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Collection as a Source for Jewish Social History in al-Andalus and the Maghrib
Author(s): Matthias B. Lehmann
Source: Jewish Studies Quarterly , 1999, Vol. 6, No. 1 (1999), pp. 25-54
Published by: Mohr Siebeck GmbH & Co. KG
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Introduction
Though much has been written about the Jews in Muslim Spain, or al-
Andalus, most of the accounts have focused on the remarkable accom-
plishments of Jewish cultural life in medieval Spain, pointing out tower-
ing personalities such as Hasday b. Shaprut, Samuel b. Naghrila (ha-
Nagid) or Juda ha-Levi. This is true even of recent, more critical studies
that have done little to dispel the notion of an early medieval "Golden
Age" in Jewish-Spanish history forged by nineteenth-century Jewish his-
toriography. We are well informed about certain incidents in Jewish his-
tory in al-Andalus, such as the pogrom against the Jews of Granada in
1066, or about a number of "court Jews" who reached important posi-
tions in the taifa kingdoms of the eleventh century. These cases, however,
represent exceptions in a period which has still not been exhaustively
analysed.2
1 The conclusions presented here are the result of research undertaken for my M. A.
thesis submitted at the Freie Universität Berlin in 1997. I wish to thank Professors
Peter Schäfer, Gudrun Krämer (both FU Berlin), Lutz Richter-Bernburg (University
of Leipzig) and Uffa Jensen for their comments on the M. A. thesis as well as Dr. Javier
Castano (Universidad Complutense of Madrid) who read through this paper. I am
indebted to Donnell Reed, Berlin, for correcting my English. - Chapters 1.2 and II. 3
are an elaborated version of a paper presented at the Congress of the European Asso-
ciation of Jewish Studies in Toledo, July 1998.
1 he most prominent work on the Jews of al-Andalus is, of course, the study by
Eliyahu Ashtor, Korot ha- Yehudim bi-Sefarad ha-Muslemit, 2 vols, Jerusalem, 2nd cor-
rected and enlarged ed. 1960-66; English translation as The Jews of Moslem Spain, 3
vols, Philadelphia 1973-84. More recently, a very useful chapter on the Jews of eleventh-
century Spain has been presented by David Wasserstein in his The Rise and Fall of the
Party-Kings: Politics and Society in Islamic Spain 1002-1086, Princeton 1985.
3 Haïm Zafrani, Juifs d'Andalousie et du Maghreb, Paris 1996, pp. 15-18; 49-51.
Al- M i'y âr al-Mu'rib wal-Djâmï al-Mughrib 'an Fatâwî 'Ulamâ' Ifrîqiya wal-Anda-
lus wal-Maghrib, 13 vols, Rabat 1981-1983; a selection of texts with French translations
and paraphrases was published by Émile Amar, "Consultations Juridiques des Faqihs
du Maghreb", in Archives Marocaines 12-13 (1908); a survey of cases dealing with non-
Muslims was prepared by H. R. Idris, "Les tributaires en occident musulman médiéval
d'après le 'Mi'yâr' d'al-Wansarîsî", in Mélanges d'islamologie, éd. Pierre Salmon, Lei-
den 1974, pp. 172-196. Vincent Lagardère, Histoire et société en occident musulman au
moyen âge: Analyse du Mi'yâr' d'al-Wansarîsî, Madrid 1995. I follow Idris and Lagar-
dère in dating the cases.
