By Janina Safran
The question arose in a recent round table discussion and is challenging to answer for three central reasons.[1] First are the usual problems of little textual evidence: The oldest surviving textual evidence produced in al-Andalus dates to the third/ninth century, and so we must base our understanding of the preceding two centuries on the memory of later texts and contextual inferences. Second is geographical bias: Most legal and biographical texts produced in al-Andalus in the third/ninth and fourth/tenth centuries were written in Cordoba and are thus Cordoba-centric. Third is a doctrinal legal definitional problem: The Western Umayyad regime is associated with adherence to and support of the Mālikī madhhab (school of law), but the madhhab was a work in progress over the period of Umayyad rule (138–403/756–1013); indeed, the texts under discussion were intrinsic to its formative development.
In this series of essays, I outline what a selection of the Andalusī sources of the third/ninth and fourth/tenth centuries suggest about the interpretation and practice of Islamic law in al-Andalus in those two centuries. To do so, I make use of fifth/eleventh and sixth/twelfth-century Andalusī commentaries on those sources and Qayrawānī sources relevant to Andalusī jurists.[2] Each essay, based on current scholarship, addresses an aspect of legal interpretation in al-Andalus in historical context and draws attention to one or more related primary sources.
The first essay provides a preliminary discussion of the introduction of the opinions of the Medinan scholar and eponym of the Mālikī school of law, Mālik b. Ānas (d. 179/796), and those of his students as a source of law in al-Andalus. It also discusses the emergent authority in al-Andalus of the transmissions and opinions of Mālik’s student ʿAbd al-Raḥman Ibn al-Qāsim (d. 191/806). The featured text is Muḥammad al-ʿUtbī's (d. 254/868) Mustakhraja (Extractions), a collation of masāʾil (sg. mas’ala, the opinions Mālik and his students presented in the form of answers to questions).
The second essay further investigates the masāʾil as a foundation for Mālikī legal interpretation. It asks what it means to be a specialist in Mālikī masāʾil from the perspective of two fourth/tenth-century texts, Ibn Abī Zayd al-Qayrawānī’s (d. 386/996) compendium, al-Nawādir wa’l-ziyādāt (Rare Cases and Additions), and Ibn Ḥārith al-Khushanī's (d. 361/971) Uṣūl al-futyā (Foundations of Legal Opinion-Giving).
The third essay demonstrates how an eleventh-century Andalusī jurist, Abū al-Aṣbagh b. Sahl (d. 486/1093) commented on decisions and opinions of fourth/tenth-century Cordoban jurists in his al-Aḥkām al-kubrā (Major Collection of Legal Rulings). This essay draws on the masāʾil literature in ways that perhaps echo their use by the earlier jurists and affirming their salience in his own time.
Finally, the fourth essay centers on the efforts of the Cordoban jurist Ibn Rushd al-Jadd (d. 520/1126), (grandfather of the philosopher Ibn Rushd/Averroes [d. 595/1198]), to reform Mālikī legal interpretation. The essay shows how he analyzed Mālikī masāʾil drawing on his mastery of the sources and methods of uṣūl al-fiqh. The essay asks what these efforts suggest about the methods of the previous generations of Andalusī legal scholars.
Proto- Mālikīs and the Masāʾil in Third/Ninth-Century al-Andalus
Two institutional developments in the mid-third/ninth century provided a foundation for the eventual centralization of legal training, interpretation, and practice in Umayyad Cordoba: the establishment of a judiciary in Cordoba to serve the settled Muslim population (the title of the chief judge subsequently changed from qāḍī al-jund [military judge] to qāḍī al-jamāʿa – [community judge]) and the establishment of an advisory council (shūrā) to the judge composed of jurists selected by the Umayyad amir.[3]
What were the qualifications of the members of the shūrā? In the third/ninth century, Andalusī “proto-Mālikīs” traveled to the East where they studied with some of Mālik’s eminent students, especially ʿAbd al-Raḥman Ibn al-Qāsim (d. 191/806), ʿAbd Allāh Ibn Wahb (d. 197/812), and Ashhab b. ʿAbd al-Azīz (d. 204/820), primarily in Medina and Egypt.[4] The opinions these proto-Mālikīs recorded take the form of questions posed to the above scholars and their answers, that is, masāʾil, which included references to and discussions of Mālik’s legal opinions (aqwāl, sg. qawl).
