Fifty-Seven Tracts | Page  1 

Fifty-Seven Tracts: 

Shaybānī’s (d. 189/805) Aṣl/Mabsūṭ, Twelve Centuries On 

 

Ahmad Atif Ahmad 

 

Ahmad Atif Ahmad is Professor of Religious Studies at the University of 

California, Santa Barbara. His books include Islamic Law: Cases, Authorities 

and Worldview (Bloomsbury, 2017); Pitfalls of Scholarship: Lessons from 

Islamic Studies (Palgrave Macmillan, 2016); The Fatigue of the Shari‘a 

(Palgrave Macmillan, 2012); Islam, Modernity, Violence, and Everyday Life 

(Palgrave Macmillan, 2009); and Structural Interrelations of Theory and 

Practice in Islamic Law: A Study of Six Works of Islamic Jurisprudence (Brill, 

2006). 

 

Abstract 

In Muḥammad b. al-Ḥasan Shaybānī’s (d. 189/805) al-Mabsūṭ, it is 

taken for granted that different nations (Jews, Zoroastrians, Christians, 

Muslims) may live inside a single moral-legal structure known as an 

abode (dār, pl. dūr). When a community of nations is governed by 

Islamic moral and legal norms, theirs would be known as the Islam-

abode, Dār al-Islām. Islamic moral and legal norms have a strong, 

though not unlimited, presence in this abode. The norms and forms of 

consent dominant in the Islam-abode are not presumed to be politically 

and socially respected outside of it.  Each one of these ‘religious nations’ 

were granted collective rights as ‘protected groups.’ To bring what I 

hope will be a helpful comparison, consider the following.  In the United 

States, only in areas where rights can be granted to individuals based on 

these individual’s ‘sincerely held beliefs’ may an individual receive 

relief because of their affiliation with a religious group.  No rights are 

afforded to religious ‘groups’ per se. A class certification (an 

acknowledgement that an individual Muslim who suffered 

discrimination did so for belonging to that class) may benefit the 

individual’s cause in a religious freedom case; yet religious groups don’t 

have rights as a group. In contrast, in Shaybānī’s world, even if the 

doctrines and practices of a group are abhorrent to Muslim beliefs (for 

example, incest, practiced by Shaybānī’s eighth-century Zoroastrians), 

the group’s religion is protected, and the individuals belonging to the 

religious group would be acknowledged in a manner unavailable to 

today’s American Muslim minority. Against that benefit, however, we 

will see that an individual’s freedom to move about from one religious 

group to another, while not an infrequent occurrence, was not celebrated 

(to say the least). And the jurist, who held a degree of power in shaping 

his society’s norms, had his limits.  



Fifty-Seven Tracts | Page  2 

 

In Muḥammad b. al-Ḥasan Shaybānī’s (d. 189/805) aggregated fifty-seven 

tracts on laws known as al-Aṣl and al-Mabsūṭ—available now in Muḥammad 

Boynokalin’s clean (if at times inadequate) edition1—lies the foundation for 

Ḥanafī law. That corpus was the departure point for over a millennium-long 

tradition. The texts were mediated, for most readers, by the edits and 

rearrangements of the martyr of Rayy/Reyy (near Tehran), known as al-Ḥākim 

al-Marwazī (d. 334/945), in his Kāfī. Indeed, it is unnecessary modesty to limit 

Shaybānī to being a father of only Ḥanafī law. If we take Islamic law writ large 

to be that intellectual field that required extensive and encyclopedic documents 

to delineate its borders, then my best evidence tells me that it began with 

Shaybānī’s fifty-seven tracts. 

Before proceeding forward, a justification of this backward turn to an 

eighth-century text is in order. My reader inhabits a world in which Muslim 

jurists are understood to be responsible for much of what is undesirable in the 

lives of Muslims, from inept governance to disabled and immoral legal 

reasoning to social discord, perhaps over a millennium. When will these jurists 

forfeit their right to be heard?—this reader must be asking. Never mind the fact 

that those asserting that Muslim jurists are culpable for these historical and 

current problems have very little patience or appetite for legal texts. I owe this 

reader my judgment of that old style of law and legal literature. Is it good? Yes, 

I think it as good as any other. Is it reasonable, suitable even still for borrowing 

from, after modification? Yes, indeed! Is there anything wrong with it? Sure, it 

has its issues, but there is no good theory for what is generally wrong with it. 

And yes, it has a very good and long story to how it arose and how it evolved, 

again one that is hard to tell briefly. Suffice it here to speak of one element of 

my story with it: the side of this story that pertains to the Shaybānī of twelve 

centuries ago. 

 One thing I can say about Islamic legal literature is that there is a way 

to see it as operating, for somewhere between six and eight centuries, with a 

theory of the law that coheres with its ambition to provide answers to practical 

legal questions. In other words, one can attain a theoretical sense of how its 

theoretical and practical jurisprudence can be seen as of a piece. You talk about 

how to characterize human actions and move to the sources of the law, then to 

contingencies, maxims and exceptions, then back to the facts of the case, and 

again to doubts in the world of legal and broader epistemology (doubts about 

social and even natural life), using the same tools that have been briefly, or 

elaborately (depending on the author), sketched in your uṣūl al-fiqh (roughly, 

theoretical jurisprudence), qawā‘id al-fiqh (roughly, maxims or canons), furuq 

(juristic distinctions), alghāz, mutārahāt (riddles), munāẓarāt (debates), tarājim 

(juristic prosopography, biographies), etc. If these details are hard to wrap one’s 

head around, the reality behind them is possibly as simple as this: A good jurist 

is thinking about human beings, their actions, the contingencies affecting their 



Fifty-Seven Tracts | Page  3 

choices, and the irregularities of luck or chance (or God’s invisible hand) 

befalling their lives, while at the same time reviewing the principles of the law, 

its generalizations that must meet exceptions, and the distinctions among 

ostensibly similar cases. Matching the theoretical with the practical, even for 

the jurist, is not a perfectly drawn mathematical equation. The jurist tries to do 

their best, conjuring in mind that God will always know best.  

 These centuries, from the fourth/tenth to about the eleventh/seventeenth 

or twelfth/eighteenth centuries, are not Islam’s first. What happened before 

that? In a doctoral dissertation I wrote a decade and a half ago, I said that we 

couldn’t really know and perhaps it was irrelevant (after all, we wouldn’t be 

able to tell much about Socrates’ views by learning about his childhood). Let 

Islamic law’s childhood stay a secret known to its contemporaries. It is not 

going to open itself anyway. I was not sure then what to do with the early 

adulthood years of Islamic law, which includes Shaybānī. I was sure his story 

would not change my general narrative; and I can still say that very few people 

can tell us much about the centuries preceding Shaybānī. But Shaybānī’s texts 

clearly tell us that the theory of a coherent theoretical and practical 

jurisprudence should not be seen as operating prior to the fourth/tenth century. 

There is a different kind of legal theory operating there. This essay will 

delineate this theory’s borders, with emphases on questions of how norms and 

consent interrelate, and how the presence of a religious identity needs to be 

protected—and not only in reference to an individual with religious beliefs. 

Rather, Shaybānī acknowledges the existence and importance of religious 

collectivity, a group which could be harassed and verbally insulted, its doctrines 

vilified by passersby, among other shameful spectacles, despite the theoretical 

protection of the members of that group as individuals.  

 In the essay’s first five sections I introduce Shaybānī and his context, 

provide a primer on what it means for Islamic law to regulate choices, offer an 

example of how consent is expressed or presumed in the extreme ends of human 

relations (partnership and adversity), and speak of limits on consent that a 

Muslim jurist respects. In the last four sections I focus on the nature of the 

Islam-abode as a bordered community of nations, and point to how religious 

considerations sometimes fail the jurist in his search for perfect consistency in 

his reasoning. 

 

1 

When Islamic Law Began 

Shaybānī’s (d. 189/805) 57 books on laws ranging from rituals to trade, family, 

crime, and transabodal (equivalent of ‘international’) activities, which went 

collectively by the title al-Aṣl, open a millennium of Ḥanafī legal reasoning that 

was closed by Ibn ‘Ābidīn’s Commentary or Ḥāshiya. (Left partly unedited at 

Ibn ‘Ābidīn’s death in 1252/1836, his son later completed its editing.) In the 

intervening millennium, one Muslim government after another instituted 



Fifty-Seven Tracts | Page  4 

practices that, on the one hand, restricted the jurist and partly took away his 

freedom to apply his own principles and to apply a good measure of deference 

to social norms; and, on the other hand, they aided that jurist by offering 

solutions to problems that seemed unsolvable with the tools of jurisprudence. 

Not unlike a Roman jurist, the Muslim jurist’s main source of authority is 

persuasion, rather than social consensus or the police. But the jurist does 

function within limits imposed by society and government.2  

In reading al-Aṣl, one encounters not only a case history that speaks to 

archivists but also a compendium of legal and political reasoning that cuts to 

the basic foundation of Islamic moral-legal structures. For example, it will be 

apparent after this reading that a concept of political philosophy that is separate 

from law and legal theory faces challenges. The reading will also throw 

sufficient doubt on the stability of modern notions of liberty and rights, as it 

alerts us to what laws are made of (namely, the elements of norms and consent). 

A pithy biography of Shaybānī follows. 

 

2 

Shaybānī, His Laws, and His Surround 

Born in 132/749 in Wasit (the Middle City, so-named because it lay midway 

between Kufa, where he grew up, and Baghdad, where he lived most of his life), 

Shaybānī’s life ended on a trip to Rayy (Iran today) in 189/805. He studied 

under the two eponymous founders of Ḥanafī and Maliki law for three years 

each.3 These two schools supposedly offered two models for the creation of 

law, one from reason and the second from history and tradition. In his late years, 

the individual who mattered more to Shaybānī was an older student of Abū 

Ḥanīfa, known as Abū Yūsuf (d. 182/798), whose death preceded Shaybānī by 

less than a decade. 

