Sharia Practice in Search of a Compromise

Document 39

As part of organizing the governance of the Muslim provinces of the Transcaucasian Krai and the Muslims’ judicial system, tsarist officials in the Caucasus worked on creating Muslim legal codes by selecting for this purpose the writings of Islamic legal scholars (fukaha’) that were best known and most popular there. In particular, the Committee on the Governance of Muslim Provinces, established in 1828, worked on this. It received information on the sources and nature of Sharia court proceedings among Transcaucasian Muslims. Until the end of the 1830s this information was sent by the high commissioner in Georgia.

The harmonization of Sharia provisions with Russian civil and criminal laws caused serious difficulties among judicial and administrative institutions when they heard disputes among Muslims. As a result, officials in St. Petersburg and the Caucasus discussed the possibility of issuing Russian-language translations of several key dogmatic compositions or of drawing up separate Islamic legal codes for each sect and madhhab [school of Islam]. The argument against publishing excerpts from legal writings was the fear that a collection compiled by representatives of the tsarist authorities would prompt outrage and rejection among local Muslims. A translation, however, as Professor Mirza Kazem-Bek of Kazan University put it, “which is specifically published with the text, is nothing more than a translation of the original, and even if some error were made in it, it would not incur… censure of anyone.”[i] Moreover, an official publication of the original text and translation of the most authoritative legal treatise was expected to enable the government to achieve several of its most important objectives. First, to introduce a uniform judicial practice in the Muslim parts of Transcaucasia. Second, to instill in the Muslims of the Caucasus the opinion that the Russian authorities respected the laws of Islam and were not thinking of violating or amending them. And third, a Russian translation would make it easier for the government to control the actions and verdicts of Muslim courts.

In 1843 Emperor Nicholas I charged the main administration of the Transcaucasian Krai with gathering precise data about the laws and customs of Islam that defined the rights and social relationships of Muslims. The administration decided, as a first step, to collect manuscripts of the necessary writings and translate them into Russian. The plan was at the next stage to compile a kind of code out of them and then begin comparing the provisions of Muslim law with national Russian laws.

Concurrently with the main administration’s work, also in 1843, work commenced in St. Petersburg to compile a Muslim legal code on the basis of the sources available there. This task was assigned to state councilor P. I. Demezon, an official of the Ministry of Foreign Affairs. The code was based on the writings of Hanafi ulama, with a minor sprinkling of interpretations by the authors of other Sunni legal schools and Shia legal scholars. Demezon’s code was sent for a preliminary review to Department 2 of His Imperial Majesty’s office; the question of its publication, however, was postponed indefinitely.

The Shia dogmatic writings were the source for a major work on Muslim law, “An Exposition of the Principles of Muslim Jurisprudence,” prepared by Senator Baron N. Ye. Tornau and published in 1850 in St. Petersburg.[ii] Professor Mirza Kazem-Bek of Kazan University spent a long period of time on a work by the well-known Hanafi legal scholar Sadr al-Shari’a al-Sani al-Mahbubi, “Muhtasar al-Vikaia,” published in 1845 in Arabic.[iii] In addition, 1862 and 1867 Kazem-Bek published the original text and translation of specific chapters (on trade and pledges, on inheritance) from the exposition of Shia Muslim law, “Shara’i’ al-Islam fi Masa’il al-Halal val Haram, by Abul-Kasim al-Muhakkik al-Avval.[iv]

The proximity of Transcaucasia to Iran and the Ottoman Empire, which during that period were the centers of Muslim religious and philosophical thought, was directly reflected in the cultural life of Transcaucasian cities: Tiflis, Yelisavetpol, Shusha. The adaptation of traditional Muslim education and religious-legal views and doctrines to the new political conditions was manifested in the selection of dogmatic literature, which went through the censor and was authorized for use. When the Transcaucasian Shia and Sunni Muslim religious boards opened in 1873, they were given responsibility for the selection and dissemination of religious literature among followers of the Islamic religion. The authorities took measures through the politically reliable clergy to prevent the dissemination of literature containing antigovernment statements or propaganda for Muridism and pan-Islamism. Official correspondence, however, is full of information about the difficulty of monitoring the movements of clerics from Iran and the Ottoman Empire to Transcaucasia and back and, hence, any religious literature they were bringing in.

The greatest volume of written output came from fiqh (literally, “knowledge [of the law]”) with its vast range of topics. This was substantially promoted by the system of Islamic education. Fiqh was the principal subject of study at madrassas, and an expert and teacher of fiqh – the mudarris – was the central figure at the educational institution. Works were written on the four Sunni madhhabs, and were recognized as fundamental, getting wide dissemination in all corners of the Muslim world. Besides original writings, numerous commentaries, all sorts of abridgements, selections of excerpts, compendiums and collections enjoyed popularity and were in circulation.

While working with a list, difficulties arose in identifying the titles of compositions and determining their authorship. One of the main reasons is the Cyrillic transliteration of titles in Eastern languages, with the peculiarities of phonetically conveying sounds. A second, equally serious reason is the existence of a sizable number of original works and compilations of local origin whose authors are little known, and the texts themselves are not recorded in the catalogs of various collections. Nevertheless, I tried the best I could to identify the works in the lists and to establish their authorship