al-muwatta - as a source for the social and economic history of the hijaz

7/27/2019 Al-muwatta - As a Source for the Social and Economic History of the Hijaz

1/12

AL-MUWAA' AS A SOURCE FOR THE SOCIAL AND ECONOMIC HISTORY OF THE HIJAZ

Author(s): Farhat J. ZiadehReviewed work(s):Source: Islamic Studies, Vol. 18, No. 4 (Winter 1979), pp. 299-309Published by: Islamic Research Institute, International Islamic University, IslamabadStable URL: http://www.jstor.org/stable/20847118.

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2/12

AL-MUWATTA'

AS

A

SOURCE

FOR

THE

SOCIAL

AND

ECONOMIC

HISTORY OF

THE

HIJAZ

Farh?t

J.

Ziadeh

It

has been the

practice

among

modern Islamic and

Western

histo

rians

to

depend

upon

the

traditional

historical

and

biographical

works

in

writing the history of pre-Islamic and early Islamic centuries. The gene

ral

history

of

al-Tabari

(d.

310

A.H.)

figures

prominently

in this

endeavour,

and

so

do

later

historians who followed

his method of

recording

history.

Earlier

histories,

like

that

of

Ya'q?b?

(d.

277

A.H.),

as

well

as

earlier

to

pical

works

of

biographies

and

military campaigns,

like the

biography

of

the

Prophet by

Ibn

Ish?q

(d.

151

A.H.)

?

preserved

in

its

later

recension

by

Ibn

Hish?m

(d.

218

A.H.)

?

and the

monumental

biographical

dictio

nary

of Ibn

Sa'd

(d.

230

A.H.),

and

the

works

on

campaigns

and

conquests

by

al-W?qidi

(d.

207

A.H.)

and

al-Bal?dhur?

(d.

279

A.H.)

are

also

cited.

Sometimes

one

might

encounter

a

reference

to one

of the

main

compen

diums

of

btadith,

or

traditions

of

the

Prophet,

for the

methodologies

?f both

sciences

are

similar

if

not

identical

?

and

one,

history,

can

be said

to

have

emanated

from

the

other.

One

might

also

find

a

reference

to

one

of

the

administrative

or

fiscal

manuals

that

were

intended,

for the

most

part,

for the

edification of

governmental

secretaries.

Even

one

might

find

a

reference

to

a

work

of

literature

horror

of

horrors

to

a

historian

?

like

that

of

al-Agh?n?.

But he would

look

in

vain

for

any

reference

to

an

early

and authentically-attributed work like that of al-Muwattcf byMalik ibn

Anas

(d.

179

A.H.).

Several

reasons

can

be

advanced

for

this

neglect.

One is

that

his

torians

have,

in the

main,

been interested

in

political

history,

and

works

of

law,

like

al-Muwatta'f

admittedly

do

not

quench

the

thirst of

the

political

historian.

Another

is the

notion

that

most

works

of

Islamic

law

are

casuist

tic

by

nature,

that

they

seem to

picture

an

ideal

law for

an

ideal Islamic

state divorced

from

the

practical

considerations

of

daily

life, and,

therefore,

that

they

do

not

reflect

historical

reality.

A

third

is that

the

methodology

of

law

is different

from that of

history

in that

it

does

not

entirely depend

upon

the verification

of

accounts

through

isn?d,

and

therefore

a

historian

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3/12

300

FARHAT

J. Z1ADEH

might

not know what to do with law, or how to handle it

Finally,

books

on

law

are

admittedly

difficult

to

understand

by

the

average

historian,

particularly

in the

West,

and

therefore

their

meagre

fare

of

points

of his

torical

interest,

arrived

at

after much

effort,

was

overlooked in

the

scurry

toward

much

greener pastures.

The late Professor

H.A.

R.

Gibb

used

to

lament

the

fact

that works

on

Islamic

law,

and

particularly

works

on

fat?wa,

were

no

*

being

utilized

for

reconstructing

the

social

and economic

history

of

the

Islamic

era.

A work, like al-Muwatta' which is the earliest extant work on Islamic law,

should

logically

be

among

the firstworks

to

be

so

utilized.