juristic documents may be used as sources not only for the history of
Islamic law but also in a broader sense for social history.5 "[A] fatwa is a
discrete literary performance through which we may analyze the culture
of the mufti, the rhetorical strategies that he employs, and his mode of
reasoning," as David S. Powers has put it.6
The fatwâs played a major role in the development of Islamic law, the
sharVa. Wael B. Hallaq has shown that the alleged "closing of the gate
of idjithâd," the end of independent legal reasoning, which scholars long
assumed to have taken place in the tenth century, in reality never oc-
curred. Rather, the patterns of legal reasoning shifted, increasingly com-
ing to be based on casuistry and the use of precedents.7 This does not
imply more inflexibility in the post-classical period, however. To the
contrary, the fatwâs which were now collected served as a vehicle for
applying legal norms to changing social circumstances. The first collec-
tions of fatwâs were prepared from the second half of the tenth century
onwards. Hallaq distinguishes between "primary" and "secondary" col-
lections, the former encompassing fat was by one mufti, the latter respon-
sa from different scholars over an extended period of time. These, in
turn, were further abstracted and served as a basis for the works of
Islamic substantive law, the/wnî' literature.8
It has sometimes been assumed that the fatwâs collected in works like
that of al-Wansharîsî portray fictitious rather than real cases. It was
again Hallaq who reversed this idea, clearly demonstrating that fatwâs
were in fact integrated into fatwâ collections precisely because they re-
presented typical or ground-breaking situations, but in any event real
against a Jew in the city of Fez at the turn of the twelfth century.12 The
former case, which led to a pogrom against the Jews of Touat and the
destruction of their synagogues, is the most extensively discussed con-
flict regarding Jews found in al-Wansharîsî's collection.
Before analyzing the Fez and Touat cases (cf. 1.2 and 1.3 below), we
shall turn our attention to the underlying concept of the legal and social
status of non-Muslims in Muslim society, which serves as the foundation
upon which the juridical discourse is based. Because a detailed discus-
sion of the shurût 'umariyya would, of course, go beyond the scope of
this article, we will concern ourselves with only three aspects here.
(a) Conquest treaties - capitulation documents. None of the textual
versions of the "Pact of 'Umar" can be dated earlier than the tenth or
eleventh century.13 A great deal has been said about the emergence of
this document, Tritton and Fattal arguing in their "classical" studies
that the attribution to 'Umar b. al-Khattâb is a later invention of Mus-
lim tradition. Against their view, Albrecht Noth has shown in his major
contribution to the discussion that many of the stipulations do in fact
make sense in the context of, and only in the context of, the Muslim
conquests of the eighth century.14 They were intended to ensure military
security - stipulations which lost much of their significance after the
consolidation of Islamic rule - and to separate socially the conquering
Muslim minority from the conquered non-Muslim majority. The "Pact
of 'Umar" is thus convincingly interpreted as a pragmatic reaction to the
challenge posed by a situation in which the victorious Muslims still were
a small minority in highly civilized regions only recently conquered.
They were to inhibit the Muslims from acculturating to non-Muslim
culture rather than the other way round.
Mark R. Cohen has carried the argument further, insisting on the
literary form of the "pact" as a petition by the Christians addressed to
the caliph. He concludes:
"Normally, administrative enactments in Islamic government originated
in response to petitions, either for redress of grievances or for confirmation
of privileges. Thus, the Pact of 'Umar may be seen as an outgrowth of the
15 Cohen, Under Crescent and Cross, p. 57. - Professor Cohen informs me that his
article, "What was the Pact of 'Umar?: A Literary-Historical Study," expanding upon
the brief discussion in Under Crescent and Cross, will be published in Jerusalem Studies
in Arabic and Islam 23 (1999).
The text addressed to the mufti goes on to ask whether any relevant
precedents are to be found in earlier times. The answer raises two points:
(a) The mufti refers to a prophetic tradition which says: "Do not greet
the [dhimmis] first and force them to the edge of the way [ilâ adyaq at-
tarîq]"x% He goes on to explain that while some have understood the
sentence figuratively as placing the dhimmis at a disadvantage at court,
the correct interpretation should be the literal one, meaning that a non-
Muslim should give way to a Muslim when they, meet in the street.
"The equality of the Muslim and the dhimmi in the juridical decision ac-
cording to [the principles of] fairness is obligatory. That is part of Islam's
dignity and its excellence. The Prophet [...] said: 'Humiliate them, but do
16 Wael B. Hallaq, "Model shurût works and the Dialectic of Doctrine and Prac-
tice", in Islamic Law and Society 2 (1995), pp. 109-134.
The name of the jurisconsult is not given but reterred to simply as N. N. X. son
of Y" Text in al-Mivâr al-Murih. vol. 2. n. 254.
18 For this hadîth, cf. the fine article by Georges Vajda, "Juifs et Musulmans sel
hadîi", in Journal asiatique 229 (1937), pp. 57-127, here p. 110, which also give
references in the hadîth collections.
