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Yasa and Shari‘a in Early 16th century-Central Asia1

Ken’ichi Isogai
p. 91-103

Texte intégral

I.

  • 1 This article was originally published in Japanese as K. Isogai, “Shaibāni hān to uramā tachi”, Tōyō (...)
  • 2 See, for example, A.A.Semenov, “Sheibani-han i zavoevanie im imperii Timuridov”, and, by the same, (...)
  • 3 See McChesney, Waqf, p. 54, and Subtelny, “Art and Politics”.

1In 1500, the Uzbeks headed by Sheybani Khan captured Samarqand from the Timurid Soltan-‘Ali Mirza and brought Mavarannahr into the domain of the newly established Sheybanid dynasty. Though some scholars have already dedicated their studies to the rise of the nomadic Uzbeks and the career of Sheybani Khan2, it is still not known how Sheybani Khan controlled the territories that came under his domination as a result of his conquests. For example, although it is well known that a Turko-Mongol tradition, that is, the yasa of Chingiz Khan, remained in use among the Sheybanid dynastic family3 despite them having accepted Islam a long time ago, it is still not known how the yasa and the shari‘a coexisted.

  • 4 In the present paper I will refer to the pages of the Mehmân-nâma-ye Bokhârâ published in Tehran on (...)

2In this paper I would like to draw attention to the jurisprudential discussion described in the Mehmân-nâma-ye Bokhârâ by Ibn Ruzbehan (Ebn-e Ruzbehân) and show that Sheybani Khan remained within the framework of the shari‘a as far as the rule of Islamic societies under his discretion was concerned4.

  • 5 There is no material available which would permit us to date the discussion held at Herat, while we (...)
  • 6 As far as Mehmân is concerned, the “ulama of Khorasan” and the “ulama of Mavarannahr” can be identi (...)

3The discussion was first held in Herat presumably after the Sheybanid capture of Khorasan in May 1507 and again in Bukhara at the end of 1508 or at the beginning of 15095. At that time the domain of the Sheybanids consisted mainly of Mavarannahr and Khorasan. This is reflected in the fact that the ulama (‘olamâ) who participated in the discussion are divided by Ibn Ruzbehan into those of Khorasan and those of Mavarannahr6.

II.

4The discussion deals with the rule of inheritance in Islamic law. To simplify the complicated character of Ibn Ruzbehan’s description we will explain its contents with the following figure (Fig. 1). It must be noted that three people, A, B, and C, are men, since the gender of a heir serves as the decisive factor to determine the share of his, or her, inheritance.

  • 7 Mehmân, p. 22; Mehmân auto., fol. 11a.
  • 8 J. Schacht, An Introduction to Islamic Law, Oxford, 1964, p. 170.
  • 9 Mehmân, p. 22.

5Ibn Ruzbehan says that if C has died before A, D does not inherit C’s share when A dies. This means that a son hinders grandson inheriting from the latter’s grandfather7. His statement expresses the prohibition of representation, a well known rule of Islamic law8. In Herat, Sheybani Khan explicitly stated his opinion against this rule before the ulama. He asserted that only the one located on the way from grandson to grandfather could hinder the former inheriting from the latter, i.e. only a living father (C) hinders his son (D) inheriting from the latter’s grandfather (A). If C is alive at the death of A, C hinders D inheriting from A. Otherwise, B does not hinder D inheriting from A9.

  • 10 Schacht, Introduction, p. 172-173.

6According to Islamic law, a heir hinders every one who is related to the deceased through him from inheritance10. Thus, if C is alive at the death of A, he hinders D. On the other hand, as mentioned before, Islamic law prohibits representation. Thus, even if C has died before A, D is not able to inherit from A, for B hinders him.

7Sheybani Khan also acknowledges that a father hinders his son inheriting from the latter’s grandfather. Therefore, the point is whether representation is permitted or not.

  • 11 Mehmân, p. 22.

8Furthermore, Sheybani Khan pointed out that though, according to the ejmâ’ (arab. ijmâ’), i.e. decision taken by the assembly of the specially qualified ulama (mojtahed), a son hindered a grandson from inheritance unconditionally, it was not known on what grounds the ejmâ’ in question was based11. He said:

  • 12 Mehmân, p. 22.

