"Empires differ from nation-states as political entities. Jane Burbank and Fredrick Cooper explain that “the concept of empire presumes that different peoples within the polity will be governed differently.” (4) Unlike state law, imperial law is negotiated, not imposed. (5)"

(4) Jane Burbank and Fredrick Cooper, Empires in World History: Power and Politics of Difference (Princeton: Princeton University Press, 2010), 8.

(5) Jill Harries, Law and Empire in Late Antiquity (Cambridge: Cambridge University Press, 1999), 36.

📚 Ayoub, Samy A. Law, Empire, and the Sultan: Ottoman Imperial Authority and Late Ḥanafī Jurisprudence. Oxford University Press, 2020.

#history #jurisprudence #legal_pluralism

"[...] confining the practical aspects of Islamic law to the Ottoman judiciary (court records and registers) rests on a mischaracterization of how late Ḥanafīs viewed the process of legal practice. In contrast to common law, which is found in precedents established by courts of law, Islamic law exists in a body of writings authored by jurists and muftīs. (13) It would thus be misguided to attempt to understand juridical practice and reasoning in the Ottoman Empire without taking into account the authoritative positions of the madhhab at the time. The assumption that books of jurisprudence address theory while fatāwā and court records reflect actual practice and social reality is not indicative of the substance of the legal discourse of late Ḥanafī jurists. (14) The latter insisted that the legal and judicial norms contained in their authoritative legal works should be prioritized above fatwā collections and adopted by judges in their legal rulings. (15)"

15. Ibn Nujaym, al-Baḥr al-Rāʾiq, 1:61; Ibn ʿĀbidīn, Minḥat al-Khāliq ʿalā al-Baḥr al-Rāʾiq, published together with al-Baḥr al-Rāʾiq by Ibn Nujaym (Cairo: Dār al-Kitāb al-Islāmī, n.d.), 1:89. They emphasize: “It is established that what is in the mutūn should be prioritized over what is in the shurūḥ, and what is in the shurūḥ should precede what is in the fatāwā.” See also Shaykh-Zāda, Majmaʿ al-Anhur fī Sharḥ Multaqā al-Abḥur (Beirut: Dār al-Kutub al-ʿIlmiyya, 1998), 1:341: “Al-iftāʾ bimā fī al-mutūn awlā.”

📚 Ayoub, Samy A. Law, Empire, and the Sultan: Ottoman Imperial Authority and Late Ḥanafī Jurisprudence. Oxford University Press, 2020.

#history #jurisprudence #ottoman #hanafi

"Ḥanafī legal literature from the Ottoman period draws a complex picture of the relationship between political and legal authorities. This literature recognizes a growing role for the Ottoman sultan in the making of Sunni jurisprudence. And it reveals spaces in which Ḥanafī legal doctrine was able to expand to incorporate the decisions and policies of the sultan. However, late Ḥanafī jurists did not take the contours of Ottoman imperial authority as given. They rejected, accepted, and expanded the policies and decisions made by the Sublime Porte. Ottoman sultans and their provincial deputies, such as governors, judges, and treasury officials, negotiated with Ḥanafī jurists on many issues involving political, social, and economic order in the Ottoman provinces. Their influence was mutual."

📚 Ayoub, Samy A. Law, Empire, and the Sultan: Ottoman Imperial Authority and Late Ḥanafī Jurisprudence. Oxford University Press, 2020.

#history #jurisprudence #ottoman #hanafi

https://youtu.be/GV61M3AAzSY

#arabic #poetry

"The case of women’s mosque attendance is important not only because it points to the different (and unexpected) ways in which legal logic develops but also because it illustrates how Ḥanafī legal culture responds to changes and dissenting opinions within the school. (34) According to the early Ḥanafī authority Muḥammad b. al-Ḥasan al-Shaybānī (d. 189/ 804), Abū Ḥanīfa declared (young) women’s attendance at congregational performance of Eid prayers, Friday prayers, and the five daily prayers to be undesirable, even though women had been permitted to attend these prayers in earlier times. (35) Abū Ḥanīfa made an exception only for old women, whom he allowed to attend dawn (fajr), evening (maghrib), and night (ʿishāʾ) prayers. (36) Al- Shaybānī himself addressed the case in different terms and language, reaching a divergent conclusion. Discussing the case of a woman who has prayed ẓuhr in her home instead of going to the congregational Friday prayer in the mosque but who then decides to attend the congregational prayer anyway, al- Shaybānī argued that it is the congregational Friday prayer, not the private one, that fulfills the woman’s obligation to pray. (37) In other words, for al-Shaybānī attendance at congregational prayers in the mosque is the default way of fulfilling the religious duty of worship also for a woman, whereas her prayers at home are considered voluntary. Al-Shaybānī’s peer Abū Yūsuf concurred with this position.

