Mastering Mālikī Law: A Moroccan Case Study

Abstract

Pedagogical canons, loosely defined as frameworks and instructional content to impart disciplinary literacy, can be vital sources for understanding stability and transformation in diverse historical contexts. This article documents and contextualizes the curriculum of fiqh and uṣūl al-fiqh during a period of far-reaching reform at Dar El hadith El Hassania, a Moroccan institute for training elite ʿulamāʾ. The balance of pre-modern canonical material with more recent sources anchors the institution in a centuries-long tradition of Mālikī fiqh while facilitating adaptation to political, social, and economic transformations.

In a remarkable diatribe recorded in 2021, Shaykh Ali Gomaa, the former Grand Muftī of Egypt and leading Azharī, belittles Imām al-Shāṭibī (d. 790/1388), a renowned Andalusian Mālikī scholar thus:

Al-Shāṭibī? Yes, al- Shāṭibī was a [mere] journalist, my son (yā ibnī), like our journalist-brethren here who write about Islāmiyāt (Islamic studies).

Listen, son, ḥabībī, I’ve written [on] this issue .… and I gathered there the words [views] of al-Zarkashī [and other] leading scholars. This al-Shāṭibī, he’s a journalist (ṣaḥafī) like our journalists now. He [al-Shāṭibī] is not like one of those scholars who are, you know, the specially learned (rāsikhīn) like Imām al-Qarāfī, al-Zarkashī, Ibn Rushd. No, he’s a reporter, like someone who published in a common newspaper of his era. For this reason, his books are never studied. But in that bygone [unimportant] era, during which people did stuff with names like ‘fiqh al-maqāṣid’, and ‘uṣūl al-maqāṣid’ and I don’t know what else… Raysūnī, and others…. That (kind of stuff) makes the bereaved woman laugh and the pregnant one miscarry. This has nothing to do with the [real] scholars. Our scholars are al-Nawawī, al-Rifāʾī, al-Zarkashī, al-Qarāfī, [people] like these, like the four (Sunnī) imāms. So, God preserve you, when you [consult an authority], refer to back to those. Don’t refer to someone who is not reliable.

As the YouTube snippet of Gomaa’s unscripted performance circulated across the globe, his harshness provoked consternation.¹ News outlets and religious scholars condemned the insults to al-Shāṭibī and asserted an Islamic ethic of respect for scholars. Notably, a search for motivation was absent perhaps because of the Azharī shaykh’s well-established reputation as a curmudgeon.²

A transregional and historical perspective suggests a more compelling explanation. Gomaa’s comments are precisely the type we expect to see in the context of ‘canon wars’ or ‘curriculum wars’: heated disputes about pedagogical content and authority that mark moments of crisis or significant socio-economic and cultural shifts. In the USA, debates about Critical Race Studies on college campuses and what counts as ‘African American Studies’ are only the most recent examples.³ In the MENA region, Gomaa’s harsh polemics are more legible in the context of Morocco’s increasing influence in the Sunnī religious marketplace and the reforms of al-Qarawīyīn and higher religious education under King Muḥammad VI. In this context, it is not entirely surprising that Gomaa seeks to minimize al-Shāṭibī, whose legal theory on maqāṣid (higher objectives of Islamic law) has inspired generations of twentieth-century North African reformists, including the Tunisian Tāhir b. ʿĀshūr (d. 1973) and the Moroccan Aḥmad al-Raysūnī, mentioned in Gomaa’s tirade.⁴ The polemic above then may be seen as a reflexive (if not premeditated) reaction to the perceived threat of Moroccan ascendancy, al-Azhar’s loss of influence, and an attempt to re-assert the canonical authority of mashriqī scholars such as al-Zarkashī, al-Nawawī, and al-Qarāfī,⁵ whom Egyptians and al-Azharīs have long extolled. Contextualizing Gomaa’s comments in this broader landscape highlights the significance of documenting Islamic pedagogical canons and analysing the discourses around them.

The study of canons and canonization in Islamic law has largely focused on ḥadīth compilations, including the Ṣaḥīḥ collections and synoptic handbooks (mukhtaṣarāt).⁶ Our article highlights a different category of canons in order to better document and analyse modern transformations in Islamic education. We refer to these as ‘pedagogical canons of Islamic law’ and use this concept to shed light on how Islamic law is taught in Dar El hadith El Hassania (DHH), a leading Moroccan institution devoted to training ʿulamāʾ grounded in the Mālikī school of interpretation.⁷

In this article, we first introduce the concept of pedagogical canons and its potential as well as challenges. We then provide a brief overview of DHH and the curricular reforms enacted in 2005. Our documentation and analysis of the post-reform reading lists for fiqh and uṣūl al-fiqh affirm the co-existence of stability and malleability in the Mālikī pedagogical canon. Finally, our discussion of classroom discussions around Islamic finance reform highlights the importance of combining anthropological and documentary evidence to understand the interrelated processes of canonization and legal codification.

1. THE POTENTIAL AND CHALLENGES OF EXAMINING ‘PEDAGOGICAL CANONS’

Our analysis draws on frameworks proposed in Western canon studies including Moshe Halbertal’s analysis of the role of communities of learning in the formation of Jewish scriptural canons.⁸ For American contexts, J.M. Balkin and Sanford Levinson have observed that literary and legal canons differ in terms of the institutional contexts, the processes, and the agents that produce them.⁹ Moreover, there is ‘no better way to understand a discipline—its underlying assumptions, its current concerns and anxieties—than to study what its members think is canonical to that discipline. The study of canons and canonicity is the key to secrets of a culture and its characteristic modes of thought.’¹⁰ Even within the domain of law, what is considered ‘canonical’ varies according to the purposes and communities that are implicated. With respect to American constitutional law, for example, Balkin and Levinson differentiate the ‘pedagogical canon’ from the ‘cultural literacy canon’. The former consists of key cases and materials taught to lawyers. The latter refers to the legal cases and material that educated people who are not lawyers but who nonetheless may engage in legal discussion would be expected to know.¹¹ These categories ultimately sensitize us to the different audiences, functions, and agents associated with canonical corpora and help us better understand the sociological aspects of canon formation.

For Islamic Studies as well, distinguishing between different canonical corpora draws attention to the social and historical contexts in which canons are formed. In the context of this article, we use ‘pedagogical canons of Islamic law’ to refer to texts deemed necessary for acquiring expertise in sharīʿa. In order for a text to be deemed canonical, there must be synchronic and diachronic agreement about its importance. In other words, communities of those engaged with the text in question should agree across time and across institutional or geographical contexts about the authority of the text. One indicator of canonicity is the rise of interpretative activity around a given text (eg, through a sharḥ (commentary)). The perceived communal need to engage with both the core text and commentary further elevates the core text and enables its relevance across time and place.¹²

The term ‘pedagogical’ highlights the social and institutional contexts for the transmission of these texts. Whereas canonical texts, such as the Saḥīḥs of al-Bukhārī and Muslim may be read in private devotional contexts, the use of these same texts in pedagogical contexts is different. Their selection for instructional contexts often implies and reinforces their canonicity and provides opportunities for instructors to demonstrate their mastery as well as their ability to interpret the text. Students imbibe not just the contents but also the modes of engaging with the text.¹³ Moreover, texts in the pedagogical canon may often be accessible only to specialists. The very act of reading such texts connotes membership in a select community of readers. These elements of social context, reproduction of authority, the transmitted practices of textual engagement, and communal belonging are all embedded in the definition of ‘pedagogical canon’.

It is relatively straightforward to establish that distinct ‘pedagogical canons’ existed across Islamic history and that the formation of such corpora involved specific agents, audiences, and functions. These corpora in turn perpetuated and reinforced intra-religious pluralism. Those immersed in the biographies of pre-modern Muslim scholars can often deduce legal, theological, and sectarian affiliations and even approximate geographical and chronological coordinates of scholars by the compilations they mastered. For example, the Kitāb al-Kāfī of al-Kulaynī (d. 329/941) and its commentaries are associated with the Twelver Shīʿī canon and were regularly studied under the Safavids (16th–mid–18th centuries).¹⁴ We would not, however, expect these works to be part of the Mālikī pedagogical canon during ʿAlawite rule in North Africa (ca 17th century to present).

