The Institute of Asian and African Studies

The Max Schloessinger Memorial Foundation

Oprint from

JERUSALEM STUDIES IN
ARABIC AND ISLAM

33(2007)

David S. Powers and Etty Terem

From the Mi ,yar of al-Wanshars to the
new Mi ,yar of al-Wazzan:
continuity and change

THE HEBREW UNIVERSITY OF JERUSALEM

THE FACULTY OF HUMANITIES
JSAI 33 (2007)

 OF AL-WANSHARISI TO
FROM THE MI ,YAR
 OF AL-WAZZAN
THE NEW MI ,YAR  I:
CONTINUITY AND CHANGE

David S. Powers Etty Terem

Cornell University Harvard University

Introduction

In a short preface to his massive collection of fatwa s known as the Mi ,yar,

Ah.mad al-Wanshars (d. 914/1508) species the full title of his text,
refers obliquely to his sources, and suggests why he dedicated eleven
years of his life to copying juristic opinions issued between the years
1000 and 1496 in al-Andalus, the Maghrib and Ifrqiya. Al-Wanshars
observes that he assembled the book \in the hope that [it] will be of
general utility and that it will result in the augmentation of [my heavenly]
reward." He adds that he \organized it in accordance with the categories
of the law in order to facilitate its use by whoever may examine it,
whenever possible specifying the names of the mufts [who issued the
fatwa s]."1 Al-Wanshars's decision to arrange the fatwa s in chapters
that follow the standard order of qh texts|from ritual purity, on one
end, to agency, acknowledgements, and debts, on the other|no doubt
was intended to facilitate the use of the collection by later generations of
Muslim jurists seeking guidance on new cases dealing with issues similar
to those treated in the Mi ,yar.
More than 400 years later, in 1910, a large collection of Malik fatwa s
assembled by an eminent jurist and muft, al-Mahd al-Wazzan (d.
 This essay originated as two separate papers delivered at the annual meeting
of the Middle East Studies Association, Washington, DC., November 2005: David
S. Powers, \The black death and inheritance: two fatwa s from mid-14th century
Fez" and Etty Terem, \From al-Mi ,yar of al-Wanshars to al-Mi ,yar al-jadd of
al-Wazzan."
1 Ahmad al-Wanshars, al-Mi ,y
. ar al-mu ,rib wa-'l-j
ami , al-mughrib ,an fat aw

,ulama - Ifr a wa-'l-Andalus wa-'l-Maghrib, 13 vols. (Rab
qiy at.: Ministry of Culture
and Religious Aairs, 1401{03/1981{83).

235
236 David S. Powers and Etty Terem

1342/1923{4), was published in Fez.2 Like al-Wanshars, al-Wazzan

attached a short preface to his collection in which he explained his moti-
vations for the compilation, the criteria that he used for selecting texts,
and the purpose of the resulting work. Like al-Wanshars, al-Wazzan
was motivated by considerations of piety: \[I]n compiling [this book],"
he writes, "I seek great reward and much honor from God. . . "3 And like
al-Wanshars, al-Wazzan was keenly aware of the utility of his collection
for other jurists and judges:
Given that the most excellent [knowledge] is the type around
which judicial decision (qad.a -) and considered legal opinion
(futya ) revolve. . . I hastened to compile this book and to
commit [this knowledge] to writing. I therefore assembled
in it a large number of responses of the most recent jurists
(muta -akhkhirn ), selecting for inclusion what I regard as the
most excellent discussions of the expert jurists who are rmly
rooted [in knowledge] . . . The foundation of [the book] is the
[responses] that are most frequently mentioned by jurists but
which are a source of confusion for those who dispense jus-
tice among mankind. I annotated some of the replies in the
appropriate manner, e.g., [by means of] commentary and sup-
plementary remarks [on the fatwa s], in the hope that some
of those who are decient [in knowledge] will not rush to ad-
vance criticism and doubt, and [I included] similar cases, in
an eort to provide the greatest benet [for the reader,] even
if each entry (tarjama ) is longer than what is necessary.4
With respect to the large number of fatwa s potentially available to
him, al-Wazzan was attracted to those dealing with issues that were
both current and dicult|what Western jurists call hard cases. His
new collection of fatwa s included those judgments and legal opinions
issued by earlier generations of Malik jurists, which, in his view, would
be of the greatest utility to his contemporaries. This new compilation
u ,Isa Muh.ammad al-Mahd b. Muh.ammad b. Muh.ammad b. al-Khad.ir b.
2 Ab
Qasim b. Musa al-,Imran al-Wazzan al-Fas, al-Nawazil al-jadda al-kubra f-ma
li-ahl F
as wa-ghayrihim min al-badw wa-'l-qur at bi-'l-mi ,y
a al-musamm ar al-jad
d
ami , al-mu ,rib ,an fat
al-j  al-muta -akhkhir
aw n min ,ulam
a - al-Maghrib , 12 vols.
(Rabat.: Ministry of Culture and Religious Aairs, 1417{1421/1996{2000). On al-
Wazzan's life and work, see Jacques Berque, Les Naw^azil al muz^ara ,a du Mi ,y^ar al
Wazz^  (Rab
an^ at.: Felix Moncho, 1940); Rahma Bourqia, \Droit et pratiques sociales:
le cas des Naw^azil au XIXe siecle," Hesperis-Tamuda, 35 (1997): 131{45. The New
Mi ,yar of al-Wazz an is the focus of a Ph.D. dissertation in preparation by Etty
Terem at Harvard University.
3 Al-Wazz an, al-Mi ,yar al-jadd, vol. 1, p. 14.
4 Ibid.
 The Mi,yar of al-Wanshars 237

was designed to provide judges and jurists with examples of earlier cases
that would help them to solve new cases. As the full title selected by
al-Wazzan suggests, he regarded himself as a latter-day al-Wanshars:
The new Mi ,yar and the clear collection of the legal opinions of the most
recent scholars of the Maghrib. Clearly, al-Wazzan sought to provide
his fellow-jurists with access to the collective legal wisdom of the past,
as it had developed in the period between al-Wanshars and his own
time, and he no doubt anticipated that his New Mi ,yar would become a
standard reference work for subsequent generations of Malik judges and
jurists.
Fatwa collections are of great utility to legal historians interested in
the mechanisms and processes that have contributed to the slow but
inexorable development of Islamic legal doctrine. As Wael Hallaq has
demonstrated, mufts have played an instrumental role in eecting le-
gal change, and the arguments advanced by them in their fatwa s were
incorporated into later qh lawbooks.5 Sensitive to the needs of local
communities, mufts sought to make the inherited legal tradition rele-
vant and useful to the members of those communities. In their responses
to questions, they demonstrated their awareness of changing social, eco-
nomic, and political conditions. In the very act of writing a fatwa, a muft
combined attention to both doctrine|the accumulated legal tradition,
and practice|the facts of a specic case, thereby bringing legal norms to
bear on contemporary issues and concerns. Fatwa -giving was|and con-
tinues to be|an eminently worldly activity and it is the worldliness of
the fatwa genre that provides the law with its interpretative dynamism.6
In this essay we examine two cases. The rst, preserved in al-
Wanshars's Mi ,yar, relates to a mid-14th -century dispute over a be-
quest that generated a court judgment and three fatwa s. The second,
preserved in al-Wazzan's New Mi ,yar, relates to a mid-18th -century dis-
pute over a family endowment that also generated three fatwa s. By at-
tending to the textual relationship between these two cases, we attempt
to demonstrate (1) how, in the very act of crafting a fatwa, Muslim ju-
rists constructed textual authority; (2) that a h.ukm or judgment of a
qad. might on occasion serve as a judicial precedent; and (3) that some
fatwa s had a shelf-life of nearly half a millennium.
5 Wael B. Hallaq, \From Fatw as to Furu ,: growth and change in Islamic substan-
tive law," Islamic Law and Society 1 (1994): 29{65; idem, Authority, continuity and
change in Islamic law (Cambridge: Cambridge University Press, 2001), pp. 166{235.
Cf. Brinkley Messick, The calligraphic state (Berkeley: University of California Press,
1993), pp. 146{51; Baber Johansen, \Legal literature and the problem of change: the
case of land rent," Islam and public law, ed. Chibli Mallat (London: Graham and
Trotman, 1993), pp. 29{47.
6 Messick, The calligraphic state, pp. 146{9; idem, \Fatwa: process and function,"
in John Esposito (ed.), Oxford encyclopedia of the modern Islamic world (New York:
Oxford University Press, 1995), 2:10{13.
238 David S. Powers and Etty Terem

