In the early modern period (defined here as the sixteenth to early nineteenth centuries), the societies of the Saharan West appeared to be marked by a paradox. These lineage-based societies, bereft of large urban centers—except, perhaps, for Timbuktu—and largely beyond the sway of state actors, were nevertheless the cradle of powerful intellectual traditions whose references and resources were grounded in Islam. These traditions, propagated through the efforts of an autochthonous scholarly class, made a decisive contribution to the shape of both nomadic and sedentary societies. Beginning in the late Middle Ages, but especially from the seventeenth century on, a profusion of literary texts and works covering all aspects of Islamic knowledge (ʿilm) circulated throughout this vast desert space.Footnote 1 While it is hard to say whether this was specific to the inhabitants of the Great Desert and its Sahelian fringes, it is undeniable that this blooming of scholarship and its concomitant social effects run counter to a whole series of interpretative models of rurality in the premodern Muslim world, according to which urban culture and that of the rural environment represented two separate, distinct universes.Footnote 2
The impact of intellectual traditions on nomadic herders’ and oasis farmers’ way of life is clear if we consider the dissemination of the juridical-religious norms designated by the term “sharia,” systematized by the science of fiqh,Footnote 3 and commonly referred to as “Islamic law.” The archives produced by Muslim judges (qadis) and notaries, in parallel with the development of an enormous body of vernacular juridical literature,Footnote 4 contradict two major assumptions current in the social history of the precolonial Maghreb and Sahel. First, the study and practice of Islamic law can no longer be thought of as exclusively urban skills, which a handful of foolhardy missionary ulama struggled to promote in an essentially hostile environment and which remained profoundly alien in local, non-urban contexts. Second, life in the Saharan interior was not regulated solely by an oral, customary legislative regime that was by definition impervious to the stipulations of religious law, and which preferred the mediation of the saints to the judgments of the qadis. On the contrary, juridical regimes anchored in the normative system of fiqh proved perfectly able to find a place in sedentary and nomadic communities and thus gave rise to an autonomous juridical culture.Footnote 5
And that is not all. Any declaration concerning a question of local relevance made by a Muslim scholar in his capacity as jurist (faqīh, plur. fuqahāʾ) was necessarily framed according to the epistemological, symbolic, and ideological codes of an overarching system. The school of law (madhhab, plur. madhāhib), here that of Malikism, and the science of fiqh in general, were considered an immutable and unsurpassable framework for all normative reflection, since they derived their legitimacy from divine revelation.Footnote 6 In other words, jurists dealt with the specific problems of their local societies using abstract, technical language. It can thus be difficult to distinguish, at first glance, their pronouncements from those of Maliki jurisconsults in Morocco or Egypt during the same period. Their Saharan roots were absorbed into a discourse in which “local” matters were considered a normative problem for the Muslim community as a whole, requiring the attention of specialists—the fuqahāʾ—versed in the art of resolving such matters, and invested with a monopoly in this respect. This in turn raises the question of the methods and structures of doctrinal reflection that contributed to the formation of a sphere of social action overseen by a body of specialized agents: judges, jurisconsults, and notaries. It is vital, in my opinion, to analyze this circularity between a system of thought and the social environment if we are to understand the historical role of sharia and its authorized interpreters in the evolution of Saharan societies before the twentieth century.
This article addresses the modalities of this “constructivist” practice of Islamic law, focusing on a text dating from the first half of the nineteenth century and formulated by a jurist, Muḥammad al-Māmī wuld al-Bukhārī (d. 1282/1865), originally from the desert expanses of the Tiris region in present-day northern Mauritania. Al-Māmī, who was born in 1202/1788 and led a nomadic existence between the Tiris region and the valley of the Senegal River, began to write the Kitāb al-bādiya (Book of the Desert), a treatise addressing the adaptation of sharia to the needs of the pastoralist populations of his region, in about 1236/1821.Footnote 7 Neither the book nor its author is unknown to historians.Footnote 8 Though we possess little information on al-Māmī’s life, he was a key figure in nineteenth-century western Saharan scholarly culture on account of the extensive circulation of his writings, many of which have been edited in recent years. He appears to have been a veritable polygraph, credited in local tradition with writing several hundred works (doubtless an exaggeration) on various branches of Islamic knowledge, and was well known for both his doctrinal pronouncements, which were considered daring, and the breadth of his mainly self-taught erudition. His literary fame also derives from his poetical works, many of which were composed in ḥassāniyya, the local Arabic dialect, and from his versification of works in the “curriculum” of his era’s Muslim scholars.Footnote 9
The Kitāb al-bādiya was al-Māmī’s magnum opus. This work, considered a key text in the literary heritage of what, in the twentieth century, would become Mauritania, has regularly been used as a source by both Arabic-speaking and Western researchers.Footnote 10 Why, then, return to a book about which everything, it seems, has been said? It is in fact the very nature of these earlier studies that incites us to reexamine the work using a different scale of observation. This article seeks to move away from interpretations that essentially envisage the Kitāb al-bādiya as a source for the study of Muslim scholars’ discursive activity in the western Saharan sociopolitical arena. While this approach is inevitable when dealing with a text that incorporates so many ethnographic details and “demonstrat[es] an interest in social questions rarely foregrounded with such clarity,”Footnote 11 it nevertheless runs the risk of overlooking a second, no less fundamental, dimension of the work: the author’s ambition to be heard in an intellectual forum that was not restricted to western Saharan scholarly circles but rather integrated into a scholarly community that transcended local specificities. In considering the application of sharia in a nomadic environment, al-Māmī sought to make a personal contribution to the Maliki tradition of his time, which extended from Cairo to the camps of the Tiris, and he looked to this broader tradition as he reflected on the society to which he belonged. His book allows us to observe how the discourse of Muslim jurists drew on the environment in which it was produced to address general epistemological questions,Footnote 12 and how these scholars’ use of external interpretative frameworks and references shaped their perception of local cultural and societal forms. The purpose of the present article, then, is to analyze this local practice of a scholarly cosmopolitanism.
