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Shari'a and the Islamic State in 19th-Century Sudan: The Mahdi's Legal Methodology and Doctrine

Shari'a and the Islamic State in 19th-Century Sudan: The Mahdi's Legal Methodology and Doctrine

Name: Shari'a and the Islamic State in 19th-Century Sudan: The Mahdi's Legal Methodology and Doctrine
Brand: Brill Academic Publishers
SKU: 9789004311381
Price: 1662.50 HKD
Availability: InStock
Author: Aharon Layish
ISBN: 9789004311381

By Aharon Layish

Brill Academic Publishers September 2016

Specifications

ISBN-13: 9789004311381
Publisher: Brill Academic Publishers
Publication: September 2016
Format: Hardback
Jurisdiction: Netherlands ? Countri(es) for reference only

Details

The Sudanese Mahdī headed a millenarian, revivalist, reformist movement in Islam, strongly inspired by Salafī and Ṣūfī ideas, in late 19th century in an attempt to restore the Caliphate of the Prophet and “Righteous Caliphs” in Medina. As the “Successor of the Prophet”, the Mahdī was conceived of as the political head of the Islamic state and its supreme religious authority. On the basis of his legal opinions, decisions, proclamations and “traditions” attributed to him, an attempt is made to reconstruct his legal methodology consisting of the Qurʾān, sunna, and inspiration (ilhām) derived from the Prophet and God, its origins, and its impact on Islamic legal doctrine, and to assess his “legislation” as an instrument to promote his political, social and moralistic agenda.

Preface

Acknowledgments

Introduction: The Mahdī’s Documents as a Source of Legal History

CHAPTER ONE: THE MAHDIST STATE

1. Political Establishments

2. The Judiciary and Iftāʾ

3. The ʿUlamāʾ

4. The Ṣūfī Background

CHAPTER TWO: THE MAHDI’S LEGAL METHODOLOGY

1. Abolition of the Schools of Law

2. The Qurʾān and the Sunna

3. Inspiration (ilhām) Derived from the Prophet and from God

4. Auxiliary Sources of Law: Public Interest (maṣlaḥa), Necessity (ḍarūra)

5. The Mahdī’s Version of Ijtihād

6. The Impact of Ṣūfism on the Mahdī’s Legal Methodology

CHAPTER THREE: THE MAHDĪ’S LEGISLATION

Introduction

PART ONE: SLAVES

1. The Slave as Property and Person

2. Umm al-Walad Lost the Child by Her Master but Both She and the Children She Gave Birth to Fathered by Slaves Are Deemed Free in Her Master’s Lifetime

3. A Female Slave, the Husband’s Absence, Dissolution and Chastity

4. A Slave’s Acknowledgment of Theft Is Admissible and Punishable

5. The Mahdī Buys Concubines and Obtains His Free Wives’ Consent

PART TWO: PROPERTY

6. Validation of the Ottoman Land Category of Mīrī

7. The Mahdī Proclaims a Period of Prescription of Seven Years

8. Obtaining Ownership through an Uninterrupted Period of Prescription

PART THREE: OBLIGATIONS AND CONTRACTS

9. Prohibition of Lease for Rent and Agrarian Reform

10. Tenancy Is Permissible if Proprietor Incapable of Cultivating Land

11. Pledge Is Not Permissible as a Device for Circumventing Prohibition of Interest, but the Pledgee/Creditor May Deduct Expenses from the Profits

12. Right of Preemption Reserved Only to the Partner, Not the Neighbor

PART FOUR: FAMILY

a. Marriage

13. Marrying a Woman Promised to Another, Even after Consummation, Entails Dissolution and Discretionary Punishment

14. Prohibition for Marriage on Grounds of Fosterage Applies to All the Issue of Consanguine Brothers by Virtue of the Literal Meaning of a Ḥadīth

15. Marrying a Woman against Her Will or a Woman Who Does Not Share “Spiritual Communion” Is neither Permissible nor Advisable

16. The Mahdī as the Supreme Qāḍī Delegates to a Woman the Power to Marry off Her Daughter

17. The Mahdī Prescribes Maximal Rates for Ṣadāq

Deviation therefrom Entails Expropriation and Penal Sanctions

18. Marriage with a Fifth Wife, Though Irregular, Remains Intact

Instead, One of the Lawful Wives Is to be Divorced

19. The Mahdī Offers Four Wives to the Great Grandson of Shaykh Aḥmad al- Ṭayyib al-Bashīr

20. The Mahdī Marries a Fifth Wife with the Prophet’s Permission

21. Equality among Free Wives

22. The Mahdī’s Co-wives Opt for an Ascetic Life and the Hereafter as a Precondition for Marriage

23. Joining the Mahdiyya while Leaving Husband behind Is Not Deemed Disobedience

24. Coercive Measures to Enforce Obedience

25. Disobedient Wife Compelled to Renounce Rights in Divorce

26. A Woman’s Marriage to Another Man before Establishing Her Divorce from Her Former Husband Entails Separation and Restoration to Her First Husband

b. Divorce

27. Khulʿ and Financial Liability Prior to the Mahdiyya

28. Wife’s Right to Nuptial Gift Is Not Affected by Khulʿ Agreement in the Event of the Wife’s Emigration to Mahdist Territory while Leaving her Husband behind

