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IBN AL-ʽ ARABĪ AND AL-QURT.UBĪ) 1

Delfina Serrano ILC, CSIC, Madrid (Spain)

It is no exaggeration to say that the Arabic Islamic sources depicting Andalusi Christians and Jews in action before the sharīʽa court and the reasons for their eventual resort to Islamic judicial authorities to the detriment of their own con-fessional tribunals is limited to a handful of fatwās and some scattered news transmitted in non legal sources. However scanty, these pieces of evidence yield valuable data on the subject when read between the lines in the light of the infor-mation provided by legal sources of other genres and by non legal sources from the same or different chronological and local settings. Yet a comparison with the potential for researching forum shopping offered by Ottoman court records, for example, may result depressing to students of the pre-modern Islamic West, where

1 Research to write this article has been carried out within the I+D Project ‘In the footsteps of Abū `Alī al-Ṣadafī: tradition and devotion in al-Andalus (XI–XIII centuries)’ funded by the Spanish Ministry of Economy and Competitiveness, ref. FFI2013‒43172-P. I have consciously opted for the expression ‘fo-rum shopping’ instead of that of ‘legal pluralism’ for though there was judicial pluralism in al-Andalus, Muslims were in principle not allowed to resort to non-Maliki judges, let alone non-Muslim judges, and the extent to which they could freely choose between different Muslim judicial instances (e.g. the qāḍī, the non-qāḍī judge, the ṣāḥib al-maẓālim, the ṣāḥib al-madīna, the ṣāḥib al-shurṭa or the ṣāḥib al-ḥisba wa-l-sūq) is not clear for lack of sufficient evidence. All we know (thanks to the work of Christian Müller) is that non-qāḍī judges could be given judicial competences that were, in theory, exclusive of qāḍīs. In using the expression ‘forum shopping’ I am aware that appearing before a Muslim judge may not have resulted only from dhimmīs’ will but been imposed by circumstances that are not explicit in the sources on which we draw to illustrate this practice. Both considerations were raised by Uriel Simonsohn and Nathan Brown respectively in a brainstorming workshop on ‘Law and Society in the Middle East’ organ-ized by Avi Rubin and Haggai Ram and held at Ben Gurion University (Beer-Sheva, Israel) on January 3‒4, 2015. A typical case in which resort to a Muslim judge was imposed by the circumstances is that of the Andalusi Christians deported to Fez and Meknes in 1126 ce for having allegedly aided the Christian king of Aragon, Alfonso the 1rst, in his famous raid against al-Andalus a year before; those Christians subsequently requested from Muslim authorities permission to sell the properties they had left behind in al-Andalus. For a recent analysis of this case see my ‘El recurso a las autoridades musulmanas por parte de los dimmíes en el Occidente islámico: de nuevo sobre la deportación de los cristianos tributarios al Magreb en 1126 d.C. (fetua de Ibn Ward)’ in F. Roldán (ed.), Culturas de al-Andalus’, Sevilla: Universidad, 2015: 175–94.

Law and Religious Minorities in Medieval Societies: Between Theory and Praxis, ed. by Ana Echevarria, Juan Pedro Monferrer-Sala and John Tolan, RELMIN 9 (Turnhout Brepols, 2016), pp. @@–@@

© FHG 10.1484/M.RELMIN-EB.5.109356

such sources are practically non-existent. Be that as it may falling into despair will only be allowed when the possibilities offered by the many — and for the most part still unexplored — legal sources already at our disposal, have been exhausted to explore the phenomenon of forum shopping in al-Andalus, and many others, a stage we are very far from having reached yet.

With the aim to expand our present knowledge on forum shopping in al-Andalus this paper is going to focus discussions about the Coran verses that use to be quoted by Muslim jurists when addressing Christians’ and Jews’2 voluntary resort to Islamic justice, to wit, Qurʼān V 42 and 49.3 The discussions I am going to deal with are either inserted in compilations of legal doctrine, like the two texts that are going to be examined in first place, or drawn from legal commen-taries of the Qurʼān, as is the case with the two remaining texts. The first two texts that are going to be examined below have already been used in a forthcom-ing publication on forum shoppforthcom-ing in al-Andalus.4 There every jurist’s specific interpretation of the relevant verses could not be discussed in full but inserted

