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Islamic Legal Consultation and the Jewish-Muslim "Convivencia": A1-Wansharîsî's Fatwâ
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
Stable URL: http://www.jstor.com/stable/40753229
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Islamic Legal Consultation and the Jewish-Muslim
"Convivência"1
Al-Wansharîsî's Fatwâ Collection as a Source for Jewish Social
History in al-Andalus and the Maghrib

Matthias B. Lehmann
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.
Jewish Studies Quarterly, Volume 6 (1999) pp. 25-54

© Mohr Siebeck - ISSN 0944-5706

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26 Matthias B. Lehmann JSQ 6
Similarly, our knowledge of the Muslim

the status of non-Muslims - the dhimma - has also been enriched
through a number of studies by experts in Islamic history and law.
But much still needs to be asked about how these legal norms were
put into practice in the everyday conflicts arising in encounters between
Jews and Muslims.
Finally, the close geographic and political connection between Islamic
al-Andalus and the Maghrib - which Haïm Zafrani has labeled "deux
sociétés parallèles"3 - has generally not been taken into account when
talking about medieval Jewish history. The two cases - al-Andalus as the
mythical land of "convivência" and the Maghrib as the land of extremist
Muslim sects (the Almoravids and Almohads) - have, more often than
not, been studied without any appreciation of the fact that for some time
they formed a single political and, in many ways, cultural entity, and
belonged to the same legal area, both being guided by the Malikite
school of Muslim law.
One important and still much ignored source for historical study of
al-Andalus and the Maghrib and the situation of non-Muslims in these
regions is the collection of fatwâs - "responsa" in Muslim law - pre-
pared by the North African jurist Ahmad al-Wansharîsî (d. 1508).
Among its approx. 6000 fatwâs dating from a period between the tenth
century and 1496, Wansharîsî's monumental al-MVyâr al-Mu'rib4 in-
cludes some 125 cases dealing with Jews and Christians. These responsa
present us with fascinating material, ranging from conflicts over the
construction of new synagogues to questions of trade and commerce
to the extent of Jewish legal "autonomy". At the juncture between legal
doctrine and practice, the fatwâs afford us an opportunity to learn much
about the parameters of the "convivência" of Jews and Muslims in me-
dieval Spain and North Africa, an opportunity which the study of legal
doctrine alone does not provide.
Fatwâs as a Historical Source. Recent research on Islamic legal con-
sultation (futyâ, from the same root as fatwa) has shown how these
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.

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(1999) Islamic Legal Consultation and the Jewish- Muslim "Convivência" 27
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
5 Among the broad literature, it suffices to mention: Khalid M. Masud, Brinkley

Messick, David S. Powers (eds), Islamic Legal Interpretation: Muftis and their Fatwas,
Cambridge 1996; Chibli Mellat (ed.), Islam and Public Law, London 1993; Stephen
Humphreys, Islamic History: A Framework for Inquiry, Cairo 1992, pp. 209-227. See
below for titles by Hallaq and Johansen.
6 David S. Powers, "The Art of the Legal Opinion: al-Wansharisi on Tawlîf, in
Islamic Legal Interpretation, pp. 98-1 15, here p. 98.
7 Wael B. Hallaq, "Was the Gate of Ijtihad Closed?", in International Journal of
Middle East Studies 16 (1984), pp. 3-41; idem, "On the Origins of the Controversy
about the Existence of Mujtahids and the Gate of Ijtihad", in Studia Islâmica 63
(1986), pp. 129-141; idem, "Murder in Cordoba: ijtihad, if ta and the Evolution of
Substantive Law in Medieval Islam", in Acta Orientalia 55 (1994), pp. 55-83; idem,
"Ifta' and Ijtihad in Sunni Legal Theory: A Development Account", in Islamic Legal
Interpretations, pp. 33-43; Baber Johansen, "Legal Literature and the Problem of
Change: The Case of the Land Rent", in Islam and Public Law, pp. 29-47; idem, "Ca-
suistry: Between Legal Concept and Social Praxis", in Islamic Law and Society 2
(1995), pp. 135-156.
Wael B. Hallaq, "From Fatwâ to Furu' Growth and Change in Islamic Substan-
tive Law", in Islamic Law and Society 1 (1994), pp. 29-65.

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cases which raised some new or socially

were not fictitious, and they were not as
strange or a-typical subject-matter.9 In
source, however, it must be taken into
were subject, when collected, to redactio
from specific circumstances so as to be o
Below, I shall analyse cases from al-Wa
under three headings: (1) the use of the
cultural images for the legal determinati
Jews in the shari'a court and their legal
demonstrate how legal norms were de
circumstances.
Part I. The Use of the "Pact of 'Umar"
I.I Capitulation Documents and the Use of Model Treaties as a Legal

Fiction
The standard reference for the definition of the place of non-Muslims

(or, to be more precise, Jews, Christians, and Zoroastrians) in Islamic
law and society are the stipulations of 'Umar {shurût 'umariyya), which
in the Muslim legal tradition are attributed to the second caliph, 'Umar
b. al-Khattâb (rg. 634-644). The contents of this document are well-
known.10 In the Miyâr the text of the shurût is quoted according to
the version of the Malikite jurist Turtûshî (d. 1126). Al-Wansharîsî ex-
plicitly refers twice to this basic document, which is supposed to regulate
the relations between Muslims and dhimmis: He cites it once in extenso
in connection with a conflict about the allegedly new synagogues in the
Maghribi region of Touat (second half of the fifteenth century)11 and
once in an extract referring to a charge of improper behaviour raised
9 /£/</., pp. 31-38.

