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Clearly the continued attempt to show how law and culture are interconnected is welcome. However, many of the problems found in Rosen's The
Anthropology of Justice are repeated in this book, even though as far back as
1990 some reviewers had already drawn attention to these problems. On top
of these old broad problems are some new ones affecting specic concepts
and issues. One hopes that subsequent works will take note of these concerns.
Hussein Hassan
Oxford Centre for Islamic Studies

Early Malik Law: Ibn [Abd al-Hakam and his Major Compendium of

Jurisprudence
By Jonathan E. Brockopp (Leiden: E. J. Brill, 2000), 312 pp.
Price HB NLG 185.11. ISBN 9004116281.
This is a book that proceeds somewhat difdently from what is in fact a
very solid foundation. From an examination of one small portion of an
early Malik legal text, Ibn [Abd al-Hakam's Mukhtasaror al-Mukhtasar
other Mukhtasars
al-kabr f l-qh to give it its full name, there being
attributed to him (see pp. 504)Brockopp is able to argue convincingly for
the existence of `a core of authentic material at the heart of texts such as
Malik's Muwatta]' (p. xv), which means, in effect, a core of authentic
material at the heart of the early Islamic legal tradition. However, since
Ibn [Abd al-Hakam's Mukhtasar is not concerned with Hadith texts as
with summary statements of the main judgments of qh,
such but rather
this `core of authentic material' relates in particular to Malik's `juristic
dicta' rather than his ahadth, in other words, to that part of the Muwatta]
own statements and opinions rather than his
that consists of Malik's
transmission of the words of others.
Brockopp argues his case rst by establishing that the Mukhtasar was
indeed written by Ibn [Abd al-Hakam and was done so some time before
the year 210 ah. He summarizes his argument in the following way:
(a) al-Mukhtasar al-kabr is a xed text which was compiled in a single
(b) the existence of several fourth-century manuscript
redactional effort;
fragments demonstrates a wide geographical spread for this text in the fourth
century, establishing a terminus ad quem for this redaction in the third
century or earlier; (c) transmission records in these fragments evince at least
two paths of transmission in the generation immediately following Ibn [Abd
al-Hakam's death; (d) comparison of manuscript witnesses to these two paths

of transmission
demonstrates that neither of these students could have been
the actual editor; therefore Ibn [Abd al-Hakam is the editor, and this text

was xed during his lifetime, probably before

ah 210 (pp. 701).
Having established the `authenticity' of Ibn [Abd al-Hakam's text,
Islamic jurBrockopp is then able to use it `for a reassessment of early
isprudence' (p. 70). In particular, his detailed textual comparisons between
the Mukhtasar, the Muwatta], and the Mudawwana (the results of which are

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43

outlined in Appendix B) enable him to conclude, as suggested above, that

`al-Mukhtasar al-kabr can be used to isolate an authentic body of Malik's

juristic dicta'
(p. xix) and, in particular, that `the material shared by
al-Mukhtasar al-kabr and Yahya b. Yahya's recension of the Muwatta] is an
lik b. Anas' thought from circa 150/767'

authentic representation of Ma
(p. 147). This is already a considerable advance in a eld where scepticism
about the `authenticity' of early sources seems to reign supreme. One cannot
help wondering though that if this is the case for Malik's `juristic dicta',
which form quite a considerable portion of the Muwatta], then one might

expect it to be even more so for the actual ahadth recorded

there, which

exhibit a remarkable similarity between transmissions and for which, of

course, Malik's reputation for accuracy is well known and has been well
demonstrated (most recently by Iftikhar Zaman in vol. 5 of this Journal).
Nevertheless, Brockopp plays safe and merely suggests that `If authentic
material can also be isolated for other early schools, it should be possible
to return to these legal hadith and evaluate them within the context of
known legal development from the Qur]anic period' (p. 147).
With regard to the now fashionable question of `xed' versus `organic'
texts, Brockopp spends some considerable time reacting to the work of
Calder on the same (see especially pp. 679 and the extensive footnotes
thereto). He acknowledges that he is `not entirely comfortable with Calder's
distinction between authored and organic _ texts' and prefers himself to
use the term `xed' rather than `authored', since (a) the whole question of
authorship is `debatable' when, for instance, one man's words can be seen
to be the clear source of another man's xed text, and (b) `what is at issue
here is whether a text is xed in ``a single redactional effort carried out
over a limited period of time''' (p. 67, n. 3, citing Calder's Studies). He is
happy, however, to retain the term `organic'.
For Brockopp, the essential difference between the two types of text lies
in consistency:
A xed text which was completed in a single redactional effort is consistent internally and across all manuscript witnesses; an organic text
is redacted over time with additions and modications from successive
generations (p. 72).
From this point of view, `the manuscript witnesses to al-Mukhtasar