Even as we can affirm the existence of pedagogical canons in Islamic law, identifying precisely and exhaustively which works belonged to different corpora poses challenges. Syllabi, listing required readings, are an entirely modern, and arguably Western, phenomenon. A few scholars have attempted to recreate pre-modern curricula on the basis of biographical dictionaries, mashyakhas (works cataloguing an individual’s intellectual journey), and ijāzāt and samāʿāt (certificates awarded upon the transmission and learning of individual works). However, Islamic higher education occurred in a range of venues, and records were not systematically kept of what was read, and with what frequency, nor do we have lists of required courses and their readings. Furthermore, information about the specifics of interactions in assemblies and engagement with texts remains fragmented.

In the early modern and modern eras, documentary records such as royal decrees aimed at reform of educational institutions and post-colonial curricular documents facilitate the task. In trying to trace the contours of a Mālikī pedagogical canon, our study draws on sources such as royal decrees and administrative records that document the courses of study and readings at Qarawīyīn and at Dar El hadith at watershed moments. We hope to demonstrate that such documents can help us understand how pedagogical canons are produced and reified and how they may ultimately fade because they no longer ‘meet pressing needs for their audiences’.¹⁵

The pedagogical canons of Islamic law are inextricably related to changing conceptions of ‘useful knowledge’ or ʿilm nāfiʿ. The parameters of what constitutes ʿulūm al-sharīʿa (sciences of the sharīʿa) fluctuate and are inevitably impacted by cultural, geographical, and political variables. Divergences also hinge on sectarian, madhhab, and theological affiliations. A number of scholars have noted that in the post-colonial eras, the list of fields considered ‘useful’ for Islamic higher education has become constricted.¹⁶ The following fields are considered necessary and at times wholly sufficient for aspiring jurists: the Qurʾān and its exegesis; legal methodologies and legal precepts; ḥadīth; theology; Arabic; and rhetoric.

In examining pedagogical canons, we consider how ‘useful knowledge’ is defined at specific historical moments in Morocco which in turn impacts the eclectic selection of sources for training Mālikī jurists. A remarkable decree by the Moroccan Mālikī Sultan Muḥammad III (1710–1790) is illustrative. This royal proclamation issued in 1203 AH (1788f CE) lists not only the fields that should be studied at Qarawīyīn and all its affiliated  madrasas but also the compilations that students are permitted to engage with.

We command them [the teachers of Qarawīyīn and its subsidiaries] to teach only the Qurʾān and its tafsīr; and of the books of ḥadīth [let them teach] the masānīd and the books derived from them (mustakhraja min-hā) and [the Ṣaḥīḥs of] al-Bukhārī and Muslim and others of the Ṣaḥīḥ works; and for the books of fiqh [let them teach] the Mudawwana, al-Bayān wa’l-Tahṣīl and the Muqaddima of Ibn Rushd, and the Jawāhir of Ibn Shās; and the Kitāb al-nawādir and the Risāla of Ibn Abī Zayd and others of the books of the well-established authorities (al-aqdamīn). Those who want to teach the Mukhtaṣar of Shaykh Khalīl, they should teach it with the commentaries of none other than Bahrām al-Kabīr, al-Muwwāq, al-Ḥattāb, Shaykh ʿAlī al-Ajhūrī, and al-Kharshī al-Kab‏īr….

Whomever wants ʿilm al-kalām, the ʿaqīda of Ibn Abī Zayd, may Allah be pleased with him, is sufficient and clear. All Muslims will find this to be sufficient.

And as for those fuqahāʾ who read (yaqraʾūna) [books relating to the science of] astrolabes and arithmetic (ʿilm al-ḥisāb), they deserve to take their share from the awqāf [that is, revenues of which are devoted to religious learning], because of the great benefit and tremendous utility [of these fields] in terms of [calculating] times of prayers and inheritance.

And whoever wants to delve [even deeper] into ʿilm al-kalām; or logic or the sciences of philosophy and the books of Sufi ghulāt and books of popular storytellers (qaṣaṣ), then let him pursue that in his own home with his friends who don’t know that they don’t know!¹⁷

This eighteenth-century decree interests us for several reasons. First, it confirms that al-ʿilm al-nāfiʿ for religious scholars in the late eighteenth century included mathematics and the skills necessary to use astrolabes (which would have included astronomy among other sciences). These are no longer proficiencies that Mālikī ʿulamāʾ are expected to acquire as part of Islamic higher learning. Second, such edicts demonstrate the exercise of political authority in higher religious education. Sultan Muḥammad III took it upon himself to not only define which areas of knowledge were worthy pursuits but also to prescribe the compilations that should be taught. However, to ensure compliance with his decree, he would have been constrained by scholarly consensus of the Qarawīyīn ʿulamāʾ about what could be considered mandatory or canonical for training Mālikī fuqahāʾ. We can surmise that the works he mandated had already gained some authority in eighteenth-century Morocco. Indeed, the purpose of the decree was to restrict what could be taught to works composed by established authorities, thereby reifying the Mālikī canon.

In Muḥammad III’s decree, we can discern features that Stanley Fish has identified as markers of canonical materials. First, such works ‘carry their authority with them’. In this manshūr, the Risāla of Ibn Abī Zayd is declared as sufficient for all Muslims wanting to learn ʿilm al-kalām. We can guess that Muḥammad III would not have hesitated to also declare that this work was sufficient ‘for all time’.¹⁸ Second, and more importantly, ‘[canonical materials] function not to encourage thought, but to stop it’. Muḥammad III’s constraining orders extended to other genres, including shurūḥ (commentaries) on the Mukhtaṣar of Khalīl, another canonical Mālikī work, and even more broadly to the fields that could be taught at Qarawīyīn. In many respects, this manshūr tracks the interplay of political authority, scholarly consensus, and communal needs highlighted in prior scholarship on canons.¹⁹ Ultimately, these variables can affirm the canonicity of texts or alternately contribute to a longer term process of decanonization.

Curricular overviews and syllabi compiled by academic administrators and professors are another useful avenue for mapping pedagogical canons. Such documents are often produced in the context of modern and increasingly bureaucratized, state-regulated educational practices.²⁰ We maintain that curricular documents are important archival records that shed light not just on contemporary educational theories and practices but also help us understand long-term evolution in Islamic education.²¹ However, these documents have not been given the attention they deserve. This is in part because studies on contemporary Islamic education often focus on the role of authoritarian states in educational processes.²² We hope to balance this focus through greater attention to the substantive content of Islamic higher education.

Of course, the appearance of a compilation in an edict or a curricular document does not suffice to establish its canonicity. As Fish notes, canons ‘do not form accumulatively, by simply adding new texts to those previously recognized and honored’.²³ Some texts meet the fleeting demands of a historical moment, then pass out of favour. One of our challenges has been to delimit what is canonical from what is incidental. It is easier to do this with texts that are studied across the centuries.²⁴ However, how can we discern the canonicity of texts that have become classroom staples within the past decade, or only since the colonial era, or only after Moroccan independence in 1956? To probe this question, we consider a number of other factors. One such criterion is the hierarchy of authority associated with texts and how one text may be used to refute another. The ‘instantiation of values and ideals which canons embody and preserve’ is key to understanding how new texts enter pedagogical canons.²⁵ We thus draw attention to the dialectical processes by which selected corpora become canonical. Here Balkin and Levinson’s articulation of ‘deep canonicity’ can be profitably applied towards an analysis of classroom-based interactions.²⁶ These ostensibly humble, mundane exchanges drive the longer-term processes of canonization and must be understood as an exercise of authority and agency by individual professors and students. The final part of this article draws largely on the experiences Nour-Eddine Qaouar, one of the co-authors, and a former BA and MA student at DHH. On the basis of his long-term experiences, we summarize how professors engage with the charged topic of Islamic finance in contemporary Morocco. Through this section, we aim to highlight how the everyday acts of framing questions, the validation of selected responses, and the rejection of others can either uphold or undermine canonical texts.

