The Islamic Obligation to Emigrate: Al-Wansharīsī's Asnā al-matājir Reconsidered 公开

Hendrickson, Jocelyn N (2009)

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This dissertation re-examines a fatwā (formal response to a legal question) issued in 1491 C.E. by Aḥmad al-Wansharīsī (d. Fez, 914/1508) confirming the obligation of Iberian Muslims to emigrate from their conquered homelands, which had become non-Muslim territory (dār al-ḥarb) as a result of the Christian 'Reconquista,' and to settle in Muslim territory (dār al-Islām). Al-Wansharīsī's primary fatwā, "Asnā al-matājir," and a shorter text, "the Marbella fatwā," are among the most prominent pre-modern fatwās on Muslims living under non-Muslim rule, and have attracted considerable scholarly attention. While previous scholars have placed al-Wansharīsī's rulings in exclusive conversation with other fatwās related to the status of Muslims under Christian rule in Iberia or Sicily, this dissertation argues that Asnā al-matājir in particular must be understood in its North African context.

Chapter one reviews and critiques the existing literature and establishes that the primary audiences for these fatwās consisted of 1) the North African jurist who posed the questions, and 2) the professional legal readership of the Micyār, the compendium of Mālikī fatwās compiled by al-Wansharīsī. Asnā al-matājir likely was not intended to encourage Iberian Muslim emigration.

Chapter two argues that the Christian occupation of parts of Morocco, and the fifteenth-century juristic discourse to which it gave rise, represent the most immediate historical and intellectual contexts in which al-Wansharīsī's fatwās on emigration must be understood. The relevant fatwās contained in al-Zayyātī's (d. 1055/1645) Al-Jawāhir al-mukhtāra, including one by al-Wansharīsī, are analyzed and compared.

Chapter three critiques the conception that al-Wansharīsī's fatwās were especially strict or unimaginative. An examination of the jurist's use of past precedent demonstrates his agility in adapting previous rulings to his present context, and reveals aspects of these rulings to be more lenient than those of his predecessors and contemporaries.

Chapter four confirms the success of al-Wansharīsī's rulings in becoming authoritative precedents by analyzing fatwās for and against emigration from colonial Algeria and Mauritania. Specific reasons are advanced for Asnā al-matājir's impact on later Mālikī thought on this issue.

The appendices include translations and editions of important fatwās discussed in this dissertation, including Asnā al-matājir and the Marbella fatwā.

Table of Contents

Introduction 1
Islamic Legal Genres and the Study of Fatwās 4
This Dissertation 7

Chapter One:
The Muftī as Villain: Al-Wansharīsī and his Fatwās on the Obligation to Emigrate 11

Al-Wansharīsī and Asnā al-matājir 16
Life and Works of al-Wansharīsī 16
Asnā al-matājir 21
Previous Characterizations of Asnā al-matājir and the Marbella Fatwā 25
Mu'nis's Study and Edition 28
Dating the Fatwās 31
The Question: Audience, Circulation, and the Ability to Emigrate 36
Audience and Circulation 39
The Issue of Ability 57
Al-Wansharīsī's Rulings as Illiberal and Uninformed 74
Al-Wansharīsī's Knowledge of Mudéjar Life 76
Al-Wansharīsī's Knowledge of Islamic Law 89
Al-Wansharīsī's Opinions in Comparison to Those of Other Jurists 92
Conclusion 99

Chapter Two:
Al-Wansharīsī in Contemporary Context 101

Political History of Fifteenth and Sixteenth Century Morocco 102
Al-Zayyāté's al-Jawāhir al-mukhtāra 110
Biography of al-Zayyāté 112
al-Jawāhir al-mukhtāra 115
Ibn Barṭāl 120
Al-Waryāglī 133
Al-Māwāsī 140
Excerpts from al-Burzulī and Ibn Rabīc 143
Al-Wansharīsī's 'Berber Fatwā' 144
Ḥamdūn 153
Categories of Hijra 154
Al-Bijā'ī 155
Al-Zawāwī 160
Ibn Zikrī 163
Al-Nālī and Ibn Hārūn 164
Conclusion 168

