Muslim Minorities and Teh Obligation to Emigrate to Islamic Territory Two Fatwas From Fifteenth Century Granada

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Muslim Minorities and the Obligation to Emigrate to Islamic Territory: Two fatwās from

Fifteenth-Century GranadaAuthor(s): Kathryn A. MillerReviewed work(s):Source: Islamic Law and Society, Vol. 7, No. 2, Islamic Law in Al-Andalus (2000), pp. 256-288Published by: BRILLStable URL: http://www.jstor.org/stable/3399402 .

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MUSLIM MINORITIES AND THE OBLIGATION TO EMIGRATE

TO ISLAMIC TERRITORY:

TWO FATWAS FROM IlFI'EENTH-CENTURY GRANADA

KATHRYNA. MILLER*

(StanfordUniversity)

... It is not permittedfor a Muslim to keep company with onewho engages in the sinful activities of drinkingwine, commit-

ting adultery,or other sinful acts. How much the more so is itnot permittedto live with one who does not believe in Godand tells lies about the Prophet?

Al-Haffir (d. 811/1408)

AbstractWhenChristian orces conquered he entireeasternregions (sharqal-Andalus)of theIberianpeninsula in the thirteenthcentury,a large populationof Muslims became

subject to Christian rule. Now known as Mudejars, these Muslims continued to

practicetheirreligion and regulate their communitiesaccordingto Islamic law, buttheir residence in ddr al-Harb (abode of war) became the subjectof divided legaldiscourse among Maliki jurists. Some of the controversies which surroundeda

Mudejar'sobligation to emigrate to Islamic lands arepreserved nfatwas issued byjurists in Granada,the Maghrib, and Ifriqiya. The aim of this essay is to presenttwo previouslyunknownfatwds, issued by al-Haffarand al-Mawwaq, that addresstwo particularaspects of the Mudejar predicament: he validity of saddq contractsauthenticatedby Mudejar udges and the obligations of Muslims to theirMudejarfamilies and communitiesliving under Christianrule.

Introduction

IN HIS ARTICLE "ISLAMIC LAW AND MUSLIM MINORITIES," Khaled

Abou El Fadl undertook the formidable task of analyzing the juristicdiscourse on Muslim minorities living in non-Muslim lands.1 He

* I would like to thank Asma Afsaruddin, Philippe Buc, Ahmad Dallal, Li

Guo, Regina Marler, and Howard Miller for their helpful comments on earlierdrafts.My special thanks to the Executive Editors of Islamic Law and Society, whoshared with me their critical insights and helped shapethis essay.

1 Khaled Abou El Fadl, "Islamic Law and Muslim Minorities: The JuristicDiscourse on Muslim Minorities from the Second/Eighth to the Eleventh/Seven-teenth Centuries," slamic Law and Society, 1:2 (1994), 163. This articleprovidesan excellent overview of Hanafi,Maliki, Shafi'i, and Hanbali views on the issue of

Muslims living in non-Muslimterritory.

Islamic Law and Society7,2Brill, Leiden, 2000



THE OBLIGATIONTO EMIGRATETO ISLAMICTERRITORY 257

presents a masterly comparative survey of the jurists' debates over the

ethical and legal principles that should guide the behavior of these

Muslims and demonstrates how the positions of the legal scholars

gradually became more entrenched. Maliki jurists, in particular,came to

adopt a rigid stance, deploring that Muslims subject to non-Muslim

laws could not "manifest their religion."2 Regarding a famously

intransigentfatwd by al-Wansharisi, Abou El Fadl remarks: "doctrinal

problems combine with social, political, and cultural considerations to

produce a resounding condemnation of Muslims who accepted

Mudejar status in al-Andalus."3

One of the most significant of the historical circumstances to which

Abou El Fadl refers was the Christian conquest of Muslim lands in the

Iberian Peninsula. In the eleventh and twelfth centuries, Christian

forces had advanced southward to capture central regions in Spain,

causing considerable upheaval among Andalusian Muslims. By the

thirteenth century, a large population of Muslims found themselves

subordinated to Christian rule. Christians had absorbed the entire

eastern territory of what had been Sharq al-Andalus, and Muslims

either emigrated to ddr al-Isldm or remained behind as Christian sub-

jects-allowed to practice their religion but obligated to obey restrictive

laws as stipulated in treaties of surrender. The Muslim minorities who

continued to reside in Christian territorywere referred to as ahl al-dajn,or the people of submission, by their coreligionaries in Granada, the

Maghrib and Ifriqiya.4Indeed, the Maliki jurists' reaction to what they

perceived as a reluctance on the part of these Mudejars to extricate

themselves from the chains of infidel bondage was, at times, absolute

and uncompromising. The prominent Fasi jurist, al-Wansharisi, for

2 Abou El Fadl, "Islamic Law and Muslim Minorities," 157. As Abou El Fadl

points out, jurists did not elaborate on what they meant by the phrase "able tomanifest or practice religion." Whether they referred to acts of worship or the

capacity to govern theirminoritycommunitiesby Shari'a and the laws of Islam intheir totality is unclear. Mudejars, in seeking clarification of their status, oftendemonstrated hat they could, in fact, "manifesttheirreligion." This, however, didnot necessarilylead to thejurists' condoningtheir residencein Christian erritory.

3 Abou El Fadl, "Islamic Law and Muslim Minorities," 154.4 The termMudejarrefers to the Muslim minoritycommunities underChristian

rule from the thirteenth entury through he early sixteenthcentury,when they were

forced to convert to Christianity(these converts, called Moriscos, were ultimatelyexpelled in the seventeenth century).According to GerardWiegers in his IslamicLiterature n SpanishandAljamiado: Yvaof Segovia (fl.1450), his AntecedentsandSuccessors (Leiden, 1994), 3, the termMudejar is commonly considered to bederived from the passive participleof the second stemof the root (mudajjan),or the

passive of the eighthstem (muddajan).ContemporaryArabic sources never use this

particular ormandrefer to the ahl al-dajnor simply al-dajn.



KATHRYN A. MILLER

example, declared that a Muslim's willing residence in Christian land

was "manifest proof of his vile and base spirit," and that "this chosen

course will cause him much frustration and disgrace."5 Writing in the

late fifteenth century, during a period when Christian-Muslim relations

were particularly tense, al-Wansharisi cogently represents the rigorwith which many Maliki scholars condemned Muslims who chose not

to emigrate.

Rigorism was not the only option, however, and some Maliki juristswere willing to entertain the possibility that Mudejars had sufficient

reason, even obligation, to reside in ddr al-Harb (abode of war).6While al-Wansharisi stands as the most prolific and well-known writer

on the Mudejar situation in the fifteenth century, his opinion represents

only one extreme in a continuum of rulings on the Mudejar question.P.S. Van Koningsveld and Gerard Wiegers have recently uncovered

further documents pertaining to Muslim minorities living in Christian

Spain. Among these, a fatwa attributed to Ibn Rabi' (d. 719/1320)corroborates historians' previous impressions that many Maliki juristsdenounced Muslims who were living under Christian rule.7 Yet Van

Koningsveld and Wiegers also unearthed a very differentfatwa. Issued

by four judges in Cairo, this ruling assessed the Mudejar predicamentwith unexpected forbearance. The four judges, representing the Hanafi,

Shafi'i, H.anbali, and Maliki schools of thought, responded to several

questions pertaining to the Mudejars' duty to emigrate to ddr al-lsldm

and the specific circumstances that might justify a Muslim's continued

residence in Christian lands. In each case, the jurists countenanced

deferment of emigration from, or re-entry into, ddr al-Harb.8

5 Ahmad al-Wansharisi (d.1508), Kitab al-Mi'ydr al-mu'rib wa'l-jdmi' al-

mughrib 'an fatdwi ahl Ifriqiya wa'l-Andalus wa'l-Maghrib, 13 vols. (Rabat:Ministryof Cultureand Religious Affairs, 1981-83), vol. 2, 131. The Mi'ydr is acollection of approximately 6,000 fatwds issued by Maliki muftis living in al-Andalus, al-Maghrib, and Ifriqiya in the period between the late tenth and earlysixteenthcenturies.

6 Van Koningsveldand Wiegers posited a typology forjuristicdiscourseon the

Mudejars, dividing the writings of Muslim legal scholars into two distinct

approaches:a "pragmatic ine" and a "hard ine." See P.S. Van Koningsveld andG.A. Wiegers, "The Islamic Statuteof the Mudejars n the Lightof a New Source,"Al-Qantara17 (1996), 29.