29. Compulsory Khulʿ of a Disobedient Wife Though the Husband Is Advised to Renounce His Financial Rights

30. Enforced Khulʿ Following Marriage against a Woman’s Consent

31. Khulʿ Does Not Count in the Quota for Intermediate Marriage

32. Taṭlīq of a Woman Married against Her Will

33. Dissolution on Grounds of Non-Provision of Maintenance by an Absent Husband

34. Taṭlīq of the Wife of an Absent Husband

35. Taṭlīq on Grounds of Non-Provision of Maintenance

36. Rescission of Marriage on Grounds of Prejudice

37. Rescission of Marriage on Grounds of Difference of Religion

38. Termination of Marriage on Grounds of Difference of Religion and Rehabilitation by a New Marriage Contract

39. Duration of Waiting Period following Delay of Menstruation

40. A Separated Wife Who Has Not Completed One Menstrual Period May be Restored to Her Husband without Concluding New Marriage Contract

41. Should an Emigrant Wife Observe the Waiting Period of a Free or a Slave Woman?

42. The Mahdī Reinstates His Triply Divorced Wife with No Intermediate Marriage, with the Prophet’s Permission

43. Reinstating a Triply Divorced Wife with No Intermediate Marriage Entails Ḥadd Punishment

44. An Oath of Ḥarām or Oath of Continence without Explicitly Mentioning Repudiation Is Null and Void

45. An Oath of Ḥarām Is Not Binding unless God’s Name Is Mentioned

46. Breaking an Oath of Divorce Entails Expiation

c. Custody

47. The Right to Custody, the Welfare of the Parents and the Best Interest of the Child

PART FIVE: INHERITANCE AND WILLS

48. The Mahdī Offers the Widow of a Martyr the Entire Estate as Charity in a Gesture of Generosity

49. A Widow’s Waiting-Period Maintenance Is Taken Out of the Estate before Its Division

50. Bequests in Favor of Legal Heirs

PART SIX: HOMICIDE AND BODILY HARM

51. Intentional Homicide in Turco-Egyptian Territories Entails Compulsory Retribution with No Option of Forgiveness

52. No Punishment for Killing Committed on Turkish Territory if Repentance is Accepted by the State

53. Compensation for Bodily Injuries, Regardless of Their Nature, on the Basis of Slaves’ Price Where Equivalence in Injury Is Impossible

54. Warriors Causing Bloodshed to Muslim Civil Population Are Liable to Private Retaliation and State Sanctions

PART SEVEN: ḤADD OFFENSES

a. Theft and Highway Robbery

55. Literal Interpretation and Application of Q.

5:38

56. A Witness to Theft Failing to Report the Crime is Liable to Amputation

57. Personal Liability for the Theft: No Collective Amputation of Hands

58. Stealing from Booty Is Tantamount to Disbelief and Apostasy

59. Theft from Booty Entails Excommunication and Capital Punishment

60. The Mahdī Forgives a Highway Robber Who Repents and Acknowledges Crime after being Captured

b. Unlawful Sexual Intercourse and False Accusation Thereof

61. Stoning for Muḥṣan, Lashes for Bikr and Discretionary Punishment for Entering into Privacy with a Stranger

62. Marrying Another Man during Waiting Period from Divorcing Husband Entails Lapidation

63. Hundred Lashes on Women Exposing Themselves to Men

64. A Woman Exposing Her Face or Speaking Aloud Is Liable to 27 Lashes

65. Kidnapping a Free Married Woman and Marrying Her Entails Imprisonment and Lashes

66. Sodomy Entails Decapitation by Sword

67. A Husband Sentenced Successively to Ḥadd Punishment for Qadhf and to Compulsory Retribution for Killing His Wife’s Alleged Harasser

c. Wine Drinking

68. Consumption of Wine and Use of Tobacco Entails Ḥadd and Statutory Punishments

d. Apostasy and Repentance

69. Apostasy in Fundamental Principles: Denial of the Mahdī’s Mahdiship

70. Apostasy in Deeds: Withdrawal from Islam and Sharīʿa

71. Apostasy in Omission: Failure to Immigrate to Mahdist Territory

72. Punishments on Apostasy and Repentance

PART EIGHT: INTERNATIONAL LAW

a. Fayʾ

73. Expansive Definition of Fayʾ: Property Surrendered by Infidels by Agreement to be Distributed according to Q.

59:7

b. Booty

74. Property and Persons Acquired as Booty

75. Men, Women and Children as Booty

76. Division of Booty to Recipients

77. Compulsory Allocation of Booty to the Mahdī’s Kin and Companions

c. Jihād, Amān and Conversion to Islam

78. Women Participating Physically in Jihād Fighting

79. The Mahdī Urges General Gordon Either to Accept Amān or Embrace Islam

80. The Mahdī Invites the Governor of Egypt to Submit to Islam

81. A Dhimmī Staying behind in Turco-Egyptian Territory Given the Choice either to Convert to Islam or Be Proclaimed Ḥarbī

82. Redemption of “Infidel” Captives Converted to the Mahdiyya on Presumption of Good Faith

PART NINE: ALMS TAX

83. The Alms Tax as a Ritual and a State Instrument for Social Justice

84. Niṣāb and Rates of Zakāt

85. Recipients of Zakāt

PART TEN: PUBLIC MORALITY

86. “Governor of the Market” as Public Prosecutor

87. Appointment of Arbitrators to Consolidate the Mahdiyya and Enhance Public Morality in Light of “Commanding Right and Forbidding Wrong”

88. A Catalogue of Statutory Punishments on Moral Offenses

89. Negative Innovations Entail Discretionary Punishments

PART ELEVEN: TESTIMONY

90. A False Witness Is Liable Either to Be Decapitated or to Have His Property Taken Away or His Hand Amputated

CONCLUSION

APPENDICES

Bibliography

Glossary

General Index

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