out his duties (see supra). This view seems to support the first of the two options indicated above. The option of the rizq, however, seems to be that of the two imàms who rotated jobs in their respective mosques, each conducting the Friday prayer at his counterpart’s temple. Al-Mawwàq’s response is that if an imàm is replaced his substitute is but an employee who must be paid per day for that is the benefit (rizq) rendered to him by his work.166 The contents of this fatwà, together with the greater abundance of cases where the imàm benefits from a share of the harvest or directly runs or tills the mosque’s lands, seem to suggest that a˙bàs could be used on occasions for the upkeep of a group of ‘benefited ones’, rather than salaried, who derived a benefit from the revenues of assets which society handed to them in their capacity of responsible for the carrying-out of a number of religious functions Islam imposes on the faithful. This notion is embodied in the saying ‘eating the bread of pious endowments’ (akala khubz al-awqàf ), regarded as a synonym of sinecure or perk. This is, perhaps, the aspect of Islamic pious endowments which most closely resembles the biens de mainmorte of Christian medieval Europe.167
165 Al-Wansharìsì, Mi'yàr, VII, pp. 158–159 (trans. V. Lagardère, Histoire et société, pp. 285–286, no 260). 166 Al-Wansharìsì, Mi'yàr, VII, p. 128. 167 See W.R. Jones, ‘Pious Endowments in Medieval Christianity and Islam’, Diogenes, no 109 (spring 1980), pp. 23–36.
CHAPTER EIGHT
THE OFFICIALS RESPONSIBLE FOR MANAGING AN ENDOWMENT: NÀ¸IR, QÀÎÌ AND ÍÀÓIB AL-AÓBÀS
1. Introduction To gauge the importance of the role of management in the institution of Islamic pious endowments we must first consider the problems surrounding the legal ownership of this type of assets. Màlikìs believed that this kind of property remained under the ownership of the founder even after his death (see chapter 10). This is, obviously, a legal entelechy, particularly when one takes into account the fact that, from the very moment he establishes his ta˙bìs, the owner must give up the property he has endowed and entrust it to someone for him to manage it in the manner and for the purposes stated by the founder, at least in the case where a pious undertaking has been selected. As the issue of the ownership of the ˙ubs constitutes a legal ‘pie in the sky’, the way in which the endowment is managed takes on a particular significance as that ‘manager’, albeit not the legal owner of the endowed asset, is actually its de facto holder and acts as the person responsible for its usufruct, although his actions in this respect are at least theoretically restricted by the clauses and stipulations set by the founder (see chapter 4). To analyse the management of pious endowments is a particularly daunting task due, mainly, to the variety of situations documented in textual sources. This complexity is a result of the diversity of the institution itself, from which we must distinguish, on the one hand, between private and pious aims and, on the other, between the different elements prone to being encompassed by the Islamic notion of piety (birr, qurba or fì sabìl Allàh) which can be synthesized in two levels. On one level we find institutions or bodies such as mosques, ràbi†as, madrasas, hospitals, etc. and on another more abstract aims, not materialised in a ‘tangible’ institution, that is donations generically made for the benefit of the poor, the infirm, for the jihàd or ‘in God’s name’, etc. This distinction must be drawn because those institutions usually relied on a manager who dealt with
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economic matters and must also have been the one in charge of the direct control of their pious endowments. The case of assets donated for a particular purpose rather than to an institution is different because there was no organisation with ancillary personnel and a headquarters from where those assets were administered, so it could never have been comparable to another operating with those means. Within the variety of situations involving the individuals responsible for their operation and the multiple ways of managing pious endowments, one of the aspects which will be considered in this chapter is the role of the state as exemplified in the activity of the qà∂ì. As M. Hoexter remarks, the latter’s performance is partly justified by the fact that the aims of pious donations are closely linked to some of the domains of responsibility or spheres of activity covered by the medieval Islamic State such as defending and watching over Muslims’ interests,1 an endeavour conveyed by Màlikì jurists through the notion of ‘public interest’ (maßla˙a) (see chapter 10). Until now studies devoted to different areas of medieval Islam have revealed the existence of a centralised model of administration. That is the case for Persia2 and, most particularly, for Egypt where the Fatimids set up a body expressly devoted to this (dìwàn al-a˙bàs) whose holder became a high-ranking official, being even above the qà∂ì-l-qu∂à in the official hierarchy as the latter needed his authorisation in order to get access to the revenues of a˙bàs. The same centralised system remained in place under the Mamluks.3 As we shall see, in al-Andalus, on the contrary, there was not a similar management model for there are no references to the existence of a purpose-built administrative body in charge of controlling them and the qà∂ì’s responsibility was not always direct nor was it exerted in the same way for all pious endowments due to the fact that he was not the only official authorised to intervene in matters regarding those assets.
M. Hoexter, ‘Óuqùq Allàh and ˙uqùq al-'ibàd ’, pp. 137–138. A. Lambton, ‘Awqàf in Persia’, p. 308. 3 M. Mu˙ammad Amìn, Al-Awqàf wa-l-˙ayà al-ijtimà'iyya, pp. 55 and 108–125; N. A. Stillman, ‘Waqf and the ideology of Charity’, 365–366. 1 2
managing an endowment:
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&
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2. The role of the founder The first person with responsibility for the management of a pious endowment was the founder himself and this was exerted in a twopronged fashion. The most common practice was, however, that he appointed someone else as responsible for administering his donation in accordance to clauses stipulated by him. If the founder did not designate anyone—this appointment was optional, not obligatory—, it fell upon the qà∂ì to entrust the control of that foundation to someone. 2.1. Assets managed by the founder Màlikì legal tradition rules that the founder could act as administrator of his own donation provided that it consisted of mobile property. According to the Mudawwana, Màlik discards the possibility of a founder retaining the ownership of the endowment until his demise if it involved revenue-generating assets, that is real estate such as houses and lands. As for mobile property, conversely, he admitted the possibility that a founder could retain the formal ownership of a property provided that he handed it over to whoever was to make use of it for the foreordained purpose. He refers, specifically, to assets donated for warfare purposes like weapons and horses.4 There is another reference to the same issue shortly afterwards.5 It can be said therefore that there is a difference between the taking over of a property (˙iyàza) depending on the type of assets at stake (personal belongings and real estate) and the aim (family or philanthropic). Personal property donated for charitable aims could remain under the founder’s ownership; he was compelled to lend his properties whenever it was required so that they could be used for the purpose stipulated in the donation deed. Real estate, however, must be surrendered and actually be handed over to the beneficiary. According to this tradition, Andalusian jurisprudence contains some references to this peculiar form of managing the charitable ta˙bìs, for example in al-Khushanì’s work6 and in treatises for instructing
4 5 6
Sa˙nùn, al-Mudawwana, XV, pp. 100–101. Sa˙nùn, al-Mudawwana, XV, pp. 109–110. Al-Khushanì, Ußùl al-futyà, p. 250.
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notaries written by Ibn al-'A††àr and Ibn Mughìth, who disagree as to whether it is lawful or not. I have not been able, however, to document any case where this situation arises in the corpus of fatàwà. The earliest reference appears implicitly in the clause recorded by Ibn al-'A††àr in one of his formularies; unlike the usual norms that regulate the taking-over of a donation, here the possibility that a donation made for charitable purposes may remain under the ownership of the owner once the ta˙bìs has been completed—actually, books donated in favour of students and assets donated in God’s name, to contribute to the defence of the faith such as weapons, horses, slaves, beasts of burden, etc.—is considered lawful. The founder would eventually transfer them to whoever were to use them for the aim stipulated in the deed and recover them once the person benefiting from their usufruct had fulfilled the aim for which they had been donated. This ‘loan’, Ibn al-'A††àr claims, is akin to the taking-over of the property by the beneficiary (al-'àriyya ˙iyàza tàmma), compulsory in all donations. He points out, however, that this type of ownership is not legal in the case of real estate (ußùl).7 Abù Is˙àq al-Gharnà†ì’s formulary reproduces, almost literally, Ibn al-'A††àr’s arguments.8 Ibn Mughìth, on the contrary, rejects this possibility and maintains in the section on jurisprudence included in his formulary to donate horses and weapons that ‘this type of donation is not licit unless the asset is handed over to someone who owns it in order to use it for the purposes for which it has been donated’9 and also that ‘this is the view held by more than one legal scholar’. In this respect, Ibn Mughìth differs from the Mudawwana and Ibn al-'A††àr’s treatise, whose postulates it usually follows very closely; we may be facing a different local practice, characteristic of Toledo’s local custom ('urf ) or legal practice ('amal ) as opposed to that of Córdoba. 2.2. Appointment of a nàΩir The founder had the right, not the duty, to designate an individual who was to manage his bequest for him; he was to state this when
7 Ibn al-'A††àr, Kitàb al-wathà"iq, p. 207 (trans. P. Chalmeta and M. Marugán, p. 368). 8 Al-Gharnà†ì, al-wathà"iq al-mukhtaßara, p. 39. 9 Ibn Mughìth, al-Muqnì', p. 326.
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implementing the donation. The manager is usually referred to as nàΩir (Spanish nádir), although other terms can also be employed to describe this function: mushrif, muqaddam, qayyim or wàlì.10 The nàΩir may also act as the manager or administrator of endowments belonging to a certain institution with a headquarters, a number of personnel and an internal organisation; this was the case, as we have seen, not only of mosques but also of other institutions. Thus, a fatwà mentions the nàΩir of a fortress’s endowments (nàΩir a˙bàs al˙ißn)11 and we are aware of the existence of a manager of the a˙bàs of Granada’s Nasrid madrasa which we will refer to later on. Either as appointed by the founder himself or acting as the manager of a mosque or another institution, the nàΩir’s activities were subject to the qa∂ì’s general supervision; if necessary, the latter could dismiss him (see infra). Several types of sources supply examples of this management practice in the case of pious endowments. As for notarial treatises, they include two formularies which allude to the appointment of the administrator by the founder—Ibn Mughìth’s concerning the ta˙bìs in favour of the infirm and al-Jazìrì’s on the donation of a hospice for the poor.12 The corpus of jurisprudence also includes a legal query concerning a man who entrusted his mulberry tree to another, requesting him to administer it and devote its earnings to whichever charitable deed he considered suitable. After a few years, the person in charge of managing the mulberry tree passed away and the owner entrusted it to another man who acted as the nàΩir of a ˙ubs donated in favour of the poor and the indigent so that it could be incorporated to it and devoted to that purpose; he did this for a period of eight years.13 There is also the case of a man who donated part of an olive-oil mill in favour of the warriors defending Vélez from the
10 Al-Wansharìsì, Mi'yàr, VII, p. 121 (trans. V. Lagardère, Histoire et société, pp. 264–265, no 184), VII, pp. 126–127, VII, p. 129 (two fatàwà), VII, p. 155 (trans. V. Lagardère, Histoire et société, p. 252, no 142), VII, pp. 155–156 (trans. V. Lagardère, Histoire et société, p. 252, no 143), VII, p. 184 (trans. V. Lagardère, Histoire et société, p. 286, no 261), VII, pp. 478–479 (trans. V. Lagardère, Histoire et société, p. 226, no 62); Ibn al-'A††àr, Kitàb al-wathà"iq, p. 180; Mi'yàr, VII, p. 70 (trans. V. Lagardère, Histoire et société, p. 224, no 53). 11 Al-Wansharìsì, Mi'yàr, VII, p. 127 (trans. V. Lagardère, Histoire et société, p. 287, no 266). 12 Ibn Mughìth, al-Muqni', p. 328; al-Jazìrì, al-Maqßad, p. 287. 13 Al-Wansharìsì, Mi'yàr, VII, p. 143 (trans. V. Lagardère, Histoire et société, p. 266, no 192).
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Christians and those spending the night on the ramparts to forestall any attacks against the town and appointed someone as its manager.14 The same provisions are made in another legal question which, in spite of being formulated differently, presents almost identical contents and also deals with the activities of the nàΩir.15 Biographical dictionaries include the cases of the jurist Hàrùn b. Sàlìm (d. 238 h/853), who donated his books and entrusted them to a certain A˙mad b. Khàlid (see chapter 3), as well as that of Qàsim b. Sa'dàn b. 'Abd al-Warith b. Mu˙ammad b. Yazìd (d. 347/958), who also donated his books and entrusted them to Mu˙ammad b. Mu˙ammad b. Abì Dulaym.16 It is also known that Mu˙ammad b. A˙mad b. 'Ubayd Allàh al-Ru'aynì, known as Ibn al-Mashshà† (d. 400 h/1010), was the administrator of the donations made by the fatà Ja'far,17 official of the caliph al-MuΩaffar al-'Àmirì, ruler of Valencia. Similarly, when al-Óakam II made his donation in favour of the poor from the borderlands in 355 h/965, he appointed his ˙àjib Ja'far b. 'Abd al-Ra˙màn al-Íiqlàbì and the vizier 'Ìsà b. Fu†ays as administrators of that foundation (see chapter 6). Arabic documents transcribed into ancient 16th century Spanish by the faqìh Mahoma Broçon also contain remarks on the appointment of a nàΩir. Thus, in the donation made by Yuçef Abinayar in favour of Granada’s Friday mosque and the zàwiya of Ibn Ma˙rùq, the founder declares: ‘y do todo mi poder complido a Vilaçe Ali Behamet Alaçari Salamaqui para que lo recabde y reparta en los dichos almuedanes y zeuya’ [‘and I give power of attorney to Vilaçe Ali Behamet Alaçari Salamaqui so that he can collect the revenues and distribute them among the muezzins and the zàwiya’]. On the donation in favour of the congregational mosque of the quarter of Uliar, in the village of Guájar, he remarks: ‘y do poder para recabdar todo lo sobredicho para la dicha mesquita Hamen Famet Benchali el Vilieni Alançari, de los del aldea de Guajar, y asy el sobredicho lo resçibio’ [‘and I authorise Hamen Famet Benchali el Vilieni
14 Al-Wansharìsì, Mi'yàr, VII, p. 145 (trans. P. Guichard and V. Lagardère, ‘La vie sociale’, pp. 222–223; V. Lagardère, Histoire et société, p. 267, no 195). 15 Al-Wansharìsì, Mi'yàr, VII, pp. 140–141 (trans. P. Guichard and V. Lagardère, ‘La vie sociale’, p. 222; V. Lagardère, Histoire et société, p. 265, no 188). 16 Ibn al-Fara∂ì, Ta"rìkh, I, p. 409, no 1072. 17 Ibn al-Abbàr, Takmila, ed. F. Codera, I, p. 112, no 384; al-Marrakushì, Dhayl, V, p. 670.
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Alançari, from the village of Guájar, to collect the aforementioned revenues for that mosque; he received them’].18 It was possible for the person designated as administrator by the founder to decline the offer and this made it necessary to find a replacement. This is what happened in the legal query addressed to Abù 'Abdallàh al-Saraqus†ì concerning a bequest whose management was commissioned to a man who refused the task because it was too onerous (li-ßu'ùbat al-amr); to compound matters, no one willing to take on the job could be found as it was regarded as too demanding (li-ma fì dhàlik min al-mashaqqa). The mustaftì also remarks that it is not possible to hire someone in order to perform the function of supervisor as the donation would be frittered away just by paying his wages. Al-Saraqus†ì replies that in the case where no one can be found to carry out the task, the latter should be shared by a group ( jamà'a), so that it is less daunting, unless, of course, someone volunteers to undertake the job for free. If not, the grain donated will be sold and the money thus obtained will be loaned, as the founder had requested.19 The administrator’s duty was to put into practice the founder’s demands; this meant that his activities included a wide range of functions, mostly involving problems arising from the usufruct of the ˙ubs and the rights of beneficiaries over that usufruct, specially in the case of mosques. When a property was involved, it fell upon the nàΩir to choose how it was to be let out and how long for. A query made to al-Mawwàq describes the case of a fortress’s administrator of the a˙bàs who, following the customary practice ('àda) in treeless agricultural lands, let out a plot of barren land and drew up a mughàrasa contract as he deemed it the most suitable way of exploiting it.20 The nàΩir also appears, on occasions, as the official in charge of granting the usufruct of the endowment to the tenant, either by dint of a mughàrasa contract for a specific length of time21 or through any other suitable contractual mechanism.22 18 Apud M. Espinar Moreno, ‘De la mezquita de Maharoch al monasterio de San Jerónimo’, p. 93 (document no 3). 19 Al-Wansharìsì, Mi'yàr, VII, pp. 120–121 (trans. V. Lagardère, Histoire et société, p. 264, no 183). 20 Al-Wansharìsì, Mi'yàr, VII, p. 127 (trans. V. Lagardère, Histoire et société, p. 287, no 266). 21 Al-Wansharìsì, Mi'yàr, VII, p. 157 (trans. V. Lagardère, Histoire et société, p. 285, no 259). 22 Al-Wansharìsì, Mi'yàr, VII, pp. 183–184.
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He was also to address any grievance raised by the tenants or those enjoying the usufruct of any assets under his custody. This is highlighted in a question about an administrator (mushrif ) who informed the tenants of the shops rented as a˙bàs that they were to pay a set rent, previously agreed upon, or, otherwise, vacate the shops; they were obliged to pay the same rent as that paid by the tenants of establishments which were not a˙bàs. The shopkeepers refused to leave their stores and pay the rent demanded from them. The text records that they regarded that rent as bakhs, a term meaning ‘low’ or ‘cheap’ but whose root bkhs also conveys the notion of ‘harming’ or ‘inflicting a damage’. The context seems to indicate that they thought the rent was quite hefty in comparison with the amount of money paid by other shops for the same concept. Al-Mawwàq replied that it was inadmissible to assume that the nàΩir was guilty of favouritism and it was then the mission of experts (arbàb al-baßar) to make the appropriate estimates and force the tenants to pay the same rent paid by the rest of shops (kirà" al-mithl ).23 Another aspect of the nàΩir’s activity reflected by jurisprudence is that he was also expected to carry out his functions as manager and guarantor of the adequate usufruct of the a˙bàs. The nàΩir was usually a man of undisputed honesty, whose diligence was never questioned and whose word—on the way he managed the endowment— made any further scrutiny into his job redundant. That is the case of the nàΩir of an oil press which had been donated in favour of the troops defending the town of Vélez; he administered the donation for fourteen years and the issue of whether he should be made accountable for his job once arose. Al-Saraqus†ì retorted that his word [of honour] was sufficient evidence as to suggest that he had managed the property within the confines of the law, unless proof to the contrary could be adduced.24 If instances of wrongdoing could, however, be attested his situation was likely to become more vulnerable, as shown in a previously presented and very similar case to the one we are dealing with here—it involves the nàΩir of an oil mill, donated in favour of the garrison of Vélez, who, for about ten years, did not bother to release any money for the charitable under-
23
Al-Wansharìsì, Mi'yàr, VII, p. 129. Al-Wansharìsì, Mi'yàr, VII, pp. 140–141 (trans. P. Guichard and V. Lagardère, ‘La vie sociale’, p. 222; V. Lagardère, Histoire et société, p. 265, no 188). 24
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taking selected by the founder25 (see supra). Likewise, the nàΩir’s accountability can be traced in one of the texts that best reflects the way in which he conducted his business. It is a previously mentioned fatwà issued by Ibn 'Allàq in which the administrator of monies donated for ransoming captives is accused of a number of irregularities26 (see chapter 6). It is obvious, nonetheless, that the functions and responsibilities of a nàΩir of this type of donations were doubtless unique due to the requirements one had to meet in order to carry them through. Another fatwà exposes a case of embezzlement of the monies— the usufruct of the ˙ubs—reserved for the beneficiaries of the endowment. The muftì exonerated the administrator as there were extenuating circumstances. It involves the muqaddam of the assets owned by an ablutions hall located on the outskirts of Vélez who managed to accumulate a certain amount of surplus money. Because of the pressure exerted by local dignitaries and the community in general and, in spite of his initial reluctance, he was forced to hand that surplus over to the fortress of Zalía to avoid reprisals. In his response, the faqìh issuing the fatwà (Ibn ManΩùr?) ruled that the administrator should not be held responsible for the loss of that sum of money (là ∂amàn 'alay-hi ).27 Another aspect we need to consider à propos the nàΩir would be that of his remuneration; it is, unfortunately, one of the least known areas. Only a handful of texts dwell on the topic in depth and we can only rely on some scattered references to shed light on the issue. In principle, the administrator carries out his functions for free, but conditions were likely to vary depending on particular circumstances, types of donations, degree of responsibility, etc. The founder could discretionally allocate a fixed stipend to the administrator he had appointed, as shown by al-Jazìrì in his formulary to found a house for the poor,28 but legal controversy arose when no stipulations were
25 Al-Wansharìsì, Mi'yàr, VII, p. 145 (trans. P. Guichard and V. Lagardère, ‘La vie sociale’, pp. 222–223; V. Lagardère, Histoire et société, p. 267, no 195). 26 Al-Wansharìsì, Mi'yàr, VII, pp. 207–208 (trans. V. Lagardère, Histoire et société, pp. 283–284, no 253). 27 Al-Wansharìsì, Mi'yàr, VII, p. 184 (trans. V. Lagardère, Histoire et société, p. 286, no 261). 28 Al-Jazìrì, al-Maqßad, p. 287: yaj'al li-l-qà"im bi-amri-hà min kirà"i-hà mà ra"a-hu sadàdan 'alà ˙asab ijtihàdi-hi.
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made.29 The jurisprudence provides us with a few instances in which the nàΩir is allowed to take part of the proceeds, following the stipulations of the founder. This is the case of a legal question from the Nasrid period which deals with a qarya made into ˙ubs by the ruler for pious purposes ('alà ashyà" min a'màl al-birr wa-l-khayr bi-amr min al-sul†àn): the nàΩir was entitled to a quarter of the monies raised by the qarya according to the donation deed in return for carrying out his duties—the remaining three quarters were devoted to charitable aims. The issue discussed in this case is whether after the nàΩir had passed away and two thirds—or more—of the year had elapsed his heirs were authorised to receive the revenues due to the dead man that year or, on the contrary, that money ought to be transferred to his successor in the post. The faqìh answered that each was to receive a percentage equivalent to the length of time worked with the result that the heirs could actually lay claim to the share owed to the dead man.30 We have another similar question addressed to the same jurist (Ibn ManΩùr) and dealing with a big qarya donated for several charitable purposes in which the nàΩir was allowed to receive a quarter of the proceeds.31 In other types of donation it is likely that being a nàΩir did not entail the payment of any remuneration whatsoever. Some examples illustrate this fact, as that seen above of the man who donated a hundred qada˙ of barley for poor peasants to borrow and use as seeds: no one was willing to take on the management of that foundation due to the difficulties it was bound to give rise to and the mustaftì himself, in his presentation of the case, rejected the possibility of offering a salary in exchange for performing this job as it would consume most of the funds raised by the donation.32 Another case stressing the altruistic nature of the office is found in the aforementioned fatwà issued by Ibn 'Allàq about the nàΩir in charge of managing a donation made for ransoming captives (see supra and chapter 6). Here, the fact that the job is unsalaried is clearly revealed
29 Ibn Salmùn, al-'Iqd al-munaΩΩam, apud O. Pesle, La théorie et la pratique des habous, p. 94. 30 Al-Wansharìsì, Mi'yàr, VII, p. 123 (trans. V. Lagardère, ‘Structures étatiques’, p. 79 and Histoire et société, p. 284, no 254). 31 Al-Wansharìsì, Mi'yàr, VII, p. 123 (trans. V. Lagardère, Histoire et société, p. 284, no 255), VII, p. 130. 32 Al-Wansharìsì, Mi'yàr, VII, p. 120 (trans. V. Lagardère, Histoire et société, p. 264, no 183).
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when the nàΩir claims that he has carried out his duties voluntarily (mu˙tasiban) but warns that if he is to be held accountable for any financial losses he would then demand a salary in return for his services. Ibn 'Allàq’s response on the issue is as follows: in principle, the mere fact that he has acted as treasurer or custodian of the money does not mean that he is automatically entitled to receive a salary (ujra) as the 'ulamà" believe that the depository is not entitled to demand any remuneration in return for looking after a deposit. If he bases his demands, furthermore, on the fact that he has made use of that money or travelled in order to collect it but he had declared that he had done so in his capacity as a mu˙tasib, that is voluntarily, he will not be entitled to any remuneration either. This is, in fact, what the claimant himself states in the query; if this is proved, Ibn 'Allàq indicates, he will receive nothing. If, on the contrary, he had not declared that he was acting voluntarily but, rather, in the hope of receiving remuneration, he would be entitled to the latter in payment of those professional services worth paying for and of which evidence can be produced; this can only be implemented after the claimant has sworn an oath as to the fact that he had acted to receive a salary as, most probably, he had actually worked for free.33 Although it was the founder’s prerogative to appoint a nàΩir, the former did not always exert this right and it fell upon the qà∂ì to monitor the donation. The possibility, however, that, depending on the type of donation and local conditions, the donation could be entrusted to someone acting as a nàΩir of a particular kind of assets cannot be discarded. I am referring, for instance, to donations in favour of the poor and the infirm. Some documentary evidence alludes to that possibility. That is the case, for example, of the aforementioned legal query concerning the case of a man who, in the aftermath of the demise of the nàΩir he had appointed, put another man in charge of his ˙ubs; the newly-appointed administrator acted as a manager of assets donated in favour of the poor and the indigent.34 With regard to donations for the poor, the 1503 inventory of habices of Granada and La Vega also points to the existence of a
33 Al-Wansharìsì, Mi'yàr, VII, p. 208 (trans. V. Lagardère, Histoire et société, pp. 283–284, p. 253). 34 Al-Wansharìsì, Mi'yàr, VII, p. 143 (trans. V. Lagardère, Histoire et société, p. 266, no 192).
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triple management system: through local quarters, through mosques or through administrators or ‘stewards’, former fuqahà". The latter play the most relevant role as they were in charge of 67.6% of mosques’ assets; of that number, 70% of properties were managed by only two individuals, the foreman Abarrasin (47.1%) and the scholar Senen (23%) whereas the remaining 30% was shared by other stewards in varying proportions, always below 2% of the total.35 It is not possible to ascertain at this stage whether this situation is an accurate reflection of Nasrid reality but the assumption that both individuals may have even performed the same function during the last phase of that period must not be carelessly discarded.
3. The functions of the qà∂ì The role of the qà∂ì in the management of pious endowments has been documented since at least the early 7th century in Egypt. The first Andalusian qà∂ì was Mahdì b. Muslim, appointed by the ruler (wàlì) of Ifrìqiya, 'Uqba b. al-Óajjàj al-Salùlì (739–741), although P. Chalmeta believes that this tradition lacks credibility and maintains that the first appointment of a qà∂ì, Ya˙yà b. Yazìd al-Tujibì— appointed by the wàlì (governor) of Ifrìqiya ÓanΩala b. Safwàn alKalbì—took place a bit later, in about 743.36 Whatever the case, the truth is that there are no data on the intervention of the qà∂ì in matters concerning pious endowments until the early 9th century. The earliest reference is supplied by al-Khushanì and involves alFaradj b. Kinàna al-Kinànì, appointed as qà∂ì-l-jamà'a in Córdoba by al-Óakam I (180–206 h/796–822). As these aspects have already been pored over in a previous chapter, I will analyse here the role of the qà∂ì vis-à-vis pious endowments in al-Andalus. Managing a˙bàs constituted one of the main duties of the qà∂ì, as highlighted by the fact that al-Nubàhì ranks it fourth among the ten duties assigned to that magistrate: ‘look after the assets of charitable trusts, inspect them and ensure that they are safe and also scrutinise the work of their custodians’.37 Also indicative of the importance 35
P. Hernández Benito, La Vega, pp. 46–48 and 61 (table V). P. Chalmeta, ‘Presupuestos políticos e instrumentos institucionales y jurídicos en al-Andalus’, p. 58. 37 Al-Nubàhì, Ta"rìkh qu∂àt al-Andalus, ed. E. Lévi-Provençal, p. 5; ed. and trans. A. Cuellas Marqués, 17 (Arabic) and 106 (trans.); trans. J. Lalinde Jürss, p. 705. 36
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of ˙ubs-management among a qà∂ì’s functions is the presence, in the decree (Ωàir) appointing Mu˙ammad b. Is˙àq b. al-Salìm as Córdoba’s qà∂ì-l-qu∂à at the behest of the caliph al-Óakam II (350–366 h/961–976) in 15 Sha'bàn 353 h (27/8/964), of an explicit reference to pious endowments in the ‘schedule’ of activities commissioned by the caliph: ‘reinitiate the inspection and scrutiny of people’s properties, of a˙bàs and of orphans, leasing them out through a qabàla contract in an appropriate manner and demanding a higher rent from those willing to rent them’.38 Another feature of the qà∂ì’s role in the supervision of a˙bàs is his exclusivity, as he was the only Islamic magistrate empowered to intervene in affairs affecting them, as 'Iyà∂ reports in a fatwà which excludes the holders of magistracies known as ‘dealing with abuses’ (ßà˙ib al-maΩàlim) and ‘addressing complaints’ (al-radd ), as well as the chief of police (al-shur†a), from that function.39 The specific duties of the qà∂ì in relation to the issue we are dealing with here are doubtless defined in the manuals designed for their instruction. Two of them are known in al-Andalus, the Kitàb muntakhab al-a˙kàm by Ibn Abì Zamanìn (d. 399 h/1008) and the Mufìd li-l˙ukkàm by Ibn Hishàm al-Qur†ubì (d. 606 h/1209),40 both of which remain unpublished. It can be said, with regard to this, that his functions are two-dimensional: first, the general supervision of all pious endowments which includes, among other things, the right to appoint and dismiss the nàΩir under certain circumstances; second, the management of certain assets over which he exerts direct control, sometimes delegated to a subordinate (ßà˙ib al-a˙bàs). 3.1. Direct and indirect management The sources undeniably show that the qà∂ì directly managed some a˙bàs whose origins would respond to a double casuistry. On the 38 Al-Nubàhì, Ta"rìkh qu∂àt al-Andalus, ed. E. Lévi-Provençal, p. 76; ed. and trans. A. Cuellas Marqués, 110 (Arabic) and 246 (trans). According to E. Lévi-Provençal, España musulmana hasta la caída del califato, p. 73, note 51, this text, ‘undoubtedly genuine’, is the most interesting in order to ascertain the responsibilities of the qà∂ì. The Ωahìr was translated by Mª L. Ávila in ‘La proclamación (bay'a) de Hi“àm II’, Al-Qan†ara, I (1980), pp. 100–102. 39 'Iyà∂, Madhàhib al-˙ukkàm, p. 35 (trans. D. Serrano, p. 157); al-Wansharìsì, Mi'yàr, X, p. 100 (trans. V. Lagardère, ‘La haute judicature’, p. 188 and V. Lagardère, Histoire et société, p. 458, no 151). 40 See A. Carmona González, ‘Ibn Hi“àm al-Qur†ubì y su Mufìd li-l-˙ukkàm’, Quaderni di Studi Arabi, 5–6 (1987–1988), pp. 120–130.
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one hand, there were endowments whose founder did not appoint anyone in particular to take charge of their management or assets whose administrator had passed away without any provisions having been made in the donation deed as to whom should substitute him. On the other, endowments for which no particular nàΩir had been designated that had been devoted to an aim for which no organisation or body designed to put them into use existed, such as those for the poor and the ill. In both cases, the qà∂ì could decide either to manage them personally, directly or via his attendant (ßà˙ib al-a˙bàs), or appoint an administrator. Several sources show that the qà∂ì must admit the existence of the administrator appointed by the founder and, in case there was none, he could take upon himself the management of the endowment. This fact is pointed out by al-Màwardì and other jurists like Ibn Juzayy, al-Jazìrì and Ibn 'Abd al-Salàm.41 There is also a passage in Ibn 'Abdùn’s work which might be referring to this, but it is quite ambiguous: ‘anyone who has been put in charge of a pious foundation in order to supervise it and has been appointed to that office by the qà∂ì must be offered assistance and support, especially if his honesty and probity are widely known’.42 The key question here is what the expression ‘pious deed’ (bàb min abwàb al-khayr) actually means and to what extent it can be associated with the management of pious donations. Somewhat more explicit are the references to the process involved in hiring an imàm found in Ibn Mughìth’s and al-Jazìrì’s formularies; this task is allegedly incumbent upon the nàΩir, referred to as the person in charge of managing the properties of such and such mosque ‘and is appointed by the qà∂ì’ (bi-taqdìm al-qà∂ì).43 Whereas as far as the appointment of the nàΩir was concerned the scope of action of the qà∂ì was partially restricted by guidelines drawn up by the founder, his authority seems to have been less constrained when it came to dismissing him as he was ultimately responsible for all pious bequests. The founder’s opinion did not count in this particular instance and the qà∂ì was the only one authorised to demote
41 Al-Màwardì, al-A˙kàm al-sul†àniyya, p. 90 (trans. E. Fagnan, p. 144); Ibn Juzayy, al-Qawànìn al-fiqhiyya, pp. 376–377; al-Jazìrì, al-Maqßad, p. 287; al-Wansharìsì, Mi'yàr, VII, p. 339 (trans. V. Lagardère, Histoire et société, pp. 218–219, no 33). 42 Ibn 'Abdùn, Risàla, p. 248 (trans. E. García Gómez, pp. 173–174, no 208). 43 Ibn Mughìth, al-Muqni', p. 202; al-Jazìrì, al-Maqßad, p. 243.
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him as a result of embezzlement or diversion of funds under his care. This is what happens in a case presented to Ibn Lubb concerning a man who had donated a piece of land for charitable purposes—not specified in the text—and appointed an administrator (muqaddam) to manage it so that its revenues could be adequately employed. After a while, he decided to get rid of him and find a substitute. In his reply, Ibn Lubb points out that fuqahà" hold the view that the founder has no legal capacity to dismiss an administrator formerly appointed by himself due to the fact that the beneficiaries’ right to make use of the ˙ubs is directly linked to the way it is managed. This would only be possible, moreover, if the administrator is guilty of wrongdoing either as a result of negligence or because he has squandered the revenues under his control; similarly, a qà∂ì may not remove from office whoever is in charge of the tutelage of legally incapacitated individuals (ma˙jùr) or, by the same token, take charge of the management of a pious endowment unless there is no doubt that the dismissal of the former administrator was inevitable and the appointment of a new one is not damaging to the interests of the ˙ubs.44 We can recall here the case of the donation in favour of those keeping watch over and defending the town of Vélez (Málaga) against Christian raids. The founder appointed a nàΩir and the latter administered the ˙ubs for ten years during which, apparently, he did not allocate the revenues flowing from its usufruct to the purpose selected by the benefactor. He was thus asked to release those revenues in order to acquire another property so that it could serve the same philanthropic purpose as, the mustaftì argued, the town was not at risk at the time. The nàΩir refused and a fatwà was demanded to ascertain whether he ought to be audited and summarily dismissed. Two jurists rule on this case and both agree that the qà∂ì must have him replaced if evidence that he has committed any irregularities while managing the assets whose usufruct was entrusted to him can be produced.45 Apart from these general considerations, few geographically and chronologically contextualised data on the activity of particular qà∂ìs
44 Al-Wansharìsì, Mi'yàr, VII, p. 91 (trans. V. Lagardère, Histoire et société, p. 279, no 238). 45 Al-Wansharìsì, Mi'yàr, VII, p. 145 (trans. P. Guichard and V. Lagardère, ‘La vie sociale’, pp. 222–223; V. Lagardère, Histoire et société, p. 267, no 195).
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can be found. Since the main references concerning times before the caliphate have been analysed above (see chapters 3 and 6), I will focuse here on other information. The aforementioned Córdoban qà∂ì Mu˙ammad b. Salìm, judging from the nature and volume of references available on him, seems to have played a prominent role in matters regarding pious endowments in al-Andalus, both from legal and practical perspectives. His involvement with assets turned into a˙bàs can be traced back to the actual moment of his appointment as qà∂ì-l-jamà'a of Córdoba by al-Óakam II in 353 h/964 since, as mentioned above, he received specific instructions on procedures affecting pious bequests. Ibn al-Salìm, likewise, acted as a witness in the donation made by the caliph himself to sponsor the teaching of Córdoba’s poor children (see chapter 6). We also know the names of three individuals either designated by him to take charge of the management pious endowments or carrying out their duties during his lifetime (see infra). Secondly, regardless of these references to his activity, Ibn alSalìm’s role seems to have been significant from a legal point of view as he is quoted as an authoritative source of jurisprudence in several aspects. Jurists from later periods (11th–12th centuries) indeed concur in attributing to him the introduction of some legal practices which would gradually take root and become an integral part of legal proceedings. The first is that regarding the inclusion of female descendants in the group of beneficiaries of a donation conducted by their father, based on fatàwà issued by most contemporaneous jurists and his own personal legal postulates (ra"y)46 (see chapter 5). Similarly, Nasrid legal experts use his views to prop up their own rulings on the legality of revenue transfers between different pious endowments irrespective of whether they pursue the same or different aims provided that the motives were charitable or pious;47 this means that a widespread practice of the Nasrid period actually originated under the caliphate (see chapter 9). Finally, al-Jazìrì quotes his words
46 Ibn al-'A††àr, Kitàb al-wathà"iq, p. 204 (trans. P. Chalmeta and M. Marugán, p. 402); Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, II, pp. 1122 and 1125, ed. alTajkànì, II, pp. 991 and 998. See P. Chalmeta, ‘Acerca del 'amal en al-Andalus’, p. 354. 47 Al-Wansharìsì, Mi'yàr, VII, pp. 91–92 (trans. V. Lagardère, Histoire et société, p. 279, no 239), VII, pp. 146–147, VII, pp. 200–201, VII, pp. 218–220 (trans. V. Lagardère, Histoire et société, p. 255, no 152).
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to support the lawfulness of donations made in favour of the nasciturus (al-ta˙bìs 'alà-l-˙aml) alongside other quotations from fuqahà" like Mu˙ammad b. 'Abd al-Malik b. Ayman, Ibn Zarb and Ibn al-Hindì.48 Apart from these data we know very little of the activity of other qà∂ìs vis-à-vis ˙ubs properties. We have a reference concerning the judge Mundhir b. Sa'ìd al-Ballù†ì (d. 355 h/966) in which he appears as responsible for taking-over (˙iyàza) some land (ar∂ mu˙abbasa) along with a group of jurists and reliable men (wujùh al-fuqahà" wa-ahl al'adàla).49 Other information is closely related to the political evolution of events after the fall of the caliphate and the beginnings of the Taifa system, when Christian kingdoms became more powerful than Muslim states and imposed regular taxes on them in lieu of military attacks. This new political situation caused much trouble for the Muslim political authorities, as the need to keep up with these payments forced them to take unpopular decisions. Partly as a result of this, the pious endowments system was seriously affected: from the 5th/11th century onwards our sources describe situations of bad management, usurpations and plundering and provide us with some information about qà∂ìs who were appointed with the specific mission of recovering assets which, given their condition as a˙bàs, had been lost or completely forgotten about either because they had been usurped or documents certifying their status had been misplaced. This is, for instance, the case of qà∂ì 'Abdallàh b. 'Umar b. A˙mad al-Wa˙ìdì, appointed at Rayya in 521 h/1127–1128, who tried to instigate the restitution of the pious endowment system (akhadha fì tajdìd mà kàna qad darasa min rasm al-a˙bàs).50 These cases and situations will be analysed in detail below (see chapter 10). Apart from directly managing some endowments, the qà∂ì was in charge of the general supervision of all pious donations, as indicated by Ibn Sahl.51 This duty materialises in a number of actions which I intend to show in the following paragraphs. We must resort to the corpus of jurisprudence for cases where legal scholars, when asked about a particular aspect of the administration or the donation of a 48
Al-Jazìrì, al-Maqßad, p. 293. Ibn Khàqàn, Ma†ma˙ al-anfus, p. 255. See the biographical references of Mundhir b. Sa'ìd al-Ballù†ì apud Mª L. Ávila, La sociedad hispanomusulmana, 159, no 866. 50 Al-Nubàhì, Ta"rìkh qu∂àt al-Andalus, ed. E. Lévi-Provençal, p. 104; ed. and trans. A. Cuellas Marqués, 147 (Arabic) and 298 (trans). 51 Apud E. Lévi-Provençal, L’Espagne musulmane au Xe siècle, p. 84 and España musulmana hasta la caída del califato, p. 73. 49
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˙ubs, reply that that specific aspect was the qà∂ì’s responsibility. In Ibn al-'A††àr’s treatise for notaries there is a reference to a function performed by the qà∂ì when the donation deed is being drawn up. It belongs to the section on jurisprudence ( fiqh) of a formulary for donating alms (ßadaqa). In order to interpret it one must take into account that, when transferring the ownership of a property from one party to another—particularly rural properties—, all the taxes levied on it must have been paid in advance.52 Thus, when a property which still had taxes outstanding (milk muwaΩΩaf ) was donated for a charitable purpose (a mosque, the poor), the qà∂ì had to assess whether such a donation would be useful or not for the purpose it was intended to serve. The text is as follows:53 When someone turns a property with outstanding charges into an endowment for the indigent or for a mosque, the qà∂ì will examine this [matter]. If it is deemed beneficial for the indigent or for the mosque, he will sanction the deal and will approve the setting-up of the trust and the ˙ubs. [However], when it appears that the [foundation or ˙ubs] set up in favour of the [indigent] may not bring about any benefit, the [qà∂ì] will declare it null and void and return it to its owner.
Apart from this reference, the most significant feature is perhaps the fact that cases in which the qà∂ì’s intervention seems inevitable are usually associated with certain operations which affected the nature and integrity of the ˙ubs; in this particular instance, administrators were not authorised to perform those tasks themselves. This applied, for example, in cases where it is suggested that a ˙ubs may be sold; as we know, an endowment is legally inalienable. As I will devote a separate section to arguments supporting the fact that selling a ˙ubs may be a legitimate transaction (chapter 9), I will refrain myself from making any comments on this particular role of the qà∂ì, but I will provide here the relevant source references.54 The qà∂ì’s authorisation is also required when ownership of a ˙ubs
52
P. Chalmeta, ‘Un formulario notarial hispano-árabe’, pp. 186–187. Ibn al-'A††àr, Kitàb al-wathà"iq, p. 220 (trans. P. Chalmeta and M. Marugán, p. 413). 54 Al-Wansharìsì, Mi'yàr, VII, p. 94, VII, p. 183, VII, pp. 199–200, VII, p. 460 and Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, III, p. 1359, no 480, ed. al-Tajkànì, II, pp. 1213–1214, no 315; Mi'yàr, VII, pp. 460–461 and Ibn Rushd, Kitàb alfatàwà, II, pp. 1080–1081, no 325, II, pp. 948–950, no 253. 53
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is being exchanged (mu'àwa∂a). An anonymous fatwà suggests the possibility of exchanging a barren piece of land (ar∂ ghàmira) belonging to a mosque for a better one. The ruling is based on Ibn Rushd’s opinion and the anonymous jurist reports that if land set up as a ˙ubs is not profitable and attempts to make it fertile prove futile, it is permissible to exchange it for more productive land, always with the sanction of a qà∂ì issued once the source of the problem and the advantage resulting from the exchange are established ( yakùn dhàlik bi-˙ukm min al-qà∂ì ba'da thubùt dhàlik al-sabab wa-l-ghib†a fì-l'iwa∂ ).55 Ibn al-Makwì has to address a similar problem. It involves a man who donated a plot of land to a certain mosque. The mosque became dilapidated and local residents left the area wondering what they should do with its assets. Ibn al-Makwì rules that the qà∂ì will have to find a solution ( yajtahid al-qà∂ì fì dhàlik bi-ma yarà-hu). He then quotes, however, Ibn al-Hindì’s view as to the need to respect the founder’s will and not to tamper with those properties due to the likelihood that the mosque might be rebuilt in the future: having them transferred to another mosque, he claims, would mean to alter a clause stipulated by the founder (ßarfu-hà ilà ghayr al-masjid min altabdìl li-shar† al-mu˙abbis).56 An almost identical case is dealt with by al-Saraqus†ì some centuries later. It involves, this time, a depopulated village inhabited only by a man and his family and their cattle. The village’s mosque had been endowed with a˙bàs (awqàf ) for the imàm to finance ishfà" prayers during Rama∂àn. There was another village nearby whose dwellers demanded the addition of those assets to their own mosque. The jurist resolved that if an imàm could be found to lead the prayers of the last man remaining in the village or whoever happened to pass by, its mosque’s properties could not be transferred. If an imàm was not available though and there was no hope to repopulate the village, the qà∂ì was entitled to put them under the ownership of any mosque whose properties did not generate sufficient revenues
55 Al-Wansharìsì, Mi'yàr, VII, p. 138 (trans. V. Lagardère, ‘La haute judicature’, p. 163, ‘Abù-l-Walìd b. Ru“d’, p. 215 and V. Lagardère, Histoire et société, p. 269, no 204). 56 Al-Wansharìsì, Mi'yàr, VII, p. 436 (trans. E. Amar, ‘La pierre’, XIII, p. 375, V. Lagardère, Histoire et société, p. 257, no 161).
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(ßàgha la-hu naql a˙bàsi-hi ilà ˙aythu yurìd min al-masàjid allatì laysa fì a˙bàsi-hà kifàya la-hà).57 The qà∂ì’s advice is also sought on the possibility of devoting the surplus produced by a ˙ubs to a purpose other than that selected by the founder. Legal texts are in agreement in considering the qà∂ì Ibn al-Salìm as the pioneer of the legalisation of the transfer of surplus from one ˙ubs to another. There is a fatwà on the issue by Ibn ManΩùr, issued in response to a query regarding a ràbi†a in the town of Vélez which was only used as a prayer hall during Rama∂àn but was endowed, nonetheless, with fields of olive trees. He was asked whether it was lawful that, once its needs had been met, its surplus was employed to undertake repair works along the town’s ramparts, fortify some frontier outpost or any other charitable endeavour. He replied that that surplus could be handed over to a similar ràbi†a devoid of revenues; but he also warned that, according to some judges in Córdoba, that surplus could be devoted to any other undertaking that might proved useful to Muslims. The qà∂ì, he concluded, would endeavour to come up with the best course of action.58 Another aspect where the intervention of the qà∂ì became imperative was the division of a ˙ubs. This is reflected by Ibn al-Makwì in the case of a family donation, conducted by a man in favour of his sons and their progeny, involving a property under joint ownership (mushà' ). The founder’s heirs demanded that both their share and that corresponding to the ˙ubs be divided up, probably to avoid being affected by the constraints inherent to this type of property. Ibn al-Makwì maintained that their demand was reasonable but only the qà∂ì was qualified to implement it.59 The qà∂ì could also act as an intermediary between the administrator of a mosque and the beneficiaries of its endowments when disputes arose regarding disagreements on their usufruct. This is what happened in a case where an administrator (muqaddam) tried to persuade the muezzin to hand over a share of his usufruct of the revenues produced by the ˙ubs—a privilege he had enjoyed for years—so
57 Al-Wansharìsì, Mi'yàr, VII, pp. 143–144 (trans. V. Lagardère, Histoire et société, pp. 266–267, no 193). 58 Al-Wansharìsì, Mi'yàr, VII, pp. 145–146 (trans. M. Marín, ‘Documentos jurídicos y fortificaciones’, p. 81). 59 Al-Sha'bì, al-A˙kàm, p. 146, no 182; al-Wansharìsì, Mi'yàr, VII, p. 432 (trans. V. Lagardère, Histoire et société, p. 257, no 159).
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that it could be used to the advantage of the mosque. The muezzin would not cave in. Abù-l-'Abbàs al-Sharìf ruled that the correct procedure was to stick to the stipulation in the original donation deed. If the latter was no longer available and the muezzin claimed that the ˙ubs had been donated in his favour, the faqìh tended to agree with him and argued that the lack of disputes on the issue throughout the years made his decision still more sound. He concludes by indicating, however, that the village’s qà∂ì was to find a satisfactory solution to the case and seek the advice of qualified individuals prior to making a final decision ('alà-l-qà∂ì bi-l-maw∂i' an yajtahida fì dhàlik wa-yasta'ìnu bi-ra"y ghayri-hi min ahl al-fahm wa-l-dìn wa-l-ma'rifa).60 Jurisprudence shows us the qà∂ì’s responsibility for the correct economic exploitation of public pious endowments. This is the case in a legal question concerning land (ar∂ ) donated to the ˙ißn of Alfamín, in Toledo, which was rented for seven years. During the last two years, the renter did not pay the rent and then the qà∂ì wanted to take away the land from him and give it to some trustworthy person (tawqìfu-hu 'inda thiqa). The Toledan fuqahà" denied the qà∂ì the right to do so, because, they argued, that meant changing it from surety to security (min dhimma ilà amàna), which would result in a waste or loss (ta∂yì' ). The three jurists who answered this question did not agree: Ibn Sahl and Ibn al-Qa††àn supported the qà∂ì, while Ibn 'Attàb approved the opinion of the Toledan fuqahà".61 Another similar case happened in Córdoba in 407 h/1016–1017, when a group of tenants (mutaqabbilùn) of a number of orchards were troubled by natural disasters and other setbacks resulting in severely diminished yields. Some were ravaged by a plague of insects in March 1017; the proximity of Christian troops to the eastern quarters of the town prevented them from watering the fields in August 1016 and, consequently, they asked the qà∂ì to consider cutting down the amount of rent they paid as agreed on the lease (qabàla) they had signed. This information has been transmitted by Ibn Sahl and, in an abridged version, also by al-Wansharìsì.62 60 Al-Washarìsì, Mi'yàr, VII, pp. 155–156 (trans. V. Lagardère, Histoire et société, p. 252, no 143). 61 Ibn Sahl, Dìwàn, I, pp. 635–637; al-Wansharìsì, Mi'yàr, VII, p. 477 (trans. V. Lagardère, Histoire et société, p. 287, no 266). See D. Serrano Ruano, ‘La escuela de alfaquíes toledanos a través del Mi'yàr de al-Wan“arìsì’, Revista del Instituto Egipcio de Estudios Islámicos, XXX (1998), p. 139. 62 Ibn Sahl, Wathà"iq fì shu"ùn al-˙isba, pp. 24–25 and 62–93; al-Wansharìsì, Mi'yàr,
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The fiqh contemplates the possibility of reducing the rent paid by tenants in the eventuality of a natural calamity ( jà"i˙a) affecting the annual harvest; a calamity could be brought about, it was assumed, by a plague of insects, drought, floods, etc.63 Some tenants requested that the qà∂ì Abù-l-Mu†arrif 'Abd al-Ra˙màn b. A˙mad b. Bashìr64 reduce by a third the rents paid for the use of orchards located on the ramla, which was the area along the right bank of the river Guadalquivir, as it passed through the Andalusian capital. They also demanded from him that he cut by a quarter the rent paid on orchards to the south and east of the city; they were being ravaged by hordes of rabbits. But the qà∂ì either could not or refused to do anything on the matter as, after his dismissal by Hishàm III in 419 h/1029,65 the tenants repeated the same demands to his successor Yùnus b. 'Abdallàh b. Mughìth, known as Ibn al-Íaffàr.66 The latter sought the advice of the judicial consultative body (shùrà) before ruling on the case. The audit conducted to estimate the losses suffered by the orchards at the qà∂ì’s behest ('aqd fì imti˙àn mablagh al-jà"i˙a) clearly states that the lands were under the management of the judge’s office (dìwàn al-qu∂à).67 The opinions of the judges whose advice was sought fell into two categories. One group, Abù 'Alì-lÓasan b. Ayyùb al-Óaddàd (d. 425 h/1033–1034) and Abù Mu˙ammad 'Abdallàh b. Ya˙yà b. Da˙˙ùn (d. 431 h/1039–1040), were reluctant to adopt a benevolent attitude towards the tenants. The other three fuqahà", however, namely Abù-l-Walìd al-Layth b. Óarìsh (d. 428 h/1036–1037), Abù Mu˙ammad 'Abdallàh b. Sa'ìd b. alShaqqàf (d. 426 h/1034–1035) and Abù 'Alì Óùsayn b. Mu˙ammad b. Salmùn al-Masìlì (d. 431 h/1039–1040),68 were more favourable to the arguments brandished by the tenants.
VII, pp. 446–451 (trans. V. Lagardère, Campagnes, pp. 155–158 and V. Lagardère, Histoire et société, pp. 258–259, no 165). 63 See on this the formularies included in Ibn al-'A††àr’s treatise, Kitàb al-wathà"iq, pp. 379–403 (trans. P. Chalmeta and M. Marugán, pp. 605–621). 64 See references to his biography apud M.L. Ávila, La sociedad hispanomusulmana, no 162. 65 See Mª.J. Viguera, ‘Los jueces’, p. 127. 66 See references to his biography apud M.L. Ávila, La sociedad hispanomusulmana, no 1110. 67 Ibn Sahl, Dìwàn, II, pp. 1136–1137; ed. Khallàf, Wathà"iq fì shu"ùn al-˙isba, p. 63. 68 See references to them all apud M.L. Ávila, La sociedad, no 96, 104, 445, 481, 590 and 1110.
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The first group points out that judges had always been receptive to tenants when asked to lower the amount of rent in order to project an approachable attitude and for the sake of a˙bàs themselves as this was thought of as a blandishment to persuade people to rent them.69 Al-Shaqqàf ’s arguments are identical to those presented by Ibn Óarìsh and his response is very similar but he expostulates even further and claims that qà∂ìs always were understanding, even when not confronted by natural plights: he recalls, to substantiate this point, the case of the vizier-cum-qà∂ì 'Abd al-Ra˙màn b. Mu˙ammad70 who heard the grievances of the tenants of the public bath on their low income and the difficulty of operating the boilers due to incessant rains and resolved, after consulting legal experts, to exempt them from a month’s rent. He decided, therefore, to advise the qà∂ì to follow the example of his predecessors, to be generous with the tenants and understanding towards their complaints as a means of ensuring that the endowment remained profitable and increasing competition among those bidding to rent it.71 Lastly, Ibn Salmùn’s response is the most concise as he confines himself to pointing out that it was within the qà∂ì’s prerogatives to reduce the rent if he so wished. Abù 'Umar b. 'ManΩùr’s was confronted with a similar case involving some properties (amlàk) belonging to Vélez’s congregational mosque and to the poor residents and other pious endowments. After a sudden rise in the volume of water carried by the river flowing next to their properties, the latter were flooded and left covered with sand and stones once the waters receded; that was why, the mustaftì stressed, those lands would not be suitable for cultivation that year nor the following. Other plots of land located far from the river had also been affected by torrential rains which had ruined that year’s harvest. The jurist was asked whether tenants were liable to pay any rent that year or whether, on the contrary, existing contracts—signed for a period of four years—had to be rescinded, in accordance with
69 Ibn Sahl, Dìwàn, II, pp. 1139–1140; ed. Khallàf, Wathà"iq fì shu"ùn al-˙isba, p. 72. 70 According to Khallàf, it is actually 'Abd al-Ra˙màn b. Mu˙ammad b. 'Ìsà b. Fu†ays b. Aßbagh b. Fu†ays b. Sulaymàn (d. 402 h/1011–1012), appointed qà∂ì-lqu∂àt in 394 h/1003–1004. See his biographical references apud M.L. Ávila, La sociedad hispanomusulmana, no 181. 71 Ibn Sahl, Dìwàn, II, pp. 1143–1145; ed. Khallàf, Wathà"iq fì shu"ùn al-˙isba, p. 73.
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customary practices regarding a˙bàs, and replaced by others setting a different, lower, amount of rent. He replied that, considering the lack of profit, that year’s rent would be reduced. Contracts, however, would remain binding until they expired.72 The most benevolent position, that is agreeing to lower the rent even if no natural catastrophe had occurred, is also subscribed by Ibn Rushd when he rules on the issue of whether tenants of shops are entitled to demand a reduction in the amount of rent they pay due to losses resulting from sluggish commercial activity, and of whether the shops belonging to a ˙ubs ought to be considered in the same category as the others. He retorts that a decrease in commerce triggered by people’s financial difficulties was not comparable to a mishap as, in the latter case, tenants were entitled to ask for a smaller rent; this rule applied both to standard shops and those set as ˙ubs as regulations were the same for both. He believes, nonetheless, as did the rest of his colleagues, that if the qà∂ì deems it necessary to reduce the rent paid by ˙ubs shops in order to ingratiate himself with the tenants he is legally authorised to do so in the same way, he recalls, that a wholesale merchant can make a discount on the merchandise he sells to someone who places an order with him.73 These texts thus suggest the idea that a tenant of a ˙ubs tended to be quite accommodating. On the one hand, his insistence to limit the length of the contract to four years (see chapter 4) denotes his reluctance to undertake any improvement works on a property he does not own. On the other, a tenant was entitled to request a decrease in the amount of rent paid due to justifiable reasons ( jà"i˙a, contemplated by the fiqh) as well as to more debatable ones (a shortfall in productivity as a result of purely economic reasons); qà∂ìs usually addressed both types of demands favourably in order to persuade others to rent pious bequests in the future and prevent them from remaining unprofitable.
72 Al-Wansharìsì, Mi'yàr, VII, pp. 157–158 (trans. V. Lagardère, Histoire et société, p. 285, no 259). 73 Ibn Rushd, Kitàb al-fatàwà, ed. al-Tajkànì, II, p. 1144, no 304 and Al-Wansharìsì, Mi'yàr, VII, pp. 451–452 and VIII, p. 288 (trans. ‘La pierre’, XIII, p. 53; V. Lagardère, ‘La haute judicature’, pp. 163 and 166–167, 'Abù-l-Walìd b. Ru“d’, pp. 215 and 217, V. Lagardère, Histoire et société, p. 270, no 206). Ibn Salmùn reproduces part of the fatwà in his Al-'Iqd al-munaΩΩam, apud P. Cano Ávila, ‘Alquiler de algunos inmuebles urbanos’, in P. Cano Ávila and I. Garijo Galán (eds.), El saber en al-Andalus. Textos y estudios I, Seville, 1997, p. 29.
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The qà∂ì also carried out supervisory and monitoring duties for private or family donations, as 'Iyà∂ states in a fatwà,74 but, in this case, his role was rather different. Those assets remained under the ownership of their beneficiaries who exploited them for their own benefit, as in any private property, but were not authorised to sell them due to their legal status as ˙ubs property. In this respect, the qà∂ì’s ability to influence the way they were run was nil; he could only intervene in two instances: when grievances or feuds between individuals aspiring to the status of beneficiary of a family donation arose—the qà∂ì had to assess their validity and rule in accordance with the stipulations set by the founder; he was also obliged to step in when attempts at selling assets belonging to these donations were detected. Ibn al-'A††àr’s treatise for notaries includes two formularies on this issue, both practically identical,75 recording the measures one must take when a property belonging to a private donation has been sold. They can be summed up in two parts: firstly, the claimant must demonstrate to the qà∂ì that the property in question was actually ˙ubs, either by exhibiting the original donation deed, authenticated by the signatories who witnessed the proceedings or by others who vouched for them, or by resorting to the oral testimony of the witnesses present during the donation if the latter had not been recorded in an official document or the original deed had been misplaced. After evidence had been produced, the qà∂ì was to arrange for that property to be confiscated, with the consequent legal repercussions for the individual who had ‘illegally’ acquired it; penalties could differ depending on whether the buyer was one of the beneficiaries or had bought it from a third party. 3.2. The Treasury of pious endowments The management of a˙bàs in al-Andalus was not entrusted to a central body so that, unlike in Egypt, there was no dìwàn in charge of collecting the revenues produced by those assets. Some texts, in particular Ibn 'Abdùn’s Risàla, tackle the issue, however, of whether a
74
'Iyà∂, Madhàhib al-˙ukkàm, p. 35 (trans. D. Serrano, p. 157); al-Wansharìsì, Mi'yàr, X, p. 100 (trans. V. Lagardère, ‘La haute judicature’, p. 188 and Histoire et société, p. 458, no 151). 75 Ibn al-'A††àr, Kitàb al-wathà"iq, pp. 588–594 and 620–625 (trans. P. Chalmeta and M. Marugán, pp. 860–866 and 931–936).
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‘treasury’ or trust made up of the revenues generated by some pious endowments and placed under the exclusive control of the qà∂ì existed or not. The first author to broach the subject was E. Lévi-Provençal, but he did so in a very misleading way as he mixed up the notions of Public Treasury (bayt al-màl ) and pious endowments without establishing a clear distinction between them. This author did indeed refer to the issue in several works but the statements he made on different occasions were incoherent. In his earliest works, he stated that the expression bayt al-màl designated in al-Andalus the ‘treasury of pious foundations’ comprising the revenues flowing from a˙bàs.76 In his joint translation of Ibn 'Abdùn’s Risàla—with E. García Gómez— he remarked, however, that the bayt al-màl or khizànat al-màl was the Public Revenue or State Treasury, whereas what Ibn 'Abdùn calls bayt màl al-muslimìn was the treasury of pious foundations comprising the a˙bàs.77 To compound matters and ‘contradicting his own contradictory statement’, however, out of the four instances where Ibn 'Abdùn uses the expression bayt al-màl, only one is translated as ‘the state’s treasury’,78 twice it is translated as ‘treasury of pious foundations’79 and once simply as ‘treasury.80 In spite of E. Lévi-Provençal’s unclear and even contradictory opinion, it has been repeated verbatim by most of the authors who have later studied the topic, thereby highlighting one of the insidious side-effects resulting from unquestioningly embracing the views expressed by authoritative scholars.81 76 E. Lévi-Provençal, L’Espagne musulmane au Xe siècle, pp. 71–72, 85 and 221 and España musulmana hasta la caída del califato, pp. 18 and 77–78. 77 E. García Gómez and E. Lévi-Provençal, Sevilla a comienzos del siglo XII, p. 56, note 1. 78 Ibn 'Abdùn, Risàla, p. 201 (trans. E. García Gómez, p. 59, no 12). 79 Ibn 'Abdùn, Risàla, pp. 209–210 (trans. E. García Gómez, pp. 77 no 29– and 79 no 32–). 80 Ibn 'Abdùn, Risàla, p. 216 (trans. E. García Gómez, p. 95, no 52). 81 According to Heffening, ‘Wa˚f ’, E.I.1, VIII, p. 1099: ‘under the Umaiyads in Cordoba there was a central treasury for the wakf (bait al-màl in contrast to the state treasury: khizànat al-màl ) under the supervision of the Kà∂i ‘l-Ku∂àt’. Likewise, R. Le Tourneau, E.I.2, I, p. 1182, insisted on the idea: ‘les travaux d’E. LéviProvençal ont montré que dans l’Espagne musulmane, le terme bayt al-màl est presque toujours pris dans un sens limité. En effet cette expression que l’on trouve sous la forme bayt màl al-Muslimìn, désigne le trésor constitué par les revenus des fondations pieuses (awqàf ) et nettement distint du Trésor public proprement dit, appelé communément khizànat al-màl et beaucoup plus rarement bayt al-màl ’. R. Arié, for her part, in España musulmana, p. 96 remarked that the qà∂ì ‘was in charge, most of all, of the administration of the community’s Treasury, the bayt al-màl. Research undertaken by E. Lévi-Provençal has highlighted the fact that, in al-Andalus dur-
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P. Chalmeta maintains this duality of Andalusian fiscal administration in both periods, the emirate and the caliphate, but introduces substantive improvements to E. Lévi-Provençal’s framework without alluding to pious endowments82 at all. There would be, on one side, the màl al-ßadaqa, the amount resulting from the collection of the zakà, equivalent to a tithe on its output ('ushr): this income, which the state administers but does not own, was kept, as in the Near East, at the mosque. On the opposite side there would be the màl al-muslimìn, mainly comprising revenues raised from the application of the fay", that is lands conquered by force and thus belonging to the Muslim State and for whose usufruct indigenous settlers, nonMuslims, pay rent (kharàj ); other categories also fall within the notion of fay" like ownerless properties, apostates’ assets, unclaimed inheritances and the fifth of the ghanìma. All these sources of income formed the bulk of the khizànat al-màl, stored in the emir’s or caliph’s palace. The issue of the likely existence of a treasury containing the revenues generated by pious endowments is first broached in Ibn 'Abdùn’s Risàla. This fact would restrict any conclusions we may reach, in principle, to the specific context described in this work, which is Seville under Almoravid rule. Data from other sources seem to suggest, however, that the possible existence of such a treasury comprising the revenues derived from some pious endowments can be
ing the caliphate of Cordoba, this expression had a restricted meaning in almost all cases. This term, often also rendered bayt mal al-Muslimìn, Treasury of the Muslim Community, designated indeed the treasury comprising the revenues generated by pious foundations which must not be misunderstood as the Public Treasury. The funds making up the Treasury of the community were stored in a chamber of the Great Mosque and only the qà∂ì could make use of them to pay for expenses occasioned by activities regarded as having a public benefit: alms for the poor, upkeep expenditures for mosques and salaries of their attendants’. More recently, P. Hernández Benito, La Vega de Granada, pp. 33–34, contributed in perpetuating the ambiguity when he stated that ‘under the Caliphate, the bayt al-màl comprised of a˙bàs and other assets owned by Muslims who had left their places of residence without appointing an administrator and were protected and preserved by the community’s treasurer. These properties were administered by the qà∂ì and the state had no ownership rights over them, even though the prince sometimes managed to get hold of revenues from those funds. Although the bayt al-màl remained as the same institution during the Nasrid period, Granada’s sultans also made free use of it whenever they needed to’. L. Seco de Lucena, ‘La administración central de los nazaríes’, Cuadernos de la Alhambra, X (1974), p. 26, stated, à propos the bayt al-màl, on the contrary, that ‘we do not know whether this institution administered the a˙bàs or pious endowments’. 82 P. Chalmeta, ‘España musulmana’, p. 500 and ‘Introducción al estudio de la economía andalusí’, p. 118.
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extended also to Córdoba, at least during the period of the Taifa kingdoms. I shall try to present in the following the arguments supporting the existence of that treasury of pious endowments commencing with the references supplied by Ibn 'Abdùn. The author on several occasions throughout his treatise employs two very similar concepts, at least formally; they are bayt al-màl and bayt màl al-muslimìn. The first, as it is well-known, is the common term used by Andalusian Arabic sources to designate the Public Treasury, whereas the second is seldom employed. The key issue here is that Ibn 'Abdùn never sheds light on where the funds deposited in one or the other came from, assuming they were different rather than a single entity designated with two different names which, albeit not identical, are quite similar. The issue has hardly been addressed up to the present day; two aspects, inextricably linked, need to be differentiated: whether bayt màl al-muslimìn and bayt al-màl are the same or different things. If they designated the same reality this would constitute a typical example of the inconsistency pervading administrative terminology, so recurrent among medieval Arabic writers. If, on the contrary, we assume that they are two different things, a hypothesis I will try to elaborate on here, the elements which will enable us to distinguish between both need to be discerned through thorough and in-depth analysis of the texts concerned. Once this distinction has been established, we will have to determine the specific contents or the origins of the revenues found in both ‘treasuries’. The chronological factor also needs to be taken into account. The works by E. Lévi-Provençal and P. Chalmeta cover the emirate and caliphate periods, whereas Ibn 'Abdùn’s work applies to the early 6th/12th century. Given the changes operated in fiscal matters during the Taifa period, it would not be implausible that conditions had noticeably changed between both periods so that some variations in the system designed to store funds from different sources may have taken place. The first issue we must address is whether, when employing the expressions bayt al-màl and bayt màl al-muslimìn, Ibn 'Abdùn refers to two different things or, on the contrary, he is merely being inconsistent in his use of technical-administrative concepts. Every time the expression bayt al-màl is used (four instances) underscores the idea that, because of the context within which it is used and its contents, the bayt al-màl and bayt màl al-muslimìn reflect different concepts. Twice it is stated that the bayt al-màl must be used to pay the salaries of
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two magistrates, namely the ˙àkim and the market inspector (mu˙tasib)83. The third mention indicates that the salary owed to the imàm in charge of conducting the prayers of jail inmates must be drawn from the bayt al-màl.84 The fourth and last reference will be dealt with a bit further on, once references to the bayt màl al-muslimìn have been perused. It seems obvious that the concept of bayt al-màl as it is employed in those passages refers to the state’s Public Treasury. This is hardly surprising as that is the expression usually employed by Arab authors to describe that institution. It is not remarkable that the salaries of public clerks like the ˙àkim and the market inspector are drawn from the Public Treasury. The reference to the salary of the imàm who visits the jail might be peculiar in principle but it is perfectly logical as main mosques of large towns were under the direct control of the state. The expression used by Ibn 'Abdùn ( yuq†a' la-hu al-qà∂ì ujra ma'a al-a"imma min bayt al-màl ) also leads us to assume that the imàms employed by the mosque of Ibn 'Adabbas in Seville did receive their remuneration from the Public Treasury as well; this fact confers on them a status similar to other state functionaries. As for the bayt màl al-muslimìn, a formal difference can be appreciated from the outset since Ibn 'Abdùn devotes a separate chapter to it; he does not do the same thing when it comes to describing the bayt al-màl. He employs this expression on four occasions and each seems to describe, in fact, a different notion. The bayt màl almuslimìn is, in the first instance, a domain under the exclusive and direct authority of the qà∂ì; the latter ‘must not authorise anyone to intervene in affairs affecting the bayt màl al-muslimìn and devote all his attention and energies to it’. His authority on the matter was so wide-ranging that if the ruler (ra"ìs) himself tried to make use of the funds stored at the bayt màl al-muslimìn he had to obtain the qà∂ì’s authorisation and act under his close scrutiny. However, the qà∂ì, for his part, was obliged to seek the advice of local fuqahà" who ‘must be informed of earnings and expenditures, as well as to whom outstanding payments are made to in order to avoid fraud and prevent any possible irregularity to jeopardise their sound management’.85 In accordance with this unrivalled authority, Ibn 'Abdùn remarks that, although the qà∂ì could delegate some of his functions to a ˙àkim, 83 84 85
Ibn 'Abdùn, Risàla, pp. 201 and 210 (trans. pp. 59 no 12– and 79 no 32–). Ibn 'Abdùn, Risàla, p. 209 (trans. p. 77, no 29). Ibn 'Abdùn, Risàla, pp. 200–201 (trans. E. García Gómez, pp. 56–58, no 11).