7 P.S. Van Koningsveldand G.A. Wiegers, "TheIslamic Statute,"19-58.8 P.S. Van Koningsveld and G.A. Wiegers, "Islam in Spain during the EarlySixteenth Century: the Views of the Four Chief Judges in Cairo (Introduction,Translation,and Arabic Text," in Orientations (Poetry, Politics and Polemics:Cultural Transfer between the Iberian Peninsula and North Africa), ed. Otto

Zwartjes,Geert Jan van Gelder and Ed de Moor (Amsterdam:Rodopi, 1996), 133-52.

258



THE OBLIGATIONTO EMIGRATETOISLAMICTERRITORY 259

The aim of this essay is to present for the first time twofatwds which

likewise reflect the range of reactions articulated by Maliki jurists on

the Mudejar predicament. In an anonymous manuscript located in the

Biblioteca Nacional in Madrid, the author discovered a compilation of

fatwcs, two of which addressed the predicament of Muslims living in

Christian territory.9 The first fatwd was issued at the end of the

fourteenth century by al-Haffir (d.811/1408), a mufti in Granada-bythen the sole remaining Muslim kingdom on the Iberian peninsula.10The secondfatwd was issued by al-Mawwaq (d.872/1492), chief qadiof Granada when the Christians conquered the city in 1492." In what

follows, I discuss each muftt's ruling separately and assess his positionwithin the framework of the Maliki discourse on Mudejars. I first

review the obstacles that prevented many Mudejars from emigrating to

Islamic lands and the extent to which they communicated these diffi-

culties to the muftis in dcr al-Isldm. Second, I examine thefatwas of al-

Haffar and al-Mawwaq and assess how these two jurists' familiaritywith Mudejar life may have influenced their legal reasoning. We know

that al-Haffar maintained contact with the Mudejars, sending them

legal writings and responding to their queries on Islamic practices. Did

this affect his judgment or mitigate his disapproval of Muslims living in

Christian territory?The later jurist, al-Mawwaq, happened to be chief

qddl of Granada at the very moment when Christians were besiegingthe small country. Thus, he actually faced the prospect of becoming a

"Mudejar"himself. Did this lead him to a more conciliatory position?

Or did his position of authority and the esteem in which he was held byhis contemporaries move him to stand firm against co-existence with

Christians?

Historical Context

During the first decades after the Christian annexation of Sharq al-

Andalus, those Muslims who could (especially the Andalusian elite)

9 The manuscript(BN Madrid Ms. 5324), written in Maghribi script, consistsof 168 folios. The text does not include a colophon, and no date or author ismentioned, although a number of the muftis cited lived in Granadaduring thefourteenthand fifteenth centuries. The two fatwds by al-Haffar and al-Mawwaq

treated here are not included in al-Wansharisi's famous compilation, the Mi'ydr,although a numberof other atwds issued by these two jurists can be found there.Al-Wansharisimay not have had access to these twofatwcs, but it is interestingtonote thatthefatwd issued by 'Abd Allah al-'Abdisi, which rules more leniently onthe status of the Mudejars, s likewise not to be found in the Mi'ydr.

10 BN MadridMs. 5324 (fols. 47v-48v).11 BN MadridMs. 5324 (fols. 135v-136r).



KATHRYNA. MILLER

emigrated o the Maghribor to the southernMuslimstate of Granada.

Shortlyafterthe conquestof Sharq al-Andalus,in fact, the Almohad

Caliphal-Rashid(r. 1232-1242) sent a letter to the Muslims of Valen-cia declaringthathe would guarantee supportto any who emigratedfrom Christian erritory.Upon their arrival n the Maghrib,he would

grant heseMuslimsprotectionand a place to live, "ahomewhereyoushall live in the manner o which you were accustomedpreviously."12Mudejars ontinued o emigrate o daral-lsldmafter the initialexodus,but theirnumbersdecreasedsignificantly.These emigrantssoughtto

escape Christianoppression,or simplyto practicetheirreligionin thefull securityof an Islamicsociety.

In decidingwhether to emigrateto dar al-Islim, Mudejarshad to

consider the prospectof leavingbehindfamily members, heirhomes,and their ivelihoods.Moreover, raveling o Muslimterritorywas not a

simple act, even for those willing to breakaway from strongties totheir communities in Christian Iberia.13One obvious deterrent to

emigrationwas the difficulty thatMudejars ypicallyencounteredonthe journey to ddr al-Isldm.14During those periods when Christianauthoritiesrestrictedmobility, Mudejarswere harassedand heavilymonitored,and,especiallywhen officials actuallyclosed the borders,Muslimsattempting o cross into Islamic territory iskedenslavementandseverepenalties.15 veryturn n theroad to ddral-lslamseemedto

12 See Emilio Molina L6pez, "Dos importantes privilegios a los emigrados

Andalusies en el Norte de Africa en el siglo XIII, contenidos en el Kitdb Zawchiral-Fikar de Muhammad b. al-Murabit,"in Cuadernos de Historia del Islam 9(1978-79), 5-28.

13 I have tried to show elsewhere that a communitarianMudejar identity andstiff resistanceto Christianoppressionhad developed over the centuriesof Muslimminority life in Christian Iberia. See Kathryn A. Miller, "Guardiansof Islam:Muslim Communities in Medieval Aragon," Ph.D. dissertation,Yale University,1998, as well as MarkMeyerson, Muslims of Valencia in the Age of Fernando andIsabel: BetweenCoexistence and Crusade(Berkeley: Universityof CaliforniaPress,1991), 257, which shows that 'asabiyya (group solidarity), in particular,played arole in the Mudejars'sustainingtraditionalsocial structuresand practices.See alsoDavid Nirenberg,Communitiesof Violence: Persecution of Minorities in the MiddleAges (Princeton:PrincetonUniversity Press, 1996) for another nterpretation f theconstructionof community dentity.

14 The royal registersof the Crownof Aragon, for instance,document the day-to-day pressuresimposed upon the Mudejarsby their host society. Records of thefines and punishments nflicted on the minoritycommunities,and official decrees

restrictingMudejarmobilitycan be consultedin order to reconstruct hese Muslims'freedom, or lack thereof, to travel within Christian Iberia and across the border toddral-Isldm.

15 The privileges providedfor in the reconquesttreatiesin the thirteenth enturygave Mudejars the right to travel back and forth to Granada and the Maghrib,although these rightswere gradually rescinded over the next century.MartinI theHumane in 1392, and again in 1408, forbade any Mudejarto emigrate from the

260



THEOBLIGATIONTO EMIGRATETO ISLAMICTERRITORY 261

be hedged with prohibitions and checkpoints, an elaborate administra-

tive structurewhich Christian rulerswere anxious to maintain, since the

royal treasury stood to benefit from it. Because of this policing

operation, a Mudejar who tried to travel to ddr al-lsldm without

permission, or without purchasing a travel license, took a considerable

risk. He could be fined as much as four times the amount of the license

if he was apprehended on the road without one. In southern provincesclose to the Granadan border, any wandering Mudejar who could not

offer proof that he lived in the region was arrested.16

Financial considerations also weighed heavily in a Mudejar'sdecision to emigrate. Even when Christian officials permittedMudejarsto freely cross the border into Granada or board a ship from eastern

ports to the Maghrib, Muslims were compelled to purchase a license in

order to leave Christian lands. Mudejars must also have harbored

anxieties about how they would support their families in dcr al-Isldm.

Depending on the savings of an individual Mudejar-and the majorityof these Muslims were of modest means-he might be unable to afford

the expense of the journey for his entire family. If the cost of familyresettlement was prohibitive, were Mudejars morally bound to emigrate

individually?Even Mudejars who had both the material means and permission

from Christian officials to emigrate often chose to stay. It is possiblethat they wished to help other Mudejars. Christian sources record how

necessity compelled some Mudejars in servitude to Christians to

circulate through Mudejar communities in the regions of Valencia and

kingdom of Valencia to Muslim lands or elsewhere outside of the kingdom. Thisedict was renewedintermittently hroughout he century (e.g., by Alfonso V in 1438and again in 1454). Royal officials-not to mention local lords-could not afforda mass emigrationof Mudejars n the fifteenth century.Althoughthe demographicbalanceof Mudejarsand Christianshadleveled off comparedto previous centuries,when Mudejarsoften had outnumberedChristians,losing the "royal treasure"toddr al-lsldm, or lords losing their vassals, was a danger that the Christians

actively worked to avoid.16 Spanish authorities called these people "descaminats," roughly "footloose

wanderers."Mudejarswere required o buy the rightto travelto Muslim lands, andnumerouspetitionssurvivein the royal archives for such documentsenablingtravelas well as penaltyfines for those Mudejarscaughtwithout them. The departure axfrom easternportswas respectivelyreferred o as dret deporta in Barcelona, exida

de sarrahins in Mallorca and delmaments de sarrahins in Valencia. See AndresDiaz Borras,"Laparadojade la emigracion moraen Valencia duranteel siglo XV.