However, late Ḥanafī jurists dismissed the opinion of Abū Yūsuf and al-Shaybānī on the permissibility of women’s attendance at congregational prayers. In the late Ḥanafī tradition, the default opinion of the school on this issue is that of Abū Ḥanīfa. In al- Hidāya,ʿAlī b. Abī Bakr al- Marghīnānī (d. 1197) states that it is undesirable for young women to attend congregational prayers in the mosque because their presence may lead to fitna (social strife); but he, like Abū Ḥanīfa, permits old women to attend dawn, evening, and night prayers (38). This opinion is consistently described as the late Ḥanafī opinion in the majority of Mamluk and Ottoman Ḥanafī legal commentaries. (39)"

34. This issue is discussed consistently in both early and late Ḥanafī commentaries. See, for example, Muḥammad b. al-Ḥasan al-Shaybānī, al-Aṣl (Beirut: Dār Ibn Ḥazm, 2012), 1:323; al-Kāsānī, Badāʾiʿ al-Ṣanāʾiʿ (Beirut: Dār al- Kutub al- ʿIlmiyya, 1986), 1:125; Ibn Māza, al-Muḥīṭ al-Burhānī(Beirut: Dār al- Kutub al- ʿIlmiyya, 2004), 5:318. Behnam Sadeghi dedicates special attention to this case study in his investigation of Ḥanafī legal logic: Behnam Sadeghi, The Logic of Law Making in Islam: Women and Prayer in the Legal Tradition (Cambridge: Cambridge University Press, 2013), 105– 24.
35. Al-Shaybānī, al- Aṣl, 1:323.
36. Ibid.
37. Ibid., 1:309.
38. Al-Marghīnānī, al-Hidāya, 1:58.
39 For Mamluk Ḥanafīs, see al-Zaylaʿī, Tabyīn al- Ḥaqāʾiq, 1:126; al-ʿAynī, al-Bināya, 2:354– 56. For Ottoman Ḥanafīs, see al-Ḥalabī, Multaqā al-Abḥur, 1:164.

"We glean further insight into the late Ḥanafīs’ justification of their position in spite of its divergence from school precedent from the commentary written by Ibn Nujaym’s brother ʿUmar (d. 1596), al-Nahr al-Fāʾiq. (52) Surprisingly, ʿUmar b. Nujaym argues that the late Ḥanafī position is in fact based on Abū Ḥanīfa’s ruling. He explains that the late Ḥanafī’s total ban on women’s mosque attendance is driven by the prevalence of overwhelming desires (farṭ al-shahwa). In past centuries, he contends, depraved people did not go out into the streets during maghrib prayers because they were busy with dinner, nor during fajr and ʿishāʾ because they were asleep. But in his own time, such people are out in the streets at all times, propelled by their overpowering lewdness. Therefore, women must be prevented from going out in order to shield them from the sight of the depraved. (53) This argument not only carves out a new legal authority for the late Ḥanafīs but also points to the close connection of early Ḥanafī formulations to elements of time, custom, and circumstance. Late Ḥanafī jurists successfully employ these elements to reinterpret the positions of their madhhab. Ibn Nujaym justifies the new legal opinions put forward in his commentary that contravene those of the school’s founders by arguing that they reflect “the difference of time and circumstances.” (54) He also cites al- Zaylaʿī, who emphasized that Abū Ḥanīfa’s opinions were formulated to address issues in his time, but that in al-Zaylaʿī’s own time the circumstances were very different. (55)"

52. ʿUmar b. Nujaym, al-Nahr al-Fāʾiq, ed. Aḥmad ʿIzzū ʿInāya (Beirut: Dār al-Kutub al-ʿIlmiyya,
2002), 1:250– 51.
53. Ibid., 1:251.
54. Ibn Nujaym, al-Baḥr al-Rāʾiq, 6:229.
55 From the issue of mosque attendance, Ibn Nujaym shifts the discussion to the broader question of when a woman is allowed to go out. He derives this discussion from the Transoxanian Ḥanafī text Khulāṣat al-Fatāwā, in which the author, Ṭāhir b. Aḥmad al-Bukhārī, who was educated in Egypt and died in Transoxania, enumerates purposes for which a husband ought to permit his wife to go out— to visit, take care of, or offer condolences to her parents or to visit her maḥārim (relatives that she cannot marry)— as well as purposes for which she can go out with or without permission—namely, to work as a midwife, to wash the dead, or claim her legal right from others.

📚 Ayoub, Samy A. Law, Empire, and the Sultan: Ottoman Imperial Authority and Late Ḥanafī Jurisprudence. Oxford University Press, 2020.

#history #jurisprudence #ottoman #hanafi

Quick announcement:

Since Telegram now has an embedded Translate button, there is no point in doing any translations in the future. Going forward the content on this channel will likely consist of excerpts in the original language of the source that are of personal interest to me.

многие лезут в совершенно ненужные для них вопросы, углубляются в вопросы акыды, не могут ничего понять.

зачем? просто веруйте в то, что сказал Аллах и Его посланник, да благословит его Аллах и приветствует. халас, не углубляйтесь. оставьте ученым эти вопросы акыды, либо посвятите свою жизнь знаниям, станьте большим алимом и только потом говорите об этом.

никогда не было в исламе, кроме как в наше время, чтобы джахили говорили о вопросах акыды. обязательно человеку верить в аяты муташабихат в той форме, в которой они пришли, а также очищать Аллаха от всех недостатков. все.

фаида с урока по ильджам аль-авам