The Historiography of Islamic Law During the Mamluk Sultanate

The Historiography of Islamic Law During the Mamluk Sultanate

Oxford Handbooks Online The Historiography of Islamic Law During the Mamluk Sultanate Matthew B. Ingalls The Oxford Handbook of Islamic Law Edited by Anver M. Emon and Rumee Ahmed Subject: Law, History of Law Online Publication Date: Sep 2017 DOI: 10.1093/oxfordhb/9780199679010.013.66

Abstract and Keywords This article examines the historiography of Islamic law during the reign of the Mamluks. It asks what is specifically “Mamluk” about Islamic law and legal scholarship during the Mamluk sultanate and whether it is fruitful to view legal scholarship and the application of law through the lens of this particular political dynasty. The article first considers the historiography of Mamluk legal institutions from the Mamluk executive to the judiciary and law enforcement before discussing Mamluk madrasas, or Islamic educational institutions. It also explores three larger intellectual trends that would shape the development of medieval Islamic law but which are not readily confined to the Mamluk period alone: the proliferation of commentary works, the institution of the ijaza (license; certification) and encyclopaedism in Mamluk literature. The article concludes by assessing the state of the field and raising some questions for future research. Keywords: historiography, Islamic law, Mamluks, Mamluk sultanate, legal institutions, madrasa, educational institutions, commentary, ijaza, Mamluk literature

The Mamluk sultanate lasted from 1250 until the Ottoman conquest of Egypt in 1517. With its capital in Cairo, the sultanate exercised direct political control over the Levant, the Hijaz, Egypt into Cyrenaica (eastern Libya) in the west, and Nubia and Massawa (Eritrea) in the south. The Mamluks (literally, “one who is owned”) were Turkic slave soldiers who constituted a political elite that would rule over predominantly Arabicspeaking indigenous populations under the leadership of a manumitted sultan. As a political dynasty, the Mamluks are traditionally divided into two ethnic lines of sultans: the Bahri line, which lasted from 1250 until 1390 and was comprised mainly of Kipchak Turks from the southwestern Eurasian Steppe; and the Burji line, which lasted from 1382 until 1517 and was comprised mainly of Circassians from the northern Caucasus.

Page 1 of 18

PRINTED FROM OXFORD HANDBOOKS ONLINE (www.oxfordhandbooks.com). (c) Oxford University Press, 2015. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Handbooks Online for personal use (for details see Privacy Policy). Subscriber: University of Washington; date: 11 September 2017


Taking pride in their origins as slave legionaries, the Mamluks viewed themselves as defenders of Islamdom, and their military defeat of the Mongols in 1260 at ‘Ayn Jalut would help in cementing this reputation in the minds of the civilian population over which they ruled. Moreover, their general disdain for hereditary rule—notwithstanding several noteworthy attempts at it—was unique to the Mamluks’ model of political succession in medieval times. Although it would be a source of political instability especially in the waning years of the sultanate, it would also serve as an indirect impetus for many of the legal institutions that the present chapter analyzes. Because the Mamluk sultanate represents a political dynasty with a fixed temporal and geographic scope, we must frame our examination of the historiography of Islamic law within the boundaries of this dynasty by asking: What is specifically “Mamluk” about Islamic law and legal scholarship during the Mamluk sultanate? Is there any benefit in viewing legal scholarship and the application of law through the lens of this particular political dynasty? As current scholarship on the Mamluks will attest, the answer is both yes and no. If we consider the institutions that [1] fostered legal scholarship and [2] applied the law during Mamluk times then, yes, there is benefit for historians in delineating a distinctly Mamluk interpretation of Islamic law. However, if we consider the structure and content of fiqh and usul texts that emerged from scholars living in Mamluk lands, then no. That is, with the possible exception of certain fatawa (sing. fatwa) that are specific to Mamluk sociopolitical considerations, the Mamluk period appears too parochial in space and time to serve as a useful signpost in charting the development of legal literature. Rather, in order to account for such a development we must think in broader terms, although this should certainly not be read as an endorsement of the formative/classical/post-classical framework that informed twentieth-century scholarship on Islamic intellectual history. I have divided the remainder of this chapter according to the two answers to the framing question above. The first section thus addresses current scholarship on the institutions that might allow for an understanding of Islamic law that is clearly Mamluk in its essence. As it relates to the historiography of Islamic law, I have arranged this section to flow hierarchically downwards from the Mamluk executive, to the judiciary, to, finally, law enforcement. A second section next analyzes the historiography of Mamluk educational institutions, which fall in a gray area between institutions that are distinctly Mamluk and those that are not, as is explained. A third section then references the most current scholarship on three larger intellectual trends that would shape the development of medieval Islamic law but which are not readily confined to the Mamluk period alone. Finally, I conclude the chapter with a brief assessment of the state of the field and some questions for future researchers to consider.