“We should bring out of the Koran or of the Sunna of the Prophet the very word which proves that a grandson does not inherit with a son. Otherwise, a mere ejmâ’ of the ulama without any ground is not worth listening to. Indeed, according to the yasa of Chingiz Khan the grand-son whose father has died before the grandfather inherits equally with the son”12.

  • 13 With regard to the “yâsâ of Chingiz Khan”, the following two articles have shaped the contemporary (...)

9It is worth mentioning that the claim of Sheybani Khan was based upon the yasa of Chingiz Khan13. It may be assumed that the crucial point of this discussion was the contradiction between the yasa and the shari‘a.

  • 14 The Koran, IV (“Women”), 11 (translated by the author).
  • 15 Mehmân, p. 23-24.

10It was Ibn Ruzbehan himself who tried to cope with the claim put forward by the khan. He quoted the following verse from the Koran: “Allah decrees about your children (awlâd). To a son belongs the share of two daughters”14. His argumentation can be summarized as follows: with these words God explains the rule of inheritance and He settles things on behalf of the children. The real meaning of the word awlâd is “children”. On the other hand, grandsons and granddaughters can be included in the notion of awlâd, but only in figurative meaning. One should adopt the real meaning, since there is no context here leading to the acceptance of figurative meaning. The addressees of God’s decree are, thus, limited to children. Therefore, a grandson does not inherit with a son15.

11It seems, however, that Ibn Ruzbehan did not succeed in persuading Sheybani Khan to accept his argumentation. In Bukhara, the khan ordered the ulama to discuss this subject again and demanded that they produce a proof from the Koran or from the Sunna for the aforementioned rule of inheritance in Islamic law. But none of the ulama present could accomplish this task. Ibn Ruzbehan writes as follows:

  • 16 Mehmân, p. 24.

“Finally, [Sheybani Khan] wanted to bring the rule established by the ejmâ’ to a standstill, because it lacked the proof from the Koran or from the Sunna, and hoped that there would be a practice in accordance with the rule of Chingiz Khan. As it was, however, in contradiction with the ejmâ’ of the ulama, he remained wavering and hesitating”16.

  • 17 On walâ’, see EI2, art. “Mawlâ”; Schacht, Introduction, p. 170-173.

12At this point, a man from Bukhara named Amir Ahu, actively attempted to reinforce the khan’s opinion on this problem. We will deal with his very complicated argumentation in a schematic manner, as shown in the figure 2. It is worth noting that in his argumentation the property inherited by the descendants is of a somewhat specific character, that is, the clientage (walâ’) between a manumitter and a freed slave17.

Fig. 2

Fig. 2

(Numbers indicate the chronological order of death)

13His argumentation is based on the following conditions placed in chronological order:

  1. A sets E free

  2. A dies leaving two sons, B and C

  3. C dies leaving a son, D

  4. E dies

  • 18 Shoreyh Qâżi, a famous semi-legendary Muslim judge (qâżi), is said to have been a qâżi of Kufa in t (...)
  • 19 Mehmân, p. 24; Mehmân auto., f. 12b-13a.
  • 20 Mehmân, p. 24-25.

14Amir Ahu asserts that Shoreyh Qazi18 came to the conclusion that the son (B) and the grandson (D) should inherit the clientage equally, though, according to the ejmâ’ of the ulama, only the son (B) inherits the clientage left by the freed man (E), hindering the grandson (D) from the inheritance in this case19. Further, he explains the theoretical grounds of Shoreyh Qazi’s statement. According to the latter, there are two people who leave inheritance, that is A and E, a fact which makes this case different from the usual inheritance cases. After A had died, C and his brother B inherited the clientage that existed between A and E. When C died, D inherited it in his turn from C. Thus, B and D proved both to be owners of the clientage. Finally, Amir Ahu insists that a son and a grandson have to be dealt with equally in inheritance20.

  • 21 Mehmân, p. 25.

15On the other hand, Ibn Ruzbehan categorically refutes this argumentation. He asserts that the one who leaves the clientage as an inheritance is only the freed man (E), and that A cannot be regarded as the one leaving an inheritance. Thus, since C had already died at the moment of E’s death, only B inherits the clientage hindering D from inheritance. Furthermore, Ibn Ruzbehan states that if one assumes the argumentation of Shoreyh Qazi to be valid, it rather reinforces the teaching that a son and a grandson do not inherit equally, than the teaching that both of them inherit equally21.