Qâbisî from Qayrawân (d. 1012), for example, is asked about the case of
a Jew and a Muslim who have lived in the same quarter since their child-
hood.23 They render each other services which are not specified in the
fatwâ. Now the Muslim has to defend his friendly attitude towards his
Jewish neighbour: When they meet on the street, they "exchange news
and a smile and friendly words". It is interesting that the Muslim tries to
justify himself by insisting on his "contempt" against Jews in general
and that the friendly relations with his neighbour do not imply sympathy
for Jews. Al-Qâbisî explains in his answer that politeness in daily contact
with non-Muslims does not transgress the dhimma, but at the same time
admonishes that "if you ask for your own sake: do not intermingle with
the adherents of other religions". The mufti illustrates the principle for-
mulated here by insisting on the symbolic significance of daily speech:
"If he [the dhimmi' greets you: Answer him by saying 'the same to you'
[wa-'alayk] and do not add anything else."24
(c) Unfortunately we are not informed about the person raising the
complaint against Ibn Qanbâl or his motivations. In this context, how-
ever, a crucial point is made by claiming that the Jewish hakim clothed
himself "like the Muslim notables or even better". The emphasis shifts
from the horizontal line dividing the religious groups to a vertical class
distinction. Ibn Qanbâl seems not only to have transgressed the stipula-
tions of 'Umar but, to his Muslim neighbours, to have usurped social
prestige derived from his professional or economic standing.
The mufti addressed here is consulted as a renowned expert in dhimmî
affairs. The case of Ibn Qanbâl thus gives rise to an account of this
jurisconsult's observations made during a visit to Baghdad.25 He relates
that, in that town, a rich Jewish family had offered to pay 500 dinars
toward the poll tax (djizya) instead of merely 40 dinars in exchange for
lifting the obligation to wear distinguishing marks. Their offer had been
denied and the appropriate humiliation of the dhimmîs had subsequently
been enforced.26 Like Ibn Qanbâl's clothing himself in the manner of the
Muslim notables in Fez, here the complaint against Jews violating the
As has been mentioned earlier, the "Pact of 'Umar" is cited twice in al-
Wansharîsî's collection. In addition to the case of a Jewish doctor in
Fez, it is referred to in the lengthy discussion on the status of the syna-
gogues of Touat allegedly built after the Muslim conquest, although the
construction of synagogues is explicitly forbidden in the "Pact of
'Umar".29 In the discussion about Touat, al-Wansharîsî also integrates
an earlier case of a synagogue in Cordoba which at the turn of the tenth
century became the object of a conflict dealt with in the fatwâ collection
of Ibn Sahl (d. 1093).30
(a) The Line of Legal Reasoning. The line of argumentation in the case
of the Cordoba synagogue, which is cited as a relevant precedence for
the case of Touat, may be seen as a standard discussion on the limits of
toleration.
Reading the fatwâ of the muftis constituting the shurâ in Cordoba,31
one might get the impression that the matter is self-evident and undis-
puted:
"We have heard from witnesses [...] that the synagogue is new and we
think the testimonies make it necessary to tear it down after having given
their owners the ïdhâr [opportunity to refute the evidence]. According to the
laws of Islam, the ahl adh-dhimma, Jews and Christians, are not permitted to
build new churches or synagogues in the towns of Muslims or among them.
[...] Ibn Mâdjishûn [d. 829] said: There shall not be built a [dhimmi' house of
worship in the dâr al-Islâm, in [Islam's] area of protection and rule. [The
case is different] when the ahl adh-dhimma [live] separately from the dâr al-
Islâm and its area of protection and when there are no Muslims among
them: they shall then not be prohibited to build [houses of worship]. [...] -
[It is forbidden] as well to repair their old houses of worship for which they
have signed conquest treaties when [such houses] have become deteriorated -
except when [such repairs are] among the stipulations of the treaty, which
then is fulfilled. They are prohibited to add anything [to their houses of
worship], be it outside [the building] or inside. If they have concluded stipu-
lations which do not prohibit them to build new houses of worship, then the
imam has done this out of ignorance and the prohibition by the Prophet of
God [. . .] has priority. [. . .] Ibn Mâdjishûn said: All this is valid for the ahl as-
sulh among the ahl al-djizya [those dhimmîs who have concluded a conquest
treaty with the Muslims]. With regard to the ahl al-'anwa [those who have
been defeated in battle], they should not be left any house of worship [,..]."32
The main point to be emphasized here is that the synagogue (or church)