Inheritance, bequests, and endowments

Islamic inheritance law, known as the ,ilm al-fara -id. or \science of

shares", imposes compulsory rules for the division of a minimum of two-
thirds of an estate. For this reason, the ability of a person contemplating
death to exercise control over who his heirs will be and what they will
inherit from him is severely limited.7
There are two important alternatives to the compulsory inheritance
rules: bequests and endowments. A bequest (was.iyya ) is a gift of prop-
erty that is delayed until after the death of the donor, completed by the
oer of the person who makes the transfer and the acceptance of the
person to whom the transfer is made. Generally, the legatee acquires
full and absolute ownership of the property that is bequeathed. Ideally,
a bequest should be made in writing and its oral declaration should be
attested by two male adult Muslim witnesses. If, however, there are no
witnesses to the oral declaration, the Malik and H.anbal schools recog-
nize the validity of a bequest on the strength of the known handwriting
or signature of the testator. A testator may revoke a bequest any time
before he enters his nal death-sickness.
For a bequest to be valid, the legatee must be in existence|either
in fact or in law|at the time of the testator's death. This is because
a bequest is a transfer of property from the dead to the living, and the
legatee must accept the object of the bequest in order for the transfer
to become complete. If the legatee is unable to accept the bequest at
the time of the testator's death, the bequest becomes void. A child
in its mother's womb has a legal existence and is therefore entitled to
receive a bequest. One exception to the rule that the legatee must be
alive in fact at the time of the testator's death is of direct relevance
to the present investigation: Malik jurists recognize as valid a bequest
in favor of members of a restricted class or group who may come into
existence after the death of the testator, e.g., a bequest in favor of \any
children that Muh.ammad may have before he dies." Finally, a valid
bequest may not be made in favor of anyone who qualies as a legal
heir of the testator|unless the other heirs agree, and it may not exceed
7 On Islamic inheritance law, see N.J. Coulson, Succession in the Muslim family
(Cambridge: at the University Press, 1971). On the historical formation of Islamic
inheritance law, see David S. Powers, Studies in Qur -an and H.adth: the formation
of the Islamic law of inheritance (Berkeley: University of California Press, 1986);
idem, \The Islamic inheritance system: a sociohistorical approach" in Islamic family
law, ed. Chibli Mallet and Jane Connors (London: Graham and Trotman, 1993), pp.
11{30.
 The Mi,yar of al-Wanshars 239

one-third of the value of the testator's estate at the time of his death.8
A second alternative to the compulsory inheritance rules is the family
endowment (called h.ubus in the Maghrib, waqf ahl in the Mashriq). A
founder who wishes to create an endowment sequesters certain capital
resources belonging to him (e.g., a house, shop or eld), in perpetu-
ity. The usufruct or revenues generated by the capital is shared by the
beneciaries of the endowment according to a strategy specied by the
founder in an endowment deed (rasm tah.bs or waqyya ); this strategy is
an algorithm which denes the paths according to which the usufructory
entitlements of the beneciaries will be transmitted within the rst gen-
eration of beneciaries and from the rst generation to the second and
all subsequent generations. Once the endowment has been created, the
property that has been sequestered may not be bought, sold, or trans-
mitted through inheritance. If the line of beneciaries comes to an end,
the endowment reverts to a religious or charitable purpose specied by
the founder, such as a mosque, madrasa or hospital. In this manner,
a founder may exercise control over the devolution of the endowment
revenues for many generations after his death.9
A family endowment may be created between two living beings (inter
vivos ) or by means of bequest (post mortem ). An endowment created
inter vivos takes eect immediately, cannot be revoked by the founder,
and is not subject to any restriction with regard to its size. An endow-
ment created post mortem, in a last will and testament, takes eect only
upon the founder's death, may be revoked by the founder at any time
prior to that occurrence, may not exceed one-third of the total value
of the testator's estate, and may not be made in favor of anyone who
qualies as an \heir" of the founder.10
The beneciaries of an endowment|like the recipients of a bequest|
may be either specic individuals and their ospring and descendants
or a general group or class. In an endowment for a specic group of
beneciaries, called h.ubus mu ,ayyan, the founder species the names of
the members of the rst class of beneciaries and provides instructions
for what happens to the entitlement of each beneciary when he or she
dies.11 Typically, entitlement passes down individual branches of the
family (per stirpes ). In an endowment for a general group, called h.ubus
8 Coulson, Succession in the Muslim family, p. 213 .
9 On M alik endowments, see David S. Powers, \Wakf," . EI 2 , s.v.; idem, \The
Maliki family endowment: legal norms and social practices," International Journal
of Middle East Studies 25 (1993): 379{406.
10 Cf. David S. Powers, Law, society, and culture in the Maghrib, 1300{1500 (New
York and Cambridge: Cambridge University Press, 2002), p. 144; idem, \The Islamic
inheritance system," p. 25.
11 Octave Pesle, La th eorie et la pratique des habous dans le rite mal ekite
(Casablanca, 1941), p. 63.
240 David S. Powers and Etty Terem

mu ,aqqab, the founder identies a general class of beneciaries whose

names are not specied (ghayr mu ,ayyan ), e.g., \for his descendants
(a ,qab ) and their descendants"; here, any \descendant" (,aqib ) of the
founder qualies as a beneciary of the endowment, and the revenues
are allocated on a per capita basis, irrespective of the branch of the
family to which a particular \descendant" belongs.12
We turn now to our two cases. The rst, which took place in the
14th century, deals with a bequest, while the second, which took place
in the 18th century, deals with a family endowment. The legatees of the
bequest and the beneciaries of the endowment are, in both instances,
a general class or group whose members are not identied. This is the
central connection between the two cases.

