TILL GOD INHERITS THE EARTH

THE MEDIEVALAND EARLY MODERN

IBERIAN WORLDEDITORS

Larry J. Simon (Western Michigan University)Gerard Wiegers (Radboud University Nijmegen)

Arie Schippers (University of Amsterdam)Donna M. Rogers (Dalhousie University)

Isidro J. Rivera (University of Kansas)

VOLUME 31

TILL GOD INHERITS THE EARTH

Islamic Pious Endowments in al-Andalus(9-15th Centuries)

BY

ALEJANDRO GARCA SANJUN

LEIDEN BOSTON2007

On the cover: Arabic inscription commemorating the restoration of a Sevilian mosque'sminaret under the supervision of the ib al-abs Ab #Umar b. ayyib (472 h/1079)Courtesy of Cabildo de la Iglesia del Divino Salvador de Sevilla and R. Valencia.

This book was published with financial support of the University of Huelva.

This book is printed on acid-free paper.

Library of Congress Cataloging-in-Publication Data

Garca Sanjun, Alejandro.[Hasta que Dios herede la tierra English.]Till God inherits the earth : Islamic pious endowments in al-Andalus (9 - 15th

centuries) / Alejandro Garca Sanjun.p. cm. (Medieval and early modern Iberian World ; v. 31)

Includes bibliographical references and index.ISBN-13: 978-90-04-15358-5ISBN-10: 90-04-15358-6 (hardback : alk. paper) 1. Charitable uses, trusts, and

foundations (Islamic law)Spain. 2. WaqfSpainHistory. 3. SpainHistorySources. I. Title. II. Series.

KKT526.G3713 2006346.46064dc22

2006049273

ISSN 1569-1934ISBN-13: 978-90-04-15358-5ISBN-10: 90-04-15358-6

Copyright 2007 by Koninklijke Brill NV, Leiden, The Netherlands.Koninklijke Brill NV incorporates the imprints Brill,

Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP.

All rights reserved. No part of this publication may be reproduced, translated, stored ina retrieval system, or transmitted in any form or by any means, electronic,mechanical, photocopying, recording or otherwise, without prior written

permission from the publisher.

Authorization to photocopy items for internal or personaluse is granted by Brill provided that

the appropriate fees are paid directly to The CopyrightClearance Center, 222 Rosewood Drive, Suite 910

Danvers MA 01923, USA.Fees are subject to change.

printed in the netherlands

Surely We shall inherit the earth and all that are uponit, and unto Us they shall be returned

Qur"n, XIX, 40Trans. A.J. Arberry

And Zachariahwhen he called unto his Lord, O myLord, leave me not solitary; though Thou art the best

of inheritors

Qur"n, XXI, 89Trans. A.J. Arberry

It should be known that history is a discipline that hasa great number of approaches. Its useful aspects arevery many. Its goal is distinguished

Ibn Khaldn, al-MuqaddimaTrans. F. Rosenthal

CONTENTS

Preface and Acknowledgements ................................................ ixGlossary of Arabic Terms ........................................................ xi

Chapter 1 Sources used .................................................... 1Chapter 2 The use of Islamic jurisprudence as a

documentary source ........................................ 24Chapter 3 Origins and early development of the

institution .......................................................... 55Chapter 4 The Legal Framework: general elements of

donations .......................................................... 82Chapter 5 The family or private abs ............................ 142Chapter 6 The aims of pious abs .................................. 184Chapter 7 The organisation of mosques and the role

of pious endowments ...................................... 243Chapter 8 The ocials responsible for managing the

endowment: nir, q and ib al-abs ...... 293Chapter 9 Legal Theory versus Practical Needs: causes

and mechanisms to altering donations .......... 337Chapter 10 Pious endowments in the context of the

Andalusian Social Formation .......................... 392Conclusion .................................................................................. 436

Appendix I Jurists and fuqah": identication andalphabetical index ............................................ 448

Appendix II Inventory and breakdown of fatw includedin the Mi'yr .................................................... 457

Appendix III Tables of Data ................................................ 467Appendix IV Location of Ibn Rushds fatw ...................... 477Appendix V Graphs .............................................................. 479Appendix VI Texts in Translation ........................................ 484

Sources ........................................................................................ 523Bibliography ................................................................................ 527Index .......................................................................................... 539

PREFACE AND ACKNOWLEDGEMENTS

The present work is the English version of my book Hasta que Diosherede la tierra. Los bienes habices en al-Andalus (siglos XXV), publishedin 2002. I have a particular interest in making clear from the begin-ning that this work is not a mere translation of its Spanish prede-cessor. On this premise, three general remarks must be made. Inthe rst place, I have made a special eort to include the mostrecent books and articles, published after 2002, in the eld of Islamicpious endowments, and even others existing prior to that date whichwere neglected in the Spanish version for dierent reasons. On theother hand, even if it is true that the general structure and the bodyof the text are broadly the same, some relevant changes have beenintroduced in several parts of the book, with the aim of improvingperspectives, presentation of subjects, formulation of ideas and evenliterary style. In the third place, the corpus of documentary sourceshas been slightly enlarged with new texts and translations, makingit richer. For all these reasons, I consider this book a new versionof the Spanish one and not a simple translation, even if my con-clusions still remain the same.

The aforementioned work was the result of my Ph.D. entitled Losbienes habices en al-Andalus, siglos X al XV. Estudio socio-econmico de unainstitucin islmica a travs del anlisis de las fuentes jurdicas. (The PiousEndowments in al-Andalus, 4th9th/10th15th centuries. A social and eco-nomic study of an Islamic institution through the analysis of legal sources). Thatdissertation was carried out at the Department of Medieval Historyof the University of Seville and co-directed by Dr. M. GonzlezJimnez and Dr. R. Valencia. It was publicly defended on MondayDecember 21st 1998 at the Faculty of Geography and History ofthe University of Seville. I wish to thank all members of the panelfor their useful and accurate observations which have helped me toimprove several aspects of the contents of this work.

I would also like to express my sincere gratitude to other colleagueswho had the kindness to provide me with their invaluable assistance.I would like to single out Dr. P. Chalmeta who oered suggestionsand ideas of great scientic value for the contents of the originalresearch. I am also grateful for the bibliographical help given by

x preface and acknowledgements

J. M Carabaza Bravo, M. Fierro and my friend Dr. 'Al Tawfq.The latter, an expert in translation technique, was also extremelyhelpful in the interpretation and translation of some Arabic texts.

I also wish to thank the Department of Education and Science ofthe regional Government of Andaluca which, by awarding me ascholarship within the program for the Development of Teachingand Research Personnel, allowed me to devote four years to thecompletion of my Ph.D. at the University of Huelva. This institu-tion funded several visits to national libraries so that I could con-sult their resources.

Particular thanks are due to other persons whose assistance can-not be measured in scientic, academic or professional criteria, butin terms of aection and friendship although, in some cases, bothfacets are intertwined. In this respect, I owe a great deal to Fernando,who originally suggested this book to me and also supported it gen-erously. I am also grateful to Jos Luis for his help in several hate-ful chores, like adapting the transcription system to the Englishlanguage and compiling the index, and to Alexia Grosjean for mak-ing a nal check of the translated text.

It goes without saying that any errors or omissions this book maycontain are, obviously, of my own making and not attributable tothose who provided help and support.

GLOSSARY OF ARABIC TERMS

The purpose of this lexicon or glossary of terms is to make this bookeasier to consult considering the abundance of Arabic terms andconcepts employed throughout it. Many of them are, moreover, legaltechnical terms for which available modern dictionaries (F. Corriente,J. Corts, H. Wehr, R. Blachre, etc.) do not provide accurate trans-lations. Throughout my research, furthermore, I have also occa-sionally used Arabic terms without providing their denitions and,as a result, non-Arabist readers may nd it dicult to recall themeaning of this or that concept. That is why I have included thisglossary where each term appears with the appropriate reference inthe Encyclopdie de lIslam whenever one is available.

To further complement this glossary or, rather, to get a broaderrange of meanings for particular words included in it, the reader isencouraged to look up the Vocabulario de Historia rabe e Islmica byF. Mallo Salgado (Madrid, 1996). For a more specialised view read-ers should consult the lexica and glossaries included in some stud-ies on Islamic law. In my view, the most thorough and detailed onestill is, despite having been written in the rst quarter of the lastcentury, found in D. Santillanas classical work, Istituzioni di dirittomusulmano malichita, between pp. 657798 of volume II. Others lessthorough are also worth consulting, among them L. Seco de LucenasDocumentos arbigo-granadinos (pp. 149164 of the Arabic section), J. Schachts Introduction au droit musulman (pp. 243250) or, morerecently, that included in the collective work Islamic Legal Interpretation.Muftis and their Fatwas (London, 1996, pp. 403414).

'da custom, practice (see 'urf ) (E.I.2, I, 174179, G.-H. Bousquet and J. Prins).

Adhn call to prayer made by the muezzin from theminaret (E.I.2, I, 193194, T.W. Juynboll).

Al-akm al-khamsa the ve qualications, legal value system whichclassies all human actions into ve concepts:obligatory (wjib or far ), advisable (mustaabb ormandb), indierent (mub), reprehensible (makrh)and illicit (arm).

xii glossary of arabic terms

'Amal legal practice (E.I.2, I, 439441, T. De Boer andL. Gardet).

Anq building materials of a ubs or value accrued toit in the shape of crops cultivated or buildingserected on it.

'Aqd contract (E.I.2, I, 328330, C. Chehata).'Aqib, pl. a'qb descent, posterity.Ar bay' lit. white earth, land under cultivation.Ab (see aba).'ib agnate, relative from male line of descent.Al property. Fundament, legal principle.Bil invalid (E.I.2, II, 849852).Bay' buying and selling or any kind of commutative

contract (E.I.2, I, 11441146, J. Schacht).Bay'a ceremony of allegiance and proclamation of

medieval Muslim rulers by the ock of believ-ers or ra'iyya (E.I.2, I, 11461147, E. Tyan).

Bayt al-ml lit. the house of the money, public treasury (E.I.2,I, 11761183, N. Coulson, C. Cahen, B. Lewisand R. Le Tourneau).

Bayyina corroborating testimony (E.I.2, I, 11851186, R.Brunschvig).

Bid'a religious innovation, heresy (E.I.2, I, 12341235,J. Robson).

Bmristn hospital (E.I.2, I, 12591262, D.M. Dunlop, G.S.Colin and B.N. Schsuvaroglu).

Birr piety (E.I.2, I, 1273, L. Gardet).Bulgh puberty (E.I.2, I, 1024).Dalll town crier, auctioneer (E.I.2, II, 104105, G.S.

Colin).Dr house.arar damage, harm.ay'a country estate, domain.Dht substance, essence of something (E.I.2, II, 227, F.

Raman).Faddn Yoke of oxen. Unit of measure (area) equivalent,

in Egypt, to 6,368m2; in a broader sense, eld, plotof land (E.I.2, VII, 140, s.v. misa, C.E. Bosworth).

Faqh, pl. fuqah" legal scholar, expert in qh (E.I.2, II, 774, D.B.McDonald).

glossary of arabic terms xiii

Faqr, pl. fuqar" ascetic or mystic, person who voluntarily leads alife of poverty (E.I.2, II, 775776, K.A. Nizami).