The Formation of a Shared Cultural Space
Between the fourteenth and the seventeenth century, the Saharan West underwent a process of social, cultural, and linguistic reconfiguration with the arrival of nomadic Arabic-speaking populations, the Banū Ḥassān and the Banū Maʿqīl, extending to the south the Hilalian migrations of the medieval period.Footnote 13 The intermingling of these pastoral groups with the local, mainly Berber-speaking population led progressively to the formation of a shared cultural space. Its inhabitants used a common vernacular Arabic dialect, ḥassāniyya, and considered themselves to form a collective group of “whites” (bayḍān, or bayẓān), in contrast with neighboring sub-Saharan populations regarded as “blacks” (sūdān).Footnote 14 Within this space, referred to locally as the “land of the whites” (trāb al-bayḍān),Footnote 15 there emerged a social order structured around two sociocultural poles that underpinned statutory groups organized according to the classifications of the Islamic system of genealogy (nasab).Footnote 16
The first of these poles comprised the ḥassān lineage groups (qabīla, plur. qabāʾil Footnote 17) that were genealogically linked to the Arabic-speaking immigrants and had acquired a reputation as “swordsmen”—hence the expression “warrior tribes” or “warrior groups” in the literature on the subject. These groups competed for access to grazing land and watering places, the control of caravan routes, and the tribute they raised from their clients, including numerous sedentary agricultural communities living in the Sahelian region bordering on the Sahara. During the latter half of the seventeenth century and over the eighteenth there emerged, among certain ḥassān lineage groups, a number of dynastic powers that sought to establish emirates gathering various groups of warriors and their dependents under the authority of local “big men” who assumed the title of emir.Footnote 18
The second pole was made up of lineage groups claiming religious nobility. This was founded on the learning (ʿilm), piety (ṣalāḥ), and sainthood (walāya) that distinguished particular individuals belonging to a shared genealogy (including its founding ancestor), and whose memory provided the group with a collective identity.Footnote 19 These status groups, or “marabout tribes,” as writers of the colonial period described them, were referred to by names that varied from region to region but which, in each instance, designated agents and institutions responsible for the transmission of religious knowledge in the Saharo-Maghrebi Islam of the period: zawāyā, referencing the religious institutions known as zāwiya; ṭulba, designating students of knowledge (ṭālib al-ʿilm); or mrābṭīn, which gives us the word “marabout.” These groups shared the prestige derived from their relation to Islamic history, with lineages claiming descent from the Prophet Muhammad (shurafāʾ); they could be found, in particular, near oases in fortified villages (ksar, plur. ksour) such as Oualata or Tichitt. Finally, these men of prayer and warriors stood in contrast to a subaltern population made up of tributary groups (znāgā, laḥma) subordinate to the ḥassān or the dominant religious lineages, communities associated with certain professions (blacksmiths, fishermen, griots), and populations of slaves (ʿabīd) or freed slaves and their descendants (ḥaraṭīn).
I will not undertake a detailed analysis of these three categories here. It should nevertheless be emphasized that they in no way formed a fixed, immutable system incapable of evolving over time. Genealogical claims and social status were constantly being renegotiated. Numerous ḥassān groups acquired zawāyā status, producing famous scholars, and the history of the region abounds in examples of “marabout” lineage groups capable of wielding pen and sword with equal dexterity. The conception of social order as an interaction between different status groups, together with the system of genealogical classifications, should therefore be seen as a discursive framework through which the various actors conceptualized their world: a framework that was shaped by its usages over time, and which resulted in the construction of a specific vision of the world and its hierarchies.
The Kitāb al-bādiya was closely inscribed in these dynamics. Its author was a member of the Ahl Bārik Allāh, a powerful zawāyā group that migrated in the early eighteenth century towards the plains of the Tiris, an area less exposed to the pressures of the ḥassān emirates than the Gibla region from which they came.Footnote 20 This episode can be linked to a violent conflict, the Shurr Bubba War, that erupted in the 1670s and served as a sort of foundational myth for bayḍān society. Led by a charismatic religious figure known as Abū Bakr b. Akdām Nāṣir al-Dīn (d. 1085/1674), the Tashumsha, a confederation of zawāyā that included the Ahl Bārik Allāh, pitted themselves against various ḥassān groups living in the south of present-day Mauritania, with the aim of constructing an Islamic state—or imamate—based on the application of sharia law. The sociopolitical issues at stake and the consequences of this confrontation, which ended with the bloody defeat of the Tashumsha, have given rise to diverging interpretations that will not be examined in depth here.Footnote 21 What is essential for our purpose are the traces that it left in the collective memory of Sahelo-Saharan populations. On the one hand, the conflict was seen as a symbol of the political dominance of the ḥassān over the zawāyā; on the other, the short-lived state of Nāṣir al-Dīn became a model for eighteenth- and nineteenth-century jihad movements across the region, particularly in the Sahel.
Both aspects are present in the Kitāb al-bādiya, as well as in other writings by al-Māmī. Though he recognized the hegemony of the ḥassān, he limited it to the Gibla region, thus implicitly echoing the Ahl Bārik Allāh’s claim to be a community of zawāyā with no obligation to pay tribute to warrior groups.Footnote 22 The assertion of their strength and autonomy in the power struggles between lineage groups in the Saharan West formed the sociopolitical backdrop to the writing of the Kitāb al-bādiya. According to Abdel Wedoud Ould Cheikh, the book’s main concern was the elaboration of a theological framework to legitimize the raising of tribute from the numerous client groups that were vassals of the Ahl Bārik Allāh.Footnote 23 Al-Māmī even appears to have nurtured hopes of vengeance for the Tashumsha. In one of his poems, he addressed a fervent appeal to the confederation to launch a new jihad aimed at restoring the honor of the zawāyā and throwing off the yoke of the ḥassān emirs.Footnote 24
The historical context seems to have been favorable to an intellectual enterprise of this kind. Since the late seventeenth century, the political landscape of the Sahel and the southern fringes of the Sahara had been shaken by a series of militant religious reform movements among the Fulbe populations, which resulted in the formation of several Islamic polities founded on the practice of jihad and the application of sharia. The most important of these were, in order of their emergence, the Torobe imamate of Futa Toro in the valley of the Senegal River (second half of the eighteenth century), the Sokoto caliphate in the north of present-day Nigeria, founded by Usman dan Fodio (d. 1232/1817), the caliphate of Hamdullahi in the Massina area of Mali, created by Aḥmad Lobbo (d. 1260/1845), and the empire resulting from the conquests of al-Ḥājj ʿUmar (d. 1281/1864), stretching over a large part of the western Sahel.
