Learning from the document: Part 2

By islamiclawblog on October 29, 2024

In this third and final essay, I provide a commentary on one of the Persian fatwā papers from the NLI Afghan Genizah collection (for the text, translation and image of this document see the previous essay). I will first discuss the structure and formulae of the fatwā and then examine its content.

The structure and formulae

The text of the NLI fatwā paper (Ms. Heb.8333.153=4) consists of eighteen lines, thirteen appear on the recto (r. lines 1-13) and five on the verso (v. lines 6-10) of the document. Leaving aside the accounts and list that appear on the verso, the complete fatwā text is organized as follows:

1: Pious invocation
2-5: Question addressed to the jurist
6-7: Reply
8-11: Additional question
12-13: Reply
6-8: Additional question
9-10: Reply

The text of the fatwā opens with the pious invocation in Arabic "Praise is due to its Owner, i.e., God" (al-ḥamd li-walīhi) (r. 1). The second NLI Persian fatwā paper uses the basmala. The use of the basmala is also attested in one of the Ghūr Persian fatwā papers (doc. #20) as are the formulas "Glory belongs to God, the Exalted" (al-ʿizza li-llāh taʿālā) (doc. #23) and "God's mercy be upon you" (raḥimakumullāh) (doc. #27). It is not clear, however, if such pious formulae at the beginning of the fatwā were used by jurists as their personal authenticating signature. The use of Arabic pious formulae by Islamic judges (qāḍīs) as an authenticating signature termed tawqīʿ is common in twelfth-century judgements issued in the Yarkand oasis.[1]

After the pious invocation, the text of the fatwā begins directly with an interrogative clause addressed to a jurist: "what does the judge, the most glorious leader . . . say concerning" (chi mī-farmāyad qāḍī-yi imām-i ajall . . . andar ān-chi) (r. 2-3). The second NLI fatwā paper (Ms. Heb.8333.193=4) uses chi gūyad instead of the equivalent chi mī-farmāyad. It retains, however, the honorifics qāḍī-yi imām-i ajall.[2] The term qāḍī in both cases was probably used in a figurative rather than literal sense. The structure of this opening Persian interrogative clause is identical to medieval Arabic fatwās which begin with the interrogative clause "what does so and so say concerning (mā yaqūlu . . . fī).[3] In the Ghūr Persian fatwā papers, it is common to find the interrogative clause addressed to the community of scholars in plural rather than to a single individual as follows: "what do the scholars of religion, may God be pleased with them all, say concerning what is asked about" (chi gūyand aʾimma-yi dīn riḍwānullāh ʿalayhim ajmaʿīn dar ānchi mī-pursand ki) (docs. #20, #23).[4]

Immediately after the interrogative clause, the facts of the case are presented hypothetically in the NLI fatwā paper without mentioning specific names or places, as exemplified by the invocation of an abstract "husband" (mardī). The presentation of the facts of the case concludes with a negative interrogative clause "...or not?" (yā nah). The Ghūr fatwā papers also use the dialectal variant, nay instead of nah (doc. #24). Ending the text of the question segment of the fatwā with a negative interrogative clause has a long history in Persian fatwā writing and can be seen for example in nineteenth century Persian fatwās from Bukhara.[5] I have been unable to find this negative interrogative clause in medieval Arabic fatwā exemplars. The negative interrogative clause used in the NLI fatwā paper is followed directly by another clause which suggests the jurist will be rewarded by God if he answers the question: "explain and you will be rewarded if God, the Exalted, wills" (bayān farmāyad thawāb buwad inshāʾ Allāh [taʿālā]). This reward clause is also known from a twelfth century Arabic fatwā exemplar from Damascus, which ends the text of the question with ". . . and you will be rewarded if God, the Exalted, wills" (muthāban maʾjūran inshāʾ Allāh taʿālā.) The reward clause also appears in the Ghūr fatwā papers, sometimes abbreviated as "explain" (bayān farmāyand, doc. #22) or with a request for a detailed reply from the jurist: "provide a detailed explanation, you will be rewarded (by God)" (tafṣīl bayān kunand thawāb buwad) (doc. #23).

