The Jurist-Judge in al-Andalus: Ibn Rushd al-Jadd

Ibn Rushd was a renowned jurist who held the position of chief judge of Cor­doba. In line with the power enjoyed by the jurists during the rule of the Al- moravids, Ibn Rushd was very influential in religious, as well as political, circles.126 His influential status was particularly evident in the role he played in the Cordoban rebellion of 515/1121.

125 Wasserstein, Party-Kings, 41.

126 Kennedy, Muslim Spain, 178.

127 See e.g. Gomez-Rivas, Law, 23-24.

128 al-Mukhtar al-Talili, Ibn Rushd wa kitabuh al-muqaddamat (Tripoli: al-Dar al-Arabiyya lil- Kitab, 1988), 273-74.

129 Delfina Serrano Ruano, “Ibn Rusd al-Jadd (d. 520/1126),” in Islamic Legal Thought: A Compendium OfMuslimJurists, ed. Oussama Arabi, David S. Powers, and Susan A. Spec- torsky (Leiden: Brill, 2013), 301-2.

130 al-Talili, Ibn Rushd, 276.

support for the people against the political authority! it should be noted that if he played a role in such a reconciliation, then he may have condoned a deal contrary to most juristic positions on the regulation of rebellion, since most jurists don't hold rebels liable for damage to life and property. In addition to being personally influential, Ibn Rushd belonged to an elite religious family famed for their contribution to the Islamic sciences.132 The family's origins are contested. According to Kennedy, they descended from Arab roots,133 but ac­cording to al-Talili, due to the lack of reference to their Arab origins in bio­graphical literature, they must have descended from non-Arabs.134

Ibn Rushd is famed for his elaborate commentaries on Maliki works, includ­ing his al-Muqaddamat - a commentary on Malik's Mudawana - and al-Bayan wa-l-tahsll - a commentary on one of the most famous Maliki texts from Mus­lim Spain, al-^tUtblya∕al-MustakhraJa. Al-^tUtblya is a compilation of Maliki asma^t, reports transmitted verbally from Malik (d. 795/971) by his disciples. The compilation received serious scepticism with regards to its authenticity in both classical and modern scholarship.135 However, the authenticity of the text is irrelevant for this book since Ibn Rushd treated the reports as authentic. Ibn Rushd'sfitdwa are also compiled in a book titled Fatawa Ibn Rushd. Like most jurists, Ibn Rushd is reported to have preferred intellectual work to judicial as­signments, and he is said to have resigned from the position of judge in order to complete his work on al-Bayan wa-l-tahsll. Ibn Rushd confirms this informa­tion in his introduction to the book, where he says he was unable to reconcile his judicial responsibility with his work on the book, so he sought relief from that responsibility.^

Despite his elaborate and prolific work on furu^t, Ibn Rushd published no books on usul al-fiqh. His focus on Juru^t is coherent with the Andalusi Maliki tradition's relative lack of interest in usul.137 That said, it must be stated that Ibn Rushd was still famed for his knowledge and mastery of usul theories across the different madhahib.

131 al-Talili, Ibn Rushd, 58.

132 al-Talili, Ibn Rushd, 83.

133 Kennedy, Muslim Spain, 178.

134 al-Talili, Ibn Rushd, 81.

135 Alfonso Carmona, “The Introduction of Malik's Teachings in al-Andalus,” in The Islamic School ofLaw: Evolution, Devolution and Progress, ed. Peri Bearman, Rudolph Peters, and Frank E. Vogel (Cambridge, MA: Islamic Legal Studies Program, Harvard Law School, 2005), 50-51.

-36 Ibn Rushd faJaddf, al-Bayan wa.-1-tads.l ∙wa,-l⅛,rh waltawjlh waltaTll fl masaTl al-

mustakhraJa, ed. Mulammad Hijji, 2nd ed. (Beirut: Dar al-Gharb al-Islami, 1988), 1:30-31.