A vast literature exists on dhimma and the "Pact of 'Umar". Mention must be
made of the recent overview presented by Mark R. Cohen, Under Crescent and Cross:
The Jews in the Middle Ages, Princeton 1994, and the "classical" and very detailed work
of Antoine Fattal, Le statut légal des non-musulmans en pays d'Islam, Beirut 1958. An
English translation of the shurût 'umariyya, based on Turtûshî's version, can be found
in Bernard Lewis, Islam: From the Prophet Muhammad to the Capture of Constantino-
Die. New York 1974. vol. 2. on. 217ff.
11 Al-Mi'yâr al-Mu'rib, vol. 2, pp. 237 f. Al-Wansharîsî himself refers to Turtûshî as
his source for the "Pact of 'Umar" in the Mi'yâr, vol. 2, p. 232. Thirty-five minor
variations exist between the text given in the Mi'yâr and the one given by Turtûshî
(edition Cairo 1872, pp. 229 f.), only one representing a deviation in content.

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(1999) Islamic Legal Consultation and the Jewish-Muslim "Convivência" 29
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
12 Al-MVyâr al-Mu'rib, vol. 2, pp. 254 f.

Cohen, Under Crescent and Cross, p. 55.
Albrecht Noth, 'Abgrenzungsprobleme zwischen Muslimen und Nicht-Musli-
men. Die 'Bedingungen 'Umars (as-surût al-' umar iy y ay unter einem anderen Aspekt
gelesen", in Jerusalem Studies in Arabic and Islam 9 (1987), pp. 290-315; A. S. Tritton,
The Caliphs and their Non-Muslim Subjects, London 1930, pp. 5-17 and passim', Fattal,
Statut légal, pp. 66-69. On the historical context of the early Muslim conquest, cf.
Noth's article "Früher Islam" in Geschichte der arabischen Welt, ed. Ulrich Haarmann,
München 1987, pp. 11-100, here pp. 58-73.

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30 Matthias Β. Lehmann JSQ 6
conquest treaties (Noth's view) but transform

Its epistolary style, probably the very form o
was then embellished with details of the cu
centuries of Muslim-dhimmî encounter."15
Though the literary style of the petitions

question still remains: Why should the Syr
as the petitioners or any other non-Muslim
tailed stipulations which, to be sure, primar
of view of the conquering Muslims? I would
a petition does not signify that the "Pact
sponse to a petition. Rather, the shurût 'u
essence of a capitulation document, the term
the victorious Muslims in the aftermath o
"privileges" guaranteed to the non-Musli
rightly pointed out, a pragmatic measure o
rulers to ensure security and the stability o
(b) A legal fiction. Assuming that many
"Pact of 'Umar" resulted from actual cap
mains to be noted that the Pact applied to
Muslim rule, including groups who were n
cluded any treaty, however worded, with
the conquest. It does not make sense to assu
in Christian Spain should have conclude
Muslims, conquest treaties being concluded
not just with any group of non-Muslim re
'umariyya thus may be seen as a legal ficti
process, it was assumed that the Jews and
under Islamic rule had concluded a treaty
sulted for both parties, even in cases wher
fact ever been signed.
(c) A model treaty. If the "Pact of 'Umar"
actual capitulation documents and used as a
explain the fact that we have one unified te
on the dhimmi status?
I suggest that the "Pact of 'Umar" is a model treaty, a form applied
to a whole range of different historic circumstances. Wael B. Hallaq has
studied these "model shurût" and shown that in a process similar to
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).

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that of the collection of fatwâs, treaties or contracts actually concluded

were collected and underwent a process of abstraction and generaliza-
tion in order to serve as models for later use.16 The capitulation docu-
ments from the time of the conquests were thus collected and, imple-
menting the "cumulative practice" (Mark Cohen) of the Muslim-d/»ra-
mî encounter, molded into one abstract text. This text, stressing both
the non-Muslims' as well as the Muslims' obligations and rights, then
became the basis for all decisions on conflicts about the legal status of
dhimmîs in Muslim society. As we shall see below, the mutuality sug-
gested by this model treaty, which defined the relations between the
different religious groups, was highly significant in such cases of con-
flict.
1.2 Turbans and Girdles: The Use of the "Pact of 'Umar"
At the turn of the twelfth century a jurisconsult in Tanger17 is presented

with a complaint against the Jewish doctor (hakim) Ibn Qanbâl because
the latter
"wears a turban and a ring, rides on a saddle on a beautiful riding animal

and sits in his shop [hânût] without a distinguishing mark [ghiyâr] and with-
out a belt [zunnâr], and he also walks around in the market streets without a
distinguishing mark which would allow him to be recognized [as a dhimmi'.
Rather he [wears] the most exquisite [garb], like the Muslim notables or even
better."
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.

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not oppress them; despise them and do not ho

names but do not give them kunyâs."19
(b) The mufti urges the jurists of Fez to rem

stipulations; al-Wansharîsî then quotes pas
referring to the prohibition to wear tur
rather strange in the given context - "not
pigs in the Muslim streets and markets".
The text raises a key term in the definit
relations: the imperative of "ghiyâr" of
accusation against Ibn Qanbâl may be spe
of transgressing the dividing line between
is accused of using symbols reserved for M
turban and riding on a saddle. The turban,
explain from his professional experienc
distinct form in which the Arabs and G
selves," "the diadem of the Arabs and
"one of the pillars" of Islam.20 Like wea
saddle is explicitly forbidden in the shurû
thus not only to be prevented from acc
without joining it by conversion, but more
liating status is expressed by symbolic devi
ing the religious groups is to be enforced.2
(b) The stipulations of 'Umar do not, ho
dhimmî from actively imitating the Muslim
also must actively distinguish himself fro
distinguishing symbol, the girdle or belt {z
tal line dividing Muslims and dhimmis mu
zunnâr is to ensure that Jews and Muslim
as the hierarchy requires; everyone is to re
ate place. This attitude is also reflected in
19 Al-Mi'yâr al-Mu'rib, vol. 2, p. 254. - For the had

p. 1 10. - The prohibition to give kunyâs or honorif
the shurût 'umariyya.
20 Al-Mi'yâr al-Mu'rib, vol. 2, p. 255.
On the "horizontal" as opposed to the "vertic
society, cf. Thomas Glick, "The Ethnic Systems of
Studies in Sociology 1 (1978), pp. 154-171 and idem
Early Middle Ages, Princeton 1979, pp. 135ff; 165-
z Zunnâr is a word taken from the Greek "zona
that this girdle or belt might have been typical attire
Muslim conquest and that it was then made obligato
order to prevent the acculturation or assimilation
Noth, Abgrenzungsprobleme, p. 304.

