Reinterpretation of the Ḥanafī Doctrine of Equivalency in the Context of the Controversial Marriage of a Mamluk Amīr: Case of Sirāj al-Dīn al-Hindī (d. 773/1372)
Okan Kadir YılmazAccording to the classical doctrine of Ḥanafī madhhab of equivalency in marriage law, a man must be equal to the woman he will marry concerning certain elements, which include the absence of slavery and non-Muslims in the past of the person and his ancestors. Therefore, a man who lacks these and other elements of equivalence is considered unequal to a woman who possesses such elements, such that marriage between the two is considered void (bāṭil) under certain circumstances and not binding (lāzim) in others. In the second half of the 8th/14th century, during the Bahrī/ Turk Mamluks period, scholars discussed the validity of a marriage between a high-ranking Mamluk amīr (Amīr Bashtak) and a sister or daughter of the Sultan (Khond Sarah) on the basis of the abovementioned Ḥanafī doctrine of equivalence. Although several unknown jurists argue that the marriage in question is invalid according to the Ḥanafī madhhab, Siraj alDīn al-Hindī, an Egyptian Ḥanafī qāḍī al-quḍāt (chief qāḍī) of the period, wrote a treatise on the subject (Risāla fī masʼalat al-kafāʼah) and defended the validity of the marriage. Hindī’s argument, which used the principles of uṣūl al-fiqh and the method of al‑takhrîj al-fiqhī (legal derivation), included an innovative interpretation of the foundational doctrine of equivalence of the Ḥanafī madhhab that considered the changing political and social structures in the region after the Mamluks’ rule.
Bir Memlük Emirinin Tartışmalı Evliliği Bağlamında Hanefî Denklik Öğretisinin Yeniden Yorumlanması: Sirâceddin el-Hindî (ö. 773/1372) Örneği
Okan Kadir YılmazHanefî mezhebinin nikâh hukukundaki klasik denklik öğretisine göre erkeğin evleneceği kadına belli unsurlarda denk olması gerekir. Kişinin kendisinin ve atalarının geçmişinde kölelik ve gayrimüslimlik gibi hususların bulunmaması da bu denklik unsurları arasında yer alır. Dolayısıyla bu ve diğer denklik unsurlarını taşımayan bir erkek bunları taşıyan bir kadına denk görülmediği için ikisi arasında gerçekleşen evlilik, bazı koşullarda bâtıl (geçersiz) kabul edilirken, bazı durumlarda da lâzım (bağlayıcı) görülmez. 8./14. yüzyılın ikinci yarısında Bahrî/Türk Memlükler döneminde üst düzey rütbeli bir Memlük emiri ile (Emir Beştek) sultanının kız kardeşi ya da kızı (Hond Sâre) arasında gerçekleşen bir evliliğin geçerliliği Hanefi mezhebine ait bu denklik öğretisi temelinde tartışılmıştır. Kimliği bilinmeyen bazı fıkıhçılar tarafından söz konusu evliliğin Hanefi mezhebine göre geçersiz olduğu ileri sürülürken, dönemin Mısır Hanefi Kâdılkudâtı Siraceddin el-Hindî konuyla ilgili bir risale kaleme alarak (Risâle fî mesʾeleti’l-kefâʾeh) bu evliliğin geçerliliğini savunmuştur. Hindî’nin fıkıh usûlü ilkelerinden ve fıkhî tahrîc yönteminden faydalanarak ortaya koyduğu bu savunu, Hanefi mezhebinin kurucu denklik öğretisinin, Memlüklerin hakimiyetiyle birlikte bölgede değişen siyasi ve sosyal yapıyı dikkate alan yenilikçi bir yorumunu da içermektedir.
Sirāj al-Dīn al-Hindī’s (d. 773/1372) Risāla fī masʼalat al-kafāʼah, was the Hanafi qāḍī al-quḍāt (chief qāḍī) during the Baḥrī/Turk Mamluk period, is a significant fiqh treatise that reflects the change in the doctrine of the Ḥanafī madhhab of equivalence in marriage. This treatise was previously published about half incomplete and attributed to another Mamluk Ḥanafī jurist, al-Qāsim b. Qutlubogā (d. 879/1474), who lived approximately a century later (al-Qāṣim b. Qutlubogā, al-Kafā’ah fī al-nikāḥ, Critical ed. Abd al-Sattār Abū Ghuddah, Beirut: Dār al-Bashāir al-Islāmiyya, 1423/2002). The reason behind the composition of Hindī’s treatise was a marriage that occurred on 27 Jumādā al-Awwal 770 (January 7, 1379). The marriage between Khond Sarah (the sister or daughter of Sultan al-Malik al-Ashraf Zayn al-Dīn II Shaʿbān ibn Husayn [d. 777/1376]) and Amīr Bashtak (a commander with the rank of “taqdimat alf”: command of one thousand/ major [d. 771/1370]) occurred at the request of the Sultan and was solemnized by the qāḍī al-quḍât Sirāj al-Dīn al-Hindī. Shortly after the marriage, several unknown jurists argued that the marriage was invalid (bâtil) according to the doctrine of equivalence of the Ḥanafi madhhab. The reason is that Amīr Bashtak, similar to all other Mamluk amīrs, was previously a slave. Mamluk historians, such as al-Maqrizī (d. 845/1442), al- ‘Aynī (d. 855/1451), Ibn Taghrībardī (d. 874/1469), Malaṭī (d. 920/1514), and Ibn Iyās (d. 930/1524), also included this marriage in their histories, albeit with a few minor differences.