137 al-Talili, Ibn Rushd, 53.

biographer Qadi 'Iyad (d. 544/1149) specifically mentions his exceptional mas­tery of usul. 138 In fact, Fierro argues that Ibn Hazm's textual project trans­formed the jurisprudential landscape in al-Andalus, leading many Malikis, including Ibn Rushd, to focus their efforts on the textualization of Maliki juris­prudence. According to Fierro, “Ibn Rushd was able to insert early Maliki ray within the context of usul methodology, without much substantial change be­ing introduced in traditional Andalusi Maliki practice.''139

Because of his focus onJuruI, this section is more concerned with internal contradictions in Ibn Rushd's commentaries than contradiction with usul. His commentary al-Bayan wa-l-tahsll examines the different reports compiled by al-'Utbi in al-Mustakhraja. The reports were often contradictory, reflecting Malik's frequent change of position, as well as the different views of his disci- ples.140 Because some of the reports contradicted each other, his choice of the soundest report is examined to assess whether the choice might be indicative of policy preferences, especially where he disagrees with the prominent Maliki jurist and Malik's companion Ibn al-Qasim (d. 191/806). Ibn al-Qasim's reports were widely held as the most authoritative and widely respected reports among Andalusi Malikis.141 The same approach is applied to his commentary on the renowned Maghribi jurist Sah n's (d.

CmdtheLegacyof thePredecessors

Having worked primarily on commentaries on original texts, Ibn Rushd ini­tially appears to have been less responsive than other original jurisprudents to policy considerations. In addition to commentaries limiting his ability to ad­dress issues and matters unaddressed in the works commented on, deviation from rulings commented on is also difficult, especially for a scholar belonging to an era where taqlld and loyalty to the madhhab as a pattern of juridical rea­soning had become more established. But closer examination of his works shows that Ibn Rushd was still responsive to various policy considerations and often found a way to manoeuvre within this strict system of scholarship to

138 Qadi ‘Iyad, al-Ghunaya, ed. Zuhayr JarSr (Beirut: DSr al-Gharb al-Islami, 1982), 54.

139 MaribelFierro, “Proto-Malikis, Malikis, and ReformedMalikis in al-Andalus,” in The Islamic School oJ Law: Evolution, Devolution c^r^d Progn^ss, ed. Pett Beaman, Rudokph Peters, and Frank E. Vogel (Cambridge, MA: Islamic Legal Studies Program, Harvard Law School, 2005), 75.

140 Carmona, “Introduction,” 54.

141 Carmona, “Introduction,” 54.

promote certain interpretations of the law. More important, even his taqlld, when consistently employed, is indicative of support for the juristic/judicial culture to which he belonged. This defence of the juristic tradition is common Ao taqd, works!-42

Ibn Rushd partially achieved his elite and influential status from belonging to the class of judges/jurists who were highly appreciated and respected during the time of the Almoravids, as mentioned earlier. He participated actively in the call for the Almoravids to intervene to defend Muslim Spain against en­croachment by the Christians and their removal of the ta’ifa kings.43؛ Ibn Rushd was also highly appreciated by the Almoravids, who were themselves puritan adherents of Maliki thought.

However, Ibn Rushd was confronted with potentially contradictory posi­tions within the school, and he dedicated himself to reconciling these po­sitions, sometimes in a manner that introduces a novel position that seems more in line with the context he lived through. For example, Malik is reported to have been asked about the punishment of a spy, to which he replied that he had not heard anything about spies and that the matter should be left to the ijtihad of the imam, while the prominent Malikf jurist, Ibn al-Qasim said he thought he should be beheaded and his repentance should not be accepted.146

The reader might assume that the two statements reflect different positions, where one specifies a particular punishment, while the other asserts lack of textual support for a particular punishment, hence calling for the imhm's reli­ance on his own discretion. However, Ibn Rushd tries to prove that both posi­tions are similar by stating that a spy should be subjected to hiraba punishment because his acts are more harmful and dangerous to Muslim interests than robbers and bandits. Thus, according to Ibn Rushd, Malik meant that the imam may resort to his ijtihad to choose between killing the spy and his crucifixion.147

142 Hallaq, Au thority, 120.

143 Kennedy, Muslim Spain, 164.

144 See e.g. Ibn Rushd (al-Jadd), Fatawa Ibn Rushd, ed. al-Mukhtar al-Talfll, 2nd ed. (Beirut: DSr al-Gharb al-Islami, 1987), 3:1423.

