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The Mahdi's Legal Methodology as a Mechanism for Adapting the Sharî'a in the Sudan to Political and Social Purposes

Aharon Layish
p. 221-238

Résumés

Muhammad Ahmad b. 'Abd Alläh (mieux connu sous le nom de Muhammad al-Mahdî) dirigea, à la fin du XIXe siècle, un mouvement politico-religieux de renouveau de l'islam (Mahdiyya). L'aptitude du Mahdi à consolider une théocratie radicale au sein d'une société gérée par des coutumes tribales était dépendante des capacités d'adaptation de la charia orthodoxe aux événements que la coutume ne pouvait manquer de rencontrer et à permettre à son leader charismatique de manœuvrer en vue de résoudre les problèmes politiques et sociaux qui se posent quotidiennement au sein d'une théocratie.
Pour y parvenir, le Mahdi mit en place un système législatif unique en son genre lui assurant une autorité illimitée pour établir les règles sans la moindre contrainte institutionnelle provenant des oulémas orthodoxes. Il abolit toutes les écoles juridiques (les madhhab-s) pour reconnaître trois sources de la loi : la Sunna du Prophète, le Coran et sa propre inspiration (ilhâm), que le Prophète lui avait attribuée, l'ijtihâd duMahdi n'a donc rien à voir avec l'ijtihâd classique.
L'application de ce système législatif permit au Mahdi d'introduire des innovations dont certaines étaient bien loin de la charia orthodoxe. Cet article analyse quelques-unes de ces innovations dans différents domaines du droit musulman, élaborées en fonction du projet du Mahdi. Il est basé sur un corpus de plus d'un millier de documents produits par le Mahdi depuis son émergence en 1881 à sa mort en 1885.

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Avertissement

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Notes de l’auteur

Most of the material for this research was collected at the University of Bergen. 1 would like to thank both Prof. R. S. O'Fahey of the Dept. of History and Dr. Knut S. Vikor, the Director of the Centre of Middle Eastern and Islamic Studies, for the warm hospitality extended to me during my visits to the Centre in 1995, 1996 and 1997. I am also grateful to Prof. P. M. Holt who graciously placed his personal collection of the Mahdi's documents at my disposal during my sabbatical stay in Oxford in 1993. Prof. G. R. Warburg (University of Haifa) has initiated me into the field of Sudanese studies and has whetted my curiousity with respect to the Mahdi's legal methodology for which I am most grateful. Prof. R. Peters read an earlier draft of this essay and made many helpful suggestions. I also thank Nathan Dorn for his editorial assistance. This research is supported by a grant from the Israel Science. Foundation.

Texte intégral

Introduction1

  • 1 The introduction is an abbreviated version of my essay « The Legal Methodology of the Mahdi in the (...)

1Muhammad Ahmad b. 'Abd Alläh (best known as Muhammad al-Mahdî) headed a religious-political movement for the revival and reform of Islam (Mahdiyya) in the late 19th century with a view to restoring, on the basis of the Quran and the sunna, the Islamic theocracy that prevailed in the days of the Prophet Muhammad and the « Righteous Caliphs ». The success of the Mahdi's endeavour to consolidate a radical theocracy in a society well-entrenched in tribal customary law was dependent on the mitigation of orthodox shari'a to the extentthat was necessary to meet custom half-way and enable a charismatic leader enough room to manoeuvre to solve daily political and social problems arising within a theocracy.

  • 2 The present study is in fact an attempt to reconstruct the Mahdi's legal methodology by an outside (...)

2For this pupose, the Mahdi created a unique legal methodology that has never been formulated in a comprehensive legal treatise,2 a methodology that provided him with unlimited authority to enact rules without any institutional restriction on the part of orthodox 'ulamâ'. The Mahdi's legal methodology, though simple and unsophisticated, seems to have been effective in enabling him to achieve his goals. He ignored all schools of law (madhâhib) and disregarded their legal literature, thus releasing himself from the burden of taqlîd, the law as consolidated within these schools. The Mahdi acknowledged three sources of law : the Prophetic sunna, the Quran, and inspiration (ilhâm) transmitted to him by the Prophet Muhammad. From this order, it may be inferred that the sunna as a source of law is more important than the Quran. Thus, he did not rule out the possiblity that a hadîth may abrogate (yansakh) a Quranic provision. He also seems to have favored adherence to the literal external (zâhir) meaning of the textual sources.

3The Mahdi's version of ijtihâd is not compatible with classical theory. Similar to the salafîconcept common among revivalist and reformist movements preceding the Mahdiyya, the Mahdi, too, emphasized the Quran and the Prophetic sunna as sources of law. The Mahdi apparently disregarded qiyâs or analogical reasoning based on the textual sources of the Quran and the sunna. On the other hand, he added a new source of law –inspiration (ilhâm)–- which he claimed to receive directly from the Prophet Muhammad. The Mahdi regarded himself as heir (wârith) to and successor of the Prophet Muhammad (khalifat rasûl Allâh) and, consequently, claimed the ability to communicate with the Prophet by means of visions (hadrât). The enlistment of Prophetic sanction was apparently meant to place him outside the control and criticism of the 'ulamâ'.

4In the Mahdi's legal methodology, there is no explicit mention of custom ( 'âda, urf). The impact of custom on law as shaped by the Mahdi in the light of political and social requirements can be discerned in proclamations, rulings, judgments and decisions handed down by him as well as in sayings (aqwâl) attributed to him after his death. This phenomenon resembles the Prophetic sunna, that is, normative custom as reflected in the sayings and behavior of the Prophet Muhammad.

5The Mahdi's unique version of ijtihâd is bound to the textual sources by ilhâm rather than qiyâs as required by classical theory. This conferred upon theMahdi a degree of discretion wider than that allowed by analogical reasoning. Moreover, the legal norm shaped in this way by the Mahdi was, contrary to the mechanism of classical ijtihâd, final, irrevocable and infallible.

6The Mahdi's legal methodology was undoubtedly inspired by revivalist and reformist movements in Arabia (Wahhâbiyya) and the Maghrib (Sanûsiyya) dating back respectively to the 18th and 19th centuries as well as by various 'ulamâ whom he may have met and from whom he may have derived his knowledge in his formative period. The Sufi background of the Mahdi may also have contributed to his legal methodology.

Application of the Mahdi's Legal Methodology

  • 3 See Muhammad Ibrâhîm Abû Salîm (ed.), al-Athâr al-kâmila li'l-imâm al-mahdî, vol. 4 (1992), 205 [35 (...)
  • 4 This is a random sample. Over the last few years, I have been able to consult only a small portion (...)

7The application of his legal methodology enabled the Mahdi to introduce innovations, some of which were far-reaching deviations from orthodox sharî'a. To this end, the Mahdi instructed the qâdî-s, his delegates in the shar'î judiciary, to hand down decisions on the basis of the Quran and the sunna, while tacitly ignoring the law of all the schools.3 Below is a sample of innovations in various domains of Islamic law arranged according to goals promoted by the Mahdi :4

Political purposes

  • 5  Abû Salîm, al-Athâr al-kâmila, vol. 1 (1990), 338 [29] ; vol. 5 (1992), 368 [24] ; 4l6ff. [73ff.], (...)