ExpatriacionMusulmanaen Epoca de HonoratMercader 1467-1481)," Cuadernosde EstudiosMedievales, Ciencias TechnicasHistoricas, 16 (Granada, 1991) 37-58;Manuel RuzafaGarcia,"La Fronterade Valencia con Granada:La Ruta Terrestre(1380-1440)," in Actas del V Coloquio Internacional de Historia Medieval deAndalucia(1992), 659-72; andMeyerson,Muslimsof Valencia, 259-60.



KATHRYNA. MILLER

Aragon, petitioning their fellow Muslims for funds to free themselves

or members of their family.17 Muslim captives of Maghribi origin

recently freed in Christian Iberia and wanting to returnto dcr al-lsldm

likewise depended on the generosity of Mudejars to fund their journeyhome. Again and again Mudejar communities marshalled their re-

sources to aid fellow Muslims.18 Albeit sparse, the existing Mudejarsources document how communities exerted pressure on their members

to donate the money needed to assist other Mudejars who were

suffering from servitude and poverty. Considering the immediacy of

these needs, the economic strain on Mudejars who were better-off

financially, and the moral significance Mudejars attributed to such

charitable acts (sadaqdt), it is not unreasonable to imagine that many

Mudejars may have chosen to spend their limited resources in helping

needy local brethren. Rather than emigrate to dar al-Islam, theychanneled their funds into local forms of resistance against Christian

oppression.Elite Mudejars may have had yet other motives, consonant with the

perceived importance of their function in the Mudejar communities.

Both Christian and Mudejar materials reveal that Mudejar jurists

(faqihs) regulated the practice of Islamic law within Mudejar communi-

ties. Christian officials permittedthem to supervise and adjudicate legalaffairs among the Muslims, and, as a consequence, faqihs worked

diligently to inform their communities of the existing laws and to

educate themselves, especially in Maliki jurisprudence.19 Thesefaqihssometimes traveled to ddr al-Isldm to consult legal authorities and to

collect fiqh and watha'iq manuals, returning to Christian territory to

copy and disseminate these legal texts. The ability of the Mudejarsto "manifest their religion" was in large part determined by the activityof these religious scholars who circulated amongst the Mudejar

17 It was very easy for Muslimvassals to becomeenslavedby theirlords,either hrough enal ervituderthrough contractsf servitude"cartadecativeri)drawnupbetween ordsandMudejarsntiloutstandingebtswerepaid.SeeMarkMeyerson, Slavery nd he SocialOrder:MudejarsndChristiansn theKingdomof Valencia,"MedievalEncounters (1995),159-60,on seigneurs'manipulationsof Mudejars'ibertiesand the manifoldways in whichthey mightrender hemdependentnd mmobilized.

18Meyersonexamines the plight of Valencia's Mudejarcaptives in his"Slavery ndSolidarity:Mudejars ndForeignMuslimCaptivesn theKingdom

of Valencia,"MedievalEncounters:2(1996),1-58.SeealsoMiller,"GuardiansfIslam", 09-23, orAragoneseMuslims' fforts o free heir oreligionaries.

19 See Miller, "Guardians f Islam",85-118, for a reconstruction f thescholarly ctivitiesoffaqihs inAragonandtheir ravels o Muslimands o collectArabic exts.

262




communities. When faced with Maliki jurists demandingthat theyabandon their self-appointed tasks as "guardiansof the law," the

Mudejarfaqlhsmusthave felt deeplyambivalent.To complicatematters,Christian ources disclose thatMudejarsdid

travelout of Christian beriafor purposesof trade,to perform he hajj

(pilgrimage),or to conduct businessor family affairsin ddr al-Isldm.

Why these travelersdid not choose to stay abroadhas as muchto do

with the individualresponsibilities hat drewthembackto theirMude-

jar communitiesas it does with the penaltiesChristian tatesimposedon Mudejarswhen individual travelersfailed to return.Frequently,Christianofficials requiredMudejars raveling o Islamic landsto signa guarantee,a promisorydeposit,to discouragethemfromdisappear-ing. If the Mudejars did not return, families and relatives wereburdenedwith what was oftena hefty payment.20Whilemanytravelersmust have been temptedto heed the injunctionof Malikijurists andremainabroad, he prospectof impoverishing heir families musthave

beena powerfuldeterrent.

Such,then,were the dilemmasof both theMudejarsandtheMaliki

jurists who were familiarwith their concerns:ShouldMudejaremi-

grants eave theirfamiliesbehind?ShouldMudejars inancetheirown

emigrationrather hanhelpingtheircoreligionarieswho were in need?

Shouldeducatedfaqihs eave Christian ands even if theycouldinstruct

Mudejarcommunities in the ways of Islam? Because few sourcessurviveto documentthe Mudejarperspectiveon these dilemmas,we

may never know how the Mudejarsresolved these conflicts amongstthemselves. These Muslims made personal decisions about the

sacrifices heywerewillingto make n order ojoin theircoreligionariesin ddral-Isldm.How they felt aboutleaving family membersbehind,whetherthey regarded hemselves as sinnersfor not emigrating,the

anxietiestheymayhave harbored t theprospectof resettling n ddr al-Islamall factored nto the choice theyhadto make-whether to stayor

go.We can turn,however, to the communications hatMudejarshad

with jurists in ddr al-Islam and to thefatwd literature o learn moreaboutthe specific issues thatMudejars ubmitted o the assessmentofthe muftls in dar al-lsldm. Severalfatwas that have survived, for

instance,demonstrate hatMudejarsexpressedtheiranxietyaboutthe

20 For one instance when a Mudejarperformingthe hajj failed to return,see

Kathryn A. Miller, "Business with the Infidel," Western French HistoricalAssociation Conference(Monterey, 1999).



KATHRYN .MILLER

financial sacrifices that emigration required of them.21 In a question

posed to four Cairo judges, the mustafti (petitioner) inquired: "Should

[a Muslim living in Christian territory]spend all his capital or a certain

amount of it in order to emigrate?"22Al-Wansharisi, in fact, was asked

by recent emigrants to the Maghrib whether they might be permitted to

return to Christian Spain because they could not find adequate means

to support themselves in ddr al-Isldm.23 Some of these migrants even

claimed that the land of the infidel was better than the land of Islam.24

Mudejars also sought advice on the status of theirfaqihs. They queriedwhether educated Mudejars should leave Christian lands even if they

might better serve the cause of their faith by instructing their com-

munities in the ways of Islam. One Mudejar asked the Cairo judgeswhether religious scholars could "postpone emigration... in order to

preserve the religious doctrines of the [Mudejars] and to strengthentheir religion."25 Similarly, al-Wansharisi was asked by a recent

emigrant-afaqlh who specialized in both Islamic and Christian law-

whether it was permissible to return to ddr al-Harb with the express

21Thefatwds pertainingto the Mudejarstend to have a shortand perfunctory

istifta' (request submittedto a mufti) and a lengthy and detailedjawdb (mufti'sresponse).Conspicuouslyabsentin those istifta'which survive, however, is specificinformation on the nature of the hardships or the financial sacrifices that theMudejarswould have to make. In contrast,see David Powers, "Kadijustizor Qadi-Justice? A PaternityDispute from Fourteenth-CenturyMorocco," in Islamic Lawand Society 1:3 (1994), 332-66, for a particularly rich example of a well-

documentedistiftd'.22 VanKoningsveld ndWiegers,"Islamn Spainduring heEarlySixteenthCentury,"139. When muftfswrite theirfatwas, they do not necessarily include allof the details of issues posed to them orally by the mustafti. The omission of suchcultural context (that historians so value) is unfortunate,as it would be useful toknow specific details of the costs of emigration, the substance of a Mudejar's"capital," or even any personal misgivings felt by a Mudejar in liquidating hisassets for thejourneyto dar al-Islam.

23 Mi'ydr, vol. 2, 131. Although the petitioners may have attempted tostrengthen heircase by relatingthe economic circumstancesmotivatingdesire to re-enter ddr al-Harb, al-Wansharisi's written summaryof the istiftd' offers only the"facts"of the case thathe deemed necessaryfor him to render udgment.

