Page 190 - Arabian Studies (V)

178 Arabian Studies V
such people—since these were gained by unjust means in the first
instance—that he have commercial dealings with them, and that he
who has a female relative married among them oblige her to leave
such a place, even if that means separating her from her husband?
By the standards of what appears a considerable legal tradition,
the author’s judgement is almost moderate. He states that the terri­
tory of such people should be considered not dar harb but dar fisq,
and stresses that although the Imam, as representative of the
Islamic state, can confiscate the property of such wrongdoers, the
individual Muslim should avoid this since it casts doubt upon his
motives and confirms the wrongdoer [scilicet in his assumption that
violence is inevitably ubiquitous]. The appropriation of property is
the prerogative of the Imam only and its particular justification is
its being for the public treasury (bayt mat) of which the Imam is
deputy.
The author’s remarks concerning the common practice of
‘depriving a woman of her inheritance’ reveal a long polemic tradi­
tion in which this fact (or charge) bore striking consequences. He
writes:
As for the question of withholding inheritance, it is a widespread
calamity which those [lit. he] who defy the Unique God
perpetuate [in every generation]. For this reason some of the
Imams ruled that what is between Mecca and Aden is [the
property of] the public treasury [not ... (word unclear in text)],
as [did] al-Mutawakkil ‘ala ’llah Ahmad b. Sulayman and al-
Imam al-Hasan ‘1 b. al-Mu’ayyad and others, and declared null
and void their waqfs and bequests and all their dispositions.
Many intendants such as al-Faqih Hasan al-Nahawi, have also
made similar rulings.27
As the author of this tract explicitly recognises, the high moral tone
of this traditional argument was two-edged. When state authority
was so limited as to be sporadic, such moral concern could at best
! take the form of isolated intervention in the heart of rural
. communities at moments of richly promising conflict. It would
seem that in order to avoid the universal suspicion of ‘withholding
!
inheritance to some women’ {man* al-'irth) a countryman must
have the estate divided by an Islamic legal expert. By so dividing the
estate, the legal expert entered the scene of the major transfer of
property, and needless to say, his service required recompense.28 At
the same time, as the author’s remark concerning waqfs and be­
quests reveals, the mere existence of documentation did not insure a
radical change in the actual patterns of the transmission of family
property.