al-kabr defy description as ``organic'''(p. 69) and thus indicate a xed text,
whereas the various transmissions of the Muwatta], with their known textual
variations, have to be considered as pointing to an `organic' text, since they
clearly do not t the condition of being `consistent internally and across all
manuscript witnesses'. But this in a sense bypasses the critical, and admittedly
`debatable', question of authorship. If one is only prepared to name as author
someone who has produced a text `in a single redactional effort carried out
over a limited period of time', then obviously compilations such as the
Muwatta], which were composed over a relatively long period of time, do not
t this denition. One report in the traditional literature, for instance, tells
us of Malik referring disapprovingly to people who had learned his book

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in forty days when it had taken him forty years to complete (kitabun allaftuhu
f arba[na sanatan, akhadhtumuhu f arba[na yawman). Nevertheless, the
term used in Arabic is ta]lf, and mu]allif is precisely the term that one
would expect for `author', as it still is in present-day Arabic.
The point is surely that it is not the nature or format of the book that is
in question but the authenticity of the material in it. Whether the Muwatta]

varies a little from transmission to transmission is hardly relevant if the basic

texts and ideas in the different transmissions are demonstrably similar to each
otherand, indeed, often identicalas Brockopp's comparisons between
Yahya ibn Yahya's and al-Zuhr's transmissions clearly show (see pp. 757).

Brockopp,
however,
downplays the similarities and highlights the differences,
pointing out that `al-Zuhr adds as many as ve to ten per cent more
paragraphs (including both Malik's dicta and authority hadith) than found
in the Layth recension' (p. 75). But what does this achieve? The traditional
sources have long since recognized that some transmissions are longer than
others, and freely acknowledge that, for instance, the transmissions of both
al-Zuhr and Abu Hudhafa al-Sahm contain some hundred ahadth more

said to be
than other transmissions,
although it is al-Qa[nab's that is actually
the largest (akbar). As for the transmissions of al-Shayban and Ibn Wahb,
Brockopp says that they `differ so drastically from the vulgate recension of
Yahya b. Yahya al-Layth that they might be considered entirely different
(p. 74).Indeed, in one sense this is very true. Al-Shayban's `recension'
texts'
is commonly referred to as `the Muwatta] of Muhammad' (i.e. Muhammad
as his transmission of Malik's
ibn al-Hasan al-Shayban), rather than

Muwatta], presumably because of the major differences between the two,

but it still remains a remarkably accurate transmission of much of the
Hadith in Malik's Muwatta] (and not `only a fraction' (p. 74 n. 16), as
Brockopp puts it), which would at least vouch for an `authentic core' of
material transmitted from Malik.
As for `the supposed Muwatta] of Ibn Wahb' (p. 74 n. 16), one wonders

how long people will go on obfuscating

this issue. The traditional sources are
very clear that Ibn Wahb had his own `Muwatta]' which was not at all the
ta]. Indeed, there are now
same as his own transmission of Malik's Muwat
ta]' available (the one
two printed fragments of Ibn Wahb's own `Muwat
edited by Muranyi, and acknowledged by him not to be part of Ibn Wahb's
transmission of Malik's Muwatta] but rather part of Ibn Wahb's own
m ibn Isma[l al-Sn), both of which
`Muwatta]', and the other by Hisha

clearly indicate an independent text which is not a transmission

of Malik's
Muwatta], or even of his ahadth and/or dicta, although there is some
limited overlap. We are then left with the remaining transmissions, which
to my mind so clearly represent one author's compilation and work (ta]lf ),
even if it does have to be termed `organic' by the denition offered by
Brockopp above, that it is pointless to consider them to derive from anyone
other than Malik. No one is suggesting, for instance, that `Malik authored the
Muwatta] as a xed text' (p. 74 n. 15; emphasis added) by the denition
offered above. What is being claimed is that it was Malik who `authored'

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45

itwith whatever shift of denition of `authorship' that requiresin the

sense that the material was put together by him and transmitted from him
in a fashion that was organized by him. (It is not, of course, necessary to
expect `books' in a predominantly oral culture to be like `books' in a
predominantly literary culture.) And, as noted above, once one has come
to the conclusion that Malik's `juristic dicta' are `an authentic representation
of [his] thought', then it seems reasonable to expect that the rest of his
material will be of a similar authenticity.
Related to the question of `xed' versus `organic' texts is the question of
form, and in this context Brockopp makes a rather odd claim. For him, Ibn
`Abd al-Hakam's Mukhtasar, in its summarizing of received views rather

than its presentation

of `statements
from other sources' (p. 110), seems to
represent a dying breed of qh literature which, when `the logic of canonization demanded a more prominent position for Malik, the Qur]an and
the Prophet in legal texts, _ was eventually superseded by the Muwatta] and

the Mudawwanah, both of which ascribe every statement to some authority'