Chapter Three:
Al-Wansharīsī's Use of Precedent in Asnā al-matājir 177

Al-Wansharīsī's Use of Ibn Rabīc's Fatwā on Emigration 177
Framing of al-Wansharīsī's Response: Ranking of Emigrants' Destinations 179
The Qur'ān 181
The Man aslama Precedent: Converts in Dār al-ḥarb and Conquered Muslims 182
The Sunna 184
Varieties of Hijra 185
Inviolability of Converts and Conquered Muslims 191
Punishment of the Andalusī Emigrants 197
Legal Probity and Mudéjar Judges 200
Al-Māzarī 201
Life and Times of al-Māzarī 202
Asnā al-matājir's Section on Judges' Probity 205
Ibn Rabīc 216
Al-cAbdūsī 219
Related Rulings in the Micyār 229
Analysis 233
Punishment in the Hereafter 235
Conclusion 236

Chapter Four:
Asnā al-matājir as Authoritative Precedent
Ibn Abī Jumca al-Wahrānī and his Fatwā 240
Later Mālikī Fatwās on the Obligation to Emigrate 241
Algeria 242
Historical Context 242
Al-Tusūlī's First Response to cAbd al-Qādir 244
Life of al-Tusūlī 245
Al-Tusūlī's Ruling on Emigration 246
Ibn Ruwayla's Letter to Ibn al-Kabābṭī 248
Ibn al-Ḥaffāf's Commentary on Ibn Ruwayla's Letter 249
Ibn al-Shāhid's Letter from Algiers 250
cUlaysh's Response to cAbd al-Qādir 255
Al-Tusūlī's Second Response to cAbd al-Qādir 257
Fatwā of al-Sharīf al-Tilimsānī 262
cAbd al-Qādir's Treatise 264
Gannūn's Treatise on Living in Enemy Territory 277
Mauritania 286
Mā' al-cAynayn 287
Shaykh Sidīya Baba's 1903 Fatwā Encouraging Accommodation 289
Sidīya Baba's 1909 Letter Discouraging Jihād 293
Sacd Buh's 1909 Letter to Mā' al-cAynayn 294
Murabbīh Rabbuh's Fatwā on the Obligation to Emigrate 297
Al-Buṣādī's Fatwā on the Property of Non-Emigrant Muslims 303
Summary of al-Buṣādī's Text 306
Analysis 324
Conclusion 327

Conclusion 335

Appendix A:
Translation of Asnā al-matājir
Question 340
Answer 344

Appendix B:
Translation of the Marbella Fatwā
Question 383
Answer 385

Appendix C:
Translation of Selected Fatwās on Muslims Living Under Non-Muslim Rule
from al-Zayyātī's Al-Jawāhir al-mukhtāra
First Fatwa of Ibn Barṭāl 395
Fatwā of al-Waryāglī 397
Fatwā of al-Māwāsī 399
Second Fatwā of Ibn Barṭāl 401
Excerpts from Abū al-Qāsim al-Burzulī and Ibn Rabīc 403
Third Fatwā of Ibn Barṭāl 406

Appendix D:
Edition of Fatwās on Muslims Living Under Non-Muslim Rule
from al-Zayyātī's Al-Jawāhir al-mukhtāra
First Fatwā of Ibn Barṭāl 411
Fatwā of al-Waryāglī 412
Fatwā of al-Māwāsī 414
Second Fatwā of Ibn Barṭāl 415
Excerpts from Abū al-Qāsim al-Burzulī and Ibn Rabīc 417
Third Fatwā of Ibn Barṭāl 418
Fatwā of al-Wansharīsī (the 'Berber Fatwā') 421
Fatwā of Ḥamdūn 427
Excerpts on the Categories of Hijra 430
Fatwā of al-Bijā'ī 431
First Fatwā of al-Zawāwī 434
Second Fatwā of al-Zawāwī 434
Third Fatwā of al-Zawāwī 435
First Fatwā of Ibn Zikrī 435
Second Fatwā of Ibn Zikrī 436

Appendix E:
Edition of al-Buṣādī's Fatwā on the Property of Non-Emigrant Muslims

Abbreviations of Biographical Sources 468

Bibliography 470

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