Abū Yūsuf had become a trusted courtier of the Caliph Rashīd (d. 

193/809) and hence was in a position to give Shaybānī advice on court etiquette. 

When Rashīd became aware of Shaybānī’s excellence, he invited him to his 

court. According to rumor, Abū Yūsuf told Shaybānī to request to leave the 

room when Abū Yūsuf hinted to him to leave, having told Rashid that Shaybānī 

suffered from urinary incontinence. Abū Yūsuf then hinted to Shaybānī to leave 

once Rashid started to enjoy his company, leaving Rashid to think that Shaybānī 

would have been such a good conversation companion, if it weren’t for his 

medical condition! The false medical condition, in any case, didn’t keep 

Shaybānī from the circles of power or the international scene for long. The 

second/eighth century’s best student of law eventually became one of its best 

scholars. He eventually became a legal adviser to the same Caliph Rashīd and, 

having sharpened his teachers’ (Abū Ḥanīfa and Abū Yūsuf) views into a school 

of law, started to become a true professor of laws. 

When Shaybānī was born, what we today (following a Eurocentric 

view) call the Near East or the Middle East had already witnessed imperial 



Fifty-Seven Tracts | Page  5 

activities by Persia for over a millennium (525 BC-651 CE). And, while the 

brief Greek imperial adventure (321-146 BC) was well in the past, Rome’s 

imperial republic had incorporated Macedon’s eastern territories (and more) for 

about three quarters of a millennium in 749 CE. Shaybānī’s theories about 

nations within and without the same abode or the same polity are thus informed 

by a true understanding of the material-historical conditions of empire, even 

before there was anything to be strictly called a Muslim empire.  

Domestic laws in the Roman East had been around for a while in the 

environs of Damascus, Islam’s first global capital, where authorities such as 

Awzā‘ī (d. 157/774) lived and produced their work. Law schools were available 

not only in Rome and Constantinople but in Berytus (Beirut) and, by the fifth 

century CE, in Antioch and Alexandria. The Theodosian Code was made into 

law in the Roman provinces on January 1, 439 CE, and the Justinian code was 

more than two centuries old (529-749 CE).4 Although these were not 

consistently enforced even inside the Roman Empire, their inconsistent 

presence affected much in trade and political life. Local (provincial) laws were 

such that social standards dominated each community, as long as taxes were 

collected and sent back to the center of the Empire. International relations, 

especially in the convention of enslavement after war, was an area where the 

impact of Roman institutions on the nascent Islamic jurisprudence can be most 

clearly detected.  

One must acknowledge that similar institutions can be found in the two 

types of legal literature, Roman and Islamic, though most solutions for old 

problems in Roman law are given to us today with new (medieval) authorities 

as arbiters who ended old disagreement. For example, Muslim jurists speak of 

contracts of clear nature and details, such as sale and lease, and other contracts, 

which the parties may invent or design (‘uqūd ghayr musammā; literally 

contracts for which there is no name or title). The latter are regulated based on 

the principle that those who are parties to these contracts must commit to the 

general standards of what is permitted, avoiding (for example) excessive 

ambiguity (gharar) and uncompensated surplus (ribā). Roman law sees 

contracts as being divided into clear-cut ones, such as sale and lease, where 

good faith and reasonableness (bonae fidei) and principles of equity apply; and 

innominate contracts (literally, contracts for which there is no name or title), 

such as barter, which could only be enforced after they are performed.5 The 

division is not a neat one by any stretch. Roman jurists address laesio enormis, 

excessive pricing, which allowed remedies for buyers and sellers but had to wait 

for Accursius (d. 1263) to be estimated as a deception at the ratio of half the 

price.6 Similarly, Muslim jurists speak of ghaban fāḥish (excessive gouging in 

the case of sale), which is assessed at a third or a half of the ratio of reasonable 

price added to the charged price. Another example of such a relationship 

between Roman and Islamic law lies in the use of prison (mostly as a measure 

of detention before trial or punishment).7  



Fifty-Seven Tracts | Page  6 

Romanists simply note an element of control by the imperial center over 

the provinces. Of cases in the Roman provinces, where the power and prestige 

of the Empire would resolve conflicts and reduce animosity, for example, John 

Richardson states:  

 

The context within which such cases were decided was not, juridically 

speaking, Roman, and the cases themselves might not involve Roman 

citizens at all, but those to whom it fell to oversee them belonged to the 

class from which the urban praetors were drawn, and in some cases had 

themselves held that office earlier in their careers. It was inevitable that 

when they needed structures and patterns to manage their own 

jurisdiction they turned to those of the ius civile, even though the parties 

to the cases were not Roman citizens. It is the interplay of Roman 

procedures and local, non-Roman legal rights and individuals which 

gives the legal work of the provincial governors its particular flavor and 

interest, especially in the earlier centuries.8 

 

Paramount was the interest in streamlining activities that would otherwise be a 

headache for the center of the Empire. Intervention by Rome in the provinces 

needed a justification and a cost-benefit analysis.  

Between Carlo Alfonso Nallino (d. 1938)’s lectures on the matter and 

those of Ṣūfī Abū Ṭālib (d. 2008) (whose text that included the lecture was 

assigned at al-Azhar to the freshman law school class until the 1990s),9 ample 

examples were provided of the structural divergences in legal reasoning 

between the two systems. Sanhūrī’s (d. 1971) lectures in civil law (Maṣādir al-

Iltizām) raised doubts about the thesis that Roman law deeply influenced 

Islamic law (though this did not prevent Patricia Crone from her 1987 attempt 

at exaggerating their similarities10). Ultimately, Roman law in the provinces and 

Islamic law serve very different goals. The former was a tool of control and 

streamlining of the population of an empire; the latter had the unusual ambition 

of covering all aspects of life, personal, social, and transabodal.  

Two quick notes before we end this section. First, we need to understand 

law in Shaybānī’s Aṣl as inclusive of other elements not normally seen as law 

in a modern environment. For example, law includes the domain of etiquette, 

even when the discussion emanates from reflections on the laws of verbal 

crimes and their punishments: 

 

What of a man accusing a woman of fornicating with an animal, a 

camel, ox, or donkey? He is not to receive the specified punishment 

(ḥadd). What if the insinuation was that a camel was the price paid for 

the sexual act (the same going for a cow, dress, or silver currency 

(darāhim))? Yes [that would require the specified punishment.]…. 

What if it was said ‘you, son of blue-man, red-man,  yellow-man, blond-



Fifty-Seven Tracts | Page  7 

man, black-man, man-of-Sind, man-of-Ethiopia,’ while the father is 

none of that? No specified punishment (ḥadd) in any of that. Why? 

Because the statement did not negate an affiliation with one’s true 

father; rather, it is an erroneous description. What if someone said ‘my 

son’ [to someone who is not his son]? No specified punishment….Why; 

he attributed the other man to himself [as progeny, which would be a 

negation of the true father]? Because this is a word people use. It is not 

given as a false claim. It is a polite expression of affinity (kalimat luṭf).11 

 

Second, Shaybānī’s laws are not properly Qur’anic or Muḥammadan law. It is 

true that precise language may be hard to come by to explain what it means that 

theoretical jurisprudence (usul al-fiqh) sources are organized according to the 

familiar hierarchy—the Qur’an, the Prophet Muḥammad’s Sunna, consensus 

(of all Muslims or of jurists), reasoning from analogy, etc.—yet it remains true 

that neither the Qur’an nor the Prophet’s Sunna could give us a substantial idea 

about Islamic law as we know it. Indeed, some Qur’anic language is in friction 

with basic doctrines of Islamic law, such as the stipulations of a minimum value 

for a property, that it not be the property of a household resident, and that it be 

kept in a proper depository for the assigned corporeal punishment of theft to be 

considered.  

As the prototypical Muslim jurist, Shaybānī sometimes finds a 

generalization in the language of the revelation worthy of being restated as a 

principle. In some cases, this generalization admits of exceptions. Other times, 

such principles are nowhere to be found in the revelation, and they must be 

derived from other sources. That is, these sources (reason, social conventions, 

assumptions about the laws of nature, and of esp. human nature, among others) 

also lend themselves to the formulation of principles which, in turn, admit 

exceptions. The life of the law in Islam, to offer an analogy that appeals to 

Anglo-American audiences, is certainly not the life of the interpretation of 

revelation in any non-broad and non-trivial sense; while it incorporates logic, it 

is not limited to it, and it certainly hinges much more clearly on experience.12  

Shaybānī, however, was not simply a legal professional with no 

religious character. Take this anecdote, often brought up to prove Shaybānī’s 

honesty and piety, to close this subject of distinguishing Islamic laws from 

Qur’anic verbiage. ‘Abd al-Raḥmān b. Mahdī (d. 198/814) warned Shaybānī 

that he had applied analogical reasoning based on a statement from the 

Prophet’s authority, which the former knew was not a sound report. Shaybānī 

hastened to edit this section out and changed his mind.13 This anecdote aligns 

with a recognition that reports of the Prophet’s acts and statements were seen 

as either affirming a norm capable of expansion and extension, in which case 

they were cited and elaborated, or causing a reflection toward an exception 

(sometimes explicable, meaning subject to qiyās, and other times purely 

ritualist, ta‘abbudī). It is the norms, not the traditions, which constitute the 



Fifty-Seven Tracts | Page  8 

backbone of the laws. If cancelling a tradition only requires minor corrections, 

you can tell that the system was much larger than any single report of what the 

Prophet said, did, or tacitly approved of.  