Page 2 of 18



I. The Historiography of Mamluk Legal Institutions If we begin our historiographical survey at the top—that is, with the Mamluk executive— we immediately confront a number of daunting challenges. For one, the shari‘a would function as the equivalent of a constitution throughout Islamic legal history, and this would certainly remain the case in Mamluk times. However, Patricia Crone has cautioned that the shari‘a comprises “a set of rules which organize, but do not restrain, the exercise of power. In order for the rules to yield constitutional government, they have to include restraints, normally identified as a bill of rights and institutional devices for securing their observance.”1 Thus, although the Mamluks were unique in their embrace of election (pace hereditary succession) in deciding who among their ranks would accede to the sultanate, they lacked a constitutional foundation to formalize the process of election, delineate a clear electoral body, and, most importantly, establish a legal recourse with which to appeal infractions that might occur during the electoral process. But it would be anachronistic to expect such institutions from a political dynasty that emerged in the thirteenth century, and, in fact, scholarly concepts like siyasa shar‘iyya (discussed below) would provide a theoretical alternative to many of the ideas found in modern constitutional government. We also find a variety of rituals and traditions amongst the Mamluks which would buttress the process of succession and ameliorate the violence that inevitably followed the transfer of power and legitimacy amongst a cadre of highly seasoned warriors. Here we can turn to P.M. Holt’s 1975 article “The Position and Power of the Mamluk Sultan” to understand the nature of these rituals and traditions and grasp their symbolic relationship to the sultan and his function in the eyes of his constituents. Specifically, Holt examines practices such as the state procession, accession-banquet, oath of allegiance, and enthronement to show how these rituals legitimized the Mamluk sultans as lawful successors to the dynasty of Ayyubid sultans who preceded them.2 Holt’s article, moreover, uses the Mamluk sultanate as a case study to illustrate larger themes in Islamic constitutional law, which are accepted as axiomatic today. For example, the author explains that the Mamluk sultan “was as much bound by the Holy Law of Islam as any of his Muslim subjects, although the absence of means to compel his submission to the shari‘a deprived this concept of effective sanctions.”3 However, even without a means to compel the sultan’s submission to the shari‘a, the theory in itself meant that the sultan “was left formally with no scope in legislation.”4 As was the case in many Islamic dynasties of pre-modern times, this theoretical arrangement would reaffirm the prerogative of the “ulama” in legislating through their interpretations of the shari‘a in their fatwas and fiqh texts. To be sure, the sultan alone embodied the Mamluk executive, but we should mention that the Mamluk sultan al-Zahir Baybars (r. 1260–77) re-established the ‘Abbasid Caliphate in Cairo in 1261 by appointing two successive caliphs. Once again P.M. Holt provides us with an authoritative, albeit terse, study into this development with his 1984 article Page 3 of 18



“Some Observations on the ‘Abbasid Caliphate of Cairo.” Although the ‘Abbasid Caliph would always be a puppet in the hands of the Mamluk sultan, Holt identifies several essential functions that the caliphate performed for the Mamluks. The first, which Holt establishes as the impetus behind Baybars’ abrupt recognition of the first of two caliphs whom he himself would appoint, was “a desire to legitimate his power,” as Baybars “was not only personally a usurper, having obtained the throne by the killing of his predecessor Qutuz but the Mamluk sultanate itself had supplanted the Ayyubids.”5 The second caliph appointed by Baybars additionally served a diplomatic function. As a descendent of the Prophet and symbol of pious governance, he “could usefully serve as a mouthpiece in communicating with the convert to Islam” Berke Khan, who led the Golden Horde against the Mamluks’ chief rival Hülegü, leader of the Il Khanids.6 This latter caliph’s direct descendants would constitute the dynasty of shadow-caliphs who reigned until the end of the Mamluk sultanate; their ceremonial importance in legitimizing the ascendance of a new sultan would grow after the thirteenth century.7 Holt’s articles start with the historical data contained in Mamluk chronicles, necrologies, and biographical dictionaries and then work backwards to piece together a theoretical picture of the Mamluk executive and its relationship to offices like that of the caliphate. But would it not be simpler, if not more illuminating, to start with political treatises written by the “ulama” and then attempt to reconcile them with the historical data? Unfortunately we do not have that luxury, as the relative paucity of such treatises in Mamluk times is another challenge to historians of the Mamluk sultanate. In his influential 1988 article “Rather the Injustice of the Turks than the Righteousness of the Arabs,” Ulrich Haarmann uses the biography and writings of a late-Mamluk scholar named Abu Hamid al-Qudsi (d. 1483) to account for the “petrified conservatism” of political scholarship in Mamluk Egypt and Syria by the fifteenth century.8 Although his analysis is vague at times and perhaps relies too heavily on psychological speculation, Haarmann ultimately concludes that the despotism and foreignness of the Mamluk political elite would alienate the scholarly class and foster a despondency among them that undercut any hopes for political reform.9 Their political reticence, we must assume, is the reason why Mamluk-era scholars have left us with relatively few political writings, in contrast to the prodigiousness of contemporaneous scholarship from Iran and central Asia. This dearth of political texts from the Mamluk period suggests that Mamluk constitutional law represents relatively unfertile soil for the scholar of Islamic legal history. We are fortunate that the same cannot be said about the Mamluk judicial system, which is one of the most popular objects of study in the subfield of Mamluk legal history today. However, the popularity of the Mamluk judiciary amongst scholars makes a concise historiographical survey of it nearly impossible, and so let us return to our original framing question to make the secondary literature more manageable: What is specifically “Mamluk” about the Mamluk judiciary? In answering this question we find two institutions—namely, the office of chief justice and siyasa courts—that take on a decidedly