But

aside

from

modern

works

on

Islamic

law

and

legal

doctrine

which often

refer

to

al

Mulatta',

this

important

and

early

work,

as

far

as

I

know,

has

not

been

touched

by

social

and

economic

historians,

save

for

the

treatment of

qir?d

(commenda)

in

a

work

by

A.L.

Udovitch.1

The

question

might

well be

asked

?

Why

should

a

historian

use

ai-Mulatta'

as

a

source if

it be

true

that

all

legal

works

reflect

an

ideal

state of affairs, removed from historical reality? Here we enter upon a

controversial

subject

that

might require

several

papers

to

elucidate. Scho

lars

are

agreed,

however,

that

not

all

subjects

of

the

law

were

theoretical,

and

that

certain

subjects, particularly

those

concerned with

personal

status,

and

possibly

civil and

some

elements

of

commercial

law,

have

been

applied'

throughout

the Islamic

centuries.

Besides,

any

reader of

al-Muwatta*

cannot

but

be

impressed

by

its

practical

character

?

unlike

later works

which

casuistic

thinking

and

religious

zeal

propelled

into the

idealistic

realm.

It

is

obvious

that

Malik

set

about

to

codify

and

systematize

the

customary law of Medina and to give an account of law and jurisprudence

according

to

the

consensus

(ijmfr)

and

traditional

practice

(sunnah)

of

Medina.2

His

use

of

the

word

"sunnah"

seems

to

have

been

different

from

its later

use

as

the

model

sayings

or

behaviour

of

the

Prophet.

Pro

fessor

Amin

al-Khawli

rightly

observes

about sunnah:

"We

see

him

using

it

in

al-Muwatta'

for

a

meaning

very

near

to

its

linguistic

meaning,

i.e.,

"the

method,"

"the

way,"

as

when

he

says:

'the

sunnah

with

us

concerning

mus?q?t

(a

contract

of

partnership involving

trees

and

labour)

is that

it

applies

to

date

palms,

grape

vines,

olive

trees,

etc'_or

he

might

mean

by

sunnah the "method" and

"way"

of the 'ulama' as when he

says:

'our

gen

erally

agreed

practice

(al-amr

al-mujtama6 'alayh

Andana)

and the

sunn&h

on

which

people

do

not

differ

(al-sunnah

aliati

l?

ikhtil?f lh?)

and that

which

I

attained

from

the 'ulamS

in

our

city (alladhi

adrakt

'alayh

ahi

ai-Um



4/12

al-muwatta'

as

a

source

301

bi-baladina)

that the Muslim does not inherit from the non-Muslim.'"3.

Actually,

al-Muwaffa'

abounds

in

expressions

just

quoted

and in

others

like

the

"practice"

(al-amai),

"our

practice"

(al-amr

aa

a)

which

point

to

an

actu al

practice

that

is both

practical

and

accepted.4

Al-Muwatta\

then,

can

be

depended

upon

to

reflect

an

actual

state

of affair

in

most

instances.

It

can

also,

through

allusions

to

pre-Islamic

practices,

reflect

certain

aspects

of

life

of

the

pre-Islamic

period

as

well.

Its

cautious

use

by

a

historian

as

a

historical

source

can

therefore

be

warran

ted. What I shall do in the

following

pages

is to

present

the results of

soundings

I

made

while

reading

this

work

for

pieces

of

information that

might

be

of

significance

to

the social

and

economic

historian

as

well

as

to

those

interested

in

historical

anthropology.

Economic

Information:

As

can

be

expected

economic

life

should

figure

prominently

in

a

law

manual

that is

primarily

concerned

with

transac

tions

between

individuals,

with

an

eye

to

having

them

adhere

to

religious

norms,

particularly

those

against

usury,

and

with

questions

of

taxation.

In

dealing

with

legal

questions,

al-Muwatta'

presents

?

as

it

were

?

a

lot

of

economic

information

as

a

by-product.

We

shall

take

up

some

sound

ings

in

the

law

of

taxation

first

before

going

on

to

the

more

complicated

matters

of

contract

law

and

commercial

dealings.

In

truth

all

the

sections

on

almsgiving

(zak?t)

are

important

because

they

give

us

a

fairly

clear

picture

as

to

the

agricultural

activity

and

animal

husbandry

at

the

time.

