^{page 484 note 1} ‘Amal as an official source of the law found a recognized place in the judicial system of Morocco beginning with the latter part of the fifteenth century. It then continued to play a dominant role in the development of Moroccan law. It became, in fact, an instrument for modifying and adapting the sharî'ah to meet the practical needs of society, and the role of the judges in Morocco was rather similar to the one filled by the early judges during the formative period of Islamic law. For the jurisprudential aspect of the Moroccan 'amal and its historical development, see Berque, J., Essai sur la méthode juridique maghrébine (Rabat, 1944), pp. 9, 39–49, 63–7, 119–31;Google Scholaridem, ‘'Amal’, Encyclopedia of Islam, ed. by B. Lewis, Ch. Pellat, and J. Schacht (new ed.; Leiden and London, 1954–) (henceforth referred to as E.I.²); Milliot, L., Démembrement du Habous (Paris, 1918), especially annexe II, pp. 109–17;Google Scholaridem, Recueil de jurisprudence chérfienne (3 vols.; Paris, 1920–1923), vol. I, preface pp. v–xix; Coulson, N.J., ‘Muslim Custom and Case-Law’, Welt des Islams, vols. VI (1959–1961), pp. 13–24;CrossRefGoogle ScholarSchacht, J., ‘Problems of Modern Islamic Legislation’, Studia Islamica, vol. XII, pp. 126–8.Google Scholar

^{page 484 note 2} A list of representative works of this literature is given by Milliot in his preface to Recueil…, vol. IV (1952), pp. v–viii.Google Scholar

^{page 484 note 3} This work is a short guide to procedure where the author expresses the technical aspect of 'amal. It has been the subject of a number of commentaries, notably the one by Miyyârah (d. 1073/1662) and the gloss of al-Wazzâni (d. 1342/1924) (lithographed ed. Fès, 1315/1898). Its author is Abû al-Hasan ';Alî b. Qâsim al-Zaqqâq, a Mâlikî scholar and jurist in Fès who died in 912/1505. Cf. Makhlûf, M., Shajarat al-Nûr al-Zakîyah (2 vols.; Cairo, 1930–1931), p. 274, no. 1020;Google ScholarBâbâ, Ahmad, Nayl al-Ibtihâj (in margin of Ibn Farhhn's Dîbâj; Cairo, 1351/1932), p. 90.Google Scholar

^{page 485 note 1} This is a mnemonic poem of 417 verses in which the author collected over 200 judicial decisions that formed part of the judicial practice of Fès in his time. This work has acquired a number of commentaries, one of which was written by the author himself. It has given its name to this whole class of literature. Its author, 'Abd al-Rahmân b. 'Abd al-Qâdir al-Fâsi, was a Moroccan jurist of a very illustrious and scholarly family; he died in 1096/1685. Cf. Makhlûf, p. 315, no. 1230; Milliot, Recueil…, vol. I, preface, pp. vii–viii.Google Scholar

^{page 485 note 2} This last manual is the subject of this article and is discussed in detail below. Of the life of its author, Sijilmâsî, only the barest facts are known. His full name is Abu 'Abd Allâh Muhammad b. Abû Qâsim al-Filâlî al-Sijilmâsî. He is said to have been an eminent scholar and author and an expert in ‘legal decisions’ (aihkâm). According to Makhlûf, he finished writing al-'Amal al-Mulaq with its commentary in 1196/1782. Makhlûf does not give the date of his death, but according to al-Hajwî, Sijilmâsî died of the plague in Boujad on the IIth of Shawwâl 1214/1800. Apparently, Sijilmâsl was a technical adviser to Sultân Muhammad b. 'Abd Allâh (1757–1790), and a teacher of the latter's son and successor, Mûlay Slîmân (1792–1822). Sijilmâsî wrote also a commentary to al-'Amal al-Fâsî (see n. I above). Cf. Brockelmann, C., Geschichte der arabischen Literature (2 vols. and Supplement 3 vols.; Leyden, 1913–1938) (henceforth referred to as GAL & S.), vol. II, p. 696;Google ScholarMakhlûf, p.376, no. 1505;Google Scholaral-Hajwî, M., al-Fikr al-Sâmî fî Ta'rîkh al-Fiqh al-Islâmî (4 vols.; Rabat-Fès-Tunis, 1926–1931), IV, p. 127.Google Scholar For the Sultân Muhammad b. 'Abd Allâh and his son the Sultân Mûlay Slîmân, see Terrasse, H., Histoire du Maroc (Casablanca, 1949–1950), vol. II, pp. 290–302, 307–12.Google ScholarCf. also Milliot, Recueil…, preface, pp. vii–viii; Berque, ‘'Amal’, E.I.².Google Scholar