According to the indications identified by the study of the treatise of Hindī, the jurists who opposed this marriage based their objections, whose details were not mentioned in the sources, on a ruling in the Ḥanafi madhhab. This ruling states that “guardians (awliyā) other than father and grandfather can marry a girl who has not reached puberty to only someone who is her equal, otherwise the marriage will be invalid.” An issue in this ruling, which Hindī himself addressed, is that the bride, Khond Sarah, was married before she reached puberty, by a guardian (waliyy; her older brother Sultan II Shaʿban ibn Ḥusayn) apart from her father and grandfather, to someone who was not equal to her in terms of freedom and Muslim ancestry. Hindī felt the need to answer this objection, which was seemingly strong in jurisprudential terms, because it is based on this ruling, which was found in many Ḥanafī sources. The political sensitivity of the issue, which was due to the importance of the identities of the bridegroom and the bride, seemingly urged Hindī to consider the issue seriously.
In this treatise, Hindī reinterpreted the classical Ḥanafī doctrine of equivalence within the framework of the changing political and demographic conditions in Egypt after the Mamluk rule. According to this interpretation, Hindī concludes that Amīr Bashtak was equivalent to Khond Sarah and that the marriage was valid in terms of the Ḥanafī doctrine. In reaching this conclusion, he first argued that the view that equality is not a condition is stronger in terms of evidence. Nevertheless, he did not refrain from presenting his evaluation, which includes a new interpretation of the classical Ḥanafī doctrine of equivalence, on the basis of three possibilities, taking into account the condition of equivalence in marriage.
First, none of the Mamluks were originally slaves. According to Hindī, the enslavement of the Mamluks was illegitimate, because it was not conducted in accordance with Islamic law from the beginning. All of these people were free, therefore, slavery did not occur in Amīr Bashtak’s past. The second is that even if the notion that the Mamluks were slaves was generally accepted, Amīr Bashtak was free according to information given to Hindī by reliable people, because his parents were free. In this case, he was equal to his bride. Finally, the Mamluks were originally slaves, and Amīr Bashtak had a history of slavery. Hindī based his innovative interpretation of the classical Ḥanafī doctrine of equivalence on this last possibility. Accordingly, Hindī establishes that the condition of equivalence is (1) a right of the people (ḥaqqulʿibād), (2) comprehensible (maʿqūl al-maʿnā), (3) one of the provisions that can be changed according to changing conditions (i.e., time, place, and custom), and (4) the principle that acquired superiority can replace incomplete congenital superiority. Hindī bases his conclusions on the jurisprudential issues he cites from the founders of Ḥanafī school and the jurists who followed them.
In the first three stages, Hindī uses the data of the uṣūl al-fiqh and reveals that the condition of equivalence is one of the provisions that is susceptible to change. In fact, the condition of equivalence can be terminated whenever a guardian gives consent. This scenario demonstrates that the condition of equivalence is one of the rights of the people instead of the right of God and is included in the category of provisions that are subject to change. Second, al-Hindī states that equivalence in marriage is not a taʿabbudī (incomprehensive) ruling but is stipulated on the basis of a reason that can be comprehended by the intellect. He identifies the reason as “removing shame from the woman and her guardians.” At this point, Hindī, who considers dawarān as one of the methods for determining the cause, confirms that the presence and absence of the condition of equivalence is in a cycle (dawarān) with a situation in which shame (to the woman and her guardians) accompanies the relevant marriage. In other words, for marriages that bring shame to the woman or her parents, the man is unequal to the woman, whereas in marriages that do not, the man is equal to the woman. Hindī’s conclusion, which is based on 40 years of personal observation and this uṣūl determination of the cause of the ruling of equivalence, is as follows: no problem of equivalence exists in terms of marriages with the Mamluks. The reason is that the notion of “bringing shame to the parents,” which causes the ruling of nonequivalence, does not exist. In the third stage, Hindī endeavors to prove that the elements of equivalence are among the provisions that may change concurrently with changes in time, place, and customs based on three jurisprudential issues under the Ḥanafī doctrine. Therefore, he argues that although all Mamluk Turks had slavery in their past and their fathers and grandfathers were non-Muslims, these issues were no longer elements of equivalence among them. In the final stage of his interpretation, al-Hindī uses the principles of Islamic jurispridence (uṣūl al-fiqh) and the method of legal derivation (al‑takhrîj al-fiqhī). Accordingly, Hindī concludes that the qualities acquired by Amīr Bashtak compensated for his lack of congenital equivalence and that equivalence in terms of the Ḥanafī doctrine in marriages with Mamluks in general and in the marriage subject to this objection in particular is not a problem.
Hindī’s interpretation of the classical Hanafī doctrine of equivalence is important, because it concretely demonstrates the solution of a Ḥanafī jurist for an actual legal problem during the Mamluk period. The principles of usūl al-fiqh that al-Hindī used to solve the problem and his practice of applying them to the present case reveal his mastery of this branch of knowledge. Similarly, the method of al‑takhrīj al-fiqhī that he used in the final stage of his interpretation demonstrates his extensive familiarity with Ḥanafī jurisprudence. His interpretation of the classical Ḥanafī doctrine of equivalence is a remarkable and overlooked example of the methods and strategies by which legal changes in classical periods due to emerging new problems could be realized within the limits and possibilities of traditional jurisprudential schools.
