The Concept of Hijra (Migration) in Medieval Iberia and the Maghrib

CHAPTER 1 The Concept of Hijra (Migration) in Medieval Iberia and the Maghrib During the late Almoravid period, a number of Mālikī jurists in Iberia and the Maghrib began to invoke the Qurʾānic concept of hijra (migration) in order to encourage Muslims to migrate from Christian to Islamic territory. This practice became widespread among Mālikī jurists during the Almohad period. In invoking hijra, these jurists were latecomers. Hijra had been practiced in the Maghrib before they sanctioned its use and there is evidence that familiarity with the concept was very widespread. It is easy to see why hijra had such broad appeal. The concept of hijra is central to Islamic collective memory. The Prophet Muḥammad’s hijra from Mecca to Yathrib (Medina) where he founded an Islamic polity is the event which ushers in the Islamic calendar and the idea of hijra continued to have a profound religious and political impact on the course of Islamic history. This chapter explores why, despite this, hijra had long been absent from the Mālikī legal tradition and what eventually led some jurists to introduce the term into their writings. I further suggest that the jurists’ emphasis or de-emphasis of hijra is closely tied to cycles of political power. Hijra in the Early Islamic Period In order to understand the complex attitude of the Mālikī jurists towards the concept of hijra, I will briefly consider its pre-Mālikī history. The Qurʾān frequently and forcefully emphasizes that hijra is a religious obligation of the utmost importance. It envisions a broad application of the doctrine, limiting it neither by time nor by place; rather, it says, “those who migrate in the way of God will find many a road to refuge and space in the land.”1 There are two separate but sometimes overlapping circumstances under which hijra should be made. First, hijra is obligatory from lands in which people are forced to commit wrongdoing (ẓulm). Those who do not make hijra under such circumstances are condemned to hell ( jahannam). There, they will be held accountable even for the wrongdoing they committed under duress because they 1 Qurʾān 4: 100. © koninklijke brill nv, leiden, ���5 | doi ��.��63/9789004�8453�_003 32 CHAPTER 1 could have avoided that duress through migration. Second, there are verses which do not mention the issue of duress and which simply describe hijra as an act of commitment to the community of believers. It mentions those who have performed hijra and have then “striven ( jāhadū) with their possessions and persons in God’s way.”2 Some such verses also connect hijra with a duty of fighting (qitāl) together with the believers.3 Believers who do not perform this kind of hijra are not condemned to hell; however, the believing community has “no duty of guardianship” towards them.4 Since they have not offered their political assistance to the Muslim community, that community is not under an obligation to help them. Thus both believers compelled by their communities to commit wrongdoing and believers who live outside the Muslim community are obligated to make hijra. The Qurʾān exempts from hijra only those “oppressed, be they men, women, or children, who cannot devise something (ḥīla) and are not guided to a way.”5 That is, those who are truly incapable of migrating. The political impact of hijra in the early Islamic period was considerable. The Islamic garrison towns (amṣār), which were the central organs of Islamic settlement and expansion, were heavily dependent on migration to augment the early Muslim population and to weaken the migrants’ places of origin. The importance of hijra for these towns was reflected in the fact that their residents were commonly referred to as muhājirūn and their military centers were known as dūr al-hijra (abodes of hijra).6 This extensive use of hijra was, however, of limited duration. Hijra was a useful concept for a minority community with limited political power that was in the process of establishing itself. Once the balance of power shifted in favor of Muslims, the usefulness of hijra diminished for two main reasons. First, the power of an established community is not enhanced by destabilizing population transfers. Second, the principle of hijra involves a compromise of the ruler’s authority by obligating his subjects to abandon him if they perceive him to be coercing them into wrongdoing. Indeed, the idea of religiously obligatory secession from 2 See, for example, Qurʾān 8: 72: wa-jāhadū bi-amwālihim wa-anfusihim fī sabīl allāhi. Cf. Qurʾān 8: 75, 9: 19–20 and 16: 110. 3 Qurʾān 3: 194. Cf. 8: 72, 8: 74–75 and 9: 19–20. Cf. M. Ebstein, “The Connection between Hijra and Jihād in Classical Islam,” Jamāʿa 15 (2005–2006), 53–85. 4 Qurʾān 8: 72: mā lakum min walāyatihim min shayʾin hattā yuhājirū. 5 Qurʾān 4: 97–99. 6 See W. Madelung, “Has the Hijra Come to an End?”, Revue des études islamiques 54 (1986), 232 ff; P. Crone, “The First Century Concept of Hiǧra,” Arabica 61 (1994), 364 ff.; and P. Wheatley, The Places Where Men Pray Together (Chicago: University of Chicago Press, 2001), 267. The Concept of Hijra (Migration) 33 wrongdoing communities could and would be seized upon by minority Islamic opposition groups, like the Khārijites and Zaydīs, who sought divine justification for their actions.7 When the early Muslim community was politically weak, the revolutionary energy of hijra, with its destabilizing effect on the status quo, could be enthusiastically embraced. However, with greater Muslim power, the disadvantages of hijra became quickly apparent and it ceased to be employed by the religious majority. Perhaps reflecting these concerns, a cautionary attitude to hijra is reflected in some ḥadīths.8 Although some of these declare hijra to be a permanent religious obligation, others indicate that it was abrogated with the Muslim conquest of Mecca.9 In general, Sunnī jurists accepted the validity of the tradition abrogating hijra, although some still regarded hijra as legitimate under extreme circumstances of political weakness in which Muslims are not free to practice Islam.10 This meant that, for the most part, they ceased to discuss the practice of hijra in any great detail. In keeping with this, the early legal works of the Mālikī jurists of al-Andalus and the Maghrib almost never mention the term.11 Perhaps this is because they accepted the tradition abrogating hijra, or perhaps this is 7 8 9 10 11 On the hijra of the Khārijites, see Pierre Cuperly, Introduction à l’étude de l’ibāḍisme et de sa théologie (Algiers: Office des Publications Universitaires, 1984), 20 ff. On the hijra of the Zaydīs, see Riḍwān al-Sayyid, “al-Dār waʾl-hijra wa-aḥkāmuhumā ʿinda Ibn al-Murtaḍā,” al-Ijtihād 12 (1991), 213–40. On the dating of these traditions, see Crone, “The First Century Concept,” 368 ff. and M. Cook, Early Muslim Dogma: A Source-Critical Study (Cambridge: Cambridge University Press, 1981), 100 ff. On the concept of abrogation, see John Burton, The Sources of Islamic Law: Islamic Theories of Abrogation (Edinburgh: Edinburgh University Press, 1990). Khaled Abou El Fadl, “Islamic Law and Muslim Minorities: The Juristic Discourse on Muslim Minorities from the Second/Eighth to the Eleventh/Seventeenth Centuries,” Islamic Law and Society 1 (1994), 144 ff. One source cites the early Mālikī jurist, Saḥnūn b. Saʿīd (d. 240/854), as endorsing hijra: “Hijra will not cease so long as the unbelievers are fought, but hijra today is from the abode of the unbelievers to the abode of Islam. For example, one who converts in the abode of unbelief must migrate.” The authenticity of this quotation, however, cannot be confirmed given that the work from which it was allegedly extracted, the Kitāb Ibn Saḥnūn by Muhammad Ibn Saḥnūn (d. 256/870), is no longer fully extant. Moreover, Saḥnūn himself studiously avoids the term hijra in all of his known writings and this alleged remark in favor of hijra is not referred to by subsequent Mālikī jurists. For the remark, see Ibn Abī Zayd al-Qayrāwanī, al-Nawādir waʾl-ziyādāt ʿalā mā fī al-mudawwana min ghayrihā min al-ummahāt, ed. ʿAbd al-Fattāḥ Muḥammad al-Ḥulw (Beirut: Dār al-Gharb al-Islāmī, 1999), 3: 20. On the Kitāb Ibn Saḥnūn, see Miklos Muranyi, Materialien zur mālikitischen Rechtsliteratur (Wiesbaden: Otto Harrassowitz, 1984), 79. 34 CHAPTER 1 simply an example of the jurists using their personal authority to shape the law.12 Regardless, it is not until the late Almoravid period that we find some jurists referencing hijra and only in the Almohad period that this practice becomes widespread. What prompted this change? No clue is to be found by looking at the legal texts themselves—the term simply emerges without explanation. For an insight into how this change occurred, one has to look outside Mālikī legal sources and indeed beyond the Sunnī tradition to the Shiʿites of the Maghrib—here, references to hijra abound. Practicing Hijra in the Maghrib: Fāṭimids, Almoravids and Almohads The tradition of hijra attained wide currency in the Maghrib with the 3rd/10th-century conquest of the region by the Fāṭimids, a Shiʿite Ismāʿīlī dynasty.13 The concept of hijra was central to the military strategy of the Fāṭimids who, in emulation of the Prophet, expanded their political control through the establishment of migration centers known as “abodes of hijra” (dūr al-hijra).14 The first Fāṭimid dār al-hijra in the Maghrib was founded at 12 13 14 On the phenomenon of jurists using their personal authority to diverge from Qurʾānic law, see J. Brockopp, “Competing Theories of Authority in Early Mālikī Texts,” in Studies in Islamic Legal Theory, ed. B. Weiss (Leiden: Brill, 2001), 20 and J. Lowry, Early Islamic Legal Theory (Leiden: Brill, 2007), 207 ff. For a dissenting view, see H. Motzki, The Origins of Islamic Jurisprudence, tr. M. Katz (Leiden: Brill, 2002), 115–17 and 152–57. It is possible that the precept of hijra was spread to the Maghrib even earlier by Khārijite missionaries who began to travel there as early as the eighth century, but no extant sources document this. By the time the successors of the Khārijites, known as the Ibāḍīs, came to prominence in the Maghrib, they espoused the view that hijra had been abrogated after the conquest of Mecca and therefore did not make use of the concept. On the rejection of hijra by the Maghribī Ibāḍīs, see ʿĀmir b. ʿAlī al-Shammākhī (d. 792/1389), Uṣūl al-diyānāt, in P. Cuperly, Introduction à l’étude de l’ibāḍisme, 337 and 176; Werner Schwartz, Die Anfänge der Ibaditen in Nordafrika: der Beitrag einer islamischen Minderheit zur Ausbreitung des Islams (Wiesbaden: Harrassowitz, 1983), 66; and A. de CalassantiMotylinski, L’ʿAqida populaire des Abadhites algériens (Algiers: Fontana, 1905), 14 and 40. Ibn Sallām al-ʿIbāḍī (circa 3rd/9th