(p. xvii). However, by the eighth century ah at any rate, the whole of the
Mudawwana had been summarized by Khall (d. 769 or 776 ah) in the form
of a `Mukhtasar'albeit not quite the same as Ibn [Abd al-Hakam's work

but nevertheless
a Mukhtasar without attributed textswhich
was to
that one frequently hears the phrase khudh
become, and still is, so popular
Khall bi-ghayri dall (`Take Khall without any proof'), that is, you can rely
on what is in Khall's book without having to worry about the evidence
for it. And of course there are many other summaries, both earlier and later,
of unattributed `Malik' material that have remained extremely popular up
to the present day, such as the Risala of the fourth-century scholar Ibn Ab
Zayd al-Qayrawan (d. 386/996) or the Mukhtasar of al-Akhdar (. 943/

1534), to name just two. It would therefore seem

that there were other
reasons for the eventual abandonment of Ibn [Abd al-Hakam's Mukhtasar

that were not to do with the form in which the material

was presented.
Furthermore, the form of the Mukhtasar does not indicate that `juristic dicta
were the primary source' (p. 110) for Ibn `Abd al-Hakam, in the sense that

this indicates a `disregard for hadith' (p. 208). Although

the evidence could
possibly be taken to point this way, it seems equally possible (and, to my
mind, more reasonable) to argue that Ibn [Abd al-Hakam quite simply did

not consider it necessary to include ahadth for the

particular purposes

he had in mind when compiling the Mukhtasar. Indeed, one could see the

Mukhtasar as a post-Muwatta] development where

the important thing is to

present the digested law, rather than the undigested texts, and thus make the
actual judgments of the law more readily accessible to people.
Where the rst half of Brockopp's book (chapters 1 and 2) provides general
background about Ibn [Abd al-Hakam and his Mukhtasar, the second half

(chapters 3 and 4) deals with the content of the fragments

under considerationnamely, slaveryfollowed by an edition of the relevant Arabic
text and a parallel translation (Appendix A). The choice of this topic was,
Brockopp tells us, `happenstance' (p. xvii) and was `governed by the fact

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b o ok r e v i e w s

that all manuscripts of the text are fragments; therefore it is sensible to begin
analysing those sections which are covered by the most manuscripts' (p. 115
n. 1), which, in this case, are those that deal with slavery. Unfortunately, and
especially given that `In the secondary literature, there is as yet no systematic
treatment of slavery in Islamic law', Brockopp's discussion of the institutions
of slavery, and in particular the law surrounding the two categories of
mukatabs and umm walads, is not as clear as it might be, and the full legal
contextthe default setting, one might sayof the `fringe' issues dealt with
in the Mukhtasar is not elaborated and, indeed, in some cases seems clearly to

have been misunderstood.

A few examples will sufce:
1. With regard to an assumed `disparity _ between the written lawbooks
and the history of the period', Brockopp states that `the lack of regulations on
slave prostitution is striking' (p. 160). This `lack of regulations', however,
should not be surprising, as prostitution is clearly forbidden in the Qur]an,
both with regard to slave-girls and free womenBrockopp himself notes
that `a nal statement on sexual relations, the prohibition of slave prostitution (Q. 24. 33), is straightforward' (p. 134)and there is no need for the
regulation of a practice once it has been forbidden.
2. More important, perhaps, is the misunderstanding behind the detailed
discussion about the status of the children of an umm walad. Brockopp says:
Because she bore the recognized progeny of her master, she and her child
were not to be sold; furthermore, when the master died, she and her
child were to be freed. _ As to the status of her children, al-Mukhtasar
al-kabr apparently assumes that they could either be freed explicitly by the
master when born, or they could retain the status held by their mother and
be freed upon the master's death (p. 164).
This understanding, that an umm walad's children are slaves until she
ceases to be a slave, is also reected in the discussions on the development of
the law relating to umm walads on pp. 192203, during which Brockopp
quotes the following passage (in his translation) from Ibn [Abd al-Hakam's

text:
The children of an umm walad are in her position; they are emancipated by her emancipation, whether [the children are] legitimate or
illegitimate.
If she dies, then they are devoted to that which she had been devoted,
until they are emancipated [at the master's death] or they die (p. 202;
Sh p. 281, para. 15).
This, however, is a misunderstanding of the `default' situation, and thus
of the secondary judgments being detailed here by Ibn [Abd al-Hakam. It is
by a free
well known in Islamic law that the children of a free man, whether
wife or a slave-girl of his, are free, and inherit as legitimate children would.
(If, however, he denies having had intercourse with his slave-girl, that is
a different situation and involves the secondary judgments discussed by
Brockopp on pp. 2003.) What is being considered in the above text, though,
is when a slave-girl who already has children becomes someone's umm
walad: what is the status of her existing children? One way in which this

