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The grammars of adjudication

Zouhair Ghazzal


Appendix 2: Ibn ‘Abidin’s Epistles

Texte intégral

1Muammad Amīn Ibn ‘Ābidīn, Majm‚‘at rasā’il Ibn ‘Ābidīn (Beirut: Dār Iyā’ al-Turāth al-‘Arabī, n.d.).

2The Beirut facsimile edition of Ibn ‘Ābidīn’s rasā’il was poorly edited—no surprise! First (besides the fact that this edition has no date), the table of contents only headlines the rasā’il in part two, and even that comes with the wrong page numbers! In fact, this single volume is in two parts, each containing a different set of rasā’il. In part one, which does not have a table of contents, the “epistles” were originally numbered, from one to fifteen; while part two has sixteen more but left without numbers (apparently an omission in the original manuscript itself, or in the first printed edition).

Part one

3Bolded chapters with an asterisk have been extensively used in this study, in particular in Chapters 1 & 2. Those with an asterisk only have also been subject to analysis.

41. Short piece (2-8), sort of general introduction to the work.

52*. Fundamental epistle, referred to as man‚ma, and one of the longest of the set (9-53), but also one of the most important because of its general claims. In fact, Ibn ‘Ābidīn establishes the “method” through which opinions were made and unmade; the role attributed to the u‚l and fur‚‘; the hierarchy (t¸abaqāt) between the various brands of scholars, those who push hard for personal interpretation, and their followers (the mujtahids and the muqallids); the significance of differences of opinions between the three founders; how “necessity” (ar‚ra) could force an opinion contrary to what the founders said; why custom was important, and why understanding the linguistic customary practices within a community was important.

6In short, this epistle, with the curious title of “‘Uq‚d rasm al-muftī,” is a fundamental piece describing how the system works in terms of 1) the hierarchy between the various historical opinions; 2) the importance of custom in creating—and forcing the system—into new opinions; 3) and as a result of custom, why some opinions became untenable and obsolete thus forcing the system into new ones—out of “necessity” (ar‚ra)—even though they might not conform to the basic rule of analogy (qiyās); and finally 4) the importance of language in understanding customary practices.

7In addition, all the above should be connected to contract, obligation, and restitution. Since most of our cases are property oriented, it is fundamental that we understand the legal implications of debt, damage, assessment, evaluation, daf‘, and the like.

83. The third epistle, “al-Fawā’id al-mukhaṣṣaa bi-akām Kay al-uma” (54-67), is concerned with the blood that comes on one’s head from a cut and how this might affect ablution. An interesting risāla on the anthropology of the body.

94. A long essay on the issue of ay (68-119).

105. An essay on body positions during praying (120-137).

116. An essay on praying and takbīr (138-151).

127*. On the right of receiving an ujra (“fee”) on reciting, teaching, and reading the Qur’ān (152-207), and also on wills (waāyā), rulings, etc. Should be read in conjunction with our previous findings on rulings and custom.

138. One page (208) letter.

149. Epistle on the “seeing” of Hilāl Ramaān (209-231).

1510. Also on Ramaān (232-240).

1611. On ujras for nursing (aāna) (242-254).

1712*. On the notion of qarāba. Should be read in conjunction with successions and wills and in the context of all the family cases in the sharī‘a courts (255-269).

1813*. The importance of laf and how it necessarily connects to custom (269-283).

1914. On sin (284-291).

2015. [*in part] On the murtadds (“renegades”) and those who converted to Islam: qub‚l tawbat al-murtadd (292-349). Parts of the risāla (326ff) on how judges should rule on the renegades could be relevant for adjudication (291‑349).

Part two

211. Dividing the revenues of a waqf (2-16).

222*. Epistle on what was meant by the term ‘ala al-farīa al-shar‘iyya in the kitāb al-waqf: Did it imply that, as was the case for successions, women as beneficiaries of the waqf’s revenues should have half of the males or an equal amount, as some jurists argued? Ibn ‘Ābidīn’s reply was blended with his notions on language and custom (18-32).

233*. The notion of aqrab (the closest kin) in the waqf (33-45).

244. When two decide for a self-bequeathed waqf, it ought to be considered as one rather than two (45-54).

255*. On money and its value (“Tanbīh al-ruq‚d ‘ala mas’alat al-nuq‚d”) (55-65). The epistle follows anafism in general by not questioning money (naqd, nuq‚d; ‘umla, ‘umulāt) as such, but limits itself only to potential problems that might arise whenever a contract includes a monetary exchange. Such problems are reduced to two sorts: either the currency has lost some of its value by the time the contract is fulfilled, or else it has been abandoned totally in the locality in question as a tool for evaluation and exchange. In either case, the contracting parties should stick to the original modalities of the contract and reassess the new currency in terms of the old.

266. iḥḥat al-faskh bi-khiyār al-ghibn al-fāish: On the right of non-performance when the other party has pushed for excessive gains (65-82).

277*. Buūlān al-ukm bi-naq al-da‘wa ba‘da al-ibrā’ al-‘āmm: detailed case of the Jew Raphael (83-93).

288. Mas’alat al-iqrār al-‘āmm: when an inheritor acknowledges that he or she received all their dues from a succession (tarika) (94-111).

299*. On custom and habit (112-145).

3010. On rent: the first tenant should be privileged (146-163).

3111. On the distribution of a waqf’s revenues (164-178).

3212. Poetry (179-184).

3313. On the rules of inheritance (186-276).

3414. On praying rituals (277-283).

© Presses de l’Ifpo, 2007

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