Visions of Justice: Sharīʿa and Cultural Change in Russian Central Asia
VISIONS OF JUSTICE – Book Sample
Fatwas for Muslims, Opinions for Russians
Affiliation with the Hanafi school of law (madhhab) is key to Muslim identity in present-day Central Asia.1 Such an affiliation is seen today as part of a deep historical process that connects current developments to the early-medieval history of Transoxiana.2
This is not just a post-Soviet phenomenon. The Hanafi legal doctrine has long been endowed with greater authority in the region and has thus enjoyed a preeminence over other schools of law, and Central Asian jurists have, for centuries, situated themselves in a chain of clearly recognizable interpretive traditions: attestations of how local ʿulamāʾ perceived them- selves as close followers of, say, Abū Ḥanīfa can be found in materials dating from throughout the Islamic history of the region.3
Although references to Hanafi hegemony are ubiquitous in the Central Asian legal literature, little has so far been done to describe Hanafi jurisprudence and its mechanics during the rules of the Uzbek khanates of Bukhara, Khiva, and Khoqand. What characterized Central Asian Hanafism when the Russians conquered the region? What kind of changes did local jurists experience in their doctrinal sphere during the tsarist era?
What does the output of jurists tell us about changes in people’s understanding of law? These are the questions I seek to address in this chapter, in order, first, to help us situate Central Asia within a wider Hanafi ecumene and, second, to establish whether that form of Islamic jurisprudence as practiced in Central Asia can be dis- tinguished from other regional legal practices that are usually referred to as
“Hanafi.” These are questions of fundamental importance not just for those interested in the comparative history of colonialism and the modern Islamicate world.
In order to understand the long process of adaptation and change that occurred in the history of Islamic jurisprudence in Central Asia we need first to consider what exactly a fatwa was and how muftis functioned in the region before and after colonization.
Only then can we begin to understand that, contrary to what Islamic juristic scholarship produced in Uzbekistan today would have us think,4 the practice of issuing fatwas in present-day Central Asia is far removed from that in the period before colonialism, reflecting, as it does, modes of reasoning that came into existence only under Soviet rule.
In spite of representing a complex juristic genre, fatwas are key to detecting changes in Muslims’ legal consciousness. Fatwas were not produced exclusively for elite consumption.5 Fatwas were routinely acquired by the populace as devices that allowed them to take legal actions and pursue redress. They pre- served fatwas as we today preserve a document to attest to our entitlements.
By exploring the mechanics of colonial-era fatwa-issuance (iftāʾ), we begin to grasp just how deep was its impact, not only on juristic practices but also on people’s legal consciousness more generally.
Two institutional arrangements allow us to examine jurists’ output under Russian rule and identify continuities and changes in the way jurists operated. The colonizers did little, if anything, to affect the powers of the mufti; they simply ignored them. Colonial statutory laws that regulate the jurisdic- tion of Muslims’ native courts do not even mention the office of mufti.6
By avoiding any interference with that office, the colonizers effectively safe- guarded the integrity of muftis’ writing practices. There are important continuities between fatwas compiled in Russian Central Asia and those issued under the Muslim principalities before the conquest. Colonialism also marked a new age of bureaucratization and accountability that increased the overall output of legists.
That is, native judges were held accountable to the colonial bureaucracy for all the procedures used in the trials they held. In apparent contrast to the former practice of reporting to the royal courts, qāḍīs were now obliged to record judicial proceedings in special ledgers (daftar/kaziiskaia kniga) provided by the Russian administration. Qāḍīs thus produced a deluge of records that shed light on the review process of fatwas brought to court by disputing parties.
While there are clearly continuities in the crafting of legal opinions, interactions between the colonial administration, the Muslim population, and local jurists led to substantive innovations. Such innovations are manifest mostly in the opinions that muftis had to deliver on specific points of law at the request of colonial officials.
This happened every time Muslim parties disputed the interpretive authority of the native legists and appealed to the Russians for judicial review. Colonial officials would consequently turn to indigenous legal experts to clarify exactly how sharīʿa ruled on a particular subject. In doing so, they often overlooked the fact that Islamic law could actually accommodate divergent views on a single point of law.