Page 4 of 18



“Mamluk” flavor during the Mamluk sultanate. I thus focus the rest of my discussion of the Mamluk judiciary on these. Although the office of chief justice (qadi ’l-qudat) existed already under the Ayyubid dynasty that preceded them, the Mamluks were the first to appoint a chief justice for each of the four Sunni schools of law (madhhabs) beginning in 1265. Joseph Escovitz meticulously analyzed the office of chief justice in his 1984 study The Office of Qāḍī alQuḍāt in Cairo under the Baḥrī Mamlūks; it stands as a pioneering treatment of the subject if we exclude Jon Mandaville’s unpublished dissertation on the Mamluk judiciary of Damascus.10 According to Escovitz, although the Shafi‘i chief justice retained a degree of preeminence over the other three chief justices, this paled in comparison to Shafi‘i preeminence under the Ayyubids or, for example, the institutionalized preeminence of the Hanafi madhhab under the Ottomans.11 At the same time, the new Mamluk system was perhaps “more evolutionary than revolutionary,” according to the author, as the fourjustice system emerged in the wake of earlier educational reforms in which major madrasas like the Salihiyya would establish professorships for each of the four madhhabs.12 In his 2003 article “Legal Diversity in the Age of Taqlīd,” Yossef Rapoport criticizes Escovitz, among others, for failing to account for the essential motives behind, and the judicial implications of, this reform of the judiciary. Specifically, Rapoport argues that the four-justice system would ultimately be adopted in urban centers throughout the Mamluk realm in order to achieve “the double purpose of uniformity and flexibility” in the application of the law.13 The new system achieved uniformity and predictability, as appointment decrees required a judge to adjudicate according to the most authoritative doctrines of his madhhab, while it simultaneously achieved flexibility, as particular legal matters would be referred to the judge whose madhhab espoused those idiosyncratic positions that promoted the greatest social good. In piecing together his description of the chief judgeship under the Bahri Mamluks, Escovitz relies primarily on Mamluk chronicles and biographical dictionaries, while he uses the court cases described in such sources to compile his chapter on “Judicial Activities.” It is here, in passing, that the author notes a significant methodological hurdle that we face whenever we attempt to understand the Mamluk judiciary and its day-to-day activities. Since we possess no systematic docket of Mamluk court proceedings (with the exception of a court archive from fourteenth-century Jerusalem),14 how representative should we assume the cases in Mamluk historical sources to be? As Escovitz explains, “The very fact that these cases were recorded might indicate that they were in some way out of the ordinary.”15 Indeed, it might not be farfetched to analogize the court cases recorded in Mamluk chronicles and biographical dictionaries to the headlines of 24-hour news outlets today: sex, violence, and otherwise sensational events seem to dominate both media and displace the quotidian affairs of everyday people. The contemporary historian of the Mamluk judiciary is left with perhaps no better corrective to this problem than awareness of its existence.

Page 5 of 18



We can supplement the findings of Escovitz with those of Leonor Fernandes as contained in the latter’s 2002 article “Between Qadis and Muftis: To Whom Does the Mamluk Sultan Listen?”. According to Fernandes, a Mamluk mufti (a scholar who issues fatawa) would attain his office through the license (ijaza) of a previously recognized mufti; the position implied an advanced knowledge of one or more madhhabs but, unlike the office of qadi (shari‘a court judge), it was not dependent on a political appointment. Nevertheless, issuing legal opinions traditionally secured the qualified mufti a fixed salary, which Fernandes suggests exposed the office to bribery and political pressures of many sorts. Though some capable qadis might be qualified to employ independent legal reasoning (ijtihad) in their rulings, more often than not they were compelled to consult a mufti. The latter possessed a broader knowledge of legal evidences than most qadis, which “often allowed the mufti to propose opinions and solutions to problems which sometimes clashed with the narrower interpretations of the qadis.”16 For this reason, Fernandes explains, the Mamluk political elite was wont to consult with flexible muftis to garner legitimacy for any of their acts (e.g. confiscating property) that had the potential to stir controversy among the scholarly establishment.17 Both Escovitz and Fernandes highlight the potential for corruption in Mamluk shari‘a courts and in this way are representative of much scholarship on the Mamluk judiciary. We walk away from their writings with a picture of a Mamluk state that is dominated by corrupt judges and muftis who cower before a political elite that acts, more or less, with impunity. But a 2012 article by Rapoport has questioned this picture and provides us with the final word on the subject, for now. In his “Royal Justice and Religious Law: Siyāsah and Shari‘ah under the Mamluks,” Rapoport identifies two grounds on which to criticize the “moralizing, caricature-like accounts of the Mamluk legal system” that predominate in contemporary scholarship.18 First, such accounts are premised in the assumptions of Joseph Schacht, who famously argued that Islamic law would become ossified by the later Abbasid period and would progressively lose more and more of its practical utility. Citing important scholarship in Islamic law from the past thirty years, Rapoport reminds us that Schacht’s position is no longer tenable, as more recent studies of fatawa, legal commentaries, and court documents reveal that the gulf between legal theory and positive law in pre-modern times was nowhere near as large as Schacht describes it.19 Second, Rapoport criticizes the tendency of many modern scholars to position the Mamluk state in a binary relationship with a “pure, perfect sphere of Islamic law,” whereby the state might appear to exist as a supra-legal entity. Rather, the remainder of Rapoport’s article makes a compelling case for viewing the Mamluk legal system as one “in which the state takes an active role in adapting the sacred law, the shari‘ah, to social practice.”20 The Mamluk legal system, in fact, shares much in common with the more bureaucratized system of the Ottoman state, particularly as regards the theoretical importance that both systems would ascribe to the ruler’s siyasa shar‘iyya, or governance according to the broader guidelines of Islamic law and, here, notions of equity.21