To reiterate, Shaybānī’s Aṣl starts that magnificent millennium of 

Ḥanafī legal reasoning that is closed by Ibn ‘Ābidīn’s Commentary. And it also 

bears repeating that, in addition to differing social standards across broad 

swathes of Muslim lands in the intervening millennium, one Muslim 

government after another instituted practices which both restricted the jurist in 

his deference to social norms and aided that jurist with help he could use 

addressing intractable issues. 

 

3 

Riḍā, Ikhtiyār, & Ḍarar 

The Arabic terms riḍā (consent) and ikhtiyār (freedom of choice) are used in 

different contexts within contract law (‘aqd) and the standards of competence 

and its impediments (‘awārid al-ahliyya). The subsidiary term khiyār addresses 

exceptions in contracts (options to nullify). The concept of dīn applies to 

choices made by non-Muslims and their residing habits (a Ḥanafī golden rule 

reads: natruk ahl al-dhimma wa ma yadīnūn, i.e., “we let scriptuaries practice 

what they hold true”—a specific protection for religious groups against whom 

a powerful community may discriminate). (Were a similar protection available 

to Muslims in the US after 9/11, it would have been much more valuable than 

the familiar modern American government’s readiness to protect “sincerely-

held religious beliefs.”) A choice that may not be tolerated is one that occasions 

harm and necessitates compensation. Ḍarar (harm) and ḍamān (liability, 

compensation) then come in to complete the picture. Let’s start with a 

foundational juristic view of human choices and then hear Shaybānī’s voice 

address some of the details.  

 When a responsible individual, unaffected by impediments to her or his 

agency, consents, that is, acts based on a true choice, she or he loses the freedom 

to make some further choices. Once I freely buy your book for $20, I don’t have 

a free choice in (what was once) my $20. After I consent to a marriage that 

results in children, I don’t have a choice not to support my wife and children. (I 

cease to own my property, in other words, if it is occupied by the rights of the 

wife and children.) If one were able to claim an intrinsic inability to make that 

first choice, provide a meaningful first consent, then the consequences of that 

consent don’t follow. Think of a child, or a person under duress. Since such 

people do not or cannot make a meaningful initial consent, their rights are 

preserved in subsequent calculations of who owes whom what. But for obvious 

reasons, attending human nature and the nature of human interaction, the 

defense that one was coerced fails frequently. 

Shaybānī sets the tone for a long tradition of suspicion of claims of 

coercion. A man claims he was coerced to a divorce-deal (khul‘) with his wife; 



Fifty-Seven Tracts | Page  9 

but he is bound to it. “Don’t you realize that if he was forced to have sex with 

someone, he would [still] be bound to wash up before praying; or if he was 

forced to eat during a Ramadan day, he would [still] be bound to compensate 

for that day of fasting?”14 (The analogy between the two conditions of being 

forced to make an utterance and being forced to engage in a carnal act is here 

somewhat strained.) Now add to the list of those seen as incapable of delivering 

a meaningful consent someone whose religion takes away that first choice (a 

Muslim cannot elect to drink an intoxicant or consume the flesh and fat of a 

pig), whose gender takes away that first choice (a woman in her period does not 

get to be in the mosque, on most views), or whose bondage takes away that first 

choice (a slave needs a master’s permission to initiate a marriage offer). 

Moreover, a dominant religion may restrict those who don’t believe in it. While 

they get to sell pork and wine products, Shaybānī thinks Christians do not get 

to trade in “carrion and blood.” Finally, a change in the status of a business deal 

that affects the agency of someone who is involved in it (and his capacity for 

choice) also changes this person’s choice. Thus a sale of wine on credit between 

two Christians is valid; but if one of them converts to Islam before the delivery, 

the buyer does not get to have the merchandise and the disbursed payment must 

be returned.15  

The idea that consent is one, yet not the sole, basis for norms in society 

resonates in laws old and new. Consent (verified or presumed) is a basic pillar 

of legal and moral life. In ancient Egyptian law, as Toby Wilkinson discovered, 

a will by a woman named Naunakht (twentieth dynasty, twelfth century BC), 

distributing her inheritance among only five of her eight children and 

disinheriting the remaining three, needed to be reviewed by the court a year 

after distribution to ensure the consent of the concerned parties.16 Centuries 

later, the Justinian Code (Book 5, Trials, #20) established, on the authority of 

the jurist Paul (second and third century CE), the idea that “the correct view” 

of how to understand an obligation is to treat it, before the courts, as an outcome 

of a contract. The fictional contract here assumes that abiding by a legal order 

involves consenting to its implicit terms. Consent and contract do interrelate, of 

course, but consent is broader.  

Consent, broadly understood, is the foundation of communal-religious 

affiliation, which has consequences in rituals, vows, marriages, and the rest, 

and is the foundation of all social postures—also including marriage and family, 

market and labor, and the willingness to be subjected to moral censure and 

criminal and social punishment. As noted earlier, Shaybānī’s laws are not 

sympathetic to claims that one took a certain course due to coercion. For 

instance, he insists that divorces under coercion are still effective. Coercion by 

political power within the same political and moral structures are an interesting 

claim that needs to be considered soberly and without emotions.17 These claims 

are as easy to make as the claim that the government is corrupt and hence 

rebellion is justified, which jurists are reluctant to grant. 



Fifty-Seven Tracts | Page  10 

Shaybānī’s Mabsūṭ was only the start of a long tradition of reasoning 

and a juristic craft that spread into the corners of the Muslim world. In this 

tradition, consent—while by no means unlimited—makes, shakes, and breaks. 

At a crescendo in his treatise on “how one may determine appropriate 

compensations for assigned payments” (debts, prices, dowries, etc.) under 

conditions of currency variability, the nineteenth-century Syrian Ḥanafī master 

of jurisprudence, Ibn ‘Ābidīn, quotes one of his mentors who allows resort to 

settlements.18 Even government policy may not be decisive, if the markets see 

things differently. The views on this matter, before and during Ibn ‘Ābidīn’s 

time, had varied significantly. In addition to currency counterfeits (using copper 

in silver currency) and changing government policies in late Ottoman practice, 

several factors may disadvantage one partner of a transaction or money promise 

over the other. At the bottom of this reasoning, however, is attention to a basic 

principle: consent, and the norms it generates, forms legal standing. A breach 

in the status of the consent of human agents in a society changes our sense of 

order.  

The currency of consent as a generator of norms, with the aid of a legal 

professional who works to articulate the extent and limits of these norms, is also 

found in modern national and international law. In international law, 

“recognition” constitutes the state.19 Circular or not, the logic goes thus:  

territory or land recognized as a state, by other states, is a state. The 

preponderance of “consent” by other political or legal abodes, applied to the 

status of a given abode as legally and politically independent, makes it as such. 

The states then treat one another as states, and consent is at least the theoretical 

foundation of their inter-statal activities.  

The reader must bear in mind that norms can be generated out of 

consent, and that consent can be a source of order, even when norms are soft. 

And human perceptions and forms of secure knowledge of the natural world, 

while falling on multiple spectrums or spectra, are a foundation for social and 

moral and political life—as obscure as the connection between social and 

natural knowledge may appear to some of us. The legal professional’s work, at 

times, consists in articulating the limits of consent and necessary coercion. In 

some cases, this is descriptive; in others, it is prescriptive.  

 

4 

Consent in Adversity and in Partnership 

When the lifetime of a consent is considered, the jurist finds that it possesses 

the potential of turning into either settlement and contentment or a sense of 

buyer’s remorse. These two options need not be restricted to market dealings; 

one is said to have buyer’s remorse after a marriage decision, a decision to 

concede the ascension of a given individual to public office, and other decisions 

weighty or trivial. Consent’s long-term endpoint must be taken into account in 



Fifty-Seven Tracts | Page  11 

assessing it. In this the role of the legal professional in articulating the limits of 

communal consent or consent among adversaries or partners is magnified. 

Take the opposite ends of relationships, one being adversity and the 

other being partnership. First is Shaybānī’s view on appointing a representative 

(wakīl, someone with power of attorney) over the rejection of an adversary in a 

case.20 Against Abū Ḥanīfa, Shaybānī holds that one has such power, to appoint 

an attorney against the will of his adversary. In other words, the adversary’s 

consent is ineffectual; it has no legal consequences. Especially in a case in 

which the one who appointed a representative is unable to represent himself, 

for sickness or absence, Shaybānī would ignore the will of his opponent 

outright. Abū Ḥanīfa’s argument also looked at consent but stipulated that it be 

mutual: the appointer of a representative and her or his adversary has a stake in 

the case; hence, their consent must be sought before the judge proceeds. The 

wisdom of Shaybānī’s view is apparent to us now when we consider whether 

one may pick an adversary’s lawyer or a debt collector on behalf of a creditor. 

Today (especially in a system that is labelled adversarial, such as in the United 

States) we tend not to have a problem with a will’s executor who fell into 

disagreement with one of the inheritors, to stand in opposition to the 

complaining inheritor, when the original (the deceased who wrote the will) 

cannot be made available. But the issue here is not necessity. It is whether an 

adversary’s consent ought to be sought and whether it would be meaningful to 

seek it in this case.  

