The Mercenary Mediterranean_ Sovereignty, Religion, and Violence in the Medieval Crown of Aragon - Hussein Fancy

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in general.^52 As opposed to legal theory (uṣūl al- fiqh), these opinions were

born out of practice and reflected specific social and historical circum-

stances.^53 Rather than blindly enforcing tradition, jurists sought to recon-

cile precedents with the exigencies of the present.^54 In the cases above — of

Ibn Rushd al- Jadd, Ibn Rabī‘, and al- Wansharīsī— each scholar wrote in

and responded to a particular moment of crisis and territorial contrac-

tion: the fall of Toledo, the fall of Murcia, and the Portuguese occupation

of North Africa respectively.

Although al- Wansharīsī drew on earlier opinions, he in fact selectively

cited and rearranged these arguments to suit his purposes and audience.

For instance, he trimmed the words of al- ‘Utbī, who qualified his view of

Muslim soldiers in Christian armies, by adding: “If he [a Muslim soldier]

was forced and commanded to do what he did ( yukrih alayhi wa- yūmar

bi- hi), and was unable to disobey his commander out of fear for his life,

then I do not see that he is an enemy (ḥāriban), or that he should be killed

if captured; nor is he punished, if it is clear that he was commanded to do

this and feared for his life.”^55 Leaders and not regular soldiers, in other

words, bore the moral burden. Elsewhere, al- ‘Utbī also considered the

presence of Christian soldiers in Islamic armies licit under certain circum-

stances.^56 He established rules, for instance, on how to share spoils of war

with Christian soldiers.^57 If he could permit this relationship within con-

straints, then could he have permitted the opposite — Muslim soldiers in

Christian armies — in another context? Facing a Portuguese occupation,

al- Wansharīsī was not interested in making such qualifications or even

considering such possibilities.

It should be added, however, that although he appears rather categori-

cal on the matter of Muslims living with Christians and serving in their

armies, al- Wansharīsī did nevertheless make room for competing opin-

ions elsewhere. For instance, he cited the opinion of the Mālikī jurist al-

Māzarī (d. 1141 ), who considered it licit for Muslims to enter non- Muslim

territory in hopes of guiding (li- rajā’ hidāya) those there or turning them

away from error (naqlihim ‘an ḍalāla).^58 In short, within the Mālikī school,

there was room for debate and discussion. This was not a closed tradition.

Examining views beyond those of the Mālikīs reveals an even wider

divergence on the questions of residence in Christian territories and

jihād. Facing circumstances similar to the Mālikīs — the expansion of non-

Muslims into Muslim territory — Shāfi‘ī and Ḥanafī scholars, which is to

say, scholars from two of the other four orthodox schools of Islamic law,

responded very differently.^59 They held that any territory in which Islamic