Third/ninth-century Andalusīs also recorded the opinions of Mālik’s students as transmitted through intermediaries, notably Saḥnūn b. Saʿīd (d. 240 /854), compiler of al-Mudawwana (The Compilation), and Aṣbagh b. al-Faraj (d. 225/840). They memorized, studied, transmitted, taught, and applied the masāʾil as jurists. Muḥammad al-ʿUtbī's (d. 254/868) Mustakhraja, a compilation of oral transmissions of masāʾil, provided a written reference for jurists. Al-ʿUtbī heard these transmissions from three groups, among others: the Cordobans ʿĪsā b. Dīnār (d. 212/828), Yaḥyā Ibn Yaḥyā (d. 234/848), Muḥammad b. Khālid b. Martinīl (d. 220/835 or 224/838), and ʿAbd al-Mālik b. al-Ḥasan (d. 232/847); the Qayrawānīs Saḥnūn and Mūsā b. Muʿāwiya; and the Egyptian Aṣbagh b. al-Faraj. Although al-ʿUtbī did not exclusively record transmissions from Ibn al-Qāsim, his work helped affirm the Cordoban prioritization of the opinions and transmissions of Ibn al-Qāsim among Mālik’s students, a prioritization also evident in the Mudawwana.[5]
Fourth/tenth-century biographical narratives suggest Ibn Yaḥyā’s personal authority played a role in the Cordoban preference for the transmissions and opinions of Ibn al-Qāsim both generally and in matters of legitimate difference of opinion or interpretation among his peers.[6] This preference helps explain Ibn Yaḥyā’s apparent sidelining of ʿAbd al-Mālik Ibn Ḥabīb (d. 238/853), who did not transmit masāʾil from Ibn al-Qāsim, and came to Cordoba from Elvira at the Umayyad amīr’s (ruler’s) invitation to serve in the shūrā. Al-ʿUtbī did not record transmissions from Ibn Ḥabīb, and it is unclear whether the latter’s al-Wāḍiḥa (The Clear Exposition) had much authority in third/ninth-century Cordoba, although Ibn Ḥabīb had dozens of students and the text was subsequently widely cited by Ibn Abī Zayd al-Qayrawānī (d. 386 AH/996) in his substantial compilation of masāʾil, al-Nawādir wa’l-Ziyādāt.[7]
The narratives about Ibn Yaḥyā’s influence also suggest how the interpretation and practice of law in other Andalusī cities came to conform to the model of Cordoba only gradually. In 208/824–5, Amīr ʿAbd al-Raḥman II (d. 238/852), the Umayyad ruler, appointed a scholar from Seville as qāḍī of Cordoba. This jurist, Yaḥyā Ibn Muʿammar (d. after 218/833), had studied in the East, recording masāʾil from Mālik’s student Ashhab b. ʿAbd al-Azīz in Egypt. Presumably, he drew on this knowledge as a jurist in Seville; in Cordoba, however, he found that the rest of the shūrā favored the masāʾil of Ibn al-Qāsim. When the jurists disagreed over an opinion, Ibn Muʿammar wrote to Aṣbagh b. al-Faraj (d. 225/840), a student of Mālik’s student Ibn Wahb, in Egypt to ask his counsel. Amīr ʿAbd al-Raḥman II recruited Ibn Ḥabīb to the shūrā from Elvira to give support to Ibn Muʿammar, who had an antagonistic relationship with Ibn Yaḥyā.[8]
In her study of al-Mustakhraja, Ana Fernández-Félix finds that prior to al-ʿUtbī's time, Cordoba was not yet the center of learning that it would become later due, in part, to his work and the scholarship of his generation. She identifies 167 scholars contemporary with al-ʿUtbī in the biographical dictionaries of Ibn al-Faraḍī (d. 403/1013), Ibn Ḥārith al-Khushanī (d. 361/971), and Qāḍī ʿĪyāḍ (d. 544/1149). She also describes their geographical distribution: most were from Cordoba (77; 46 percent), followed by Zaragoza (16; 9.5 percent), Elvira (12; 7.1 percent), Toledo (10; 5.9 percent).[9] Only a third of those who traveled east for learning had Andalusī teachers, and only a third of the Cordoban scholars had Cordoban teachers.[10] These observations support the anecdotal evidence that Ibn Yaḥyā’s influence, and the Cordoban preference for Ibn al-Qāsim's transmissions and opinions, did not dominate legal interpretation throughout the peninsula in Yaḥyā’s lifetime or in the generation of his students.
Further supporting that conclusion is the transmission history of Mālik’s opinions. Although Ibn Yaḥyā transmitted Mālik’s Muwaṭṭā (The Well-Trodden Path) in Cordoba, for example, two Sevillans recorded and transmitted the Muwaṭṭā from the Egyptian Yaḥyā b. ʿAbd Allāh Ibn Bukayr (d. 231/845) rather than from Ibn Yaḥyā, whom they did not meet. By the fourth/tenth century, however, Cordoba became the most important locus of Mālikī learning in al-Andalus and the Maghrib.
