Draft:Islamic Law in Al-Andalus

Islamic Law in Al-Andalus was fundamental to the development of Muslim Spain and its lasting imprint on diverse legal frameworks was influential even after the kingdom's fall.

Al-Andalus was at the heart of eight centuries of shared history between the Iberian Peninsula and the Islamic World. From 711 to 1492, Spain was steeped in and influenced by Muslim culture, language, science, and art. With advancing conquests over new territories, the boundaries of the Islamic states that occupied the peninsula were constantly expanding.

Amidst this, a complex formation process of Andalusian Islamic societies was also taking place. This formation process was greatly supported by the technical development of Islamic jurisprudence (fiqh), precisely by Andalusí jurisprudence. Legal schools of thought and prominent jurists blossomed and matured in the Peninsula. And with that, the methods of assimilating new territories and ruling over them also.

The rich interchanges that occurred during the shaping period of Muslim Spain, also made their way to legal tradition, influencing not only later Spanish legal texts written after the Reconquista but also aspects of other legal systems, for example, in terms of property and contract law.

The Islamic rule of law which governed Al-Andalus for over eight centuries, had a profound imprint on Spanish history. Law enabled the control, ruling, and maintenance of acquired territories. But it also facilitated the somewhat peaceful coexistence of Muslim and non-Muslim groups within a singular territory. After the Christian annexation, Islamic law was still prevalent. Even to this day, some legal concepts and practices in major legal systems outside of Islamic jurisprudence can be traced back to borrowings and influences that took place within the limits of Al-Andalus.

Islamic Law

“Islamic Law evolved in the 7th century of the Christian era in the Arabian peninsula and in Lower Mesopotamia” and became the “law of the land in many regions extending from Spain to Central Asia”. Within Sunni Islam, Islamic jurisprudence has its bases on two primary legal sources, the Qurʾān and the ḥadīth, the Tradition of the Prophet. The legal material contained in these sources was either ambiguous or not comprehensive enough to deal with everyday cases, and thus, the figure of a ‘jurist’, the fuqahā’ was needed to interpret legal principles. These interpretations varied between different legal schools.

Islamic Law in Spain - Chronology of Legal Schools

Islamic Law schools developed as regional traditions. From the seven traced by Al-Khuḍarī (Madinah, Makkah, Kufa, Basra, Syria, Egypt, and Yemen), Syria and Madinah are the two relevant to the case of Spain. The teachings from Madinah were supported by rulers, which aided their widespread acceptance. It influenced governance, legal structures, and even societal norms. Albeit to a lesser extent, Syrian legal tradition also played an important role in the legal framework of Al-Andalus, contributing to the region’s diverse legal landscape.

Syria - Awzāʿī School of Law

Forecourt of the Ummayad Mosque, Damascus

The Awzāʿī School of Law was prevalent in Spain during the Umayyad period before being replaced by the Māliki School of Law. After the conquest in 93, Spain became a territory ruled by the Umayyads from Damascus (Syria). Syrian officials favored this school and thus introduced it to Spain where it was developed by three jurists sent by Umar ibn al-Khaṭṭāb. “They were 'Abd al-Raḥmān ibn Ghanam al-Ash'ari (d. 78), Abū Idrīs al-Khūlāni (d. 80), Qabīsah ibn Dhuwayb (d. 86). This tradition was continued by Makḥūl ibn Abī Muslim (d. 113), Rajā'ibn Ḥaywah (d. 112), and 'Umar ibn 'Abd al-'Azīz (d. 101).” The Awzāʿī school contributed to the legal tapestry of the peninsula so long as its prevalence lasted, being replaced by the Māliki school after a period of unfavorable political turbulence.

The Awzāʿī school withstood challenges from other schools and remained dominant during the first and a greater part of the second century. The situation, however, changed when the caliphal capital shifted from Damascus to Baghdad after the assumption of the Caliphate by the 'Abbāsids. The political scene changed in Spain also. The Umayyad prince, 'Abd al-Raḥmān al-Dākhil escaped from Syria to Spain and established an independent Umayyad emirate in Cordoba. During the course of these political changes, and the struggle for power between various forces in Cordoba, Makkan scholars who [...] had already got a foothold in Spain, triumphed over the others and [the] Māliki school replaced the Awzāʿī school as the official school of the new regime.