The 14th -century case:

the bequest of Ibn Masuna

In the rst half of the 8th/14th century there lived in Fez a wealthy
preacher and jurist by the name of Abu al-Qasim ,Abd al-Rah.man b.
Ab ,Abdallah Muh.ammad b. Masuna.13 In the month of Muh.arram
750/April 1349, Ibn Masuna became ill and took to his bed, perhaps a
victim of the plague.14 In anticipation of his imminent demise, he sought
to devise a strategy for the transmission of his property to his children
and their descendants.
Ibn Masuna's immediate family included an unspecied number of
sons. As a jurist, Ibn Masuna understood that Islamic inheritance law
limits bequests to one-third of an estate and prohibits bequests in favor
of an \heir", that is, any person who will inherit a fractional share of the
estate according to the Qur-anic inheritance rules. Thus, if he wanted to
12 Ibid., p. 65.
13 We have been unable to identify this individual.
14 In 749/1348, the Black Death raced across the Maghrib, reaching Oran, Tlemcen,
Taza, and, nally, Sale on the Atlantic coast. It is estimated that as many as 1000
people per day died in major urban centers. Although mortality rates were especially
high among children aged one to six, adults were not spared, and many of the victims
of the plague were Muslim jurists (see Muh.ammad b. Muh.ammad Makhluf, Shajarat
al-n
ur al-zakiyya f
 .tabaq alikiyya [Beirut: D
at al-m ar al-Kitab al-,Arab, 1975], vol. 1,
pp. 230{1, nos. 780, 782, 783). One consequence of the Black Death was its impact
on established Islamic mechanisms for the intergenerational transmission of property.
Sudden mortality caused inheritances to pass in rapid succession from one heir to
another, resulting in the fragmentation and dissipation of familial property. In an
eort to keep property intact and to funnel resources to lineal descendants, property
owners played creatively with the rules and mechanisms of the Islamic inheritance
system. The case under review here is an example.
 The Mi,yar of al-Wanshars 241

shift the bulk of his estate to his sons, he would have to devise a strategy
to circumvent the compulsory inheritance rules and the constraints on
bequests. In addition to his children, Ibn Masuna also had an unspecied
number of agnatic grandsons who were barred from inheriting from him
so long as their respective fathers were alive; because they did not qualify
as \heirs", the agnatic grandsons legitimately might receive a bequest
from their grandfather. During their minority, their shares of the bequest
would be controlled by their fathers who, no doubt, were the desired
heirs.
On the morning of 30 Muh.arram 750/20 April 1349, Ibn Masuna took
out a pen and a piece of paper and drafted a last will and testament.
Later that day, he revoked the rst last will and testament and drafted
a second one, for reasons that are not specied in our source, perhaps
because one or more of the legatees had died in the meantime. Ibn
Masuna began his second last will and testament by stating that he had
undertaken this action \in preparation for meeting God the Exalted,
in the hope of receiving His forgiveness and mercy, and in preparation
for death|fearing that death would occur suddenly and unexpectedly;
[and] in accordance with the admonition of the Messenger of God|may
God bless him and grant him peace|to leave a bequest (was.iyya )."15
Ibn Masuna stipulated that upon his death|\from which there is no
escape and which no living creature can avoid"16 |three actions should
be taken with respect to the bequeathable third of his estate: (1) thirty-
ve wasq s17 of wheat and fty wasq s of barley should be distributed
among the poor and indigent in the city of Fez;18 (2) two slaves should
be purchased and manumitted;19 (3) and whatever remained of the be-
queathable third should be given \in its entirety to the male sons of his
male sons and to any male sons who will be born to his male sons in the
future."20 Through these pious and charitable acts, Ibn Masuna \sought
the face of God the Exalted, His signicant recompense, and the next
world."21 To emphasize the underlying motivation of the bequest, the
testator cited Qur-an 18:30, \Surely We leave not to waste the wage of
him who does good works."22
15 Mi ,y
ar, vol. 7, p. 25, ll. 2{4.
16 Ibid., vol. 7, p. 25, ll. 4{5.
17 A wasq is the equivalent of the load that a camel can bear or approximately 200
kilograms. One wasq = 60 .sa , = 4 mudd s; a mudd is a double handful of grain. See
Walther Hinz, Islamische Masse und Gewichte: umgerechnet ins metrische System
(Leiden: E.J. Brill, 1955).
18 Mi ,y
ar, vol. 7, p. 25, ll. 8{11.
19 Ibid., vol. 7, p. 25, l. 11.
20 Ibid., vol. 7, p. 25, ll. 5{8.
21 Ibid., vol. 7, p. 25, ll. 12{13.
22 Ibid., vol. 7, p. 25, l. 13.
242 David S. Powers and Etty Terem

After completing the was.iyya, Ibn Masuna summoned two witnesses

to attest that he understood the import of his words, that he was of sound
mind and body, and that he had completely revoked the testamentary
instrument drawn up earlier that day. Unfortunately, only one of the
witnesses was able to reach Ibn Masuna before he expired; the witness
who arrived too late could do no more than attest to the handwriting of
the deceased jurist.23

The judgment of al-Maqqar

On 9 Rab, II 750/27 June 1349, two months after Ibn Masuna's death,
members of his family approached the chief qad. of Fez, Muh.ammad
al-Maqqar,24 and asked him to determine the value of the deceased's
estate so that the bequest might be implemented and the estate divided
among the deceased's heirs and legatees. After determining the total
value of the estate, the qad. gave orders for the purchase of thirty-ve
wasq s of wheat and barley which were distributed among the poor and
indigent of Fez, and for the purchase and manumission of two slaves.
Whatever remained of the bequeathable third was divided among Ibn
Masuna's agnatic grandchildren. And the remaining two-thirds of the
estate was divided up among his heirs, in the present instance, his sons.
In this manner, Ibn Masuna's estate came to be held jointly by two
groups: one-third belonged to his agnatic grandsons, the legatees; and
two-thirds belonged to his sons, his heirs.
Almost immediately, the terms of the bequest became the focal point
of a dispute. Recall that Ibn Masuna had specied that \the aforemen-
tioned one-third should be given in its entirety to the male sons of his
male sons and to any male sons who will be born to his male sons in
the future " (emphasis added).25 Although we do not know the exact
number of Ibn Masuna's sons and agnatic grandsons, we do know that
some of his sons had sons and others did not. Those who did have sons
23 Ibid., vol. 7, p. 25, ll. 14{19.
24 Muhammad b. Muh.ammad al-Maqqar (or: al-Maqr) al-Qurash al-Tilimsan
.
had close links to Abu ,Inan (d. 759/1358). It was al-Maqqar who drew up the
document of investiture (bay ,a ) when, in 749/1349, after Abu ,Inan's father had
been defeated and drowned at sea, Abu ,Inan had himself proclaimed Sultan of the
Marinids at Tlemcen. The scholar then accompanied the sultan to Fez, where Abu
,In
an made him chief qad. and established for him the Madrasa Mutawakkiliyya, also
known as the Madrasa Bu,inaniyya. He died in 756/1355 or 759/1358. See Ah.mad
Ibn al-Qad. al-Miknas, Jadhwat al-iqtibas, 2 vols. (al-Rabat.: Dar al-Mans.ur, 1973),
vol. 1, pp. 298{300, no. 304; Makhluf, Shajara, vol. 1, pp. 232{3, no. 832.
25 Mi ,yar, vol. 7, p. 25, ll. 7{8.
 The Mi,yar of al-Wanshars 243

argued that the bequest should be divided immediately among the tes-
tator's currently living agnatic grandsons and that any agnatic grandson
who might be born in the future would receive his share of the bequest
if and when he came into existence, presumably after the size of each
share had been adjusted proportionally to account for the addition of a
new legatee.
Not surprisingly, this approach was opposed by those of Ibn Masuna's
sons who did not have sons, on the grounds that the estate included
certain assets that were fungible or \insecure" (laysa bi-ma -mun ) and
therefore susceptible to diminution or loss. If these assets were immedi-
ately distributed to the living agnatic grandsons, it was possible that by
the time the as yet unborn grandchildren came into existence, the assets
would no longer exist. For this reason, the sons of Ibn Masuna who were
currently childless argued that the corpus should be sequestered (yuqaf )
until such time as all of the testator's male sons had died and the number
of his grandsons could be precisely determined. Only then should the
properties be divided. In the meantime, the legatees presumably would
have access to the usufruct generated by the property. According to this
approach, the bequest would function like a quasi-endowment until such
time as all of the potential legatees had been born|even if the bequest
was not in fact an endowment.
The disputing parties asked al-Maqqar to examine the language of
the bequest and to issue a judicial decision (h.ukm ) based upon his inter-
pretation of the phrase whose meaning was contested.26 On 9 Rab, II
750/27 June 1349, al-Maqqar issued a judgment in which he attempted
to balance the interests of the currently living legatees against those of
the as yet unborn legatees. He ruled that the \plain meaning"27 of the
was.iyya indicates that the entire bequest should be distributed immedi-
ately among the living agnatic grandsons of the testator; as for the as yet
unborn grandsons, he explained, they would receive their share of the
bequest if and when they came into existence. The alternative|namely,
sequestering the assets until all of the testator's sons had died, the qad.
observed, would constitute a clear harm (d.arar jal) to the interests of
the currently living grandsons by interfering with their unqualied free-
dom to dispose of their property, a harm that would continue until such
time as all of the testator's sons had died.28
Al-Maqqar was not insensitive, however, to the argument that the
fungible assets were susceptible to diminution or loss, and his judgment
contains a supplementary instruction regarding this property. It is clear,
26 Ibid., vol. 7, p. 25, l. 19 .
27 Ibid., vol. 7, p. 26, ll. 7{8. Text: anna h ur ,al
. amlat al-lafz
. al-madhk a muqtad
.a