Another significant factor in our understanding of the development of the Māliki madhhab in al-Andalus is the introduction of ḥadīth-centered perspectives on legal thought and argument, and the fact that its impact on legal thought in the third/ninth century was less significant than in fifth/eleventh and sixth/twelfth centuries. The introduction of early ḥadīth-centered legal methodology is identified in the biographical literature with Baqī b. Makhlad (d. 276/889). This includes the ordeal (miḥna) he experienced in Cordoba upon his return from two extensive sojourns in the East, where he reportedly studied with 284 scholars.[11] Baqī developed a distinctive perspective on the sources and methods of jurisprudence gained in part from studying with scholars beyond Mālikī circles, including Aḥmad Ibn Ḥanbal (d. 241/855) when the latter was being persecuted in Baghdad. His analytical perspective on ḥadīths, their transmissions, and variations, and his introduction to Cordoba of works such as Ibn Abī Shayba’s (d. 235/849) Muṣannaf fī al-aḥādīth wa’l-āthār (Categorical Collection of Hadiths and Transmitted Reports), and al-Shāfiʿī`’s (d. 204/820) Risāla (The Treatise) informed some of his contemporaries’ formal accusations of innovation and heresy.
Narratives of Baqī’s story oppose the ahl al-ra'y, that is, adherents of the masāʾil of Mālik and his students with the ahl al-ḥadīth, those who memorized and studied ḥadīth. (I caution that we read such narratives with the understanding that they assume a distinction between the many who collected and studied ḥadīth as an act of piety and a source of moral guidance, and the few like Baqī who inclined toward al-Shāfiʿī`’s legal methodology and whose interest in ḥadīth threatened current legal practice.) The controversy affirmed the centrality of the masāʾil to the developing madhhab and ḥadīth scholarship continued to be pursued in a way that did not undermine the authority of the mother texts. In the fourth/tenth century, scholars specialized in one or the other or both.[12] Later, in the fifth/eleventh and sixth/twelfth centuries, Mālikī jurists trained in uṣūl al-fiqh (jurisprudence) assimilated ḥadīth scholarship in their study and evaluation of Mālikī masāʾil and the differences of opinion recorded among them, as we will discuss in the final essay.[13]
With the prioritization of masāʾil as a legal source in the third/ninth century established, let’s take a look at a sample of al-ʿUtbī's Mustakhraja. Here I provide the first masʾala of al-Mustakhraja and a similar masʾala from al-Mudawwana in the opening chapter on ablution to illustrate the character of both texts and set the stage for the later discussion of Ibn Rushd’s commentary.
Al-Mustakhraja:
From the Book of the Qibla from Ibn al-Qāsim's audition (samāʿ) of Mālik. Saḥnūn said, “Ibn al-Qāsim told me, ‘I heard Mālik say, “I do not think that anyone should perform ablution with what remains (faḍl) of the ablution of the Christian. As for the remainder from what he has drunk (bi’suʾrih min al-shirāb), I think there is no objection.” [Saḥnūn said] “Ibn al-Qāsim said he [Mālik] disapproved of it more than once. Saḥnūn said, “If you are confident that he [the Christian] does not drink wine or eat pork, then there is no objection to performing ablutions with it, whether out of necessity or not.”[14]
Al-Mudawwana:
He [Ibn al-Qāsim] said, “Mālik said there is no objection to performing ablution with the suʾr or the faḍl of the menstruating woman or the ritually impure (junub) if there is no impurity (najas) on their hands. Mālik [also] said, ‘Do not perform ablution with the suʾr of the Christian or with what he puts his hand in.’” He [Ibn al-Qāsim] said, (based on Mālik’s statement that there is no objection to performing ablution with the faḍl of the junub after he washed, or drank), “that there is no objection to either bathing with it [the su’r and faḍl of the menstruating woman] or drinking it either; we know that the Messenger of God used to bathe with Aisha from one vessel. The water left over from the menstruating woman for us in this is in the same category as the left-over water of the ritually impure.” Ibn Wahb said, “Nāfiʿ said, from Ibn ʿUmar, that he used to perform ablutions with the suʾr of the camel, cow, sheep, mule, horse, menstruating woman, and junub.”[15]
The reader will notice in the quotation from al-Mustakhraja variations in the reporting of Mālik’s opinion about the performance of ablutions with water used by a Christian (disapproval and no objection, respectively) and the possibility of a distinction between faḍl and su’r and Saḥnūn’s opinion about the su’r. The Mudawwana reports Mālik’s injunction not to perform ablutions with “the suʾr of the Christian or with what he puts his hand in” but does not object to performing ablutions with “the suʾr or the faḍl of the menstruating woman or the ritually impure (junub) if there is no impurity (najas) on their hands.” Third/Ninth-century jurists had to contend with such varieties of opinions and transmissions. If one solution was to follow only Ibn al-Qāsim's transmissions and opinions, what would that be, in this example? The next essay features two fourth/tenth-century Mālikī jurists whose writings suggest jurists in their own time and earlier could use some guidance in making sense of and choosing among opinions.