24 Abou El Fadl, "Islamic Law and Muslim Minorities," 154-56. It must beremembered that the jawdb, like the istifta', is not always transparentas ahistorical source. The jawdb privileges the muftt's point of view, and thus thesocio-economic conditions that may have led the Mudejar mustafti to petitionthatmufti are either included selectively or not at all. Being a pressing issue, open at

many times to interpretation, the Mudejar dilemma brought out the rhetoricalresourcesof Malikijurists,who cited legal principles,bolstered theirpositionswithsometimes inaccuratedetails of Mudejar ife, andfreely attackeddissentingviews.See, e.g., Abou El Fadl, "Islamic Law and Muslim Minorities," 154-55, on al-Wansharisi's shifts in tone.

25 P.S. Van Koningsveld and G.A. Wiegers, "Islam in Spain during the EarlySixteenthCentury,"139.

264




aim of helping the Mudejars protect themselves against illegal confisca-

tion of their property.26To admit that Mudejars might have other obligations, either religious

or legal, that conflicted with the injunction to emigrate was not

unproblematic for the Maliki jurists. A mufti's jawib (response) to

Mudejar concerns might communicate a variety of reactions. It was

sometimes perfunctory, as we shall see in the case of al-Haffair.More

often than not, however, it was charged with emotion as to how the

jurist in question felt about Christians and Muslims living side by side,

whether he accepted Mudejars as Muslims, and whether he regardedthe legal activities of the Mudejars as authoritative. Maliki juristsdebated such issues acrimoniously, and we learn that they were

frustrated by the lack of legal precedent that would help them resolve

these dilemmas. Ibn al-'Arabi (d. 543/1148), for instance, complainedthat the Mudejar predicament was "an obstinate issue that has not been

dealt with systematically by Maliki jurists."27 According to al-Wan-

sharisi, legal scholars had not applied themselves to the task of ijtihddon this issue, and there was, therefore, little precedent they might draw

upon to address a novel question.28

Many Muslim authorities reacted to Mudejar circumstances with

what may seem unreasonable severity, sounding a categorical warningthat it was reprehensible for Muslims voluntarily to endure the

"ignominy" of minority life. Other muftfs, however, took into account

the conditions under which lived the tens of thousands of Muslims in

Christian Iberia. Even if they were reluctant to endorse any residence inddr al-Harb, theirfatwds acknowledged, and responded, to the difficult

decisions that Mudejars faced (or claimed to face) when they

approached the muftfs. Thefatwds of al-Haffar and al-Mawwaq, for

instance, specifically address the dilemma of Muslims divided by the

Christian-Muslim border. Al-Haffar was asked whether a Muslim

should leave his spouse behind in Christian territory and emigrate to

Islamic lands. Al-Mawwaq was asked whether a Muslim living in

Islamic territory was forbidden to visit his Mudejar relatives. While

many of their views were conventional, especially their firm stance on a

Muslim's duty to emigrate, al-Haffar and al-Mawwaq's contributions

to the fourteenth- and fifteenth-century debates point to the predicament

26 Mi'ydr, vol. 2, 137. And see Abou El Fadl,"IslamicLaw and MuslimMinorities," 55, for a discussionof the social andpoliticalconsiderationshatinfluenced l-Wansharisi'sesponse.

27Miydr, vol. 2, 128.

28 Ibid., 125.



KATHRYNA. MILLER

thatMalikijuristsfaced:what is to be done when a Muslim's obliga-tion to his family and communityconflicts with a Muslim's duty to

emigrate?

Al-Haffar

Either n thelate fourteenth enturyorearlypartof the fifteenthcentury,a Mudejar ouplehad a disagreement.One of themwantedto emigrate,while the otherrefused.Opting o settlethe matteraccording o Islamic

law, thecouple'spredicament eachedMuhammad . 'All al-Ansarial-Haffar n Granada.29he muftiwas asked torespond o two questions,the first of which was whetheremigration o dcr al-Isldmwas, in fact,

obligatory.The second,morecomplicated,questiondirectlyconcernedthe Mudejarcouple's dilemma:Was it permissible or the husbandorwife to emigratewithout the other?Moreover, f the husbandowed hiswife saddq (dower), must he fulfill this obligation even if his wifechose to remain behind in Christian erritory?And, conversely, if thewife emigrated ndependentlyof herhusband,was the husband egallyboundto payhis wife's saddq?

Al-Haffar's nitial answerconveyed uncompromisinglyhatMude-

jars were not allowed to stay in Christian ands if they could help it.Not only did theProphetdisassociatehimself from Muslimswho livedwith infidels, al-Haffarcontended,but,on a practical evel, a Muslimwould expose himself to corruptionby living in close contact with

Christians. He refrainedfrom elaboratingon the precise hazards ofMuslim and Christian coexistence, simply saying that "It is not

permitted or a Muslimto keep companywith one who engages in thesinfulactivitiesof drinkingwine, committingadultery,or other sinfulacts. How muchthe more so is it not permitted o live with one whodoes notbelieve in God andtells lies abouttheProphet?" ome earlier

jurists had held the view that Muslims might stay in ddr al-Harb iftheirmotive was to convert the infidel.30Significantly,however, al-Haffar rejected this as a justification for Muslims to live among

29 Al-Haffar (d. 811/1408). For al-Haffar'sbiography, see Ahmad Baba, Naylal-ibtihdjbi-tatriz al-dibdj (Cairo: n.p., 1932), 282 and Jos6 L6pez Ortiz,"Fatwas

Granadinasde los siglos XIV y XV,"Al-Andalus VI (1941), 86.30 Ibn 'Abd al-Barr al-Qurtubi (d. 463/1071), a Maliki jurist, wrote that "aMuslim may reside there temporarily f he or she is safe and hopes to prevail overthe non-believers."See Yusuf b. 'Abd al-Barr al-Qurtubi,al-Kdfifi Fiqh Ahl al-Madina al-Mdliki (Beirut: Dar al-Kutubal-'Ilmiyya, 1987), 210. Al-Mawardi (d.450/1058), a Shafi'i jurist, held the same position. For both these references seeAbou El Fadl, "Islamic Law and Muslim Minorities,"149-50.

266




Christians, arguing that Muslims did "not have the capacity to change

[this lack of belief (kufr)]." Perhaps al-Haffir was familiar with the

Christian law that forbade Muslim attempts to convert non-Muslims,

an act that was punishable by death. It is also possible that al-Haffar

concurred with the other Muslim jurists who deemed it dangerous for

Mudejars to engage Christians in theological debate, especially if (as

many jurists believed) these Mudejars lacked education and sophistica-

tion.31On the other hand, al-Haffir may have simply gazed at the sheer

number of Christians that surrounded the Mudejar communities and

judged Muslim proselytism in Christian Iberia a lost cause.

In unequivocally endorsing emigration, al-Haffir thus condoned the

departure to ddr al-Isldm of one spouse without the other. Yet, while

emigration was preferrable to living side-by-side with Christians and

exposing oneself to corruption, al-Haffar clearly did not elevate it to a

point at which it would abrogate other Islamic laws.32 After cautioning

that "religious interests must prevail over this-worldly interests," al-

Haffar hastened to add that the act of emigration did not absolve a

Mudejar of his legal responsibilities, and he insisted that the saddq be

paid by the husband, regardless of whether it was the husband or wife

who emigrated to ddr al-Isldm.33 While Mudejars were called to

emigrate, they still belonged to communities that had to live according

to Islamic law. In other words, a husband could not plead a "higher

calling" as pretext to renege on his duty to pay his wife's saddq.

Significantly, if the wife chose not to emigrate, she would not be denied

her legal rights as a married Muslim.34

31 Muslims, particularly in al-Andalus and the Maghrib, harbored muchreservation towards contaminatedknowledge and public exchange with Christians.They were waryof sharing heirscripturesandpreferrednot to debate in openforumif there was a possibilityof distortingIslamic beliefs. Ibn Rashiq (d. 674/1274-75),for example, criticized the polemical debates that had taken place between Mude-jars andseveral monksin thirteenth-centuryMurcia.He accused these Christiansofattempting to "attract weak minds." See GerardWiegers, Islamic Literature inSpanish & Aljamiado, 51 and F. de la Granja,"Una polemica religiosa en Murciaen tiemposde Alfonso el Sabio,"Al-AndalusXXXI (1966), 67.