16He does not explain what these words mean in fact. So we must try to find out their meaning ourselves. As mentioned before, the essential point of this discussion lies in whether representation is permitted or not. According to the argumentation of Shoreyh Qazi, and thus, also, of Amir Ahu, D inherits the clientage not directly from A, but through C. That is, D obtained the clientage by way of inheritance from father to son. Indeed, his argumentation only aims at proving that D may have the clientage left by A at the same time as B, through twice repeated inheritances from father to son: at first from A to C and, then, from C to D. Thus, his argumentation has nothing to do with and cannot justify the representation for which the direct inheritance from grandfather to grandson is an indispensable premise. Perhaps, that is what Ibn Ruzbehan alluded to.

  • 22 Mehmân, p. 25-26.

17Nevertheless, Ibn Ruzbehan did not express his opinion publicly in front of the khan. Sheybani Khan himself was pleased with the fact that his opinion coincided with that of Shoreyh Qazi. He therefore ordered one of his sons, Mohammad Timur, to send a royal decree all over Mavarannahr ordering the qazis to act in accordance with the teaching of Shoreyh Qazi, that is to treat a son and a grandson equally in inheritance22. The discussion was not a mere intellectual diversion. On the contrary, it had a real legal, or political, effect.

  • 23 Mehmân, p. 26.

18The ulama, including Ibn Ruzbehan, appealed to Mohammad Timur and asked him to persuade the khan to let them discuss the question again. He told the khan of their indecision on the issue, and the khan ordered them to debate it again23.

  • 24 Mehmân, p. 26-27. The Ṣaḥiḥ of Bokhâri (d. 870) enjoyed the highest esteem among Sunnite compilatio (...)

19In the course of this newly arranged discussion, Qazi-ye Samarqand stated that the teaching of Shoreyh Qazi could not reinforce the khan’s opinion and that Amir Ahu did not understand the subject of this discussion at all. Then the khan again asked for a proof from the Koran or from the Sunna which had given grounds to the aforementioned rule in Islamic law. Having tried to accomplish this task earnestly, Ibn Ruzbehan found, at last, in the Ṣaḥiḥ of Bokhari, a quotation prohibiting categorically the representation by a grandchild, and presented it to the khan24.

  • 25 Mehmân, p. 27-28.

20Sheybani Khan ordered him to translate it from Arabic into Persian. It is obvious from this fact that the khan did not know Arabic very well, if at all. Ibn Ruzbehan first asked Sharaf al-Din ‘Abd al-Rahim Sadr, then the ulama of Khorasan and finally the ulama of Mavarannahr headed by Qazi-ye Samarqand, about the effectiveness of the word as a proof for the prohibition of representation. They unanimously acknowledged its effectiveness and the khan abandoned his intention of putting a rule of the yasa into effect. The discussion ended with the victory of ulama, with the exception of Amir Ahu25.

III.

21We will examine now three ulama participating in the discussion, and especially, their relationship with the khan, in order to find out whether it could have influenced their stand in the argument.

1. Sharaf al-Din ‘Abd al-Rahim Sadr

  • 26 Khwândamir, Ḥabib al-siyar, ed. Mohammad Dabir Siyâqi, Tehran, 1333 Sh/1954, vol. IV, p. 381 [herea (...)

22Some historical sources call him ‘Abd al-Rahim Turkestani (Torkestâni). He was from Sabran, a city in the Turkestan region. Having studied in Samarqand and Herat, he came back to Turkestan. Here he came into the court service of Sheybani Khan, when the latter conquered the region, and the khan appointed him to the office of ṣadr. Khwandamir states that the khan favoured him and ‘Abd al-Rahim took part in all kinds of political and financial matters26.

23There are a few studies devoted to the office of ṣadr during the Timurid period, which can serve as a criterion for us to study this office during the Sheybanid period.

  • 27 On the office of ṣadr in the Timurid period, see H.R. Roemer, Staatsschreiben der Timuridenzeit, Wi (...)

