This post is part of the Digital Islamic Law Lab (DILL) series, in which a Harvard student analyzes a primary source of Islamic law, previously workshopped in the DIL Lab.
Case Summary:
In 1914, a Zaydī judge in Sanaa issued a ruling binding the Jewish community of Sanaa. A minority of the community had rejected the majority’s teaching of a Jewish mystical text, the Zohar. The resulting controversy attracted the attention of the region’s ruler, Imām Yaḥyā, who tried to put an end to it, ultimately sending it to a judge to adjudicate. In his decision, the judge sides with the majority and institutes a number of orders to maintain the peace and the status quo in the community. The judge also issues several other orders related to the Jewish community, including orders regulating the appearance of Jewish men and women, and a process for resolving potentially new (and therefore illegal) synagogues. The decision sheds light on the relationship between the Imām as the leader of the Yemini Muslim majority community with a Jewish minority community of the early twentieth century, as well as the role of the Imām in court decisions, on the capacity and particulars of self-rule by dhimmīs (non-Muslims with protected status in an Islamic state), and on Islamic toleration and non-interference in other religions’ beliefs.
Source:
Mark S. Wagner, Jewish Mysticism on Trial in a Muslim Court: A Fatwā on the ‘Zohar’: Yemen 1914, 47(2) Die Welt Des Islams 207 (2007). Wagner provides a reproduction of the manuscript as well as its Arabic transcription and English translation.
Analysis:
In 1911, the Ottoman government conceded administrative authority over the Zaydī areas in the upper highlands of Yemen to Yaḥyā Muḥammad Ḥamīd al-Dīn (“Imām Yaḥyā”). Zaydism is the Shī‘a sect adopted by roughly half of Yemen’s population. Unlike some other Shī‘a sects, Zaidis don’t believe in the fallibility of Imāms. A few years later, the Jews of Sanaa divided into two camps over the permissibility of studying the Zohar, a mystical Jewish text, and debated the issue in a Sharī’a court at the order of Imām Yaḥyā. This controversy was resolved by a decision issued in 1914 by Yaḥyā b. Muḥammad b. ‘Abbās (“Judge Yaḥyā”).[1] The decision describes the case and its origins, remarks by Imām Yaḥyā, and the orders of Judge Yaḥyā.
According to the document, the case arose when Imām Yaḥyā heard of a controversy within the Jewish community and sent for members of the two sides to explain the dispute to him.[2] After hearing from them, Imām Yaḥyā ordered that Jewish scholars from each side appear in the Sharī’a court in Sanaa so that a reconciliation document could be produced. The core of the controversy is over the Zohar, but the document uses the occasion to settle on several other matters related to the Jewish community, some of which are not related to intracommunal strife, but between the Jewish community and the authorities. The document describes Imām Yaḥyā’s motivation as wanting to deter conflict.
The controversy over the Zohar was between two camps: the majority, led by Yaḥyā Isḥāq (“Rabbi Ishaq”), who claim that the Zohar is part of Judaism and the minority, led by Yaḥyā al-Qafih (“Rabbi al-Qafih”), who claim that the book violates Judaism by negating “God’s unicity and His attributes.”[3] The legal hook for the claim appears to be the Pact of Umar, which the Jewish community agreed to by remaining in the Arabian Peninsula as Jews. But with respect to the Zohar controversy, no provisions of the Pact are cited, nor is there an accusation that the Pact has been violated. The document itself does not expound on the claim, nor does it record how it was analyzed other than that the claimed negation was not immediately apparent to Imām Yaḥyā, who rejected it. This might suggest, understandably, that there was no readily available methodology to adjudicate the correctness of another religion.[4] However, the discussion emphasizes the role of the individual’s freedom of belief and the inappropriateness of coercion in this matter. This invokes the well-known Qur’ānic verse that “there is no compulsion in religion.”[5]
The decision does not appear to further analogize the dispute to Islam. If it had, the anti-Zohar camp might have instead won since the Zaydīs take a harsh stance against the Ṣūfīs, a mystical group, and some Zaydīs also criticize Sunnīs for anthropomorphism (tashbīh).[6] Still, the only explicit principle in the document is the need to find a workable compromise. That compromise is sensibly geared to maintain the status quo, favoring the majority camp led by Rabbi Isḥāq. Rabbi Isḥāq is also given most of the responsibility for arbitrating future disputes according to his interpretation of Judaism, and if that fails, the parties are to go to a Sharī‘a Court which will rule under Sharī‘a law. For a reprehensible act (munkar), Rabbi Isḥāq is to bring the matter to a Muslim judge in a manner resembling, but differing from, the Ottoman millet system.