Far"i system of compulsory hereditary quotas (E.I.2, II,802, T.W. Juynboll).

Far compulsory act for a Muslim (E.I.2, II, 809, T.W.Juynboll).

Far 'ayn individual duty which all Muslims must carry out,e.g. the so-called pillars of Islam (prayer, fast-ing, zak and pilgrimage).

Far kifya collective duty carried out by some within a com-munity so that the rest is exempt from it, e.g.jihd.

Fat, pl. tyn young, brave. In the Crdoban caliphate, ocersserving the ruler, usually slaves in origin, andplaying the higher roles in the administrative hier-archy (E.I.2, II, 856).

Fatw legal ruling issued by a muft, expert in qh orIslamic law (E.I.2, II, 886887, E. Tyan and J.R.Walsh).

Fay" properties seized by force whose ownership theo-retically belongs to the umma (E.I.2, II, 889, F. Lokkegaard).

Fin" (pl. afniya) courtyard. In qh the open space surrounding ahouse.

Fiqh Islamic jurisprudence (E.I.2, II, 906912, I. Gold-ziher and J. Schacht).

F sabl Allh in Gods name, expression used in a genericsense as a synonym of charitable or pious deedwhereas, in its narrow sense, it refers to a dona-tion made for the jihd or eort undertaken toexpand Islam (E.I.2, VIII, 699, C.E. Bosworth,s.v. sabl).

Futy the issuing of a fatw.Ghalla harvest or revenue generated by land.Gharar fate, non-determination.adth account of the sayings or actions of the Prophet

which make up the sunna (E.I.2, III, 2430, J. Robson).

jj pilgrimage to Mecca, one of the ve pillars ofIslam (E.I.2, III, 3340, B. Lewis).

xiv glossary of arabic terms

ajr legal incapacity aecting minors, slaves, insolventdebtors, etc. (E.I.2, III, 52, J. Schacht).

ammm public baths (E.I.2, III, 142149, J. Sourdel-Thomineand A. Louis).

aqq Allh lit. divine right which can be identied as publiclaw in contrast with aqq dam or private law.

awz boundary or city limits (E.I.2, III, 309310, G. Deverdun).

Hiba donation of a free property (E.I.2, III, 361362, Y. Linant de Bellefonds).

in, pl. un rural fortress (E.I.2, III, 515520, H. Terrase, A.D.H.Bivar and J.C. Bottoms).

iyza takeover of a donated asset.ubs, pl. abs pious endowment (used in the western Islamic world),

see waqf.ukm a judges or law experts ruling (E.I.2, III, 568570,

A.-M. Goichon and H. Fleisch).'Ibdt religious duties or liturgical practices (E.I.2, III,

668669, G.-H. Bousquet).I'dhr nal exhortation by a q to parties involved in a

legal case so that they can expose their argumentsbefore he issues a ruling.

Ifranj Arabic term designating the Franks and, in general,Europeans (E.I.2, III, 10701073, B. Lewis and J.F.P.Hopkins).

Ift" (see futy).Ijm' legal consensus among fuqah" on a particular issue

(E.I.2, III, 10481052, M. Bernard).Ijtihd personal eort on the part of the jurist to interpret

a legal case (E.I.2, III, 10501053, D.B. MacDonaldand J. Schacht).

Ikhtilf disagreements in jurists points of view (E.I.2, III,10881089, J. Schacht).

'Ilm al-far"i lit. science of the parts, inheritance law (see far"i ).Imm person in charge of leading the prayer. See imma.Imma imamate, oce of imam (E.I.2, III, 11921198,

W. Madelung).Ishf' special prayer held during the month of Ramadn,

also known as tarw.

glossary of arabic terms xv

Istiqq claims on a property belonging to someone else arguingprevious rights.

Istisn technique of legal argumentation based on the consider-ation of equity (E.I.2, IV, 267270, R. Paret).

Isti"jr contract drawn up to hire services.Istir'" duplicate of title deed or secret document stating the rea-

son why someone is forced to act in a particular way.Istil method of legal argumentation based on the application

of the criterion of malaa or public interest (E.I.2, IV,267270, R. Paret).

'Itq manumission of a slave.'Iw compensation (E.I.2, IV, 298299, Y. Linant de Bellefonds).J"ia natural calamity or disaster likely to result in a decrease

in the amount of money paid as rent or the rescission ofa contract.

J"iz licit, permitted, one of the akm al-khamsa (E.I.2, II, 400,C. Chehata).

Jam'a community, sometimes used in legal rulings with the specicsense of rural community (E.I.2, II, 417424, J. Berque).

Jmi' main mosque where the Friday prayer is celebrated atnoon; according to Malikis, this can only be conducted inone of the local mosques.

Kharj territorial tax originally paid only by dhimms (E.I.2, III,10621087, C. Cahen).

Khab preacher in charge of uttering the khuba prior to the noonFriday prayer (E.I.2, IV, 11411142, J. Pedersen).

Khaybar oasis located 150 kms. from Medina (E.I.2, IV, 11691174,L. Veccia Vaglieri).

Khilf see ikhtilf.Khuba sermon delivered by the khab (E.I.2, IV, 7677, A.J. Wensinck).Kir" lease (E.I.2, V, 129, A.M. Delcambre).Madhhab legal school, four of which are Sunni (Mlik, anbal,

anaf and Sh').Madrasa centre specialised in the teaching of qh and, in general,

of Islamic sciences (E.I.2, V, 11191144, several authors).Majr minor or disabled person. See ajr.Makhzan public treasury; by extension also administration, State

(E.I.2, VI, 131135, s.v. makhzan, E. Michaux-Bellaire andM. Buret).

xvi glossary of arabic terms

Makrh abominable, reprehensible, one of the akm al-khamsa.

Ml, pl. amwl money, assets (E.I.2, VI, 205, M. Plessner).Manr minaret, towers from where the muezzin calls

out to prayer (E.I.2, VI, 345355, R. Hillebrand,J. Burton-Page and G.S.P. Freeman-Grenville).

Mandb advisable action, one of the akm al-khamsa(E.I.2, VI, 393).

Manfa'a usufruct, benet.Marja' ultimate aim of a pious or public nature which

must accompany a family donation or mu'aqqab,in anticipation of the line of descent dying out

Mas"ala, pl. mas"il question or query posed to the muft (E.I.2, VI,621624, H. Daiber).

Mashhr lit. known or publicised; in cases of legal dis-agreement it refers to the view held by themajority of jurists of the madhhab (E.I.2, VI, 706,G.H.A. Juynboll).

Mashwara legal query (E.I.2, VI, 712714, B. Lewis). Seeshura.

Masjid mosque (E.I.2, VI, 362428, J. Pedersen).Malaa, pl. mali general or public interest (E.I.2, VI, 727729,

M. Khadduri).Marif, pl. marif aim or purpose of a tabs. See wajh and qad.Mawi' place, eld.Mawlid birth, specically that of the Prophet whose

celebration by the fuqar" was regarded as abid'a by fuqah" (E.I.2, VI, 886889, H. Fuchs,F. de Jong and J. Knappert).

Milk property, in both an abstract and concrete sense(E.I.2, VII, 61, A.M. Delcambre).

Minbar (E.I.2, VII, 7481, J. Pedersen, J. Golmohammadiand J. Burton-Page).

Mrth inheritance (E.I.2, VII, 108115, J. Schacht andA. Layish).

Miskn, pl. maskn poor in dire need (E.I.2, VII, 146147, F. Buhland C.E. Bosworth).

Mu"adhdhin muezzin in charge of calling out to prayer fromthe mosques minaret. See adhn.

Mu'aqqab lit. diered; family donation made in favour

glossary of arabic terms xvii

of the donors descendants ('aqib) in a continu-ous succession until the line of descent becomesextinct in which case it must be handed overto the marja' or last-instance beneciary.

Mu'waa barter or exchange (E.I.2, VII, 265, O. Spies).Muft jurist, faqh specialised in issuing fatw.Mughrasa contract of co-plantation (E.I.2, VII, 348).Muabbas 'alay-hi beneciary of a tabs.Muabbis donor of a ubs.Mujtahid faqh who practises ijtihd.Munya wish, desire. In Andalusian Arabic, orchard.Mur"a or muruwwa manhood, virility or virtus; the set of ideal qual-

ities found in an Arab man (E.I.2, VII, 636638,B. Fares).

Musq contract of irrigation (E.I.2, VII, 658, M.J.L.Young).

Mushwar faqh member of the shr.Mustaft person who asks for a fatw to be issued.Mustaabb (see mandb).Mustakhla private patrimony of the caliph.Mulaq lit. free, loose; applied to a ubs it refers to

that whose aim is not known, either becausethe donation deed is lost or it does not includestipulations to that eect.

Muzra'a contract of agricultural partnership (E.I.2, VII,824, M.J.L. Young).

Nzila, pl. nawzil legal case, occurrence presented to a jurist sothat he can issue a fatw (E.I.2, VII, 10541055,C. Pellat).

Nir administrator of a ubs designated by the donor(E.I.2, VII, 846, A.J. Wensinck).

Nib minimum amount exempt from paying the zakset at 5 awsuq.

Qabla leasehold contract aecting a number of assets(mill, salt mine) equivalent to the kir" (E.I.2,IV, 337339, C. Cahen).

Qab handover of the donated asset to a beneciary(E.I.2, IV, 340, Y. Linant de Bellefonds).

Qarya village (E.I.2, IV, 708, A.N. al-Wohaibi).Qad see wajh.

xviii glossary of arabic terms

Qawm community, tribe (E.I.2, IV, 812, A.J. Wensinck).Qurba pious deed.Raba urban suburb (E.I.2, VIII, 361362, E. Lvi-Provenal).Rbia small mosque, oratory (E.I.2, VIII, 372). See zwiya.Ra'iyya ock, it designates all members of society who swear

an oath of allegiance to a ruler via the bay'a (E.I.2,VIII, 417420, C.E. Bosworth and S. Faroqhi).

Raqaba substance of something or of an asset, as opposed tomanfa'a which refers to the enjoyment or usufruct ofan endowment.

Ra"y a faqhs personal opinion.Riwya version of a faqhs personal views (E.I.2, VIII, 563565,

S. Leder).adaqa Quranic concept referring to the notion of charity

or alms-giving (E.I.2, VIII, 729737, T.H. Weir andA. Zysow).

aba Muhammads companions whose testimony is a sourcefor the Sunna (E.I.2, VIII, 856857, M. Muranyi).

ib al-abs deputy of a q responsible for managing the abs,documented in al-Andalus between the 3rd5th/9th11th centuries.

ib al-al in charge of leading the prayer at Friday mosquesin big towns, an oce usually linked to that of theq.

a valid, right (E.I.2, VIII, 865866, G.H.A. Juynboll,R. Peters, M.G. Carter).

al prayer, one of Islams ve pillars (E.I.2, IX, 956965,G. Monnot).

alt al-jumu'a Friday midday prayer (E.I.2, II, 607608, S.D. Goitein).alt al-jan"iz funerary prayer.Sam' lit. audition; in legal texts it refers to oral testimonies,

'al-l-sam', for instance in order to set up a tabs(E.I.2, IX, 10521055, J. During and R. Sellheim).

arf transfer of revenues from a ubs to another, forinstance from a mosque with a surplus to anotherin need.