We

can

know,

for

instance,

what kind

of

cereals

and legumes were being planted: Malik said, "Cereals (and legumes) sub

ject

to

zak?t

are:

wheat,

barley,

thin-husked

barley (suit),

millet

(dhurah),

another

millet

(dukhri),

rice,

lentils,

peas

(julub?n),

beans

(l?biya)

and

sesame

(juljul?n).5

Also

we

can

know

the

fruit

trees

grown,

as

these

are

mentioned

in connection

with taxable

or

nontaxable

products.

Aside

from

well-known

fruits like

dates,

grapes, figs,

etc.,

we

encounter

pome

granites

and

peaches

(firsik)6.

In

the

field

of

animal

husbandry

al-Muwatta'

documents

the

practice

of

sheep or goat owners grouping their fllocks under the supervision of a single

shepherd.

Malik

says,

"If

the

shepherd

be

one,

the stud

one,

the

pastur

age

one,

and

the

water-bucket

one,

then

the

twomen

(owners

of

the

flocks)

are

associates

(khallf)

even

though

each

one

of them differentiates

his

pro



5/12

302

FARHAT

J. ZIADEH

perty

from that of the other."7 This becomes important for purposes of

taxation,

for

such

a

combined

flock

is

treated

as

one

flock

and

not

as

sepa

rate

flocks.

Likewise

separate

flocks should

not

be

grouped together

if

it

becomes

advantageous

to

their

owners

?

for

tax

purposes

?

to

do

so.

Regarding

this

human

failing

of

evasion

of

taxation the

Caliph

'Umar

said,

"What

is

separate

should

not

be

grouped together,

and

what

is

grouped

together

should

not

be

separated."

In

commenting

on

this

saying

M?lik

says,

"This

refers

to

the

owners

of

livestock-(For instance)

three

owners,

each owning forty goats,

are

legally obligated

to

pay

zak?t.

(An

owner

of

a

flock

consisting

of

at last

40

sheep

but

not

more

than

120

sheep

deli

vers

one

sheeps

as

zak?t).

But

when

the

tax

collector shows

up

they group

them

together

so

as

to

deliver

only

one

goat-Or

the

two

associates

(khalit)

each

owning

101

goats,

and thus

liable

to

deliver

together

3

goats,

separate

their

flocks

when

the

tax

collector

approaches

so as

to

make

each

liable

for

only

one

goat.

Such

practice

was

prohibited."8

Another

bit

of

information

ragarding

taxation

is that

Christians

from Iraq (Nabat),

and

possibly

from

Syria,

were

in

the habit

of

trading

in

the

market-place

of

Medina

from

pre-Islamic

times

until

at

least

the

time

of

'Umar,

and

paid

taxes

there.

Malik

reports

on

the

authority

of Ibn

Shih?b

on

the

authority

of al-S?'ib

ibn Yaz?d

that

the

latter

said,

"I

was

a

young

man

assisting

"Abd

Allah ibn

'Utbah

ibn Mas'?d

(overseeing)

the

market-place

of Medina

in

the time

of

'Umar

ibn

al-Khatt?b.

We

used

to take

from

the

Nabat

one

tenth"-Malik

asked ibn

Shih?b

as

to

the

justification

for

that

practice

and he

answered,

"That

used

to

be taken

from

them

in

pre-Islamic

times,

and

so

'Umar

charged

them

with it

".9

The

laws

of

sale

and

commerce,

however,

yield

most

of

the informa

tion

on

economic

matters;

and

here

the

regulatory

force

seems

to

be

the

doctrine

against

usury.

The

Prophet,

for

instance,

prohibited

a

practice

that

had

been

prevalent

previously,

known

as

earnest-money

sale

(bay'

al-urb?n).