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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
23 Al-Mi'yâr al- Mu rib, vol. 11, pp. 300 f.

This, by the way, goes back to a hadîth which forbids non-Muslims from using the
formula "as-salâm 'alaykum" and the response "wa-'alayka as-salâm". The hadîth says
one should greet Jews only by saying "the same to you" because they, in their "perfidy,"
were saying "as-sâmm 'alaykum" ("may poison be upon you"), which is, naturally,
interpreted to be meant as an insult. Cf. Vajda, Juifs et Musulmans, p. 87 f.
This also enables us to date the case, even though the name of the mufti is not
mentioned, because he claims to have lived in Baghdad during the reign of al-Mustaz-
hir (1094-1118). - Cf. Powers, Legal Consultation, p. 89f.
Zb Al-Mi'yâr al-Mu'rib, vol. 2, pp. 256ÍY.

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"Pact of 'Umar" is again related to the u

mean that the average Jews respected the
pulously? At least according to the Geniza
Ayyubid times surveyed by Goitein this se
Goitein has not found a single hint that t
and the examples he gives clearly do not r
Jewish society.27 Thus it appears that me
imperative did not automatically lead t
would only arise when other interests or
as well.
Finally it should be emphasized that the
"Pact of 'Umar" and insisting on its applica
ic tradition calling for "humiliation" but n
lims. That this is repeated in the discussio
obviously had disregarded the symbolic im
derlines the character of the mutual relat
relations. The Jews are not tolerated stran
definite slot in Islamic society".28 Their
whim of a ruler but belongs to the core o
The Pact thus imposes obligations not only
Muslims.
1.3 Conflicts and Symbols: The Building of New Synagogues
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
27 Shlomo D. Goitein, A Mediterranean Society: The Jewish Communities of the

Arab World as Portrayed in the Documents of the Cairo Geniza, 6 vols, Berkeley, Los
Angeles 1967-1993, here vol. 2, p. 286.
2 Cohen, Under Crescent and Cross, p. 112.
zy Al-Mi'yâr al-Mu'rib, vol. 2, pp. 214-253. - Emile Amar, Consultations, 12 (1908),
pp. 244-265 has a partial translation and paraphrase of the Touat case. The conflict has
been studied by John O. Hunwick, "Al-Maghîlî and the Jews of Tuwât: The Demise of
a Community", in Studia Islâmica 61 (1985), pp. 155-183.
JU 'Isa Ibn Sahl, ahkâm al-kubrâ, vol.2, Cairo 1980, pp. 77-80; et. Al-Mi'yâr al-
Mu'rib, vol. 2, pp. 246 f.

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(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.

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according to an established pattern. The se

is the fundamental distinction between areas which fell under Islamic
rule by surrender and the execution of a capitulation treaty (sulhan)
and those areas which the Muslims conquered by force ('anwatan).
While all of al-Andalus pertains to the former category, the situation in
the different regions of the Maghrib remained disputed among Muslim
jurists, a fact which was of importance for the case of Touat.34
One sentence quoted from Ibn Mâdjishûn is puzzling, however. What
is meant by dhimmh who live apart from the area of Islam? Obviously,
Islam cannot forbid them to construct churches and synagogues in areas
where it does not rule, such as in the northern Christian kingdoms of the
Iberian peninsula. We may thus ask whether Ibn Mâdjishûn does in fact
allow new synagogues to be constructed within the Islamic state in set-
tlements neither founded nor inhabited by Muslims.
When al-Wansharîsî takes up the case of Cordoba,35 he adds the
opinion of al-Hâfiz Abu 'Umar b. 'Abd al-Barr, Andalusian (d. 1071),
author of a manual on Malikite law, who says:
"[...] What the [dhimmts] possess as houses of worship for which they
have concluded a capitulation treaty: that shall not be forbidden to them
and one should not change this to their disadvantage. [...] In the towns
founded by Muslims and where the dhimmis live among them, they are not
allowed to build new houses of worship. It is also said that if they have lived
among Muslims in a certain place where they have a house of worship and
then migrate as a group [to another place], then they shall enjoy the same
conditions as before and it shall not be forbidden to them to [build] one
[new] house of worship [...]."
The latter points illustrate that the construction of new houses of wor-
ship and the status of the old ones in fact represent more complicated
and multifaceted issues than is sometimes suggested in the literature on
the dhimmi condition. Here we have only pointed toward the importance
of fatwâs as the link between dogmatic legal discourse and the "faits
historiques" (Fattal). A detailed and systematic study of the legal status
of non-Muslim houses of worship and the application of such a study to
differing historical circumstances are still to be undertaken.36
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.

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(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^.