— in a summarized form — into each individual treatment of forum shopping, which transcends the verses in question and the Qur’ān as a legal source. Actually, these texts are excerpts from Ibn Rushd al-Jadd’s al-Bayān wa-l-taḥsīl — the latter work being a commentary to an earlier compilation of Maliki doctrine, namely al-Utbī’s Mustakhraja- and from Ibn Ḥazm’s Muhallā.5 The remaining two discus-sions come from the Qurʼān commentaries by Abū Bakr Ibn al-ʽArabī (d. 542 or 543/1147 or 1148)6 and Abū ʽAbd Allāh Muḥammad b. Abī Bakr Ibn Faḥr

2 Though I am aware that the category of dhimmī includes the Zoroastrians as well, they are irrelevant as a distinctive social category in the history of the pre-modern Islamic West.

3 i.e. we start from locating commentaries or analysis of these specific verses in the selected sources (on which see below) but as we are going to show in what follows, other Qur’ān verses are also discussed in their connection, each author making his own association between the fundamental verses (i.e. Qur’ān V 42 and 49) and those he considers relevant to explain or further substantiate his particular interpretation of those verses.

4 See Delfina Serrano Ruano, ‘Lā yajūz li-ḥukm al-muslimīn an yaḥkum bayna-humā: Ibn Rushd al-Jadd (Cordoba, d. 1126 c.e.) and the restriction of dhimmīs’ shopping for Islamic judicial forums in al-Andalus’, forthcoming in John Tolan et al. (eds), Medieval Minorities: Law and Multiconfessional Societies in the Middle Ages, section on ‘The functioning of justice in multiconfessional societies’, Religion and Law in Medieval Christian Societies (RELMIN 5), Nantes: Brepols.

5 See Ibn Rushd al-Jadd, Abū l-Walīd Muḥammad b. Aḥmad, al-Bayān taḥṣīl sharḥ wa-l-tawjīh wa-l-ta’līl fī masā’il al-Mustakhraja, ed. Muḥammad Hajjī, Beirut: Dar al-Gharb al-Islāmī, 1984, 20 vols, IV: 186‒87; IX: 293‒94; X: 21‒23; Ibn Ḥazm, Abū Muḥammad `Alī b. Aḥmad, al-Muḥallà, ed.

Aḥmad Muḥammadshā Kara, Cairo: Maṭba`at al-nahḍa, 1928‒34, 11 vols, IX: 425‒26, question (mas’ala) number 1795. On Ibn Ḥazm see now Adang, Camilla, Fierro, Maribel & Schmidtke, Sabine (eds), Ibn Ḥazm of Cordoba. The Life and Works of a Controversial Thinker, Leiden-Boston: Brill, 2013. On Ibn Rushd al-Jadd see Serrano Ruano, Delfina, ‘Ibn Rushd al-Jadd’ in Oussama Arabi, David Powers & Susan Spectorsky (eds), Islamic Legal Thought. A Compendium of Muslim Jurists, Leiden: Brill, 2013: 295‒322.

6 See Abū Bakr Muḥammad b. `Abd Allāh b. Muḥammad b. `Abd Allāh b. Aḥmad b. Muḥammad b. `Abd Allāh al-Ma`āfirī al-Ishbīlī, Aḥkām al-Qur’ān, new improved ed. by Muḥammad `Abd al-Qādir

`Aṭā, Beirut: Dār al-kutub al-`ilmiyya, 2003 (3rd ed.), 4 vols, II: 123‒27 (Coran V 42) and 136‒37 (Coran V

al-Anṣārī al-Khazrajī al-Qurṭubī (born in Cordoba, d. Egypt 671/1272),7 both held until our very days as most authoritative and exemplary models of the genre of legal qurʼānic exegesis within and outside Malikism’s sphere of influence.