ι⅛ Kenne⅛j,MustmSpam,-η⅛.

146 Ibn Rushd, Bayan, 2:537.

147 Ibn Rushd, Bayan, 2:537.

A spy is to be subjected to the same hukm (ruling) as a muharib (highway robber) but his repentance may not be accepted, like the heretic and false witness, because he had taken his previous [sin] lightly.

Ibn Rushd provides no juristic analysis to support attaching the hiraba punish­ment to spying other than the simple fact that spying is more dangerous to Muslims than robbers and bandits. This statement is far too general and sub­jective to be construed as a solid basis for the qiyas advocated by Ibn Rushd. Moreover, the two statements made by Malik and Ibn al-Qasim make no refer­ence to hiraba, so his justification for limiting Malik's allowance for the imam's discretion to implement the punishment of hiraba is an interesting innova­tion. Such an innovation seems not only meant to assert coherence in a situa­tion of seemingly diverse positions within the school, but is also indicative of tactful manoeuvring within the school doctrine to portray coherence on an issue that happens to be of sensitive and timely importance to the Iberian pen­insula.

Ibn Rushd is equally innovative in his interpretation of a prophetic tradition in order to prove his analysis of the punishment of spies and reach the conclu­sion that they must be killed. According to this tradition, a companion, Hatib, wrote to Mecca leaking information about Muslims, but the Prophet found out. 'Umar asked the Prophet to let him kill him, but the Prophet refused to let 'Umar do so because Hatib was one of those Muslims who had fought along­side the Prophet in Badr and because he had apologized to the Prophet, who had accepted his apology.149 Ibn Rushd stated that the tradition is a specific one and may not be used for analogy, but he went further than this, arguing that the tradition proves that spies must be killed because the Prophet did not reject 'Umar's request in principle.^ But silence with regards to the principle of killing spies is hardly proof of the Prophet's acceptance, because it is impos­sible to deduce the Prophet's intentions with regards to spies other than Hatib in this particular incident.

Ibn Rushd's attempt to reconcile the legal reports and strive for homogene­ity within the school is asserted by Verskin in his analysis of the evolution of

148 Ibn Rushd, Bayan, 2:537.

149 Ibn Rushd, Bayan, 2:537.

150 Ibn Rushd, Bayan, 2:537. the juristic discourse towards a Muslim man's entitlement to wife and children in the territory of war, a matter discussed in the previous chapter in the context of Hanafi jurisprudence. According to Verskin, Ibn Rushd, unlike other schol­ars in al-Andalus, leant towards depriving a man of his wife and children if he lived in the territory of war. He did so by relying on Malik and hnttn's rather brief views on the matter. Verskin provides evidence that Ibn Rushd may have been influenced by the political atmosphere in the Iberian peninsula - large tracts of Muslim land were being lost to Christian neighbours, leading Ibn Rushd and others, including incidentally Ibn Hazm, to instruct Muslims who converted to move to the territory of Islam and to discourage Muslims from travelling to the land of non-Muslims, since such travel would subject them to non-Muslim laws.151 This ban on travel, however, lacked a firm legal grounding in early Maliki texts and required novel arguments to find resonance in the concept of hijra (emigration).152 Gomez-Rivas also provides a great deal of evi­dence, in his analysis of Ibn Rushd'sfatawa, of the jurist's remarkable ability to move away from literal taqlld towards a nuanced analysis of the Maliki doc- trine.153 Thus, although Maliki law was reformulated and developed by Andalusi jurists like Ibn Rushd, often innovatively, it remained loyal to the le­gal tradition and made sure to argue from within the framework of the madh- hab to lend legitimacy to new arguments.154 Innovations and new arguments found in Ibn Rushd's jurisprudence generally conformed to that conclusion.

