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

Aharon Layish

ISBN13: 9789004311381

Published: September 2016

Publisher: Brill Academic Publishers

Country of Publication: The Netherlands

Format: Hardback

Price: £118.00

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

Subjects:: Islamic Law

Contents:: Preface; Acknowledgments; Introduction: The Mahdī’s Documents as a Source of Legal History; CHAPTER ONE: THE MAHDIST STATE; 1. Political Establishments; 2. The Judiciary and Iftāʾ; 3. The ʿUlamāʾ; 4. The Ṣūfī Background; CHAPTER TWO: THE MAHDI’S LEGAL METHODOLOGY; 1. Abolition of the Schools of Law; 2. The Qurʾān and the Sunna; 3. Inspiration (ilhām) Derived from the Prophet and from God; 4. Auxiliary Sources of Law: Public Interest (maṣlaḥa), Necessity (ḍarūra); 5. The Mahdī’s Version of Ijtihād; 6. The Impact of Ṣūfism on the Mahdī’s Legal Methodology; CHAPTER THREE: THE MAHDĪ’S LEGISLATION; Introduction; PART ONE: SLAVES; 1. The Slave as Property and Person; 2. Umm al-Walad Lost the Child by Her Master but Both She and the Children She Gave Birth to Fathered by Slaves Are Deemed Free in Her Master’s Lifetime; 3. A Female Slave, the Husband’s Absence, Dissolution and Chastity; 4. A Slave’s Acknowledgment of Theft Is Admissible and Punishable; 5. The Mahdī Buys Concubines and Obtains His Free Wives’ Consent; PART TWO: PROPERTY; 6. Validation of the Ottoman Land Category of Mīrī; 7. The Mahdī Proclaims a Period of Prescription of Seven Years; 8. Obtaining Ownership through an Uninterrupted Period of Prescription; PART THREE: OBLIGATIONS AND CONTRACTS; 9. Prohibition of Lease for Rent and Agrarian Reform; 10. Tenancy Is Permissible if Proprietor Incapable of Cultivating Land; 11. Pledge Is Not Permissible as a Device for Circumventing Prohibition of Interest, but the Pledgee/Creditor May Deduct Expenses from the Profits; 12. Right of Preemption Reserved Only to the Partner, Not the Neighbor; PART FOUR: FAMILY; a. Marriage; 13. Marrying a Woman Promised to Another, Even after Consummation, Entails Dissolution and Discretionary Punishment; 14. Prohibition for Marriage on Grounds of Fosterage Applies to All the Issue of Consanguine Brothers by Virtue of the Literal Meaning of a Ḥadīth; 15. Marrying a Woman against Her Will or a Woman Who Does Not Share “Spiritual Communion” Is neither Permissible nor Advisable; 16. The Mahdī as the Supreme Qāḍī Delegates to a Woman the Power to Marry off Her Daughter; 17. The Mahdī Prescribes Maximal Rates for Ṣadāq; Deviation therefrom Entails Expropriation and Penal Sanctions; 18. Marriage with a Fifth Wife, Though Irregular, Remains Intact; Instead, One of the Lawful Wives Is to be Divorced; 19. The Mahdī Offers Four Wives to the Great Grandson of Shaykh Aḥmad al- Ṭayyib al-Bashīr; 20. The Mahdī Marries a Fifth Wife with the Prophet’s Permission; 21. Equality among Free Wives; 22. The Mahdī’s Co-wives Opt for an Ascetic Life and the Hereafter as a Precondition for Marriage; 23. Joining the Mahdiyya while Leaving Husband behind Is Not Deemed Disobedience; 24. Coercive Measures to Enforce Obedience; 25. Disobedient Wife Compelled to Renounce Rights in Divorce; 26. A Woman’s Marriage to Another Man before Establishing Her Divorce from Her Former Husband Entails Separation and Restoration to Her First Husband; b. Divorce; 27. Khulʿ and Financial Liability Prior to the Mahdiyya; 28. Wife’s Right to Nuptial Gift Is Not Affected by Khulʿ Agreement in the Event of the Wife’s Emigration to Mahdist Territory while Leaving her Husband behind; 29. Compulsory Khulʿ of a Disobedient Wife Though the Husband Is Advised to Renounce His Financial Rights; 30. Enforced Khulʿ Following Marriage against a Woman’s Consent; 31. Khulʿ Does Not Count in the Quota for Intermediate Marriage; 32. Taṭlīq of a Woman Married against Her Will; 33. Dissolution on Grounds of Non-Provision of Maintenance by an Absent Husband; 34. Taṭlīq of the Wife of an Absent Husband; 35. Taṭlīq on Grounds of Non-Provision of Maintenance; 36. Rescission of Marriage on Grounds of Prejudice; 37. Rescission of Marriage on Grounds of Difference of Religion; 38. Termination of Marriage on Grounds of Difference of Religion and Rehabilitation by a New Marriage Contract; 39. Duration of Waiting Period following Delay of Menstruation; 40. A Separated Wife Who Has Not Completed One Menstrual Period May be Restored to Her Husband without Concluding