Sawd lit. blackness. Name of one of the territories con-quered by the caliph 'Umar (E.I.2, IX, 9091, H.H.Schaeder). In Ibn al-'Ars treatise for notaries ithas the meaning of area covered with trees.

glossary of arabic terms xix

Shahda testimony (E.I.2, IX, 207, D. Gimaret).Shar'a Islamic law (E.I.2, IX, 331338, N. Calder and

B.M. Hooker).Shar in a general sense, clause. It refers to the stipu-

lations made by a donor regarding the aim ofhis donation, that is its beneciary or beneciaries,the way in which the usufruct of its revenuesmust be allocated, etc. (E.I.2, IX, 370372, W.B.Hallaq, I.R. Netton and M.G. Carter).

Shuf 'a right to retract (E.I.2, IX, 513514, M.Y. Izzi Dien).Shr Andalusian institution made up of fuqah" in

charge of advising a q and, in the case ofCrdoba, the emir or caliph (E.I.2, IX, 524526,C.E. Bosworth, M. Marn and A. Ayalon). Seemashwara.

Shura oce of the police (E.I.2, IX, 529531, J.S. Nielsenand M. Marn).

Sunna Prophetic tradition, consisting of all the adths oraccounts of the sayings and deeds of Muammad(E.I.2, IX, 913917, G.H.A. Juynboll and D.W.Brown).

Sr rampart (E.I.2, IX, 917919, A. Northedge).Tabs donation of an asset via the legal procedure of

a ubs.Taqld adherence to or imitation of another jurists opin-

ion (E.I.2, X, 148149, N. Calder).Thaghr, pl. thughr borderland.Thulth lit. third, it refers to the third of free disposal

allowed to a testator in his will.Thumma lit. then, afterwards, a particle used in a tabs

to indicate the separation between parents andchildren as beneciaries of a donation.

Umm walad lit. mother of a child, concubine who gives birthto her owners child.

'Umr donation for life in which a beneciary does notenjoy ownership but only the usufruct.

'Urf (see 'da).'Ushr tithe, amount paid as zak.Ul al-qh sources of the qh: the Qurn, the Sunna, the ijm'

and the qiys.

xx glossary of arabic terms

Wajh aim or purpose selected by a donor for his tabs,see marif and qad.

Wjib compulsory action for all Muslims, one of theakm al-khamsa.

Walad, pl. awld son.Waqf, pl. awqf ubs (used in the Near East).Waiyya will.Zak one of Islams ve pillars and the only tax which

Muslims are legally obliged to pay.Zwiya In al-Andalus, typical building of the Nasrid period

used as a gathering place by a group of fuqar".It is confused with the rbia during the 15thcentury.

CHAPTER ONE

SOURCES USED

1. Introduction

This book is based mainly, although not exclusively, on the system-atic use of Islamic jurisprudence as a means of gaining knowledgeabout a particular aspect of Andalusian society, namely the institu-tion of pious endowments. The rst two chapters are devoted toanalysing the written sources I have consulted, albeit each from adierent perspective. In this one, I will describe all the sources used,both in Arabic (legal or otherwise) and in Spanish. In the following,more analytical chapter, I will focus on methodological issues aris-ing from the problems posed by the use of Islamic jurisprudence asdocumentary sources for historical research.

2. The Mi'yr al-Mu'rib by Amad al-Wanshars

The main documentary source providing most of the informationfor the present study is the legal compilation by the Maghribi faqhAmad al-Wanshars (d. 914h/1508) entitled al-Mi'yr al-mu'rib wa-l-jmi' al-mughrib 'an fatw 'ulam" Ifrqiya, wa-l-Andalus wa-l-Maghrib.1

At the beginning of the 20th century E. Amar published a partialtranslation of this work2 and, from then onwards, it has often beenused by French and Arab authorssuch as H.R. Idris and M. Talbi,among others for studying the medieval Maghrib due to its greatlength and the extensive variety of topics it deals with (legal, eco-nomic, social, scal, cultural and religious, etc.). More recently, itcontinues to be of great interest to those researching the history ofal-Andalus for, in spite of the fact that its author is Maghribi, the

1 Ed. M. ajj et al., Rabat-Beirut, 19811983, 13 vols.2 E. Amar, La pierre de touche des fetwas de Amed al-Wanshars, Archives

Marocaines, XII (1908) and XIII (1909).

2 chapter one

compilation includes a signicant number of legal texts by Andalusianlegal experts.

We can single out, in this respect, two scholars among the manyothers who have beneted from the legal material in the Mi'yr. Therst is the American D.S. Powers, who used the work as a sourcefor studying the Islamic inheritance system, aspects of the legal organ-isation, and also the topic of pious endowments.3 The second oneis the French scholar V. Lagardre who, in his Histoire et socit enOccident musulman au Moyen ge. Analyse du Mi'yr dal-Wanars (Madrid,1995), translates excerpts from and summarises 2,144 texts takenfrom al-Wansharss work.4 V. Lagardres study has without doubt,further to its other merits, facilitated access to this documentarysource which is central to the study of some aspects of the historyof al-Andalus. His work has nevertheless concentrated on transla-tion, rather than on historical or legal analysis,5 a eld in whichmost of the work remains to be done.

Unquestionably, one of the aspects most comprehensively dealtwith by the Mi'yr, as far as the amount of information is concerned,is that of pious endowments. In spite of this, the topic has not drawnspecial attention from those who have approached the work. Someof the fatw on pious endowments were included in the aforemen-tioned selection by E. Amar.6 Likewise, J. Lpez Ortiz analysed and

3 D.S. Powers, A court case from fourteenth-century North Africa, Journal ofthe American Oriental Society, 110/2 (1990), pp. 229254; Fatws as sources for legaland social history: a dispute over endowment revenues from fourteenth-century Fez,Al-Qanara, XI/2 (1990), pp. 295341; On judicial Review in Islamic Law, Lawand Society Review, 26/2 (1992), pp. 315341; The Mliki family endowment: legalnorms and social practice, International Journal of Middle Eastern Studies, 25/3 (1993),pp. 379406; The Islamic Inheritance System: A Socio-Historical Approach, inC. Mallat and J. Connors (eds.), Islamic Family Law, London, 1993, pp. 1132 andArab Law Quarterly, VIII/1 (1993), pp. 1329; Legal Consultation (Futy) in MedievalSpain and North Africa, in C. Mallat (ed.), Islam and Public Law, London, 1993,pp. 85106; Kadijustiz or Q-Justice? A Paternity Dispute from Fourteenth-CenturyMorocco, Islamic Law and Society, I/3 (November 1994), pp. 332366; The Art ofLegal Opinion: al-Wansharisi on Tawlj, in M.K. Masud, B. Messick and D.S.Powers (eds.), Islamic Legal Interpretation. Muftis and their Fatwas, London, 1996, pp.98115.

4 F. Vidal Castro, Al-Qanara, XVII/1 (1996), pp. 246254, remarks that the2,144 fatw translated by V. Lagardre, most of them only partially, representabout 5% of all those included in the Mi'yr.

5 In this respect, it seems necessary to point out that his books subtitle (Analysedu Mi'yr dal-Wanars ) is misleading as he does not analyse anything but conneshimself, as I have stated, to translating excerpts of the fatw.

6 E. Amar, La pierre de touche, XIII, pp. 313395.

sources used 3

translated numerous fatw by Nasrid jurists included in El Escorialmanuscript no. 1096, a number of which are also included in theMi'yr; and some tackle cases concerning pious endowments.7 Similarly,V. Lagardre has done a bit of work on the material dealing withpious endowments both in Campagnes et paysans dAl-Andalus (Paris,1993)in three of the chapters he summarises certain fatw (pp.154159, 278282 and 349350)and, particularly, in Histoire etsocit where he has abridged 288 fatw on the topic (chapter IV:biens de mainmorte, pp. 211291), although this is only a translationwithout applying critical apparatus and often in very reduced orshortened form.

Several authors have tackled the subject of ubs in the WesternIslamic world basing their research on the fatw included in al-Wansharss work;8 there are also publications on separate topicswhich contain documents pertaining to pious endowments.9 Theseare, however, mostly studies on specic aspects which do not analyseeither the material or the data supplied by the texts thoroughly.

2.1. The information on ubs: location and quantication

The bulk of legal questions on ubs is found in volume VII of theMi'yr; entitled nawzil al-abs, it is entirely devoted to this topicand covers 514 pages. A number of fatw, nonetheless, do not dealwith the topic.10 Apart from volume VII, only volume III is entirely

7 J. Lpez Ortiz, Fatwas granadinas, pp. 119127.8 In chronological order, M. Lahmar, Les ubus dans la socit et le ar' daprs

le Mi'yr dWanars, Les Cahiers de Tunisie, XLIXLII (1990), pp. 121177; D.S.Powers, Fatwas as sources for legal and social history: a dispute over endowmentrevenues from fourteenth-century Fez, Al-Qanara, XI/2 (1990), pp. 295341; ibid.The Maliki Family Endowment: Legal Norms and Social Practice, InternationalJournal of Middle Eastern Studies, 25/3 (1993), pp. 379406; M. Shatzmiller, Waqfkhayr in Fourteenth-Century Fez: Legal, Social and Economic Aspects, Anaquel deEstudios rabes, 2 (1991), pp. 193215; A. Giladi, Three Fatw on Lending Librariesin North Africa and Spain, Arabica, LXIV (1997), pp. 140143.

9 M.I. Calero Secall, Comares en el Mi'yr al-Mu'rib de al-Wanars, Homenajeal Profesor Jos Mara Forneas Besteiro, Granada, 1994, II, pp. 925940; M. Marn,Documentos jurdicos y forticaciones, Actas I Congreso Internacional Forticaciones enal-Andalus (Algeciras, noviembre-diciembre 1996), Algeciras, 1998, pp. 7987.

10 Al-Wanshars, Mi'yr, VII, pp. 9499; VII, p. 99 (trans. E. Amar, La pierrede touche, XIII, pp. 364365); VII, p. 103 (trans. E. Amar, La pierre de touche,XIII, p. 375); VII, p. 105; VII, pp. 113114 (trans. V. Lagardre, Histoire et socit,p. 277, no. 230); VII, pp. 114115; VII, pp. 117118 (trans. V. Lagardre, Histoireet socit, p. 278, no. 234); VII, p. 128; VII, p. 137 (trans. V. Lagardre, Histoire et

4 chapter one

devoted to a single topic, in this case marriage; this fact is itselfindicative of the socio-economic importance of this type of endow-ment in the medieval Western Islamic world. According to my ownestimate, this volume comprises about 466 fatw representing 7.7%of the approximately 6,000 which, some experts claim, are includedin the Mi'yr.11 There are 227 fatw by Andalusian authors in vol-ume VII concerning issues of pious endowments, that is almost half(48.7%) of the approximately 466 that comprise the volume. Scattereddata on the topic can also be found, albeit very scarcely in just 20texts, in several other volumes of the book.12 In total, therefore, Ihave used 247 legal queries in this study. All this material, dividedinto periods and arranged according to the legal experts from whomlegal advice is sought, appears as an appendix at the end of thisbook (see Appendix II). I will sum up now the more important con-clusions reached after evaluating these texts.