The events that led to the fall of the Awzāʿī School’s prevalence, came as a result of various political shifts, showing these legal schools’ dependence on a favorable political environment to preserve their influence.

Madinah - Māliki School of Law

Madinah tradition would develop into the Māliki school of law, which remained dominant throughout the history of Muslim Spain despite the sporadic appearance of other schools such as the Ẓāhirī and Shāfi'ī schools. Soon, Cordoba became one of the influential centers of the Māliki school, holding a principal position during the Umayyad caliphate.

The two basic principles of the school were ‘amal ahl al-Madīnah (the practice of the people of Madinah) and Maṣlaḥah (common good). Which could be seen as legal developments from the ḥadīth and the ra’. “Until at least the first half of the twelfth century CE, Andalusī courts were composed of the qāḍī, his council of jurists (fuqahā’), known as majlis al-shūrà, qualified witnesses (‘udūl; shuhūd) and auxiliaries such as the secretary (kātib) and assistants (a’wān).”

Introduction of the Māliki School of Law in Spain (93 - 237)

The introduction of the Māliki school in Spain extended from the year 93 to 237. The mode in which the Māliki school came into the Iberian peninsula is still argued by scholars today. What is clear is that Mālik’s teachings were spread by global scholars who would go to Madinah, especially during Ḥajj season. It was through those such scholars that during the second century Hijrah, the Māliki tradition would appear in the Peninsula.

In terms of the nature of Islamic legal tradition, we can highlight two forms that developed during this initial period, the first dealt with the transmission of the Sunnah of the Prophet, and the second one with the day-to-day problems of the people (futyā), the answers to the issues of the people where compiled in al-Mudawwanah. Al-Mudawwanah was, together with al-Muwaṭṭa’ one of the most important books on juristic writing of the century.

Formative Period (238 - 401) and Consolidation (404 - 626) of the Māliki School

The third century was governed by a desire to expand the artistic, scientific, and cultural realms of the caliphate. The writing, copying, and collecting of books flourished. New offices related to judiciary matters were also developed. Spanish jurists of the time “specialized in legal drafting, jurisconsulting and writing of contracts”. Whereas the theoretical and philosophical aspects of law took on a second plane of importance.

The formative period of Malikisim was heavily influenced by the political and social insecurity of the peninsula. The Umayyad Caliphate had been weakened by the subsequent ethnic conflicts and court intrigues that would give rise to a series of independence movements within the principalities, the petty kings period. Concluding in the Caliphate’s dissolution in 425. Instead of harming the Māliki tradition, the political instability had a positive effect on the consolidation of Malikisim, as there was no interference from the rulers. Scholars like Abu ‘Umar Yūsuf ibn 'Umar ibn 'Abd al-Barr al-Namirī (d. 463) would also produce outstanding literary work and substantive practice that would help consolidate the school even further.

Malikisim's interactions with other Schools of Law (627 - 897)

Despite Granada’s surrendering to the Christians in 897, Islamic law and the Māliki school did not come to an end as did the Islamic tenure of Al-Andalus. The increasing tensions that Muslims started to experience in the peninsula as a result of the Reconquista, made evident the need for reconstructing the theoretical framework of Islamic law to accommodate the new inquiries that governed their new situation. Such questions about migration, interactions, and commercial partnerships with non-Muslims, etc., pushed Māliki scholars to seek help from other Islamic schools. As a result, of these new interactions, the field of comparative law developed greatly.

The Medinan jurists operated on the assumption that the world of Islam was rapidly expanding and that dependence upon the non-Muslim world for resources was not a matter of necessity. They therefore did not deal extensively with the legal issues which could arise either from a Muslim defeat at the hands of the unbelievers, or from an environment which required some degree of economic dependence on the non-Muslim world.