century) reduces hijra to meaning only the shunning of evil and not physical migration, see his Kitāb fīhi badʾ al-Islām wa-sharāʾiʿ al-dīn, ed. W. Schwartz (Wiesbaden: Franz Steiner, 1986), 83. Heinz Halm, The Empire of the Mahdī, tr. M. Bonner (Leiden: E.J. Brill, 1996), 47 ff.; M. Brett, The Rise of the Fāṭimids (Leiden: Brill, 2001), 89 and 142, and J. Lindsay, “Abu ʿAbd Allah’s Mission among the Kutama,” International Journal of Middle East Studies 24 (1992), 55 n. 34. Cf. Al-Qāḍī Nuʿmān, Kitāb Iftitāḥ al-daʿwa, ed. F. Dachraoui (Tunis, 1975), 48. The Concept of Hijra (Migration) 35 Tāzrūt by Abū ʿAbdallāh al-Shīʿī (d. 298/911). Once the settlement had grown in size, Abū ʿAbdallāh and his muhājirūn (migrants) declared war and eventually conquered most of the surrounding area. The Fāṭimids repeated this strategy in many areas of the Maghrib and it seems that it was through their efforts that hijra was introduced to the region as a living practice.15 The passage of hijra as a living practice from Fāṭimid Shiʿism to Sunnīsm can be sketched only tentatively because of the scant available sources. There is some evidence that it passed from the Fāṭimids to the Almoravids, the movement which eventually replaced them in the Maghrib and which succeeded in firmly entrenching both Sunnī Islam and the Mālikī legal school there. Accounts of the founding of the Almoravid movement suggest that it might have involved the practice of hijra. The founding narrative goes as follows. At some point during the early 430/1040s, the spiritual father of the Almoravids, ʿAbdallāh Ibn Yāsīn al-Jazūlī (d. 451/1059?),16 went to live among the Ṣanhāja tribe in order to give them religious guidance.17 The religious reforms that he proposed soon proved too strict for the tribe and they rebelled against him. In response, Ibn Yāsīn and his followers migrated in order to found a new community whose members came to be known as the Almoravids. After growing in strength, they launched a number of wars against their neighbors who did not share their new Islamic ideology.18 Most modern scholars are in agreement that the concept of hijra was central to Ibn Yāsīn’s community building activities because descriptions of his migration so closely resemble the Prophet’s hijra.19 While I agree with the scholarly consensus, it should be noted that the 15 16 17 18 19 Halm, The Empire of the Mahdī, 142, 164 and 397. H. Norris, “New Evidence on the Life of ʿAbdullāh b. Yāsīn and the Origins of the Almoravid Movement,” Journal of African History 12 (1971), 255–68. Abū ʿImrān al-Fāsī of Qayrawān (d. 430/1039) had told his disciple Wājāj b. Zallū al-Lamṭī about the need of the Ṣanhāja Berbers for a teacher of religion and the latter appointed his disciple Ibn Yāsīn to the task. The Ṣanhāja Berbers were divided into many sub-tribes. Ibn Yāsīn was initially sent to the Juddāla, but his influence soon spread to the Lamtūna and the Massūfa. See Nehemia Levtzion, “ʿAbd Allāh b. Yāsīn and the Almoravids,” in Studies in West African Islamic History, ed. J. Willis (London: Frank Cass, 1979), 1: 78 ff. J. Hopkins and N. Levtzion, Corpus of Early Arabic Sources for West African History (Cambridge: Cambridge University Press, 1981), 243. See, for example, Abdallah Laroui, The History of the Maghrib (Princeton: Princeton University Press, 1977), 160–61; N. Levtzion, “ʿAbd Allāh b. Yāsīn and the Almoravids,” 1: 85 and 92; H. Norris, Saharan Myth and Saga (Oxford, Clarendon Press, 1972), 22; Fritz Meier, “Almoravids and Marabouts,” in Essays on Islamic Piety and Mysticism, tr. John O’Kane (Leiden: Brill, 1999), 376–77; and Paulo de Moraes Farias, “The Almoravids: Some Questions Concerning the Character of the Movement During its Periods of Closest 36 CHAPTER 1 involvement of hijra can be posited only tentatively since the extant sources which describe the migration do not refer to it by this term. If Ibn Yāsīn did indeed use it, it would have had resonance with his first recruits, the Ṣanhāja Berbers, as the latter had a long history as defenders of the Fāṭimid dūr al-hijra.20 If there are doubts regarding whether Ibn Yāsīn used the term hijra, there are none regarding its use by the Sunnī reformer, Muḥammad Ibn Tūmart (d. 524/1130), whose Almohad forces displaced the Almoravids. Ibn Tūmart’s doctrine of hijra was likely inspired by the Fāṭimids, given that much of his thought can be seen as a Sunnī reformulation of Fāṭimid theology.21 In his writings, Ibn Tūmart speaks of hijra as a divinely ordained act: Hijra from among the enemies of God to God and His Prophet is obligatory for all the servants of God. The duty of leaving homes and property for religion is never nullified for any reason. Rather, upholding God’s commandment is obligatory and it must be done immediately and without delay. Consideration for upholding God’s commandment takes precedence over consideration of bloodshed and loss of life and property—for corruption must be entirely repelled.22 Other sources also affirm the importance of hijra to Ibn Tūmart’s vision. Ibn al-Qaṭṭān (c. 7th/13th century), for example, describes a book which used to be committed to memory by Ibn Tūmart’s followers and which contains several discussions on the status of Ibn Tūmart as mahdī and the importance of his hijra: [The book] affirmed that the Mahdī [Ibn Tūmart] is the imām and that the imāmate was a necessary Islamic institution. It then went on to specify what duties of honor and obedience are owed to him. Among these duties is that of hijra. Hijra to the Mahdī is obligatory. Nothing can cancel this duty, not concern for family, children or 20 21 22 Contact with the Western Sudan,” Bulletin de l’Institut fondamental d’Afrique noire, series B, 29 (1967), 812. For a dissenting view, see H. Fisher, “What’s in a Name? The Almoravids of the Eleventh Century in the Western Sahara,” Journal of Religion in Africa 22.4 (1992), 309. Hady Idris, La Berbérie orientale sous les Zīrīdes, xe–xiie siècles (Paris: Adrien-Maisonneuve, 1962), 1: 241 and 283. On this, see Maribel Fierro, “The Almohads and the Fatimids,” in Ismaili and Fatimid Studies (Chicago: Middle East Documentation Center, 2010), 161–75. Ibn Tūmart, Kitāb Muḥammad ibn Tūmart mahdī al-muwaḥḥidīn, ed. I. Goldziher (Algiers: P. Fontana, 1903), 252. The Concept of Hijra (Migration) 37 property. On the contrary, anyone who is aware that he [the Mahdī] exists is obligated to migrate to him. One who does not do so commits unbelief (yakfuru).23 Ibn Tūmart’s own hijra, like that of Ibn Yāsīn, was from a Muslim land which had been branded as one of unbelief, in this case the Almoravid-controlled Maghrib.24 In 517/1123, this migration led him to the town of Tīnmallal in the Atlas Mountains, his “Medina,” in which he established a society run according to his interpretation of the Sharīʿa. Once the society became strong, he used Tīnmallal as a base from which to conquer the territory of his neighbors and the Almohad dynasty was born. Like the Fāṭimids before him, Ibn Tūmart was responsible for bringing the doctrine of hijra to the forefront of religious consciousness in the Maghrib.25 It is noteworthy that although Ibn Tūmart’s example of hijra was later to be imitated by many subsequent mahdī figures in the region,26 once the Almohad movement achieved stability, it ceased to make use of the term. This is evident in a letter from the Almohad Caliph ʿAbd al-Waḥīd al-Rashīd (r. 630–40/1232– 42) to the Muslims of Valencia, written after it had been annexed by the Christians. In the letter, al-Rashīd strongly urges these Muslims to migrate and pledges to give them protection, financial support and housing if they travel to his lands. However, he avoids all reference to the term hijra and, when he refers to Muslim migrants, he uses the neutral term muntaqilūn, which is a synonym for hijra, but which does not have its theological connotations.27 Thus, notwithstanding the important place that hijra enjoyed in Almohad thought, 23 24 25 26 27 Ḥasan b. ʿAlī Ibn al-Qaṭṭān, Naẓm al-jumān li-tartīb mā salafa min akhbār al-zamān, ed. Maḥmūd ʿAlī Makkī (Beirut: Dār al-Gharb al-Islāmī, 1990), 81. V. Lagardère, “Le Ğihād Almohade: théorie et pratique,” in Los Almohades: problemas y perspectivas, ed. P. Cressier et al. (Madrid: Consejo Superior de Investigaciones Científicas, 2005), 2: 163–87. On relations between the Mālikīs and Almohads, see Maribel Fierro, “The Legal Policies of the Almohad Caliphs and Ibn Rushd’s Bidāyat al-Mujtahid,” Journal of Islamic Studies 10 (1999), 226–48. Mercedes García-Arenal, Messianism and Puritanical Reform: Mahdīs of the Muslim West, tr. Martin Beagles (Leiden: Brill, 2006), 193 ff. Muḥammad b. al-Murābiṭ, Kitāb ẓawāhir al-fikar wa-jawāhir al-fiqar (ms. Escorial (Arabic) no. 520, f. 115–16), edited in E. Molina López, “Dos importantes privilegios a los emigrados Andalusies en el Norte de Africa en el siglo xiii, contenidos en el Kitāb ẓawāhir al-fikar de Muḥammad b. al-Murābiṭ,” in Cuadernos de Historia del Islam 9 (1978–79), 21 ff. On the reign of al-Rashīd, see A. Huici Miranda, “El reinado del califa almohade al-Rašīd, hijo del al-Maʾmūn,” Hespéris 41 (1954), 9–45. 38 CHAPTER 1 al-Rashīd, like many Muslim rulers before him, was reluctant to use a term which held the potential of negatively impacting the stability of his regime. The Mālikī Jurists and the Concept of Hijra The first affirmations by Mālikīs that the obligation of hijra was still in force occur in the works of the late-Almoravid period jurists, Ibn Rushd “the Grandfather” (d. 520/1126)28 and Abū Bakr Ibn al-ʿArabī (d. 543/1148).29 Their views on the subject do not, however, seem to have been widely adopted and it is not until the Almohad period that references to hijra begin to proliferate. I believe that its appearance can be seen as the product of two separate factors. First, the instability caused by the Christian annexation of Muslim areas during the Almoravid period forced the issue of migration to be contemplated as a defensive strategy,30 whether or not the term hijra was used to describe 28 29 30 Ibn Rushd’s statement in favor of hijra includes a way of reconciling ḥadīths which affirm the continuing obligation of hijra with those that affirm its abrogation. First, he says that the Prophet’s abrogation of hijra from Mecca means that those who perform hijra after this period can neither be a part of the group known as the muhājirūn nor can they attain the merit of that group. Second, he says that the abrogation of hijra means that those muhājirūn who left Mecca to join the Prophet in Medina are permitted to return there if they so desire. Thus, for Ibn Rushd, the abrogation of hijra was only intended to end the ban on living in Mecca. It was not intended to end the obligation of hijra, which he believes is established as an eternal obligation in