in question is to be established by way of valid testimonies as being
"new" - i.e., built after the Muslim conquest. Even if it seems obvious
to any observer that the house of worship is of more recent origin, only
the testimony of (Muslim) witnesses, but no material evidence, is ad-
mitted. We learn this, for example, from a trial against the Fustat syna-
gogue in 1038. When the Jews presented a large number of Muslim
witnesses who testified that the synagogue was "old," the qadi dismissed
the charge against the Jews.33 The legal process must thus be assured
31 The following muftis are cited: 'Ubayd Allâh b. Yahyâ, d. 910; Muhammad b.
Lubâba, d. 926; Ibn Ghâlib, d. 906; Ibn Walîd, d. 961; Sa'd b. Mu'âdh, d. 920; Yahyâ b.
'Abd al-'Azîz, d. 907; Ayûb b. Sulaymân, d. 914; Sa'îd b. Khamîr, d. 913.
Translated from the version cited by Ibn Sahl, al-ahkâm al-kubrâ, vol. 2, pp. 77-
80.
Norman A. Stillman, The Jews of Arab Lands: A History and Source Book, Phi-
ladelphia 1979, pp. 189-191; Cohen, Under Crescent and Cross, p. 59.
34 Concerning Spain, cf. Hans-Rudolf Singer, "Der Maghreb und die Pyrenäenhalb-
insel bis zum Ausgang des Mittelalters", in Geschichte der arabischen Welt, Ulrich
Haarmann (ed.), München 1987, pp. 264-322, here p. 266; on the Maghrib, cf. Louis
Milliot, Introduction à l'étude du droit musulman, Paris 1953, pp. 502 ff.
ai-mi yar ai-mu no, voi. z, pp. z<w.
16 ί-ί ., .. ι π. . it ι λ ω/' >^r'^. «τ« '....a.
ratiai, òiaius legai, pp. ίου- zuj, ιπιιοη, won-iviusum ouojecis, pp. d ι- ι /, ucms
with Christian houses of worship after the Muslim conquest.
(b) The Touat Crisis. In the last quarter of the fifteenth century a
heated debate emerged among Maghribi jurists about the status of the
synagogues of Touat. This debate had been instigated by the jurist al-
Fidjîdjî. The qadi of Touat, al-'Asnûnî, emphatically took the part of
the Jews in his responsum.37 A debate ensued between muftis who sup-
ported the qadi in his position and those who - like al-Wansharîsî him-
self or, most notably, at-Tanasî from Tlemcen (d. 1494) - called for the
destruction of the synagogues. At the height of the discussion, in the
1480s, the jurist al-Maghîlî, also from Tlemcen (d. ca. 1550), wrote a
malevolent pamphlet against the Jews of Touat, inciting the Muslims
to rise against them. A bloody pogrom in fact broke out against the
Jews and their synagogues were destroyed. The event was recorded in
contemporary Arabic sources and a Hebrew lamentation composed
after the Spanish conquest of Oran in 1509.38
As mentioned above, the discussion about the legal status and possi-
ble destruction of the synagogues in the region of Touat represents the
most detailed elaboration on dhimmî affairs in al-Wansharîsî's fatwâ
collection. The crisis has also been the subject of much research. Hence,
in the present discussion, we will also deal at greater length with this
fatwâ than others which are not complemented by additional sources.
We will restrict ourselves, however, to a limited number of aspects which
correspond to the sources assembled in the Mi'yâr.
Those who defend the legality of the synagogues basically adduce six
arguments in favour of the Jews:
(a) According to the qadi of Touat, al-'Asnûnî, the villages of the
region in question fell under Islamic rule through the conclusion of a
capitulation treaty (sulhan), the importance of which we have seen in the
discussion in Cordoba.39
(b) A further argument refers to the question of an earlier authoriza-
tion to construct a synagogue. Al-'Asnûnî maintains that since the Jews
of Touat always used to have synagogues in the towns founded by the
Muslims and the earlier jurists never objected to this, one should assume
37 It is not possible to establish the precise year of the Touat crisis; exactly when al-
Fidjîdjî and al-'Asnûnî lived is unknown. Cf. Hunwick, Al-Maghîlî, p. 175. The de-
struction of the synagogues occurred, according to Hunwick, before 1489, when one
of the muftis involved died.