Moreover, in a business partnership, when unjust deals are struck where 

one side is guaranteed to draw more benefits than the other, the parties’ consent 

is as good as nonexistent. A partnership between two traders that stipulates one 

distribution of profit and another for losses is one such agreement. Should 

partners stipulate, for instance, that losses be shared at a ratio of 2:1 while 

profits be shared evenly, this is not an acceptable partnership.21 On occasions, 

partners do violate the terms of their partnership. What then? Shaybānī 

addresses a deal where a money-provider (MP) and two partners (P1 and P2) 

all agree to share profits at a 2:1:1 ratio (MP, P1, P2). In this scenario, one 

partner commits to the terms of his partnership and another commits only in 

half the assets or money to the deal. The MP first collects his capital, and if P2’s 

property needs to be taken away for that to be fulfilled, so be it. Once MP gets 

his capital back, any profit from P1 and the authorized half within P2’s 

investment is divided at the 2:1:1 ratio. Any surplus of profit gained by P2 in 

the unauthorized half is his to release to charity, because he never properly 

owned it. Shaybānī labors to explain how the surplus in P2’s unauthorized 

activities must be determined, before anything is released to charity, in order to 

guarantee a maximum of fairness to MP and P1.22 The fulfillability of the initial 

agreement here totally hinged on the effort of the legal professional: without his 

intervention nothing would be accomplished. 

 



Fifty-Seven Tracts | Page  12 

5 

God, Nature, & Society 

Now to ultimate (or metaphysical) sources of restriction on consent. In modern 

capitalist environments, restrictions on consent are suspicious, unless they are 

for the valid interests of human beings. For example, person A consenting to 

buying from Person B what turns out to be the property of a Third Party C 

cannot be seen as an effectual consent. It is against the valid interest and rights 

of the real owner. An arbitrary power of the state where A and B live may also 

impose an invalidation on the sale for weaker reasons.  

The consent of two parties—especially when it results in consequences 

which, in turn, lead to a reconsideration of this very consent—may be ripe for 

preemption by a higher power. To be sure, this is not unknown in modern laws. 

Modern courts may agree or disagree as to whether existing laws cover 

situations that rise to their consideration and adjudication, but they usually 

agree on the principle that human consent may require some natural restrictions. 

How they explain that is another issue. R v. Brown, a standard case in English 

law decided by the House of Lords 3:2 in 1993, holds that consent is unavailable 

in the case of sado-masochist activities.23 This case also raises the question of 

whether agreements among parties that are understood as abhorrent to general 

human reason or instinct are automatically invalid. The question of consent is 

not as easy as it appears, in light of such extensions of the notion of human 

freedom in modern jurisprudence. 

In any case, Shaybānī accepts in principle that human consent may be 

reasonably infringed. But for what considerations? First comes God. Shaybānī 

states that a divorce at the wife’s initiative, involving a stipulation that the wife 

does not receive any financial support during her waiting period, is acceptable. 

By contrast, a stipulation that she not be provided housing by the husband does 

not stand scrutiny, he says, “because it is an act of disobedience that she be 

asked to live in a house other than her own husband’s—(i.e., while still married 

to him, which she is until the divorce is final).”24 Mutual consent is 

unproductive here, since it contradicts God’s will. 

In a word, nature can say no to presumed norms and human consent. It 

is in fact one of medieval Islamic legal reasoning’s secrets hiding in plain sight 

that it is mostly based on a theory of human nature and a respect for reason and 

convention. These principles do clash and are not adequate reasons for all the 

laws, to be sure. There are moments of no explanation—or explanation stopping 

at the gate of revelation—which have confused and veiled western scholars of 

Islamic law from good understanding of this type of reasoning. 

 Nature is certainly one important limit on both the possibility and 

meaningfulness of consent. Shaybānī teaches us that “sexual intercourse by an 

underage boy bequeaths neither the normal punishment (ḥadd) nor a payment 

of dowry (mahr), because the boy’s penis is as good as his finger.”25 In a similar 

vein, al-Badr al-‘Aynī (d. 855/1453) states: “A slave ordered a free, underage 



Fifty-Seven Tracts | Page  13 

boy to kill, and the boy fulfilled the command: The male agnates of the boy pay 

the blood money for inadvertent killing (qatl khaṭa’), because the boy’s 

intentional and unintentional killing is one and the same.”26 For both Shaybānī 

at the start of the Ḥanafī tradition and ‘Aynī at its height, it is obvious that 

adulthood is a prerequisite for full responsibility. The desires, consents, and 

aggressions of an underage boy could not be taken the same way as those of an 

adult. Nature refuses that equation. 

Jurists’ supervision of the end of marriage gives other examples. A 

unilateral divorce by the husband is counted as a second divorce even after a 

previous divorce at the wife’s initiative that entails compensation (khul‘ or 

mubāra’a)—even though the previous act is normally seen as a final divorce 

(upon the end of the waiting period).27 In other words, a husband’s violations 

of the terms of an agreement still bind him to further adverse consequences—

in this case, losing one of his three opportunities for terminating a marriage 

before his wife has to take another partner in valid marriage prior to ever 

coming back to him. Shaybānī, who presents this view on the authority of 

Ibrāhīm al-Nakh‘ī (d. 96/714) and ‘Āmir al-Sha‘bī (d. 103/721), also explicitly 

states that compensated divorces are final.28 

Khul‘ and mubāra’a are normal ways to end a marriage. These 

agreements, in addition to judicial divorces of different type, balance out a 

man’s ability to unilaterally divorce his wife, since he gets to shoulder the bill. 

They allow a woman to end her marriage, as long as she does not plan to benefit 

financially from it. That is why they ought to end in a final, rather than a 

retractable, divorce. When a man enters a divorce on top of a divorce deal with 

his wife, this is simply a violation of the law. One reaction would be to ignore 

it. On Shaybānī’s doctrine, it is essentially void, but it will, in addition, reduce 

this man’s ability to resume a normal marriage upon a future agreement with 

his wife. In khul‘ laws, each time a compensation is either vague or unspecified 

(or if the change of circumstances makes delivering it untenable), a reasonable 

replacement is due.29  

Every system has its excesses when it comes to how nature operates, 

and Ḥanafī law is not free of these. Sunni jurists think that two babies nursed 

by the same adult female are siblings and hence unmarriable to one another. 

This superstition, if we call it that, is extended even further in Ḥanafī law: so 

far as to apply in the case of two babies, male and female, nursed by two females 

who were married (at the time or recently enough) to one and the same man. 

Even the case of “a man, whose son and daughter nursed on his brother’s wife,” 

leaves this son unable to marry any of the daughters of this ‘nursing-mother’ 

(the wife of his uncle), whether these girls of the uncle’s wife were born before 

or after the nursing, and whether these females were the daughters of the 

nursing son’s uncle or not.30 Based on these ‘milk-bridges’, this reasoning 

creates uncle-niece and aunt-nephew relations that close the doors of marriage. 



Fifty-Seven Tracts | Page  14 

So far Shaybānī has not given us ambitious notions of eternal (human) 

rights to be afforded (only) to individuals. That modern language in itself 

invokes no reproach as a foundation of social, moral, legal, and political life in 

a community and for the limits and borders of consent within a given societal 

arrangement. However, it falls short (for a contemporary example) where it 

allows individuals to enjoy free speech rights that protect their verbal 

harassment of groups (e.g., Muslims, Blackamericans, and others who are 

unprotected as groups), on the pretense that the members of these groups, in 

principle, retain (vague and less clear) rights as individuals. These vague rights 

won’t shield modern Muslims, for example, from vilifications of the symbols 

of their religion (e.g., that the Prophet Muḥammad is a womanizer and a 

bloodthirsty individual) and their creeds. Wouldn’t it be strange if an eighth-

century Zoroastrian Mesopotamian (who would be allowed to marry his sister 

and stand in a Muslim court as a married man, not an incestuous scum) would 

be accorded more respect and protections in the Islam-abode than would be a 

twenty-first century American Muslim? I hope this is not true; I hope I am 

missing something. (Well, we haven’t been to eighth-century Mesopotamia, 

and we can’t tell how this Zoroastrian felt. My best hunch is that modern 

American Muslims enjoy rights he didn’t, and he enjoys rights we don’t). 

In any case, we ought to now move to the second section of the essay, 

which reads Shaybānī on legal life and legal death and sketches the mixed 

courts of eighth-century Iraq (which ruled subjects of mixed religions and used 

a mix of Islamic and non-Islamic laws, all within the borders of a well-defined 

abode). We will also have something to say about the limits of the consistency 

of these legal doctrines and practices.  

 

6 

Legal Life and Legal Death 

International law today (still) assumes that nation-states are closed off by 

borders, within which national laws apply, and outside which other nation-

states exercise an important aspect of their sovereignty via instituting and 

enforcing their own laws. To follow what we are looking at here, we need to 

start by delinking nation and state. One state or abode (e.g., the “Islam-abode”) 

may enclose multiple nations, which in turn may have different laws in certain 

areas but share public laws with other nations within the same state or abode. 

Inside the same state, nations don’t normally go to war with one another. When 

this anomalous condition we call civil war occurs, a set of laws governing 

cessation (baghy/khurūj) apply. At the borders of this multi-national state, war 

or peace with other states is possible. Hence, a shorthand for the abode that is 

external to one’s abode is the war-abode. In practice, the so-called war-abode 

is nothing but an alternative name for the unbelief-abode, where laws 

unrecognizable to Muslim jurists are normally and regularly enforced.  