M?lik describes

it

thus:

"When

a

man

buys

a

slave

or

rents

a mount

and

then

says

to

the

person

he

bought

or

rented

from:

I

give

you

one

din?r

or

one

dirham,

or more

or

less,

on

the

condition

that

if

I

take

delivery

of

the

thing

or

ride what

I

rented,

then what

I

advanced

to

you

becomes part of the sale price or the rent of themount, but if I go back

on

the

sale

or

rent,

then

what

I

advanced

becomes

yours

without

anything

in

return."10

As

can

be

seen,

this

is

a

kind

of

option

known

toother

societies,

but it

was

prohibited

in

Islam

because of

an

"unjustifiable

increase"



6/12

?l-muwatta'

as

a

source

303

(riba),

since

something

was

gained

without a consideration. The fact that

some

people

were

willing

to

pay

for

an

option

reflects

a

fairly

advanced

stage

of

commercial

dealings.

An

account

about the

prohibition

of

usury

in

another

instance

yields

information

on

a

still

more

interesting

economic

institution,

namely

that

of

dealing

with

"futures,"

similar

to

that

of the

Chicago

Commodities

Market.

It

seems that

when

Marw?n

ibn al-Hakam

was

the

governor

of

Medina during the caliphate of the first Umayyad caliph, Mu'?wiyah

(41-60 A.H.)

certain

documents

(sukuk)

were

assigned

to

the

people

of

the

city

entitling

hem

to

food-stuffs

hat

were

being

brought

to

the

Hijaz

(doubtless

as

khar?j

and

probably

from

Egypt)

and

collected at

a

place

called

al-J?'r

at the seashore.

The

people

of

Medina

started

trading

with

these

documents

before

they

actually

received their

entitlements of

food

stuffs

a

practice

smacking

of

risk

or

even

rib?

if the

exchange

involved

unequal

amounts.

So

Zayd

ibn

Th?bit

and another

Companion

of

the

Prophet

called

on

Marw?n and

said,

"Do

you,

O

Marw?n,

consider

rib?

eales

as

legitimate?"

"I take

refuge

inGod

(from

that)"

he

said,

"and

what

is

that?"

They

said,

"These

suk?k

are

being bought

and

sold

be

fore

the

receipt

of

their

equivalence."

Whereupon

Marw?n

sent

his

guards

to track

down

these

documents,

to remove

them

from

the

hands

of

their

holders

and

to

return

them

to

their

original

owners.11

As

is

well-known,

risk

(gharar),

no

less

than

rib?,

might

vitiate

a

contract.

The

Prophet

is

reported

to

have

prohibited

the

practices

of

mul?masah

and

mun?badhah. M?lik

defines

them

thus:

Mul?masah is

when

a

man

touches

or

feels

(yalmas)

a

garment,

but

does

not

unfold

it

nor

ascertain

(its

character),

and

mun?badhah is

when

a

man

throws

to

another

(yanbidh)

a

garment

(in

exchange

for)

a

garment

that

the

othei

throws

to

him

without

both

of them

examining

them.

He therefore

says

that

t is

not

permissible

o

sell

Persian

mantle

(s?j

or

faylas?n)

which

is

inside

its

cover

or

a

Coptic

garment

in its fold unless

they

are

unfolded

and their

inside

is

seen,

because

their

sale

(in

their folded

state)

is

a

sale

of

risk.1? M?lik could not, however, disallow

the

well-established practice

of

selling

whole

bales

of

goods

on

the

basis

of

their

description

in

an

ac

companying;

catalogue

or

list of

contents

(barn?maj),

without

actually

unfolding

them,

for

then it

would

become

impossible

to

conduct

wholesale



7/12

304

FARHAT

J.

ZIADEH

trade. He, therefore, says, "The sale of bales

according

to the

barnamaj

is

different

from

the

sale

of

a

Persian

mantle

in its

cover or a

garment

in

its

fold

..

.

The difference

between

them

is

(based

on)

the

actual

practice

and

the

knowledge

of that

in

the

hearts

of

men

..

.

nd that

it

continues

to

be

among

the

allowable

sales

among

the

people

..

.

because

the sale

of bales

according

to

the

barnamaj,

without

unfolding,

is

not

intended

as a

risk and

has

no

similarity

to

mul?masah".1*

Thus

the

legal

provision

against

risk

in

al-Muwa\tay

was

able

to

inform

us

about the extensive

whole

sale trade

in the

Hijaz

at

the time.

Similarly

the

legal

provision

about

the

permissibility

of

exchanging

goods

for

goods

without

violating

the doctrine

against

risk

yields

much

information

about

the

types

of

garments,

waist-wrappers,

and

pieces

of

cloth

being

imported

into

Hijaz

at

the

time.