Our study of DHH highlights contemporary developments in the Maghrib which have heretofore drawn lesser attention than institutions such as al-Azhar in Egypt or the madrasas of the Indian subcontinent. We hope to productively combine philological, historical, and anthropological approaches and build on the few prior studies that have adopted similar approaches.²⁷

2. DAR EL HADITH EL HASSANIA: HISTORICAL OVERVIEW

Established in Rabat in 1964, DHH has been dedicated to training elite religious scholars, many of whom were expected to occupy influential positions in the government and judiciary. Given this role, DHH is arguably an important site for examining how the contents of Islamic higher education, including pedagogical canons, shape religious authority. Several points in the fascinating history of this institution are especially relevant to this article. King Ḥassan II (r. 1961–1999) established DHH in Ramadan 1964 due to the concerns of leading Moroccan ʿulamāʾ about the passing of an older generation of traditionally trained scholars and the absence of training for subsequent generations.²⁸ Fears of the rising and destabilizing influence of leftists and socialists also prompted Ḥassan II to balance these forces by supporting Islamists and ʿulamāʾ.²⁹

Dar El hadith straddles two distinct arenas of Islamic education in Morocco: taʿlīm al-ʿatīq (traditional education) and taʿlīm al-muʿāṣir (modern education). Formally, it belongs to the latter, but in spirit, it also upholds the ethos of the former. Administrators, professors, and students have adapted different strategies to anchor the institution in the tradition of pre-modern Islamic learning while simultaneously advocating new pedagogical frameworks and learning technologies. The very name ‘Dār al-Ḥadīth’ evokes pre-modern institutions of Islamic learning which were dedicated primarily to the Sunnī sciences of ḥadīth.³⁰ Even though DHH is of modern vintage, the nomenclature deliberately strives to position the institution within a centuries-long tradition of early and classical Islamic education. DHH is administratively distinct as well. It is classified as an institution (maʿhad or muʾassasa) rather than a department of Islamic Studies ‘qism li-al-dirāsāt al-Islāmiyya’ housed within a post-colonial university (jāmiʿa).³¹ Although both entities are authorized to grant MAs and PhDs, DHH has been under the supervision of the Ministry of Pious Endowments and Islamic Affairs, which is one of the central ministries of the Moroccan monarchy. In contrast, universities, and by extension, Islamic Studies departments, are under the control of the Ministry of Higher Education. These distinctions have translated into greater administrative and curricular autonomy and significantly better financing for DHH since its founding. As a result, DHH has grown in influence and capacity. Through a far-reaching royal decree issued in 2015, Dar El hadith is now administratively under the umbrella of Qarawīyīn, the world-renowned, iconic mosque, and institution of learning founded in Fes in the tenth century.³² While the details of this decree are beyond this article’s scope, it is important to point out that this reorganization supplies a revered genealogy for DHH.³³ By firmly anchoring DHH within a centuries-long tradition of Islamic learning, this administrative measure amplifies its growing regional and international influence.

3. RE-FORMING THE MĀLIKĪ PEDAGOGICAL CANON

Since its founding, the DHH curriculum has focused on the classical Islamic religious sciences (eg, Qurʾānic and ḥadīth sciences and fiqh and uṣūl al-fiqh). However, in the twenty-first century, major world events, including the rising threat of terrorism by Muslim extremists, precipitated dramatic change. In 2003, the Casablanca bombings, the most significant terror attacks in modern Moroccan history, reverberated beyond the arena of domestic security. Religious education, from the primary grades onwards and in rural and urban settings, also came under scrutiny. DHH was among the educational institutions and associations subject to far-reaching measures intended to promote ‘moderate Islam’ and neutralize Muslim extremists.³⁴ This historical marker provides a useful frame for our inquiry into pedagogical canons. Through a series of curricular reforms beginning in 2005, King Muḥammad VI and relevant ministries intended to reshape the construction of religious authority across Morocco and beyond. A royal decree, reminiscent of the aforementioned manshūr of Sultan Muḥammad III, redrew the boundaries of ‘useful knowledge’ and justified this in terms of communal needs.

Driven by our steadfast royal desire and by virtue of our responsibility as the Commander of the Faithful entrusted with the preservation of the community (milla) and religion [of Islam] as sacred pillars [of this country]…upholding the spirit of my late blessed father [Ḥassan II]…who established [DHH] to produce ʿulamāʾ whose mission would not just be preaching and admonition (al-waʿḍ wa’l-irshād) but rather those whose [intellectual] frameworks match their competence and who would be known in the Maghrib for being among the elite of the ʿulamāʾ…. We decided to re-organize this Institute…to modernize its structure and to do a thorough, radical review of its system of training so that it can carry out the tasks that we have entrusted it with in terms of fashioning enlightened ʿulamāʾ who have internalized the lofty truth of the sharīʿa al-Islāmiyya and its noble objectives and who are capable of engaging with the sources of humanistic knowledge and prepare for serious intellectual and civilizational dialogue with their peers from other religions while defending Islamic values according to [the principles] of tolerance, love, and human brotherhood.³⁵ [emphasis added]

The decree paved the way for a new curriculum to be implemented in consultation with professors and administrators at DHH. Courses in the humanities and social sciences as well as English, French, and Hebrew, and even classical Greek, were introduced, all aimed at training new cohorts of ʿulamāʾ with a broader exposure and higher analytical skills who would ideally be prepared to better address contemporary challenges.³⁶

The curriculum currently comprises four main subfields: (1) the sciences of Qurʾān and ḥadīth; (2) uṣūl al-fiqh and fiqh;³⁷ (3) al-ʿulūm al-insāniyya; and (4) foreign languages (ie, French and English).³⁸ Here we note the shift from the late eighteenth-century decree of Muhammad III. Mathematics and the sciences of astrolabes are no longer classified as ʿilm nāfiʿ. Humanities and Western languages now demand attention as necessary for contemporary ʿulamāʾ. The subjects studied within each of the four broadly defined areas and the time spent on each subject vary depending on the term and year of study. For example, students in the first year of the BA programme study introductory topics such as the early history of the Qurʾān and its tafsīr and progress to more advanced topics in the MA programme. More time is spent on acquiring foreign languages in the first few years than in later years when students are expected to use these language skills independently for their research. Finally, it is important to note that the subject areas included within the four main fields are not the same as what might be expected in American or European contexts. For example, ‘Humanities’ (al-ʿulūm al-ʿinsāniyya) is a catch-all. As such the term encompasses most subjects that have not been part of pre-modern ʿulūm al-sharīʿa. Depending on the term of study, ‘Humanities’ could include psychology, comparative religion, logic, sociology, information sciences, or research methodology.

Over the past two decades, DHH has invested considerable resources in integrating these disciplines into their curriculum of religious sciences. Recent initiatives signal that the institution aspires to be a regional leader in this regard. For example, an international conference hosted by DHH in May 2023 drew attention to the importance of the humanities and social sciences for Islamic higher education. The conference brought together speakers from diverse professional backgrounds, including lawyers, historians, social scientists, and muftīs. Aḥmad Tawfīq, the Minister of Endowments and Islamic Affairs, one of the architects of the current educational reforms, emphasized the importance of teaching liberal arts and languages alongside traditional Islamic sciences, including fiqh and uṣūl al-fiqh, to promote critical thinking.³⁹

Law is subdivided into three main areas: uṣūl al-fiqh (methodology of deriving law), fiqh (derived rulings or substantive law), and qānūn (Moroccan legal codes, based on both French civil codes and religious laws). In the schema of the new curriculum, the first two belong to the religious sciences (ʿulūm al-dīn) and the third is within the ʿulūm al-insāniyya. For DHH graduates, all three subfields are within the parameters of al-ʿilm al-nāfiʿ for elite ʿulamāʾ.