24In the Timurid period, the ṣadr was a dignitary who supervised the “shari‘a officials” and occupied the supreme position in the management of vaqf, taking care of the protection and enhancement of religious and charity institutions27. In fact, the Sheybanid ṣadr almost entirely inherited the functions of the Timurid ṣadr. Among these functions, the management of the “shari‘a officials” is of great importance in regard to the relationship between the ruler and the ṣadr.

  • 28 Certainly, the word “sayyid” means only the descendant of the Prophet. So it is not precise to call (...)
  • 29 On the function of ṣadr in the Sheybanid period as the managing figure of “shari‘a officials”, see (...)
  • 30 Faḍlallâh b. Ruzbihân al-Iṣfahânî, Sulûk al-Mulûk [Soluk al-moluk], ed. Muḥammad Niẓâm al-Dîn and M (...)

25In both Timurid and Sheybanid periods, the “shari‘a officials” under the ṣadr’s control, consisted of sayyids (seyyed) and ulama28. The ṣadr defined their rank at the court, appointed and dismissed them to and from a variety of offices, and determined their salary29. Moreover, the ṣadr seems to have carried out the additional function of providing a link between the ulama and the ruler, since, perhaps, it was the ṣadr who defined the rank of an individual ulama at the royal court. Ibn Ruzbehan states that the ṣadr “is a mediator” between the ruler and the ulama30.

26Judging by his personal career and the office he had, ‘Abd al-Rahim must have been close to the khan. Nevertheless, it was he who first acknowledged the effectiveness of the evidence presented by Ibn Ruzbehan. If we consider that this evidence was to nullify the khan’s opinion, it can be assumed that his relationship with the khan did not influence his decision.

2. Qazi-ye Samarqand

  • 31 Mehmân, p. 5.
  • 32 Soluk, p. 62.
  • 33 Soluk, p. 62-63.
  • 34 Hasan Nesâri, Moẕakker-e aḥbâb, Ms British Library Or. 11151, fol. 118b; Hasan Nesâri, Mozakker-e a (...)

27He was a descendant of Abu’l-Lays Samarqandi, a famous jurist of the Hanafite school of the 10th century. At the time of the discussion, Qazi-ye Samarqand occupied simultaneously the offices of qâżi and sheykh al-eslâm of Samarqand31. According to Ibn Ruzbehan, the sheykh al-eslâm of the Sheybanid period was appointed by the ruler, and was responsible for the matters of the shari‘a32. In other words, he occupied the supreme position among the Islamic jurists of Samarqand at that time. Moreover, Ibn Ruzbehan states that in contrast to the ṣadr, the sheykh al-eslâm is exempt from the duty of constant court service33. There is a curious information on the status of the sheykh al-eslâm in a 16th century Central Asian anthology, Mozakker-e aḥbâb, which implies that at that time the sheykh al-eslâm occupied or, at least, was considered to occupy, a higher position than the ṣadr34.

28As it is known from its specific character, especially the exemption from a constant court service, the relationship between the ruler and the sheykh al-eslâm appears to have been much more delicate than in the case of the ṣadr. There was, however, probably a political background behind the appointment of Qazi-ye Samarqand to the office of sheykh al-eslâm.

  • 35 Habib, p. 279.
  • 36 On this occasion, Sheybani Khan entrusted the office of qâżi to Khwaja ‘Abd al-Latif, also a descen (...)

29It is well known that during the Timurid period the office of sheykh al-eslâm in Samarqand was occupied by descendants of Borhan al-Din Abu Hasan ‘Ali (d. 1197), the author of the famous jurisprudential work of the Hanafite school, Hidâya. When Sheybani Khan captured Samarqand in 1500, he ordered to seize the property of those who were taking part in political matters. At the same time, he also removed the office of sheykh al-eslâm of Samarqand from the line of Borhan al-Din, entrusting it to that of the descendants of Abu’l-Lays who were, according to Khwandamir, keeping away from political matters35. At the present state of our research we have no material which enables us to identify Khwaja Khavand, appointed by Sheybani Khan to the office at the very moment of his capture of the city, with Qazi-ye Samarqand (lit. the qâżi of Samarqand). But the fact that Qazi-ye Samarqand, a descendant of Abu’l-Lays, occupied the office in Samarqand, is certainly the result of the politics of the khan36.

