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Clearly the continued attempt to show how law and culture are interconnected is welcome. However, many of the problems found in Rosen's The
Anthropology of Justice are repeated in this book, even though as far back as
1990 some reviewers had already drawn attention to these problems. On top
of these old broad problems are some new ones affecting specic concepts
and issues. One hopes that subsequent works will take note of these concerns.
Hussein Hassan
Oxford Centre for Islamic Studies
Early Malik Law: Ibn [Abd al-Hakam and his Major Compendium of
Jurisprudence
By Jonathan E. Brockopp (Leiden: E. J. Brill, 2000), 312 pp.
Price HB NLG 185.11. ISBN 9004116281.
This is a book that proceeds somewhat difdently from what is in fact a
very solid foundation. From an examination of one small portion of an
early Malik legal text, Ibn [Abd al-Hakam's Mukhtasaror al-Mukhtasar
other Mukhtasars
al-kabr f l-qh to give it its full name, there being
attributed to him (see pp. 504)Brockopp is able to argue convincingly for
the existence of `a core of authentic material at the heart of texts such as
Malik's Muwatta]' (p. xv), which means, in effect, a core of authentic
material at the heart of the early Islamic legal tradition. However, since
Ibn [Abd al-Hakam's Mukhtasar is not concerned with Hadith texts as
with summary statements of the main judgments of qh,
such but rather
this `core of authentic material' relates in particular to Malik's `juristic
dicta' rather than his ahadth, in other words, to that part of the Muwatta]
own statements and opinions rather than his
that consists of Malik's
transmission of the words of others.
Brockopp argues his case rst by establishing that the Mukhtasar was
indeed written by Ibn [Abd al-Hakam and was done so some time before
the year 210 ah. He summarizes his argument in the following way:
(a) al-Mukhtasar al-kabr is a xed text which was compiled in a single
(b) the existence of several fourth-century manuscript
redactional effort;
fragments demonstrates a wide geographical spread for this text in the fourth
century, establishing a terminus ad quem for this redaction in the third
century or earlier; (c) transmission records in these fragments evince at least
two paths of transmission in the generation immediately following Ibn [Abd
al-Hakam's death; (d) comparison of manuscript witnesses to these two paths
of transmission
demonstrates that neither of these students could have been
the actual editor; therefore Ibn [Abd al-Hakam is the editor, and this text
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juristic dicta'
(p. xix) and, in particular, that `the material shared by
al-Mukhtasar al-kabr and Yahya b. Yahya's recension of the Muwatta] is an
lik b. Anas' thought from circa 150/767'
authentic representation of Ma
(p. 147). This is already a considerable advance in a eld where scepticism
about the `authenticity' of early sources seems to reign supreme. One cannot
help wondering though that if this is the case for Malik's `juristic dicta',
which form quite a considerable portion of the Muwatta], then one might
al-kabr defy description as ``organic'''(p. 69) and thus indicate a xed text,
whereas the various transmissions of the Muwatta], with their known textual
variations, have to be considered as pointing to an `organic' text, since they
clearly do not t the condition of being `consistent internally and across all
manuscript witnesses'. But this in a sense bypasses the critical, and admittedly
`debatable', question of authorship. If one is only prepared to name as author
someone who has produced a text `in a single redactional effort carried out
over a limited period of time', then obviously compilations such as the
Muwatta], which were composed over a relatively long period of time, do not
t this denition. One report in the traditional literature, for instance, tells
us of Malik referring disapprovingly to people who had learned his book
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in forty days when it had taken him forty years to complete (kitabun allaftuhu
f arba[na sanatan, akhadhtumuhu f arba[na yawman). Nevertheless, the
term used in Arabic is ta]lf, and mu]allif is precisely the term that one
would expect for `author', as it still is in present-day Arabic.
The point is surely that it is not the nature or format of the book that is
in question but the authenticity of the material in it. Whether the Muwatta]
Brockopp,
however,
downplays the similarities and highlights the differences,
pointing out that `al-Zuhr adds as many as ve to ten per cent more
paragraphs (including both Malik's dicta and authority hadith) than found
in the Layth recension' (p. 75). But what does this achieve? The traditional
sources have long since recognized that some transmissions are longer than
others, and freely acknowledge that, for instance, the transmissions of both
al-Zuhr and Abu Hudhafa al-Sahm contain some hundred ahadth more
said to be
than other transmissions,
although it is al-Qa[nab's that is actually
the largest (akbar). As for the transmissions of al-Shayban and Ibn Wahb,
Brockopp says that they `differ so drastically from the vulgate recension of
Yahya b. Yahya al-Layth that they might be considered entirely different
(p. 74).Indeed, in one sense this is very true. Al-Shayban's `recension'
texts'
is commonly referred to as `the Muwatta] of Muhammad' (i.e. Muhammad
as his transmission of Malik's
ibn al-Hasan al-Shayban), rather than
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but nevertheless
a Mukhtasar without attributed textswhich
was to
that one frequently hears the phrase khudh
become, and still is, so popular
Khall bi-ghayri dall (`Take Khall without any proof'), that is, you can rely
on what is in Khall's book without having to worry about the evidence
for it. And of course there are many other summaries, both earlier and later,
of unattributed `Malik' material that have remained extremely popular up
to the present day, such as the Risala of the fourth-century scholar Ibn Ab
Zayd al-Qayrawan (d. 386/996) or the Mukhtasar of al-Akhdar (. 943/
he had in mind when compiling the Mukhtasar. Indeed, one could see the
present the digested law, rather than the undigested texts, and thus make the
actual judgments of the law more readily accessible to people.