al-z
.ahir minhu.
28 Ibid., vol. 7, pp. 26 (l. 8){27 (l. 3).
244 David S. Powers and Etty Terem

the qad. explained, that the testator had intended for all of his agnatic
grandchildren to enjoy the entirety of the bequest. If even a single grand-
child were to receive less than his full entitlement, he, too, would be the
victim of a specic harm. To protect the interests of the as yet un-
born grandsons, al-Maqqar ordered that any insecure property (,ayn )
that formed part of the bequest should be exchanged for secure prop-
erty such as a compound (rab ,).29 The qad.'s judgment was attested
by two witnesses: Yah.ya b. Muh.ammad b. Muh.ammad al-Jaraw and
Muh.ammad b. Yah.ya b. Muh.ammad b. Rashd al-Fihr.

The fatwa of al-,Imran: 758/1357

When al-Maqqar died in 756/1355, six years after issuing his judgment,
he was succeeded as chief qad. of Fez by Muh.ammad b. Ah.mad b. ,Abd
al-Malik al-Fishtal.30 Two years after assuming oce, al-Fishtal was
approached by Ibn Masuna's living agnatic grandsons, who, presumably
in an eort to protect their rights and interests, asked him to certify
the judgment issued by his predecessor in 750/1349. The new chief qad.
complied with their request at the beginning of Jumada II 758/late May
1357.31
The precaution taken by Ibn Masuna's grandsons was no doubt moti-
vated by the fact that one of their uncles|a son of Ibn Masuna who did
not have a son|continued to contest the interpretation of the testator's
was.iyya. Indeed, this person had also approached al-Fishtal and shown
him an istifta - or request for a judicial opinion that he had formulated
regarding the case and that he wished to submit to a muft. Before he
could do so, however, he needed al-Fishtal's certication of the accu-
racy of the facts of the case, as represented in the istifta -. When this
son of Ibn Masuna asked al-Fishtal to authorize the istifta -, the chief
qad. wrote the following comment on the margin of the piece of paper on
which the question had been formulated: \The plainti requested that
I grant him permission to ask a question regarding this matter, and I
have done so. Let whoever comes across it be aware of that|by virtue
of the power of the Exalted God."32
29 Ibid., vol. 7, p. 26, ll. 17{23.
30 Muhammad b. Ah.mad b. ,Abd al-Malik al-Fishtal (d. 779/1377), a jurist whose
.
nisba (al-Farad  ) points to his expertise in inheritance law. See Makhl
. uf, Shajara,
vol. 1, pp. 235{6, no. 847.
31 Mi ,y
ar, vol. 7, p. 27, ll. 3{9.
32 Ibid., vol. 7, p. 28, ll. 2{5. Without an authorized statement of the facts of the
case, no muft would issue a fatwa. For an example of a litigant who failed to secure
such an authorization, see Powers, Law, society, and culture in the Maghrib, p. 40.
 The Mi,yar of al-Wanshars 245

After receiving the appropriate authorization from the qad., the son
of Ibn Masuna submitted his request for a fatwa to the muft Abu
,Abdallah Muh.ammad b. ,Abd al-Nur b. Muh.ammad al-,Imran.33 The
question mentioned that the bequest included a garden that was jointly
owned by two groups: Ibn Masuna's heirs (his sons) and the legatees
(his grandsons). According to the istifta -, the garden was of such a na-
ture that it could not be divided among the co-owners without causing
prejudice and harm (d.arar wa-fasad ). Further, the sons and grandsons
of the testator reportedly were unwilling partners who wished to termi-
nate the cooperative arrangement imposed upon them by the testator
in his bequest. It was for this reason that one of Ibn Masuna's heirs
had arisen demanding that the garden should be sold in its entirety in
a single transaction and that the revenues should be distributed among
all members of the two groups. However, some of his co-heirs, together
with the legatees, refused to sell the property because, they contended,
so long as one or more of Ibn Masuna's sons was still alive, it was possible
that additional legatees would come into existence. The mustaft asked
the muft if a bequest for the benet of as yet unborn persons should be
treated|at least temporarily|like an endowment in which usufructory
rights are adjusted as beneciaries die and are born. If not, could the
co-owners be compelled to sell?34
In his response, al-,Imran explained that Ibn Masuna had left his
bequest for a specied group of people, some of whom were alive at
the time of the bequest and some of whom might be born subsequently.
Clearly, he had not intended to create a pious endowment, for he had
not used the words \tah.bs " or \.sadaqa ".35 As noted above, the object
of a bequest|here, a garden|is private property that is acquired in
full ownership by the legatees. The muft held that the garden should
be sequestered on behalf of the legatees and should remain undivided
until all of the potential legatees had been born; only then could the
entitlement of each legatee be determined with certainty. But al-,Imran
added one qualication: if the isolation of one heir's share of the property
would result in the diminution of its market value, the co-owners could
be compelled to sell the property in a single transaction. In support of
this view, he cited the legal maxim attributed to the Prophet, \la d.arar
33 The son of ,Abd al-N ur b. Muh.ammad b. Ah.mad al-,Imran, known as al-
Sharf al-H.asan, who was the grandfather of the House (bayt ) of al-,Imraniyyn
al-H.asaniyyn in Fez. See al-Miknas, Jadhwa, vol. 2, p. 448, no. 482; Ah.mad Baba
al-Tinbukt, Nayl al-ibtihaj bi-tat.rz al-dbaj, on the margins of Ibn Farh.un, Kitab
al-d aj (Cairo: Maktabat al-Thaq
b afa al-Dniyya, 2004), vol. 1, p. 319.
34 Mi ,yar, vol. 7, pp. 27 (l. 13){28 (l. 1).
35 On these terms, in connection with the creation of an endowment, see Peter G.
Hennigan, The birth of an institution: the formation of the Waqf in third-century
A.H. H  legal discourse (Leiden: E.J. Brill, 2004), pp. 70 .
. anaf
246 David S. Powers and Etty Terem