^{page 485 note 3} For a fuller discussion of 'amal and its literature, as well as for a list of full or partial translations of some 'amal manuals, see the introduction in my MS Ph.D. dissertation, Toledano, H., The Chapter on Marriage from Sijilmâsî's al-'Amal al-Mutlaq: a Study in Moroccan Judicial Practice (unpublished Ph.D. dissertation, Department of Middle East Languages and Cultures, Columbia University, 1969), pp. ii–xxiii, and appendix I, pp. 207–10;Google Scholar see also Berque, ‘'Amal’, E.I.² for a complete bibliography of Muslim and Western works on 'amal.Google Scholar

^{page 485 note 4} Berque, J., Essai…, pp. 63–7.Google Scholar Berque's conclusions regarding the jurisprudential nature of 'amal modify somewhat the thesis of Milliot, L., who regarded 'amal as tending to the creation of a positive law. This thesis was advanced by Milliot in a number of studies. The first of these studies was his Démembrement du Habous (Paris, 1918),Google Scholar a work devoted to the study of the twin institutions of guelsa and gzâ. It was in this work that Milliot first expounded the theory of 'amal as positive law for the first time; he dealt with the same subject in a number of subsequent studies. Berque's, J. definite work on the subject is his Essai sur la méthode juridique Maghrébine (Rabat, 1944), quoted above. In this work, Berque discusses 'amal in the larger context of Moroccan jurisprudence. Like Milliot, he recognizes the important role 'amal has played in the development of Moroccan law; he also appreciates the vital function 'amal has served as an instrument for adapting and adjusting sharî'ah law to meet the practical needs of society; nevertheless, Berque does not equate 'amal readily with positive law. Positive law, he argues, can only be based on precise, stable and permanent norms that are not subject to fluctuation and change; the application of 'amal on the other hand is dependent on certain conditions which vary with place and time. For this reason, Berque prefers to regard 'amal as ‘droit pragmatique’ rather than ‘droit positif’. Berque does not dismiss entirely the possibility of its developing eventually into a positive law, but insists that, given the limited state of our understanding the Maghribî jurisprudence at the present, we are in no position to make any definite conclusions on the matter.Google Scholar

^{page 486 note 1} In a second article to follow, I plan to examine a number of specific cases of 'amal which involve either divergence from the predominant opinion (mashhûr), a change in 'amal, or two conflicting 'amals.Google Scholar

^{page 487 note 1} So far I have been unable to obtain a copy of the lithographed edition, and this study is based on the Tunis edition. Accordingly, all references in this article are based on this edition and it will be referred to as al-'Amalîyât….Google Scholar

^{page 488 note 1} Similar statements regarding 'amal are made by al-Zaqqâq (d. 912/1507) and ‘Abd al-Rahmân al-Fâsî (d. 1096/1685) in their respective manuals of 'amal. Thus, al-Zaqqâq enumerates in his Lâmîyah 18 decisions which, he states, were contrary to the mashhûr but were nevertheless accepted in the judicial practice of Fés. After enjoining the qâlIs to abide by these decisions, he adds: ‘;Should it be objected that some of the above- mentioned cases are based on weak opinions, I will answer: true, adding, however, that it is on customary practice that we must base our decision.’ (The context shows that by customary practice he meant the practice of the courts.) Similarly, ‘Abd aI-Rabmân al-FâsI states in his manual: ‘In principle the judgment of q1Is of our time which is based on an isolated opinion ought to be rescinded immediately. But the ‘amal must prevail over the mashhûr. It cannot be neglected.’ See al-Zaqqâq, ‘Merad Ben 'All’, Revue Algdrienne (1926), s. i, p. 32, no. 204, and L. Milliot, Démenbrement…, p. 109. It is interesting to note, however, that while al-Zaqqâq and ‘Aba al-Rahmân al-Fâsl felt the need to assert and justify the binding nature of ‘amal, by the time of Sijilmâsi it is a ‘matter known to everyone’, a commonly known and accepted principle.Google Scholar