This is not the place to address in detail this pivotal period, which constitutes one of the principal objects of historiography on West African Islam.Footnote 25 Suffice it to note that the new polities exerted considerable attraction for zawāyā scholars, whose numerous links with Fulbe jihadists merit a dedicated study. The author of the Kitāb al-bādiya is the best illustration of these writers. His pen name pays homage to Almāmī ʿAbd al-Qādir Kane (d. 1221/1807), the founder of the Torobe state of Futa Toro. It is also known that al-Māmī lived in this region of the Senegal River valley for several years, even if the available sources offer no detail about his stay there. It is thus hardly surprising that al-Māmī repeatedly praised the jihad launched by his contemporary al-Ḥājj ʿUmar against “non-believers” (kuffār) and “bad Muslims” (fussāq).Footnote 26
A Methodological Debate
Even if al-Māmī’s text implies an essentially local audience and local concerns, the fact remains that this book by a nomadic scholar is a work of fiqh. Its Arabic title is polysemic in a way that the usual translation, The Book of the Desert, fails to capture. While the term bādiya did indeed refer to a geographical classification of a space inhabited by nomads—and hence to a type of civilization, or “Bedouinness” (badāwa, tabaddī)Footnote 27—it also invoked a normative categorization in the writings of Muslim jurists. This categorization was underpinned by a contrast opposing the bādiya to the world of sedentary populations (ḥaḍāra), the other key concept through which premodern Islamic thought envisioned human societies. Whereas the former was encapsulated in the emblematic but ambiguous figure of the Bedouin (badawī, ʿarab), evoking both the virtues of the noble aristocrat and the destructive strength of the infidel and outlaw, the latter was centered on the image of urbanity (tamaddun), an expression of cultural, intellectual, and moral refinement. In juridical discourse, Bedouinness and sedentariness thus served as overarching categories that subsumed the societal frameworks within which the norms of sharia were deployed.
This conceptualization implied a hierarchical vision of the normative space of the Islamic community (umma), with the adherence of the sedentary world to sharia doctrine considered a given. In al-Māmī’s reading, this stemmed from urban dwellers’ high degree of moral refinement, but also from the existence of state power embodied in a legitimate sovereign (imām) capable of imposing sharia norms.Footnote 28 In the Bedouin world, by contrast, the conditions of existence, beginning with the lack of what Ibn Khaldūn called “constraining” (wazīʿ) state authority, meant that the place of sharia within society was fragile and precarious. For al-Māmī, as for most of his Saharan colleagues between the seventeenth and nineteenth centuries, the essential question, therefore, was to what extent, and in what way, the ruling norms of the sedentary world, centered on urban state power, could become the law of a nomadic society when the constraints of its agro-pastoral economy appeared to be irreconcilable with the moral and legal principles of sharia.
From there, al-Māmī found himself confronted with a dilemma characteristic of Muslim jurists in the so-called “post-formative” or “post-classical” period between the twelfth and the nineteenth centuries.Footnote 29 How could unresolved questions be addressed when there was a consensus that “the gate of independent reasoning is closed” (insidād bāb al-ijtihād) and hence that the jurist’s task essentially resided in rigorous observance (taqlīd) of the doctrines of the juridical school to which he belonged? This self-censuring dogma prevailed definitively in Sunni law from around the twelfth century. It reflected the end point of a centuries-long process through which the madhhab came to form the sole legitimate framework for reflection on sharia.Footnote 30 But how were scholars to comply with this dogma when local specificities meant there was an absolute need to provide divergent readings of the ancients and offer autonomous statements—a situation which might result in innovations, suspensions, or even derogations? Were social constraints and imperatives sufficient justification for legitimizing a closet form of normative positivism? A reading of the Kitāb al-bādiya allows us to consider in a new light debates on the alleged disappearance of innovative juridical-religious thought (ijtihād) in favor of what twentieth-century Islamicists and Islamic reformists disdainfully termed “blind imitation” of established doctrines (taqlīd).Footnote 31 In the introduction to the first chapter of his book, al-Māmī writes:
The scholars of our times have divided into two factions; [there is] that of theorists (uṣūlī) who lean towards independent reasoning (ijtihād), but without openly claiming allegiance to it, or being accused of so doing. They criticize strict observance of the doctrine of the school (taqlīd). … [And then there are] those who maintain that they “share the views of Khalīl,” and turn towards jurisprudence (fiqh), yet without attaining its objectives (maqāṣidahu). It can hardly be said that either of these factions aspires to address, at the same time, both the vast questions of jurisprudence (masāʾil al-fiqh) and those questions linked to the foundations of the law on which it is legitimate to issue legal opinions (masāʾil al-uṣūl al-mubīḥa li-l-futyā). On the contrary, each side vilifies the other.Footnote 32
This is a far cry from the contrived Orientalist narrative according to which ijtihād disappeared once Islamic law entered the state of “sclerosis” into which “all original thought was obliged to retreat, only expressing itself in abstract constructions without influence either on the solutions produced by positive law or on the classical theory of the foundations of the law.”Footnote 33 What is striking about the passage is, on the contrary, the dichotomy that al-Māmī established between those who undertook an exegesis akin to ijtihād, which he explicitly associated with reflection on the epistemology of the science of the law according to Islam (uṣūl al-fiqh),Footnote 34 and those who professed to be merely faithful followers of their own particular school’s doctrine (muqallidūn), adhering to the model set out in the key Maliki reference manual of the early modern era, the Mukhtaṣar, written by the Egyptian jurist Khalīl b. Iṣḥāq al-Jundī (d. 767/1374).Footnote 35 Yet the tension between the two did not necessarily stem from antagonism between one group demonstrating normative inventiveness and another conforming slavishly to tradition. Rather, the debate reveals a conflictedness almost inherent in the institution of the law as both a set of rules governing society and an object of knowledge, concentrated in the ever-difficult relations between legal practitioners and legal theorists.Footnote 36 Thus, while the “students of the fundamentals (ahl al-uṣūl) accuse[d] practitioners of the law (fuqahāʾ) of ignoring numerous questions pertaining to legal methodology,”Footnote 37 the practitioners called for recognition of their specific expertise and intellectual tools, claiming to be better equipped to master their school’s vast bibliography, accumulated over the centuries, and to be more familiar with the concrete contexts in which the norms of sharia were to be deployed.