32 See Abou El Fadl's discussion on the applicationof Islamic law to Muslim

minoritycommunities,"IslamicLaw andMuslim Minorities," 172-81.33 It is interestingto note that both al-Haffar and al-Mawwaq employ the term

maslaha (public interest)to emphasize the obligationsMuslims have towards their

communities.34 Christian documents show that Mudejarqddis arbitratedcountless numberof saddq disputes locally in Christian Iberia. Because al-Haffar's fatwd wasfundamentallya conflict involving a Muslim's duty to emigrate from ddr al-Harb,however, the couple's choice to appeal to an expert in dar al-Isldm (where thehusbandmight have sought legal shelter) may have made good sense, given thatthe issue at stake was translocal. It is possible that otherjurists in ddr al-Islam



KATHRYNA. MILLER

That al-Haffar supported the Mudejar who wanted to leave his or

her spouse behind, but took care not to endorse reckless abandonment

or disregard of Islamic law, is important on several levels. Most

significantly, al-Haffar's insistence on the validity of the wife's saddqcontract reflects his position on the legal rights and responsibilities of

Mudejars. 'Adala, the state of moral probity, qualified Muslims to

perform certain legal acts, and if a Muslim's 'adala was impugned, as

it was by al-Wansharisin his condemnationof Mudejars n general,he was denied the capacity to act as a witness, judge or jurist. Al-

Haffir, however, dismissed the challenges to the binding nature of the

Mudejar saddq contract, as expressed in thefatwd. Although Mudejarsshowed poor judgment by remaining under Christian rule, theirjudges,in al-Haffar's opinion, issued legal documents that must be upheld.Even in a community subject to Christians, Mudejar contracts were

valid, and these Muslims were considered to be 'adil for the purpose of

giving testimony.35Al-Haffir thus departed from the juristic hard line that held that

documents authenticated by Mudejar judges were invalid and that the

Mudejarswere "libertines"whose "testimony and the like is not licit."36

These jurists insisted that the legal probity of a Mudejar qddi came

under suspicion on two counts. On the basis of his residence in a

Christian land, his legal reasoning was suspect, and on the basis of the

control that Christian rulers exercised over his office, his legal com-

petence was compromised. Ibn Rabi', for example, condemned these

Mudejar faqlhs because he felt that they should have known better

than to remain under Christian rule; he dismissed out of hand the

claims of these faqlhs that their motive in staying in Christian Iberia

was to strengthen Mudejar faith and to keep their communities

informed of Islamic principles.37 Ibn 'Arafa, a jurist in North Africa

(d. 803/1401), whose position was upheld by al-Wansharisi, warned

Muslims living in dar al-Islam that they "should... be on [their] guard

made themselves available or accessible to those Mudejars seeking arbitrationoncases thatinvolved "the border"betweenddr al-Isldmandddr al-Harb. Evidenceis

lacking, but there is no reason to think that al-Haff-ar's ontacts were exceptional,or that his willingness to arbitratea disputebetweenMudejarswas unprecedented.

35 It is interesting to note in this connection that the Sudanese Mahdi of the

nineteenth century ruled that if a woman stayed in Mahdist territorywhile herhusbandwas left behind in Turkish territory(the Ottomanshaving been declaredinfidels), the marriagecontractwas considered null and void. See A. Layish, "The

Legal Methodology of the Mahdi in the Sudan, 1881-1885: Issues in MarriageandDivorce," SudanicAfrica,8 (1997), 46.

36 Mi'ydr, vol. 2, 130.37 Van Koningsveldand Wiegers, "The Islamic Statute,"14.

268



THE OBLIGATIONTO EMIGRATETOISLAMICTERRITORY 269

against the documents of the Mudejar judges like the judges of the

Muslims of Valencia and Tortosa."38

Whetherfaqlhs, who supposedly knew better than to live subject to

Christian laws, should stay behind to enforce Islamic principles and

issue contracts was not uncontested, however.39 Abf Muhammad 'Abd

Allah al-'Abdusi (d. 847/1443) from Fez, for example, ruled on "a

document coming from the Christians, based on the testimony of the

believers residing in the country of the Christians (the Mudejars)."40 n

particular, the defendant wanted to know whether a contract under-

signed by a Mudejar was valid. Al-'Abdusi affirmed the legitimacy of

the Mudejar contract, saying that a Muslim's legal probity, his 'addla,

should not be impugned lightly and that he should always be given the

benefit of the doubt. The Cairo judges, representing all four schools of

Islamic law, likewise explicitly condoned the activities of Mudejar

faqihs. In fact, it was the Maliki jurist, from whom we might expect a

more conservative stance than the Hanbali, jHanafi, or Shafi'i judge,who ruled that the religious scholars are obliged to stay even "when

they know that their faith will [otherwise] fall into decay."41 Such

faqihs owed themselves to their community.In not condemning or dismissing the Mudejar who chose to stay, al-

Haffar took the pragmatic position that even in an inhospitable and

potentially corruptingenvironment Mudejars must continue to adhere to

the legal procedures that regulate Muslim communities. Disorder and

perhaps, even worse, subjugation to Christian laws and manners, must

be kept at bay. It would have been consistent with this position for al-Haffar to feel that Mudejarfaqihs should be well-versed in Islamic law,

and there is evidence that he helped them become so. A Mudejarmanu-

script preserved in the Biblioteca Nacional in Madrid (BN Madrid

4950) reveals that al-Haffar had more than once played the role of

38 Mi'yar, vol. 2, 133.39 For the four judges in Cairo, see Van Koningsveld and Wiegers, "Islam in

Spain duringthe Early SixteenthCentury,"141.40 For thisfatwd, see Abfu Isa Khidral-Wazzani al-Fgsi (d. 1342/1923), al-

Mi'ydr al-jadid al-mu'rib 'an fatdwd al-muta'akhkhirinmin 'ulama' al-Maghrib(Fes, 1328/1910), vol. 3, 22-23, and Ibn Hudhayl, L'Ornement des ames et ladevise des habitantsd'el Andalus (Paris 1936-39), vol. 2, 60-61 for a French trans-lation. I have located two earlier texts of thisfatwd in the nawdzil of the fifteenth-

century Granadan jurist, Ibn Tarkat (BN Madrid ms. 5135), as well as in ananonymous compilation of fatwas by another fifteenth-century Granadanjuristpreserved in the Escorial archive (Escorial ms. 1096). On this latter nawdzilcollection, see MohammadFadel, "Adjudication n the Maliki Madhhab: A Studyof Legal Process in Medieval Islamic Law",Ph.D. thesis, Chicago, 1995.

41 Van Koningsveld and Wiegers, "Islamin Spain during the Early Sixteenth

Century,"141.



KATHRYNA. MILLER

legal advisor and mufti to Mudejars who had traveled from Aragon to

Granada to consult him about Islamic legal issues.42 In a series of

twenty fatwds, he discussed issues ranging from 'ibaddt (acts of reli-

gious worship) to the permissibility of charging interest (ribh), knowinghis advice would be read, heeded, and disseminated among the

Mudejar communities.43His terse and direct narrative style reflects this

practical purpose. Mudejar envoys had expressly approached him for

counsel, and they returnedto their communities to copy and disseminate

his response.A Maliki mufti, then, could steadfastly endorse emigration, condemn

Muslim co-existence with Christians, and yet communicate with, and

offer support to the Mudejars. Consider the case of Ibn Miqlash who

lived in Oran at the end of the fourteenth century. A Mudejar emigratedto ddr al-Isldm and approached Ibn Miqlash to ask for forgivenessfor the many years he spent in ddr al-Harb. Like other jurists who

assumed an uncompromising stance, Ibn Miqlash felt that the Mudejarshad misplaced their priorities.44 Consequently, his fatwd advanced a

scathing condemnation of the Mudejars and the "ignominy" that theyallowed themselves to suffer. Ibn Miqlash insisted that

he who lives in Christian ands does not care for what is sacred....he

mingleswiththe infidelsin their eastsand celebrations.Withrespect oa Mudejar'swife, she is a slave to the Christianandsubjectsherselfto

42A qddi from Darocaand an imdm from Borja (in Aragon)originallyassembled he twentyquestionsand dispatched hreeMudejars o Granada o

deliver hemto al-Haffarn 794/1392.Thedates of issuanceof the atwas werenotably loseto thedateof thecopies(799/1397).See BN MadridMs.4950 (fols.232v-238r).