One of the most important questions that arose after the Christian reconquest of the peninsula was the legal permissibility of Muslim residency in non-Muslim territory. In response to the Christian annexation of Muslim territories during the Almoravid period, migration began to be contemplated as a defensive strategy. “During the late Almoravid period, a number of Mālikī jurists in Iberia and the Maghrib began to invoke the Qurʾānic concept of hijra (migration) in order to encourage Muslims to migrate from Christian to Islamic territory.” This concept had deliberately been marginalized in the legal context by many Māliki scholars due to its confusing and interpretative nature. As seen in the block quotation above, it had also not been a topic that jurists had paid much attention to. Its sudden introduction and encouragement by Māliki jurists offer great insight into the mechanisms by which they developed new laws to deal with sensitive political issues. Malikisim’s revival of the concept of hijra underscored a shift in legal discourse, highlighting the adaptive nature of Islamic law in response to the Christian annexation.

The establishment of the Umayyad caliphate was pivotal for the consolidation of an Andalusi identity revolving around a singular legal doctrine. The Māliki school did not remain static. It evolved with the changing geopolitical sphere and adapted to the needs of an increasingly complex Muslim world.

Convivencia in Al-Andalus

Christian and Muslim Playing Chess

The coexistence of Christians and Muslims in Al-Andalus was made possible thanks to a complex legal framework that structurally governed the rights and obligations of non-Muslim groups within the Muslim majority of the time. On top of specific religious commands, the first basis of the convivencia was contractual and judicial. Christians were guaranteed protection in exchange for paying the jizya tax. This legal measure allowed for a peaceful coexistence. Of course, this “convivencia” was not devoid of tension. However, the tensions would be primarily derived from socio-political factors and not from legal disparities. The legal framework of Al-Andalus facilitated harmonious cooperation between the different religious communities situated under the territory of the peninsula. This intricated framework showcases the excellence of Islamic and Andalusi jurisprudence.

In The Muqaddimah, Ibn Khaldun explains the terms of the relationship between what he calls ‘the sword’ and ‘the pen’, which can be interpreted as military power and legal-intellectual authority respectively. He describes how the interplay of these two instruments changes depending on specific political stages. For example, during the conquest of a new territory the 'the sword' takes on a leading role, whereas when power has already been established, 'the pen' is then the agent employed to consolidate it.

“In mid-term of the dynasty, the ruler can to some degree dispense with 'the sword'. His power is firmly established. His only remaining desire is to obtain the fruits of royal authority, such as collecting taxes, holding (property), excelling other dynasties, and enforcing the law. 'The pen' is helpful in all that. Therefore, the need for using it increases.”

In this extract, we see how in the case of Andalusian coexistence, the enforcement of the law and legal-economic measures, serves as a natural progression from military conquest to power  institutionalization.

The Almohad Political and Cultural Project’s connection to Alphonse X

Las Siete Partidas de Alfonso X 'El Sabio'

Alfonso X el Sabio y los libros del saber de astronomía

Legislative unification, together with politico-administrative centralization, and reforms of weights and measures were key aspects of the Almohad Political and Cultural Project. The objectives of which were parallel to those of Alphonse X's own political and cultural project. The attempt to end the disparate legal views via a legal “codification” made by Almohad caliphs, had by objective eliminating the conflicting versions of legal thought by imposing the Almohad interpretation of the revealed law. One example of this compilation effort is the book Bidāyat al-mujtahid wa-nihāyat al-muqtaṣid written by Averroes, whose intellectual output was financed by the Almohad caliphs. During his rule (1221-1284), Alphonse X commissioned a codification project, carried out in the Fuero real and the Siete partidas. ‘The learned ’‘s legal contribution was based on Roman Law with a clear influence of Aristotelianism from where he adapts the concept of political life, which correlates to the “high level of autonomy and secularization of the Alfonsine political order.” Alphonse X’s legal-political ideology, centered around three principles: the emphasis on royal monopoly in the creation of law, the growing monarchical control of the administration of justice, and the search for the legal unification of his kingdoms.