Within each subfield, individual professors consult about how to organize the courses according to major topics or themes and the readings that should be assigned. Professors exercise autonomy, within institutional and communal constraints, in selecting course topics and texts. The muqarrarāt (similar to syllabi) of courses are reviewed and approved by a committee of peers within that field. The conceptualization, ordering, and presentation of the topics, as well as the selection of readings, reside the space for creativity, virtuosity, and conformity with or resistance to pedagogical canons. The following list provides a selection of the most significant topics in fiqh syllabi for the BA and MA programmes:

Introduction to fiqh (its early stages, its evolution, and the schools of thought)

Investigation of major topics in worship (al-ʿibādāt)

Fiqh of personal interactions (civil law) (for example, the theory of contracts)

Fiqh of financial transactions

Regulations pertaining to marriage, divorce, and inheritance and wills in Mālikī fiqh

Diversity of legal interpretation (ikhtilāf).⁴⁰

The syllabi of legal studies at DHH reflect a different pedagogical approach from courses, both modern and pre-modern, which are structured around the close reading of a few selected texts. Instead, classical texts are subsumed to topics curated to provide historical and theoretical literacy in the foundations of Islamic jurisprudence before delving into topics of contemporary significance. The progression of topics (from historical overview to rituals to domestic relations and marital contracts) does not mirror the organization of canonical Mālikī handbooks, such as the Risāla of Ibn Abī Zayd al-Qayrawānī (d. 996) or the Mukhtaṣar of al-Khalīl (d. 1374). Rather, it re-envisions necessary knowledge for students of Islamic law as that which meets the demands of twenty-first century North African discourses. Classical and modern texts are then deployed accordingly: a process that ultimately impacts the canonicity of long-revered texts, or alternately, their marginalization.

The curricular changes described above are significant ones with the potential to restructure disciplinary frameworks and even undermine traditional approaches to Islamic learning. However, our analysis below suggests that the core of the Mālikī pedagogical canon has remained stable across centuries even as it permits the entry of texts better aligned with contemporary discourses. It is this balance of stability and malleability that mediates dramatic change. The next section engages with these questions of stability and evolution in pedagogical canons by turning to the compilations that are studied at DHH. We list the works that are included in the muqarrarāt from ca. 2014 for uṣūl al-fiqh and fiqh at DHH and divide them into categories in terms of their importance for mastering Mālikī law at DHH. We provide a more detailed description of the works in  Appendix A. The list below is divided into three major categories:

1. Works central to the Mālikī canon over the centuries, which students are encouraged to read and master in their entirety. These include works such as the Risāla of Ibn Abī Zayd, whose canonicity is well-established in both primary and secondary sources. Professors encourage students to memorize some of these works, another marker of their canonicity.

2. Works that are not widely recognized as being part of the Mālikī canon but which are stressed by DHH professors as being essential to their understanding of Islamic law and necessary for future ʿulamāʾ to master. Our (more subjective) classification of works into this category draws on the deep and extensive experience of Nour-Eddine Qaouar, who completed 7 years at DHH as a BA, MA, and early-stage PhD student. The classification also draws on the fieldwork of Asma Sayeed, who has conducted historical and anthropological research on DHH and Moroccan Islamic higher education over the past decade.

   This category represents a liminal stage in the complex sociological process of canonization. The confluence of communal needs and the assessment of professors and students about whether a text meets shifting demands while upholding long-standing legal norms ultimately determines whether a text will enter the canon.

3. Supplementary texts that professors have listed on the syllabus and with which they require students to have general familiarity. These works are described by professors as being useful references for students but not as essential sources. Some of them may be exchanged with other works in keeping with the thematic cycles at DHH, which is one indication that they are not pillars of the Mālikī pedagogical canon. As with category #2 above, the determination to include works in this category is based on site research and long-term experiences of the co-authors with DHH.

This list and the categorizations permit the following observations. First, with only a few exceptions, the authors of the works are Mālikī. This aligns well with the history of Islamic higher education, which was generally structured around madhhab identities. In a similar vein, Robinson’s documentation of the curriculum of Farangi Mahall and Moosa’s description of the Deobandi curriculum affirm their Ḥanafī orientation.⁴¹ Additionally, in the case of DHH, most classical Mālikī scholars are Andalusian or Maghribī. This may be expected given the regional distribution of Mālikism in the pre-modern eras across North Africa and al-Andalus. However, Egyptian Mālikism was also well-developed, and its under-representation here is a feature that deserves further analysis.⁴²

Another salient observation is the preponderance of uṣūl works that integrate the more rationalist and philosophical lineages of Islamic legal methodology. These include Ibn Rushd’s Bidāȳat al-Mujtahid and al-Rāzī’s al-Maḥṣūl fī ʿilm uṣūl al-fiqh. Similarly, we evince an interest in promoting the maqāṣid framework as advanced by al-Shāṭibī and later developed by Ibn ʿĀshūr. This orientation aligns with broader reformist movements across North Africa. The integration of these more rationalist approaches may also reflect the orientation of DHH’s former director, al-Khamlīshī as well as of some of the professors of Islamic sciences.⁴³ The social and political context of contemporary Moroccan debates on areas such as family law has clearly impacted the selection of modern sources. The fact that some of these works are in Category 2 echoes Halbertal’s observations about open canons wherein ‘other texts knock on the doors’.⁴⁴ A number of variables, including communal needs, determine whether they will be permitted to enter the ranks of a more enduring Mālikī pedagogical canon. A striking absence should also be noted here: there are no fatāwā compilations that are listed in the BA and MA muqarrarāt. This is in spite of the wide circulation and embeddedness of fatāwā collections such as al-Wansharīsī’s (d. 914/1508) al-Miʿyār al-muʿrib and Mahdī al-Wazzānī’s (d. 1923) al-Miʿyār al-jadīd across North Africa.⁴⁵ This absence merits further exploration.

While the analysis above provides one view of canonical and non-canonical material in one contemporary institution in Morocco, the evolution of the Mālikī pedagogical canon can be better understood if we compare curricula across time and place. A detailed comparative analysis falls outside the scope of this article. Nevertheless, it is useful to return to the aforementioned manshūr of Sultan Muḥammad III. As with the early twenty-first century curriculum of DHH, Muḥammad III’s manshūr is framed by broader historical contexts of administrative, military, and economic re-organization. According to al-Tāzī’s history of Qarawīyīn, the reforms reflected Muḥammad III’s view that it was important for jurists to acquire knowledge from original sources rather than the mukhtaṣarāt. As mentioned in the translated excerpt above of this manshūr, he permitted students to engage only with selected commentaries of the Mukhtaṣar of Khalīl, which were part of Mālikī pedagogical canon by the eighteenth century. Listed below are compilations that Muḥammad III permitted in the assemblies of fiqh at Qarawīyīn and its subsidiary madrasas in the late eighteenth century.

4. FIQH COMPILATIONS IN SULTAN MUḤAMMAD’S DECREE

Saḥnūn (d. 240/854), Mudawwana

Ibn Abī Zayd al-Qayrawānī (d. 386/996), Kitab al-Nawādir

Ibn Abī Zayd al-Qayrawānī (d. 386/996), Risāla

Muḥammad b. Aḥmad Ibn Rushd (d. 520/1126), Kitāb al-bayan wa’l-taḥṣīl (n.b. This is ʿAbd al-Walīd Qurṭubī b. Rushd, the grandfather of the more well-known Ibn Rushd (Averroes)).

Muḥammad b. Aḥmad Ibn Rushd (d. 520/1126), Muqadimmāt al-mumahhidāt li-bayān mā’qtaḍathu rusūm al-Mudawwana

Ibn Shās al-Khallāl (d. 616/1219), ʿIqd al-jawāhir al-thamīna fī madhhab ʿālim al-Madīna

Khalīl b. Iṣhāq (d. ca 776/1374) Mukhtaṣar

Commentaries on the Mukhtaṣar

1. Bahrām al-Kabīr (805/1406), Sharh Mukhtaṣar Khalīl.

2. al-Ḥattāb al-Ruʿaynī (d. 945/1547), Mawāhib al-jalīl fī sharḥ Mukhtaṣar Khalīl.