It is in the answers to the queries of the Russian officials that we can detect the birth of a new legal genre. Muslim jurists in such contexts articulated their arguments in an idiom that was far more expressive than that in the fatwas drafted according to the established compositional traditions and that was much more accessible to the uninitiated.
Accountability to the colonial administration, however, inevitably undermined their interpretive independence. In principle, muftis did issue divergent opinions on the same subject matter. This divergence of opinion was, however, of little use to the Russians, who sought to eliminate such interpretive discord between Muslim jurists, thus emphasizing certain legal notions over others. The Russians never managed, however, to establish a single Islamic orthodoxy, nor did they manage to codify sharīʿa.
When approaching the study of Islamic jurisprudence in nineteenth- century Central Asia and its place in the wider Hanafi ecumene, we should keep two precautions in mind. First, established practices of textual consump- tion usually inform the way we read texts. That is to say, a single text can be read differently in different places and in different times according to different interpretive traditions.
We get a sense of these different traditions from the numerous differing commentaries to be found on the various juristic com- pilations to which muftis refer, such as al-Hidāya, the Mukhtaṣar al-Wiqāya, and the al-Fatāwā al-ʿĀlamgīrīya. These are texts that represent long-standing Hanafi legal traditions in regions as culturally diverse as the Middle East and Central and South Asia. Cultural differences (especially in the legal sphere) notwithstanding, students of colonialism have often observed certain policies that are common to particular imperial administrations.
One common such policy consisted of promoting the translation of certain Hanafi texts, chosen almost arbitrarily to serve as standard manuals, in hopes of facilitating colo- nial officials’ understanding as well as the simplification and rationalization of Islamic legal practice. A famous example was al-Hidāya,7 which appeared first in English translation in British India and then in Russian in colonial Central Asia.8
Notwithstanding al-Hidāya’s wide circulation in India and Central Asia, however, it is evident, from the wide variety of commentaries on the text, that Muslims in Central and South Asia read the work in very different ways. When thinking of Hanafism as a common body of juristic knowledge, we should therefore remember that, while there was a shared textual knowledge from Hyderabad to Semipalatinsk and from Herat to Kayseri, jurists might nevertheless draw very different inferences from these texts and might deliver very dif- ferent opinions on specific questions.
Even within one region, Muslim jurists did not always share the same opinion on these standard texts, nor did they always use it in the same way. We know, for instance, that scholars as distin- guished as the Bukharan jurist ʿAbd al-Shakūr, the father of Ṣadr-i Ḍiyāʾ, turned to al-Hidāya every time they wanted to examine candidates for the office of mufti,9 and we find in the work of Aḥmad b. Ḥāfĳiz al-Dīn al-Barāngawī (1877–1930), a Tatar mullah who studied in Bukhara between 1901 and 1905, an account in which al-Hidāya is cast in a demeaning light. Al-Barāngawī in the following passage ventriloquizes a Kazakh inhabiting the Bukharan Emirate:
On his camel, Nārāṭ Bāy addressed me, “Hey Mullah, do you read the book up on the camel?” I said, “What book is that?” He interrupted and said, “You don’t know it?” When I asked my companion, he said that it was al-Hidāya. He said, “There was a student like us who, when he trav- eled with the Kazakhs, read al-Hidāya on a camel. When a Kazakh asked what book that was, he answered, “The book you read on a camel!”10
As Muslim scholars sharing the same educational background may have diver- gent opinions on the same text, it is important to account for such divergences and find out why their opinions differ, rather than basing our interpretations on a purported commonality of interpretive dispositions.
Second, Muslim governments are usually credited with having promoted the Hanafi doctrine as the dominant legal school in Transoxiana. Stephen Dale, for example, notes that “in the Timurid century both Samarqand and Herat [. . .] attracted internationally known Hanafi scholars.”11 A policy of promotion of Hanafism is discernible also in the governance of the Abūʾl- Khayrids: Muḥammad Shībānī Khān (r. 1501–10), for instance, commissione the compilation of the imposing al-Fatāwā al-Shībānīya by ʿAlī al-Khwārazmī.
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