||"dawnbreak in the west"|
Thursday, July 14, 2016
I need a separate post commenting on Daniel König's article. The Umayyads did restore order in Spain; and historically in Islam "order" has implied a legal infrastructure. The first coherent Spanish code just haven't survived very well.
The Christian chroniclers noted that when the Umayyads took over, suddenly there came an oppression against the Christians and also against the Jews. This is, as König notes, comprehensible as a religiously-motivated law for minorities that abrogates the old sulh pacts.
It happens that at roughly the same time in Spain, the Muslim jurists there had decided upon a legal madhhab: the Awzaʿiya, which like Sufyān al-Thawri's school in Basra maintained the jurisprudence of the dead Umayyad caliphs... or at least claimed to. This school does not survive (neither does Thawri's by the way) and is recorded only in fragments. König, for his part, notices that even in Spain not much direct record of Awzaʿism has survived. But the Awzaʿite school's law of war and jihad – which is what König's article cares about – proved practical and popular. So these fragments were often maintained by scholars from the schools that supplanted the Awzaʿiya. (For a summary of the legal fictions in Islam that have historically enabled warfare, see Bernard Lewis.)
As for what the Awzaʿiya made of Islamic jurisprudence on warfare, that's not all that difficult to define. It's privatised jihad. Read up on it in Deborah Tor, "Privatized Jihad and Public Order in the Pre-Seljuq Period" (2005).
Given all that, I cannot dismiss that the Umayyad Spaniards of the 760s and 770s did have time to formulate an Awzaʿite code of warfare and for Christian spies to pass that, or at least to pass a caricature of that, to the Franks. There was indeed nuance between amirs’ legal-systems but this could, perhaps, have been Awzaʿism being tested and failing. As for why Spain lacks record of Awzaʿism today, I would personally not blame the lack of legal sophistication (at this stage); neglect at the hands of the later (here, Malikite) schools would suffice.
UPDATE 1/28/2017: On truce-capability.
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