HegemonyRecurring Therne

Much like Ibn Hazm, Ibn Rushd felt a continued threat from a!-Anda!us's Christian neighbours, which impacted his jurisprudence and his analysis of Maliki texts. Whenever he was unable to reconcile contradictory reports of Malik's positions, he was more inclined to accept positions that allowed Mus­lims more freedom in their conduct with their enemies. But this approach does not reflect an attempt by Ibn Rushd to adapt to the Almoravids' policy of pursuing jihad in al-Andalus, a policy that preceded the Almoravids on the peninsula: “[I]t was [rather] the presence of the Christian-Muslim frontier that was most influential in shaping regional attitudes (among other things) over jihad; this frontier's movement and militarization affected Iberians and Maghribis, and even Christians and Muslims, in profoundly similar ways.''155

151 Verskin, Islamic Law, 55.

152 Verskin, Islamic Law, 61.

153 Gomez-Rivas, Law, 76.

154 Verskin, Islamic Law, 133.

155 Gomez-Rivas, Law, 93.

Perhaps, the most enlightening instance of Ibn Rushds zeal for maintaining Muslim hegemony in the peninsula is his role in alerting Ibn Tashfin to the participation of non-Muslim dhimmls in the raids conducted by the Christian king of Aragon against Muslim lands and his issuing a fatwa depriving Chris­tians of their dhimml status and demanding their expulsion from Muslim lands.156

Ibn Rushd's anxiety over neighbouring Christian powers is clear in his works on jihad and rebellion. In a report on Malik's position on raids, he is said to have answered by saying he didn't know what to say and appeared to hate them.157 In another incident, Malik said he disapproved of (la uhibb) going on raids before Muslims had invited non-Muslims to Islam, even if the message of Islam had reached the non-Muslims: “I see that they should not be fought until preached and they should not be raided.''i58 Commenting on the first report, Ibn Rushd states that Malik hated raids because he was troubled by the name and not the act itself if correctly performed.159 Yet, Ibn Rushd neither states the correct manner for raiding nor justifies his attempt to gauge Malik's intentions in a manner that allows for raids. In the second report, Ibn Rushd claims that Malik's disapproval of unprompted raids is an indication of permissibility be­cause he does not state that Muslims have to refrain from raids. At the same time, Ibn Rushd disregards Malik's second reiteration that non-Muslims who are aware of the message of Islam should not be raided. This technique might be acceptable considering that the usage of the term “disapprove” often falls under the category of makruh (reprehensible) rather than muharram (forbid­den). However, Ibn Rushd does not consistently employ such analysis when dealing with Malik's positions. For example, when asked about recruitment of Christian dhimmls into the army, Malik responded by stating he did not like the imam giving them permission to participate in the armyO In commenting on Malik's position, Ibn Rushd takes that statement as indicating prohibition because “it is not permissible, according to Malik, may God have mercy on him, and all his companions, for the imam to seek assistance from unbelievers in fighting unbelievers.”^! In another incident addressing the matter of trading in non-Muslim lands, Malik said he did not like going to non-Muslim lands for trade purposes, which Ibn Rushd takes as an indication of prohibition because

156 Ruano, “Ibn Rushd,” 307.

157 Ibn Rushd, Bayan, 2:521.

158 Ibn Rushd, Bayan, 2:546.

159 Ibn Rushd, Bayan, 2:523.

160 Ibn Rushd, Bayan, 3:5.

161 Ibn Rushd, Bayan, 3:6.

MHlik had also said that it was not the business of scholars to determine some­thing to be permissible or forbidden and that they were satisfied with using other words like “acceptable,” “unacceptable,” “preferred” and “disapproved.”i62 The issue of ransom given to non-Muslims in order to free Muslim captives was apparently another contentious issue among Malikijurists. The Malikiju- rist Ashhab (d. 204/820) reported that Malik was asked about ransoming Mus­lim captives with horses, weaponry, and wine. Malik responded by stating that it was acceptable to use horses and weapons but rejected ransoming with wine because one should not engage in a wrongful act for the purpose of a rightful act Despite the lack of reference to necessity, Ibn Rushd interprets Ashhab's