The argument put forward by the “Khalīl camp” highlights a central problem for the juridical culture of the period. In a normative system entirely grounded in the interpretative activities of jurists, the practice of taqlīd—that is, identifying within a given school which norm to apply in a particular case—was fraught with difficulties in light of the immensity of the textual heritage to be perused and the complexity of the deductive rules to be observed. Until the latter half of the nineteenth century, Islamic law had no formally instituted legal code, and works such as Khalīl’s Mukhtaṣar should be considered as doctrinal digests which were, moreover, practically incomprehensible without the mediation of a commentary. What Sherman Jackson calls the “regime of taqlīd” thus involved not unreflective fideism, but an artful search (baḥth) for references.Footnote 38
Al-Māmī’s description of the legal theorists of his time offers a hint of just how constraining the effects of this reflective framework could be. Even though their activities concerned the study of the “foundations of the law” (uṣūl al-fiqh), the author considers them only in terms of issuing fatwas relating to “those questions linked to the foundations of the law on which it is allowable to give legal opinions” (masāʾil al-uṣūl al-mubīḥa li-l-futyā).Footnote 39 Thus, while presenting themselves as an intellectual elite, these theorists still bowed to the dogma of the “closure of the gate of ijtihād.” A similar remark can be made apropos of al-Māmī’s project to draw up a set of legal dispositions for use by the nomadic populations of the Saharan West. The writer unambiguously indicates that he conceives his interpretative activities strictly within the framework of post-Khalīlian Malikism, and gives an assurance in his foreword that the book is based solely on textual references drawn from the Maliki school.Footnote 40 This posture is subsequently condensed in the formula introducing each of his doctrinal pronouncements: “I affirm, but I myself have nothing to affirm” (qultu wa lā qawlan lī).Footnote 41
Al-Māmī nevertheless observed a contradiction in the criticism leveled by theorists at the work of their practitioner colleagues: the former accused the latter, he claimed, of “remaining rigidly attached to their texts (nuṣūṣ) and failing to take account of juridical maxims (qawāʿid), customary practices (ʿawāʾid), and considerations of general interest (maṣāliḥ), while at the same time forbidding them [as muqallidūn] from invoking such sources.”Footnote 42 In reality, al-Māmī identified with neither of the two camps: he considered that practitioners’ disinterest for the theorists’ approach demonstrated a regrettable intellectual laziness, while the head-on, disdainful opposition of theorists regarding the legal opinions and judgments set out by their colleagues was “doomed to failure.”Footnote 43 On the contrary, these extreme positions were what enabled al-Māmī, as a good Sunni Muslim, to defend a via media presented as the essence of Islamic normativity: “This is how our Law (sharʿunā) proceeds in the [evaluation] of things; it occupies a position midway between the school of the proponents of free will and that of the partisans of predestination (madhabay al-qadariyya wa-l-jabariyya), between the abstract and the concrete, between the Law of Moses and that of Jesus.”Footnote 44 Even given the topos of lauding the middle ground among Sunni writers, it is possible to trace the contours of this central path that the author considered would reconcile the two camps. Al-Māmī proposed a sort of methodological compromise, which encouraged practitioners to borrow three hermeneutic procedures from the theorists: consideration of local customary practices, textual extrapolation (takhrīj), and the weighing up of divergent opinions (tarjīḥ).Footnote 45 From this perspective, the solutions he developed for adapting sharia to the conditions of existence in the Saharan West represented an empirical testbed for the compromise he promoted.
A Set of Laws for Nomads
After a brief preface, the Kitāb al-bādiya is divided into four chapters of unequal length, called tamliyya. This untranslatable play on words refers to the fact that each chapter begins with the conjunction lammā, meaning “when” in Arabic. The first three chapters are fairly short, taking up about ten pages each in the edition consulted for this article, whereas the last chapter extends to a hundred or so pages. Chapters one to three form a sort of introduction before we get to the heart of the matter, a point confirmed by the author himself when he describes the fourth tamliyya as the “core of the treatise (ʿumdat al-murakkab), whereas the preceding three merely represent the prelude and the setting (ikhmāl).”Footnote 46 This setting is nevertheless important, as it makes it possible to answer a fundamental but hitherto unresolved question: Does the opposition between practitioners and theorists alluded to by al-Māmī refer to a dispute among Saharan scholars or to a much broader debate involving Maliki jurists as a whole—or might it even represent nothing more than a figure of speech?
It is undeniable that, in his technical writing, al-Māmī always deliberately extended local issues towards a global audience of Islamic scholars. His vagueness about his arguments’ level of relevance was intentional, related to the worldview of an early nineteenth-century Muslim scholar whose reading of local, necessarily secular facts was shaped by his belonging to a sacred, universal community. Yet it must be recognized that the author’s proposals in the first three chapters aimed at nothing less than explicitly contradicting the region’s principal authority on legal theory, Sīdī ʿAbd Allāh Wuld al-Ḥājj Ibrāhīm (d. 1233/1817). Originally from the oasis of Tidjikja, located in the center of present-day Mauritania, Wuld al-Ḥājj Ibrāhīm was the author of an extensive body of literary works and enjoyed a considerable reputation among western Saharan jurists as the region’s first great specialist of the science of uṣūl al-fiqh.Footnote 47 His principal work, the Marāqī al-suʿūd fī uṣūl al-fiqh (Stages towards Happiness in the Foundations of the Law), a long didactic poem to which he appended a voluminous commentary, was widely diffused even beyond the Sahelo-Saharan space and is still used today in Mauritanian centers of religious education.