Qurʾān 4: 97–98 and 8: 72. He says that this interpretation is confirmed by the consensus of the jurists who mandate hijra “until the Day of Resurrection” for anyone who converts to Islam in the abode of war. See Ibn Rushd, Kitāb al-muqaddimāt al-mumahhidāt li-bayān ma-aqtaḍathu rusūm al-Mudawwana (Beirut: Dār al-Gharb al-Islamī, 1988), 2: 151–53. However, despite this clear endorsement of hijra, in his commentary on the ʿUtbiyya where he discusses the same issue, he substitutes the word kharaja (leave) for hājara (migrate). See Ibn Rushd, al-Bayān waʾl-taḥṣīl waʾl-sharḥ waʾl-tawjīh waʾl-taʿlīl fī masāʾil al-mustakhraja, M. Ḥajjī (Beirut: Dār al-Gharb al-Islamī, 1984), 4: 171. It is unclear why there is a discrepancy between these two works given that they were both written at almost the same time towards the end of Ibn Rushd’s life. On the connection between these two works, see Muḥammad Ḥajjī, “al-Mustakhraja liʾl-Utbī waʾl-bayān waʾl-taḥṣīl waʾl-muqaddimāt li-Ibn Rushd,” in Actas del ii coloquio hispano-marroquí de ciencias históricas: ‘historia, ciencia y sociedad’ (Madrid: Agencia Española de Cooperación Internacional, 1992), 43–48. Lucini, M., “Ibn al-ʿArabī, Abu Bakr,” in J. Lirola Delgado and J.M. Puerta Vílchez, Diccionario de Autores y Obras Andalusíes (Seville: Junta de Andalucía, Consejería de Cultura, 2002), 1: 457–68. I have elaborated elsewhere on the defensive dimension of hijra during the Reconquista period. In brief, the Mudéjars were essential to the political and economic well-being of many Christian territories and encouraging their emigration weakened the Christian hold The Concept of Hijra (Migration) 39 it. Second, I suggest that the practice of hijra in the Maghrib had instilled a widespread belief that it was a part of the Islamic tradition. The fact that it had been excluded from Mālikī texts until this point became a problem given that it represented a visible disjunction between what was widely thought to be Islamic, on the one hand, and the content of the written legal tradition, on the other. The problem caused by this disjunction would only grow in the Almohad period because of the central place of hijra in that dynasty’s foundation narrative. These factors forced the jurists to take a new interest in a term which their predecessors had deliberately sought to marginalize. How this change in the law occurred is important for what it can show us about the mechanisms by which the jurists developed new laws to deal with sensitive political issues. The term hijra was introduced cautiously into legal texts. It was not generally placed directly into legal manuals (matn/mutūn), the convenient reference works used by judges and jurisconsults,31 but was introduced in a limited 31 on these areas. On the Christian need to preserve Muslim communities in order to populate newly conquered lands, see Robert Burns, “Immigrants from Islam: The Crusaders’ use of Muslims as Settlers in Thirteenth-Century Spain,” The American Historical Review 80 (1975), 21–42. On the economic importance of the Mudéjars to the Christians, see John Boswell, The Royal Treasure: Muslim Communities under the Crown of Aragon in the Fourteenth Century (New Haven: Yale University Press, 1977), 471 and José-Enrique López de Coca Castañer, “Sobre la emigración mudéjar al reino de Granada,” Revista d’Història Medieval 12 (2001), 243 ff. On the use and importance of Mudéjar guards and soldiers in Christian armies, see Ana Echevarría, Knights on the Frontier: The Moorish Guard of the Kings of Castile (1410–1467), tr. M. Beagles (Leiden: Brill, 2009). Thus, for example, none of the following major legal manuals deal with hijra as a religious obligation: Muḥammad b. Aḥmad al-ʿUtbī’s (d. 255/869) supplement to the Mudawwana, al-Mustakhraja min al-asmiʿa mimmā laysa fī al-Mudawwana (generally referred to as al-ʿUtbiyya); Ibn Abī Zayd’s Risāla (a major précis of Mālikī law); Yūsuf Ibn ʿAbd al-Barr (d. 463/1071), al-Kāfī fī fiqh ahl al-madīna al-Mālikī (Beirut: Dār al-Kutub al-ʿIlmiyya, 2002). Commentaries similarly omit reference to the term. For examples, see Sulaymān b. Khalaf al-Bājī (d. 474/1081), al-Muntaqā: Sharḥ Muwaṭṭaʾ Mālik, ed. Muḥammad ʿAṭā (Beirut: Dār al-Kutub al-ʿIlmiyya, 1999); Khalaf b. Muḥammad al-Barādhiʿī’s (d. 400/1009) influential guide to the Mudawwana, Tahdhīb masāʾil al-Mudawwana and Qāḍī ʿIyāḍ Ibn Mūsā’s commentary to the same work al-Tanbīhāt al-mustanbaṭa ʿalā al-kutub al-mudawwana waʾl-mukhtalaṭa, ed. M al-Wathīq (Beirut: Dār Ibn Ḥazm, 2011). This trend continues in such later Egyptian handbooks of Mālikī law as Ibn al-Hājib’s (d. 646/1249) Jāmiʿ al-ummahāt, ed. A. al-Akhḍarī (Damascus: al-Yamāma, 1998) and Khalīl b. Isḥāq al-Jundī’s (d. 767/1365) Mukhtaṣar Khalīl, ed. Ṭ. al-Zāwī (Cairo: Dār Iḥyāʾ al-Kutub al-ʿArabiyya, 1980), which were broadly circulated in the Maghrib. Shihāb al-Dīn al-Qarāfī’s (d. 684/1285) al-Dhakhīra also has no discussion of the issue. It does, however, quote the tradition “there is no hijra after the conquest, but only intention and jihād” without comment in a section devoted to establishing the mandatory nature of jihād. See al-Qarāfī, al-Dhakhīra, ed. M. Ḥajjī (Beirut: Dār al-Gharb al-Islāmī, 1994), 3: 385. 40 CHAPTER 1 way to the genres of Qurʾānic commentary (tafsīr), legal manual commentary (sharḥ) and legal responsum ( fatwā). This aversion to discussing hijra in legal manuals is evident in the work of Muḥammad b. Yūsuf al-Mawwāq (d. 897/1492),32 the chief judge of Granada. The latter omits the term in his commentary on Khalīl’s Mukhtaṣar (a legal manual), when describing the obligation to leave the abode of war, and instead uses the words “leave” (kharaja) and “flee” (haraba).33 However, in one of his fatwās, al-Mawwāq uses the term hijra and affirms its continuing religious validity. Hijra is so important, he says, that it takes precedence over obedience to parents.34 Explanations for the absence of hijra in legal manuals must necessarily be tentative. Perhaps hijra might have been excluded because, given the sensitive nature of the material, the jurists did not want it to become a legal concept of first resort. They preferred to deal with it either in works of commentary, or on a case-bycase basis in responsa, rather than expressing it in a manual as a general rule which carried the risk that it might become subject to broad application. The Qurʾānic commentary was particularly useful as a vehicle for expounding on hijra as the issue in this genre arose naturally and demanded to be addressed simply because it appeared in the Qurʾān.35 Commentators were thus able to express its importance without laying down rules which would immediately be applied in practice.36 32 33 34 35 36 Muḥammad Makhlūf, Shajarat al-nūr al-zakiyya fī ṭabaqāt al-Mālikiyya (Beirut: Dār al-Kitāb al-ʿArabī, 197?), 1: 262 and C. Brockelmann, Geschichte der arabischen Litteratur (Leiden: Brill, 1996), Supplement 2: 37. Muḥammad b. Yūsuf al-Mawwāq, al-Tāj waʾl-iklīl li-mukhtaṣar Khalīl (Tripoli: Maktabat al-Najāḥ, 1969), 3: 354. Kathryn Miller, “Muslim Minorities and the Obligation to Emigrate to Islamic Territory: Two Fatwās from Fifteenth-Century Granada,” Islamic Law and Society 7 (2000), English: 285, Arabic: 286. The following Qurʾānic commentaries all consider hijra to have contemporary applications: Muḥammad b. ʿAbdallāh Ibn al-ʿArabī (d. 543/1148), Aḥkām al-Qurʾān, ed. ʿAlī al-Bajāwī (Cairo: ʻĪsā al-Bābī al-Ḥalabī, 1967), 1: 484–6 and 2: 888; Muḥammad b. Aḥmad al-Qurṭubī (d. 671/1273), al-Jāmiʿ li-aḥkām al-Qurʾān (Cairo: Dār al-Kātib al-ʿArabī, 1967) to Qurʾān 4: 97 ff.; Muḥammad b. Muḥammad Ibn ʿArafa, Tafsīr Ibn ʿArafa, ed. Jalāl al-Asyūṭī (Beirut: Dār al-Kutub al-ʿIlmiyya, 2008), 2: 48; and ʿAbd al-Raḥmān al-Thaʿālibī (d. 873/1468), al-Jawāhir al-ḥisān fī tafsīr al-Qurʾān, ed. ʿAmmār al-Ṭālibī (Algiers: al-Muʾassasa al-Waṭaniyya liʾl-Kitāb, 1985), 1: 484. There were also commentators who make no mention of the contemporary application of hijra. See, for example, ʿAbd al-Ḥaqq b. Ghālib Ibn ʿAṭiyya (d. 541 or 546/1147 or 1151), al-Muḥarrar al-wajīz fī tafsīr al-Kitāb al-ʿazīz (Beirut: Dār al-Kutub al-ʿIlmiyya, 1995) on Qurʾān 4: 97 and 8: 72. Another possible explanation for its absence is the relative rigidity of the legal manual genre as compared to the more flexible genre of the fatwā. Since the foundational Mālikī The Concept of Hijra (Migration) 41 I now turn to the use of hijra within fatwā literature. The earliest fatwās that deal with hijra date from after the Almohad period. It was during this period that the urgency of the situation of Muslims living under Christian rule became evident as jurists realized that Christian territorial gains would not be short-lived. Many of these jurists state that living in the abode of war is forbidden and that this is proven by the existence of the obligation of hijra. Jurists of this opinion include Muḥammad b. Yaḥyā Ibn Rabīʿ (d. 719/1319),37 Ibn Miqlāsh (d. 794/1392),38 Muḥammad b. ʿAlī al-Ḥaffār (d. 811/1408),39 Abū al-Qāsim b. Aḥmad al-Burzulī (d. 841/1438),40 ʿAbdallāh al-ʿAbdūsī (d. 847/1442 or 849/1445),41 al-Mawwāq (d. 897/1492), and Aḥmad b. Yaḥyā al-Wansharīsī (d. 914/1508).42 Many of these fatwās give the impression that the issue of hijra was widely discussed. Further evidence of the popularity of the hijra concept is found in a call for hijra on behalf of Yūsuf iii, the ruler of Granada (r. 810– 20/1408–17), which was intended for broad circulation among the Mudéjars. 37 38 39 40 41 42 texts, like Mālik’s Muwaṭṭaʾ or Saḥnūn’s Mudawanna, did not include discussions of hijra, this made it difficult for later manuals to include it. The rigidity of legal manuals, however, can only be a partial explanation given that it has been demonstrated that these manuals are sometimes susceptible to development and innovation. On this, see Wael Hallaq, “Murder in Cordoba: Ijtihād, Iftāʾ and the Evolution of Substantive Law in Medieval Islam,” Acta Orientalia 55 (1994), 55–83. Aḥmad b. ʿAlī Ibn Ḥajar al-ʿAsqalānī, al-Durar al-kāmina fī aʿyān al-miʾa al-thāmina, ed. Muḥammad Sayyid Jād al-Ḥaqq (Cairo: Dār al-Kutub al-Ḥadītha, 1967), 4: 793 and P.S. van Koningsveld and G.A. Wiegers, “The Islamic Statute of the Mudéjars in the Light of a New Source,” al-Qanṭara 17 (1996), 20. Ibn Rabīʿ was a judge and wazīr who lived in Málaga. Biblioteca Nacional de Madrid, ms. 4950, f. 226r ff., published in H. Buzineb, “Respuestas de jurisconsultos maghrebíes en torno a la inmigración de los musulmanes hispánicos,” Hesperis-Tamuda 26–7 (1988), 62–6. The author’s full name is Abū Zayd ʿAbd al-Raḥmān al-Ṣinhājī, he is usually known as Ibn Miqlāsh. Aḥmad Bābā, Kitāb nayl al-ibtihāj bi-taṭrīz al-Dībāj (Cairo: ʿAbbās b. ʿAbd al-Salām ibn Shaqrūn, 1932), 282. Al-Burzulī, Fatāwā al-Burzulī: Jāmiʿ masāʾil al-aḥkām limā nazala min al-qaḍāyā biʾlmuftiyyīn waʾl-ḥukkām, ed. Muḥammad al-Ḥabīb al-Hayla (Beirut: Dār al-Gharb al-Islāmī, 2002), 2: 22–23. On al-Burzulī, see e.i.2 1: 879. Anonymous, al-Ḥadīqa al-mustaqilla al-naḍira fī al-fatāwā al-ṣādira ʿan ʿulamāʾ al-ḥadra, ed. Jalāl ʿAlī Juhānī. (Beirut: Dār Ibn Ḥazm, 2003), 144–45 and al-Mahdī al-Wazzānī, al-Nawāzil al-jadīda al-kubrā fī mā li-ahl Fās wa-ghayrihim min al-badw waʾl-qurā almusammā biʾl-miʿyār al-jadīd al-jāmiʿ al-muʿrib ʿan fatāwā al-mutaʾakhkhirīn min ʿulamāʾ al-Maghrib (Rabat: Wizārat al-Awqāf waʾl-Shuʾūn al-Islāmiyya liʾl-Mamlaka al-Maghribiyya, 1996), 3: 35. On al-ʿAbdūsī, see Makhlūf, Shajarat al-nūr, 255. On al-Wansharīsī, see Francisco Vidal Castro, “Aḥmad al-Wanšarīsī (m. 914/1508). Principales aspectos de su vida,” al-Qanṭara 12 (1991), 315–52. 