report as indicating that it is only permissible to ransom a Muslim captive with weapons and horses if there is no alternative^^ He also dismisses the Andalusi Malikijurist Ibn Habib's (d. 248/853) view that ransoming with horses and weapons may be permissible if it does not give the enemy military advantage.^ He argues that Ibn al-Qasim's view that it is better to ransom with alcohol than horses and weapons is the soundest, and he refutes Ashhab's report by stating that giving weapons to the enemy is as equally sinftrl as giving them alcohol, yet alcohol is less harmful to Muslim Interestsie True, Ibn Rushd conforms to the tendency to follow Ibn al-Qasim's views, but one cannot dismiss the rea­soning, which sets harm to Muslim interest as a criterion. Considering that Ibn Rushd deviates from Ibn al-Qasim's views on some issues, favouring his view in this instance suggests he disliked ransom for weaponry and its potential for empowering the enemy. Again, this position is hardly surprising in a scholar who lived during a time of perpetual war with hostile neighbours.

Another issue contested among earlier Maliki jurists was how those who had defected to dar al-harb, then returned to Muslim lands as messengers, should be treated. Ibn Rushd lists the different positions on the matter. Ibn al- Qasim believed that the messenger's aman ought to be upheld, even if he were an apostate Muslim, and that the imam should refrain from istitaba (the choice between reverting to Islam and the death penalty). If he were a slave to a Mus­lim or a dhimml, property over him may not be claimed by the master? Sahnun, on the other hand, argued that his aman should be upheld if he was granted an aman pledge that specified that he was protected even if he were an

162 Ibn Rushd, Bayan, 4:171.

163 Ibn Rushd, Bayan, 3:81.

164 Ibn Rushd, Bayan, 3:81.

165 Ibn Rushd, Bayan, 3:81.

166 Ibn Rushd, Bayan, 3:81.

167 Ibn Rushd, Bayan, 3:32. apostate or a slave.168 Ibn Rushd deviates from the general Andalusr tendency to follow Ibn al-Qasim, advocating a third position, adopted by Ibn Habib, stat­ing that the messenger's aman should be revoked, regardless of the conditions stipulated in the aman pledge. To support his choice, Ibn Rushd argues that aman would be invalid because if it were unconditional, then the messenger's true status could not have been accounted for when it was granted, deeming the pledge invalid. If the aman stipulated that it should be upheld even if the messenger were a slave or an apostate, the aman would still be invalid, because in the case of the apostate, the aman would contradict a hadd, which was un­acceptable, and if the messenger were a defected slave, the aman would en­croach upon the rights of the slave owner, which was equally unacceptable.^ Ibn Rushd's choice, although soundly reasoned, is a Itirther indication of his inclination to adopt a harsher position towards defectors. His reluctance to ac­cept other views, including sending the messenger back to the enemy and re­fusing to allow him to stay in dar al-Islam,170 portrays little tolerance for any concrete or symbolic lenience with the enemy and those who choose to defect to it, a position again hardly surprising from a jurist who is highly critical of any form of alliance with the Christian enemy.