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the latter was not entitled to intervene in the ‘custody of the funds’ (riqàb al-amwàl ).86 The bayt màl al-muslimìn must be stored, on the other hand, in the Friday mosque, placed under custody and locked up and its keys must be kept by the qà∂ì.87 The last reference deals with the use of funds included in this treasury. If, as a result of a ruling, the qà∂ì was forced to imprison a woman, she would not be sent to jail but put under the custody of a ‘matron’ (imra"a qàbila khayyira); the latter had to accommodate her in her own home and act as a guardian in return for a salary drawn from the bayt màl al-muslimìn.88 Obviously, references to both concepts are completely different as they allude to different situations and realities. I base my argument on two elements: who was authorised to make use of both treasuries, and what were their respective aims. With regard to the first one, Ibn 'Abdùn considers that the qà∂ì has absolute control over the management of bayt màl al-muslimìn which, furthermore, will be left in custody at a congregational mosque. As for the bayt al-màl, on the contrary, Ibn 'Abdùn does not bestow any rights on the qà∂ì nor does he say that it must be kept at a mosque; this is not surprising at all as the bayt al-màl was administered by the ruler and kept in the palace. With regard to this aspect of the qà∂ì’s authority over the bayt màl al-muslimìn, it may be appropriate to recall now the fourth reference to the bayt al-màl mentioned above as it will be instrumental in shedding light on the differences between both concepts. That reference is linked to a problem arising in Seville in the early 6th/12th century; it is clearly illustrated in Ibn 'Abdùn’s text: the inadequacy of urban infrastructures in relation to the number of inhabitants living in the city. This issue applies, on the one hand, to the case of the Friday mosque and, on the other, to the graveyard. On the latter, Ibn 'Abdùn remarks that ‘Seville is a heavily populated city and lacks a large graveyard which would befit a city of that size’. To alleviate the problem he suggests that the qà∂ì ought to recommend to the government (sul†àn) the acquisition, with monies drawn from the bayt al-màl, of a faddàn known as Ibn Maris in order
86 87 88
Ibn 'Abdùn, Risàla, p. 199 (trans. E. García Gómez, p. 53, no 7). Ibn 'Abdùn, Risàla, p. 212 (trans. E. García Gómez, p. 84, no 36). Ibn 'Abdùn, Risàla, p. 209 (trans. E. García Gómez, p. 76, no 28).
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to turn it into a cemetery.89 This statement leaves no room for doubt: bayt al-màl and bayt màl al-muslimìn are two different sources of funding. As we have seen, Ibn 'Abdùn points out that the qà∂ì must consult the local fuqahà" for managing the bayt màl al-muslimìn, but not the ruler, and also that if the latter (ra"ìs) tried to make use of its funds he was required to obtain the permission of the qà∂ì. Thus, the remark that the qà∂ì had better address the government (sul†àn) in order to purchase that plot ( faddàn) employing funds from the bayt al-màl can only be explained if we agree on the fact that the latter constituted a different funds trust to the bayt màl al-muslimìn, over which the qà∂ì exerted absolute control with legal scholars taking on an advisory role. The second argument I employ in order to establish a distinction between both concepts is that of the purpose for which each one of them was earmarked. Ibn 'Abdùn, in this respect, resorts to the notion of bayt al-màl when speaking about the salaries of two state officials (˙àkim and mu˙tasib). He does not do the same, however, when he employs the expression bayt màl al-muslimìn, except in the reference to the payment of a salary to the female jailer; the contents and context of this comment indicate that that woman is not regarded as a state official by Ibn 'Abdùn, which is why it is natural that her remuneration does not come from the bayt al-màl. Once the fact that, when employing both expressions, Ibn 'Abdùn is referring to two different funds or treasuries has been proven, it is necessary to try and discern the contents of each. In principle, Ibn 'Abdùn’s remarks in relation to the use of the bayt al-màl are coherent when contrasted with the rest of Arabic sources; it is undeniable that it must be identified with the Public Treasury, made up of all the taxes collected by the state. As for the bayt màl al-muslimìn, however, the only way to establish the provenance of its funds is by comparing Ibn 'Abdùn’s own description of that treasury with references found in other texts. This will allow us to verify that, as E. Lévi-Provençal remarked somewhat obliquely, the bayt màl almuslimìn was a fund comprising the revenues generated by the usufruct of pious endowments. Ibn 'Abdùn’s characterisation of the funds deposited at the bayt màl al-muslimìn is based on two elements: the qà∂ì’s direct and undisputed control over them and the fact that they were located at the 89
Ibn 'Abdùn, Risàla, pp. 216–217 (trans. E. García Gómez, p. 95, no 52).
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Friday mosque. He reports, on the first element, that the qà∂ì would only allow the ruler (ra"ìs) to dispose of those funds if he used them ‘for some pious purpose’ (wajh min wujùh al-khayr). That expression referred to some undertakings of a military nature: to organise raids against the enemy’s territory, to repair vulnerable posts along the border (thaghr) or to defend Muslims.90 The use of pious endowments for military purposes is well known (see chapter 6) and, thus, it can be assumed that this is the only reference furnished by Ibn 'Abdùn himself indicative of the fact that the bayt màl al-muslimìn was made up of monies from pious endowments. It is, nonetheless, too flimsy an argument; it must be supported by more solid evidence. Even though Ibn 'Abdùn does not clarify the contents of the two concepts he is making use of at all, several references provided by other written sources indicate that the bayt màl al-muslimìn was in fact the treasury comprising the revenues produced by pious endowments put under the direct and exclusive control of the qà∂ì and beyond the reach of political authorities. The first is found in al-Khushanì’s work and refers to the qà∂ì-l-jamà'a of Córdoba, al-Na∂r b. Salama (m. 302 h/914), who was ordered to transfer ‘the funds stored at the Friday mosque’ (al-màl al-muwaqqaf bi-l-jàmi' ) to the Public Treasury (bayt al-màl) by the emir 'Abdallàh. The qà∂ì decided to ask the advice of the fuqahà" and, as a result of disagreements among them, he resolved to spurn 'Abdallàh’s request unless scholars ('ulamà") unanimously agreed to endorse his decision (illà bi-ijmà' ahl al-'ilm). Faced with this attitude, the emir decided to dismiss him and appoint as his substitute Mùsà b. Mu˙ammad b. Ziyàd al-Judhàmì; the latter duly carried out the emir’s wishes and allowed the transfer of assets from the mosque to the Public Treasury.91 The chronicle does not make it possible to ascertain beyond doubt the source of those funds, nor to identify them with pious endowments, as J. Ribera actually did in his rendition of the passage.92 Ibn Sa'ìd al-Maghribì, who also incorporates this event into his work, expressly refers to ‘the heirs’ assets’.93 Whatever the case, the fact that the qà∂ì tried to fight off
90
Ibn 'Abdùn, Risàla, p. 201 (trans. E. García Gómez, p. 58, no 11). Al-Khushanì, Qu∂àt Qur†uba, pp. 136–137 (trans. J. Ribera, pp. 220–221); ídem, Akhbàr, p. 128. 92 The same opinion is found in A.Mª. Carballeira, Legados píos, p. 296. 93 Ibn Sa'ìd, al-Mughrib, I, p. 153, no 94: wa-lammà i˙tàja 'Abdallàh ilà-l-màl almuwadda'a li-l-waratha fì-l-jàmi' li-˙àl al-fitna mana'a-hu min-hu fa-'azala-hu. 91
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the emir’s schemes as well as his willingness to consult with the fuqahà" on matters pertaining to the management of those funds, in harmony with Ibn 'Abdùn’s stipulations on the running of the bayt màl al-muslimìn, is quite significant. Two other references, which are much more explicit and open to comparison, to the exclusivity of the qà∂ì’s powers over the funds of pious endowments, outweighing even the incumbent political elite or the ruler, report the opposition of two Córdoban judges during the period of the Taifa kingdoms to attempts at usurping such properties (see Chapter 10). Ibn 'Abdùn’s description of the qà∂ì’s control of the bayt màl al-muslimìn, without being subject to the ruler’s whims, is revealed in this report, which leads us to identify the bayt màl almuslimìn with the treasury comprising the revenues produced by pious endowments. If the bayt màl al-muslimìn had been the Public Treasury, political authorities would not have needed to obtain the qà∂ì’s authorisation to make use of its funds. As they were funds belonging to pious endowments, however, the need to secure his approval would be understandable as those assets were under his direct and exclusive jurisdiction. The ruler could not take unilateral and unrestricted action lest he wished to give rise to a conflict of interests. The second element of Ibn 'Abdùn’s characterisation of the bayt màl al-muslimìn is the fact that it was located at the Friday mosque. This could lead us to think, in principle, that it was actually the màl al-ßadaqa, made up of all the monies collected through the zakà (see supra). Several testimonies confirm the role of the mosque as a place where funds collected for reasons other than the zakà were placed under custody or left for safekeeping. One of the earliest instances involves the emir al-Mundhir (273–275 h/886–888); he had the hall known as bayt al-màl, within Córdoba’s congregational mosque, extended in order to store the funds of ‘absentee Muslims’ (al-amwàl al-muwaqqafa li-ghuyyàb al-muslimìn).94 Whatever the nature of those funds it seems obvious that they were not the result of the Andalusian state’s periodic tax collections. The chronicle says, however, ‘the hall
94 Ibn 'Idhàrì, al-Bayàn al-mughrib (II), p. 230. Those funds (màl al-ghayba) are once again mentioned under Hishàm III, see Ibn 'Idharì, al-Bayàn al-mughrib (III), p. 148 (trans. F. Maíllo Salgado, p. 129). It was, as E. Lévi-Provençal remarks in España musulmana hasta la caída del califato, p. 77, ‘the property of the absent, that is of Muslims who left their place of residence without appointing a representative to administer their assets’.
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known as’ implying that it already existed and al-Mundhir did not create it; he merely enlarged it. Al-Khushanì’s testimony on the qà∂ì Ibn Salama, previously shown, can also be adduced here: the existence of certain assets placed at Córdoba’s Friday mosque is confirmed there (see supra). The most revealing testimony on this issue is doubtless Ibn 'Idharì’s passages recounting the events which took place in Córdoba at the beginning of the 11th century. In spite of his laconism, the clarity of its formulation sheds light on the problem we are tackling here; there are very few testimonies as explicit as this one. While reporting events taking place in Córdoba during the period of fitna, Ibn 'Idhàrì unequivocally alludes to the existence of a fund of pious endowments (màl al-a˙bàs) located at the maqßùra of the congregational mosque and under the qà∂ì’s control:95 The people of Córdoba gathered a large amount of money for the ifranj and asked the qà∂ì Ibn Dhakwàn to hand over the money belonging to the a˙bàs kept at the maqßùra of the Friday mosque. He refused and they then tore apart the door of the maqßùra, seized the money and gave it to the ifranj.
This passage contains the most direct and illuminating reference to the fact that the funds belonging to pious endowments were stored at Córdoba’s Friday mosque. It highlights, furthermore, the unrestricted power the qà∂ì had over them. Ibn 'Idhàrì’s passage fits neatly with Ibn 'Abdùn’s comments and, together, both texts allow us to state that the bayt màl al-muslimìn mentioned by the author from Seville—even though he did not explicitly reveal the provenance of the funds included in it—is in fact the treasury containing the revenues generated by a˙bàs, kept at the mosque under the custody of the qà∂ì. The corroboration between data garnered from sources of different origin is compelling enough to convince us that the bayt màl al-muslimìn mentioned by Ibn 'Abdùn without specifying its contents is actually the Treasury of pious endowments. A different problem would be to ascertain beyond doubt what assets formed part of that treasury, on which very scant information is available. On the one hand, it seems plausible that it comprised revenues resulting from the exploitation of properties owned by the mosque itself which, in the case of Córdoba or Seville, must have 95
Ibn 'Idhàrì, Al-Bayàn al-mughrib (III), p. 98 (trans. F. Maíllo Salgado, p. 91).
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been sizeable. We cannot discard the possibility that the mosque acted as a safe for the revenues generated by a˙bàs earmarked for other purposes like those directly managed by the qà∂ì or those intended for the poor, as was the case in the early 10th century (see supra).96 In this respect, the 1503 book of habices shows that part of the assets owned by the poor were administered by mosques, in fact 19.9% of the total amount devoted to that aim.97 Similarly, among the properties administered by or allocated to mosques there were some specifically devoted to educational purposes, as in the case of ‘gima Morabytyn’ ( jàmi' al-muràbi†ìn), the wealthiest mosque of which some of its properties are referred to as ‘belonging to Morabytyn and Talaba’.98
4. The qà∂ì’s deputy (ßà˙ib al-a˙bàs) One of the options available to the qà∂ì regarding assets whose administration was, due to different reasons, his direct responsibility was appointing a deputy, commonly named as ‘chief ’ or ‘head’ of pious endowments (ßà˙ib al-a˙bàs) in the sources. In spite of M. 'Abd al-Wahhàb Khalàf ’s assertion and of the fact that the term is similar, at least formally, to those employed to designate magistrates like the ‘chief of the market’ (ßà˙ib al-sùq) or ‘administrator of heirlooms’ (ßà˙ib al-mawàrìth), being in charge of pious endowments was not a ‘charge’ (khu††a) in al-Andalus, granted independent and clearly-defined jurisdiction, but a mere delegation of duties on the part of qà∂ìs affecting only the administration of those properties. As a whole, the information available on the official in charge of this function is very scarce, especially in relation to the ways in which he operated and his responsibilities. Chronologically, the earliest reports can be traced back to the 9th century. His existence is documented at least until the Almoravid period, and even during the 13th century, although the overwhelming majority of individuals who
96
Ibn 'Abdùn, Risàla, p. 214 (trans. E. García Gómez, p. 89, no 45) reports that the communal prayer on Friday was a suitable time for the poor to flock to the mosque and beg. 97 P. Hernández Benito, La Vega, pp. 46 and 62 (table VI). 98 P. Hernández Benito, La Vega, p. 48.
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performed this function and are known to us lived in the 10th century. The ßà˙ib al-a˙bàs, moreover, first appears and is mostly found in Córdoba, although there is evidence of his presence in several periods and places like Seville, Elvira, Granada, Calatrava, Málaga and Orihuela. Prior to analysing the available data, we can take as a premise the hypothesis that ßà˙ib al-a˙bàs and nàΩir were simply two different terms to designate the same function. Considering the persistent inconsistency and lack of discipline of Arabic authors when designating administrative charges and, in general, all civilian and military functions—as stressed by P. Guichard99—the use of different terms does not necessarily mean that the ßà˙ib al-a˙bàs and the nàΩir performed different functions. The truth is, however, that the analysis of the information furnished by sources of several genres seems to reflect the existence of obvious differences between both, especially regarding the appointment procedure and the duties performed. Also, as it has been pointed out already, some texts employ both concepts simultaneously, a fact that might indicate that both offices co-existed, each with its own attributions. Thus, for instance, Ibn 'Abdùn refers in his treatise to the manager in charge of the Friday mosque’s a˙bàs (al-nàΩir fì-hi min a˙bàsi-hi ) whereas in another passage unrelated to the mosque he alludes to the administrator of a˙bàs and unclaimed heirlooms (ßà˙ib al-a˙bàs wa-l-mawàrìth).100 This suggests that both functions co-existed, each with its own jurisdiction, so that the nàΩir would have been in charge exclusively of the mosque’s properties and the ßà˙ib al-a˙bàs would have been commissioned to administer the pious endowments, probably those placed under the direct control of the qà∂ì. There are a number of references, however, where the term ßà˙ib al-a˙bàs is employed to designate the individual in charge of administering a mosque’s a˙bàs. One is found in Ibn Mughìth’s formulary for hiring an imàm; the text attributes this prerogative to the nàΩir responsible for pious endowments although, further on, in the section devoted to fiqh, he employs the expression ßà˙ib al-a˙bàs applied to the administrator when describing the procedures for dismissing
99
P. Guichard, Les musulmans de Valence, p. 314. Ibn 'Abdùn, Risàla, pp. 213 and 223 (trans. E. García Gómez, pp. 86– no 41– and 110– no 69–). 100
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an imàm.101 The use of both expressions simultaneously underscores the risk involved in basing our analysis on one or the other terminology as the former does not always follow a pattern. Similarly, Ibn Juzayy employs the expression ßà˙ib al-a˙bàs to refer to the official in charge of supervising the take-over of assets donated in favour of mosques, the poor and, in general, for any charitable purpose.102 Two epigraphic texts have also survived suggesting the possibility that the official in charge of a mosque’s endowments was also called ßà˙ib al-a˙bàs, as shown in the previous chapter. Most of the information available on the ßà˙ib al-a˙bàs is supplied by biographical repertories whose contents are very poor as they confine themselves to indicating that this or that individual performed that office in a certain locality or under the orders of such and such judge. Out of the thousands of biographies that these works contain, hardly a few dozen allude to people who occupied that role. Biographies of some curators of prophetic traditions are recorded in several biographical dictionaries, but only in one is mention made of that part of the individual’s cursus honorum. We also know of one individual who acted as administrator of the pious endowments belonging to the mosque of Ibn 'Adabbas; this fact, however, is not mentioned in his biography (see chapter 7). This leaves us with no choice but to assume that the number of people who acted as qà∂ì’s deputies in the management of pious endowments was probably higher than that noted in biographical dictionaries as it is likely that any indication that a certain individual performed that office has been omitted in many biographies.103 The fact that this office carried a very negligible administrative entity, namely that its holder was not considered an independent public magistrate (khu††a) endowed with its own jurisdiction but it merely entailed the delegation of certain functions usually performed by the judge, may explain this neglect. The image of the ßà˙ib al-a˙bàs conveyed by biographical dictionaries is two-pronged. In many cases he is depicted as the qà∂ì’s personal deputy, appointed by the latter to take control of pious 101
Ibn Mughìth, al-Muqni', pp. 202–203. Ibn Juzayy, al-Qawànìn al-fiqhiyya, p. 376. 103 As M. Fierro and M. Marín remark in ‘La islamización de las ciudades andalusíes a través de sus ulemas’, p. 66: ‘the information furnished by biographical dictionaries we can consult has been sieved and adapted through channels whose modus operandi is still poorly known by us; that information is not always complete’. 102
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endowments. Due, probably, to his inability to devote his direct attention to this matter—because of his heavy workload, his many other responsibilities—and, also, to the ever-increasing volume of these assets, the qà∂ì is compelled to entrust this job to someone else. In other cases, however, the ßà˙ib al-a˙bàs has a direct connection to some particular place rather than a personal bond with a certain qà∂ì; he administers the pious endowments found in that particular town without any specific mention of their purpose or an official subordination to a qà∂ì. The earliest report on the existence of the ßà˙ib al-a˙bàs can be traced back to the 9th century where he is depicted as the qà∂ì’s personal delegate (see chapter 3). In principle, this delegation of duties could be the result of the cumulative nature of pious endowments, given its theoretical condition as inalienable and donated in perpetuity. It is hardly remarkable then that those assets attained a considerable quantitative volume in 9th century Córdoba; this might have prevented the qà∂ì from managing them personally and would have made it necessary to resort to a deputy specifically in charge of this particular duty. Prior to the caliphate, there are references to four individuals, mainly from al-Khushanì’s work. All of them are, therefore, Córdoban but the only thing we know for sure is the names of those who held this office (see chapter 3). More names emerge from the 10th century onwards, but not more information about the way the ßà˙ib al-a˙bàs performed his duties nor his specific responsibilities. The available data are, once again, relevant to pious endowments found in Córdoba. Two are from 'Abd al-Ra˙màn III’s period (316–350 h/929–961). The first is 'Abbàs b. Mu˙ammad b. 'Abd al-'AΩìm al-Sulay˙ì (d. 327 h/938–939 or 329 h/940–941) who managed the awqàf alongside Ibn Abì Shayba after the death of the qà∂ì Suhayb b. Manì'104 in 318 h/930;105 this means that he performed that function between 318 h/930 and his own demise in 327 h or 329 h/938–941. Mu˙ammad b. Hishàm b. alLayth al-Ya˙ßubì from Qayrawàn (d. 343 h/954) managed these awqàf shortly afterwards, namely during the tenure of Mu˙ammad
104 Ibn al-Fara∂ì, Ta"rìkh, I, p. 342, no 883. His other biographers do not report this information: al-Khushanì, Akhbàr, p. 286, no 384; al-Óumaydì, Jadhwat almuqtabis, p. 299, no 726; al-Îabbì, Bughyat al-multamis, no 1242. 105 See this qà∂ì’s biographical references in M. Marín, ‘Nómina’, no 639.
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b. 'Abdallàh b. Abì 'Ìsà106 as qà∂ì; the latter held this position between his predecessor’s death in Dhù-l-˙ijja 326 h (September 29 to October 28, 938) and his own in Íafar 339 h ( July 20 to Agust 17, 950).107 The next one is Hàshim b. A˙mad b. Ghànim b. Khazìma alGhàfiqì (d. 359 h/970), legal expert and mushàwar, who managed the a˙bàs under the qà∂ì al-Mundhir b. Sa'ìd (d. 355 h/966).108 The best-known qà∂ì is Mu˙ammad b. Is˙àq b. al-Salìm who held the office of high judge in Córdoba for thirteen years, between 353 h/964 until his death in 367 h/977 and to whose activity regarding pious endowments I have already alluded (see supra). Biographical dictionaries mention up to three individuals who acted as custodians of pious endowments on his behalf or during his tenure. The first is A˙mad b. 'Abdallàh b. 'Abd al-Ra˙ìm b. Kinàna, known as Ibn al-'Annàn (299–383 h/912–993).109 Mu˙ammad b. Sa'ìd b. 'Abdallàh b. Qart (d. 381 h/991) also held that office and was appointed by the former; he was in office during most of the tenure of his successor to the office of high judge Mu˙ammad b. Yabqà b. Zarb,110 who dismissed Ibn Qart accusing him of squandering the revenues of endowments, a decision which led to his accumulating numerous debts and dying bankrupt.111 Finally, Hashim b. Mu˙ammad b. 'Abd al-Malik al-Anßàrì was nàΩir of pious endowments together with Ibn Qart during the qà∂ìship of Ibn al-Salìm and Ibn Zarb; he held this office until his demise in 378 h/988.112 The last data on the figure of the ßà˙ib al-a˙bàs date from the late 10th century and the early 11th century, a period during which information is available on two individuals. Under the caliph Hishàm II (366–399 h/976–1009), Mu˙ammad b. Ibràhìm b. Sa'ìd al-Qaysì (d. 391 h/1001) managed the awqàf after having been appointed by the qà∂ì Mu˙ammad b. Ya˙yà b. Zakariyyà; he held this post until
106
Ibn al-Fara∂ì, Ta"rìkh, II, p. 113, no 1396; 'Iyà∂, Tartìb al-madàrik, V, p. 220. Al-Khushanì, Qu∂àt Qur†uba, pp. 172–175 (trans. J. Ribera, pp. 270–274). 108 Ibn al-Fara∂ì, Ta"rìkh, II, p. 169, no 1538; 'Iyà∂, Tartìb al-madàrik, VI, p. 153. Following al-Khushanì, Qu∂àt Qur†uba, pp. 175–176 (trans. J. Ribera, p. 274), the qà∂ì was appointed by 'Abd al-Ra˙màn III in Rabì' II 339 h (September 17 to October 15, 950) and remained in this office until his death in Dhù-l-qa'da 355 h (October 19 to November 17, 966) under the caliph al-Óakam II. 109 Ibn al-Fara∂ì, Ta"rìkh, I, pp. 69–70, no 187. His other biographer does not mention this, al-Îabbì, Bughyat al-mutamis, no 424. 110 See Mª.L. Ávila, La sociedad hispanomusulmana, no 834. 111 Ibn al-Fara∂ì, Ta"rìkh, II, p. 96, no 1362. 112 Ibn al-Fara∂ì, Ta"rìkh, II, p. 169, no 1540. 107
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his death.113 That qà∂ì, known as Ibn Bar†àl and successor of Ibn Zarb, was in office until Mu˙arram 392 h/November 1001.114 That means that al-Qaysì was in charge of pious endowments between Ibn Bar†àl’s appointment as judge in 381 h/991–992 and the moment he passed away in Jumàdà I 391 h (29/3–27/4/1001). Lastly there was 'Abd al-Ra˙màn b. A˙mad b. Sa'ìd al-Bakrì, known as Ibn 'Ajab (d. 404 h/1013–1014), a scholar steeped in practical cases who was a member of the shùrà and managed the a˙bàs entrusted to the qà∂ì Ibn Dhakwàn, of whom he claims to have been a companion.115 Chronologically, therefore, it must have been the qà∂ì A˙mad b. 'Abdallàh b. Harthama b. Dhakwàn (342–413 h/953–1022). Unfortunately, our knowledge of the conditions in which this deputy performed his functions is very limited. The office of personal delegate of the judge is indicated in the sources by the different formulas used to appoint him, usually through the verbs qaddama and wallà or, rather, as al-Khushanì does in one occasion, establishing a connection between the endowment and the qà∂ì himself (kàna 'alà a˙bàs A˙mad b. Ziyàd). In most cases, however, there is no indication that this official is appointed by the judge; it is simply signalled that he was in control of pious endowments by using several expressions (kàna yatawallà al-awqàf, naΩara fì-l-awqàf, walà al-a˙bàs, kàna nàΩiran fì-l-a˙bàs or fì-l-awqàf ). In some cases, as well, the association with a certain judge is stressed by pointing out that he held office ‘under’ ( fì ayyàm) this or that qà∂ì. The only reference to the activity of the ßà˙ib al-a˙bàs as the judge’s deputy actually dates from the early 11th century and appears in the aforementioned case of the tenants of Córdoba’s orchards turned into a ˙ubs who asked for a reduction in their rent because their harvest had been blighted by successive setbacks (see supra). The qà∂ì sought the advice of the scholars represented in the shùrà and the first to reply, Abù 'Alì al-Óasan b. Ayyùb al-Óaddàd, began by reporting that the judge had to commission the ßà˙ib al-a˙bàs to produce all the lease contracts signed by the claimants in order to peruse the clauses and ascertain whether their demands were well
113
Ibn al-Fara∂ì, Ta"rìkh, II, pp. 105–106, no 1385. See his biographical references apud M. L. Ávila, La sociedad hispanomusulmana, no 849. 115 'Iyà∂, Tartìb al-madàrik, VII, p. 199; Ibn Bashkuwàl, Íila, I, p. 301, no 684 does not refer to his duties as official in charge of pious endowments. 114
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founded or not.116 In this case, unlike the information provided by biographical dictionaries, we can observe the ßà˙ib al-a˙bàs ‘in operation’, acting as assistant to the judge: the fact that he was asked to collate the contracts and show them to the qà∂ì confirms the assumption that he was responsible for dealing with all matters concerning a˙bàs as the judge only intervened when it was strictly necessary. In a number of cases, the ßà˙ib al-a˙bàs is not attached to a judge but only linked to a certain place. As in the previous example, only some names are available, supplied by biographical dictionaries, which is why it is difficult to discern whether it is a mere convention to relay information or we are actually dealing with an element pertaining to the mechanisms of control of pious endowments in certain locations. Most of the references to the issue are garnered from biographical repertories, although some data can be found in other types of sources. Thus, al-Jazìrì’s formulary for hiring an imàm, for instance, assigns this role to the nàΩir of the town’s a˙bàs, appointed by the qà∂ì (al-nàΩir fì-l-a˙bàs bi-maw∂i' kadhà bi-taqdìm al-qà∂ì).117 In the last case, the term ßà˙ib al-a˙bàs is not employed but the presence of the nàΩir is connected, though, to a particular place and mention is made that that official was appointed by the judge. This affords another opportunity to highlight the enormous elasticity of the Arabic terminology regarding public offices and sundry administrative functions. The information furnished by biographical dictionaries deals with several locations; two refer to Córdoba. First, Mu˙ammad b. 'Amrùs b. al-'Àßì (d. 400 h/1010–1011),118 of whom Ibn Bashkuwàl reports that he exerted some influence thanks to the aforementioned Abùl-'Abbàs b. Dhakwàn (see supra). The other is Mu˙ammad b. Makkì b. Abì ˇàlib b. Mu˙ammad b. Mukhtàr al-Qaysì (d. 474 h/1081), who was in charge of the police force and markets inspection, together with the management of pious endowments, in Córdoba. His case is exceptional, because he is the only ßà˙ib al-a˙bàs mentioned in two different kinds of sources, both biographical and legal: he was consulted by qà∂ì Ibn Sahl about the case of the woman living in the
116 Ibn Sahl, Dìwàn, II, p. 1139; ed. Khallàf, Wathà"iq fì shu"ùn al-˙isba, p. 68; al-Wansharìsì, Mi'yàr, VII, p. 447 (trans. V. Lagardère, Campagnes, p. 156 and V. Lagardère, Histoire et société, pp. 258–259, no 165). 117 Al-Jazìrì, al-Maqßad, p. 243. 118 Ibn Bashkuwàl, Íila, II, p. 462, no 1053.
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shelter house of Córdoba’s ßàli˙àt al-nisà" (see Chapter 6).119 In the same way, as we have already seen, Ibn 'Abdùn refers to the ‘curator of a˙bàs and unclaimed heirlooms’ (ßà˙ib al-a˙bàs wa-l-mawàrìth) and this was the charge held by Khalaf b. Wazìr in Baeza ( Jaén) around Dhù-l-˙ijja 443 h (April 4–May 2, 1052).120 Among the other figures known to us, one is from the 9th–10th century, four from the 11th century and one from the 13th century. The first is Makkì b. Íafwàn b. Sulaymàn b. Salìm from Elvira (d. 308 h/920 or 318 h/930) who, according to Ibn al-Fara∂ì and al-Khushanì, managed his town’s a˙bàs ‘until his death’, as al-Khushanì reports.121 Mu˙ammad b. A˙mad b. Sulaymàn b. 'Abdallàh al-Tujìbì (d. 496 h/1103) was ßà˙ib al-a˙bàs in Orihuela (Murcia)122 and 'Alì b. 'Abdallàh b. al-Óasan al-Qabbì (d. 480 h/1087–1088), known as al-Sunaydì, administered the pious endowments existing in Granada under the third Zirid ruler, Bàdìs b. Óabbùs (429–465 h/1038–1073) and was also a vizier wielding a great deal of power, apart from enjoying considerable wealth.123 The emir 'Abdallàh refers in his memoirs to a certain Ibn Salmùn and describes him as ßà˙ib al-a˙bàs whose management raised the suspicions of the faqìh A˙mad b. Khalaf b. 'Abdallàh al-Ghassànì al-Qulay'ì.124 Although we must content ourselves with only the individual’s name, perhaps the real importance of these data is that they constitute the only mention of a ßà˙ib al-a˙bàs I have found in a chronicle. A legal question addressed to Córdoba’s fuqahà" refers to Mu˙ammad b. Yùsuf b. al-Ghàsil, administrator of pious endowments in Calatrava (Qal'at Rabà˙); he must
Ibn Bashkuwàl, Íila, II, p. 523, no 1210; Ibn Sahl, Dìwàn, II, p. 1122. Ibn 'Abdùn, Risàla, p. 233 (trans. E. García Gómez, p. 110, no 69); Ibn Sahl, Dìwàn, I, pp. 613–614. 121 Al-Khushanì, Akhbàr, p. 201, no 258; Ibn al-Fara∂ì, Ta"rìkh, II, p. 151, no 1481. His other biographers do not refer to this fact: al-Óumaydì, Jadhwat al-muqtabis, p. 329, no 821; al-Îabbì, Bughyat al-multamis, no 1368; 'Iyà∂, Tartìb al-madàrik, V, p. 220. 122 Ibn al-Abbàr, al-Takmila, ed. al-Óusaynì, no 1217, ed. al-Óarràs, I, p. 348, no 1237. See Mª.L. Ávila and M. Marín, ‘Nómina’, no 1434. 123 Ibn al-Zubayr, Íilat al-ßila, IV, p. 85, no 158. 124 'Abdallàh, Tibyàn, p. 133 (trans. E. García Gómez, p. 218; he remarks in p. 233, footnote 3, that he could not identify him as the Banù Salmùn were a family of lesser importance and counted many jurists among its members). It could be Abù 'Alì Óusayn b. Salmùn al-Masìlì (d. 431 h/1039–1040) who, alongside other legal scholars, answers a question regarding Córdoba’s pious endowments in 407 h/1016–1017. See supra and his biographical references apud Mª.L. Ávila, La sociedad hispanomusulmana, no 481. 119 120
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have occupied that position, judging from the chronology indicated in the text, during the period immediately before Dhù-l-˙ijja 452 h (27/12/1060–25/1/1061).125 Lastly, 'Abdallàh b. Ri∂à b. al-Mundhir al-Ru'aynì, was in charge of the administration of a˙bàs in the town of Málaga during the brief period when it was ruled by Ibn Zannùn (630–635 h/1233–1238).126 Although these data do not shed more light on the functions performed by the ßà˙ib al-a˙bàs, nor on what type of assets were under his control, at least they contribute to confirm the presence of that office beyond the capital, namely in Baeza, Calatrava, Elvira, Granada, Málaga, Orihuela and Seville. Chronologically, the information available spans the period between the 11th–12th centuries. These data ought to be complemented with more singular information such as that involving Marwàn b. 'Abdallàh b. Marwàn al-Tujìbì, the only documented case of someone declining to take up the post of ßà˙ib al-a˙bàs127—even though Ibn Bashkuwàl does not specify who offered him the post nor his date of birth or when he died—and also Mu˙ammad b. al-Salìm (d. 340 h/951), imàm of Córdoba’s Friday mosque and administrator of the awqàf ,128 the only instance where an imàm is also in charge of endowments. To sum up, the existence of the qà∂ì’s deputy is the result of two factors. Firstly, his numerous obligations and the need to devote most of his energies to the judiciary prevented the qà∂ì from taking sufficient care of pious endowments; that is why this figure of the delegate became necessary. Its appearance can thus be interpreted as an indicator of the growth of these assets in Córdoba, the first place where their existence is documented. As we have also seen in a previous section, although he had overall responsibility for the control and supervision of pious endowments, the qà∂ì’s duties vis-à-vis these assets were of a different nature depending on the type of donation at stake. This could be the reason for the existence of the deputy, who would be in charge of monitoring the endowments under the direct responsibility of the judge. Those belonging to mosques, which usually 125 Al-Wansharìsì, Mi'yàr, III, p. 417 (trans. D. Serrano, ‘La escuela de alfaquíes toledanos’, p. 136). 126 Ibn 'Askar, A'làm Màlaqa, p. 244, no 81 (trans. J. Vallvé, pp. 264–265). 127 Ibn Bashkuwàl, Íila, II, p. 538, no 1351. Mentioned by M. Marín, ‘Inqibà∂ 'an al-sul†àn’, pp. 131–132 as epitomising the attitude of some men of religion who refused to occupy charges and public or state offices. 128 Ibn al-Fara∂ì, Ta"rìkh, II, p. 63, no 1257.
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had their own administrator, were not probably among them. Those donated in favour of the poor and the infirm most surely were as they did not rely on any institution or body designed to protect them. The fact that Ibn 'Abdùn refers in his treatise, on the one hand, to the manager of the congregational mosque’s assets and, on the other, to the administrator of pious endowments and unclaimed heirlooms is enlightening in this respect. This simultaneity seemed to indicate that the qà∂ì’s deputy could co-exist alongside the managers of other types of a˙bàs. Lastly, the fact that all of the qà∂ìs’ deputies named as administrators of pious endowments were part of the collective comprising the men of religion must be highlighted; it reinforces the link existing between these officials and charitable trusts.
CHAPTER NINE
LEGAL THEORY VERSUS PRACTICAL NEEDS: CAUSES AND MECHANISMS FOR ALTERING DONATIONS
1. Introduction Traditionally, one of the key elements in the study of Islamic jurisprudence has been the connection between the ideology that inspires it and the specific circumstances of a particular place and period. In fact, downplaying the role of that jurisprudence as a means to gain knowledge about several aspects of the organisation of medieval Islamic societies stemmed from the belief that the former constituted a type of literature too detached from the social milieu and focused on settling issues which were mostly of a hypothetical nature and barely, if at all, connected to its historical context. In this sense, one of my aims in the present work is to show that Islamic jurisprudence is hardly a purely theoretical doctrine, both as regards the issues it tackles and jurists’ stances when dealing with them. This chapter will allow us to discern how Islamic jurists endeavoured to adapt the main legal requirements of the institution to the conditions and situations of real circumstances, sometimes being forced to avoid or ignore, partially or completely, the outlying rules of the pious endowments. In the case of pious endowments, Islamic ideology plays a crucial role in several aspects. On the one hand, it provides a justification for its existence: jurists establish a link between charitable donations and Qur"ànic notions such as alms-giving (ßadaqa) and a pious deed undertaken fì sabìl Allàh. On the other hand, it is a catalyst that spurs Muslim believers to set up a charitable foundation and thus obtain a divine reward (thawàb). In this chapter, I will try to suggest a third approach to the relationship existing between this institution and Islamic ideology, this time as far as its strictly legal dimension is concerned. Legal scholars played a key role in al-Andalus since they were responsible for adapting the principles of Islamic ideology and the legal norms inspired by the former to social changes. That
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confrontation between social reality and ideology engendered tension and conflict. A˙bàs are an Islamic institution and, as such, they are impregnated, in their theoretical or legal definition, with some of the values embedded in that ideology, especially with two concepts: the fact that they must serve a pious purpose (qurba) and be handed over in perpetuity (ta"bìd ). This means that the aim for which they have been established must not be altered and the founder’s will in this respect not tampered with a posteriori. As A. Lambton remarks in her study on Persian awqàf between the 12th–14th centuries, practice, however, tends to differ from theory.1 Indeed, the analysis of Andalusian jurisprudence reveals that the clash between the legal principle of ta"bìd and the conditions of reality leads to a twofold contradiction.
2. Legal theory and the circumstances of reality: the attitude of the jurists The available jurisprudence shows the existence of a clear contradiction between the main legal requirements of the institution and the material conditions of social and economic reality. Pious endowments are based on the principles of continuity and perpetuity, both elements being provided by two legal principles: the immutability of the stipulations of the founder and the inalienability of the goods. But these legal elements are challenged by at least another two completely opposite factors: the changing conditions of real circumstances and the impermanent nature of material things. Pious endowments are theoretically eternal but mundane or material reality is far from being endowed with that quality as it is subject to the passing of time and its consequences with the result, for example, that human settlements can be left abandoned and institutions wane, as may also be the case of formerly profitable goods now no longer worth preserving as a result of mismanagement or any other setback, natural disaster, warfare, etc. Therefore, it could be said that the main legal problem with regard to the institution of pious endowments was the adaptation of its legal basis to the inevitable changes of real circumstances. There was another element which could lead to altering the original stipulations of the founder. If all a˙bàs were always donated to meet a need, this means that if, for whatever reason, the goods given 1
A. Lambton, 'Awqàf in Persia’, p. 298.
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in donation did not serve the original purpose, then a breach of one of the requirements set in the donation, namely the achievement of a certain target, was actually being perpetrated. This theoretical principle, the usefulness (manfa'a) of the ˙ubs, is not formulated as such but is implicit in the notion of purpose intrinsic in the institution. What is one to do then with a ˙ubs which is no longer profitable or has been neglected, one unable to serve the purpose selected by its founder? On the one hand, the legal elements of perpetuity and inalienability of the ˙ubs force it to take on an extremely rigid and static aspect which, on the other hand, at the same time runs counter to the economic character of the institution; the economy is, by its very nature, a shifting reality which fluctuates depending on different factors. In this sense, jurisprudence shows that needs often did not match the aims for which some a˙bàs had been earmarked. The resolution of the contradiction between the legal requirements and the real conditions of social and economic reality was the task of the jurists, qà∂ìs and fuqahà". They were confronted by the problem of altering the original conditions of the pious endowments and, therefore, avoiding (totally or partially) the general and basic rule of ta"bìd. A considerable percentage of fatàwà included in the corpus is devoted to the resolution of this contradiction, which indicates the relative frequency of these problems. It must be stressed that, in most cases, we are not dealing with issues derived from particular circumstances, pertaining to a particular type of donations or charitable aim, but with recurrent problems which are addressed—almost in identical terms—to jurists from different periods and geographical areas. There are also legal questions, however, that can only be understood when viewed against a specific and localised chronological and geographical context. What was the prevailing view among the Andalusian fuqahà"? Were they in favour or against the alteration of founder’s wills and stipulations? This question leads us to a more general problem, that of the common trends of the social atittudes within the group of the ‘men of religion’. This is obviously a very complex problem with many more implications than the concrete case of pious endowments, but the truth is that the most recent scholarly production has challenged the traditional image of Andalusian Màlikism as rigid and monolithic in the attitude of jurists towards social changes.2 I will 2
See M. Benaboud, ‘El papel político y social de los 'ulamà" en al-Andalus durante
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not discuss this general issue here, but will focus only on the specific problem of pious endowments and on the analysis of the legal opinions of the jurists with regard to the very possibility or need of changing the original stipulations of the founder. Generally speaking, it can be said that complete legal consensus is missing with regard to this problem. When trying to find solutions, Andalusian Màlikì scholars had a choice of adopting one of two opposite attitudes which inevitably resulted in different legal opinions. On the one hand, the more ‘orthodox’ jurists enforced the application of the stipulations of the founder and rejected the possibility of making changes. On the other hand, some jurists showed a more pragmatic attitude when seeking the adaptation of theory to the specific circumstances prevailing at the moment, which would allow some kind of change or alteration in the original stipulations. A. Mª Carballeira is of the opinion that the ‘orthodox’ view was the prevailing one among Andalusian jurists, speaking even in terms of ‘inflexibility’ and ‘rigorism’ to define their attitude.3 In my view, the situation is not so clear. In the first place, references to the existence of divergences (ikhtilàf ) are commonplace when dealing with these issues. Moreover, and as O. Pesle pointed out many years ago, some of the jurists were, generally, open-minded as legal questions about the need to introduce changes which were considered beneficial economically are usually dealt with favourably.4 This seems to be particularly true with regard to Nasrid times, when legal doctrine became more flexible and pragmatic by means of the concept of maßla˙a due to the specific conditions created by growing military pressure, as some authors pointed out.5 As we shall see throughout this chapter,
el período de las taifas’, Cuadernos de Historia del Islam, XI (1984), pp. 10–11; M. Fierro, ‘La religión’, in Mª.J. Viguera, Los reinos de taifas. Al-Andalus en el siglo XI (HEMP, VIII/1), Madrid, 1994, p. 410; L. El Ouazzani Chahdi, ‘Teoría y práctica en el derecho penal andalusí’, Cuadernos de Historia del Derecho, 10 (2003), p. 369. 3 A. Mª Carballeira, Legados píos, pp. 90–92, 96 and 194: ‘la tendencia general entre los juristas se caracterizaba por la inmovilidad e intangibilidad de estos bienes a˙bàs y restos de mezquitas en desuso, emplazadas en lugares deshabitados, con vistas a una futura reconstrucción de las mismas’. 4 O. Pesle, La théorie et la pratique des habous, p. 135: ‘Mis devant le dilemme brutal: laisser périr l’immueble et avec lui l’oeuvre ou transgresser la volonté du constituant, ils optèrent pour le deuxième terme de l’alternative. Moins réalistes, moins dégagés des exigences de la logique, de rares auteurs on opté pour le premier terme’. 5 See J. López Ortiz, ‘Fatwas granadinas’, p. 88; R. Arié, España musulmana, pp. 357–358.
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there are numerous fatàwà issued by Nasrid jurists which justify the introduction of changes in the original conditions of pious endowments out of social expediency or public interest. It is also undeniable, however, that Nasrid jurists very often resort to Córdoban legal tradition in order to back up that position, and this casts doubts on the alleged rigidity and intransigence sometimes associated with Andalusian Màlikism. As R. Bourqia points out, the nawàzil literature reveals that the need to take social conditions into account overcomes the faqìh.6 The issue is partly the result of the jurist’s personal stance, whether it is more or less orthodox or permissive, as well as of the nature of the case under consideration and the possibilities of interpretation it affords. The following fatwà by Abù-l-Óasan al-Qàbisì is quite enlightening in this sense. The legal query centres on a founder who demanded that his books were to be handed over to someone willing to read them. Al-Qàbisì holds, however, that if a student—and prospective beneficiary—is deemed to be trustworthy, more than one book can be loaned to him at any one time so that he can consult them whereas only one will be lent to an unknown reader. In this case, the argument brandished by the jurist in order to justify the change in the terms of the donation is purely legal and focuses on the assumption that it is the founder’s ultimate intention (qaßd) that must be upheld and not necessarily its literal formulation (lafΩ). He recalls, on this issue, the example of some madrasas where books given in donation can not, in theory, be lent to anyone but where, due to customary practice ('àda), books can be given on loan in the presence of scholars and only after obtaining their consent.7 Very often, the legal justification to avoid or ignore the original conditions of a pious endowment lies in the concept of maßla˙a or common interest, a relevant legal principle within the Màlikì school. The need to preserve the general interest could make the alteration of the original conditions of the pious endowments lawful, usually being related to one of the following three types of causes: economic, urban or military. This does not mean, however, that adherence to the founder’s requirements is utterly ignored; legal experts strive to
6 R. Bourqia, ‘Droit et practiques sociales. Le cas des nawàzil au XIXe siècle’, Hesperis-Tamuda, XXXV/2 (1997), p. 132. 7 Al-Wansharìsì, Mi'yàr, VII, pp. 291 and 340–341 (trans. V. Lagardère, Histoire et société, pp. 214–215, no 17 and p. 272, no 212).
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uphold this principle and, as a result, their stance is ambivalent, always endeavouring to find solutions that may prove harmonious to both criteria, that is, observance of the clauses and stipulations set by the founder and economic efficiency when exploiting or using the goods. Two fatàwà by Ibn Lubb may help to exemplify this double stance. The first involves the case of a donation in favour of out-of-town students and, as it happened, there was only one who met this condition in the town where the issue arose. He was then asked whether that student should be the sole beneficiary of all the revenues generated by the ˙ubs or if he should only receive his fair share. Ibn Lubb’s response is that if the goods in question are governed by some spatial restrictions—it could only be used within the boundaries of a particular town—the student who met all the requirements was entitled to all the revenues. If those restrictions did not apply, however, a portion of the proceeds could be delivered to students from a neighbouring town. The theoretical principle of adherence to the founder’s stipulations prevails here, even though that entails that a single student may benefit from revenues which, otherwise, could have been employed for the benefit of others living in other locations. In the second legal question he is confronted with a change in the conditions affecting a donation in favour of Qur"ànic readers from out of town. At the time when the ta˙bìs was established readers used to live in town; when the issue arose, no reader resided there any longer so that doubts existed on whether the proceeds ought to be handed over to the local poor or left untouched until a reader eventually arrived in town. Due to the absence of anyone meeting the necessary requirements to be considered as a beneficiary, Ibn Lubb allowed the ˙ubs to be used in favour of poor local readers with the proviso that, were any reader from out of town to arrive unexpectedly, he would receive his share.8 The ideal solution was doubtless that which made it possible to harmonise the founder’s requirements with existing conditions. This is epitomised by the legal query addressed to Abù 'Abdallàh alSaraqus†ì involving a man who stipulated in his will that, out of his third of free disposal, a hundred qada˙ of barley (sha'ìr) were to be
8 Al-Wansharìsì, Mi'yàr, VII, pp. 264–265 (trans. V. Lagardère, Histoire et société, p. 281, no 246).
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set aside as a ˙ubs so that poor peasants unable to buy seeds could borrow from it and use them to sow their lands; once their harvests had germinated, they were to return what they had taken on loan. The mustaftì suggested the following settlement: to sell the seeds (zar' ) given in donation and, with the money thus raised, purchase a plot of land (maw∂i') which would then be turned into a waqf; the revenues generated by the latter every year would be allocated to poor peasants unable to buy seeds for their fields. This solution appeared as the most suitable as it made it possible to combine both the conditions stated in the donation deed and existing circumstances (hàdhàl-wajh maßla˙a 'aΩìma wa-infàdh li-qaßd al-mu˙abbis).9 We may thus conclude that fuqahà" try to do their utmost to implement donation clauses and, in the case of unsolvable conflict between the former and surrounding conditions, the prevailing trend is to give priority to the need for adaptation and financial profitability as opposed to the absolute and unconditional implementation of legal principles. Most of these cases respond to stereotypical situations, reproduced in almost identical terms by jurists from different periods. This is due to the fact that, because of their polemical nature, divergence among jurists belonging to the same school often occurs. Different options were available then: to endorse the view enjoying more widespread support in the school (mashhùr),10 or in local legal practice, either by means of local custom ('àda or 'urf ) or legal practice ('amal ). Apart from their strictly legal relevance, the study of the causes and methods of penetration of local use through jurisprudence may contribute to highlight other aspects of social dynamics like the Islamisation of rural communities and the control exerted upon them by the state.11 M. Lahmar has taken into account the important role played by local use and its relation with the law (shar' ) by focusing on the legal questions addressed to fuqahà".12 As we shall see throughout this chapter, this issue is of enormous relevance in order to clarify some of the essential elements associated with the mechanisms of upkeep, exploitation and usufruct of pious endowments.
9 Al-Wansharìsì, Mi'yàr, VII, pp. 120–121 (trans. V. Lagardère, Histoire et société, p. 264, no 183). 10 See on this concept W.B. Hallaq, ‘Model Shurù† Works’, pp. 130-131; E.I.2, VI, p. 706. 11 M. Barceló,‘Vísperas de feudales’, p. 109. 12 M. Lahmar, ‘Les ˙ubus dans la société et le “ar'’, pp. 159–172.
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If we shift our attention now to more general cases, rather than those that respond to a particular set of conditions, we will observe, however, that for a faqìh to sanction any changes in the original stipulations or in some of the clauses drawn up in a donation certain conditions needed to arise, justifiable reasons had to be adduced and they could be categorised in two groups. Firstly, internal or economic causes; they could also be of two types: lack of productivity or an ‘excessive’ productivity rate (surplus). Secondly, external causes, which I will divide into three types: a mismatch between the aim and reality, lack of needs in the realm which a donation is intended to support and the existence of overriding circumstances. Both causes can be summarised in two concepts: need (˙àja or ∂arùra) and public or common benefit (maßla˙a or manfa'a). The difference between them was sometimes very slight since, although meeting any need represents a benefit, not everything regarded as beneficial is actually necessary. Apart from the initial factor, the cause, two variables need to be considered, both resulting from the settlement suggested by the legal scholar. First, the part affected by the alteration, either the surplus, all the revenues or the ˙ubs itself. Second, the kind of modification, which can be partial (earmarked for the same good cause, i.e. from a mosque to another) or global (sale of the ˙ubs or changes in the aims the donation is supposed to serve). Obviously, all these factors do not need to be present in isolation and they can also appear simultaneously. Thus, with regard to the causes, cases where a surplus is attained while, at the same time, needs are not addressed, are found sporadically. Also, the solutions suggested in order to tackle a certain problem are not always the same with the result, for instance, that a ruling can be issued on a ˙ubs generating surplus revenues so that profits are to be devoted either to the same charitable aim originally stipulated or to a completely different one.
3. Internal or economic causes Among the causes resulting in the alteration of donation deeds I have distinguished between internal and external (see supra). This section will be devoted to internal causes, related to the conditions affecting the ˙ubs itself or the arrangements in place to organise its usufruct. Internal causes are mostly the result of economic imperatives and can be summed up in two factors. On the one hand, the lack of productivity or the unsatisfactory state of an asset which hin-
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der its usufruct and the fulfilment of the charitable purpose it is to serve. The dominant solution in this case is the sale of the ˙ubs. On the other hand, the unbridled productivity far exceeding current needs, that is the existence of a surplus in production. The preferred option is to devote the revenues to other undertakings, in the same line as the original charitable aim or otherwise, such as in the case of a mosque enjoying a surplus and transferring revenues to another crippled by a deficit or to a different purpose altogether, such as repairs to a town’s ramparts or a frontier outpost. That is, both cases involve a mismatch between the economic output of the ˙ubs and the needs it is to fund; in one case this is due to poor economic performance and, in the other, to output that exceeds the most optimistic expectations. 3.1. Lack of productivity Jurists tend to sanction the sale of an unproductive ˙ubs provided that the money thus raised is used to purchase another asset devoted to the same purpose. Thus, even though the ˙ubs is inalienable, certain conditions or reasons force jurists to consider the possibility of selling it as a justifiable, and even expedient, action. The issue of the sale of a ˙ubs due to its poor output led to controversy and disagreements within the Màlikì madhhab at least from the 9th century; the absence of unanimity on Màlik b. Anas’ views on the subject often acted as a trigger. In their approach to this problem, the Màlikì jurists distinguish between immovable and movable goods. As for the first one, they agree that Màlik’s opinion was that the selling of a˙bàs was forbidden, even in case of ruin, although there was some controversy, as Ibn Sahl said quoting Abù-l-Faraj al-Màlikì’s Kitàb al-Óàwì (qawl Màlik ikhtalafa fì bay' al-waqf idhà khariba). Attempts to sell a dilapidated ˙ubs property aroused discord within the Màlikì school. According to Ibn Wahb’s Muwa††a", Rabì'at al-Ra'y (d. 753), one of Màlik’s masters, regards this action as lawful whereas Ibn Abì Zayd considers it illicit (la yubà' al-˙ubs wa-in khariba), even though he admitted that there was disagreement as to the lawfulness of transferring it (ukhtulifa fì-l-mu'àwa∂a bi-l-rab' al-kharib bi-rab' ghayr kharib).13 Some
13 Sa˙nùn, al-Mudawwana, XV, p. 100; Ibn Abì Zayd, Risàla, pp. 234–235; Ibn Sahl, Dìwàn, II, p. 1108; al-Wansharìsì, Mi'yàr, VII, 422.
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texts by Andalusian jurists report this controversy.14 The following excerpt from Ibn Hishàm al-Qur†ubì’s Mufìd li-l-˙ukkàm illustrates this point:15 In spite of the fact that a building established as a ˙ubs may lay in ruins, it cannot be put up for sale nonetheless. But if, instead of a building, it is an aging beast which is no longer fit for work, there is no reason why it should not be sold and replaced by a similar animal. Ibn al-Màjishùn states: ‘that sale is not permissible when it involves a building’. It is assumed, though, that Rabì'a allowed the sale of an asset of mainmorte—an abandoned and dilapidated building —provided that the money thus raised was employed to acquire a similar one. This is not a view upheld by legal practice, however, regardless of the fact that Rabì'a’s statement purporting that selling a˙bàs is a lawful practice is subscribed by a sector of Màlikism.
As for the movable goods, there was no disagreement within the school about Màlik’s opinion, which was, according to Ibn al-Qàsim and Ibn Wahb, favourable to the sale of fabrics, slaves, beasts of burden or horses donated fì sabìl Allàh whose unfit state made them unsuitable to be used for the purpose they had been earmarked.16 Although it has been said that the Màlikìs allow the sale only with regard to movable goods,17 the prevailing opinion among Andalusian jurists on this issue seems to be more open and adaptable to real conditions, an attitude which could be qualified as pragmatic. Most of those jurists hold that the sale of pious endowments based on economic reasons was lawful, for movables as well as for real estate, but only if the proceeds of the sale were used for acquiring a new property which should be made into waqf. This is what jurists call mu'àwa∂a or istibdàl. One of the earliest testimonies is that of Ibn al'A††àr in a legal query addressed to Ibn al-Fakhkhàr regarding properties donated in favour of the poor which cannot be divided up. After Ibn al-Fakhkhàr’s response, the following statement is added: 'Ibn al-'A††àr was favourable to the sale of a˙bàs that no longer had
14
Al-Khushanì, Ußùl al-futyà, p. 250; al-Wansharìsì, Mi'yàr, VII, pp. 422–423. Apud A. Carmona González, ‘Acerca del influjo de la jurisprudencia andalusí’, p. 141. 16 Sa˙nùn, al-Mudawwana, XV, p. 99; Ibn Abì Zayd, Risàla, pp. 234–235; Ibn Sahl, Dìwàn, II, p. 1107; Ibn Salmùn, al-'Iqd al-munaΩΩam, apud O. Pesle, La théorie et la pratique des habous, pp. 85 and 140–141. 17 R. Peters, ‘Wa˚f ’, E.I.2, XI, p. 62. 15
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any benefit for that is, he said, the legal practice among us’.18 According to Abù Is˙àq al-Gharnà†ì, it is lawful to sell a horse that has become too thin provided that the money resulting from this transaction is employed in purchasing another. The same applies to worn-out or old clothes; the money resulting from their sale must be handed out to the poor if it is not enough to buy new garments.19 Likewise, Ibn Juzayy argued that the upkeep of horses donated as ˙ubs falls upon the bayt al-màl; if this is not possible, they should be sold and the money thus raised used to acquire assets that do not require constant upkeep, like weapons.20 We have a number of legal questions related to this issue which were addressed both to Ibn Rushd and to a number of Nasrid jurists. The first query put to Ibn Rushd concerns a man who asked the executor of his will to purchase a house for the mosque with the third of free disposal. After buying it, someone noticed that the house had several defects and lacked numerous facilities. The possibility of declaring the sale invalid was mooted and Ibn Rushd supported this decision. He based his argument on the fact that the ta˙bìs carried out on the house did not preclude the possibility of annulling the deal. It would have been otherwise if the founder had purchased the house as a private residence and donated it afterwards. But that was not the case here. The executor had the right, furthermore, to return the house even though he was not the owner, as his activity is similar to that conducted by an agent (wakìl), who is authorised to invalidate the purchase of a faulty object, and he will be accountable for his dealings in this respect.21 Ibn Rushd also issued a ruling on this matter included in a set of questions posed by legal experts from the province (kùra) of Priego (Córdoba) at the end of 518 h/January-February 1125. The fatwà focuses on a nàΩir who used the surplus produced by the ˙ubs of the mosque to buy a small house (duwayra) but he—or his successor— later decided to sell it. On this occasion, the reasons behind this
18
Al-Wansharìsì, Mi'yàr, VII, p. 454 (trans. V. Lagardère, Histoire et société, p. 257, no 163): ajàba Ibn al-'A††àr bi-bay' mà là manfa'a fì-hi min al-a˙bàs qàla wa-bihi jarà-l-'amal 'inda-nà. 19 Al Gharnà†ì, Al-Wathà"iq al-mukhtaßara, p. 39. 20 Ibn Juzayy, Al-Qawànìn al-fiqhiyya, p. 377. 21 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, II, pp. 1049–1050, no 310; ed. alTajkànì, II, pp. 922–923, no 241; al-Wansharìsì, Mi'yàr, VII, p. 461 and IX, p. 406 (trans. E. Amar, ‘La pierre’, XII, pp. 391–393).
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decision are not known and, even though Ibn Rushd does not uphold this action whole-heartedly, he is not opposed to it either. He simply points out that the nàΩir does not have legal authority to take that decision alone; he needs the qà∂ì’s sanction.22 Ibn Rushd’s third and last ruling authorises the mu'àwa∂a or bartering of a ˙ubs in order to prevent it from being adversely affected by a private property adjacent to it. It involved a plot of land (qi†'a ar∂ ) whose usufruct was enjoyed by a certain man and was located immediately beside the door of the house of a farmstead (∂ay'a) owned by someone else; the land was frequently damaged by the people of that household, their employees and, most of all, by their cattle. The beneficiary asked to exchange his land by bartering another piece of land as a means of putting an end to the damage he suffered. Ibn Rushd’s reply was that if the plot no longer provided a benefit (manfa'a) or had become unproductive because the damage inflicted meant that it could no longer be tilled and leased out, it was licit to carry out the barter and exchange it for another ˙ubs provided that the operation had the backing of a qà∂ì and both the reason for this action and the potential benefit derived from it had been demonstrated.23 The same ruling is reproduced verbatim in response to a case of barter due to financial reasons—the author of the fatwà remains anonymous, although it seems reasonable to assume that he issued it in the Nasrid period. The legal question deals with a mosque which owned a field that had remained barren for two years without any prospects of it becoming fertile again. It was asked whether it would be lawful to barter it for a better one or, on the contrary, it should be left like that ‘until judgement day’. The person asking for a ruling on the issue admitted that some plots of land had already been bartered and this had occasioned some expenses. The question then centres on the fact that, if the barter was not legal, what course of action must be followed regarding the vegetables planted on the land and the expenditures incurred.24 22 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, III, p. 1359, no 480; ed. al-Tajkànì, II, pp. 1213–1214, no 315; al-Wansharìsì, Mi'yàr, VII, p. 460. 23 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, II, pp. 1080-1081, no 325; ed. alTajkànì, II, pp. 948–950, no 253; al-Wansharìsì, Mi'yàr, VII, pp. 460-461. It seems to be the same consultation mentioned by Ibn Salmùn, al-'Iqd al-munaΩΩam, in O. Pesle, La théorie et la pratique des habous, p. 139. 24 Al-Wansharìsì, Mi'yàr, VII, p. 138 (trans. E. Amar, ‘La pierre’, XIII, p. 374; V. Lagardère, Histoire et société, pp. 260–261, no 171).
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The most important batch of fatàwà on the subject of the possibility of selling a ˙ubs due to its lack of productivity is the work of several jurists from the Nasrid period, namely Ibn Lubb, al-Saraqus†ì, Ibn ManΩùr, Ibn Siràj and al-Óaffàr. The existence, however, of the aforesaid group of fatàwà issued by Ibn Rushd suggesting the same solution indicates that the criterion of public benefit is not exclusive to the Nasrids. The highest number of fatàwà (four) were issued by Ibn Lubb, all responding to legal queries arising from the dilapidated state of the property. The first deals with a house and an orchard donated in favour of a mosque, assets which the nàΩir declined to accept as he feared that the house might collapse and the revenues produced by the orchard did not even cover the expenses. He was asked whether it was acceptable to substitute some asset more likely to generate a benefit for it. In his reply, he stated that the fact that the ˙ubs had ceased to be profitable and did not have any benefit must be demonstrated before a qà∂ì; the need to replace it for another also had to be proven and, only if that was the case, could the sale go ahead with the qà∂ì’s blessings.25 He also reported that the sale must be conducted in cash and in one down payment; the profit must be used to purchase some asset assumed to be more beneficial than the one it replaced. He concludes, nonetheless, that it would be better to barter it for another ˙ubs rather than putting it up for sale.26 The second case also involves a mosque but two reasons appear in combination: the impossibility of dividing up the ˙ubs and its sorry state. Half a house was donated to a mosque whereas the other half remained under the ownership of a private individual. When the property was divided, its value—and consequently the rent it generated– decreased, thus stirring the co-owner to ask for one half of the ˙ubs to be exchanged for a more profitable building; he also feared that it might become unsafe and ultimately collapse upon him. In his response, Ibn Lubb sanctioned the barter (ta'wì∂), in this particular case due to its ruinous state. He indicates that the usual procedure is to authorise this kind of request if it is expedient lest it becomes dilapidated and eventually collapses with no one in charge
25 The authorisation of the qà∂ì is also a requirement stipulated by Nasrid Ibn Salmùn, al-'Iqd al-munaΩΩam, in O. Pesle, La théorie et la pratique des habous, p. 137. 26 Al-Wansharìsì, Mi'yàr, VII, p. 94.
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of undertaking repairs or rebuilding it and, to compound matters, no available funds to make this possible.27 Another case on which he rules deals with a house owned by a mosque which, after tumbling down and becoming a disused site, was rebuilt by a man with his own money. He later tried to seize the property in return for a certain amount of dinars and two chestnut trees. Ibn Lubb maintained, as in the previous cases, that the barter was lawful, that is provided that the man substituted a property (aßl) for the house. As for the sale, however, he has misgivings: he states that the money should not be accepted, although he does not regard this transaction as illicit as he uses the expressions ‘it is not advisable’ (là yanbaghì) rather than ‘it is unlawful’ (là yajùzu).28 Lastly, he tackles a case of a ruined ˙ubs; the walls of a fabrics atelier (†iràz) were in bad shape and caused problems for the neighbours. The ràbi†a who owned the atelier lacked sufficient funds to undertake the repairs. He replied that it was licit to sell the †iràz and with the money thus raised to purchase another ˙ubs although, as in the previous case, he claims that substituting another property for the atelier would be the most fitting solution.29 Ibn Siràj is another jurist who authorises the sale of a ˙ubs due to its unsatisfactory productivity rate. This is exemplified by a fatwà also issued à propos a mosque. The case concerns a plot with trees (sha'rà") growing on it, located in the boundary (˙awz) of qaryat Qar†ama, in the district ('amal ) of Comares (Málaga). It belonged to the local mosque but had not generated any profit from the time it was donated, over a hundred years earlier, up to that moment. As a result, the villagers wanted to sell it and use the money from the sale to repair the mosque. The jurist’s reply was succinct as he confined himself to pointing out that, if the situation was as appalling as it had been reported, the sale could go ahead provided that the profit was used for the purpose indicated.30 Very similar terms are 27 Al-Wansharìsì, Mi'yàr, VII, pp. 94, 199 and 259. Of these three versions, the first two are more similar whereas the third is slightly different; their general postulates are, however, the same. The same ruling follows in the three cases, although it differs a little bit in the form it takes. The last two are identical whereas the first is a bit longer. 28 Al-Wansharìsì, Mi'yàr, VII, pp. 198–199. 29 Al-Wansharìsì, Mi'yàr, VII, p. 99 (trans. V. Lagardère, Histoire et société, p. 280, no 242). 30 Al-Wansharìsì, Mi'yàr, VII, p. 153 (trans. P. Guichard and V. Lagardère, ‘La vie sociale’, p. 221 and V. Lagardère, Histoire et société, p. 261, no 172).