42 CHAPTER 1 Yūsuf’s intention was to rally the Mudéjars against the Christians by persuading them to migrate to his armies in Granada. He writes: Oh brethren, strive to make the hijra which . . . God has made obligatory for each Muslim—to flee ( yafirru) with his property and children from injustice and unbelief in God . . . and in His Prophet. You already know . . . what is in the Holy Qurʾān regarding hijra and what the Prophet decreed and stipulated regarding it. By God, oh Muslims, there is no city like that of Granada and no place like the frontier fortress (ribāṭ) during the jihād.43 This is one of the few documents in which an appeal to hijra is made on a popular level. Given the fact that the population had been familiar with the concept since the time of the Fāṭimids, it is possible that others existed but are no longer extant. Some jurists, while supporting the principle that Muslims should leave the abode of war, felt that the use of the term hijra was inappropriate and called the obligation by other names. Abū al-Ḥasan b. ʿUthmān al-Zawāwī of Bijāya (circa 9th/15 century)44 is representative of this view.45 He writes: The meaning of hijra is to leave one’s homeland (waṭan) for a place in which the Sharīʿa of the Prophet is in force . . . This was an obligation for all those who converted to Islam before the conquest of Mecca. As for [what happens] after the conquest of Mecca, the Prophet said: “There is no hijra after the conquest, but there is jihād and intention (niyya).” However, the obligation of flight ( firār) remains, either from a 43 44 45 J. Ribera and M. Asín, Manuscritos árabes y aljamiados de la Biblioteca de la Junta (Madrid: Centro de Estudios Históricos, 1912), 259–60. Referred to in L.P. Harvey, Islamic Spain, 1250 to 1500 (Chicago: University of Chicago Press, 1990), 59–60. For a discussion of such political sermons with reference to the Muslim West, see Linda Jones, The Power of Oratory in the Medieval Muslim World (Cambridge: Cambridge University Press, 2012), 131–157. ʿĀdil Nuwayhiḍ, Muʿjam aʿlām al-Jazāʾir min ṣadr al-Islām ḥattā muntaṣaf al-qarn al-ʿishrīn (Beirut: al-Maktab al-Tijārī liʾl-Ṭibāʿa waʾl-Nashr waʾl-Tawzīʿ, 1971), 117 and Aḥmad Bābā, Nayl al-Ibtihāj, 206–7. An earlier jurist, Muḥammad b. ʿAlī al-Māzarī (d. 536/1141), also discusses the importance of leaving the abode of war but avoids the term hijra, instead using the verb kharaja (to leave). Al-Wansharīsī’s treatise, Asnā al-Matājir, cites an abbreviated version of this fatwā. Full versions are contained in al-Burzulī, Fatāwā, 4: 49–51, al-Wansharīsī, al-Miʿyār al-muʿrib 10: 107–9, and Abdel-Magid Turki, “Consultation juridique d’al-Imām al-Māzarī sur le cas des musulmans vivant en Sicile sous l’autorité des Normands,” Mélanges de l’Université Saint-Joseph 50 (1984), 691–704. The Concept of Hijra (Migration) 43 place in which one fears for one’s religion . . . or from a place in which there is no one [i.e., no religious leadership] to advise one regarding religion. Flight from the lands of unbelief is necessary lest unbelief gain dominion over faith and [the believers] become subject to the laws of unbelief.46 Al-Zawāwī thus feels the need for a religious injunction which would command migration from the lands of unbelief, but he does not want this injunction to be grounded in the idea of hijra. He accepts that hijra has been abrogated in its entirety, but cites another obligation, which he calls “the obligation of flight ( firār)” from the lands of unbelief, which fulfills the same function. Al-Zawāwī’s statement underscores the ambivalent attitude of many jurists towards the concept of hijra. Even under circumstances in which the precept would eminently serve their needs, its problematic nature made them reluctant to employ it. By the time al-Wansharīsī wrote his fatwas on the Mudéjars, there were already many references to hijra in Mālikī works. However, perhaps because the concept had not been included in Mālikī legal manuals, it had not been the subject of systematic treatment. Al-Wansharīsī therefore gives an expansive outline of what he thinks hijra means and how it is to be applied to the situation of his Muslim contemporaries in al-Andalus. Hijra, he says, is an obligation which will not be abrogated until the Day of Resurrection. The obligation of hijra is of comparable weight to the prohibition against eating carrion or pork, and even to that against murder.47 Its importance is such that living in non-Muslim territory for even a single hour is prohibited.48 Some have argued, al-Wansharīsī says, that hijra in the contemporary period is void, given that all lands are sinful and that a migration from one sinful land to another is thus bereft of any religious meaning. He refutes this objection by quoting Ibn al-ʿArabī (d. 543/1148), who says that hijra does not obligate one to move to a land which is free from sin, but to move to a land which is of a lesser degree of sin. Ibn al-ʿArabī sketches a hierarchy of sin as a guide to where hijra should be made. For example, since the presence of unbelief in a land is worse than the presence of injustice, a Muslim is obligated to make hijra from a land of unbelief in which justice prevails to a land of belief in which injustice prevails.49 46 47 48 49 Al-Wazzānī, al-Nawāzil al-jadīda, 3: 42. Al-Miʿyār al-muʿrib, 2: 124. Al-Wansharīsī’s fatwās on the Mudéjars are translated in full in the appendix. Ibid., 2: 138. Ibid., 2: 121. Al-Wansharīsī’s source is Ibn al-ʿArabī, ʿĀriḍat al-aḥwadhī li-sharḥ ṣaḥīḥ al-Tirmidhī (Beirut: Dār al-Kitāb al-ʿArabī, 1992), 7: 88–89. 44 CHAPTER 1 This hierarchy allows al-Wansharīsī to argue against those who refuse migration on the grounds that justice does not prevail in Muslim lands. After quoting Ibn al-ʿArabī, al-Wansharīsī introduces the debate as to whether the obligation of hijra has been abrogated.50 The resolution of this question was, of course, of great importance to Mālikī jurists who wished to introduce hijra into the legal tradition. He quotes two ḥadīths as representative of the two opposing traditions on whether hijra had been abrogated. The first says: “Hijra will not cease until repentance does; and repentance will not cease until the sun rises in the West.”51 The second says: “There is no hijra after the conquest [of Mecca], but only jihād and intention (niyya); so if you are called [for jihād], offer yourself up.”52 How, al-Wansharīsī asks, can the two traditions, one of which declares that hijra is abrogated and the other that it can never be abrogated, be reconciled? In response, he quotes the resolution given by the Shāfiʿī scholar, Abū Sulaymān al-Khaṭṭābī (d. 386 or 388/996 or 998):53 At the beginning of Islam, migration (hijra) was recommended but not obligatory in accordance with the words of the Sublime, may He be exalted, “One who migrates in the way of God will find much refuge and abundance in the earth” (Qurʾān 4: 100). This verse was revealed when the harm caused to the Muslims in Mecca by the idolaters became severe. It was then, when the Prophet, may God bless him and grant him peace, left for Medina, that migration became obligatory for Muslims. They were ordered to migrate to where he was in order to be together with him, to help one another, to make common cause in times of difficulty, and to study and come to understand religious matters. The greatest fear in that time was caused by the Quraysh tribe, who were the people of Mecca. When they [the Muslims] conquered Mecca and subdued them [the Quraysh], [migration] retained its meaning, but its obligation was removed, although it still remained recommended and desirable. There are two kinds of migration: one which is obligatory but which has been 50 51 52 53 On this debate, see Crone, “The First-Century Concept,” 354 ff. Al-Miʿyār al-muʿrib, 2: 126. Al-Wansharīsī’s source for this tradition is Sunan Abī Dāwūd (Cairo: al-Maktaba al-Tijāriyya al-Kubrā, 1935), 3: no. 2479. For other sources, see Crone, “The First-Century Concept,” 372 n. 103. See above. A Shāfiʿī scholar born in Bust (Sijistān), see gal 1: 165, Supplement 1: 275 and ei2, 4: 1131. The Concept of Hijra (Migration) 45 discontinued and one which remains [in effect], but is [only] recommended. This is how the two ḥadīths are to be reconciled.54 According to al-Khaṭṭābī, when the Prophet declared that hijra was abrogated following the conquest of Mecca, he meant only that it was no longer obligatory, not that its performance was no longer praiseworthy. Al-Wansharīsī, however, rejects al-Khaṭṭābī’s resolution of the contradiction and argues that hijra from the abode of war always has been and always will be obligatory. To support his opinion, he quotes Ibn al-ʿArabī’s reconciliation of the two ḥadīths. According to the latter, hijra was “an obligation in the days of the Prophet . . . and this hijra remains obligatory until the Day of Resurrection (yawm al-qiyāma).” As for the hijra which ceased with the conquest [of Mecca], it was that of heading towards the Prophet . . . wherever he might be.”55 For Ibn al-ʿArabī, therefore, the two traditions on hijra do not conflict, they merely refer to different sets of circumstances.56 The ḥadīth which states that hijra ended with the conquest of Mecca refers to a specific historical hijra which can no longer be implemented since Mecca has been conquered. The ḥadīth stating the eternal obligation of hijra refers to the more general obligation of hijra which can always be implemented so long as there are Muslims who live in the abode of war. Thus, basing himself on Ibn al-ʿArabī, al-Wansharīsī concludes that hijra from the abode of war continues to be obligatory. Having thus established that there are two kinds of hijra, only one of which has been abrogated, al-Wansharīsī proceeds to discuss how juristic works have dealt with whether hijra is obligatory from Christian lands. There is no precise precedent for this obligation in juristic works, he says, because it was only recent political events that compelled jurists to deal with this issue. He says, however, that their opinion can be inferred from their remarks on another case. In this other case, the jurists penalize those who convert to Islam in the 54 55 56 Al-Miʿyār al-muʿrib, 2: 126, quoting Kitāb maʿālim al-sunan in the margins of Sunan Abī Dāwūd, ed. ʿIzzat ʿUbayd al-Daʿās and ʿĀdil al-Sayyid (Homs: Muḥammad ʿAlī al-Sayyid, 1969), 3: 8. Al-Wansharīsī, al-Miʿyār al-muʿrib, 2: 127. Cf. Ibn al-ʿArabī, Aḥkām al-Qurʾān, 1: 484–6 and 2: 888. Ibn al-ʿArabī deals with hijra in a number of places. In his Qurʾān commentary, he indicates that hijra from the abode of unbelief to the abode of Islam is a duty which continues until the Day of Resurrection and that the Prophet’s abrogation of hijra applies only to the hijra of the Prophet’s community to Medina, not to other kinds of hijra. See also Ibn al-ʿArabī’s explanation of this contradiction in his Kitāb al-qabas fī sharḥ Muwaṭṭaʾ Mālik ibn Anas, ed. Muḥammad Karīm (Beirut: Dār al-Gharb al-Islāmī, 1992), 2: 587–88. 