3.3 FhihePoltdAihoy

As a member of the political institution, and a famed judge and jurist who en­joyed a strong relationship with a puritan government that showed allegiance to the Maliki madhhab, Ibn Rushd appears to have been inclined to trust the political authority and its judgement, often giving the imam discretion to choose the most suited course of action rather than stating a rigid position. That ought not to be understood as mere subservience to political authority. As mentioned earlier, Ibn Rushd's relative distance from the political authority on the Cordoban rebellion may have precipitated his resignation from the office of chief judge, and at any rate indicated that he was unwilling to serve the in­terests of the political authority at the expense of what he assumed to be the correct application of the law. Much like al-Shaybanr, however, it seems that once Ibn Rush assumed an official role and became closer to the ruling elite, he lead a life of relative comfort, and afforded the political authority discretionary authority whenever appropriate. He stated, for example, that the imam could decide whether to ransom, free, kill, or enslave captives.171 That position was

168 Ibn Rushd, Bayan, 3:32.

169 Ibn Rushd, Bayan, 3:32.

170 Ibn Rushd, Bayan, 3:33.

171 Ibn Rushd, Bayan, 2:561. widely held by many jurists and was to some extent an established juristic tra­dition. Its rationalization by Ibn Rushd, however, makes it worthy of mention. Malik is reported to have been asked about 'Umar b. al-Khatab's stating that no captives old enough to shave were to be brought back alive. Malik answered that 'Umar had meant they should not be spared, in other words that they should be killed.172 However, in al-Mudawana, there is a reference to Malik be­ing asked about killing captives, and he is reported to have said that whoever was feared (i.e., whoever was deemed dangerous to Muslims) should be killed. When the reporter of the question was asked whether the imam could choose to either kill or spare the lives of captives, he reiterated that he only heard Malik say that whoever was feared should be killed.173 Malik's words might be understood as indicating that he was reluctant to accept killing captives who did not pose a threat to Muslims, since he was generally asked about captives and he chose to specify dangerous ones as those who are permissible to kill. In another incident, Malik was reported to have stated that if it is not known whether a captive is dangerous, he should be killed.174 On the other hand, 'Umar's instructions are understood by other jurists, including Ibn Hazm, as obligating the killing of all adult male captives. However, Ibn Rushd attempts to dismiss the potential conflict between 'Umar's instructions and Malik's views by interpreting the issue of treatment of captives as a matter purely sub­ject to the discretion of the imam. In doing so, he actually disregards the pre­sumed instructions of both 'Umar and Malik, where each sets a clear criterion for killing captives - either on the basis of gender and age or because they are a threat to Muslims. Ibn Rushd comes up with an alternative reasoning, one that moves away from any instruction to kill particular captives and gives the imam !till discretion to spare the captive, even if he is a dangerous adult male.

Ibn Rushd's inclination to expand the ruler's discretion is evident also in his approach to intra-Muslim wars of rebellion. He accepts the established juris­prudential tradition of distinguishing between banditry and rebellion on the basis of ta’wfl.175 However, as Abou El Fadl points out, he dedicates more atten­tion to the issue of banditry and simply argues that those who rely on errone­ous interpretations, or ahl al-ahwa’ (people following their whims), are not to be treated as bandits.176 He does not develop an elaborate legal position on the

172 Ibn Rushd, Bayan, 2:561.

173 MtIk b. Anas, CttMudawana al-kubra wa yalhia Kttab a--Mucaddc^mat, rey. SaInin b. Sa'ιd al-Tanukhi and 'Abdul Ralman b. al-Qasim (Beirut: Dar al-Kutub al-'Iyya, 1994), 1:501.

174 MtbkIbnAnas, UtMudawanaatkubrawayalhiaKaal-MuqaddamaaTft.

175 Abou El Fadl, Rebellion, 251.

176 Abou El Fadl, Rebellion, 253--4.

treatment of rebels after rebellion with regards to responsibility for rebellion and contents himself with pointing out the different Maliki positions on the matter.177 In short, “Ibn Rushd's discourse on what he calls harb al-muta’awwilln [fighting by those with an interpretation] is short and non-committal."!78