43 Otherfatwas wed to al-Haffarirculatedmong heMudejarommunities,whichmay ndicate hatMudejarspproachedimmore hanonce,thathisrulingswerepopular,or, as was oftenthe case, thatMudejars opiedanddisseminatedamong hemselvesegaltextsacquiredrom heirourneyso daral-Isldm.See,forexample,Escorial Arabic)MS. 993 for two atwds ssuedby al-Haffarndcopiedby theAragoneseaqih, Ibrahim l-Qalbi.Anotheratwd of al-Haffarwas trans-lated ntoCatalan n Valencia.See CarmenBarcel6Torres,Un TratadoCatalanMedieval de Derecho Islamico: el Llibre de la guna e xara dels moros (C6rdoba,1989), 58 (number220). This suggests use in non-Arabic-speakingMudejarcommunities.ortranslationsf Arabic exts ntoRomance orjuridicalpurposes,seeMiller,"Guardiansf Islam",115-18.

44 Ibn Miqlash's atwd is the only rulingfound to date on the subjectof

Mudejars esiding n Christianerritoryhat we can be certainwas in Mudejarpossession it is noteworthyhathis textwas copiedby the sameMudejarwhocopied hetwenty atwasof al-Haffar. ee footnote 2, above).Relatives f Mude-jars iving n IslamicandsandMudejarshemselves idapproachMaghribimuftisforrulingson whether t was licit to visit a relative n Christianerritory r forclarification f ambiguous istinctionshat slamic awmadebetweenddral-Harbandddral-Islam,but hesefatwds reof MaghribirGranadanrovenance.

270



THEOBLIGATIONTOEMIGRATETO ISLAMICTERRITORY 271

himeveryday...oh evil fortune! What is worse than one who does notguardwhat is sacred,his religionand his family.45

Ibn Miqlash lamented the Mudejars' incapacity to protect what was

sacred to Islam and maintained that emigration was the only means bywhich the Mudejars might redeem themselves. Yet he appended a list of

juridical texts to his fatwd that he intended to be carried back to the

Mudejars in Christian Iberia.46He explained that these legal questionsincluded "precise and detailed clarification," because Mudejars were

responsible for protecting themselves from ignorance of the law. In

spite of his pronouncements to the contrary, Ibn Miqlash acknowledgedthe Mudejars' needs and chose not to contribute further to their

isolation from ddr al-Isldm.

Despite placing emigration as the highest priority, both al-Haffar

and Ibn Miqlash obviously belonged among those jurists who felt that

the laws of Islam extended to all Muslims, wherever they lived. And

despite their firm stance against Mudejar residence in Christian terri-

tory, both muftis recognized the importance-perhaps even the duty-of maintaining contact with the Mudejars and supplying them with

texts so that they could better abide by the principles of Islamic law.

After all, thousands of Mudejars still remained under Christian control,

and they had to live as Muslims obedient to the law. The duty of al-

Haffar and Ibn Miqlash as muftis was as much to advise and commu-

nicate with Mudejars as it was to admonish them to abandon a situa-

tion of subjection to Christians. Whether other jurists in Granada and

the Maghrib also communicated with the Mudejars in such a manner is

probable, given the high number of legal texts Mudejars imported from

ddr al-lslam and that circulated among the Mudejar communities in

Aragon and Valencia.

Al-Mawwaq

The mufti Muhammad b. Yisuf b. Abi al-Qasim al-'Adari al-Mawwaqwas renowned in Granada for his integrity and legal expertise.47 He

45 My translationf BN MadridMs. 4950 (folio23 v). IbnMiqlash'sfatwdwas publishedwith a brief introduction y HossainBuzineb,"RespuestasdeJurisconsultos aghribiesn Tornoa la Inmigracione Musulmanes ispinicos,"

inHesperisTamudaXXVI-XXVII1988-89),53-66.Judging y the detailsof IbnMiqlash's esponse,heMudejarwho consulted improbablyevealedall sortsofsordiddetailsaboutMudejarife in Christianands.

46 See BN MadridMs.4950(folios229v and331r).Buzineb,n his"Respues-tas de JurisconsultosMaghribies,"oes not includeIbnMiqlash'sappendixofquestions irectedowards he 'ulama' f al-Andalus.

47 Al-Mawwaqd. 897/1492).Foral-Mawwaq's iography,ee AhmadBaba,



KATHRYNA. MILLER

was highly esteemed as a jurist and an eloquent preacher, and his con-

temporaries regarded him as saintly. Apparently, a group of Muslims,

perhaps qcdds seeking his counsel, approached him concerning a

Muslim in Granada who wanted to visit his parents in ddr al-Harb.

Al-Mawwaq, familiar with the charged discussions among jurists over

the status of the Mudejars (as will be discussed in more detail below),

offered his opinion as well as alternative interpretations on the issue of

Muslims traveling to ddr al-Harb.

Al-Mawwaq's interlocutors posed a series of questions: First, was it

obligatory, recommended, or permitted that the son visit his parents or

should he refrain from traveling to ddr al-Harb, even at the risk of

neglecting them? Second, if the mufti deemed that the son was obligedto visit his parents, might he take up residence there or must he return

immediately to dar al-lslam?48 Finally, al-Mawwaq was asked about

the permissibility of Mudejars living in dcr al-Harb in more generalterms: must Mudejars who own houses and property relinquish these

and emigrate, even if this would lead to begging for alms in dir al-

Isldm? Interestingly, he had been asked to present both sides of the

issue and to proffer textual evidence for his position.49 Al-Mawwaq

willingly complied and presented alternative perspectives in an

impressively unpolemical fashion.50

Like al-Haffar, al-Mawwaq did insist that emigration was a

Mudejar's highest duty. He took it as his first task to clearly conveythat the prospect of poverty in dazral-lslim was no reason to remain in

Nayl al-ibtihaj,324-35;GALS II, 375. His writingsnclude:al-Tajwa'l-iklil i-mukhtasarKhalil,ancommentaryn theMukhtasarKhalil;Sananal-Muhtadinimaqdmdtl-din(lithograph:ez 1314/1896),a mysticalcommentaryn Sura35,andvariousatwaspreservedn theMi'ydr.SeeLuis SecodeLucena,"LaEscuelade JuristasGranadinos n el Siglo XV," in Misceldneade EstudiosArabesyHebraicos eGranada,VIII-I 1959),17-19.

48 Fatwds thatmention he Mudejars regenerallynot grouped ogethernlegalcompilations. ather, epending nthespecificproblem tissue,theycan befoundwithinsectionsconcernedwithmarriageaw,commerce, urityaw,etc. Inthisparticularatwdof al-Mawwaq,hecontextn which t mightbeplaced s thatof birr al-wdlidaynfilialpietyto parents).Andalusiauthors reknown o havecomposedtexts on this subjectand it is possible (thoughfurtherresearch snecessaryo verifythis)thatal-Mawwaqs following heprecedent f a previousrulingon a son's filial pietyto his parentswhen theiractionscontradicteligiousobligations. ee, forexample,Abf Bakral-Turtishi'sd. 520/1126)Kitdbbirral-

wdlidayn, d.MuhammadAbdal-Hakim l-Qadi Beirut,1986).49 BN MadridMs. 5324(fol. 135v):"showus that ext f youcan orexplain tto us if it is basedon somethinglse."This indicates hat hemustaftismayhavebeen ocalfaqihsorqddis.

50 Othermuftis,especiallyal-Wansharisi nd IbnRabi',do cite views thatdissentfrom their own positionsbut in a notablypolemicaland inflammatorystyle.

272




Christian Iberia. In answering whether a Mudejar should sacrifice his

livelihood and financial security to emigrate, "even if this would lead to

his begging for alms," he cited the Prophet's companions. They had

been "supported by the alms of Muslims," and demonstrated in an

exemplary manner how the charity of the umma would ease the

Mudejars' transition to ddr al-Isldm. With regard to the son who

wanted to visit his Mudejar parents, al-Mawwaq stated plainly that if

they had the material means to leave Christian territory, or if their son

could finance their emigration, then there were no grounds for the

parents to stay or for their son to cross the border into ddr al-Harb to

visit them. Al-Mawwaq clarified that, in such an instance, emigrationwas incumbent upon the parents; it did not fall into the category of a

"preferrable"or "permissible" act. It was more importantfor the son to

obey the Creator than his parents, who were God's creatures: "No

obedience is owed to a created [human being] if [it entails] disobeyingthe Creator."

At this point in the text, al-Mawwaq refered to the contemporary

fatwd of Ibrahim al-Basti. This lost ruling was evidently more lenient

towards Mudejar residence in Christian lands.51 According to al-

Mawwaq, al-Basti had argued that Muslim presence in a Christian

land could conceivably lead to the strengthening of the faith in others.