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that the authorization for this was given a

Mawâsî from Fez (d. 1490) also argues in th
of the dhimmfc that it must be assumed th
allowing them to have their house of worsh
(c) Taking up an argument also mention
'Asnûnî argues that it is very probable that
arrived there as a group from another place
gogue and that they were thus authorized
place of residence.42
(d) Al-'Asnûnî and Ibn Zakrî (Fez, d. ca. 14
used by opponents of the Jews alluding to p
are not allowed to own any land or to build
Ibn Zakrî emphatically says that destructio
by Muslim property law if by nothing else.
(e) The qadi refutes the accusation that th
pact with the Muslims:
"Quant à la djizya (capitation), ils paient de
aux Schaikhs [...]. Ils donnent également l'h
dépasse, parfois, ce qu'ils devaient payer régu
souvent victimes de l'injustice. [...] Bien plu
époque-ci, sont trop affaiblis et presque ent
que les Juifs de Touât ont un quartier spécia
contre que peu de Juifs. Leur synagogue est
n'est attenante à aucune maison de Musulman
In contrast to cases quoted below, here the

spatially separated from the Muslims and a
The pessimistic view of the fate of the Tou
40 Al-Mi'yâr al-Mu'rib, vol. 2, pp. 214 f. A similar

akât, Al-Mi'yâr al-Mu'rib, vol. 2, pp. 230f.
H1 Al-Mi'yâr al-Mu'rib, vol. 2, pp. 226f.
There are two possibilities to obtain land, eithe
capitulation treaty or by legal transaction, such a
Johansen, The Islamic Law on Land Tax and Rental L
to al-Wansharîsî, the former has not been sufficien
refuted because, quoting the Mudawwana, a Muslim
order to construct a house of worship on it (Al-Mi'y
44 Al-Mi'vâr al-Mu'rib. vol. 2. dd. 216. 218ff.
45 To host Muslims was one of the stipulations i
importance in the times of conquest but apparent
fifteenth century, be it to host Muslim travelling m
gees who fled from the Spanish reconquista to the
46 Al-Mi'yâr al-Mu'rib, vol. 2, p. 217; I quote here
tations, 12(1908), pp. 248 f.

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with an observation of a Genoese merchant who reported that in Touat,

"there are many Jews who lead a good life here, for they are under the
protection of the several rulers, each of whom defends his own clients.
Thus they enjoy a very secure social standing. Trade is in their hands
and many of them are to be trusted with the greatest confidence."47
(f) The latter observation also may serve to explain a further, most
interesting concern formulated by Ibn Zakrî and Ibn Abî 1-Barakât
(Tlemcen), who fear the eruption of civil war {al-qatl wal-qitâl bayna l-
muslimm) and unrest if synagogues are destroyed.48 For our purposes,
this is probably the most interesting point made in defense of the Jews: it
not only hints that the muftis took into account non-legal, contextual
considerations but also makes quite clear that much more is at stake
here than "merely" a dispute about the legal status of houses of worship.
A serious conflict of interests - Muslim and Jewish alike - is obviously
involved within Touat society; a conflict, most probably economic, in
which "each [ruler] defends his own clients".
This tendency can also be observed in the arguments presented by
those jurists who call for the destruction of synagogues. While in his
lengthy fatwâ (which also includes the reference to the Cordoba case
discussed above) al-Wansharîsî argues in a strictly legal sense, insisting
on the letter of the "Pact of 'Umar" and quoting the most stringent of
Malikite opinions on dhimmî affairs,49 other muftis invoke further argu-
ments. While taking up the opposite position to all the arguments ad-
duced in favour of the Jews, the Tlemcen jurist al-'Uqbânî (d. 1526) adds
a new aspect:
"Les Juifs de Touât, quand ils partent actuellement en voyage, montent à
cheval, en selle de prix, revêtent de beaux costumes, se parent comme les
Musulmans, en mettants des bottes, des éperons, se coiffent du turban
[...]."»
This reflects a dynamic already seen in the case of the Jewish doctor Ibn
Qanbâl of Fez: The Jews are accused of having broken the pact, of
having transgressed the hierarchic dividing line between them and Mus-
lim society. This view is prominent in the malicious pamphlet by al-
Maghîlî, which incited the pogrom against the Jews of Touat. "He
held the view," writes his biographer Ibn ' Askar,
47 Quoted by Hunwick, Al-Maghîlî, p. 165; emphasis my own.

48 Al-Miyâr al-Murib, vol. 2, pp. 224, 229f.
4y Al-Mi'yâr al-Mu'rib, vol. 2, pp. 232-234.
A l- Μ ι y ar ai- Mu rib, vol. 2, p. 248; quoted according to the translation by Amar,
Consultations, 12 (1908), p. 262.

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"that the Jews - may God curse them - ha

(dhimma)], since they had broken it by their a
ity among the Muslims, [an action] which wen
and abasement (al-dhull wa'1-saghâr) stipulate
He declared it licit to spill their blood and pl
nounced that dealing with them was more im
other [category] of unbelievers."51
Such attitudes always had to be legitimized

Touat in the 1480s and even in propagand
violent repression of the Jews. It always
the Jews who had first broken the "Pact
Muslims the right to act against them. Th
time and again in Muûiva-dhimmî relation
of Abu Ishâq al-Ilbîrî, for example, emerged
ests. The poem was directed against Samuel
zîr in Granada, and the Jews of that city. I
against the Jews in 1066. The poem claim
breach of faith to kill them / the breach of faith would be to let them
carry on. / They have violated our covenant with them / so how can you
be held guilty against the violators?"52
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
51 Quoted in Hunwick, Al-Maghîlî, p. 161.

English translation of the poem by Bernard Lewis, "An Ode Against the Jews", in
idem, Islam in History. Ideas, Men and Events in the Middle East, London 1973,
pp. 160 f.; the Arabic text in Emilio Garcia Gomez, Un alfaqui espanol. Abu Ishaq de
Elvira, Madrid 1944, pp. 151-153. Cf. also Moshe Perlmann, "Eleventh-Century An-
dalusian Authors on the Jews of Granada", in Proceedings of the American Academy
for Jewish Research 18 (1949), pp. 269-290 and recently Hanna Shemesh, "Ibn Hazm's
ΆΙ-Radd 'alâ Ibn Al-Naghrîla'", in Muslim Authors on Jews and Judaism, Hava La-
zarus- Yafeh (ed.), Jerusalem 1996, pp. 83-118 (in Hebrew).
53 Hunwick, Al-Maghîlî, p. 182.