8The Mahdi's immediate purpose was to eliminate the Turco-Egyptian regime and consolidate an independent sovereign theocracy. In order to do this, he charged the Turks and the Egyptians with unbelief(takfîr). The Sudanese people who were effectively under Turco-Egyptian control were also charged with unbelief in an effort to encourage them to join the Mahdist state.5 Needless to say, from the pure orthodox shar'î point of view, all these people were legitimate Muslims in every respect. Their political conflict with the Mahdi was by no means a shar'î ground for declaring them infidels.

  • 6  Abû Salîm, al-Âthâr al-kâmila, vol. 1 (1990), 375-76 [51-52]. Cf. Holt, The Mahdist, 129.
  • 7  Abu Salîm, al-Âthâr al-kâmila, vol. 2 (1991), 45-46 [42-43] ; Holt, The Mahdist State, 64, 129 ; R (...)

9The same rationale guided the Mahdi to rule that if the wife joined the Mahdist state while the husband was left behind in Turkish territory, the marriage bond between them was dissolved automatically, presumably on grouds that a marriage union with an infidel husband was deemed null and void. Once the husband joined the Mahdiyya, it was then possible to rehabilitate the marriage by means of a new marriage contract.6 Late in November 1882, while negotiating the terms of surrender of Bâra in the province of Kordofan to the Mahdist forces, Abdal-lâhi al-Nûr 'Anqara sent a letter to the Mahdi expressing the concern of the people of Bâra with respect to matrimonial matters arising from the continuous war. There were many cases of prolonged (six-seven years) disappearance of husbands. In one particular case, a wife of an absent (ghâ'ib) husband married one of the Ikhwân without having observed the waiting period ( 'iddà) prior to the marriage. 'Abdallâhi al-Nûr asked the Mahdi's legal opinion as to whether such a marriage was deemed valid or, if not, was it necessary to rescind (faskh) the union. The Mahdi gave a legal opinion to the effect that in cirumstances where absent husbands stayed behind in Turkish territory, there was no need at all to resort to a waiting period although women were required, for the validity of the new marriage, to prove that their « womb was clean or free » (barâ'at arhâmihinnd), that is, that they were not pregnant at the time of the conclusion of the marriage. On the other hand, if the absent husbands were Ansâr, that is, Mahdists, who had disappeared for a long time in Mahdist territory without providing their wives with maintenance and the wives insisted on divorce, their marriages should be dissolved, probably on grounds of prolonged absence or non-provision of maintenance ; they should not be permitted to remarry unless after they had observed the waiting period. The omission of the waiting period with respect to wives whose husbands stayed in Turkish territory reflects a value judgement on the part of the Mahdi towards « infidels ».7

  • 8  Abû Salîm, al-Âthâr al-kâmila, vol. 1 (1990), 439 [83] and vol. 3 (1991), 163 [86], respectively.
  • 9  Abû Salîm, al-Âthâr al-kâmila, vol. 3 (1991), 152-53 [53-54].
  • 10  Abû Salîm, al-Âthâr al-kâmila, vol. 4 (1992), 192-93 [55-56]. For the text of the legal opinion an (...)

10Consequendy, the Turks and their wives as well as an « infidel » husband's property were regarded as spoils of war (ghanîma) while the dower of a woman who had joined the Mahdiyya and left her husband behind in Turkish territory remained her private property.8 If a woman in Turkish territory had been divorced by her husband through khul', that is, an agreement by which the wife redeems herself from marriage in return for a compensation, usually the prompt dower, she was notentitled to the deferred dower and the husband was not entitled to compensation in return for the divorce.9 No account was taken of the number of divorces that were performed in Turkish territory. Under orthodox shari'a, a three-times divorced woman at different sessions or a triply-divorced woman at one session is not legally permitted to her former husband unless an intermediate marriage has taken place. 10To sum up, an ongoing presence in Turkish territory nullifed all legal consequences of a marriage contract. On the other hand, anyone who joined the Mah-diyya was entitled to shar'î rights pertaining to personal status and property.

  • 11  Abu Salîm, al-Âthâr al-kâmila, vol. 2 (1991) [82]. Cf. Holt, The Mahdist State, 74-76. .
  • 12 F. Lokkegaard, « Fay' », EP, vol. 2 (1991), 869ii ; Cl. Cahen, « Bayt am-Mâl », El2, vol. 1 (1986), (...)
  • 13 Abû Salîm, al-Âthâr al-kâmila, vol. 2 (1991), 221-22 [81-82]. Cf. Holt, The Mahdist State, 16, 125- (...)

11The Mahdi proclaimed the Turkish districts of Dâra and Kabkâbiyya in southern Darfur which had been conquered by him by means of agreement (sulhan), rather than jihâd (holy war) as fay, that is, lands belonging to the entire Muslim community. As support for this ruling, the Mahdi cited Quran verse 59 :7.11This status was originally reserved for lands conquered by force or unconditional surrender ('anwatan) 12With respect to the division of spoils (ghanîmd) of al-Fâshir [El-Fahsher] in the southern district of Darfur, the Mahdi ruled, on the basis of Quranic verse 8 :41, that one-fifth (khums) of the spoils should be transmitted to the Treasury (bayt al-mât) and four-fifths to the warriors which should be equally apportioned among them, as required under orthodox sharî'a. However, according to his ruling, weapons, mounts for riding, female mules andjihâ-diyya (troops of slave origin) should not be apportioned since they were required for « the consolidation of religion » (maslaha li-taqwîm al-dîn). This applied also to women (harîm), probably out of fear of moral corruption.13

  • 14  Abû Salîm, al-Âthâr al-kâmila, vol. 3 (1991), 318 [69] ; Peters, « Islamic Criminal Law : A Survey (...)
  • 15 See above, note 6.

12In a letter to Khalîfa 'Abdallâhi (who replaced the Mahdi after his death in 1885), the Mahdi instructed him to encourage a group of people, probably on the verge of renouncing the Mahdiyya, to rejoin him by threatening to hand down a death sentence against them. Though apostasy (ridda) is not mentioned explicitly in that letter, there is some indication that this is implied. Apostasy means renouncing Islam, by words or conduct, explicity or implicitly. These people were warned that « if someone contradicted (khâlafa) [the Mahdi] or betrayed (khâna) [him, that is, departed from the Mahdiyya] he... would be liable to execution (qatl)... If, however, they sincerely repented (tâbu), repaired (aslahû) their behavior and prepared their hearts for the Mahdi, the death penalty would be commuted ». The term « repentance » (tawbd) used in the letter may indicate that the text is dealing with apostasy which, according to the Maliki school, unlike otherschools, is deemed a hadd crims, the prescribed punishment for which is death. However, the apostate is granted three days for reflection and, repentance failing which, he will be executed.14 We have already noticed that Sudanese who stayed behind in Turkish territory were deemed by the Mahdi as infidels.15

  • 16 Holt, The Mahdist State, 56.
  • 17  Abû Salîm, al-Âthâr al-kâmila, vol. 1 (1990), 300 ans n. 2 [80]. The Maliki doctrine does not reco (...)