Page 6 of 18



Rapoport’s important article charts the jurisdictional expansion of Mamluk siyasa courts over the course of the Mamluk sultanate. By showing how this expansion was viewed as necessary to upholding broader conceptions of equity in response to the formalism of the shari‘a courts, his framework supplants earlier, overly simplistic narratives that posit a dual system of justice in which siyasa courts held jurisdiction over the affairs of the Mamluk elite while commoners settled their affairs in shari‘a courts. According to Rapoport, no such jurisdictional line existed, and in fact Mamluk chamberlains (hujjab) and other military officers would adjudicate the cases of common citizens in siyasa courts starting in the mid-fourteenth century. In the end, the encroachment of siyasa jurisdiction upon that of the Shari‘a courts functioned—at least in the popular perception—to provide the people with “justice, not just the law.”22 And, inasmuch as this justice reflected the ethical imperatives and timeless objectives of sacred law, then Rapoport is justified in his claim that “the expansion of the siyāsah jurisdiction set out to bolster the shari‘ah rather than defeat it.”23 Rapoport’s broader definition of shari‘a here intersects nicely with Kristin Stilt’s 2011 study into the office of the Mamluk muhtasib, or “market inspector,” which will epitomize Mamluk law enforcement for the purposes of the present chapter.24 Although earlier scholars like Émile Tyan have examined the institution of hisba through the prescriptive lens of hisba manuals written by Muslim scholars,25 Stilt’s Islamic Law in Action stands as the first monograph study of the Mamluk office of muhtasib written in a European language and, more importantly, is unafraid to bring its discussion into the descriptive realm of social history. To do so, Stilt mines Mamluk chronicles for details into the actual conduct of Mamluk muhtasibs and then compares these details with the prescriptive ideals of hisba manuals, fiqh texts, and the directives of Mamluk sultans. The picture that we gather from this comparison reveals an office with one foot in the fiqh concerns of Muslim jurists and one foot in the siyasa (here, public order) considerations of the Mamluk state. But in light of Rapoport’s broader framework outlined above, we would be mistaken to take only the fiqh texts of the jurists as synonymous with the shari‘a, as the sultan’s siyasa policies were grounded in the ethical objectives of this same law. The muhtasib thus emerges—at least in theory—as perhaps the perfect embodiment of shari‘a-oriented law enforcement.

Page 7 of 18



II. A Gray Area: Mamluk Institutions of Learning Any study of medieval Islamic law would be remiss if it failed to mention the role of madrasas (Islamic educational institutions) in the production of legal scholarship. The Mamluks, of course, did not invent the madrasa, but their largess through waqf endowments, as motivated by both piety and political expediency, took madrasa building to the next level of complexity. The Mamluks constituted one of the earliest Muslim political dynasties to exist long enough to require a symbolic means of relating their power to the local population and thereby garner for themselves the legitimacy needed for long-term rule.26 Moreover, they relied on slaves to provide whatever military manpower they needed, and by not conscripting the local population into military service, a “cultural, linguistic and ethnic wedge” persisted between the Mamluk political elites and the people over whom they ruled.27 Although the Mamluks would establish a strong bureaucratic apparatus, it was not their primary means of projecting themselves into the public sphere. Rather, they performed their authority symbolically through their patronage of educational institutions, thereby “creating some of the largest madrasas and entrenching their control of the population deeper and with more lasting effect than any dynasty had done hitherto.”28 The massive madrasas that they built and which still stand today also served to foster an environment of relative collegiality between the four Sunni madhhabs. But it was the policies of the Ayyubids who preceded the Mamluks that set the stage for such an environment of inter-madhhab collegiality,29 and here we see the rationale for placing Mamluk educational institutions in an intermediate space between things that were unique to Islamic law during Mamluk times and things that were not. Mamluk patronage of madrasas and legal scholarship, in other words, was novel in degree but not in kind. The Mamluk madrasa nevertheless represents a unique object of study for social historians of the medieval Middle East because of the existence of waqf endowment deeds, which, on the whole and unlike Mamluk court records, have reached us today. A good example of what can be gleaned from such endowment deeds appears in Jonathan Berkey’s 1992 study The Transmission of Knowledge in Medieval Cairo: A Social History of Islamic Education. Berkey draws his most valuable data from twenty-nine waqf deeds for major educational institutions in Mamluk Cairo, and his study offers groundbreaking insights into, among other things: ancillary institutions of learning, such as khanqahs (Sufi hospices, which are discussed again below) and mausoleums, the relationship of Mamluk sultans to such institutions, and the role of women in the larger educational system. Berkey concludes his book with an attempt to situate these institutions of learning within the larger urban environment of Mamluk Cairo. Beyond Berkey’s foundational study, the methodology behind any investigation into Mamluk educational institutions would benefit immensely from Michael Chamberlain’s 1994 monograph Knowledge and Social Practice in Medieval Damascus, 1190–1350. Page 8 of 18