3. ʿAlī al-Ujhūrī (? Ajhūrī) (d 1066/1656), Mawāhib al-Jalīl fī taḥrīr mā ḥawā-hu sharḥ Mukhtaṣar Khalīl.

4. Muḥammad b. ʿAbd Allāh al-Kharshī (d. 1101/1690), Sharḥ Mukhtaṣar Khalīl.

Although Muḥammad III’s manshūr is not parallel as a historical source to the recent curricular documents from DHH, a comparison of the list of required texts can be instructive. First, we note that Ibn Abī Zayd’s Risāla and Khalīl’s Mukhtaṣar and selected commentaries are included in both lists attesting to their importance to the Mālikī pedagogical canon across centuries. The Mudawwana of Saḥnūn, intriguingly, is not listed in the syllabi of DHH even though professors refer to it as an important text. Similarly, Ibn Abī Zayd’s Kitāb al-Nawādir, identified as one of his most important works, is not formally part of the DHH curriculum. The latter seems to have undergone a process of decanonization. It would be interesting to explore whether Saḥnūn’s Mudawwana is similarly being marginalized, especially given the rise of reformist legal codes in disparate areas governing financial and personal law. Finally, we note that al-Shāṭibī, with whom we began this article, is not mentioned by Muḥammad III. His induction into the Mālikī pedagogical canon does indeed appear to be a more recent evolution: a key observation that helps us make more sense of Ali Gomaa’s diatribe, described earlier, even as we disavow his disdain of al-Shāṭibī.

To properly document the evolution of the contemporary Moroccan Mālikī pedagogical canon, more detailed mapping and comparative analysis are necessary. Such a study could include a chronological chart of the works included in the syllabi; maps of the regional diffusion of books; and comparison with similar data from other institutions in Morocco and beyond. What has been presented in previous sections can guide such a mapping project. It is important to note here that previous studies have equated the mixing of modern and pre-modern sources with a decreasing engagement with the classical textual tradition. While syllabi certainly attest to a decreased emphasis on close reading of texts in their entirety, this does not *necessarily* imply a decreased emphasis on the classical heritage. As we discuss in the subsequent section, it is necessary to probe deeper than the lists of topics and books to understand the processes of canonization in Islamic law.

5. WHEN LEGAL CODES AND CANONS DIVERGE: MEDIATING REFORM THROUGH DEEP CANONICITY

To better understand the historical and social processes of canonization, it is important to also account for the ways in which texts are deployed in pedagogical settings. To do so requires a transition from topical overviews and reading lists into the territory of ‘deep canonicity’.⁴⁶ This concept is used by Balkin and Levinson to highlight that we must look not just at the materials that are selected for teaching but also at how the texts are integrated into teaching. Thus, the curation of illustrative examples and the modes of reasoning used to uphold, revise, or interrogate those texts are equally significant in the construction of legal authority, one of the main objectives of institutions of Islamic higher learning.

As discussed earlier, canonical texts, such as the Muwaṭṭaʾ by Imām Mālik and the Mudawwana by Saḥnūn, are promulgated in Morocco through a complex process implicating the political/ruling elite as well as other socio-economic actors, such as religious authorities, who all have a stake in the articulation of both civil laws and regulations and fatāwā. The contestations among groups predictably enter the spaces of higher Islamic education such as DHH, where those invested with religious authority exercise agency to influence discourses. The case presented here illustrates how deep canonicity relates to fiqh al-amwāl or financial transactions, which is one of several areas in which the dictates of more recently codified texts (qānūn) laws are not in harmony with prescriptions of pre-modern canonical texts. This example highlights the not-too-infrequent disjuncture between the processes of legal codification and canonization.⁴⁷

Contemporary Islamic finance jurisprudence is based on a reformist legal paradigm to a significant extent and endorses practices such as talfīq, discussed below, which disrupt the pre-modern madhhab-based legal paradigm. Morocco is among the last Muslim countries to incorporate Islamic finance into their secular financial systems, in part because many Moroccan scholars have preferred to remain within the parameters of Mālikī legal methodology and have opposed talfīq.

In 2014, the Moroccan government established a new law called the Participatory Finance Law (PFL) No. 103.12 to facilitate the full incorporation of this emerging industry into the financial system, which is a secular system.⁴⁸ The PFL has paved the way towards the establishment of more laws and regulations to overcome a number of serious juristic and fiscal barriers to the full integration of the Islamic finance industry. This law has also played a pivotal role in regulating the financial activities of Islamic banks, also known as Participatory Banks in Morocco, alongside other conventional players that wish to create sharīʿa-compliant windows and subsidiaries, such as the Caisse Centrale de Garantie (CCG). Many articles falling under this law do not revolve around Islamic banks only; they also include other relevant components of the industry such as takāful (sharīʿa-compliant insurance).⁴⁹ In addition to relevant miscellaneous matters, these articles overall address two major components: Islamic banking and finance and supervisory procedures on both internal and external levels.

In 2015, King Muḥammad VI issued a royal decree to create a new Supreme Sharīʿa Board (SSB) specialized in Islamic finance, capital markets, and insurance.⁵⁰ The SSB is a branch of the ʿUlamāʾ Supreme Council, a body of muftīs founded in 1981 to provide consultations and fatwās for governmental institutions and civil society. This decree has served as a major reference for all other regulations related to both internal and external sharīʿa supervisions. On the level of internal supervision, Islamic banks remain accountable for controlling their own activities in accordance with the fatwās issued by the SSB. On the level of external supervision, the decree specifies the responsibilities of the SSB and the CB alike in supervising and auditing Islamic banks’ financial activities and products. These banks are required to present at the end of each financial year (March) two comprehensive reports: one to the SSB to show to what extent their products and activities were compliant with the fatwās issued by the SSB, and the other to the CB.

In 2016, the CB issued a circular that requires Islamic banks, windows, and subsidiaries to create an entity of sharīʿa compliance.⁵¹ This entity is entrusted with the compliance of all financial activities and products with the fatwās and guidelines issued jointly by the SSB and CB. In other words, this entity is required to supervise and audit the procedures of products and financial activities before and/or after they are presented to clients. One year later, based on the previous laws and regulations, almost all conventional banks created their sharīʿa-compliant subsidiaries and windows, including Bank Assafa through Attijariwafa Bank and Umnia Bank through CIH Bank, alongside other financial institutions such as the CCG.⁵² Shortly thereafter, notwithstanding the remarkable integration of the Islamic finance industry into the financial sector since 2014, challenges have appeared within circles of religious scholars.

Among these issues is the paradigm of talfīq, or patching legal schools together, that produces and renders as valid certain transactions that do not comply with the norms established in the Mālikī legal heritage. Examples of talfīq from contemporary financial codes are discussed and debated in class: exchanges which provide opportunities to resist legal codes (qawānīn) that are not in harmony with canonical Mālikī fiqh. One such example is the murābaḥa transaction.⁵³ According to Law 103.12, the bank is permitted to enact a transaction (eg, a sale) on an asset before claiming ownership of that asset.⁵⁴ According to this new financial code, the bank’s client is required to provide a deposit to the bank, irrespective of whether the bank owns the property. Only after the client has provided a deposit will the bank undertake the financial transaction (eg, providing the capital for the purchase of a house). This is a transaction that the SSB allowed based on several legal sources, including modern fatwās issued by non-Moroccan, non-Mālikī sharīʿa boards, including those in Middle Eastern countries.⁵⁵ From the perspective of Mālikī canonical fiqh, this transaction is impermissible. According to almost all canonical sources, including the Muwaṭṭaʾ and the Mudawwana, the seller (in this example, the bank) is never allowed to sell his commodity (eg, a house) until he owns it.