Significantly, al-Basti observed that the Muslim who remains in Chris-

tian Iberia must be afaqlh of himself.52 In deciding whether to stay or

emigrate, a Mudejarmust weigh the harm that he might encounter and,

if necessary, must follow the lesser of two evils.53

51Al-Mawwaq cites al-Farajb. Ibrahimal-Basti. This mufti may be identified

as Abi 'Abd Allah Muhammadb. Abi Fadl b. Ibrahimal-Basti who was regardedhighly as a jurist in Granada and known to be involved in public polemic overcontroversial uridicalproblems.See al-Maqqari,Azhdral-riyd fi akhbdr'ydd, 3vols. (Cairo, 1358/1939), vol. I, 103, and Misceldnea de Estudios Arabes yHebraicos VIII (1959), 26-27. That there are few references to al-Basti's life andwork may be due, in part,to the fact that he did not emigrate to the Maghribafterthe ChristiansconqueredGranada. In contrast,his two Granadancontemporaries,Ahmad b. Dawuid al-Balawi and Ahmad al-Daqqin, both emigrated to the

Maghriband became well-known, figuring in the biographical manuals. See LuisSeco de Lucena,"LaEscuelade JuristasGranadinos," 6-28.

52 This could also be translatedas "by himself."53 Because Arabic texts do not include quotationmarks, it is not possible to

know definitively at this point whether it was al-Basti or al-Mawwaq who madethe comment that a Muslim entering ddr al-Harb must be "afaqih of himself."Eitheral-Basti's statement ends after "For it is God who is capable of giving himthis possibility,"which is followed by al-Mawwaq's rejoinder"likewiseby enteringddr al-Harb..."Or, alternatively, as I read it, al-Basti's interpretation ontinuesupto, and including, "if there are two harmful things that occur [then] in this, thesmallerwards off the bigger."






Iberia, and his word on the issue would have been influential.57 It was

al-Mawwaq's choice to offer these travelers moral guidance rather than

to prohibittheirjourneys categorically. He reminded these Muslims that

God would reward pious efforts, and ended hisfatwd with the reminder

that God sees everything andjudges accordingly.58

Conclusion

The current state of historiography does not allow us to reconstruct all

of the local and international forces that may have influenced each

jurist to rule and write as he did. However much they revered the

principle of objectivity, the Maliki jurists were, after all, eye-witnesses

of, and occasionally participants in, the treaties forged between therulers of Christian Iberia and the rulers of Granada. As Van Konings-veld and Wiegers have already pointed out, Ibn Rabi' and al-Wansha-

risi issued their fatwas during a low ebb in relations between Christian

and Muslim kingdoms.59 Shifts in Christian-Muslim relations, espe-

cially modifications in the treaties that affected laws of emigration,

clearly had an impact on the Mudejars' freedom and mobility, which in

itself may have engendered new legal consultations. Al-Haffar, for

instance, was active when a peace treaty was sealed between Martin I

and Granada's Sultan Muhammad VII in 1404. This treaty granted the

Mudejars the right to leave for ddr al-Isldm with their wives and

children.60 How many Mudejar families took advantage of this new

provision is difficult to estimate, but we can wonder whether the couplewho consulted al-Haffar were among those preparingto leave.

57 Muslims from ddr al-Isldm and Mudejarscrossed back and forth across theborder or a numberof reasons.See Meyerson,TheMuslimsof Valencia, 68-74 and258-59, for a discussion of family, commercial connections and travel betweenChristian Iberia and Granada. Intellectual contact may also be included amongMudejarmotives to travel to ddr al-lsldm (see above footnote 19). From the otherdirection, we have evidence that Muslim teachers traveled from Granada intoChristianSpain to teach Mudejars.See ARV: MR 9715 (fol. 39r-v), for example,where a GranadanMuslimjourneyedto Valencia to teachArabic in 1465.

58 Al-Wansharisiwas also asked by a Muslim whether it was permissible tocross the border into Christian territory. This Muslim was searching for a lostbrother;he also said that,as afaqih who specialized in both Islamic and Christianlaw, he could offer help to otherMuslims.With his counsel,Mudejarscould protectthemselvesagainstillegal confiscationof theirproperty.Al-Wansharisirejectedhis

plea. See Mi'yir, vol. 2, 137.59 Van KoningsveldandWiegers suggest the need for an intensiveexaminationof treatiesbetween Christian and Muslim rulers. As they point out, these treaties"areunlikely to have taken place without the priorconsultationand agreementofthe legal advisors of Muslimrulers."See their "TheIslamicStatute,"34-35.

60 Jose Maria MadurellMarimon,"Notas Documentales del Reino de Granada(1392-1499), Cuadernosde Estudias MedievalesII-III(Granada,1974-75), 238-39.



KATHRYN A. MILLER

Granada's ocal politicalcontextmay also have influenced hemuf-tis' views.61Whatvoices, forexample,were moreprominent mongtheGranadan cholars,in light of the threatposed by Christian nvaders?How supportivewere Granadan urists of the actions of their own

political leaders? Fatwas were a medium by which to express dis-

approval of local Muslim rulers, and, as a prominent jurist, al-

Mawwaqmadea strongstandagainstBoabdil's suspected complicitywith Christian eaders and his rebellionagainsthis father,SultanAbf

1-Hasan.Al-Mawwaq co-signed a fatwd that condemnedBoabdil's

actions,maintaining hat he hadrupturedhe Muslimcommunity.His

disloyalty had not only weakened the Granadanstate as its borderswere besieged by Christians,arguedal-Mawwiq, but had also under-

mined the authorityof the Sultanand the cohesiveness of the Muslim

community.62

Al-Mawwaq'sotherwritingsalso make clear his concern abouttherole of a Muslim leader to guide and protecthis community.In hisKitdbSananal-muhtadinfi maqcimdt l-din,he recountedan anecdote

concerning a fourteenth-centuryMuslim sheikh, a respected sufischolarliving in territoryconqueredby the Christians.63Al-Mawwaqdescribedhow the sheikh had continued to conducthis meetings in a

zawiya (meeting place for sufi scholars)afterthe Christianconquest,and had even permittedan interestedChristianofficial to join the

scholarlycircle, over the objectionsof the sheikh's students.Despitemurmurs of discontent, the sheikh maintained that the hospitalityextended to the Christianhad its purpose.Forsomewhat ater,when astudentsufferedan injusticeat the handsof the Christians, he sheikhwas able to convince the official to interveneon the student'sbehalf.

61Al-Wansharisi, although based in Fez, was conversant with the rulings of

jurists in Granada. He omitted, however, to include either al-Basti's or al-

Mawwaq's fatwds on the Mudejardilemma in the Mi'ydr, which is telling, giventhat he included other fatwds by al-Mawwaq. We do not know whether al-Wansharisi had access to these otherfatwds, but it is interesting to note that afatwd issued by 'Abd Allah al-'Abdfsi which, similar to al-Mawwaq and al-Basti's fatwds, rules more leniently on the status of the Mudejars,is likewise notto be found in the Mi'ydr. That Maghribi urists were critical of the ways in whichGranada'sleaders handledrelations with Christiansas well as Mudejarscould beone explanationof this omission, if it was indeed intentional.

62 Al-Mawwaq, along with other notable jurists in Granada, issued a fatwd

that addressedBoabdil's conductagainsthis father,Abii 1-Hasan.Thefatwd, dated1483, supported the sultan and is preserved in al-Wansharisi's Mi'ydr. SeeFernando de la Granja,"Condena de Boabdil por los Alfaqies de Granada,"Al-Andalus 35:2 (1970-71), 145-76.

63 Al-Mawwiq records what Ibn Siraj narratesabout the Sheikh al-Ziyat (d.728/1328) in Velez afterthe town was conqueredby the Christians.See Sanan al-

muhtadinfi maqdmdtal-din (lithograph:Fez 1314/1896).

276




This story points to the ambivalencethat Mudejarsfelt about inter-

actingwith Christians,but it also implies thatthe compromisesmade

by Mudejarsbecame less reprehensible f it allowed them to better

protect heircommunityromharm.

Just as the Mudejars were torn between commitment to their

communitiesivingunderChristian uleand theirreligiousobligation o

relocateto Islamiclands,al-Mawwaqhimself faced difficult decisions.