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used by al-Óaffàr, who regarded it as lawful to sell a faddàn of no value (manfa'a) whatsoever that had been donated for some pious aim, not mentioned in the text. He insists, though, on the need to secure the qà∂ì’s approval prior to going ahead with the deal and only after the unproductive condition of the land has been fully assessed. He based his argument on Ibn Rushd’s views à propos a plot set as a ˙ubs whose profitability was being jeopardised by a farmstead abutting it.31 This case has been described above (see supra). The only instance when the sale of a ˙ubs is explicitly condemned, even though the evidence seems to indicate that this would be financially beneficial, is found in a fatwà by al-Mawwàq issued in response to a question on a plot owned by an old mosque in a certain location. A sixth of the plot belonged to a ràbi†a and this represented a disadvantage to the mosque. The jurist did not admit the possibility of exchanging that sixth of the plot for another of the mosque’s properties, nor did he approve of its sale to the mosque on the part of the ràbi†a as that would amount, he maintained, to disposing of someone else’s property without the due authorisation (taßarruf milk al-ghayr bi-ghayr idhn).32 In another legal query, however, al-Mawwàq showed a different attitude, more open to the possibility of making changes. He was asked about a place (maw∂i' ) which, in the past, had been a zàwiya of the fuqarà" but, after falling into disrepair, it was sold. That zàwiya had a ˙ubs which, at the present moment, was being used for another purpose not specified, although the words of the text (Ghayr wàjib) imply it is not acceptable. The inhabitants of the fortress (˙ißn)—presumably a reference to a neighbouring location—wished to transfer it to the mosque for the use of the kiswa,33 and al-Mawwàq gave his consent (al-amr fì-hi muwassa' ).34 As in some other aspects, Andalusian jurisprudence, in particular Ibn Rushd’s legal pronouncements, regarding the sale of an unprofitable ˙ubs influenced legal practice in the Maghrib, as the fatàwà about to be presented show. The issue had already been raised, nonetheless, by one of the founding works of Màlikism in the Maghrib, the Mudawwana. That is why, according to A. Carmona, it would be
31
Al-Wansharìsì, Mi'yàr, VII, pp. 199–200. Al-Wansharìsì, Mi'yàr, VII, p. 134 (trans. E. Amar, ‘La pierre’, XIII, p. 374). 33 ‘Couverture du tombeau d’un saint’, R. Dozy, Supplement, II, p. 477. 34 Al-Wansharìsì, Mi'yàr, VII, p. 133 (trans. V. Lagardère, Histoire et société, p. 288, no 270). 32
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fallacious to claim that jurists from Fez imitated a norm that had originated in al-Andalus. The former, conversely, did resort to Andalusian fiqh in order to justify and argue in favour of the sale of an unprofitable ˙ubs.35 In the first of these fatàwà, the Ifrìqì jurist Ibn 'Arafa ruled on a case which occurred in al-Qayrawàn concerning a house donated for the benefit of the poor which had become dilapidated and was beyond repair. He maintained that it must be let out for as long as it was possible rather than sold. He admitted, though, that ‘fatàwà issued by Andalusians authorise the sale of a ˙ubs and its replacement for a more profitable one’.36 The faqìh Ibn 'Allàl ruled on a case arising from Taza involving a mosque which owned a sixth of an orchard whereas the remaining five sixths belonged to a private owner. These conditions rendered the mosque’s share virtually unproductive. Asked whether it was lawful to sell this share and replace it for another more fertile and thus likely to be more profitable and generate revenues, he replied that this transaction was legitimate and based his arguments on the works of two Andalusian jurists, Ibn Óabìb’s al-Wà∂i˙a and Ibn 'Àt’s (d. 609 h/1212) al-ˇurar.37 The faqìh Mùsà al-'Abdùsì from Fez believed, for his part, that the most common view among Màlikì jurists was to ban the sale of a ˙ubs, both entirely or partially regardless of the fact that it was the result of a donation or had been purchased thanks to the surplus produced by another ˙ubs. He also recalls, however, that Ibn Rushd issued fatàwà in support of the sale of a ˙ubs acquired through the surplus money generated by another if the qà∂ì deemed it appropriate. The same applied to an asset which no longer had any use (manfa'a). He also quotes the jurist Ibn 'Àt’s pronouncements; the latter stated that the sale of building materials (anqà∂) was licit in his work al-ˇurar.38 The most interesting fatwà is, perhaps, that issued by the jurist Mu˙ammad b. 'Abd al-'Azìz al-Tàzaghdarì39 in mid-Shawwàl 829/ 35 A. Carmona González, ‘Acerca del influjo de la jurisprudencia Andalusí’, p. 142. 36 Al-Wansharìsì, Mi'yàr, VII, p. 336 (trans. V. Lagardère, Histoire et société, p. 221, no 44): Ωàhir fatàwì al-andalusiyyìn taqta∂ì ibà˙at al-bay' wa-yastabdil bi-hà mà huwa a'wad bi-l-manfa'a. 37 Al-Wansharìsì, Mi'yàr, VII, p. 286. 38 Al-Wansharìsì, Mi'yàr, VII, pp. 185 and 260 (trans. E. Amar, ‘La pierre’, XIII, p. 365). 39 Al-Wansharìsì, Mi'yàr, VII, pp. 209–211 (trans. V. Lagardère, Histoire et société, p. 238, no 98).
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mid-August 1426 concerning the ruined house of Ibn Bashìr, located in the street of Ibn Óayyùn, along the ramparts, and owned by the mosque of al-Qarawiyyìn in Fez. He was opposed to the sale of the house for three reasons. Firstly, because in order to sell a ˙ubs and substitute another for it without contravening the law it must no longer be beneficial (manfa'a). This was not the case here as the house could be let out as a storage building and some people were even willing to rent it for a considerable amount of time and undertake the necessary repairs; he claims that the house was located in the best quarter of the town (idh hiya aghba† maw∂i' fì-l-balad ). Secondly, for the sale and replacement of the ˙ubs to be lawful there must be complete certainty that it could no longer be repaired or rebuilt; in this case, however, that possibility existed thanks either to the numerous assets owned by the mosque, whose revenues could contribute to fund repair costs, or by letting it out to someone eager to carry out repair works, even if it were for a lengthy period and at a low price. This was viable due, as it had been pointed out, to its enviable location; the fact that it lay now in ruins was but the result of negligence and mismanagement on the part of the administrators (naΩΩàr) of the mosque’s assets. Lastly, selling the house was also not possible because, even though no tenant was willing to rent it at the moment and no funds stemming from the mosque’s other assets were then forthcoming, no one could guarantee that this possibility might not arise in the future. Those who gave their blessing to the sale of the ˙ubs acted in that way on the premise that it was no longer beneficial and there was no hope at all of rendering it productive in the future; keeping the ˙ubs as it was would then be detrimental (∂arar). It is precisely at this stage of his argumentation that he resorts to Ibn Rushd’s pronouncements. Similarly controversial is the issue of the sale of a property which cannot be divided up. This possibility arose when part of a house or a plot was donated while the rest of the property remained in private hands. If the property was susceptible to being divided up in shares, each beneficiary was allowed to retain his portion; this was not the case when the property could not be divided. In the latter case, the prevailing view, based on Andalusian legal practice, was to support the sale of the entire property provided that the money raised from the sale of the part set as a ˙ubs was used to acquire another asset that would then be devoted to the same charitable aim. Andalusian jurisprudence quotes, almost unanimously, this
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tradition as stemming from Ibn al-Màjishùn in the version rendered by Ibn Óabìb in the oldest Andalusian legal source partially preserved, al-Wà∂i˙a. The text runs as follows:40 At the end of ßadaqàt’s chapter of Ibn Óabìb’s [book] it is said: I asked Ibn al-Màjishùn about a man who shared houses and palms with others (qawm) and he donated his share in favour of his children and others as pious endowment (ßadaqa mu arrama mu˙abbasa). All these things were collective ownership not divided (mushà' gayr maqsùm); some of the joint-owners (shurakà") were abroad and part of the goods were divisible and the rest indivisible. What should be done? He answered: if there are among the partners (shurakà") people who want to divide [the property] but part of them are abroad, the authority (al-sul†àn) must set them a dead-line taking account of how far away they are; then they can choose between appointing an agent (wakìl) or being the authority responsible for the division, their rights would be preserved by a trustee (musnad ). Once the division has been made between all the partners, the share of the ßadaqa’s founder should be made into ˙ubs and the indivisible part should be sold and with his share’s proceeds he must buy some goods and turn it into ˙ubs (ßadaqa musabbala mu˙abbasa) for the same purpose.
As is the case with all polemical issues, there are legal queries from different periods. Ibn Zarb’s Masà"il, from the second half of the 9th century, one of the two main sources of Ibn Sahl’s Dìwàn, admits this kind of donations, but he recalls the existence of controversies (ikhtilàf ) among the 'ulamà". Al-Wansharìsì himself asserts that the option of selling an indivisible asset was prevalent in al-Andalus and it informed judges’ and magistrates’ legal practices, with the proviso that the amount thus obtained must be used to purchase another property which would then be turned into a ˙ubs.41 Ibn al-Makwì deals with a case involving a man who had donated all his properties ( jamì' amlàki-hi ) for his children and their descendants, but the goods were mushà', or joint ownership. Once the founder died, the other owners demanded the division of the property. In his fatwà, Ibn al-Makwì admits that they have the right to do so but only the qà∂ì could undertake the division of the ˙ubs.42
40
Ibn Óabìb, Wà∂i˙a, 65 (Arabic) and 77 (trans.); Ibn Sahl, Dìwàn, II, pp. 1124–1125. 41 Al-Wansharìsì, Mi'yàr, VII, pp. 423–424. 42 Al-Sha'bì, al-A˙kàm, p. 146, no 182 and al-Wansharìsì, Mi'yàr, VII, p. 432 (trans. V. Lagardère, Histoire et société, p. 257, no 160).
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The controversial nature—as far as jurisprudence was concerned– of this issue is epitomised in a legal question addressed to Ibn alFakhkhàr concerning indivisible properties donated in favour of the poor.43 In his response, he asserts that windmills or other buildings out of which a portion had been donated to the poor but could not be legally divided, thus leading to a decrease in profitability, must be sold in their entirety and the money thus raised used to acquire another asset set as ˙ubs: ‘this is legal practice and as such it is stipulated in the al-Wà∂i˙a" (bi-hi al-'amal wa-hiya fì-l-Wà∂i˙a manßùßa), he concludes. He then quotes other jurists’ views, among them Ibn al'A††àr’s—commented upon above(see supra)—in favour of selling a˙bàs which are no longer of any use (manfa'a), for this was Andalusian legal practice; the latter also prescribed splitting a non-divisible property that proved damaging (wa-kadhàlik jarà bi-qismi-hà li-mà yadkhul fì ishà'ati-hà min al-∂arar). He then includes Ibn al-Màjishùn’s quotation—Ibn Óabìb’s rendition of it—as an appendix already mentioned in the previous fatwà by Ibn Zarb sanctioning the sale when the property was indivisible.44 The diversity of opinions on the issue is also reflected in a legal query about a man who bequeathed a fourth (rab' ) of a non-divisible property to another. In the aftermath of the testator’s death, the inheritors of the remaining three fourths of the asset tried to sell their shares and force the owner of the other fourth, established as a ˙ubs, to follow suit. As the latter snubbed their requests, a number of fuqahà" stepped in an effort to resolve the conflict of interests. The query was first posed to Mu˙ammad b. Ismà'ìl whose view was that, if the property was divisible, it must be split whereas if the opposite was the case, the heirs ought to be allowed to sell their share but could make no demands upon the legatee. Ibn Rushd remarked, likewise, that the legatee must not feel compelled to sell out. If the heirs sold their shares, they could exercise their right to retraction (shuf 'a) over them, but only if their intention was to add them to the ˙ubs, not if they attempted to obtain them as private property (milk). Mu˙ammad b. Dàwud believed that, if the property was susceptible to partition without inflicting any damage on those
43 Al-Wansharìsì, Mi'yàr, VII, pp. 454–455 (trans. V. Lagardère, Histoire et société, p. 257, no 163). 44 Al-Wansharìsì, Mi'yàr, VII, p. 454.
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affected by this action, it must be split; the owners were to be allowed to dispose of their part as they pleased. If the division, however, was likely to jeopardise some of them, the whole property must be put up for sale; the money thus obtained from the ˙ubs portion of it must be employed to purchase another asset and this is to be turned into a ˙ubs as well. Lastly, the passage concludes with a second ruling by Mu˙ammad b. Ismà'ìl who quotes the aforementioned version (riwàya) of Ibn al-Màjishùn’s pronouncement in favour of selling an asset if it were to be indivisible and devoting the amount obtained from the share established as a ˙ubs to replace it.45 Ibn al-Óàjj was also consulted ‘on the case of someone who donated part of a house’ and replied that it must be split if it were divisible whereas, if it were the opposite, he quotes Ibn al-Majishùn’s view as recorded in al-Wà∂i˙a: go ahead with the sale of the entire asset and purchase another ˙ubs to replace the old one. He then included, however, a case which occurred during the tenure of Mu˙ammad b. 'Alì (?) as a qà∂ì concerning the donation of part of an oven to a certain Ibn Khamìs; fuqahà" issued several rulings in favour of the deal and that judge sanctioned it although one of the scholars consulted, Ibn al-ˇallà' (d. 497 h/1103–1104),46 was of the opinion (ra’y) that the views reported in al-Wà∂i˙a must prevail. The passage continues with a paragraph incorporated by al-Wansharìsì himself in which he states that Ibn ˇallà'’s and al-Wà∂i˙a’s views were those held by Ibn al-Qàsim, on whose authority the qà∂ì al-Maqqarì (?) issued his verdicts; they were also the preferred option of ancient judges and, judging from their fatàwà, also of legal experts.47 Some jurisprudence from the Nasrid period is also available on this issue. A fatwà by al-Mawwàq deals with a woman who donated half a house and half a vineyard in favour of a certain mosque. When she died her two nephews inherited from her; one inherited one half of the house and the other one half of the vineyard. The nephew who received the house lived in the half established as a ˙ubs and paid rent for it; after some time, however, he asked for the house to be split so that he could retain his share. It was not pos-
45 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, III, pp. 1571–1573, no 581 and AlWansharìsì, Mi'yàr, VII, pp. 75–76 (trans. A.Mª. Carballeira, Legados píos, 317). 46 See his references in M.L. Ávila and M. Marín, ‘Nómina’, no 1760. 47 Al-Wansharìsì, Mi'yàr, VII, p. 446 (trans. V. Lagardère, Histoire et société, p. 273, no 219).
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sible, however, to divide the house and so he demanded that the property be sold and the money thus obtained divided up. The ruling is based on Córdoban legal tradition as he points out that, of the three opinions expressed on the issue, the fairest (a'dal) is that attributed to Ibn Óabìb and Ibn al-Màjishùn in favour of the sale.48 Very similar is another legal question addressed to Ibn ManΩùr, although the way in which the case is formulated is somewhat oblique. I would like to focus here on the significance of the response, which is quite unequivocal and in which he maintains, like previous jurists, that it falls upon the qà∂ì to decide on a case of sale of a ˙ubs belonging to a mosque.49 There is, lastly, a fatwà by al-Óaffàr concerning the case of a man who owned a plot of land—part of which was a ˙ubs—and was not sure as to which percentage corresponded to each concept (private and ˙ubs). He was asked whether it was lawful to sell the part of the plot under his ownership together with the trees it contained. The faqìh replied that the deal could not go ahead because one of the prerequisites that rendered a sale lawful was that the latter involved a specific and known object; in this particular case, neither the buyer nor the seller were aware of the actual size of the portion of the land that had been sold.50 3.2. Excessive productivity: transfer of surpluses Both a deficit and an excess of productivity could pose a problem. When dealing with mosques, I referred to the use of the notion of surplus as a means of overcoming the constraints stemming from the clauses set by the founder (see chapter 7). Surpluses could be used in two ways: internal or external. In the first case, the aim was to devote those revenues to the same purpose selected by the founder albeit introducing slight changes: i.e., within a mosque, employ the revenues earmarked for rebuilding work to pay the salaries of the imàm or the muezzin. I shall turn my attention now to the second type, that is the diversion of funds towards external enterprises. Two variants can be observed here: the most frequent case was to use
48 Al-Wansharìsì, Mi'yàr, VII, pp. 130-131: yajùzu bay'u-hu wa-yushtarà bi-thamanihi mà yuj'al ˙ubsan mithlu-hu. 49 Al-Wansharìsì, Mi'yàr, VII, p. 183. 50 Al-Wansharìsì, Mi'yàr, VII, p. 109.
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the surplus available to a mosque in favour of another with no funds or in need of financial aid; jurists also had a chance to adopt more radical measures, like devoting the surplus generated by a certain asset to another pious undertaking, different from that stipulated by the founder. One aspect that must be clarified is the distinction between revenues and surpluses. Jurists are agreed that revenues must always be used to fulfil the needs anticipated by the founder. Only in the case that the property or the donated asset might generate a surplus, could the possibility of channelling the latter towards an internal or external purpose be contemplated. This means that there could be no transfer of capital unless needs remained outstanding; this is natural after all, as otherwise it would be tantamount to providing funds for a specific need whilst engendering another. When there are no surpluses, fuqahà" could refuse the possibility of an internal change, even though justified on the basis of persuasive grounds. This is what happens in a legal query posed to al-Mawwàq about a mosque which owned goods expressly donated for various aims, among them paying for repair expenses with the exception of those affecting the walls. The villagers asked whether it was licit to make use of part of the revenues produced by goods donated to the mosque for purposes other than those listed in the donation, namely to repair the walls of the mosque. Al-Mawwàq replied that it was not and warned the administrator of this particular ˙ubs against trying to fiddle with the founder’s stipulations.51 A similar outcome is found in a case presented to Ibn Lubb about a community who built an oven whose profits they later donated to a ràbi†a. There was an older oven in another quarter of town and its revenues were also earmarked for the ràbi†a. When the new oven started to operate, the profits of the old oven declined and the beneficiaries resolved to ask the owners of the newly-built oven for a share of the revenues in order to compensate them for their losses. They made their request, thus hoping to hand the monies over to the imàm of their ràbi†a. The latter declined, though, and the funds ended up in the hands of the muezzin. The mustaftì concludes his presentation by drawing attention to the fact that the quarter where 51 Al-Wansharìsì, Mi'yàr, VII, p. 135 (là budda li-mutawallì-l-naΩar fì-l-˙ubs min murà'àt qaßd al-mu˙abbis wa-ittibà' shar†i-hi in kàna jà"iz fa-mà khaßßa-hu al-mu˙abbis binaw' là yußraf fì ghayr dhàlik al-naw' ).
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the new oven was located did not have access to any other, whereas the other neighbourhood owned other a˙bàs whose revenues proved more than sufficient to meet its needs. Ibn Lubb’s succinct reply is opposed to the deal and points out that each ràbi†a must be the sole beneficiary of the profit made by their own oven.52 On occasions, however, that distinction was not so clear-cut. This is at least the impression conveyed by a fatwà by Ibn Rushd, issued in response to a query made by a group of Badajoz citizens who arrived in Córdoba between the end of Jumàdà I and early Jumàdà II 517 h/July 1123, concerning a magistrate (˙àkim) who borrowed a certain amount of money from the mosque’s pious endowments in order to repair the stone benches (masà†ib) that surrounded the building even though he was fully aware that the mosque lacked any funds to repay the loan. Ibn Rushd maintained that no blame ought to be apportioned to the magistrate because of this action (là ∂amàn 'alay-hi bi-dhàlik).53 When a faqìh, on the other hand, authorised the use of a donation—including the surplus—for a purpose other than that stated by the founder, he often tried to save face by insisting that the prerequisite of fulfilling the objectives pursued by a donation prior to embarking on any other endeavour must be met. This is natural, after all, since the jurist was aware that, by sanctioning the use of surpluses, he was treading in uncharted territory that could ultimately lead to the illegitimate use of a˙bàs; it is undeniable that the decision on what constituted a surplus and what did not was based, to a great extent, on subjective estimation and, irrespective of the final course of action, those surpluses could be saved for a rainy day, that is when there was a downturn in the volume of revenues. The use of the notion of surplus can thus be interpreted as a way of overcoming legal restrictions such as adherence to the founder’s stipulations and, at the same time, of adopting the criteria of benefit and economic rationality in the management of pious endowments. In fact, as we shall see, the legality of having surpluses transferred somewhere else was not universally admitted, even though it was the predominant view in al-Andalus. 52
Al-Wansharìsì, Mi'yàr, VII, p. 201 (trans. E. Amar, ‘La pierre’, XIII, p. 391, V. Lagardère, Histoire et société, p. 280, no 244). 53 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, II, p. 1260 and III, p. 1268, no 419; ed. al-Tajkànì, II, p. 1134, no 304; al-Wansharìsì, Mi'yàr, VII, pp. 465–466 (trans. E. Amar, ‘La pierre’, XIII, p. 383).
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Màlik’s disciples held differing views on whether the use of surpluses for a purpose other than that originally stipulated was a licit procedure or not. Aßbagh and Ibn al-Màjishùn were in favour and based their arguments on the dictum ‘there is no harm in mutual cooperation when it comes to God’s matters’ (mà kàna li-llàh fa-là ba’s an yù∂a' ba'∂u-hu fì ba'∂in),54 which became very often quoted in Andalusian legal literature. In the same way, Sa˙nùn was against the sale of surplus mosque oil, but, in his opinion, there is no harm in its use for another mosque.55 There were contradictory versions of Ibn al-Qàsim’s view however.56 Both Andalusian and Maghribi jurisprudence were broadly open-viewed toward the transfer of surpluses and there seemed to be unanimity in considering the qà∂ì Ibn al-Salìm as the pioneer of this practice,57 even if there is evidence of the existence of earlier legal opinions from the 9th century, as we shall see below. The most frequent legal queries on this issue involve mosques, which is hardly surprising considering the predominance of fatàwà on these institutions in the corpus. In my view, the prevailing opinion among jurists is widely in favour of the transfer of surpluses throughout different mosques, taking as a guideline the type of functions and aims pursued by all of them, provided, of course, that the needs of the mosque initiating the transfer of revenues had been previously met.58 Some references trace this practice back to Ibn Óabìb’s al-Wà∂i˙a59 and there is a legal ruling by that jurist confirming his view which can be considered, in fact, the earliest Andalusian fatwà available on the issue of pious endowments. Its antiquity confirms the relevance of this subject. The fatwà focuses on the case of someone who,
54 Al-Wansharìsì, Mi'yàr, VII, pp. 147, 200-201, 216, 219, 244, 259, 277–278, 293, 384 and 424–425. See also Ibn Salmùn, al-'Iqd al-munaΩΩam, in O. Pesle, La théorie et la pratique des habous, p. 158. 55 Ibn Sahl, Dìwàn, II, p. 1114. 56 See, for instance, a negative one in Ibn Salmùn, al-'Iqd al-munaΩΩam, in O. Pesle, La théorie et la pratique des habous, p. 156. 57 Al-Wansharìsì, Mi'yàr, VII, pp. 91–92 (trans. V. Lagardère, Histoire et société, p. 279, no 239), 146–147, 200–201 and 218–220 (trans. V. Lagardère, Histoire et société, p. 255, no 152). 58 See the slightly different opinion of A.Mª. Carballeira, Legados píos, p. 194: ‘en general, los juristas andalusíes abogan por reservar el remanente de los ingresos de las mezquitas para las necesidades que pudieran surgir en ella, si bien se consentía en transferirlos a otras mezquitas en casos de imperiosa necesidad’. 59 Al-Wansharìsì, Mi'yàr, VII, p. 220.
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afflicted by illness, bequeathed the oil produced by his olive trees to the only mosque existing in the village at the time. Other mosques were later built there and he was asked whether the surplus ( fa∂la) of oil generated by the earliest mosque could be spent on the others. He retorted that it ought to be used, first of all, to purchase prayer mats and undertake the necessary building repairs. If any oil were to remain once these costs had been covered, it could be handed over to other mosques.60 A legal question on this same issue from the second half of the 9th century deals with pious endowments of several villages (qurà) donated in favour of mosques and the poor whose managers started to share their proceedings, part for the mosques and part for the poor (aqarra man bi-yadi-hi min al-a˙bàs shay’ bi-mà bi-yadi-hi min-hà lil-masàjid wa-mà min-hà li-l-fuqarà"). The question was addressed to several Córdoban jurists, among them Mu˙ammad b. Walìd, 'Ubayd Allàh b. Ya˙yà, Ayyùb b. Sulaymàn, Ibn Lubàba and Ibn Mu'àdh. In their fatwà, they note that most of these goods were ancient and only a few recent, which probably means that the specific goals of much of this a˙bàs were unknown; they add that both the poor of these villages and the reparation of the mosques were pious aims. On these premises, the jurists agreed with the managers and said, first, that what they ordered was right (anna iqràra-hum bi-mà ta˙ta aydì-him min hàdhihi-l-a˙bàs làzim la-hum), and, second, that following their decision was binding ( yajib tanfìdh dhàlik 'alà mà aqarrù bi-hi waßannafù-hu mimmà jarat bi-hi al-˙ibàsa bi-hi). This is, they concluded, what must be done with all the pious endowments of unknown origin which are attested only by those who act as managers (hakadhà yajib fì kull majhùl al-aßl lam yuthbit illà bi-iqràr man alladhì bi-yadi-hi ).61 These fatàwà together with the reference to Ibn Óabìb’s al-Wà∂i˙a suggest that Andalusian Màlikìs were in favour of the transfer of surpluses between mosques from the outset. The 10th century Córdoban qà∂ì Mu˙ammad b. Is˙àq b. al-Salìm is, however, the most frequently quoted jurist and his views are always adduced as authoritative whenever a favourable stance towards altering the purpose originally intended for the surpluses was trying to be justified. The
60 Al-Sha'bì, al-A˙kàm, p. 495, no 1097; al-Wansharìsì, Mi'yàr, VII, pp. 64–65 and IX, p. 399 (trans. V. Lagardère, Histoire et société, pp. 405–406, no 136 and A. Mª Carballeira, Legados píos, p. 95). 61 Ibn Sahl, Dìwàn, II, pp. 1120–1121.
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Mi'yàr includes a fatwà recording his opinion issued in response to a query generically addressed to the shuyùkh from al-Andalus. It deals with a mosque, built at the behest of a certain individual and frequented by disreputable people usually accompanied by ‘dressed-up women’ (ahl al-shirr ma'a mutabarrijàt al-nisà"), which ended up becoming a hideout (maybe an indirect reference to prostitution?). The fuqahà" were asked to express their views on whether the mosque ought to be demolished, the subsequent demolition costs being covered by the builder. The qà∂ì informed them that the site of the mosque was part of a faddàn donated in favour of another mosque and that the latter was also used as a meeting place for scoundrels and miscreants. All the jurists were agreed that the mosque had to be pulled down and the place turned, once again, into a ˙ubs. Ibn al-Salìm disagreed and expressed his opposition to demolishing the mosque. The argument that the site on which the mosque had been built was part of a ˙ubs seemed too flimsy to him. To support his view he quoted a version of one of Ibn al-Qàsim’s rulings according to which he, Màlik’s disciple, considered the erection of a mosque on a disused graveyard as something legitimate; he saw no evil in helping God’s creations to assist each other. The fact that the place was, because of its low value, unprofitable and bound to collapse also had to be taken into account.62 A fatwà issued by the jurist Abù Sa'ìd al-'Uqbànì—which I shall analyse in the following section– claims that this version of Ibn al-Qàsim’s views on the subject adduced by Ibn al-Salìm and that regarding the legality of erecting a mosque on a disused graveyard are borrowed from Ibn Óabìb’s al-Wà∂i˙a.63 Another legal query deals with the case of an imàm employed at a poor mosque whose surplus only amounted to a third of a mithqàl, as a result of which the imàm asked the qà∂ìs for a financial contribution (i'àna). They granted his wish and withdrew revenues from other mosques to make up his allowance (min a˙bàs al-masàjid). However, the enquirer asserts, the stipends of the other imàms were less than that amount; furthermore, they had to buy lighting oil out of their own pocket as the town’s a˙bàs were but a few and the mosques were in need of repair. Ibn al-Imàm’s reply was that pious
62 Al-Wansharìsì, Mi'yàr, VII, pp. 218–220 (trans. V. Lagardère, Histoire et société, p. 255, no 152). 63 Al-Wansharìsì, Mi'yàr, VII, pp. 216 and 238.
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endowments ought to be devoted to the aim for which they had been donated whenever a beneficiary was in need. If a transfer were to be authorised, it would affect only the surplus and serve the same purpose for which the asset had been donated, ‘since all mosques are the house of God Almighty and their goal is the same’ (idh hiya buyùt Allàh ta'àla kullu-hà wa-l-muràd min-hà wà˙id). Thus, he considers the possibility of the imàm receiving a salary out of the surplus produced by another mosque as licit, although it would be preferable not to go to these lengths. He disapproved, nonetheless, of the way in which the imàm that features in this query was allocated that pay rise.64 A similar response by Ibn Ayman is added immediately afterwards. Ibn Rushd, for his part, issued a fatwà including some remarks on the lawfulness of the practice of transferring surpluses from one mosque to another depending on the size or volume of accumulated surplus. The legal question involved a mosque whose nave had collapsed and lacked enough revenues to undertake repairs after covering lighting costs and the salaries of its imàms and other personnel. Other mosques, however, had abundant surpluses so that the query centres on the possibility of carrying out repair works at the Friday mosque with funds drawn from the former. In his reply, he makes the legality of that transfer contingent upon the amount of surpluses available: if the latter was scarce, the operation would not be legal as the mosque that owned it might need those revenues in the future. If the surplus was plentiful, however, it could be used to finance repairs at the mosque.65 Among the Nasrid jurists who ruled on this issue, Ibn Lubb is the one from whom the highest number of fatàwà have been preserved. The first focuses on the case of a mosque owning some olive trees from whose annual harvest a surplus used to remain—once the money necessary to pay for lighting costs had been deducted– and whose beneficiaries were the imàms of mosques found in other towns. These revenues were used to pay for lighting costs and their own salaries; that is why the individual making the enquiry asks whether the practice is lawful or not. Ibn Lubb maintains that it is licit for
64 'Iyà∂, Madhàhib al-˙ukkàm, p. 304; al-Wansharìsì, Mi'yàr, VII, pp. 69–70 (trans. V. Lagardère, Histoire et société, p. 224, no 53). 65 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, I, pp. 311–313, no 65; ed. al-Tajkànì, I, pp. 251–252, no 60; al-Wansharìsì, Mi'yàr, VII, pp. 135–136.
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the nàΩir to employ the surplus for the benefit of his own mosque, putting it out for sale and making use of the money thus raised in its favour. As for using the surplus of a mosque for the advantage of others, he remarks that there exist discrepancies on the issue ( fìhà ikhtilàf fì-l-madhhab). He admits, nonetheless, that Córdoba’s judges allowed this practice (ßarf fawà"id al-a˙bàs ba'∂u-hà fì ba'∂in), sanctioned by the principle—found in Ibn Sahl’s Nawàzil— that postulates: ‘there is no reason why that which belongs to God may not be used in favour of that which is owned by God’ (mà huwa li-llàh là ba’s an yantafi' bi-hi fì-mà huwa li-llàh), an allusion to the legality of transferring revenues from one mosque to another.66 On another occasion, he was asked to rule on a mosque for which a donation, consisting of lighting oil, had been made. The query centred on whether it was lawful or not for the imàm to use the donation for his benefit and pay for the lighting of the mosque with the rents obtained from buildings on lease. His advice was also sought on the possibility of mixing this oil with that belonging to the imàm so that both the mosque and his residence could be lit with the ‘pool’ of oil. Lastly, the likelihood that a surplus might be available and remain intact so that it could be added up to the following year’s harvest raised another question: was he allowed to use it for his own benefit? Ibn Lubb began his response by recalling that the clauses set by the founder ought to be honoured and, likewise, that the ˙ubs had to be devoted to the appropriate aim, without being subject to changes or alterations. If, however, a surplus was available once the ˙ubs’ needs had been met, he believed it was legal to devote it to a similar pious goal or a different one (ghayr dhàlik min wujùh al-khayr wa-l-birr); the surplus could also be sold and the money resulting from the deal spent on repair works. In order to justify the lawfulness of the transfer he invoked legal tradition (ajàza jamà'a min al-muta’akhkhirìn ßarf fawà"id al-a˙bàs ba'∂u-hà fì ba'∂in), again embodied in the figure of the qà∂ì Ibn al-Salìm and other judges. On these premises, he considered that the surplus transference was lawful and could be used for the benefit of the imàm or to anybody else whose work was useful for the mosque.67
66 Al-Wansharìsì, Mi'yàr, VII, p. 112 (trans. V. Lagardère, Histoire et société, p. 280, no 241). 67 Al-Wansharìsì, Mi'yàr, VII, pp. 200–201.
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Al-Mawwàq, likewise, stated in one of his fatàwà that there was nothing wrong in dividing up assets among mosques so that, if one has an oil surplus, it can be used to cover another’s lighting costs.68 As for the mats used to cover mosque floors, Ibn ManΩùr remarked in a fatwà that those which were not worn-out yet must not be sold but stored instead so that they could be used again whenever necessary. He adds, though, that if the mosque were to have enough revenues, the mats could be handed over to another mosque in need of them at no cost whatsoever.69 In the 12th century, Ibn 'Abdùn refers to those mats when indicating that those which have not been ‘ripped and have no loose ends’ must be used to cover the floors of prison cells and the stone benches of the ablutions hall; the remainder must be handed over to the poor.70 As in the sale of an unprofitable ˙ubs (see supra) and the expropriation of goods in order to finance extension works to Friday mosques (see infra), both Maghribi and Andalusian jurisprudence agreed in supporting the transfer of surpluses between mosques. From the abundant body of jurisprudence available on the issue—comprising rulings by Abù Mùsà 'Ìsà b. Mu˙ammad b. 'Abdallàh b. alImàm al-Tilimsànì,71 Abù 'Abdallàh al-Qawrì 72 and 'Abdallàh al-'Abdùsì,73 among others—I will only focus on a fatwà issued by the latter as it affords an innovative way of meeting a mosque’s needs. It is a legal query regarding whether concentrating all the a˙bàs of Fez under a single administration would be a legal measure. Al-'Abdùsì backed this proposal. Judging from his response, nonetheless, he seems to refer only to the assets owned by mosques but not to other types of ˙ubs:74
68
Al-Wansharìsì, Mi'yàr, VII, p. 128. Al-Wansharìsì, Mi'yàr, VII, p. 146. 70 Ibn 'Abdùn, Risàla, ed. E. Lévi-Provençal, p. 212 (trans. E. García Gómez, pp. 84–85, no 37). 71 Al-Wansharìsì, Mi'yàr, VII, pp. 257–258 (trans. V. Lagardère, Histoire et société, p. 224, no 55), VII, pp. 474–476 (trans. V. Lagardère, Histoire et société, p. 224, no 56). 72 Al-Wansharìsì, Mi'yàr, VII, pp. 187–188 (trans. V. Lagardère, Histoire et société, pp. 251–252, no 140). 73 Al-Wansharìsì, Mi'yàr, VII, p. 301 (trans. E. Amar, ‘La pierre’, XIII, pp. 378–379, V. Lagardère, Histoire et société, p. 249, no 131). 74 Al-Wansharìsì, Mi'yàr, VII, pp. 331–332 (trans. E. Amar, ‘La pierre’, XIII, pp. 382–383, V. Lagardère, Histoire et société, p. 250, no 136). 69
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chapter nine Is it lawful to gather all the pious endowments found in the town of Fez? He replied: it is lawful to gather them into a single unit, thus avoiding multiplicity, unifying all their revenues and employing the latter in meeting the needs of each mosque so that, if one is poor, it can be helped out thanks to the revenues provided by a better-off one, according to specific circumstances. The Friday mosque will take priority and will then be followed by those located in more densely populated districts; it often happens that a wealthy mosque located in a depopulated area does not draw any attention and, conversely, a poor mosque may attract throngs and accommodate a considerable number of people at night. Whatever the case, the amount borrowed from a mosque to help another will only be regarded as a loan due to the possibility that, in the future, the area may become repopulated or restored and, thus, ensure that it has enough revenue to cover its needs. I seek succour in God.
This fatwà suggests a more elaborate means of meeting the needs of a town’s mosques, creating a centralised management and rationalising the distribution of revenues. It is intended to maximise the efficiency of measures designed to secure their needs, thus overcoming the drawbacks of a system that depended, to a great extent, on the individual will of founders whose decisions, obviously, were not always dictated by criteria such as public interest or expediency. In a way, this unification of all the mosques’ assets recalls the ‘pooling’ of a˙bàs alluded to in some fatàwà by Nasrid jurists75 (see chapter 7). Some legal questions broach the possibility of devoting the surplus generated by a certain ˙ubs to a purpose completely different from that stipulated by the founder. There is clear unanimity in considering the transfer of a mosque’s surpluses to another as a licit practice as they are all God’s establishments pursuing, therefore, identical aims. This is not the case, however, of a˙bàs donated for different purposes because, even though both may be charitable, this entailed a more substantial alteration of the founder’s wishes. It is natural then that legal experts were not unanimous on the issue. This is exemplified by Ibn al-Qàsim’s view, whose influence is pervasive in Andalusian jurisprudence. As we shall see, there was no single version of al-Qàsim’s positions on this issue and fatàwà sometimes report that he was against, but sometimes in favour of this 75 Al-Wansharìsì, Mi'yàr, VII, pp. 101–102 (trans. V. Lagardère, Histoire et société, p. 281, no 247), VII, pp. 121–122 (trans. V. Lagardère, Histoire et société, pp. 264, no 184), VII, p. 126.
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practice. There was, conversely, an undeniable tendency in its favour based on the views of ancient Màlikì jurists like Aßbagh b. al-Faraj and Ibn al-Màjishùn, both authors frequently quoted by those who endorsed the shift of purpose based on the argument that no damage ensues from devoting an asset earmarked for a pious aim to another provided that the latter was equally pious. Andalusian jurisprudence on the transfer of surpluses to serve purposes other than the originally stated is less abundant than that concerning the exchange of revenues between mosques. In fact, it consists of a few fatàwà, all issued by Nasrid fuqahà". The fact, however, that the backing of Córdoban ‘classical’ legal tradition—both the aforementioned Ibn al-Salìm and Ibn Sahl’s Nawàzil— was almost invariably sought in order to justify this option is significant. Another often brandished argument was that of public interest and financial profitability. Some of these questions and legal responses reflect the particular conditions affecting the Nasrid kingdom, characterised by defence imperatives and economic difficulties. Two of the fatàwà available to us were issued by Ibn Lubb; the first has been analysed in a previous section (see supra). It is the query on the case of a mosque for which lighting oil had been donated and whether it was lawful or not for the imàm to make use of it for his own benefit, covering the costs of lighting the building out of the rents obtained from leasing out buildings under its ownership. In his response, he asserts that the surplus ( fà"id ) could be devoted either to the same purpose ‘or to a different, also charitable, one’ (ghayr dhàlik min wujùh al-khayr wa-l-birr) and justifies this action by recalling the views of Ibn al-Salìm and other jurists.76 The same faqìh expressed similar views when questioned about some assets in Almería of unknown purpose (maßrif ) as they were formerly based in Pechina77 but were relocated when local residents moved to Almería. Later on, the ruler (mawlà) decreed that a salary, drawn from these assets, was to be allocated to Almería’s students as an allowance and the person making the enquiry asks whether students ought to be allowed to receive revenues from assets whose donation remained unknown. Ibn Lubb ruled that any ˙ubs of unknown origin must be
76
Al-Wansharìsì, Mi'yàr, VII, pp. 200–201. The text says Bayàya (Bougie) but it must be a typographic error in place of Bajjàna (Pechina) due to the confusion between yà’ and nùn. 77
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devoted to pious aims since, ‘if it is said, of a˙bàs whose purpose is not known, that it is lawful to employ their revenues for another aim provided that the latter is charitable, how come the same conditions are not to apply to a˙bàs which were donated for an unknown purpose?’. To substantiate his opinion he recalls Córdoban legal tradition: According to Ibn Jàbir’s Nawàzil, Mu˙ammad b. Is˙àq b. al-Salìm the transfer of renevues between different a˙bàs and other Córdoban qà∂ìs did the same. This was also the opinion expressed by Ibn Óabìb in the chapter devoted to pious endowments in al-Wà∂i˙a. There are disagreements among jurists on the issue. Ibn Sahl states a similar view in his Nawàzil, quoting several masters, in the sense that there is no harm in using the revenues produced by a ˙ubs for another’s benefit and there is no harm if things which belong to God can be of help to each other (là ba"s bi-mà huwa li-llàh an yußraf fì-mà huwa li-llàh)’.78
On occasions, different circumstances concurred, like in the case of a ràbi†a adjacent to the ramparts of Vélez that was only used for prayer during Rama∂àn. It was then suggested that the surpluses generated by its assets were transferred to provide funds for reinforcing the ramparts or repairing some frontier outpost. At first, the jurist addressing the enquiry believes that those surpluses must be devoted to the upkeep of another ràbi†a but he later admits that the legal practice ('amal) of a number of Córdoban qà∂ìs contemplates the possibility that they be used for any endeavour of public interest; he concludes that it falls upon the qà∂ì to opt for the most adequate solution.79 There is, finally, another legal query on the issue of the transfer of assets regarding the aforementioned village of Castril (Granada) whose mosque owned a field with olive trees (ghàbat zaytùn) but only consumed a small portion of the oil produced there. As a result, the nàΩir considered the possibility of selling the surplus oil to raise funds in order to repair the walls (li-ajl al-sùr), hand them over to the fortress ( fì manàfi' al-˙ißn) or to the mosque itself. Al-Mawwàq began his response by quoting the opinion of the Córdoban jurist Ibn alQa††àn, previously mentioned, who issued a fatwà indicating that a
78 Al-Wansharìsì, Mi'yàr, VII, pp. 91–92 (trans. V. Lagardère, Histoire et société, p. 279, no 239). 79 Al-Wansharìsì, Mi'yàr, VII, pp. 145–146 (trans. M. Marín, ‘Documentos jurídicos’, p. 81).
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˙ubs of unknown purpose must be employed in repairing the town’s walls without whose protection prayer could not be held. Based on this view and applying the argument of public or general interest, al-Mawwàq resolved that that surplus must be spent in whatever was deemed to be most useful ( fì-mà huwa ahamm wa-a'wad naf 'an), even though the donation deed stipulated that it must be allocated to another mosque (wa-in kàna al-naßß an yußraf fì masjid àkhar). In his view, repairing the fortress (sadd marammat al-˙ißn) was as worthy an undertaking as using the oil for lighting; in fact, it was much more useful and beneficial (sadd al-maramma a'amm wa-ahamm wa-a'wad naf 'an). The whole translation of the ruling is as follows:80 Ibn al-Qa††àn issued a fatwà on a ˙ubs whose revenues had no known purpose. [It was suggested] that they ought to be employed to repair the rampart as the mosque’s mission is to provide a venue for prayers and prayers cannot be held in it if the place where it is located is not fortified. The surplus oil is part of the income (of the ˙ubs) and the usefulness of the rampart for the mosque means that surplus revenues ought to be spent on the former regardless of what the donation deed states in the sense that it must be allocated to another mosque. In this particular case, repairing the fortifications of the ˙ißn does not differ greatly, in the eyes of those who used oil for lighting, from making use of the oil for lighting. In fact, completing building work may result in a more general and far-reaching benefit.
Two elements of this fatwà must be stressed. Firstly, we once again witness a jurist from a later period, in this case 'Umar b. al-Qa††àn, seeking the endorsement of Córdoban legal tradition to justify the use of a ˙ubs for a purpose other than the original, ‘even though the donation deed stipulated that it must be employed to benefit another mosque’, he asserts. Secondly, as is usual among Nasrid jurists, the justification of their decisions lies in the criterion of greater benefit and public interest.
4. External causes: surrounding conditions Alongside the internal inherent circumstances affecting a property turned into a ˙ubs, such as its upkeep or state and its production
80
Al-Wansharìsì, Mi'yàr, VII, pp. 132–133 (trans. V. Lagardère, Histoire et société, p. 287, no 269; M. Marín, ‘Documentos jurídicos’, p. 81).
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capabilities, another type of reasons likely to result in changes to a donation had external origins, that is they were linked to prevalent conditions in the surrounding reality. The latter had an effect on the way assets were administered and created needs that ultimately conditioned the possibilities and methods of management and sometimes made it necessary to modify a founder’s original requirements, in defiance of the legal theory underpinning the institution. I distinguish two parts in this respect. One would consist of needs we might regard as of a pressing nature, of which I include three here: with regard to family donations, the impoverishment of the beneficiary, a reason compelling enough so as to allow the sale of ˙ubs property; the need to extend a mosque, especially if it is a Friday mosque, a fact that jurists unanimously regard as a justifiable reason to authorise the expropriation of any neighbouring property, regardless of whether they are ˙ubs or not; and, lastly, defensive needs, to repel enemy aggression, which fuqahà" sometimes regarded as a powerful enough reason to alter a particular donation. The second part consists of those cases where the purpose for which a donation was made gradually falls into oblivion or is no longer adhered to, thus spawning the need to devote those assets to other aims. 4.1. High priority needs Among the reasons justifying the sale of a ˙ubs we can single out two which can be branded as ‘of a pressing nature’ in the sense that, in certain cases, retaining the ˙ubs could have a more damaging effect than abrogating it. Specifically, Andalusian jurisprudence reveals that the sale of family pious endowments was permissible in the case of the beneficiaries’ dire straits, as was the sale of a˙bàs when a mosque, especially if it was Friday mosque, needed an extension to accommodate more believers. As for private or family donations, the fiqh authorises their sale when the beneficiary can prove that he is in severe need or gripped by poverty. Ibn al-'A††àr’s treatise for notaries constitutes the earliest testimony on the existence of this legal practice; to implement it, though, the founder must have included the appropriate clause in his document of ta˙bìs beforehand:81
81
Ibn al-'A††àr, Kitàb al-wathà"iq, pp. 174–175 (trans. P. Chalmeta and M. Marugán, p. 389).
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If the founder had stipulated in his foundation that those beneficiaries who were in need -their misery and deprivation being manifest- could sell the foundation and benefit from its price. ‘Before uttering [the witnesses] testify’, you would say ‘among the clauses [imposed] by X, son of Y, who set up this foundation, [it must be said] that whoever is in need from among his children, or the descendants of their children, or some later beneficiaries and [there is no doubt] about their need, he could sell the foundation and benefit from its price.
Further on, in the section on jurisprudence included in the formulary formerly mentioned, he repeated the same formula, although with a slight variation, regarding the necessity, on the part of those concerned, to prove that they are in a situation of poverty and penury. In principle, this proof is compulsory, although the founder was entitled to exempt beneficiaries from providing proof by inserting in his ta˙bìs a clause enjoining witnesses to take their word at face value if they simply complained of being afflicted by penury:82 The founder can include this clause in his foundation, as it is legitimate and takes immediate effect. That from among his children, or the latter’s children, who becomes the beneficiary of [the foundation] after their demise who claims to be in need or being broke must testify this in the presence of two valid witnesses. Afterwards, he will have to swear that he has no hidden money stashed away somewhere, nor a source of income to his knowledge, and the foundation could thus be sold. [This is necessary], except when the founder [has stipulated] that whoever among them claiming to be in need, will be believed [without having to give oath]. In this case, whoever among them who claims to be in need will be believed and will not be obliged to give an account of his personal wealth; the sale will be authorised to take place, in accordance with the clause set by the founder.
Al-Jazìrì’s treatise for notaries also includes the same formula83 and jurisprudence provides some examples of this type of sale. The earliest fatwà was issued by Ibn al-Makwì à propos a plot of land donated by a father to his children. When the founder died, his spouse decided to sell the land as she was impecunious and in despair. Ibn al-Makwì replied that if the children were minors when the father passed away the sale must be invalidated, regardless of whether the deal had been
82 Ibn al-'A††àr, Kitàb al-wathà"iq, p. 176 (trans. P. Chalmeta and M. Marugán, p. 390). 83 Al-Jazìrì, al-Maqßad, p. 286.
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reached by the mother or the father.84 Similarly, there is a fatwà by Ibn Rushd regarding a family donation comprising five stores made by a father to his son that included the clause contemplating the possibility of sale as a result of poverty—the legal question, though, has no connection with this particular aspect.85 The existence of a situation of widespread penury could also be brandished as an argument to authorise the sale of a pious ˙ubs. That is the impression, at least, afforded by a fatwà issued by the judge Abù-l-Óasan sìdì 'Alì Ma˙sùd in which he regards it as legal to sell a plot donated in favour of the poor during a year of famine so that they can make do with the money thus raised. He claims, moreover, that this arrangement has been adopted on many similar occasions.86 The need to build an extension for a mosque is another of the eventualities contemplated by jurisprudence as a valid reason leading to the possible sale of assets belonging to pious endowments. In order to understand adequately why this can result in the alteration of a ˙ubs one must take into account that, among Màlikìs, the Friday noon prayer can only be held at one mosque, called masjid al-jàmi'. That is why whenever a Friday mosque can no longer absorb any more believers, prayers are not allowed to be held simultaneously at several local mosques. The practice is always to celebrate the Friday prayer at a single mosque and expediency makes this possible either by enlarging the existing Friday mosque or building another one. In al-Andalus both solutions were taken. The most renowned case is the enlargement of Córdoba’s Friday mosque. Also, replacing a new larger mosque for a small and old Friday mosque was the option that prevailed in Seville: the old Ibn 'Adabbas mosque, erected in the 9th century, was replaced by the Almohads in the 12th century. This is the least controversial reason leading to the sale of a ˙ubs property as there is a considerable degree of consensus (ijmà' ) among jurists in considering the extension of a mosque as a priority; this justifies the state’s expropriation of buildings surrounding the Friday mosque that hinder its potential enlargement. In the case of some
84 Al-Sha'bì, al-A˙kàm, p. 147, no 184; al-Wansharìsì, Mi'yàr, VII, p. 432 (trans. A. Mª Carballeira, Legados píos, 321). 85 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, I, pp. 624–625, no 148; ed. al-Tajkànì, I, pp. 546–548, no 126. 86 Al-Wansharìsì, Mi'yàr, VII, p. 332 (trans. E. Amar, ‘La pierre’, XIII, p. 366).
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or all of those buildings also being ˙ubs properties, it is deemed licit to expropriate them nonetheless, in fact this is even more justifiable than confiscating private properties, as we shall see afterwards. The Màlikì tradition was widely favorable to the enlarging of mosques even when this required the annexation of surrounding real estates which were pious endowments. A ˙adìth transmited by Màlik through Ibn al-Màjishùn said that the mosque of the Prophet in Medina was enlarged by occupying a house which was a pious endowment. Ibn Óabìb is reported to ask Ibn al-Màjishùn whether the annexation was lawful in the case of urban mosques (masàjid alamßàr) and he answered that this was allowed only for Friday mosques, not for popular ones (masàjid al-'ashà"ir). This was also the opinion of several relevant ancient Màlikìs, like Mu†arrif, Ibn 'Abd al-Óakam and Aßbagh. In the same way, Ibn al-Màjishùn argued that it was lawful to enlarge a mosque by annexation of a surrounding cemetery which became overcrowded, as both the mosque and cemetery were a˙bàs and ‘there is no harm if these things can be of benefit to each other’ (là ba’s an yusta'ànu bi-ba'∂ dhàlik fì ba'∂). Aßbagh’s opinion was the same, based on Ibn al-Qàsim, in the case of building a mosque over a cemetery, and, once more, the invoked legal rule is that ‘there is no harm in mutual cooperation when it comes to God’s matters’ (mà kàna li-llàh là ba’s an yusta'ànu bi-ba'∂i-hi fì ba'∂ wayunqal ba'∂u-hu Ilà ba'∂).87 Although, in general, this pragmatic course of action is unanimously admitted, enlarging a mosque gave rise to a number of issues and matters of detail which jurists had to address; they can be divided into two aspects. Firstly, the type of mosque: is it lawful to expropriate when a mosque needs to be extended irrespective of what type of mosque is at stake or only when it involves a Friday mosque? Secondly, the compensation: is it necessary to compensate those affected by the expropriation? Also when the buildings affected have the status of ˙ubs? Is it necessary to distinguish between assets stemming from private donations and a pious ta˙bìs? Màlikì jurists are all agreed in declaring that expropriations conducted in order to enlarge a Friday mosque are legal; they have differing opinions, however, when the mosques selected for enlargement are not Friday mosques. Thus, for example, the Andalusian scholars Ibn Óabìb,
87
Ibn Sahl, Dìwàn, II, p. 1111.
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Abù 'Abdallàh b. 'A††àb and Ibn al-'Àßì maintained that expropriations were only permitted when it was a Friday mosque that was intended for enlargement. As for the type of property, there also is consensus in considering it licit to expropriate both private properties and pious endowments.88 To the best of my knowledge, the earliest legal query on that issue is one addressed to Ibn 'Attàb concerning a group of neighbours who wanted to enlarge their mosque by annexing a surrounding ˙ubs house. In his fatwà, Ibn 'Attàb follows scrupulously the legal doctrine of the Màlikì school and argues that changes in the original conditions of the a˙bàs are unlawful, even for the enlarging of mosques, except in the case of a Friday mosque or a public way, because both are indispensable for Muslims (là budda la-hum min-humà). But the expropriation rule is not valid for small or domestic mosques (masàjid al-qabà"il ). The reason is that the Friday prayer can only be held at one place and, if the city becomes larger, then it will be necessary to enlarge it, but no other mosque can have such a need. So, he concludes, in that case it is possible to build another mosque in the neighbourhood and there is no reason to change the pious endowment (là aqùlu bi-Taghyìr al-˙ubs bi-wajh min al-wujùh).89 Maybe the most complete and significant text on this question is Ibn Rushd’s fatwà issued in response to a query made by Abù 'Abdallàh Mu˙ammad b. 'Ìsà al-Tamìmì, a legal scholar from Ceuta, regarding the town’s Friday mosque.90 The latter claimed that it ought to be enlarged to the detriment of some shops adjacent to it but their owners refused to sell them, alleging that they constituted ˙ubs properties. Four parts can be distinguished in Ibn Rushd’s response throughout which he elaborates and substantiates his opinion in favour of enlargement and, consequently, of expropriating the shops; he concludes by arguing that public interest and welfare make the enlargement necessary and take precedence over private interest and the individual concerns of the shopkeepers or those enjoying the shops’ usufruct. 88 Al-Wansharìsì, Mi'yàr, I, pp. 244–246 (trans. E. Amar, ‘La pierre’, XIII, pp. 80–81). 89 Ibn Sahl, Dìwàn, II, pp. 1112–1113. 90 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, I, pp. 262–269, no 46; ed. al-Tajkànì, I, pp. 214–219, no 41; trans. A. Carmona González, ‘La expropiación forzosa por ampliación de mezquita en tres fetuas medievales’, in P. Cressier et al., L’urbanisme dans l’Occident musulman au Moyen Âge. Aspects juridiques, Madrid, 2000, pp. 142–144; 'Iyà∂, Madhàhib al-˙ukkàm, pp. 306–309 (trans. D. Serrano, pp. 494–497).
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a) Based on Ibn al-Màjishùn’s views, he commences his response by stressing the need to expropriate those shops, either with the acquiescence or against the will of their proprietors, as this would be beneficial to people (li-manfa'at al-nàs bi-dhàlik wa-∂arùrati-him ilay-hi).91 This is also the view, he remarks, of Abù Zayd as recorded in al-Thamaniyya and it is endorsed by most masters of the law. It was also the solution adopted by the caliph 'Uthmàn b. 'Affàn when he decided to enlarge the Prophet’s mosque in Medina to the detriment of some stores whose owners refused to sell them. b) He then proceeds to justify and argue, by means of several legal cases and prophetic traditions, in favour of the need to give precedence to general interest over individual concerns. He first exemplifies this with the expropriation of a piece of land in order to create a public path. According to the jurist Ibn 'Abdùs, who quotes the case as recorded by Sa˙nùn, if a river destroys a public path and there is private land next to it, the imàm (the ruler) must expropriate that land so that Muslims can use it as a path and compensate the owner for his loss with funds drawn from the Public Treasury (bayt al-màl). This question, Ibn Rushd maintains, is the same as that posed in the legal query and the subsequent ruling falls within the category of those giving priority to collective interest over private interest (min bàb al-qa∂à" 'alà-l-khàßßa manfa'atan li-l-'àmma).92 The second instance of prioritising the general interest he quotes is the hoarding of foodstuffs. According to Màlik and other 'ulamà", if food products become dear but food stocks are available in town, the imàm must arrange for them to be taken to public markets (Sùq) and sold to the people. The examples supporting this course of action are, he concludes, numerous. c) He then starts rebutting the arguments of some jurists who maintain that the imàm is not entitled to force anyone to sell his home because the mosque is about to be enlarged nor forcefully evicted against his will. They support their views by recalling a ˙adìth that states that ‘the property of a Muslim cannot be disposed of unless he gives his free consent’, whereas Ibn Rushd believes that the latter can be interpreted in many ways (li-i˙timàli-hi wujùhan 91
Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, I, p. 263; ed. al-Tajkànì, I, p. 215. Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, I, pp. 264–265; ed. al-Tajkànì, I, p. 216. 92
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min al-ta"wìl) and must not be understood in its generic sense but in the specific sense it has in the case at stake. There is no doubt, he continues, that enlarging the Friday mosque is beneficial for the people since, on the one hand, they are obliged to attend the Friday prayer and, on the other, no other mosque can be regarded as a suitable venue to perform them. He also underlines the harm derived from holding the prayer in the courtyard or in roads adjacent to the Friday mosque because the latter has become too small to accommodate all the faithful, in particular when bad weather brings about rain and mud93. d) He finally focuses on the issue of the ˙ubs and thinks that if shopkeepers claim that their shops belong to that type of property, they must be expropriated in return for a sum equivalent to the value of each shop; they will also be obliged to use that money to purchase another property which they need to turn into a ˙ubs although, in accordance with Ibn al-Qàsim’s view on the subject, they will not be compelled to do so. All Màlikì jurists, both early and contemporary, are agreed in considering that the sale of a ˙ubs in order to extend a Friday mosque is lawful; opinions differ, however, when the mosques affected are of lesser importance. On this issue, he confines himself to pointing out that divergences exist but does not indicate whether he is in favour of this or that option. He concludes his ruling by warning that the Friday mosque should employ any available surplus—rents collected from assets on lease—to purchase the stores as it is not allowed to engage in any bartering (mu'àwa∂a) that may involved its ˙ubs properties.94 Ibn Rushd also issued another fatwà on the same issue, this time in relation to the enlargement of Murcia’s Friday mosque, in response to a legal question posed by the Almoravid emir 'Alì b. Yùsuf b. Tàshufìn (500–537 h/1106–1143). The text of the case has not been preserved and thus we do not know the situation in detail nor can we understand with certainty some passages included in the response that refer to specific aspects doubtless presented in the text. However, the reply is somewhat laconic and less theoretical that the former one, although it also provides elements of interest. In agreement with
93
Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, I, p. 267; ed. al-Tajkànì, I, p. 218. Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, I, pp. 268–269; ed. al-Tajkànì, I, pp. 218–219. 94
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what has been stated thus far, he sanctions the enlargement of this Friday mosque, as well as in the case of Ceuta. He alludes to the seizure of a plot of land known as Ibn ˇàhir’s and also of a ˙ubs house located to the east of the mosque; it is à propos of the latter property that he refers to an aspect that did not feature in his previous fatwà concerning the distinction between family donations and public a˙bàs. He maintains that it is not necessary to pay any compensation in return for the house, unless it constitutes a private donation in which case payment is compulsory. As in the previous fatwà, he asserts that this view is unanimously endorsed by Màlikì jurists, both early and contemporary, whereas disagreements remain as to the procedure to be followed when non-Friday mosques are involved. He does not reveal his personal views on the issue either. Ibn Rushd thus believes that, in the case of charitable a˙bàs expropriated in order to enlarge a Friday mosque, compensation is not necessary as both the enlargement work and pious endowments are designed to promote public welfare; to a certain extent, the ˙ubs has thus been used adequately.95 The third fatwà on the subject was issued by the Nasrid jurist Ibn Lubb who is confronted with the need to expropriate or seize a ˙ubs house to enlarge a mosque; it is not known, however, whether it is a Friday mosque or not. The house belonged, seemingly, either to the mosque itself or to another and had been donated so that its rent could be employed to pay for manufacturing costs and the imàm’s stipend. He starts his reply by drawing a distinction between the two basic types of a˙bàs and agrees in this respect with the view expressed by Ibn Rushd: when assets donated for charitable aims are involved, no compensation is necessary. That is, if the assets at stake are donated to particular individuals ('alà qawm mu'ayyanìn), namely if they are private donations, he states that they could only be expropriated once compensation has been paid (illà bi-l-thaman). With regard to the legal divergence between Friday mosques and other types of mosques, he points out that, for most of the ancient jurists, it is permissible to expropriate ˙ubs assets when enlarging any kind of mosque becomes expedient (akthar al-muta’akhkhirìn 'alà jawàzihi ka-l-masjid al-jàmi' sawà"an), whereas other jurists, among whom he
95 Ibn Rushd, Kitàb al-fatàwà, ed. al-Talìlì, II, pp. 1077–1079, no 324; ed. alTajkànì, II, pp. 946–948, no 252.
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singles out Ibn 'Àt and Ibn al-'Àßì, maintain that this practice is only licit with regard to Friday mosques (illà li-l- masjid al-jàmi' idhà ∂àqa).96 A third factor which could lead the Màlikì jurists to justify the use of proceeds from pious endowments for different goals than those originally stipulated were military and security needs. As regards alAndalus, the state of war against the Christians, particularly from the 11th century, when their pressure over the Muslim lands increased, was one such need. Maybe the earliest reference we have comes from Ibn 'Idhàrì’s chronicle and relates to events that took place in Córdoba in 401 h/1010–1011 when the city was troubled by the fitna, the civil war which destroyed the caliphate. In that historical context, the Berbers were one of the more relevant elements: they were hated by the Andalusians and considered as responsible for the situation. Under threat from the Berbers, the Córdoban people decided to fight them and then the qà∂ì promised 500 horses from the money from pious endowments for the slave infantry (wa'ada bijamsumi"at fars min màl al-a˙bàs ya˙milu 'alay-hà murtajilat al-'abìd).97 Even if Ibn 'Idhàrì did not clarify the precise nature and scope of these a˙bàs, the fact that it was a ‘promise’ and the use of the expression màl al-a˙bàs suggest that the qà∂ì had decided to use his general authority as administrator of he treasury of the pious endowments under his control placed in the maqßùra of the Friday mosque for buying these horses. A number of reports, coming from legal sources, are related to the Nasrid period, and each time military needs became more important, even if the information available is very scarce and we should not make generalisations as to the frequency of these situations. Responses to these issues by legal experts are not unanimous either because of the legal nature of the questions and the fact that they are sparked by specific and unique circumstances. Two of the available fatàwà deal with attempts to transfer revenues from pious endowments of various origins in favour of the fortress of Zalía (˙ißn Sàli˙a)
96 Al-Wansharìsì, Mi'yàr, VII, p. 204 (trans. E. Amar, ‘La pierre’, XIII, pp. 362–363. 97 Ibn 'Idhàrì, al-Bayàn al-mughrib (III), p. 104 (trans. F. Maíllo Salgado, p. 96). Although Ibn 'Idhàrì does not mention the qà∂ì by his name and we do not know the exact date of the event, he could be A˙mad b. Dhakwàn, dismissed by the caliph Hishàm II that same year, 5 Jumàdà I 401 h (14/12/1010), or his succesor Ya˙yà b. Wàfid. See Mª.J. Viguera, ‘Los jueces’, pp. 124–125.
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in Malaga. The first, whose attribution is doubtful (Ibn ManΩùr?), alludes to the administrator of the a˙bàs of an ablutions hall located on the outskirts of Vélez who managed to accumulate a considerable amount of dirhams thanks to his job managing those assets. As a result of that, the governor (wazìr al-balad ) and the community asked the administrator of the assets (nàΩir) to surrender that sum of money so that it could be used for the fortress of Zalía, a demand he did not heed. The request then turned into threats and the administrator had no choice but cave in and hand over the money.98 The second legal query presents the case of some assets donated in favour of the readers who recited by the tombs of their founders as well as others donated for the benefit of the poor so that their rents could be used to acquire clothes which would then be distributed among them on the occasion of the feast of the lamb. These assets had been seized, apparently by force, by a group of people in an attempt to transfer their revenues to the fortress of Zalía due to its ruinous state. The response (by al-Saraqus†ì?) is succinct and denies the possibility of earmarking those assets for purposes other than those they were donated for, for they are the right ones; the decision is based on the well-known verse of the sùra of ‘The Cow’ often quoted as an authoritative argument to show the unlawfulness of attempts to change a donation’s alleged aims (Qur"àn, II, 181).99 There is, lastly, a question addressed to al-Mawwàq which discusses the need to employ the funds raised from collecting the zakà and from pious donations to cover the costs of manufacturing a piece of artillery (naf†),100 to be used in the conquest of the town of Alhama, on the premise that, after being fired, it remained as a ˙ubs of Granada’s Friday mosque. To support his request, the individual demanding the legal ruling insists on the maßla˙a inherent in manufacturing the cannon. In his ruling, al-Mawwàq remarks that the issue is hardly new and recalls an episode that took place during
98 Al-Wansharìsì, Mi'yàr, VII, p. 184 (trans. V. Lagardère, Histoire et société, p. 286, no 261). 99 Al-Wansharìsì, Mi'yàr, VII, p. 139 (trans. V. Lagardère, Histoire et société, p. 265, no 186). For A.Mª. Carballeira, ‘Pauvreté et fondations pieuses’, p. 406, this fatwà ‘met en évidence la position intransigeante des juristes andalous en ce qui concerne l’intangibilité des habous’. 100 According to R. Dozy, Supplement, II, p. 172: ‘Chez Alc. naf† pl. anfà†, es lonbarda, c.-à-d., une pièce d’artillerie, une espèce de canon, chez Nebrija, machina nitraria’.
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Almería’s conquest at the hands of James II from Aragon, when several Muslims received a reward because they managed to destroy the wooden tower from which the Aragonese were raiding the town’s walls. This time round, he points out, it is a matter of greater relevance as, in the case of Almería, the action was taken for the benefit of a town, whereas now it would be for the sake of all of al-Andalus. He believes, nonetheless, that it would be better to share out the costs derived from making the naf† among Muslims, rather then depleting the funds of the zakà and pious endowments (a˙bàs subul al-khayràt).101 4.2. Non-existent purpose In the third and last part of this section devoted to the possible changes or alterations made to pious donations I shall analyse a number of legal queries where the issue arises that the purpose envisaged by the founder is awkward or impossible to carry out because the particular conditions in which the founder made his choice have changed due to different events in each case. As the aim as pursued through the donation no longer applies, the fuqahà" must find an alternative, striving, as far as possible, to preserve the founder’s initial wishes. Due to the wide range of situations that could lead to a change in circumstances, it is difficult to classify the cases that tackle these issues into homogenous groups. I have tried, nonetheless, to make this analysis more coherent by distinguishing two groups of cases based on the similarity of topics they deal with. One comprises cases arising from villages or urban suburbs which, when abandoned, make it necessary to find a new goal for the assets belonging to mosques located in those regions. The other involves endowments affected by military actions undertaken by Christians in order to seize territory. As for the responses, fuqahà" are not agreed in their assessment of these circumstances and the ways in which they affect the methods of usufruct of pious endowments. It cannot be stated, therefore, that there exists a prevailing view but, rather, that depending on the shifting nature of cases and circumstances, legal rulings vary.
101
Al-Wansharìsì, Mi'yàr, VII, pp. 147–148 (trans. V. Lagardère, Histoire et société, pp. 288–289, no 273).
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One of the frequent occurrences that is submitted to legal consideration is that arising from the depopulation of a certain area whose a˙bàs are left in a dilapidated state or left unused due to the absence of local residents. Most of the available legal queries refer to the possibility of using the anqà∂ (sing. naq∂) or building materials and rubbish of real estate and mosques found in depopulated villages in favour of mosques in populated areas. Most of the fatàwà, likewise, were issued by Nasrid jurists and many of their rulings were hardly illuminating since legal experts avoided sanctioning one course of action or another wholeheartedly. As a result, I have resolved to divide the views of jurists whose advice is sought in three sections, namely positive, negative and ambiguous. Some of the fatàwà are clearly favourable to the transfer or sale of goods and building materials. The earliest legal query I have dealt with comes from Ibn Ziyàd A˙kàm’s through Ibn Sahl compilation. An unknown ßà˙ib al-a˙bàs found some ruined pious endowments and wasted rubbish (naq∂an bàliyan yasìran) in qaryat Qabr Tjlysh/ T˙myln/Qjysh (?). These materials remain abandoned for some time in their places, but the qà∂ì wanted to learn more about the legality of its sale with the intention of using the proceeds for improving the ruined buildings. Two jurists from the second half of the 9th century, Ibn Lubàba and Ibn Walìd, answered in favour of the sale. Firstly, this was because the sale would be part of the control and care of pious endowments (bay'u-hu min al-naΩar li-l-˙ubs wa-l-˙ì†a lahu), so, in their opinion, the decision was up to the qà∂ì. Secondly, the sale was as a better solution than leaving things as they were because then everything would be wasted (khayr min an yatruk fa-yatlaf jamì'u-hu).102 In Nasrid times, Ibn Salmùn was also of the opinion that there is no harm in selling naq∂ in cases of ruin ( fasàd).103 Another three jurists from this period can be singled out here as representative of the same pragmatic trend: al-Saraqus†ì, Ibn Siràj and al-Mawwàq. The first one answered the issue of whether or not it is lawful to make use of the anqà∂ of a mosque from an abandoned village— where no single house is left standing—in order to erect another. He asserts that, if there is no hope of using the mosque ever again,
102 103
Ibn Sahl, Dìwàn, II, p. 1109. See O. Pesle, La théorie et la patrique des habous, p. 147.