We

read

of

garments

from

the

villages

of

Shat?,

Itr?b,

and

Q?s

in

Egypt

as

well

as

those from Herat

in

Khurasan

(Afghanistan)

and

Merv

in

Central Asia.

Likewise

we

read

of

waist-wrappers

(mal?frif)

and

pieces

of

cloth

(shaq?'iq)

from

Yemen14.

A

seemingly

simple

account

about

the conduct

of

trade

by

means

of

a

partnership

of

capital

and

labour

(qir?d)

or

commenda

might

yield

informa

tion about

a

variety

of other

topics.

Malik

relates

that

'Abd

Aliah and

'Ub

?yd

Allah,

the

sons

of

Caliph

'Umar set

out

with

an

army

to

Iraq.

On their

way

back

they passed

by

Abn

M?sa

al-Ash'ari,

the "emir

of

Basrah,"

who

welcomed

them

and

asked

if he

could be of

benefit

to

them

in

any

way.

Then

he

said,

"Yes,

indeed.

I

have

here funds of

God's

property

(khar?j

?r

j?zy?h)

that

I

want

to

send

to

the

Commander

of

the

Faithful.

I

shall

lend these

funds

to

you,

then

you buy

with

them

goods

from

Iraq

that

you

will

sell

inMedina.

Whereupon

you

deliver

the

capital

to

the

Commander

of

the

Faithful

and

you

keep

the

profit."

They agreed

to

this

arrangement,

and

Abu

M?sa

wrote to

'Umar

to

take the

capital

from

them.

Upon

arrival

inMedina

they

sold the

goods

and

made

profit.

When

they

came to

pay

the

capital

to

'Umar

he

asked,

"Did

(Abu

M?sa)

lend

money

to

the

entire

army

?s

he

lent

to

you?"

They

said,

"No.

'Umar

then

said

"He

lent

it

to

you

because

you

are

the

sons

of

the

Commander of the

Faithful.

'Hand

over

the

capital

and the

profit "..

.

.Then

some

arguments

ensued

between 'Ubayd Allah and his father about the proper course of action,

whereupon

a

man

sitting

by suggested

that the

transaction

be

considered

?

qir?tf.

'Umar

agreed;

he

took

the

capital

and

half of the

profits,

while

the

other

half

was

left

to

his

sons.15



8/12

al-muwatta'

as

a

source

305

Now,

the

foregoing

account

undoubtedly

proves

that the contract

of

qir??thad-been

well-known

by

the time of

'Umar,

and

presumably

must

have

figured

prominently

in the

Meccan

trade before Islam.16 In

the

second

place,

the

account

supports

the

view

that

Ab?

M?sa

was

a

governor

(amir)

and

not

a

judge (q??li)

to

whom

*

Umar

was

said

to

have

addressed

his

famous

instructions,

and

that

in

all

probability

the

institution

of

the

judiciary

appeared

later

during

the

Umayyad

administration

?

unless

of

course

one

is

to

understand

that

at

that

early

date the

function

of

a

gover

nor

and

that

of

a

judge

were

indistinguishable.17

In

the

third

place,

it

is

apparent

from

the

account

that

the

processes

of

administration

were

at

the

time

still unsettled

and

in

a

rather

primitive

and

chaotic

form,

whereby

a

governor

would

allow

himself

to

lend

public

money

to

be

used

in

a

commer

cial

venture

Social

and

Anthropological

Information

Here

again

al-Muwafta'

can

be of

immense value

to

the

social his

torian.

Information

on

slavery,

on

preemption

(shuf'ah),

on

witchcraft,

and

on

funeral

and

burial

practices

can

be

gleaned

from

its

legal

contents.

It

has

been

assumed

that slaves

in Arabia

were

employed only

in

domestic

service

?

including

chores

in

attending

animals

?

or

in

com

mercia

enterprises.

Butin

Medina,

where date

plantations

were

plentiful,

slaves

were

employed

in

cultivation

as

well.

In

fact these

slaves

seem

to

have

been attached

to

the

plantations

in

the

same

way

that

slaves

were

an

integral

part

of the

plantations

in

the

American

South

prior

to

the

Civil

War.