This eminent scholar and his disciples were the object of al-Māmī’s allusion to the “faction of theorists (uṣūlī).” In a short text aimed at the Refutation of the Vagabonds and Those Who Have Lost Their Way, and Who Quench Their Thirst in the Pools of Questions of Juridical Practice,Footnote 48 Wuld al-Ḥājj Ibrāhīm, who received part of his training in Fez, severely criticized local qadis and muftis. Multiplying the bibliographical references to his Moroccan teachers, he vigorously denounced the propensity of western Saharan jurists to legitimize customary norms (ʿurf) and called for the strict application of legal opinions unanimously recognized as authoritative (mashhūr) within the Maliki school. Such was his zeal in encouraging his colleagues to adhere, as muqallidūn, to generally accepted solutions that he declared invalid any judgment (ḥukm) or fatwa that contradicted this principle by basing itself on opinions considered marginal (shādhdh) or on local customary practices.Footnote 49
Al-Māmī protested against such rigidity. Though the surviving sources tell us nothing about the circumstances in which the controversy arose, he responded to Wuld al-Ḥājj Ibrāhīm’s pamphlet with a gloss (ḥāshiya) whose title, The Riposte of the Vagabonds and Those Who Have Lost Their Way, clearly set out his intentions.Footnote 50 The fact that he replaced “refutation” (ṭarad) with “riposte” (radd) suggests that he felt under attack from the great legal theorist. This may appear surprising, as Wuld al-Ḥājj Ibrāhīm belonged to the generation of al-Māmī’s teachers, and al-Māmī accorded him the honorific title of “our shaykh.” In his gloss, al-Māmī nevertheless did his best to firmly fend off the accusations laid against the region’s jurists by himself pressing into service the literary heritage of Malikism. The Kitāb al-bādiya pursued this apology. The first chapter even took up directly the thread that runs through the gloss, insofar as it essentially consists of a commentary on the title of Wuld al-Ḥājj Ibrāhīm’s text. Al-Māmī followed this with a general presentation of the reasons for which it was legitimate, not to say indispensable, in the decision-making process, to take local customary practice into account and sometimes to have recourse to minority normative positions, using techniques of textual derivation and the evaluation of divergent opinions.
Al-Māmī’s criticism of Wuld al-Ḥājj Ibrāhīm’s intransigence is interesting here not so much for the juridical arguments he set out as for its underlying theme: that the specific characteristics of life in the Sahara made it impossible to respect the restrictions imposed on muqallidūn jurists. Renouncing all initiatives of normative adaptation and creation would, he implied, result in the suspension of the juridical order (tʿaṭīl al-aḥkām)—which would be tantamount to abandoning certain pillars (arkān) of religious practice such as fasting or canonical prayer.Footnote 51 In support of his position, al-Māmī cited the words of a jurist from the oasis of Shinqīṭ, in the Adrar region of Mauritania, Muḥammad Ibn al-Aʿmash (d. 1107/1695–1696): “We do not belong to those entitled to issue fatwas, and yet it is indispensable that we provide answers, given our situation.”Footnote 52 The quotation was justly chosen. The collection of fatwas attributed to Ibn al-Aʿmash is one of the oldest known examples of juridical responsa (nawāzil, ajwiba) in the western Sahara, marking the beginning of a remarkable development throughout the region,Footnote 53 and the legal opinions of this renowned mufti are omnipresent in the writings of local eighteenth- and nineteenth-century jurists. Al-Māmī himself referred to them a number of times in the Kitāb al-bādiya. In his appeal for greater flexibility in juridical reflection, he thus co-opted the authority of the founding figure of the jurisprudential tradition in the Saharan West.
Such flexibility was a response to the constraints of both chronology and geography. It also raised the question of how the working conditions of jurists during the early centuries of Islam had differed from those prevailing in the Saharan West in al-Māmī’s day:
The scholars of the [early] garrison towns (amṣār),Footnote 54 given their assiduity in reading, the few preoccupations that distracted their minds, the abundance of books at their disposal, and the funding of their costs by the state treasury (bayt al-māl), were able to engage in constant correspondence on juridical problems. Our situation is totally different. Given the distances separating our camps and our sources, it is not possible to consult another [colleague on any matter]. We therefore judge particular cases (nawāzil) without referring to authoritative texts, using either conjecture or analogy (qiyās).Footnote 55
This depiction was doubtless somewhat exaggerated. The abundant literature in fatwa collections, along with the numerous epistolary exchanges between Saharan jurists preserved in the family archives of their “heirs,” are ample evidence of a generalized practice of mutual consultation, sometimes over very long distances. Al-Māmī’s discourse reflects the persistence, among ulama, of urbanity as the ideal model, in comparison to which local realities could but prove flawed. Nevertheless, the argument is intriguing: doctrinal accommodations derived their legitimacy from conditions of existence in the Bedouin environment, which the author associated with the myth of the golden age of Islam.
In chapter four of the Kitāb al-bādiya, al-Māmī set out the key aspects of this task of accommodation, which he considered necessary for the maintenance of a normative order grounded in sharia law in the Saharan West. This is the part of the book that offers the richest ethnographic details concerning bayḍān society and, for this reason, was the first to capture the attention of researchers.Footnote 56 Its catalog of customs and usages is nevertheless secondary to the doctrinal argument. The key issue is working out how fiqh could take into account social and cultural realities that differed from those of the city-dweller’s universe (ḥaḍāra). The author begins his reasoning by highlighting this lack of doctrinal precedent:
It seemed to our scholars … that there are numerous questions specific to nomadic populations on which no authority has made pronouncements (ghayr mutakallim fīhā) and on which no written document (muṣannaf) exists. … This is because juridical books (taṣānīf) come from towns (madaniyya). But, in most cases, town-dwellers only deal with their own affairs or, at best, the problems that are common to them and us. They say nothing about most questions specific to nomads, either because they are incapable of imagining [these questions] in the context of their own living conditions, or because of the prohibition (ḥurma) against speaking of customs (ʿurf) other than those of their own land (balad).Footnote 57
It is a fact that many normative questions raised by life in the bādiya called for solutions other than those worked out by urban jurists. Al-Māmī cites the example of obligatory alms (zakāt). In a barely monetized society, where livestock rearing represented the principal source of wealth, zakāt could only be paid in the form of “fungible goods and animals” (bi-l-ʿurūḍ wa-l-ḥaywān), whereas manuals of fiqh required payment in dirhams or dinars.Footnote 58 The situation was even more complex regarding property in mortmain (awqāf, aḥbās). How could payment be made in the form of cattle to provide for the upkeep of a mosque, and, thereafter, to ensure the perpetuity of such an endowment in the absence of an overseer (nāẓir), as was customary in urban contexts?Footnote 59 What is more, places of worship in the Bedouin environment rarely possessed stable physical structures: in general, they were no more than sandy areas marked out within the camps. For this reason, al-Māmī validated the local practice that consisted of dividing up, not the usufruct (ghilla) of the property held in mortmain, but the object itself, in this case the overall herd of livestock; at the same time, he advised against the procedure of drawing lots (qismat al-qarʿa) as a means of allocating ratios to beneficiaries because of its excessive legal complexity, which he considered inappropriate for the needs of nomads.