The reply or jawāb of the jurist appears directly below the reward clause. In the NLI fatwā paper, we have an affirmative response while in the Ghūr fatwā papers the replies are all negative followed by the clause "and God knows best" (wa-l-lāhu aʿlam) (Ghūr doc. #22) Sometimes a more detailed response giving some indication of the legal reasoning behind the reply is provided which begins with the subordinating conjunction "because" (chūn) (Ghūr docs. #20, #23). In the case of our NLI fatwā paper, no reason is provided in the reply. The reply is recorded close to the left-hand margin of the sheet. This left-hand margin position is retained for all replies in the NLI fatwā paper and can also be seen for the replies in the Ghūr fatwā papers (Ghūr doc.#20). The left-hand margin appears to have been spatially significant not only to record the reply of jurists, but as I have demonstrated in an earlier study it was also where the qāḍī recorded his personal signature (tawqīʿ) and his "so and so judge says" (yaqūlu) remark, both of which had an authenticating function, in judgements.[6] As in the case of the qāḍī's tawqīʿ and his yaqūlu remark, the jurist's reply was written in his own hand. In the NLI fatwā paper, the handwriting of the reply and of the text of the question are in two different hands. This is clearly visible if one compares, for instance, the way the word "three" (si) is written with an open final letter hāʾ by the scribe of the question and with a closed hāʾ by the jurist in his reply.

The recording of the reply by the jurist in his own hand is also confirmed by several Ghūr fatwā papers in which the jurists mention they wrote their reply: ʿUmar b. Muḥammad (katabahu ʿUmar b. Muḥammad),[7] Muḥammad b. Maḥmūd (katabahu Muḥammad b. Maḥmūd)[8] and Muḥammad b. Abū Bakr (katabahu Muḥammad b. Abū Bakr).[9] It is unlikely that these are the names of the scribes who composed the question, as they are recorded directly below the reply of the jurist. This reply, moreover, forms its own indented text block which is closer to the left-hand margin of the document. The jurist also wrote and signed his reply in his own handwriting on the left margin of twelfth-century Arabic fatwā examples from Damascus.[10] Unlike our Persian examples, however, the reply in the twelfth century Damascene fatwās begin with the Arabic clause "the reply and all success is from God" (al-jawāb wa-bi l-lāh al-tawfīq), which, in turn, is different from the practice of the Arabic fatwā, possibly from Egypt, examined by Werner Diem, whose reply begins with the Arabic verb "he says" (qāla) followed by the name of the jurist Abū l-Qāsim.[11]

The segment that follows the reply of the jurist in the NLI fatwā paper introduces a related question under the Arabic heading, "and what is his opinion" (wa-mā qawlihi), which introduces the Persian text that follows, "concerning such and such" (andar ānchi). It appears to have been customary to extend the letter lām of the word qawlihi. This method of introducing an additional question with an Arabic clause heading is not reflected in the Ghūr Persian fatwā papers which use a purely Persian construction to introduce additional questions: "they ask in addition that" (nīz mī-pursand kay) (doc. #20). In medieval Arabic fatwā writing supplementary questions are introduced with the Arabic clause "and what is the ruling if" (wa-mā l-ḥukm idhā).[12] The supplementary question, however, is embedded within the original question and is not separated into a new text block as in the NLI Persian fatwā example.

The content

After these remarks on the structure and formulae of the NLI fatwā paper, it is now possible to examine its content. The question concerns the problem of the validity of divorce (ṭalāq) of a man who divorces his wife thrice in a single pronouncement or utterance (lafẓ). Muslim jurists agreed that triple ṭalāq, whether it was pronounced in the form of one sentence "you are divorced thrice" (anti ṭāliq thalāthan) or as three sentences in one session (majlis) "you are divorced, you are divorced, you are divorced" (anti ṭāliq, anti ṭāliq, anti ṭāliq), was not permissible. It was an innovation (bidʿa), the performance of which was prohibited. However, if this type of divorce was performed, most Muslim jurists of the belonging to the four Sunnī school considered it valid and binding; they considered a triple ṭalāq pronouncement in one session as having the legal effect of a third repudiation which was considered irrevocable.[13] The husband as a result was forbidden to remarry his former wife unless she first married another man and consummated the marriage, a process known as taḥlīl.[14]

In contrast to this majority Sunnī opinion, the Imāmī Shīʿīs, Ẓāhirites (except Ibn Ḥazm, d. 1064) and the Ḥanbalī scholars, Ibn Taymiyya (d. 1323) and his student Ibn al-Qayyim (d. 1350), held that triple ṭalāq pronounced in a single session only amounted to a single repudiation and was therefore revocable.[15] The jurist that wrote the reply to the question in the NLI fatwā paper clearly held the majority Sunnī opinion, as his reply confirms that the triple divorce in one pronouncement (lafẓ) made by the husband had the effect of a triple repudiation (si ṭalāq shawad, r. 12-13) and was therefore irrevocable.