wa-la d.irar ".36

Al-,Imran's fatwa reversed the line of reasoning put forward by al-
Maqqar in his judgment issued eight years earlier, suggesting that al-
Maqqar's judgment should be overturned.37
Two years later, at the beginning of Rab, II 760/early March 1359,
the living agnatic grandsons whose rights had been conrmed by al-
Maqqar in 750/1349 brought the latter's judgment to the chief qad. of
Fez, al-Fishtal, and asked him to make a copy of it and to transfer
the testimony of the original witnesses to the copy. The validity and
authenticity of the copy was certied in the presence of two witnesses.38
Also in 760/1359, the dispute widened to include yet another circle of
Ibn Masuna's relatives. When one of the legatees died, one of his heirs
seized part of the garden, claiming that ownership of this property was
a matter of uncertainty (shubha ) and that he was therefore free to take
it.39 This action was contested by the surviving legatees, who argued
that the deceased legatee's share should revert to them. For this reason,
in the year 760/1359, the surviving legatees approached two mufts and
asked them to issue an opinion that would settle the dispute.40 Two
more fatwa s were issued, one by Muh.ammad al-Mazjald,41 the other
by ,Abdallah b. ,Umar al-Wanghl (d. 779/1377).42 Although each is
interesting in its own right, neither fatwa would play a role in subsequent
discussions of this case.43
36 Mi ,y
ar, vol. 7, p. 28, ll. 16{25. The muft  also cites a certain Shaykh Ab u al-
H.asan, who distinguished two contingencies relating to property jointly owned by a
group of heirs and legatees in the proportion of two to one. If the property is not
divisible into thirds, the legatees may be required to participate in a comprehensive
sale along with the heirs. But if the property is divisible into thirds and may be
sold without entailing a loss in value, the legatees are not required to participate in a
comprehensive sale; instead, the property should be divided into thirds and the third
belonging to the legatees should be distributed among them on a per capita basis.
37 Ibid., vol. 7, p. 28, ll. 6{16. On appeal in Islamic law, see David S. Powers, \On
judicial review in Islamic law," Law and Society Review 26:2 (1992): 315{41.
38 Mi ,y
ar, vol. 7, p. 27, ll. 9{12. The witnesses' names are Yah . ya b. Muh.ammad
b. Ah.mad b. Muh.ammad al-S.anhaj and Muh.ammad b. ,Abd al-Malik b. Ah.mad
al-Fishtal.
39 According to Ibn Rushd, if someone acquires property, and no one contests his
ownership of it, then his ownership of the property in question is conrmed, either
absolutely or on the basis of uncertainty (shubha ). See Mi ,yar, vol. 11, p. 297, ll.
10{17.
40 Ibid., vol. 7, p. 21, l. 8 .
41 We have not been able to identify this jurist.
42 On al-W anghl, see Makhluf, Shajara, vol. 1, p. 235, no. 846.
43 Al-Mazjald held that a bequest of this type should be divided among those
grandchildren who are alive and present at the division of the estate, rather than
being sequestered until such time as all of the potential legatees came into existence.
Al-Wanghl made an interesting conceptual distinction between corpus and usufruct,
referring to certain unnamed jurists who held that a bequest of this type has a
 The Mi,yar of al-Wanshars 247

The 18th century case:44

the testamentary endowment of
,Abd al-Rahm
. an b. ,Abd al-Sal
am

In the rst half of the 18th century there lived in Rabat. a man by the
name of Mawlay ,Abd al-Rah.man b. Mawlay ,Abd al-Salam, known as
al-Sharf al-Rabat.. Our source species that ,Abd al-Rah.man was the
paternal nephew of the Sharf Mawlay Ibrahm al-Bahal. The honoric
\Sharf " indicates direct descent from the Prophet Muh.ammad; and
the honoric \Mawlay" suggests proximity to the ruling dynasty, the
,Alaws, whose capital was in Meknes, approximately eighty miles east
of Rabat..45
Over the course of his lifetime, ,Abd al-Rah.man had accumulated
substantial properties in Rabat. and its surrounding countryside. He
married and had at least two sons, Mawlay ,Al and Mawlay Ibrahm.
Prior to his death some time in the middle of the 18th century, ,Abd
al-Rah.man drew up a last will and testament (was.iyya ) in which he
included, inter alia, instructions relating to his wealth and the man-
ner in which it should be transmitted to his heirs and descendants. In
this document, he instructed that upon his death, \which is inevitable
and from which no living creature can escape," 40 dirham s should be
deducted from his estate and used to construct a domed tomb or mau-
soleum (qubba ) for his father, Mawlay ,Abd al-Salam. With regard to
the rest of his wealth, ,Abd al-Rah.man designated the following prop-
erties owned by him as a family endowment (h.ubus ): (1) the entirety of
the Waqqas.a Water-Wheel (saniya ) located inside the city of Rabat.; (2)
a large compound (dar ) in H.umat al-Rakba in which he formerly made
his residence; (3) a small compound adjacent to it, on the eastern side,
in which he currently resided; and (4) a faddan of land in a location
unspecied in our source.46
dual nature, part usufruct and part private property. Until such time as all of the
legatees have come into existence, the bequest should be treated as a gift of usufruct
(manfa ,a ); once all of the legatees have come into existence, it is a gift of substance
or real property (raqaba ). It is curious that the 18th century Rabat. mufts who later
cited this case did not mention either of these two fatwa s.
44 For this case, see al-Wazz an, al-Mi ,yar al-jadd, vol. 8, pp. 460{5.
45 On the ,Alaw dynasty in the rst half of the 18th century, see Jamil M. Abun-
Nasr, A history of the Maghrib in the Islamic period (Cambridge: Cambridge Uni-
versity Press, 1987), pp. 230{7.
46 In 1807 the ruling ,Alaw sultan, Mawlay Sulaym an, issued an order calling for
the construction of a Jewish quarter (mellah ) in what formerly had been known as the
Waqqas.a quarter. See Jacques Caille, La ville de Rabat jusqu'au protectorat francais:
248 David S. Powers and Etty Terem

In the continuation of the last will and testament, Mawlay ,Abd al-
Rah.man identied the beneciaries of the endowment|without, how-
ever, specifying a strategy for the transmission of revenues from one
generation to the next. Keeping in mind the possibility that not all of
his potential grandchildren were as yet alive, the testator dened the
class of beneciaries in general, unspecied terms (ghayr mu ,ayyan ).
He stipulated that the revenues generated by the endowment proper-
ties were for the benet of the descendants (a ,qab ) of his two children,
Mawlay ,Al and Mawlay Ibrahm, and the descendants of their descen-
dants (,aqib a ,qabihim ), so long as they proliferate, the share of a male
being twice that of a female, until God inherits the earth and those who
are on it.47
In addition, ,Abd al-Rah.man appointed his son ,Al as the executor
(was.) of the will. When the document was complete and ,Abd al-
Rah.man was satised with its formulation, he summoned two witnesses
to attest to its legal soundness and validity.

The dispute

When ,Abd al-Rah.man died, the initial beneciaries of his endowment
should have been the \descendants" of his two children, ,Al and Ibrahm.
At the time of the founder's death, ,Al had children, but Ibrahm did
not. For this reason, ,Al's children presumably enjoyed exclusive use
of the endowment revenues. When Ibrahm died|childless|certain
heirs of the testator stepped in and seized control of the endowment
revenues, which, they alleged, belonged to them as ,Abd al-Rah.man's
heirs. Although our source does not identify these \heirs", in all likeli-
hood, they were descendants of the second branch of the Sharan family,
i.e., children or grandchildren of the founder's brother, Sharf Mawlay
Ibrahm al-Bahal. Not surprisingly, ,Al's children protested, and the
two branches of the family found themselves locked in a rancorous prop-
erty dispute.
The dispute centered on the interpretation of the language of the
last will and testament in which Mawlay ,Abd al-Rah.man had created
histoire et arch
eologie, 3 vols. (Paris: Vanoest, 1949), vol. 1, p. 323. We have been
unable to locate H.umat al-Rakba.
47 Al-Wazzan, al-Mi ,yar al-jadd, vol. 8, p. 460, ll. 14{16. Because it was created
in a last will and testament, ,Abd al-Rah.man's endowment was subject to the re-
strictions on bequests: it could not exceed one-third of his estate and could not be
made in favor of a legal heir. This explains why ,Abd al-Rah.man designated his
grandchildren as the beneciaries rather than their fathers.
 The Mi,yar of al-Wanshars 249