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nor of repopulating the village, it is licit to use its materials for building another ˙ubs, in accordance with the views expressed by some 'ulamà". Local residents will not be forced to assist in the building work unless they volunteer.104 Similarly, Ibn Siràj responds favourably to a legal question on alZàwiya, a village in the district of Comares (Málaga), which was abandoned due to poverty, its mosque’s endowments being transferred to that of al-Zanj. When the latter village was, for its part, abandoned, its mosque’s endowments were transferred to the mosque of the village of Aqù†a.105 The person making the enquiry wonders whether it would be lawful to take all reusable materials left lying at the site of the mosque of al-Zanj (tiles, beams and wooden slabs) or, on the contrary, they ought to be employed in restoring the building if the occasion ever arises. The text of the fatwà seems to have been slightly altered, even though its general sense is favourable to re-using materials from a mosque where no prayers are held any longer in order to erect or repair another.106 Another legal query reports the case of a village raided and destroyed by the Christians and subsequently abandoned but with its mosque and minaret still standing. The mosque owned abundant pious endowments which generate revenues that are no longer needed. The villagers—it must have not been entirely depopulated after all– wish to erect an observatory (qàmira) on top of the minaret to assist the inhabitants of Vélez, windmill owners and sailors, and they intend to use the rents of those a˙bàs to fund the building. In his response, al-Mawwàq indicates that enlarging the minaret and turning it into an observatory does not mean that it must cease to operate as a minaret from where the call to prayer could be made were the village ever to become repopulated; thus, he gives his blessings to the proposal made in the query.107 Maghribi jurisprudence agrees with its Andalusian counterpart in its support of the use of materials (anqà∂ ) belonging to some a˙bàs to build and/or repair others. Thus, Ibn Abì Zayd maintains that
104
Al-Wansharìsì, Mi'yàr, VII, p. 165 (trans. E. Amar, ‘La pierre’, XIII, p. 363). Another reference to this village in al-Wansharìsì, Mi'yàr, VII, p. 162. 106 Al-Wansharìsì, Mi'yàr, VII, pp. 153–154 (trans. V. Lagardère, Histoire et société, p. 261, no 173). 107 Al-Wansharìsì, Mi'yàr, VII, pp. 148–149 (trans. V. Lagardère, Histoire et société, pp. 288–289, no 273). 105
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if a ˙ubs were to collapse or become dilapidated—with no chance of returning it to its former state—, then it is permissible to use its remains and wood in favour of another ˙ubs with a similar purpose; under no circumstances may materials be sold to finance repair works.108 Similarly, when questioned about what must be done with regard to dilapidated Friday mosques that can no longer be repaired, Ibn 'Arafa replies that anqà∂ can be used by Friday mosques which, in spite of being in good condition, may need them, ‘in accordance with the principle that making exchanges between a˙bàs is a lawful practice’.109 In some cases, however, jurists are opposed to this action, as the following fatàwà by Abù Ibràhìm al-Andalusì, al-Óaffàr and alSaraqus†ì show. The earliest fatwà is that of Abù Ibrahìm al-Andalusì when asked about a ruinous mosque half buried by sand swept by the wind; the same desolation affected the houses and stores that surrounded it. In his response, he warns that efforts must be made to restore it, renovate it and bring it back to life as long as a bit of surface suitable for prayers remains intact. He then considers illicit any attempt to demolish or alter it, as well as seize its materials or transfer its a˙bàs to another mosque. On the contrary, he asserts that the revenues produced by its endowments must be devoted to clear the sand up as far as possible.110 Al-Óaffàr rules on the case of a man who built a mosque on a piece of land he owned and endowed it with land and olive trees; after some time, though, local residents left the area and only a small number remained in that part of town. Al-Óaffàr is asked to judge whether it would be licit to move the mosque to another site and he is opposed to this suggestion as this would entail altering the original ˙ubs for no apparent reason; as a result, he maintains, the mosque will remain standing on the same spot as a place of worship for those still living in the vicinity, even though only one person remains there.111
108
Al-Sha'bì, al-A˙kàm, p. 148, no 188; al-Wansharìsì, Mi'yàr, VII, p. 432. Al-Wansharìsì, Mi'yàr, VII, p. 335 (trans. V. Lagardère, Histoire et société, p. 221, no 42). 110 Al-Wansharìsì, Mi'yàr, VII, p. 226 (trans. E. Amar, ‘La pierre’, XIII, pp. 364–365; A.Mª. Carballeira, Legados píos, 90). 111 Al-Wansharìsì, Mi'yàr, VII, p. 136 (trans. V. Lagardère, Histoire et société, p. 278, no 235). 109
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Several of al-Saraqus†ì’s rulings are also not in favour of change. In one, he responds to a legal question about the village of al-Zanj previously mentioned. The place has now been abandoned for sixty years and a third of its mosque had collapsed ten years ago. The inhabitants of the neighbouring village of Qù†a are eager to pull down what remains of it and use the materials they manage to salvage in their own mosque. The answer is negative: ‘no mosque is to be demolished; it must be left as it is and, were it to have pious endowments allocated to it, the revenues generated by the latter will be employed in repairing it’.112 His response is similar à propos a village’s Friday mosque with a remunerated imàm assigned to it and a ràbi†a devoid of an imàm and a muezzin which is only opened when someone arrives to perform his prayers. Even though the text is somewhat opaque in the way the case is reported, it seems that the ràbi†a experienced some kind of structural damage and, as a result, people who had hitherto worshipped there had no choice but to pray at the Friday mosque and make a contribution towards the imàm’s stipend alongside the rest of devotees. Seemingly, the imàm attached to the Friday mosque uttered the call to prayer both there and at the ràbi†a in order to take advantage of the revenues produced by the latter’s a˙bàs; this was rather baffling as prayers were only conducted at the mosque. His reply is concise; he states that it is lawful for the ràbi†a devotees to pay for the imàm’s salary provided that they do so willingly—its a˙bàs, though, cannot be transferred to the mosque while the houses located in its environs continue to be lived in.113 Most of the legal advice sought on the issue got an ambiguous response; this means that the legal expert delegates the decision on a case to the qà∂ì or declines to issue a definite ruling, alluding to the existence of divergent views without expressly voicing his preference for one course of action or another. The earliest of this kind is addressed to Ibn al-Makwì; it involves the case of a man who donated a plot of land to a certain mosque, now dilapidated and, consequently, no longer visited by worshippers. The individual making the enquiry wishes to know what must be the fate of the a˙bàs belonging to the mosque and Ibn al-Makwì claims that it falls upon 112 Al-Wansharìsì, Mi'yàr, VII, p. 162 (trans. V. Lagardère, Histoire et société, p. 268, no 198). 113 Al-Wansharìsì, Mi'yàr, VII, p. 164.
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the qà∂ì to rule on the case in accordance with his own views on the subject. He then quotes, nonetheless, Ibn al-Hindì’s views according to which the subsequent revenues must be stashed away on behalf of the mosque as the latter is the legal owner and might be rebuilt in the future. Transferring them to other mosques would constitute an alteration of the clauses set by the founder.114 Another text records the case of a village, located three miles from Vélez,115 inhabited only by a man and his family—and some cattle– as most of its former dwellers have settled down in town (balad ), that is in Vélez. The village owns awqàf for the imàm, to pay for the ishfà' prayers during Rama∂àn and for its mosque, whereas the town’s (balad) Friday mosque lacked any assets to fund ishfà' celebrations and was so precarious that it could hardly pay the salaries of its attendants. The mustaftì insists that, ‘prior to the truce’, the qà∂ì had those a˙bàs transferred to the Friday mosque; after the truce (ßul˙) agreement had been signed, however, the village was repopulated and recovered its assets. It is currently empty once again though. Next to that village there was another settlement which owned abundant pious endowments and whose inhabitants tried to seize its mosque’s assets. Al-Saraqus†ì replied that if an imàm could be found to lead the prayer of the only villager remaining there—and those who tilled neighbouring lands—, the mosque’s assets were to remain intact; if, on the contrary, no imàm was found and there was no likelihood of the village attracting new dwellers in spite of the qà∂ì’s efforts in this respect, he did not object to its assets being transferred to another mosque whose endowments had proved inadequate to meet its needs.116 Two other legal queries deal with the case of an abandoned village near Vélez; there is no absolute certainty that it is actually the same village mentioned in the previous case. The authorship of both fatàwà cannot be established either as they are part of a score of fatàwà grouped after an anonymous query and introduced with an
114 Al-Wansharìsì, Mi'yàr, VII, p. 436 (trans. E. Amar, ‘La pierre’, XIII, p. 375; Histoire, p. 257, no 161). 115 As we shall see further on, two other legal questions refer to a depopulated village near Vélez. It is then plausible that all refer to the same village although none mentions its name. See al-Wansharìsì, Mi'yàr, VII, p. 142 (trans. P. Guichard and V. Lagardère, ‘La vie sociale’, p. 222; V. Lagardère, Histoire et société, p. 266, no 190), VII, p. 143 (trans. V. Lagardère, Histoire et société, p. 266, no 191). 116 Al-Wansharìsì, Mi'yàr, VII, pp. 143–144 (trans. V. Lagardère, Histoire et société, pp. 266–267, no 193).
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ambiguous formulation (su"ila ba'∂u-hum).117 V. Lagardère attributes them to al-Saraqus†ì who, in fact, is the addressee in the fatwà preceding the anonymous query as well as the last included in the score of fatàwà under consideration here -the one analysed supra. The first reports that the wall of the qibla of Vélez’s Friday mosque has collapsed and the available revenues are not sufficient to carry out repairs; the faqìh is then asked about the possibility of rebuilding it by making use of materials (anqà∂) seized from the mosque of the neighbouring abandoned village where no prayers are performed as it is dilapidated and about to tumble down. In his response, he alludes to the existence of legal disagreements on the issue: according to Ibn Óabìb and Ibn Muzayn, using materials taken from a mosque that lies in ruins so that they can be reused for another is a legitimate practice; the prevailing view in the Màlikì madhhab (mashhùr), however, is contrary to this action. That is why, he concludes, the qà∂ì will have to use his own discretion in order to solve the case.118 The second legal question indicates that the abandoned village has a roofed mosque and a˙bàs donated to pay for building maintenance costs and sundry needs. At the time, the mustaftì reports, the people of Vélez have taken the roof down and seized the beams and tiles in order to use them in another mosque located on the outskirts of their town. He then enquires as to the legality of this action, whether they have sinned by helping pull down one of God’s temples and whether they are to return that they have seized ‘as they did the first time’, an expression indicating that this is a recurrent practice among the inhabitants of Vélez. The reply (al-Saraqus†ì?) begins with the remark that Ibn al-Qàsim’s view is that any mosque in such a state must be left intact, regardless of whether the area is likely to become repopulated again or not. Some jurists, however, condone the removal of materials to another mosque if there is no hope at all that the building might be used again, nor is there any prospect of the village attracting new dwellers; he regards this view as appropriate (ßa˙ì˙) and attributes it to the jurist Ibn Abì Zamanìn (10th century). Even though he admits that subscribing this view is
117
Al-Wansharìsì, Mi'yàr, VII, pp. 138–143. Al-Wansharìsì, Mi'yàr, VII, p. 143 (trans. V. Lagardère, Histoire et société, p. 266, no 191). 118
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entirely licit, he clearly states that the first option would be preferable and more prudent as it is the predominant and most frequently endorsed (mashhùr) course of action. His personal view, however, is that it is not necessary to return building materials that have been seized nor to pay a sum equivalent to their estimated value; he does not believe, either, that a sin has been committed as a result of this action, although it would have been more appropriate, he concludes, not to have undertaken this initiative.119 This fatwà clearly illustrates the ambiguity I referred to above (see supra): on the one hand, the faqìh is aware that the action perpetrated by the residents of Vélez is not acceptable, as it constitutes a breach of legal prescriptions and must therefore be condemned; but, on the other hand, he does not see any need to restore things to their former state, nor does he brand those responsible for the action as sinners. There is also a ruling by Ibn Siràj on a village that had been abandoned for twenty years and contained only two houses still standing in spite of being situated in the midst of a densely-populated area and adjacent to a busy path. As a result, the mosque no longer had any worshippers and its assets had been transferred to another mosque in a neighbouring village. The mosque of the abandoned village had been solidly built, even though certain areas needed repair, and doubts arose as to whether pulling it down and using its anqà∂ to repair the mosque located in the inhabited village would be a lawful action; people feared that it might one day collapse and were unsure as to whether repairs could be funded with revenues derived from a˙bàs transferred to the inhabited village, thus leaving the other mosque as it was. On this occasion, the reply did not focus on the legality of using materials taken from a dilapidated mosque for the benefit of another. It simply warned that if people feared that the mosque of the abandoned village was bound to become a gathering place for people of disrepute, then it had to be pulled down and its materials used in favour of another mosque. If they failed to do so, it had to be rebuilt then with the revenues produced by any assets belonging to it that had been transferred to the other mosque.120
119 Al-Wansharìsì, Mi'yàr, VII, p. 142 (trans. P. Guichard and V. Lagardère, ‘La vie sociale’, p. 222 and V. Lagardère, Histoire et société, p. 266, no 190). 120 Al-Wansharìsì, Mi'yàr, VII, p. 154 (trans. V. Lagardère, Histoire et société, p. 261, no 174).
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Whereas the issue of lack of use of pious endowments as a result of the depopulation of the village or neighbourhood where they are located is not unanimously addressed in one sense or another, this is not the case in two fatàwà dealing with situations stemming from the conquest of certain towns or assets by the enemy. In these cases, jurists are in favour of transferring a mosque’s endowments to another or even devoting them to a different purpose. The first legal question addressing this eventuality is rendered in three versions, all identical, two of which are posed to Ibn Zarb and one to Ibn Da˙˙ùn. The text is rather concise and centres on the procedure to be adopted regarding an asset donated in favour of a fortress (˙ißn) taken over by the enemy. The response, equally succinct, only stipulates that it must be handed over to another fortress and devoted to the same aims it was originally earmarked for.121 Ibn Siràj ruled similarly on the case of some assets that had been rented prior to the takeover of the fortress (˙ißn) they had been donated to by enemy troops; the lease period had not yet expired. His answer was that ‘the a˙bàs of mosques located in towns that have been taken over by the infidels must be transferred to mosques still in Muslim hands’.122 Both texts are particularly abstract and laconic but show, nonetheless, that conquest by an adversary was regarded as a strong enough factor to justify the modification of the aims originally selected for a donation. Both reveal that the assets at stake must be devoted to the same charitable purpose they have served hitherto rather than, generally, to any other pious or philanthropic aim, as stipulated in a number of fatàwà thus far studied. To bring this section to an end, I have compiled a number of cases which, because of their disparate and heterogeneous nature, could not be included in any of the preceding headings. In spite of their apparent unrelated character, they all feature the same aspect -precisely one that contributes to distinguish one from another. This is the fact that they reflect the wide range of circumstances affecting the management of pious endowments and the reasons behind some legal queries undertaken in order to seek sanction for initiatives
121 Al-Sha'bì, al-A˙kàm, p. 490, no 1082; al-Wansharìsì, Mi'yàr, VII, pp. 64, 218, 424–425 (trans. E. Amar, ‘La pierre’, XIII, p. 362; V. Lagardère, Histoire et société, p. 256, no 156 and p. 258, no 164). 122 Al-Wansharìsì, Mi'yàr, VII, pp. 137–138 (trans. V. Lagardère, Histoire et société, p. 260, no 170).
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designed to adapt to changing conditions. As for the legal settlements suggested by fuqahà", it is natural that, considering the variety of situations, no dominant—not even prevailing—view can be observed; responses differ depending on specific circumstances and the legal stance of the jurist whose ruling is sought. The first deals with a military donation. It involves the case of a man who had donated part of an oil mill in favour of whoever among the inhabitants of Vélez was on guard against Christian attacks, as well as a plot of land for those on the night shift who spent the night at the town’s ramparts. The founder appointed a nàΩir to manage those assets and the latter performed his job for about ten years during which time he had collected the ensuing revenues but, seemingly, failed to spend them on the initiatives stipulated by the benefactor. He was asked to produce those revenues in order to purchase some land that could then be devoted to the original charitable aim since, at the time the legal advice was sought, the reason that had led to the donation ten years previously—namely, the danger or threat of Christian adversaries launching an attack against Vélez—had virtually vanished and there was no longer any need to patrol or spend the night at the town’s ramparts. It is not possible to ascertain beyond doubt who claimed those revenues as the text employs the passive form (†ùliba); it could have been local dignitaries, perhaps the qà∂ì himself, eager to give some use to the donated assets. Whatever the case, the nàΩir refused to hand over those revenues and the individual requesting a ruling wonders whether that is a strong enough reason to dismiss him and audit his accounts. The query was addressed by two jurists and both support the mustaftì’s view and stress the need to inspect the nàΩir’s accounts and have him dismissed if any evidence that he has acted inappropriately is found.123 The second legal question is similar to the previous one. It involves a man who donated a piece of land (maw∂i' ), in Vélez, in order for the dwellers of the fortress of Zalía (˙ißn Íàli˙a) to erect a tower (burj ) on a spot or place situated beyond the fortress and known as 'Ayn ˇu˙ma. Unfortunately, the text seems to have been tampered with or altered and it is not easy to re-establish the exact content
123 Al-Wansharìsì, Mi'yàr, VII, p. 145 (trans. P. Guichard and V. Lagardère, ‘La vie sociale’, pp. 222–223; V. Lagardère, Histoire et société, p. 267, no 195).
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of the enquiry. It appears, though, that the tower was never built and, at the time the legal advice was requested, there were more pressing needs—building work within the fortress itself– so that, as a result, the question arose as to whether it was permissible to sell the land donated for the tower and employ the money thus obtained in buttressing up the inside of the fortress; this was considered more critical than reinforcing the outside area ( fa˙ß). Whatever the reasons for this decision or its outcome, the jurist’s (al-Saraqus†ì’s?) ruling is quite blunt and leaves no room for doubt: he asserts that that sale is a commendable and praiseworthy initiative.124 Both cases reveal that there has been an adaptation of the ˙ubs’ aims to specific circumstances. Although for different reasons—the disappearance of the gap the donation sought to fill, in the first case, and the cancellation of the donation in the second—fuqahà" strive to make both donations useful in accordance with contemporary needs, even if this entails partially altering the initial objectives pursued by each founder. Another legal query tackles the case of a Friday mosque with an ablutions hall annexed to it; the neighbourhood in which it was located experienced an upsurge in population thus requiring the erection of a larger mosque with its own ablutions hall. The new Friday mosque received numerous assets in donation whereas the old one was neglected, with its pious endowments disused and its ablutions hall turned into a shop. The issue raised here is whether that shop must be used for the benefit of the old mosque or, rather, the newlybuilt ablutions hall. In theory, considering the dire straits of the old Friday mosque, the obvious choice would be for the jurist to acknowledge the need to assign it the usufruct of the shop as a means of alleviating its penury. Abù 'Abdallàh b. ManΩùr’s reply, however, is that the decision must be taken by the nàΩir who could then choose from among several options, such as devote it to a different pious purpose as the financial situation of the new Friday mosque is satisfactory thanks to the abundant donations it has received. As usual, Ibn ManΩùr refers to Córdoba’s legal tradition and quotes Ibn alSalìm’s opinion supporting the fact that a˙bàs can assist and mutually help each other. Also, Ibn ManΩùr remarks, the nàΩir may decide
124
Al-Wansharìsì, Mi'yàr, VII, p. 140.
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to allocate the shop either to the old mosque or to the new ablutions hall and that is left to his discretion.125 There is another legal question whose formulation closely resembles that found in the previous one, although they differ in a number of aspects and the jurist’s position in this case, moreover, follows a different path. It concerns an old ablutions hall, situated on the outskirts of Vélez, which ceased to be used as a result of a sudden change in the water stored in the well that supplied the mosque; it was no longer valid for ablutions. As a result, a new ablutions hall was built near the Friday mosque so that the old one, no longer frequented, became ruinous and had its pious endowments transferred to the new. Later on, the old ablutions hall was turned into a shop whose rents were used for the benefit of the new (dàr alwu∂ù"). The mustaftì asks whether, considering the fact that there was a poor mosque near the old ablutions hall, it would be lawful to hand the revenues over to that mosque or, rather, they should be left as they are, channelled towards the new ablutions hall. AlMawwàq replies that the mosque does not constitute a charitable target similar to that which the assets attached to the old ablutions hall formerly served and scholars believe that if the stipulated aim disappears, the endowment must be devoted to pursue the same philanthropic benefit. Thus, the rent paid by the shopkeepers must remain under the ownership of the new ablutions hall.126
125 126
Al-Wansharìsì, Mi'yàr, VII, pp. 146–147. Al-Wansharìsì, Mi'yàr, VII, pp. 149–150.
CHAPTER TEN
PIOUS ENDOWMENTS IN THE CONTEXT OF ANDALUSIAN SOCIAL FORMATION
1. Introduction The previous chapters have analysed the ‘internal’ aspects of the institution of Islamic pious endowments, namely, those inherent to their legal manifestations, social functions, methods of management, etc. No matter how specific the subject matter might be, however, it is imperative to try to establish links—as far reaching as possiblewith the main elements of the social polity. This is particularly relevant in the case of an institution like pious endowments which displays many connecting ties with several aspects of the socio-economic reality it forms a part of, as illustrated by the study of their charitable aims. It is thus crucial to try to fathom how an aspect of the society under consideration links up with the whole and its connections with the other constitutive aspects or levels. In the absence of precise quantitative information leading to an accurate assessment of the economic impact—absolute and relative— of the institution, the role of pious endowments as a manifestation of the inner logic of Islamic ideology has been adopted here as the connecting theme of our analysis. This could perhaps prove unsatisfactory in many respects but one must not underestimate the role played by extra-economic or ideological factors in the organisation of pre-capitalist societies, particularly with regard to Islamic classical societies by virtue of their pronounced ideological nature and, more specifically in the case of pious endowments, as the previous chapters have demonstrated.
2. Pious endowments as a kind of public property In a recent study, E. Alshech considers the distinction between the private and the public as ‘fundamental’ in Muslim societies.1 One of 1
E. Alshech, ‘Do not enter houses other than your own: the evolution of the
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the most interesting theoretical features of pious endowments is their close proximity to the concept of public property. On a theoretical level, the aims of the ta˙bìs were likely to be associated with the Islamic notion of piety (birr or qurba); in practice, this materialised in a number of ways, as already analysed above. Muslim jurists identified those pious ideals with the concept of public interest, based on the presence of two elements characteristic both of public property and pious endowments: the inalienability of property and the widespread benefit to the Muslim community. In order to verify this, we will commence by briefly defining the concept of public property in Islamic classical societies and will subsequently move on to examine how pious endowments are incorporated within the same theoretical framework. Considering the role of the concept of the public in Islamic classical societies leads us to one of the main strands of recent scholarly debate on the nature of Andalusian social formation. This debate started in the early 1970s with the introduction of the tributary concept, formulated by the Egyptian Marxist theorist S. Amin.2 During the 1990s, new ideas were proposed, including the so-called ‘Islamic social formation’, a new characterisation of that society defined by the Spanish medievalist M. Acién, which represents one of the main contributions to the aforesaid debate. The first announcement of this new proposal was made in 1987, but it was not fully developed until the 1990s, with the publication of Entre el feudalismo y el Islam in 1994 and, secondly in 1998, with a stimulating article in which Acién presented his thesis in a broader and more systematic fashion.3 As defined by M. Acién, the Islamic social formation consists of two main elements: the hegemony of the private and the pre-eminence of the cities. The first one is justified by several arguments, for instance the development of Islamic urbanism and the contractual nature of the Islamic State as revealed in the concept of bay'a. The idea of
notion of a private domestic sphere in early Sunni Islamic Thought’, Islamic Law and Society, 11 (2004), fasc. 3, p. 293. 2 See A. García Sanjuán, ‘El concepto tributario y la caracterización de la sociedad andalusí: treinta años de debate historiográfico’, in A. García Sanjuán (ed.), Saber y sociedad en al-Andalus. IV–V Jornadas de Cultura Islámica, Huelva, 2006. 3 M. Acién Almansa, Entre el feudalismo y el Islam. 'Umar Ibn Óafßùn en los historiadores, en las fuentes y en la historia, Jaén, 1997, 2nd ed.; ‘Sobre el papel de la ideología en la caracterización de las formaciones sociales. La formación social islámica’, Hispania, LVIII/3, no 200 (1998), pp. 915–968.
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the hegemony of the private has no precedents in the debate and, therefore, it represents a new element which, for the first time, is introduced in the discussion on the characterisation of Andalusian society. Therefore it should be viewed as a new argument which must be taken into account. In my view, Acién’s proposal of the hegemony of the private, as it has been formulated, could be understood as an underestimation of the relevance of the concept of the public. Consequently, in the following pages, I will try to stress the relevant role played by public property and by the common interest in Islamic classical societies, with particular emphasis on urban issues. Then, I will focus on the shared identity of state property and pious endowments as an expression of the relevance of the concept of the public. 2.1. The concept of the public in Islamic classical societies As the French medievalist P. Guichard pointed out in his remarkable study of the territory of Valencia between the 11–13th centuries, although some modern theorists have argued that the concept of the State does not exist in Islamic ideology, the history of Muslim classical societies shows us the revelance of its role.4 The significance of the concept of the public in these societies is, in my view, a direct consequence of the role of the state which caused the principle of the common interest being placed before private interest when they are confronted with each other. This prevalence of public over private is frequently repeated in legal literature with regard to very different issues. I will focus here only on a few instances without pretending to be exhaustive. References to state interventions are associated, in political and legal literature, with the notion of maßla˙a (pl. maßàli˙), which I have dealt with in an earlier chapter when analysing the legal arguments used as justification for altering the original stipulations of the founder. Some examples, gleaned from Ibn Khaldùn’s Muqaddima, probably the greatest Islamic theorist, may help to shed light on the close relationship between the Islamic State and the concept of maßla˙a. Thus, when referring to the sphere of influence of political authority, Ibn Khaldùn usually makes use of this concept, as shown in the
4
P. Guichard, Les musulmans de Valence, II, pp. 275–276.
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chapter on religious offices in the caliphate (al-khu†a† al-dìniyya alkhilàfiyya) which starts as follows:5 It has become clear that to be a caliph in reality means acting as a substitute for the Lawgiver (Mu˙ammad) with regard to the preservation of religion and the political leadership of the world. The Lawgiver was concerned with both things, with religion in his capacity as the person commanded to transmit to the people the duties imposed by religious laws and to cause them to act in accordance with them, and with worldly political leadership in his capacity as the person in charge of the (public) interests of human civilization.
Throughout the same chapter, Ibn Khaldùn repeatedly uses that concept in relation to several bodies, functions and religious offices (mosques, qà∂ìship, muftìs, ˙isba).6 The concept of maßla˙a is also used à propos some urban interventions by Andalusian rulers. Thus, for instance, when the caliph al-Óakam II commanded that the main road of Córdoba’s central market (sùq) be widened in 361 h/972, he did so ‘with the aim of securing the common wellbeing of all Muslims and ensuring that their interests were not undermined’ (naΩaran min-hu li-kàfat al-muslimìn wa-ihtibàlan bi-maßàli˙i-him).7 With regard to economic activities, the prevalence of the common interest is shown by taxing the main items of food, which I have studied in a previous work.8 This use of the concept of maßla˙a can also be found sometimes with regard to tributary issues, for instance, when Nasrid jurists authorise illegal taxes because the Public Treasury is insufficient to cover the defence expenses. When fuqahà" sanction the introduction of non-canonical fiscal charges, they do so by invoking the argument of maßla˙a, as evinced in a fatwà where Abù 'Abdallàh al-Saraqus†ì justifies the existence of levies or taxes on merchandise which, albeit non-canonical, seem expedient. As the Public Treasury (bayt al-màl ) is incapable of meeting all public needs (maßàli˙ al-muslimìn), commercial tariffs (maghàrim al-aswàq) become inevitable if the former are ever
5
Ibn Khaldùn, al-Muqaddima, III–31, pp. 241–242 (trans. F. Rosenthal, pp. 170– 171; trans. V. Monteil, I, p. 433). 6 Ibn Khaldùn, al-Muqaddima, III–31, pp. 242–243 and 249, V–7, p. 436 (trans. F. Rosenthal, pp. 172, 174, 178 and 308; trans. V. Monteil, I, pp. 437, 440, 448 and II, p. 805). 7 Ibn Óayyàn, al-Muqtabis (VII), p. 71 (trans. E. García Gómez, p. 93, no 48). 8 A. García Sanjuán, ‘El control de los precios en la jurisprudencia islámica andalusí’, Philologia Hispalensis, 14/2 (2000), pp. 217–231.
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going to be satisfied, including the sustaining of settlements along the border (thughùr), the struggle against enemy forces and maintaining security along pathways. The fatwà, furthermore, seeks justification in tradition and remarks that those taxes had been adopted in ancient times by ‘those who tie and untie’ (ahl al-'aqd wa-l-˙all ).9 The same applies to a fatwà issued by the qà∂ì Abù 'Umar b. ManΩùr on the issue. In principle, he points out, Muslims must not be asked to pay non-canonical taxes (maghàrim ghayr wàjiba bi-l-shar' ), only the zakà and the rest of fiscal duties recorded in the Qur"àn and the Sunna, like the fay", hidden treasures and unclaimed heirlooms which are seized by the Public Treasury (bayt al-màl ), provided that the former generate enough revenue to ensure the protection of the territory, the needs of the army and those of Muslims in general (maßàli˙ al-muslimìn). However, if the Public Treasury is incapable of paying for army stipends and the costs incurred by purchasing weapons and military equipment, those costs must be shared out by the population as a whole, in accordance with the Qur"àn (XVIII, 94)10 and provided that a number of requirements are met, one of which stipulates that tax-collection must serve collective needs (bi-˙asab al-˙àja wa-l-maßla˙a).11 The urban oganisation and the preservation of public spaces and buildings is one of the main instances through which the pre-eminence of the public over the private is shown. This seems clear when considering the state’s right to expropriate private real estate when the common interest is greater, as in, for instance, the construction of a new mosque. This is so even in the case when these buildings form part of pious endowments and, therefore, are theoretically inalienable (see chapter 9). Legal opinions supporting the demolition of private buildings which obstruct pedestrian transit on public ways or which invade its spaces have been studied.12 This is the case, for
9 Al-Wansharìsì, Mi'yàr, V, p. 32 and XI, p. 97 (trans. V. Lagardère, ‘La vie économique’, p. 211 and Histoire et société, p. 174, no 280 and p. 477, no 60). 10 They said, ‘O Dhool Karnain, behold, Gog and Magog are doing corruption in the earth; so shall we assign to thee a tribute, against thy setting up a barrier between us and between them? (trans. A.J. Arberry). 11 Al-Wansharìsì, Mi'yàr, V, pp. 32–34 and XI, pp. 127–130 (trans. V. Lagardère, ‘Structures étatiques’, pp. 73–74 and Histoire et société, p. 200, no 394 and p. 481, no 82). 12 J.P. Van Staëvel, ‘Casa, calle y vecindad en la documentación jurídica’, J. Navarro Palazón (ed.):, Casas y palacios de al-Andalus, siglos XII y XIII, MadridBarcelona, 1995, pp. 53–61.
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instance, in a legal query dealing with the reconstruction of the city walls of Fez (Morocco), including an explicit formulation of the preeminence of the public interest over the private.13 In the case of al-Andalus, the prevalence of the common interest over private ones is shown, for instance, in the ˙isba literature, closely linked to urban issues. At the beginning of the 12th century, Ibn 'Abdùn informed us of the existence in Seville, the main city of alAndalus at that time, of real estate belonging to the umma and administered on the latter’s behalf by the state. He claims that whoever leased a shop, a public bath, a mill or a ship owned by the state (sul†àn)14 must be treated in accordance with the Sunna and not have his rent increased before the date prescribed by the signed contract.15 The state had the duty to prevent private interest from seizing spaces under public ownership, as shown by the way in which Ibn 'Abdùn describes Seville’s river harbour, to which he attaches a great deal of importance and refers to as the pivotal point or vital centre of the town ('ayn al-balad). That special consideration was dictated by economic reasons as the harbour was the departure point for merchandise and included workshops where ships were repaired. That was why, he added, it must remain under the sole ownership of the state (sul†àn), forbiding therefore, the development of any private property on this side of the city (là yakùn fì-hà milk li-a˙ad illà li-lsul†àn wa˙da-hu). The qà∂ì was responsible for thwarting any ploys aimed at alienating part of it as well as at erecting any buildings there and of instructing the curator of unclaimed heirlooms (ßà˙ib al-mawàrìth) not to sell even an ‘inch’ of the area.16
13 Al-Wansharìsì, Mi'yàr, VII, p. 304: inna al-ma'lùm fì hàdhihi-l-mas"ala wa-mà ashbihu-hà min aqàwìl al-'ulamà" al-marsùma al-mas†ùra wa-madhàhibu-hum al-ma'lùma almashhùra taqaddum murà'àt al-maßàli˙ al-'àmma 'alà-l-maßàli˙ al-khàßßa. 14 Throughout his Risàla, Ibn 'Abdùn employs the term ra"ìs to refer to the prince or the ruler, a word adopted by medieval Castilian chronicles under the form of ‘arráez’. When speaking about the state, however, about the government or the ruling power in a more abstract way, he usually resorts to the term sul†àn. This differentiation between the concepts of ‘ruler’ and ‘state’ is, in itself, symptomatic of the relevance of the notion of State. 15 Ibn Abdùn, Risàla, p. 211 (trans. E. García Gómez, p. 106, no 64). 16 Ibn Abdùn, Risàla, p. 219 (trans. E. García Gómez, p. 103, no 60). Perhaps those warnings by Ibn 'Abdùn against the sale of public properties are linked to the appropriations of that patrimony perpetrated during the Taifa and Almoravid periods. See al-Wansharìsì, Mi'yàr, VI, pp. 97–98 and 161–162, IX, p. 613 (trans. V. Lagardère, ‘La vie sociale’, pp. 207–208; Campagnes, pp. 41–42, ‘Terres communes et droits d’usage en al-Andalus’, p. 50). See M. Benaboud and M. Bensbaa,
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2.2. Óubs property and its identification with the public property The different legal schools are all agreed in considering the ˙ubs as a type of inalienable property which can only be sold under certain circumstances (see chapter 9). In any case, it is important to stress the fact that it is a legal principle which, in general, did not give rise to any discrepancy among jurists belonging to the different schools, both Sunnì or otherwise. The same unanimity did not exist, however, when it came to determining to whom the donated property belonged. In this respect, the existence of divergences among the different Sunnì schools is characteristic: all maintained that the beneficiary enjoyed the usufruct of the asset, but disagreed on who the legal owner of the property was. I will focus here on the doctrine of the Màlikì madhhab and, in particular, on the position of Andalusian jurists.17 According to Ibn Óammàd, there were disagreements regarding Màlikì’s views on the ownership of the ˙ubs: for some, it remained under the founder’s ownership, who only relinquished his right to use it; others believed that God was the owner of the ˙ubs whereas the beneficiary was entitled to make use of it.18 This definition establishes a distinction, typical of the fiqh, between two concepts pertaining to the ownership of a single asset: use (manfa'a, pl. manàfi' ) and ‘substance’ ('ayn or raqaba, pl. riqàb),19 a distinction which was already incorporated into the ˙ubs of the earliest pious endowment, in Khaybar (see chapter 3). The prevailing view among Màlikì jurists was that the ownership of the endowment (raqaba) remained in the hands of the founder, as pointed out by the Egyptian jurist Ibn Shàs (d. 685 h/1286). The same text reports that, according to Ibn 'Arafa, al-Bàjì explained that the ˙ubs belonged to the founder, which is why founders were obliged to pay the zakà collected on the orchards turned into a˙bàs. In the chapter devoted to irrigation (musàqà) in al-Nawàdir, Ibn al-'A††àr retorts to Ibn Abì Zayd that the ˙ubs belonged to the founder until the Day of Reckoning.20 ‘Privatisation and inheritance in Andalusia documents during the period of the Muràbi†ùn’, Al-Qan†ara, XIV (1993), pp. 259–274; M.J. Viguera et al., El retroceso territorial de al-Andalus, pp. 228–234; V. Lagardère, ‘Terres communes’, p. 50. 17 See the opinions of the others schools in A.Mª. Carballeira, Legados píos, 17–18. 18 Al-Wansharìsì, Mi'yàr, VII, pp. 62–63 (trans. E. Amar, ‘La pierre’, XIII, pp. 387–390). 19 See D. Santillana, Istituzioni, I, p. 435. 20 Al-Wansharìsì, Mi'yàr, VII, p. 296 (trans. E. Amar, ‘La pierre’, XIII, pp. 329–331; V. Lagardère, Histoire et société, p. 233, no 86).
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There are other definitions asserting the fact that a donation only affected the right of use (manfa'a), like those suggested by the Tunisian qà∂ì and legal expert Ibn 'Abd al-Salàm—he held that the ˙ubs is ‘a donation of rights of use in perpetuity’ (i'†à" manàfi' 'alà sabìl alta"bìd)21—and Ibn 'Arafa, for whom the process involved the ‘donation of the usufruct of an asset for as long as it took, with the founder retaining the ownership of the property, albeit virtually’ (i'†à" manfa'at shay" muddat wujùdi-hi làzim baqà"u-hu fì milk mu'†ì-hi wa-law taqdìran).22 As al-Mawàsì remarks, Ibn 'Arafa’s definition means that the beneficiary did not have the right to dispose of the property at will (taßarruf ), that is that he was not authorised to sell it nor to extract from it any usufruct apart from that stipulated by the founder. Andalusian jurisprudence is more reticent when it deals with these issues, even though some Nasrid fatàwà suggest the idea that the beneficiary was not regarded as the owner of the endowment. Thus, Ibn Juzayy maintained that the goods (riqàb) donated as a family ˙ubs did not belong to any of the beneficiaries but was passed on from one to another.23 Ibn Siràj asserted that it is not lawful to breach the clause set by the founder as this was tantamount to ‘disposing of someone else’s property without due authorisation’ (taßarruf fì milk al-ghayr bi-ghayr idhni-hi ).24 Al-Mawwàq held similar views when asked whether it was permissible for a ràbi†a to sell its share (a sixth) of a piece of land to a town’s old mosque, particularly when considering the fact that the land already belonged to that mosque. He replied that the deal was not licit as this would be akin to ‘disposing of someone else’s property without permission’ (taßarruf fì milk al-ghayr bi-ghayr idhn).25 Also, when consulted on a number of captives who had borrowed some gold free from impurities (tasallafù dhahab †ayyib) to pay for their ransom, al-Saraqus†ì stated that they could not have their debt cancelled and were obliged to return the same amount they had taken, even though it had been the nàΩir himself who had lent it to them (al-nàΩir al-musallaf ); this would be the same
21 Al-Wansharìsì, Mi'yàr, VII, p. 345 (trans. E. Amar, ‘La pierre’, XIII, pp. 353–358). 22 Al-Wansharìsì, Mi'yàr, VII, p. 345 (trans. E. Amar, ‘La pierre’, XIII, pp. 353–358). 23 Al-Wansharìsì, Mi'yàr, VII, p. 69. 24 Al-Wansharìsì, Mi'yàr, VII, pp. 227–228 (trans. A. Giladi, ‘Three Fatàwà on Lending Libraries’, p. 143). 25 Al-Wansharìsì, Mi'yàr, VII, p. 134 (trans. E. Amar, ‘La pierre’, XIII, p. 374).
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as disposing of someone else’s property (li-anna-hu tabarru' bi-ghayr milki-hi).26 But beyond these theoretical premises, there is another issue concerning the concept of ˙ubs property which cannot be neglected. Among the Màlikìs, one of the most important theoretical traits of the concept of ˙ubs as a kind of property is that of its assimilation, factual or implicit, with the notion of public property materialised in the concept of fay". In legal theory, lands conquered by force were considered common property of the whole umma and then as inalienable. This legal principle goes back to the caliph 'Umar b. al-Kha††àb after the conquest of the Iraqi land of Sawàd, a territory which he decided not to divide between the Arab conquerors but ‘put aside’ for the umma, that is, turned into a waqf .27 Thus, the waqf became synonymous with inalienable public property and the two concepts were interchangeable, even though they actually described different realities, both historically and also with regard to their main features and origin. This is clearly stated by the late ˙anbalì jurist Ibn Qayyim, who holds that lands conquered by force can be legally alienated and that its full asimilation to pious endowments is wrong (gala†), these lands being called waqf only because they were not divided between warriors ( gànimìn).28 The identification of the pious endowments with the notion of public property is clearly defined by the Màlikì Andalusian jurists and it is based on the existence of two factors that feature prominently in both. On the one hand, both the ˙ubs property and public property are inalienable. Màlikì theory states that the legal owner of a ˙ubs is the founder; this is but a legal fallacy though as, in practical terms, ownership rights do not have any legal repercussions whatsoever. On the other hand, the ˙ubs and the state’s patrimony are aimed, at least in theory, at providing a service for the community; both are associated with the notion of ‘the public’. Due to the purposes it was meant to serve, Andalusian jurists identified the
26 Al-Wansharìsì, Mi'yàr, VII, pp. 161–162 (trans. V. Lagardère, Histoire et société, pp. 267–268, no 197). 27 See A. García Sanjuán, ‘Formas de sumisión del territorio y tratamiento de los vencidos en el derecho islámico’, in M. Fierro and F. García Fitz (eds.), El cuerpo derrotado: cómo trataban musulmanes y cristianos a los enemigos vencidos (península Ibérica, ss. VIII–XIII), forthcoming. 28 Ibn Qayyim, A˙kàm, I, pp. 250–251.
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˙ubs with certain assets aimed at providing a benefit to the umma; in principle, however, they did not necessarily come from a ta˙bìs and, as a result, the concept encompassed more than one aspect. Andalusian jurisprudence confirms the assimilation of the concepts of ˙ubs and public property with regard to four aspects: a) Ramparts. The qà∂ì 'Iyà∂ was asked whether it was possible to pull down the remains of a town’s walls most of which had actually collapsed already. His reply begins as follows: ‘the walls of the Muslims are part of their common interests (maßàli˙) and have the same status as their pious endowments which cannot be altered nor moved, they cannot be destroyed, totally or partially, nor devoted to an aim different to that which they were donated for’.29 We have already seen that one of the aims of a pious donation might be to provide a source of income to pay for repairs to a town’s ramparts or ensure that the latter were in a good condition. In this case, however, 'Iyà∂ does not contemplate this type of donation but uses the concept in a more comprehensive way when asserting that, by definition, ramparts are a˙bàs. The expression ‘walls of the Muslims’ (aswàr al-muslimìn) reflects that notion of the rampart as a public service and belonging to all Muslims, thus contributing to its identification with the concept of ˙ubs. b) Graveyard. As we have seen above, the legal Màlikì rule says that ‘there is no harm in mutual cooperation when it comes to God’s matters’ (see chapter 9). On this theoretical premise, the definition of graveyards as pious endowments is to be found in some of the Màlik’s main disciples, like Ibn al-Màjishùn, who holds that it is lawful to enlarge a mosque by annexing a cemetery, because both are a˙bàs belonging to the Muslims. In the same way, Aßbagh, based on the authority of Ibn al-Qàsim, did not object to a mosque being erected on the site of a dilapidated graveyard, as ‘there is nothing wrong in using goods that ultimately belong to God for their mutual benefit’.30 Among the Andalusian jurists, the assimilation between graveyard and ˙ubs is to be found in Khàlid b. Wahb (d. 302 h/914).31 Likewise, in his Madkhal, Ibn al-Óàjj pointed out that 'ulamà" are agreed in their belief that the land 29 'Iyà∂, Madhàhib al-˙ukkàm, p. 207 (trans. D. Serrano, pp. 363–364); al-Wansharìsì, Mi'yàr, V, p. 532 (trans. V. Lagardère, Histoire et société, p. 183, no 324). 30 Ibn Sahl, Dìwàn, II, p. 1111; al-Wansharìsì, Mi'yàr, VII, pp. 244 and 424–425. 31 Ibn Sahl, Dìwàn, II, p. 1234; ed. Khallàf, Wathà"iq fì shu"ùn al-˙isba, p. 138.
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in which a Muslim was buried belonged to him as ˙ubs property.32 An anonymous fatwà, furthermore, denies the possibility of sowing on or using the land of a graveyard not used for burials for forty years ‘because it belongs to the a˙bàs, which cannot be altered’.33 c) Path.34 In Islamic legal theory, main roads, streets and ways were considered part of the public property and the assimilation between public ways and ˙ubs property is found among Andalusian jurists since the 9th century. This is the case of Mu˙ammad b. Aßbagh b. al-Faraj, who was of the opinion that afniya and ways were like pious endowments so they could be changed only if there is a great need;35 similarly, Sa'd b. Mu'àdh states that ways are like the pious endowments made by Muslims for their common welfare.36 Legal opinions from Nasrid times are the same. Al-Minthùrì was consulted on the case of a man who owned an orchard with a path running in its midst and who resolved to divert it so that it would run alongside the orchard’s boundaries. The jurist replied that ‘the path that serves as a transit route for Muslims must not be tampered with as it is equivalent to a pious endowment set up in favour of the Muslim community; pious endowments are, moreover, inalienable’.37 Similarly, the Nasrid Ibn Fatù˙ asserted in one of his fatàwà that both mosques and pathways constitute waqfs and, as a result, no one was authorised to alter their layout, shape, etc.38
32 Al-Wansharìsì, Mi'yàr, I, p. 329 and VII, p. 457 (trans. E. Amar, ‘La pierre’, XII, p. 87; D.S. Powers, ‘Legal Consultation (Futyà)’, p. 100). 33 Al-Wansharìsì, Mi'yàr, VII, pp. 456–457 (trans. V. Lagardère, Histoire et société, p. 291, no 288). 34 On this issue see H. Nejmeddine, “La rue dans la ville de l’Occident musulman médiéval d’après les sources juridiques malikites”, Arabica, L (2003), fasc. 3, p. 292. 35 Ibn Sahl, Dìwàn, II, p. 1181; ed. Khallàf, Wathà"iq fì shu"ùn al-˙isba, p. 147 (trans. A.Mª Caballeira, Legados píos, p. 135): al-afniya wa-l-†uruq ka-a˙bàs li-l-muslimìn là yajùzu li-a˙ad an yu˙dith fì-hà ˙adathan illà min ∂arùra wa-i∂†iràr ilà dhàlik. This explicit assimilation between afniya and a˙bàs, which supposes its shared identity with the notion of the public, challenges one of the ideas formulated by M. Acién, Entre el feudalismo y el Islam, p. 110; ‘Sobre el papel de la ideología’, p. 938, who claimed that the urban development in the Islamic city depends on the right of finà", as an expression of the hegemony of the private concept. 36 Ibn Sahl, Dìwàn, II, p. 1184 ed. Khallàf, Wathà"iq fì shu"ùn al-˙isba, p. 154 (trans. A.Mª. Caballeira, Legados píos, p. 135): al-sikak min jihat al-a˙bàs allatì ˙abbasahà al-muslimùn li-manàfi'i-him. 37 Al-Wansharìsì, Mi'yàr, VII, p. 152: al-†arìq allatì hiya ma˙ajja li-l-muslimìn là tubaddil min ˙àli-hà li-anna-hà ˙ubs 'alà-l-muslimìn wa-l-˙ubs là yughayyar. 38 Al-Wansharìsì, Mi'yàr, VII, pp. 152–153.
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d) Mosque. The erection of a mosque is regarded as a ta˙bìs by Ibn al-Óàjj in a legal query regarding the building of a mosque just in front of another with the deliberate aim of jeopardising its operations.39 Similarly, Ibn Sahl was asked about the building of a mosque in a village (qarya) which was used for two years and then sold in order to build a house in its place. He answered that such an act is null and void and that the mosque must be restored, because it is like a pious endowment which cannot be sold or changed.40 It seems to be the same in the case of the Nasrid Ibn Salmùn when he holds that the ground of a mosque cannot be sold, because it is a perpetual ˙ubs.41 The Ifrìqì jurist 'Abd al-Óamìd al-Sà’igh points out in a fatwà that ‘mosques are a˙bàs for worshipping’ (al-masàjid ˙ubs li-l-ßalà).42 In his Risàla on the ˙isba, the Nasrid 'Umar al-Jarsìfì (14th century), establishes a link between the concepts of public property and ˙ubs in relation to various types of goods. In his opinion, the holder of the ˙isba office ‘must contact the ßà˙ib al-a˙bàs in order to discuss the subject of dilapidated pious endowments, disused or no longer beneficial, be they mosques, streets, bridges, ablutions halls (mì∂a"àt) or, in general, any kind of public service (maràfiq al-muslimìn)’.43 The concept of ˙ubs property does not apply then to goods donated for certain pious aims but rather to the aims themselves and is thus equated with the concept itself of public property. These texts do not refer to donations in favour of city walls, graveyards, pathways or mosques, all of which are considered pious purposes to which a Muslim can devote his ta˙bìs. Jurists do use the concept of ˙ubs in order to underline the inalienable and inalterable character of these assets and, in certain cases, preclude the possibility that they be used for a private purpose which does not consider the fact that, due to its character, they are to serve ‘the common interest’. Thus, pious endowments were considered by the jurists as a kind of public property, devoted to serve the needs of the Muslim community. 39
Al-Wansharìsì, Mi'yàr, VII, pp. 229–230. Ibn Sahl, Dìwàn, II, p. 1104: ka-l-˙ubs li-llàh la yajùzu bay'u-hu wa-là ta˙wìlu-hu 'an ˙àli-hi. 41 See O. Pesle, La théorie et la pratique des habous, p. 141. 42 Al-Wansharìsì, Mi'yàr, VIII, p. 440 (trans. V. Lagardère, Histoire et société, p. 314, no 90). 43 Al-Jarsìfì, Risàla, ed. E. Lévi-Provençal. p. 124 (trans. R. Arié, p. 371). See the philological remarks made by J.D. Latham on this passage: ‘Observations on the Text and Translation of al-Jarsìfì’s Treatise on ˙isba", Journal of Semitic Studies, 5 (1960), p. 141. 40
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In this sense, these goods were very similar in their functions to state properties, but it would be wrong, however, to equate the concept of state property with that of ˙ubs. Firstly, because in theory this is not the case: the ˙ubs has its own legal entity in terms of ownership and this is different from the notion of state property, linked to the Public Treasury (bayt al-màl). Secondly, because historical reality contradicts this assumption, at least in al-Andalus where the state had direct control over the bayt al-màl and the assets included in it, whereas it only exerted indirect control over pious endowments. The qà∂ì enjoyed certain rights on this respect, but the founder was entitled to appoint a nàΩir (see chapter 9). Even in the case of goods placed under the direct control of the nàΩir, likewise, the clauses and stipulations set by the founder with regard to the donation’s aims and rights of usufruct had to be adhered to. We will have the opportunity, in this chapter, to look at examples where judges fell out with the political authorities responsible for appointing them in order to prevent the illegitimate usufruct of pious endowments in this chapter. Among Màlikì Andalusian jurists, then, the concept of public property includes two kinds of goods, pious endowments and state property, both of them theoretically inalienable, both serving very similar purposes, always related to common utilities and services (the concept of maßla˙a) although different in their respective legal status and ways of management. 2.3. The legality of making pious endowments out of public properties Another aspect of the relationship between pious endowments and the concept of the public focuses on the issue of the legality of donating as pious endowments properties nominally owned by the Public Treasury (bayt al-màl); these donations were obviously made by the ruler who had the last say on assets included in it. To place the issue into the right context, it must be taken into account that the legal theory on the subject of ta˙bìs states that one can only donate property that one owns (see chapter 4). From a legal point of view, the Public Treasury is not conceived of as an institution; the Muslim community, understood as all the individual believers, owns it.44 Irrespective of the views on this issue, it is obvious
44
J. Schacht, Introduction au droit musulman, p. 108.
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that the ruler has no claims on the ownership of the Treasury but acts as a mere administrator of goods and properties belonging to all Muslims so that, in theory, any donation of property included in it would be unlawful. As we shall see further on, however, donations of properties belonging to the bayt al-màl by the ruler were not only a common practice in some regions of the classical Muslim world, but the former were even regarded as lawful by a number of jurists. Pious endowments and the state are connected by the concept of public property, materialised in a number of undertakings made for the benefit and the welfare of Muslims. One of the texts that best reflects the way in which that mutuality of interest between waqf and state property is formulated is by the Shàfi'ì jurist Mu˙yì-l-Dìn alNawawì: he issued a fatwà in response to a query made to ascertain whether it was lawful or not for the ruler to use funds from the Public Treasury (bayt al-màl ) in order to purchase land or a different asset and subsequently turn it into a waqf either for a purpose deemed as ‘of public interest’, like a madrasa, a hospital, a ribà†, a funduq, a zàwiya, or in favour of a holy man and his offspring and, later on, of legal scholars. He was of the opinion that such a waqf was lawful as the funds of the Treasury were aimed at rendering a service to all Muslims and the charitable undertakings listed in the legal query met this requirement (li-anna màl bayt al-màl li-maßàli˙ almuslimìn wa-hàdhà min-hà).45 This is a good example of the shared identity of state property and pious endowments through the concept of maßla˙a. Egypt is, perhaps, the country where the practice of founding pious endowments with goods from the bayt al-màl by political authorities is best documented. Some examples will suffice to illustrate this point. According to al-Maqrìzì, the Fatimid caliph al-Óàkim bi-amr Allàh made a donation in 405 h/1014 in order to meet the needs of 830 mosques which lacked revenues and personnel, including numerous agricultural properties (∂iyà' ) and villages in this donation:46 although the provenance of those donations is not known, it is likely that they comprised properties belonging to the Treasury judging from the
45 Al-Nawawì, Kitàb al-manthùràt, p. 86; al-Wansharìsì, Mi'yàr, VII, p. 266 (trans. E. Amar, ‘La pierre’, XIII, pp. 348–349). 46 Apud H. Rabie, ‘Some financial aspects of the waqf system in Medieval Egypt’, p. 10; M. Mu˙ammad Amìn, al-Awqàf wa-l-˙ayà al-ijtimà'iyya, p. 53.
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substantial amount of assets involved. The first who donated lands belonging to the Treasury had been Nùr al-Dìn al-Shahìd, a policy that seemed to have secured the backing of legal experts and was later developed by Saladin, the main sponsor of awqàf in Egypt who based his ideological struggle against Shiism and the Fatimids on the foundation and donation of madrasas.47 As M. Mu˙ammad Amìn observes, the genuine ‘golden age’ of the awqàf system in Egypt was the Mamluk period: as this dynasty had usurped the throne and was also of foreign origin, they—as Fatimids and Ayyubids before them— used the awqàf as a means of buttressing up their power, through donations made ‘for the public interest’, most of which were made up of properties belonging to the Public Treasury.48 In a different geographical area politically and legally closer to the Andalusian case, the late Maghribi jurisprudence (14th–15th centuries) found in the Mi'yàr reveals the existence of a legal controversy sparked by the issue of whether the ruler was entitled to donate properties included in or owned by the Public Treasury. The Marinid sultan Abù-l-'Abbàs A˙mad (775–787 h/1373–1384 and 789–796 h/ 1387–1393) donated an orchard, whose rents actually belonged to the Treasury, so that its profits could be used to ensure the upkeep of his father’s mausoleum; this donation was annulled in a fatwà issued for that very purpose by Abù-l-'Abbàs A˙mad b. Mu˙ammad b. 'Ìsà al-Lujà'ì.49 Two other jurists, Abù-l-Qàsim al-Tàzaghdarì and 'Abdallàh al-'Abdùsì,50 also issued fatàwà in response to the same case, denying sovereigns their right to donate assets belonging to the Public Treasury for the benefit of their relatives or for charitable aims under the pretence that they were their legal owners. According to al-'Abdùsì, such a donation could only be considered lawful when its ultimate aim was to serve the public interest and it was conducted clearly stating that it involved assets belonging to all Muslims.51 The date of the ruling is clearly identified as the 18th Sha'bàn 827 h
47
M. Mu˙ammad Amìn, al-Awqàf wa-l-˙ayà al-ijtimà'iyya, pp. 61 and 62–67. M. Mu˙ammad Amìn, al-Awqàf wa-l-˙ayà al-ijtimà'iyya, pp. 70–71. 49 Al-Wansharìsì, Mi'yàr, VII, pp. 304–305 (trans. E. Amar, ‘La pierre’, XIII, pp. 349–350). 50 Al-Wansharìsì, Mi'yàr, VII, pp. 211–212 and 469–471 (trans. E. Amar, ‘La pierre’, XIII, pp. 344–347 and V. Lagardère, Histoire et société, pp. 238–239, no 99 and pp. 250–251, no 137). 51 Al-Wansharìsì, Mi'yàr, VII, pp. 213 and 470. 48
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(4/7/1424). Mùsà al-'Abdùsì was consulted on a different issue, though closely connected to the subject under consideration. It deals with the custom ('àda), on the part of some rulers, to borrow money from the funds of the pious endowments and whether the nàΩir of those assets could be held accountable for such a practice. He makes no comment on that practice but believes that the administrator ought to be exonerated and not blamed for any alleged malpractice as long as it could be established that the practice was firmly rooted. His nephew 'Abdallàh al-'Abdùsì is of the same view.52 As for the specific case of al-Andalus, the issue presents a doubleedged problem. On the one hand, there is hardly any information on donations made by rulers and, on the other, there is no Andalusian jurisprudence dealing with this problem. There are enough elements, however, at least to broach the subject tentatively. The first information concerning to this issue comes from Ibn Ziyàd’s A˙kàm and is related to a faddàn donated by fatà ˇarìf in favour of a mosque bearing his name (probably founded by him) in the village of ˇurrijìla. This piece of land was supposed to come from ar∂ al-jizya, namely, the lands submited to the poll-tax of the dhimmìs. Four jurists (Ibn Lubàba, Ayyùb b. Sulaymàn, Ibn Walìd and Ibn Ghàlib) gave their fatwà and they all hold that the donation must remain until a definitive proof (bayyina) was presented to the qà∂ì, in which case the jurists said that ‘you must do the right thing’ (idhà uthbita dhàlik 'indaka naΩarta fì-hi bi-mà yajib), an indirect way to say that he should declare the donation as null and void.53 The reason for this is clear, since the expression ar∂ al-jizya reveals that the faddàn was not the property of the founder, and it could be even identified as a kind of public property, but this is certainly a matter of controversy among Màlikì jurists.54 A much clearer case seems to be that of the ta˙bìs of the caliph al-Óakam II who, in early Jumàdà I of 364 h (17/1/975) made a donation—consisting of the leather-goods shops found in Córdoba’s central market—in favour of the teachers he had appointed to educate 52 Al-Wansharìsì, Mi'yàr, VII, pp. 185–186 and 298–299 (trans. E. Amar, ‘La pierre’, XIII, pp. 379–380 and V. Lagardère, Histoire et société, p. 239, no 100). 53 Ibn Sahl, Dìwàn, II, pp. 1119–1120. 54 See A. García Sanjuán, ‘Formas de sumisión del territorio y tratamiento de los vencidos en el derecho islámico clásico’, M. Fierro and F. García Fitz (eds.), El cuerpo derrotado: cómo trataban musulmanes y cristianos a los enemigos vencidos (península Ibérica, ss. VIII–XIII), forthcoming.
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the children of poor townspeople.55 The qà∂ì Mu˙ammad b. Is˙àq b. al-Salìm acted as a witness on Friday 7 Jumàdà I of that year (23 January). Apart from the references found in the Dhikr à propos 'Abd al-Ra˙màn I’s and 'Abd al-Ra˙màn II’s actions in this respect (see chapter 3), this passage records the earliest pious ta˙bìs made in alAndalus by the ruler and enables us to approach the subject under consideration. In contrast with the other ta˙bìs made by the same caliph, consisting of a fourth of the revenues generated by the agricultural properties (∂iyà' ) inherited from his father in all the provinces and regions of al-Andalus (see chapter 6), the legal requirement of the founder to be the owner of the goods made into pious endowment is ignored in this case as it seems doubtful that the leathergoods shops of Córdoba’s central market were part of the caliph’s private patrimony (mustakhlaß). On the contrary, the evidence suggests that these shops were public property, because the state was regarded as the owner of the ground on which urban markets were located, which is why its shopkeepers paid him a tribute in concept of rent.56 It was the state’s responsibility, furthermore, to build and ensure the upkeep of market structures—al-Óakam himself adopted measures aimed at reforming Córdoba’s markets on two occasions, as we have seen above.57 If the aforementioned shops belonged, therefore, to the Public Treasury, it is obvious that al-Óakam II’s donation was not made with goods of his own personal property. But, as we have seen, Mu˙ammad b. Is˙àq al-Salìm, qà∂ì of Córdoba’s Friday mosque, did act as a witness in this deal; this fact doubtless indicates that the ta˙bìs obtained the blessings of the judiciary and, probably, also that of legal experts. We can assume then that, although based on state properties, the donation was regarded as lawful by the legal authorities at the time.
55
Ibn Óayyàn, al-Muqtabis (VII), p. 207 (trans. E. García Gómez, p. 247, no
209). 56 See P. Chalmeta, ‘Facteurs de la formation des prix dans l’Islam médiéval’, Congreso Internacional sobre la Historia del Magreb, Tunis, 1979, p. 126, ‘Organización artesano-comercial de las ciudades musulmanas’, in M. de Epalza (ed.), Simposio internacional sobre la ciudad islámica (Zaragoza, 1–4 diciembre 1989), Saragossa, 1991, pp. 100–102 (where he refers to al-Óakam’s ta˙bìs) and ‘Formation, structure et controle du marche arabo-musulman’, Mercati e mercanti nell’Alto Medioevo, Spoleto, 1993, pp. 704–708. 57 Ibn Óayyàn, al-Muqtabis (VII), pp. 66 and 70–71, (trans. E. García Gómez, pp. 87 and 93, no 35 and 48).
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It seems to be the same in the very similar case of the fatà Zuhayr, ruler of the Taifa of Almería between 419–429 h/1028–1038, who, following al-'Udhrì’s text, enlarged the main mosque of the city and turned the fanàdiq and shops placed around it into pious endowments.58 To the best of my knowledge, this is the only instance of this kind during the Taifa period. In spite of the fact that a considerable amount of the information on pious endowments in al-Andalus comes from the Nasrid period, we also face a similar situation—dearth of references—with regard to donations made by the rulers of this dynasty. There are only references to three foundations, all in the 14th century. The first deals with the erection of the great mosque of the Alhambra at the behest of Mu˙ammad III (701–708 h/1302–1309); he allocated to it the rents produced by the bathhouse located next to it.59 The other two are, respectively, the foundations of the madrasa and the hospital, both mentioned when describing the different charitable aims donations were devoted to (see chapter 6). Jurisprudential literature also includes a fatwà issued by Abù 'Amr b. ManΩùr concerning the case of a ‘qarya set up as a ˙ubs and donated by the sultan for pious purposes’ (qarya mu˙abbasa 'ala ashyà" min a'màl al-birr wa-l-khayr bi-amr alsul†àn).60 This type of report seems to indicate that the silence prevailing in historical chronicles vis-à-vis the likely evidence of donations made by rulers does not necessarily mean that they did not exist. It could be said, therefore, even if we only have very few historical cases through the narrative and legal sources, that in al-Andalus, as in other parts of the Islamic classical world, public property was used by the rulers to found pious endowments with the goal of creating a public image of good believers and pious Muslims. But this is not the only situation we can find in the sources with regard to the attitude of the rulers towards pious endowments, as we shall see in the following pages.
58 Al-'Udhrì, Tarßì', p. 83; trans. M. Sánchez Martínez, p. 39. See also J. Lirola Delgado, Almería andalusí y su territorio, pp. 26–27. 59 Ibn al-Kha†ìb, al-Lam˙a al-badriyya, p. 62. 60 Al-Wansharìsì, Mi'yàr, VII, p. 123 (trans. V. Lagardère, ‘Structures étatiques’, p. 79 and Histoire et société, p. 284, no 254).
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As we have seen above, there is a small number of historical cases of pious endowments made by the rulers in al-Andalus. This is baffling because the waqf was employed as an instrument of propaganda and a means to curry the favour of their subjects. The case of Egypt is enlightening in this respect: the Fatimids, the Ayyudibs after them and the Mamluks, non-native dynasties, employed pious endowments as a means of cultivating an image of themselves as legitimate rulers, also supported by the creation of madrasas and hospitals that would foster an image of the ruling family as philanthropic monarchs.61 On the contrary, some of the information that chronicles supply on the attitude of Andalusian rulers towards pious endowments deals with attempts to use those assets for illegitimate purposes and the reactions—usually negative—that such an attitude provoked among fuqahà" and qà∂ìs commissioned to preserve and administer them. This indicates that, in spite of representing the umma, Andalusian rulers lacked the necessary authority to intervene in the management of pious endowments or to decide on the ultimate destiny of the revenues the latter generated. 3.1. The caliphate period: the barter of 'Abd al-Ra˙màn III The available data from the emirate period (8th–9th centuries) have been analysed previously (see chapter 3). I will focus here directly on the period of the caliphate (316–399 h/929–1009), the zenith, both political and economic, of Andalusian history. This is reflected, as far as the subject of pious endowments is concerned, in the existence, for the first time, of pious donations made at the behest of political authorities, specifically by al-Óakam II as we have seen above (see chapter 6). It is also from the caliphate period, however, that the first reference to an attempt at usurping or unlawfully using ˙ubs properties perpetrated by the Umayyad ruling dynasty is dated. Such an incident, recorded by the qà∂ì 'Iyà∂ in his biography of the scholar Abù 'Abdallàh Mu˙ammad b. Ya˙yà b. Lubàba (d. 330 h/942),62 nephew 61 M. Mu˙ammad Amìn, al-Awqàf wa-l-˙ayà al-ijtimà'iyya, pp. 61–67 and 70–71; Y. Frenkel, ‘Political and social aspects of Islamic religious endowments’, pp. 1–2. 62 His other biographers do not record this event. See al-Khushanì, Akhbàr,
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of the famous faqìh Mu˙ammad b. 'Umar b. Lubàba (d. 314 h/926), constitutes one of the better known cases of misuse of pious endowments on the part of the ruler. At an unknown date—which may have been between 314–324 h/926–936—and, to compound matters, for reasons we cannot discern with certainty, 'Abd al-Ra˙màn III needed to buy a mashjar 63 included among the pious endowments donated in favour of the sick and located on the southern bank of the Guadalquivir river (min a˙bàs al-mar∂à bi-Qur†uba 'idwat al-nahr).64 The account, as related by 'Iyà∂, is fraught as, according to it, the property that the caliph tried to barter in return for that majshar was a munazzaha or recess property65 which seems to be located near munyat 'Ajab,66 originally a pious foundation in favour of the sick donated by the emir al-Óakam I’s favourite concubine (see chapter 6). The caliph informed the qà∂ì Ibn Baqì 67 of his decision to barter that majshar for the munazzaha, but he could not carry out this order (là ˙ilata 'indì fì-hi) because, as a judge, his mission was to ensure that pious endowments were respected (huwa awwalì bi-˙ifΩ ˙urmat al˙ubs). From that moment onwards, he was relegated to a secondary role by the caliph and the issue was to be resolved by legal experts. The caliph ordered the judge to confer with the latter in the hope of reaching a settlement (la'alla-hum yajidùna fì dhalik rukhßa). When the fuqahà" refused to carry out his commands, he commissioned his viziers to round them up in the royal palace. A strong-willed vizier (rajul ˙adìd min al-wuzarà") harangued them and uttered an ‘abominable speech’ (af˙asha fì khi†àbi-him), full of invectives and threats, in
p. 179, no 210; Ibn al-Fara∂ì, Ta"rìkh, II, pp. 53–54, no 1231; al-Óumaydì, Jadhwat al-muqtabis, p. 59, no 86; al-Îabbì, Bughyat al-multamis, no 311. 63 This word is close to mujshir, ‘abounding in trees’. 64 A. Carmona, ‘Wa˚f ’, E.I.2, XI, p. 77, claims that 'Abd al-Ra˙màn III’s purpose was ‘enlarging his palace’. Apart from the fact that this is not mentioned in 'Iyà∂’s text, the assertion seems unlikely for other reasons. When that case arose, the Umayyad’s oficial residence was the palace (qaßr) of Córdoba (the building of the palatial town of Madìnat al-Zahrà" commenced in 325 h/936). Being so and taking into account that the palace and the majshar were on opposite sides of the Guadalquivir river, it is difficult to support Carmona’s claim. 65 R. Dozy, Supplément, II, p. 672, gives munazzah, muntazah, mutanazzah and mustanzah (but not munazzaha) as ‘lieu de plaisance’. 66 'Iyà∂, Tartìb al-madàrik, VI, p. 91: wa-yu'awwa∂ al-mar∂à min hàdhà-l-majshar biamlàki-hi bi-munyat 'Ajab wa-kànat 'aΩìmat al-qadr jiddan tazìd a∂'àfan 'alà-l-majshar. 67 A˙mad b. Baqì b. Makhlad, Córdoba’s qà∂ì between 314 h/926–927 and 324 h/ 935–936. Both dates allow us to set up the chronological limits within which this event likely took place. See A˙mad b. Baqì’s biographical references apud M. Marín, ‘Nómina’, no 105.