30Therefore it can be said that Qazi-ye Samarqand also had close ties with the khan. Nevertheless, he categorically refuted the argumentation of Amir Ahu even though it also meant the refutation of the opinion of the khan.

3. Amir Ahu

  • 37 Hafiz-i Tanish ibn Mir Muhammad Buhari [Ḥâfeẓ-e Tânesh b. Mir Moḥammad Bokhâri], Sharaf-nama-yi Sha (...)
  • 38 Habib, p. 277-278.

31His original name, Seyyed Khavand Bokhari (Khâvand Bokhâri), can be found in a late 16th century Central Asian chronicle, Sharaf-nâma-ye Shâhi (also called ‘Abdallâh-nâma)37. In 1500, Sheybani Khan sent a messenger named Seyyed Jalal al-Din Khavand Bokhari to Khwaja Yahya, the leading figure of the Naqshbandi order at that time, and to Soltan-’Ali Mirza to Samarqand, which was under siege from his armies, in order to persuade them to surrender the city38. This Seyyed Jalal al-Din Khavand Bokhari can be identified with Amir Ahu. Thus, in all likelihood, he also had ties with the khan.

  • 39 Mehmân, p. 25-26.

32As it has been previously mentioned, he actively tried to support the khan’s opinion, while ‘Abd al-Rahim Sadr and Qazi-ye Samarqand refuted it in spite of their high offices and close ties with the khan. Ibn Ruzbehan severely criticizes him by saying that he aimed to “destroy the foundation of Islamic law” for the reward he could expect39. It is, however, worth noting that Amir Ahu relied upon the teaching of Shoreyh Qazi, the semi-legendary authoritative figure in Islamic jurisprudence, in order to justify the khan’s opinion. He apparently attempted to legitimize it within the framework of the shari‘a.

33Judging by these facts, it seems that close relationship with the ruler did not influence the opinion of individual ulama in the discussion. We will now turn to Ibn Ruzbehan’s indirect claim that whereas he and the reminding ulama tried to defend “the foundation of Islamic law”, Amir Ahu attempted to destroy it (even though he stayed within the framework of the shari‘a in his attempt to justify the khan’s opinion). We must examine whether the author’s claim can be accepted as true, keeping in mind that we rely only upon what he tells us.

IV.

  • 40 Mehmân, p. 25-26.
  • 41 Mehmân, p. 22.
  • 42 EI2, art. “Idjtihâd”.

34According to Ibn Ruzbehan, Sheybani Khan reached his opinion through “ejtehâd” (arab. ijtihâd)40. The fact that at the beginning of the discussion the khan says: “(...) from analogy by reason (qiyâs-e ‘aql) it follows that...”41, implicitly shows his consciousness of performing ejtehâd, for the term ejtehâd means the adoption of analogy (qiyâs) to the Koran or to the Sunna42. It is, however, very doubtful that he was qualified for performing ejtehâd. As we have seen before, he even does not seem to have had sufficient knowledge of Arabic, the complete acquisition of which is an indispensable condition for ejtehâd.

  • 43 Soluk, p. 74.

35In his later work, Soluk al-moluk, Ibn Ruzbehan explicitly refutes the ruler’s right to perform ejtehâd43. If we consider that the Soluk was compiled in 1514, five years after the composition of the Mehmân and four years after the death of Sheybani Khan near Marv, there is a possibility that the conclusion found in the Soluk had been prompted by the ejtehâd in question performed by the khan. If so, it can be said that Ibn Ruzbehan did not qualify the khan for performing ejtehâd. And if not so, there must have been consensus among the ulama at that time that rulers did not have the right to perform ejtehâd. In any case, from the viewpoint of Ibn Ruzbehan the ejtehâd performed by the khan himself was not valid.

36Thus, according to Ibn Ruzbehan, there were two fundamental problems incompatible with the shari‘a in the opinion expressed by the khan: a) it originated from the “yasa of Chingiz Khan”, b) the ejtehâd performed by the khan which led him to state his opinion was not valid.