Notes:
[1] “How to Adapt to the Conquering Colonizer? Differences and Similarities Between Early Islamic al-Andalus and North Africa,” RomanIslam Center, Universität Hamburg, January 27, 2026, https://www.romanislam.uni-hamburg.de/events-news/news/conquering-colonizer.html.
[2] Qayrawān, established as a garrison city in Ifrīqiyya (Tunisia), became a center of learning in the third/ninth century and an important stop for Andalusī scholars pursuing knowledge.
[3] On the shūrā see Manuela Marín, “Šūrā et ahl al-šūrā dans al-Andalus,” Studia Islamica 62 (1985): 15–51.
[4] Maribel Fierro, “Proto-Mālikis, Mālikis, and Reformed Mālikis in al-Andalus,” in The Islamic Schools of Law: Evolution, Devolution, and Progress, ed. P. Bearman, R. Peters, F. E. Vogel (Cambridge, 2005), 57–76.
[5] According to Qāḍī ʿIyāḍ, ʿUthmān b. Ayyūb b. Abī al-Ṣalt (d. 246/860 or 267/880) was the first to bring Saḥnūn's Mudawwana in al-Andalus. Originally from Fars, he studied with Saḥnūn in Qayrawān and Aṣbagh b. al-Faraj in Egypt; he was praised by his contemporaries in Cordoba, and a friend of Yaḥyā Ibn Yaḥyā; Qāḍī ʿIyāḍ, Tartīb al-madārik wa-taqrīb al-masālik li-maʿrifat aʿlām madhhab Mālik, ed. Muḥammad Sālam Hāshim (Dār al-Kutub al-ʿIlmiyya, 1998), 1:445.
[6] On Yaḥyā Ibn Yaḥyā see Maribel Fierro, “El alfaquí beréber Yaḥyā b. Yaḥyā, ‘el inteligente de al-Andalus,’” in M. L. Ávila and M. Marín (eds.), Estudios Onomástico-Biográficos de al-Andalus, vol. VIII (Biografías y género biográfico en el occidente islámico) (Granada/Madrid, Consejo Superior de Investigaciones Científicas, 1997), 269–344.
[7] Ibn Abī Zayd al-Qayrawānī, al-Nawādir wa’l-ziyādāt ʿalā mā fī al-Mudawwana min ghayrihā min al-ummahāt, ed. ʿAbd al-Fattāḥ Muḥammad al-Ḥalw (Beirut: Dār al-Gharb al-Islāmī), 1999.
[8] Muḥammad Ibn Ḥārith al-Khushanī, Quḍāt Qurṭuba (Historia de los jueces de Córdoba por Aljoxani), ed. and tr. Julián Ribera (Imprenta Iberica 1914), 79–85, 87–89; Spanish 98–105, 106–10.
[9] Ana Fernández-Félix, “Biografías de alfaquíes: la generación de al-‘Utbi,” Estudios onomástico-biográficos de al-Andalus VIII, ed. María Luisa Ávila, Manuela Marín )Madrid: Consejo Superior de Investigaciones Científicas, 1995), 146.
[10] Fernández-Félix, “Biografías de alfaquíes,” 152–53.
[11] See Manuela Marín, “Baqī ibn Majlad y la introducción del estudio del Ḥadīṯ en al-Andalus,” al-Qantara 1 (1980): 165–208.
[12] See Mohammad Fadel, “Authority in Ibn Abī Zayd al-Qayrawānī’s Kitāb al-nawādir wa-l-ziyādāt ʿalā mā fī-l Mudawwana min gharihā min al-ummahāt: The Chapter of Judgments (Kitāb al-aqḍiya),” in The Heritage of Arabo-Islamic Learning, ed. Maurice Pomerantz and Aram Sahin (Brill, 2016), 207–26.
[13] Maribel Fierro, “Proto-Mālikis,” 70–76.
[14] Ibn Rushd al-Jadd, al-Bayan wa’l-taḥṣīl, ed. Muḥammad Hajjī (Beirut: Dar al-Gharb al-Islami, 1984–87), 1:33.
[15] Saḥnūn b. Saʿīd, al-Mudawwana al-kubra (Beirut: Dār Ṣadir, 1997), 1:14.
Suggested Bluebook citation: Janina Safran, How did jurists interpret and practice law in al-Andalus in the Umayyad period?, Islamic Law Blog (June 9, 2026), https://islamiclaw.blog/2026/07/09/how-did-jurists-interpret-and-practice-law-in-al-andalus-in-the-umayyad-period/.
Suggested Chicago citation: Janina Safran, “How did jurists interpret and practice law in al-Andalus in the Umayyad period?,” Islamic Law Blog, June 9, 2026, https://islamiclaw.blog/2026/07/09/how-did-jurists-interpret-and-practice-law-in-al-andalus-in-the-umayyad-period/.