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which he upbraided them for not having caved in and fulfilled the caliph’s will.68 The responsibility for replying to these reprimands fell upon Mu˙ammad b. Ibràhìm b. Óayyùna (d. 328 h/939–940),69 who defended the honesty and vital work performed by all of them and justified their refusal to carry out the caliph’s order on the grounds that he had asked them to do something illegal. He finished his response with a claim that legal scholars were convinced that the caliph did not share the accusations made against them by his vizier but also warning that, if that was not the case, all his actions and decrees, from the very moment of his accession to power, would be invalidated as they had become legally binding thanks to the testimony given by fuqahà". Thus, says 'Iyà∂, the caliph was disapointed as a result of this matter (baqiya fì ßadr al-khalìfa min hàdhà-l-˙ubs ˙azza).70 Ibn Lubàba, whose biography records all this process, intervenes at this point. This faqìh must have been a rather intriguing figure, both because of his previous experience in the public service and his opportunist and servile attitude, as exhibited throughout this incident. He had first served as a judge in Elvira, an office from which he had been dismissed after the protestations of the townspeople became too vociferous; he then joined the shùrà of Córdoba but was, once again, dismissed by the caliph al-Nàßir when the latter received reports of his misconduct (ashyà" qabì˙a) while performing that office— he was even banned from issuing fatàwà ever again.71 When he heard of the caliph’s consternation as a result of the issue involving the majshar, Ibn Lubàba volunteered to settle the matter in a simple fashion: do without Màlik’s views regarding the inviolability of pious endowments and adopt the Óanafì doctrine on this respect as the latter only accepted a˙bàs donated in favour of a mosque.72 He was swiftly re-instated in the shùrà council and the caliph ordered that 68
'Iyà∂, Tartìb al-madàrik, VI, pp. 87–88. See his biographical references apud M. Marín, ‘Nómina’, no 1105 (where his nasab is given as Ibn Jyywy). This faqìh was described as kabìr, an appelation which, according to J. Martos Quesada, ‘Características del muftí en al-Andalus’, p. 139, may indicate the existence of an official hierarchy governing the function of the iftà". 70 'Iyà∂, Tartìb al-madàrik, VI, p. 89. 71 'Iyà∂, Tartìb al-madàrik, VI, p. 87. 72 On the attitude of the early Óanafìs on the donation of a˙bàs, see M. Mu˙ammad Amìn, al-Awqàf wa-l-˙ayà al-ijtimà'iyya, pp. 22–33. 69
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the consultative process be repeated (i'àdat al-mashwara fì hàdhihi-lmas"ala) in the course of which all the fuqahà" reiterated their opposition to authorising the alteration of the ˙ubs (man' jawàz i˙àlat al˙ubs 'an wajhi-hi). The qà∂ì then requested to hear Ibn Lubàba’s views and the latter elaborated on the following argument: he said that his colleagues had upheld Màlik’s stance, rather than that embraced by Iraqi scholars. The jurists were outraged by the suggestion that Màlikì doctrine, hitherto followed by all their predecessors when issuing legal rulings, be disregarded in this case, but Ibn Lubàba silenced them all and posed the following question to them: ‘have you not been confronted, at least once, with a query (mas"ala) which you have been compelled to answer with an opinion that differed from the views held by Màlik?’, to which they had no choice but reply that ‘certainly’ (balà). The qà∂ì informed the amìr al-mu"minìn of the outcome of the council (majlis) and awaited the caliph’s instructions; they arrived shortly afterwards commanding that Ibn Lubàba’s fatwà be adopted and the barter between the majshar and his properties—whose value was considerably higher than the majshar—be carried out. The chief of the ‘postal service’ (ßà˙ib al-rasà"il ) arrived later on carrying the decree appointing Ibn Lubàba as head of the royal chancellery (wilàyat khu††at al-wathà"iq) so that he could draft the edict sanctioning the barter ('aqd al-mu'àwa∂a) personally. The judge Ibn Baqì subsequently ruled on the case following Ibn Lubàba’s recommendations (am∂à al-qà∂ì al-˙ukm bi-fatwì-hi). The latter, apart from being bestowed with his new office, was rewarded and returned to the shùrà and occupied a prominent position among the royal courtiers (manzilatu-hu min alsul†àn la†ìfa).73 This case is quoted almost verbatim, but in the context of Almanzor’s rule, by al-ˇur†ùshì. This author describes how the founder of the 'Àmirìd dynasty tried to purchase a piece of land belonging to the a˙bàs in return for a more valuable asset. In order to do that he summoned the fuqahà" but they informed him that this action would not be legal. Almanzor was incensed and proffered all kinds of accusations and insults against the legal scholars using a vizier as his mouthpiece. Thus far the account is identical to 'Iyà∂’s reporting 'Abd al-Ra˙màn III’s intentions. The outcome is different, however,
73
'Iyà∂, Tartìb al-madàrik, VI, p. 91.
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in both cases. According to al-ˇur†ùshì, Almanzor did indeed cave in and apologised to the fuqahà", convinced that he would not be able to lay his hands on the ˙ubs he coveted.74 This case highlights several interesting issues in relation to two different aspects. With regard to the subject of pious endowments, it shows that among the factors leading to the alteration of a ˙ubs, the wishes of the ruling hierarchy even though, as in this case, they may run counter to the views of judicial authorities (qà∂ì and fuqahà"), was one of them. 'Iyà∂’s passage does not refer to the reasons that led 'Abd al-Ra˙màn III to barter the rural farmstead; they were, probably, personal motives as, had there been any kind of public or general interest, it seems reasonable to assume that, either the latter would have been recorded in the account, or the judicial authorities involved would have adopted a more favourable attitude to the barter, especially considering the conflict of interests at stake. This case also gives insights into the relations between the different echelons of the judicial hierarchy and also between the latter and political power. Firstly, the qà∂ì’s refusal to cave in and accept the caliph’s will, a fact that underlines the independence of the judge in his dealings with the political elite which has appointed him. Secondly, the appeal, as a last resort, to the opinion of the legal experts making up the shùrà, also resilient enough to withstand the pressures of the ruling elite without modifying their ruling. The caliph, at first, has no choice but to accept the views expressed by legal scholars for the rule of law makes no exceptions and its interpreters have ruled against him. The caliph has enough power, however, to reinstate the faqìh who has formerly been dismissed from the shùrà, and the opportunistic and grovelling attitude exhibited by Ibn Lubàba shows that a single jurist’s fatwà could suffice to give legal backing to a certain decision and result in a judicial ruling, even though it contradicts the opinion of the qà∂ì in charge of issuing it; it is important to bear in mind, though, that, in this particular case, one of the parties was the almighty caliph. 3.2. Usurpations: end of the caliphate and Taifa Kingdoms period The so-called second fitna, a period of political crisis that culminates in the abolition of Córdoba’s Ummayyad caliphate in 422 h/1031, 74
Al-ˇur†ùshì, Siràj al-mulùk, pp. 133–137 (trans. M. Alarcón, I, pp. 110–113).
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is actually set in motion from the year 399 h/1009 onwards. This brought about the end of territorial unity, achieved during the caliphate, and the fragmentation of political power leading to the emergence of numerous independent political entities known as Taifa kingdoms. This period is characterised in al-Andalus by enormous political and social turmoil. From an economic point the view, the period’s main features are the breakdown of the caliphate’s taxation system and the pressing financial needs stemming from having to pay for parias (taxes which Taifa kingdoms had to pay to northern Christian kingdoms). It is against this backdrop that the information available in connection with pious endowments refers to instances of usurpation, either in the form of attempts by rulers to seize the funds produced by those assets or in the form of raiding perpetrated by the populace during periods of social upheaval. It is a process comparable, in fact, to the last phase of Mamluk rule in Egypt in the second half of the 15th century.75 There are specifically five references in the extant chronicles to usurpations of pious endowments; three are from the fitna period and the other two from that of the Taifa kingdoms. Most of the known cases of usurpations refer to Córdoba and some are reported by Ibn 'Idhàrì. The first, already mentioned when describing the existence of a Treasury comprising the revenues generated by pious endowments (see chapter 8), relates the events that took place in Córdoba in Shawwàl 400 h/June 1010. The people of Córdoba had collected considerable sums of money in order to hand them over to the Christians (ifranj ) who had provided assistance against the Berbers. They asked the qà∂ì Ibn Dhakwàn76 to surrender the funds belonging to pious endowments (a˙bàs) and stashed away at the maqßùra of the great mosque. When he refused, the mob tore down the door of the maqßùra, seized the money and handed it over to the Christians.77 Once again, a judge’s refusal to use pious
75
See I.M. Lapidus, Muslim Cities in the Later Middle Ages, pp. 40, 60–62, 77 and
140. 76 It must have been Abù-l-'Abbàs A˙mad b. 'Abdallàh b. Óarthama b. Dhakwàn (342–413 h), appointed as judge by Almanzor and sacked, according to some sources, by Hisham II on 5 Jumàdà I 401 h (14/12/1010), whereas Ibn 'Idhàrì, al-Bayàn al-mughrib (III) (trans. F. Maíllo Salgado, pp. 102–103), refers to him as qà∂ì in Shawwàl 403 h/May 1013. See his biographical references apud M.L. Ávila, La sociedad hispanomusulmana, no 212. 77 Ibn 'Idhàrì, al-Bayàn al-mughrib (III), p. 98 (trans. F. Maíllo Salgado, p. 91).
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endowments for illegitimate purposes is reiterated, as we have just had the opportunity to observe in the clash between Ibn Baqì and 'Abd al-Ra˙màn III. A bit later, however, in 401 h/1010–1011, it was the qà∂ì of the capital itself—whose name is not revealed78—who, at a moment of great social upheaval and penury and as a result of the army’s and Córdobans’ decision to revolt against the Berbers, promised to hand over 500 horses from the assets belonging to pious endowments (màl al-a˙bàs) so that they could be ridden by the slaves.79 The amount, five hundred horses, indicates the enormous wealth of the revenues belonging to Córdoba’s a˙bàs; it is one of the few, if not the only, quantitative reference, an indicator of volume, available in order to estimate the economic potential of these goods in al-Andalus. The third reference to usurpations occurring during the fitna can be found in the lost chronicle attributed to Ibn Óayyàn entitled alMatìn; it has been transmitted by Ibn 'Idhàrì and Ibn Bassàm. The latter’s version is the most thorough and detailed.80 The episode records the last Ummayyad Andalusi caliph’s, Hishàm III al-Mu'tadd bi-llàh, initiative (418–422 h/1027–1031) who entrusted all his affairs to Óakam b. Sa'ìd known as al-Óà"ik; the latter’s appalling management resulted in his swift dismissal. Due to the precarious economic situation ensuing from Óakam’s mismanagement, Hishàm was compelled to ‘ask’ for financial support from the administrators and executors of the funds owned by pious endowments, as well as those owned by absentees (u∂†urra ilà †alab al-umanà" wa-l-awßiyà" 'an al-awqàf wa-màl al-ghayba), and squandered them and inflicted irreparable damage (makàrih shadìda) to the umma. In order to achieve that goal, Hishàm used a proxy, a ‘rebel’ (màrid ) jurist, known as Ibn al-Jayyàr, who would later be manipulated as well by 'Alì b. Óammùd for iniquitous purposes (mimman khadama al-dawla al-˙ammùdiyya fì mithl hàdhihi-l-akhàbith).81
78 It may have been the aforementioned Ibn Dhakwàn (342–413 h) or his successor Ya˙yà b. 'Abd al-Ra˙màn b. Wafìd (d. 404 h), demoted on 9 Dhù-l-˙ijja 402 h (2/7/1012), whose biographical references can be looked up apud M.L. Ávila, La sociedad hispanomusulmana, no 1076. 79 Ibn 'Idhàrì, al-Bayàn al-mughrib (III), ed. E. Lévi-Provençal, p. 104 (trans. F. Maíllo Salgado, p. 96). 80 Ibn Bassàm, al-Dhakhìra, III, pp. 389–390; Ibn 'Idhàrì, al-Bayàn al-mughrib (III), p. 148 (trans. F. Maíllo Salgado, pp. 128–129). 81 It must have been 'Abdallàh b. Mu˙ammad b. 'Abd al-Ra˙màn al-Qaysì (d.
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Lastly, there are two other references to attempts to usurp the funds of pious endowments once the caliphate had been abolished, during the period of the Taifa kingdoms. They were instigated by the rulers of Córdoba and both were opposed by the supreme judge of the town at the time. According to 'Iyà∂, the ruler (ra"ìs) Ibn Jahwar (422–435 h/1031–1043) spurred the qà∂ì-l-jamà'a Abù Bakr Mu˙ammad b. A˙mad b. Dhakwàn (395–435 h/1004–1044)82 to seize the funds of pious endowments (awqàf ). The qà∂ì refused to do this in spite of the fact that his intention was to devote them to some undertaking of public interest ( fì-l-maßàli˙). As the ra"ìs entreaties proved futile, Ibn Dhakwàn was swept aside.83 It also appears that his successor to the qà∂ìship, Abù Mu˙ammad 'Abdallàh b. A˙mad b. al-Makwì (d. 448 h/1056),84 experienced similar problems. According to one of his biographers, he opposed Abù-l-Walìd b. Jahwar and banned his vizier Ibràhìm b. Mu˙ammad b. Ya˙yà from having access to the funds of the Friday mosque (makhàzin aljàmi' ),85 a somewhat ambiguous expression likely to refer to the revenues of pious endowments. Another of his biographers, Ibn Bashkuwàl, mentions that he was appointed qà∂ì by Abù-l-Óazm b. Jahwar (422–435 h/1031–1043) and dismissed by his son Abù-l-Walìd (435–462 h/1043–1069), but does not attribute the reason for his dismissal as judge to any issue regarding pious endowments.86 3.3. Almoravids, Almohads and Nasrids The period dominated by North African dynasties, the Almoravid and the Almohad, is the least well known as far as the attitude of 436 h/1045–1046), whose biography was recorded by Ibn Bashkuwàl Íila, I, p. 263, no 596. This author does not allude to this episode but asserts, however, that he had to flee to Málaga when his position in Córdoba became untenable. The identification is coherent as Ibn Óammùd ruled Málaga at the time; this ruler also used him as a proxy, according to Ibn Bassàm, in order to legitimise the usurpation of pious endowments. I believe, on the other hand, that Ibn Bassàm’s text reveals that the màrid mentioned by Ibn 'Idhàrì is not a noun, but an appellative used when describing the ‘rebellious’ (màrid) Ibn al-Jayyàr. 82 Son of Abù-l-'Abbàs A˙mad b. Dhakwàn (342–413 h) and cousin of Abù 'Alì b. Dhakwàn. See his biographical references apud Mª.L. Ávila, La sociedad hispanomusulmana, no 677. 83 'Iyà∂, Tartìb al-madàrik, VIII, p. 87. 84 Son of the famous faqìh Abù 'Umar al-Makwì. See his biographical references apud M.L. Ávila, La sociedad hispanomusulmana, no 22. 85 Ibn Sa'ìd, al-Mughrib, I, p. 160, no 102. 86 Ibn Bashkuwàl, Íila, I, pp. 267–268, no 606.
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the ruling elites towards pious endowments is concerned. In principle, it would not be unreasonable to suggest that the reform programmes implemented by Almoravids and Almohads would have contemplated official policies aimed at promoting the ta˙bìs as a means of propaganda and also of publicising the image of the leaders of both dynasties as legitimate rulers. In fact, according to the Egyptian geographer al-'Umarì (701–749 h/1301–1349), the donations made by the Marinids were negligible when contrasted with those undertaken by Almoravids and Almohads.87 Paradoxically, no reference to such donations on the part of the ruling dynasty in alAndalus can be found during this period. One of the cases we would have justifiably expected to allude to pious foundations is perhaps the erection of the new Friday mosque of Seville under the Almohad caliph Abù Ya'qùb Yùsuf (558–580 h/1163–1184). The chronicler Ibn Íà˙ib al-Salà, however, makes no mention whatsoever of this possibility even though he witnessed the erection of this building personally.88 On the contrary, the only information available for that period reports another case of usurpation. Al-Nubàhì remarks—on the authority of Abù Ja'far b. al-Zubayr—that, at the behest of the emir Ibn Hùd (1228–1238), the qà∂ì of Malaga Abù 'Abdallàh Mu˙ammad b. al-Óasan al-Judhàmì al-Nubàhì (d. 631 h/1233–1234) was appointed to that office in 626 h/1228–1229 and took upon himself the task of preserving and recovering the a˙bàs usurped by the Almohads which had been absorbed by the ‘government treasuries’ (alqàb makhzaniyya). Ibn Hùd also commissioned the jurist Abù Mu˙ammad 'Abd al-'AΩìm b. al-Shaykh to register and inspect those endowments, and ensure that they were devoted to the charitable aims they had been originally donated for.89
4. Pious endowments and men of religion In theory, pious endowments are a means of redistributing wealth, particularly intended to ameliorate the economic situation of the 87
Apud M. Shatzmiller, ‘Waqf Khayrì in Fourteenth-Century Fez’, pp. 195, 199 and 204. 88 Ibn Íà˙ib al-Íalà, al-Mann bi-l-imàma, pp. 382–396 (trans. A. Huici, pp. 195–203). 89 Al-Nubàhì, Ta"rìkh qu∂àt al-Andalus, ed. E. Lévi-Provençal, p. 113; ed. and trans. A. Cuellas Marqués, 158 (Arabic) and 313 (trans).
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more disadvantaged social groups; it is very likely that that was the purpose of the institution in its inception. However, men of religion appear to be the social collective most closely linked to pious endowments, and the most benefited by them as well. That special link can be observed from different perspectives, both with regard to their aims as well as to the management and legal orientation prevailing when determining the use of such assets. 4.1. A multifaceted and close relation With regard to their aims, the main function of pious endowments in al-Andalus seems to have been that of providing one of the sources of income of a considerable segment of the community of men of religion who, apart from performing religious duties, had a monopoly on the interpretation of the sharì'a and accumulated the most influential bureaucratic, judicial and administrative state offices (qà∂ìship, ˙isba, shur†a, iftà", shùrà, etc.). This collective enjoyed the use of the assets donated in favour of mosques and, also, to a great extent, of educational donations aimed at contributing to the instruction of youths aspiring to join its ranks. The data supplied by different types of sources are agreed in depicting fuqahà" as the main social collective which benefited from pious endowments. Thus, the importance accorded to the issue of a˙bàs by al-Wansharìsì in his compilation is symptomatic; it is dealt with in more detail and more prolifically than any other aspect included in his work and, in volume, is on a par with the subject of marriage. In the modern edition of this work, both topics (pious endowments and marriage) are the only ones occupying a complete volume. It has previously been pointed out that the Mi'yàr was intended for the instruction of legal scholars and muftìs. It is natural, then, that a work written for that purpose devotes particular attention to one of the main sources of income of the men of religion. As M. Lahmar remarks, al-Wansharìsì himself was a political refugee in Fez, a muftì and an imàm who made a living partly thanks to pious endowments.90 In a previous chapter, we have also had the opportunity to verify that all the available quantitative data indicate
90
M. Lahmar, ‘Les ˙ubus dans la société et le “ar'’, p. 149.
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that mosques were the main beneficiaries of pious endowments and that it was the fuqahà" who, by virtue of their knowledge in the cultural and legal realms, monopolised the religious and educational functions performed in those institutions. Mosques were, therefore, the main channel through which men of religion enjoyed the usufruct of pious endowments. This fact which, due to the absence of quantitative data, Arabic sources only seem to indicate or reveal indirectly, is clearly confirmed by the information provided by Castilian documents; the latter establish beyond doubt the extent to which law experts benefited from these properties. The data included in the book of habices of 1501, covering the areas of the Alpujarra, the valley of Lecrín and the coastal districts of Almuñécar, Motril and Salobreña, show that the endowments intended to ensure the upkeep of fuqahà" responsible for religious functions constituted 50% of the total amount owned by the mosques of the villages of the region; they controlled 40.58% of all meadows, 30.09% of all trees and 32.44% of young trees (see Appendix V, figure 3). A more in-depth analysis reveals that, in a number of †à'as of the Alpujarra, they were actually the beneficiaries of a higher percentage of assets. Thus, in the district of Lúchar, they owned 85.48% of all meadows, 45.1% of all trees and 20.75% of all young trees. In the district of Alboloduy, they controlled 56.59% of meadows, 46.02% of trees and 47.91% of young trees; in Poqueira, they owned 54.65%, 41.63% and 20% of those assets respectively. In the district of Ferreira, the percentages were 42.89%, 32.75% and 28.57%.91 The easy access to pious endowments by fuqahà" does not imply that their range of jurisdiction or social influence can be measured in economic terms. That is, they form a collective whose influence is not based on the ownership of material goods. Ibn Khaldùn stresses the fact that those in charge of religious functions, judges, muftìs, imàms, muezzins, khà†ibs, etc., were individuals whose personal wealth was not considerable (là ta'Ωum tharwatu-hum fì-l-ghàlib).92 As it has been pointed out, the social transcendence of men of religion is based on their capacity to exert ideological influence, that is on their role
91 C. Trillo San José, La Alpujarra, pp. 359 and 384–385 (these data are clearly summed up in a table and a figure). 92 Ibn Khaldùn, al-Muqaddima, V–7, pp. 435–436 (trans. F. Rosenthal, 308–309; trans. V. Monteil, II, p. 805).
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as interpreters of the Qur"àn and the sunna, as well as their proximity to the ruling elites. The possession of such a vast amount of material assets, however, gave the collective a greater scope of action and a substantial degree of autonomy vis-à-vis political authorities. To say that ˙ubs properties were exclusively a means of living for the collective of men of religion would not be an entirely accurate statement for several reasons. Firstly, this is because not all its members lived off the usufruct of those assets. Many of them received, as functionaries, a salary paid for from public funds; others had private belongings and owned properties and did not rely on the exercise of those functions in order to secure their livelihood. Secondly and most of all, because even though we admitted that, in al-Andalus, pious endowments served mainly as a source of income for the collective of 'ulamà" and fuqahà", the truth is that that was not its only purpose. Their charitable role, probably the most genuine and, unlike the former, the one which better encapsulates the slogan ‘for the benefit of all Muslims’, occupied second place in the rank of importance. Although we are dealing with a specific collective, rather than with the totality of Muslims, the former does not constitute a part of the social elite; in fact, quite the contrary. The relationship of legal scholars to ˙ubs properties is not only confined to the fact that they were their main beneficiaries. Two more levels of connection can be discerned. On the one hand, fuqahà" acted as administrators of a˙bàs, since both judges and curators of pious endowments (aß˙àb al-a˙bàs) are always appointed from among members of the collective, as evinced by the fact that the information available on the second group is overwhelmingly found in biographical dictionaries. Let us also remember that Ibn 'Abdùn enjoined judges to consult fuqahà" on legal issues affecting the management of the bayt màl al-muslimìn, the fund of pious endowments, as a matter of principle (see chapter 8). Their role was also pivotal when setting the rules and general principles regulating the organisation and usufruct of those assets. The ˙ubs is a manifestation of the Qur"ànic logic vis-à-vis charity: giving alms to the poor in order to ingratiate oneself with God and, at the same time, alleviate social inequalities. But pious endowments were not only earmarked for the poor but also devoted to other undertakings, all of them liable to being encompassed by the Qur"ànic notion of piety (birr) or deed made fì sabìl Allàh. The interpreters of the sacred law, 'ulamà" and fuqahà", were responsible for determining
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which aim ought to be considered as pious and which ought not in daily practice. As experts in Islamic law and jurisprudence, fuqahà" played a crucial role when it came to addressing any enquiries stemming from discrepancies surrounding the use of endowments; this included the power to rule on the legitimacy or illegitimacy of certain donations, as seen in the previous chapter in relation to those made for the benefit of zàwiyas and communities of fuqarà". Their authority and ability to intervene in both aspects is epitomised by the opposition faced by representatives of the ruling power when they tried to spoil or unlawfully enjoy the usufruct of pious endowments. These assets did then endow men of religion with a certain degree of economic autonomy vis-à-vis the ruling elite, or at least those entitled to their usufruct. We have seen, nonetheless, that, on occasions, political authorities wielded their power and influence in order to impose their will; they sometimes needed to ‘stick to the rules’ and secure the legal and moral backing of a faqìh in order to legitimise their actions, like in the cases of 'Abd al-Ra˙màn III and Ibn Lubàba and Hishàm III and Ibn al-Jayyàr (see supra). 4.2. The development of an elite consciousness The inextricable link between men of religion and pious endowments is also reflected in the existence of a particular ideology characterised by a definite awareness of their superiority vis-à-vis the rest of society and also by a certain contempt for manual labour. This attitude is encapsulated by, for instance, the following passage of Ibn Jubayr’s ri˙la; it shows the mentality of this group in relation, in fact, to the cosiness derived from living off pious endowments. The text was written during his stay in Syria about 1184. This is the area with the highest number of pious endowments and the passage follows a description of the alleged birthplace of the prophet Abraham, in the village of Bayt al-Làhiya:93 He is an incumbent of one of those benefices that provide lonely Maghrib strangers in these lands with means of support, such as an imamate in a mosque, lodgings in a school with expenses paid, an appointment to a zàwiya in a cathedral mosque and gaining a livelihood there, assisting in the sectional reading of the seven parts of the
93
Ibn Jubayr, Ri˙la, p. 258 (trans. R.J.C. Broadhurst, p. 289).
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Koran, or the curatorship of a blessed shrine and receiving a benefice from its endowments, and such-like ways of living of the same blessed pattern as would take long to describe; and the needy stranger, so long as he has come for righteous purposes, will be cared for without being given cause to blush.
The text is very illuminating and shows the ideological dichotomy between the members of the intellectual elite ('ulamà" and fuqahà") and the producing classes. That concept of social elite is fittingly expressed by the author 'Umar al-Jarsìfì from Granada who, precisely when dealing with pious endowments and the relation between the latter and men of religion, asserts that legal scholars, imàms, judges, [professional] witnesses and muezzins constitute ‘the superior class’ (al-nama† al-'àlì).94 Another revealing testimony on this ideology is provided by Ibn 'Abdùn, himself a member of the collective, who, when describing the role of the mu˙tasib (market inspector), asserts that the latter is expected to replace the qà∂ì in certain matters, thus helping him to avoid ‘any unpleasant contact with the lowly and sordid classes of the population ('àmmat al-nàs), as well as with insolent and ignorant individuals from among the several groups of craftsmen and labourers (∂urùb al-ßunnà' wa-l-'ummàl )’.95 A number of poetic texts evince the rapacity and greed exhibited by some fuqahà";96 those by the poet Ibn Khafàja of Alcira are very blunt when he condemns their ambition and accuses them of remaining on the sidelines awaiting for a propitious occasion in order to seize the assets belonging to mosques and churches.97 Popular wisdom has also left traces of the populace’s feelings towards that state of affairs, especially in the use of the expression ‘eat the bread of pious endowments’ (akala khubz al-awqàf ) as synonymous with sinecure or perk. The idleness of fuqahà" as beneficiaries of pious endowments sparks a legal query addressed to al-Shà†ibì in which he is asked whether 94
Al-Jarsìfì, Risàla, p. 124 (trans. R. Arié, p. 371). See the philological remarks made by J.D. Latham, ‘Observations on the Text and Translation of al-Jarsifi’s Treatise on hisba’, p. 141. This author translates al-nama† al-'àlì as ‘sublime circle of people’. 95 Ibn 'Abdùn, Risàla, p. 210 (trans. R. Arié, pp. 79–80, no 32). 96 See P. Chalmeta, ‘Le poids des intellectuals hispano-arabes dans l’evolution politique d’al-Andalus’, pp. 120–121. 97 Apud H. Pérès, La poésie andalouse en arabe classique au XIe siècle: ses aspects généraux et sa valeur documentaire, Paris, 1937, p. 445; P. Guichard, Les musulmans de Valence, II, pp. 343 and 345, note no 102.
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the fact that an imàm lives off the a˙bàs without performing manual labour is contrary to the murù"a, a generic term that includes all the ideal qualities expected from an Arab male, such as austerity, courage, dignity, generosity, etc. The jurist responds that whoever is comprised within the category of beneficiary and performs the function assigned to him for that concept is then entitled to live exclusively off those goods.98 Opposed to this mentality of contempt towards manual labour is that observed among Sùfìs who, contrary to Ibn Jubayr’s statement, did consider it degrading not to make a living out of one’s own manual work.99 This ideological distinction between legal scholars and Sùfìs contributes toward understanding the clash between both collectives, both representing two very different ways of interpreting and practising Islam. It is then hardly surprising that the only documented cases where fuqahà" deny the lawfulness of a donation are in those made in favour of brotherhoods of fuqarà". This is a common manifestation of the ideological struggle opposing both groups.
5. Fiscal system and a˙bàs The organisation of the taxation system is one of the key issues when studying the modus operandi of any state. It is then necessary to analyse it in order to gain some understanding of another of the aspects of the link between pious endowments and the social polity which they form a part of. The relation between the fiscal system and ˙ubs properties is, however, one of the most difficult issues to tackle due to, on the one hand, the intrinsic complexity of the subject itself and, 98 Al-Wansharìsì, Mi'yàr, VII, p. 102 (trans. V. Lagardère, Histoire et société, p. 281, no 248): inna al-ma'ìsha min al-a˙bàs li-man kàna min ahli-ha wà-qàma bi-waΩà"i fi-hà al-mashrù†a fì-ha jà"iz fa-là tibà'a fì-hi. 99 As shown by Ibn 'Arabì, Risàlat al-quds, pp. 133, 138–139, 143, 152, 164 and 178, when referring to some mystics like Abù Mu˙ammad 'Abdallàh al-Qa††àn who was apprehended and taken before the sultan. The latter was amazed by his knowledge and asked him what he thought about his rule. Al-Qa††àn burst out laughing and replied: ‘the true king is only that who bakes his own daily bread on his own fire or, alternatively, pays for it out of his own remuneration. You, on the contrary, are nothing but a poor man for whom bread is kneaded and told to eat it afterwards’. He also describes how many mystics performed menial jobs, a fact that Ibn 'Arabì regards as a virtue. Among them were Abù Ja'dùn the henna-maker, Mu˙ammad b. Ashraf of Ronda, Íàli˙ al-Kharràz of Seville, Abù Wakìl Maymùn and others.
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on the other, the fact that the information available on the topic is particularly scarce. Since my objective is not, obviously, to analyse the Andalusian fiscal system but, rather, the role of pious endowments in such a system, I will only comment on those of its main traits that have a direct bearing on the issue under consideration. The small number of monographs devoted to the study of pious endowments differ in their approach to the issue. According to C. Cahen, the revenues generated by the waqf were not a part of the taxes levied by the Public Treasury, even though the state had the ultimate say on how those revenues were to put into use.100 Medieval Egypt is doubtless the case which has been pored over in most depth. C. Cahen looked at the information concerning the oasis of Fayyum found in the tax register recorded, at the behest of alÍàli˙ Ayyùb, by 'Uthmàn b. Ibràhìm al-Nàbulùsì in 641 h/1243–1244. According to that register, almost half of all human settlements had to contribute to the dìwàn al-a˙bàs; the latter was not really a tax but a corollary of the centralisation of the a˙bàs administration in Egypt. To compound matters, it is not possible to ascertain what type of assets the author of the register is actually referring to.101 M. Mu˙ammad Amìn has a different opinion. He alludes to this aspect several times throughout his monograph on Egyptian awqàf under the Mamluks. He asserts that one of the factors contributing to the development and expansion of the institution of the waqf during that period was, indeed, the fact that this type of properties were exempt from paying the zakà; this exemption, at first only accorded by law to pious donations, was gradually extended to private or family donations as a result of customary law. The Egyptian case, however, has some peculiarities. On the one hand, according to al-Maqrìzì’s al-Khi†a†, the Fatimid caliph al-Mu'izz li-Dìn Allàh commanded in 363 h/974 that all the revenues generated by waqf properties be added to the Public Treasury (bayt al-màl ) and levied by a tax-collector in return for an annual remuneration. As a result, the awqàf became one of the state’s main sources of income. On the other hand, a central department in charge of collecting the revenues produced by those assets (dìwàn al-a˙bàs) was created in the late Fatimid period. In M. Mu˙ammad Amìn’s analysis, both processes are linked
100 101
EI 2, I, p. 1180, s.v. bayt al-màl. C. Cahen, ‘Le régime des impôts dans le Fayyùm Ayyùbide’, pp. 24–26.
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but not explained, that is the connection between both remains obscure and whether the amount added to the bayt al-màl is the revenues generated by the a˙bàs or the taxes owed by those properties is not elucidated; judging from the English version of this text, translated by H. Rabie, it seems to have been the revenues,102 a fact that would substantiate his view that ˙ubs properties were exempt from paying taxes.103 According to M. Shatzmiller, likewise, in 14th century Fez the Public Treasury received funds from pious endowments; she does not clarify, however, whether this constituted a fiscal contribution or the result of the assumption that the revenues produced by those assets were regarded as a constitutive part of them as well.104 A. Lambton alludes to the subject indirectly in her study of Persian awqàf; she maintains that waqf lands were, as any other, subject to paying taxes, but fails to clarify what type of waqf is at stake here or the kind of fiscal regime imposed upon them.105 As for al-Andalus, the prevailing opinion among specialists is that pious endowments were, at least in theory, exempt from paying the tithe ('ushr),106 even if there are hardly any references to this issue in the sources. The problem is complex, both due to the dearth of information and the difficulty of interpretation. Some preliminary aspects must be taken into account first of all. Firstly, the few legal texts available focus on the payment of the zakà, the only tax that can be legally demanded from Muslims,107 although there has always been extra-canonical taxation, in some cases even ‘legalised’. The way in which the zakà is to be used is established in the Qur"àn (IX, 60), which enumerates eight types of beneficiaries. It is a tax levied on the volume of production which was paid in kind when a taxable
102
H. Rabie, ‘Some financial aspects of the waqf system in Medieval Egypt’,
p. 9. 103 M. Mu˙ammad Amìn, al-Awqàf wa-l-˙ayà al-ijtimà'iyya, pp. 52, 56, 59–60 and 92–93. 104 M. Shatzmiller, ‘Waqf Khayrì in Fourteenth-Century Fez’, pp. 203 and 204. 105 A. Lambton, ‘Awqàf in Persia’, p. 308. 106 See P. Chalmeta, ‘Balance’, p. 131 and ‘An approximate picture’, p. 749; A.Mª. Carballeira, Legados píos, 353; Mª.I. Calero, ‘Afectación’, p. 173. Other authors have expressed similar opinions regarding the Nasrid period, see M.A. Ladero Quesada, Granada. Historia de un país islámico, p. 87; C. Trillo San José, ‘Fiscalidad mudéjar en el reino de Granada: las rentas del Quempe’, Anuario de Estudios Medievales, 22 (1992), pp. 854 and 865. 107 Al-Màwardì, al-A˙kam al-sul†àniyya, p. 145 (trans. E. Fagnan, p. 239).
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minimum (nißàb) was reached; law treatises stipulated that the latter was five wasq (pl. awsuq)108 in the case of agricultural produce. That minimum was calculated by the assessor of harvests (khàris), mentioned by Ibn 'Abdùn in his Risàla,109 and amounts to 1,261.7 litres = 971,5 kg.110 Once the minimum had been surpassed, the zakà was fixed at 1/10 (10%) of the total harvest if the land was irrigated through rain or natural sources and 1/20 (5%) if it was for dry farming or irrigated through a water mill, all this according to the sijill issued by al-Óakam II for the chief of the Kutàma tribe Abùl-'Aysh b. Ayyùb.111 It does not seem plausible to assume, from the outset, that a˙bàs were exempt from paying the zakà, a tax whose payment constitutes a divine legal obligation ( farì∂a)112 stipulated by the Qur"àn which no jurist could theoretically dispute. As a completely exceptional case, it should have then been recorded in the sources, in particular in theoretical treatises, but this is not the case. That is, faced with the absence of an explicit formulation of the tax-exemption accorded to pious endowments, we have no choice but to assume that such privilege did not really exist, at least legally. The argument ex silentio is always, however, a last resort and, as such, must be treated with caution. The problem centres, to a great extent, on the issue of ownership. The zakà is a tax imposed on total yield, not on property as it happens with the kharàj. To collect it, though, an identifiable owner must exist beforehand and he is liable to pay; this does not happen, as we have seen, in ˙ubs properties. In fact, some of the texts we are about to see establish a link between the issue of taxation and the issue of legal ownership of the a˙bàs. Once this has been clarified and prior to the analysis of data, a last further consideration must be included here. From the outset,
108
Ibn Abì Zayd, Risàla, pp. 128–129. Ibn Abì Zayd, Risàla, pp. 4–5. 110 P. Chalmeta, ‘Balance’, p. 331, ‘An approximate picture’, p. 749. M. Barceló maintains that the nißàb was equal to 900 litres, based on the equivalence 1 wasq = 60 sà' = 4 almudes of the Prophet; 1 almud = 0,75 litres; in ‘Un estudio sobre la estructura fiscal y procedimientos contables del emirato omeya de Córdoba’, p. 120. 111 Ibn Óayyàn, al-Muqtabis (VII), p. 113 (trans. E. García Gómez, p. 144). E. García Gómez translated wrongly nusf al-'ushr as ‘the fifth part’; this is not accurate, as half of 1/10 (= 10%) is not 1/5 (20%) but 1/20 (5%). This error was not detected by M. Barceló, ‘Un estudio’, p. 120. 112 Ibn Abì Zayd, Risàla, pp. 126–127. 109
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the dearth of legal questions focusing on this issue in the legal corpus is, in itself, symptomatic. The matter must have been long settled, in one sense or another, since when an issue is controversial and bound to engender trouble, legal enquiries are recurrent throughout different periods, like those surrounding the possibility of selling a dilapidated or unprofitable ˙ubs or of using its revenues for a different purpose than the one contemplated by the founder (see chapter 9), or those concerning technical aspects like the takeover of a donation (see chapter 5). The laconism of legal texts on the issue of whether pious endowments were subject to the zakà or not seems to indicate that the issue had long been discussed and settled. One of the few explicit testimonies available to us shows, however, that the opposite was the case. Indeed, when referring to the divergences found among fuqahà" on the issue of who ought to be entitled to the payment of the zakà, Averroes remarks that the former focused on the following: orphans ( yatìm), mentally ill (majnùn), slaves ('abìd), dhimmì and those who owned a property regarded as legally incomplete (al-nàqiß al-milk), among whom he mentions debtors, creditors and endowments (al-màl al-mu˙abbas al-aßl ).113 Undoubtedly, the enormous influence that Averroes’s views carried leaves us no choice but to admit the fact that the issue was far from settled among law experts. Further on, he makes another revealing comment which will be dealt with in the section that follows. 5.1. Private a˙bàs It seems necessary, when tackling this issue, to make a distinction between pious and family donations as, although they are regulated by the same legal regime, in practice they are, nonetheless, two different institutions. An initial consideration, seemingly undisputable, must be made in this respect. If ˙ubs lands were exempt from the payment of the zakà, this would encourage some to avoid paying this tax; consequently, we are to assume in principle that this type of properties were subject to paying the tax. A first reference can be found in a fatwà issued by Abù 'Umar al-Ishbìlì in response to a query concerning someone who had rented
113
Ibn Rushd, Bidàya, I, p. 364 (trans. Nyazee, I, p. 282).
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his land by means of a contract of muzàra'a that compelled him to surrender half of the harvest in return; at the time, the land yielded a total of five measures (awsuq) of wheat. Al-Ishbìlì ruled that he who did not reach the taxable minimum is not obliged to pay the zakà. A different settlement applies to contracts of the type known as musàqà and qirà∂, in which case the zakà is levied on the properties of the owner of the estate, ‘following the model of the orchards donated in favour of particular individuals who are liable to the payment of the zakà even though their estates do not yield five awsuq’.114 The most comprehensive and enlightening text is, however, Ibn Óammàd’s fatwà in response to a query regarding a woman who donated an orchard—a third for her daughter and two thirds for her son—and stipulated that the share belonging to whichever one died without offspring would go to his/her sibling. The daughter died shortly after the fruits of the orchard started to ripen and her brother complained that those fruits belonged to him, as did the whole orchard, whereas the husband of the deceased alleged that he should inherit them. Ibn Óammàd’s reply to the query was as follows:115 There are discrepancies as to what was Màlik’s view on whether the founder’s ownership over the asset that has been donated vanishes once the donation has been carried out. For some, the founder retains the ownership and he only gives up the use of the property donated in accordance with a reading of the prophetic tradition immobilise the endowment and devote its profits to a charitable aim. Based on this opinion, if the harvest is not shared among the beneficiaries, it must not be left as inheritance to any of them but be allocated to that who is still alive when the distribution is being conducted. Thus, according to Ibn 'Abd al-Óakam’s rendition, Màlik said in relation to an orchard donated in favour of a group of particular individuals: the payment of the zakà, levied on the fruits yielded by the orchard, is obligatory even though they do not reach more then five awsuq in total. Abù-l-Faraj asserts that the ˙ubs remains under the ownership of its proprietor and he is liable to paying the zakà. Others believe that, according to Màlik, the ownership of the ˙ubs is passed on to God whereas its usufruct is assigned to the beneficiary. According to this opinion, the fruits referred
114
Al-Wansharìsì, Mi'yàr, VIII, pp. 142–143 (trans. P. Guichard and V. Lagardère, ‘La vie sociale’, p. 226; V. Lagardère, Campagnes, p. 129 and Histoire et société, p. 350, no 257). 115 Al-Wansharìsì, Mi'yàr, VII, pp. 62–63 (trans. E. Amar, ‘La pierre’, XIII, pp. 387–390).
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chapter ten to in the query belong to the beneficiary and, if the latter were to die, his share would be passed on to his progeny. Ibn al-Qàsim’s version regarding the founder of an orchard in favour of particular individuals is that, if the orchard yields fruits, all those whose share reaches the taxable minimum are to pay the zakà for God has said: take alms from their assets;116 only that who retains the overall ownership of the asset must pay. The right procedure, therefore, is that when one of the beneficiaries dies and the orchard has yielded fruits, the latter must be distributed as inheritance in accordance with the rules set by God.
Lastly, the authoritative reference supplied by Ibn Rushd ‘the grandson’ must be added to the above; he tackles the issue more thoroughly after alluding to the existence of discrepancies with regard to the levying of the zakà on pious endowments. The text that I translate below reveals that whereas private a˙bàs paid the tax, this was not the case with those devoted to pious undertakings, which Averroes equates with the poor. He admits, nonetheless, that some still have certain misgivings in this respect as well. The text is the following:117 With regard to the first question, that is levying the zakà on the fruits yielded by a˙bàs (zakà al-thimàr al-mu˙abbasa al-ußùl ), Màlik and al-Shàfi'ì regarded it as compulsory, whereas Mak˙ùl and ˇàwùs believed that it should not be levied. Some jurists distinguish between the a˙bàs earmarked for the indigent ('alà-l-masàkìn) and those donated in favour of particular individuals ('alà qawm bi-a'yàni-him) so that they considered obligatory the collection of the zakà on the latter, but not in the case of those devoted to the poor. It is pointless to impose the zakà on assets donated in favour of the poor due to two reasons: first, it is an incomplete property (milk nàqiß) and, second, it is a donation made in favour of unspecified individuals ('alà qawm ghayr mu'ayyanìn), included in the category of those who benefit from the zakà, not of those who are obliged to pay it.
If economic soundness leads us to assume that family donations could not be exempt from paying the zakà, I do believe that these few texts support that hypothesis and suggest that family donations were not different from the rest of private properties with regard to the payment of the canonical tax.
116 117
Qur"àn, IX, 103. Ibn Rushd, Bidàya, I, pp. 365–366 (trans. Nyazee, I, pp. 286–287).
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5.2. Pious a˙bàs As the above text by Averroes reveals, there is a legal argument against the levying of the zakà on assets devoted to pious aims. As the zakà is an embodiment of the Islamic ideal of charity, it would be a contradiction to impose taxes on assets donated for purposes which, in some cases, can be identical to those pursued by the zakà, such as the poor. Some textual references, however, seem to indicate that paying the zakà also constituted an obligation in the case of pious endowments. This can not be asserted categorically, of course. The treatises for instructing notaries hardly shed any light on the issue, apart from a brief allusion found in Ibn al-'A††àr’s and included in a formulary for making a ßadaqa donation in favour of the minor children of the individual donating his properties (amlàk) in a certain village.118 Ibn al-'A††àr reports that if those properties were to be ‘free’ (˙urra) or exempt from paying taxes, their condition must be clearly stated through the formula ‘exempt from all kinds of taxes and all types of tariffs and exempt from them all’ ('alà-l-˙urriya min jamì' al-waΩà"if wa-ßunùf al-maghàrim wa-∂urùb al-nawà"ib kullu-hà wa-lsalàma min aßnàfi-hà). If the opposite was the case, such a reference was to be omitted when drafting the donation deed. Further on, in the section on jurisprudence, he points out that when donating a ‘property on which taxes are due’ (milk muwaΩΩaf ), irrespective of whether the donation was ßadaqa or ˙ubs, in favour of a mosque or the poor, the qà∂ì had to establish whether it was right to accept that property as a donation or, on the contrary, refuse it.119 I interpret this text as confirming that, if it was the qà∂ì’s prerogative to accept that donation (milk muwaΩΩaf ), this entails the existence of a˙bàs upon which taxes are imposed. A first allusion in the corpus can be found in a very short text addressed to Ibn al-Óàjj and reporting the case of a vineyard (karm) donated for the benefit of Quraysh (?). The jurist replied that it ought to pay the zakà, imposed on the juice ('aßìr) squeezed out of
118
Ibn al-A††àr, Kitàb al-wathà"iq, pp. 218–221 (trans. P. Chalmeta and F. Marugán, pp. 411–414). See the remarks on this issue made by P. Chalmeta, ‘Un formulaire notarial hispano-arabe du IV/Xe s.’, p. 187. 119 Ibn al-'A††àr, Kitàb al-wathà"iq, p. 220 (trans. P. Chalmeta and F. Marugán, p. 413).
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the grapes ‘as in the case of the ˙ubs donated in favour of unspecified individuals’.120 There is also a text by the Egyptian jurist Mu˙ammad b. 'Abd al-Óakam concerning a donation consisting of a field of olive trees in favour of a mosque and some poor; his response, rather laconic, was that the zakà was not justified in either case:121 He was asked about the case of a man who had donated his olive trees in favour of a mosque so that their yield could be sold annually and the money thus raised used to purchase prayer mats; the oil would be used for lighting lamps. If a surplus remained once the olives had been sold and a year went by, was the zakà to be paid either on the annual harvest of olives or on the surplus still remaining after a year?;122 if he had stipulated in his will that the harvest of olives was to be sold and the subsequent profit given to the poor as alms, must the zakà be imposed on those olives? What is the procedure when the harvest yielded by a field of olive trees is donated in a will in favour of a specific group of poor so that it can be sold and the money thus obtained distributed among them in alms? Must one pay the zakà on that field taking into account that it is earmarked for a particular group of indigents? He replied: no zakà is applicable in any of the above cases.
The same query was subsequently posed to Mu˙ammad b. Ibràhìm,123 who responded in a completely different way:124 He replied: if the harvest amounts to five awsuq and is pressed to produce oil, the tithe must be paid; if the oil is later sold and the money obtained is not touched for a year, the zakà is due on that price. If a number of olive trees are donated in a will for the benefit of the poor and the harvest reaches five awsuq, the zakà must also be paid on the olives and the money thus raised distributed among the poor.
Another text that tackles the issue openly and in a straightforward manner is a fatwà in which the jurist is asked whether the assets
120 Al-Wansharìsì, Mi'yàr, I, p. 382 and VII, p. 479. The first version says ka-l˙ubs 'alà qawm mu'ayyanìn; considering the fact that the allusion is to Quraysh, I assume that the argument is brandished in opposition to that tribe. That is why I regard the version cited first as the valid one. 121 Al-Wansharìsì, Mi'yàr, I, p. 396 (trans. E. Amar, ‘La pierre’, XIII, p. 125). 122 This reference to ‘a year having passed by’ is to the ˙adìth ‘no zakà is to be imposed on an asset that has remained unaltered for over a year’ (la zakà fì màl ˙attà ya˙ùl 'alay-hi-l-˙awl ), cited by al-Màwardì, al-A˙kàm al-sul†àniyya, p. 148 (trans. E. Fagnan, p. 245, with regard to the zakà imposed on cattle). 123 Unidentified jurist. According to E. Amar, who quotes Brockelmann, he lived in about 1305. 124 Al-Wansharìsì, Mi'yàr, I, p. 396 (trans. E. Amar, ‘La pierre’, XIII, p. 125).
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(amwàl) belonging to mosques, bridges and pathways are subject to the zakà. Unfortunately, the ruling is anonymous (it is introduced by the sentence su"ila ba'∂u-hum) and therefore cannot be placed within a specific chronological and geographical context. Its interpretation is not easy either. These shortcomings notwithstanding, I believe it is very enlightening. The translation of the response is as follows:125 No zakà is to be imposed on those assets, except in the case that lands are donated in their favour whose harvest is subject to that tax; in that case, it will be paid, as in the case of grapes and fruits. The zakà will not be imposed on the price of trees, nor on what one owns or purchases with their money (?). If a man donates a vineyard in their favour and its yield does not reach five awsuq plus one, it will not be subject to the zakà; they must not be mixed as they are a single property. If what they own is villages set as a˙bàs that are under cultivation, no zakà will be raised on their fruits as it is levied on victuals, seeds and labour(?).
Other texts follow that deal with the same subject; they were written by several North African jurists:126 According to Abù Óafß al-'A††àr, if a community ( jamà'a) donates a number of orchards in favour of a mosque in a ratio of a palm tree each, the overall production must be estimated and if the total amount reaches five awsuq the mosque would then have to pay the zakà. The same question was posed to Abù 'Imràn (al-Fàsì) regarding a group of men from a community who donate palm trees or olive trees in favour of a mosque or a fortress (˙ißn); each made a specific donation with the result that the whole amount was subject to the zakà or parts of the assets donated must pay it.127 He replied: the zakà must only be paid on those assets which are subject to it individually; the mosque is not like an owner responsible for making the donation. The zakà must be paid, I reiterate, in the way I have indicated.
A brief paragraph introduced by the expression ‘it is reported’ (qìla) follows and another that begins ‘I said’ (qultu), usually in response to a comment by al-Wansharìsì himself, is added immediately afterwards:128 ‘It is reported that the usual procedure followed in the madhhab is that the ˙ubs is exploited as the founder’s property; if the latter dies, it is 125
Al-Wansharìsì, Mi'yàr, VII, p. 479. Al-Wansharìsì, Mi'yàr, I, pp. 381–382 and VII, pp. 479–480. 127 The part containing the legal query only appears in the seventh volume of the al-Wansharìsì’s Mi'yàr. 128 Al-Wansharìsì, Mi'yàr, VII, p. 480. 126
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chapter ten validated by invoking his name. Abù Óafß’s view adheres to this precept which must be enjoined with caution’. ‘I said: on the contrary, Abù Óafß’s opinion is based on the view that the ˙ubs is exploited as the property of the beneficiary; that is also the opinion of 'Abd al-Màlik b. al-Màjishùn quoted in the al-Nawàdir. Consider the following question on the a˙bàs donated by the kings which have been taken from the assets belonging to the Muslims and the fact that no zakà is levied as the property belongs to all Muslims and the latter do not constitute a particular individual nor a single owner so that it must pay the zakà if the total amount produced reaches five awsuq. This is an issue in which nothing anomalous has been noticed. That which is stipulated based on the opinion that the ˙ubs is exploited as the founder’s property; that is what we have stated. If we argue, on the contrary, that it is exploited as the beneficiary’s property there is no doubt that the total amount must be taken into account if we are dealing with a ˙ubs which has not been donated in favour of particular individuals, whereas each single part must be used as a determining factor in the case of a ˙ubs donated for the benefit of specific individuals’.
Two interesting references, both because of their provenance and their clarity, date from the Nasrid period. Mu˙ammad IX the lefthanded’s chancellery issued a document on 15 Rabì' II 833 h (11/1/1430) and intended for the chieftains and local dignitaries of Capileira, Jurbina and Pago (suburbs of Berja) which exempted the Friday mosque of that town of the province of Granada from all kinds of taxes.129 The conclusion we draw from this document is evident: if the chancellery issues a document—which can be regarded as a ‘privilege’—exempting Berja’s Friday mosque from paying taxes this is doubtless because it previously paid them; which taxes it paid cannot be ascertained though. There is also a legal ruling by al-Ilbìrì regarding the payment of ‘governmental tributes’ (makhzanì) on the assets owned by a mosque. Although the text of the fatwà has not been published yet, it seems almost certain that that expression does not refer to the payment of the zakà but, rather, of some other type of extra-canonical tax. The text, in the version transmitted by J. López Ortiz,130 is as follows:
129 Apud J. Ribera y Tarragó and M. Asín Palacios, Manuscritos árabes y aljamiados de la biblioteca de la Junta, pp. 261–262, quoted by L. Seco de Lucena in Mu˙ammad IX, sultán de Granada, Granada, 1978, p. 55. 130 Apud J. López Ortiz, ‘Fatwas granadinas’, pp. 96 and 122–123.
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Makhzanì tributes were imposed on certain waqf properties. The imàm of the mosque to which they belong is opposed to this measure: I will not pay them as I have been employed by the mosque on the condition of benefiting from its waqf, without any obligation to pay taxes. My income is equivalent to the assets and cash which the qà∂ìm receives from its administrators; you have never tried to impose the same kind of tribute on him. Al-Ilbìrì rules that the imàm is ‘part’ of the assets owned by the mosque, according to Ibn Rushd, and, as a result, an effort will be made not to impose this kind of tributes on these waqf or ecclesiastical (sic) assets, as well as ensuring that no damage is inflicted on the mosque, such as depriving it of an imàm.
The conclusion we draw is that texts presented and translated here seem to indicate the existence of differing views; none of them, however, refers explicitly to a fiscal exemption. We could concede, in principle, that a˙bàs (either by law or de facto) did not pay any taxes, although there are references to the fact that, in cases of expediency, the state did try to levy them and met a heavy resistance from their beneficiaries. We lack sufficient information, however, to draw firm and definite conclusions in this respect.
CONCLUSION
Introduction The aim of History, and that of any other field of scientific knowledge, is to identify problems and try to find solutions to them. At the beginning of this monograph, I stressed the need to look into an Islamic institution and describe the role it played in a particular society, al-Andalus, during a specific period. The type of research to be carried out was dictated, also from the outset, by our almost total—though not exclusive—reliance on a particular type of sources, namely legal compilations. As a result, I will present my final conclusions by blending three specific aspects: the sources, their contribution and limitations; our knowledge of the inner workings of the institution; and, finally, its role within the context of the Andalusian social formation.
The sources As approaching this study from an archaeological perspective was obviously not an option, this attempt to study pious endowments could only be based on textual analysis. In this respect, the available information is concentrated, to a very high percentage, in texts of a legal nature. Other types of texts have also been consulted but, without the contribution of jurisprudence, the analysis of the institution would have doubtless brought about much more limited results. The first section has focused on the methodological debate regarding the use of legal texts as sources for the history of al-Andalus. I have rejected, in this respect, the hypothesis that conceives of these texts as a mere by-product of jurists’ theoretical and mental speculation. On the contrary, both legal rulings and treatises written for the instruction of notaries reflect, albeit indirectly, their contemporary socio-economic reality. Because of his very function, the faqìh is compelled to combine theory and practical reality: on the one hand, the principles of the shar', divinely inspired, and, on the other hand, the needs imposed by conditions of daily life, in its multiple
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aspects, upon a particular society and its individuals. This blend of theoretical elements and practical imperatives is clearly reflected in the institution which is the object of our study, especially with regard to the problems stemming from the management of pious endowments. Another argument in support of the use of jurisprudence as a source of information is also the fact that the data the former supplies can be contrasted with and are corroborated by those gleaned from other types of sources. This is the case of pious endowments in which the predominance of donations in favour of mosques found in legal queries is confirmed by quantitative data contained in Granada’s books of a˙bàs. One of the obstacles we have had to overcome, however, is precisely our excessive dependence on legal texts. The information garnered from other types of sources presents different connotations, as shown by several aspects of the a˙bàs. Some passages of Ibn 'Abdùn’s treatise, for instance, reveal that pious endowments were sometimes used for purposes far from orthodox; these illegitimate activities have no parallel in the corpus of jurisprudence. Also, whereas legal sources invariably refer to the nàΩir or mushrif as the person in control of pious endowments, biographical dictionaries provide information, however scarce, on the ßà˙ib al-a˙bàs; there is no way to ascertain whether this is merely a terminological issue or, on the contrary, we are actually confronted with two different legal figures. The problem is that we cannot shed light on this discrepancy between legal and non-legal sources due to our excessive reliance on the former. The few available references chronicles provide are also useful when verifying the attitude of the ruling elites vis-à-vis a˙bàs. That is why—because they provide information complementing that gleaned from legal sources–, non-legal texts do not play a less significant role, in terms of volume, in any study of pious endowments; it is true, nonetheless, that they supply a smaller amount of data. The information available on the activity of judges is, perhaps, the most variegated: legal texts, chronicles and biographical dictionaries or histories of qà∂ìs (al-Khushanì and al-Nubàhì). This is doubtless very advantageous as it enables us to undertake a more thorough and insightful analysis of their performance.
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conclusion Genesis and development
After the methodological section, the first set of conclusions must address the genesis and development of the institution during the early centuries of the history of Islamic society. In this respect, the dearth of data about the first two centuries of Islam represents a serious obstacle to our understanding of the institution. Only from the 3rd/9th century onwards do we have access to a number of sources which are varied enough (legal, documentary, epigraphic) so as to establish that the institution already possesses its own legal and economic traits, even though they are not fixed. This is in consonance with two other processes which doubtless affected its development. On the one hand, there is the Islamisation of Middle Eastern societies, without which the widespread use of the practice of the ta˙bìs cannot be accurately gauged. On the other, there is the emergence of the classical legal madhahìb, as it is not possible to speak of full institutionalisation prior to the crystallisation of the law schools. Prior to the 3rd/9th century, the waqf is, at most, one of the modalities of ‘solidarity’ or, rather, of charity which characterise the Qur"ànic message and ideology. In this regard, although it is not an institution whose origins can be traced straight back to the Qur"àn, jurists established a link between the two and maintained that it derived from the notion of alms-giving (ßadaqa); the waqf would then be a specific form of alms-giving (ßadaqa mawqùfa), characterised by the inalienability of the property and the fact that it is established in perpetuity and devoted to a ‘pious’ aim. Apart from that Qur"ànic connection, which must be understood as an intellectual elaboration a posteriori on the part of jurists likely to have stemmed from the process of institutional ‘Islamisation’ marking the start of 'Abbàsid rule, its genesis is attributed to Mu˙ammad according to several prophetic traditions, the earliest being that of 'Umar’s donation of the Thamgh field of palm trees after the conquest of the oasis of Khaybar. Similarly to developments in the East, sources in al-Andalus do not give a complete picture of the development of the institute prior to the caliphate. There are enough references, however, to gain an approximate idea, however superficial, of the chronology of that development. The first allusion found in the Dhikr to the start of building works at the future site of Córdoba’s Friday mosque at the behest of 'Abd al-Ra˙màn I (170 H) could simply be an extrapolation
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of the information contained in a much later source. In parallel to developments in the Mashriq, it is also from the 3rd/9th century that more heterogeneous references (with regard to their provenance and contents) begin to be readily available; they are pivotal when it comes to gauge the social impact of the institution. With regard to their aims, we know of pious donations made by Ibn Óabìb (according to Ibn al-Kha†ìb) and Hàrùn al-Salìm (according to Ibn al-Fara∂ì) as well as of the existence, in Córdoba, of endowments for the poor in 291 H (al-Khushanì); as for their management and control, the earliest data about interventions by a qà∂ì can be traced back to the revolt of the suburbs (arrabal) (al-Khushanì) and the existence of a qà∂ì’s deputy (ßà˙ib al-a˙bàs) (al-Khushanì), whose functions remain unclear but whose emergence is an indicator of the widespread use of the practice of the ta˙bìs, is documented from the tenure of Mu'adh b. 'Uthman as qà∂ì (d. 234H/849). The legal development is reflected by the legal rulings issued by Ibn Óabìb, Ibn Sulaymàn and Ibn Lubàba, but, even during the second half of the 10th century, the qà∂ì Ibn al-Salìm is regarded as the initiator of a number of legal practices related to pious endowments, such as the inclusion of daughters’ offspring or the transfer of revenues among assets donated for identical or different pious purposes.
The aims When carrying out my research, I have taken the issue of the aims as a reference point since, although a˙bàs can be considered an expression of Islamic ideology, the contrast between their role in a society defined spatially and chronologically must be viewed once the aspects or purposes that institution was made to serve have been taken into consideration. In this respect, an initial distinction must be made between private and pious donations. It can be stated, judging from several factors, that both constitute two completely different socio-economic realities, rather than two different types of donation. Firstly, the influence of family donations is exclusively confined to the realm of domestic or private economy. Likewise, jurisprudential casuistry itself reveals the differences existing between both types of donation. In this sense, family donations spark legal queries that focus mainly on
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conclusion
two aspects: the takeover of the donation (˙iyàza) by the donor’s children and the interpretation of the strategy of transmission among the subsequent beneficiaries (ta'qìb), particularly with regard to the inclusion or exclusion of the children of a donor’s daughter. From this perspective, a sound understanding of the family ta˙bìs requires that the latter be placed within the context of the analysis of the Islamic system of inheritance as, basically, these donations constitute a legal ruse aimed at increasing the scope of a Muslim’s right to dispose of his personal patrimony freely; Qur"ànic norms restrict this right to a third of the property (thulth). Further to its importance for gaining an insight into the inheritance system, the study of these donations is crucial to deepen our knowledge of family organisation in al-Andalus and help us make some considerations on the ongoing debate about the survival of tribal structures after the 4th/10th century. Andalusian jurists are unanimously agreed in maintaining that, unless the donor has given specific instructions to the contrary, daughters’ progeny must be included among the beneficiaries until the rank of descent fixed by the donor in the ta'qìb had been reached. Everyone is also agreed in attributing the introduction of this legal practice to the Córdoban judge Ibn al-Salìm (4th/10th century). The donor was entitled, however, to apply the preference clause in favour of male descendants based on Qur"àn IV, 11, and also to exclude his daughters completely, an option that al-Jazìrì regards as regrettable. In order to understand the repercussions of these clauses and stipulations, it is important that they be seen in the light of two key concepts defining traditional Arab family organisation: agnatic descent and inbreeding via the preferential marriage with the paternal uncle’s daughter. In this sense, and to the extent that exogamous marriage was practised —endogamous bonds are not a compulsory norm but a prevalent custom—, the ta˙bìs can be regarded as a strategy to safeguard family patrimony, to preclude the fact that the descent of daughters married to males from outside the family clan can transmit the share of patrimony which they would be entitled to as inheritance to their own progeny, regarded as a branch of the lineage of the daughter’s husband. The fact that jurisprudence regards the inclusion of daughters’ children as a normal practice seems to confirm the predominance of endogamy. With regard to pious aims, which have been my main focus of interest throughout the study, a clear distinction between the theoretical
conclusion
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and practical spheres must be drawn first of all. In principle, there is no ‘menu’ or pre-arranged typology of those aims; the donor, rather, is free to devote his donation to whatever purpose he pleases. As his goal is, however, to please God and obtain his reward (thawàb) —apart from exceptional cases—, the aim ought to be in harmony with his wishes and likely to come under the scope of the Islamic notion of ‘piety’ (birr or qurba) since, according to its purpose, the al-Jazìrì is defined as ‘alms given in perpetuity in God’s name’ (ßadaqa jàriya fì sabìl Allàh). This is, of course, an all-encompassing and ambiguous definition likely to include many types of philanthropic undertakings. This entails the need to approach pious endowments not only as a legal institution but also as a socio-economic reality with its own features and within a particular social and historical polity. It is obvious that those who ultimately decide that which is bound to please or displease God are fuqahà" and muftìs, the interpreters of His will. It is probably not a coincidence, then, that the only regulations and legal rulings where fuqahà" are categorically opposed to the aims selected by the donor apply to donations in favour of zawiyas and poor Sufis ( fuqarà"). All the legal questions regarding this issue are addressed to Nasrid legal experts, thus confirming the influence of mystical currents in the last phase of Nasrid rule in Granada; there are testimonies corroborating their presence in al-Andalus at least from the 6th/12th century. The interpretation of Islam made by Sufis and fuqahà" had significant differences: in the ritual sphere, to the extent that the activities performed by fuqarà", such as chants, dances, communal meals, celebration of the night of the Prophet’s birthday, etc., were systematically branded a ‘heretical innovation’ (bid'a) by jurists. But there were also differences even in the ideological domain, like in attitudes towards manual work. The analysis of the available information has allowed us to establish the fact that, in the specific case of al-Andalus, we must distinguish the following typology of pious aims: mosques, charitable (poor and infirm and ransoming of captives), allowances for students and military donations. Obviously, within each of these aims, a donation can be made to meet a particular need and, sometimes, appear in conjunction with another, like in the case of donations for impecunious students. The first issue we must address, first of all, is try to discern which donation was most common and then try to establish different types
442
conclusion
and periods. Obviously, given the available documentary material, this would be futile; the lack of quantitative information is particularly noticeable here. As M. Bloch used to say, however, when making an estimate is not possible, one must at least try to make some assumptions. In this sense, I believe that it is possible to try to detect differences in magnitude, albeit very general and always in relative terms. A set of factors has led me to consider mosques as the main beneficiaries of pious endowments in al-Andalus. Firstly, the overwhelming prevalence of legal queries concerning mosques in the corpus, 89 in total which represent 39.2% of the 227 included in the corpus and 64.9% of the 137 legal queries on issues related to pious donations. Secondly, the very early presence of these donations in al-Andalus, from the first references (uncertain) found in the Dhikr concerning 'Abd al-Ra˙màn I (170 H) and 'Abd al-Ra˙màn II (234 H) to Ibn Óabìb’s donation (d. 238 H/852–853) in favour of Córdoba’s Friday mosque. Thirdly, the information contained in the books of a˙bàs showing that the patrimony of Nasrid mosques and ràbi†as inherited by the Church usually amounted to over 50% of the revenues generated by all a˙bàs. As for the rest of pious aims, the most common and characteristic feature is the dearth of available information: just 48 fatàwà, representing 21.1% of the total and 35% of those dealing with philanthropic issues. Our knowledge of these donations can only be described, obviously, as very unsatisfactory. I believe, however, that we must try at least to establish a hierarchy among them according to the criterion of more availability of information and the quantitative data collated from Castilian sources. First of all, providing assistance to the poor and the infirm is, perhaps, the most widespread charitable aim. This is an emblematic case of charitable donation. These donations cannot be understood adequately, however, detached from the Qur"ànic ideology from which they draw inspiration; this ideology does not question private property or economic inequalities. In this regard, the typical Islamic solution to the problem of economic inequality is embodied by the concept of charity. The Qur"àn exhorts the faithful not to be greedy on numerous occasions and also to ‘be charitable’ towards the poor or make donations for the glory of God ( fì sabìl Allàh); the latter are always voluntary, but are carried out in the hope of making oneself worthy of the divine grace. The ta˙bìs for the poor and the sick constitutes, in this respect, one of the quintessential modalities of
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Islamic charity and it is likely that, at least originally, that was the early objective of the institution. Its use is documented in al-Andalus since 291H and it seems significant that Ibn al-Óàjj remarked that the endowments established for purposes which were no longer known must be earmarked for the poor. In second place I would rank, in order of importance, educational donations, for which data are available from the 3rd/9th century, specifically the donation of books made by Hàrùn al-Salìm (Ibn alFara∂ì). Apart from this, the educational ta˙bìs could also take the shape of an allowance for poor students; this is epitomised by alÓakam II’s donation in 364 H, the first undertaken by a ruler documented in al-Andalus if one disregards 'Abd al-Ra˙màn II’s stimulus to the building of mosques in 234 H. Granada’s madrasa, the only one whose existence is clearly documented in al-Andalus, was also endowed with abundant charitable funds, as shown by the reference —found in the I˙à†a—to one of its administrators and confirmed by the 80,000 maravedíes in revenues assigned to it by the book of a˙bàs of 1503, that is almost 25% of the revenues generated by all the a˙bàs handed over to the church council and 5.5% of all the endowments found in Granada and the Vega. In contrast with the aims hitherto analysed, the organisation of a defence infrastructure and the protection of border areas constitute one of the realms of responsibility of the Andalusian state, if not its main field of action. This means that the effects of donations made for this purpose would be inevitably less noticeable than in other areas previously mentioned (education, healthcare, assistance to the dispossessed) where state interventions were less intense and rather intermittent, sporadic and in response to specific eventualities, if not simply nonexistent. Among these military donations we can single out these in relation to their types and uses: personal property (horses, weapons and slaves), assets for urban ramparts, fortresses (˙ußùn), for frontier outposts (thaghr), watchtowers, ransom of captives, etc. I will end this section by once again quoting M. Bloch who said that, when every thing has been tried, the only option is to resign oneself to ignorance and admitting this with complete honesty. Our knowledge of pious endowments is very patchy and contains deep lacunae. Firstly, of a chronological nature, in particular the remarkable scarcity of information on the pre-caliphate period, a shortcoming that makes any attempt to trace the origins of the institution and its social impact a very arduous task. It is not possible either
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to differentiate between periods, a basic ingredient of any socio-economic study: the analysis of the specific conditions prevalent in a particular period. We do not know any local or regional differences, that is the territorial distribution of the institution, in which areas, if that was the case, one or another type of ta˙bìs was more frequently used. The lands abutting the border are likely to have been the main target of donations in God’s name ( fì sabìl Allàh), whereas more distant areas or those located in the interior, less exposed to the threat of enemy pressure, would exhibit a higher incidence of other types of donations. With regard to who the donors were, this is another area of which we practically know nothing at all due to the simple reason that legal sources, because of their distinct abstract and decontextualised language, omit any reference to particular elements. Only biographical dictionaries have preserved the names of a number of fuqahà" who made educational donations. This is an enormous gap as we are unable to discern the social rank of donors, their economic status, their origins (urban or rural), their occupations, etc. All these data would make it possible to gauge the scope and influence of the practice of the ta˙bìs according to the different social strata, in the general use of the term. In summation, we can say that we know part of the how, whereas we almost know nothing about the what, the who, the where and the when of the institution.