The first two discussions are thus included mainly for the sake of detail and comparison since they have already been put to contribution to study forum shopping in an earlier publication of mine (see above). An examination of the contents of the two remaining texts in the light of the former ones reveal Abū Bakr Ibn al-ʽArabī (henceforth ABIA) as the main protagonist of the present search for illustrations of Muslim jurists’ discourse on forum shopping and the judicial organization of Andalusi dhimmīs. His nuanced, at times inclusive and even apologetic perspective on the validity and unexpired continuity of the dhimma covenant should not be a surprise in a Sunni Maliki jurist like him. Yet this perspective has come somehow unexpectedly for a student used to charac-terizations of ABIA as a staunch anti-Christian Andalusi Muslim polemicist8 who adopted harsh measures against the consumption of wine during his ten-ure as qāḍī of Seville to make a public show of his particular interpretation of the principle of enjoining good and forbidding evil.9 Moreover, he expressed his

49). On his biography see Lucini, María Mercedes, ‘Ibn al-`Arabī, Abū Bakr’ in Jorge Lirola Delgado and José Miguel Puerta Vílchez (dirs.), Enciclopedia de al-Andalus. Diccionario de autores y obras andalusíes, I, Sevilla-Granada, 2002: 457‒68. For a general overview on the contents of Aḥkām al-Qur’ān and their significance see Serrano Ruano, Delfina, ‘El Corán como fuente de legislación islámica: Abū Bakr Ibn al-‘Arabī y su obra Aḥkām al-Qur’ān’ in Miguel Hernando de Larramendi y Salvador Peña (Coords.), El Corán ayer y hoy. Perspectivas actuales sobre el Islam. Estudios en honor del profesor Julio Cortés, Córdoba: Berenice, 2008: 251‒75.

7 See Abū `Abd Allāh Muḥammad b. Aḥmad b. Abī Bakr b. Farḥ Anṣārī Khazrajī Qurṭubī, al-Jāmi` li-aḥkām al-Qur’ān wa-l-mubayyin li-mā taḍammana-hu min al-sunna wa-āy al-furqān, ed. `Abd Allāh b. `Abd al-Muḥsin al-Turkī, Beirut: Mu’assasat al-Risāla li-l-ṭibā`a wa-l-nashr wa-l-tawzī`, 2006, VII: 488‒94 (Qur’ān V 42) and VIII: 40‒43 (Qur’ān V 49). Notwithstanding the relevance of his works, the Jāmi` very much in particular, data on Qurṭubī’s life are scanty, a fact that is in tune with the scarcity of secondary literature dedicated to assess his contribution. See ‘Ibn Farḥ al-Qurṭubī, Abū `Abd Allāh’

in Jorge Lirola Delgado and José Miguel Puerta Vílchez (dirs & eds), Biblioteca de al-Andalus, III, de Ibn al-Dabbāg a Ibn Kurz, Almería: Fundación Ibn Tufayl de Estudios Árabes, 2004: 113–16, number 451 [en-try prepared by the Editorial Board]. On Qurṭubī’s Jāmi` see Rippin, Andrew, Muslims. Their Religious Beliefs and Practices, London-New York: Routledge, 2001: 154‒55.

8 Dominique Urvoy qualifies him as one of the main moral and political authorities of his time and as-serts that he and Qāḍī `Iyāḍ b. Mūsà were the most relevant anti-Christian polemicists of the Almoravid period. See Pensers d’al-Andalus. La vie intellectuelle a Codoue et Seville au temps des empires ber-beres (Fin XIe siècle-début XIIIe siècle), Toulouse: Presses Universitaires du Mirail-Editions du CNRS, 1990: 83, 166. Also see Fierro, Maribel, ‘La religión’, in María Jesús Viguera et al., El retroceso territorial de al-Andalus. Almorávides y almohades. siglos XI al XIII, Historia de España Menéndez Pidal, VIII–II, Madrid: Espasa Calpe, 1997: 531, 533.

9 This specific aspect of ABIA’s performance of qāḍīship in Seville is mentioned by a number of schol-ars but — to the best of my knowledge — the only one who identifies the correct relevant source, to wit, Ibn Idhārī’s al-Bayān al-Mughrib, is Manuela Marín (see ‘En los márgenes de la ley: el consumo de alcohol en al-Andalus’ in Cristina de la Puente (ed.), Identidades marginales. Estudios Onomástico-Biográficos de al-Andalus, XIII, Madrid: CSIC, 2003: 302, note 111). According to Ibn `Idhārī, ABIA’s