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These trends, however, do not merely represent competition between

various groups of scholars but are inherent in the very conception of the
dhimma itself. Precisely for this reason, I argue, the Muslim-d/z/raraí re-
lations were molded into the form of a reciprocally obligatory contract,
the "Pact of 'Umar". Precisely because Islamic law's attitude towards
Jews and Christians has two sides, these two sides were present in any
legal discussion of the non-Muslim's status. The emergence of a conflict
and the necessity to apply the 'Umariyyan stipulations to reality more-
over always depended on the specific constellation of interests and the
social reality at any given time and place. It is no coincidence that both
in the case of Ibn Qanbâl and in that of the Touat synagogues, the Jews
are accused of having transgressed the hierarchical dividing line by pub-
licly taking on an elevated economic status. This points toward the con-
text in which such conflicts arose and were reviewed by jurists: the con-
text of (economic) interests.
Part II. Prejudices, Popular Attitudes, Legal Presumptions
II. 1 Wine and Water: " 'Convivência " in Daily Encounters
A number of cases in the MVyâr address conflicts arising between Mus-

lim and Jewish neighbours. In a fatwâ from eleventh-century North
Africa, for example, we read that the jurist al-Lakhmî (d. 1085) from
Qayrawân is asked:
"about the Jews, namely if they should be prohibited from fetching water
out of a river in the midst of a town of Muslims, who do their ritual ablu-
tions and wash themselves and their clothes therein. - He answered: I do not
know any reason why one should forbid the Jews to fetch water from the
river. [. . .] The river is [likewise] not affected or made dirty when the Muslims
wash their filth therein when their cloths are dirty."54
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
54 Al-Mi'yâr al-Mu'rib, vol. 8, pp. 433f.

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drinking water out of the same well as Jew

how Jews and Christians are customarily lu
African case, it can be assumed that the J
dhimmis and therefore the text refers on
important to note this since some scholars
texts all too readily as examples of allege
futed by the jurists, the popular attitud
against Jews as non-Muslims, not against J
In a third case, Abu 1-Qâsim as-Suyûrî
fronted with a conflict between a Jew w
exclusively Muslim neighbourhood:56
"A Jew lives in this house and harasses his
and doing [other] forbidden things. The str
house. He uses it to fill his buckets, milk v
them. The residents of the street thereafter
from the same well]. Is he allowed to stay th
If he stays, may he fetch water together wit
The mufti answers that the Jew should sto

consuming wine in public. If he does no
house to someone else (i.e., he would no
wanting to drink water from the same sou
bour is once again strongly dismissed.
The latter text shows how conflicts in da
Apparently, the neighbours lived so clos
that Jews drank wine was offensive. The c
of course, mean that Jews were celebrat
manner which could be perceived by their
as such was forbidden in the "Pact of 'Umar" and could have led to
strife. The appearance of Jewish women might also have aroused Mus-
lim anger.
The three fatwâs cited here clearly demonstrate, like many other
sources in the fatwâ collections and the Geniza, that Muslims and
non-Muslims indeed lived in the same quarters, quite close to each
other. It should be noted that the stipulations of 'Umar likewise no-
where refer to a topographic but only to a symbolic segregation of Mus-
lims and dhimmis. Notwithstanding the self-determined formation of
"ethnic clusters," i. e., "spatial clusters of members of particular ethnic
groups within a city greater than those expected from a random distri-
55 Al-Mi'vâr al-Mu'rib. vol. 5. dd. 208f.

56 Al-MVyâr al-Mu'rib, vol. 8, p. 437. I follow here Amar's dating: Consultations, 12
(1908), p. 122 and 13 (1908), p. 232.

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bution of all people within a city" (T. H. Greenshields),57 the quarters

were never homogeneous. Geographic closeness was the rule and in itself
led both to more intimate knowledge of "the other" and to conflicts
between neighbours which then would easily escalate into conflicts be-
tween neighbours as representatives of different religious groups.
II. 2 The Absence of Polemics and the Issue of Conversions
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
57 T. H. Greenshields, "'Quarters' and Ethnicity", in The Changing Middle Eastern

City, ed. G H. Blake and R. I. Lawless, London, New York 1980, pp. 120-140.
Idris, Les tributaires, no. 79 about a Jew in 14th-century Tunis who insulted Mu-
hammad; on Christians, cf. nos. 12, 18, 19, 123, 124 (?); nos. 20 and 87 deal with other
Christian-Muslim religious conflicts and 16 cases of questions related to military con-
frontation between Muslims and Christians, four on the situation in Sicily.
On Muslim- Jewish polemics, cf. Hava Lazarus- Yafeh, Intertwined Worlds. Me-
dieval Islam and Bible Criticism, Princeton 1992; Moshe Perlmann, "The Medieval
Polemics Between Islam and Judaism", in Religion in Religious Age, S.D. Goitein
(ed.), Cambridge 1974, pp. 103-138; Cohen, Under Crescent and Cross, pp. 139-161.
bK) Al-Miyâr al-Mu'rib, vol. 2, p. 354.

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The mufti here tries to reconcile the im

would require the death penalty for
pragmatic approach. He cites, howeve
doubtlessly would also have been appli
if an adult and not a child were concern
testifies to the ever-present danger of a
giously defined group cohesion and cros
the religious groups - in the case at han
sion of the "Pact of 'Umar" or a certa
rather through conversion, which would
group. But as far as we can judge from
sharîsî, this does not appear numerically
lenge to the Jewish continuity under Is
Africa.61
II. 3 Commercial Relations, Cultural Assumptions, and the Primacy of

Pragmatism
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.

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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
Though Muslim jurists objected to inter-confessional business partner-

ships, in the present fat was the fact that there is a Muslim investor and a
Jew acting as his agent is taken for granted and not discussed at all. This
is all the more remarkable since Islamic law dictated that in such cases of
business partnerships between Muslims and dhimmfc it was the Muslim
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.