13In a circular (manshûr) distributed to amîrs, the qâdî al-islâm and qâdî-s all over the country some time after the Mahdi had reached Jabal Qadîr in southern Sudan (31 October 1881) when he had given the mountain the name of Massa,16the Mahdi aggravated the rules pertaining to retribution (qisâs) in Turkish territories recently conquered by him probably with a view to deterring his opponents. According to the prevailing rule which the Mahdi acknowledged previously to that event, in a case of homicide (qatl) the Mahdi was undoubtedly referring to intentional ( amd) homicide –the victims next of kin (wallal-maqtûl), that is, the avenger, had the option (mukhayyar) to choose either to take the blood price (diya) or retribution. The Mahdi, ignoring the fact that this rule is shared by all schools of law, instructed that, in the future, any conquered place would be bound, with respect to homicide — and again, it seems that he was referring to intentional homicide though he made no distinction between intentional ('amd), unintentional (khatâ') and other kinds of homicide — by compulsory retribution with no option to settle the dispute by blood price : « the incumbent [recourse available] should be retribution alone and nothing else ». He further instructed that this innovative rule be strictly applied. In contrast, all schools of law maintain that the option of retribution exists only in cases of intentional homicide. The Mahdi's innovation was probably initiated as a deterrent against potential rebels.17

  • 18  Abû Salîm, al-Âthâr al-kâmila, vol. 1 (1990), 443 [45] ; J. Chelhod, « Kaffâra », El2, vol. 4 (199 (...)
  • 19 Peters, « Islamic Family Law », § 0.1.3.2 ; Anderson, Islamic Law in Africa, 369.
  • 20  Abû Salîm, al-Âthâr al-kâmila, vol. 3 (1991), 227-28 [46]. Cf. Holt, The Mahdist State, 98-99.

14The Mahdi prohibited excessive dower (sadâq) and instructed that if a dower exceeded the maximal rate prescribed by him, two-thirds of the dower should be expropriated for the bayt al-mâl, the Treasury, as expiation (kaffâra), usually recommendeed for sinners, and apportioned as charity (sadaqa) to the poor and warriors of jihâd for the cause of Allah until the day of resurrection.18 Needless to say, this instruction has no basis in the sharî'a under which the dower is the absolute property of the wife. The Hanafi and Maliki schools prescribe minimaldower. No maximal dower is recognized by any of the schools.19 After the fall of the province of Berber, the Mahdi instructed (7 September 1884) Muhammad al-Khayr, the recently commissioned amir ofBerber, to encourage women who had received excessive dowers prior to the consolidation of the Mahdiyya in that area, to contribute voluntarily the difference between normal and excessive dower in favor ofjihâd inreturn for a reward in the next world.20

  • 21  Abû Salîm, al-Âthâr al-kâmila, vol. 5 (1992), 457ff. [7ff.].
  • 22  Abû Salîm, al-Âthâr al-kâmila, vol. 1 (1990), 335 [26], 337 [28]. Cf. Holt, The Mahdist State, 107 (...)

15It goes without saying that, in addition to legal innovations, the Mahdi used other means for political ends. Thus, he proposed nominating Muhammad al-Mahdî al-Sanûsî, the head of the contemporary Sanûsî order, as Khalifat 'Uth-mân in return for cooperation (the offer was ignored). Earlier, the Mahdi, who regarded himself as khalîfat rasûl Allâh,21nominated 'Abdallâhi b. Muhammad (who replaced him after his death) as khalîfat al-siddîq (Abû Bakr), 'Alt b. Muhammad Hilû ('Alî wad Hilû) as khalifat al-fârûk ('Umar) and Muhammad Sharif b. Hâmid (the Mahdi's son-in-law) as khalifat al-karrâr (Alî).22

Status of women

Marriage

16In one case, the Mahdi advised someone called Muhammad al-Tawîm al-Mâdih not to marry a certain woman against her will, that is, by means of matrimonial coercion (ijbâr), the right of marriage guardians to marry off their wards without their consent. He justified his advice on grounds that such a marriage lacked « spiritual communion » and was unlikely to « promote victories ». Moreover, such a union might cause him a serious injury (darar) by bringing about his « alienation » (ib'âd), detachment [of the Ansâr] and loss of status as one of the Mahdi's close favorites. The Mahdi asked Khalîfa Abdallâhi to remind al-Mâdih of his advice and he further warned al-Mâdih that becoming related through such marriages (sihârât) was not advisable. It is not clear whether this advice represents an effort to solve a particular case or to formulate a general rule applicable to everyone. If the latter is the case, the Mahdi's instruction amounts to a prohibition of matrimonial coercion. The Maliki school, along with other schools (to the exclusion of the Hanafi school) admits the right of coercion with respect not only to minor girls (and wards who are legally incompetent) but also with respect to adult women provided they be virgins. The Hanafi school does not acknowledge the right of coercion with respect to adult women.

  • 23  Abû Salîm, al-Âthâr al-kâmila, vol. I (1990), 417 [36] and vol. 4 (1992), 473 [61], respectively, (...)

17In another case, a woman called Zaynab bt. Ahmad Muhammad Sharaf, a widow of a shahîd, that is, someone killed in a battle with infidels (the reference is probably to the Turks), complained to the Mahdi that one of the Ansâr hadmarried her against her will. The Mahdi dissolved the marriage and warned her would-be husband not to interfere with her rights in her late husband's estate. It is interesting to note in this connection that the traditional Maliki right of coercion with respect to adult women still obtains in modern Sudan although the woman's consent is, as from 1960, essential for its validity.23

  • 24  Abû Salîm, al-Âthâr al-kâmila, vol. 5 (1992), 18 [40] ; Peters, Islamic Family Law, §0.1.2.1, 0.1. (...)

18In one case, the Mahdi permitted a woman to marry her daughter to anyone she wished provided that the daughter's consent had been obtained and that the husband adhere to the Mahdiyya. According to most schools, only the father and, in his absence, male agnates in a specifed order may serve as marriage-guardians. Marriages contracted by anyone other than an authorized legal guardian are null and void. In the absence of any of these, the qâdî exercises this right. The mother is not a natural guardian, that is, by virtue of blood relation, nor a marriage-guardian of her daughter.24

  • 25 The Austrian (Maria Theresa) dollars were known by the Turkish-Arabic name of riyâl qushlî. See Hol (...)
  • 26 Chelhod, « Kaffâra », 406-07 ; Schacht, An Introduction to Islamic Law, 185.
  • 27 Abû Salîm, al-Âthâr al-kâmila, vol. 1 (1990), 432 [44] ; Peters, « Islamic Family Law », § 0.1.3.2. (...)