Fifty-Seven Tracts | Page  15 

Yet, wars happen; and when they happen, laws often change. War is a 

due process by which rights and responsibilities may be reassigned. Coupled 

with the counterintuitive delinking of nation and state, one may want to 

contemplate the idea of legal death, its medieval Islamic version being 

something of a limited improvement on a similar ancient notion. In Roman law, 

legal death applies most immediately to slaves, where freedom (in the sense of 

freedom-to-act), then citizenship, and finally age majority are three yardsticks 

or building blocks for legal competence, enumerated here in the order of their 

impact. A slave is deprived of the most basic standard of competence (freedom-

to-act); hence, as Ulpian (170-223 CE) put it, he is almost dead.31 (Ulpian is the 

Roman jurist most cited in the Digest of Justinian, which was assembled in 530-

533). Not being a citizen also takes away access to legal protection. Being a 

child, even of a citizen, is another impediment to full legal life. 

In Islamic law, or more specifically the Islamic law of the jurists of the 

early Ḥanafī tradition, living inside the Islam-abode is the starting point for 

legal protection. There is further legal protection for slaves inside the Islam-

abode than for free individuals outside of it. Legal death applies to those who 

migrate and abandon the Islam-abode. (Incidentally, the notion from Roman 

law that the slave is part-human, part-object has not gone away in Islamic law.) 

Inside the Islam-abode, legal death is an essential notion that both solves and 

creates problems. Never to conflate the two completely, Ḥanafī law does still 

emphasize their distinction in certain cases. Thus Ḥanafī law allows 

replacements of flight-risk debtors. In other words, a man may guarantee the 

return of another with a payment of his debt by accepting to remain in custody 

until the return of the debtor. If the guarantor converts, then flees and moves 

outside of the Islam-abode, their flight does not absolve the debtor from 

providing an alternative—as opposed to the case of an actual death of the 

guarantor.32 Being of a different nation—religious and ethnic “nations” often 

overlapping—affects rights and responsibility in a complex way. What was it 

like? 

 

7 

The Mixed Courts of Eight-Century Iraq 

Abu Ḥanīfa (d. Kufa, 150/767) is reported to have allowed a Ḥanafī judge to 

hear a spouse support claim by a mother against her son or a sister against her 

brother, who is in either case also her former husband, because Zoroastrian laws 

allow incestuous marriage.33 This mixed court procedure (where Zoroastrian 

adversaries stand before a Muslim judge to be governed by Islamic law) was 

rejected one generation later: Abū Ḥanīfa’s student, our Shaybānī, disagreed 

with the master, and Shaybānī’s view carried on for the subsequent millennium 

as the standard Ḥanafī doctrine. The altering of doctrine within one generation 

could be explained (as later Ḥanafī authorities say) by a shift in the conditions 

and customs of the times (‘urf).34 There were too many Zoroastrians, who lived 



Fifty-Seven Tracts | Page  16 

in Kufa and sought judicial protection, who could not be ignored by Muslim 

judges of the early times; later, this became a false problem not in need of a 

solution. The distance between Kufa and Medina, briefly the seat of government 

after Muḥammad’s death, was twice the distance between Kufa and Zanjan, for 

example; Damascus, the Umayyad capital, was equally far from Kufa. Be that 

as it may, the old view clearly complicated a useful doctrine Ḥanafīs were on 

the verge of developing: that laws follow geography, and religious minorities 

must develop their own laws within a Muslim town or city, as long as these do 

not clash with public laws.  

Interestingly, Abū Ḥanīfa would have advised a Muslim judge not to 

intervene in a case involving two Christians, where one took over another’s 

wife without their marriage being followed by a proper termination and waiting 

period.35 His argument is that these Christians’ laws govern their families, even 

if they lived under a Muslim government. Shaybānī’s view, here in agreement 

with Abū Ḥanīfa’s other (and older) student, Abū Yūsuf (d. 182/798), is that 

the improper marriage may be repudiated and proper procedure instituted.  

The legal terms of art in these discussions are indeed nothing other than 

the familiar dhimma and dhimmī. Abū Ḥanīfa’s doctrine is often reduced to a 

dictum: let the people of dhimma act as they do or believe they should do! The 

restriction of the dhimmīs to Jews and Christians is also a familiar limit, known 

in Qur’anic exegeses and law-texts, but the Ḥanafī view of dhimmīs or protected 

populations was broader. The minorities left off from Sassanian times included 

all those who were subject to persecution in the olden days: Jews (yhwd-y), 

Buddhists (šmn-y), Hindus (brmn-y), Nazarenes (n’cr’-y), Christians (krstyd’n), 

and Mandaens (mktk-y).36 The Manicheans (zndyk-y), or zanādiqa, who 

triumphed gradually under Sassanian rule, now Arabic-speaking and in some 

cases artisans of poetic expression, would become a subject of literary curiosity 

in the second to third/eighth to ninth centuries, and their treatment (especially 

for those who professed to be or attempted to pass for Muslims) vacillates 

between harsh juristic threats of erasure and execution and the reality that 

deemed them mostly innocuous. The brahmāniyya (Hindus) will await another 

day (when Ḥanafī communities move eastward toward India) and in the 

meantime seem to not be of concern; the sumāniyya (Buddhists) make a 

showing in uṣūl al-fiqh’s epistemic inquiries as interlocutors who deny that 

physical reality is a decisive indication of what truly is (e.g., in Ibn al-Ḥājib’s 

(d. 646/1248) text in theoretical jurisprudence, Muntahā al-Sūl), but I am not 

familiar with cases or legal scenarios that bring their peculiar beliefs to a 

Muslim court in early Muslim Iraq.  

Inside the Islam-abode, al-Aṣl’s discussion of such people’s marriages 

indicates, on first blush, full abandonment of cases involving non-Muslims. The 

conversion to Zoroastrianism of a Jew or Christian who is married to a Jew is 

not contestable in a Muslim court, since marriages between Jews and 

Zoroastrians do occur.37 This last explanation seems similar to what the teacher 



Fifty-Seven Tracts | Page  17 

(Abū Ḥanīfa) taught (namely, leaving the people of dhimma to act as they 

deem), but reaches the opposite conclusion. In principle, the divergence 

between Islamic and non-Islamic family laws means that non-Muslim 

communities must settle their marital conflicts outside of Muslim courts, which 

would require developing the requisite legal and judicial practices 

independently of Islamic law. Yet we will see presently that marriage may be 

seen as a subject of public law in some cases.  

 The following scenario will further clarify the disagreement among the 

school founders. Consider this text: 

 

Inquirer: What if a woman from the war-abode converts to Islam, then 

migrates to the Islam-abode, leaving her husband behind; could she 

immediately marry another man in the Islam-abode? Abū Ḥanīfa says: 

Yes. Inquirer: Without a waiting period? Abū Ḥanīfa says: No waiting 

period. Wouldn’t it be the case that a divorce by her husband, were he 

to divorce her while living where he lives, be vacuous? Both Abū Yūsuf 

and Muḥammad [Shaybānī] say: She should observe a waiting period! 

A concubine who bore her master a child (umm walad) should also 

observe a waiting period. Each must wait a period sufficient for three 

menstruating instances. If she were to marry before that, the marriage is 

susceptible to annulment (fāsid). If she was pregnant at the time of the 

new marriage, the marriage is also susceptible to annulment.38 

 

Land is the limit of laws. The purchase of a slave child while ignoring 

his brother, also available for purchase, is reprehensible. The general principle 

is that a slave owner may not separate, via purchase or sale, members of the 

same family. But, if a resident of the external abode is selling only one of two 

brothers, a Muslim may buy the one available for purchase. The alternative, 

Shaybānī says, would be letting both go back to the black hole of the external 

abode or the unbelief abode. If the same two brothers are offered for sale inside 

the Islam-abode by an owner who lives in it, they may not be separated.39  

Times have changed, or perhaps, geography has changed. In Shaybānī’s 

world, one’s prior religious beliefs cease to be a shield from acceptable public 

norms. Once ‘Islam’ is combined with ‘residence’ in the Islam-abode, one’s 

religious history is irrelevant to rights and responsibilities. Abū Ḥanīfa thought 

the existing ties between new converts and their families who live outside the 

Islam-abode would end upon emigration. He also thought that any continuity in 

their previous marriages would be impossible to observe. Shaybānī thought the 

jurisdiction of the law in the new land may be continuous with one’s recent 

actions—notably, marriages that dissolved very recently. All (newly Muslim) 

women, free and slave on the verge of freedom (which is what an umm walad 

is), are expected to observe a waiting period sufficient for three menstruating 

instances.  



Fifty-Seven Tracts | Page  18 

There are restrictions on consent among non-Muslim nations within the 

Islam-abode that may require further reflection today. Should scriptuaries’ 

hiring of one another for the purpose of performing a ritual (prayers) be 

allowed? Shaybānī’s answer is no, and that Jews, Christians, Zoroastrians, and 

“all the people of unbelief” living in the Islam-abode are the same in this. Were 

they to hire someone to ring a bell for their prayers for a monetary 

compensation, this is also not allowed, because it is an act of “disobedience.”40 

In other words, this is a question different than performing the prayer itself, 

without any compensation, which is available to these non-Muslim 

worshippers. This seems to be an extension of the idea that Muslims are not 

allowed to charge or compensate for acts of rituals. The language of 

“disobedience,” however, is somewhat puzzling. An Islamic prayer is not an act 

of disobedience; to the contrary, it is a required ritual. You cannot charge for a 

religious requirement, nor can you pay for it. The law pertaining to non-

Muslims in the Islam-abode is either a limited extension of the logic of laws 

applying to Muslims, or a subprinciple pertaining to non-Muslim “nations” 

within the Muslim abode, aiming to limit non-Muslim rituals to their natural, 

uncompensated performance.  