37Nevertheless, he passed these facts over in silence and tried to refute the khan’s opinion only on the authority of the Sunna. That is, not only Amir Ahu, but also Ibn Ruzbehan remained within the framework of the shari‘a by compromising to a certain extent. The difference lies only in that the former aimed at supporting and the latter at refuting the khan’s opinion.

38Finally, we will turn our attention to the standpoint of Sheybani Khan. He aimed at applying a rule of the yasa to the Islamic societies under his control. It is, however, worth noting that he consciously and thoroughly tried to accomplish this in harmony with the shari‘a. He attempted to make a rule of Islamic law conform to the principle of the yasa, re-interpreting the former through the ejtehâd. The fact that he repeatedly asked the reluctant ulama to find the very word in the Koran or in the Sunna which could nullify his opinion shows his intention of resolving the problem within the framework of the shari‘a. The existence of such an intention can obviously be seen from the fact that he abandoned his aim, accepting the proof presented by Ibn Ruzbehan.

  • 44 D. Ayalon, “The Great Yâsa of Chingiz Khân. A Re-examination. Preface. — (B) The Attitude of the Mo (...)
  • 45 M.E. Subtelny seems to suppose that by the reign of ‘Obeydallah (1533-40) the Sheybanid dynasty had (...)

39One could assume such an intention as only a pose taken by a politician of Turko-Mongol origin. But it seems more likely to suppose that the principles of the yasa were felt by Sheybani Khan as being perfectly compatible with the shari‘a, for such a phenomenon can be attested in the case of the past Mongol rulers who had accepted Islam in the khanates both of the Qipchaq and of the Il-Khans44. If a ruler intends to put in practice such a coexistence, which he himself accepts as totally harmonious, it demands a certain amount of compromise on the side of the ulama who are being put in the face of a major contradiction. There was, however, an inviolable principle observed by all the participants in the discussion. It was the legitimacy given by the shari‘a. Even for Sheybani Khan, a ruler of Turko-Mongol origin, the shari‘a was an absolute authority, at least in respect to the rule of Islamic societies under his supremacy. From the very beginning, the Sheybanid dynasty established in Mavarannahr was a political entity that guaranteed the authority of the shari‘a45.

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Notes

1 This article was originally published in Japanese as K. Isogai, “Shaibāni hān to uramā tachi”, Tōyōshi Kenkyū, 52-3 (1993). The present paper is a shortened, partly revised, version.

2 See, for example, A.A.Semenov, “Sheibani-han i zavoevanie im imperii Timuridov”, and, by the same, “Pervye Sheibanidy i bor’ba za Maverannahr”, Trudy AN Tadiikskoj SSR, XII-1 (1954). On the political and economic history of Central Asia after the establishment of the Sheybanid dynasty, see R. McChesney, Waqf in Central Asia: Four Hundred Years in the History of a Muslim Shrine, 1480-1889, Princeton, 1991. On the cultural policies of the early Sheybanids, see M.E. Subtelny, “Art and Politics in Early 16th Century Central Asia”, Central Asiatic Journal 27-1/2 (1983). Among Japanese scholars, T. Horikawa and K. Kubo have published some articles on the history of the early Sheybanids.

3 See McChesney, Waqf, p. 54, and Subtelny, “Art and Politics”.

4 In the present paper I will refer to the pages of the Mehmân-nâma-ye Bokhârâ published in Tehran on the basis of only one manuscript kept in the Nuri Osmaniya library, N° 3431 (Fażlallâh b. Ruzbehân Khonji, Mehmân-nâma-ye Bokhârâ, ed. Manuchehr Sotuda, Tehran, 1341 Sh/1962, Reprint 1976) [hereafter: Mehmân}. I also consulted the autograph copy published in facsimile in Moscow and kept in the Institute of Oriental Studies of the Uzbek Academy of Sciences, No. 1414 (Fażlallâh ibn Ruzbihân Iṣfahâni, Mihmân-nâma-yi Buhârâ (zapiski buharskogo gostja), ed. R.P. Džalilova (Russian translation and commentary), Moscow, 1976 [hereafter: Mehmân auto.]. I added the pagination of the facsimile text only when I corrected the former text by it. On the relationship between the two manuscripts on which these publications are based, see Džalilova (ed.), Mehmân auto., p. 39-45. There are two European translations of the Mehmân-nâma-ye Bokhârâ, the aforementioned work by Džalilova, and the one by U. Ott, Transoxanien und Turkestan zu Beginn des 16.Jahrhunderts, Das Mihmân-nâma-yi Buhârâ des Faḍlallâh b. Ruzbihân unği, Übersetzung und Kommentar, Freiburg, 1974. Each of them, however, is a partial translation. Moreover, the Russian translation includes an essential error concerning the jurisprudential argument discussed in the present paper, while the German translation omits the entire chapter devoted to it. In my original Japanese article, I attempted to give the full Japanese translation of the discussion in question, together with a commentary.

