Heterodoxy Among Muslim Judges: On Attempts at Jokes and Judicial Constraints

Guest contributor Maribel Fierro examines a scene of heterodoxy in the recently published English translation of The Ultimate Ambition. Translated from Arabic into English for the first time in full by Elias Muhanna of Brown University, The Ultimate Ambition was written in the 14th century by a retired Egyptian bureaucrat named Shihab al-Din al-Nuwayri. Fierro looks at a scene in which the judge Yaḥyā ibn Aktham is asked to explain the meaning of desire, to which the theologian Thumāma expresses displeasure. These two figures traditionally assume the responsibility of jurisprudence together. Fierro portrays the theologian’s reproach as an expression of his anxiety about the prevailing attitude of being “relaxed” about codified practice and decorum. The judge’s attitude was not unique to his time; Fierro observes it continues to this day as part of a belief in rational Islamic inquiry.

One of the anecdotes collected by al-Nuwayrī in his Nihāya (The Ultimate Ambition), recently translated by Professor Elias Muhanna of Brown University,[1] narrates how the caliph al-Ma’mūn asked (the judge) Yaḥyā b. Aktham about the meaning of desire, to which he replied: “It is the auspicious thoughts that a man’s heart falls in love with and his soul esteems.” The Muʿtazilī theologian Thumāma b. Ashras was not pleased with the judge’s intervention in a theological discussion, telling him that he should limit himself to “answering questions about divorce or whether a pilgrim violates his ritual purity by hunting a gazelle or killing an ant.” This was not the only criticism that Yaḥyā b. Aktham faced. As a judge, he was known for his penchant for joking and for being trifling in his court sessions, such that he became open to the accusation of mujun (libertinism).[2]

Perhaps Yaḥyā b. Aktham should not be seen as a transgressor, but as someone who acted naturally according to what may have been deemed appropriate in the context of his times. What criticisms he was subject to would indicate not his alleged transgressions but the increasing activity of those who wanted to erect disciplinary and other constraints on judges: a judge does this and can only do this; a theologian does this other thing; a judge should behave this way and only in this way; jokes and libertine remarks can only happen in such-and-such restricted settings. Yaḥyā b. Aktham should then be seen as embodying what I would call a ‘relaxed’ way of being a Muslim, one that seems to me to have been the predominant attitude through the centuries. And because it was the predominant attitude, we hear more the voices of those who were intent on erecting boundaries and establishing clear demarcations of what was right and what was wrong. The fact that they were more vociferous should not lead us to believe that they were more numerous.

Writings on Islamic sects and heretical doctrines, and legal discussions on apostasy, blasphemy, heresy, innovations and innovators, while documenting the arguments put forward by those intent on defining correct behaviour and belief, also reveal the multifaceted ways in which Muslims through the centuries have understood what was acceptable in their religion.[3] In a thought-provoking article,[4] Norman Calder pointed out that monotheistic religions are mostly made of five ‘ingredients’: scripture, community, gnosis (mystical insight, knowledge), reason and charisma. He further noted that scripture and community were the fundamental ingredients of Sunnī Islam with some – but debated – space given to gnosis and reason, and none to charisma. I asked my students this year which ingredients they would choose as fundamental to Islam. Most of those who are Sunnī Muslims stated without any doubt that Islam was a religion of scripture and reason. They seemed to be indifferent to community, referring to the long tradition of interpreting scripture that Muslims have undertaken throughout their history,[5] and they also voiced their strong disapproval of gnosis. While his mujun proclivities would probably have shocked them, my impression is that Yaḥyā b. Aktham’s interest and involvement in theological matters would have appeared to them as part of acceptable rational inquiry and would not have elicited their condemnation.

Maribel Fierro is a Research Professor in the history of Islam and Islamic Law at the Spanish National Research Council’s humanities branch in Madrid, Spain. She has served as a Fellow at the Institute for Advanced Studies at The Hebrew University of Jerusalem, a Visiting Scholar at the University of Chicago, a Herodotus Fellow at the Institute for Advanced Study at Princeton, and as a Researcher at CSIC. She will be a Senior Scholar at ILSP from January to July 2017.

[1] Muhanna, Elias (ed. and transl.), The Ultimate Ambition in the Arts of Erudition, A Compendium of Knowledge from the Classical Islamic World By Shihab al-Din al-Nuwayri, Penguin Random House, 2016.

[2] Waki, Akhbar qudat Misr, II, 166, 168; Tillier, “Un espace judiciaire entre public et privé,” : 503-504. On Yahya b. Aktham’s connection with mujun, see Z. Szombathy, Mujun: Libertinism in Mediaeval Muslim society and literature (Cambridge, 2013): 169.

[3] On the extensive literature on these issues see Maribel Fierro (ed.), Orthodoxy and heresy in Islam: Critical Concepts in Religious Studies, 4 vols., Routledge, 2013, and Camilla Adang, Hassan Ansari, Maribel Fierro and Sabine Schmidtke (eds.) Accusations of Unbelief in Islam: A diachronic perspective on takfir, Leiden: Brill, 2015.

[4] Norman Calder, “The limits of Islamic orthodoxy”, in F. Daftary (ed.), Intellectual Traditions in Islam, Londres: IB Tauris, 2000, pp. 66-86.

[5] An attitude already dealt with by Khaled Abou El Fadl in his Conference of the Books: The Search for Beauty in Islam, Lanham, MD:  University Press of America, 2001.