Public Order in the Bādiya
For al-Māmī, the conception of a Bedouin normative space was closely linked to the question of the exercise of power. This is in no way surprising as, for theorists of the state in premodern Sunni Islam, the judicial function was one of the principal prerogatives of a legitimate sovereign (imām). The latter, who was responsible for ensuring the rule of sharia law, delegated the task to qadis through a formal investiture procedure (tawliya) and intervened in a variety of ways, depending, of course, on the period and the geographical context, in the appointment of muftis. But in those parts of the Muslim world where no such regulatory authority existed, that is, in lands with no bond of allegiance to an imam (bilād al-sāʾiba), who could ensure full integration into the community of Islam?Footnote 60 Such was the case of the Saharan West, which, according to al-Māmī, formed a no man’s land between “the two imamates,”Footnote 61 that is, the Alawite sultanate of Morocco and the Torobe theocracy of Futa Toro.
Al-Māmī adopted a position widely shared by jurisconsults in the early modern Sahara and Maghreb, which consisted in recognizing political actors at the local level.Footnote 62 These included the leaders of warrior groups—above all the emirs—who “exercise de facto power” (mutaghallib), but also the councils (jamāʿa) made up of the notables (aʿyān) of a circumscribed collectivity, whether a lineage-based group or the inhabitants of an oasis village. The council, conceived as the “community of Muslims” (jamāʿat al-Muslimīn), was considered to be the only institutional actor at the local level capable of “replacing the legitimate sovereign in his absence” (taqūm bi-maqām al-imām). Thus, the two principal forms of political authority, personal power founded on force (jāh) and the oligarchy of nobles, were conceptualized and accredited according to the criteria of fiqh and Islamic tradition in general. Al-Māmī conformed to an accommodating, somewhat stoic position ultimately adopted by a majority of Sunni jurists vis-à-vis established powers in order to ward off the threat of “discord” (fitna) and preserve public order. This position—that tyranny is better than anarchy—had become a veritable leitmotif of political thinking in Sunni Islam since the decline of the Abbasid caliphate in the tenth century and the emergence of various dynastic states throughout the Muslim world.
Al-Māmī therefore recognized the authority of ḥassān leaders for the sake of preserving the public good (maṣlaḥa),Footnote 63 even if he was not prepared to accept the religious legitimacy of this domination based on the seizure of power by force alone (taghallub). In his opinion, obeying (ṭāʿa) the orders of warrior groups and, above all, satisfying their fiscal demands, were measures dictated purely by necessity (ḍarūra), taken in order to protect the population against the very real threat of exactions. He compared the different forms of tribute (mudārāt) levied upon the zawāyā groups by warrior chiefs to the walls that surrounded every zāwiya edificeFootnote 64: the protective function of the building in the sedentary environment was fulfilled, in the nomadic context, by the payment of tribute, described as an act of charity (ṣadaqa) and considered obligatory for each member of the community. From a juridical perspective, however, this line of argument was problematic. The levies raised by warrior groups constituted illegal taxes. How could something be declared obligatory if it lacked any legal basis and even appeared to be an injustice (ẓulm)? Al-Māmī cited the principle of the “choice of the lesser evil” (irtikāb akhaff al-ḍararayn).Footnote 65 This was a consensual position among eighteenth- and nineteenth-century Saharan jurists, some of whom even went so far as to authorize the qadis or community councils to make forced sales of goods so as to guarantee the payment of such levies.Footnote 66 Al-Māmī nevertheless insisted on the exceptional nature of this solution, which he hoped would be provisional, implicitly referring to the jihad of Nāṣir al-Dīn: “If it can be in the public good (al-maṣlaḥat al-ʿāma) to forgo paying tribute (mudāra), as was the case for a certain time in the Gibla, because justice had manifested itself there (li-ẓuhūr al-ʿadl), … we then revert to the original situation (aṣl), which is the non-obligatory character (ʿadam al-luzūm) [of these levies].”Footnote 67
Al-Māmī’s insistence on the utopic hope of creating an authentic Muslim polity distinguished his position from that of other Saharan jurists, for whom this revolutionary option fell into the realm of the prohibited. Indeed, the eminent scholar Ibn al-Aʿmash had actively opposed the pretensions of Nāṣir al-Dīn, whom he accused of heretic proselytism.Footnote 68 Seen from this perspective, the attitude of the Kitāb al-bādiya’s author towards the states originating from the Fulbe jihads was particularly remarkable. He considered them to be not the regrettable, ephemeral result of overreaching ambitions that had created discord (fitna) among believers, but Islamic polities as legitimate as the Sharifian Sultanate of Morocco.