The view that Muslims could not hire Qur’an teachers (because it is a 

ritual, and one cannot charge for a ritual) was abandoned in due time. It became 

clear that without professional Qur’an teachers, people would either do a bad 

job reciting it or abandon learning it altogether. But it is not clear that outlawing 

the effort of non-Muslim nations to preserve their religious traditions by 

professionalizing worship was reconsidered. True, a Muslim remains able to 

rend his house to a non-Muslim, even if the latter drank wine or used it for 

worship of the cross, as long as the Muslim didn’t specifically sell it for that 

purpose.41  

What are these mysterious borders that create abodes and accounts for 

the ‘trans-’ in the transabodal? Everyone knows that they are phantoms: they 

do not correspond to realities on the ground. (Modern international law texts I 

read in the 1990s said otherwise: they even told us that physical borders may 

be indicated by barbed wire—an empirically correct claim as applied to the 

borders of Egypt and Israel, although I also noted that barbed wire was used 

around military barracks inside the Egyptian capital.) Like any student of law, 

I was a good consumer of the notion that the earth may well be imagined to 

consist of upside cones or pyramids, where the surface is the land of a nation, 

thinning into a point at the center of the globe (thank Holland’s Hugo Grotius 

(d. 1583-1645); physical borders go even deeper into the ground, and of course, 

there are also marine borders, the contesting of which led to international law 

cases, especially in Europe, where land is tight and irregular). Suspending this 

busy and often confused notion of borders, one must submit that the difference 

between two societies is clearest and most easily articulated when one identifies 



Fifty-Seven Tracts | Page  19 

difference in customs, which find their way to laws. In the next section, Bartolus 

(1313-1357) will be our guest to illustrate this point. 

 

8 

Borders 

The modern notion of national borders is foreign to superstates, such as the one 

Shaybānī was attempting to help his governor-advisees rule. There they are, a 

bit surprisingly, closer to medieval European notions of borders among cities. 

Bartolus, a man of the law school of Perugia, always taken to be the earliest 

lawyer to dabble with questions of law’s jurisdiction—which modern national 

laws enshrined as private international law; in other words, laws of a nation’s 

sense of the jurisdiction of its courts when an international element is 

involved—considered jurisdiction and the defense of “ignorance of the law” on 

reasonable and pragmatic grounds: 

 

I ask what about delicts. If a foreigner does a wrong here shall he be 

punished according to the statutes of this city? … Let us put it broadly: 

either what he did in this city is wrong by the common law, then he is 

punished according to the statutes or custom of this city…or it was not 

a wrong by the common law, and then either the foreigner had lived so 

long in the city that he really ought to know the statute, and then it is the 

same case, or he had not lived there long, and then the act was either 

commonly prohibited by all cities (as, for instance, that he should not 

carry grain outside the territory without license from the government, 

which is commonly prohibited throughout all Italy), and in that case he 

should not allege ignorance as a total excuse…, or it is not so generally 

prohibited, and then he is not held unless he knew of it. … There is now 

a text [he means a legal authority] for this, where an ignorant man is not 

held unless his ignorance was gross and supine.42  

 

Similar principles on reasonable and unreasonable claims of the 

ignorance of the law are found in Shaybānī’s Aṣl. More saliently, Islamic law’s 

main claim is directed at Muslims within an Islam-abode. It is clear, for 

example, that two diaspora Muslims cannot rely on the protection of Islamic 

law. This would be true both outside of the borders of lands governed by 

Muslim governments and if the case was brought back to Muslim lands for 

consideration by a Muslim judge.  

Moreover, a Muslim whose rights were violated outside the Islam-abode 

is not expected to act as if he were an independent state, fighting back or 

employing trickery to regain his rights. Shaybānī believed that when a Muslim 

individual makes a commitment to a non-Muslim state, this commitment could 

not be breached by the same individual, even if the state itself violates it. A 



Fifty-Seven Tracts | Page  20 

series of questions goes as follows. (‘I’ indicates interlocutor and ‘MS’ 

Muḥammad al-Shaybānī.) 

 

I: What if a Muslim’s concubine is seized by an enemy, while her 

[Muslim] owner was allowed to visit this land as a merchant or based 

on some kind of agreement (aman), is he allowed to take her away [by 

force or trick]? MS: I would not recommend that (akrahu lahu dhālik). 

I: And you would not allow him to cohabit with her? MS: Yes. I do not 

recommend it. I: Why? MS: Because they seized her. I: What if she was 

free, a mother (umm walad; who cannot be sold and is automatically 

freed upon the death of her owner), or stipulated to be freed upon his 

death (mudabbara), or even his wife? … MS: In all these cases, he is 

allowed to take the woman (kullu shay’in min hādha fa lā ba’sa an 

yasriqahu)…don’t you notice that if they [those who seized her] were to 

convert to Islam, they would keep the concubine, with no recourse to 

her owner, but the free and all those whose freedom is pending upon 

their owner’s death are to be returned to their families?43 

 

Ihrāz is the bottom line, entailing legal control over an object or a human being. 

Shaybānī allows the soldier to enjoy spoils only after total control over them is 

attained, when this ihrāz is fulfilled after the land of war is left behind, and the 

property is divided back under the control of a Muslim government (if the land 

is not annexed).44 

There are three reasons for Shaybānī’s conclusions here. First, in 

questions dealing with non-Muslims, whether state actors or individuals across 

borders, Shaybānī always asks himself what would happen if the non-Muslim 

becomes Muslim, then reasons backward. This is already stated in the 

quoted text. Second, if Muslims were to seize the non-Muslim land where the 

purported breach of contract occurred, a blank slate of new rights and 

responsibilities ensues. We may state this as the principle that “war is due 

process”—a new legal reign allowing those who won the land to collect all its 

immovables, large movables, and all adults under the sovereign authority of 

the vanquished. Land, for example, is redistributed based on the decision of the 

winners. The third and last reason is that an individual has no sovereignty that 

parallels the sovereignty of the state that did him injustice. In many 

legal scenarios that follow this case, individual soldiers are restricted from 

appropriating anything from lands they conquered 

in small skirmishes without the permission of an entitled Muslim leader.  

The law of the land is a familiar modern expression. In the US, a 

particular rhetorical value is acquired by pointing to the federal constitution as 

the law of the land, because it proves a single legal document of jurisdiction 

across all states in the union, which state law cannot countervail. The law of the 

land in a given state is what the state’s legislative authority imposes and adopts 



Fifty-Seven Tracts | Page  21 

as law. The modern state also imposes a truncated version of its laws over 

foreign residents in it.45 But the law of the land may also be irrelevant to the 

case at hand. In a modern context, if an English court has to consider the validity 

of a contract between two Englishmen living in France to sell goods situated in 

Paris, they would certainly have to apply French law.46 The expectation that the 

two Englishmen living in France and applying their trade activity to French 

merchandise will comply by French, as opposed to English, law certainly 

appeals to a simpler logic, where an economic dealing is expected to be 

governed by the laws of the land of the economic activity itself. Even in matters 

of trans-state trade (buyū‘, sharika) and trans-state deposits (waḍā’i‘), Shaybānī 

was stricter in stipulating a government authority’s access to enforcement of the 

law within its land. If he was relaxed about including multiple nations in his 

private and public laws, Shaybānī was uncompromising about excluding laws 

of other lands from his legal reasoning.  

A now growing area of law, called preventative criminal law, which 

addresses fears of terrorism in Europe and the US and allows preemptive 

justice, offers another reference for conceptual clarity. While these new laws 

have precedents in unexpected areas, such as so-called sexual grooming in UK 

laws (situations where sexual predators are considered on the verge—but not 

actually culpable yet—of violations of minors), they signify a turn in the limits 

of trust in the power of standard national and international legal provisions of 

protection. The point of these discussions is determining when preempting an 

illegal activity is justified.47  

Shaybānī’s legal doctrines in the area of preempting violations of the 

law are intricate. An individual may preempt an attack on his body or property 

by either local thieves or invaders of his land: 

 

Should he fear being killed or maimed…he would be permitted to 

preempt their action …. This is based on a preponderance of evidence; 

wouldn’t it be permissible for you, if you found a man drilling a hole in 

your home from outside, or someone who entered your home with a 

sword at night or from a hole in your home wall, which he made, and 

you feared his attack on you by the sword, and that was your best sense 

of the likely (akthar ẓannik wa ra’yik), wouldn’t you be permitted to kill 

that person…48 

 

Yet, the population of a town fully converted (from Islam) and later conquered 

(by Muslims) could not be captured, as long as safety among the population 

was dominant before its re-conquest by a Muslim force.49 And the same 

freedom is afforded to a protected (dhimma) group that violated the terms of 

their agreement with a Muslim government, as long as safety dominated in the 

town after the violation of the terms and before its conquest by Muslim forces.50 

 



Fifty-Seven Tracts | Page  22 

9 

Beyond Legal Death 

One Achilles heel in Shaybānī’s theorizing was how legal death could be 

reconciled with actual religious affiliation, which is a matter for the hereafter 

as well as for social standing within a religious community. A test of Shaybānī’s 

interest in the affairs of non-Muslims is further provided in his discussion of 

religious conversion within the same family. In the following discussion, 

inheritance laws are under consideration. These laws have shillyshallied 

between ‘property’ and ‘personal status’ categories. The scenarios also involve 

apostasy and dietary laws.  