46 CHAPTER 1 abode of war but do not then move to the abode of Islam.57 Al-Wansharīsī surmises that the jurists’ rationale behind penalizing these converts was that the law mandated hijra from the abode of war for all Muslims. He is aware, however, that objections could be raised against this inference and he attempts to anticipate some of them. First, while the early Mālikī jurists do indeed say that such converts are obligated to leave the abode of war, they do not use the term hijra to describe this obligation.58 However, apparently beginning with Ibn Rushd, some Mālikī jurists start to associate hijra with this obligation and al-Wansharīsī quotes them to this effect.59 This strengthens his argument for the necessity of hijra from Christian lands by giving the concept of hijra a place in juristic discourse which it had not previously enjoyed. Second, al-Wansharīsī anticipates the objection that a law specifically directed towards converts to Islam in the abode of war should not automatically apply to Muslims-frombirth who live in Christian territory because their lands have been conquered. Since these individuals belong to different categories, the fact that one category is not mentioned might indicate that it was deliberately excluded from the obligation of hijra. Al-Wansharīsī dismisses this objection claiming that the jurists focused on converts not because they wished to restrict the application of these laws to them, but because the case of converts was the only case of Muslims living in the abode of war of which they had experience. Al-Wansharīsī is thus able to argue that earlier Mālikī jurists would have supported mandating hijra from the abode of war even though these jurists did not explicitly indicate this in their writings. As we have seen, al-Wansharīsī’s argument for the continuing validity of hijra was not without precedent in the works of previous Maghribī Mālikī jurists. His contribution to the discourse is principally that he has gathered the disparate discussions on the topic into a single and convenient reference work. With the early 16th-century Christian edicts calling for the expulsion of Iberian Muslims and their subsequent migration or conversion to Christianity, discussions of hijra among Mālikī jurists ceased almost completely. The small remaining communities of crypto-Muslims seldom came to the jurists’ attention and determining the law concerning life under non-Muslim rule became one of only theoretical importance. Those jurists who do discuss the subject, 57 58 59 Al-Wansharīsī, al-Miʿyār al-muʿrib, 2: 124–25. See, for example, al-Mudawwana al-kubrā (Beirut: Dār al-Kutub al-ʿIlmiyya, 1994), 1: 508 and 2: 567, and ʿAbd al-Wahhāb b. ʿAlī al-Baghdādī, al-Ishrāf ʿalā nukat masāʾil al-khilāf, ed. Mashhūr b. Ḥasan Āl Salmān (Riyadh: Dār Ibn al-Qayyim, 2008), 4: 427. Al-Miʿyār al-muʿrib, 2: 124–5. Cf. 2: 439. The Concept of Hijra (Migration) 47 however, do not seem to have significantly altered the thinking of their legal school.60 Writing at the beginning of the Morisco period,61 Aḥmad b. Abī Jumʿa al-Wahrānī (d. 917/1511)62 affirms the continuing obligation of hijra, despite evincing considerable sympathy for those Muslims who had outwardly converted to Christianity but who continued to practice Islam in secret. Another jurist, ʿAbd al-ʿAzīz b. al-Ḥasan al-Zayyātī (d. 1055/1645), fully endorses the obligation of hijra from Christian lands.63 His interest in hijra was perhaps a product of his residence in Jumāra, an area subject to frequent incursions and occupation by the Portuguese.64 Abū al-ʿAbbās Ḥamdūn al-Abbār (d. 1071/1660)65 deals with the question of whether Muslims should make hijra from areas controlled by an unnamed group of Muslim sectarians who, one can surmise, are Ibāḍī Muslims. He does not deny the obligation of hijra, but counsels against it being applied too broadly. He says that wrongdoing is present in most lands and that attempting to flee from it is therefore, under most circumstances, futile. A better strategy is for people to spiritually distance themselves from the wrongdoers in their regions rather than employing the risky strategy of moving to another community.66 It is not clear whether al-Abbār would have had the same attitude to Muslims who lived in Christian lands. What is clear is that, from the fall of Granada until the nineteenth century, regardless of their views on whether Muslims should leave lands in which 60 61 62 63 64 65 66 On this, see H. Buzineb, “Respuestas de jurisconsultos maghrebíes,” 54–55. Dates on the fatwā are either given as 909/1503 or 910/1504, see Devin Stewart, “The Identity of ‘the Muftī of Oran’, Abū l-ʿAbbās Aḥmad b. Abī Jumʿa al-Maghrāwī al-Wahrānī (d. 917/1511),” al-Qantara 27 (2006), 269 ff. This fatwā is edited together with photographs of the original in L. Harvey, “Crypto-Islam in Sixteenth-Century Spain,” in Actas del Primer congreso de studios árabes e islámicos (Madrid: Comité Permanente del ceai, 1964), 163–78. There is much debate regarding its interpretation. See, for example, Leila Sabbagh, “La Religion des Moriscos entre deux fatwas,” in Les Morisques et leur temps (Paris: Centre National de la Recherche Scientifique, 1983), 55 and Stewart, “The Identity of ‘the Muftī of Oran,’ ” 265–301. The fatwā was translated into Aljamiado (Spanish in Arabic script) and continued to be copied for over a century. Al-Wazzānī, al-Nawāzil al-jadīda, 3: 38–41. Mohamed Mezzine, “Les Relations entre les places occupies et les localités de la region de Fès aux xvi éme et xvii éme siècles, a partir de documents locaux inéedits: Les Nawāzil,” in Relaciones de la Península ibérica con el Magreb siglos xiii–xvi, ed. Mercedes GarcíaArenal and María J. Viguera (Madrid: Instituto Hispano-Árabe de Cultura, 1988), 544. Muḥammad b. al-Ṭayyib al-Qādirī, Nashr al-mathānī li-ahl al-qarn al-ḥādī ʿashar waʾlthānī, ed. M. Ḥajjī and A. al-Tawfīq (Rabat: Maktabat al-Ṭālib, 1982), 2: 109. Al-Wazzānī, al-Nawāzil al-jadīda, 3: 36–38. 48 CHAPTER 1 there was wrongdoing, however defined, the Mālikī jurists were unwilling to regard the concept of hijra as having been abrogated in its entirety. Egyptian Mālikīs and the Concept of Hijra Many scholars have viewed the Mālikī law of the Reconquista-period as being rigid, dogmatic, and unable to adapt to changing environments and circumstances.67 I think that this is belied by the Mālikī jurists of the Maghrib who independently decided to revive the Qurʾānic concept of hijra and give it a place in their legal system in response to the needs of communities which had been adversely affected by the Reconquista. That their adoption of hijra was not an inevitable development forced on them by their legal tradition is perhaps best demonstrated by looking at the discussions of hijra by the Mālikī jurists of Egypt. The latter shared most of the same foundational texts as their counterparts in the Maghrib, but drew very different conclusions regarding their application. In contrast to the Mālikī jurists of the Maghrib, the views on hijra of the Egyptian Mālikīs were very similar to the jurists of the other Sunnī legal schools. Like the latter, they limited the application of hijra to a narrow range of circumstances to ensure that the revolutionary concept could never be carried out on a large scale. Like the Maghribī jurists, the Egyptian Mālikī jurists do not generally mention hijra in their legal manuals. The earliest work in which I have seen hijra referred to, albeit obliquely, is by Ibn al-Ḥājj (d. 737/1336).68 He disagrees with those who think that there is an obligation to flee ( firār)69 lands in which corruption ( fasād) is prevalent. Although he does not use the word hijra, it can be deduced from the form of his argument that he does not consider it to be applicable. Most places, he says, are a mixture of good and bad rule. A person will generally not know until he reaches another 67 68 69 Husayn Muʾnis, “Asnā al-matājir fī bayān aḥkām man ghalaba ʿalā waṭanihi al-Naṣārā wa-lam yuhājir wa-mā yatarattabu ʿalayhi min al-ʿuqūbāt waʾl-zawājir,” Revista del Instituto de Estudios Islámicos en Madrid 5 (1957), 5 ff. For similar views, see E. Molina López, “Algunas consideraciones sobre los emigrados andalusíes,” Homenaje al Prof. Darío Cabanelas (Granada: University of Granada, 1987), 1: 425–26 and A. García Sanjuán, Till God Inherits the Earth (Leiden: Brill, 2007), 29. See Ibn al-Ḥājj, al-Madkhal (Beirut: Dār al-Kitāb al-ʿArabī, 1972), 1: 297–98. On Muḥammad b. Muḥammad Ibn al-Ḥājj al-ʿAbdarī al-Fāsī, see gal, 2: 83 and Suppl. 