5 There is no material available which would permit us to date the discussion held at Herat, while we can safely assume that the Bukhara discussion took place in the month of Ramażân 914 (24 December 1508-22 January 1509), because the chapters preceding and following the discussion deal with events that happened in Bukhara during that month (Mehmân, p. 1-31).

6 As far as Mehmân is concerned, the “ulama of Khorasan” and the “ulama of Mavarannahr” can be identified with Shafi‘ites and Hanafites respectively. See K. Isogai, “Ibun Rūzubihān to Kazaku ensei”, Seinan-Azia Kenkyū 43 (1995), p. 3-4.

7 Mehmân, p. 22; Mehmân auto., fol. 11a.

8 J. Schacht, An Introduction to Islamic Law, Oxford, 1964, p. 170.

9 Mehmân, p. 22.

10 Schacht, Introduction, p. 172-173.

11 Mehmân, p. 22.

12 Mehmân, p. 22.

13 With regard to the “yâsâ of Chingiz Khan”, the following two articles have shaped the contemporary trend of its study: D. Ayalon, “The Great Yâsa of Chingiz Khân. A Re-examination. Preface. – (A) The Basic Data in the Islamic Sources on the Yâsa and on Its Contents”, Studia Islamica 33 (1971); D.O. Morgan, “The ‘Great Yâsâ of Chingiz Khân’ and Mongol Law in the Ilkhanate”, BSOAS 49/1 (1986). We will not deal here with the problem introduced by Morgan concerning the very existence of the “yâsâ”. Unfortunately, I could not find the “yâsâ” quoted by Sheybani Khan among the sources known and available to me. Thus, we can only say that it was one that Sheybani Khan regarded or, perhaps, had people regard as a “yâsâ”. But, the fact that he quoted it as a “yâsâ” implies its Turko-Mongol origin. On the other hand, there certainly remains a possibility that this particular yâsâ is not recorded in any of the sources known to scholars today.

14 The Koran, IV (“Women”), 11 (translated by the author).

15 Mehmân, p. 23-24.

16 Mehmân, p. 24.

17 On walâ’, see EI2, art. “Mawlâ”; Schacht, Introduction, p. 170-173.

18 Shoreyh Qâżi, a famous semi-legendary Muslim judge (qâżi), is said to have been a qâżi of Kufa in the Omayyad period (Schacht, Introduction, p. 24)

19 Mehmân, p. 24; Mehmân auto., f. 12b-13a.

20 Mehmân, p. 24-25.

21 Mehmân, p. 25.

22 Mehmân, p. 25-26.

23 Mehmân, p. 26.

24 Mehmân, p. 26-27. The Ṣaḥiḥ of Bokhâri (d. 870) enjoyed the highest esteem among Sunnite compilations of the hadith. In 1482, Ibn Ruzbehan studied this work in Medina under the direction of al-Sakhâwî (d. 1497), a famous scholar of the Mamlukid period (Džalilova, p. 19; Ott, Transoxanien und Turkestan, p. 16-17; U. Haarmann, “Staat und Religion in Transoxanien im friihen 16. Jahrhundert”, ZDMG 124-2 (1974), p. 344). The hadith quoted by Ibn Ruzbehan can be found in the Ṣaḥiḥ in the chapter on inheritance.