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situation could arise is detailed at the beginning of Ibn [Abd al-Hakam's

section on the umm walad. He says:

As for someone who marries a female slave, then she bears him a child
and he subsequently buys her, she is his female slave, not his umm walad
(p. 277, para. 3).
In other words, if a slave-girl is married, her children by her husband are
born into slavery and are the `property' of her master (rather than her
husband). If, however, the situation changes so that her husband ceases
to be her husband and becomes her master (by, in this instance, buying her
from her former master), then any subsequent child of theirs would (a) make
her an umm walad and (b) have the status of the father rather than the
mother. So what is meant in the above passage is not that any children of an
umm walad follow her status, but rather any children from a former union
with someone other than her master, whether, as Ibn [Abd al-Hakam puts it,
that union was halal or haram. One would thus understand the passage cited

way:
earlier in the following
Any children of an umm walad [by a former union] share her status and
become free when she becomes free, regardless of whether [that union] was
licit or not.
If she dies [before her master], their status remains the same as hers
would have been until either they become free [when her master dies] or
they die [before her master does].
Several other passages of Ibn [Abd al-Hakam's text seem to have been

similarly misunderstood, the following being

merely three of the more
apparent examples. (I quote the English translation rst and a transliterated
version of the Arabic second):
3. Paragraph 45 (pp. 2445):
When the mukatab has children who are minors and his master wishes
to emancipate him, his emancipation is not permitted unless they are older.
There is no prot in it. [Wa-idha kana li-l-mukatabi l-waladu l-sigharu
fa-a[taqahu sayyiduhu fa-la yajuzu [itquhu illa an yakuna kabran la
manfa[ata fhi.]
I understand the second part of this statement to mean, `It is not permitted
to emancipate him unless he is an old man in whom there is no benet', in
other words who is too old to be able to work and make money for his
master, which is the situation that is envisaged earlier in paragraph 42
(pp. 2445), where it is pointed out that it is permissible for a master to free
a very old mukatab (or a minor) who is not able to pay any instalments
since he is not able to work.
4. Paragraph 90 (pp. 2623):
As for [masters] who enter into a contract with a slave for one thousand
dirhams, whereby [the slave] is given one dinar every month [as his wage],
[the mukatab] keeps [the dinars] and then brings [the masters] their assets.
Thus, he desires to settle [his account] with them at the exchange rate of a day
[of his choosing], but they say: `No, rather at the exchange rate of this day,'
for the exchange must be at the rate of the day on which he pays. [Wa-man

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kataba [abdan [ala al dirhamin yu[t kulla shahrin dnaran fa-aqama

[anhum thumma ja]a-hum bi-malihim fa-arada an yuhasibahum bi-sar

yawmihi fa-qalu hum bal bi-sar dhalika l-yawmi fa-inna

l-sarfa sarfu

l-yawmi lladh yadfa[uhu.]

I understand this to mean:
If someone makes (or `a group of people make') a kitaba arrangement
with a slave for a thousand dirhams which he will pay off at a rate of one
dinar every month, and then he is away at the time payment is due to them,
but, when he comes back with their money and wants to settle his account
with them according to the exchange rate of the day [he comes back], they
say, `No, [we want it] at the exchange rate of the day it was due', then the
exchange rate should be that of the day that he actually makes the payment.
In other words, the issue is one of where the overall amount has been
calculated in dirhams, i.e. silver, but the masters have agreed to accept
payment in dinars, i.e. gold. However, if the mukatab is away, for example
on a trading mission, and thus cannot make his payment at the right time, and
wishes to settle his account at a later date when he returns with the money, it
is possible that the exchange rate has changed, and that one dinar is now
worth more in dirhams than it would have been at the time it was originally
due, and that he is therefore effectively paying off his kitaba more quickly
and giving his masters less labour than if he had paid at the normal time.
What I understand Ibn [Abd al-Hakam to be saying is that if the masters have
agreed to the payment of dinarsin place of dirhams, then they should accept
such payments in dinars, even if such payments, when late, involve what
could be considered a loss to themselves. In other words, the slave agreed to
pay a dinar, and he has paid a dinar, regardless of how many dirhams that
translates into regarding his overall account.
5. Paragraph 93 (pp. 2623):
As for someone who enters into a contract of emancipation for dirhams
and then brings a number of dirhams, but his family refuses to take and
conrm [the payment] unless [it is made] by the kayl though they made no
condition of a kayl or any [specic] number [of dirhams in the contract],
they are bound to take this, even if he were to bring them his measure
dirham by dirham.
Wa-man kataba [ala darahima fa-ja]a bi-darahima [adadan fa-aba ahluhu
an ya]khudha wa-ammanahu [sic] illa kaylan wa-lam yashtaritu kaylan wa-la
[adadan fa-in a[tahum furada wazanahu [sic] fa-dhalika [alayhim an