2: 95. He also uses the word haraba, see ibid., 2: 295. The Concept of Hijra (Migration) 49 community whether it is any better than the one from which he came. Moreover, even if a community is established as being better, the dangers of traveling there must be taken into consideration before departing for it. Flight, he says, should only be resorted to in the most extreme of circumstances. Generally, a person should withdraw (iʿtazala) from a place of corruption by confining himself to his home (li-yakūn ḥilsat baytihi). In this manner, he says, such people emulate the Prophet who said, “How good are the hermitages as houses for my people.” For Ibn al-Ḥājj, therefore, a person can continue to be righteous even though he lives in an iniquitous society, provided that he entirely cuts himself off from its affairs. Since Ibn al-Ḥājj bans travel to the abode of war, one can conclude that it is likely that he would have encouraged Muslims who live in Christian lands to migrate from them, but it is unlikely that he would have used the term hijra in order to do so. Other Mālikī Egyptian jurists did not reject the applicability of hijra but limited it to a narrow range of circumstances. In a fatwā written in 916/1510, the chief Mālikī judge of Cairo, Yaḥyā Ibn Muḥyī al-Dīn, says that it is permissible for Muslims to live in those parts of Iberia that have been annexed by Christians. He says that a Muslim “is allowed to postpone hijra if he does not fear for his life and his property. Nay, he is even ordered to postpone it in order not to ruin his property and let himself fall into captivity, because that is not permitted.”70 He adds that community leaders who wish to migrate are obligated to postpone their migration if they believe that it will damage the Muslim minority communities which they serve.71 It is thus only under the most extreme of circumstances that a person is obliged to make hijra. The modern editors of this fatwā are surprised by this jurist’s view, perhaps because it is not in line with the views on hijra held by the Mālikī jurists of the Maghrib. They therefore suggest that the relatively permissive position which the judge chose to adopt was a testament to governmental interference which compelled him to contradict the true opinion of his legal school. The Mamlūk government of Egypt, these editors claim, did not want to prejudice its relations with Christian Spain and therefore put pressure on the judges to endorse Morisco quietism. Militating against this theory, however, is the fact that the rulings of this judge seem to be fully in accord with the general trend of Egyptian Mālikī opinion. For example, a contemporary Egyptian Mālikī jurist, ʿAlī b. Nāṣir al-Dīn al-Manūfī 70 71 P. van Koningsveld and G. Wiegers, “Islam in Spain during the Early Sixteenth Century: The Views of the Four Chief Judges in Cairo (Introduction, Translation, and Arabic Text),” in Poetry, Politics and Polemics, ed. O. Zwartjes et al. (Amsterdam: Rodopi, 1996), 133. Ibid., 138. 50 CHAPTER 1 al-Shādhilī (d. 939/1532),72 in a commentary on Ibn Abī Zayd al-Qayrawānī’s Risāla, incorporates respect for governmental treaties with Christian countries into his view of hijra. In so doing, while not abrogating hijra, he articulates a position which would limit the scope of its application. Before a truce (sulḥ) is concluded, he says, all Muslims are obligated to make hijra from the abode of war. Once a truce is concluded, Muslims are free to remain so long as their observance of Islam is not impaired.73 Thus al-Manūfī comes to a conclusion very similar to that of the chief Mālikī judge of Cairo. Even after the Morisco period, Egyptian Mālikī jurists continue to reiterate the position that so long as Muslims can practice their religion in the abode of war, they are under no obligation to make hijra. One such writer, Aḥmad b. Ghunaym al-Nafrāwī (d. 1126/1714), notes that Ibn Abī Zayd’s Risāla does not discuss the issue of whether a person who converts to Islam in the abode of war is obligated to migrate. He explains that this is because, whereas before the conquest of Mecca, a Muslim was obligated to migrate from the abode of war to the abode of Islam, after the conquest the obligation of hijra was abrogated and hijra became obligatory only for those Muslims living in the abode of war who are unable to practice Islam.74 Thus, by using an argument ex silentio, al-Nafrāwī is able to project this later view of hijra back into earlier sources. Another Egyptian jurist, ʿAlī al-ʿAdawī (d. 1189/1775), who wrote a super-commentary on the aforementioned work by al-Manūfī, disagrees with the latter’s view that Muslims are obligated to make hijra from non-Muslim lands which have not concluded truces with the abode of Islam. Hijra, he says, was abrogated after the conquest of Mecca and because of this there is no obligation to leave the abode of war unless Islam cannot be practiced. Even if a Muslim who cannot practice Islam does not migrate, al-ʿAdawī says, he is still deemed to be a Muslim and not an unbeliever, but he is regarded as a disobedient Muslim.75 In a similar vein, Aḥmad al-Ṣāwī (d. 1241/1825), writing regarding the French conquest of Egypt, says that a territory remains Muslim regardless of who rules it provided that the Muslims who live there are able to practice their religion. He does not mention the term hijra which would be of limited 72 73 74 75 gal 2: 316, Supplement 2: 434. ʿAlī b. Nāṣir al-Dīn al-Manūfī al-Shādhilī, Kifāyat al-ṭālib al-rabbānī li-Risālat Ibn Abī Zayd al-Qayrawānī (Cairo: Muṣṭafā al-Bābī al-Ḥalabī, 1938), 2: 4. Aḥmad b. Ghunaym al-Nafrāwī, Kitāb al-fawākih al-dawānī ʿalā Risālat Ibn Abī Zayd al-Qayrawānī (Cairo: Maṭbaʿat al-Saʿāda, 1913), 2: 117. ʿAlī b. Aḥmad al-Ṣaʿīdī al-ʿAdawī, Ḥāshiya ʿalā kifāyat al-ṭālib al-rabbānī li-Risālat Ibn Abī Zayd al-Qayrawānī (Cairo: Muṣṭafā al-Bābī al-Ḥalabī, 1938), 2: 4. The Concept of Hijra (Migration) 51 applicability when Muslim territory is so broadly defined.76 Thus, for these jurists, hijra is not required from a territory merely because it is governed by non-Muslims and is applicable only under a very limited set of circumstances. Egyptian Mālikī views on hijra continued to limit its scope until foreign rule over Egypt led the jurist Muḥammad ʿIllaysh (d. 1299/1882) to reverse this position and bring the views of his compatriots closer to those of the Maghribīs. Until then, the Mālikīs of Egypt, unpressured by either the Islamic revolutionary movements which repeatedly visited the Maghrib or by the constant pressure of Christian neighbors, simply adopted a stance on hijra in line with those of the other Sunnī legal schools. By comparing the different positions on hijra held by the Egyptian and Maghribī Mālikīs, one can see that the legal tradition did not force the Maghribī jurists to adopt a specific opinion on the subject; rather, they adopted a position which they believed was appropriate to the needs of their communities. This chapter has traced the development of the concept of hijra as a basis for a Muslim’s obligation to leave the abode of war. Despite the centrality of the concept in early Islamic thinking, jurists felt relatively free to decide when it should be applied and when it should be deemphasized. When making these decisions, they referred to statements attributed to the Prophet as precedent but, because such statements were subject to a broad range of interpretations, this did not fetter their ability to develop creative legal solutions to contemporary problems. Invocations of the concept of hijra can be seen as almost cyclical in nature. Hijra appeared in early Islam when Muslims were a persecuted minority and then faded once Muslims came to possess political power. It became popular again during periods of instability in the Almoravid and Almohad periods, but was swept to the sidelines once the Almohad dynasty had gained sufficient political power. It rose to prominence again in response to Christian territorial gains during the Reconquista, and then faded from discussions during the following period when the borders between Christian and Muslim lands became more stable. It would again rise to prominence in the nineteenth century as a result of French incursions in the Maghrib and would then experience a demise in the late nineteenth century once French gains in the region achieved a semblance of permanence and migration became 76 Aḥmad b. Muḥammad al-Ṣāwī, Bulghat al-sālik li-aqrab al-masālik ilā madhhab al-Imām Mālik ʿalā al-sharḥ al-ṣaghīr liʾl-quṭb al-shahīr Aḥmad b. Muḥammad b. Aḥmad al-Dardīr (Cairo: Muṣṭafā al-Bābī al-Ḥalabī, 1952), 1: 361. On al-Ṣāwī, see G. Delanoue, Moralistes et politiques musulmans dans l’Egypte du xixe siècle (1798–1882) (Cairo: Institut Français d’Archéologie Orientale du Caire, 1982), 188 ff. 52 CHAPTER 1 impractical. The jurists felt free to develop laws which responded to these cycles of power and the legal system thus cannot be seen as impairing their ability to determine when and how to invoke the concept of hijra in response to the needs of their societies. Another Source of Prohibition Against Living in Non-Muslim Territory Hijra was not the only principle to which Mālikī jurists made recourse in order to ban living under non-Muslim rule—another principle was the prohibition against traveling to the abode of war for the purpose of trade and in this way becoming subject to non-Islamic laws.77 Unlike the principle of hijra, this prohibition was referred to with greater frequency in legal manuals and therefore had the advantage of having a less ambiguous legal status. The earliest compilation of law used by Mālikī jurists, the Muwaṭṭaʾ, a selection of traditions transmitted by Mālik b. Anas (d. 179/795),78 does not deal with the issue of such travel. The opinions cited in the Muwaṭṭaʾ were developed in Medina, a region remote from the border with the abode of war.79 The Medinan jurists operated on the assumption that the world of Islam was 77 78 79 The jurists rarely discuss travel to the abode of war for purposes other than trade and the ransoming of captives. Mālikī authorities permitted the latter, but not the former, see David de Santillana, Istituzioni di diritto musulmano malichita con riguardo anche al sistema sciafiita (Rome: Istituto per l’Oriente, 1938), 1: 71. I have come across two discussions of the permissibility of travel for purposes other than trade and the ransoming of captives, both of which occur in non-legal sources. The famous traveler, Muḥammad b. Aḥmad Ibn Jubayr (d. 614/1217), notes that while it is prohibited to live in the abode of war, it is permissible to pass through it on one’s travels, see Riḥla, ed. W. Wright and M.J. de Goeje (Leiden: Brill, 1907), 307, quoted in F. Maíllo Salgado, “Del Islam residual mudéjar,” in España, al-Andalus, Sefarad: síntesis y nuevas perspectivas (Salamanca: Universidad de Salamanca, 1988), 139. The mystic, Muḥyī al-Dīn Ibn al-ʿArabī (d. 638/1240), notes that pilgrimage to lands governed by Christians is prohibited. For this reason, he says, travel to crusader-controlled Jerusalem is prohibited, see Ibn al-ʿArabī, al-Waṣāyā li-Ibn al-ʿArabī (Cairo: Dār al-Ghad al-ʿArabī, 1988), 38–39. ei,2 6: 262. There has been much debate regarding where the Muwaṭṭaʾ was composed. At present, the general consensus seems to be that, regardless of where it was redacted, the opinions expressed in it represent the views of the Medinan school. For a convenient summary of the debate, see Christopher Melchert, “The Early History of Islamic Law,” in Method and Theory in the Study of Islamic Origins, ed. Herbert Berg (Leiden: Brill, 2003), 307–309. The Concept of Hijra (Migration) 53 rapidly expanding and that dependence upon the non-Muslim world for resources was not a matter of necessity. They therefore did not deal extensively with the legal issues which could arise either from a Muslim defeat at the hands of the unbelievers, or from an environment which required some degree of economic dependence on the non-Muslim world. Discussions regarding whether Muslims are permitted to