The argument hinged in particular on the question of political actors’ ability to impose the corporal punishments prescribed by sharia law (iqāmat al-ḥudūd), such as the amputation of a hand in cases of theft (saraq) or stoning as a sanction for certain types of sexual relations judged to be illegal (zinā).Footnote 69 While in reality these punishments were rarely implemented in medieval and early modern Muslim societies, they were nevertheless the symbol par excellence of the existence of Islamic state power.Footnote 70 This is a complex question in itself, but it is important to note that according to the norms of fiqh, the ḥudūd aimed to punish those transgressing the “rights of God” (ḥuqūq Allāh), that is, the limits—the literal meaning of the term ḥudūd (sing. ḥadd)—that the Islamic revelation had set for human acts, and of which the imam was the duty-bound guarantor.Footnote 71 The introduction of this penal regime was one of the stakes in West Africa’s jihad movements, even if the concrete modalities of its application at the local level remain unclear.Footnote 72 In any event, al-Māmī affirmed that he saw with his own eyes the “Almāmī Abū Bakr ensure the implementation of the ḥudūd at Jawluma.”Footnote 73 The author of the Kitāb al-bādiya used the theme of corporal punishment to establish a close link between the emergence of a powerful political actor—whether a strongman (mutaghallib) converted to the religious cause or a community assembly (jamāʿa) respectful of the norms of sharia—and the construction of an Islamic state: “In a place where there is no such person wielding power, the situation that prevails shall be the same as among people in the area between two imamates: there can be no application of corporal punishments until such a figure emerges, unless there is a community assembly within which there is no danger of discord.”Footnote 74
No such thing could take place, therefore, in the bādiya of al-Māmī’s day, where recourse to physical punishments—including the law of retaliation—would inevitably run the risk of unleashing interminable cycles of violence. For this reason, the practice (ʿamal) of substituting fines (ʿuqūbāt al-māl) for these punishments was generalized throughout the early modern Saharan West, a usage that incidentally echoes the customary dispositions (ittifaqāt) of the Berber-speaking populations of southern Morocco. Following the majority of Saharan jurists, al-Māmī called for a pragmatic approach to the question. In his view, such adaptations were grounded in the fact that the “prescriptions of the sacred Law follow the interests of the public good.” One only had to look at the history of the revelation according to Islam: “This is why the Law of Moses excluding the granting of pardon (ʿadam al-ʿafaw) differs from that of Jesus, which, on the contrary, makes it obligatory with respect to crimes of blood, for what is defined as the public good varies (li-ikhtilāf al-maṣlaḥa) [from one period to another].”Footnote 75
The variability of the public good also concerned the spatial conditions of human existence. This intersected with the theme of the opposition between the city-dweller’s world (ḥaḍāra) and that of the Bedouin (bādiya) mentioned above. For al-Māmī, urban civilization (tamaddun) was a space in which respect for the norms of sharia was clearly visible: women were veiled, the segregation of the sexes was a given, religious knowledge was taught as it should be, and Islamic punishments were administered. The examples referenced by the author concern both the judicial order and public morality established as a form of cultural distinction. Pondering the concept of tamaddun, he asked: “Is it a matter of being effectively attached to an urban jurisdiction or of the high morality of the urban environment?”Footnote 76 While the question was doubtless in part rhetorical, the two aspects were nevertheless intrinsically linked. In the framework of fiqh, reflection on the role of law in society was conceived as a contribution to what the Ottomanist Leslie Peirce has termed a “common moral citizenship,”Footnote 77 even though Muslim jurists were well aware of the potential tension between the ethical-moral duties of the believer (diyāna) and the specific demands of legal rationality.Footnote 78
However, another set of questions emerged from this legal and cultural subordination of the Bedouin world to that of the city. Was it incumbent on the inhabitants of the bādiya to ask city-dwellers for their protection as clients (mawālī), as might be suggested by a whole series of traditions, going back to the first period of Islam, that al-Māmī adduces in his text? Was it not said that the Prophet Muhammad had exhorted a believer “not to live in villages so that [his] knowledge would not be lost”?Footnote 79 What, then, should one make of the position of the great seventeenth-century Moroccan man of letters, al-Ḥasan b. Masʿūd al-Yūsī (d. 1102/1691), who wrote in glowing terms of Bedouin village life?Footnote 80 The representation of the Bedouin universe in the writings of medieval and early modern Muslim thinkers was characterized by a profound ambivalence. The bādiya inspired at once fear and admiration. At times, it was lauded as the refuge of a type of social life characterized by a supposed original “purity,” conveyed in particular through verbal interactions—the topos of the “clear” language of the Bedouins—while at others it was denounced not only as a hotbed of impiety and ignorance but also, on account of the uncontrollable forces it harbored, as a constant threat to urban order.
Regrettably, al-Māmī did not develop his interpretation of this theme, which was also the basis of Ibn Khaldūn’s theory of civilization. He limited himself to defining a legal system according to remoteness from an urban center: “Those who still find themselves in a contact zone (ahl masāfa al-ʿadwā) [adjacent to a town] should not act outside of the urban jurisdiction (aḥkām al-mudun) since that law can potentially reach them, and what is close to something shares its juridical status.”Footnote 81 Beyond this sphere of influence lay the vast, ill-defined expanse of the bādiya, a land of anarchy in which “the obligations imposed by God, and that come under the aegis of the sovereign and his agents, are forgotten”Footnote 82—unless, that is, a leader or community assembly emerged to take the implementation of sharia in hand.
The connection between the implementation of a judicial system and the preservation of a public order embodying the ethical and moral demands of the divine legislator was, however, not envisaged by al-Māmī solely through the prism of the absence, in Bedouin territories, of its city-based custodians: urban culture and the imam. The accommodations required in the name of the public good also depended on the constraints inherent to the nomadic life of the bādiya’s inhabitants. Al-Māmī cited, for instance, the question of the strict segregation of the sexes, as well as that of the clothing restrictions imposed on women and to a lesser extent men, obliging them to cover what Muslim jurists considered to be intimate parts of the body (sitr al-ʿawra).Footnote 83 For the author, regular migrations between grazing areas, along with unavoidable social mixing in the camps, were all cases of absolute necessity (ḍarura) that authorized the partial suspension of the norms applicable in such matters.
The question of clothing restrictions and the segregation of the sexes was nevertheless a sensitive issue, as it positioned the body as a nexus between the social and the symbolic orders. Al-Māmī convincingly mobilized multiple references and citations to establish a doctrinal basis for his position, underscoring an analogy with the requirements of different social contexts: medical consultations, giving testimony before a judge, or the frequentation of markets.Footnote 84 At the same time, while he showed leniency towards other local practices that conflicted with the norms of fiqh, such as various customary livestock transactions often bordering on usury (ribā),Footnote 85 on this question, al-Māmī seems to have conceded only the absolute minimum required so as not to seriously hamper the mobility of pastoralist groups. He warned his readers that “what cannot be avoided, such as the uncovering of the extremities not because of an intention to expose one’s body, but because of the imperatives of travel, nevertheless does not override the principle of the obligation to cover oneself.”Footnote 86
Al-Māmī was even more intransigent regarding the taboo on entering a dwelling (bayt)—in this case, a tent—without prior authorization (istīdhān), which might “expose” female members of the household to indiscreet gazes. He recognized that life in a nomadic camp made it difficult to maintain such norms of propriety, which existed to preserve the familial group’s privacy (ḥarīm) and characterized the modes of cohabitation in Muslim towns and villages. But he once again deplored the absence of an Islamic state authority, since “abandonment of the rule that authorization must be requested is tantamount to the abandonment of one of the functions that lie within the remit (wilāya) of the authority responsible for public order (muḥtasib).”Footnote 87 In the context of the bādiya, the public office of muḥtasib was transformed into an individual obligation. In the name of the imperative enjoining Muslims “to command right and forbid wrong,”Footnote 88 individuals were thus to do their utmost, according to their means, to ensure compliance with this norm, which was closely associated with Quranic injunctions and prophetic traditions.