the family endowment. The disputants showed this document to distin-

guished jurists in the city of Rabat.. These jurists were of two minds.
One group of jurists held as follows (fa-afta ba ,d.uhum ): The endowment
revenues should be divided into two halves. The half assigned to the
descendants of ,Al should be given to his children, on account of their
existence; and the other half, which had been assigned to the descen-
dants of Ibrahm, should be given to the heirs of the testator [viz., ,Abd
al-Rah.man], between and among whom it should be divided according
to the percentages that would result from the application of the \science
of the shares", on account of Ibrahm's failure to produce any \descen-
dants". And, we are told, the qad. of Rabat. issued a judgment (h.ukm )
on the strength of the fatwa issued by this rst group of jurists (here-
inafter: the majority opinion).48 Pursuant to this judgment, the two
branches of the Sharan family were forced to share the revenues of the
endowment.
However, a second group of jurists, identied only as \the Imams of
the day," disagreed with this outcome (wa-khalafahum ba ,d. a -immat al-
waqt ). In their view (hereinafter: the minority opinion), the endowment
revenues should be given in their entirety to the children of ,Al until such
time as Ibrahm either produced children, in which case his children and
,Al
's children would be partners, sharing the revenues on a basis of
equality, i.e., per capita ; or failed to produce any children, in which case
the status quo should be maintained with regard to the division of the
revenues among ,Al's children and their descendants.
In an impressive display of legal erudition, the second group of mufts
buttressed their position by citing the judgment (h.ukm ) issued in the
14th century by Muh.ammad al-Maqqar as found in Wanshars's Mi ,yar
(see above). After summarizing the facts of the case, they reported that
in his judgment al-Maqqar held that \the revenues should be given in
their entirety to the existing [descendants] to the exclusion of the non-
existing [descendants]." They added that in this manner al-Maqqar
settled the dispute between the two sets of litigants and that the jurists
of his age preferred (ikhtara ) his judgment, as reported by Muh.ammad
Mayyara in his Sharh. takml al-minhaj.49
48 Ibid.,vol. 8, p. 460, ll. 21{4.
49 Ibid.,vol. 8, pp. 460 (bottom){461, l. 8. Muh.ammad b. Ah.mad b. Muh.ammad
b. Mayyara (d. 1072/1661) was a student of Ah.mad b. Muh.ammad al-Maqqar al-
Qurash, a descendant of the 14th -century qad. al-Maqqar (see above). The full
title of the book is Takml al-minhaj al-muntakhab f qawa ,id al-madhhab, itself a
supplement (takml) to the Lamiyya of ,Al b. al-Qasim b. Muh.ammad al-Zaqqaq
(d. 912/1507). See Maribel Fierro, \al-Zak.k.ak.," EI 2 , s.v. It is interesting to note
that the second group of mufts ignored the fact that al-Maqqar's judgment was
challenged and criticized by later mufts.
250 David S. Powers and Etty Terem

The case is appealed

Clearly dissatised, ,Al's children mounted a challenge to the judgment

issued by the Rabat. qad.. Acting on the strength of the second, minority
opinion, they traveled to Fez, where they showed the last will and testa-
ment and the two fatwa s to an expert jurist (muh.aqqiq ), Muh.ammad b.
,Abd al-S
. adiq (d. 1761).50 Ibn ,Abd al-S.adiq issued yet another fatwa
which included: (1) a transcription of the relevant section of Mawlay
,Abd al-Rahm
. an's last will and testament; (2) a summary of the two
fatwa s issued in Rabat.; and (3) his own response. The fatwa of Ibn ,Abd
al-S.adiq survived until the late 19th century, at which time it came into
the hands of al-Wazzan, the compiler of the New Mi ,yar, who copied
the entire text into his collection, adding a short comment of his own at
the very end.

The fatwa of Ibn ,Abd al-S.adiq

Ibn ,Abd al-S.adiq began his fatwa as follows:

Praise be to God, the author of [this fatwa ]|may God be
pleased with him|has examined the contents of the afore-
mentioned testamentary disposition (.sa -), and it has become
clear to him, with certain knowledge, that it constitutes an
endowment for a lineal descent group (h.ubus mu ,aqqab ), as
indicated by the testator's declaration to that eect, with
his words, \for the descendants (a ,qab ) of his two aforemen-
tioned children, and for the [descendants of] their descen-
dants ([,aqib ] a ,qabihim )," to the end of the document.51
Ibn ,Abd al-S.adiq explained that by using the words ,aqib (sg.) and
a ,qab (pl.), the founder of the endowment had created a partnership be-
tween ,Al's descendants and Ibrahm's descendants. This is not a h.ubus
mu ,ayyan in which a founder specically names one or more immediate
beneciaries, with the result that each branch of the family is entitled
50 Al-Wazz an, al-Mi ,yar al-jadd, vol. 8, p. 461, ll. 13{14. Muh.ammad b. ,Abd
al-S.adiq al-Dukkal al-Faraj was a prominent qad. and muft in Fez who died in
1175/1761. See Makhluf, Shajara, vol. 1, p. 354; Muh.ammad b. Ja,far al-Kattan,
Salwat al-anf
as wa-muh
.a
dathat as bi-man uqbira min al-,ulam
al-aky a - wa-'l-s
. ulah-
.a
bi-F
as (Casablanca: Dar al-Thaqafa, 2004), vol. 1, pp. 308{9.
51 Al-Wazzan, al-Mi ,yar al-jadd, vol. 8, p. 461.
 The Mi,yar of al-Wanshars 251

to exclusive control over a percentage of the endowment revenues (e.g.,

1 ; 1 , or 1 ), depending on the number of initial beneciaries, but rather a
2 3 4
h.ubus mu ,aqqab or endowment for a lineal descent group in which there
is one single class of beneciaries who take their shares of the revenue
on a per capita basis, irrespective of the branch of the family to which
they belong.52 In the present case, Ibn ,Abd al-S.adiq observed, it may
be inferred from the fatwa s issued in Rabat. that ,Al had children while
Ibrahm did not. Taking care to formulate his response with appropri-
ate caution, Ibn ,Abd al-S.adiq stated, \[I]f this is indeed the situation,
then the proper legal assessment (h.ukm ) in this case|if God wills|is
the opinion (ma afta bihi ) of al-Maqqar," to wit, \the revenues in their
entirety should be given to the currently existing descendants of ,Al."53
The muft now turned his attention to the judgment issued recently
by the qad. of Rabat.. This qad., he observed, should not have sequestered
the endowment revenues until such time as the last of the founder's two
children, ,Al and Ibrahm, died; he should not have divided the revenues
between the two branches|half for ,Al's branch and half for Ibrahm's;
and he should not have awarded the purported share of the non-existent
branch to the heirs of the testator, according to the percentages gener-
ated by the application of the inheritance rules. Because he did in fact do
all of these things, the resulting judgment is a \clear error and a shameful
mistake which must be overturned" (alladh yajibu naqd. al-h.ukm bihi ).54
Ibn ,Abd al-S.adiq was not done yet. Clearly, he based his fatwa
on the h.ukm of al-Maqqar, as reported in the Mi ,yar of al-Wanshars.
But Ibn ,Abd al-S.adiq knew that al-Wanshars also had included in
his Mi ,yar a fatwa by al-,Imran in which the latter had challenged al-
Maqqar's judgment, arguing that the revenues of the bequest, in their
entirety, should be sequestered, together with the capital, until the death
of the testator 's last child. If al-,Imran was correct, this would neutral-
ize the value of al-Maqqar's judgment as a judicial precedent. It was
important for Ibn ,Abd al-S.adiq to demonstrate that the disagreement
between al-Maqqar and al-,Imran was irrelevant to the present case.
To this end, he argued:
The disagreement between two Imams [viz., al-Maqqar and
52 On hubus mu ,aqqab, see Pesle, La th
eorie et la pratique des habous, p. 65; Powers,
.
\The Maliki family endowment", p. 383.
53 In the Mi ,y
ar, it is stated that al-Maqqar  issued a h.ukm, not a fatwa. Oddly,
Ibn ,Abd al-S.adiq mistakenly refers to al-Maqarr's judgment as a fatwa. Or perhaps
it was al-Wazzan who substituted \fatwa " for \h.ukm " when he was copying down
Ibn ,Abd al-S.adiq's fatwa. Alternatively, it is possible that either Ibn ,Abd al-S.adiq
or al-Wazzan understood the h.ukm to be a combination of a judgment and a legal
opinion, a h.ukm -fatwa.
54 This is another example of Islamic judicial review. See again Powers, \On judicial
review in Islamic law."
252 David S. Powers and Etty Terem