ya]khudhuha.
Again, I understand this differently from Brockopp. First, I would emend
his text of an ya]khudha wa-ammanahu, which seems to make little sense in
the context, to an ya]khudhu minhu, as I would also emend his wazanahu,
which again seems to make little sense, to wazinatan. Secondly, Brockopp
footnotes the word kayl as `a unit of measure', whereas I would take it
in a more generic sense. I would thus understand the passage to mean:
If someone makes a kitaba contract [with his slave] for [a sum of]
dirhams and [the mukatab] hands over a specic number of dirhams but

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his people [i.e. presumably his master and household collectively] refuse
to accept it unless it is [assessed] by measure, but have not stipulated that
[the dirhams] should be assessed by either measure or number, then, if
[the mukatab] gives them individual [dirhams] of full weight, they must
accept them.
In other words, the question relates here to the amount of silver actually
involved in a payment of a specic number of dirhams. If the amount of
dirhams is assessed by number, and they are underweight, they will be of less
real value. But neither is volume a particularly suitable method of assessing
the amount. Rather, unless the slave's owners have specically stated that
they will accept a certain number or a certain volume of dirhams, it is
weight that should be considered the normal method of assessing an
amount of dirhams, i.e. of silver, and so they must accept an amount of
dirhams if they are of known, full weight.
Finally, overlooking the relatively few typographical errors in the book as
a whole (although there are a fair number in the texts presented in Arabic),
there are certain errors of nomenclature that need to be pointed out to the
unwary reader, if only that the same mistakes should not be repeated again.
As I have pointed out elsewhere on more than one occasion, the scholar
referred to by Brockopp (and, before him, Muranyi) as `[Abd al-[Azz
al-Majishun' (pp. 2 n. 2, 22 n. 91, 93 n. 64, 94, 111 n. 110) is in fact `Abd
al-[Azz ibn al-Majishun, as detailed in [Iyad's Madarik, among other
sources. (There are thus two well-known scholars known by the name of `Ibn
al-Majishun', [Abd al-[Azz and his son [Abd al-Malik. `Al-Majishun' is said
to refer either to [Abd al-'Azz's grandfather, Abu Salama, or to his uncle,
Ya[qub.) Similarly, the man designated by Brockopp as `Ibn al-Baj' (pp. 56
[also n. 228], 58, 61) is in fact simply al-Baj, the same person that is referred
to in the passage that he cites from `Iyad's Madarik on pp. 378, and whose
famous commentary on the Muwatta], al-Muntaqa, is referred to on p. 56
n. 228, but seems not to appear in the bibliography; `Ibn Zamann' (p. 59
[also n. 236]) should read `Ibn Ab Zamann'; `Muhammad b. Shadhil
dhil al-Nayfar';
al-Nayfar' (p. 74 n. 15, 295) should read `Muhammad al-Sha

`[Abd al-Shams' and `[Abd al-Manat' (p. 128

n. 39) should read `[Abd
Shams' and `[Abd Manat' (although I personally have not come across the
name `Abd Manat in the sources); and `al-Nisa]' (p. 183 n. 97) should read
`al-Nasa]'. Nor, incidentally, is Rab[a ibn Ab [Abd al-Rahman `one of

the seven lawyers of Medina' (p. 22 n. 91).

Errors and misunderstandings such as those discussed above naturally call
into question the value of the translation and the analysis based on it, and
detract considerably from the overall value of the work. Nevertheless, it
must be said that Brockopp has highlighted both an important area of
Islamic law and an important early Islamic legal text, as he has also come
up with important evidence for the authenticity of at least one type of
early Islamic legal material.
Yasin Dutton
University of Edinburgh