travel to the abode of war seem to have begun among the Mālikī jurists with Saḥnūn b. Saʿīd (d. 240/854).80 In formulating the laws regarding this situation, Saḥnūn was developing a new field of jurisprudence. Unlike the jurists of Medina, Saḥnūn lived on the periphery of the Islamic world in Qayrawān, located in modern-day Tunisia. His work, the Mudawwana,81 reflects the political and economic environment of Qayrawān, which was heavily dependent on trade with the Christian world for its food supply and other commodities. Christian traders were thus frequent visitors to the city and it was not uncommon for the Muslims traders of Qayrawān to visit Christian lands. The relationship between these Muslim and Christian lands was not always cooperative. Raids, conquests, and re-conquests were a frequent feature of the relationship between the Aghlabid-controlled Maghrib, and Christian Sicily and southern Italy.82 In the Mudawwana, Saḥnūn deals with many of the legal issues that arise from Muslim-Christian interactions in his work. In a section on trading in the abode of war, he discusses a prohibition against Muslims traveling to the abode of war for the purpose of trade. He ascribes this prohibition to Mālik who, he says, had “a great abhorrence” of this activity because Muslims who travel to the abode of war necessarily become subject to the laws of unbelief.83 80 81 82 83 Makhlūf, Shajarat al-nūr, 1: 69–70 and ei2, 8: 843–45. The authorship of the Mudawwana has been the subject of considerable debate among modern scholars, a debate to which I cannot do justice in this chapter. I note only that the views in the sections of the Mudawwana with which I deal in this chapter seem specifically tailored to the problems facing Muslim traders in Qayrawān from Saḥnūn’s own time to the time of al-Qābisī (d. 403/1012), whose students who were likely responsible for making the final recension of the work. For a discussion of the authorship of the Mudawwana, see Miklos Muranyi, Beiträge zur Geschichte der Ḥadīṯ und Rechtsgelehrsamkeit der Mālikiyya in Nordafrika bis zum 5. JH. D. H. (Wiesbaden: Harrassowitz, 1997), 35 ff. Mohamed Talbi, L’Émirat aghlabide (184–296/800–909) (Paris: Adrien-Maisonneuve, 1966), 531 ff. On Aghlabid relations with Christian states, see ibid., 380 ff; and Barbara M. Kreutz, Before the Normans: Southern Italy in the Ninth and Tenth Centuries (Philadelphia: University of Pennsylvania Press, 1991), 18 ff. al-Mudawwana al-kubrā (Beirut: Dār Sādir, 1975), 4: 270. 54 CHAPTER 1 Saḥnūn’s view was not immediately adopted by all Mālikī jurists. For example, Yūsuf Ibn ʿAbd al-Barr al-Qurtubī (d. 463/1071),84 the qāḍī of Lisbon, says that although permanent residence in the abode of war is forbidden, as is marriage for one who resides there, there is no prohibition against residing there temporarily for the purpose of trade or in the hope of winning converts to Islam.85 Nevertheless, Saḥnūn’s position was widely accepted by his contemporaries and successors and achieved universal acceptance among the Mālikī jurists of the Maghrib within two centuries of his death. One of the earliest jurists to follow Saḥnūn’s view was Ibn Abī Zayd al-Qayrawānī (d. 386/996).86 In his Risāla, he asserts that traveling for trade to the land of the enemy and to the Sudan87 is forbidden.88 This view quickly spread through a growing number of commentaries on the work. An Egyptian commentator on the Risāla, ʿAbd al-Wahhab al-Baghdādī (d. 422/1031),89 in accepting the view, explains that Ibn Abī Zayd derives the prohibition on travel from the legal concept of hijra which prevents Muslims from living in non-Muslim territory lest non-Muslim laws be applied to them.90 Another 84 85 86 87 88 89 90 Maribel Fierro, “Ibn ʿAbd al-Barr, Abū ʿUmar,” in J. Lirola Delgado and J.M. Puerta Vílchez, Diccionario de Autores y Obras Andalusíes (Seville: Junta de Andalucía, Consejería de Cultura, 2002), 1: 287–292 and Brockelmann, Geschichte der arabischen Litteratur, 1: 367 ff. and Supplement 1: 628 ff. Yūsuf b. ʿAbdallāh b. Muḥammad Ibn ʿAbd al-Barr al-Namarī al-Qurṭubī, al-Kāfī fī fiqh ahl al-madīna al-Mālikī (Beirut: Dār al-Kutub al-ʿIlmiyya, 2002), 210. ei2, 3: 695 and Makhlūf, Shajarat al-nūr, 1: 96. In the ninth/fifteenth century, Aḥmad Ibn Zarrūq (d. 899/1493) qualifies this view on the Sudan by noting that a Muslim is permitted to travel to those areas of it which are controlled by Muslims, see Hopkins and Levtzion, Corpus of Early Arabic Sources for West African History, 383 and Aḥmad b. Aḥmad al-Zarrūq, Sharḥ Risālat Ibn Abī Zayd al-Qayrawānī, ed. Aḥmad Farīd al-Mazīdī (Beirut: Dār al-Kutub al-ʿIlmiyya, 2006), 2: 478. Abū Muḥammad Ibn Abī Zayd al-Qayrawānī, Risāla, ed. Léon Bercher (Algiers: Jules Carbonel, 1949), 318. Al-Qayrawānī considers travel to the abode of war to be so distasteful that he regards the travel itself as a part of the punishment for this sin. The tradition regarding travel being a punishment is included in a number of major ḥadīth collections, see, for example, Saḥīḥ al-Bukhārī, ed. Ludolph Krehl (Leiden: Brill, 1862), 1: 19, 26, and 450 and Saḥīḥ Muslim, ed. Muḥammad Fuʾād ʿAbd al-Bāqī (Cairo: Dār Iḥyāʾ al-Kutub al-ʿArabiyya, 1955), 3: 1526, no. 1927. Brockelmann, Geschichte der arabischen Litteratur, Supplement 1: 660. As his name implies, al-Baghdādī originally lived in that city before immigrating to Egypt. Quoted in Qāsim b. ʿĪsā Ibn Nājī, Sharḥ Ibn Nājī al-Tanūkhī ʿalā matn al-Risāla liʾl-Imām Abī Muḥammad ʿAbdallāh ibn ʿAbd al-Raḥmān Ibn Abī Zayd al-Qayrawānī, ed. Aḥmad Farīd al-Mazīdī (Beirut: Dār al-Kutub al-ʿIlmiyya, 2007), 2: 485. In support of this position, he quotes Qurʾān, 4: 100. The Concept of Hijra (Migration) 55 Egyptian jurist, Tāj al-Dīn al-Fākihānī (d. 731/1331 or 734/1334),91 quoting the Mudawwana, makes a similar point and again refers to the danger of a Muslim becoming subject to the laws of unbelief.92 Ibn Abī Zayd’s reference to travel in the Sudan was clearly a matter of great relevance to his contemporaries in Qayrawān. In a fatwā, the great jurist, ʿAlī b. Muḥammad al-Qābisī (d. 403/1012),93 says that the prohibition against travel to the abode of war makes it illegal to entrust money by way of a qirāḍ94 to someone who intends to use the funds to travel to the Sudan.95 From the fatwā, one can gather that, despite the disapproval of the jurists, such trips were nonetheless quite common.96 About a century after Ibn Abī Zayd, the Andalusī jurist, Muḥammad b. Aḥmad Ibn Rushd “the grandfather” (d. 520/1126), expanded on Saḥnūn’s views in a commentary on the Mudawwana. Ibn Rushd lived in a time of military crisis. The fifth/eleventh century had seen the fall of Toledo to the Castillians (478/1085), of Sicily to the Normans (484/1091), and even the brief loss of the Maghribī port city al-Mahdiyya to the Genoese and Pisans (479/1087). Ibn Rushd thus looked favorably on Saḥnun’s policy of isolation from non-Muslim powers and, like him, espoused the view that Muslims are banned from travelling to the abode of war for the purpose of trade because, in doing so, they become subject to non-Muslim laws. Supporting Saḥnun’s contention, Ibn Rushd cites the principle that anyone who converts to Islam in the abode of war is required to migrate to the abode of Islam.97 This principle, he says, applies not just to converts, but to all Muslims who find themselves in the abode of war. He writes: 91 92 93 94 95 96 97 Brockelmann, Geschichte der arabischen Litteratur, 2: 22 and Supplement, 2: 15. Quoted in Sharḥ Ibn Nājī, 2: 485. Al-Fākihānī adds that Ibn Abī Zayd’s statement that the act of traveling itself is a part of the punishment means that those who engage in it are not subject to further punitive measures. Ibn Nājī of Qayrawān (837/1433) registers his disagreement with this position, indicating that additional punitive measures are in order. Kaḥḥala, Muʿjam al-muʾallifīn, 7: 194–5 and Makhlūf, Shajarat al-nūr, 1: 97. A qirāḍ is defined as “a commercial arrangement in which an investor or group of investors entrusts capital or merchandise to an agent-manager who is to trade with it and then return it to the investor with the principal and a previously agreed-upon share of the profits,” see ei2, 5: 129. al-Wansharīsī, al-Miʿyār al-muʿrib, 9: 78–9. On the extent of this trade, see Said Ennahid, Political Economy and Settlement Systems of Medieval Northern Morocco: An Archaeological-Historical Approach (Oxford: Archaeopress, 2002), 30. Muḥammad b. Aḥmad Ibn Rushd, Kitāb al-muqaddimāt al-mumahhidāt, 4: 285 and idem, al-Bayān waʾl-taḥṣīl waʾl-sharḥ waʾl-tawjīh waʾl-taʿlīl fī masāʾil al-mustakhraja, ed. Muḥammad Ḥajjī (Beirut: Dār al-Gharb al-Islāmī, 1984), 4: 171. 56 CHAPTER 1 The Qurʾān, the tradition, and the consensus of the community oblige someone who converts to Islam in the land of war to migrate and join the abode of Islam, and not remain among the polytheists and establish his residence among them, lest their laws be applied to him. This being the case, how is it permissible for anyone to enter their lands when their laws of trade and of other matters will be applied to him? As Mālik . . . said: “It is disliked for anyone to live in a land where the forbears (salaf ) are disrespected;”98 so how is it possible to live in a land where the Merciful One is not believed in and where idols are worshipped?99 Thus, on the basis of Mālik’s dislike of living in a land where the forbears are disrespected, Ibn Rushd bans Muslim merchants from traveling to the abode of war, emphasizing that it is on the grounds that non-Islamic laws would be applied to them. Saḥnun’s position was also adopted by other contemporaries of Ibn Rushd. For example, Muḥammad b. ʿAlī al-Māzarī (d. 536/1141),100 a jurist of Sicilian ancestry who lived in al-Mahdiyya, responded to a question put by the Zīrid ruler to a number of jurists regarding whether Muslims could travel to Norman Sicily in order to obtain grain during a time of famine. Al-Māzarī answered in the negative because, like Ibn Rushd, he was concerned that those who travelled there would become subject to the laws of unbelief.101 The question was so pressing that al-Māzarī sent to his teacher, the venerable ʿAbd al-Ḥamid Ibn 98 99 100 101 I have been unable to find the source of this exact ḥadīth, but for a similar statement, see Abū Muḥammad ʿAbdallāh Ibn Abī Zayd al-Qayrawānī, Kitāb al-Jāmiʿ fī al-sunan waʾlādāb waʾl-māghāzī waʾl-tārīkh, ed. Muḥammad Abū al-Ajfān and ʿUthmān al-Baṭṭīkh (Beirut: Muʾassasat al-Risāla, 1985), 156, referred to in Michael Cook, Commanding Right and Forbidding Wrong (Cambridge: Cambridge University Press, 2001), 362. Muḥammad b. Aḥmad Ibn Rushd, Kitāb al-muqaddimāt al-mumahhidāt, 4: 286–87. Kaḥḥāla, Muʿjam al-muʾallifīn, 11: 32 and ei,2 6: 943. It is interesting to note that a number of disputes between