Chamberlain views the transmission of knowledge in medieval Damascus as a function of power struggles and competition over mansibs (stipendiary positions); the competitive ethic that prevailed in the political and social spheres he terms “positive fitna” (struggle).30 Furthermore, the author proposes a radical rethinking of the traditional European approach to the medieval Middle East, as Continental assumptions and theoretical lenses too often taint our interpretations of Middle Eastern social history. In the end, Chamberlain views the production and transmission of knowledge as largely a cultural performance of competition between the intellectual elites for which the madrasa itself serves as the central stage. Whether his conclusions are ultimately specific to Damascus or not, Chamberlain furnishes social historians with a compelling methodological starting point from which to analyze the social dynamics of Mamluk cities, particularly as they relate to patronage and the production of knowledge. A final note on the khanqah and its role in Mamluk education is worth mentioning here. An essential study on this subject is Leonor Fernandes’ 1988 monograph The Evolution of a Sufi Institution in Mamluk Egypt: The Khanqah, while Th. Emil Homerin’s 1999 article “Saving Muslim Souls: The Khānqāh and the Sufi Duty in Mamluk Lands” helps to update Fernandes’ research and situate it within a larger historical framework. For his part, Homerin admits that the difference between the madrasa, the khanqah, and the comparable Sufi institution of the zawiya “resulted largely from differences in size and focus, not their underlying Sunni mission.”31 Nevertheless, the khanqah could be viewed as a median point between the other two institutions, as most khanqah endowment deeds would stipulate that recipients of their stipends be initiated Sufis, as was the case with most zawiyas, while also providing an educational curriculum that included many of the traditional Islamic disciplines. Although both Fernandes and Homerin rely on similar methodologies and sources to reach their conclusions, they filter their data through conflicting worldviews and thus generate divergent narratives. Leaning toward the cynical side of the spectrum, Fernandes explains the khanqah as a means by which the Mamluk ruling elite would monitor and control the religious practices of the local population through the establishment of an “orthodox” vision of Sufism. Homerin, on the other hand, adopts a more sanguine stance and points to the relative autonomy that these institutions enjoyed once they were consecrated as waqf endowments. We are thus left with two conflicting accounts that likely cannot be reconciled without recourse to undue speculation; the reader must interpret the results in light of their own understandings of the world.

Page 9 of 18



III. Larger Intellectual Trends in the Study and Practice of Islamic Law The legal institutions outlined above each possess some trait that defines them as quintessentially Mamluk, albeit some more subtly so than others. Other intellectual trends that predominated during Mamluk times would shape the study and practice of Islamic law to an equal, if not greater, extent. However, they cannot be as easily confined to the temporal and geographic boundaries of the Mamluk sultanate. They are nevertheless worth mentioning, as their influence would characterize the Mamluk legal texts that have reached us today. I list three of them here briefly and in descending order of significance to the study of Islamic law, while also providing references to some of the most recent scholarship on them.

A. The Proliferation of Commentary Works The advent of the Mamluk sultanate in the thirteenth century coincides with the beginning of what many Muslim reformers and twentieth-century scholars have dismissed as “the era of commentaries and supercommentaries.”32 This designation reflects the distaste that many such reformers and scholars held toward the outward form and rhetorical tone of commentary works, which would appear in the thousands and within all of the Islamic scholarly disciplines from the thirteenth century onwards. Taking their cues from Romantic ideas of the creative genius, the overwhelming majority of twentiethcentury scholars accepted at face value the (often tacit) claim of Muslim commentators to do nothing more than explicate, through their commentaries, what is otherwise implicit in a base-text. Once one accepts this claim, the base-text then assumes all agency in setting the creative agenda of a given discipline, while the commentarial form comes to symbolize intellectual and creative stagnancy. But to uncritically accept the rhetoric of commentary disregards both commentary’s function as an important locus for knowledge brokerage and specialization, and its propensity to subvert the received tradition, notwithstanding its rhetorical claims to the contrary. Contemporary scholars of Islamic law have begun to examine the creative merits of legal commentaries as an object of study in themselves,33 as is being done with a variety of other Islamic disciplines that witnessed a proliferation of commentary works in medieval times.34 Notwithstanding these positive trends in twenty-first century scholarship, assumptions from the study of western history still beset the field and inform the research agendas of many. In this light, Thomas Bauer’s critique of the study of Mamluk literature, namely that “what is described as ‘stagnation’ is therefore not the lack of development per se, but the lack of developments that mimicked and confirmed Western models,” might also be leveled at the study of Mamluk legal commentaries to date.35