To engage with conflicting dictates of qānūn and the Mālikī pre-modern legal canon, students are assigned readings from modern and pre-modern texts. Modern texts consist mainly of the codes, laws, and regulations issued by the General Secretariat of the Government and the CB,⁵⁶ as well as the fatwās issued by the SSB, as follows:

Establishment: General Secretariat of the Government

Title: Qānūn al-ʿUqūd wa-‘l-Iltizāmāt

Note: This code can be translated as The Law of Obligations and Contracts, which was established in 1913 but has been so far updated on several occasions. The last updates took place in 2019, a version upon which professors have been relying in their courses.⁵⁷

Establishment: General Secretariat of the Government

Title: Mudawwanat al-Ḥuqūq al-ʿAyniyya

Note: This code can be translated as the Code of Rights in Rem,⁵⁸ which was established in 2011. Like the previous code, the Mudawwanat al-Ḥuqūq al-ʿAyniyya is subjected to revisions every few years, the last of which took place in 2018. Professors incorporate into their courses sections that are relevant to the case under consideration.⁵⁹

Establishment: General Secretariat of the Government

Title: Qānūn al-Māliyya al-Tashārukiyya, or Participatory Finance Law 103.12

Note: This law can be translated as Participatory Finance Law, which the government introduced in 2014.⁶⁰ The full text is assigned for students to read and discuss in class.

Establishment: The Supreme Sharīʿa Board

Title: Ārāʾ al-Lajna al-Sharʿiyya li al-Māliyya al-Tashārukiyya

Note: The title can be translated as the SSB's legal opinions for Islamic (participatory) banks and institutions. Until 2019, the SSB had issued more than twenty fatwās on different financial products and activities since 2017.⁶¹ Professors assign the opinions related to the product under consideration (murābaḥa) and discuss them in the light of the aforementioned codes.⁶²

Professors also assign sections related to the murābaḥa, in Mālikī texts, alongside their authoritative commentaries, as follows:

Author: Imām Mālik b. Anas (d. 179/795)

Title: al-Muwaṭṭaʾ

Note: There are many versions of the Muwaṭṭaʾ, but the only version that survived is the one in the recension of Yaḥyā b. Yaḥyā al-Laythī (d. 234/848). The Royal Moroccan Edition is the main critical edition of al-Laythī’s recension that professors assign to students in lieu of the previous editions, including those by Fuʿād ʿAbd al-Bāqī (1956), Bashshār ʿAwwād Maʿrūf (1996), and Muṣṭafā al-Aʿẓamī (2000).⁶³

Author: Saḥnūn (d. 204/820)

Title: al-Mudawwana al-kubrā

Note: This compilation contains ḥadīth reports and the legal opinions of Imām Mālik and his disciples. Saḥnūn’s Mudawwana draws primarily on the authenticated teachings of Mālik through his disciple ʿAbd al-Raḥmān b. al-Qāsim (d. 191/806) and acquired a higher status than compilations of other disciples such as Asad b. al-Furāt.⁶⁴ Over time, the Mudawwana of Saḥnūn came to acquire a canonical status among Mālikīs as the most authoritative record of Mālik’s teachings after the Muwaṭṭaʾ.

Author: Ibn Abī Zayd al-Qayrawānī (d. 191/806)

Title: al-Risāla

Note: This book is an important canonical text secondary only to the Muwaṭṭaʾ and the Mudawwana. It is a renowned work especially for the cases related to the muʿāmalāt area, which includes financial transactions. Students are required to study this text and even memorize it sometimes. Because mnemonic mastery of the full Qurʾān and other classical texts is not required at DHH, the advice to memorize any classical text naturally elevates its status.⁶⁵

Author: Khalīl b. Isḥāq (d. 767/1366)

Title: al-Mukhtaṣar

Note: The Mukhtaṣar is a highly condensed abridgment of the Mudawwana, insofar as some scholars described it as Mukhtaṣar mukhtaṣar al-mukhtaṣar, or the abridgment’s abridgment’s abridgment.⁶⁶ Subsequently, this abridgment gained wide scholarly attention and became an authoritative matn, or manual of substantive law, to memorize in North and West African madrasas.⁶⁷

Above all, the Muwaṭṭaʾ by Imām Mālik remains the most authoritative corpus in this setting. DHH professors assign it along with its two major commentaries: al-Tamhīd by Ibn ʿAbd al-Barr (d. 463/1071)⁶⁸ and Sharḥ ʿalā al-Muwaṭṭaʾ by al-Zurqānī (d. 1122/1710).⁶⁹

Maintaining the integrity and continuity of the Mālikī pedagogical canon is of great importance at DHH. Therefore, in addition to the contemporary codes, professors assign the aforementioned canonical sources, including the Muwaṭṭaʾ, for discussion of topics, including the case under consideration (murābaḥa). The canonical sources are drawn from almost every legal genre, including ḥadīth compendia, abridgements, and legal maxims, which are the same authoritative works that were taught at Qarawīyīn long before the colonial era. Al-Tāzī’s history of Qarawīyīn notes the following:

Qarawiyīn has witnessed the teaching of an array of authoritative legal sources [in every legal genre], both Mashriqī and Maghribī, including al-Risāla by Ibn Abī Zayd al-Qayrawānī [d. 376/987], Tahdhīb al-Mudawwana by Ibn Abī al-Barādhʿī [d. the 4th century/11th century], al-Mukhtaṣar by Ibn al-Ḥājib [d. 646/1249], al-Mukhtaṣar by Khalīl [d. 776/1366], and al-Tuḥfa by Ibn ʿĀṣim al-Andalusī [d. 829/1426].⁷⁰

DHH centres the works that al-Tāzī lists which confirms their continued canonicity. The ways in which students closely engage with these texts further affirm their ongoing authority.

In classes, professors and students observe and study discrepancies between the modern legal codes on murābaḥa and other works in the Mālikī pedagogical canon, and often uphold the authority of the latter. Such is the case with the following ḥadīth report from the Muwaṭṭaʾ. In discussions, professors assert the validity, continued canonicity, and relevance of this report to express disapproval of the current configuration of this Islamic finance transaction. The report attributed to Ibn ‘Umar is as follows:

According to Imām Mālik, it reached him that a man wished to purchase food from another man on credit. The would-be seller took the would-be purchaser to the market and began to show him heaps of food, saying, ‘Which of these would you like me to sell you?’ The would-be buyer said, ‘Are you selling me something not already in your possession?’ The two of them then went to ʿAbd Allah b. ʿUmar and described to him their situation. ʿAbd Allah said to the would-be purchaser, ‘Do not purchase from him something that is not currently in his possession’, and to the would-be seller, ‘Do not offer to sell something that is not currently in your possession’.⁷¹

The most important part of this ḥadīth is the last sentence that is repeatedly emphasized in the Mālikī abridgments along with their commentaries such as Mawāhib al-jalīl by al-Ḥaṭṭāb (d. 954/1547) on the Mukhtaṣar of Khalīl b. Isḥāq.⁷² Students at DHH are taught that the Muwaṭṭaʾ is the most authoritative text upon which most subsequent leading scholars relied on. For instance, Ibn ʿAbd al-Barr, one of the prominent Mālikī scholars, states in his Tamhīd, ‘[This ḥadīth report] prohibits this kind of transaction.’⁷³ This seemingly mundane lesson is actually of significant importance. When we consider the accumulated impact of hundreds of such exchanges across the years, we begin to understand the more complex sociological processes implicated in processes of state-led legal reform and codification.

In addition to the aforementioned modern codes and pre-modern canons, students are required to study other modern texts relevant to finance in courses taught by professors specializing in economics and secular law. As mentioned earlier, such courses are classified under the humanities and are part of the ‘necessary knowledge’ that students must master. The juxtaposition of pre-modern and modern texts and the deeper discussion of these authoritative texts allow students to have a thorough understanding of how laws are derived and to discuss and debate which laws are consistent with the pre-modern Mālikī heritage. Classroom discussions are thus the spaces for mediating ‘deep canonicity’. They allow students to debate the validity of contemporary codes, and they often enforce the understanding of the pre-modern Mālikī traditions as being canonical. However, the discussions also permit debate and dissent about whether such transactions are permissible, provided that students ground their views in Mālikī legal methodologies.