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who had to act as the agent lest the non-Mu

forbidden by the sharVa.66
In both cases, a Jew is accused of having r
lim and not having paid the price; the form
the agent (in a business partnership) and th
commission. In the lengthy legal discussions
concern is to protect the agent and thus to g
commenda as an economic device: The presu
agent claiming the existence of a business p
the conflicting parties is mentioned but not
we clearly see the primacy of economic prag
process.
We have ãfatwâ from the eleventh century addressed to the Cordovan
scholar Ibn Sirâdj (d. 1064) asking whether business with Jews (mu'âma-
lât al-yahûd), be it buying, selling or lending money on credit, is allowed.
The mufti simply states that such business is allowed, provided there is
no Koranically forbidden profit (riba1) derived from the transaction.67
In the fourteenth century, Abu Sa'îd b. Lubb (Cordoba, d. 1380) is
approached with a similar question, which, however, is formulated quite
differently:68 "He was asked about business with Jews [i. e., whether it is
legal] in light of the fact that it is known that all or most of their busi-
nesses are a form of illegal profit (nH)." Here a negative assumption
about the business practices of Jews is interwoven into the question. The
jurisconsult decides that such commercial relations with Jews are legally
valid but requires an oath "for the sake of the Muslim party". The
doubt about the legality of Jewish business implicit in the question is
accepted to a certain degree by going one step further than the prece-
dence from the eleventh century and simply stating that everything is
assumed to be legal.
Finally, three cases, presumably from fourteenth and fifteenth century
al-Andalus,69 deal with Jews presenting bills that confirm the debts of
Muslims. All of these bills are quite old (10 to 30 years!) and the Mus-
lims claim to have paid their debts long ago. The Jewish creditors claim
that they have only been repaid part of the money. The first of these
cases is clearly resolved by a presumption against the Jews:
66 Cf. Cohen, Under Crescent and Cross, p. 132.

67 Al-MVyâr al-Mu'rib, vol. 5, p. 244.
08 Al-Mïyâr al-Mu'rib, vol. 6, p. 433.
69 Al-Miyâr al-Mu'rib, vol. 5, pp. 244 f.; 245 f.; 246. The dating of the cases is some-
what difficult. Idris and Langardère attribute them to the fourteenth and fifteenth
century.

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(1999) Islamic Legal Consultation and the Jewish- Muslim "Convivência" Al
"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
Having seen some forms of legal conflict-resolution in such different

cases as neighbourhood rivalries and business relations, it is evident
that the assumption of legal anthropologists "to view law as part of
the larger culture, a system which, for all its distinctive institutional
history and forms, partakes of concepts that extend across many do-
mains of social life" (Lawrence Rosen)73 is eminently useful when study-
ing the interrelation of law and social reality. At the same time, this
assumption nonetheless appears too broad and unspeciflc. From the
cases briefly reviewed here, we might draw a distinction between three
different kinds of assumptions which are very differently related to legal
discourse. Thus we have (a) personal prejudices (as in the case of buying
70 Al-Miyâr al-Mu'rib, vol. 5, pp. 244f.

*71 Λ 1 -m ^ . s λ Έ -m ^ s . * « ^ **. A ^ t+
Al-Miyar al-Murw, vol. :>, pp. Z4M.

It is interesting to note what Lawrence Rosen has observed in twentieth-century
Morocco as "an example how cultural assumptions, legal approach, and substantive
law are all deeply entwined. [...] In Morocco, there are records of cases in which qadis'
courts have explicitly presumed that since it is the normal course of things for Jews to
engage in the practice of usury, that may be presumed in any particular case until
proven otherwise." The Anthropology of Justice. Law as Culture in Islamic Society,
Cambridge 1989, p. 44.
Rosen, Anthropology of Justice, p. 5.

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trefa meat from the Jews) which cannot leg

cision-making; (b) (negative) cultural assu
mercial activities which are increasingly adm
thus becoming part of the process of legal d
popular attitudes (such as not wanting to sh
Muslims) which, though apparently quite
having no legal significance whatsoever.
Part III. Jews in a Muslim Court
III. 1 Pious Foundations and Legal Security
"Pious foundations" or mortmain (waqf, pl. awqâf, or habs, pl. ahbâs)

represent an important device in Islamic law. They are established by a
private person who specifies the exact purpose of the foundation, such
as maintenance of a mosque or charity for the poor. The purpose is laid
down in the foundation document and cannot be abrogated. The ahbâs
property is removed from free circulation on the market and not avail-
able for purchase, sale, or rent.74 Such foundations were also known in
the Jewish communities of Islamic lands. Just as in the case of the Mus-
lim awqâf, some properties (buildings or land) were established as foun-
dations and their usufruct allocated for specific purposes.75 As Moshe
Gil has shown in his investigation of Jewish foundations in Egypt, only
six percent of their income was directed toward charitable purposes and
the major portions to the administration of the respective foundation
itself (40 percent) and the remuneration of community servants and
scholars (45 percent).76 Other devices such as regular or irregular con-
tributions of community members usually existed for charitable pur-
poses.
Such Jewish "pious foundations" - here called ahbâs al-yahûd - are
the subject of two fatwâs from eleventh-century al-Andalus in al-Wan-
sharîsî's collection and are dealt with in the earlier fatwâ collection by
Ibn Sahl under one title.77 Ibn Sahl first cites the responsum of the
Cordovan scholar Ibn 'Attâb (d. 1069) about a Muslim who has bought
a huerta from two Jews and dedicated it as a foundation to benefit his
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.