If we examine the information chronologically, we can observe anobvious trend: the earlier the period, the fewer the number of textsand vice versa (see Appendix V, Figure 1). In this respect, the strongpredominance of texts from the Nasrid period (14th15th centuries)is revealing: the 53 fatw from the 14th century and the 73 fromthe 15th century, plus another eight that, I believe, can be tracedback to this period, amount to 134, thus representing over half of

socit, p. 288, no. 271); VII, p. 141; VII, p. 146; VII, pp. 154155 (trans. V.Lagardre, Histoire et socit, p. 289, no. 276); VII, p. 156 (trans. V. Lagardre,Histoire et socit, p. 285, no. 258); VII, pp. 160161; VII, p. 163; VII, p. 165 (2fatw); VII, p. 204; VII, pp. 204205; VII, p. 452; VII, pp. 457458; VII, p. 469;VII, p. 473; VII, p. 482 (trans. V. Lagardre, Histoire et socit, p. 255, no. 150).

11 Amount suggested by D.S. Powers, Fatwas as sources, p. 297 and The Artof Judicial Opinion: on Tawlij in Fifteenth-Century Tunis, Islamic Law and Society,V/3 (1998), p. 363; M.K. Masud et al., Muftis, Fatwas and Islamic LegalInterpretation, in M.K. Masud et al., Islamic Legal Interpretation. Muftis and their Fatwas,London, 1996, p. 10; F. Vidal Castro, El muft y la fetua en el derecho islmico.Notas para un estudio institucional, Al-Andalus-Magreb, 6 (1998), p. 291, this scholaradds that if the approach to be adopted were that of taking into account frag-ments or single sentences [their number] would double, Al-Qanara, XVII/1 (1996),p. 252.

12 Distributed as follows: volume I (6 fatw): Ibn Lubb (pp. 149150, repeatedin VIII, 368369), al-Saraqus (158), al-ar (162 and 331/334), Ibn Sirj (162163)and Ibn al-jj (382); volume V (1): p. 37 (repeated in VII, 144); volume VIII (7):several authors (5455), Ibn Ward (5662), Ibn al-Makw (142143), Ibn al-jj(171172 and 289), Ibn Sirj (235) and Ibn Lubb (370); volume IX (5): Ibn Zarb(147147), Ibn Lubb (482, 485 and 485486) and Ibn al-jj (589); volume X (1):Ibn al-jj (445446).

sources used 5

the total 247 I have quantied (54.2%). This predominance is nat-ural for this periods legal experts are closer to the author of thecompilation and, moreover, some were his contemporaries, whichindicates that they must have been well-known among Maghribi legalcircles in the 15th century. They are followed, in order of impor-tance, by 12th-century jurists, who provide 50 fatw representing20.2% of the total, then by those from the 11th century (23 fatw,9.3%) and from the 10th century (21, 8.5%), with only 4 fatw dat-ing from the 9th century (1.6%). Finally, 15 more texts (6%) shouldalso be added which I believe stem from an Andalusian contextalthough their authorship is disputable, either because their authoris known but not identied in bio-bibliographical dictionaries orbecause I have not been able to establish the authorship.

The rst phase of the history of al-Andalus is the most poorlydocumented as only fatw by Ibn abb (d. 238 h/852853) andIbn Sulaymn (d. 302 h/914) are available from the period prior tothe caliphate. The total absence, in volume VII of the Mi'yr, ofAndalusian texts and authors from the 13th century is revealing, afact that could be explained by the advance of Christian conquestsin the aftermath of 609 h/1212 and the subsequent political frag-mentation of the Almohad empire, or by the hostility shown to Mlikjurists by some Almohad caliphs, namely al-Manr (580595h/11841199).

With regard to the number of jurists involved, there are 34, towhom three others I have not been able to identify must be added:Ab Ibrhm al-Andalus, Ab l-asan al-'mir and Ibn al-'Ar,whom I regard as Andalusian, however, for several reasons. The bestrepresented periods are the 11th century (9 jurists, 26.4%),13 followedby those from the 14th century14 and 15th century,15 each with sixlegal experts (12, 35.2%). Also, there are ve fuqah" from both the 10th century16 and the 12th century17 and two (0.8%) from the

13 This periods authors are: Ab 'Abd Allh b. 'Attb, Ibn Sahl, Ab 'Abd Allhb. Manr, Ab 'Abd Allh b. amdn, Muammad b. Isma'l, Ab l-Qsim b.'Attb and Ibn al-Qan.

14 Ibn Lubb, al-ar, al-Shib, Ibn 'Allq, Ibn Juzayy and Ab l-asan b.Masd.

15 Al-Mawwq, al-Saraqus, Ibn Sirj, Ibn Manr, Ibn Fat and al-Minthr.16 Ibn Zarb, Ibn al-Makw, Ibn Lubba, al-Lu"lu" and Ibn Ab Zamann.17 Ibn 'Attb, Ibn al-Makw, Ibn Sahl, Ibn Manr, Ibn al-Fakhkhr and Ibn

Ab Zamann.

6 chapter one

9th century ( Ibn Sulaymn and Ibn abb). In fairness to A. M Carballeira, she points out that 30.3% of the legal documentsshe uses is from the 10th century, 26.4% from the 11th century and42.2 from the 12th.18

Table 1. Number of fatw by author

Jurist Period Number of fatw Rate

Ibn Lubb Nasrid 31 12.5Al-Mawwq Nasrid 24 9.7Al-Saraqus Nasrid 24 9.7Ibn Rushd Almoravid 22 8.9Ibn al-jj Almoravid 18 7.2Al-ar Nasrid 13 5.2Ibn Sirj Nasrid 13 5.2Ibn Zarb Caliphate 12 4.8

Individually, the author most frequently quoted is Ibn Lubb (d. 782h/1381), with 31 fatw (12.5% of the total amount), followed bythe Nasrid al-Mawwq and al-Saraqus, with 24 each (9.7%), andIbn Rushd with 22 (8.9%). These four authors are the only oneswho have more than 20 fatw and together they add up to 101,representing 40.8% of the total number of 247. There are alsoanother four who are quoted more than ten times: Ibn al-jj (18,7.2%), al-ar and Ibn Sirj with 13 (5.2%), Ibn Zarb with 12(4.8%). The only eight authors with more than ten fatw each con-stitute a quarter of the total 31 but together they are responsible for157 fatw, that is 63.5% of the total amount. The remaining 23identied authors have seven or fewer fatw and they provide atotal of 60 texts (24.2%). Another 30 fatw have not had theirauthors identied or are issued collectively (12.1%).

Thus, as a whole, there is a Nasrid predominance in all aspects:more than half of the fatw (134, 54.2%), a third of jurists (12,35.2%) and several of the fuqah" most often mentioned (Ibn Lubb,al-Mawwq and al-Saraqus) belong to this period. All the juristswhose information I have consulted in the present study appear listedat the end of this book (see Appendix I), where biographical refer-ences are supplied for each of them.

18 A. M Carballeira, Legados pos y Fundaciones Familiares en al-Andalus (siglosIV/XVI/XII), Madrid, 2002, p. 348.

sources used 7

Apart from the estimates carried out by F. Vidal Castro, no othersuciently precise percentage calculations regarding the contents ofal-Wansharss19 legal compilation exist, a book which, regardless ofits great relevance for the history of the medieval Western Islamicworld, is still hardly known as far as details of chronological peri-ods, location of texts and authors quoted in it are concerned. Ibelieve that these types of analyses are necessary in order to moreaccurately understand the content of this vast legal work, thus enablingus to more precisely evaluate its worth as a source for the historyof al-Andalus.

2.2. General issues

With regard to the content of the information it is necessary to makea general distinction between family and pious donations since, asthey are actually two dierent institutions, they refer to radicallydierent legal, social and economic aspects. This is why I have cho-sen to treat them as two separate realities serving diverse purposes(see Chapters VI and VII).

From a quantitative point of view, legal questions on pious absare more numerous than those dealing with family donations. Thus,as opposed to the 60 concerning family matters (26.4% of the total),there are 137 (60.3%) dealing with pious abs.20 Within the latter,the more numerous are, by far, legal queries on properties belong-ing to mosques (80, 39.2%), whereas those tackling aspects relatedto other aims are comparatively very rare (see Appendix V, Figure 2).

19 M. Lahmar, Le ubus dans la socit et le ar' daprs le Mi'yr dWanshars,Les Cahiers de Tunisie, XLIXLII (1990), pp. 121177, pp. 134135, makes someremarks based on unconrmed percentages, stating that the whole distribution ofthe jurists who appear in the Mi'yr is as follows: 35% Andalusian, 16% WesternMaghrib, 16% Central Maghrib, 12.5% Ifrqiya and 4.5% Middle East. He pointsout as well that 16% of the jurists mentioned have not been identied. These gures,however, are not corroborated by any inventory nor by references to estimates car-ried out by other authors.

20 In the same way but relating to the whole legal material of al-Wansharsswork, M. Shatzmiller, Islamic Institutions and Property Rights: the Case of thePublic Good Waqf , Journal of the Social and Economic History of the Orient, 44/1(2001), 50, states that 75% of the 400 dierent fatw deal with endowments forthe public good, the rest with family waqf . A dierent view can be found in A. MCarballeira, Legados pos, p. 353, es el ubs ahl al que se alude con ms frecuen-cia en la literatura jurdica (un 488% frente al 379% del ubs khayr) [juridicalliterature refers to the ubs ahl more frequently (48.8% as opposed to 37.9% deal-ing with the ubs khayr].

8 chapter one

As for the content of legal questions, in the case of family dona-tions the most frequently raised issue is that of determining who isentitled to be a beneciary according to the stipulations laid out bythe donor concerning the way in which the asset is to be distrib-uted; the terminology regarding the type of family descent employedis here very important. Likewise, a signicant number of questionsfocuses on problems arising from the beneciarys taking possession(iyza) of the asset, especially in the case of parents donations infavour of underage children.

In pious donations, the range of issues raised in legal queries isbroader due to the fact that this type of donation presents morecomplexity in its management and right of usufruct. I have adopteda theme-based approach to study them reecting the purpose forwhich donations are made and distinguishing between those set upfor the benet of mosquesby far the best documentedand therest, namely: charitable (the poor and sick), educational and mili-tary. I have also devoted other chapters to questions of managementand the clash between legal criteria and economic needs stemmingfrom the exploitation of assets.

Apart from these two main categories of fatw, there are othersdealing with more specic issues such as donations established bynon-Muslims for the benet of mosques. More technical questionsconcerning legal problems pertaining to the rules governing dona-tions are also dealt with, such as procedures for taking possession ofthem, womens testimony during the latter, the legal meaning of theterminology involving descent and its eects on the way assets aretransferred, etc.