New Marriage Contract; 41. Should an Emigrant Wife Observe the Waiting Period of a Free or a Slave Woman?; 42. The Mahdī Reinstates His Triply Divorced Wife with No Intermediate Marriage, with the Prophet’s Permission; 43. Reinstating a Triply Divorced Wife with No Intermediate Marriage Entails Ḥadd Punishment; 44. An Oath of Ḥarām or Oath of Continence without Explicitly Mentioning Repudiation Is Null and Void; 45. An Oath of Ḥarām Is Not Binding unless God’s Name Is Mentioned; 46. Breaking an Oath of Divorce Entails Expiation; c. Custody; 47. The Right to Custody, the Welfare of the Parents and the Best Interest of the Child; PART FIVE: INHERITANCE AND WILLS; 48. The Mahdī Offers the Widow of a Martyr the Entire Estate as Charity in a Gesture of Generosity; 49. A Widow’s Waiting-Period Maintenance Is Taken Out of the Estate before Its Division; 50. Bequests in Favor of Legal Heirs; PART SIX: HOMICIDE AND BODILY HARM; 51. Intentional Homicide in Turco-Egyptian Territories Entails Compulsory Retribution with No Option of Forgiveness; 52. No Punishment for Killing Committed on Turkish Territory if Repentance is Accepted by the State; 53. Compensation for Bodily Injuries, Regardless of Their Nature, on the Basis of Slaves’ Price Where Equivalence in Injury Is Impossible; 54. Warriors Causing Bloodshed to Muslim Civil Population Are Liable to Private Retaliation and State Sanctions; PART SEVEN: ḤADD OFFENSES; a. Theft and Highway Robbery; 55. Literal Interpretation and Application of Q.; 5:38; 56. A Witness to Theft Failing to Report the Crime is Liable to Amputation; 57. Personal Liability for the Theft: No Collective Amputation of Hands; 58. Stealing from Booty Is Tantamount to Disbelief and Apostasy; 59. Theft from Booty Entails Excommunication and Capital Punishment; 60. The Mahdī Forgives a Highway Robber Who Repents and Acknowledges Crime after being Captured; b. Unlawful Sexual Intercourse and False Accusation Thereof; 61. Stoning for Muḥṣan, Lashes for Bikr and Discretionary Punishment for Entering into Privacy with a Stranger; 62. Marrying Another Man during Waiting Period from Divorcing Husband Entails Lapidation; 63. Hundred Lashes on Women Exposing Themselves to Men; 64. A Woman Exposing Her Face or Speaking Aloud Is Liable to 27 Lashes; 65. Kidnapping a Free Married Woman and Marrying Her Entails Imprisonment and Lashes; 66. Sodomy Entails Decapitation by Sword; 67. A Husband Sentenced Successively to Ḥadd Punishment for Qadhf and to Compulsory Retribution for Killing His Wife’s Alleged Harasser; c. Wine Drinking; 68. Consumption of Wine and Use of Tobacco Entails Ḥadd and Statutory Punishments; d. Apostasy and Repentance; 69. Apostasy in Fundamental Principles: Denial of the Mahdī’s Mahdiship; 70. Apostasy in Deeds: Withdrawal from Islam and Sharīʿa; 71. Apostasy in Omission: Failure to Immigrate to Mahdist Territory; 72. Punishments on Apostasy and Repentance; PART EIGHT: INTERNATIONAL LAW; a. Fayʾ; 73. Expansive Definition of Fayʾ: Property Surrendered by Infidels by Agreement to be Distributed according to Q.; 59:7; b. Booty; 74. Property and Persons Acquired as Booty; 75. Men, Women and Children as Booty; 76. Division of Booty to Recipients; 77. Compulsory Allocation of Booty to the Mahdī’s Kin and Companions; c. Jihād, Amān and Conversion to Islam; 78. Women Participating Physically in Jihād Fighting; 79. The Mahdī Urges General Gordon Either to Accept Amān or Embrace Islam; 80. The Mahdī Invites the Governor of Egypt to Submit to Islam; 81. A Dhimmī Staying behind in Turco-Egyptian Territory Given the Choice either to Convert to Islam or Be Proclaimed Ḥarbī; 82. Redemption of “Infidel” Captives Converted to the Mahdiyya on Presumption of Good Faith; PART NINE: ALMS TAX; 83. The Alms Tax as a Ritual and a State Instrument for Social Justice; 84. Niṣāb and Rates of Zakāt; 85. Recipients of Zakāt; PART TEN: PUBLIC MORALITY; 86. “Governor of the Market” as Public Prosecutor; 87. Appointment of Arbitrators to Consolidate the Mahdiyya and Enhance Public Morality in Light of “Commanding Right and Forbidding Wrong”; 88. A Catalogue of Statutory Punishments on Moral Offenses; 89. Negative Innovations Entail Discretionary Punishments; PART ELEVEN: TESTIMONY; 90. A False Witness Is Liable Either to Be Decapitated or to Have His Property Taken Away or His Hand Amputated; CONCLUSION; APPENDICES; Bibliography; Glossary; General Index