Cf. Hunwick, Al-Maghih, who gives a bibliography of primary and secondary
sources; cf. also G. Vajda, "Un traité maghrébin 'adversos judaeos': Ahkâm ahl al-
dhimma du sayh Muhammad b. 'Abd al-Karîm al-Magîlî", in Études d'orientalisme
dédiées à la mémoire de Lévi-Provençal, Paris 1962, vol. 2, pp. 805-813.
^9 À 1 Έ AT · t A 1 Ί Μ ί ·1 1 /% *' A A
ai-mi yar ai-Mu rw, voi. z, p. zi^.
Reviewing the "everyday life" case of the Jewish doctor in Fez, the raz-
ing of the synagogue in Cordoba, and the demise of the community in
Touat, we might ask: What do these have in common, what do they
show about the parameters of the dhimmdl It appears that two divergent
trends existed in Muslim legal thought and practice concerning the
dhimmh. Some jurists tend to stress the mutually obligatory character
of the institution of the dhimma and the principle of toleration towards
non-Muslims; another trend, represented by muftis like Ibn al-Mâdji-
shûn and in a more radical manner by al-Maghîlî in the case discussed
above, insists on the humiliation of the dhimmh and interprets any at-
tempt of escaping from their humble status as a breach of the "Pact of
'Umar".53
The popular attitude of not wanting to share the same water source with
Jews is dismissed by the mufti. This argument, however, does not only
appear in the North African context. The chief qadi of Cordoba, for
example, is asked in the twelfth century whether one may cancel the
purchase of a house when a Jew or a Christian thereafter moves into
the neighbouring house and both have the same source of water. Again,
the popular attitude is dismissed and the qadi explicitly remarks: "There
exists a connection between this case and the general inhibition against
In light of the close vicinity of Jews and Muslims in Islamic towns, one
might expect conflicts arising from the very differences of the religions.
In fact, however, religious polemics between Jews and Muslims are an
issue conspicuously absent from Wansharîsî's fatwâ collection. Of the
124 cases cited by H. R. Idris, only one deals with a Jew who is accused
of having insulted Islam. On the other hand, at least four cases exist of
Christians charged with anti-Islamic polemics.58 This in fact underlines
the general impression, not of the absence of religious polemic between
medieval Islam and Judaism, but of its incidental nature.59
The conversion of Jews to Islam and related questions might also be
expected to be the logical consequence of their close proximity. Conver-
sions too, however, are mentioned only sporadically in Wansharîsî's
work. For example, the text on the extent of Jewish legal "autonomy"
cited below (III.2) mentions Jews who converted to Islam and were pre-
sented as witnesses by one of the Jewish parties. Another case from
tenth-century Andalusia concerns a Jewish boy who converted to Islam
when he was eight years old and then seems to have continued or re-
turned to live as a Jew. Ibn Zarb (d. 991) said:
"Controversy exists on this issue. I believe that nothing changes between
him and the person who brings him up, be it the father or the mother. When
he comes of age, one should offer him Islam and he should hold on to it.
Otherwise [if he does not want to remain a Muslim] one should hit him and
continue to hit him until he [agrees to] hold on to Islam. - It is said that Ibn
Kinâna [d. 852] would have him punished to death if he holds on to Juda-
ism. He [Ibn Zarb] said: That is very strict and I do not see it this way."60
While researchers have stressed the crucial role played by Jews in the
Mediterranean trade network, I have not come across even one fatwâ
dealing with Jews as long-distance traders in al-Wansharîsî's collection.
Rather, Jews appear in the context of inner-Iberian trade. The reason for
this might be that since the Muslim and Jewish merchants who had
previously controlled Mediterranean trade had lost their position to
emerging Christian traders (notably of the Italian states) in the course
of the thirteenth century,62 al-Wansharîsî did not see the need to include
fatwâs dealing with long-distance trade.
As shown through a responsum issued by Ibn Lubâba (Córdoba, d.