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offspring.78 If the family has no more offspring, the usufruct of the

garden is to support religious scholars and liberate prisoners and slaves.
Ten years later, however, another Jew claims that his two uncles had
established this huerta as a habs for his benefit and had only later sold
it to the Muslim. The Jew presents a written testimony signed by Jews
who had converted to Islam supporting his claim. Ibn 'Attâb then ar-
gues as follows:
"The foundations of the dhimmts are different from the Muslims' founda-
tions. [...] Among [the differences] is: The Muslim cannot abrogate his foun-
dation. There is no way to annul and cancel it. [...] When a dhimmi estab-
lishes a foundation and wishes to abrogate the act through sale or something
else, he should not be forbidden to do so."
According to this line of thought the (earlier) habs established by the

Jews - whether its existence can be proven or not - is in any case an-
nulled by the sale effected and thus the Muslim's foundation remains
valid. The mufti encourages the Jew to sue his uncles before a Jewish
court.
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-
78 Al-MVyâr al-Mu'rib, vol. 7, pp. 438 f.

Iy Al-MVyâr al-Mu'rib, vol. 7, pp. 59 f.

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lim and one Jewish, is assumed. The rule

waqf property do not apply to the Jews
property law. Though this denies the Jewi
legal protection enjoyed by the Muslim a
flexibly decide on their own what to do wi
sharVa courts intervening.
(d) The texts furthermore allude to remar
tween the two religious groups, at least in t
converted to Islam are presented as witnesse
that they apparently retained social relation
gionists even after conversion. The secon
states that the usufruct of a Jewish pious
charity for Muslim poor. Such a case of int
assuming that the text does not err, quite r
(e) Probably the most significant fact is t
that any sale of property conducted under p
powerful person is to be abrogated. He do
person was a Muslim or a Jew, though - sin
the Muslim court and nothing to the contr
fact assume that he was an influential Mus
impression of pragmatic legal security, prot
lims and dhimmh alike.
III. 2 Jewish Legal Autonomy?
Scholars have occasionally been tempted to describe the alleged legal

autonomy of the Jews in medieval Islamic lands as a direct result of
the dhimma.*0 In reality, however, the "Pact of 'Umar" nowhere speaks
of legal or administrative "autonomy" but rather about life and security
and the free practice of religion guaranteed to the dhimmh. Ash-Shâfi'î
(d. 820), however, does indeed address the question of legal auto-deter-
mination by the dhimmh in his kitâb al-umm and much of what will be
discussed in this section is actually part of Islamic law at a very early
stage. One should keep in mind, nonetheless, that the political concept
of "autonomy" only surfaces in the modern context of the nation-state
and the all-encompassing conception of "policy". The modern nation-
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)"

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state invests the question of legal autonomy with a polemic poignancy it

lacked in earlier times when the issue was, as shall be demonstrated here,
much more of a pragmatic than an ideological nature. In medieval Islam
the "autonomy" of the non-Muslim communities was, to a large degree,
the result of the state not being interested in their daily affairs as long as
they paid the poll tax (djizya) and did not challenge security. The gov-
ernment's task was to ensure security within its realm (justice) and
against enemies from outside (army) and to gather the necessary finan-
cial resources in order to fulfill these tasks and to maintain the ruler's
court.81 That the Muslim state did not bother to become involved in
dhimmî affairs unless it had a financial interest - such as in cases where
no male children existed to inherit so that the state could claim a portion
of the estate82 - is thus not at all surprising.
In the Mi'yâr, al-Wansharîsî records a discussion of tenth-century
jurists in Cordoba about the issue of whether a conflict between two
Jews should be admitted in the Muslim shana court.83 The case is
that of a Jewish man who applies to the qadi in Cordoba because a
Jewish woman wishes to make him responsible for an unspecified claim
she has against his father. The Jew argues that the Jewish judges were
enemies of his father (and thus negatively biased against him) and that
he has a document issued by the chief qadi in Cordoba and Muslim
witnesses, both supporting his position.
The ensuing presentation of five different opinions can be seen as a
model discussion of the question when a Muslim court is to intervene in
an inner- Jewish legal conflict. Significantly, all of the fatwâs cited impli-
citly assume the existence of separate Muslim and Jewish legal espaces
and nowhere take for granted an unconditional right of a Muslim court
to intervene in Jewish affairs. Departing from the basic notion of a
personal rather than territorial law according to which religious affilia-
tion determines the (legal) status of each person,84 the opinions delimit
the conditions under which the qadi can and must decide a conflict
between two dhimmis. It emerges as a rule that matters of personal
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
84 Cf. David Santillana, Instituzioni di diritto musulmano malichita c

che ai sistema sciafiita, Roma 1926, vol. 1, p. 75: "Io Lo Stato islâm
Comunità islâmica [...], non ha base territoriale. La legge ehe v'imp
dal território, ma dalla qualità délia persona; 2° quel rapporto polit
verso lo Stato, ehe noi chiamiamo nazionalità o cittadinanza, è ignot
sulmano. La legge di ciascuno dipende dalla professione religiosa."

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and civil law are to be dealt with by Jewish

law (such is pointed out by Ibn 'Abd Rabbih
manslaughter the Islamic state and legal syst
significantly, is explained by the Muslim rul
security of the non-Muslims according to th
doba, d. ?, referring to Malik).85 The mufti
arguments for the qadi's intervention under
(a) The Cordovan jurist Asbagh b. Sa'îd (
fatwâ that, since the two Jews have come
should occupy himself with the matter, par
written testimonies of Muslim witnesses ha
dicates the important fact that the sharVa c
with the matter only because it has been ad
of its own initiative.
(b) The question of the Muslim witnesses is also relevant to the argu-
ment by Ibn Maysûr, who points out that the Jewish woman, not having
Muslim but only dhimmî witnesses, has to apply to the Jewish judges in
order to obtain her claim, non-Muslim witnesses not being admitted in
the sharî'a court.
(c) In his responsum, the above-mentioned Ibn 'Abd Rabbihi intro-
duces a further distinction and argues that in cases of personal and civil
law, when one of the parties involved applies to the sharî'a court and the
other refuses, the Jews have to be judged by their own judges, but when
both parties agree to address the Muslim court:
"the Muslim jurisdiction is to be preferred to reach a verdict on them [the
dhimmîs] only when they agree to come before the Muslim jurisdiction -
otherwise they are sent away to their own judges - as the Exalted One
says: 'When they come to you, decide between them or turn away from
them' [Koran 5:42]."86
(d) Ibn Hârith (d. 981) carries this further and says about a case in which
one of the parties wishes to come before the qadi while the other does
not:
"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
85 Al-Mi'yâr al-Mu'rib, vol. 10, p. 129f.