The management I will divide the conclusions regarding the study of the management strategies of pious endowments into two sections: one devoted to those responsible for that function, and another to the legal criteria adopted in this respect. With regard to those in charge, we can assume, in principle, that there is no centralised system, directly controlled by the state. It is, on the contrary, a system of shared responsibilities in which the role of the state is not the determining factor. We start from the premise that the donor had the right to appoint the person responsible for managing his donation; this right, however, could not be exercised in the case of donations made in favour of mosques as the latter had someone commissioned to oversee their assets.
conclusion
445
Then we have the qà∂ì, on whose activity there is a greater amount of information, remarkably from sources of different nature. In principle, his role is two-fold. Mainly, he supervises the work of the other administrators and can even be entitled to appoint and dismiss them, but always for justifiable reasons. He also exerts direct control over some endowments whose donors have not appointed any administrator or whose administration is vacant either because the individual nominated for the charge has declined the offer or because the appointee has passed away. The attribution of powers to the qà∂ì in connection with a ˙ubs assets is documented in al-Andalus thanks to al-Khushanì since the period of the revolt of the suburbs (arrabal) (early 9th century). The reasons for empowering the qà∂ì for that function reside in the need to ensure public control of assets whose beneficiaries are not specific individuals but loose collectives (poor, infirm) or institutions (mosques, madrasa) of ‘public interest’. Apart from those two functions, jurisprudence shows several cases in which jurists appeal to the judge to settle a particular matter when the latter is particularly serious. Another aspect of the qà∂ì’s activity is the possible existence of a treasury comprising the revenues produced by certain pious endowments, probably those under his direct control and stashed away at the Friday mosque. The second aspect deals with the legal criteria that govern the management of pious endowments. In order to understand the legal queries available on this issue rightly, we must take into account the conflict raging between the two components of the institution: its legal nature and its socio-economic function. The first requires the implementation of the conditions set by the donor and the adherence to the principles of inalienability and inalterability. Socio-economic reality, conversely, leads to change and transformation as unavoidable needs. The settlement of practical cases stemming from the contradiction between both components is the domain of jurists. We can say that, in general, they are quite open-minded, provided that there are solid enough reasons to alter a donor’s stipulations or the principles of inalienability and inalterability. Among those reasons, we can single out, first of all, the need to expropriate land or property in order to build a mosque, the only case that brings about the consensus (ijmà' ) of all jurists. Secondly, the dilapidated or unprofitable state of a ˙ubs can justify its sale and substitution for another. Third, the indivisible character of the asset donated, under shared ownership. Fourth, the existence of surpluses likely to be used
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conclusion
for a purpose different to that contemplated by the donor. Fifth, defensive needs or those sparked by the depopulation of the town where the assets are located, in which case the transfer of revenues or building materials to other locations or mosques can be authorised. Obviously, not all the legal questions concerning these issues obtain unanimous responses but, generally, it can be stated that the prevailing attitude is to adapt to changing circumstances.
Interpretation and assessment My global interpretation of the institution after the preceding analysis derives from the consideration of pious endowments as a manifestation of Islamic ideology. This interpretation is, obviously, partial and, therefore, unsatisfactory. We must content ourselves with it, however, as the dearth of information prevents us from expounding another that might be more faithful to reality and based on a substantial amount of quantitative data. The external formulation that jurists advance on the institution is based on the Qu"rànic notion of the pious deed which, by itself, draws the individual nearer to the divinity and constitutes, socially, an action in favour of the ‘general interest’ (maßla˙a). This allows for, on a theoretical level, the identification of the ˙ubs with the notion of public property and public benefit; the notion of ‘the public’ would then be a manifestation of the state-like character of Islamic societies in general and of the Andalusian polity in particular. But to confine our work to a definition of the institution which simply repeats the mental framework of Islamic jurists would mean to preclude any chance of subjecting the issue under discussion to a thorough analysis. As a result, my interpretation of the institutions rests on other parameters. The ta˙bìs is a voluntary action and, thus, the mechanism that leads to its being carried out (by a single individual, a group or a sector of society) must be invariably ideological. From a teleological perspective, pious endowments find their raison d’être in Islamic ideology. This is the case, from an individual’s point of view, with regard to the donor who acts freely when making his donation, spurred by a purely ideological coercion. By dint of his donation he placates his conscience for, by performing an action commonly described as pious, he deserves a divine reward (thawàb) and collects
conclusion
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‘brownie points’ to ensure his entry into paradise; this helps him to empathise with that ideology, which provides him emotional balance and spiritual comfort in the shape of a promise of a better existence in the afterlife. This evinces the effectiveness of ideological mechanisms to generate spontaneous support towards the status quo and adherence to the system in which they are immersed in the part of individuals. We reach the same conclusion if we adopt a more global or social perspective since, when analysing their main aims, we observed that pious endowments provide an ideal conduit for reinvigorating and reproducing the dominant ideology. The historical reality gleaned from the analysis of documentary sources reveals that pious endowments constitute a set of material assets whose purpose is, in the first instance, variegated and multiple although, when looked at more closely, is a response to the logics of the ideology which ultimately sustains it. It contributes not only to the upkeep of part of the collective of men of religion devoted to worship duties at mosques, but also to the financial maintenance of these institutions, key centres for the dissemination of Islamic ideology and a source of political legitimacy for the ruling elite. We can see educational donations in the same light as most of them are aimed at backing individuals aspiring to join the collective. Considering the indirect role that the state plays in relation to these endowments and the fact that such a role was performed by proxy, by the qà∂ì, a charge whose holders were selected from among members of the same collective, we might regard pious endowments as an economic tool that provided a certain degree of material autonomy to men of religion vis-à-vis political authorities. Secondly, pious endowments are the exercise of the notion of charity, of which the ubs is but another manifestation, in the shape of donations in favour of the poor and the infirm.
APPENDIX I
JURISTS AND FUQAHÀ": IDENTIFICATION AND ALPHABETICAL INDEX
Introduction A list of all the jurists and fuqahà" mentioned throughout the book is included here; it is arranged alphabetically. I have tried to identify each one of them as thoroughly as possible and in order to do so I have relied on the main sources available on jurists, namely bio-bibliographical dictionaries. The Mi'yàr has also been used to ascertain where some jurists worked, in particular those from the Maghrib belonging to a later period and to whom al-Wansharìsì refers in more detail. The Fihris a'làm al-ashkhàß wa-l-qabà"il wa-l-umam wa-l-Firaq of the thirteenth volume of the Mi'yàr (pp. 333–434) has been quite useful in this respect, although it contains some errors and is unfortunately incomplete. I have also made use of modern prosopographic studies including biographical references to famous authors from the past such as F. Pons Boigues’ Ensayo bio-bibliográfico sobre los historiadores y geógrafos arábigo-españoles (1898) and the more recent and collective work Biblioteca de al-Andalus, an ambitious venture and an immense effort to deal with the world of Andalusian authors, in the widest sense, under the general editorship of J. Lirola and J.M. Puerta Vílchez. In the Arab world, Mu'jam al-mu"allifìn by 'U.R. Ka˙˙àla (in 12 vols.) and Shajarat al-nùr by M. Makhlùf (Cairo, 1350 h) are major contributions. I have also consulted the four lists or directories identifying Andalusian authors compiled, respectively, by M. Marín which includes individuals who passed away between 93–350 h/711–961,1 by M.L. Ávila spanning the period between 350–450 h/ 961–1058,2 by both
1 M. Marín, ‘Nómina de sabios de al-Andalus (93–350/711–961)’, in M. Marín (ed.), Estudios Onomástico-Biográficos Andalusíes, Madrid, 1988, pp. 23–182 (1,631 entries). 2 M.L. Ávila, La sociedad hispanomusulmana al final del califato (Aproximación a un estudio demográfico), Madrid, 1985, pp. 91–180 (1,144 entries). On page 91 it is mistakenly stated that the name repertory spans the period 350–400 h.
jurists and
FUQAHÀ:
identification and index
449
authors jointly covering the period 430–520 h/1038–11263 and by M. Penelas and J. Zanón between 540–646 h/1146–1248.4 Lastly, the work undertaken by F. Vidal Castro in his doctoral dissertation, the identification of jurists whose rulings on matters concerning water are quoted in the Mi'yàr, has also been very useful.5 – Al-'Abdùsì, Abù 'Imràn Mùsà b. Mu˙ammad b. Mu'†ì (d. 776 h/1374).6 – Al-'Abdùsì, 'Abd al-'Azìz b. Mùsà b. Mu'†ì (d. 837 h/1434).7 – Al-'Abdùsì, Abù Mu˙ammad 'Abdallàh b. Mu˙ammad b. Mùsà b. Mu'†ì (d. 849 h/1445–1446).8 – Abù Ibràhìm al-Andalusì (d. 352 h/963).9 – Aßbagh b. al-Faraj (d. 225 h/839), Egyptian Màlikì jurist, disciple of Ibn al-Qàsim. – Aßbagh b. al-Faraj (d. 397 h/1006–1007).10 – Aßbagh b. Mu˙ammad, Abù-l-Qàsim Aßbagh b. Mu˙ammad b. Mu˙ammad b. al-Azdì (d. 505 h/1111).11 – Al-Aßìlì, Abù Mu˙ammad 'Abd Allàh b. Ibràhìm b. Mu˙ammad b. 'Abd Allàh b. Ja'far (d. 392 h/1001–1002).12 – Al-Fishtàlì, 'Umar. Unidentified. – Al-Óaffàr, Abù 'Abdallàh Mu˙ammad b. 'Alì b. Mu˙ammad b. A˙mad b. Sa'd al-Anßàrì al-Óaffàr (d. 811 h/1408).13
3 M.L. Ávila and M. Marín, ‘Nómina de sabios de al-Andalus (430–520/ 1038–1126)’, in M. Marín and H. de Felipe, Estudios Onomástico-Biográficos de al Andalus VII, Madrid, 1995, pp. 55–189 (2,030 entries). 4 M. Penelas and J. Zanón, ‘Nómina de ulemas andalusíes de época almohade’, in M. Fierro and M.L. Ávila, Biografías almohades (I), Madrid-Granada, 1999, pp. 11–222. 5 F. Vidal Castro, Economía y sociedad en al-Andalus y el Magreb, pp. 398–408. 6 A˙mad Bàbà, Kifàya, pp. 481–482, no 645; Ibn al-Qà∂ì, Jadhwa, I, pp. 346–347, no 367 and Durrat al-˙ijàl, III, p. 5, no 879. See M. Makhlùf, Shajara, I, pp. 234–235, no 842. 7 A˙mad Bàbà, Kifàya, pp. 199–201, no 272. 8 Ibn al-Qà∂ì, Jadhwa, p. 425, no 450 and Durrat al-˙ijàl, III, p. 53, no 959; A˙mad Bàbà, Nayl, pp. 157–158; ídem, Kifàya, pp. 167–168, no 216. See M. Makhlùf, Shajara, I, p. 255, no 924. 9 M.L. Ávila, La sociedad hispanomusulmana, no 532. 10 Mª.L. Ávila, La sociedad hispanomusulmana, no 389. 11 Ibn Bashkuwàl, Íila, no 257; al-Dabbì, Bughyat al-multamis, no 576; see M.L. Ávila and M. Marín, ‘Nómina’, no 381. 12 Mª.L. Ávila, La sociedad hispanomusulmana, no 45. 13 A˙mad Bàbà, Nayl, p. 282; ídem, Kifàya, p. 373, no 497; Ibn al-Qà∂ì, Durrat al-˙ijàl, II, p. 284, no 798.
450
appendix i
– Ibn 'Abd al-Salàm, Mu˙ammad b. 'Abd al-Salàm b. Yùsuf b. Kathìr, qà∂ì-l-jamà'a of Tunis (d. 749 h/1348–1349).14 – Ibn Abì Zamanìn, Abù 'Abdallàh Mu˙ammad b. 'Abdallàh b. 'Ìsà b. Abì Zamanìn al-Ilbìrì al-Murrì (Elvira, 324 –399 h/ 936–1008).15 – Ibn Abì Zayd, Abù Mu˙ammad 'Abdallàh b. Abì Zayd alQayrawànì (316–386 h/928–996).16 – Ibn 'Allàl, Abù Mahdì 'Ìsà b. 'Allàl al-Kutàmì al-Maßmùdì alFàsì, imàm of the al-Qarawiyyìn mosque and qà∂ì of Fez (d. 823 h/1420–1421).17 – Ibn 'Allàq, Abù 'Abdallàh Mu˙ammad b. 'Alì b. Qàsim b. 'Alì b. 'Allàq (d. 806 h/1404).18 – Ibn al-'Arabì, Abù Bakr Mu˙ammad b. 'Abdallàh al-Ma'àfirì alIshbìlì (468–543 h/1076–1148).19 – Ibn al-'Arabì, Mu˙yì-l-Dìn Abù 'Abdallàh Mu˙ammad b. 'Alì alÓàtimì al-ˇà"ì (560–638 h/1165–1240).20
14 Ibn Far˙ùn, Dìbàj, II, pp. 329–330. According to al-Wansharìsì’s onomastical index in Mi'yàr, XIII, p. 349, he is identified as 'Izz al-Dìn b. 'Abd al-Salàm, qà∂ì-ljamà'a of Tunis (d. 749 h/1348). In his review of Histoire et société, F. Vidal Castro, Al-Qan†ara, XVII (1996), p. 250, corrects V. Lagardère (who does not identify him) and asserts that the individual in question was in fact the Damascene 'Izz al-Dìn 'Abd al-'Azìz b. 'Abd al-Salàm, d. 660 h/1262. In my opinion, the context of the numerous passages in which he is quoted throughout al-Wansharìsì’s work seems to indicate that he was actually the Tunisian author. On two occasions, al-Wansharìsì, Mi'yàr, IV, p. 356 and VI, p. 60, it is reported that Ibn 'Arafa, a famous qà∂ì of Tunisia during the 14th century, was his disciple. In al-Wansharìsì, Mi'yàr, VI, p. 142, he is referred to as ‘the qà∂ì Abù 'Abdallàh b. 'Abd al-Salàm al-Tùnisì’. This fact, apart from the enormous number of quotations attributed to this jurist, does itself indicate that we are dealing with the Maghribi author as Oriental authors are hardly represented in al-Wansharìsì’s book, almost entirely devoted to the world of Maghribi and Andalusian jurists. 15 Al-Óumaydì, Jadhwa, p. 53; 'Iyà∂, Tartìb, VII, pp. 183–186; Ibn al-Fara∂ì, Ta"rìkh, no 1666; al-Îabbì, Bughya, no 160; Ibn al-Abbàr, Takmila, no 385; Ibn Far˙ùn, Dìbàj, II, pp. 232–234; al-Nubàhì, Ta"rìkh, pp. 143–144. See E.I.2, III, p. 716; Mª.L. Ávila, La sociedad, no 639; 'U.R. Ka˙˙àla, Mu'jam, X, pp. 229–230; F. Pons Boigues, Ensayo, pp. 98–99, no 64. 16 'Iyà∂, Tartìb, VI, pp. 215–222; Ibn Far˙ùn, Dìbàj, I, pp. 427–430. See E.I.2, III, p. 717; Ka˙˙àla, Mu'jam, VI, p. 73; M. Makhlùf, Shajara, I, p. 96, no 227. 17 A˙mad Bàbà, Nayl, p. 193; Ibn al-Qà∂ì, Jadhwa, II, p. 502, no 574 and Durrat, III, pp. 191–192, no 1178; M. Makhlùf, Shajara, I, p. 235, no 910. 18 A˙mad Bàbà, Nayl, pp. 281–282; M. Makhlùf, Shajara, I, p. 235, no 910. 19 Ibn Far˙ùn, Dìbàj, pp. 281–284; See M. Makhlùf, Shajara, p. 136, no 408; E.I.2, III, p. 729 ( J. Robson); M. Penelas and J. Zanón, ‘Nómina’, no 1967. 20 E.I.2, III, pp. 729–734.
jurists and
FUQAHÀ:
identification and index
451
– Ibn 'Arafa, Abù 'Abdallàh Mu˙ammad b. Mu˙ammad b. 'Arafa al-Warghammì, qà∂ì of Tunis (716–803 h/1316–1400).21 – Ibn 'Àt, Abù 'Umar b. Hàrùn b. A˙mad al-Shà†ibì (d. 609 h/1212).22 – Ibn 'Attàb, Abù 'Abdallàh Mu˙ammad b. 'A††àb b. Mu˙sin (383–462 h/994–1069).23 – Ibn 'Attàb, Abù-l-Qàsim (d. 491 h/1097).24 – Ibn Ayman, Mu˙ammad b. 'Abd al-Malik b. Ayman b. Faraj, Abù 'Abdallàh (252–330 h/866–942).25 – Ibn Dìnàr, 'Ìsà (d. 212 h/828).26 – Ibn al-Fakhkhàr, Abù 'Abdallàh Mu˙ammad b. 'Umar b. Yùsuf al-Màlikì al-ÓafiΩ (343–419 h/954–1028).27 – Ibn Fatù˙, Abù Is˙àq Ibràhìm b. Mu˙ammad b. Fatù˙ al-'Uqaylì (d. 867 h/1462).28 – Ibn Óabìb, Abù Marwan 'Abd al-Malik b. Óabìb b. Sulaymàn (174–238 h/790–853).29 – Ibn al-Óàjj, Abù 'Abdallàh Mu˙ammad b. A˙mad b. Khalaf b. Ibràhìm b. Lubb b. Bay†ar al-Tujibì, known as Ibn al-Óàjj (458–529 h/1066–1134).30
21 A˙mad Bàbà, Nayl, pp. 274–279; ídem, Kifàya, pp. 361–368, no 492; Ibn alQà∂ì, Durrat al-˙ijàl, II, pp. 280–283, no 793; Ibn Far˙ùn, Dìbàj, II, pp. 331–333. See E.I.2, III, p. 734; M. Makhlùf, Shajara, I, p. 227, no 817. 22 Al-Nubàhì, Ta"rìkh, p. 116. 23 'Iyà∂, Tartìb, VIII, pp. 131–134; Ibn Bashkuwàl, Íila, no 1194; al-Îabbì, Bughya, no 241; al-Nubàhì, Ta"rìkh, pp. 96 and 100; Ibn Far˙ùn, Dìbàj, pp. 241–242. See F. Pons Boigues, Ensayo, pp. 141–142; M.L. Ávila, and M. Marín, ‘Nómina’, no 1709. 24 Ibn Bashkuwàl, Íila, no 793. See M.L. Ávila and M. Marín, ‘Nómina’, no 863. 25 Ibn al-Fara∂ì, Ta"rìkh, no 1230; 'Iyà∂, Tartìb, V, pp. 185–186. See M. Marín, ‘Nómina’, no 1265. 26 See Biblioteca de al-Andalus, III, pp. 69–74 (P. Cano Ávila). 27 Ibn Bashkuwàl, Íila, no 1113; al-Îabbì, Bughya, no 221; 'Iyà∂, Tartìb, VII, pp. 286–289; Ibn Far˙ùn, Dìbàj, II, pp. 235–236. See Mª L. Ávila, La sociedad hispanomusulmana, no 826; M. Makhlùf, Shajara, no 301. 28 A˙mad Bàbà, Nayl, pp. 53–54; ídem, Kifàya, pp. 100–102, no 119; M. Makhlùf, Shajara, I, pp. 260–261, no 957; Biblioteca de al-Andalus, III, pp. 166–167 (R. Puig). 29 Al-Khushanì, Akhbàr, no 328; Ibn al-Fara∂ì, Ta"rìkh, no 816; al-Óumaydì, Jadhwa, pp. 263–265, no 628; al-Îabbì, Bughya, no 1063; 'Iyà∂, Tartìb, IV, pp. 122–142; Ibn Far˙ùn, Dìbàj, II, pp. 8–15. See E.I.2, III, p. 798; M. Marín, ‘Nómina’, no 861; 'U.R. Ka˙˙àla, Mu'jam, VI, pp. 181–182; F. Pons Boigues, Ensayo, pp. 29–38, no 1; Biblioteca de al-Andalus, III, pp. 219–227 (M. Arcas y D. Serrano Niza). 30 Ibn Bashkuwàl, Íila, no 1278; al-Îabbì, Bughya, no 25; al-Nubàhì, Ta"rìkh, p. 134. See Biblioteca de al-Andalus, III, pp. 351–354 (R. El Hour).
452
appendix i
– Ibn Óamdìn, Abù 'Abdallàh Mu˙ammad 'Alì b. Óamdìn (d. 508 h/1114).31 – Ibn Óammàd, Abù 'Imràn Mùsà b. Óammàd al-Íinhàjì (d. 535 h/1141).32 – Ibn al-Imàm al-Tilimsànì, Abù Zayd 'Abd al-Ra˙màn b. Mu˙ammad b. 'Abdallàh (d. 740 h/1339–1340).33 – Ibn al-Imàm al-Tilimsànì, Abù-l-Fa∂l Mu˙ammad b. Ibràhìm b. 'Abd al-Ra˙màn b. Mu˙ammad (d. 845 h/1441–1442).34 – Ibn Ismà'ìl, Abù-l-Qàsim Mu˙ammad b. Ismà'ìl b. 'Abd al-Malik al-Sadafì, known as al-Zanjanì (d. 509 h/1115).35 – Ibn Juzayy, Abù-l-Qàsim Mu˙ammad b. A˙mad b. Juzayy alKalbì from Granada (693–741 h/1294–1340).36 – Ibn Lubàba, Abù 'Abdallàh Mu˙ammad b. 'Umar b. Lubàba (225–314 h/839–926).37 – Ibn Lubb, Abù Sa'ìd Faraj b. Qàsim b. A˙mad b. Lubb from Granada (d. 782 h/1381).38 – Ibn al-Màjishùn, 'Abd al-Màlìk b. 'Abd al-'Azìz al-Madanì (d. 212 h/827). – Ibn al-Makwì, Abù 'Umar A˙mad b. 'Abd al-Malik b. Hàshìm al-Ishbìlì (d. 410 h/1010).39 – Ibn ManΩùr, Abù 'Abdallàh Mu˙ammad b. A˙mad b. 'Ìsà b. ManΩùr b. 'Abdallàh b. ManΩùr al-Qaysì (399–469 h/1008–1077).40
31
Al-Îabbì, Bughya, no 230. Ibn Bashkuwàl, Íila, no 1342. 33 A˙mad Bàbà, Kifàya, pp. 178–180, no 241. 34 A˙mad Bàbà, Kifàya, pp. 408–409, no 533. 35 Ibn Bashkuwàl, Íila, no 1277; see M.L. Ávila and M. Marín, ‘Nómina’, no 1481. 36 Ibn al-Kha†ìb, I˙à†a, III, pp. 20–23; Ibn Far˙ùn, Dìbàj, II, pp. 271–276, no 87; A˙mad Bàbà, Nayl, p. 235; ídem, Kifàya, pp. 164–165, no 209. See 'U.R. Ka˙˙àla, Mu'jam, IX, p. 11; M. Makhlùf, Shajara, I, p. 213, no 746. 37 Al-Khushanì, Akhbàr, no 154; Ibn al-Fara∂ì, Ta’rìkh, no 1189; al-Óumaydì, Jadhwa, p. 71, no 110; 'Iyà∂, Tartìb, V, pp. 153–157; al-Îabbì, Bughya, no 222; Ibn Far˙ùn, Dìbàj, II, pp. 189–191; see M. Marín, ‘Nómina’, no 1283; F. Pons Boigues, Ensayo, p. 51, no 12. 38 Ibn al-Qà∂ì, Durrat, no 1317; Ibn Far˙ùn, Dìbàj, II, pp. 139–142; see M. Makhlùf, Shajara, I, p. 230, no 862. 39 Al-Óumaydì, Jadhwa, pp. 123–124, no 231; 'Iyà∂, Tartìb, VII, pp. 123–124; Ibn Bashkuwàl, Íila, no 38; Ibn Far˙ùn, Dìbàj, I, pp. 176–177, no 53; M. Makhlùf, Shajara, no 257; see M.L. Ávila, La sociedad, no 221. 40 Ibn Bashkuwàl, Íila, no 1083. 32
jurists and
FUQAHÀ:
identification and index
453
– Ibn ManΩùr, Abù 'Amr Mu˙ammad b. Mu˙ammad b. Mu˙ammad b. Mu˙ammad b. 'Ubayd Allàh b. ManΩùr (d. 888–889 h/ 1484–1485),41 qà∂ì-l-jamà'a from Granada. – Ibn Marzùq, Abù-l-Fa∂l Mu˙ammad b. A˙mad b. Mu˙ammad, qà∂ì of Tilimsàn (766–842 h/1364–1439).42 – Ibn Mas'ùd, Abù-l-Óasan 'Alì b. Mas'ùd b. 'Alì b. Masùd alMu˙àribì.43 – Ibn al-Ni'ma, Abù-l-Óasan 'Alì b. 'Abdallàh b. Khalaf b. Mu˙ammad b. 'Abd al-Rahman b. 'Abd al-Malik, known as Ibn al-Ni'ma (d. 567 h/1171).44 – Ibn al-Qàsim, Abù 'Abdallàh 'Abd al-Rahman b. al-Qàsim b. Khàlid (132–191 h/749–806).45 – Ibn al-Qa††àn, Abù 'Umar A˙mad b. Mu˙ammad b. 'Ìsà b. Hilàl (390–460 h/1000–1068).46 – Ibn Rushd, Abù-l-Walìd Mu˙ammad b. A˙mad b. Rushd, known as Averroes ‘the grandfather’ (450–520 h/1058–1126).47 – Ibn al-Salìm, Mu˙ammad b. Is˙àq (302–367 h/914–978).48 – Ibn Siràj, Abù-l-Qàsim Mu˙ammad b. Siràj (d. 848 h/1444).49 – Ibn Sahl, Abù-l-Aßbagh 'Ìsà b. 'Abdallàh al-Asadì (413–486 h/1022–1093).50
41
A˙mad Bàbà, Nayl, p. 323; ídem, Kifàya, p. 440, no 593. A˙mad Bàbà, Kifàya, pp. 391–398, no 524; M. Makhlùf, Shajara, I, pp. 252–253, no 918. 43 See M.I. Calero Secall, ‘El juez delegado (nà"ib) del cadí en el reino nazarí de Granada’, Andalucia Islámica. Textos y Estudios, IV–V (1983–1986), pp. 161–201. 44 Ibn al-Abbàr, al-Takmila, ed. al-Harràs, III, pp. 206–208, no 516; F. Pons Boigues, Ensayo, pp. 240–241, no 192. 45 E.I.2, III, 840. 46 Ibn Bashkuwàl, Íila, no 130; 'Iyad, Tartìb, VIII, pp. 135–136; see M.L. Ávila and M. Marín, ‘Nómina’, no 291. 47 Ibn Bashkuwàl, Íila, no 1270; al-Îabbì, Bughya, no 24; al-Nubàhì, Ta"rìkh, pp. 130–131; Ibn Far˙ùn, Dìbàj, II, pp. 248–250; Ibn al-Qà∂ì, Jadhwa, no 259; see 'U.R. Ka˙˙àla, Mu'jam, VIII, 228; M.L. Ávila and M. Marín, ‘Nómina’, no 1415. 48 Al-Khushanì, Qu∂àt Qur†uba, p. 176 (trans. J. Ribera, p. 274); Ibn al-Fara∂ì, Ta"rìkh, no 1319; al-Óumaydì, Jadhwa, no 21; al-Îabbì, Bughya, no 57; 'Iyà∂, VI, pp. 280–289; Ibn Sa'ìd al-Maghribì, al-Mughrib, I, p. 214, no 142; al-Nubàhì, Ta"rìkh, pp. 75–77; Ibn Far˙ùn, Dìbàj, II, pp. 214–216, no 41. 49 A˙mad Bàbà, Nayl, p. 303; ídem, Kifàya, pp. 411–412, no 540; Ibn al-Qà∂ì, Durrat, III, p. 282, no 1353; M. Makhlùf, Shajara, p. 248. 50 'Iyà∂, Tartìb, VIII, p. 182; Ibn Bashkuwàl, Íila, no 942; al-Îabbì, Bughya, no 1145; al-Nubàhì, Ta"rìkh, pp. 127–129; Ibn Far˙ùn, Dìbàj, II, pp. 70–72; see F. Pons Boigues, Ensayo, p. 160, no 124; 'U.R. Ka˙˙àla, Mu'jam, VIII, pp. 25–26; M.L. Ávila and M. Marín, ‘Nómina’, no 1290. 42
454
appendix i
– Ibn Sulaymàn, Abù Íàli˙ Ayyùb b. Sulaymàn (d. 302 h/914).51 – Ibn Wa∂∂àh, Abù 'Abdallàh Mu˙ammad b. A˙mad b. Wa∂∂àh b. Yazìd (d. 287 h/900).52 – Ibn Ward, Abù-l-Qàsim A˙mad b. Mu˙ammad b. 'Umar alTamìmì (465–540 h/1073–1146.53 – Ibn Ziyàdat Allàh, Abù 'Abdallàh b. Ziyàdat Allàh al-Qàbisì. – Ibn Zarb, Abù Bakr Mu˙ammad b. Yabqà b. Zarb b. Yazìd b. Maslama (317–381 h/929–991).54 – Ibn Zarb, Abù Bakr Ya˙yà b. Mu˙ammad b. Yabqà (382–447 h/992–1056).55 – 'Iyà∂, Abù-l-Fa∂l 'Iyà∂ b. Mùsà al-Ya˙ßubì (476–544 h/1083–1149).56 – Khàlid b. Wahb (d. 302 h/914).57 – Al-Lakhmì, Abù-l-Óasan 'Alì b. Mu˙ammad (d. 478 h/1085–1086).58 – Al-Lu"lu"ì, Abù Bakr A˙mad b. 'Abdallàh b. A˙mad al-Umawì (d. 348 h/959).59 – Màlik b. Anas (d. 179 h/795), jurist from Medina and founder of the Màlikì school.60 – Al-Mawwàq, Mu˙ammad b. Yùsuf b. 'Alì b. Qàsim al-'Abdarì al-Mawwàq (d. 897 h/1492).61
51 Al-Khushanì, Akhbàr, no 38; Ibn al-Fara∂ì, Ta"rìkh, no 267; al-Óumaydì, Jadhwa, p. 161, no 314; 'Iyà∂, Tartìb, V, p. 149; Ibn Far˙ùn, Dìbàj, I, p. 303, no 1; see M. Marín, ‘Nómina’, no 298. 52 'Iyà∂, Tàrtìb, IV, p. 435. 53 Ibn Bashkuwàl, Íila, no 177; al-Îabbì, Bughya, no 362; Ibn Far˙ùn, Dìbàj, p. 41; Ibn al-Kha†ìb, I˙à†a, I, pp. 169–171. 54 Ibn al-Fara∂ì, Ta"rìkh, no 1361; al-Óumaydì, Jadhwa, p. 93, no 170; 'Iyà∂, Tartìb, VII, pp. 114–118; al-Îabbì, Bughya, no 325; Ibn Sa'ìd, Mughrib, I, p. 241, no 143; Ibn Far˙ùn, Dìbàj, II, pp. 230–231; al-Nubàhì, Ta’rìkh, pp. 103–109; see M. Makhlùf, Shajara, no 249; M.L. Ávila, La sociedad hispanomusulmana, no 834. 55 M.L. Ávila, La sociedad hispanomusulmana, no 1094. 56 Al-Nubàhì, Ta’rìkh, pp. 132–133; Ibn Far˙ùn, Dìbàj, II, pp. 46–51; Ibn alQà∂ì, Jadhwa, no 567. See F. Pons Boigues, Ensayo, pp. 218–219, no 174; E.I.2, IV, pp. 320–324; 'U.R. Ka˙˙àla, Mu'jam, VIII, p. 16; Biblioteca de al-Andalus, III, pp. 542–544 (D. Serrano Ruano); M. Penelas and J. Zanón, ‘Nómina’, no 1454. 57 M. Marín, ‘Nómina’, no 437. 58 Ibn Far˙ùn, Dìbàj, pp. 104–105; Makhlùf, M., Shajara, I, p. 117, no 326. 59 Ibn al-Fara∂ì, Ta"rìkh, no 122; al-Óumaydì, Jadhwa, p. 120, no 221; 'Iyà∂, Tartìb, VI, pp. 110–117; al-Îabbì, Bughya, no 422; Ibn Far˙ùn, Dìbàj, II, pp. 201–202. See M. Marín, ‘Nómina’, no 142; M.L. Ávila, La sociedad hispanomusulmana, no 209; M. Makhlùf, Shajara, no 197. In al-Wansharìsì, Mi'yàr, X, p. 8 another al-Lu"lu"ì is also mentioned, known as al-Óasan b. Ziyàd. 60 E.I.2, VI, pp. 247–250. 61 A˙mad Bàbà, Nayl, pp. 324–325; Kifàya, pp. 443–444, no 599; Ibn al-Qà∂ì, Jadhwa, no 330; M. Makhlùf, Shajara, I, p. 262, no 961.
jurists and
FUQAHÀ:
identification and index
455
– Al-Mawàsì, Abù Mahdì 'Ìsà b. A˙mad b. Mu˙ammad al-Mawàsì al-Bu†ù"ì, faqìh from Fez and kha†ìb of al-Qarawiyyìn (d. 896 h/1490).62 – Al-Minthùrì, Abù 'Abdallàh Mu˙ammad b. 'Abd al-Malik b. 'Alì b. 'Abd al-Malik al-Qaysì from Granada (d. 834 h/1431).63 – Mu†arrif b. 'Abdallàh al-Hilàlì al-Madanì (d. 220 h/835), nephew and disciple of Màlik. – Al-Nawawì, Mu˙yì-l-Dìn Abù Zakariyyà Ya˙yà b. Sharaf alNawawì (631–676 h/1233–1277).64 – Al-Qabbàb, Abù-l-'Abbàs A˙mad b. Qàsim b. 'Abd al-Ra˙màn al-Judàmì (d. 779 h/1378).65 – Al-Qàbisì, Abù-l-Óasan 'Alì b. Mu˙ammad b. Khalaf al-Ma'afirì al-Qarwì (d. Qayrawàn, 403 h/1012).66 – Al-Qaràfì, Shihàb al-Dìn (d. 682 h/1283 or 684 h/1285), Egyptian Màlikì. – Rabì'at al-Ra"y (d. 753), master of Màlik b. Anas. – Sa'd b. Mu'àdh b. 'Uthmàn (d. 308 h/920).67 – Sa˙nùn, Abù Sa'ìd 'Abd al-Salàm b. Sa'ìd b. Óabìb b. Óassàn b. Hilàl b. Bakkàr b. Rabì' al-Tanùkhì (d. 240 h/855),68 founder of the school of Qayrawàn. – Al-Saraqus†ì, Abù 'Abdallàh Mu˙ammad b. Mu˙ammad b. Mu˙ammad al-Anßàrì al-Saraqus†ì (784–865 h/1382–1461).69 – Al-Sharìf al-Tilimsànì, 'Abdallàh b. Mu˙ammad b. A˙mad (d. 792 h/1389–1390).70 – Al-Sharìf al-Tilimsànì, Abù Ya˙yà 'Abd al-Ra˙màn b. Mu˙ammad b. A˙mad (d. 820 h/1423).71 62 Ibn al-Qà∂ì, Jadhwa, II, pp. 502–503, no 575 and Durrat al-˙ijàl, III, p. 192, no 1179. 63 A˙mad Bàbà, Nayl, p. 291; ídem, Kifàya, pp. 388–389, no 521; M. Makhlùf, Shajara, I, pp. 147–148, no 892. 64 E.I.2, VII, pp. 1043–1044. 65 Ibn Far˙ùn, Dìbàj, I, p. 187, no 64; A˙mad Bàbà, Nayl, pp. 72–73; Ibn al-Qà∂ì, Jadhwa, I, pp. 123–124, no 56 and Durrat al-˙ijàl, I, pp. 47–48, no 61; M. Makhlùf, Shajara, I, p. 235, no 845. 66 Ibn Far˙ùn, Dìbàj, II, pp. 101–102; 'U.R. Ka˙˙àla, Mu'jam, VII, pp. 194–195; M. Makhlùf, Shajara, p. 97, no 230. 67 Ibn Sahl, Dìwàn, II, p. 1185. M. Marín, ‘Nómina’, no 519. 68 Al-Nubàhì, Ta"rìkh, pp. 47–49; Ibn Far˙ùn, Dìbàj, II, pp. 30–40. See E.I.2, VIII, pp. 843–845 and M. Makhlùf, Shajarat, I, pp. 69–70, no 80. 69 A˙mad Bàbà, Nayl, p. 314; ídem, Kifàya, pp. 425, no 567. See M. Makhlùf, Shajara, I, p. 260, no 956. 70 A˙mad Bàbà, Nayl, pp. 162–164, no 207. 71 A˙mad Bàbà, Nayl, pp. 184–185, no 249.
456
appendix i
– Al-Sharìf al-Tilimsànì, Abù Ja'far A˙mad b. Abì Ya˙yà, qà∂ì-ljamà'a (d. 895 h/1489).72 – Al-Shà†ibì, Abù Is˙àq Ibràhìm b. Mùsà al-Shà†ibì from Granada (d. 790 h/1388).73 – Al-Tilimsànì, Abù Is˙àq Ibràhìm b. Mùsà al-Maßmùdì (d. 805/1402–1403).74 – Al-Tilimsànì, Ibràhìm b. 'Abd al-Ra˙màn b. al-Imàm al-Tilimsànì (d. 797 h/1394–1395).75 – Al-Tàzaghdarì, Abù-l-Qàsim Mu˙ammad b. 'Abd al-'Azìz (d. 833 h/1430)76. – Al-'Uqbànì, Abù 'Uthmàn Sa'ìd b. Mu˙ammad b. Mu˙ammad (720–811 h/1320–1408).77 – Al-'Uqbànì, Qàsim b. Sa'ìd b. Mu˙ammad (d. 854 h/1450).78 – Al-'Uqbànì, Abù Sàlim Ibràhìm b. Qàsim b. Sa'ìd b. Mu˙ammad (d. 880 h/1475–1476).79 – Al-Wànaghìlì, Abù Mu˙ammad 'Abdallàh al-Wànaghìlì al-Îarir from Fez (d. 779 h/1377).80 – Al-Yàlißùtì, Abù-l-Îayyà' Mißbà˙ b. Mu˙ammad b. 'Abdallàh (d. Fez 705 h/1305).81 – Al-Yaznàsnì, Ibràhìm b. 'Abdallàh b. Abì-l-Khayr (d. after 740 h/1339–1340).82 – Al-Yaznàsnì, Abù Sàlim Ibràhìm b. Mu˙ammad b. Ibràhìm b. 'Abdallàh (d. 794 h/1392) qà∂ì-l-jamà'a of Fez.83
72
M. Makhlùf, Shajarat, I, p. 267, no 985. A˙mad Bàbà, Nayl, pp. 46–50; Ibn al-Qà∂ì, Durrat al-˙iyàl, no 239. See M. Makhlùf, Shajara, I, p. 231, no 828; E.I.2, IX, p. 376. 74 A˙mad Bàbà, Kifàya, p. 98, no 115. 75 A˙mad Bàbà, Kifàya, p. 98, no 115. 76 Ibn al-Qà∂ì, Jadhwa, I, p. 239, no 220 and Durrat al-˙iyàl, III, p. 281, no 1349. See M. Makhlùf, Shajara, I, p. 252, no 915. 77 Ibn Far˙ùn, Dìbàj, I, p. 394, no 7; A˙mad Bàbà, Kifàya, pp. 138–139, no 173. See M. Makhlùf, Shajara, I, p. 250, no 904. 78 A˙mad Bàbà, Kifàya, pp. 281–282, no 396. 79 A˙mad Bàbà, Kifàya, p. 105, no 123. 80 Ibn al-Qà∂ì, Jadhwa, II, p. 424, no 446 and Durrat al-˙iyàl, III, pp. 52–53, no 957; M. Makhlùf, Shajara, I, p. 235, no 846. 81 A˙mad Bàbà, Nayl, p. 344; Ibn al-Qà∂ì, Jadhwa, I, p. 336, no 354 and Durrat al-˙iyàl, III, p. 17, no 910. 82 A˙mad Bàbà, Kifàya, p. 85, no 102. 83 A˙mad Bàbà, Kifàya, p. 95, no 110. 73
APPENDIX II
INVENTORY AND BREAKDOWN OF FATÀWÀ INCLUDED IN THE MI'YÀR
1. Introduction I include in this appendix a detailed breakdown of fatàwà issued by Andalusian authors regarding a˙bàs compiled by al-Wansharìsì in his Mi'yàr. Both the number of legal rulings issued by each author and their chronological distribution are indicated. There are 247 fatàwà in total, most of which (227, 91.9%) are found in the second volume, devoted exclusively to the issue of pious endowments, whereas the remaining 20 (8%) are scattered throughout five other volumes (I, V, VIII, IX and X, see Chapter 2). This appendix consists of two parts: a. The criteria followed in order to compile it, as any attempt to break down and classify the legal material included in the Mi'yàr requires the taking of specific decisions of a subjective nature which must be clarified and stated. b. The breakdown or inventory of the fatàwà, arranged in periods, in centuries, and within each period also by author; all the biographical references to each author included in the inventory I have been able to identify are also recorded.
2. Criteria followed in the compilation To make this inventory several aspects have been taken into account. Firstly, the distribution of the material depending on the volume where it is found was an issue that needed to be dealt with. This already poses a problem as I will explain right away. Then, the use of the geographic and chronological concepts vis-à-vis each author in an attempt to place each ruling in its particular context as far as possible. Thus, prior to the breakdown of legal rulings, I would like to make some remarks on the difficulties I have had to grapple with
458
appendix ii
while making this inventory as well as on the steps I have taken in order to overcome them. As it has been previously indicated, the distribution of texts devoted to a particular topic in al-Wansharisi’s work is not an easy issue to tackle for several reasons: a. Firstly, due to the fact that the indexes of the Mi'yàr’s modern edition are not complete. b. Another difficulty is how a particular text can be distinguished from another as the way in which the legal questions and rulings have been arranged by its editors seems a bit arbitrary on occasions; the start of each text is indicated by a heading or title in bold characters but the problem arises when, as is the case on numerous occasions, there are texts which can be clearly differentiated from previous ones—because they were written by a different author, for instance- but do not appear under their own heading or title. c. Similarly, it is not advisable to rely on the title or heading proposed by the editors in order to determine the content of a particular text as, often, a text deals with issues other than those suggested by a heading: as F. Vidal Castro points out, the title adopted by the editors does not necessarily offer any clues as to its contents and, in fact, is sometimes misleading.1 A thorough examination of the twelve volumes has been necessary so as not to miss out any text dealing with a particular topic. Considering the length of the book, there is no guarantee that this goal has been achieved. That is why I have not always followed the distribution proposed by the editors in the breakdown of fatàwà dealing with pious endowments. On the contrary, I have treated some legal queries and fatàwà not arranged under their own heading in the modern edition as independent texts. I am aware, nonetheless, that any global conclusions on the number of texts and their distribution are subject to variations, depending on whether a particular text is considered to constitute a separate legal question or a segment of a larger text. I believe, however, that the calculations recorded here are valid, at least in general terms,
1
F. Vidal Castro, Economía y sociedad, p. 397.
inventory and breakdown of
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and indicative of the nature and provenance of the total amount of information. I would also make some remarks on the authorship of legal rulings, an important issue in this study. In most cases, authorship is feasible and easy to ascertain: the most usual method followed in the Mi'yàr is to determine the authorship of a text on the basis of its initial heading; almost invariably, this consists of the formula ‘he was asked about’, ‘he was questioned on’ (su"ila 'an), followed by the name of the faqih dealing with the particular case. However, a fatwà including the name of the jurist whose opinion is sought is frequently followed by a number of rulings, often very numerous, which do not record that name: in accordance with a criterion widely accepted by experts in the Mi'yàr, I have attributed these fatàwà to the same author.2 On occasions, even though the query is addressed to a particular jurist, other scholars intervene and make comments and offer their views on the issue at stake. In these cases, the jurist to whom the fatwà has been attributed is the main jurist whose opinion is sought. As it has been pointed out, however, this does not prevent other jurists from participating and expressing their views on a certain matter. In other cases, however, the authorship of some fatàwà is difficult to establish. This situation arises when some of the following circumstances occur: a. When the text does not specify the full name of the jurist to whom the query is addressed but only part of it. This is particularly the case of legal queries which only include the author’s kunya, like the fatàwà grouped under the heading su"ila Abù Íàli˙ or su"ila Abù 'Imràn. The same situation arises when only the nasab or nisba of the jurist is recorded and it belongs to a family including several contemporaneous jurists or one with a long legal tradition such as the Banù ManΩùr or the Banù 'A††àb. There are also cases where several jurists share the same element of the traditional Arab name and the latter has been adopted as an identifier of a certain jurist such as in the case of al-Lu"lu"ì. I have adopted various solutions when this type of situations arises, either by attributing the fatwà to a particular jurist for the reasons I adduce
2
Ibid., pp. 178 and 234.
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or by leaving the authorship of specific fatàwà unresolved. In any case, it seems obvious that we are dealing with special cases subject to interpretative variations. b. Also when legal questions are not addressed to a specific author but introduced by indirect formulas such as ‘a certain master was asked’ (su’ila ba'∂ al-shuyùkh) or ‘one of them was asked’ (su"ila ba'du-hum). Sometimes, the jurists who respond to the query are later identified; this is not always the case however. In those cases, I have relied on the context when attributing the authorship of a text to a particular writer. The fact that the distribution of the texts included in the Mi'yàr is not anarchic but usually follows criteria of geographical and chronological unity and homogeneity must be taken into consideration. I believe then that, as far as the seventh volume—containing most of the information on a˙bàs—is concerned, several homogeneous groups of texts can be distinguished. They are the following: fatàwà by Maghribi authors from a late period (13th–15th centuries), between pp. 5–64; fatàwà by Nasrid jurists, pp. 89–209; again by Maghribi authors, pp. 230–421; Andalusian authors (10th–12th centuries), pp. 421–469.3 When the situation arises that in the context of some of these groupings of texts I have found legal queries not addressed to specific authors, I have resolved to include them within the group of authors among whom it is inserted. In these cases, this fact is highlighted in a footnote. c. Lastly, there are a number of texts—a few, as a proportion of the total amount- whose authorship I have been unable to ascribe because the preliminary section of the legal question does not indicate it (it is introduced by su"ila ba'∂u-hum, su"ila ba'∂ al-shuyùkh) and also due to the fact that the context offers no clues as to where they ought to be included. In general, however, I believe that the ‘degree of accuracy’ when ascribing the authorship of each text in this breakdown of fatàwà is high as, in most cases, it has been possible to attribute each response to its author with enough certainty. I would like to stress the fact
3 These groups or batches of texts are not absolutely ‘pure’; often texts by authors not belonging to the same context can be interspersed. Those groups are based on the quite marked predominance of texts by authors from the same geographical and chronological context.
inventory and breakdown of
FATÀWÀ
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that my calculations are obviously subjective as, first of all, they are susceptible to possible errors and, furthermore, the figures would be different if different criteria from mine were to be adopted, especially in cases whose authorship remains doubtful. I will make two remarks on this respect. Firstly, that being aware of the fact that this component of subjectivity is present throughout this book, I will avoid to include, every time that data is presented, expressions like ‘approximately’ or ‘around/about’ as they might prove repetitive. Secondly, that in spite of the aforementioned component of subjectivity, I believe that the calculations would not change significantly even though other classification criteria were to be adopted. With regard to the chronological distribution of fuqahà" and their fatàwà, I have used a century as a benchmark. This engenders some obstacles when dealing with some jurists whose lives straddled two centuries. In these cases, following the criterion suggested by F. Vidal Castro, I have decided to include them in the century when most of the mature life of the individual in question took place.4 This means, for instance, that Ibn Sulaymàn, who passed away in 302H/914, has been considered as belonging to the previous century whereas Ibn al-Fakhkhàr (d. 419H/1028) has been included among 5th /11th century jurists.
3. Distribution 3.1. 3rd/9th century (4 fatàwà by 2 jurists) – Ibn Sulaymàn (d. 302H/914):5 1st (VII/104), 2nd (VII/104–105, no 101) and 3rd (VII/105 and VII/76).6 3 fatàwà in total. – Ibn Óabìb (174–238H/790–853): VII/64–65, IX/399 and alSha'bì, 508, no 1132. Total 1.
4
F. Vidal Castro, Economía y sociedad, p. 549. These fatàwà are simply addressed to ‘Abù Íàli˙’, here identified as Abù Íali˙ Ayyub b. Sulaymàn of Córdoba (d. 302H/914), the only jurist bearing this kunya mentioned in the onomastic index of al-Wansharìsì’s Mi'yàr, XIII, p. 367. 6 In the second version the question is introduced by ‘some of the fuqahà" of alAndalus were asked’ (su"ila ba'∂ fuqahà" al-Andalus). 5
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3.2. 4th/10th century (21 fatàwà, 5 jurists) – Ibn Zarb (317–381H/929–991): 1st (VII/64, VII/218, attributed to Ibn Da˙˙ùn, and VII/424–425, al-Sha'bì, 490, no 1082), 2nd (VII/65), 3rd (VII/66), 4th (VII/421–423), 5th (VII/423), 6th (VII/423), 7th (VII/423–424), 8th (VII/426), 9th (VII/426–427), 10th (VII/427–428), 11th (VII/428–431) and 12th (IX/147–148). Total 12. Ibn al-Makwì (324–401H/935–1010): 1st (VII/432 and al-Sha'bì, 146, no 182), 2nd (VII/432 and al-Sha'bì, 147, no 184), 3rd (VII/435 and al-Sha'bì, 125, no 125), 4th (VII/436 and al-Sha'bì, 164, no 208) and 5th (VIII/142–143). Total 5. – Ibn Lubàba (225–314H/839–926): 1st (VII/103–104) and 2nd (VII/104). Total 2. – al-Lu'lu'ì (d. 348H/959): VII/43 and al-Sha'bì, 80–81, no 27. Total 1. – Ibn Abì Zamanìn (324–399H/936–1008): VII/218, VII/431–432 and al-Sha'bì, 135, no 148. Total 1. 3.3. 5th/11th century (23 fatàwà, 9 jurists) – Ibn 'A††àb, Abù 'Abdallàh Mu˙ammad (383–462H/995–1069): 1st (VII/438–439), 2nd (VII/439), 3rd (VII/473), 4th (VII/477), 5th (VII/477–478) and 6th (VII/481–482, IX/30–33 and Ibn Sahl, Wathà"iq fì shu"ùn al-'umràn, 75–77).7 Total 6. – Ibn Sahl (436–486H/1022–1093): 1st (VII/59–60 and Ibn Sahl, Wathà"iq fì a˙kàm qa∂à" ahl al-dhimma fì-l-Andalus, 68–70), 2nd (VII/220, VII/477 and VI/246), 3rd (VII/437–438) and 4th (VII/481). Total 4. – Ibn al-Fakhkhàr (d. 419H/1028): 1st (VII/218 and al-Sha'bì, 205, no 324), 2nd (VII/433–435 and al-Sha'bì, 154–157, no 199) and 3rd (VII/454–455). Total 3. – Ibn ManΩùr, Abù 'Abdallàh Mu˙ammad b. A˙mad b. 'Ìsà (d. 469H/1077):8 1st (VII/146–147) and 2nd (VII/147). Total 2. 7 This second version is collective as it is introduced by ‘they also wrote them to Córdoba’ (wa-kutiba la-hum ay∂an ilà Qur†uba). 8 The Banù ManΩùr al-Qaysì were an important family of jurists and judges from Seville who emigrated to Granada and Malaga after the conquest of the town in 1248, see on this M.L. Ávila’s study ‘Los Banù ManΩùr al-Qaysì", in M. Marín and J. Zanón (eds.), Estudios Onomástico-Biográficos de al-Andalus ( familias andalusíes) V, Madrid, 1992, pp. 23–37.
inventory and breakdown of
FATÀWÀ
463
– Ibn Óamdìn, Abù 'Abdallàh Mu˙ammad 'Alì (d. 508H/1114): 1st (VII/399–414) and (X/369–370). Total 1. – Aßbagh b. Mu˙ammad (d. 505H/1111): VII/440. Total 1. – Mu˙ammad b. Ismà'ìl (d. 509H/1115): VII/75–76. Total 1. – Ibn 'A††àb, Abù-l-Qàsim (d. 491H/1097):9 VII/228–229. Total 1. – Ibn al-Qa††àn (d. 460H/1068): VII/65–66.10 Total 1. – A couple of jurists: 1st (VII/440, Ibn Óamdìn and Ibn Zarq) and 2nd (VII/455, Ibn 'A††àb and Ibn al-Qa††àn). Total 2. – Collective: VII/446–451 and Ibn Sahl, Wathà"iq fi shu"ùn al-˙isba, 62–96. Those responding to this consultation are Abù 'Alì-l-Óasan b. Ayyùb al-Óaddàd (d. 425H/1033–1034), 'Abdallàh b. Ya˙yà b. Da˙˙ùn (d. 431H/1039), Abù-l-Walìd al-Layth b. Khuraysh (d. 428H/1036–1037), Abù Mu˙ammad 'Abdallàh b. Sa'ìd b. alShaqqàf (d. 426H/1034–1035) and Abù 'Alì-l-Óasan b. Salmùn al-Masìlì (d. 431H/1039). Total 1. 3.4. 6th/12th century (50 fatàwà, 6 jurists) – Ibn Rushd (450–520H/1058–1126): 1st (VII/135–136, ed. al-Talìlì, I/311–313, no 65 and ed. al-Tajkànì, I/251–252, no 60), 2nd (VII/181–182, ed. al-Talìlì, II/313–314, no 66 and I/251–252, no 60), 3rd (VII/441, ed. al-Talìlì, III/1567, no 577), 4th (VII/451–452 and VIII/288), 5th (VII/452–454, ed. al-Talìlì, I/320-322, no 70 and ed. al-Tajkànì, I/256–258, no 65), 6th (VII/458, ed. al-Talìlì, III/1390-1391, no 499 and ed. al-Tajkànì, II/1239–1240, no 322), 7th (VII/459), 8th (VII/459–460, ed. alTalìlì, III/1358, no 479 and ed. al-Tajkànì, II/1213, no 315), 9th (VII/460, ed. al-Talìlì, III/1359, no 480 and ed. al-Tajkànì, II/1213–1214, no 315), 10th (VII/460–461, ed. al-Talìlì, II/1080– 1081, no 325 and ed. al-Tajkànì, II/948–950, no 253), 11th (VII/461, IX/406, ed. al-Talìlì, II/1049–1050, no 310 and ed. al-Tajkànì, II/922–923, no 241), 12th (VII/461–462, ed. al-Talìlì, II/1050-1051, no 311 and ed. al-Tajkànì, II/923–924, no 241),
9 This jurist’s name, as mentioned in the fatwà itself, is Abù-l-Qàsim 'Abd alRa˙màn b. Mu˙ammad b. 'A††àb, here identified as Abù-l-Qàsim 'Abd al-'Azìz b. Mu˙ammad b. 'A††àb b. Mu˙sin (d. 491H/1097), whose biography can be found in Ibn Bashkuwàl, Íila, no 793; see M.L. Ávila and M. Marín, ‘Nómina’, no 863. 10 This legal query is addressed to Abù 'Imràn al-Qa††àn, however; I assume there is a mistake here and it should read ‘Ibn al’ rather than ‘'Imràn’.
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–
–
– – – –
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13th (VII/462, ed. al-Talìlì, II/1114–1115, no 344 and ed. alTajkànì, II/981, no 265), 14th (VII/462–463, ed. al-Talìlì, II/1139, no 353 and ed. al-Tajkànì, II/1004 –1005, no 274), 15th (VII/463–464, ed. al-Talìlì, II/1207–1209, no 387 and ed. alTajkànì, II/1063–1065, no 290), 16th (VII/464–465, ed. al-Talìlì, III/1267–1268, no 418 and II/1133–1134, no 304), 17th (VII/465, ed. al-Talìlì, III/1269, no 420 and ed. al-Tajkànì, II/1135, no 304), 18th (VII/465–466, ed. al-Talìlì, III/1268, no 419 and ed. al-Tajkànì, II/1134, no 304), 19th (VII/466–467, ed. al-Talìlì, III/1340-1343, no 467 and ed. al-Tajkànì, II/1247–1253, no 324), 20th (VII/467–468, ed. al-Talìlì, II/1222, no 394 and al-Tajkànì, II/1076–1077, no 293), 21st (VII/468) and 22nd (VII/469, ed. al-Talìlì, II/1244, no 408 and ed. al-Tajkànì, II/1094–1095, no 293). Total 22. Ibn al-Ó à jj (458–529H/1066–1134): 1st ( VII/228), 2nd ( VII/229 –230), 3rd ( VII/441– 442), 4th ( VII/442), 5th (VII/442–443), 6th (VII/443), 7th (VII/443), 8th (VII/443), 9th (VII/443–444), 10th (VII/444), 11th (VII/444–446), 12th (VII/446), 13th (VII/456), 14th (I/382), 15th (VIII/171–172), 16th (VIII/289), 17th (IX/589) and 18th (X/445–446 and ed. al-Talìlì, III/ 1591–1592, no 601). Total 18. 'Iyà∂ (476–544H/1083–1149): 1st (V/352), 2nd (VII/70–71 and Madhàhib al-˙ukkàm, 304–305) and 3rd (VII/73–75 and Madhàhib al-˙ukkàm, 203–205). Total 3. Ibn al-Ni'ma (d. 567H/1171): 1st ( VII/17–18) 11 and 2nd (VII/234–235). Total 2. Ibn Ward (465–540H/1073–1146): VIII/56–62.12 Total 1. Ibn Óammàd (d. 535H/1141): VII/62–63. Total 1. Collective: 1st (VII/439–440, Ibn Rushd and Ibn al-Óàjj), 2nd (VII/440-441, Aßbagh b. Mu˙ammad, Ibn al-Óàjj and Ibn Rushd) and 3rd (VII/455–456, Ibn Rushd and Ibn al-Óàjj). Total 3.
11 The first one is addressed to Khalaf b. Abì Bakr b. Ni'ma al-Màlikì, so its ascription to the said faqìh is doubtful. 12 Although the editors of the Mi'yàr have divided it into four sections it is actually a single fatwà made up of several legal questions concerning a˙bàs belonging to dhimmis; see its translation in D. Serrano, ‘Dos fetuas sobre la expulsión de mozárabes al Magreb en 1126’, pp. 163–168.
inventory and breakdown of
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3.5. 8th/14th century (53 fatàwà, 6 fuqahà") – Ibn Lubb (701–782H/1301–1381): 1st (VII/72 and VII/90–91), 2nd (VII/89–91), 3rd (VII/91), 4th (VII/91–92), 5th (VII/92–93), 6th (VII/93–94, VII/199 and VII/259), 7th (VII/94), 8th (VII/99), 9th (VII/112), 10th (VII/137), 11th (198–199, no 226), 12th (VII/199), 13th (VII/200–201), 14th (VII/201 and VII/259), 15th (VII/201), 16th (VII/202), 17th (VII/202–203), 18th (VII/203–204), 19th (VII/204), 20th (VII/205–206), 21st (VII/206–207 and IX/475–476), 22nd (VII/223), 23rd (VII/259), 24th (VII/259), 25th (VII/264 –265), 26th (VII/274), 27th (I/149 –150 and VIII/368–369), 28th (VIII/370), 29th (IX/482), 30th (IX/485) and 31st (IX/485–486). Total 31. – al-Óaffàr (d. 811H/1408): 1st (VII/99–101), 2nd (VII/108–110), 3rd (VII/111–112), 4th (VII/114), 5th (VII/115–116), 6th (VII/136), 7th (VII/150), 8th (VII/150–151), 9th (VII/151), 10th (VII/ 151–152), 11th (VII/199–200), 12th (I/162) and 13th (I/331–334). Total 13. – al-Shà†ibì (d. 790H/1388): 1st (VII/101–102), 2nd (VII/102, no 95), 3rd (VII/102–103 and IX/252), 4th (VII/105–108) and 5th (VII/110-111).13 Total 5. – Ibn ' Allà q (d. 806H/1404): 1st ( VII/112–113) and 2nd (VII/207–209). Total 2. – Ibn Juzayy (693–741H/1294–1340): VII/67–69. Total 1. – Abù-l-Óasan sìdì 'Alì [b.] Ma˙sùd: VII/332. Total 1. 3.6. 9th/15th century (73 fatàwà, 6 fuqahà") – al-Mawwàq (d. 897H/1492): 1st (VII/124–125), 2nd (VII/125–126), 3rd (VII/126), 4th (VII/126–127), 5th (VII/127), 6th (VII/127–128), 7th (VII/128), 8th (VII/128–129), 9th (VII/129), 10th (VII/129), 11th (VII/130), 12th (VII/130-131), 13th (VII/131), 14th (VII/132), 15th (VII/132–133), 16th (VII/133), 17th (VII/133–134), 18th ( VII/134), 19th ( VII/134 –135), 20th ( VII/147–148), 21st (VII/148–149), 22nd (VII/149), 23rd (VII/149–150) and 24th (VII/182–183). Total 24.
13 The last two legal queries are simply introduced by ‘Abù Is˙àq was asked’ (su’ila Abù Is˙àq).
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– al-Saraqus†ì (784 –865H/1382–1461): 1st (VII/120-121), 2nd (VII/121–122), 3rd (VII/138–139), 4th (VII/139), 5th (VII/139), 6th (VII/139–140), 7th (VII/140), 8th (VII/140-141), 9th (VII/141), 10th (VII/142), 11th (VII/143),14 12th (VII/143–144), 13th (VII/160 and VII/162), 14th (VII/161), 15th (VII/161–162), 16th (VII/162), 17th (VII/162), 18th (VII/163), 19th (VII/163), 20th (VII/164), 21st (VII/164), 22nd (VII/164–165), 23rd (VII/165) and 24th (I/158). Total 24. – Ibn Siràj (d. 848H/1444):15 1st (VII/118–119), 2nd (VII/119), 3rd (VII/119–120), 4th (VII/120), 5th (VII/137–138), 6th (VII/138), 7th ( VII/153), 8th ( VII/153–154), 9th ( VII/154), 10th (VII/227–228),16 11th (VII/228), 12th (I/162–163) and 13th (VIII/235). Total 13. – Ibn ManΩ ù r, Abù ' Amr Mu˙ ammad b. Mu˙ ammad (d. 887H/1482–1483 or 888–889H/1484–1485): 1st (VII/122–123), 2nd (VII/123), 3rd (VII/123–124),17 4th (VII/145–146), 5th
14
The legal questions found between pp. 139–143 follow one introduced by ‘one of them was asked’ (su"ila ba'∂u-hum). Its authorship is thus doubtful. However, because of its context and following the view of V. Lagardère, Histoire, pp. 265–266, no 186–192, they were attributed to al-Saraqus†ì. 15 Although the onomastical index does only mention one jurist by this name (Mi'yàr, XIII, p. 344), there are two authors bearing this nisba and, moreover, with the same kunya (Abù-l-Qàsim): one from Córdoba of the 11th century, Abù-l-Qàsim Siràj b. Mu˙ammad b. 'Abdallàh b. Siràj (Makhlùf, Shajarat al-nùr, I, p. 118, no 332) and another from Granada of the 15th century, Abù-l-Qàsim Mu˙ammad b. Siràj (Makhlùf, Shajarat al-nùr, I, p. 248, no 893). Identifying which one a text is referring to is difficult in most cases, but not always: sometimes it is clearly stated which one a text deals with (Mi'yàr, I, p. 177 and VII, p. 227: su"ila al-shaykh almuftì bi-˙à∂irat Gharnà†a Abù-l-Qàsim b. Siràj ) or it is possible to deduce which either thanks to some detail about him -e.g. when it is reported su’ila qà∂ì-l-jamà'a Abù-lQàsim b. Siràj, in al-Wansharìsì, Mi'yàr, VI, p. 71—or through his association with another jurist, as in a fatwà where both Ibn 'A††àb and Ibn Siràj are questioned (Mi'yàr, X, p. 322). However, in most cases this is not possible as the text simply reads ‘Ibn Siràj was asked’ (su"ila Ibn Siràj ). In spite of the obvious risk, I have resolved to attribute a fatwà to Ibn Siràj from Granada, that is Abù-l-Qàsim Mu˙ammad b. Siràj (d. 848H/1444) when it is virtually impossible to ascertain its authorship and in recognition of the fact that this author’s name appears more frequently in the compilation. 16 This and the following legal query are addressed to al-shaykh al-muftì bi-˙à∂irat Gharnà†a Abù-l-Qàsim b. Siràj. 17 These three legal queries are addressed, without further details, to Ibn ManΩùr. Although its authorship cannot be established for sure, the fact that they are included between texts written by al-Saraqus†ì and al-Mawwàq has led me to believe that they can be attributed to Abù 'Amr b. ManΩùr from Granada. The same opinion can be found in Mª I. Calero, ‘Afectación’, 161, footnote.
inventory and breakdown of
FATÀWÀ
467
(VII/156–158), 6th (VII/158), 7th (VII/158–159) and 8th (VII/183).18 Total 8. – Ibn Fatù˙ (d. 867H/1462): 1st (VII/118), 2nd (VII/152) and 3rd (VII/152–153). Total 3. – al-Minthùrì (d. 834H/1431): VII/152. Total 1. – Possibly Nasrid (8):19 1st (VII/138, su"ila ba'∂u-hum), 2nd (VII/139), 3rd (VII/144 and V/37),20 4th (VII/145), 5th (VII/183–184),21 6th, 7th and 8th (VII/184–185).22 3.7. Unidentified (15 fatàwà, 3 fuqahà") – Individual: Abù Ibràhìm al-Andalusì (4): 1st (VII/224–225), 2nd (VII/225–226), 3rd (VII/226) and 4th (VII/226–227); Abù-l-Óasan
18 Like the first three, this legal question is simply addressed to Ibn ManΩùr. I believe, though, that it can be attributed to Abù 'Amr b. ManΩùr for two reasons: firstly, the previous one (pp. 182–183) is addressed to al-Mawwàq and, secondly, although the following one is ambiguous (su"ila ghayru-hu), the next (p. 184) tackles a case concerning a quarter of the village of Vélez (Balash), in Malaga, thus revealing that the context is the Nasrid period. The same opinion can be found in Mª I. Calero, ‘Afectación’, 161, footnote. 19 All these texts are placed within the context of the sizeable group of legal queries addressed to Nasrid authors, the reason why I include them in this section. In the tables and graphs they have been included within those belonging to the 15th century. 20 There are a number of reasons suggesting that this query is addressed to a Nasrid author. In this version of volume VII it is introduced with the expression ‘another jurist was asked’ (su"ila ghayru-hu) and Lagardère, V., Histoire, 267, no 194, attributes it to al-Saraqus†ì. In the version recorded in volume V, p. 37, however, it might be attributed to Abù 'Abdallàh Mu˙ammad b. al-Ji'dàlla (Granada) who is the recipient of the previous two. The fact that in the second version it is addressed to an author from Granada supports my idea of attributing it to a Nasrid author in the version recorded in volume VII. The version in volume V, moreover, appears within a context of legal questions addressed to other Nasrid authors (al-Saraqus†ì, Ibn ManΩùr, al-Mawwàq). 21 Though introduced with the formula su"ila ghayru-hu, this legal query can be set in a Nasrid context; the fatwàs located immediately before it are addressed to al-Mawwàq (pp. 182–183) and Ibn ManΩùr (p. 183); the next (p. 184) is not addressed to anyone in particular but deals with an issue regarding an ablutions hall located in a quarter of the town of Vélez/Balash (Malaga), most of which are addressed to Nasrid jurists. 22 Of the three, at least the first one (su"ila 'an rajul muqaddim 'alà a˙bàs dàr alwu∂ù" bi-raba∂ Balash etc.) can be set, with almost complete certainty, in a Nasrid context due to the fact that the town of Velez is clearly mentioned. The other two are probably also Nasrid but this cannot be corroborated. V. Lagardère, Histoire, p. 286, no 261 and 262 attributes two of them to Ibn ManΩùr (Granada).