This is

evident

from

a

legal provision concerning

slaves in

a

contract

of

trees and labour

(mus?q?t).

M?lik

says,

"The best

that has

been

heard

concerning

slave

labourers

in

a

contract

of

mus?q?t

where the

labour

con

tractor

makes

them

a

condition

binding

on

the

owner

of

the

capital

(asl,

meaning

plantation)

is that

it is

perfectly

legal,

because

they

are

the

labourers

of the

capital,

and

therefore,

are

on

the

same

footing

as

the

capital

...

If

a

slave should

die,

absent

himself,

or

fall

sick,

it is the

duty

of

the

owner

of the

capital

to

replace

him."18

When slaves are manumitted a special relationship called walff

continues

to

exist

between

the

previous

master

and the freed

slave.

Apart

from the

sentiments of

loyalty

and

support

that

the term

implies,

and

that

are

so

important

in

a

society

that is

organized

on

kinship

groups,

whether



9/12

306

FARHAT

J.

ZIADEH

actual or fictional, wa?ff can be financially important in that by virtue of

his

act

of manumission

the

master

acquires

the

right

to

inherit

from

his

freedman

if

the

latter dies

without

any

heirs

by

blood.19

Still,

this

right

to

wala*

was not

a

proprietary right

to

be

bought

or

sold

or

given

as

a

gift;

it

was

akin

to

a

family

relationship

that

was

inalienable. The

Prophet

was

reported

to

have

said that

walff

belonged

to

the

manumitter,

and he

prohibited

the

sale

of walff

or

giving

it

as a

gift.20

But

what

bcomes

of

walS when

the

manumitter dies? Does

it

devolve

upon

the

heirs

in

the

same

way

that

his

estate

does?

It is

indicative

of

the

personal relationship

that

this

institution

suggests

as

opposed

to

a

proprietary

relationship

?

that the

devolution

of

wal?'

was

held

to

be

different

from

that

of

the

general

estate of

the

deceased,

and

that it

devolved

not to

the heirs

at

law

but

to

the

people

who

were

held

nearest

to

the

ex-slaves

in

a

personal

way.

Malik

illustrates

this

from

an

actual

case.

Several

people

from

the

tribe of

Juhaynah,

near

Medina,

and several

others from

the

clan of

Bani

al-fl?rith

of

al-Khazraj

tribe

of

Medina

submitted

a

dispute

to

Ab?n

ibn

'Uthman.21

A

woman

from

Juhaynah

was

married

to

one

Ibrahim ibn

Kulayb

of

Bani

al-H?rith. When she died she left property and ex-slaves (maw?li).

Her

son

inherited her

estate. But

the

son soon

died,

and

his

heirs

at

law

said,

"the

wal?'

of the

ex-slaves

belongs

to

us;

her

son

had

acquired

it,"

and

the

people

from

Juhayuah

said,

"Not

so;

they

were

the

ex-slaves

of

our

"daughter"

(??bibatun?)\

when

her

son

died

we

acquired

their

wal?\

and

we

(therefore)

will

be

their

heirs."

Ab?n

gave

judgment

in

favor

of the

people

of

Juhaynah22,

presumably

because there

was no

personal

rela

tionship

or

"kinship"

between

the son's

heirs,

who

must

have

been

colla

terals,

and

the

ex-slaves,

whereas

such

a

relationship

existed

between

the

ex-slaves and the blood relatives of the women.

An

institution

which

has had

a

chequered

history

in

Islam

and

which

still

holds

sway

in

some

Islamic

countries

is that of

preemption

(shuf'ah)

whereby

a

person

would substitute himself for the

buyer

in

a

completed

sale

of real

property.

As

fully

developed

this institution would

give

the

right

of

substitution

to

the

following

persons

in order: the

co-owner,

the

owner

of

a

servitude

in the

property,

and

the

owner

of

an

adjoining

pro

perty.23 Doubtless, the basic reason for this institution is the natural

desire

to

keep

an

outsider

or

a

stranger

out

of

a

family property

or

a

tightly

knit

neighbourhood.