The opinion also deals with several other issues, some of which lack a clear relationship to the controversy or its leaders.[7] For example, the judge forbids Jewish women from wearing “shuqaq” robes. The opinion also states that Rabbi al-Qafih and Yaḥyā al-Abyaḍ (identified as being on al-Qafih’s side of the dispute) will continue to receive the sum they received before the controversy, indicating that a payment was stopped or reduced.[8] Part of the document addresses the possibility that there might be new synagogues in violation of the Pact of Umar. This issue is to be resolved by an inspection done by the judge himself, who is to be escorted by Jewish officials as well as administration members and police officers chosen by the government. The five allegedly new synagogues include buildings associated with both of the parties. Additionally, the school (maktab) of Ṣāliḥ, were Rabbi al-Qafih taught, is ordered to be vacated, but that non-religious teaching (such as math or Turkish) could continue at the house (bayt) of Ṣāliḥ. There’s no indication from the document that the cessation or reduction of the sum was intended to coerce a settlement, but it may have been. Similarly, the examination of the potentially illegal synagogues may have been intended as a reminder of the mechanisms of state power that could be legally brought to bear against the Jewish community.
This decision was not the last word on either tensions within the minority Jewish community or tensions between the community and authorities. The seal at the top of the manuscript indicates that it is an authorized copy made in 1939, nearly 25 years after the initial decision. The need for a copy implies that the Court’s order was called on to be enforced, which itself implies that conflict within the Jewish community persisted as did the authority’s role in keeping the peace. In the intervening period, Imām Yaḥyā renewed older decrees that Jews collect human excrement and that Jewish orphan children be forcibly converted to Islam.[9]
Notes:
[1] Mark S. Wagner, Jewish Mysticism on Trial in a Muslim Court: A Fatwā on the ‘Zohar’: Yemen 1914, 47(2) Die Welt Des Islams 207 (2007). Wagner’s reproduction of the manuscript, its Arabic transcription, and its English translation is appended. The paper repeatedly refers to the document as a fatwā, but several factors point to it being a court decision rather than a fatwā: The document has binding force (identical to that of the original judgement (qarār)), is from a judge, recorded by a clerk in a Sharī‘a court, and based on testimony from parties adverse to each other, rather than a single petitioner.
[2] According to Jewish sources cited by Wagner, this first exposition took place in the Imām’s residence in al-Qafla, north of Sanaa, where members of the Jewish community stayed for several days. Id. at 211.
[3] In an account by Said al-Naddaf (of Rabbi Isḥāq’s camp), the anti-Zohar camp had been claiming that anthropomorphic language about God in the Zohar made the monotheism of the majority suspect. Imām Yaḥyā reportedly responded by citing anthropomorphic language in the Torah and warning the complainant that his argument might go so far as to threaten the monotheistic understanding of Judaism as a whole, and thus threaten the premise upon which Jews were tolerated as dhimmīs. Id. at 217-18 (citations omitted).
[4] The apparent absurdity of an Islamic court determining how Jews should practice Judaism is highlighted in a challenge by a Jew to the decision in the 1930’s, where Imām Yaḥyā is said to have responded: “Do you want me to coerce you in your beliefs? … If I were to coerce someone, I would coerce all of you into [following] the law of Muhammad.” Id. at 213 (citations omitted).
[5] Al-Baqarah 2:256. Note that the verse uses “ikrāh” for compulsion, while the decision uses “majbūran”. Similarly, the decision invokes the concept of innovation, using the phrase “ghayr muḥādath” rather than the familiar “bid‘ah”.
[6] Wagner, supra note 1, at 214-15 (citations omitted). Wager also notes an observation made by a Jewish liaison between Imām Yaḥyā and the Jewish community: that in 1919, the Imām took a nearly identical stance in resolving a controversy between Zaydīs and Shāfi‘īs.
[7] Wagner explains the connections of other seemingly unrelated orders. For example, one order prohibits shaving beards, removing sidelocks, or otherwise changing normal appearances. This is likely related to charges made against Rabbi Isḥāq’s side, that the anti-mystic rationalists were “agents of foreign powers and adherents of Greek philosophers” and that they removed or hid their sidelocks under their tarbushes “in imitation of their Turkish instructor.” Id. at 212-13 (citations omitted).
[8] Wagner notes that al-Abyad ran Imām Yaḥyā’s mint. Id. at 230 n.73 (citations omitted).
[9] Mark S. Wagner, Jews and Islamic Law in Early 20th Century Yemen 42-43 (2015).