19The Mahdi prescribed maximal rates for dower (sadâq) : ten riyâl-s25for a virgin (bikr) and five riyâls for a non-virgin ( 'uzba, thayyib). Future brides and bridegrooms were warned to abide by this ruling failing which a substantial part of excessive dowers would be appropriated to the Public Treasury (bayt almâl)26None of the schools fix maximal dower (the Hanafi and Maliki schools fix ten and three dirhams, respectively as minimal dower).27

  • 28  Abû Salîm, al-Âthâr al-kâmila, vol. 3 (1991), 33-35 [37-39], 110-11 [65-66] ; A.J. Wensinck, Conco (...)

20The Mahdi ruled, on the basis of a prophetic hadîth, that the prohibition to marry on grounds of fosterage must be regulated along the same patterns as the prohibition on grounds of kinship (yuharrim min al-rida mâ yuharrim min al-nasab). The orthodox schools maintain that this prohibition is not applicable in circumstances where the link producing the prohibition on grounds of fosterage is not common to all blood relatives. Thus, the foster mother or sister of one of two blood brothers is not prohibited from marrying the other brother. This ruling which aggravates the prohibitions on marriage could possibly be inspired by the Mahdi's puritanism. However, it could as well be an inevitable result of the Mahdi's adherence to the literal meaning of the aforementioned hadîth which instructs that the prohibition should be absolute with no exception.28

  • 29  Abû Salîm, al-Âthâr al-kâmila, vol. 5 (1992), 415 [50] ; Peters, « Islamic Family Law », §0.1.3.3.
  • 30  Abû Salîm, al-Âthâr al-kâmila, vol. 5 (1992), 422 [78] ; Layish and Shaham, « Nikâh », 31-32.

21Another innovation pertains to sanctions imposed on a recalcitrant wife (nâshiza), that is, a wife who does not fulfill her marital duties towards her husband. Under orthodox sharî'a, a recalcitrant wife loses her right to maintenance during her recalcitrance (nushûz). In a letter to his agents and qâdî-s, the Mahdi instructed that a disobedient wife must be divorced and obliged to return the dower and whatever she had received from her husband. This is, in fact, a com-pulsoy khul'm deviation from the orthodox khul', i.e., repudiation in return for compensation to the husband based on mutual consent of the spouses.29 In one case, the Mahdi ruled that a disobedient wife should be put in a darkened cave or house (awkâr, buyût muzlama), probably by way of chastisment, until she returned to the conjugal dwelling or, alternatively, died as an adulteress (zâniya). It is interesting to note, in this connection, that until the late 1960s, it was possible in the Sudan and Egypt to enforce obedience on a recalcitrant wife by means of the police (bayt al-tâ'a) .30

Divorce

  • 31  Manshûrât al-Imâm al-Mahdi, repr. (Khartoum, 1963-64), vol. 3 : al-Ahkâm wa'1-âdâb, 11-12 and Muha (...)

22The Mahdi abrogated the validity of suspended divorce by means of an oath ( 'alayya al-talâq or 'alayya harâm, « [my wife] shall be forbidden to me ») intended to reinforce a pronouncement made by the husband in a matter not necessarily related to the wife, that is to say, with no intent (niyya) to terminate the union. Suspended divorce, recognized under all schools of law, was abrogated by statutory legislation in some countries only in the 20th century.31

  • 32  Abû Salîm, al-Âthàr al-kâmila, vol. 3 (1991), 119 [31] ; Peters, « Islamic Family Law », § 0.1.5.2 (...)

23Another innovation in the domain of divorce introduced by the Mahdi was probably motivated by the desire to diminish the harsh legal consequences of divorce. Under orthodox sharî'a, after a third repudiation –whether revocable (raj'î)or irrevocable (bâ'in) – the divorced woman cannot be legally restored to her former husband unless she has married another man, that marriage has been dissolved and the waiting period has been observed. The Mahdi was asked on one occasion to give a legal opinion as to whether a khul' divorce should or should not be taken into account within the quota of three divorces after which an intermediate marriage was required. If khul's shouldbe taken into account as a regular repudiation, then an intermediate marriage was required ; if not, the mus-taftî presumed that the divorced woman could be restored without having recourse to intermediate marriage. The mustaftîfurther suggested deriving support for this presumption from Ibn Abbâs (d. 68/686-8). According to the doctrine of this jurist, khul'constitutes afaskh, a dissolution of the marriage contract by means of legal proceedings rather than repudation. The Mahdi adopted a doctrine which is similar to that of Ibn 'Abbâs' doctrine, but there is no direct evidence to the effect that he was inspired by Ibn 'Abbâs. He ruled in his legal opinion that if the husband did not pronounce the word talâq, then khul' should not be taken into account within the quota of three divorces ; if, however, he pronounced talâq alongside khul', such a combination was deemed as a regular repudation and the divorced wife could not be legally permitted to her ex-husband unless an intermediate marriage had taken place.32

  • 33  Abû Salîm, al-Âthâr al-kâmila, vol. 5 (1992), 415 [50] ; Shalabî, 'Ahkâm al-usrafi l-islâm, 50-54  (...)

24In one case, a man proposed to marry a woman and paid a substantial part of the dower. The conclusion of the marriage was postponed until the termination of the period during which the potential husband was entitled to « inspect [the woman] with his eyes » (nazar). In the meantime, the woman was married to someone else, probably in return for a higher dower. The Mahdi ruled that the marriage should be dissolved and that the marriage-guardian of the bride should be flogged and imprisoned in jail. Under orthodox sharî'a, a betrothal or a promise to marry a woman does not constitute a marriage. According to the Maliki jurist 'Illaysh (d. 1299/1881-82), if the marriage has been consummated, it cannot be dissolved, but if, on the other hand, it has not been consummated, it should be dissolved. In the case under review, it is not indicated explicitly that the marriage had not been consummated which seems to imply that the marriage had been consummated. Flogging and imprionment of the marriage-guardian in such circumstances are not shar'î punishments, but they may be regarded as disretionary punishments (ta'zîr) ; it seems that the Mahdi intended by means of these measures to deter people from marrying women already engaged to other men without having the betrothal dissolved first.33

  • 34  Abû Salîm, al-Âthâr al-kâmila, vol. 3 (1991), 110, 112 [65,67] ; Holt, The Mahdist State, 132 ; Sh (...)

25In an istiftâ' by Ahmad All, the qâdî al-islâm, the Mahdi's legal opinion was requested on the rule pertaining to the duration of the waiting period ( 'idda) of a woman whose menstuation occurred one year after she had been divorced : was it three menstrual cycles or otherwise ? The purpose of the waiting period is to ensure that a divorced woman is not pregnant before being permitted to remarry. Pregnancy after the expiry of the waiting period may give rise to allegations of unchastity. The Mahdi'sfitwâ maintains that a minor girl (i.e., before puberty) who has never menstruated and a woman who has reached the age of despair (yâ 'isa) have to observe a waiting period of three months (ashhur) as prescribed in the Quran (65 :4). A young woman (shâbba) who has reached puberty (bulûgh) but has ceased to mensturate before the age of despair, which seems to be the case under review, has — in accordance with a hadîth related to 'Umar - to wait nine months. If she fails to mensturate during this period, she will have to observe a waiting period of three months. The schools of law acknowledge waiting periods in terms of menstruation (qurû'), purity (tuhr) and regular months (ashhur) in accordance with the specific physical condition of the divorced wife. According to the Hanafi and Hanbali schools, a divorced wife of a consummated valid marriage should observe a waiting period of three menstrual cycles and according to the Maliki and Shafi'i schools — three months of purity.34

Inheritance

  • 35  Abû Salîm, al-Âthâr al-kâmila, vol. 4 (1992), 473 [61] ; N. J. Coulson, Succession in the Muslim F (...)