traders conducting business in Christian Sicily came before al-Māzarī. He gives his ruling on their disputes and makes no reference to the overall legality of trade in this region. See, for example, al-Wansharīsī, al-Miʿyār al-muʿrib, 8: 181–2 and 207–8, referred to in Sarah Davis-Secord, “Muslims in Norman Sicily: The Evidence of Imām al-Māzarī’s Fatwās,” Mediterranean Studies 16 (2007), 60–61. I do not think that it is necessary to posit, as Davis-Secord does, that al-Māzarī changed his mind on this matter. He probably considered such actions to be wrong but felt that there should nonetheless be justice among sinners. This kind of reasoning is also apparent in his fatwā on the Muslim judges of Norman Sicily which I discuss in another chapter. The Concept of Hijra (Migration) 57 al-Ṣāʾigh (d. 486/1093),102 to ask for his confirmation of the ruling. The latter responded that travel to such lands was forbidden because of the monetary advantage that it gave to the unbelievers, who would use the money which they received from Muslims to fight against them.103 ʿAbdallāh Ibn Ṭalḥa al-Yāburī al-Ishbīlī (d. 538/1144)104 offers an exception to this view. Travelling to the abode of war, he says, is not permissible lest a Muslim become subject to non-Muslim law or be humbled by unbelievers. However, if a Muslim travels to uninhabited parts of non-Muslim territory where there is no risk that this might happen, such travel is permissible. Thus he says that it is permissible to hunt, cultivate land, and pasture in such areas.105 Later jurists continued to affirm the ban on travel. Muḥammad b. Aḥmad Ibn Juzayy of Granada (d. 741/1340),106 who died while fighting on behalf of the Marīnids to reconquer Iberia, includes a section on trade in non-Muslim territory in his legal work, Qawānīn al-aḥkām. In it, he reiterates the position taken by Ibn Rushd and al-Māzarī and adds that travel to non-Muslim territory is banned except in circumstances where it is necessary in order to ransom captives.107 About a century later, Abū al-Qāsim b. Aḥmad b. Muḥammad al-Burzulī (d. 841/1438) of Tunis,108 quoting al-Māzarī, makes a similar point, but says that merchants who travel to the abode of war out of necessity in order to procure food commit a less serious offence.109 Thus, by the time al-Wansharīsī compiled his fatwās on the question of whether Muslims could live under non-Muslim rule, there had already been several significant Mālikī legal discussions which banned Muslims from residing there on a temporary basis. What was the reason for the jurists’ objections to Muslims being subject to non-Muslim rule even temporarily? The Egyptian Mālikī jurist, Muḥammad Ibn al-Ḥājj (d. 737/1336), says that a Muslim may not travel to the land of unbelief 102 103 104 105 106 107 108 109 Makhlūf, Shajarat al-nūr, 1: 117. al-Wansharīsī, al-Miʿyār al-muʿrib, 6: 317–318. Cf. al-Burzulī, Fatāwā al-Burzulī, 2: 45–6. The matter is briefly discussed in H.R. Idris, “Commerce maritime et ḳirāḍ en Berbérie orientale: d’après un recueil inédit de fatwās médiévales,” Journal of the Economic and Social History of the Orient 4 (1961), 228. Al-Māzarī confirms this view in his Sharḥ al-Talqīn (Tunis National Library n. 12206), f. 168, quoted in Ibrāhīm b. Mūsā al-Shāṭibī, Fatāwā al-Imām al-Shāṭibī, ed. Muḥammad Abū al-Ajfān (Tunis: n.p., 1985), 146 n. 59. Makhlūf, Shajarat al-nūr, 1: 379. al-Wazzānī, al-Miʿyār al-jadīd, 3: 47–48. Makhlūf, Shajarat al-nūr, 1: 213 and Kaḥḥāla, Muʿjam al-muʾallifīn, 9: 11. Muḥammad b. Aḥmad Ibn Juzayy al-Gharnāṭī al-Mālikī, Qawānīn al-aḥkām al-sharʿiyya wa-masāʾil al-furūʿ al-fiqhiyya (Beirut: Dār al-ʿIlm liʾl-Malāyīn, 1968), 319. See ei2, 1: 879. al-Burzūlī, Fatāwā al-Burzulī, 2: 45–46. 58 CHAPTER 1 because it is an essential religious principle, enshrined in a ḥadīth, that “Islam is exalted and nothing is exalted above it.”110 Since the word of a Muslim who travels to the abode of war is inevitably subordinated to that of the unbelievers, travel to such lands is prohibited.111 Some fatwās in al-Wansharīsī’s al-Miʿyār al-muʿrib suggest that jurists objected to Muslims living under non-Muslim rule because they worried that under such circumstances they would be placed in a position in which they would be compelled to violate Islamic law. In a section of the al-Miʿyār al-muʿrib dealing with the laws of trade, it is mentioned that certain non-Islamic laws and conventions of trade force Muslim merchants to commit usury, albeit unwittingly. Al-Wansharīsī cites a ruling by al-Māzarī in which Muslim traders reported on how, whenever they arrive in Christian Sicily, they are forced by its officials to exchange their gold dinars for local currency. The procedure arranged by these officials was such that Muslim currency lost considerable value in the exchange. Since the Christian officials apparently received this additional money for no added value, some Muslim jurists declared that the exchange was forbidden as it constituted ribā, or the forbidden taking of interest.112 Al-Māzarī suggests that, given the seriousness of becoming subject to this law, Muslims should avoid trading in Sicily even in the event that failing to procure such items would lead to starvation in the Maghrib.113 It should be noted that the jurists’ discussions regarding Muslims being subjected to non-Muslim laws might have had another subtext. Al-Miʿyār 110 111 112 113 Ṣaḥīḥ al-Bukhārī, no. 1288. The ḥadīth is discussed in Y. Friedman, Tolerance and Coercion in Islam: Interfaith Relations in the Muslim Tradition (Cambridge: Cambridge University Press, 2003), 35 ff. Muḥammad b. Muḥammad Ibn al-Ḥājj, al-Madkhal (Cairo: al-Maṭbaʿa al-Miṣriyya, 1929), 4: 53–54. See al-Wansharīsī, al-Miʿyār al-muʿrib, 6: 319. It should be noted that, according to most Mālikīs, the taking of interest, even in the abode of war, is forbidden. See, for example, al-Mudawwana al-kubrā (Beirut: Dār Sādir, 1975), 4: 271 and Khalaf b. Abī al-Qāsim alAzdī al-Barādhiʿī, Tahdhīb masāʾil al-Mudawwana (al-Tahdhīb fī ikhtiṣār al-Mudawwana), ed. Aḥmad Farīd al-Mazīdī (Beirut: Dār al-Kutub al-ʿIlmiyya, 2006), 2: 65. See, however, the dissenting view of Ibn Rushd, al-Muqaddimāt al-mumahhidāt, ed. Muḥammad Ḥajjī (Beirut: Dār al-Gharb al-Islāmī, 1988), 2: 10–11. In another fatwa, al-Wansharīsī does allow for a potential loophole to the rule against temporarily placing oneself under non-Muslim authority. He says that, so long as the Muslim sultan is strong, a Muslim may travel on a Christian ship despite the fact that a Muslim is not normally permitted to place himself under the authority of Christians. This is because he sees the existence of the Muslim sultan as a guarantee against religious corruption. See al-Wansharīsī, al-Miʿyār al-muʿrib, 1: 436. The Concept of Hijra (Migration) 59 al-muʿrib contains many references to Muslims fleeing to non-Muslim lands in order to escape the jurisdiction of Muslim judges. Some relate that there were Maghribī husbands and fathers who left their families for years on end while they sojourned in Norman Sicily.114 Such travel resulted in a limitation on the authority of the jurists because they had no extraterritorial power and therefore had no way to compel such individuals to take responsibility for their families and other financial obligations. Prohibiting travel to the abode of war was thus one way in which jurists sought to preserve their authority. Despite the prohibition against travel to the abode of war, many Muslim merchants continued to travel there. Although there was little that the jurists could do about it, they registered their disapproval in any way they could. It is reported, for example, that Saḥnūn refused to allow the building of a bridge to his house because he knew that it would be funded from trade with the Sudan, which he regarded as being a part of the abode of war.115 Similarly, many jurists called for a ban on the use of ivory and other items commonly imported from the Sudan, although the ban seems to have been largely ignored.116 The ban on becoming subject to non-Muslim laws is thus one of the main legal principles from which many Mālikī jurists, including al-Wansharīsī, derived their ban against living in non-Muslim territory. It was a powerful argument as it was based upon several centuries of Mālikī legal precedent, beginning with Saḥnūn in the Mudawwana.117 Once jurists could establish in this way that temporary residence in the abode of war was prohibited, they could argue that, a fortiori, permanent residence in the abode of war was also prohibited. They were thus able to argue, with considerable force, that their views on the largely unprecedented situation of Muslims living under non-Muslim rule were entirely consistent with Mālikī tradition. 114 115 116 117 Udovitch, “Muslims and Jews,” 89, and al-Wansharīsī, al-Miʿyār al-muʿrib, 3: 311–14. al-Qāḍī ʿIyāḍ, Tarājim Aghlabiyya mustakhraja min madārik al-qāḍī ʿIyāḍ, ed. Muḥammad al-Ṭālibī (Tūnis: al-Jāmiʿa al-Tūnisiyya, 1968), 126, cited in Hopkins and Levtzion, Corpus of Early Arabic Sources for West African History, 103. Abū Bakr ʿAbdallāh b. Abī ʿAbdallāh al-Mālikī (d. 453/1061), Kitāb riyāḍ al-nufūs fī ṭabaqāt ʿulamāʾ al-Qayrawān wa-Ifrīqiya, ed. Ḥusayn Muʾnis (Cairo: Maktabat al-Nahḍa al-Miṣriyya, 1951), 1: 388. The ban continued to be promulgated into the thirteenth/nineteenth century. For examples, see B. Lewis, “Legal and Historical Reflections on the Position of Muslim Populations under Non-Muslim Rule,” 49; idem, The Muslim Discovery of Europe (London: Phoenix, 1994), 117–119 and 179–182; and Muḥammad al-Ṣaffār and Susan Gilson Miller (tr.), Disorienting Encounters: Travels of a Moroccan Scholar in France in 1845–1846: The Voyage of Muhammad As-Saffar (Berkeley: University of California Press, 1992), 221. 60 CHAPTER 1 Conclusion The earliest Mālikī texts lacked an explicit prohibition against Muslims living permanently in non-Muslim territory and the jurists therefore looked to the concept of hijra and the ban on temporary travel to the abode of war as support for this prohibition. Each of these concepts had both strengths and weaknesses. While the concept of hijra more closely implied a prohibition against living in Christian territory, it possessed an ambiguous legal status as a result of the attempts of previous religious authorities to exclude it from the Islamic tradition. The ban on temporary travel to the abode of war could be invoked on firmer legal ground, but it clearly lacked the resonance of the concept of hijra. In addition, the fact that it had been widely neglected by merchants for centuries must have further weakened its force. By invoking the two concepts together, however, the jurists no doubt felt that they had produced a strong legal case against those Mudéjars who wished to remain in their homes in Christian Iberia.