vehement rejection of other Qur’ān exegetes’ tendency to resort to traditions coming from Judaism (isrā’īliyyat)10 and likened Muslim anthropomorphists with the Jews in an extreme expression of abhorrence for those of his coreligionists whom he considered guilty of what he held to be the worst theological abomina-tion plaguing his times.11 Last, but not least, he did not limit himself to encour-age the rulers and his fellow Andalusis to practice jihād against north Iberian Christians but took an active part as a combatant in several of the ensuing military campaigns.12 Contrast is certainly not the most striking feature of ABIA’s remarks on the legal exegesis of Qurʼān V 42 & 49, but the singularity of his stress on the continued validity of the dhimma covenant, for such an emphasis is absent from the remaining authors’ approach, as well as, and above all, chronology. ABIA was arguing against the abolition of the dhimma pact in the eve of the Almohad con-quest of al-Andalus.13 For their new subjects, these political events meant forced adherence to the Almohad creed which, in the case of the Christians and the Jews among them, translated into a prohibition to practice their faiths. The reasons for the Almohads’ abolition of the dhimma pact are not explicit in the written

agents intercepted a [Muslim] merchant who was carrying wine without having previously declared it before him in an attempt to divest it from his attention. When the man was questioned by the qāḍī, he fainted [scared by the qāḍī’s dreadful reputation], denied the charges and said that the wine belonged to a female Christian servant of his for whom he had just bought it since her people’s sacred law (shar`) allowed its consumption. ABIA exploded then and declared God’s curse upon the seller and the buyer, the producer and the carrier, and upon the merchandise itself. Subsequently he ordered that this curse be implemented and made public, after which the merchant had to abandon the country since declaring him shunned was the worst possible punishment that the qāḍī might have inflicted on him — harsher than the physical punishment the same qāḍī had previously applied to a flautist in order to prevent him from exerting his art any more — [since the merchant could no longer practice his trade]. The interpretation of the Arabic text according to Iḥṣān `Abbās’ edition, where several lacunas are marked by the editor, is mine. Also see Serrano Ruano, ‘El Corán como fuente de legislación’, pp. 255‒56. ABIA’s attitude towards the consumption of wine appears to have been much less moderate than his predecessor’s, Ibn Rushd al-Jadd (see Hernández, Adday, ‘La compraventa de vino entre musulmanes y cristianos dimmíes a través de textos jurídicos malikíes del Occidente islámico medieval’ in Fierro and Tolan (eds), The Legal status of dimmi-s, pp. 254, 263‒70), but as intolerant as his contemporary’s, Qāḍī `Iyāḍ (See Serrano Ruano, Delfina, ‘`Iyāḍ b. Mūsā’ in Jorge Lirola (ed.), Biblioteca de al-Andalus, VI Almería: Fundación Ibn Tufayl de Estudios Árabes, 2009: 408, 410.

10 See my ‘El Corán como fuente de legislación’, p. 263, and note 30.

11 See my ‘¿Por qué llamaron los almohades antropomorfistas a los almorávides?’ in Maribel Fierro, Patrice Cressier & Luis Molina (eds), Los almohades: problemas y perspectivas, Madrid: CSIC/Casa de Velázquez, 2005, 2 vols, II: 833‒34.

12 See Fierro, ‘La religión’, p. 440; Lucini, ‘Ibn al-`Arabī, Abī Bakr’, p. 459 and Serrano Ruano, ‘El Corán como fuente de legislación islámica’, p. 256.

13 Some of the preserved copies of ABIA’s Aḥkām al-qur’ān mention 503/1109 as end-date but Sa`d A`rāb points out that this is probably a confusion with 530/1134‒35 when ABIA retired to Cordoba, after resigning from his post as qāḍī of Seville, to teach and probably also, to write his works. See Serrano Ruano, ‘El Corán como fuente de legislación islámica’, pp. 257, 265.

sources comprising their ideology.14 This fact has led some scholars to search for plausible origins and precedents in both Islamic doctrine and history.15 The ad-vantage offered by focusing on sources compiled by an author who, like ABIA, not only witnessed but also suffered the consequences of the power shift from the Almoravids to the Almohads16 is that in his efforts to avoid its consequences — which he was able to anticipate — he counter-argued and in this way provided us with important clues to approach elements of the nascent Almohad ideology

— with all its apparent contradictions and fluctuations — that are not explicit in the literature produced in the wake of the movement and within its own ranks.