25 Mehmân, p. 27-28.

26 Khwândamir, Ḥabib al-siyar, ed. Mohammad Dabir Siyâqi, Tehran, 1333 Sh/1954, vol. IV, p. 381 [hereafter: Habib].

27 On the office of ṣadr in the Timurid period, see H.R. Roemer, Staatsschreiben der Timuridenzeit, Wiesbaden, 1952, p. 143-146; G. Herrmann, “Zur Entstehung des Ṣadr-Amtes”, in: U. Haarmann and P. Bachmann (eds), Die Islamische Welt zwischen Mittelalter und Neuzeit, Beirut, 1979.

28 Certainly, the word “sayyid” means only the descendant of the Prophet. So it is not precise to call them “officials”. We include them among the “shari‘a officials” only for the sake of convenience.

29 On the function of ṣadr in the Sheybanid period as the managing figure of “shari‘a officials”, see Zejn al-Din Mahmud Vasifi [Zeyn al-Din Maḥmud Vâṣefi], Badâye’ al-vaqâye’, ed. A.N. Boldyrev, 2 vol., Moscow, 1961, p. 367-368.

30 Faḍlallâh b. Ruzbihân al-Iṣfahânî, Sulûk al-Mulûk [Soluk al-moluk], ed. Muḥammad Niẓâm al-Dîn and Muḥammad Ghawth, Hyderabad, 1966 [hereafter: Soluk], p. 62-63. The work was finished in 1514 and devoted to ‘Obeydallah Soltan, later Grand Khan (r. 1533-40) with the purpose of teaching him how to rule in accordance with the shari‘a.

31 Mehmân, p. 5.

32 Soluk, p. 62.

33 Soluk, p. 62-63.

34 Hasan Nesâri, Moẕakker-e aḥbâb, Ms British Library Or. 11151, fol. 118b; Hasan Nesâri, Mozakker-e aḥbâb, Ms Staatsbibliothek Berlin, Orient. Minutoli 40, fol. 153b.

35 Habib, p. 279.

36 On this occasion, Sheybani Khan entrusted the office of qâżi to Khwaja ‘Abd al-Latif, also a descendant of Abu’l-Lays (Ḥabib, p. 279). Certainly, it is possible to suppose that he is the very Qazi-ye Samarqand and that by the time of the discussion in question he was also appointed to the office of sheykh al-eslâm, in addition to that of qâżi. If so, his appellation “Qazi-ye Samarqand” might have come from the first office which had been entrusted to him.

37 Hafiz-i Tanish ibn Mir Muhammad Buhari [Ḥâfeẓ-e Tânesh b. Mir Moḥammad Bokhâri], Sharaf-nama-yi Shahi (Kniga shahskoj slavy), ed. M.A. Salahetdinova (introduction, Russian translation and facsimile of manuscript D88), vol. I, Moscow, 1983, fol. 35a.

38 Habib, p. 277-278.

39 Mehmân, p. 25-26.

40 Mehmân, p. 25-26.

41 Mehmân, p. 22.

42 EI2, art. “Idjtihâd”.

43 Soluk, p. 74.

44 D. Ayalon, “The Great Yâsa of Chingiz Khân. A Re-examination. Preface. — (B) The Attitude of the Mongols, and particularly of the Mongol Royal Family, to the Yâsa”, Studia Islamica 34 (1971), p. 177.

45 M.E. Subtelny seems to suppose that by the reign of ‘Obeydallah (1533-40) the Sheybanid dynasty had changed its nomadic character to an Irano-Islamic one (Subtelny, “Art and Politics”, p. 147-148). It is hard for me to understand why one should adopt the notion of a state of Irano-Islamic type against that of a Turko-Mongol type without firm evidence. It would apparently be better to adopt a notion such as the state of Turko-Mongol-“Islamic” type, at least, as far as the Sheybanid dynasty is concerned, though validity of such a dualistic, and somewhat dogmatic, notion remains doubtful.

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Ken’ichi Isogai, « Yasa and Shari‘a in Early 16th century-Central Asia », Cahiers d’Asie centrale, 3/4 | 1997, 91-103.

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Ken’ichi Isogai, « Yasa and Shari‘a in Early 16th century-Central Asia », Cahiers d’Asie centrale [En ligne], 3/4 | 1997, mis en ligne le 03 janvier 2011, consulté le 24 octobre 2017. URL : http://asiecentrale.revues.org/476

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Ken’ichi Isogai

Dept. of South-West Asian History, University of Kyoto, Japan

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