Page 10 of 18



B. The Institution of the Ijaza (License; Certification) How did Mamluk legal scholars garner legitimacy for themselves and transmit their authority to the next generation of scholars? This question has proven surprisingly difficult to answer and has polarized contemporary scholars into two camps. In one camp, scholars like Berkey and Chamberlain have highlighted the organic and informal nature of the Mamluk educational system, which rested its foundation upon the skill and charisma of individual scholars, while they simultaneously downplay the role of institutions like the madrasa and the ijaza. The latter term denotes a complex and dynamic institution that served, in the majority of contexts, as a merely symbolic mechanism to link a new generation to an existing chain of transmission back to a hadith text or book, but in other contexts its usage suggests a formal, written certificate that functioned almost like an academic degree today. Berkey and Chamberlain categorically deny this second understanding of the ijaza.36 Opposed to them is the camp of George Makdisi, whose famous 1981 study The Rise of Colleges emphasizes the central role of formal institutions like madrasas and written, degree-like ijazas in certifying the next generation of Muslim scholars.37 In his 2004 article “The Doctorate of Islamic Law in Mamluk Egypt and Syria,” Devin Stewart traces the source of this debate back to two historiographical problems that confront scholars of the Mamluk educational system. The first, which has already been discussed above, is the dearth of Mamluk documentary sources that have survived until today that might otherwise provide us with direct examples of ijaza certificates functioning like academic degrees. Without direct access to such certificates, however, we are left with only recensions of them as they have reached us in literary sources like al-Qalqashandi’s famous secretarial manual Subh al-a‘sha. Stewart, in fact, relies heavily on this latter source in his examination of Mamluk ijaza practices, and his resulting analysis places him closer to the camp of Makdisi, his former teacher. A second and more general historiographical problem that Stewart identifies is the difficult nature of interpreting medieval Muslim biographical dictionaries. Muslim biographers would employ a highly idiosyncratic technical vocabulary when documenting the scholarly practices of their subjects, and their terms of art are not only subtle in themselves, but it is not always clear when they intend the conventional register of a term that might ostensibly appear technical and vice versa.38 Stewart’s article demonstrates a profound appreciation for the subtleties of the ijaza, and his results are persuasive. Nevertheless, the debate remains far from settled. To date, the most sophisticated treatment of the ijaza as an evolving institution throughout Islamic intellectual history appears in Garrett Davidson’s 2014 dissertation “Carrying on the Tradition: An Intellectual and Social History of Post-Canonical Hadith Transmission.”39 A published version of this dissertation promises to shed much needed light on an institution that was at the heart of the medieval Muslim discourse on authority.

Page 11 of 18



C. Encyclopaedism in Mamluk Literature In his 2012 dissertation “Encyclopaedism in the Mamluk Period,” Elias Muhanna examines the “aggregative ethos” that would define Mamluk scholarship and would lead to the sudden proliferation of compilatory texts after the thirteenth century. In response to earlier historians who have linked the encyclopaedic push of the times to the trauma of the Mongol conquests, Muhanna explains this trend instead as a function of Mamluk imperial and administrative expansion, which generated a broader, universal understanding of the Islamic intellectual heritage amongst scholars. With this new understanding came “the feeling of an overcrowding of authoritative sources,” and Muslim writers in a variety of disciplines would respond with compendia and compilations in an attempt to systematize these sources and structure their relationship to them.40 Although not a focus of Muhanna’s study, Muslim legal scholarship would also reflect such encyclopaedism, and it behooves the contemporary scholar of Islamic law to consider the causes for it and the effects that it would have on the textual tradition. Of course, much has been written on the practical dynamics of legal compendia as they relate to questions of authority and legal change, but Muhanna’s research offers us new methodological avenues for linking these questions to larger forces in Muslim social and political history.

Page 12 of 18



IV. A Brief Assessment of the Historiography and Questions for Future Research Mamluk Studies is a subfield that, by defining itself according to a fixed temporal and geographic range, manages to bring together political, economic, social, and intellectual historians who research within that range, thereby fostering synergy and creativity between them. In fact, the formative/classical/post-classical framework that informed twentieth-century scholarship in Muslim intellectual history is now seen as far too broad to be of use. Examining legal thought through the lens of a more circumscribed political dynasty, like that of the Mamluk sultanate, might provide us with a more fruitful means of refining the contours of change in Islamic legal thought and practice. Nevertheless, Muslim intellectual history does not lend itself to fixed borders, and the historiography of the larger intellectual trends discussed in Section III above is only beginning to garner the scholarly attention that it deserves. In light of the framing question that has structured this essay—namely, what is specifically “Mamluk” about Islamic law and legal scholarship during the Mamluk sultanate?—future researchers might benefit from asking some of the following questions as they approach their primary sources: Is there a particularly Mamluk tone or rhetorical style that we can identify in the legal commentaries that emerged in Mamluk times? Similarly, how do educational and judicial institutions that are particular to the Mamluk sultanate affect the intellectual content of the law that they produced and applied in the process of adjudication? How does the mukhtasar (abridgement) style of writing—here taken in its generic sense— relate to the Mamluk madrasa and the explosion of commentary works that defined the medieval tradition? Can we link the emergence of legal compendia to larger social, administrative, and political developments that are specific to the Mamluk period? Additionally, how might we uncover more historical data on the formal aspects of the Mamluk educational system and its processes of certification? For a lead in answering this last question, scholars might wish to consider Stewart’s passing remark that waqf documents have been “underutilized for the examination of educational, social, and economic history.”41 Though far from exhaustive, this list of research questions for future historians reveals some of the gaps in our knowledge—gaps that form especially in those places where social and intellectual history intersect. On the other hand, previous scholarship has laid a solid foundation for our understanding of the Mamluk legal institutions discussed in Sections I and II above, and future scholars must now continue to expand upon the details of these institutions. Finally, if Rapoport’s study into Mamluk siyasa courts is any indication, much of a scholar’s methodology rests upon his or her theoretical conceptions of Islamic law and the institutions and personalities that he or she chooses to prioritize when defining it. As Rapoport demonstrates convincingly, it is sometimes the broadest conceptions of shari‘a—those that can accommodate the theoretical elaborations of the

Page 13 of 18



“ulama,” the applied practices of the qadis and muhtasibs, and the political exigencies of the sultans—that best reveal the integration of Islamic law into all segments of Mamluk society.