26The Mahdi ruled that the widow previously discussed, Zaynab bt. Ahmad Muhammad Sharaf whose husband had died as a shahîd, that is, in holy war against the « infidel » Turks, was entitled to take the entire estate, probably in the absence of children, as charity (ihsân). Under orthodox sharî'a, in the presence of a descendant, the wife takes one-eighth of the estate and, in the absence of a descendant, one-quarter. She is not entitled to the radd, the residue of the estate after the Quranic heirs have taken their prescribed portions and mere are no agnatic heirs ('asaba). It is not indicated whether the shahîd left descendants or agnates. The Mahdi's rule is a clear deviation from the Quranic inheritance verses which were revealed to the Prophet Muhammad after the widow of the shahîd Sa'd b. al-Rabî' had complained that her daughters' paternal uncle had taken possession of the entire estate of her husband. The Prophet, following a revelation (Q. 4 :11-12), ruledas follows : the shahîd's daughters take two-thirds of the estate, his widow takes one-eighth and the paternal uncle (i.e., the deceased brother) takes the rest as an agnatic heir. This event might have inspired the Mahdi in the case under review.35

Public order and morality

Criminal Law

  • 36  Abû Salîm, al-Athâral-kâmila, vol. 3 (1991), 129 [70] ; Holt, The Mahdist State, 79-80 ; W. Heffen (...)
  • 37  Abû Salîm, al-Âthâr al-kâmila, vol. 5 (1992), 418-19 [74-75].

27Following an abortive conspiracy in the vicinity of Daym al-Zubayr (in the province of Bahr al-Ghazal), the Mahdi commissioned Karamallâh Shaykh Muhammad Kurqusâwî as amîr in charge of the military force to cope with the challenge. Shortly after Karamallâh had taken over the provincial headquarters (28 April 1884), the Mahdi sent him a letter with instructions to deal with various domestic affairs. Inter alia, the Mahdi responded to what seems to be a query pertaining to the policy of punishment on offenses of theft. He ruled that « it is agreed that a thief's hand should be amputated » (wa-qat' yad al-sârik muwaffaq). There is no indication in the letter whether this should be done under any circumstances regardless ofshar'îrequirements such as nisâb, a specified minimal value of the stolen object, secrecy (khafâ'or sitr), removal of private property (mâl) from the safe-keeping (bin) of its owner and pleas of mistake or doubt (shubha) that avert the application of the hadd punishment. It is highly likely that the Mahdi based his ruling on the literal meaning of Quranic verse 5 :38 which does not specify any of these requirements.36 Substantial support for this assumption can be derived from another case where the Mahdi ruled : « Anyone who steals from you an object regardless of whether it is of significant or insignificant value, you must amputate his hand so that on the day of resurrection he will rise hand-less and wander about randomly the same way as a human being wanders about in this world after having suffered calamity by Satan. »37

  • 38  Abû Salîm, al-Athâr al-kâmila, vol. 3 (1991), 112 [72]; Peters, « Islamic Criminal Law », § 0.1.1. (...)

28In one case, a man sued his wife's lover in court and the qâdî warned the lover. The lover nevertheless did not cease to intrude on the couple's home. Later on, following a provocation (the lover insulted the husband), the husband killed the lover. The Mahdi ruled, on the basis of the Quran (24 :4) that since the husband had not proven unchastity (zina) by means of four eye-witnesses, he was liable to the sanction prescribed for qadhf, unproven accusation of unchastity, which is eighty lashes. He was also liable to retribution (qisâs), that is, execution, for causing homicide. Under orthodox sharî'a, in case of intentional ( 'amd) homicide, an option of settling the dispute between the parties by pardon or compensation, that is, blood price (diya) is available to the « avengers » (awliyâ'al-dam). There is no option of retribution in case of unintentional homicide and the only way to settle the dispute is by compensation. The reference to provocation mentioned in the Mahdi's ruling may indicate that the element of intent (niyya) was missing (though we have no information as to whether the weapon used was intrinsically likely tokill) in which case the financial compensation is recommended under the sharî'a. According to the Hanafi doctrine, the avengers are the victim's heirs and, according to the Maliki doctrine, the 'âqila, the victim's agnates, in a specified order, are collectively responsible for retribution. The offender's 'âqila, whether male agnates or other group of solidarity, is collectively responsible for the payment of the diya. Only in the case where there are no male agnates may the ruler, being the ultimate heir, decide whether to avail himself of the option of retribution –provided such an option exists –or of settling the dispute by compensation. There is no indication in the Mahdi's ruling as to the existence or non-existence of heirs or male agnates and the possibility that the Mahdi, motivated by considerations of public order, decided to transform homicide from private to public law cannot be ruled out. Had the husband killed the loverflagrante delicto, he would have been exempted under the sharî'a from criminal liability on two grounds : defence of his honor and the necessity of halting a crime in progress.38

Control of public morality

  • 39  Abû Salîm, al-Athâr al-kâmila, vol. 2 (1991), 264 [63]. Cf. Cl. Cahen and M. Talbi, « Hisba », El2(...)

29The Mahdi imposed various prohitions intended to regulate and control public morality, especially women's chastity. To this end, he innovated the institution of hâkim al-sûq, the governor of the market, probably a synonymous term for muhtasib who was in charge of public morality. He was a public prosecutor whose function was to bring transgressors to trial before the qâdi.39

  • 40  Abû Salîm, al-Athâr al-kâmila, vol. 5 (1992), 338 [71] ; Holt, The Mahdist State, 130 ; Peters, « (...)
  • 41  Abû Salîm, al-Âthâr al-kâmila, vol. 4 (1992), 109 [88].
  • 42  Abû Salîm, al-Athâr al-kâmila, vol. 4 (1992), 109 [88]. For details on these games, see E. Lane, T (...)