3. Andalusian compilations of jurisprudence

Given the absence in al-Andalus of treatises on the management andjurisprudence of pious endowments similar to Akm al-waqf by Hillb. Yay, known as Yay al-Ra"y from Bara (d. 247/859), andAkm al-awqf by Ab Bakr Amad b. 'Amr al-Shaybn (d. 261h/875), known as al-Khaf, main q of Baghdad,21 it is neces-sary to resort to general compilations of jurisprudence by Andalusian

21 Al-Khaf, Kitb al-awqf, Cairo, 1322 h.

sources used 9

legal experts. I detail below those I have used for this work high-lighting in each case its particular relevance for the study of piousendowments.22

The earliest one is that written by Muammad b. rith al-Khushan (d. 361 h/971), entitled Ul al-futy -l-qh 'al madhhabal-imm Mlik, which includes a brief appendage devoted to cases ofpious endowments.23 In spite of its early date, the paucity of infor-mation greatly diminishes its relevance. It is followed chronologicallyby the q Ab l-Muarrif 'Abd al-Ramn b. Qsim al-Sha'b al-Mlaq (402497 h/10111103) compilation, edited with the title ofal-Akm by al-diq al-alw (Beirut, 1992). Although it does notinclude a section specically devoted to abs, it comprises 35 ques-tions on the topic, which represent 2.8% of the total 1,182. Its impor-tance lies in the fact that it is one of the earliest compilations inal-Andalus where its author incorporates fatw by renowned juristsfrom the 4th5th/10th11th centuries such as Ibn al-Makw, IbnLubba, Ibn Ab Zamann, Ibn Zarb, Ibn al-Fakhkhr as well asfragments from Ibn al-Hinds unpublished notarial treatise. In termsof the amount of information it supplies, this book has less rele-vance. Further, although the editor unfortunately does not state it,more than half of the material (23 questions) concerning pious endow-ments can also be found in al-Wansharss Mi'yr.24

22 The most recent work dealing with the legal sources from the Islamic West isthat of P. Guichard, La production juridique et les sources jurisprudentielles danslOccident musulman in C. Carozzi and N. Taviani-Carozzi (eds.), Le temps delHistoire. Le Mdiviste devant ses sources, questions et mthodes, Publications de lUniversitde Provence, 2004, pp. 5163.

23 Ed. by M. al-Majdb Ab l-Ajfn, 'Umar Bakh, Tunis, 1985. See the reviewof this edition by M. Marn in Al-Qanara, VII (1986), pp. 487489. The cases con-cerning pious endowments can be found in pp. 249252, no. 427 to 432.

24 The references to cases of pious endowments in al-Sha'bs compilation fol-lowed by their equivalent in the Mi'yr, when appropriate, are the following: no.27 (pp. 8081), al-Wanshars, Mi'yr, VII, p. 431; no 51 and 52 (8991), VII, pp.427428; no 54 and 55 (9194), VII, pp. 428431; no 56 (9496); no 105 (117);no 106 (117118); no 125 (125), VII, pp. 435436; no 148 (135), VII, p. 218 andVII, pp. 431432; no 154 (137138); no 169 (141142), VII, p. 426; no 171(142143), VII, p. 423; no 172 (143); no 182 (146), VII, p. 432; no 184 (147), VII,p. 432; no 188 (148), VII, p. 432; no 192 (149151); no 194 (151), VII, p. 66; no195 (151152), VII, p. 435; no 196 (152154); no 197 and 198 (154), VII, pp.6566; no 199 (154157), VII, pp. 433435; no 208 (164), VII, p. 436; no 249(179), VII, p. 436 and VIII, p. 175; no 318 (203); no 319 (203); no 324 (205), VII,p. 218; no 339 (212); no 467 (259260); no 1082 (490), VII, p. 64, VII, p. 218and VII, p. 424425; no 1097 (495), VII, p. 65; no 1111 (499); no 1119 (502) andno 1132 (508), VII, p. 6465 and IX, p. 399.

10 chapter one

Before Ibn Rushd, the most important legal compilation is thatof 's b. Sahl (d. 486 h/1093), written in 472473 h/10791080and based on two main sources from the 10th century: the rst isthe Ibn Ziyds Akm, which is supposed to be the rst writtencodication of Islamic Andalusian jurisprudence, by al-abb Amadb. Muammad b. Ziyd (d. 312 h/924), who, when he was appointedas q in Crdoba in 291 h/903904, was the rst to order thefatw to be written and compiled;25 the second is the Mas"il of AbBakr Muammad b. Yabq b. Zarb (317381 h/929991), who wasalso q in Crdoba, at the time of Ibn Ab 'mir, probably since367 h/977. A complete edition of Ibn Sahls compilation, whichincludes a long chapter on pious endowments, has been availablesince 1997,26 and there are also previous partial publications, under-taken by M. 'A.-W. Khallf.27 Some of those sections contain casesdealing with the issue of ubs, most of them included in the Mi'yr.28

The great appeal of this invaluable source has been shown recentlyby C. Mazzoli-Guintard in her study on urban solidarities in Crdobaduring the 10th11th centuries which provides excellent proof of theimportance of Islamic jurisprudence for the history of urbanism inal-Andalus.29

Another very important legal source is Kitb al-fatw by the faqhAb-l-Wald b. Rushd from Crdoba (d. 520/1126), grandfather ofthe philosopher Averroes and one of the most famous jurists in the

25 Al-Khushan, Qut Quruba, p. 149 (trans. J. Ribera, p. 237): fa-kna awwalqin amma ahl al-qh al-mushrn 'alay-hi f aqiyati-hi il ab futy-hum wa-zimm ra"yi-him bi-kha ayd-him wa-lam yakil dhlik il kha ktibi-hi wa-l il kha nafsi-hi thummatakallafa ba'da dhlik ta"lf tilka al-aqiya wa-jam' tilka al-akm fa-ja'ala min-h ajz".

26 Ibn Sahl, Dwn al-akm al-kubr. Ed. R. al-Nu'aym, Riyad, 1997, 2 vols., II,pp. 10651125.

27 M. 'Abd al-Wahhb Khallf, Wath"iq f akm qa" ahl al-dhimma f-l-Andalus,Cairo, 1980; Wath"iq f akm al-qada" al-jin" f-l-Andalus, Cairo, 1980; Thalthawath"iq murabat al-ahw" wa-l-bida' -l-Andalus, Cairo, 1981; Wath"iq f-l-ibb al-islm f-l-Andalus, Cairo, 1982; Wath"iq f shu"n al-'umrn f-l-Andalus: al-masjid wa-l-dr, Cairo, 1983; Wath"iq f shu"n al-isba, Cairo, 1985; Thami El-Azzemmouri,Les nawzil dIbn Sahl, section relative a litisb, Hesperis-Tamuda, XIV (1973),pp. 7107.

28 Ibn Sahl, Wath"iq f akm qa" ahl al-dhimma f-l-Andalus, pp. 6569 and6870; al-Wanshars, Mi'yr, VII, pp. 438439, 5960 and 7071; Ibn Sahl, Wath"iqf shu"n al-isba, pp. 6293; al-Wanshars, Mi'yr, VII, pp. 446451; Ibn Sahl,Wath"iq f shu"n al-'umrn, pp. 7577; al-Wanshars, Mi'yr, VII, pp. 481482 andIX, pp. 3033.

29 Vivre Cordoue au Moyen ge. Solidarits citadines en terre dIslam aux XeXie sicle,Rennes, 2003.

sources used 11

history of al-Andalus,30 whose legal rulings have been published intwo editions: that by al-Mukhtr b. al-hir al-Tall (Beirut, 1987)and the more recent one by M. al-abb al-Tajkn (Casablanca,1992).31 Although I have consulted both editions, al-Talls is morecomprehensive and has, furthermore, the advantage of locating eachfatw in later compilations such as the Mi'yr. To make cross-refer-encing more manageable for the reader I have compiled a table withthe precise location of Ibn Rushds fatw in both editions and inthe Mi'yr (see Appendix III).

As regards the topic of abs, this compilation oers more detailedinformation to the extent that, due to its authors inuence and pres-tige and the amount of data it provides, Ibn Rushds compilation offatw is the second most important source I have consulted afteral-Wansharss. According to al-Talls edition, the work contains49 questions (mas"il ) related to cases involving abs, thus repre-senting 7.3% of the total amount of 666. More than half (26) areincluded in the Mi'yr. According to al-Tajkns edition, the numberof fatw involving pious endowments is 40, that is 11.1% of thetotal number of 358. Besides this quantitative value, the work hasan added quality through its origin, since Ibn Rushd is the leadingjurist of the Almoravid period throughout the Western Islamic worldand his inuence on Mlikism, both Andalusian and Maghrib, isindisputable.

Finally, we must mention the work of one of Ibn Rushds con-temporaries: Ab-l-Fal 'Iy b. Ms al-Yaub (476544/10831149), q of Ceuta and Granada and author of a compilation en-titled Madhhib al-ukkm f nawzil al-akm, edited by M. b. Sharfain 1990 and translated into Spanish by D. Serrano Ruano.32 As forits contents, the information on cases concerning pious endowmentsis not abundant and is conned to the chapters devoted to absand prayer (pp. 193207 and 304 of the aforementioned edition,347364, 490491 and 494 of the translation), parts of which arealso found in the Mi'yr.

30 He is mentioned by al-Shaqund, Risla f fal al-Andalus, trans. by E. GarcaGmez, Madrid, 1934, p. 53 as one of the ve prominent Andalusian jurists, togetherwith Ibn abb, al-Bj, Ibn al-'Arab and Ibn Rushd the grandson.

31 See the comparative review of both editions by D. Serrano Ruano in Al-Qanara, XV/2 (1994), pp. 531534.

32 D. Serrano Ruano, La actuacin de los jueces en los procesos judiciales, Madrid, 1998.

12 chapter one

As I have shown, a given text or fatw often appears in severalof the aforementioned compilations. That is the case, for instance,with Ibn Rushds fatw, as he is an enormously inuential authorand therefore frequently quoted by other jurists to make their workmore authoritative; thus, a great deal of his fatw are also foundin al-Wansharss or even in q 'Iys compilations. As we shallsee in the next chapter, variations occur in the dierent versions ofa fatw, usually the omission of some element of the text by al-Wanshars. As a result, I have resolved to provide the reader withreferences to all sources where a specic fatw" appears.

4. Notarial treatises and other legal sources

The second type of legal texts I have used in my research is thatof treatises on public notary forms, manuals intended for notarieswhich contain models or formularies of the dierent legal acts requir-ing a written document: marriages, sales, donations, lettings, wills,etc.33 In an article published in 1972, P. Chalmeta urged scholarsto shift their attention to this kind of texts, although no Andalusiantreatises had been edited at the time.34 Currently, out of the knownnine treatises, four have been published, as we shall see later, whereasan equal number still remains to be published.35 With regard toabs, the information they supply focuses on various aspects: thepurpose of the donation (private or public), type of goods donatedand beneciaries, rules to carry the former into eect, the taking ofpossession [of donated assets], etc. Likewise, as W.B. Hallaq pointsout, treatises on notary forms oer information concerning the modal-ities and adjustments between legal theory and legal practice takingplace in specic areas and periods.36

33 See F.J. Aguirre Sdaba, Notas acerca de la proyeccin de los kutub al-wathiqen el estudio social y econmico de al-Andalus, Miscelnea de Estudios rabes yHebraicos, 49 (2000), 330.

34 P. Chalmeta, De historia hispano-musulmana: reexiones y perspectivas,Revista de la Universidad de Madrid, XX (1972), pp. 156160.