References Bauer, Thomas. “Mamlūk Literature: Misunderstandings and New Approaches.” Mamlūk Studies Review 9, no. 2 (2005): 105–132. Berkey, Jonathan P.The Transmission of Knowledge in Medieval Cairo: A Social History of Islamic Education. Princeton: Princeton University Press, 1992. Chamberlain, Michael.Knowledge and Social Practice in Medieval Damascus, 1190–1350. Cambridge; New York: Cambridge University Press, 1994. Crone, Patricia.God’s Rule: Government and Islam. New York: Columbia University Press, 2004. Davidson, Garrett. “Carrying on the Tradition: An Intellectual and Social History of PostCanonical Hadith Transmission.” PhD diss., University of Chicago, 2014. Escovitz, Joseph H.The Office of Qāḍī al-Quḍāt in Cairo Under the Baḥrī Mamlūks. Berlin: Klaus Schwarz Verlag, 1984. Fernandes, Leonor.The Evolution of a Sufi Institution in Mamluk Egypt: The Khanqah. Berlin: Klaus Schwarz Verlag, 1988. Fernandes, Leonor. “Between Qadis and Muftis: To Whom does the Mamluk Sultan Listen?” Mamlūk Studies Review 6 (2002): 95–108. Haarmann, Ulrich. “Rather the Injustice of the Turks than the Righteousness of the Arabs: Changing ‘Ulamā’ Attitudes Towards Mamluk Rule in the Late Fifteenth Century.” Studia Islamica 68 (1988): 61–77. Hallaq, Wael B.Sharīʿa: Theory, Practice, Transformations. Cambridge; New York: Cambridge University Press, 2009. Holt, Peter M. “The Position and Power of the Mamlūk Sultan.” Bulletin of the School of Oriental and African Studies 38, no. 2 (1975): 237–249. Holt, Peter M. “Some Observations on the ʿAbbāsid Caliphate of Cairo.” Bulletin of the School of Oriental and African Studies 47, no. 3 (1984): 501–507. Homerin, Th. Emil. “Saving Muslim Souls: The Khānqāh and the Sufi Duty in Mamluk Lands.” Mamlūk Studies Review 3 (1999): 59–83.

Page 14 of 18



Ingalls, Matthew B. “Šarḥ, Iḫtiṣār, and Late-Medieval Legal Change.” Annemarie Schimmel Kolleg Working Paper 17 (2014): 1–20. Lapidus, Ira M. “Ayyubid Religious Policy and the Development of Schools of Law in Cairo.” In Colloque international sur l'histoire du Caire. Edited by André Raymond, 279– 286. Cairo: Wizārat al-Thaqāfa, 1969. Little, Donald P.A Catalogue of the Islamic Documents from al-Ḥaram aš-Šarīf in Jerusalem. Beirut: Orient-Institut der Deutschen Morgenländischen Gesellschaft, 1984. Makdisi, George.The Rise of Colleges: Institutions of Learning in Islam and the West. Edinburgh: Edinburgh University Press, 1981. Mandaville, Jon E. “The Muslim Judiciary of Damascus in the Late Mamluk Period.” PhD diss., Princeton University, 1969. Muhanna, Elias I. “Encyclopaedism in the Mamluk Period: The Composition of Shihāb alDīn al-Nuwayrī’s (d. 1333) Nihāyat al-arab fī funūn al-adab.” PhD diss., Harvard University, 2012. Qītāẓ, Muḥammad ʿAdnān. “Al-Shaykh ʿAlwān ʿAlī b. ʿAṭiyya al-Hītī.” Al-Turāth al-ʿArabī 10 (1983): 135–154. Rapoport, Yossef. “Legal Diversity in the Age of Taqlīd: The Four Chief Qāḍīs under the Mamluks.” Islamic Law and Society 10, no. 2 (2003): 210–228. Rapoport, Yossef. “Royal Justice and Religious Law: Siyāsah and Shariʿah under the Mamluks.” Mamlūk Studies Review 16 (2012): 71–102. Stewart, Devin J. “The Doctorate of Islamic Law in Mamluk Egypt and Syria.” In Law and Education in Medieval Islam: Studies in Memory of Professor George Makdisi. Edited by Joseph Lowry, Devin Stewart, and Shawkat Toorawa, 45–90. Cambridge: The E.J.W. Gibb Memorial Trust, 2004. Stilt, Kristen.Islamic Law in Action: Authority, Discretion, and Everyday Experiences in Mamluk Egypt. Oxford: Oxford University Press, 2011. Tyan, Émile.Histoire de l’organisation judiciare en pays de l’Islam. 2nd edn. Leiden: E.J. Brill, 1960.

Notes: (1) Patricia Crone, God’s Rule: Government and Islam (New York: Columbia University Press, 2004), 281. (2) Peter M. Holt, “The Position and Power of the Mamluk Sultan,” Bulletin of the School of Oriental and African Studies 38, no. 2 (1975): 237–249, 241–245. Page 15 of 18