The derogations concerning the segregation of the sexes were, therefore, exclusively applicable in exceptional conditions. The exercise of power over the body proved to be the focal point that crystallized the dogmatic authority on which the whole of al-Māmī’s argument was based. His admonition concludes with a reference to the moral excellence of the way of the Sufis (madhhab al-ṣūfiyya), said to abstain (ijtināb), on principle, from all contact with “strangers,” for “if the first way is that of the rules of sharia (quyūd al-sharīʿa), the second filters access to divine truth (aghlāl al-ḥaqīqa).”Footnote 89 The digression on Sufism may appear surprising: it is hardly mentioned elsewhere in al-Māmī’s book, even though he forged a reputation as a mystic and saintly miracle-worker. However, in light of the forms and modes of normative perception I have attempted to reconstruct in this article, the unexpected incursion of the other major pillar of early modern Muslim culture would appear to be the logical conclusion to his reasoning. It is a sign of the integration of reflection on juridical rules into a discourse whose ultimate objective was the quest for salvation through the construction of ethical and moral exemplarity. The most obvious contemporary manifestation of this was the practice of Sufism. At the sociological level, the idealization of a life rooted in the scrupulousness (waraʿ) that should nurture each social act—including the law—lay at the basis of the symbolic power exercised by the class of scholars to which al-Māmī belonged.
The Kitāb al-bādiya reveals the worldview of a jurist and cleric who was doubly marginal according to criteria which, in a field still profoundly marked by the Orientalist heritage, tend even today to shape research into the history of ideas in Islam. Its author lived in a period long considered to be of scant scholarly interest in comparison with the intellectual exploits of the “great figures” of the Middle Ages and the protagonists of Muslim modernism from the latter half of the nineteenth century on. Despite the significant methodological and conceptual renewal that has taken place since the late 1970s, the intellectual history of Islam is still often seen through the prism of a sort of clash of civilizations pitching “innovation” against “decadence,” “renaissance” against “decline,” and “creation” against “imitation.”Footnote 90 From this perspective, texts such as the Kitāb al-bādiya have generally been relegated to the rank of secondary writings, whose sole merit is as documentary sources for studying the “mental universe” of a particular period.Footnote 91 Moreover, al-Māmī belonged to what is considered a peripheral space both in Islamic studies focusing on the “central lands of Islam”Footnote 92 and in research into West African Islam, whose focus is predominantly Senegal, Mali, and Nigeria. “Important” things took place not in the nomadic camps of the Saharan West but in great cities such as Cairo or, at a push, Timbuktu. Seen in this light, al-Māmī’s claim to belong to a “betwixt and between” space (bilād al-fitra) continues to possess unsuspected relevance.
Yet the Kitāb al-bādiya warns against the sort of intellectual history that evaluates its objects and sources in terms of their distance from a “center,” whether geographical or chronological, literary or epistemological. Al-Māmī’s purpose was to set out a position in the juridical debates of his times. In doing so, he brought together a mix of scholarly references in a subtle, complex interplay of perspectives. Some of his topics, beginning with the question of recourse to ijtihād, preoccupied scholarly circles across the Muslim world of his day, in India or Damascus as much as the Saharan West; others deal with normative problems more closely linked to the author’s environment, but their vernacular characteristics are absorbed into a doctrinal demonstration presented as a contribution to the Maliki tradition. To further confuse the picture, al-Māmī legitimized his reflections on the adaptation of sharia to the Bedouin world—which have no known equivalent in the Maghreb or the Middle East—by asserting his own marginal position within the Muslim “Republic of Letters.”Footnote 93 it was the silence of urban erudition and of the authorities of the past that made it both conceivable and necessary to produce new solutions based on Maliki textual references. The argument that the “late” nature of a work originating on the “fringes” of Islam accounts for such intellectual dynamics hardly seems to resist scrutiny. Rather, what emerges from a reading of the treatise is the threefold question of how an author such as al-Māmī appropriated the cultural resources of his period and background, how he mobilized them in his own discourse, and how the hierarchies, classifications, and “centers” presupposed by the scholarly culture to which he belonged participated in this process.
The Kitāb al-bādiya thus invites us to shift our gaze away from the reconstruction of intellectual genealogies, still largely prevalent in Islamic studies, towards an analysis of scholarly practice. This article has sought to restore progressively the different contexts in which its author’s reasoning was inscribed: that of a religious notable from the Saharan West, a member of a powerful zawāyā group, a nostalgic admirer of the exploits of Nāṣir al-Dīn, and a fervent supporter of the leaders of the jihad of his day; that of a Maliki jurist reflecting on his society within the framework of the culture of fiqh; and that of a nomad pondering the legal and religious implications of the cultural distance and political divergence that separated his world from that of the towns. Such an approach also requires us to underscore the silences we observe in his discourse. At no point did al-Māmī mention, for instance, the institution of slavery, which was nevertheless fundamental to the social organization of the whole region, and partly remains so to this day.Footnote 94 He likewise remained silent regarding the presence of Europeans on the Atlantic coast since the fifteenth century, including the French merchants of Saint-Louis who were closely involved in the gum arabic trade with the bayḍān nomads of the Gibla. For al-Māmī, what was most important about life in the bādiya, and thus the necessary focus of jurists’ normative efforts, was the interaction between the Arabic-speaking nomads and, in particular, between the different zawāyā groups. These silences would doubtless merit further examination. Nevertheless, a close reading of this tapestry of citations, which brings together textual sources originating in very different periods and regions but linked by their place in the shared discursive formation of Malikism, reveals a picture radically different from the passive adoption of cultural schemas imported from elsewhere. Al-Māmī’s creative usage of his references illustrates the forging of a tradition of juridical thought in the Saharan West that was aware of its singularities yet asserted its relevance to the universal.