^{page 488 note 2} The author's introduction, al-‘Amalîyât…, pp. 2–3.Google Scholar

^{page 488 note 3} This seems to me to be a pun of sorts; it alludes to the Alfîyah of Jamal al-Dîn Mubammad b. ‘Abd Allâh b. Mâlik, which was an abridgement of his original work, a larger poem of 3,000 verses entitled al-Kâfiyah al-Shâfiyah. For ‘Abd Allah b. Mâlik and his Alfîyah, see GAL, 1, p. 300, vol. I, p. 526.Google Scholar

^{page 489 note 1} The impression one gets from this passage is that, when integrating the new cases in his original text, the author revised his commentary to the old cases as well. It must be assumed, therefore, that the present version of the commentary to some of the original cases might have been written piecemeal. This impression is indeed confirmed by certain remarks made by the author in his commentary, p. 28; for a complete translation and a discussion of this passage in the author's commentary, see Toledano, H., The Chapter on Marriage…, par. 28, B, pp. 83–6.Google Scholar

^{page 489 note 2} It is obvious from the above that, apart from the version that must have formed the basis of the Fès and Tunis editions, there must have existed also a shorter version of this work, i.e. the Alfîyah. None of the sources that mention Sijilmâsî's work make any mention of this original Alfîyah. It may very well be that a copy or more of this original text may turn up in the future. However, this problem is beyond the immediate concern of this article.

^{page 490 note 1} For example, in the first case discussed by the author, the point at issue is the permanent prohibition against the marriage of a man and a woman who have concluded a marriage and experienced sexual pleasure before the termination of the woman's waiting period (‘iddah). The basic rule that requires a woman to observe a waiting period after the termination of one marriage before entering into another is not touched upon at all. Similarly, in paragraph 3, the issue is who among the potential walîs of a woman gives her in marriage when her father is either missing or in captivity. Sijilmâsî, however, makes no mention of the basic Mâlikî rule that requires the presence of a matrimonial guardian (walî) who will conclude a marriage for the woman as one of the conditions for the validity of marriage; nor does he bother to indicate the order of priority of persons who may act as walls on behalf of a woman, although his verses presuppose such order or priority. Of course, from the point of the author's purpose in writing this work, this is quite justifiable Since he intended this work to serve as a practical manual for qâdîs, he could safely assume a thorough familiarity on the part of the qâ.dîs with the background of the issues involved.

^{page 490 note 2} For example, al-‘Amallyât…, pp. 24, 26, 29–30, 35, 44, 59.

^{page 490 note 3} Ibid. p. 113.

^{page 491 note 1} Ibid. p. 78.

^{page 491 note 2} Ibid.

^{page 491 note 3} Sijilmâsî states that the formula ‘this is the opinion adopted in judicial practice’ (jara bi-hi al-‘amil) is applicable only when opinions differ within the Mâlikî school. See al-‘AmalIyât…, p. 9.Google Scholar

^{page 491 note 4} Ibid. p. 39.

^{page 491 note 5} Ibid. p. 16.

^{page 491 note 6} Thus, the author reports, on the authority of Ibn Lubb (d. 782/1380), a judicial practice according to which a bikr's (a virgin, or, more specifically, a girl who had not been married previously) consent to marriage may be inferred from her silence, even when she is given merchandise for her dower. Analysing the case in question in his commentary, Sijilmâsî states that the bikr involved could theoretically be either (1) one who has a father and is still under his power of constraint, (2) one who has been emancipated by either her father or her guardian, or finally (3) one who is a poor, destitute orphan. But then, in an attempt to define the circumstances of the bikr in question, he proceeds to show that none of the above possibilities apply to the bikr discussed by Ibn Lubb. This is, then, a case where Sijilmâsî records a judicial practice only because it is recorded by a reputable scholar, even though he is not certain to which specific case this rule refers. For a fuller discussion of this case, see H. Toledano, The Chapter on Marriage…, par. 25, C, pp. 63–4; al-‘Ainalîyât…, pp. 21–2.Google Scholar

^{page 492 note 1} Ibid. p. 118.