6. CONCLUSIONS

Our study of pedagogical canons in Moroccan Islamic higher education sheds light on how such corpora mark and affirm madhhab identity. We also show how these are open canons which permit the entry and elevation of texts that respond to communal needs. This includes works such as al-Shāṭibī’s al-Muwāfaqāt, which is considered essential, and one may say canonical, for the training of Mālikī jurists at DHH. Indeed, al-Shāṭibī is a sine qua non for Muslim reformists across the Muslim world. However, the speech of Shaykh Gomaa at the start of our article reminds us that canonization, especially in pedagogical contexts, is a contested process. In a related vein, our analysis of classroom discussions around recent Islamic finance regulations shows how upholding specific texts in the pedagogical canon can sustain resistance to state-led codification and reform. Thus the category of ‘pedagogical canon’ permits fruitful exploration of a number of issues in Islamic legal history.

Footnotes

Appendix A

This annotated list supplements the chart in our article, which categorizes works in terms of their canonicity and centrality to the fiqh and uṣūl al-fiqh courses at DHH after the 2005 reforms. In what follows, we organize the list of readings according to their genres, briefly describe them, and offer observations about the centrality of each work in the curriculum on the basis of the long-term experience of N. Qaouar, one of the co-authors, who, as mentioned earlier, completed his BA and MA at DHH.

Pre-modern works of uṣūl al-fiqh, some of which functioned as manuals for students across centuries

Author: Abū al-Walīd Sulaymān al-Bājī (d. 474/1081) an Andalusī jurist, traditionist, and theologian, who played a major role in re-vitalizing Mālikī law in al-Andalus.⁷⁴

Title: Iḥkām al-fuṣūl⁷⁵

Notes: Iḥkām is among al-Bājī’s most well-known, widely-circulated works. Students study sections related to contributions of Mālikī authorities to legal theory (uṣūl al-fiqh) as relevant to the cyclical thematic framework at DHH. Students are encouraged to read the whole work at home. However, with respect to training students, professors place greater emphasis on Jamʿ al-Jawāmiʿ and al-Waraqāt (described below).⁷⁶

Author: Abū Ḥāmid Muḥammad al-Ghazālī (d. 505/1111) the pre-eminent Shāfiʿī jurist, theologian, and reformer.

Title: Kitāb al-mustaṣfā⁷⁷

Notes: Al-Mustaṣfā is among al-Ghazālī’s legal works, devoted to uṣūl and written while he was teaching in Nishapur which ‘shows the influence of his earlier philosophical studies but is entirely within the juristic tradition.’⁷⁸ In class, students read certain sections that pertain to the legal theory which emphasizes kalām and which includes Mālikī, Ḥanbalī, and Shāfiʿī authorities in uṣūl al-fiqh. Students are encouraged to read the whole work at home, even though it is not considered central to Mālikī uṣūl al-fiqh.

Author: Abū al-Walīd Muḥammad b. Aḥmad b. Muḥammad Ibn Rushd [Averroes] (d. 595/1198) the renowned grandson of Ibn Rushd (d. 520/1126). The latter was also a well-known Mālikī jurist of Cordoba.

Title: Bidāyat al-mujtahid⁷⁹

Notes: Ibn Rushd’s Bidāyat al-mujtahid concerns legal differences (ikhtilāf) between the Sunnī madhāhib and the juristic principles (uṣūl) underlying these differences. Per Dutton, ‘the work is for those who want to understand the basics of the sharīʿa so that they will then be in a position to think for themselves and exercise ijtihād on new matters that may arise about which there is no clear ruling.’⁸⁰ Students read sections related to certain themes, such as marriage and divorce. It is not central to the curriculum of DHH and is secondary to the more well-known works of Mālikī fiqh of his grandfather, Ibn Rushd.

Author: al-Rāzī, Fakhr al-Dīn Muḥammad b. ʿUmar b. al-Ḥusayn (d. 606/1209) a leading theologian, exegetes, and jurist. Al-Rāzī is one of the few mashriqī scholars whose works are part of the DHH curriculum.

Title: al-Maḥṣūl fī ʿilm uṣūl al-fiqh⁸¹

Notes: Maḥṣūl is a detailed exposition of al-Rāzī’s theory of uṣūl. The synthesis of Ashʿarism and rationalism in al-Rāzī’s work is aligned with contemporary reformist trajectories.⁸² Students are encouraged to read sections of the work independently. It is not central to the curriculum of DHH.

Author: Ibn Juzayy al-Kalbī, Muḥammad b. Aḥmad (d. 741/1340) jurist from Granada

Title: Taqrīb al-uṣūl ilā ʿilm al-uṣūl⁸³

Notes: Taqrīb al-uṣūl is Ibn Juzayy’s manual on the science of legal methodology written for his son. Divided into five main funūn (sub-topics), the work introduces readers to the specialized terminology, categories of rulings (aḥkām), legal proofs and their relative value; and the conditions/requirements for ijtihād and taqlīd. Students are encouraged to read sections of the work independently. It is not central to the curriculum of DHH.

Author: Abū Isḥāq Ibrāhīm b. Mūsā al-Shāṭibī (d. 790/1388) scholar of uṣūl and kalām from Granada

Title: al-Muwāfaqāt⁸⁴

Notes: According to Masud, al-Shāṭibī is among the first philosophers of law, and his Muwāfaqāt presents a doctrine/framework for maqāṣid al-sharīʿa and understanding the role of maṣlaḥa as a principle of legal theory. ‘The concept of maṣlaḥa, which is one of essential elements of the modernist conception is derived from Shāṭibī to a great extent.’⁸⁵ Students study sections of it at all levels of education at DHH, from BA to PhD levels, and they are encouraged to read the whole work at home. Its centrality in the DHH curriculum as well as its importance for North African legal discourses are important factors in our assessment of its canonicity, especially for uṣūl al-fiqh.

Author: al-Ḥaṭṭāb, Abū ʿAbd Allāh Muḥammad b. Muḥammad b. ʿAbd al-Raḥmān al-Ruʿaynī (d. 954/1547) Maghribī Mālikī jurist and scholar of Sufism. He is also the author of Mawāhib al-jalīl, a major commentary of the Mukhtaṣar of al-Khalīl.

Title: Qurrat al-ʿayn li-sharḥ waraqāt Imām al-Ḥaramayn⁸⁶

Notes: Qurrat al-ʿayn offers an explanation/clarification of the Waraqāt of the leading Shāfiʿī jurist Imām al-Juwaynī (d. 478/1085), a foundational uṣūl primer. Waraqāt is typically used as an introductory text and often accompanied by commentaries/expositions. In the case of DHH, it is appropriate that the exposition is one composed by a Mālikī scholar. Students read this work more often in fiqh courses and less so in uṣūl al-fiqh.

Author: Muḥammad b. ʿAlī al-Shawkānī (d. 1255/1839) well-known Yemenī modern reformist; associated with the spread of Salafism and support of Wahhabism.

Title: Irshād al-fuḥūl ilā taḥqīq al-ḥaqq min ʿilm al-uṣūl⁸⁷

Notes: Al-Shawkānī’s Irshād is well-received work among scholars of Sunnī uṣūl. His work is a major source for modern attempts to reform legal thought within Sunnī scholastic circles. His work is among the earliest on Islamic legal reform. Students study only certain sections and are not encouraged to read the whole work. It is important in the study of Islamic reformism and is studied as such in class. It is not considered part of the Mālikī pedagogical canon.

Pre-modern Mālikī furūʿ works (students are encouraged to have deep familiarity with these works)

Author: Mālik b. Anas (d. 179/796)

Title: al-Muwaṭṭaʾ

Notes: The earliest surviving Muslim legal compendium which is considered a core canonical and foundational text for Mālikī law. This is a central text at Dar El hadith, and students are expected to have a deep familiarity with its substantive content as well as the legal reasoning presented therein for specific topics of fiqh. Its importance is equal to (if not more than) that of the Ṣaḥīḥ and Sunan compilations, which are more important in the central Middle East and South Asia. (In the curricular overview, the title simply reads ‘al-Muwaṭṭaʾ and its commentaries’ without specifying which edition or which commentary will be studied).