This

desire

must

have

become

gradually

stranger

with

the

passage

of

time,

the

spread

of

Islam,

and

the

development

of



10/12

al-muwatta'

as

a

source

307

cosmopolitan

centres with an

admixture

of

populations

of

many

races.

Later

Hanafi

works

devote

large

sections

to

the

legal

incidents

of

this

ins

titution

and

to

the

strict

procedure

to

be

followed

if

a

claimant

is

to

be

successful.

But

al-Muwafta*

devotes

only

four

pages

to

it,

and

what

is

more,

it

limits the

right

of

preemption

to

the

co-owner.24

There

is

no

mention

of

a

khalff

?

or

owner

of

a

servitude

in

the

property

?

or

of

a

neighbour.

A

social

historian

should

not

be

surprised

at

this. Medina's

milieu is

mostly

Arab

?

except

for

traders,

singers,

slaves

and ex-slaves

etc., and the

owners of real

property

are

still the old families of Medina.

The need

for

a

well-developed

doctrine of

preemption

to

keep strangers

out

had

not

arisen

as

it

had

in

Iraq,

with

its

cosmopolitan

population,

where

Hanafi

law

was

being

expounded.

Other

questions

of

anthropological

interest

that

illuminate

the

Hijazi

scene for

the social historian deal

with funeral

and

burial

practices.

Malik

reports

that

Ab?

Hurayrah,

a

well-known

Companion

of

the

Prophet,

"forbade

that

he

be

followed

by

fire

after

his

death,"

and

Malik

himself

censures

this

practice.25

Now,

what

is

this

fire?

Was

it

a

pre-Islamic

heathen

practice

that

was

continued

for

a

brief

time

during

Islam,

or

was

it

a

Zoroastrian

practice

that

left its

traces

in

Arabia? Other

surces

have

no

explanation

for

this

enigmatic

reference.

In

burial

practices

there

seems

to

have been

a

difference

between

those

of

Mecca and

those of

Medina

going

back into

pre-Islamic

times. This

is

apparent

in

the

report

given

by

M?lik

?

and doubtless

by

many

badlth

and

slrah

works

?

about

the

interment

of

the

Prophet. According

to

this

report

there

were

in

Medina two men who buried the dead, one of whom prepared burial

niches

(yalbad),

while

the

other

did

not

so

prepare.

They

(the

Muslims)

said.

"Whoever

comes

first

will

be

allowed

to

follow his

own

practice."

The

man

who

prepared

niches

came

first,

so

he

prepared

a

niche for the

Messenger

of

God.26 In

commenting

on

this

text,

al-Suy?fi

says

that

one

man

was

from

Mecca where the

practice

was

to

dig

a

ditch

(shaqq),

and

the

other,

who

prepared

the tomb for

the

Prophet,

was

from

Medina

where

the

practice

was

to

build

niches.27

Why

the

difference

between

the two

Hijazi

cities?

One

can

speculate

that

Medina,

being

an

oasis,

had

a

more

settled

existence going back in time; its tombs, therefore, reflected this permanence

and settlement.

Mecca,

on

the

other

hand,

even

though

engaged

in

com

merce,

was

very

close

to

Bedouin

life

where

the

more

austere

nomadic

existence

would

permit

only

a

ditch

in

the

ground

for

burying

the

dead.



11/12

308

FARHAT J.

ZIADEH

finally,

matters

of

witchcraft,

and

popular

beliefs

might

be

of

interest

to

the

social historian.

Abhorrence

of witchcraft

must

have

been

justas

strong

in

early

Islam

as

it

was

in

Salem,

Massachusetts,

in

Colonial

Ame

rica,

with similar

results.

Malik

reports

that

Hafsah,

the

wife

of

the

Prophet,

ordered the

killing

of

a

slave

girl

she

had

tentatively

freed

(with

freedom

to

take

effect

after Hafsah's

death)

because

the slave

girl

had

prac

ticed witchcraft

against

her.

He

defines

a

witch

or

sorcerer

as a

person

who himself

practices

witchcraft

and

not

a

person

who

procures

another

so to do. He further opines that a witch or sorcerer should be killed.28

It

is

obvious that

the

motive

of the

supposed

witch

in

Hafsah's

case was

to

cause

the

death

of

Hafsah

so

that

she would

hasten

her

freedom after

such

death,

but is

every

practice

of

witchcraft,

short

of

causing

death,

to

be

punished

by

death?