 

Inq.: What if an underage boy, who has not hit puberty, abandons Islam; 

would you execute him? Ans.: No. Inq.: What if he hits puberty after 

conversion? Ans.: I would place him in jail but not execute him, because 

he never embraced Islam as an adult. Inq.: What if this boy abandons 

Islam after being capable of reasoning but before biological puberty; 

would you allow his father to inherit from him, and would you allow for 

him an Islamic funerary prayer? Ans.: According to a standard of 

consistency (qiyās), yes, but I would not do that, because it is too 

abhorrent (li-fuḥshih). I would not allow his slaughtered animal to be 

consumed by Muslims, nor an Islamic funeral offered, nor his property 

to be inherited by Muslim relatives. Inq.: What if a Zoroastrian boy who 

could also reason but has not reached biological puberty converts to 

Islam; would you consume his slaughtered animal and offer an Islamic 

funeral for him? Ans.: Yes. Inq.: Would you allow him to inherit his 

Zoroastrian father or allow his father or mother to inherit from him? 

Ans.: No. This is what Abū Ḥanīfa and Muḥammad (Shaybānī) hold, 

and it was Abū Yūsuf’s early view. Abū Yūsuf then said: A boy’s 

decision to convert to Islam is acceptable; a boy’s decision to abandon 

Islam is not.51 

 

In Ḥanafī law, istiḥsān, or exception to the standard of consistency, is 

allowed to operate when an important consideration has to be taken into 

account. Why was istiḥsān allowed to operate in considering the case of a boy 

suspected of abandoning Islam: ruled not a Muslim as far as the implications of 

the funeral prayer, the permission of consuming his slaughtered animal, and 

inheritance laws, but extended to a judgment of apostasy? This is the easy one. 

Apostasy punishments are not applied because these tend to require a higher 

standard of evidence and are regularly decided with leniency. The rest is treated 

with strictness. But the case of a Zoroastrian underage boy is harder to regulate. 

Both Abū Ḥanīfa and Shaybānī applied leniency in the funeral and dietary laws, 

but they left inheritance laws aside. The deceased had to be known as 

Zoroastrian to inherit and be inherited by his Zoroastrian family members.  



Fifty-Seven Tracts | Page  23 

Shaybānī’s invocation of istiḥsān in the case of near adulthood children 

also applies in another area, where the conversion of a near-adult to Islam 

liberated him from bondage to non-Muslims, as if he was an adult. Shaybānī 

only stipulates apparent capacity to reason and to understand what it means to 

be a Muslim.52 On his general principle, the sale of a Muslim slave who is 

owned by a non-Muslim is compulsory, though at market price. Incidentally, 

non-Muslims buy and sell wine and pig products, from which Muslims are 

prohibited. Shaybānī prohibits them from trading in usurious transactions53 and 

even the sale of carrion and blood.54  

No legal structure is fully free of a slant, and Shaybānī’s is no exception.  

What strikes me as worthy of reflection is the extent to which modern legal 

cultures continue to be in denial about the need of religious and ethnic groups 

for protection that is afforded to the group, not only their members as 

individuals. Muslims would benefit from acknowledgement that they stand as 

a group, affected by verbal abuses that are hurled regularly on television and in 

the public sphere, especially but not only after the attacks that are marketed as 

‘Islamic’ terrorism.  If their rights as a group were to be taken into account 

against the rights of Islamophobes to speak their mind, things would have gone 

in a better direction. It is strange that one could even begin to wonder whether 

a Christian or a Zoroastrian under Shaybānī’s legal regime in eighth-century 

Iraq might enjoy a liberty that a Muslim in twenty-first century America could 

not. 

 

Conclusion: Shaybānī Today 

Shaybānī is not a new topic. We have heard a lot about him. He is Abū Ḥanīfa’s 

prize student, a student-turned-antagonist of Mālik b. Anas, a confidant of 

Harun al-Rashid. Some of us may even know that he was heavyset (less politely, 

fat), that he had fair skin, among other little details of his life and personality. 

Yet, I doubt that many people who have firm opinions of Shaybānī read much 

of his al-Mabsūṭ. It is long, and its books (tracts) are not of the same quality 

(they were not edited to the same degree). Scholars of Ḥanafī law who spend a 

lot of time reading these works complain about uncertainty as to which voice is 

speaking: whether it is the master, Abū Ḥanīfa; the older student, Abū Yūsuf; 

or Muḥammad b. al-Ḥasan al-Shaybānī himself.  

It is, in any case, a set of fascinating texts, sure to surprise those 

accustomed to late Ḥanafī legal commentaries. They did surprise me regarding 

the type of legal theory operating in them. They are free of the presumptions of 

jurists who speak of rigid principles of “rationale” and the text and subtext of 

the Qur’an and the Sunna. Their interest in consistency is limited to the 

immediate needs of legal explanation. Their occasional dialogical form makes 

a reader participate in imagining solutions to practical problems. A focused 

reader must stop each few pages, in some cases every other page, to ponder an 

insight; some pages raise doubts about claims commonly traded as foundations 



Fifty-Seven Tracts | Page  24 

of the field of Islamic legal history. Finally, Shaybānī’s tracts don’t exude of 

casuistry; rather, they demonstrate a degree of liveliness and responsiveness to 

social reality—perhaps a sensibility needed today as a foundation for any 

serious conversation about the nature of law and its role in a Muslim society.

 A final word. One thing reading Shaybānī teaches me, a 

fifteenth/twenty-first century reader no less, is that a good jurist never expects 

an individual or a community to agree to changes in people’s minds (based on 

whatever theory of freedom) that would change legal positions. In other words, 

I could not agree (today) to a choice C to be made by agent A—whether this 

choice be one regarding their identity, a contractual or non-contractual 

commitment, or any other kind of choice—before this choice is made. A social 

and political contract ought to be made with clear expectations about what 

communities and their members believe. (Accommodating past and present 

choices is hard enough; adding rights to be generated based on future choices 

to the contract goes beyond the human, all too human, capacity of a jurist, and 

hence ought to be viewed with suspicion.) In this essay I hope I succeeded in 

making the case that al-Mabsūṭ merits a contemporary reading with a view to 

the tangled relationship between norms and consent. 

 

Appendix: Fifty-Seven Tracts (and their place in the 2013 edition’s twelve 

volumes) 

I 

kitāb al-ṣalāt—Prayers 

 

II 

kitāb al-ḥayḍ—Menses 

kitāb al-zakāt—Alms 

kitāb al-ṣawm—Fasting 

kitāb al-taharrī—Laws of Caution 

kitāb al-istiḥsān—Subtle Reasoning 

kitāb al-aymān—Oaths 

kitāb al-buyū‘—Sales 

kitāb al-ṣarf—Currency Exchange 

 

III 

kitāb al-ṣarf, cont’d—Currency Exchange 

kitāb al-rahn —Pawns 

kitāb al-qisma —Shares and Divisions 

kitāb al-hiba —Gifts 

kitāb al-ijārāt —Hires and Rents 

 

IV 

kitāb al-ijārāt, cont’d —Hires and Rents 



Fifty-Seven Tracts | Page  25 

kitāb al-sharika—Partnerships 

kitāb al-mudāraba—Money-Effort Partnerships 

kitāb al-riḍā‘—Nursing 

kitāb al-ṭalāq—Divorce 

 

V 

kitāb al-ṭalāq, cont’d—Divorce 

kitāb al-‘itq fī al-maraḍ—Manumission in Illness & on Deathbed 

kitāb al-‘itq—Manumission 

kitāb al-ṣayd wa al-dhabā’iḥ—Hunting and Slaughtering (Dietary Laws) 

kitāb al-waṣāyā—Testaments 

kitāb al-farā’iḍ—Inheritance 

 

VI 

kitāb al-farā’iḍ, cont’d—Inheritance 

kitāb al-mukātib—Indentured Slaves 

kitāb al-walā’—Freedmen 

kitāb al-jināyāt—Crimes against the Body 

kitāb al-diyāt—Blood-money  

 

VII 

kitāb al-diyāt, cont’d—Blood-money  

kitāb al-dūr—Borders and Abodes  

kitāb al-ḥudūd—Specified Punishments 

kitāb al-sariqa—Theft 

kitāb al-ikrāh—Coercion 

kitāb al-siyar—War 

kitāb al-kharāj—Land Tax I 

kitāb al-‘ushr—Land Tax II: Tithes 

kitāb al-da‘wā—Lawsuits & Claims 

 

VIII 

kitāb al-da‘wā, cont’d—Lawsuits & Claims 

kitāb al-shirb—Water Sharing 

kitāb al-iqrār—Confessions 

kitāb al-wadī‘a—Safekeeping Agreements 

kitāb al-‘āriya—Borrowing 

kitāb al-ḥajr—Interdiction 

kitāb al-‘abd al-ma’dhūn—When a Slave is a Business Deputy   

 

IX 

kitāb al-‘abd al-ma’dhūn, cont’d—When a Slave is a Business Deputy   

kitāb al-shuf‘a—Preemptive Actions 



Fifty-Seven Tracts | Page  26 

kitāb al-khunthā—Gender Ambivalence 

kitāb al-mafqūd—The Missing 

kitāb ju‘l al-ābiq—Runaway Slaves 

kitāb al-‘aql—Blood-money II 

kitāb al-ḥiyal—Stratagems 

kitāb al-luqṭa—Missing Objects 

kitāb al-muzāra‘a—Sharecropping 

 

X 

kitāb al-muzāra‘a, cont’d—Sharecropping 

kitāb al-nikāḥ—Marriage 

kitāb al-ḥawāla wa al-kafāla—Money Transfers and Guarantees 

kitāb al-ṣulḥ—Settlement 

 

XI 

kitāb al-ṣulḥ, cont’d—Settlement 

kitāb al-wakāla—Representation, Deputizing, and Power of Attorney 

kitāb al-shahādāt—Testimonies 

 

XII 

kitāb al-rujū‘ ‘an al-shahādāt—Retracting Testimonies 

kitāb al-waqf—Trusts 

kitāb al-ṣadaqa al-mawqūfa—Charitable Endowments 

kitāb al-ghaṣb—Usurpation 

 