(3) Ibid., 247. (4) Ibid. (5) Peter M. Holt, “Some Observations on the ‘Abbasid Caliphate of Cairo,” Bulletin of the School of Oriental and African Studies 47, no. 3 (1984): 501–507, 501–502. (6) Ibid., 503. (7) Ibid., 504ff. (8) Ulrich Haarmann, “Rather the Injustice of the Turks than the Righteousness of the Arabs: Changing ‘Ulamā’ Attitudes Towards Mamluk Rule in the Late Fifteenth Century,” Studia Islamica 68 (1988): 61–77, 62. (9) Ibid., 74ff. (10) Jon E. Mandaville, “The Muslim Judiciary of Damascus in the Late Mamluk Period” PhD diss., Princeton University, 1969; see also Émile Tyan, Histoire de l'organisation judiciaire en pays d'Islam, 2nd edn. (Leiden: E.J. Brill, 1960), 138–142. (11) Joseph H. Escovitz, The Office of Qāḍī al-Quḍāt in Cairo Under the Baḥrī Mamlūks (Berlin: Klaus Schwarz Verlag, 1984), 20–28, 74, 258, and passim; cf. Mandaville, “The Muslim Judiciary of Damascus in the Late Mamluk Period,” 7–8, 67–68, 85. (12) Escovitz, The Office of Qāḍī al-Quḍāt in Cairo Under the Baḥrī Mamlūks, 22, 27. (13) Yossef Rapoport, “Legal Diversity in the Age of Taqlīd: The Four Chief Qāḍīs under the Mamluks,” Islamic Law and Society 10, no. 2 (2003): 210–228, 226. (14) For a catalogue of the 900 documents that comprise this archive, see Donald P. Little, A Catalogue of the Islamic Documents from al-Ḥaram aš-Šarīf in Jerusalem (Beirut: Orient-Institut der Deutschen Morgenländischen Gesellschaft, 1984). (15) Escovitz, The Office of Qāḍī al-Quḍāt in Cairo Under the Baḥrī Mamlūks, 134. (16) Leonor Fernandes, “Between Qadis and Muftis: To Whom Does the Mamluk Sultan Listen?,” Mamlūk Studies Review 6 (2002): 95–108, 99. (17) Ibid., 99–101. (18) Yossef Rapoport, “Royal Justice and Religious Law: Siyāsah and Shariʿah under the Mamluks,” Mamlūk Studies Review 16 (2012): 71–102, 72. (19) Ibid., 72–74. (20) Ibid., 75. (21) Ibid., 74–75.

Page 16 of 18



(22) Ibid., 86–92; quotation at p. 89. (23) Ibid., 101. (24) Kristen Stilt, Islamic Law in Action: Authority, Discretion, and Everyday Experiences in Mamluk Egypt (Oxford: Oxford University Press, 2011). (25) Tyan, Histoire de l’organisation judiciare en pays de l’Islam, 436–462. (26) Wael B. Hallaq, Sharīʿa: Theory, Practice, Transformations (Cambridge; New York: Cambridge University Press, 2009), 148, 152. (27) Ibid., 197. (28) Ibid., 152. (29) Ira M. Lapidus, “Ayyubid Religious Policy and the Development of Schools of Law in Cairo,” in Colloque international sur l'histoire du Caire, ed. André Raymond (Cairo: Wizārat al-Thaqāfa, 1969), 285 and passim. (30) Michael Chamberlain, Knowledge and Social Practice in Medieval Damascus (Cambridge; New York: Cambridge University Press, 1994), 7–8, 47–51, 125. (31) Th. Emil Homerin, “Saving Muslim Souls: The Khānqāh and the Sufi Duty in Mamluk Lands,” Mamlūk Studies Review 3 (1999): 59–83, 76. (32) For an example of this sentiment, see, inter alia, Muhammad Qīṭāz, “Al-Shaykh ʿAlwān ʿAlī b. ʿAṭiyya al-Hītī,” Al-Turāth al-ʿArabī 10 (1983): 135–154, 138–139. (33) e.g. see my article “Šarḥ, Iḫtiṣār, and Late-Medieval Legal Change,” Annemarie Schimmel Kolleg Working Paper 17 (2014): 1–20. (34) See, e.g., the twelve articles that comprise volume 41:3–4 (2013) of the journal Oriens. (35) Thomas Bauer, “Mamlūk Literature: Misunderstandings and New Approaches,” Mamlūk Studies Review 9, no. 2 (2005): 105–132, 116. (36) Jonatahn P. Berkey, The Transmission of Knowledge in Medieval Cairo (Princeton: Princeton University Press, 1992), 16, 22, 43; Chamberlain, Knowledge and Social Practice in Medieval Damascus, 87–90. (37) George Makdisi, The Rise of Colleges: Institutions of Learning in Islam and the West (Edinburgh: Edinburgh University Press, 1981), 148–152, 172–175, 270–276. (38) Devin J. Stewart, “The Doctorate of Islamic Law in Mamluk Egypt and Syria,” in Law and Education in Medieval Islam: Studies in Memory of Professor George Makdisi, ed.

Page 17 of 18



Joseph Lowry, Devin Stewart, and Shawkat Toorawa (Cambridge: The E.J.W. Gibb Memorial Trust, 2004), 45–90, 48–53 and passim. (39) For an important discussion of the confusion in the secondary literature on the differing types of ijazas, see Garrett Davidson, “Carrying on the Tradition : An Intellectual and Social History of Post-Canonical Hadith Transmission,” PhD diss., University of Chicago, 2014, 130–133. (40) Elias I. Muhanna, “Encyclopaedism in the Mamluk Period: The Composition of Shihāb al-Dīn al-Nuwayrī’s (d. 1333) Nihāyat al-arab fī funūn al-adab.” PhD diss., Harvard University, 2012, chapter two (quoted material at p. 97). (41) Stewart, “The Doctorate of Islamic Law in Mamluk Egypt and Syria,” 48 (n. 12).

Matthew B. Ingalls

Middle Eastern Studies, American University in Dubai American University in Dubai

Page 18 of 18


The Historiography of Islamic Law During the Mamluk Sultanate

Recommend Documents