468
appendix ii
al-'Àmirì (2):23 1st (VII/159) and 2nd (VII/159–160); Ibn al'A††àr24 (1): VII/437. Total 7. – Córdoban fuqahà": 1st (VII/66 and al-Sha'bì, 151, no 194, su"ila ba'∂ fuqahà" Qur†uba), 2nd (VII/220-221, su"ila fuqahà" Qur†uba), 3rd (VII/425–426, su"ila ba'∂ aß˙àb Ibn Zarb) and 4th (VII/435–436 and al-Sha'bì, 125, no 125, su"ila fuqahà" Qur†uba). Total 4. – Andalusi fuqahà": 1st (VII/218–220, su"ila shuyùkh al-Andalus) and 2nd (VII/329, su"ila ba'∂ shuyùkh al-Andalus). Total 2. – Anonymous: 25 1st (VII/456, su"ila ba'∂ al-shuyùkh) and 2nd (VII/456–457, su"ila ba'∂u-hum). Total 2.
23 It is found within the context of a significant number of fatàwà by Nasrid authors (between pp. 89–165). Lagardère, V., regards him as Andalusian but does not provide the date of death. 24 In the onomastic index of the Mi'yàr there are two jurists bearing the same nisba: Abù 'Abdallàh Mu˙ammad b. A˙mad and 'Umar (Mi'yàr, XIII, p. 351). Lagardère, V., Histoire, pp. 121–122 suggests Abù 'Abdallàh from Qayrawàn (d. 399H/1008) but another Ibn al-'A††àr is mentioned afterwards whose date of death is given as having taken place in 430H/1038–1039 and another Andalusian ‘contemporaneous with Ibn Zarb’. 25 I believe that these two legal queries must be attributed to Andalusian jurists judging from the context in which they are set: from p. 421 to p. 469, the overwhelming majority of texts were written by Andalusian authors.
APPENDIX III
TABLES OF DATA
Introduction I present here several tables where part of the corpus of jurisprudence on which my research is based is broken down. The location of each text as well as the type of information it furnishes (author of the fatwà, the asset given in donation, the beneficiary and, depending on the character of the latter, the type of donation, drawing a distinction between family and charitable donations) are recorded here. The compilations used are al-Wansharìsì’s Mi'yàr (202 fatàwà), Ibn Rushd’s Kitàb al-fatàwà (16 fatàwà), 'Iyà∂’s Madhàhib al-˙ukkàm (4 fatàwà) and al-Sha'bì’s al-A˙kàm (5 fatàwà). They amount, therefore, to 227 fatàwà in total, those on which I have relied in the course of this research to provide the figures and percentages already indicated. I have adopted the following criteria in order to compile these tables: a. Only rulings by Andalusian authors are recorded. b. Only fatàwà including information on the asset given in donation and the beneficiary, or at least one of these two elements, are recorded here. The fatàwà found in the seventh volume of the Mi'yàr issued on cases other than those involving a˙bàs are then excluded, as well as all those of a theoretical or legal nature and others which make no allusion to the asset donated or its beneficiary (on this issue see Chapter 3). c. In the tables compiled with data gleaned from the works of Ibn Rushd, 'Iyà∂ and al-Sha'bì only fatàwà not included in the Mi'yàr have been recorded.
appendix iii
470
Fatàwà from the Mi'yàr (202 in total) Location
Jurist
I/149–150; VIII/ 368–369 I/158 I/162 I/162–163 I/331–332
Ibn Lubb al-Saraqus†ì al-Óaffàr Ibn Siràj al-Óaffàr
I/382 V/37; VII/144 VI/246; VII/220; VII/477 VII/17–18 VII/59–60 VII/62–63 VII/64; VII/218; VII/424–425 VII/64–65; IX/399 VII/65-66 VII/66
Ibn al-Óàjj anonymous; al-Ji'dàlla Ibn Ibn Ibn Ibn
Good
Beneficiary
Type of donation
imàm mosque imàm mosque mosque imàm mosque readings for dead
charitable charitable charitable charitable
sons madrasa daughter daughter and son
private charitable private
fortress (˙ißn)
charitable
olive oil House field and trees
mosque mosque son
charitable charitable private
amlàk House a fourth of a house
daughters
private
man
private
cow’s milk maw∂i'
the poor a village mosque pious aim
charitable
olive trees
field; vineyard
Sahl amlàk Ni'ma Sahl 'aqàr Óammàd orchard ( janna)
Ibn Zarb; Ibn Da˙˙ùn
VII/67–69 VII/72 VII/75–76
Ibn Óabìb al-Qa††àn Córdoban fuqahà" Ibn Juzayy Ibn Lubb Ibn Ismà'ìl
VII/76; VII/105 VII/89–91
Adalusian fuqahà" Ibn Lubb
VII/91 VII/91–92
Ibn Lubb Ibn Lubb
VII/92–93 VII/93–94; VII/199; VII/259 VII/94
Ibn Lubb Ibn Lubb
VII/99–101
al-Óaffàr
charitable
vineyard
maw∂i'
main mosque’s khu††àb and shuyùkh
Ibn Lubb House house and orchard ( janna) field of mulberry trees
mosque celebration of Prophet’s birthday
private
charitable charitable charitable charitable
charitable charitable
tables of data
471
Table cont. Location
Jurist
VII/101–102 VII/102 VII/102–103
al-Shà†ibì al-Shà†ibì al-Shà†ibì
VII/103–104 VII/104 VII/104 VII/104–105 VII/108–110 VII/112 VII/112–113 VII/114
Ibn Lubàba Ibn Lubàba Abù Íàli˙ Abù Íàli˙ al-Óaffàr; Ibn 'Allàq Ibn Lubb Ibn 'Allàq al-Óaffàr
VII/115–116 VII/118 VII/118–119 VII/119 VII/119–120 VII/120 VII/120–121
al-Óaffàr Ibn Fattù˙ Ibn Siràj Ibn Siràj Ibn Siràj Ibn Siràj al-Saraqus†ì
VII/121–122 VII/122–123 VII/123 VII/123–124 VII/124–125 VII/125–126 VII/126 VII/126–127 VII/127 VII/128 VII/128–129 VII/129 VII/129 VII/130 VII/130–131
al-Saraqus†ì Ibn ManΩùr Ibn ManΩùr Ibn ManΩùr al-Mawwàq al-Mawwàq al-Mawwàq al-Mawwàq al-Mawwàq al-Mawwàq al-Mawwàq al-Mawwàq al-Mawwàq al-Mawwàq al-Mawwàq
VII/132 VII/132–133
al-Mawwàq al-Mawwàq
VII/133 VII/133
al-Mawwàq Andalusian students al-Mawwàq
VII/134
Good
trees horse house land olive trees land plot of land (maw∂i') zàwiya olive trees land land land 100 qadah of barley Qarya Qarya olive trees field field ( faddàn) shops Qarya half a house and half a vineyard field of olive trees
maw∂i'
Beneficiary
Type of donation
mosque imàm mosque celebration of Prophet’s birthday
charitable charitable
mosque daughter
charitable private charitable charitable private
mosque mosque celebration of Prophet’s birthday zàwiya Baza fuqarà"-l-waqt mosque mosque mosque mosque loan to peasants mosque Baza imàm mosque pious aim fortress Castril poor students mosque muezzin mosque mosque fortress 2 imàms Mosque
charitable charitable charitable
charitable charitable charitable charitable charitable charitable charitable charitable charitable charitable charitable
Mosque Castril Mosque
charitable charitable charitable
imàm mosque Castril
charitable
Fuqarà"
charitable
poor student mosque
charitable charitable
charitable charitable charitable charitable charitable charitable charitable
appendix iii
472 Table cont. Location
Jurist
Good
VII/134–135 VII/135–136 VII/136 VII/137–138 VII/138 VII/138 VII/138–139 VII/139 VII/139 VII/139–140 VII/140 VII/140–141
al-Mawwàq Ibn Rushd al-Óaffàr Ibn Siràj Ibn Siràj anonymous al-Saraqus†ì anonymous anonymous anonymous anonymous anonymous
VII/141 VII/142 VII/143
anonymous anonymous anonymous
field of olive trees
VII/143 VII/143–144 VII/145 VII/145–146 VII/146–147 VII/148–149 VII/149 VII/149-150
anonymous al-Saraqus†ì al-Saraqus†ì al-Saraqus†ì Ibn ManΩùr Ibn ManΩùr al-Mawwàq al-Mawwàq
mulberry tree
VII/150 VII/150-151 VII/151
al-Óaffàr al-Óaffàr al-Óaffàr
VII/151–152 VII/152 VII/153 VII/154 VII/157
al-Óaffàr Ibn Fattù˙ Ibn Siràj Ibn Siràj Ibn Lubb
field faddàn shop fortress Arjona Field Tree forest
VII/158 VII/158–159 VII/159 VII/159–160 VII/160 VII/161–162
Ibn Lubb Ibn ManΩùr al-'Àmirì al-'Àmirì al-Saraqus†ì al-Saraqus†ì
VII/162 VII/162 VII/162 VII/163
al-Saraqus†ì al-Saraqus†ì al-Saraqus†ì al-Saraqus†ì
field of olive trees Field Field Dimna field Vélez oil mill in Vélez
oil mill and dimna dimna
amlàk House
gold coins
Beneficiary
Type of donation
mosque mosque mosque fortress (˙ißn)
charitable charitable charitable charitable
mosque mosque mosque Reader tombs mosque ˙ißn Zalía defence of Muslims Sons mosque main mosque Vélez
charitable charitable charitable charitable charitable charitable charitable
mosque defence of Vélez ràbi†a Vélez mosque mosque reader tombs ablutions hall Vélez graveyard main mosque mosque
charitable charitable charitable charitable charitable charitable charitable
mosque wayfarers mosque Cútar mosque main mosque Vélez mosque imàm village mosque mosque mosque ransoming of captives mosque
jug of water Field
mosque ishfà'
private charitable charitable
charitable charitable charitable charitable charitable charitable charitable charitable charitable charitable charitable charitable charitable charitable charitable charitable charitable charitable
tables of data
473
Table cont. Location
Jurist
VII/163 VII/164 VII/164–165 VII/181–182 VII/182–183 VII/183–184 VII/184
al-Saraqus†ì al-Saraqus†ì al-Saraqus†ì Ibn Rushd al-Mawwàq anonymous anonymous
Andur
VII/184–185 VII/198–199 VII/199 VII/199–200 VII/200–201 VII/201; VII/259 VII/201 VII/202–203 VII/203–204 VII/204 VII/206–207; IX/475–476
Ibn ManΩùr Ibn Lubb Ibn Lubb al-Óaffàr Ibn Lubb
Shop House †iràz faddàn Oil
VII/207–209
Ibn 'Allàq
màl House
VII/226–227 VII/227–228
Ibn Abì Zamanìn Ibn al-Fakhkhàr Córdoban fuqahà" Ibn Lubb Abù Ibràhìm al-Andalusì Abù Ibràhìm al-Andalusì Abù Ibràhìm Ibn Siràj
VII/228 VII/228 VII/229–230 VII/234–235 VII/264–265 VII/270–272 VII/277–278
Ibn Siràj Ibn al-Óàjj Ibn al-Óàjj Ibn al-Ni'ma Ibn Lubb anonymous some fuqahà"
VII/218; VII/431–432 VII/218 VII/220–221 VII/223 VII/225–226 VII/226
Ibn Ibn Ibn Ibn Ibn Ibn
Lubb Lubb Lubb Lubb Lubb Lubb
Good
Horse faddàn maw∂i'
Oven faddàn Oven half a maw∂i'
Beneficiary
Type of donation
mosque mosque mosque in God’s name the poor mosque ablutions hall quarter of Vélez
charitable charitable charitable charitable charitable charitable charitable
mosque ràbi†a pious aim mosque
charitable charitable charitable charitable charitable
mosque ràbi†a sons mosque mosque reader of ˙adìths in main mosque ransoming of captives
charitable charitable private charitable charitable charitable
daughter
private
the poor (∂u'afà" ) son
charitable
mosque
charitable
mosque daughter library of main mosque reader sons mosque graveyard students sons a'qàb
charitable private
charitable
Horse galleries (saqà"if ) and houses House
Field Books
field (makàn) properties (amlàk) house
private
charitable charitable private charitable private charitable charitable private
appendix iii
474 Table cont. Location
Jurist
VII/281–285 VII/423 VII/423 VII/423–424 VII/425–426 VII/426–427 VII/432 VII/432 VII/435 VII/436 VII/436VIII/175 VII/437–438 VII/438–439 VII/439 VII/439–440
anonymous Ibn Zarb Ibn Zarb Ibn Zarb Ibn Zarb Ibn Zarb Ibn al-Makwì Ibn al-Makwì Ibn al-Makwì Ibn al-Makwì
VII/440 VII/440 VII/440–441 VII/441 VII/441–442 VII/442 VII/442–443 VII/443 VII/443 VII/444 VII/446 VII/446–451 VII/451–452; VIII/288 VII/452–454 VII/454–455 VII/455 VII/455–456 VII/456 VII/456–457 VII/457–458 VII/458
Good house horse
Beneficiary
Type of donation
sons descendants
private charitable private
son sons sons poor relatives mosque
private private private private private charitable
part of a house house properties (amlàk) land field field
fuqahà" Ibn Sahl Ibn 'Attàb Ibn 'Attàb Ibn Rushd; Ibn al-Óàjj Ibn Hamdìn; Ibn Rizq Aßbagh b. Mu˙ammad Aßbagh; Ibn al-Óàjj; Ibn Rushd Ibn Rushd Ibn al-Óàjj Ibn al-Óàjj Ibn al-Óàjj Ibn al-Óàjj Ibn al-Óàjj Ibn al-Óàjj Ibn al-Óàjj Córdoban fuqahà"
field field orchard ( jinàn) houses
Ibn Rushd Ibn Rushd Ibn al-Fakhkhàr Ibn 'Attàb; Ibn al-Qa††àn Ibn al-Óàjj; Ibn Rushd Ibn al-Óàjj anonymous Ibn Rushd Ibn Rushd
shops fields
building (rab' )
sons
private private
qawm
private
orchard ( janna) Milk sons
house
private
sons sons mosque son sons
private private private private charitable private private
part of a house orchards ( jannàt)
fields (ußùl)
private the poor (masàkìn)
charitable charitable
Field
mosque the infirm graveyard graveyard graveyard
charitable charitable charitable
tables of data
475
Table cont. Location
Jurist
VII/459 VII/459–460 VII/460 VII/460–461 VII/461; IX/406 VII/461–462 VII/462 VII/462–463 VII/463–464 VII/464-465 VII/465 VII/465–466 VII/466–467 VII/467–468 VII/468–469 VII/473 VII/477 VII/477–478 VII/481
Ibn Ibn Ibn Ibn
Rushd Rushd Rushd Rushd
Ibn Ibn Ibn Ibn Ibn Ibn Ibn Ibn Ibn Ibn Ibn Ibn Ibn Ibn Ibn
Rushd Rushd Rushd Rushd Rushd Rushd Rushd Rushd Rushd Rushd Rushd 'Attàb 'Attàb 'Attàb Sahl
VIII/171–172 VIII/235 VIII/370 IX/252
Ibn al-Óàjj Ibn Siràj Ibn Lubb al-Sha†ibì
IX/482 IX/485 IX/589 X/369–370
Ibn Ibn Ibn Ibn
Lubb Lubb al-Óàjj Hamdìn
Good faddàn
Beneficiary
Type of donation
graveyard sons mosque
charitable private charitable private
mosque sons
charitable private private private private charitable charitable charitable charitable
plot of land House Mill plot (˙aql ) amlàk
2 hostels
Field ∂a'ya Field Oven Field
field orchard ( jinan)
sons umm walad mosque mosque mosques border graveyard graveyard mosque ˙ißn of Toledo poor relatives the infirm in Cordova
charitable charitable private charitable
mosque
charitable
celebration of Prophet’s birthday mosque 2 muezzins
charitable charitable charitable
daughter
private
Fatàwà from Ibn Rushd’s compilation (Total 16) Ed. al-Talìlì,
Ed. al-Tajkànì,
Good,
I/164–165 no 5, I/290–293 no 55,
I/145–146 no 5, I/235–237 no 50,
I/313–314 no 66,
I/252–253 no 61,
horse,
I/345–349 no 82, I/401 no 90, I/469–470 no 96, I/471–472 no 98,
I/275–279 no 77, I/331 no 84, I/40 no 90, I/406 no 92,
∂ay'a
Beneficiary
Type of donation
daughter, private ∂u'afà" Banì Is˙àq private private individual, charitable son
private
daughter
private
funduq
appendix iii
476 Table cont. Ed. al-Talìlì, I/592–598 I/620–621 I/621–624 I/624–625 I/667–668
no no no no no
132, 146, 147, 148, 154,
Ed. al-Tajkànì,
Good,
Beneficiary
Type of donation
I/520–523 no I/541–543 no I/543–545 no I/546–548 no I/591 no 132
Oven
mosque daughter son
charitable private private private
daughter son
private private
sons sons daughter
private private private
121 124 125 126
Janna
Baths (˙ammàm) II/728–733 no 168, I/650–657 no 143 Milk II/959–960 I/850 house and field II/1034–1037, I/910–912 property III/1634–1635 funduq no 650
Fatàwà from al-Sha'bì’s compilation (Total 5) Jurist
Location
Good
al-Sha'bì several
94–96 no 56 117 no 105
Ibn Zarb Ibn al-Fakhkhàr Mu˙ammad b. Mughìth
143 no 172
orchard ( janna) daughters house and orchard daughters field
149–151, no 192 152–154 no 196
qarya
Beneficiary
Type of donation private private
son
private
sons
private
Fatàwà from 'Iyà∂’s compilation (Total 4) Location
Jurist
Good
Beneficiary
Type of donation
193–197
Ibn Ibn Ibn Ibn Ibn Ibn Ibn
houses, shops, oven
sons
private
Field
sons
private
mosque al-Qa††ànìn (Ceuta)
charitable
197–198 198–199 205–207
Rushd; al-Óàjj Rushd; al-Óàjj Rushd; al-Óàjj Óammàd
part of hostel Shops
APPENDIX IV
LOCATION OF IBN RUSHD’S FATÀWÀ
Ed. al-Talìlì (1987)
Ed. al-Tajkànì (1992) Mi'yàr and other sources
I/164–165, no 5 I/202–205, no 30 I/231, no 42 I/262–269, no 46 I/290–293, no 55 I/311–313, no 65 I/313–314, no 66 I/320–322, no 70 I/325–329, no 72 I/345–349, no 82 I/355–357, no 87 I/401, no 90 I/469–470, no 96 I/471–472, no 98 I/592–598, no 132 I/620–621, no 146 I/621–624, no 147 I/625–625, no 148 (?) I/667–668, no 154 II/728–733, no 168 II/959–960, no 275 II/1049–1050, no 310
I/145–146, no 5 I/174–177, no 30 I/189, no 37 I/214–219, no 41 I/235–237, no 50 I/251–252, no 60 I/252–253, no 61 I/256–258, no 65 I/260–264, no 67 I/275–279, no 77 I/285–287, no 81 I/331, no 84 I/405, no 90 I/406, no 92 I/520–523, no 121 I/541–543, no 124 I/543–545, no 125 I/546–548, no 126 I/591, no 132 I/650–657, no 143 I/850, no 224, II/922–923, no 241
II/1050–1051, no 311 II/1077–1079, no 324 II/1080–1081, no 325 II/1114–1115, no 344 II/1120–1130, no 349 II/1139, no 353 II/1207–1209, no 387 II/1122, no 394 II/1244, no 408 III/1267–1268, no 418 III/1268, no 419 III/1269, no 420
II/923–924, no 241 II/946–948, no 262 II/948–950, no 253 II/981, no 265 II/986–996, no 270 II/1004–1005, no 274 II/1063–1065, no 290 II/1076–1077, no 293 II/1076–1077, no 293 II/1133–1134, no 304 II/1134, no 304 II/1135, no 304
Mi'yàr, VII/135–136 Mi'yàr, VII/452–453
Mi'yàr, VII/461, IX/406; M. al-˙ukkàm, 202–203 M. al-˙ukkàm, 197–198 Mi'yàr, VII/460–461 Mi'yàr, VII/462 Mi'yàr, Mi'yàr, Mi'yàr, Mi'yàr, Mi'yàr, Mi'yàr, Mi'yàr,
VII/462–463 VII/463–464 VII/468 VII/469 VII/464–465 VII/465–466 VII/465
478
appendix iv
Table (cont.) Ed. al-Talìlì (1987) II/1197–1199, no 312; III/1340–1343, no 467 III/1358, no 479 III/1359, no 480 III/1390–1391, no 499 III/1391–1392, no 500 III/1567, no 577 III/1567–1568, no 578 III/1568–1569, no 579, III/1569–1571, no 580 III/1571–1573, no 581 III/1573–1574, no 582 III/1591–1592, no 601 III/1634–1635, no 650
Ed. al-Tajkànì (1992) Mi'yàr and other sources II/1247–1253, no II/1213, no 315 II/1213–1214, no II/1239–1240, no II/1240–1241, no
324 315 322 322
Mi'yàr, Mi'yàr, Mi'yàr, Mi'yàr, Mi'yàr, Mi'yàr, Mi'yàr,
VII/466–467 VII/459–460 VII/460 VII/458–459 VII/459 VII/441 VII/455–456
Mi'yàr, Mi'yàr, Mi'yàr, Mi'yàr, Mi'yàr,
VII/440–441 VII/439–440 VII/75–76 VII/181–182 X/445–446
APPENDIX V
GRAPHS
Figure 1.—Fatàwà and jurists on pious endownments in al-Wansharìsì 80
73
70 60
53
50
Fatàwà Jurists
50 40 30
23
21
20 10
9 4 2
5
9th century
10th century
5
6
6
12th century
14th century
15th century
0 11th century
Figure 2.—Finalities of donations through the juridical corpus (cf. Appendix II) 89
90 80 70
60
60 50 40 30 20
9
10
8
7
0 Private
Mosques
Charity
Jihàd
Fuqarà"
Educational
5
appendix v
480
Figure 3.—Pious endowments in La Alpujarra (Granada) following the Libro de Habices from 1501 (source C. TRILLO, La Alpujarra, 385)
000 Faqihs Mosques Rabita Poors & Prisioners Civil works Feasts & miscelaneous External Institutions
500 000 500 0 Marshes
Rootstocks
Trees
Figure 4.—Proceeds of the pious endowments in La Vega de Granada following the Libro de Habices from 1503 (data from P. HERNÁNDEZ BENITO, La Vega de Granada, 57)
750.000
800.000 700.000
maravedís
600.000 500.000 365.230 400.000 300.000 200.000 100.000 0 Churches (mosques)
Crown (charity)
Cabildo (madrasaas & civil works)
330.000
graphs
481
Figure 5.—Proceeds of Granada’s charity pious endowments following the Libro de habices from 1503 (data from P. HERNÁNDEZ, La Granada, 57)
250.000
226.479
maravedís
200.000 150.000 100.000 46.566
36.340
39.737
50.000
15.193 913
0 Poors
Hospitals Teaching
Private waqfs
“Dar alguado” & graves
Farms
Figure 6.—Rural real estate of our churches in villages of Granada following the Libro de Habices from 1547–1548 (data from M. ESPINAR MORENO, see References)
120 Marshals (1 marshal = 528,42 m2
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Figure 7.—Urban real estate of the churches of four villages of Granada following the Libro de Habices from 1547–1548 (data from M. ESPINAR MORENO, see References)
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S. Cecilio Santiago Santa Maria M. S. Matías Santa Ana S. Gregorio S. Escolástica S. Justo S. Juan de los Reyes S. José S. Miguel S. Nicolás Sta. Isabel S. Luis S. Lorenzo S. Ildenfonso Sta. Maria de la Alhambra
Figure 8.—Urban real estate of the churches of four villages of Granada following the Libro de Habices from 1527 (data from M.C. VILLANUEVA RICO, Casas, mezquitas, Madrid 1966; resumed by Ma M. GARCÍA GUZMÁN, “Bienes, rentas”, 103–106)
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APPENDIX VI
TEXTS IN TRANSLATION
Introduction I include here a selection of texts on issues related to pious endowments. I have endeavoured to select a group whose themes are sufficiently wide and varied so as to show the enormous complexity and wealth of nuances that the study of this Islamic institution affords. As for their provenance, they are all legal texts, with the exception of an engraving found in Seville’s Archaeological Museum. Thus, texts written by al-Khaßsàf (9th century), Sa˙nùn (9th century), Ibn al-'A††àr (10th century), Ibn Mughìth (11th century), Ibn Rushd (11th12th centuries), 'Iyà∂ (12th century), Ibn 'Abdùn (11th–12th centuries) and al-Wansharìsì’s compilation (15th century) are included here. In order not to make this Appendix too lengthy, moreover, texts appear without any critical apparatus. Sometimes, however, the Arabic concept used is given between parentheses so that the specialist reader can have a more precise idea of the original meaning. 1: Traditions on the first waqf Abù Bakr [al-Khaßßàf] notes: I have found discrepancies regarding the earliest act of alms-giving (ßadaqa) in Islamic history. To some, they were the alms (ßadaqàt) given by the Messenger of God consisting of seven orchards and, later on, the alms (ßadaqa) made by 'Umar b. al-Kha††àb in Thamgh on the occasion of the Prophet’s return in the seventh year of the Islamic era (hijra). Mu˙ammad b. 'Umar al-Wàqidì related to me: 'Utba b. Jubayra, as transmitted by al-Óusayn b. al-Ra˙màn b. 'Amr b. Sa'd b. Mu'àdh, told me that when he made enquiries about the earliest ˙ubs in Islam, someone replied that, according to the view of the followers (anßàr), it was the alms (ßadaqa) made by the Messenger of God. Íàli˙ b. Ja'far, quoting al-Masùr b. Rifà'a, reported to me that Ibn Ka'b asserted: the earliest alms (ßadaqa) in Islam was the waqf set by the Prophet with his own assets; I said to Ibn Ka'b: people say that 'Umar b. al-
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Kha††àb’s alms (ßadaqa) is the earliest, and he retorted: Mukhayrìq was slain at the battle of U˙ud, thirty-two months after the Prophet had emigrated, and stipulated in his will that, were he to pass away, his assets were to be passed on to the Prophet who took possession of them and gave them away as ßadaqa. This took place before 'Umar donated [the plot of land known as] Thamgh as ßadaqa when the Prophet returned from Khaybar in the seventh year of the hijra. Mu˙ammad b. 'Umar al-Wàqidì reported to me, on the authority of 'Utba b. Jubayra, who was quoting al-Óusayn b. 'Abd al-Ra màn b. 'Amr b. Sa'd b. Mu'àdh: I was asked about the earliest ˙ubs in Islam and the émigrés (muhàjirùn) said that 'Umar b. al-Kha††àb’s ßadaqa was the earliest asset established as a ˙ubs. When the Messenger of God arrived he found some very fertile plots of land and uncultivated land whose owners had left Medina earlier on and after Mu˙ammad’s arrival, leaving behind a vast territory, partly barren and partly sown, which they called wàdì al-khashàshayn. The Messenger of God donated part of it to 'Umar b. al-Kha††àb, [the land known as] Thamgh, and the latter purchased wells which he added to the assets given away by the Messenger of God to a Jewish community, a commendable act. 'Umar said to the Messenger: ‘I own an asset to which I am very attached’, and he replied ‘have it immobilised and devote its fruits to pious aims’, and 'Umar did so. Mu˙ammad b. 'Abdallàh b. 'Umar related to me, having heard it from Nàfi' who was quoting Ibn 'Umar, that Thamgh was the earliest ßadaqa in Islam. Al-Khaßßàf, A˙kàm al-awqàf, pp. 4–5 2: Founding a private endowment Setting-up of a foundation in favour of the [children], both minor and of mature age -if you wish, you can record this at the beginning. [Variant] of the drawing-up of a foundation with the status of family trust in perpetuity [similar] to that previously [drafted]. If you want, you can say: ‘X, son of Y al-Fulani, in good health and with full use of his capacities, requires testimony’, or, if you prefer, you can also say: ‘The witnesses of the present document [testify] that [X], in good health and with full use of his capacities, in order to ingratiate himself with God -praise and glory be upon Him- by means of good deeds and thus please his Lord through pious supererogatory actions, has immobilised in favour of his sons: Y,
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adult and responsible for his own actions, Z, W and V, all minors and still under his custody, the whole house located in such a town, or in the capital Córdoba, in such a place in relation to the site of the mosque, and whose boundaries are this and that. Or everything comprised within his properties, including the usufruct of all its uses and all kinds of benefits found in such a village, in such a district, or in such a province, together with all its houses, threshing floors, lands -both under cultivation and barren-, their fruits, water for irrigation and all their rights up to the outermost district (˙awz) and the furthest boundaries, including whatever properties belonging to him (178) and comprising the districts (a˙wàz) of neighbouring villages abutting his village. X, the founder, does not retain any part for his own use of that which has been described above in the present document, nor any right, property or usufruct, be it a little or a lot, but instead has immobilised [everything] in favour of his sons, mentioned above, and their children, and the children the latter may sire’. If you do not wish to include children alongside fathers, you will say: ‘Further on, to their children after them’. When the latter pass away, the foundation will be passed on to the neediest relatives of the founder, both from his father’s and his mother’s sides, or just from his father’s side of the family. When they pass away or none among them is in need any more, the harvest will be divided into three parts: one [will be used] to purchase beasts of burden to carry [the impedimenta of those who] are engaged in holy war to serve God -praise and glory be upon Him-, another part will be devoted to ransom captives in enemy territory—may God ravage it—and the [third] part to purchase slaves so that they can be freed [later on], or to erect fortresses along the borders of the Muslim world. Unless Muslims are afflicted by extreme need and the harvest coincides with a year of famine, in which case it would be distributed among the needy and destitute. As soon as the people’s situation improves and straightens up after some years, the harvest will [be divided] once again in the three parts mentioned above, in perpetuity and for as long as days follow nights. This foundation cannot be modified and will be left as it is, nor will it be devoted to a purpose other than the one originally selected until God—praise and glory be upon Him—inherits it back; its main tenets and conditions will be rigorously adhered to. He is the one who shall inherit the earth and everything on it; he is the best of heirs. Whoever strives to change or alter anything in this [founda-
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tion], God will judge, confront and take revenge against him. Whoever is guilty of wrongdoing will soon learn how quickly they can fall into ruin! X, the founder, is aware of the value and number of assets comprised in this foundation and there are not any circumstances that may render it null, no retraction or other choice. The founder X hands all this foundation over to his son, mentioned above, adult and responsible for his own actions, so that he can take possession of it on his own behalf and on behalf of his aforementioned brothers, still minors, and all those to whom it may be handed over (179) after them. [X] has vacated it in favour of his [son] and hands it over to him. The latter accepts it from him and takes exclusive possession of it; it is placed under his ownership as his father delegates to him [when undertaking] the [corresponding] take-over in favour of his underage brothers. [The witnesses, whose declaration was recorded below confirms the validity of the present document], testify in favour of the founder X, son of Y, [with a testimony susceptible to appeal] against him, regarding what has been said about him in the present deed, once he confirms that he has assimilated and understood it: that they have witnessed the surrendering of all the mentioned foundation by the founder X to his son Y and how [X] had vacated it in his favour. They have certified this and witnessed how Y, the beneficiary, took possession of the above foundation for his own use and that of [his brothers] whose names are recorded in the present deed. The founder X was in good health and in full use of his faculties at the time the take-over took place. [The witnesses] know that the founder X owned the property used for this foundation mentioned in the present document. As far as they know, it has always been under his ownership up to the moment when the foundation charter was drawn up. [Drawn up] in the month of, in the year . . . Several copies of this document will be issued. Were the witnesses not to know the property, this fact will be omitted in the contract. Jurisprudence When all the beneficiaries are underage, or daughters who are still virgins, the father will take possession [of the foundation] on behalf of his [children]; in this case the testimony and the proclamation of the foundation will suffice and no witnesses’ notification will be
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required with respect of the property or the house. Unless the father resides in the house, in which case the witnesses must know the house so that they can check that he and his family have abandoned it together with their belongings. [Only] then, will its take-over by the children who are still minors be effective. When one of the beneficiaries is an adult, the father will not take possession of the [house] on his behalf since the latter is an adult and responsible for his own actions. [In this case,] the father must hand all of the foundation over to his adult [son] and the latter will take possession of it also on behalf of the underage [children]. It is not admissible that the father be allowed to take possession on behalf of his underage [children]. If this happens, that the eldest son takes possession of the property for his exclusive use, or that the father does it on behalf of underage [children], the foundation would be annulled in accordance with that reported by Ibn al-Qàsim from Màlik, may he rest in peace. Ibn al-'A††àr, Kitàb al-wathà"iq, pp. 177–179 3: Jurisprudence on private endowments If it was said: ‘he established a foundation in favour of his children X, Y, Z and W (his daughter) and of the latter’s children and their children’s descendants’, this includes both grandchildren and their fathers but it does actually mean the fathers (204) as they gradually pass away . . ., in it minors until they reach adulthood and require that which grown-ups no longer need. Minors do not receive [the same] as grown-ups unless [the founder] had stipulated in his foundation deed that all must receive the same amount, or that a male is to receive twice as much as a female as, in this case, the harvest will be split between adult and underage children following the quota set by the founder. According to the views held by Màlik and his school, daughters’ offspring are not included when it comes [to enjoying the usufruct] of this foundation for he draws a parallel between the formula ‘the progeny of my offspring’ and ‘my offspring’s descendants or their descent’, with the result, he believes, that daughters’ offspring are not entitled to anything. Among us, fatàwà require that the expression [-uttered by the founder-] ‘their children, or their children X and Y, or in favour of the latter’s children or offspring’ does include daughters’ children as his daughters are his children and the children of his daughters are his children’s children. It would
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not be the same case were he to say: ‘this in favour of my children’ as this comprises his sons and daughters and his children’s sons as they are his children’s children, without including his daughters’ children as the latter are not his descendants but someone else’s. The poet recited (†awìl verse): ‘Our sons’ children are also our children but, with regard to our daughters, their children are sired by distant men’ Màlik -may God’s pity be upon him—argued that when a man said ‘offspring and my offspring’s offspring’, this expression included daughters’ progeny, following God’s words—may He be exalted and praised—: ‘God [commands] you to leave something in inheritance to your progeny: Leave to a man twice as much as what you leave to a woman’. The imàms agree that this does not refer to daughters’ offspring. Such an argument, furthermore, proves that daughters’ children are to be excluded when a founder utters: ‘my offspring’, without further comment. But when he says: ‘my offspring’s offspring’, daughters’ children are their offspring as well and hence included in the foundation, in accordance with the founder’s words recorded in a document. The qà∂ì Mu˙ammad b. Is àq b. al-Salìm ruled in this way—may God’s pity be upon him—during his tenure, following the rulings issued by most contemporaneous muftìs and also in conformity with his own views [on this issue]. [The expression] ‘his descendants and the latter’s descendants’ is similar to the [previous one]. It encompasses the [rank] of [descent] envisaged by the founder. (205) If he said: ‘my offspring and my offspring’s offspring’, this includes his daughters and their children, but not his daughters’ grandchildren. Each time he includes [among the beneficiaries] another level of descent, the number of daughters’ grandchildren increases exponentially. Pay attention to [this outcome] as fatàwà rule in favour of this. The expressions ‘my offspring and my offspring’s offspring, or for my sons and my sons’ children’ are easier to elucidate as far as descent is concerned as daughters’ offspring is descended from a daughter as are anyone born after them. When [the benefactor] establishes a foundation in favour of a particular clan without making clear whether it is a family trust, or making reference to his progeny, without even designating the [ultimate beneficiaries] to whom the [˙ubs] is supposed to be passed on, there are some who disagree with Màlik as to the recipient of the [˙ubs] after the demise of the said people. Ibn al-Qàsim reports that
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the foundation returns to the founder were he to be still alive, or to his heirs [if he has passed away], as in the case of a donation for life. But, according to another version, [the foundation] does not return to the [benefactor] but to his closest relatives as a foundation for the poor; if no poor relatives are forthcoming, it is handed over to the indigent. The expression ‘the closest relatives’ refers to the founder’s poor heirs when a [foundation] must be taken over by someone, were the [founder] to pass away at that time. If [the founder] were to say ‘this is a family trust’, without further clarification, and it was intended for particular [people] who had already passed away, it would end up in the hands of the closest poor relatives of the founder when the transfer is [due to take place], as explained above à propos who is to be the [ultimate] beneficiary. If he did not utter [the words] ‘family trust’ but, instead, ‘he makes a foundation in their and their descendants’ favour’, without referring to the descent of a [˙ubs’s] ultimate beneficiary, the former would be handed over to the founder’s closest poor relatives at the time once his [line of descent] has died out. If no one is poor [among them], it would end up in the hands of the indigent, deo volente. Ibn al-'A††àr, Kitàb al-wathà"iq, pp. 203–205 When [someone] establishes a foundation in favour of his descendants and their offspring, it is as though he said: ‘in favour of my son and of my son’s son’, making use of what it has been previously pointed out regarding the exclusion of daughters’ sons, in accordance with Màlik’s views, and their inclusion according to the common sense given to the expression [employed] by the founder. When he says ‘in favour of my progeny’, no disagreement exists regarding the inclusion (209) of daughters’ sons because God—glory and praise be upon Him—has said ‘and of the progeny of David and Solomon’ up to ‘and of John’s and Jesus’s’. [An aya] including Jesus—peace be upon him—among Abraham’s offspring—God’s blessings be upon our prophet and upon him—, and [ Jesus] was the son of the Virgin [Mary]—may God be pleased with her—who was the daughter of one of his children. If it said ‘to my progeny and my progeny’s progeny’, it would be even much clearer. It is recommended that a notary advises the founder regarding his intentions so that these sections respond to the wishes of the [founder] as to the need to be equitable with [all] the beneficiaries of the foundation or to improve the
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condition of some and include those children among the beneficiaries specifically designated to that effect and his more distant relatives so that the deed proves unequivocal in this respect, thus precluding possible ambiguities in its interpretation [after the founder’s demise]. Some people who, during Màlik’s lifetime—may God’s pity be upon him—excluded daughters in their foundations justified this action by invoking the customary practice among them. Others disagree with us on the [issue of] foundations, arguing that [women] can [not] take possession [of such assets]. Refutation of this can be found in the Prophet’s demeanour—God’s blessings be upon him— as well as in the conduct of those pious people who succeeded him— may God be pleased with their behaviour—and those who hold views [different from ours] can [seek solace in their example]. When the foundation is made in favour of a man’s umm walad, the owner (sayyid) of the beneficiary will be allowed to take possession of the good which he donated in her favour just the same as the one who takes care of his sons’ affairs does. In a deed of this kind you would have to say, once you have finished [recording] the bequest: ‘and that mentioned here about his son [borne] by her, or another’ if the foundation has been made both in her and their favour and in favour of whomever ended up as beneficiary. [You will then say]: ‘The founder X will be responsible for taking over that foundation on behalf of his umm walad Y, in the same way that owners take possession of any gifts made to those under their charge, for they are legally allowed to take care of their affairs. The witnesses confirm this’. In the chapter on a˙bàs and trusts of the Mudawwana [it is stipulated] that a man will take possession of the gift made to someone under his tutelage for he is entitled to take care of their affairs. When this happens and they do not receive something as though it belonged to them, it would be regarded as lawful, as reflected in the Mudawwana according to a version transmitted by Sa˙nùn, on the authority of Ibn al-Qàsim and recording Màlik’s [views] on the issue. Yahya reports, according to Ibn al-Qàsim’s account, that an umm walad takes personal possession of a gift [received from] her owner without her owner (210) doing this on her behalf. According to this account, one must note down the following: ‘X hands over the said foundation to her umm walad Y’. The same occurs in the case of a free wife. One [can] also write that she authorised X, son of Y, so that he could take possession of it on her behalf and the proxy Z,
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son of W, collected it by delegation. The owner [of an umm walad] and the husband [of a free spouse] will be able to delegate to someone else so that the latter can be authorised to receive a foundation on behalf of the umm walad, of the wife, of an adult son and of someone unbeknown to him—even though he is not a beneficiary— without the express testimony of the beneficiary. On this issue a ˙ubs differs from a ßadaqa and a donation (hiba) as a ßadaqa and a hiba belong to the donor and not to the beneficiary; the take-over does not take place whilst the [recipients] have not collected them. Unlike the ˙ubs, whose possession cannot be passed on to someone else and whose beneficiary is only entitled to the yield since the founder can designate someone to act as a proxy and take possession of it and [then] hand it over to the [beneficiary]. In the case of a founder imposing the condition—in one of the clauses of his foundation—that if anyone from among the female beneficiaries ever got married, she would be excluded from the foundation, he could demand that such a course of action [be taken]; if any woman marries, therefore, she will be excluded from the ˙ubs, deo volente. When nothing has been stipulated in this respect in the foundation that the latter will be divided in equal shares, or, [alternatively], that a man’s [share] will be equivalent to that allocated to two women, (. . .) in favour of those designated equitably. If there are descendants, one would start from the neediest until his needs have been met and the remainder will be handed to the better-off among them as the needy is always a [beneficiary]. If [the descendants] included the same number of poor and well-off individuals, they would receive the same amount each. Ibn al-'A††àr, Kitàb al-wathà"iq, pp. 208–210 4: Establishing the beneficiaries on a private endowment A man from Jaén wrote to him about the following matter. Please rule—may God be pleased with you—on the case of a man who donated a ˙ubs in perpetuity in favour of his daughter and all the children she were to have, both sons and daughters, and then in favour of their descendants and the latter’s offspring while they keep on perpetuating their descent. That was the text of the foundation the donor had established. The daughter had two sons and a daughter; she then passed away and her children enjoyed the usufruct of
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the ˙ubs. Her eldest daughter then died leaving a son and a daughter, both of whom became beneficiaries together with their two paternal uncles and aunt. Both passed away and then the ˙ubs returned to the hands of the two sons and the daughter of the donor. Now, a son of the donor has died leaving two sons and the latter ask to be considered as beneficiaries alongside their paternal uncle and aunt. The latter reject their claim and have said ‘you are not entitled to benefit from the ˙ubs with us as the donor arranged for descendants to be included as beneficiaries after the latter’s demise by using the formula then in favour of their remaining descendants’. He replied—may God be pleased with him—: I have considered your query and the donor’s exact formulation as quoted by you only bans the children of the beneficiaries from being included in the ˙ubs together with their parents but not the children of those deceased alongside their paternal uncles and aunts as the donor did not say ‘then in favour of their descendants once all of them have passed away’. This formula can then be interpreted as indicating that the donor meant to say ‘then in favour of their descendants after the death of some of them’ because if a plural is linked to another plural by means of the particle ‘afterwards’ (thumma) and the repetition of a plural pronoun only implies that a succession is individual rather than collective. You say: ‘I purchased ten houses, (re)built them and then sold them’; your sentence would be right even though you may have bought, built and sold one house before purchasing another. God Almighty said: He shall make you dead, then He shall give you life (Qur"àn, XXII, 66). But their deaths did not take place after they had been brought back to life; instead each death occurred after each one of them had been revivified. Numerous examples such as this can be found in the Qur"àn and are well-known in our language. May God give me assistance. Ibn Rushd, Kitàb al-fatàwà, ed. Al-Talìlì, I, pp. 620–621, no 146; ed. Al-Tajkànì, I, pp. 541–543, no 124. 5: Witnesses’ testimony on a private foundation The witnesses whose names are listed at the end of this deed testify that they know the a˙às which Óammàd b. Khalaf b. Abì Muslim al-Sadafì, father of al-Fa∂l and Yùsuf-listed in what follows—founded in favour of Yùsuf and his descendants:
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1) The house next to the graveyard (maqbara) of al-Zaqlù, as well as two shops (al-˙anùtayn) contiguous to it. The boundaries of these buildings are: on the southeast, the alleyway (al-zuqàq) leading from them up to the mosque of Ibn al-Khanshiyya; on the north, the house belonging to Idrìs b. 'A††àf al-Qarràr and on the west the alley leading upwards from it and ends at the said cemetery. 2) The three houses attached to each other and the small orchard behind them situated in the quarter (˙awma) of the mosque of Ibn 'Alà Qawmi-hi; the boundaries of this complex are, on the southern side, the garden of the poor ( jinàn al-masàkìn); on the east, the house of al-Aßìlì’s heirs; on the west, Ibn Washqùn’s house and, on the north, the main thoroughfare (al-zuqàq al-kabìr) whose doors lead to. 3) The two attached houses contiguous to a garret (maßriyya) on the side where the door leads up to the alley (dàrb); its boundaries are, on the south, al-Zuhaylì’s house; on the east, Ibn al-Hàniya’s house situated next to the dead end alley (dàrb); on the north, the house belonging to the heirs of al-Ba†alyawsì and the dead end alley (dàrb) on the west which their doors open to the [alley] leading up to the mosque of Yùsuf b. Abì Muslim (al-Sadafì). 4) The oven belonging to the said mosque whose limits, on the southwest, are the house known as Ibn al-Qur†ubì, the baths of Ibn al-Qur†ubì to the north, the alley descending from the (oven) and ending up in the market’s graveyard to the east, the alley which its doors open up to. 5) The shop (al-˙anù†) situated at the market (sùq) of the barbers (alhajjàmìn), near the mosque of the said market. Its boundaries are, to the southeast, the hostel ( funduq) of A˙mad b. Ibràhìm alZayyàt; the shop (˙ànùt) belonging to the a˙bàs for the poor to the west and, to the north, the alley starting at the market’s graveyard and whose doors lead up to. 6) The two shops adjacent to the drapers’ market (shaqqàqìn) next to the shop (˙ànùt) owned by Ibn al-Shaykh’s heirs and, to the north, the alley leading up to the market of perfume sellers (al'a††àrìn) which their doors open up to. They testify that they are aware that the aforementioned a˙bàs were established in favour of Yùsuf and his descendants and that the children of Yùsuf ’s daughters have no right to them nor can they claim to have any; they also declare that they know that, out of all the
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descendants of Yùsuf b. A˙mad b. Khalaf -founder of the ˙ubs-, the only ones still alive are Fà†ima, daughter of Mu˙ammad b. Yùsuf b. A˙mad (b. Abì Muslim al-Sadafì) and Maryam, daughter of Fà†ima’s paternal uncle, Óammùd b. Yùsuf (b. A˙mad b. Abì Muslim), and that both were the last remaining descendants of the said Yùsuf and when both women, Fà†ima and Maryam, [passed away], the said a˙bàs described above were handed over to the children of their paternal uncles, descendants of al-Fa∂l b. Óammùd b. Khalaf b. Abì Muslim, namely: A˙mad b. Mu˙ammad b. Ibràhìm b. al-Fa∂l b. Óammùd b. Abì Muslim, Óasan, Óusayn and Mu˙ammad, sons of 'Alì b. Óusayn b. al-Fa∂l b. Óammùd b. Khalaf b. al-Fa∂l and his brother Óammùd b. Khalaf b. Óusayn b. al-Fa∂l b. Óammùd b. Khalaf, both of them more entitled than anyone else to these a˙bàs as they were the closest relatives; were they to pass away, these a˙bàs would be then passed on to their children and their children’s children as, originally, the ˙ubs was set up like that. This is all they know and which those who provided testimony are aware of. This is the testimony they volunteered when asked to do so at the end of the month of Dhù-l-˙ijja of the year 483 h/1090. Mu˙ammad b. Ghàzì, Zakariyyà" b. Hàrùn al-Qu∂à'ì and 'Alì b. Ya˙yà b. 'Abdallàh al-Lakhmì. And Abù Bakr b. 'Alì al-Qaysì, 'Alì b. al-Óasan al-Kindì, Óammàd b. A˙mad al-Anßàrì and Manßùr b. 'Alì al-Azdì testified that they were asked to act as witnesses by 'Abd al-Jabbàr b. Mas'ada as substitutes for the three witnesses previously mentioned. 'Iyà∂, Madhàhib al-˙ukkàm, pp. 193–195 6: Founding a pious endowment (171) This is a document whereby a ˙ubs is donated as alms in perpetuity by X, son of Y, in favour of his son W, still a minor and under his custody, or of his daughter V, a minor still under his custody, or of both of them, minors and under his tutelage, or of his sons W, [U and T ]; after including each of this sections ( faßl ), you must utter the words ‘and [in favour] of all the children he may sire, both sons and daughters, throughout his life and provided that the Almighty so decided’. [Donate] the house whose description is such and such, located east or west of Córdoba, in the district (raba∂) of the quarter (˙awma) where a certain mosque stands and whose
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boundaries are thus: towards the qibla [south] such and such [measurements], [on the north such and such, on the east such and such and on the west such and such]; the description must be left out if it is not detailed enough. You must then say ‘with all the rights (˙uqùq), uses (manàfi' ) and services (maràfiq), both inherent to and derived from it’. If what is at stake is a rural property (milk) you must say ‘including all its land (amlàk), all kinds of profits (makàsib) and all kinds of benefits ( fawà"id) [stemming from it]’, located in such a village of such a region of the district (˙amal) of Córdoba, or a different province, including the houses found in (172) that village, [its courtyards (afniya)], threshing grounds (anàdir), stables (dimn), plots—cultivated and barren—, olive trees, [fig trees] and vineyards (˙adà"iq a'nàb), with the description of all its constituent parts. You must then say ‘all their rights (˙uqùq) up to the outermost boundaries of the hinterland (a˙wàz) of this village, as well as those portions of the aforementioned properties (amlàk) located in the hinterlands of neighbouring villages’. You can also add, if that is your wish, ‘from their four sides and with the donor (mu˙abbis) giving up all rights, ownership, service or benefit upon these assets as he has turned his donation into a ˙ubs (ta˙bìs) for his children, those mentioned above and any other he may sire throughout his life, each receiving an identical share of the whole ('alà-l-sawà" bayna-hum)’. If the donor wishes to give privilege (taf∂ìl) to his sons, he must say ‘for a male a portion equivalent to that given to two females’; if he includes [as beneficiaries] both children (a'qàb) and their fathers while the latter are still alive, he must say ‘and in favour of their children and the latter’s descendants and, were one to pass away childless, his share will be passed on to the remaining [beneficiaries]’. If the donor would like children to benefit to the same extent as their fathers, after uttering the words ‘and in favour of their children’ he must say ‘and the descendants of their children in equal measure’; if he does not want the distribution to be made in equal portions (taswiya), then he must not include this sentence. Ask the donor about all possible aspects ( faßl ) and his intentions regarding each one of them and draw up [the deed of donation] according to his wishes as he is entitled to [have the ultimate say] in the clauses (shar†) of his ˙ubs. If he does not [want] children to be included [as beneficiaries] alongside their fathers, he must say ‘then, after fathers, in favour of their children and the latter’s offspring in equal measure, for a male a portion amounting to that given to two women’,
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in accordance with the donor’s will. The expression ‘and in favour of their children’, with a waw, means that the ˙ubs is shared out by fathers and [children], whereas if it says ‘then’ (thumma), it means that it will not be shared out, (173) and this notion is further clarified and reinforced if it is followed by the expression ‘after the fathers’ (ba'da-hum). You must then say ‘if any of them dies childless, his part will be passed on to the rest, in equal shares, or in accordance with the donor’s clause on this respect; if everyone dies and none remains, the entire ˙ubs will be handed over to the infirm living on the banks of Córdoba’s river for good, or to certain poor people (masàkìn), among whom its revenues must be distributed every year once the needs (maßàli˙) of those properties (amlàk) have been met, including the buildings it comprises so that they remain operational and their productivity increases for ever and ever till the end of times, without suffering any alteration and serving the same purpose for which those properties were donated in the first place till they are inherited by God and remain under His tutelage according to the original requirements recorded in the ˙ubs, for He is the heir of the earth and all those dwelling in it, He is the supreme heir. Whoever tries to meddle with it or alter it will have to justify his actions before God and, lacking any supporters or arguments in his defence (madàfi' ), God will take revenge; those who are unjust will find out their fate. The donor X is aware of the legal implications (qadr) of this donation (ta˙bìs) and has knowledge of its value (mablagh), thus hoping to honour God Almighty and be worthy of His coveted reward, for He bestows the best rewards and grants the most dignified outcomes. If the donor wants that, after his children and their descendants— were they to die out—, the ˙ubs is passed on to his poor relatives from his father’s or both his parents’ sides who are still alive, then, after ‘in favour of the children’, you must say ‘were they to pass away childless, the ˙ubs must be handed over to the poor relatives of the donor X, from his father’s or both his parents’ sides still alive; if the latter’s descent has become extinct of they happen to be wealthy (aghniyà"), the assets are then passed on to the sick people living on the banks of the river at Córdoba as mentioned above; if any of them [his relatives] were to become impecunious, the ˙ubs must be handed over to him and if he becomes rich as a result, the ˙ubs must be taken away from him’. Were the property (milk) to be sown at the time of the donation or its trees (ußùl) already bearing fruit (174), you must say ‘the donor
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X donates to his children his share of all the crops (zar' ) and the fruits found in these properties (amlàk) at the time of the donation in order to legitimise its take-over (˙iyàza) and carry it through, thus expecting to gain a better reward. The donor X retains the ownership (i˙tiyàz) of the ˙ubs donated by him in equal shares in favour of his aforementioned children and those they may sire, as well as of those whom the ˙ubs might be handed over after the latter by virtue of the right conferred upon fathers to administer the assets of his children until one of them or them all reaches maturity, thus being entitled to receive (qab∂) his assets (màl). [The witnesses, whose declaration recorded below confirms the validity of this document] testify that that manifested by the donor X son of Y [by means of a testimony susceptible to appeal] against him à propos that recorded above’. Signed and dated. Copies of this document should be made available. If the donation involves a house where the father does not reside, the testimony of witnesses will be done in accordance with the above model, and it will be lawful and valid for him to take possession of the house thanks to the testimony and the announcement, [and also with regard to the lands (amlàk)]. But if [the father] lives in the house, the handing over will not take place unless he vacates it and moves somewhere else: the witnesses will then verify that the house is empty and will take possession of it. This will be recorded [in the document] after ‘he is aware of the legal repercussions and the costs’ by means of the sentence ‘the owner and his family have left the house referred to in this document, have emptied it of all their belongings and possessions and have moved somewhere else in order to render the take-over legitimate and complete the donation process’. [The expression] ‘certifies’ [must then follow], alongside the signature and the date. If it says ‘he is in full use of his legal powers’, the formula ‘[they certify] that they have inspected the house referred to in this document and it is empty and unoccupied and have seen the beneficiary take possession of it, lock up all the doors opening up to the outside and the house is in the state described above’ must be added to the previous one. If the donors have knowledge that the donor is the owner of that which he gives in donation, the donation is more perfect; this fact needs to be recorded by inserting the expression ’[they certify] that they are aware that the donor X is the owner of the property he is handing out in donation and mentioned in this document, and
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that, as far as they know, he remains the legal owner when the donation becomes effective (ta˙bìs). [Recorded] on the month of, in the year . . . Copies of this document must be issued’. If the donor stipulates, in a clause of his donation, that if any of the beneficiaries (175) is affected by misfortune or becomes impoverished ( fàqa waqilla), he will be authorised to sell the ˙ubs in order to overcome that situation and, in that case, prior to ‘he certifies’, you must say ‘one of the clauses drawn up by the donor X son of Y in his ˙ubs is that if any of his children, their descendants or any of the latter’s offspring (. . .) after his demise is afflicted by poverty (˙àja ›zàhira), he will be authorised to sell the ˙ubs and attend to his needs with the money raised with the sale’. ‘[ The witnesses] certify [etc.]’ must follow afterwards. Jurisprudence of this chapter The fact that a father retains the ownership of a possession (˙iyàza) on behalf of his sons who are still minors, or his daughters—even though they may be of advanced age (murtafi'àt al-asnàn)—is lawful provided that the testimony (bi-l-ishhàd 'alay-hà) (. . .) his possessing the assets (amlàk) donated does not invalidate the ˙ubs, nor any of its clauses, as he is their tutor (nàíir) and does not reside in the house (. . .) until it has been unoccupied for over a year, and even better if it is longer than that. If he returns to the house before a year has elapsed or fills it with his belongings and passes away before he moves and empties it (. . .) legitimise the possession, the donation (˙ibàsa) is null and void and [the ˙ubs] becomes a heirloom (mìràthan); but if he occupies it and makes use of it a year after the donation has taken place, the ˙ubs is not invalid, even though he dies while dwelling in it. If the property (milk) is sown and [its yield] has not been included in the ˙ubs and the donor passes away before the harvest is collected, or if the trees (ußùl) have fruits and the donor dies before the latter are collected, the ˙ubs is invalidated and declared null and becomes an heirloom (mìràthan), if most of the land (ar∂) is sown and its trees (ußùl ) full [with fruits], as he has occupied the ˙ubs—being sown and its trees bearing fruit—but without completing the act of possession of both things. If he says that he hands [the sown field and the trees] over to the beneficiary, the possession is valid, as long as he does not keep (176) in (. . .) anything filling the trees, as everything has now become the usufruct of the beneficiary; but if the ˙ubs was for the benefit of the eldest one, or the eldest, and the latter
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take possession themselves, such an act of possession is correct, even though the crops and the fruits remain under the ownership of the donor since their taking possession of the trees and the land entails the possession of the trees and their fruits with the result that the possession is not affected by fruits or crops. Jurisprudence of the clause regarding the sale as a result of poverty The donor has the right to stipulate in a licit and binding clause (nàfidh) included in his ˙ubs that, were his children, their descendants or whoever takes control of the ˙ubs after them to claim that they have [succumbed to] need and poverty (˙àja wa-faqr), they must provide proof of this by resorting to two just witnesses and, after swearing that they do not own any asset, either visible or concealed; if [this fact is corroborated], they are entitled to sell the ˙ubs. If, however, the clause stipulated by the donor requires that whoever claims to be afflicted by poverty (˙àja) must be regarded as credible [automatically], then the word of whoever claims to be in this situation from among the beneficiaries and can prove that he does not own any asset will be taken at face value [without the testimony of witnesses]; he will be allowed to sale the ˙ubs in accordance with the aforementioned clause, God willing. Ibn al-'A††àr, Kitàb al-wathà"iq, pp. 171–176 7: Pious endowment consisting on movable goods Foundation charter of a ˙ubs consisting of horses, weapons, jewels, collections of theological works, Qur"àns or clothes so that they can be given away as commodities. X, son of Y al-Fulani, establishes a ˙ubs comprising his ward horse,1 of noble breed and with its teeth still intact, so that it can be devoted to the jihàd fì sabìl Allàh—glory and praise be upon Him—and confirms that the beast has become a ˙ubs by branding it on the thighs with a particular mark; and adds as well his Indian sword (or Frankish, or surayjì ),2 so well made so that courageous people may
See Ibn Hudhayl, Kitàb ˙ilyat al-fursàn wa-shi'àr al-shuj'àn, Cairo, 1951. Spanish translation by Mª J. Viguera, Gala de caballeros, blasón de paladines, Madrid, 1977, p. 97: ‘el rojo puro, con crinera y cola negros, se llama castaño (rosa)’. 2 P. Chalmeta and M. Marugán, p. 367, translate surayjì as ‘de fino temple’, but since it is after ‘the Indian’ and ‘Frankish’, it could maybe consist of a reference 1
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fight with it for the glory of God—glory and praise be upon Him— or such a collection containing such a number of books; or all the jewellery he owns and whose features are such and such; or a silk garment of such and such characteristics, or another item of clothing of such and such type; or a linen Ωihàra of such type; or a khashkhashiyya or a zahriyya or a silk miqna' of such and such features, or a ridà" sharb of such features, or a sha†awiyyà of such features in order for people of low income to use them on the occasion of their marriage.3 In the case of books, you must say: ‘so that trustworthy students can borrow them in order to copy, consult or study them’. With regard to Qur"àns: ‘in order to lend them to those (207) who wish to recite them’, or ‘recite it’ if there is only a single [copy]. When describing the Qur"àn you are to say ‘a complete Qur"àn, of such and such characteristics’ and record the type of binding, cover and script: Kufian or of such and such [type]. If he is to relinquish possession of these a˙bàs, you will say: ‘The founder X hands them over to Y who receives them and takes possession of them, thus ceasing to [belong to X], so that they can be used for the aim they were intended for’. If the [object] of a ˙ubs happened to be a slave, you must say: ‘an ifranjì or jilliqì slave, called X, so that he can serve the holy warriors who fight in the name of God’, or for whatever other reason provided that [it is one of the good deeds] one performs in order to ingratiate oneself with God—glory and praise be upon Him—. He will not be allowed to use him as a ˙ubs [in perpetuity] as this would be detrimental to the slave. You must then say: ‘the witnesses, whose declaration recorded below confirms the validity of this document], testify that that expressed by the founder X, son of Y, is true; they know him and have heard this directly from him, [and their testimony in this regard recorded hereby can be appealed] and used against them. They [also] confirm the veracity of the testimony given by the receiver Z, a personal acquaintance of theirs, in this respect; [as far as they know] he is in good health and responsible
to a kind of sword coming from some particular place. Yàqùt, Mu'jam, III, pp. 233–234, no 6353 and 6354, tell us about Suruj and Sarja, although without any reference to swords. 3 For the identification of these clothes, see chapter 6.
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for his own actions. [The witnesses] were present when the founder handed the [˙ubs] over to the beneficiary Z and when the latter accepted it, the founder being at the time of the take-over in full use of his faculties and in good health. [Recorded] on the month of . . . of the year . . .’. Copies of this document will be issued and made available. If the assets included in the [˙ubs] have not been handed over by the founder yet [and taken over by the beneficiary, you will make no mention of the surrender of the property nor of the take-over. Once the description of the [˙ubs] is completed, you will say: [The witnesses, whose declaration recorded below confirms the validity of this document], testify that the testimony requested by the founder X has been given’; you will then complete the testimony, [which can be exclusively invoked] and used against him and date the document. Jurisprudence The ˙ubs is deemed to be legal and valid even though those assets have not been handed over by the founder provided that they have been left in loan and in spite of the fact that they are still in his possession, when he is in good health and in full use of his faculties. He will relinquish ownership [of those assets temporarily] so that they can be earmarked for the purposes for which they were immobilised, [subsequently] returning to [him]. The demise of a founder does not render [the ˙ubs] null and void, even though the latter still remain under the [founder’s] ownership and had not left his [hands] while someone else had already taken possession of them as the use of the [˙ubs] as a loan [is regarded as] a full take-over, [as] a transmission [recorded] in the Mudawwana [confirms]. This does not apply to [a ˙ubs] comprising trees as the [founder] retains his ownership rights on trees and distributes their harvest; if this does not take place as stipulated, the ˙ubs is invalidated and you must record this fact once the founder passes away. Ibn al-'A††àr, Kitàb al-wathà"iq, pp. 206–207 8: Loan of movable goods made into pious endowments Deed to be drawn up in order to leave a [˙ubs] in loan The witnesses named in this document testify that they know X personally and by his own name, and that [the latter] has left weapons
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of such type and of such and such characteristics on loan; or collections [of theological works] or copies of the Qur"àn he loaned with the proviso that whoever borrowed them was aware that they were on loan and had to be returned to their owner. [X] always did this while he enjoyed good health until the moment of his death. [The witnesses], who know the terms of the text recording [such a loan], confirm that this is true and record their testimony in this document, once they have read it, in such a month of such a year. It [must] be said: ‘I have set as a ˙ubs (a bastu) a horse’, using an alif, and ‘˙abbastu’, without an alif when referring to an asset which still remains under my ownership. Ibn al-'A††àr, Kitàb al-wathà"iq, p. 208 9: The transfer of the property I asked: do you think that, according to Màlik, it is lawful for someone to donate a horse without actually carrying the donation through and retaining the asset so that it is only handed over to someone else when the donor has passed away? (Ibn al-Qàsim) replied: that is not lawful and it ought to be turned into an inheritance. That is Màlik’s view. (He added as well): Màlik also believes that if a donation involving weapons takes place but it is not implemented in the way stipulated beforehand and the donor remains their owner until he dies, they should be handed away as inheritance among the donor’s heirs. Màlik noted: if weapons are donated by a certain donor but they are ultimately returned to him , then that is not licit; if the opposite is the case and he retains ownership over them till his demise, then they should be treated as an inheritance. If he surrenders part of the assets given away in donation and the latter is implemented but he keeps part of them, then the donation is lawful as far as the part given away is concerned whereas the remainder is surrendered as inheritance. Ibn al-Qàsim remarked: with regard to him who donates belongings and animals in order to ingratiate himself with God and then administers them for purposes other than those originally stipulated until he passes away, Màlik held the following view: any ˙ubs which does not yield any revenues and is managed by the donor until the moment of his death, retaining it under his ownership, must be returned in the form of inheritance as, were this not the case, anyone could donate an asset and profit from its
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revenues and would claim, when he was in the throes of death, that he had donated it as a ˙ubs, thus preventing it from becoming an heirloom. Thus, I believe that this procedure is not licit when involving a˙bàs; the donor must, instead, designate someone else and surrender the property donated in his favour. With regard to the ˙ubs which does not yield any revenues, such as weapons, horses and the like, if they were devoted to the purposes stipulated by the donor, the latter is entitled to administer them until his demise as they constitute capital. If they were devoted to different purposes, the procedure would be unlawful. Sa˙nùn, al-Mudawwana, XV, pp. 100–101 10: Pious endowment’s leasing Draft for donation of a ˙ubs whose take-over is carried out by means of a lease contract or one of sharecropping in the case of land. (180) X, son of Y, donates as a ˙ubs in favour of his son Z, his eldest who is responsible for his own actions, and also in favour of all the children he may sire throughout his life, and in favour of his son Z’s offspring and all the [other possible] beneficiaries; if he excludes his daughters, he must say ‘with the exception of his daughters’. [He donates] the whole house located in such a place (maw∂i' ) or all his properties (amlàk) found in such a village; [the description of the assets follows immediately afterwards] according to the previous model. You must then say: ‘the donor X does not retain any kind of right (˙aqq), property (milk) or benefit (murtafaq) whatsoever over the [assets] listed in this document for he has surrendered them in favour of his son Z and all the other sons he may have [further on], and of his sons’ progeny and the latter’s male descendants. If one were to die childless, his share will be handed over to the others and if all of them were to pass away and none remained alive, the ˙ubs would have to be passed on to such a mosque so that repair works can be undertaken, prayer mats and logs purchased and the administrator (qayyim) can be paid his salary, or otherwise in favour of the poor living in such a place (181) among whom its annual revenues will be distributed for ever, or also in favour of that group of sick people until it is inherited by God Almighty and remain under His custodianship as stipulated in the original clauses of the ˙ubs, He is the heir of the earth and all those dwelling on it, for
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He is the best heir. The donor X is aware of the legal implications and the value of the assets included in the ˙ubs; with it, he intends to honour God Almighty and obtain His coveted reward for He is the one who offers the best rewards. If he would like, provided that it is possible, [to include] the description of the assets which are being donated—this makes a donation look even better—, the following must be inserted here: ‘description of [the assets which are being] donated as a ˙ubs in this document’, except those things whose mention would be unnecessary as, because of their sheer scarcity or excessive abundance, they are amply known: a house with such boundaries; it was [located in such a place and with such and such boundaries; plot of land (˙aql ar∂) located in such a place] and with such and such boundaries, with a stable measuring this number of cubits which, by the side of the qibla, abutted X’s land, of such a number of cubits [in size], whose side this and that borders to the north, of this and that area, to the east with Y’s land and to the west with that belonging to Z. The donation includes such a number of olive trees and this and that plot (˙aql). At the end of the description the following must appear: ‘the cubits referred to here are cubits rashàshiya’. You must add immediately afterwards ‘the donor X hands all the [aforementioned] ˙ubs over to his son Y, the beneficiary, so that, if God Almighty so disposes, he can take possession of it himself, without sharing it with his father, and enjoy his usufruct, he and those succeeding him; X surrenders it in his son’s favour. Then, the beneficiary Y, in order to validate the take-over and thus complete the take of possession of the asset donated, agrees to lease it out to Z, son of W, for two or more years, commencing on the month of . . . of the year . . ., or for the period of a year beginning from the month of . . . of the year . . ., in return for [the sum of ] such a number of dinars, good arba'ìnì dirhams, which the lessee will pay monthly, at the end of each month and for the period stipulated in the [contract] (182) the amount of such a number of dirhams. The lessee Z vows to [pay] for the lease of the house described in this deed, having occupied it and dwelt in it since the start of the lease. Both are aware of the legal repercussions resulting from this deal and the sums stipulated in this contract. [The witnesses, whose declaration, recorded below, confirms the validity of this deed] testify that all that has been declared above on the part of the donor X, son of V, the beneficiary Y, son of X, and of the lessee Z, son of W (whose
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testimony can be appealed against that recorded above) is true. Dated and signed. Copies of this deed should be made available’. If the asset being donated is made up of lands (amlàk) which the beneficiary will eventually lease out [by means of a contract known as qabàla or in the manner of sharecropping (muzàra'a), then, after ‘he surrenders it in his favour’, you must say ‘afterwards, the beneficiary X, son of Y, leases all the assets mentioned in this document through a contract of qabàla in order to confirm the take-over and complete the handover of the property, to Z, son of W, who takes them in lease from the beneficiary with all their rights, uses and services, both those inherent to them and deriving from them, including all the area covered with trees (sawàd), as they represent less than a third of the total amount of cultivated land (bayà∂). Qabàla valid without [the right to incorporate additional] clauses, nor the possibility of having it returned or having the contract rescinded. [Both the landlord as the tenant] are aware of the legal implications of this transaction and the sums contemplated in the contract, [which will be valid] for a year commencing from the moment the seeds are sown in winter, for two years or whichever amount of time agreed upon, in return for this and that amount of dinars and arba'ìnì dirhams each, which the lessee Z will pay in its entirety at the end of the year to the landlord and beneficiary of the ˙ubs X. [The witnesses, whose declaration, recorded below, certify the validity of this document] testify that that which has been declared by the donor 1, son of 2, by the beneficiary and landlord X, son of Y, and the lessee Z, son of W [whose testimony can be appealed and used against them] is true’. The agreement is more binding and solid when the qabàla, muzàra'a or leasehold (kirà") of arable lands (al-ar∂ al-bay∂à") is subscribed for two years or more since if it is signed for just a year and only a leaf is sown and the donor passes away before a second leaf is planted, the ˙ubs will only be applicable on the area which has been sown (183), provided that it does not comprise most of what has been given away in donation (ta˙bìs). If the cultivated area includes the bulk of the ˙ubs and the uncultivated surface is less than a third of the total, then it must be carried through. If the asset being donated is handed over by means of a contract of the muzàra'a type, then after ‘he surrenders it in his favour’ you must say ‘and afterwards, the beneficiary’s, X son of Y, thus legitimising the take-over and completing the process, lease the lands
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donated to X, son of Y, by using a valid muzara'a contract for a period of one year commencing from the sowing carried out in 383 or 384 h, or whatever is stipulated [in this respect]. The beneficiary X is enjoined to contribute half of the wheat, barley and half of all cereals sown on these lands and the sharecropper Z will contribute the rest, with both halves being merged into one whole; the sharecropper, [furthermore], will be in charge of tilling the aforementioned land with the help of his oxen, his utensils and his salaried labourers, performing all the [necessary] tasks culminating in the harvesting and thrashing of the crops (tahdhìb al-ißàba), which will be divided up in equal shares for this has been the nature of their partnership as far as the seeds are concerned. [Both] have agreed on the rent of the land and on the work carried out by the labourer W up to the thrashing of the harvest; the land rent must be equivalent to and proportional to the work performed by the labourer. Both describe the seeds [they contribute] and are aware of the legal implications of their agreement. The labourer has started working the aforementioned land. [The witnesses, whose declaration, recorded below, confirms the validity of this document] testify that that declared by the donor X, son of Y, the beneficiary Z and the labourer W is true [and their testimony can be challenged] and used against them. The date is then recorded. Copies of this document need to be made available. If the area of the land covered with trees (sawàd al-amlàk) is of the same size as the cultivated land (bayà∂ ) and both [parties] wish them to be treated as separate entities, then draft a lease contract (kirà' ) or muzàra'a muzàra'a following the previous models applying to the plot of land and an irrigation contract (musàqà) for the area where the trees stand (sawàd ), specifying that the latter is an altogether different agreement. Once this section has been taken care of, you must say ‘[the witnesses, whose declaration, recorded below, confirms the legality of this document] testify that that expressed by the donor X, the beneficiary and landlord Y and the lessee Z—[this testimony can be appealed] and their declaration in this document challenged and used against them-, once they have understood it in its entirety, having heard it [directly from] those subscribing the contract, whose identity is known to them and being [convinced] that they are in good health and have full use of their faculties, is true. [Written] in the month such and such of the year such and such’.