^{page 492 note 2} Ibid. pp. 21, 27–8, 34, 35–6, 40–1, 42–3, 53–4.

^{page 492 note 3} For example, in one instance, after discussing two different ‘amals, Sijilmâsî remarks that there is not necessarily any contradiction between these two opinions, for ‘it is known that judicial practice changes with different times and locales, and each [of the two authors who reported the ‘amals in question] mentioned whatever judicial practice prevailed in his time or his country’. See al-‘Amalîyât…, p. 41; see also pp. 21, 27–8, 32, 34, 36, 40–1, 54, 67, 73–4, 82–3, 95–6, 118–19.Google Scholar

^{page 492 note 4} Above, p. 488.Google Scholar

^{page 492 note 5} See, for example, al-‘Amalîyât…, pp. 21–2, 31–2; a particularly illuminating incident is recounted by the author in his commentary, pp. 111–12.Google Scholar

^{page 493 note 1} See also pp. 8–9, 21–2, 23, 48–9.Google Scholar

^{page 493 note 2} Ibid. pp. 9, 11, 13, 18, 26, 48, 53.

^{page 493 note 3} Ibid. pp. 9, 12, 17, 55, 58, 62.

^{page 493 note 4} Ibid. pp. 118, 135; it seems that these two exceptions have their special reason: in the case of Ibn al-Tallâ’, the author felt the need to identify his authority because of the ‘strangeness’ of the ‘amal involved; in the case of al-Maknâsi the author wants to establish that when al-Maknâsî says ‘wa-al-'amal ‘indana’, he refers to the ‘amal of Fès and not to that of Meknès.

^{page 493 note 5} Ibid. pp. 20, 25, 33. See pp. 484–5, above.

^{page 493 note 7} Typical examples of these are: the Wathâ'iq of Ibn Salmûn al-Kinânî (d. 767/1366); the Nawazil of Ibn Rushd (d. 520/1126); the Aâm of Ibn Sahl (d. 482/2089); the Ajwibah of Ibn Lubb (d. 782/2380). These examples could be multiplied. For detailed biographical notices of these and other jurists mentioned below and a description of their respective works, see H. Toledano, The Chapter on Marriage…, appendix ii, indices I and II, pp. 211–23.Google Scholar

^{page 494 note 1} Ibid.

^{page 494 note 2} Among the earliest jurists quoted by Sijilmâsî as reporting ‘amal are: Ibn Zarnnîn (d. 339/951), and Ibn al-‘Attâr al-Andalûsi (d. 39/1009). Al-Zumûrî (d. 1057/1647), ‘Abd al-Rahmân al-Fâsî (d. 1096/1685), and al-Shaykh Mustafa (d. 1136/1724) are among the latest jurists quoted by the author. Similarly, a quick survey of the biographical notices of these jurists shows that they came from Egypt, Qayrawan, Tunis, Tlemcen, Fès, Sijilmâsâ, Granada, Cordova, Toledo, Elvira, and even Mecca (al-Hattâb, d.954/1547).Google Scholar