The first supplementary question in the NLI fatwā paper qualifies the husband's pronouncement as ambiguous since he referred to his wife as his mother and sister. The jurist nevertheless confirms that the pronouncement had the effect of a triple repudiation. From this second reply it is likely that the jurist belonged to either the Shāfiʿī, Ḥanafī, or Ḥanbalī school of law, as these schools held that in the case of ambiguous expressions, circumlocutions, or gestures, the intention of the speaker is the only deciding factor for bringing the divorce into operation.[16] Due to lacunae in the text, it is not possible to make out the content of the second and final supplementary question which refers to the husband as a commander or governor (amīr). This might suggest that the husband involved in this divorce case was an amīr. Given the way the questions are framed, it is possible the questioner was a woman who requested this fatwā paper from a jurist. She could thus confirm that an irrevocable divorce had taken place and thus initiate, during her waiting period (ʿidda), the payment by her socio-economically powerful former husband of her bridal gift and lodging, and, if she was pregnant, maintenance.[17]

In conclusion, the NLI Persian fatwā paper, I have examined, is the only known example of a medieval Persian fatwā dealing with divorce.[18] It is likely that this fatwā paper was produced in Bāmiyān and its region like many of the other documents in the NLI Afghan Genizah collection. Along with the other surviving Khurāsān Persian fatwā papers from Fīrūzkūh, it provides us with a rare glimpse of the day-to-day activities of a jurist and the concerns of his/her questioner in twelfth-thirteenth century medieval Islamic Khurāsān before the Mongol conquest. While medieval Persian fatwā writing was directly derived from the practice of earlier Arabic exemplars, innovations such as the concluding negative interrogative clause of the question segment were nevertheless introduced in the Islamic east. In the case of medieval Khurāsān, it is possible to detect at least two distinct local recording practices, one centered in Bāmiyān and the other in Fīrūzkūh. The former, exemplified by the NLI fatwā paper, combines Arabic and Persian freely: new supplementary questions which appear under an Arabic heading, for example, are followed directly by a clause Persian. In contrast, the Ghūr fatwā papers from Fīrūzkūh, use far less Arabic and are almost entirely in Persian. The reason for these local distinctions in recording practice is unclear. It might suggest, at least, as far as fatwā writing was concerned, there was no official format for such documents during the period of Ghurid and Khwarazmian rule in the twelfth to early thirteenth centuries.

Notes:

*I am indebted to Olly Akkerman and Anna Steffen for their remarks on the codicology of the document and to ʿEmad al-Din Sheikh al-Hokamaee for rescuing me from certain errors of decipherment, wa l-llāhu aʿlam.

[1] See Monika Gronke, "The Arabic Yārkand documents," BSOAS 49/3, 479–87 (edition), plates I-II (facsimile); 487–92 (edition), plates III-IV (facsimile). In Syria and Egypt, the qāḍī's tawqīʿ was termed ʿalāma, see the ʿalāma, al-ḥamdu li-llāhi rabbi l-ʿālamīn, used by the fourteenth century Mamluk Shāfiʿī qāḍī Sharaf al-Dīn ʿIsā, for example, in Ḥaram document #39, facsimile in Christian Müller, Der Kadi und seine Zeugen. Studie der mamlukischen Ḥaram-Dokumente aus Jerusalem (Wiesbaden: Harrassowitz Verlag, 2013), 634.

[2] Ms. Heb.8333.193=4, this Persian fatwā which has not yet been edited concerns proving ownership of sold land in a sale where the seller has given the buyer a sale deed (chak-i bayʿ).