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Jurisprudence The lease contract made on a property set as a ˙ubs (al-'aqàr almu˙abbas), that of qabàla for a plot of land donated as a ˙ubs and that of muzàra'a or irrigation (musàqà) vis-à-vis the harvest (thamara) yielded by the properties (amlàk) donated as ˙ubs or ßadaqa constitute, [per se], a valid possession (˙iyàza tàmma); to draft it one does not need [in order to render it legal] to inspect the land and an eye-witness account that the asset has been actually handed over to the beneficiary. If none of these contracts is subscribed on the ˙ubs property and the donation is made in favour of one or more adults, the take-over will not be regarded as complete unless witnesses are present when the aforementioned houses are handed over and, in the case of the lands, the latter have finally been occupied by the new owner. According to legal rulings issued in our country (balad), the simple act of walking on the land in the company of witnesses and the verbal agreement on the part of the donor to [give up the ownership of the asset] in favour of the beneficiary in the presence of those witnesses constitutes a full take-over (˙iyàza tàmma), even though the latter do not see with their own eyes that the new occupant works and resides in it. In accordance with the chapter on ˙ubs and alms (ßadaqa) in Sa˙nùn’s al-Mudawwana, Màlik’s view is that if the beneficiary of the ˙ubs, alms (ßadaqa) or the hiba cannot toil the land, the donor of the ˙ubs dies before the land is sown and the beneficiary cannot transfer it to someone else or hire someone or donate its usufruct (hiba bi-l-intifà' ), the ˙ubs must then be annulled; if, however, he is able to do some of the above, the ˙ubs is then binding (nàfidh) even though he has not taken possession of it yet as the donation (min a) replaces it and it has been brought into cultivation because the beneficiary has found someone willing to till it; the hiba of the usufruct (bi-l-intifà' ) constitutes a full take-over and this reinforces (185) that formerly indicated regarding the contracts of qabàla, muzàra'a and other similar ones applicable to donations and is the real reason why it is considered as a [full] take-over. On the a˙bàs and alms (ßadaqàt) for the benefit of children, both grown-ups and minors, his opinion is that he must give them away and hand them over to his adult children. According to Ibn alQàsim’s tradition (riwàya), it is lawful for older brothers to retain the ownership of certain assets while the father remains the legal owner of the part allocated to those who are still minors on their behalf. Other [ jurists], however, believe that this is lawful as far as alms
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(ßadaqàt) and hibat are concerned, but not in the case of a˙bàs as, whereas the first two are susceptible to being divided up, a˙bàs are not. One must act according to the first view (bi-l-qawl al-awwal al-qa∂à"). Ibn al-'A††àr, Kitàb al-wathà"iq, pp. 180–185 (224) X son of Y lets all the properties (amlàk) donated to him as ˙ubs and located in such a town to Z son of W through a contract of qabàla, including all his rights and benefits (˙uqùq wa-manàfi') for a period of three years commencing on such a year and in return for such an amount. Valid qabàla not including the right to reclaim the property (thunyà) nor rescind the contract (khiyàr). Both parties [subscribing the contract] are aware of the legal implications resulting from this and of the value [of the property contracted out]. Record this operation following the previous model up to the part containing the date. Jurisprudence A˙mad [b. Mu˙ammad b. Mughìth] asserts: according to Màlik’s opinion reported by Ibn al-Qàsim, the legal practice ('amal) is not to consider as legal [a lease drawn up by means of a contract of] qabala comprising those assets which have been donated in favour of specific individuals ('alà aqwàm bi-a'yàni-him) except when it is subscribed for a period of two years or thereabouts. If it is done for a longer time it is likely to pose a risk and be vague (gharar wa-mukhà†ara) for, if any of the beneficiaries were to pass away, the qabala would not be applicable to his share [of the ˙ubs]. (225) If he happened to have a son entitled to be included [as a beneficiary] and the latter lay claim to his due of the ˙ubs, his tutor will be authorised to renew the qabàla and demand an increase in the amount of rent due. Our qà∂ìs in Toledo recommend that [the lease subscribed through a contract of] qabàla and comprising a˙bàs donated in favour of mosques, the poor, the infirm and those receiving bequests be extended for a period of less than four years lest it is squandered due to the great amount of time it has remained in the hands of the landlord (mutaqabbil); fatàwà on this matter were issued by our masters Ibn Zayd, Ibn Arfa' Ra"sa-hu, Ibn Zuhr and the ˙àfiΩ Mu˙ammad b. 'Umar as it is the longest time that the manure the landlord
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(mutaqabbil) spreads on the soil remains on the ground. This is based on the opinion of more than one expert (ahl al-baßar). God help me. Ibn Mughìth, al-Muqni', pp. 224–225 11: Founding a pious endowment in favour of a mosque (324) X son of Y, in good health and making full use of all his legal rights, invokes the testimony of those witnessing the recording of this document [in order to show] that, wishing to be nearer God the Almighty and please Him by performing a good deed, donates all of the property (milk) he owns in such a location of such a town as a ˙ubs in favour of the mosque located in such a place and known as Z’s [mosque]; the property has the following boundaries and includes the ground (qà'a) as well as its benefits, services and all its rights, both inherent to and stemming from it. Z [declares] that he is aware of the legal repercussions of this operation and the total value of the ˙ubs given in donation. His ˙ubs must be devoted to the same aim [it was earmarked for] (325) till the end of time and until it is inherited by God together with all its occupants, for He is the best heir. [He donates that property] so that it can be occupied by the imàm or so that the rents generated by it can help pay the costs incurred as a result of the purchase of oil for its lamps, clothes, prayer mats and repair works. The donor has designated Z so that he can receive the asset and take possession of it according to the regulations governing the ˙ubs in this respect. [The witnesses] certify, etc. Complete the rest till you reach the part of the date and include in the document (wathìqa) that the witnesses have seen with their own eyes how the donor has handed over the ˙ubs and it has been received and taken over by the administrator of the mosque (muqaddam). Date. Ibn Mughìth, al-Muqni', pp. 324–325 12: The salary of an imàm I ask your opinion—may God be pleased with you—on a man who used to lead the prayer at a mosque and had no income but a third of the mithqal produced by a ˙ubs. The said man then requested assistance from the judges and he received three mithqàls plus a
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further third out of the a˙bàs belonging to other (mosques) every month, whereas the wages paid to other imàms were less than that amount and they had to pay for lighting oil out of their own pockets as the a˙bàs of the region generated very small benefits (∂a'ìfa) and mosques were in need of repair, etc. Is the said man authorised to do this or will the surplus available to each mosque be employed to meet their needs? Is the aforementioned imàm obliged to [return] the sum he had received? Is this not an impugnation ( jur˙a) of his office as an imàm and of his testimony? Will someone be in charge of running the accounts if the officials commissioned (wulà) to supervise the a˙bàs agree to this arrangement? Please respond our query in detail—may God’s favour be upon you. Mu˙ammad (b. 'Iyà∂) replied: I did not have knowledge of this legal query directly from my father’s handwritten notes. Response: the practice (sunna) regulating [the use of ] a˙bàs is that they are to be devoted to [that] which the founder had in mind when establishing the endowment. It is not advisable to channel the revenues to someone else nor is it lawful to divert them for a purpose other than that selected by the donor while [its beneficiaries] need this assistance. Its surplus will only be diverted to an undertaking similar to that for which they were established as a˙bàs and this will be done after a ruling reached with the cautious arbitration of a jurist (bi-l-ijtihàd ) has been secured, always in a spirit of equity and for the benefit of a cause not originally contemplated in the founding charter due to a pressing need (∂arùra); they are all the abodes of God Almighty and the aim of all these ventures is ultimately the same. Whoever receives a surplus as a result, this is good for him—and God knows best—but it is preferable that he leaves it untouched. He who seized (this surplus) as you recount cannot do this and his actions will hardly be regarded as appropriate. Ibn alImàm said so. Second response: if the case is as you report, the imàm is only authorised to collect his own mosque’s surplus and must leave the surplus generated by each mosque to the latter so that they can meet their needs. Whoever asks to peruse the way in which money is spent should be allowed to do so. Ibn al-Ayman said so. 'Iyà∂, Madhàhib al-˙ukkàm, p. 304 and al-Wansharìsì, Mi'yàr, VII, pp. 69–70
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13: The pious endowments’ Treasury A qà∂ì is not authorised to bestow any powers on anyone so that he can meddle with the treasury of pious foundations (bayt màl almuslimìn) set up by Muslims unless he reflects on this matter carefully. He should not hire or trust anyone with the task of [opening or closing] its gates unless he is a well-off, equitable and reputable individual. But the qà∂ì himself is in charge of ensuring that this institution prospers and none of its funds are pilfered, be it the cultivation of a field or repairing a dilapidated building. He must inspect the work of all the officials working in it and guarding its gates at least annually; if this inspection could be carried out monthly, it would be even better and more effective due to the risk of abuse of trust and negligence which it is exposed to. No one will be allowed to use any funds deposited at the treasury without the qà∂ì’s authorisation; the qà∂ì, moreover, needs to consult law experts before taking any decision and the latter will then deliberate on these matters, improve the way in which it is organised and seek the assistance of witnesses to support their views as these issues, which require honesty, can lead to ruses and deception if they are left unsupervised. Fuqahà" must also be well aware of the income and expenditures as well as their destination in order to prevent fraud and irregularities from hindering the way in which these funds are managed. The qà∂ì will give the appropriate instructions whenever funds from the treasury are to be drawn upon in order to pay salaries or finance the restoration of farmsteads which are in a ruinous state. If the amount of money there deposited is considerable and the prince wishes to undertake a worthy cause such as organising a military campaign, repairing a frontier outpost or defending Muslim subjects against [Christian] enemies, the qà∂ì is allowed to withdraw whichever sum he deems as appropriate from the treasury and hand it over to him as financial aid intended to ameliorate the condition of the Muslim community; he will only receive the amount the qà∂ì considers appropriate for he is responsible for the way in which these funds are spent. He will not give him money so that he can invest it and raise a profit as [the prince] would squander it and the qà∂ì will have to justify the way in which those monies were spent when Judgement Day comes, he will be the one at risk of being exonerated or chastised because of his decisions. Ibn 'Abdùn, Risàla, pp. 200–201
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14: Commemorative epigraph of a Sevilian mosque Basmala, taßliyya. Al-Mu'tamid 'alà Allàh al-Mu"ayyad bi-naßri Allàh, Abù-l-Qàsim Mu˙ammad b. 'Abbàd—may God continue the assistance he provides to his empire and grant him final victory—commanded the building of the top part of this minaret—may the call to prayer be always uttered from it—after it had collapsed after a series of tremors which took place the day before Sunday at the start of Rabì' I of the year 472 (1/9/1079). It was completed thanks to the power and assistance of God towards the end of the said month. It is to be wished that God recognises through this building his generous undertakings and rewards him for each stone employed in its construction—may He erect a palace for him in return for his blessings and generosity—. (Bottom engraving): This work was carried out by Abù Ibràhìm (Ibn Afla˙?), the marble artisan, at the behest of the ßà˙ib al-a˙bàs and the treasurer Abù 'Umar (A˙mad) b. ˇayyib, may God grant him His favour. D. Oliva, E. Gálvez and R. Valencia, ‘Fondos epigráficos del Museo Arqueológico de Sevilla’, 460–461, no 8. 15: Barter of a pious endowment in favour of a mosque (Al-Mawwàq) was asked about a piece of land (maw∂i') turned into a ˙ubs and assigned to an old mosque, a sixth of which belonged to a ràbi†a, with the subsequent damage this inflicted to the ˙ubs of the old mosque. Is it possible to exchange it for another plot from among the a˙bàs belonging to the mosque to avoid the damage? He replied: It is not lawful to substitute another endowment for a ˙ubs, nor sell it; it must therefore be left as it was in previous years, thus fulfilling the donor’s wishes (qaßd al-mu˙abbis) and implementing its clauses. Its sale is not permitted even though this might result in a profit (maßla˙a) as this is akin to disposing of someone else’s property without due authorisation. Al-Wansharìsì, Mi'yàr, VII, p. 134 16: Jurisprudence on the use of mosques’ proceeds In this case it is absolutely clear that the revenues are to be used for issues affecting worship only, not for ransoming captives, giving
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alms to the poor, paying the salaries of masters or any other thing as this would mean that the foundation is diverted towards aims for which it was not established. The problem resides in distributing the revenues generated by these assets, a difficulty which requires a detailed explanation as most assets established as waqfs suffer from the same type of imprecision. Certainly, when they were founded, each was allocated to a particular mosque; an administrator had to be appointed for some of them later on; these administrators were negligent and became muddled up when it came to apportioning those revenues and, as a result, the latter had to be adjudicated in a similar way to that in which the distribution of the subsidies given by the Public Treasury is conducted. The official must strive to allocate a certain share of the revenues to each mosque, roughly a part equal to the produce yielded by its own endowments as far as this possible if they had been operated separately. Once those revenues have been allocated, the imàm of the mosque whose waqfs are mixed up with those belonging to others is not authorised to solicit or accept increments on top of the amounts lawfully allocated by the supervisor; this increase would have to be carried out to the detriment of other mosques and it is not legal because it is tantamount to channelling the assets that make up the foundation towards other purposes. Even in the case when the revenues fixed by the qàdìm have diminished, this administrative readjustment was, after all, a legal operation as no additional resources were available. As for the specific issue raised here, that is the lawfulness of merging these assets in a way in which they can be more profitable financially, it is claimed that there exists a precedent, the assets belonging to the Bayt al-màl which can be administered in whichever way it is deemed appropriate as long as they are profitable, as in any other exploitation administered rightly. But it is not the same case: the Bayt al-màl does not earmark its earnings for specific purposes and, even if it did, it is not obliged to meet those needs precisely with those funds. The assets which have been set up as a waqf, on the contrary, must be devoted to specific aims due to their very nature. If the purposes for which each waqf were created can be determined, then there is no other option but carry them through. If the foundation charter cannot be located, one must at least try to devote the profit generated by those endowments to an undertaking which resembles closely the essential mission of a waqf. This is achieved by implementing the measures described above, that is
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when the qà∂ì allocates a certain share to each mosque as thought they were the revenue of its own waqf. It is not permissible, therefore, to alter these new regulations, nor adopt measures intended to make it more profitable as increasing or diminishing a waqf entails to devote it to a purpose other than that envisaged in the foundation charter. Al-Wansharìsì, Mi'yàr, VII, pp. 101–102 One of them was asked about some land (dimna) set as a ˙ubs and covered with olive trees belonging to a mosque whose rents were used as a usufruct by the imàm. This year, at the beginning of the month of October, the imàm left and was replaced by another. Who is entitled to the rents paid on this year’s olives, the imàm who has left, the one who took up his place or both? He replied: The harvest (ghalla) must be shared by both imàms and distributed according to the length of time each performed his office and for a period spanning last year’s olive harvest and this year’s. Al-Wansharìsì, Mi'yàr, VII, p. 139 He was asked about a mosque endowed with a˙bàs specifically donated for building (binà") purposes, prayer mats, lighting oil and candles to provide light for reading the ˙adìth; a certain surplus of dirhams were accumulated after some years. The imàm of the mosque lives in rented accommodation. Is it permissible to purchase a house with the surplus money generated by the said a˙bàs so that the imàm can live in it without having to pay rent or, on the contrary, will he only be authorised to reside in it in return for rent? He replied: If the aims of the a˙bàs concerned are properly fulfilled, the imàm can live in the house bought thanks to surplus revenues (wafra) without paying rent. Al-Wansharìsì, Mi'yàr, VII, pp. 139–140 He was asked about a Friday mosque with its ablutions hall situated next to it. As the years passed by, the quarter and the number of its inhabitants grew to a point when the said mosque was no longer large enough so as to accommodate them all; as a result, another mosque was erected and the Friday sermon (khu†ba) was moved there. An ablutions hall was also built next to it and the new mosque was endowed with numerous pious endowments and properties which ensured its upkeep; it became so wealthy, in fact, that
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it hired a rents collector (qàbi∂ ). The first Friday mosque was neglected and its pious endowments became dilapidated with the result that it is very poor nowadays with the exception of the income it raises through the alms (ßadaqàt) God Almighty generously provides and voluntary donations (nawàfil ) made by [devout] Muslims. The ablutions hall attached to the said mosque is also no longer in use and a shop (˙ànùt) has been built on its former site. Who is entitled to the said shop, the ablutions hall of the well-off mosque or the Friday mosque for which it was intended originally, so that it can provide it assistance and its profits used to meet its needs (maßàli˙)? He replied: The answer is, God help me, that the new shop must be devoted to whatever the administrator of pious endowments (nàΩir al-a˙bàs) deems appropriate. If he can do without it, he is authorised to devote it to any charitable purpose ( fì-mà huwa min subul alkhayràt). This is the view of some 'ulamà" and, based on this opinion, rulings were issued in Córdoba, among them those by the qà∂ì Ibn al-Salìm, for it is said that there is no harm in mutual cooperation when it comes to God’s matters. Thus, devoting the profits generated by that shop to the poor mosque, if the administrator so resolves, would conform with Córdoban’s legal practice ('amal ), whereas using it for the benefit of the new ablutions hall is also an admissible option. The administrator must therefore reflect on this matter and his decision will be welcomed as correct (ßa˙ì˙) as long as it is in conformity with the solutions here suggested. This is the view of Abù 'Abdallàh Mu˙ammad b. ManΩùr, personally recorded in writing. Al-Wansharìsì, Mi'yàr, VII, pp. 146–147 Al-Saraqus†ì was asked about a mosque who had a pious endowment (˙ubs); the text of the donation happened to stipulate that the endowment had to be employed to raise funds for renovation works (binà"), the purchase of prayer mats and oil for lamps, or to meet any other need the said mosque might have. Is the community ( jamà'at al-masjid ) authorised to allocate a part of the ˙ubs to the imàm or the muezzin of the said mosque? He replied: The ˙ubs must not be devoted to a purpose (maßrif ) other than that stipulated by the donor, that is to repairs, prayer mats or oil. These aims must not be changed and whoever tries to do so will be guilty of altering [the founder’s clauses]. Al-Wansharìsì, Mi'yàr, VII, p. 160
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17: Pious endowment of unknown purpose Ibn al-Qa††àn issued a fatwà regarding a ˙ubs whose revenues were to be used for purposes that remained unknown; he ruled that they ought to be used to pay for repairs to the ramparts as the purpose of a mosque is for prayer to be held there and prayers cannot be held in a mosque if the place where it is located has not been fortified. What remains of the oil should be treated as earnings (of the ˙ubs) and the benefit the mosque derives from the ramparts is the best use one can make of them and overrides any other considerations in spite of the fact that the donation charter specifies that revenues are to be allocated to another mosque. In this particular case, repairing the defences of the fortress (˙ißn) hardly matters, to those who benefit from the light provided by the oil; completing these works is a more pressing need than providing lighting and their benefit more tangible to everyone. Al-Wansharìsì, Mi'yàr, VII, pp. 132–133 18: Supplying forage for a horse He was asked—may God be pleased with him—about a man who donated a horse ( faras) in favour of another so that the latter can use it to wage jihàd against the enemy (al-'aduww): who should be responsible for supplying forage for the horse? Enlighten us, if it pleases God Almighty. He replied: May God help him. I have read your query and reflected on it. The donor is not responsible for foraging the horse he has donated unless he wishes to do so; this means that if the beneficiary refuses to provide forage for it, the horse will be returned to its owner (milk la-hu), if the donation had been made to a particular individual and not in perpetuity; if he had donated the animal in order to please God and in perpetuity and he declines to pay for its upkeep, the horse should be handed over to someone else who promises to provide forage for it and use it for the jihàd. May God give me guidance. Ibn Rushd, Kitàb al-fatàwà, ed. Al-Talìlì, I, pp. 313–314, no 66; ed. Al-Tajkànì, I, pp. 252–253, no 61.
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19: Expropriation of pious endowments for enlarging a mosque He was asked by the jurist and judge Abù 'Abdallàh b. 'Ìsà while in the town of Ceuta where he held the post of qà∂ì on the enlarging of a local mosque as jurists disagreed on the issue. The text of the legal query is as follows: What is your view on the case of a town’s Friday mosque which has now become too small for people to gather and pray in it and is then in need of an extension but the area surrounding it is occupied by privately-owned shops whose owners have been asked to sell off their establishments to make room for the extension and they refuse to do so? Would it be possible to force them to sell their businesses in return for financial compensation? What are we to do if some argue that they are unable to sell adducing that their assets have been turned into a ˙ubs but do not provide convincing proofs that that is the case? Can they be forced to sell as well provided that they have received a sum equivalent to the value of their businesses? What about in case they provide irrefutable evidence that the ˙ubs does actually exist? Can they be compelled to sell due to the undeniable need to make room for the extension or, on the contrary, do we need to offer them, in exchange, a leasehold of one of the revenue-generating assets presently belonging to the mosque provided that the mosque can raise enough cash out of this transaction so as to purchase the said shops? You are well aware of what Ibn çabìb, Abù al-Faraj and others reported on this issue. Clarify this matter for us, God willing. Response. If the Friday mosque is no longer big enough to host all local residents and needs an extension as you say but there is nothing in the abutting area but shops whose owners refuse to sell up, it is compulsory in this case to go ahead and expropriate them after paying their value; this will be done either with the acquiescence or in spite of the resistance posed by the shopkeepers affected as it constitutes a pressing need and will be for the benefit of all residents. This was the view of Ibn al-Màjishùn, as reported by Abù Zayd in his Thamàniyya, and is subscribed by most of our ancient sages. In conformity with this criterion, 'Uthman b. 'Affan ruled against homeowners who refused to sell their properties so that the Prophet’s mosque could be enlarged, regardless of whether they were a˙bàs or not.
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Ibn 'Abdùs reports Sa˙nùn’s ruling: he was asked to decide on the case of a river flowing next to a public path whereas the land situated on the other side of the path was privately-owned. The river basin gradually changed direction and ended up flooding the path, rendering it impassable. His view was that if a nearby path along which people could walk was available without affecting anyone, then the public had no right whatsoever to trespass the private farmland and turn it into a place of transit. If, however, the disappearance of the path did affect them adversely, he believed that the authorities must seize as much land belonging to the private property as necessary in order to open a new path; its owner would receive a sum equivalent to the value of the land expropriated and this amount would come from the Treasury of the Community. This case is identical to the one you are raising. There is no difference between them. They involve the same issue: that of those circumstances in which one must rule against private property and in favour of what represents a public benefit. It is the same case referred to by Màlik and other jurists: if the price of crops becomes too dear and shortages occur as a result but crops are stockpiled somewhere in the country, the authorities must force hoarders to bring them into circulation and sell them at the market due to the fact that people are in dire need of them. Ibn Rushd, Kitàb al-fatàwà, ed. Al-Talìlì, I, pp. 262–269, no 46 20: Sale of a pious endowment I asked: is it lawful, according to Màlik, to donate clothes in favour of specific individuals, of the poor or in God’s name ( fì sabìl Allàh)? (Ibn al-Qàsim) replied: I have not heard Màlik say anything in this respect and I see nothing wrong in a man donating clothes or saddles. I said: and with regard to weak beasts donated in order to please God and clothes in bad condition, what must one do in Màlik’s view? He replied: about mounts lacking enough strength to engage in combat, Màlik believes that they must be sold and the money thus obtained used to purchase other horses devoted to that purpose. Ibn al-Qàsim said: if the money resulting from the sale was not enough to purchase a horse, a camel or a nag, it will be used as a contribution in order to raise enough money to acquire a horse. With regard to clothes which no longer have any use, they must be
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sold and the resulting amount employed to buy useful ones; if the amount available is not enough to buy anything useful, it will be distributed to please God. Ibn Wahb reported: I heard Màlik say that if a horse donated in God’s name catches rabies and becomes sick, it is not wrongful to sell it and buy a replacement. Sa˙nùn said: a slave or piece of fabric donated to please God must not be sold. He said: were they to be sold, a property set as a ˙ubs and in a dilapidated state would also have to sold. The reason for this is that most a˙bàs are old and in a poor state and the fact that they have been kept in this state of neglect, unsold, must be considered as evidence or argument that their sale is not licit. Can you not see that if their sale were licit they would have been sold by those who preceded us and that the fact that they remain in a dilapidated state proves that their sale is illicit? It would be a strong enough argument for you that as concerns an issue broached previously in the past, one must do the same as it was done earlier. A˙bàs are old and are kept in a state of neglect and this proves that their sale is not licit; if it were licit, the earliest members of this umma would not have erred and those who let them fall into disrepair did not do so out of ignorance, even though Rabì'a may hold the contrary regarding buildings and animals, and if the imàm [ruler] deems it necessary. Ibn Wahb (said), according to al-Layth’s report: I heard Ya˙yà b. Sa'ìd rule on the issue of a horse donated to a man who had sold it later that he should not have used it for purposes other than those it was to serve, unless he feared that it might fall sick or become too weak; these circumstances could make its sale a lawful transaction but the seller was enjoined to purchase a replacement horse which had not be set aside as a ˙ubs. Sa˙nùn, al-Mudawwana, XV, pp. 99–100 Ibn Siràj was asked about some sha'rà" situated in the districts (a˙wàz) of the qaryat Qar†ama belonging to the district ('amal ) of Comares made into ˙ubs in favour of the mosque of the said qarya over a hundred years ago in spite of the fact that the said mosque had not been in use since being set as a ˙ubs. Local villagers wish to sell it now and use the money thus raised to restore the mosque. Its value amounts to 7 silver 'ashriyya dinars. Can they sell it or not? He replied: If the situation has not changed, let the sale proceed and use the earnings for the benefit of the said mosque. Al-Wansharìsì, Mi'yàr, VII, p. 153
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21: Jurisprudence on a pious endowment founded in favour of passers-by Abù Is˙àq Ibràhìm b. A˙mad b. Fattù˙ was asked about a man from the district (†à'a) of Comares who found 5 silver dinars and kept them for three months as he could not find out who owned them. The faqìh and imàm of the mosque of one of the villages (qurà) of the said †à'a was informed of this and they resolved to invest the said dinars in the purchase of a tree root standing on the path leading to the said village (qarya) and establish it as a pious endowment in favour of passers-by; whatever sum remained from this transaction would be given as alms to the infirm and the needy. Sir, God protect you! Perhaps you could let us know whether this action is right. He replied: If someone turns up claiming the said coins and [describes] his whereabouts when he lost them, they will be returned to him; if not, they will be entrusted to a custodian (∂amìn), that is the person who found them (multaqi†). Al-Wansharìsì, Mi'yàr, VII, p. 152 22: Jurisprudence on the use of building materials of a demolished mosque A question was raised concerning a village (qarya) in the lands (ar∂) of Comares known as al-Zàwiya, a qarya which had become dilapidated and impoverished [with the passing of time]. Another qarya, called al-Zanj claimed its right to partake of the inheritance of its mosque (a˙à†a bi-mìràth masjidi-hà) but the qaryat al-Zanj did also become impoverished and the qaryat Aqù†a (Cútar) then claimed to have a right to partake of the inheritance of its mosque. The mosque of the qaryat al-Zanj no longer had any buildings left standing and we have being collecting all the materials left after it was demolished such as plaster, wood and rafters. Is it lawful for us to gather all that remains of it still in good condition provided that there is a reason for this? We would like your response to shed light on the contents of this sacred query. He replied: A dilapidated mosque where no prayer is held can provided building materials for its neighbours. Let them collect materials left after it has been demolished so that they can be used in the construction of another mosque. Al-Wansharìsì, Mi'yàr, VII, pp. 153–154
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A question was posed concerning the mosque of the qaryat al-Zanj situated in the district (†à'a) of Comares, a third of which had collapsed ten years ago as this qarya had been abandoned and left uninhabited for over sixty years. The people of the qaryat Qù†a (Cútar) now want to pull down what remains standing so that they can use its materials for their own qarya. Are they allowed to do this? [If they are not], how are they to restore it when they have no capability to do so? He replied: The answer is that the mosque must not be demolished but left as it is even though some a˙bàs have been allocated to it from which it derives its revenues (ghalla). Al-Wansharìsì, Mi'yàr, VII, p. 162 23: Unlawful change of some pious endowments He was asked about some a˙bàs donated quite a long time ago in favour of whoever recited the Qur’àn by their founders’ tombs; the reader was to enjoy the usufruct of the proceeds ( fà"id ) produced by the said a˙bàs. And also about some a˙bàs donated in favour of the poor (masàkìn) whose rent (kirà") was used to purchase clothes which was later distributed among them on the occasion of the Feast of Sacrifice. Now, some people ( jamà'a) have tampered with the said a˙bàs and want to transfer their revenues to the fortress of Zalía, may God protect it, due to its precarious situation. Is this licit according to the law (sharì'a) so that both they and those who perpetrated such an act can be worthy of God’s favours and rewards or, on the contrary, will those who replace and alter endowments be banished from the vicinity of God’s Messenger? He replied: The said ˙ubs must not be devoted but to the two aims mentioned above as a donation made in their favour is legal and God said: ‘if any man changes it after heraring it the sin shall rest upon those who change it’ (Qur"àn, II, 181). Al-Wansharìsì, Mi'yàr, VII, p. 139
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INDEX OF PROPER NAMES
'Abbàs b. Mu˙ammad b. 'Abd al-'AΩìm al-Sulay˙ì, 330 'Abdallàh (emir), 75, 214, 250, 324, 334 'Abdallàh b. A˙mad al-Baqannì, 196 'Abdallàh b. Asad, 95, 223 'Abdallàh b. Dìnàr, 225 'Abdallàh b. Ri∂à b. al-Mundhir al-Ru'aynì, 335 'Abdallàh al-'Urshànì al-Asadì, 73 'Abdallàh b. Ya'ìsh, 225 'Abd al-Óamìd al-Íà"igh, 217, 403 'Abd al-Ra˙màn I, 69, 70, 244, 408, 438, 442 'Abd al-Ra˙màn II, 72, 73, 74, 78, 95, 142, 198, 253, 408, 442, 443 'Abd al-Ra˙màn III al-Nàßir, 95, 207, 214, 330, 410, 411, 412, 413, 414, 416, 422 'Abd al-Ra˙màn b. A˙mad b. Sa'ìd al-Bakrì (see Ibn 'Ajab) 'Abd al-Ra˙màn b. Mu˙ammad (see Ibn Sulaymàn) 'Abd al-Ra˙màn b. Mu˙ammad b. al-Bayrùla, 267 'Abd al-Ra˙màn b. ˇarìf al-Ya˙subì (see al-Ya˙subì) Al-'Abdùsì (not specified), 107 Al-'Abdùsì, Abù Mu˙ammad 'Abdallàh, 34, 365, 406, 407, 449 Al-'Abdùsì, Mùsà, 352, 449 Abù-l-'Abbàs A˙mad, 406 Abù-l-'Abbàs al-Sharìf, 271, 274, 283, 289, 313 Abù 'Abdallàh b. al-Faraj, 140, 189 Abù 'Abdallàh Mu˙ammad b. 'Abdallàh b. Óassùn (see Ibn Óassùn) Abù 'Abdallàh Mu˙ammad b. Óamdìn (see Ibn Óamdìn) Abù 'Abdallàh Mu˙ammad al-Sàhilì, 227 Abù 'Abdallàh Mu˙ammad b. alÓasan al-Judhàmì al-Nubàhì, 304, 418, 437 Abù 'Abdallàh al-Tanjàlì, 209 Abù 'Amr b. ManΩùr (see Ibn ManΩùr, Abù 'Amr)
Abù Bakr A˙mad b. 'Amr al-Shaybànì (see al-Khaßßàf ) Abù Bakr Mas'ùd al-Kasànì, 61 Abù Bakr al-ˇur†ùshì (see al-ˇur†ùshì). Abù-l-Barakàt al-Balàfiqì, 238 Abù-l-Faraj al-Màlikì, 345 Abù-l-Ghimr b. Fahd (see Ibn Fahd) Abù Óanìfa, 62 Abù-l-Óasan 'Alì b. Mu˙ammad, 189 Abù-l-Óasan al-'Àmirì, 5, 284, 289, 467 Abù-l-Óasan al-Lakhmì, 195 Abù-l-Óasan al-Íaghìr, 248 Abù-l-Óasan sìdì 'Alì Ma˙sùd, 204, 372, 465 Abù Ibràhìm al-Andalusì, 5, 383, 449, 467 Abù 'Imràm (al-Fàsì), 433, 459 Abù Jazìd Khàlid Abù Mu˙ammad 'Abdallàh b. A˙mad b. al-Makwì (see Ibn al-Makwì) Abù Mu˙ammad 'Abd al-'AΩìm b. al-Shaykh, 418 Abù Mùsà al-Tilimsànì, 247 Abù-l-Mu†arrif 'Abd al-Ra˙màn b. Bashìr, 14 Abù-l-Qàsim b. Aßbagh b. Mu˙ammad, 162 Abù-l-Qàsim b. Juzzay, 15 Abù 'Umar A˙mad b. ˇayyib, 267 Abù 'Umar al-Ishbìlì, 428, 429 Abù-l-Walìd b. Jahwar (see Ibn Jahwar) Abù Ya'qùb Yùsuf, 5, 418 Abù Yazìd Khàlid, 113 A˙mad b. 'Abdallàh b. 'Abd al-Ra˙ìm b. Kinàna (see Ibn al-'Annàn) A˙mad b. Khàlid, 73 A˙mad al-Qabbàb, 102 A˙mad (b. Mu˙ammad) b. Ziyàd (see Ibn Ziyàd) 'Ajab, 71, 75, 95, 206, 207, 208, 253, 411 'Alì b. 'Abdallàh b. al-Óasan al-Qabìsì (see Ibn al-Sunaydì) 'Alì b. Óammùd, 416 Almanzor (Ibn Abì 'Àmir), 10, 39, 90, 94, 244, 413, 414
540
index of proper names
Aßbagh b. al-Faraj (Egyptian Màlikì jurist) 73, 91, 92, 94, 140, 360, 367, 373, 400, 449 Aßbagh b. al-Faraj (Andalusian jurist), 402, 449 Ashhab b.'Abd al-'Azìz, 73, 135, 249 Al-Aßìlì (Abù Mu˙ammad), 90, 449 Aslam b. 'Abd al-'Azìz, 76, 77 Averroes, 14, 247, 428, 430, 431, 453 Al-Awzà"ì, 62 Ayyùb b. Sulaymàn (see Ibn Sulaymàn) Bàdìs b. Óabbùs, 250, 334 Al-Bahà", 95 Al-Bàjì, 260, 398 Boabdil, 38 Daysam b. Is˙àq, 216 Faraj b. Abì-l-Óakam al-Ya˙ßubì, 98, 225 Al-Faraj b. Óadìda, 242 Al-Faraj b. Kinàna al-Kinànì, 74, 304 Al-Fishtàlì, 110, 283, 284, 449 Al-Óabìb b. Ziyàd, 10 Al-Óaddàd, 463 Al-Óaffàr, 6, 131, 233, 234, 235, 237, 252, 255, 289, 345, 351, 357, 383, 449, 465 Al-Óakam I, 71, 95, 198, 206, 253, 304, 411 Al-Óakam II, 199, 200, 201, 220, 224, 238, 298, 305, 308, 395, 407, 408, 410, 427, 443 Óakam b. Sa'ìd al-Óà"ik, 416 Al-Óàkim bi-amr Allàh, 405 Óammùd b. Khalaf b. Abì Muslim al-Sadafì, 33, 153 Hàrùn b. Sàlim, 73, 98, 223, 298, 439 Hàshim b. A˙mad b. Ghànim b. Khazìma al-Ghàfiqì, 331 Hàshim b. Mu˙ammad b. 'Abd al-Malik al-Anßàrì, 331 Hilàl b. Ya˙yà (see Ya˙yà al-Ra"y), 8, 56 Hishàm II, 331 Hishàm III, 314, 416, 422 Hishàm b. 'Abd al-Malik, 66 Ibn 'Abd al-'Azìz, 127 Ibn 'Abd al-Óakam, 248, 249, 373, 429, 432
Ibn 'Abd al-Salàm, 106, 107, 306, 399, 450 Ibn 'Abdùn, 16, 138, 194, 205, 239, 245, 249, 251, 270, 306, 317, 318, 319, 320, 321, 322, 323, 324, 325, 326, 328, 334, 335, 335, 366, 397, 421, 423, 427, 437 Ibn 'Abdùs, 375 Ibn Abì 'Àmir (see Almanzor) Ibn Abì 'Ìsà, 127 Ibn Abì Salama, 209 Ibn Abì Shayba, 330 Ibn Abì Zamanìn, 9, 96, 170, 172, 305, 386, 450, 462 Ibn Abì Zayd, 15, 50, 91, 111, 153, 345, 382, 398, 450 Ibn 'Ajab, 332 Ibn al-'Annàn, 331 Ibn 'Allàl, 352, 450 Ibn 'Allàq, 211, 212, 289, 301, 302, 303, 450, 465 Ibn al-'Arabì, Abù Bakr, 247, 250 Ibn al-'Arabì, Mu˙yì-l-Dìn, 233, 450 Ibn 'Arafa, 261, 277, 286, 352, 383, 398, 399, 451 Ibn al-'Àsì, 374, 378 Ibn 'Àt, 352, 378, 451 Ibn 'Attàb, 49, 92, 93, 109, 112, 131, 162, 164, 165, 189, 219, 277, 313, 374, 451, 462 Ibn al-'A††àr, 5, 13, 41, 80, 83, 86, 114, 115, 119, 120, 125, 126, 132, 133, 135, 139, 142, 143, 145, 152, 153, 155, 166, 168, 169, 170, 172, 173, 180, 187, 188, 190, 200, 207, 211, 216, 219, 239, 296, 310, 317, 346, 355, 370, 398, 431, 433, 463, 468 Ibn Ayman, 70, 148, 309, 363, 451 Ibn Ayyùb al-Óaddàd, 332 Ibn Baqì, 411, 413, 416 Ibn Bar†àl, 332 Ibn Da˙˙ùn, 39, 138, 314, 388, 462, 463 Ibn Dhakwàn, 326, 332, 333, 415, 417 Ibn Fahd, 75 Ibn Far˙ùn, 15, 120 Ibn al-Fakhkhàr, 9, 128, 336, 355, 451, 461, 462 Ibn Fa†ùh, 196, 234, 235, 257, 402, 451, 467 Ibn al-Farrà", 38 Ibn Ghàlib, 114, 207, 208, 407
index of proper names Ibn Óabìb, 5, 6, 72, 73, 74, 78, 79, 98, 126, 150, 164, 249, 352, 354, 355, 357, 360, 361, 362, 368, 373, 386, 439, 442, 451, 461 Ibn al-Óàjj, 6, 42, 88, 105, 112, 136, 140, 162, 176, 177, 178, 199, 209, 256, 283, 288, 356, 401, 403, 431, 443, 451, 464 Ibn Óaddàd, 138, 314, 332 Ibn Óamdìn, 31, 38, 39, 52, 167, 168, 169, 170, 172, 452, 463 Ibn Óammàd, 398, 429, 452, 464 Ibn Óanbal, 62 Ibn Óarìsh, 314, 315 Ibn Óassùn, 53, 128 Ibn Óayyùna, 412 Ibn al-Hindì, 9, 148, 309, 311, 385 Ibn Hishàm al-Qur†ubì, 15, 305, 346 Ibn Hùd, 418 Ibn al-Imàm, 362, 452 Ibn Jàbir, 368 Ibn Jahwar, Abù-l-Walìd, 417 Ibn Jahwar, Abù-l-Óazm, 417 Ibn al-Jayyàr, 416, 422 Ibn Juzzay, 90, 121, 252, 306, 329, 347, 399, 452, 465 Ibn Khafàja, 423 Ibn Khàlid, 79 Ibn Lubàba, 9, 79, 127, 202, 207, 361, 381, 407, 411, 412, 413, 422, 439, 452, 462 Ibn Lubàba, 'Abdallàh Mu˙ammad b. Ya˙yà, 410 Ibn Lubb, 6, 42, 86, 96, 105, 179, 225, 238, 250, 260, 268, 271, 272, 279, 285, 290, 292, 307, 342, 349, 350, 358, 359, 363, 364, 367, 377, 452, 465 Ibn Ma'àfì, 126 Ibn Ma˙rùq, 229, 298 Ibn al-Màjishùn, 126, 128, 140, 150, 164, 346, 354, 355, 356, 357, 360, 367, 373, 375, 401, 434, 452 Ibn al-Makwì, 9, 104, 112, 130, 163, 172, 200, 247, 311, 312, 354, 371, 372, 384, 417, 452, 462 Ibn al-Mashshà†, 298 Ibn ManΩùr, Abù 'Abdallàh, 256, 390, 452, 462 Ibn ManΩùr, Abù 'Amr/Abù 'Umar, 32, 108, 136, 218, 219, 251, 256, 258, 275, 289, 290, 291, 292, 301, 302, 312, 315, 349, 357, 365, 379, 396, 409, 453, 466
541
Ibn Marzùq, Mu˙ammad, 32, 106, 453 Ibn al-Mawwàz, 171 Ibn Mu'àdh, 202, 361 Ibn Mughìth, 13, 14, 125, 128, 129, 134, 135, 143, 188, 193, 206, 216, 239, 248, 249, 256, 259, 267, 288, 296, 297, 306, 328 Ibn Muzayn, 386 Ibn al-Ni'ma, 107, 241, 453, 464 Ibn al-Qabbàb, 122 Ibn al-Qàsim, 64, 74, 91, 92, 93, 94, 126, 134, 136, 153, 164, 248, 249, 287, 346, 356, 360, 362, 366, 373, 375, 386, 401, 430, 453 Ibn al-Qa††àn, 49, 91, 93, 94, 105, 130, 137, 189, 215, 218, 219, 313, 368, 369, 453, 463 Ibn Qayyim, 400 Ibn Rizq, 170, 175 Ibn Rushd, 6, 10, 11, 12, 15, 28, 32, 33, 35, 38, 39, 42, 43, 49, 52, 53, 97, 100, 102, 109, 112, 123, 127, 128, 129, 130, 131, 134, 136, 151, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 165, 166, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 181, 182, 206, 217, 220, 224, 240, 249, 269, 273, 275, 276, 279, 283, 287, 311, 316, 347, 348, 349, 351, 352, 353, 355, 359, 363, 372, 374, 375, 376, 377, 430, 435, 463, 464 Ibn al-Íaffàr, 314 Ibn Sahl, 10, 42, 43, 78, 90, 91, 92, 93, 126, 130, 135, 136, 137, 189, 203, 209, 240, 309, 313, 333, 345, 354, 364, 367, 368, 381, 403, 453, 462, 463 Ibn al-Salìm, 44, 80, 148, 170, 182, 199, 267, 279, 305, 308, 312, 331, 335, 360, 361, 363, 367, 368, 390, 408, 439, 453 Ibn Salmùn, 101, 121, 135, 260, 381, 403, 463 Ibn Salmùn al-Masìlì, 314, 315, 334 Ibn al-Shaqqàf, 314, 315, 463 Ibn Shàs, 398 Ibn Siràj, 6, 87, 100, 101, 102, 224, 260, 285, 289, 290, 349, 350, 381, 382, 387, 388, 399, 453, 466 Ibn al-Sunaydì, 334, 341 Ibn Sulaymàn, 5, 6, 75, 79, 80, 114, 127, 202, 315, 361, 407, 439, 454, 461
542
index of proper names
Ibn Tàshufìn, 'Alì b. Yùsuf, 376 Ibn al-ˇallà', 356 Ibn Wahb, 345, 346 Ibn Walìd, 114, 127, 202, 381, 407 Ibn Ward, 94, 454, 464 Ibn Zannùn, 335 Ibn Zarb, Abù Bakr Mu˙ammad b. Yabqà, 6, 9, 10, 44, 80, 136, 148, 159, 172, 354, 355, 388 Ibn Zarb, Abù Bakr Ya˙yà, 128, 136, 137, 309, 331, 332, 462 Ibn Zarq, 463 Ibn Ziyàd, 10, 70, 75, 76, 77, 126, 332, 381, 407 Ibn Ziyàd al-Judhamì, 324 Ibràhìm b. Dàwud, 208 Ibràhìm b. Mu˙ammad b. Ya˙yà, 417 Ihtizàz, 78 Al-Ilbìrì, 435, 434 'Ìsà b. Fu†ays, 201, 298 'Ìsà al-Ghubrìnì, 195 'Ìsà b. Dìnàr, 73, 92, 93, 164, 451 'Iyà∂, 11, 12, 16, 33, 35, 42, 53, 76, 94, 218, 257, 305, 316, 401, 410, 411, 412, 413, 414, 417, 454, 464 Ja'far b. 'Abd al-Ra˙màn al-Siqlàbì, 201, 298 Jaime II, 221, 380 Al-Jarsìfì, 403, 423 Al-Jazìrì, 14, 84, 100, 134, 143, 148, 150, 153, 164, 167, 172, 173, 180, 188, 199, 203, 215, 216, 239, 248, 249, 259, 268, 269, 297, 301, 306, 308, 333, 371 Jidhmìr al-'Ajamì, 75 Khadìja bt. Ja'far b. Nußayr b. al-Tammàr al-Tamìmì, 95, 223 Khalaf b. A˙mad b. Khalaf al-Anßàrì, 98, 121, 216 Khalaf b. Wazìr, 334 Khàlid b. Wahb, 401, 454 Khalßa b. Mùsà b. 'Umràn al-Ràyyì al-Zàhid, 99 Al-Khaßßàf, 8, 56, 58, 60, 63, 64, 66, 80, 82, 87, 89, 145, 166 Al-Lujà"ì, 406 Al-Lu"lu"ì, 79, 454, 459, 462 Mahdì b. Muslim, 304 Makkì b. Íafwàn, 77, 334 Màlik b. Anas, 30, 62, 64, 126, 134, 136, 150, 151, 154, 160, 167, 168,
169, 170, 171, 173, 174, 223, 249, 295, 345, 346, 360, 362, 373, 375, 401, 412, 413, 429, 430, 454 Al-Manßùr (see Abù Ya'qùb Yùsuf ) Al-Manßùr 'Abd al-'Azìz b. Abì 'Àmir, 38 Marjàn, 95 Marwàn b. 'Abd Allàh b. Marwàn al-Tujìbì, 335 Al-Mawàsì, 121, 122, 399, 455 Mawshida, 78 Al-Mawwàq, 6, 39, 102, 107, 108, 112, 113, 141, 191, 203, 219, 221, 225, 251, 258, 269, 281, 282, 286, 289, 291, 292, 299, 300, 351, 356, 357, 365, 368, 369, 379, 381, 382, 391, 399, 454, 465 Al-Minthurì, 402, 455, 467 Mu'àdh b. 'Uthmàn al-Sha'bànì, 76, 439 Al-Mughìra, 78 Mu˙ammad (the Prophet), 57, 58, 60, 63, 91, 96, 146, 235, 236, 237, 246, 373, 375, 438, 441 Mu˙ammad I, 77 Mu˙ammad III, 409 Mu˙ammad V, 18, 210 Mu˙ammad IX, 18, 434 Mu˙ammad b. 'Abd al-Malik b. Ayman (see Ibn Ayman) Mu˙ammad b. 'Abdallàh b. Abì 'Ìsà, 331 Mu˙ammad b. 'Abdallàh b. Abì Zayd al-Qayrawànì (see Abì Zayd) Mu˙ammad b. A˙mad b. Sulaymàn b. 'Abd Allàh al-Tujìbì, 334 Mu˙ammad b. A˙mad b. 'Ubayd Allàh al-Ru'anì (see al-Mashshà†) Mu˙ammad b. 'Amrùs al-'Àßì, 333 Mu˙ammad b. Dàwud, 112, 355 Mu˙ammad b. Ghàlib, 207, 208 Mu˙ammad b. Hishàm b. al-Layth al-Ya˙ßubì, 330 Mu˙ammad b. Ibràhìm b. Sa'ìd al-Qaysì, 331, 332, 432 Mu˙ammad. b. 'Ìsà b. Faraj b. Abì-l-'Abbàs b. Is˙àq al-Tamìmì, 98 Mu˙ammad b. 'Ìsà al-Tujìbì, 223 Mu˙ammad b, Is˙àq b. al-Salìm (see Ibn al-Salìm) Mu˙ammad b. Ismà'ìl, 112, 355, 356, 463 Mu˙ammad b. Khàlid, 78, 298 Mu˙ammad b. Makkì b. Abì ˇàlib b. Mu˙ammad b. Mujtàr al-Qaysì, 333
index of proper names Mu˙ammad al-Manßùr bi-llàh al-Naßrì, 196 Mu˙ammad b. Mu˙ammad b. Abì Dulaym, 298 Mu˙ammad b. Muhàrib al-Íarìhì, 98, 223 Mu˙ammad b. Qàsim b. A˙mad al-Anßàrì, 227 Mu˙ammad b. Sa'ìd b. 'Abd Allàh b. Qar†, 331 Mu˙ammad b. Salama, 77 Mu˙ammad b. 'Ubayd Allàh b. Bashìr, 77 Mu˙ammad b. 'Umar al-Fakhkhàr, 225 Mu˙ammad b. 'Umar b. Lubàba (see Ibn Lubàba) Mu˙ammad b. Umayya, 75 Mu˙ammad b. Walìd, 80, 127, 361 Mu˙ammad b. Ya˙yà b. Zakariyyà, 331 Mu˙ammad b. Yùsuf b. al-Ghàsil, 334 Al-Mu'izz li-Dìn Allàh, 425 Mukhayrìq, 58 Al-Mundhir, 77, 78, 325, 326 Mundhir b. Sa'ìd al-Ballù†ì, 309, 331 Mùsà b, Sulaymàn al-Umawì, 223 Mut'a, 71, 253 Al-Mu'tamid b. 'Abbàd, 242, 267 Mu†arrif, 78, 126, 150, 249, 373, 455 Al-MuΩaffar al-'Àmirì, 298 Al-Na∂r b. Salàma, 324, 326 Al-Nawawì, 106, 405, 455 NiΩàm al-Mulk, 226 Nùr al-Dìn al-Shahìd, 406 Al-Qàbisì, 102, 247, 455 Qàsim b. Óàmid al-Umawì, 73, 223 Qàsim b. Kahlàn, 267 Qàsim b. Sa'dàn, 98, 223, 298 Al-Qawrì, 365 Al-Qulay'ì, 334 Rabì'at al-Ra"y, 345, 346, 455 Ri∂wàn al-Naßrì, 227 Sa'd b. Mu'àdh, 402, 455 Sa˙nùn, 64, 128, 140, 167, 169, 375, 455 Saladin, 226, 232, 406 Al-Íam˙ b. Màlik al-Khawlànì, 69 Al-Saraqus†ì, 6, 122, 152, 178, 191, 196, 211, 220, 249, 250, 255, 257, 258, 269, 270, 274, 279, 280, 281,
543
284, 288, 289, 292, 299, 300, 311, 342, 349, 379, 381, 383, 384, 385, 386, 390, 395, 399, 455, 466 Al-Shàfi'ì, 62, 64, 430 Al-Shà†ibì, 135, 230, 238, 252, 275, 281, 282, 283, 423, 456, 465 Shifà", 78 Suhayb b. Manì', 330 Sulaymàn b. Aswad, 75 Al-Tamìmì, 374 ˇarùb, 78 ˇarìf al-fatà, 114, 253, 407 Al-Tàzaghdarì, Abù-l-Qàsim, 406, 456 Al-Tàzaghdarì, Mu˙ammad b. 'Abd al-'Azìz, 352 Tawba b. Namr al-Óa∂ramì, 66 Al-Tilimsànì, Abù Mùsà, 365, 456 Al-ˇur†ùshì, 233, 413, 414 'Ubayd Allàh b. Adham, 189 'Ubayd Allàh b. Ya˙yà, 80, 127, 202, 361 'Umar b. 'Abd al-Azìz, 50, 69 'Umar al-Fishtàlì (see al-Fishtàlì) 'Umar b. al-Kha††àb, 58, 59, 60, 400, 438 'Umar b. al-Qa††àn (see Ibn al-Qa††àn) Umm al-'Abbàs, 70 Umm al-Aßbagh, 70 Al-'Uqbànì, Abù-l-Fa∂l Al-'Uqbànì, Abù 'Uthmàn Sa'ìd, 87, 362, 456 Al-'Uqbànì, Qàsim, 248, 456 Al-'Utbì, 94 'Uthmàn b. 'Affàn, 375 Al-Wa˙ìdì, 309 Al-Wànàghìlì, 456 Wàdi˙ al-'Àmirì, 38 Al-Yàlißù†ì, 50, 112, 456 Ya˙yà al-Ra"y, 8, 56 Ya˙yà b. Ya˙yà, 73, 78, 79 Ya˙yà b. Yazìd al-Tujibì Al-Ya˙ßubì, 70 Al-Yaznàsnì, 287, 288, 456 Zayd al-Ghàfiqì, 77 Zuhayr al-fatà, 253, 409
INDEX OF PLACES
Abla (Almería), 22, 237, 242 Abrucena (Almería), 232, 237, 242 Albaicín (Granada), 210, 226 Albolody, 118, 203, 420 Alfamín (Toledo), 36, 219 Algeciras, 32 Alhama (Granada), 36, 39, 221, 222, 379 Almería, 20, 22, 36, 38, 105, 109, 112, 162, 164, 221, 222, 242, 253, 263, 266, 267, 367, 380, 409 qaryat Aktsl/Aktbìl (?), 36 Almuñécar (Granada), 20, 22, 420 Andarax (Granada), 21, 95, 205, 230, 237, 242 Archidona (Málaga), 18, 112, 220 Arjona ( Jaén), 36 Arjidhùna (see Archidona) 'Ayn ˇu˙ma, 221, 389 Badajoz, 36, 137, 165, 279, 359 Baghdad, 8, 226 Baeza ( Jaén), 334, 335 Ballish (see Vélez) Baßra, 8 Baza (Granada), 21, 36, 107, 108, 191, 220, 225, 231, 233, 269, 281 Bayt al-Làhiya, 422 Belicena (Granada), 18, 112, 231 Berja (Almería), 18, 21, 237, 434 Cairo/al-Fus†à†, 123, 124 Cájar (Granada), 21 Calatorao (Saragossa), 18 Calatrava, 328, 334, 335 Capileira, 434 Castril (Granada), 37, 191, 219, 220, 368 Ceuta, 33, 35, 53, 374, 377 Churriana de la Vega (Granada), 21 Comares (Málaga), 20, 37, 130, 350, 382 Córdoba, 13, 27, 36, 44, 52, 69, 70, 71, 73, 74, 75, 76, 77, 78, 79, 80, 96, 99, 126, 131, 135, 136, 137, 138, 167, 188, 189, 190, 193, 198, 199, 200, 201, 202, 206, 207, 208,
209, 304, 325, 334, 395, 417,
217, 305, 326, 335, 407, 438
224, 308, 328, 359, 408,
244, 312, 330, 364, 412,
246, 313, 331, 372, 414,
279, 320, 332, 378, 415,
296, 324, 333, 390, 416,
Dalías, 21, 237 Damascus, 65, 69, 123 Dílar (Granada), 21 Écija (Seville), 20 Egypt, 17, 18, 62, 65, 66, 74, 118, 200, 209, 215, 226, 294, 304, 317, 405, 406, 410, 415, 425 Elvira, 77, 161, 328, 334, 335, 412 Al-Fayùm, 64 Fez (Morocco), 42, 112, 352, 353, 366, 397, 419 Ferreira (Granada), 205, 230, 420 Fiñana (Almería), 237 Al-Fus†à†, 124 Gabia la Grande (Granada), 21 Galera, 240 kùrat Galìra (Granada), 37 Gójar (Granada), 21 Granada, 17, 18, 19, 20, 21, 22, 23, 39, 43, 100, 101, 105, 124, 161, 176, 184, 204, 206, 210, 213, 221, 224, 227, 228, 230, 231, 232, 241, 245, 261, 263, 264, 265, 297, 298, 303, 328, 334, 335, 379, 423, 434, 441, 443 Guadalajara, 75 Óijàz, 56 Huétor (Granada), 213 Irak, 17, 18, 62, 80, 209 Iran/Persia, 62, 118, 294, 338 Jaén, 154, 156, 157, 174 Jerez, 244 Jubiles (Granada), 205, 230, 241, 264 Jurbina (Berja), 434
index of places Khaybar (Arabia), 58, 398, 438 Lecrín (Granada), 420 Lisbon, 97, 128 Lorca (Murcia), 43, 91, 203 Lúchar (Granada), 118, 242, 264, 420 Al-Madìna al-Bay∂à", 34 Madìnat al-Zahrà", 131 Al-Maghrib, 1 Maharoc (al-Ma˙rùq), 226, 231, 298 Málaga, 37, 104, 128, 134, 138, 220, 227, 250, 328, 335, 379 Marbella (Málaga), 29 Mecca, 189 Medina, 189, 236, 373, 375 Mondújar, 95 Motril (Granada), 22, 225, 226, 420 Murcia, 19, 53, 233, 376
545
˙ißn Íàli˙a (see Zalía) Salobreña (Granada), 22, 420 Saltés (Huelva), 33 Saragossa, 18, 73 al-Shàm, 17 ˙ißn Shaqùra (see Segura de la Sierra) Sawàd, 400 Sicily, 50 Sidonia (Cádiz), 74 Segura de la Sierra ( Jaén), 39 Seville, 16, 112, 124, 227, 239, 242, 244, 245, 247, 267, 270, 319, 320, 322, 326, 328, 335, 372, 397, 418 Syria, 209, 226, 422 Tarifa (Cádiz), 37, 220 Tlemcen, 106, 141 Toledo, 13, 19, 135, 225, 267, 296, 313, 442 qaryat ˇurrijìla, 38, 114, 253, 407
Orihuela (Murcia), 328, 334, 335 Pago, 434 (Berja) Pamplona, 77 Pechina (Almería), 105, 367 Persia (see Iran) Poqueira (Granada), 118, 242, 264, 420 Priego (Córdoba), 36, 347 Purchena, 20 qaryat Qabr Tjlysh/T˙mlyn/Qjysh (?), 37, 381 qaryat Qar†ama, 37, 350 Qayrawàn, 64, 330 Qù†a-Aqù†a, 37, 382, 384 Ramallah, 65 Ramla, 65, 85 Rayya (Málaga), 309
Ugíjar (Granada), 21, 23, 205, 229, 237, 241, 242 Valencia, 17, 38, 241, 394 Vélez (Málaga), 136, 196, 220, 221, 229, 230, 297, 300, 301, 307, 312, 315, 368, 379, 382, 385, 386, 387, 389, 391 Vera, 73 Zalía (Málaga), 37, 104, 220, 221, 301, 378, 379, 389 Al-Zanj (Málaga), 382, 384 Al-Zàwiya (Málaga), 37, 382
THE
MEDIEVAL AND EARLY MODERN IBERIAN WORLD Editors: Larry J. Simon (Western Michigan University),
Gerard Wiegers (Radboud University Nijmegen), Arie Schippers (University of Amsterdam), Donna M. Rogers (Dalhousie University), Isidro J. Rivera (University of Kansas), AS MEDIEVAL IBERIAN PENINSULA. 1. Le calendrier de Cordoue. Publié par R. Dozy. Nouvelle édition, accompagnée d’une traduction française annotée par Ch. Pellat. 1961. ISBN 90 04 00486 6 2. Imamuddin, S.M. Muslim Spain 711-1492 A.D. A Sociological Study. 2nd edition 1981. ISBN 90 04 06131 2 3. Monroe, J.T. Islam and the Arabs in Spanish Scholarship (Sixteenth Century to the Present). 1970. Out of print. 4. Gallego Blanco, E. The Rule of the Spanish Military Order of St. James 1170-1493. Latin and Spanish Texts, edited with apparatus criticus, English translation and a preliminary study by Enrique Gallego Blanco. 1971. ISBN 90 04 02665 7 5. Tibi, A.T. (ed.). The Tibya-n. Memoirs of {Abd All¸h b. Buluggºn, Last Zºrid Amºr of Granada. Translated from the Emended Arabic Text and Provided with Introduction, Notes and Comments by Amin T. Tibi. 1986. ISBN 90 04 07669 7 6. Arié, R. Études sur la civilisation de l’Espagne musulmane. 1990. ISBN 90 04 091165 7. Schippers, A. Spanish Hebrew Poetry and the Arabic Literary Tradition. Arabic Themes in Hebrew Andalusian Poetry. 1994. ISBN 90 04 09869 0 8. Wiegers, G. Islamic Literature in Spanish and Aljamiado. Yça of Segovia (fl. 1450), His Antecedents and Successors. 1994. ISBN 90 04 09936 0 9. Scales, P.C. The Fall of the Caliphate of Córdoba. Berbers and Andalusis in Conflict. 1994. ISBN 90 04 09868 2 10. Roth, N. Jews, Visigoths and Muslims in Medieval Spain. Cooperation and Conflict. 1994. ISBN 90 04 09971 9 11. Zwartjes, O. Love Songs from al-Andalus. History, Structure and Meaning of the Kharja. 1997. ISBN 90 04 10694 4 12. Echevarria, A. The Fortress of Faith. The Attitude towards Muslims in Fifteenth Century Spain. 1999. ISBN 90 04 11232 4 13. Macpherson, I. & MacKay, A. Love, Religion and Politics in Fifteenth Century Spain. 1998. ISBN 90 04 10810 6 14. Girón-Negrón, L.M. Alfonso de la Torre’s Visión Deleytable. Philosophical Rationalism and the Religious Imagination in 15th Century Spain. 2001. ISBN 90 04 11957 4
AS MEDIEVAL AND EARLY MODERN IBERIAN WORLD. 15. Robinson, C. In Praise of Song. The Making of Courtly Culture in alAndalus and Provence, 1005-1134 A.D. 2002. ISBN 90 04 12453 5 16. Larsson, G. Ibn García’s Shu{¢biyya Letter. Ethnic and Theological Tensions in Medieval al-Andalus. 2003. ISBN 90 04 12740 2 17. Ljamai, A. Ibn Ýazm et la polémique islamo-chrétienne dans l’histoire de l’islam. 2003. ISBN 90 04 12844 1 18. Lucas, J.S. Astrology and Numerology in Medieval and Early Modern Catalonia. The Tractat de prenostication de la vida natural dels hòmens. 2003. ISBN 90 04 13242 2 19. Kogman-Appel, K. Jewish Book Art Between Islam and Christianity. The Decoration of Hebrew Bibles in Medieval Spain. 2004. ISBN 90 04 13789 0 20. Meyerson, M.D. Jews in An Iberian Frontier Kingdom. Society, Economy, and Politics in Morvedre, 1248-1391. 2004. ISBN 90 04 13739 4 21. Heijkoop, H. & Zwartjes, O. Muwa±±a¥, Zajal, Kharja. Bibliography of Strophic Poetry and Music from al-Andalus and Their Influence in East and West. 2004. ISBN 90 04 13822 6 22. Robinson, C. & Rouhi, L. (eds.). Under the Influence. Questioning the Comparative in Medieval Castile. 2005. ISBN 90 04 13999 0 23. Walker, T.D. Doctors, Folk Medicine and the Inquisition. The Repression of Magical Healing in Portugal during the Enlightenment. 2005. ISBN 90 04 14345 9 24. Bowes, K. & Kulikowski, M. (eds.). Hispania in Late Antiquity. Current Perspectives. 2005. ISBN 90 04 14391 2 25. Keitt, A.W. Inventing the Sacred. Imposture, Inquisition, and the Boundaries of the Supernatural in Golden Age Spain. 2005. ISBN 90 04 14581 8 26. Martin, T. & Harris, J. (eds.). Church, State, Vellum, and Stone. Essays on Medieval Spain in Honor of John Williams. 2005. ISBN 90 04 14705 5 27. Glick, T.F. Islamic and Christian Spain in the Early Middle Ages. Second, Revised Edition. 2005. ISBN 90 04 14771 3 28. Ferreiro, A. The Visigoths in Gaul and Iberia. A Supplemental Bibliography, 1984-2003. 2006. ISBN-10: 90 04 14594 X, ISBN-13: 978 90 04 14594 8 29. García-Arenal, M. Messianism and Puritanical Reform. Mahdºs of the Muslim West. 2006. ISBN-10: 90 04 15051 X, ISBN-13: 978-90-04-15051-5 30. Martin, T. Queen as King. Politics and Architectural Propaganda in Twelfth-Century Spain. 2006. ISBN-10: 90 04 15297 0, ISBN-13: 978 90 04 15297 7 31. García Sanjuán, A. Till God Inherits the Earth. Islamic Pious Endowments in al-Andalus (9-15th Centuries). 2007. ISBN-10: 90 04 15358 6, ISBN-13: 978 90 04 15358 5
AS MEDIEVAL AND EARLY MODERN IBERIAN WORLD. 32. Dandelet, T.J. & Marino J.A. (eds.). Spain in Italy. Politics, Society, and Religion 1500-1700. 2007. ISBN-10: 90 04 15429 9, ISBN-13: 978 90 04 15429 2