926) on a question about commercial relations with Jews, the juriscon-
sults were well aware of the fact, so much stressed by legal anthropolo-
gists, that personal prejudices, like broadly shared cultural assumptions,
do influence the process of judicial decision-making. Thus Ibn Lubâba
strongly rejects the view of another mufti forbidding Muslims to buy
meat not fit for kosher use (tarifa - trefa) from Jewish butchers63
(such as the hindquarters of animals etc., an issue, by the way, that
61 On the question of conversions to Islam, cf. Glick, Islamic and Christian Spain,
pp. 33-35 and Youssef Courbage, Philippe Fargues, Chrétiens et Juifs dans l'Islam arabe
et turc, Paris 1992.
6 Olivia R. Constable, Trade and Traders in Muslim Spain: the Commercial Realign-
ment of the Iberian Peninsula, 900-1500, Cambridge 1994, pp. 240-256.
OJ Al-MVyâr al-Mu'rib, vol. 5, p. 250.
emerges time and again in both Muslim and Christian anti- Jewish po-
lemics). Ibn Lubâba calls that jurisconsult an "ignoramus" and insists
that one should not follow "the people who give a fatwâ on something
they do not know anything about. It is forbidden to give a fatwâ in
ignorance." The argument used by the Cordovan jurisconsult is that
the Maliki authorities Ibn Wahb, Ashhab, and Ibn Nâfî had allowed
trefa meat to be bought from the Jews, while only Ibn al-Qâsim prohib-
ited it, not having any tradition to back his opinion but rather letting
himself be guided by his personal "disgust" for that kind of meat. The
personal prejudice of one of the leading Maliki scholars is thus refuted as
not forming an acceptable basis for a legal decision on a specific busi-
ness transaction.
Cultural assumptions about the Jews, however, do exist which are
admitted as legal presumptions influencing the judicial process. Though
we cannot authoritatively establish general trends in Jewish-Muslim re-
lations on the basis of seven fatwâs, the texts collected in the Miyâr at
least suggest that from the tenth to the fifteenth century a certain dete-
rioration in the status of Jews can be observed in cases of commercial
conflicts with their Muslim counterparts.
The two earliest cases in the collection date from the tenth century
and deal with the business partnership64 known in Europe as commenda
(Arabic qirâd), a device in Islamic law which aided in circumventing the
strict Koranic prohibition on usury:
"The commenda is an arrangement in which an investor or group of in-
vestors entrusts capital or merchandise to an agent-manager, who is to trade
with it and then return to the investor(s) the principal and a previously
agreed-upon share of the profits. As a reward for his labor, the agent receives
the remaining share of the profits. Any loss resulting from the exigencies of
travel or from an unsuccessful business venture is borne exclusively by the
investor(s); the agent is in no way liable for a loss of this nature, losing only
his expended time and efforts."65
64 Al-MVyâr al-Mu'rib, vol 6, pp. 227 f. and vol. 10, p. 452. The first case is also
recounted in the earlier fatwâ collection by Ibn Sahl, ahkâm al-kubrâ, vol. 2, pp. 73-77.
Abraham L. Udovitch, Partnership and Profit in Medieval Islam, Princeton 1970,
p. 170. Cf. also Milliot, Introduction, pp. 664 f.
"He answered: It is customary for the Jews - God may curse them - to
regard the property of Muslims as easy loot. [...] The jurists said that, if
someone is known for breaking the law and for injustice, he is judged ac-
cordingly. If someone accuses such a person, the plaintiff receives what he
demands, if he takes an oath; and vice versa. He [the qadi] should judge in
the case of the Jew that the Muslim takes the oath of not owing anything [to
the Jew] I...]."70
It is interesting to see that in later fatwâs such as this one the mention of
Jews is more and more often accompanied by a curse. More significant,
however, is that in the opinion of the jurisconsult it may legitimately be
assumed that Jews break the law and try to cheat Muslims. A similar
argument is also presented in the fatwâ which follows this one and ad-
dresses a case of the same sort. One should determine whether
"the Jew belongs to those of whom it is testified that they are patient and
do not cheat - but this is rare [among them] -[...] If the character of the Jew
is not known, it shall be assumed that he belongs to the first category [of
those who do cheat the Muslims]."71
Here the jurisconsult does not see the negative view of the Jews as a
personal prejudice which is not allowed to influence a legal decision
but rather as a widely shared cultural assumption which is transformed
into a legal presumption.72
74 Cf., for example, Joseph Schacht, An Introduction to Islamic Law, London 1964,
pp. 125 ff.