ABIA made clear and direct references to the source of the doctrines he strived to nuance or to undermine. It is true that one has to take the trouble to read a series of pages written in a convoluted Arabic style — which looks all the more discouraging when it is compared with Qurṭubī’s clear and terse prose — and to live with the uncertainty of having understood him well.

In his works, ABIA displays a strong personality and confidence in his ca-pacity to defeat his antagonists based on the scholarly credentials he acquired during his long stay in the East, where he could study with no more and no less an outstanding intellectual and spiritual authority as al-Ghazālī. No doubt, the soundness of his scholarly training and his social pedigree — he was the son of a high rank official who had been at the service of the ʽAbbādid taifa rulers of Seville — inclined him to face his antagonists with a sense of superiority but also with a rare frankness that led him to challenge stylistic and social conven-tions — in the same way he challenged received wisdom — to the detriment of hint and indirect style. Thanks to this psychological and intellectual constitution, specific details about persons, places and facts involved in the ideas ABIA strived

14 For a summary of the most relevant bibliography on this question see my ‘Explicit cruelty, implicit compassion: Judaism, forced conversions and the genealogy of the Banū Rushd’, Journal of Medieval Iberian Studies, 2 (2010), pp. 217‒33. In this article I explore Averroes’ genealogy in connection with his falling into disgrace, his ensuing banishment to Lucena and the rumour according to which his family descended from Jews and had no connection with the Cordoban Arab aristocracy.

15 See Maribel Fierro, ‘Conversion, ancestry and universal religion: the case of the Almohads in the Islamic West (sixth/twelth-seventh/thirteenth centuries)’, Journal of Medieval Iberian Studies, 2 (2010), pp. 155‒73, at 157‒60, and especially, also by the same author, ‘Muslim Land without Jews or Christians:

Almohad policies regarding the protected people’ in Matthias M. Tischler and Alexander Fidora (eds), Christlicher Norden — Muslimischer Süden. Anspruche und Wirklichkeiten von Christen, Juden und Muslimen auf der iberischen Halbinsel im Hoch- und Spätmittelalter, Münster: Aschendorff Verlag, 2011: 231‒47.

16 He lost one of his sons while trying to resist the assault of the Almohad troops over Seville. After the defeat, ABIA took part in the delegation of Sevillan notables who travelled to Marrakech to pay al-legiance to `Abd al-Mu’min, the new Almohad caliph. Rumour has it that he was poisoned by one of his disciples in their way back to al-Andalus, being buried in Fez where visit of his tomb continues to be a must-stop in the veneration (ziyāra) of a number of local saints also including Qāḍī `Iyāḍ’s burial place in Marraquech. See Lagardère, Vincent, ‘Abū Bakr b. al-`Arabī, grand cadi de Seville’, Revue de l’Occident Musulman et de la Méditerranée, XL/2 (1985), pp. 91‒102 and Lucini, ‘Ibn al-`Arabī, Abū Bakr’, p. 459.

to refute or to promote have been preserved for us, making the risk to expose the researcher’s interpretive and linguistic gaps worth the pain.

Al-Qurṭubī, for his part, bears a series of singular positions that approach him to Ibn Ḥazm’s integral conception of Islamic jurisdiction, i.e. he advocates for a limitation of dhimmīs’ legal autonomy. Yet Qurṭubī’s view is not rooted in a literal interpretation of the relevant sacred sources, but only on practicality and state se-curity considerations. However, and like Averroes — who remained in al-Andalus for all of his life — al-Qurṭubī — whose first training period elapsed before leav-ing for the East —17 writes as if nothing had changed concerning dhimmīs’ right

Al-Qurṭubī, for his part, bears a series of singular positions that approach him to Ibn Ḥazm’s integral conception of Islamic jurisdiction, i.e. he advocates for a limitation of dhimmīs’ legal autonomy. Yet Qurṭubī’s view is not rooted in a literal interpretation of the relevant sacred sources, but only on practicality and state se-curity considerations. However, and like Averroes — who remained in al-Andalus for all of his life — al-Qurṭubī — whose first training period elapsed before leav-ing for the East —17 writes as if nothing had changed concerning dhimmīs’ right