al-,Imran] in that case and similar cases does not apply

[here], because the subject of the disagreement between them
is not similar to the subject of the current case. This is be-
cause [the subject of the current dispute] is a mu ,aqqab en-
dowment, the goal of which is that the grandchildren should
have enjoyment of the revenues, to the exclusion of the capi-
tal (raqaba ), because ownership [of the capital] remains with
the founder|according to the opinion that has gained wide
circulation among the jurists (mashhur ), [whereas] the sub-
ject of the dispute between the two Imams relates to a bequest
[emphasis added] in favor of a grandchild without any spec-
ication of a lineal descent group (ta ,qb ). The two Imams
agreed on the division of the capital at the time of the ex-
tinction of the last child of the testator. They disagreed
only about the revenues (ghalla )|whether they too should
be sequestered{this was al-,Imran's view|or whether they
should be divided among the existing [legatees] to the ex-
clusion of the non-existing [legatees]|this was the judgment
[h.ukm ] of the Imam al-Maqqar.55
After clarifying the disagreement between the two 14th -century jurists
and unequivocally rejecting its relevance to the present case, Ibn ,Abd
al-S.adiq sought juristic support for his position that only the currently
existing descendants of ,Al were entitled to the endowment revenues. To
this end, he cited an opinion issued by the Cordoban jurist Ibn Rushd
al-Jadd (d. 520/1126) about a case in which a man designated a mill as
an endowment for the benet of his two sons, A and B, and their descen-
dants. The founder stipulated that the revenues of the endowment were
to be divided equally between his two sons (baynahuma bi-'l-sawiyya )
and their descendants (a ,qabihima ) in perpetuity. Both sons produced
children, although A had more children than B (let us assume, for con-
venience, that A had three children and B had one, all sons). After the
founder and both A and B had died, a dispute arose among the founder's
grandchildren. B's child argued that the revenues should be divided per
stirpes, in which case he would receive half of the revenues and A's three
children would divide the other half among themselves ( 61 each). A's
children argued that the revenues should be divided per capita, with the
result that each of the founder's four grandchildren would be entitled to
1 of the revenues. After examining the language of the endowment deed,
4
Ibn Rushd held that the revenues of the endowment should be divided
per capita among all of the living descendants of A and B, even if A had
many more descendants than B. The 12th -century fatwa issued by Ibn
55 Al-Wazz
an, al-Mi ,y
ar al-jad, vol. 8, p. 462, ll. 10 .
d
 The Mi,yar of al-Wanshars 253

Rushd provided Ibn ,Abd al-S.adiq with juristic authority for his holding:
the revenue of ,Abd al- Rah.man's endowment should be divided among
all of ,Abd al-Rah.man's existing grandchildren on a per capita basis,
irrespective of the branch of the family to which they belong.56
Ibn ,Abd al-S.adiq concluded his fatwa by restating his understanding
of how the endowment revenues should be divided and by explaining why
it was necessary to overturn the judgment of the Rabat. qad.: First, the
endowment revenues should be divided between the currently existing
grandchildren \according to the number of grandchildren, not according
to whether there are two branches or one; and [the revenues] should be
divided among the existing [legal beneciaries] to the exclusion of those
who do not exist. . . [I]f only one party (farq ) exists, as in the present
case, then it alone is entitled to the entirety of the revenues."57 Second,
the judgment issued by the Rabat. qad. was based on a judicial error and
should be reconsidered. Ibn ,Abd al-S.adiq identied two potential aws
in his colleague's reasoning: It is possible that the Rabat. qad. mistakenly
regarded the endowment created by ,Abd al-Rah.man in his last will and
testament as an endowment for the benet of specic children (wuld al-
a ,yan );58 alternatively, he may have based his judgment on the mistaken
assumption that ,Abd al- Rah.man had created a bequest rather than a
h.ubus mu ,aqqab.59
Ibn ,Abd al-S.adiq concluded that the judgment of the Rabat. qad.
\has absolutely no support in anything that was mentioned [in the
present case]."60

Discussion

The two cases analyzed above shed important light on the nature of the
fatwa text that was crafted by the muft. As we have seen, the judgment
(h.ukm ) issued by al-Maqqar in Fez in the 14th century resurfaced 400
years later in connection with a litigation in Rabat.. A textual connection
between judgments and fatwa s is not unusual in either of the Mi ,yar s.
Indeed, intertextuality is an essential feature of many of the fatwa s pre-
served in both collections. What is unusual about these two cases is the
56 Ibid., vol. 8, p. 463, ll. 8{16.
57 Ibid., vol. 8, p. 464, ll. 1{4.
58 In that case, ,Abd al-Rahm
. an's heirs would share the two-thirds of his estate with
his children, ,Al and Ibrahm. As for the share of the grandchildren, i.e. one-third
of ,Abd al-Rah.man's estate, it is not inherited, but distributed to them as usufruct,
without sequestration.
59 Al-Wazz an, al-Mi ,yar al-jadd, vol. 8, p. 464, ll. 9{10.
60 Ibid., vol. 8, p. 465, l. 1.
254 David S. Powers and Etty Terem

richness of detail in the fatwa s and the evidence that they provide for
the ways in which mufts crafted their responses in an attempt to create
an authoritative statement of law. In what follows, we consider three
questions relating to the work of the muft: First, what was the process
by which a fatwa became authoritative? Second, to what extent does a
judgment (h.ukm ) serve as a judicial precedent, thereby contributing to
the formation of a body of case law? Third, what was the shelf life of a
fatwa ?