Where the rst half of Brockopp's book (chapters 1 and 2) provides general
background about Ibn [Abd al-Hakam and his Mukhtasar, the second half
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that all manuscripts of the text are fragments; therefore it is sensible to begin
analysing those sections which are covered by the most manuscripts' (p. 115
n. 1), which, in this case, are those that deal with slavery. Unfortunately, and
especially given that `In the secondary literature, there is as yet no systematic
treatment of slavery in Islamic law', Brockopp's discussion of the institutions
of slavery, and in particular the law surrounding the two categories of
mukatabs and umm walads, is not as clear as it might be, and the full legal
contextthe default setting, one might sayof the `fringe' issues dealt with
in the Mukhtasar is not elaborated and, indeed, in some cases seems clearly to
text:
The children of an umm walad are in her position; they are emancipated by her emancipation, whether [the children are] legitimate or
illegitimate.
If she dies, then they are devoted to that which she had been devoted,
until they are emancipated [at the master's death] or they die (p. 202;
Sh p. 281, para. 15).
This, however, is a misunderstanding of the `default' situation, and thus
of the secondary judgments being detailed here by Ibn [Abd al-Hakam. It is
by a free
well known in Islamic law that the children of a free man, whether
wife or a slave-girl of his, are free, and inherit as legitimate children would.
(If, however, he denies having had intercourse with his slave-girl, that is
a different situation and involves the secondary judgments discussed by
Brockopp on pp. 2003.) What is being considered in the above text, though,
is when a slave-girl who already has children becomes someone's umm
walad: what is the status of her existing children? One way in which this
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way:
earlier in the following
Any children of an umm walad [by a former union] share her status and
become free when she becomes free, regardless of whether [that union] was
licit or not.
If she dies [before her master], their status remains the same as hers
would have been until either they become free [when her master dies] or
they die [before her master does].
Several other passages of Ibn [Abd al-Hakam's text seem to have been
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ya]khudhuha.
Again, I understand this differently from Brockopp. First, I would emend
his text of an ya]khudha wa-ammanahu, which seems to make little sense in
the context, to an ya]khudhu minhu, as I would also emend his wazanahu,
which again seems to make little sense, to wazinatan. Secondly, Brockopp
footnotes the word kayl as `a unit of measure', whereas I would take it
in a more generic sense. I would thus understand the passage to mean:
If someone makes a kitaba contract [with his slave] for [a sum of]
dirhams and [the mukatab] hands over a specic number of dirhams but
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his people [i.e. presumably his master and household collectively] refuse
to accept it unless it is [assessed] by measure, but have not stipulated that
[the dirhams] should be assessed by either measure or number, then, if
[the mukatab] gives them individual [dirhams] of full weight, they must
accept them.
In other words, the question relates here to the amount of silver actually
involved in a payment of a specic number of dirhams. If the amount of
dirhams is assessed by number, and they are underweight, they will be of less
real value. But neither is volume a particularly suitable method of assessing
the amount. Rather, unless the slave's owners have specically stated that
they will accept a certain number or a certain volume of dirhams, it is
weight that should be considered the normal method of assessing an
amount of dirhams, i.e. of silver, and so they must accept an amount of
dirhams if they are of known, full weight.
Finally, overlooking the relatively few typographical errors in the book as
a whole (although there are a fair number in the texts presented in Arabic),
there are certain errors of nomenclature that need to be pointed out to the
unwary reader, if only that the same mistakes should not be repeated again.
As I have pointed out elsewhere on more than one occasion, the scholar
referred to by Brockopp (and, before him, Muranyi) as `[Abd al-[Azz
al-Majishun' (pp. 2 n. 2, 22 n. 91, 93 n. 64, 94, 111 n. 110) is in fact `Abd
al-[Azz ibn al-Majishun, as detailed in [Iyad's Madarik, among other
sources. (There are thus two well-known scholars known by the name of `Ibn
al-Majishun', [Abd al-[Azz and his son [Abd al-Malik. `Al-Majishun' is said
to refer either to [Abd al-'Azz's grandfather, Abu Salama, or to his uncle,
Ya[qub.) Similarly, the man designated by Brockopp as `Ibn al-Baj' (pp. 56
[also n. 228], 58, 61) is in fact simply al-Baj, the same person that is referred
to in the passage that he cites from `Iyad's Madarik on pp. 378, and whose
famous commentary on the Muwatta], al-Muntaqa, is referred to on p. 56
n. 228, but seems not to appear in the bibliography; `Ibn Zamann' (p. 59
[also n. 236]) should read `Ibn Ab Zamann'; `Muhammad b. Shadhil
dhil al-Nayfar';
al-Nayfar' (p. 74 n. 15, 295) should read `Muhammad al-Sha