A map of the city? The Two Towers and the plural itineraries of the madhahib

Only by assuming the non-identity which exists between the tradition of fiqh and the corpus of Western contract law can the totality of the ‘aqd in its mul­tiple pluralities (Ahmed) be ‘observed,’ or rather, ‘listened to,’ as an echo of the revelation of Islam.

This duality underlines the inescapable intersection between Western law and Muslim fiqh when dealing with the ‘aqd from a comparative perspective, where presence and absence are mutually dependent. To ‘hear’ the unity of diversities that defined ‘how Islam makes Muslims as Muslims make Islam’ (Ahmed, 2016, p. 543), one must refer to fiqh normative pluralism as well as being aware of one’s own bias embedded in Western legal categories. The importance of translating (‘moving from a place to another’) ourselves from the West of Orthanc to the East of Barad-dur raises the urgency of identifying a proper map with which we can safely proceed into the city.

Indeed, every map (with its North and South, West, and East, coordinates, sections, and sub-sections) is a work of craft and it is itself a craft of place; it also tells a story about both its makers, interpreters, and readers. Maps ‘tell us about the places they depict and the people that make and use them’ (Bodleian Library, 2019):¹ ‘maps are neither transparent objects of scientific

communication, nor baleful tools of ideology, but proposals about the world that help people to understand who they are by describing where they are’ (ibidem:, italics in the original text).

The style of the paragraphs and sub-paragraphs of a textbook of civil con­tract law, for instance, tells us a lot about a tradition that looks at the contract in the form of a systematic corpus iuris ‘mapped’ according to a normative history derived from Roman ius, with the contract conceived of as a sub-category of the law of obligations. While sharing the same space as law-religion within the tower of Orthanc, the common lawyer will advance another map to the con­tract, referring to categories (such as that of ‘consideration’) that are unknown to his civilian counterpart. More radically, neither of these maps will ‘narrate’ Muslim scholars, who think of the ‘aqd not as a valid and sensible corpus of laws but as the direct outcome of the divine revelation (section 2.4.5): a Word that has been echoed in the legitimacy of diverse rules; a plurality of itineraries (with the coexistence of differences, variations, if not contradictions) shaped by Muslim jurists in their own ‘way of walking’ through the city of the ‘aqd. Not by chance, madhhab, the Arabic term used to designate a ‘juristic school,’ literally refers to a ‘way of going/travelling’ along the Path of the Sari‘ah. Scholars de-scribe God’s will by exercising a collective iurisdictio underpinned by their loyalty to the madhhab (pl. madhahib) to which they belong:³ in the Sunni universe, the Hanafi, Maliki, Safi‘i, and Hanbali juristic schools.

By adhering to the acoustic space of Islam and its rationales of multiplic­ity, diversities, and contradictions (see Chapter 2), the corpora iuris of civil and common contract laws are replaced by a space whose logos, echoed in the literature offiqh, can be ‘listened to’ through the Islamic contract.

To help the reader in their visit, the list that follows indicates the names of the most significant Muslim scholars (fuqahd^}, pl. offaqlb), to which the next pages will refer for each school:

• for the Hanafi school: Abu Hanifa (d. 150/767), the epitome of the madh- hab; Abu Yusuf (d. 182/798), his direct disciple; al-Saybani (d. 189/804), the second direct disciple of Abu Hanifa, author of the earliest Hanafi legal handbook, the Asl;⁴ al-Tahawi (d. 321/933), author of the Mukhtasar; al-Quduri (d. 428/1037), Bagdadien jurist, author of the brief but precious opuscule Mukhtasar and the famous Matn; al-Bazdawi (d.

• for the Maliki school: Malik Ibn Anas (d. 179/795), founder of the school and editor of the Muwatta, authoritative collection of ahddith; al-Sahnun (d. 240/855), whose Mudawwana al-Kubrd (his version of the teachings by the master Malik, as transmitted by Ibn al-Qasim, d. 191/806) consti­tutes, next to the Mukhtasar by al-Khalil ibn Ishaq, the core of the madhhab; Ibn Rusd al-Jadd (d. 520/1126); Ibn Rusd (d. 595/1198, better known in West as Averroes), a great philosopher but also judge, legal scholar, and author of the famous Biddyat al-Mujtahid wa Nihdyat al-Muqtasid; Sihab al-Din al-Qarafi (d. 684/1285), an eminent jurist of Berber origins and influential legal theoretician (i.e. expert of the field of usul al-fiqh) of the 13th century; al-Khalil ibn Ishaq (d. 767/1365), whose Mukhtasar is still today the principal textbook of the Maliki school; al-Hattab (d. 954/1547), author of the Mawdhib al-Jalil, usually mentioned as Commentary of Khalil, with reference to the Mukhtasar by al-Khalil b. Ishaq;

• for the Safi‘i school: al-Safi‘i (d. 204/820), founder of the madhhab and author of the fundamental Kitdb al-Umm; al-Muzani (d. 264/877-8); al-Suyuti (d. 911/1505), an Egyptian writer and juristic expert;

• for the Hanbali school: Ibn Hanbal (d. 241/855), the epitome of the school; Ibn Qudama (d. 620/1223), author of the Mughni, the most important source of the Hanbali school, with extensive commentary of the Mukhtasar by al-Khiraqi (d. 334/945); the neo-Hanbali doctrine finds its best expres­sion in the legal thought of Ibn Taymiyya (d. 728/1328), whose funda­mental work is the collection Majmu‘a Fatdwd; Ibn Qayyim al-Jawziyya (d. 751/1350), a disciple of Ibn Taymiyya and author of the famous Flam al-Muwaqi‘in.

It is by adhering to the alternative itineraries in the choral transmission of classical madhahib - each offering, in the end, its own map to the city, in their non-identity with Western contract law - that this book will try to clar­ify the meaning of the ‘aqd as manifestation of Islamic din and Muslim bios (Chapter 2).

3.3.