As an influentialfigure in Granada,he had to balance his role as a

legal scholarwithhis dutyto leadandpreservehis community.We can

not know all the complexitiesbehindthe actions andjuristicviews of

al-Mawwaqand the other muftis, nor should we oversimplify their

motivations.Yet it may not be purechancethat,as far as we can tell,

al-Mawwaqchose to stay in Granadaafter its fall to Christian orcesin 1492.Therelativeleniencyof hisfatwa suggeststhathe had a deep

understanding f the Mudejarcondition,an understandinghatmade

thischoice to remainunderChristian uleif notobviousat leastmorally

possible.64

64 AhmadBaba, n his Nayl al-ibtihdj, ecordsa posthumous ccountof al-Mawwaq's onfrontation ith Christianeadersupontheirarrivaln Granadan1492.See LuisSecodeLucena,"LaEscuelade JuristasGranadinos,"8.



KATHRYNA. MILLER

TRANSLATIONOF A FATWAOF MUHAMMADB. 'ALIAL-ANSARI AL-HAFFAR

BN MadridMs. 5324 (fols.47v-48v)

Fatwd of Muhammad . 'All al-Ansarial-Haffir,mayGod theexalted

helphim.

Praise be to God. My lord-may God be pleased with you-youranswer[is requested] oncerning heMudajjaltn esiding n the landof

theChristians ndlivingin their andamongthem.Is emigration to the land of Islam obligatory for them? And

concerning he two spouses:If one of themdesiresto emigrateand the

other refuses to do so, is it permissible for the one who desires to

emigrate to do so without the other?And if the wife is entitled to

somethingfrom her husband,namelyher dower (saddq), and she didnot agree with him in the matterof emigration,can he emigrateandleave herandnotgive herthis,or is thisnotpermitted ntil he gives her

what she is entitled o inrespectto him?Canshe exact from him [what

is] herright f she wants to emigrateandhe refuses to do so? Shouldhe

be compelled,by virtueof the court'sdecision,to do this or not?

[Answer:]Praise be to God.TheProphet-may peacebe uponhim-said : "I amfree (and barPun) of every Muslim living [where] exposed to the

polytheists." [Thus] it is not permittedfor a Muslim who has the

capacity to emigratefrom exposureto the infidels to remainamongthem,becausetheyaresubject o the laws of unbeliefandbecausethey

constantlywitness lack of belief in God (kufr)and [yet] they do nothave the capacityto changeit. It is incumbentuponthemto emigratefrom [this] place, therefore,since it is not permitted or a Muslim to

keep companywithonewho engagesin thesinfulactivitiesof drinkingwine, committingadultery,or othersinfulacts. How much themore sois it notpermittedo live withonewho doesnot believein Godandtells

lies aboutHis Prophet?Thus,emigrationshouldbe regardedas a dutyby virtueof ijmd' consensusof thecommunity).

If one of the spouseswants to emigratefromthe landof the infideland approach(ddr al-Isldm), and the otherrefuses, then he has no

excuse on this accountbut should [nevertheless]emigrateand leave

278



THEOBLIGATIONOEMIGRATEOISLAMIC ERRITORY 279

his/her spouse. For religious interests must prevail over this-worldly

interests.1 If one of the spouses wants to leave and one of them owes

the other, then he may not depart until he has fulfilled his obligation.

Thus, the husband should give his wife the saddq he had agreed to, or

any other obligation to which she is entitled, and [only] then may he

emigrate. Likewise, the wife, if she emigrates and he remains behind, it

is incumbent upon him to give her what he owes her.

1 It is interestingto note that al-Haffaruses the termmaslaha (public interest).As I argue in this essay, Mudejar decisions most beneficial to the communitypreoccupybothal-Haffarandal-Mawwaq.



280 KATHRYNA. MILLER

BN Madrid MS. 5324 (fols.47v-48v)

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KATHRYN A. MILLER

TRANSLATIONOF A FATWAOF MUHAMMADAL-MAWWAQ

BN MadridMS. 5324 (fols. 135v-136r)

MayGodbe pleasedwithyou andgrant heMuslimsenjoyment orthe

lengthof yourlives. Your answer:

If thereis a man with two parents,1or one of them, [living] in the

Abode of War, s it incumbentuponhim,permitted, rrecommended,o

visit themornot,evenif thisresults n neglecting hem?

If you say thefirst[viz., it is incumbentuponhim to visit], shouldhevisit themandreturn,or may he reside [there],[if] they requestthis ofhim?And does [thispertain]even if Christianauthorityand their aws

applyto him,especially if he fears for his life? What is thejudgment,

may God be satisfied with you, regardingone who is living in the

Abodeof War,withhouse and walls? Is it obligatory orhimto leave?

Even if this [would] lead to his begging for alms in the land of

Muslims?Or t is preferableorhim,oris it permissible?

Explainto us the text [viz., thatappliesto it], andwhereit is found,if you can, or explain to us the authoritativebasis [viz., from God]

point by point, and what we have missed.May God rewardyou and

guide you, and may God accept it as a good, sincere deed [for His

sake].Peace and mercy be upon you and God's blessings. Praise be to

God,blessingsandpeaceuponMuhammad,heProphetof God.

The answer:andin God [we seek] success:If theparents2 avethecapacity o emigrateor leave from theAbode

of Waror the landof the infidel, withoutdangeror fear, then it is not

permitted to them to remain there, [even] if this leads to their

impoverishmentnd theirbeggingfor alms.

Indeed,the Companionsof the Prophet-peace be uponhim-had

emigratedand left behindwhatbelongedto them. Some of the ahl al-Suffa3 among them were supported by the alms of Muslims. The

1 Text: "al-waladdn" (two children). Read: "al-wdlidcn" (two parents) inaccordancewith line 21, where the text is "al-abawayn" two parents).

2 Text:"al-abawayn", ee previousnote.3 This term refers to a special group of people from among the Prophet's

Companionsrenownedfor theirpiety and povertywho are said to have lived on thebench (Arabic"Suffa") n frontof the mosque at Medina, andsupported hemselves

284



THEOBLIGATIONTOEMIGRATETO ISLAMICTERRITORY 285

Prophet-peace be uponhim-when he receivedalms,would sendit to

them.

Under suchcircumstances t is notpermitted o their son to travelto

themfor a visit and for anyotherthingwhich is notobligatory.If theydo not have the capacityto emigrate,andhe has the means to bringthem out andrescue them fromthe ignominyof unbelief,thenit is his

obligation o do so; otherwise, t is also notpermissible orhimto visit

them-even though[fromanotherperspective] t is recommendedon

account of the fact thatentryinto [theAbode of War]resultsin [viz.,his parents]contentment-because thisalso leadsto enteringunder he

ignominy of unbelief and that is a religious sin against God. No

obedience is owed to a created[humanbeing]if [it entails]disobeyingthe Creator.

Peacebe uponhim in whose handsthis [fatwa]falls fromits writer,

al-Faraj b. Ibrahim al-Basti, may God make him an avenue of

blessings for them [frequently] n the Abode of War, so that he mayfear God to his utmost extent [viz., effort] and offer his advice for

others,so thatperhapshis remaining herewill leadto thestrengtheningof thefaith of othersand he mayyet avail himselfof theopportunityto

leave], for nothing s impossiblefor God.Likewise,he who entersthe

Abodeof War s afaqih of himself. And one mustcompare he benefits

(maslaha)which [bringhimto thelandof war]withtheharmwhich he

expects. It is agreedthat if two harmful hingsoccur,the lesserwards

off thegreater.

And I issuedafatwa of the same substancebutthis is the essenceofit.

He who hadno excuse for entering he Abode of Warorfor stayingthere is worthyof blame [viz., it is objectionable.]As for one who has

an excuse, he is excused on account of that excuse: For one whose

effort is pious,Godmagnifieshis reward.God theAlmightysaid,One

who does "an atom'sweightof good"will see it and one who does "an

atom'sweight of evil"will see it.4One who repentsof sin is like one

withoutsin, since there s no sin greater han unbelief. And God says,

"Sayto the Unbeliever, f [now]they desist [fromunbelief],theirpastwould be forgiven hem."5

Writtenby al-MawwaqGranadaMayGodprotect t.

by thealmsof otherMuslims;f. E12, .v. "Ahlal- Suffa".4 Sura99: 7-8.5 Sura8: 38.



KATHRYN A. MILLER

BN Madrid MS. 5324 (fols.135v-136r)

FatwS of Al-Mawwaq regarding a Muslim who wants to visit his

parents in dar al-Harb.

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Documents

Muslim Minorities and Teh Obligation to Emigrate to Islamic Territory Two Fatwas From Fifteenth Century Granada