35 Those by Ibn Ab Zamann (10th century), Mushtamal f ul al-wath"iq; al-Bunt (11th century), al-Wath"iq wa-l-mas"il al-majm'a; Ibn al-Hind (11th century),Dwn; al-Mat (12th century), Kitb al-nihya and Ibn Fatn (12th century), al-Wathiq.

36 W.B. Hallaq, Model Shur Works and the Dialectic of Doctrine and Practice,Islamic Law and Society, II/2 (1995), pp. 132133.

sources used 13

Because of its antiquity and the wealth of information it contains,the Kitb al-wath"iq wa-l-sijillt by Ibn al-'Ar (d. 399 h/1009) fromCrdoba, must be singled out.37 P. Chalmeta remarked on its con-tents: these wath"iq are, in general terms, lengthier and less signicantthan later works. They usually provide several versions of the sametexts, accompanied by comments and clear and instructive explana-tions, apart from legal references and comments on jurisprudence.Ibn al-'Ar used genuine documents deprived of personal refer-ences. The task of erasing names, dates and amounts was not com-plete (unless it was the work of latter copyists), thus allowing us toidentify several works. One can be traced back to 370h, another to384385 and a third one dated between 381 and 392.38 The wealthof information about pious endowments is quite remarkable. Thereare fteen formularies which deal with the subject either directly orindirectly: those specically on donations or tabs (pages 171176,177179, 180185, 203205 and 206210), scattered references toalms giving (adaqa) in formularies (214216 and 218221), acts ofistir'", both regarding abs (232233, 234 and 235) and manumis-sion of slaves (281282) and registry documents (tasjl ) (236237,588594, 595596, 620624 and 626634).

The treatise entitled al-Muqni' f 'ilm al-shur39 by Ibn Mughthfrom Toledo (d. 459 h/1067) is also very interesting, although, com-pared to the previous one, its texts contain less information and, asa whole, the volume of data it supplies is smaller, with only eightformularies including information on abs. It must be stressed, how-ever, that the aforementioned cases in both treatises are of a dierentnature, thus making both particularly interesting. Ibn al-'Arsincludes a higher number of formularies concerning family dona-tions, especially focusing on the casuistry inherent to the processesof delimiting and specifying beneciaries. It is also interesting to dis-cern who the ultimate beneciaries (marja' ) are as designated by thedonor. Ibn Mughths treatise, despite providing a smaller amountof information, includes more formularies on donations for the public

37 Ed. by P. Chalmeta and F. Corriente, Formulario notarial hispano-rabe, Madrid,1983; trans. by P. Chalmeta and M. Marugn, Formulario notarial y judicial andalus,Madrid, 2000.

38 P. Chalmeta, Acerca del 'amal en al-Andalus: algunos casos concretos, Anuariode Historia del Derecho Espaol, 57 (1987), p. 350.

39 Ed. F.J. Aguirre Sdaba, al-Muqni' f 'ilm al-shur, Madrid, 1994.

14 chapter one

benetactually four of them devoted respectively to a mosque (wathqatabs milk 'al masjid, pages 324325), donation of weapons and horses(wathqa tabs al-khayl wa-l-sil, 325326), a plot of land to build agraveyard (wathqa tabs ar li-dafn ajsd mawt al-muslimn, 327) andfor the benet of the sick (wathqa tabs 'al mar, 323324). Likewise,information is also supplied by two other formularies, one record-ing the hiring of a prayer-leader (imm) for a mosque (wathqa isti"jrkhdim li-masjid, 202204) and another concerning the leasing out(qabla) of abs (224225).

Chronologically, the next treatise is al-Maqad al-mamd f talkhal-'uqd by al-Jazr (d. 585 h/1189)40 which, similar to Ibn Mughths,provides specic formularies of tabs for the benet of mosques ('aqdubs 'al masjid, pages 286287 of the cited edition), hospices for thepoor ('aqd ubs dr 'al-l-maskn, 287) and a plot of land for a ceme-tery ('aqd ubs f ar li-maqbara). Like the others, it includes formula-ries for family donations ('aqd ubs, 284286) and for personal assetsand chattel (horse, sword, a copy of the Qur"n and books on law,288 and translation 4950). The most remarkable aspect is, perhaps,that it provides formularies for issues not tackled by the others suchas the distribution of benets resulting from a pious endowment ('aqdbi-ijtim' gallat al-ubs, 293295) and annulment ('aqd yubil al-ubs,298). As with Ibn Mughths, it also includes a formulary for hiringa prayer-leader for the mosque ('aqd ijrat khdim li-l-masjid, 243).

Finally, I have also used other legal sources which, because of thescant information they provide, can be considered of lesser impor-tance. Nonetheless they sometimes contain very useful data. That isthe case of Bidyat al-mujtahid wa-nihyat al-muqtaid by Ibn Rushd the grandson, better known as Averroes (d. 595 h/1198),41 the well-known Crdoban philosopher, surgeon and jurist. Although he doesnot devote a section specically to pious endowments, he does makesome interesting remarks on the topic, which are especially relevantgiven his authoritative opinion. I would also include within this groupthe following works: Ab Isq Ibrhm b. al-jj al-Gharnstreatise on notary forms (d. 579 h/1183);42 Risla f-l-qh, by Ab

40 Ed. A. Ferreras, al-Maqad al-mamd f talj al-'uqd, Madrid, 1998.41 Ibn Rushd, Bidyat al-mujtahid wa-nihyat al-muqtaid, ed. 'Al Mu'awwa and

'dil Amad 'Abd al-Mawjd, Beirut, 1997, 2 vols.; trans. by Imran Ahsan KhanNyazee, Ibn Rushd the Distinguished Jurists Primer, Doha (Qatar), 19941996, 2 vols.

42 Ed. Muaf Naji, al-Wath"iq al-mukhtaara, Rabat, 1988.

sources used 15

Muammad 'Abd Allh b. Ab Zayd al-Qayrawn (310385h/923996);43 al-Qawnn al-qhiyya by the Nasrid jurist Ab l-Qsimb. Juzayy (d. 741 h/1340), a work which has been described as atreatise in comparative law and includes a brief chapter on abs44

and Tabirat al-ukkm by Ibn Farn (d. 799 h/1397), an author ofAndalusian origins from Medina whose work is primarily based oncontributions by Andalusian jurists such as Ibn Ab Zamann, IbnRushd, Ibn Hishm, etc.

5. Secondary sources

Although legal sources provide the bulk of the information availableto us on the issue of pious endowments, excessively relying on a sin-gle type of text is not a sensible strategy. That is why I have triedto compile all the information available in writings of a dierentnature. First of all, from a chronological standpoint, non-legal sourcesare the most important for the study of pious endowments in al-Andalus in the period prior to the caliphate, being the least well-known period. The epithet secondary, moreover, is not at all to beinterpreted in a qualitative sense, but merely in a quantitative one,for the information stemming from non-legal sources, albeit, scarce,is of enormous interest as it complements our perspective on thetopic and allows us, sometimes, to overstep the too-static vision con-veyed by jurisprudence. For that reason, its extreme scarcity is tobe lamented, as a greater availability of extra-legal information wouldhave greatly enriched our knowledge of the institution.

The histories of judges include a certain amount of relevant dataas the latter were in charge of the general supervision or the man-agement of pious endowments. In al-Andalus there are two of thesehistories. The earliest one is the History of the Crdoban judges byMuammad b. rith al-Khushan (d. 361 h/971),45 one of the

43 Ed. and trans. L. Bercher, La Risla ou Eptre sur les lments du dogme et de la loide lIslm selon le rite mlikite, Argel, 1980, 8th ed.

44 Ibn Juzayy, al-Qawnn al-qhiyya, Libya-Tunisia, 1982, pp. 374377; see M. ArcasCampoy, Teora y prctica del qh en la Granada nazar, in C. Castillo Castillo(ed.), Estudios nazares, Granada, 1997, p. 17.

45 Al-Khushan, Qut Quruba wa-'ulam" Ifriqiya, ed. 'I. al-'Ar al-usayn, Cairo,1994, 2nd ed.; trans. by J. Ribera, Historia de los jueces de Crdoba, Madrid, 1914(reissued Seville, 1985).

16 chapter one

non-legal sources that provides a great deal of information and whosemain relevance is that of the antiquity of its references, from theemirate and the caliphate. The second is the History of the judges fromal-Andalus, by the author from Mlaga Ab l-asan al-Nubh (14thcentury), which contains a considerably smaller amount of informa-tion on pious endowments.46

Among the manuals of isba, the least interesting is the Risla fdb al-isba wa-l-mutasib by Amad b. 'Abd Allh b. 'Abd al-Ra"ffrom Crdoba (10th century),47 which includes a brief section on thesupervision of pious endowments (al-naar f-l-abs) that hardly pro-vides any relevant information. More important is, however, theRisla by the author from Seville Ibn 'Abdn, from the Almoravidperiod.48

Biographical dictionaries and compendia constitute a typical Arabliterary genre which was widely practised in al-Andalus. They recordthe life and works of intellectuals, especially men of religion ('ulam"and fuqah") who participated directly in the issuing of pious endow-ments, in dierent ways. In this respect, biographical dictionarieshave proved useful as regards the gure of the qs deputy and hisrole in the management of those assets (ib al-abs), and also theone in charge of the prayers (ib al-al) whom I refer to whentackling the subject of donations in favour of mosques. The worksof Ibn al-Fara (351403 h/9621013),49 the q 'Iy (476544h/10881149)50 and Ibn Bashkuwl (494578 h/11011183)51 are

46 Al-Nubh, Ta"rkh qut al-Andalus, ed. E. Lvi-Provenal, Beirut 1948; ed. andtrans. A. Cuellas Marqus, Al-Marqaba al-'uly de al-Nubh (La atalaya suprema sobreel cadiazgo y el muftiazgo), Granada, 2005.

47 Ed. E. Lvi-Provenal, Documents pour servir a lhistoire sociale et conomique delOccident musulman au Moyen ge, Cairo, 1955, pp. 69116; trans. by R. Arie,Traduction franaise annote et commente des traites de isba dIbn 'Abd al-Ra"f et de 'Umar al-Gharsf, Hesperis-Tamuda, I/1 (1960), pp. 538; I/2, pp.199214 and I/3, pp. 349386.

48 Ibn 'Abdn, Risla -l-qa" wa-l-mutasib, ed. by E. Lvi-Provenal, Un doc-ument sur la vie urbaine et les corps de metiers a Seville au debut du XIIe sicle:le traite dIbn 'Abdn, Journal Asiatique, CCXXIV (1934), pp. 177299; trans. byE. Garca Gmez, Sevilla a comienzos del siglo XII. El tratado de Ibn 'Abdn, Seville,1992, 3rd ed.

49 Ibn al-Fara, Ta"rkh 'ulam" al-Andalus, ed. 'I. al-'Ar al-usayn, Cairo, 1988,2nd ed.

50 'Iy, Tartb al-madrik wa-taqrb al-maslik li-ma'rifat a'lm madhhab Mlik, sev-eral eds., Rabat, 19801983.

51 Ibn Bashkuwl, Kitb al-ila, ed. 'I. al-'Ar al-usayn, Cairo, 1994, 2nd ed.

sources used 17

the most insightful; others such as Takmilat al-ila by Ibn al-Abbrfrom Valencia (595658 H/11991260)52 and al-Ia f akhbr Gharna,by the author from Granada Lisn al-Dn b. al-Khab (d. 776h/1374),53 also contain some data.