30In a proclamation to the people of Jabal al-Kanak [ ?], the Mahdi expressed his concern that these people still adhered to the ancient sunna such as wine-drinking, consumption of tabacco, clapping (safq), probably in festivities, dancing (raqs) and eating of pork. These and similar customs were regarded by the Mahdi as sunna jâhi-liyya doomed to be rooted outby Allâh. The Mahdi ruled in the proclamation that the penalty for wine-drinking (shurb khamr) was eighty lashes and eight days of imprisonment. Drinking wine is prohibited in the Quran (5 :90) though the penal sanction (hadd) for this offense is based on the sunna. The imprisonment seems to be an innovation introduced by the Mahdi with a view to deterring potential offenders. Similarly, the Mahdi ruled that the penalty for consumption of tobacco (tun-bâk) was eighty lashes and one month imprisonment.40 On another occasion, the Mahdi ruled that anyone violating any of these prohibitions after having been flogged for that offense, was liable to imprisonment and reprimand (zujira) ;if the offender, nevertheless, violates the prohibition once again, part of his property should be confiscated and if he repeats the offense for a third time, all his propertyshould be confiscated as spoils (taghnîm), a sanction that is usually reserved by the Mahdi for infidels.41 Games of hazard, such as manqala, tawla and tâb entailed ta'zîr, discretionary punishments.42

  • 43 For the meaning of this word, see E. W. Lane, Arabic-English Lexicon, revised format, The Islamic T (...)
  • 44  Abû Salîm, al-Athâr al-kâmila, vol. 2 (1991), 263-64 [62-63]. Cf. Holt, The Mahdist State, 130.

31The Mahdi ruled that women were required to conceal themselves behind a hijâb,43to remain in seclusion (hajr) and not to expose themselves to male company. This ruling is based on Quranic verses (24 : 30, 31) and a Prophetic hadîth though the word hijâb is not mentioned there explicitly. The sanction that he prescribed for such offenses was one hundred lashes which is tantamount to the sanction imposed on a fornicatress who is not muhsana, that is, a female who has never been party to a consummated marriage. The sanction is ta 'zîr (discretionary punishment) rather than hadd (Quranic punisment). Women were forbidden by the Mahdi to go to the market and main roads.44

  • 45  Abû Salîm, al-Âthâr al-kâmila, vol. 3 (1991), 109 [64] ; Schacht, An Introduction to Islamic Law, (...)

32The Mahdi prohibited strangers from greeting a woman and imposed a variety of sanctions : Shaking a woman's hand — a hundred lashes ; embracing or closely associating with a woman — fifty lashes (for both parties) as well as two months of consecutive fasting or, alternatively, the manumission of a slave. The three last mentioned acts are usually performed as a religious expiation (kaffârd).45

  • 46  Abû Salîm, al-Âthâr al-kâmila, vol. 3 (1991), 110, 112 [65, 67] ; Holt, The Mahdist State, 132.

33In a fatwâ given to Ahmad 'All, the qâdî al-islâm, at his request, the Mahdi ruled, on the basis of the Quran (4 :1) and the sunna, that women were prohibited from imitating masculine manners (mutarajjila, tashabbuh bi'l-rijâl). The sanction prescribed by him for this offense was discretionary (ta'zîr). A repeated violation of this prohibition incurred execution, probably on grounds of unchastity. However, the Mahdi allowed women to assume masculine manners as a device in engaging war against the enemy.46

Satisfaction of the Mahdi's personal needs

  • 47 For full details and annotated translation of a fatwâ, see Layish, « The Legal Methodology of the M (...)

34Beside innovations introduced in law with a view towards serving political and social goals, the Mahdi was also guided by personal needs that could not be satisfed within orthodox sharî'a. Thus, he reserved for himself the option to maintain concurrently more than four wives and reinstated his triply-divorced wife without having recourse to intermediate marriage as required by the sharî'a. Forthese purposes, he sought support — by means of direct inspiration from the Prophet Muhammad –in precedents established by the Prophet. However, this option was not available to others. Thus, in one case, a man restored his triply-divoced wife without resorting to intermediate marriage ; moreover, he claimed to have received personal permission to this end from the Mahdi. The Mahdi denied this allegation and ruled that the man had committed an offense entailing hadd punishment by which unchastity was implied.47

Conclusion

35The Mahdi s main concern was to secure independence from Turco-Egyptian rule with a view to establishing a theocracy bound by his version of the sharî'a. The application of his legal methodology and his adherence to the literal external (zâhir) meaning of the textual sources of the Quran and the sunna enabled him to legislate without any restriction and introduce innovations, some of which were far-reaching deviations from orthodox sharî'a.

  • 48  On the charisma of the Mahdi as an instrument for introducting reforms, see Ido Shahar, « The Suda (...)

36As a charismatic leader48 and religious-legal authority, the Mahdi's legal opinions, circulars, proclamations, orders, decisions, warnings, etc. served as governmental instruments to accommodate the legal norm to his political, economic, social and personal needs. Similarly, the policy of takfîr was used as a weapon against the Turks, the Egyptians and Sudanese individuals who did not submit themselves to the Mahdiyya. By the same token, the aggravation of Islamic criminal law was intented to deter potential rivals and offenders of public order.

  • 49  Abû Salîm, al-Âthâr al-kâmila, vol. 5 (1992), 367 [23]. Cf. A. Layish, « The Qâdî's Role in the Is (...)
  • 50  Cf. Holt, The Mahdist State, 130-31.

37The Mahdi made a special effort to establish himself as a custodian on public morality with a view towards maintaining strict uncompromising puritanism with special attention to women's chastity. Similarly, he was anxious to « abolish innovative (i.e., non-normative) and reprehensible customs » (izâlat al-bida' wa l-munkarâi) incompatible with the shari'a and social order with a view towards bringing tribal society within the orbit of normative Islam.49 In addition to religious ethical motivation, this policy seems to have been guided also by the desire to prevent the disintegration of Sudanese society, especially the tribes, the backbone of the Mahdi's political authority, under the impact of the revolution and the war against the Turco-Egyptians.50

  • 51  Holt, The Mahdist State, 131.

38On the face of it, the Mahdi's legal reforms pertaining to matrimonial matters do not seem to be compatible with the puritan image of the Mahdiyya. The reforms reveal a remarkable tendency to improve the status of women within the family, including their capacity to own and dispose of property, though it seems that this tendency was not totally divorced from political considerations. Holt suggests that the instructions pertaining to veiling and segregation were imposed on women as an attempt to increase their security. The Mahdi's prohibitions on excessive dower and extravagant wedding expenditure should also be assessed as measures intended to defend married women.51

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Notes

1 The introduction is an abbreviated version of my essay « The Legal Methodology of the Mahdi in the Sudan, 1881-1885 : Issues in Marriage and Divorce », Sudanic Africa, 8 (1997), 37-47. See this essay for full reference to archival and secondary sources.

2 The present study is in fact an attempt to reconstruct the Mahdi's legal methodology by an outside observer on the basis of legal documents issued by or attributed to the Mahdi. Cf. Ahmad Ibrâhîm Abu Shûk [Abu Shouk], Minhajiyyat al-tashrî' al-mahdiwî bayna al-Zâhir wa l-bâtin, a paper submitted to the conference on sufi studies held at the University of Khartoum on October 28, 1995. I am indebted to Dr. Abu Shouk for allowing me to read the typescript.

