Profiles in Courage: the Moroccan Jurist Abu Muhammad `Abd al-Salam b. Hamdun Jasus

Dec 16

This is the story of an 18th century Moroccan jurist who did not leave any important collection of legal opinions or an important commentary on a Sidi Khalil or otherwise make an important literary contribution to the history of Islamic law.  Nonetheless, he did something else which is probably more important for the possibility of securing a society governed by law: he willingly became a martyr to uphold the integrity of the law, not by revolting and leading a hopeless quest to overthrow the ruler, but simply by sticking to his values, and insisting that he would not compromise the clear demands of the law for the sake of the ruler’s convenience. The ruler was the Moroccan Sultan, Mulay Ismail Here is a link to an account of the relevant events in the Arabic chronicle, al-Istiqsa li-Akhbar al-Magrib al-Aqsa.

The long and short of the story is that Mulay Ismail was facing persistent manpower shortages in his military. He discovered that free males had better things to do with their lives than campaign year-round.  To solve this problem, he decided to re-enslave the free African population found in Morocco.  Presumably, it would be easier to impress blacks into the military than the Arab and Berber populations because racial difference would make it harder for them to escape the reach of the royal command.  The problem that he faced in carrying out this scheme was that it was categorically forbidden under Islamic law to enslave a free person, and so he had to come up with some kind of strategy to justify his actions.  Because most of these freed Africans had, at one point been slaves of the state, Mulay Ismail decided that the best strategy would be to argue that they had, in fact, never been lawfully manumitted in the first place, so that he was not, in reality, re-enslaving them, but that he was only enforcing the rights of the state to their bodies that had never, in fact, lawfully lapsed.  (Muwlay Ismail himself was born to an African mother.)

Mulay Ismail essentially coerced the legal establishment of Morocco into going along with his plan. While they offered some resistance to his scheme, only Abu Muhammad `Abd al-Salam b. Hamdun Jasus never wavered in his  refusal to go along.  He paid the ultimate price for his convictions when agents of the ruler had him strangled while he slept.  When he was asked about his reticence to conform to the ruler’s will, he denied that he was acting heroically or out of an intent to defy the ruler. He said his only desire was to vindicate the law, and that these individuals whom the ruler had sought to enslave were known to all to have been free persons by virtue of the fact that they were their neighbors, their business partners, and in some cases, their family through marriage. It was inconceivable to him that one could turn one’s eyes from such a material breach of the most elementary demands of the law.

His stance, it seems to me, is what ought to be the stance of any religious scholar, indeed, any person of integrity, living under a regime of tyranny: neither calling for rebellion nor finding pretexts for the tyrant’s illegal conduct, but rather, acting as a witness to the law’s demands, come what may.  I certainly believe that had Arab intellectuals, religious and secular, showed the courage of Jasus over the last sixty years, we would not be in the predicament we are in today.

I want to conclude with one additional observation: Mulay Ismail was trying to respond to a real problem. Morocco at the time was under a genuine threat emanating from Portugal and Spain.  His inability to rely on the free Arab and Berber population of Morocco to defend the state revealed what political philosophers might describe as a lack of civic virtue among the populace, insofar as they preferred to tend to their private interests over contributing to the public good.  Yet, his solution, making a class of the citizens slaves of the state to discharge the public good, was also a clear act of injustice.  Imam Malik, for this reason, opined that duties of military service must be fairly distributed among the free population by lottery, i.e., a universal draft, as the only means of balancing private interest with the public good.  The unwillingness of the populace to fulfill these obligations was the proximate cause of the ruler’s resort to illegality, but it simply pushes back the ultimate question: why were 18th century Moroccans unwilling to sacrifice their private interests for the common good?

That, it seems to me, was the fundamental problem that led to the political crisis which ultimately took Jasus’ life. It remains, in my opinion, the central problem facing modern Arab political culture: is it possible to have citizens that can prefer the common good to their own personal advantage, and if so, what must we do to achieve such a society? What is clear is that violating legal norms in the name of expediency has been tried, repeatedly, but all it does is further entrench the destructive pursuit of self-interest at the expense of the common good, just as the pre-Islamic Arab poet `Adi b. Zayd said:

 

نرقع دنيانا بتمزيق ديننا                        فلا ديننا يبقى ولاما نرقع

We mend our affairs by tearing apart our religion, so neither our religion remains nor what we are mending.

 Post-script: a friend alerted me to the fact that Mulay Ismail sent a letter to Egyptian scholars seeking their approval of his policies.  It was translated by Chouki ElHamel in his book, “Black Morocco: A History of Slavery, Race and Islam.”  Part of the letter (pp. 312-16) is available on Google Books. Note his complaint that the free men of Morocco were not suitable for military service because they were both too poor and too greedy for military service, and so he let them be “to preoccupy themselves with their interests, letting them off except in their duty  toward the treasury of the Muslims.”

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