^{page 494 note 3} This work is quoted by Sijilmâsî in almost every paragraph and it is, in many instances, the main authoritative source for ‘amal. Its author is Mubammad b. Hârûn al-Kinânî al-Tûnisl, who died in 750/1349. Cf. Makhlûf, p. 211, no.736; Ahmad Bâbâ, pp. 242–3. For a description of the existing MS of this work, see Schacht, J., ‘Sur quelques Manuscrits de la Bibliothèque de le Mosqué d'al-Qayrawiyyîn a Fés’, Etudes d'Orientalism dédiées a la Mémoire de Levi-Provençal (2 vols.; Paris, 1962)Google Scholar (henceforth referred to as Schacht, Etudes… Levi-Provençal), vol. 1, p. 283, no. 20. Ibn Harûn's work is a Mukhtasar of K. al-Nihdyâh wa-al-Tamâmfi Ma‘rifat al-Wathâ’iq wa-al-Ahkâm, a famous work on wathâ'iq. The author of the K. al-Nihâyah… is the qalI Ibn Ibrâhim al-Anâri, better known as al-Matîtîi. The date of his death seems to be uncertain. According to Brockelmann, he died in 478 or 498. Actually, this is the death date of al-Lakhmî, with whom Brockelmann seems to confuse him. According to Makhlûf and Almad Bâbâ, he died in 570. Cf. Makhmîlûf, p. 163, flO. 502; Abmad Bâbâ, p. 199; GAL, I, p. 383, S. i, p. 661; cf. also W. Hoenerbach, Spanisch-Islamische Urkunden aus der Zeit der Nacriden und Moriscos (University of California Publications, Near Eastern Studies, vol. 3; Berkeley and Los Angeles, 1965), p. xliii, no. 27. In quoting the Makhtasar of Ibn Hârûn, Sijilmâsî refers to it either as Mukhtasar al-Matîtî, or al-Matitiyah; at times he simply states wa-qâla al-Matîtî. It is quite likely that even in the latter case he refers to Ibn Hârûn's Mukhtasar and not to the original work of al-Matîtî.

^{page 494 note 4} 'Abd al-Salâm Sahnûn b. Sa'îd b. Habîb al-Tanûkhi, known by his nickname Sahnûn, died in Qayrawan in 240/854. The Mudawwanah is one of the most celebrated MâlikI legal collections. It is accepted as the highest authority of all ancient Mdlikî digests and is frequently quoted by Khalll. (It is usually ascribed to Ibn Qâsim; actually, it was originally put together by Asad b. al-Furât and consists of Ibn Qâsim's answers to Asad's questions on the doctrine of Mâlik b. Anas.) Sahnûn worked out Mâlik's doctrines further, commented on Asad's text, and made many emendations that he received directly from Ibn Qâsim. In the Mudawwanah we have then Ibn Qâsim's account of the doctrine of Mâlik in Sahnûn's recension. Although the Mudawwanah does not report the judicial practice, often it is the basis for either the dominant opinion or the adopted judicial practice, and is therefore quoted quite frequently by Sijilmâsî. For a detailed account of Sahnûn and the Mudawwanah, see R. Hartmann, ‘Sahnûn’, E.I.²; GAL, I, p. 177, S. i, p. 299; Makhlûf, p. 69, no. 80; Ibn Farhûn, al-Dîbâj al-Mudhâhhab (Cairo, 1351/ 1938), p. 160. See also al-Qâîi ‘Iyâd's comments on the composition of the Mudawwanah in the last paragraph of the preface to his work, al-Tanbihât al-Mustanbatak ‘ala al -Mudawwanah, wa-al-Mukhtalitah. These comments are translated by J. Schacht in Etudes…Levi-Provençal, vol. 1, p. 281, no. 15.Google Scholar

^{page 495 note 1} Khalîl b. Ishâq b. Yâ'ûb, commonly known in North Africa as Sîdî Khalil, died in Egypt in 776. Khalîl, one of the great Mâlikî jurists, is the author of many works. One of these works is the Tawdîh, a commentary on the two Mukhtasrs of Ibn al-âjib. This work is said to have spread to both the East and the West and to have had an inspiring influence on Mâlikî jurists. Kalîl's most celebrated work, however, is his Mukhtasar. It is written in mnemonic verse, and in a style which is concise and often very enigmatic. The opinions expressed in it represent usually the best-attested opinions (mashhûr) of the Mâlikî school; but they are not always the ones adopted in judicial practice. Numerous commentaries and glosses have been written on the Mukhtasar, notably that of Abû ‘Abd Allâh Muhammad b. ‘Abd Allâh al-Khirshî (d. 1101/1690). Khalîls Mukhtasar does not usually report the judicial practice, especially when the latter diverges from the dominant opinion. Occasionally, however, the author would remark that the opinion adopted in judicial practice is the same as the one expressed in Khal'l's Mukhtasar. More important as a source of ‘amal is his Tawdîih, which is quoted by Sijilmâsî much more frequently. For Khalil and his works, see GAL, 11, p. 83, S. I, p. 538; Makhlûf, p. 223, no. 794;Google Scholar Ibn Farhûn, Dîbâj, p. 115; see also Ruxton, F. H., Mâlikî Law (London, 1916), pp. 9–13.Google Scholar