Another tactic Ibn Rushd employs to ensure the ruler maintains power over the ruled is how he emphasizes previous works in his commentaries to pro­mote a particular view. In al-Bayan wa-l-tahsll, he refers to the issue of rebel­lion by dhimmls. Ibn al-Qasim reports that Malik was asked about rebelling dhimmls and that Malik made a distinction between those under the rule of a just imam and those subject to an unjust one. If dhimmls rebelled against a just imdm, they lost their protection status, whereas if they rebelled against an un­just one, they should neither be fought nor killed, and their women and chil­dren could not be taken as captives.179 In his commentary on this issue, Ibn Rushd begins by reiterating that Malik's companions agreed that if “dhimmls breached their agreement, refrained from payingjizya and rebelled without an excuse, they became enemies and people of war."i89 Then, he dedicates the rest of the commentary to proving why dhimmls lose their status in that case, but he fails to examine the other situation envisioned by Malik (rebellion against an unjust imam). In fact, he does not even mention that dhimmls maintain their status in that particular case. His failure to address rebellion against an unjust imam leaves the reader focused on the loss of status by rebellious dhimmls as being the only route for dealing with such rebellions, rather than its being one of the two alternatives envisioned by Malik. It is a focus that is, in addition to its revelation of faith in the political authority, also assertive of the fear of the rise of Christian power in the peninsula and the utilization of Chris­tian subjects to allow for, or create the space for, neighbouring Christian influ­ence.

Ibn Rushd's faith in the political authority and his tendency to allow it dis­cretion is hardly surprising, given that he was one of the most influential judg­es during the time of the Almoravids, who relied heavily on jurists to provide them with juridical advice.181 Ibn Rushd's fatawa collection is testament to the state's faith in him and in its tendency to resort to his opinions when faced with complicated legal issues. Prince Abfi l-Tahir Tamim b. Yfisuf b. Tashffn (d. 520/1126), for example, inquired about Ibn Rushd's opinion on Muslim

177 Abou El Fadl, Rebellion, 255.

178 Abou El Fadl, Rebellion, 255.

179 Ibn Rushd, Bayan, 2:609.

180 Ibn Rushd, Bayan, 2:610.

181 Kennedy, Muslim Spain, 179. properl,? taken as booty by the people of Toledo when they raided Muslim lands during a truce between both parties. Such property was later found in the hands of traders when they came to al-Andalus for commercial purposes. The prince wanted to know whether Muslims were entitled to reclaim this property from those traders.182 This example, among other examples in his fatawa compilation, is indicative of the ruling elite's tendency to resort to Ibn Rushd to provide his legal opinion on complex governance issues. This would justify his position in trusting the authority with wide discretion, knowing that the ruling class at that time would resort to jurists' advice and expertise to de­termine how to employ such discretion.

Prag OtninlssuesCoeed

A survey of Ibn Rushd's works on jihad shows that he was more interested in matters that were likely to be faced by a Muslim judge rather than in theoreti­cal issues unlikely to come up as real-life conflicts between Muslim parties. An issue like targeting, for example, is given hardly any interest in his analysis and work, whereas issues such as division of booty and conflicts over slave owner­ship are given considerable prominence. Arguably, Ibn Rushd was heavily in­fluenced by the primary works he was commenting on, as one can detect the same pattern of interest in matters of war affecting intra-Muslim relations rather than matters affecting the way the enemy is treated during conflict. However, as illustrated in this chapter, primary works did not prevent Ibn Rushd from manoeuvring the original texts he was commenting on in order to promote the positions he advocated, which would lead to further examination of the reason why Ibn Rushd spent less time than his predecessors in address­ing matters related to targeting, permissible weapons, and similar issues, espe­cially given that these issues were referred to, even if briefly, in the primary texts. In that light, his lack of attention to expanding on those matters can only be understood as the judge in Ibn Rushd influencing the jurist and leading him to show less interest in issues that were unlikely to lead to legal disputes within the jurisdiction of the Andalusi Muslim judge. A prisoner of war was unlikely to bring a case on how their family members were killed during conflict, whereas a dispute over booty and its division might reach the judge's courts.

182 Ibn Rushd (al-Jadd), Fatawa Ibn Rushd, ed. al-Mukhtar al-Tall, 2nd ed. (Beirut: Dar al- Gharb al-Islami, 1996), 3:1423.

4