Students study and memorize whole sections of al-Muwaṭṭaʾ. Sometimes, there are optional classes so that students can study it in its entirety. It has been central to the formation of Mālikism as a madhhab and has served as a pillar of the pedagogical canon for centuries.

Author: Ibn Abī Zayd al-Qayrawānī, Abū Muḥammad ʿAbd Allāh (d. 386/996)⁸⁸

Title: Risāla⁸⁹

Notes: An Ashʿarī and Sufi scholar, who is considered a leader of the Mālikī school of Qayrawān. As such, he is also known as the ‘younger Mālik.’ His writings and teachings are, in part, responsible for the spread of Mālikī madhhab against the Fāṭimid the daʿwa. He composed his Risāla at the age of 17 at the request of al-Sabāʾī (d. 355/966). It is seen as a counterpart to the Ismāʿīlī tract Daʿāʾim al-Islām of Qāḍī Nuʿmān and has been the subject of continuous study for centuries. The Risāla is one of the most widely studied synopses of Islamic law with broad circulation well beyond North Africa.

Many students study and memorize the whole work at DHH even though not all professors require memorization. The memorization of the text takes almost three years. One year is devoted to ʿibādāt and the next year to muʿāmalāt and the third year to the remainder. It has been central to the Mālikī pedagogical canon for centuries.

Author: Ibn ʿAbd al-Barr, Abū ʿUmar Yūsuf b. ʿAbd Allāh (d. 463/1070) among the scholars of Cordoba; stayed in Spain though he corresponded with scholars from East. Attracted to Ẓāhirī school, but ultimately followed Mālikism.

Title: al-Kāfī fī fiqh ahl al-madīna⁹⁰

Notes: Al-Kāfī is a manual of Mālikī law organized according to the major topics of fiqh (ʿibādāt and muʿāmalāt). Ibn ʿAbd al-Barr presents issues related to these topics, the prevalent Mālikī opinion (in his time) as well as Mālik’s position. In this regard, the Kāfī may be seen as a window onto Mālikī fiqh in 4^th and 5^th century Cordoba.

Students study selections in class and are encouraged to read it in its entirety independently. It is considered essential in the study of Mālikī law as is his other work al-Tamhīd but merits less attention at DHH than the Tamhīd.

Author: Ibn Juzayy al-Kalbī, Muḥammad b. Aḥmad (d. 741/1340) jurist from Granada.

Title: al-Qawānīn al-fiqhiyya fī talkhīṣ madhhab al-Mālikiyya⁹¹

Notes: Serves as a synopsis of Mālikī doctrine with respect to theology, law, interpersonal relations and other main topics of fiqh.

Students read selections for class and are encouraged to read it independently. It is not considered central to the curriculum at DHH.

Author: Khalīl b. Isḥāq al-Jundī (d. 767/1365) a Mālikī jurist who lived in Egypt and represents a fusion of Egyptian and Maghribī aspects of Mālikism and also evinces Shāfiʿī influences.⁹²

Title: Mukhtaṣar⁹³

Notes: Mukhtaṣar is al-Khalīl’s most well-known work and considered one of the most renowned mutūn (canonical texts) of Mālikī law and integrated into curricula (often with its commentaries). It is divided into 61 chapters according to well-known topics of fiqh including rituals, personal law, civil law, etc The curriculum states that its ‘commentaries and super-commentaries (shurūḥ-hu wa-ḥawāshī-hi)’ are part of required readings indicating that this work is central to the DHH pedagogical canon. Students study selections in class and are encouraged to read it independently with the commentary of either al-Ḥattāb or al-Kharshī. Sometimes this work is considered more authoritative than the Mudawwana.

Pre-modern historical sources, including works of tafsīr, ḥadīth criticism, and history (these are supplementary sources, for selective reference and not read cover-to-cover)

Author: al-Qāḍī Abū Bakr Ibn al-ʿArabī (d. 543/1148) a traditionist and qāḍī from Seville. He traveled with his father to the East (Damascus and Baghdad) and returned to Seville after his father’s death in 493/1100. He is known for encyclopedic knowledge and writings on a range of fields including ḥadīth, fiqh, uṣūl, Qurʾān, adab, grammar and history. According to Robson in EI², he is not known for a strong reputation in ḥadīth.⁹⁴ However at DHH, he is known for his reputation as a ḥadīth and kalām scholar but not as an authority in fiqh.⁹⁵

Title: al-ʿAwāṣim min al-qawāṣim fī taḥqīq mawāqif al-ṣaḥāba baʿda wafāt al-Nabī  ⁹⁶

Notes: This work is part kalām, part history and ḥadīth and is written in defense of Companions of the Prophet especially in light of Shīʿī criticism.

Students read only selections and are not encouraged to read it in its entirety. It is not among the canonical texts of Mālikī fiqh.

Author: Abū ʿAbd Allāh Muḥammad b. Aḥmad b. Abī Bakr b. Faraj al-Anṣārī al-Andalūsī al-Qurṭubī (d. 671/1272) a Mālikī scholar, well-known for his commentary on the Qurʾān; also a scholar of law and ḥadīth.⁹⁷

Title: al-Jāmiʿ li-aḥkām al-Qurʾān⁹⁸

Notes: Al-Qurṭubī’s commentary includes an introduction which provides a methodology of Qurʾānic interpretation. The work is distinguished by its reliance on ḥadīth and emphasis on meaning of Qurʾān for deriving law.

Students engage with only with selections. At DHH, this commentary is central to understanding how to connect the well-known rulings of the madhhab to the Qurʾān. As such, it is read more closely in Qurʾānic studies courses at DHH.

Author: Ibn Khaldūn (d. 808/1406)

Title: al-Muqaddima⁹⁹

Notes: Intended as an introduction to history and its study, the Muqaddima is divided into six main chapters on aspects of civilization, the organization of rural and urban communities, the forms of government, crafts and industries, and scholarship, literature, and culture. The Muqaddima is an important source in the history curriculum at DHH. It is unusual for the work to be listed among the required works for the fiqh and uṣūl al-fiqh curriculum and its inclusion here likely is to signal its importance as a primary source for students to engage with independently.

Students read selections and are not encouraged to read the work in its entirety. It is not considered central to the DHH fiqh curriculum or to the Mālikī pedagogical canon.

Modern topical works (dealing with contemporary Islamic legal reform, theoretical as well as in areas of civil/personal law). Expected level of engagement with these works varies per individual professor’s pedagogical agenda and DHH curriculum

Author: Ṭāhir b. ʿĀshūr (d. 1394/1973) one of most prominent of contemporary reformist North African scholars, who is best known for his tafsīr, Taḥrīr wa’l-tanwīr.

Title: Maqāṣid al-sharīʿa¹⁰⁰

Notes: Maqāṣid al-sharīʿa may be read as an elaboration of al-Shāṭibī’s understanding of the methodology of Islamic law as presented in the latter’s Muwāfaqāt. In this work, Ibn ʿĀshūr elaborates on the importance of maqāṣid within a broader framework of uṣūl al-fiqh and for understanding the purpose of the sharīʿa and the relationship between reasoning, rationality, and the derivation of law. The final section of the work examines how a maqāṣid framework of interpretation functions in the context of fiqh al-muʿāmalāt.¹⁰¹

Students read selections in class and are encouraged to read it in its entirety at home. It is not considered as central to the curriculum as other premodern works listed above though it is authoritative at DHH especially in the context of contemporary legal reform.

Author: Aḥmad al-Raysūnī (b. 1953)

Title: Naẓariyyat al-maqāṣid ʿinda al-Imām al-Shāṭibī

Notes: Students study selections in class and are encouraged to read it in its entirety independently. While it is important for DHH students, it is not considered canonical for Mālikī fiqh.

Works dealing with Moroccan civil code (mudawwana)

Qānūn al-iltizāmāt al-ʿuqūd al-maghribī (handbook of civil law codes and recent amendments)

Mudawwanat al-usra