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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.
The discussion on the Jewish pious foundations and on the question of

when the shana court is to intervene in an inner- Jewish conflict attests
not only the pragmatic approach which seems to have determined much
of Musiim-dhimmi relations. It also points to the dialectics of social
interaction and social segregation (which likewise form the background
of the "Pact of 'Umar"). Thus, on the one hand, Jews and Muslims
share much of the same Lebenswelt. Their encounter takes place in the
market place - most significantly, but not only, in the literal sense of the
word. This leads to a certain intermingling of social realities, to contacts,
and to conflicts between the different religious groups. On the other
hand, each religious group forms an entity which is self-sufficient to a
high degree. Muslim jurists recognize the existence of a Jewish legal
espace, and Islamic law, though obviously the one which ultimately dic-
tates the distribution of power, does not, as a rule, interfere with the
Jewish entity's inner affairs and its legal system. Whatever the legal doc-
trine, Muslim dhimmî law always had to face the tension between these

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two tendencies, thus both insisting, whe

segregation of religious groups (according
by the "Pact of 'Umar") as well as accom
the reality of social proximity.
Conclusions
The "convivência" of Jews and Muslims in Islamic Spain and Northern

Africa was determined by various factors: The legal fiction of a mutual
treaty defining the status of non-Muslims in the Muslim state estab-
lished a hierarchical dividing line between the different religious groups.
This pattern both recognized an existing reality - the distinctness of two
entities, defined by their respective religions and each having its own
legal system - and insisted on the maintenance of this social segregation.
Both the Islamic state's insistence on the humiliated status of Jews and
Christians and its guaranteeing them legal security and religious tolera-
tion are part of this relationship of dhimma.
The Islamic jurists became involved with Muslim- Jewish relations
only in cases of conflict and not of their own initiative. These disputes
often involved a conflict of economic interests. The general terms of the
dhimma offered a wide range of possible conflict resolutions; the answers
varied according to the concrete circumstances of each case. The deter-
mining factors seem to have involved both the imagination of the jurists
and their image of "the Jews" or "the non-Muslims" - personal preju-
dices, cultural assumptions, and popular attitudes - as well as pragmatic
considerations concerned more with, for example, the functioning of
commercial life than with the religious affiliation of the conflicting par-
ties.
Though it is highly tenuous to infer any general development from the
limited number of cases compiled in al-Wansharîsî's/flivwî collection, the
situation of the Jews in Muslim Spain and the Maghrib seems to have
deteriorated in legal practice, though not in doctrine, between the tenth
and fifteenth century - most notably in inter-religious economic rela-
tions. The fatwâs increasingly reflect negative attitudes towards non-
Muslims and become less determined by merely pragmatic considera-
tions.

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Islamic Legal Consultation and the Jewish-Muslim "Convivencia": A1-Wansharîsî's Fatwâ

Stable URL: http://www.jstor.com/stable/40753229

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History in al-Andalus and the Maghrib

Jewish Studies Quarterly, Volume 6 (1999) pp. 25-54

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Similarly, our knowledge of the Muslim

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5 Among the broad literature, it suffices to mention: Khalid M. Masud, Brinkley

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cases which raised some new or socially

Part I. The Use of the "Pact of 'Umar"

I.I Capitulation Documents and the Use of Model Treaties as a Legal

The standard reference for the definition of the place of non-Muslims

9 /£/</., pp. 31-38.

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12 Al-MVyâr al-Mu'rib, vol. 2, pp. 254 f.

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conquest treaties (Noth's view) but transform

Though the literary style of the petitions

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that of the collection of fatwâs, treaties or contracts actually concluded

1.2 Turbans and Girdles: The Use of the "Pact of 'Umar"

At the turn of the twelfth century a jurisconsult in Tanger17 is presented

"wears a turban and a ring, rides on a saddle on a beautiful riding animal

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not oppress them; despise them and do not ho

(b) The mufti urges the jurists of Fez to rem

19 Al-Mi'yâr al-Mu'rib, vol. 2, p. 254. - For the had

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23 Al-Mi'yâr al- Mu rib, vol. 11, pp. 300 f.

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"Pact of 'Umar" is again related to the u

1.3 Conflicts and Symbols: The Building of New Synagogues

27 Shlomo D. Goitein, A Mediterranean Society: The Jewish Communities of the

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according to an established pattern. The se

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that the authorization for this was given a

In contrast to cases quoted below, here the

40 Al-Mi'yâr al-Mu'rib, vol. 2, pp. 214 f. A similar

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with an observation of a Genoese merchant who reported that in Touat,

47 Quoted by Hunwick, Al-Maghîlî, p. 165; emphasis my own.

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"that the Jews - may God curse them - ha

Such attitudes always had to be legitimized

51 Quoted in Hunwick, Al-Maghîlî, p. 161.

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These trends, however, do not merely represent competition between

Part II. Prejudices, Popular Attitudes, Legal Presumptions

II. 1 Wine and Water: " 'Convivência " in Daily Encounters

A number of cases in the MVyâr address conflicts arising between Mus-

54 Al-Mi'yâr al-Mu'rib, vol. 8, pp. 433f.

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drinking water out of the same well as Jew

The mufti answers that the Jew should sto

55 Al-Mi'vâr al-Mu'rib. vol. 5. dd. 208f.

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bution of all people within a city" (T. H. Greenshields),57 the quarters

II. 2 The Absence of Polemics and the Issue of Conversions