Despite their many differences, both periods, the Almohad and the 13th-century reign of Alphonse X, were characterized by a cultural revival and scholarly activity. In terms of jurisprudence, the connection between Alphonse X’s and the Almohad project can be seen in the effort to codify and systematize legal knowledge.

Spanish Scholarship on Islamic Law

Maribel Fiero writes in her 1995 article Spanish Scholarship on Islamic Law that “Spanish history is partly Islamic”. This known fact makes it imperative to produce work on the borrowing hegemony of Christian Spain over the Arab-Islamic world. But as Ms. Fiero explains, for more than 60 years, the line of research on the subject of law borrowings seems to have been abandoned. She situates Spanish scholarship on Islamic Law in three historical periods: the beginning of the nineteenth century, the Spanish Civil War period, and the post-war period. The most critical scholar from the nineteenth century was Ribera, who set forth the idea that the justicia de Aragón may have derived from the Muslim precedent al-mazalim, a pre-Islamic institution adopted by the Abbasid Caliphate in the eighth century CE. During his time, research was restricted to the exploration of mutual borrowing, and emphasized Christian Spain, over “pure” Islamic and Arab subjects. This restriction over the body and contents of the research scholars could produce, was only further augmented by the war period, and increasingly more difficult to conduct as the war progressed. And even more so, during the post-war years. Later scholar, García Gallo, would completely dismiss Ribera’s theory and reject the possibility of any kind of influence upon Spanish-Cristian legal theory and practice.

Influences Beyond the Iberian Peninsula - The case of Common Law

The bulk of research on Islamic Law’s influence on other legal systems has been almost uniquely focused on the case of England. This is extremely surprising since the principal point of exchange between the Islamic World and Medieval Europe was not England but rather Spain. As explained by Gamal Moursi in the 1978 article Islamic Law: Its Relation to Other Legal Systems, Roman Law came into its peak development state whilst Islamic Law was still evolving, and when common law was taking shape, Islamic Law was already a mature system, which suggests that the borrowing opportunity from Islamic Law was much greater for the case of common Law than for other fully developed legal systems.

Lisa Watanabe suggests that “the notion of property as ownership passed at the time of agreement to a contract in English common law could have been influenced by the already existing Islamic law of contract”.  In Islamic Law, three key injunctions forbid exploitation in transactions: the restriction against Gharar (uncertainty), Riba (interest), and Maysir (speculation). Common law also recognizes three basic terms for the creation of a contract, agreement, contractual intention, and consideration. The agreement is formulated as the consensus reached by both parties. Here, the restriction of Gharar emphasizes the need for clarity in a contract, which is vital for reaching a fair consensus. Consideration then ensures that each party receives something of value in return for their contractual promise. The prohibition of Riba aims to prevent unjust enrichment in a transaction. Both “consideration” and the prohibition of Riba, aim to ensure fairness in a contractual exchange. Contractual intention refers to the mutual willingness to form a contract. In this final prerequisite, Islamic contract law exercises the prohibition of speculation (Maysir). This, emphasizes integrity, linking back to the genuine intent to form a fair contract, bounded by contractual intention. The parallels between Islamic Law and other legal frameworks suggest the great influence of Islamic legal scholarship, especially in the case of Common Law.

Conclusion

Overall, the evolution of Andalusí jurisprudence played a pivotal role in shaping the societal fabric of Muslim Spain, and it also wielded a deep influence on subsequent legal frameworks, extending beyond the boundaries of the Iberian Peninsula. As seen in the case of common law. Over time, Spain’s legal system evolved as a result of the interactions between diverse legal traditions. The codification efforts carried out by Alphonse the X had a profound influence on the whole of Europe. However, there are important connections to be drone to the previous Almohad efforts of unifying legal practice. Throughout the Al-Andalus period, the adoption of Islamic legal frameworks was not static. Legal principles and procedures were shaped through constant exchanges, adaptations, and reinterpretation. Here it is worth noting the figure of the ‘jurist’ who played a critical part in the interpretation and application of the law. This law made possible the control, consolidation, and coexistence within the conquered territories, and exuded the intellectual authority of the Islamic states of the time.