 
 

1 With Boynokalin, during a lengthy Istanbul stay, I discussed the editor’s occasional frustration 

with the uneven quality of the texts of al-Mabsūṭ, which led him to start working on an edition 

of the work of al-Hakim of Marw (who died in Rayy, like Shaybānī before him), beginning by 

collecting all the work’s manuscripts. Scholars of Ḥanafī law believe that the mediation of al-

Hakim al-Marwazi was decisive in the reception of Shaybānī’s fifty-seven tracts. 
2 H.F. Jolowics, The Roman Foundation of Modern Law (Oxford: Oxford University Press, 

1957), 8. 
3 Reasonable doubt arises as to whether he drew more on Abu Yusuf than on Abu Hanifa in his 

years in Kufa, given that Abū Ḥanīfa was in prison during this time. I am indebted to Khalid 

Blankinship for alerting me to this point. 
4 Wolfgang Kaiser, “Justinian and the Corpus Iuris Civilis,” in The Cambridge Companion to 

Roman History (Cambridge: Cambridge University Press, 2015), 121 (on the Codex 

Theodosianus); 122 (on law schools).  
5 James Gordley, The Jurists: A Critical History (Oxford: Oxford University Press, 2013), 20. 
6 Ibid., 56. 
7 Note, however, that for the Romans, prison was used frequently as punishment. Andrew 

Lintott, “Crime and Punishment,” in The Cambridge Companion to Roman Law (Cambridge: 

Cambridge University Press, 2015), 325.  



Fifty-Seven Tracts | Page  27 

 
8 John Richardson, “Roman Law in the Provinces,” also in The Cambridge Companion to 

Roman Law (Cambridge: Cambridge University Press, 2015), 45. 
9 Ṣūfī Abū Ṭālib’s text makes different appearances, some of which lacks this section. A 1998 

edition (Cairo: Dār al-Nahḍa al- ‘Arabiyya) titled Tārīkh al-Qānūn fī Miṣr (A History of Law 

in Egypt) covers (at 253-268) mutual influences between Greco-Egyptian and Roman laws in 

Egypt before Islam and ignores the Sharia-Roman law question.  
10 Patricia Crone, Roman, Provincial, and Islamic Law: The Origins of the Islamic Patronate 

(Cambridge: Cambridge University Press, 1987). 
11 al-Aṣl (Doha: Ministry of Endowments, 2013), 7:217, 218. All future references are to this 

edition. 
12 A hint at Justice Holmes’ (d. 1935) dictum, in his Common Law lectures of 1881, that the 

life of the law has not been logic; it has been experience. Oliver Wendell Holmes, The Common 

Law (Chicago: American Bar Association, 2009), Lecture 1, 1. 
13 This anecdote, which would demonstrate Shaybānī’s care not to contradict established 
reports of the prophet Muḥammad’s statements, is used in polemics against him, as 

Boinokalin indicates.  al-Aṣl (Doha: Ministry of Endowments, 2013), 1:29. 
14 al-Aṣl (Doha: Ministry of Endowments, 2013), 4:552. 
15 al-Aṣl, 2:403. 
16 Toby Wilkinson, Writings from Ancient Egypt (London: Penguin, 2016), 133-136. 
17 al-Aṣl, 7:268-420. 
18 Ibn ‘Ābidīn, Majmū’ Rasā’il Ibn ‘Ābidīn (Cairo: Būlāq, 1889?), 2:66.  
19 Malcolm N. Shaw, International Law, 6th ed. (Cambridge: Cambridge University Press, 

2008), 492-493. 
20 al-Aṣl, 7:5. 
21 al-Aṣl, 4:62-63. 
22 al-Aṣl, 4:159-161. 
23 R v Brown (The Crown against Brown) [1993] 2 All ER 75 House of Lords. Note the language 

of the decision: “Where A wounds or assaults B occasioning him actual bodily harm in the 

course of a sado-masochistic encounter, does the prosecution have to prove lack of consent on 

the part of B before they can establish A’s guilt under section 20 and section 47 of the 1861, 

Offences Against the Person Act?” Lord Templeman also states: “Society is entitled and bound 

to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil 

thing. Cruelty is uncivilised. I would answer the certified question in the negative and dismiss 

the appeals of the appellants against conviction” (http://www.e-lawresources.co.uk/cases/R-v-
Brown-1993.php).  
24 al-Aṣl, 4:550. 
25 al-Aṣl, 7:222. 
26 Badr al-Dīn al ‘Aynī (d. 855/13453), al-Bināya Sharḥ al-‘Ināya (Beirut: Dār al-Kutub al-

‘Ilmiyya, 2000), 6:368. 
27 al-Aṣl, 4:551. 
28 al-Aṣl, 5:549. 
29 al-Aṣl, 4:549-572. 
30 al-Aṣl, 4:336. 
31 Paul de Plessis, Studying Roman Law (London: Bloomsbury, 2007), 37. Ulpian’s death date 

invokes the starting point of what is known in Roman history as the crisis of the third century 

(235-284) ending with Diocletian’s ascent to the throne. The three centuries separating Ulpian 

from Justinian’s jurists and collectors of the Digest are those three centuries when the emperors 

battled to reconsider paganism and Christianity, ending with some modification of their legal 

system based on the new religion. The Sassanian empire’s birth date was also in Ulpian’s 

lifetime (224). The empire seems to have ended in an abrupt and strange manner. Its legal legacy 

remains a matter of speculation. Even if the Sassanians were to have their Justinian (an emperor 



Fifty-Seven Tracts | Page  28 

 
to collect some representative views of jurists), we would still debate their impact on Ḥanafī 

law. For a note on the only surviving book of cases (court cases and hypothetical cases) from 

Sassanian Persia, see Encyclopaedia Iranica, “Judicial and Legal Systems III,” 

http://www.iranicaonline.org/articles/judicial-and-legal-systems-iii-sasanian-legal-system. 
32 al-Aṣl, 10:370. 
33 Abū Zayd al-Dabbūsī (d. 436/1032), Ta’sīs al-Naẓar, ed. M. Dimashqī (Beirut: Dār Ibn 

Zaydūn; Cairo: al-Kulliyyat al-Azhariyya, n.d.), 31-32. Sukru Ozen of Istanbul Ilahiyyat 

University contests this book’s attribution to Dabbūsī; he remains committed to its Ḥanafī 

authorship by a fifth/eleventh or early sixth/twelfth century author. 
34 Ibn ‘Ābidīn, Majmu Rasa‘il Ibn ‘Abidin includes the Treaties on Custom (Nashr al-‘Arf). I 

studied Ibn ‘Abidin’s doctrine and some of its practices in Islam, Modernity, Violence, and 

Everyday Life (New York: Palgrave, 2009), chap. 4. 
35 al-Dabbūsī, Ta’sīs al-Naẓar, 31.  
36 Touraj Daryaee, Sassanian Persia: The Rise and Fall of an Empire (London: IB Tauris, 

2009), 77. 
37 al-Aṣl, 4:463. 
38 al-Aṣl, 7:483. 
39 al-Aṣl, 2:523. 
40 al-Aṣl, 4:22. 
41 al-Aṣl, 4:17 
42 Joseph Beale, Bartolus on the Conflict of Laws (Cambridge, MA: Harvard University Press, 

1914), 23-24. Authorities cited by Bartolus are omitted from this quote; note that ‘common law’ 

for him is the lex commune, made up of both Roman and Canon Law, commonly respected, that 

is, in European cities. 
43 al-Aṣl, 7:455-456. 
44 al-Aṣl, 7:437. 
45 A. John Simmons’s Boundaries of Authority (Oxford: Oxford University Press, 2016), 17. 
46 Malcolm N. Shaw, International Law, 6th ed. (Cambridge: Cambridge University Press, 

2008), 2. 
47 Ali Emrah Bozbiyander, “The Advent of Preventative Criminal Law: An Erosion of the 

Traditional Criminal Law” in Criminal Law Forum: The Official Journal of the Society of 

Reform in Criminal Law (Springer, 2017). 
48 al-Aṣl, 7:360. 
49 al-Aṣl, 7:504. 
50 al-Aṣl, 7:505. 
51 al-Aṣl, 7:510. 
52 al-Aṣl, 2:513. 
53 al-Aṣl, 2:514. 
54 Shaybānī’s laws are certainly most vulnerable in regulating the status of children. In al-Aṣl 

(7:457), he considers the case of a man from the unbelief abode who visits the Islam-abode on 

a valid permission (aman); then converts to Islam; and Muslims invaded his homeland. Would 

his children be considered Muslim? Shaybānī says they ought to be treated as fay’, the reason 

being that the man converted in the Islam-abode. Now, if this man were to convert to Islam in 

the unbelief abode, then enter the Islam-abode with his children, the family would all be fay’ 

excepting the children, who are considered Muslim and should not be subjected to any control 

(lā sabīl ‘alayhim). Somewhat consistently with that ruling, the possessions of those with strong 

ties with the Islam-abode but who reside outside of it are treated as an extension of the Islam-

abode upon their seizure. Any part of this person’s property that is deposited with a resident of 

the unbelief abode is also fay’, unless deposited with a dhimmī with relations in the Islam-abode 

(people or government) or a Muslim, in which case it must be returned. The money is as good 

as any property in the unbelief abode, when it is controlled by its residents; but of dhimmīs with 



Fifty-Seven Tracts | Page  29 

 
ties to the Islam-abode or with Muslims, it is as good as belonging to the Islam-abode (and 

hence it is protected).