Fifty-Seven Tracts: Shaybānī’s (d. 189/805) Aṣl/Mabsūṭ, Twelve Centuries On

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 acknowledgment 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.