[3] See two Arabic fatwās from Damascus dated before 553/1158 (doc. #26) and before 572/1176 (doc. #34) from the Qubbat al-Khazna collection of the Umayyad Mosque in Jean-Michel Mouton and Dominique Sourdel, eds., Mariage et séparation à Damas au moyen âge: Un corpus de 62 documents juridiques inédits entre 337/948 et 698/1299 (Paris: l'Académie des inscriptions et belles-lettres, 2013), 160–62; facsimile 294 ; 187–90 ; facsimile 304.

[4] Ghūr doc. #23 has the variant: chi farmāyand ʿulamā-yi ahl-i islām riḍwānullāh ʿalayhim ajmaʿīn dar ān-chi mī-pursand ki (what do the scholars of islam, may God be pleased with them all, say concerning what is asked about..).

[5] See Zahir Bhalloo and Sadiq Ishkawari, "Writing and Preserving Islamic Legal Documents: Bukharan Fatwas in a Central Asian Jung in Qum," in Social Codicoloy: The Multiple Lives of Texts in Muslim Societies, Leiden Studies in Islam and Society, Volume 21, ed. Olly Akkerman (Leiden: Brill, 2025) (forthcoming).

[6] See Zahir Bhalloo, "A pre-Mongol New Persian legal document from Islamic Khurāsān dated AH 608/1212 CE," Bulletin of the School of Oriental and African Studies 86, no. 3 (2023): 465–83.

[7] Ghūr docs. #21, #22. It is likely that some of the other Ghūr fatwā fragments can be attributed to this jurist who uses a characteristic nay in his replies, with the letter yāʾ extended backwards from left to right instead of forwards, compare with Ghūr docs. #25 and #26.

[8] Ghūr doc. #20

[9] Ghūr docs. #21 and #22.

[10] Mouton and Sourdel, eds., Mariage et séparation, 161, 187.

[11] Werner Diem, Ein arabisches Rechtsgutachten zum Eherecht aus dem 11.–12. Jahrhundert aus der Heidelberger Papyrussammlung (Schriften der Max Freiherr von Oppenheim Stiftung 17) (Wiesbaden: Harrassowitz, 2007), 43, line 11.

[12] Ibid., 43, line 9.

[13] For a detailed discussion see the study by Muhammad Munir, "Triple Ṭalāq in One Session: An Analysis of the Opinions of Classical, Medieval, and Modern Muslim Jurists under Islamic Law," Arab Quarterly 27 (2013): 29–49, and the Saudi study he cites: Baḥth Haiʾat Kibār al-ʿUlāmā, "Ḥukm al-ṭalāq al-thalātha bi-lafẓin wāḥidin fī ḍawʾ al-kitāb wa-l-sunnāh," Majalla al-Buḥūth al-Islāmiyya 1, no.3 (1397 AH [1977]):28–173.

[14] Joseph Schact, An Introduction to Islamic Law (Oxford: The Clarendon Press, 1965), 164. On taḥlīl according to the Imāmī Shīʿīs and four Sunnī schools of law, see for example: Muḥammad Jawād Mughniyya, Divorce according to the Five Schools of Islamic Law, vol. 6 (Tehran: Islamic Culture and Relations Organization, 1997).

[15] Munir, "Triple Ṭalāq in One Session."

[16] See Joseph Schacht, "Ṭalāḳ," in Encyclopeadia of Islam II, eds., P. Bearman et al. (Leiden: Brill, 1954–2008), 154. This contrasts with the Imāmī Shīʿīs who neglect ambiguous expressions, circumlocutions, or gestures, whatever the intention of the speaker.

[17] Ibid. The ʿiddah is a specified period that must elapse before a Muslim widow or divorcee may legitimately remarry, it depends on various factors, including, for example, if the woman was pregnant, if she was menstruating or had ceased menstruation.

[18] No Persian divorce deeds have come to light from the medieval period comparable to Arabic divorce deeds which record revocable or irrevocable divorces, see for example Mathieu Tillier and Naïm Vanthieghem, eds., Mariages et séparations en Égypte au Moyen Âge: Actes inédits sur papyrus, papier, parchemin et tissu (Archiv für Papyrusforschung und verwandte Gebiete – Beihefte, 54) (Berlin: De Gruyter, 2024), 194–96.