Although chronicles generally provide the least amount of infor-mation on the subject matter of this research, they always contain,however, insightful data due to the context in which they are pro-duced and to their scarcity. Among those including references topious endowments are Ibn al-ayyns (377496 H/9871076) al-Muqtabis,54 al-Bayn al-Mughrib by Ibn 'Idhr (14th century),55 theanonymous Dhikr bild al-Andalus (14th century)56 and al-Lama al-badriyya by Ibn al-Khab (14th century)57 which, on a few occasionsand usually succinctly, provide some data concerning the perfor-mance of specic emirs, caliphs or judges on abs. The same appliesto the literary anthologies penned by Ibn Bassm (d. 543 h/1148)and Ibn Sa'd al-Maghrib (d. 685 h/1286) where sometimes we justnd passages already quoted by earlier texts.58

Even though it does not include information about al-Andalus, Ihave also resorted on occasions to the rila or travelogue by IbnJubayr (540614 h/11451217)59 the author from Valencia who trav-elled throughout Egypt, the Arabian Peninsula, Iraq and al-Shm atthe end of the 12th century. It is of interest here because it reectsan Andalusians vision of the organisation of pious endowments in

52 Ed. F. Codera, Madrid, 1887, 2 vols. (BAH VVI); ed. 'Abd al-Salm al-Harrs, Casablanca, n.d. (Dr al-Ma'rif ), 4 vols.

53 Ed. Muammad 'Abdallh 'Inn, Cairo, 19731977, 4 vols.54 Ibn ayyn, al-Muqtabis (V), ed. P. Chalmeta, F. Corriente and M. ub,

Madrid, 1979; trans. M.J. Viguera and F. Corriente, Crnica del califa 'Abdarramn IIIan-Nir entre los aos 912 y 942, Saragossa, 1981; ibid., al-Muqtabis (VII), ed. 'A.-R.'Al al-ajj, Beirut, 1965; trans. by E. Garca Gmez, Anales palatinos del califa al-Hakam II, por 'Is ibn Ahmad al-Rz (360364H/971975 J.C.), Madrid, 1967.

55 Ibn 'Idhr, al-Bayn al-mughrib (II), ed. E. Lvi-Provenal and G.S. Colin,Histoire de lAfrique du Nord et de lEspagne Musulmane intitule Kitb al-Bayn al-Mughrib,Leiden, 1951; al-Bayn al-mughrib (III), ed. E. Lvi-Provenal, Histoire de lEspagnemusulmane au XIeme sicle, Paris, 1931; trans. by F. Mallo Salgado, La cada del Califatode Crdoba y los Reyes de Taifas, Salamanca, 1993.

56 Ed. and trans. by L. Molina, Madrid, 1983, 2 vols.57 Trans. by J.M. Casciaro, Historia de los reyes de la Alhambra, Granada, 1998.58 Ibn Bassm, al-Dhakhra f masin ahl al-jazra, ed. I. 'Abbs, Beirut, 2000,

4 vols.; Ibn Sa'd al-Maghrib, al-Mughrib f ul l-Maghrib, ed. Shawq ayf, Cairo,1953, 2 vols.

59 Ed. Beirut, n.d., Dr dir; trans. by R.J.C. Broadhurst, The Travels of IbnJubayr, London, 1952.

18 chapter one

Egypt and al-Shm at the time, with some insightful remarks andcomments on the contemporaneous Andalusian reality which he musthave known well as a legal scholar and a man involved in the highpolitics of the period, having acted as secretary to Granadas Almohadgovernor before his travel.

Although, as we shall see in the next chapter, medieval Islamicsocieties have not generated a signicant amount of archival docu-ments, several hundred have been preserved in al-Andalus (343according to C. Barcel and A. Labarta), most of which can betraced back to the 14th (75) and 15th centuries (245).60 The mostimportant edition of these documents is that by L. Seco de Lucena;among them, there is a will dated 16 Jumd I of 856 h (4/6/1452)which includes a donation of abs for the benet of the fortress ofArchidona (in Arjidhna) and the rbia of Belicena, in the districtof Vega (Granada).61 There are also other documentsstill not pub-lishedwhich deal with the issue of pious endowments, among themthose concerning the management of the properties owned by themain mosque of the town of Calatorao (Qal'at al-Turb), in theprovince of Saragossa, dated in 801 h/1398 and another fromMuammad IX the left-handed s chancellery dated 15 Rab' II 833 h(11/1/1429) which exempted the main mosque of Berja from pay-ing taxes on its abs.62

Among the corpus of epigraphic evidence existing in al-Andalus,three texts contain references to the subject of pious endowments;two of them are from the 11th century and report on the recon-struction work being undertaken on two mosques.63 The third epi-graphic remains are of a later date and commemorate the erectionof a hospital (mristn) in Granada at the behest of the Nasrid sul-tan Muammad V in 767 h/1365 and include the subsequent pro-vision of awqf.64

60 C. Barcel and A. Labarta, Los documentos rabes del reino de Granada.Bibliografa y perspectivas, Cuadernos de la Alhambra, 26 (1990), pp. 113119.

61 L. Seco de Lucena, Documentos arbigo-granadinos, Madrid, 1961, pp. 1215(Arabic text) and 1215 (translation).

62 J. Ribera y Tarrag and M. Asn Palacios, Manuscritos rabes y aljamiados de labiblioteca de la Junta, Madrid, 1912, pp. 238 and 261262.

63 E. Lvi-Provenal, Inscriptions arabes dEspagne, Leiden-Paris, 1931, pp. 3839,no 31 and pp. 6869, no 60.

64 E. Lafuente Alcntara, Inscripciones rabes de Granada, Madrid, 1859, pp. 172175;E. Lvi-Provenal, Inscriptions arabes dEspagne, pp. 164166, no. 176.

sources used 19

6. Granadas habices books

The use of external sources to increase our knowledge of al-Andalusis the result, on the one hand, of the scarcity and laconism of Arabicsources as regards certain aspects of the workings and organisationof Andalusian society and, on the other hand, of the fact that someof those sources, written shortly after the conquest, constitute realpalimpsests of an obliterated society.65 P. Guichard has probablybeen, through his numerous studies on the Western regions of al-Andalus (Sharq al-Andalus), the scholar who has best shown the needto make use of such documentation.

The presence of references to Islamic pious endowments in Christiansources becomes apparent from the moment important Andalusiantowns fall into Christian hands. In this respect, it can be considereda parallel issue to the emergence of the Mudejar problem whose ori-gins are usually traced back to the aftermath of the conquest of Toledoin 478 h/1085. Generally, however, the usefulness of Latin andRomance documents for the study of Islamic pious endowments isquite limited, with the exception of the so-called books of ubs writ-ten from the beginning of the 16th century onwards and whose rel-evance is, to say the least, similar to that of Arabic sources themselves.

Prior to that period and to the conquest of Toledo, references arevery rare due, to a great extent, to the incomplete and exiguouscharacter of the documentation available on that long period. Eventhe documentation linked to the process of re-population undertakenin Western Andalusia during the 13th century, in particular the booksof repartimiento (re-distribution), is, as I have tried to highlight inanother work, negligible as far as the study of pious endowments isconcerned since it provides no information whatsoever on the subject.66

That is not the case, however, in other instances, as in the book ofthe repartimiento de Murcia, where references to endowed propertiesare quite numerous.67

65 The expression is used by A. Malpica Cuello, De la Granada nazar al reinode Granada, in R. Soto i Company et al., De al-Andalus a la sociedad feudal: los repar-timientos bajomedievales, Barcelona, 1990, pp. 119153.

66 See A. Garca Sanjun, Los bienes habices y la repoblacin de Andaluca enel siglo XIII: el caso de Sevilla, Historia. Instituciones. Documentos, 26 (1999), pp.211231.

67 See J. Manzano Martnez, Aproximacin a la estructura de la propiedadmusulmana de la tierra en la huerta de Murcia (siglo XIII), in Castrum V. Archologiedes espaces agraires mediterranens au Moyen ge, Madrid-Rome, 1999, pp. 219239.

20 chapter one

More abundant and of better quality is the information suppliedby the abs books, inventories written after the conquest of the king-dom of Granada whose purpose was to compile a comprehensivelist of Nasrid pious endowments turned into war bounty. Signicantly,the appearance in Spanish language of the Arabic loanword habices(Spanish term for abs) takes place against this backdrop.68 Followingthe rules of the war of conquest already in place in the 11th cen-tury, some of the capitulations of surrender issued by the Catholicmonarchs included clauses guaranteeing respect for the Muslimsinternal organisation and their normative and legal specicities, alongwith goods catalogued as pious endowments. No indication is aordedby the earlier ones, those established for the towns of Comares(4/5/1487), Purchena (7/12/1489) and Almucar (December 1489);Almera is the rst case and its terms of surrender were drawn upin cija on 11 February 1490, followed by Granada (25/11/1491).69

But this situation only lasted for a number of years since, afterthe revolt of 1499, the capitulations were suspended and all theMudjars from Granada were forced to convert. Taking into accountthat the existence of pious endowments can only be justied withinan Islamic context, the de iure disappearance of Andalusian Muslimsmeans that the presence of such assets would no longer make sense,the latter being divided up among dierent entities by the Crown.In order to achieve this, it was necessary to know in advance whichproperties were earmarked for distribution and their exact locations,which is why the aforementioned books of habices were written. Aconsiderable number of them have been published and studied todate, thus highlighting the widespread existence of these assets through-out all the Nasrid kingdom.70 I have listed these works here.

68 See F. Mallo Salgado, Los arabismos del castellano en la Baja Edad Media, Salamanca,1998, 3rd ed., pp. 425426.

69 Apud M.A. Ladero Quesada, Los mudjares de Castilla en tiempo de Isabel I, Valladolid,1969, pp. 106110 (document no 14), 127130 (no 27), 137139 (no 31), 141144(no 34) and 172182 (no 50).

70 This shows that B. Vincents remark is wrong, Las rentas particulares delreino de Granada en el siglo XVI: fardas, habices, hagela in B. Vincent, Andalucaen la Edad Moderna. Economa y sociedad, Granada, 1985, p. 86: he states that it waslikely that both in the East (Almera, Vera, Baza and Guadix) and in the West(Mlaga, Ronda, Vlez-Mlaga, Loja and Alhama de Granada) they were not famil-iar with the system of abs.

sources used 21

a. M.C. Villanueva Rico and A. Soria Ortega catalogued fteenbooks of habices71 and the rst author published those correspondingto the years 1505 and 1527,72 covering the capital Granada, althoughher interest is focussed on the toponymic data they provide.

b. M. Espinar Moreno is the scholar who has carried out the mostextensive research on these documents: for his Ph.D. dissertation heanalysed and published the book of habices from 1547154873 andhas done the same with the documents corresponding to the villagesof Churriana de la Vega, Dlar, Gjar, Gabia la Grande, Cjar andBaza in later articles. He has also published Arabic documents fromthe 14th and 15th centuries translated to Spanish by the legal scholarMahoma Brocon in the 16th century that include references to dona-tions for the benet of several mosques in Granada.74 Together withJ. Martnez Ruiz he analysed and published part of the Apeo y deslindede los habices de las tahas de Ugjar, Andarax, Berja y Dalas (1530)75 and

71 M.C. Villanueva Rico and A. Soria, Fuentes toponmicas granadinas. Loslibros de bienes habices, Al-Andalus, XIX (1950), pp. 457462.