The authority of a fatwa

In their minority opinion, the 18th -century Rabat. mufts sought to bol-
ster their argument by drawing an analogy between the case under con-
sideration and the 14th -century judgment issued by al-Maqqar. By ap-
propriating the earlier text and invoking the authority of a distinguished
Malik jurist, the Rabat. mufts were participating in, and extending, an
ongoing conversation between present and past, between contemporary
questions and a venerable tradition. It is this conversation that con-
stitutes the culture of the law. To establish authority for his opinion,
a muft invariably invokes the voices and views of his scholarly prede-
cessors. Typically, he links the fatwa that he is writing to one or more
earlier fatwa s, adapting the line of reasoning developed in the earlier
opinion to the current set of circumstances. This is how the law works.
The present must attend to the past: the authority of a contemporary
legal assessment rests upon earlier authorities and earlier texts.
It is impossible to draw upon an older text and apply it to a new case
without somehow adding to, modifying, or transforming its meaning. By
appropriating al-Maqqar's 14th -century judgment and applying it to a
new context and a new set of circumstances, the 18th -century Rabat.
mufts gave new meaning to the earlier text. Confronted with a new
fact pattern, a new situation, new litigants, and a dierent area of the
law, the Rabat. mufts drew upon an old case of law to propose a new
argument. This is how the law lives, grows, and regenerates itself.
Shortly after the 18th-century Rabat. mufts composed their minor-
ity response, the Fas jurist Ibn ,Abd al-S.adiq reviewed the mode of
reasoning displayed in their opinion. He approved of the analogy in-
voked by the mufts and, at the same time, called for the reversal of
the judgment issued by the Rabat. judge on the strength of the majority
opinion. In this manner, Ibn ,Abd al-S.adiq authorized the appropriation
of al-Maqqar's judgment by the Rabat. mufts, conrmed the validity
of their new interpretation of the old text, and gave his approval to
 The Mi,yar of al-Wanshars 255

the new text created by them. At the same time, Ibn ,Abd al-S.adiq
contested the judgment of the 18th -century Rabat. qad., arguing that it
should be reversed on the grounds that it was based on faulty reasoning.
Consequently, the 18th -century judgment failed to take its place as an
authoritative text.
Thus, the authority of a legal text is continuously constructed and
reconstructed and should never be taken for granted. The muft aspires
to compose a text that is faithful to the past, appropriate for the present,
and mindful of the future. He invokes earlier texts in an attempt to
address contemporary concerns, knowing that his mode of reasoning and
the arguments that he advances will receive the critical attention of
subsequent generations of jurists.

A judgment (h.ukm ) as a judicial precedent

According to the prevailing wisdom in the eld of Islamic legal studies,

Islamic law is a jurists' law and the opinions of the great jurists of the
past are authoritative and have precedential value. The same is not true
of a h.ukm or judgment issued by a qad., which is binding for a particular
case but has no value as a judicial precedent.61
Recently, however, Wael B. Hallaq has drawn attention to the fact
that court cases do on occasion nd their way into works of positive law
through the intervention of the muft or the author-jurist.62 Hallaq's
observation nds support in the evidence of the present investigation.
The fact that the h.ukm or judgment issued by al-Maqqar in 14th -century
Fez was invoked 400 years later in a fatwa issued by mufts in Rabat.
indicates that a qad.'s judgment did have value as a judicial precedent
and as a source for the elaboration and expansion of the law.
How exactly did the Rabat. mufts use al-Maqqar's judgment? In
this connection, it may be useful to consider the role of ,amal or ju-
dicial practice in Malik qh. Jacques Berque has characterized ,amal
as a \pragmatic law" which nevertheless \remains subject to doctri-
61 Joseph Schacht, An introduction to Islamic law (Oxford: Oxford University
Press, 1964), p. 209; Hallaq, Authority, continuity, and change, chap. 6, esp. pp. 171{
3; Messick, \Fatwa: process and function," in Oxford encyclopedia of the modern
Islamic world, 2:10; Muhammad Khalid Masud, Brinkley Messick, David S. Powers,
\Muftis, Fatwas, and Islamic legal interpretation," in Muhammad Khalid Masud,
Brinkley Messick, David S. Powers (eds.), Islamic legal interpretation: Muftis and
their Fatwas (Cambridge: Harvard University Press, 1996), p. 19.
62 Hallaq, Authority, continuity, and change, pp. 191{2.
256 David S. Powers and Etty Terem

nal criticism which can at any moment revoke it."63 In other words,
,amal shapes the terms of legal discourse|legal forms, principles, and

strategies|without pre-determining how this discourse will be applied

to similar cases in the future. This is the task of the muft, who must
interpret the law and construct solutions to new cases.
It is noteworthy that the Rabat. mufts read al-Maqqar's judgment
in the context of a specic question that they were attempting to an-
swer: What is the proper shar , way to distribute the endowment rev-
enues between ,Al's existing children and Ibrahm's heirs? Although
al-Maqqar's judgment did not provide a clear answer to this question
or a simple rule to be followed, it did suggest some general interpretive
guidelines which the Rabat. mufts used to ll a gap in the law. In doing
so, they created a new interpretation in which they attempted to resolve
the problem at hand in light of al-Maqqar's judgment. The Rabat.
mufts borrowed from al-Maqqar's judgment the principle that a be-
quest should not be shared among a class of legatees that includes both
living and unborn grandsons. They then applied this principle to the
circumstances of an 18th -century case dealing with a family endowment.
This accommodation marks a creative moment when an existing princi-
ple is adapted to new circumstances. In this manner, the law develops,
albeit slowly and in accordance with earlier juristic tradition.

The shelf life of a fatwa or h.ukm

Al-Maqqar's judgment, issued in Fez in 750/1349, found its way into

the Mi ,yar of al-Wanshars, compiled at the end of the 9th /15th cen-
tury. Three hundred years later, in the middle of the 12th /18th century,
al-Maqqar's judgment, in the form preserved by al-Wanshars, resur-
faced in a dispute over an endowment in Rabat.. One hundred and fty
years later, in the rst decade of the 14th /20th century, al-Wazzan in-
corporated al-Maqqar's judgment into his New Mi ,yar. The historian
cannot help but be struck by the remarkable longevity of this judgment
and the continuity of the Malik judicial tradition, both signs of a vi-
brant discursive community and textual culture with a deep respect for
the legacy of the past.

63 J.Berque, \,Amal," EI 2 , s.v.; see also ,

idem Essai sur la m
ethode juridique
ebine (Rab
maghr at., 1944), esp. chap. 5.
 The Mi,yar of al-Wanshars 257

Conclusion

In his response to an inquiry, a Malik muft|like mufts aliated to

other law schools|draws on his knowledge of recognized sources of his
madhhab, i.e. doctrinal lawbooks, fatwa s, and, on occasion, court judg-
ments. However, the composition of a response is not a technical, me-
chanical process in which a muft simply invokes a statement attributed
to a predecessor or applies a legal norm or principle of law to the case
before him. It is rather, as James Boyd White has demonstrated with
respect to the opinions of American Supreme Court justices, an occa-
sion for thought and argument.64 By reading, comparing, and engaging
critically with authoritative texts, a muft contributes to an ongoing con-
versation that has been taking place among distinguished jurists since
the time of the founder of his school, in the present instance, Malik b.
Anas (d. 179/795).
The crafting of a fatwa is a hermeneutical activity in which the muft
interprets existing texts with reference to worldly facts and composes
a new text with reference to those facts. Apart from the Qur-an and
certain undisputed prophetic h.adth s, there are few authoritative texts
that demand simple and total obedience from the muft. Rather, in an
eort to produce a persuasive and well-grounded argument, the muft
draws on the large number of opinions available in the authoritative
texts of his school, choosing between competing school authorities and
dierent juridical opinions.
Both the act of textual appropriation performed by the Rabat. mufts
and the intellectual justication of this act by Ibn ,Abd al-S.adiq bear
witness to the mufts' mastery of legal methodology, knowledge of the
inherited legal tradition, and ability to work with that tradition in a new
and creative manner. All of these skills come together in the construc-
tion of a response to a question. By adapting al-Maqqar's 14th -century
judgment to an 18th -century dispute, the Rabat. mufts placed the earlier
case in the service of an argument distinct from the one for which it was
originally formulated, thereby conferring new life|and new meaning|
on an old text.

64 James Boyd White, Justice as translation: an essay in cultural and legal criticism
(Chicago: University of Chicago Press, 1990), pp. 89{112.
258 David S. Powers and Etty Terem

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