3 See Muhammad Ibrâhîm Abû Salîm (ed.), al-Athâr al-kâmila li'l-imâm al-mahdî, vol. 4 (1992), 205 [35] (numbers in square brackets indicate page numbers in A. Layish, The Mahdî'sLegal Methodology and Its Application in the Sudan. A Selection from the Mahdî's Documents, The Hebrew University of Jerusalem (Jerusalem : Academon, 1996) ; vol. 3 (1991), 110-11 [65-66]. Cf. P. M. Holt, The Mahdist State in the Sudan, 1881-1898, 2nd ed. (Oxford, 1970), 131-32.

4 This is a random sample. Over the last few years, I have been able to consult only a small portion (around 200 documents) of more than 1,000 proclamations (manshûrât), rulings (ahkâm), warnings (indhârât), visions (hadrât), etc. issued by the Mahdi from the time of his manifestation (zuhûr) in 1881 until his death in 1885. A great deal of these documents pertains to religious legal issues par excellence, including legal opinions (fàtwâs) and judicial decisions. The findings below –based on 50 documents included in the selection mentioned in note 4 above –are intended to give the reader, by means of several illustrations, a tangible notion of these documents. The hypothesis presented in this pilot is therefore tentative pending revision in the course of research.

5  Abû Salîm, al-Athâr al-kâmila, vol. 1 (1990), 338 [29] ; vol. 5 (1992), 368 [24] ; 4l6ff. [73ff.], 457 [7]. Cf. Holt, The Mahdist State, 59 ; J. O. Hunwick, « Takfir, » El2, vol. X (1998), 122.

6  Abû Salîm, al-Âthâr al-kâmila, vol. 1 (1990), 375-76 [51-52]. Cf. Holt, The Mahdist, 129.

7  Abu Salîm, al-Âthâr al-kâmila, vol. 2 (1991), 45-46 [42-43] ; Holt, The Mahdist State, 64, 129 ; R. Peters, « Islamic Family Law. A Survey for the Course 'Introduction to Islamic Law' », University of Amsterdam, Department of Arabic Studies (Amsterdam, 1996), § 0.1.5.1.6.2, 0.1.5.3  ; Muhammad Mustafâ ; Shalbî, Ahkâm al-usrafî l-islâm, Dirâsa muqârana baynafiqh al-madhâhib al-sunniyya wa l-madhhab al-ja'farî wa l-qânûn (Beirut, 1393/1973), 587-88, 627ff.

8  Abû Salîm, al-Âthâr al-kâmila, vol. 1 (1990), 439 [83] and vol. 3 (1991), 163 [86], respectively.

9  Abû Salîm, al-Âthâr al-kâmila, vol. 3 (1991), 152-53 [53-54].

10  Abû Salîm, al-Âthâr al-kâmila, vol. 4 (1992), 192-93 [55-56]. For the text of the legal opinion and its annotated translation, see Layish, « The Legal Methodology of the Mahdi : Issues in Marriage and Divorce », 47-52, 56-58.

11  Abu Salîm, al-Âthâr al-kâmila, vol. 2 (1991) [82]. Cf. Holt, The Mahdist State, 74-76. .

12 F. Lokkegaard, « Fay' », EP, vol. 2 (1991), 869ii ; Cl. Cahen, « Bayt am-Mâl », El2, vol. 1 (1986), H444i.

13 Abû Salîm, al-Âthâr al-kâmila, vol. 2 (1991), 221-22 [81-82]. Cf. Holt, The Mahdist State, 16, 125-26 ; The Korân, trans. G. Sale (London, n.d.), 172 n. 2.

14  Abû Salîm, al-Âthâr al-kâmila, vol. 3 (1991), 318 [69] ; Peters, « Islamic Criminal Law : A Survey for the Course 'Introduction to Islamic Law,' » University of Amsterdam, Department of Arabic Studies (Amsterdam, 1996), § 0.1.2.6. Cf. Holt, The Mahdist State, 4-5.

15 See above, note 6.

16 Holt, The Mahdist State, 56.

17  Abû Salîm, al-Âthâr al-kâmila, vol. 1 (1990), 300 ans n. 2 [80]. The Maliki doctrine does not recognize the category ofshibh 'amd, quasi-intent ; it has been absorbed in intentional homicide. It is interesting to note in this connection that the Maliki school has introduced a unique category which is a combination of murder and robbery under aggravated circumstances (qatl ghîla) which cannot be forgiven ; hence, the only option left is retribution. Peters, « Islamic Criminal Law, » § 0.1.3 See below, Public order and morality.

18  Abû Salîm, al-Âthâr al-kâmila, vol. 1 (1990), 443 [45] ; J. Chelhod, « Kaffâra », El2, vol. 4 (1997), 406-07 ; J. Schacht, An Introduction to Islamic Law (Oxford, 1964), 185. See below, 230.

19 Peters, « Islamic Family Law », § 0.1.3.2 ; Anderson, Islamic Law in Africa, 369.

20  Abû Salîm, al-Âthâr al-kâmila, vol. 3 (1991), 227-28 [46]. Cf. Holt, The Mahdist State, 98-99.

21  Abû Salîm, al-Âthâr al-kâmila, vol. 5 (1992), 457ff. [7ff.].

22  Abû Salîm, al-Âthâr al-kâmila, vol. 1 (1990), 335 [26], 337 [28]. Cf. Holt, The Mahdist State, 107, 113, 120 ; Holt, « al-Mahdiyya, » El2, vol. 5 (1986), 1249i.

23  Abû Salîm, al-Âthâr al-kâmila, vol. I (1990), 417 [36] and vol. 4 (1992), 473 [61], respectively, Peters, « Islamic Family Law », § 0.1.2.1 ; A. Layish and R. Shaham, « Nikâh, » El2, vol. 8(1995)29ii.

24  Abû Salîm, al-Âthâr al-kâmila, vol. 5 (1992), 18 [40] ; Peters, Islamic Family Law, §0.1.2.1, 0.1.2.2.1.

25 The Austrian (Maria Theresa) dollars were known by the Turkish-Arabic name of riyâl qushlî. See Holt, The Mahdist State, 257, n. 2.

26 Chelhod, « Kaffâra », 406-07 ; Schacht, An Introduction to Islamic Law, 185.

27 Abû Salîm, al-Âthâr al-kâmila, vol. 1 (1990), 432 [44] ; Peters, « Islamic Family Law », § 0.1.3.2.2. See above, 228-29.

28  Abû Salîm, al-Âthâr al-kâmila, vol. 3 (1991), 33-35 [37-39], 110-11 [65-66] ; A.J. Wensinck, Concordance et Indices de la Tradition Musulmane, vols. 1-2 (Leiden, 1988)452-53 ; Shalabî, Ahkâm al-usra fi l-islâm. 178-79, 182 ; Layish, « The Legal Methodology of the Mahdi in the Sudan », 40 ; Peters, « Islamic Family Law », § 0.1.2.2.3.