^{page 495 note 2} Abû al-'Abbas Ahmad b. Yahyâ al-Wansharîsi was born in Tlemcen in 834 but moved later to Fés, where he was its muftî until his death in 914/1508. He is famous for his Mi'yar, a widely known collection of fatâwi in eleven volumes. The full title of this work is: al-Mi'yâr al-Mughrib wa-al-jâmi' al-Mu'rib 'an Fatâwî ‘Ulamd’ Îfrîqiyâ wa-alMaghrib. Extracts of it have been translated by Amar, E., La Pierre de Touches des Fetwas, in Archives Marocaines (2 vols., 1910–1912).Google Scholar Al-Wansharîsî is also the author of many other important works. Two of these deal with the wathâ'iq literature; they are: (1) a commentary on the Wathâ'iq of al-Fishâlî (d. 779/1377), and (2) al-Minhâj al-Fâ'iq fî Aihkâm al-Wathâ'iq. Both the Mi'yâr and the Fâiq are quoted with regular frequency by Sijilmâsî. Other works of al-Wansharîsî that are quoted by Sijilmâsî are: K. Idah al-Masâlik; K. Ghunyat al-Ma'âsir wa-al-Tâlî; and K. Iddat al-Burûq. Cf. Makhlûf, p. 274, no. 1022; GAL, ii, p. 248. For a full description of al-Wansharisl's works, see E.Amar's introduction to his translation of the Mi'yâr, La Pierre de Touche…, 1.

^{page 495 note 3} See p. 494, n. 2, above.Google Scholar

^{page 495 note 4} Abû Bakr Muhammad b. M. b. 'Asim, died in 829/1426, was a celebrated Mâlikî justist and was qâdî al-Jamâ'ah in Granada. He is the author of numerous works but is better known for his important and authoritative manual of Andalusian 'amal, entitled Tahfat al-Hukkâmfi nakt al-‘Uqûd wa-al-Ahkâm. As in the case of other handbooks this work has been the subject of a number of commentaries, most notably that of the author's own son, Muhammad, who is usually referred to as ‘the commentator’ (al-shârih); cf. Makhlûf, p. 247, no. 891; p. 248, no. 897; Hoenerbach, p. xxxxiv, no. 3 GAL, si, p. 341, S. II. p. 375.Google Scholar

^{page 495 note 5} See p. 485, n. i, above.Google Scholar

^{page 495 note 6} See p. 484, n. 3, above.Google Scholar

^{page 495 note 7} Ahmad b. Muhammad Ibn 'Alî al-Maqarrî, died 770/5368. Cf. GAL, I, p. 753, 210. His Hisbâh has been published by the Ottoman Press in Egypt, 1312/1894.Google Scholar

^{page 496 note 1} Abû Nasr Ismâ'îl b. Harnmâd al-Jawharî of Farâb, Turkestan studied in Bagdâd where he died in 393/2002. His K. al-Sihahz fî al-Lughdh exists in two editions: Bulâq, 1865, and Cairo, 2956. Cf. GAL, 1, 128, S. I, p. 196.Google Scholar

^{page 496 note 2} For Muhammad b. Ya'qûb al-FîrûzâbâdI, see GAL, 11, P. 183, S. 11, p. 234. His Qâmiûs al-Muhît exists in a Cairo edition (. vols.), 1938.Google Scholar

^{page 496 note 3} al-'Amalîyât…, p. 32.Google Scholar

^{page 496 note 4} Ibid. pp. 19, 56.

^{page 496 note 5} Ibid. pp. 16, 20, 36, 49, 73, 97, 116, 117.

^{page 496 note 6} Ibid. pp. 4, 12, 14, 35.

^{page 496 note 7} Ibid. pp. 39, 44, 47, 48, 64, 73, 87.

^{page 496 note 8} See p. 494, n. 3 above.Google Scholar