72 M.C. Villanueva Rico, Habices de las mezquitas de la ciudad de Granada y susalqueras, Madrid, 1961 and Casas, mezquitas y tiendas de los habices de las iglesias deGranada, Madrid, 1966. The absence of a preliminary study in both editions canbe partially remedied by the article by M.T. Martnez Prez, Las mezquitas deGranada en los libros de Habices, Andaluca Islmica, IVV (19831986), pp. 203235.

73 M. Espinar Moreno, Estructura econmica de las iglesias alpujarreas a travs de loslibros de habices, unpublished Ph.D. diss., Granada, 1980.

74 M. Espinar Moreno, Bienes habices de Churriana de la Vega (15051548),Cuadernos de Estudios Medievales (19781979), pp. 5578; Apeo y deslinde de loshabices de Dlar (1547), Miscelnea de Estudios rabes y Hebraicos, XXIXXXX(198081), pp. 135161; Habices de Gjar. Notas para el estudio de la alquera.Bienes habices, Cuadernos de Estudios Medievales, XXI (19821983), pp. 105149;Gabia la Grande: toponimia y onomstica segn los libros de habices, in EstudiosRomnicos dedicados al prof. Andrs Soria Ortega, Granada, 1985, vol. I, pp. 7188; Notassobre la alqueria de Cjar (15051547), Cuadernos de Estudios Medievales, XIVXV(19851987), pp. 4760; Notas sobre la estructura urbana y rural de la villa deUgjar a travs del libro de habices de 1530, in La ciudad hispnica en los siglos XIIIal XVI, Madrid, 1987, pp. 489505; De la mezquita de Maharoch al monasteriode San Jernimo. Noticias para el urbanismo y la arqueologa de Granada (13581505),Cuadernos de Estudios Medievales y Ciencias y Tcnicas Historiogrcas, XVIIIXIX (19931994),pp. 7397; M. Espinar Moreno and J. Abelln Prez, Las rbitas en Andaluca.Fuentes y metodologa, in M. de Epalza (ed.), La Rpita Islmica, Histria Institucionali altres Estudis Regionals (I Congrs de les Rpites de lestat Espanyol, 710 setembre 1989),San Carlos de la Rpita, 1994, p. 135.

75 M. Espinar Moreno and J. Martnez Ruiz in Ugjar segn los libros de habices,Granada, 1983. This survey was only carried out in the rst two districts ('a) butnot in the other two for unknown reasons. The document includes the inventoryof the abs owned by the mosques of the named villages, in the hands of theChurch by virtue of a certicate dating from 14th October 1501.

22 chapter one

the Apeo y deslinde de los habices de las alqueras de la Vega (15471548),76

documents from the Archivo de la Curia of the Archbishopric ofGranada (room B, section ubs).

c. P. Hernndez Benito has published and studied the book ofhabices dating from October 1503 (A.G.S., E.M.R., bundle 902nd)which includes the abs of the capital that the Crown kept for itself,all those destined to benecence earmarked for the poor, ransom ofcaptives, hospitals, instruction and houses of ablutions. The docu-ment consists of the report commissioned to Juan de Porres, trea-surer of Vizcaya, in order to record his aairs in Granada regardingthe abs and properties belonging to the Crown. The report wasdrawn up by a deputy of the treasurer, Pero Gutirrez.77

d. Likewise, C. Trillo San Jos analysed and published a recordof grants and leasings of abs dating from the years 1501 and 150278

(A.G.S., E.M.R., bundle 902nd)e. With regard to Almera, we rely on the work of Mara del Mar

Garca Guzmn based on the documentation from 1496 concerningthe monastery of Santo Domingo and the Hospital Real, as well asthe recently published survey of the abs belonging to the Churchof Abla dating from 1550.79

One of the most important documents, mostly because of its antiq-uity, is an inventory or record of ubs dating from 1501 (A.G.S.,C.M.C., 1st epoch, bundle 131) that covers both the region of theAlpujarra and the valley of Lecrn and the coastal districts (Almucar,Motril and Salobrea). That document, issued immediately after theMudjar revolt, records the assets distributed in each district or taha(from the Arabic 'a) and in each village under the jurisdiction of

76 M. Espinar Moreno and J. Martnez Ruiz, Los Ogjares (estructura socio-econmica,toponimia, onomstica, segn el libro de habices de 15471548), Granada, 1983.

77 P. Hernndez Benito, La vega de Granada a nes de la Edad Media segn las rentasde los habices, Granada, 1990.

78 C. Trillo San Jos, La Alpujarra medieval segn las rentas de los bienes habices,Granada, 1988. Unpublished B.A. dissertation.

79 M. del M. Garca Guzmn, Bienes habices del convento de Santo Domingode Almera (1496), Estudios de Historia y de Arqueologa Medievales, II (1982), pp. 2942;Los bienes habices del Hospital Real de Almera (1496), Homenaje al profesor JuanTorres Fontes, Murcia, 1987, vol. I, pp. 561573; M. Espinar Moreno, Bienes habicesde Abla y Abrucena (14471528), in Homenaje a la memoria del prof. Dr. Emilio Sez,Barcelona, 1989, pp. 385394; C.J. Garrido Garca, El apeo de los habices de laIglesia parroquial de Abla (Almeria) de 1550. Edicin y estudio, Miscelnea de Estudiosrabes y Hebraicos, 46 (1997), pp. 83111.

sources used 23

the former in the Alpujarra. Although it has served as documentaryevidence in several studies, mainly for the aforementioned book byC. Trillo,80 it still remains unpublished.

The main appeal of these documents doubtless resides in the pos-sibility of gathering quantitative information, which is vital if we areto ascertain the transcendence of a socio-economic institution suchas pious endowments, but it is actually the eld in which our knowl-edge of the former is most decient as Arabic texts do not includedata of this nature. Another factor that helps to highlight the valueof these sources is also their use in the drawing-up of original Arabicdocuments. Thus, we know that when writing the book of habices of1503, Juan de Porres had direct access to the documentation sup-plied to him by the convert Fernando de Moratali, which containeddata on the management of Nasrid abs.81 Similarly, the inspectorFrancisco de vila relied on the services of three newly convertedneighbours of the village of Ugjar as surveyors of the abs foundin that village (Fernando Almerini, Juan el Modaguar and Benitode Villalva), los quales son personas abiles e tienen entera notyiade los dichos bienes,82 whereas in the Ogjares the survey was con-ducted in June 1547 by Francisco el Hatit and Luis Abdulhaque.83

Before coming to the end of this section I must warn that I haveonly made selective and indirect use of the information found in thebooks of habices of Granada; I have never tried to undertake anexhaustive analysis of the data contained therein for that would haverequired another study. Thus, I have conned my work to usingthat documentation as a complement to the information providedby Arabic sources.

80 It has also been used by C. Trillo San Jos and P. Hernndez Benito, Topnimosde la Alpujarra segn un manuscrito de rentas de habices, Miscelnea de Estudiosrabes y Hebraicos, XXXVII/1 (1988), pp. 285306; C. Trillo San Jos, El poblamientode la Alpujarra a la llegada de los cristianos, Studia Historica. Historia Medieval, VII(1989), pp. 187208.

81 La qual dicha quenta yo, Pero Gutierres, vezino de Granada hasedor delsennor Juan de Porres tesorero de Vyscaya en el cargo de los hauizez de la dichaibdad de Granada que son a su cargo doy por cierta, leal y verdadera segud queme fue dada por Fernando de Moratali vezino de la dicha ibdad nuevamenteconvertydo, sacandolo de los libros de aravygo que en su poder estaban apudP. Hernndez Benito, La Vega de Granada, pp. 274275.

82 Apud M. Espinar Moreno, Ugjar segn los libros de hbices, p. 132.83 M. Espinar Moreno and J. Martnez Ruiz, Los Ogjares, p. 23.

CHAPTER TWO

THE USE OF ISLAMIC JURISPRUDENCE AS ADOCUMENTARY SOURCE

1. Introduction

Before analysing the information found in the aforementioned sources,it is necessary to cast a methodological look at the nature of thedocumentary material which forms the basis of this analysis. This isdue to the crucial role that our sources of information play in anywork of historical research. Indeed, without testimonies of whateverprovenance or character a source has it would not be possible towrite History. The nature of the documents used by historians is,however, very varied and inevitably raises many questions which canbe encapsulated in this single one: what is the relationship betweenthe information available and the reality of the subject matter? Appliedto the topic at hand the question would thus be: to what extent dothe sources available to us reect what pious endowments really rep-resented in al-Andalus? Given the pivotal role played by Islamicjurisprudence in this study, I intend here to gauge its relevance vis--vis the history of al-Andalus in general and that of pious endow-ments in particular.

2. Islamic jurisprudence and historical analysis: a general evaluation

Using jurisprudence as a source for studying medieval Islamic societies constitutes a methodological approach inaugurated in the1940s and 1950s by specialists in the history of North Africa suchas R. Brunschvig R.H. Idris, M. Talbi, C. Cahen and others. Sincethat time it has become increasingly popular and is now considereda consolidated line of research within the historiographical commu-nity, partly thanks to the growing abundance of publishedand, insome cases translatedtexts. In Andalusian studies, extensive use oflegal sources started later, after the mid-1980s, as P. Guichard pointed

islamic jurisprudence as a documentary source 25

out in a recent article where he analysed the historiographical devel-opment of this trend from its origins.1

As opposed to so-called narrative sources, that is the accountsdeliberately devoted to inform readers,2 Islamic jurisprudence ensuresthe presence of a certain degree of impartiality and neutrality as itwas not produced in an attempt to make history, in the sense of vol-untarily exerting an inuence on the interpretation that a social col-lective makes of the past. Legal texts, like any other written source,are certainly not aseptic and pure but, rather, they sometimes respondto vested interests and justify certain courses of action, conducts oractions, adopted either by social groups or political authorities. Ingeneral, however, they aord a less subjective insight than that pro-vided by chronicles.

But to be aware of their virtues is as important as knowing theirshortcomings in order to accurately determine the possibilities thatthis material oers. Thus, legal sources do not allow us to surpasssome of the restrictions imposed by narrative sources, mainly theimpossibility of reaching reliable estimates. The utter absence ofquantitative information prevents us from knowing some aspects ofAndalusian society to any satisfactory degree. This does not mean,however, that we should cease to make use of that information; itjust means that we ought to be aware of its limitations, includingthat of creating a merely qualitative variety of history.3

P. Guichard has perhaps been the scholar who has most opti-mistically expressed his hopes for the opportunities oered by thesystematic use of jurisprudence compilations.4 He believes that their

1 See P. Guichard, Litrature jurisprudentielle et histoire de lEspagne musul-mane: la lente intgration des fatw/s mlikites lhistoriographie dal-Andalus,Comptes-Rendus de lAcademie des Inscriptions et Belles-Lettres, 1999, avril-juin, pp