Goitein, Mediterranean Society, vol. 5, pp. 112-121.
'" Ibid., p. 118.
77 Al-Miyâr al-Mu'rib, vol. 7, pp. 59f.; 438 f.; Ibn Sahl, al-ahkâm al-kubrâ, pp. 65-
71.
In the second case,79 the mufti Ibn Sahl (d. 1093) is asked about a
property which a Jew has established as a habs in favour of his daughter;
in the event that the family has no more offspring, the usufruct was to
benefit Muslim poor. Some time later, a "man with influence or power"
urged the Jew to sell him half of this property, thus seriously prejudicing
the foundation. In his reply, the mufti declares the sale null and void.
Here again, the status of the ahbâs al-yahûd is not equivalent to that of a
Muslim foundation; yet it is stated that any sale which results from
pressure is void and therefore the property has to be restored to the
original Jewish owner.
These two cases provide us with a number of insights into the reality
of the legal status of Jews. Thus (a) the first text clearly speaks of a
garden, a huerta, which is owned by two Jews. They were obviously
both allowed to own land which was used agriculturally and to do
with it whatever they wished, such as selling or donating it, for example.
(b) In both cases, the beneficiary is the family of the person establish-
ing the habs. This deviates from what Goitein has observed in the Cairo
Geniza material but reflects an extremely common phenomenon in Is-
lamic legal practice which seems to have been imitated by Jews.
(c) As shall be shown in further detail in the next chapter on Jewish
legal "autonomy," the existence of two different legal espaces, one Mus-
80 Such writes Haïm Zafrani in his "Judaïsme d'occident musulman: les relations
judéo-musulmans dans la littérature juridique. Le cas particulier du recours de tribu-
taires juifs à la justice musulmane et aux autorités représentatives de l'État souverain",
in Studia Islâmica 64 (1986), pp. 125-149, here p. 128 about "l'autonomie administra-
tive qui leur est octroyée par le status de 'protection' (dimma)"
81 Cf., for example, N. J. Coulson, "The State and the Individual in Islamic Law", in
International and Comparative Law Quarterly 6 (1957), pp. 49-60.
Goitein, Mediterranean Society, vol. 2, pp. 395 ff.
OJ Al-Mi'vnr nl-Murih vn 1(1 nn 17Χ-Π0
"If the matter concerns an injustice or delinquency for which they have
no regulation and no law [in the halakha], then it has to be decided accord-
ing to Muslim law without consulting them. When they have a regulation
and a law, they cannot object to it and are referred back to their coreligion-
ists. [,..]"87
He is thus the only jurist who sees an obligation of the Muslim state and
legal system to ensure justice - according to Jewish law, if a ruling is
extant, or to Muslim law - even if no matter of inner security like man-
slaughter is involved. His argument also remarkably hints implicitly at
some kind of (probably professional) relations between the qadi and his
Jewish counterpart, the dayyan, since only thus would he be able to
know whether a halakhic ruling exists for a given case and thus to decide
whether to refer the conflicting parties back to the Jewish judges or to
decide the case himself by applying the shana.
(e) Ibn Zarb (d. 991), in his fatwâ, takes the concrete case brought
before the qadi as his point of departure, not elaborating on a general
principle of legal arbitration between dhimmis. He says that if the Jew
has Muslim witnesses testify about the negative bias of the Jewish judges
against his father, their judgment is not valid and if not, the woman's
right is established. The Jew might bring any testimony to his defense
before the qadi, provided that he has Muslim witnesses.
The different opinions assembled here by al-Wansharîsî allow for a
certain variety of possible actions on the part of the qadi when con-
fronted with a dhimmis desire to sue another dhimmî. As a general
rule, however, the Muslim judge does not act out of his own initiative;
he is obliged to act only in the case of manslaughter (and, according to
one mufti, also in cases not regulated by the dhimmis9 own law); and
Muslim witnesses must appear if the case is to be heard by a Muslim
court.
Conclusions