29  Abû Salîm, al-Âthâr al-kâmila, vol. 5 (1992), 415 [50] ; Peters, « Islamic Family Law », §0.1.3.3.

30  Abû Salîm, al-Âthâr al-kâmila, vol. 5 (1992), 422 [78] ; Layish and Shaham, « Nikâh », 31-32.

31  Manshûrât al-Imâm al-Mahdi, repr. (Khartoum, 1963-64), vol. 3 : al-Ahkâm wa'1-âdâb, 11-12 and Muhammad Ibrâhîm Abû Salîm (ed.), Manshûrât al-Mahdiyya (Beirut, 1969), 200 ; Peters, « Islamic Family Law », § 0.1.5.1.4 ; A. Layish, Divorce in the Libyan Family (New York and Jerusalem, 1991), 31,, 100, 107-08 ; idem, « Talâk », El2, vol. 10 (1998), 155.

32  Abû Salîm, al-Âthàr al-kâmila, vol. 3 (1991), 119 [31] ; Peters, « Islamic Family Law », § 0.1.5.2. For defition of khul'see above, 225. Cf. D. S. Powers, « Immoral Conduct and the Problem of Judicial Legitimacy : The Case of al-Haskûrî the Mocking Jurist », a paper submitted to a workshop on Family and Social Order held at Ben-Gurion University of the Negev, spring 1998. See there [p. 7, n. 23] the quotation in Ahmad b. Yahyâ al-Wansharîsî, al-Mi'yâr al-mu'rab wa jâmi'al-mughrib 'an fatâwâ 'ulamâ Ifrtqiyya wa l-Andalus wa l-Maghrib, éd. M. Hâjjî, 13 vols, (Rabat, 1981-83), vol. 4, 494, III. 1-4. Chafik Chehata, « Faskh », El2, vol. 2 (1991), 836. On modern reforms in Arab countries, including the Sudan, intented to mitigate the legal consequences of divorce, see Layish, « Talâk », 156ii.

33  Abû Salîm, al-Âthâr al-kâmila, vol. 5 (1992), 415 [50] ; Shalabî, 'Ahkâm al-usrafi l-islâm, 50-54 ; Abû 'Abd Allâh Muhammad b. Ahmad Illaysh, Fath al-'Alî al-mâlik fi l-fatwâ 'alâ madh-hab al-imâm Mâlik, 2 vols. (Cairo : Dâr al-Fikr, [n.d., vol. I, 425 (I owe this reference to Ruud Peters) ; Peters, « Islamic Family Law », § 0.1.1.2. Cf. A. Layish, « Sharî'a and Tribal Custom in Libya : Was Tajdîda Married to Two Husbands ? », Archiv Orientdlni, vol. 63 (1995), 488-503.

34  Abû Salîm, al-Âthâr al-kâmila, vol. 3 (1991), 110, 112 [65,67] ; Holt, The Mahdist State, 132 ; Shalabî, Ahkâm al-usra fi l-islâm, 633ff. Cf. Wensinck, Concordance et Indices de la Tradition Musulmane, vol. I-II, 211.

35  Abû Salîm, al-Âthâr al-kâmila, vol. 4 (1992), 473 [61] ; N. J. Coulson, Succession in the Muslim Family (Cambridge, 1971), 41, 49-51 ; D. S. Powers, Studies in Qur'an and Hadïth (Berkeley and Los Angeles, 1986), 195.

36  Abû Salîm, al-Athâral-kâmila, vol. 3 (1991), 129 [70] ; Holt, The Mahdist State, 79-80 ; W. Heffening, « Sarika », El2, vol. 8 (1995), 62-63 ; Peters, "Islamic Criminal Law", § 0.1.2.1 ; Anderson, Islamic Law in Africa, 374.

37  Abû Salîm, al-Âthâr al-kâmila, vol. 5 (1992), 418-19 [74-75].

38  Abû Salîm, al-Athâr al-kâmila, vol. 3 (1991), 112 [72]; Peters, « Islamic Criminal Law », § 0.1.1.1, 0.1.3.2.3, 0.1.3.3.1; Anderson, Islamic Law in Africa, 358-59.

39  Abû Salîm, al-Athâr al-kâmila, vol. 2 (1991), 264 [63]. Cf. Cl. Cahen and M. Talbi, « Hisba », El2, vol. 3 (1986), 485-89.

40  Abû Salîm, al-Athâr al-kâmila, vol. 5 (1992), 338 [71] ; Holt, The Mahdist State, 130 ; Peters, « Islamic Criminal Law », §0.1.2.5 ; Anderson, Islamic Law in Africa, 375.

41  Abû Salîm, al-Âthâr al-kâmila, vol. 4 (1992), 109 [88].

42  Abû Salîm, al-Athâr al-kâmila, vol. 4 (1992), 109 [88]. For details on these games, see E. Lane, The Manners and Customs of the Modem Egyptians, Everyman's Library, No. 315 (London and New York, 1966), 350, 351, 353 ; al-Munjid fi l-lugha wa l-i'lâm, 22nd ed. (Beirut, 1986) 834iii.

43 For the meaning of this word, see E. W. Lane, Arabic-English Lexicon, revised format, The Islamic Texts Society (Cambridge, 1984), vol. 1, 516i.

44  Abû Salîm, al-Athâr al-kâmila, vol. 2 (1991), 263-64 [62-63]. Cf. Holt, The Mahdist State, 130.

45  Abû Salîm, al-Âthâr al-kâmila, vol. 3 (1991), 109 [64] ; Schacht, An Introduction to Islamic Law, glossary  :kaffâra.

46  Abû Salîm, al-Âthâr al-kâmila, vol. 3 (1991), 110, 112 [65, 67] ; Holt, The Mahdist State, 132.

47 For full details and annotated translation of a fatwâ, see Layish, « The Legal Methodology of the Mahdi », 47-65  ; Abû Salîm, al-Âthâr al-kâmila, vol. 4 (1992), 290 [60].

48  On the charisma of the Mahdi as an instrument for introducting reforms, see Ido Shahar, « The Sudanic Mahdi as a Charismatic Personality : Analysis of a Legal Opinion issued by the Mahdi in Light of Sociological Theory » (in Hebrew), unpublished seminar paper, August 31, 1997, The Hebrew University of Jerusalem, 1998.

49  Abû Salîm, al-Âthâr al-kâmila, vol. 5 (1992), 367 [23]. Cf. A. Layish, « The Qâdî's Role in the Islamization of Sedentary Tribal Society » in Public Sphere in Muslim Societies, éd. M. Hoexter, S.N. Eisenstadt and N. Leutzion. SUNYseries in Near Eastern Studies (forthcoming).

50  Cf. Holt, The Mahdist State, 130-31.

51  Holt, The Mahdist State, 131.

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Référence électronique

Aharon Layish, « The Mahdi's Legal Methodology as a Mechanism for Adapting the Sharî'a in the Sudan to Political and Social Purposes », Revue des mondes musulmans et de la Méditerranée [En ligne], 91-94 | juillet 2000, mis en ligne le 12 mai 2009, consulté le 24 mars 2017. URL : http://remmm.revues.org/257

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Aharon Layish

The Hebrew University of Jerusalem.

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