The

Commentators

do

not

enlighten

us on

that,

nor

do

we

know

of other

instances where

witches

were

killed.

As

can

be

seen,

these

soundings

in

al-Muwatta'

can

produce

some

substantial

information

and

some

information

which is

tantalizing

because

of

its

brevity.

But

in

either

case

such

information,

added

sometimes

to

information

from other

sources,

might

be

very

valuable

and

might

fill

some

gaps

in

our

understanding

of

the

social

and

economic

history

of

the

Hijaz.

NOTES

1.

Partnership

nd

Profit

in

Medieval

Islam,

Princeton,

1970,

pp.

16,

142-143,

175

et

passim.

For

his

summary

n

English

of

the

"Book of

Qir??l"

of

al-Muwafta'

see

Speculum

37

(1962),

pp.

204-207.

2.

Joseph

Schacht, E.I.,

1st ed.

III,

pp.

206-207.

3.

Amin

al-Khawli,Malik,

Tar

amah

Muharrarah,

Cairo

1951,

Vol.

Ill,

p.

705.

4

See; Joseph

Schacht,

Origins

of

Muhammadan

Jurisprudence,

xford,

1950,

pp.

62*63.

5.

M?lik ihn

Anas,

al-Muwaffa'mth

commentary

ntitled

anwtr

l-ffaw?lik

by

'Abd

al-Rahm?n

a?-Suy?ti, airo, 1951,

Vol.

I,

p.

203.

6.

Ibid.,

p.

206.

7.

Ibid.,

p.

198.

8.

Ibid.,

pp..

198-199.

9.

Ibid.,

p.

208.

10.

Ibid.,

Vol.

II,

p,

46.



12/12

al-muwatta'

as

a

source

309

11.

Ibid.,

Vol.

II,

p.

63,

and

Mubammad

al-Zurq?ni,

Shark

Muwafta'

aUIm?m

Malik,

Cairo,

1961,

Vol.

IV,

p.

239.

12.

Zurq?ni,

Vol.

IV,

p.

276.

13.

Ibid.

14. M?lik

ibn

Anas,

op.

cit.,

Vol.

II,

p.

72,

and

Zurq?ni,

op.

cit.,

Vol.

IV,

p.

263.

15. M?lik

ibn

Anas,

op.

cit.,

Vol.

II,

p.

88.

16.

See

Udovitch,

op.

cit.,

pp.

172-173 for

other

instances

where

qir?i

was

employed.

17.

On

these

points,

see

D.S.

Margoliouth,

'Omar's

Instructions

to

the

Q??to."

J.R.A.S.

Vol.42

(1910)

pp.

307-326,

and E.

Tyan,

Histoire de

L'Organisation

Judiciaire

en

Pays

d'Islam,

Paris, 1938,

Vol.

I, pp.

104-113.

For

an

instance where

Marw?n, the mayyad governor fMedina acted also as judge, seeM?lik ibnAnas,

op.

cit.,

Vol.

II,

p.

112.

18.

Ibid.,

pp.

101-102.

19. See

N.

J.

Coulson,

Succession

in

the

uslim

Family,

Cambridge,

1971,

p.

10.

n.

1

20.

M?lik ibn

Anas.,

op.

cit.,

Vol.

2,

p.

143.

21. He

had

been

appointed

governor

of

Medina

by

the

Umayyad Caliph

'Abdulmalik

ibn

Marw?n.

He

died

in

105A.H.

22.

M?lik

ibn

Anas,

op.

cit.,

Vol.

II,

p.

145.

23.

See

Joseph chacht,

An

Introduction

o

slamic

Law,

Oxford, 1964,

p.

142.

24.

M?lik

ibn

Anas,

op.

cit.,

Vol.

II,

pp.

103-106, specially

105.

25. Ibid., Vol. I, p. 176.

25.

Ibid.,

Vol.

I,

p.

180.

27.

Ibid.

28.

Ibid.,

Vol.

II,

p.

193.

al-muwatta - as a source for the social and economic history of the hijaz

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