in West Africa that marked intellectual maturity.50 Unpacking the complex dialectic between texts, written explanations, and oral teaching in African historical contexts is a challenge that has as yet remained mostly unanswered in academia. While several studies have demonstrated the complexity of African legal understandings in specific contexts,51 there remains a need for a broader thematic overview that allows formative voices from the region to speak for themselves. There is good evidence, based on secondary sources and a cursory reading of the rich primary materials, that West African legal traditions drew on a nuanced understanding of Maliki jurisprudence to make the shari‘a an enduring force for social good in both Muslim and non-Muslim contexts.
Many observers continue to misread the multivalent dialogue between Islamic legal understandings and non-Muslim African cultures. Academics often seize upon a few reformist movements and, inevitably taking them out of context, make them resonate with their understanding of Islamic law’s rigidity based on a narrow text base. Such approaches silence centuries of broader (and ultimately more interesting) legal debate in Africa, much of it preserved in writing; they take as normative reformist voices that actually departed from or challenged mainstream legal understandings. Many have thus considered the Algerian ‘Abd al-Karim al-Maghili’s (d. 1505) arrival in the Songhay Empire as formative to the development of Islamic orthodoxy in West Africa.52 Al-Maghili supplies the new Sultan Askiya Muhammad Touré with several legal rulings justifying the excommunication (takfir) and killing of disobedient Muslims, as well as incitement against non-Muslim communities (in this case, North African Jews present in West Africa). For John Hunwick, such opinions appear to reflect a supposed (Arab) Islamic orthodoxy, obsessed with theological reproach and minority castigation. Shehu ‘Uthman’s later use of al-Maghili to justify jihad in Hausaland, according to Hunwick, thus “closely resembles” the justification used by extremist elements of the Muslim Brotherhood to assassinate Egyptian President Anwar Sadat for making peace with Israel.53 The actual context for Dan Fodio’s endorsement of armed struggle—namely, as a last resort against the enslavement, plundering, and murder of Islamic scholars (the latter long considered constitutive of Islam’s very survival)—disappears behind the alleged normative violence of Islam. Al-Maghili himself was rather marginal to mainstream scholarship in West Africa. Charlotte Blum and Humphrey Fisher observe a “positive chasm” between al-Maghili and the Timbuktu scholarly establishment, and a “total news blackout” surrounding his visit to the sultan of Songhay.54 Timbuktu scholars disagreed with al-Maghili over the permissibility of killing (Muslim) Berber allies of Timbuktu, and the prominent Timbuktu judge Mahmud Aqit overturned al-Maghili’s fatwa demanding the expulsion of Jews from Songhay.55
Following the lead of text-based orientalist assumptions of Islamic legal orthodoxy, anthropologists of African Muslim societies often relish relating the heterodox practices of African Muslim subjects. Here, for example, is the conclusion of an ethnography examining contemporary practices surrounding death in Mauritania:
Despite the commitment of Mauritanian religious scholars to spread . . . the true values of Islamic law to gradually replace existing traditions, the traditions have obstinately survived . . . one can observe that the religious aspects are interwoven with the social and tribal customs. This explains why the majority of the population seem unaware of the rules governing the status of death.56
As proof of such departure from “the true values of Islamic law,” the author cites “Wahhabi” texts (by the Saudi cleric Muhammad Albani, for example) prohibiting emotional expression at funerals, or the recitation of the Qur’an over a dead person. This type of ethnography seems little concerned with the complexities of Islamic legal discourse in West Africa, or the fact that local African practices may be reflective of well-argued legal opinions challenging more rigid juristic opinions produced elsewhere. Many of the practices that are supposed to be evidence of the imperviousness of African culture to Islam, such as talismans or the appearance of women in “public” (not to mention reading the Qur’an over the dead), are actually based on “orthodox” interpretations of Islamic law by African scholars. One West African Muslim scholar thus reprimanded Ibn Battuta for protesting against women’s presence in learning circles: “The association of women with men is agreeable to us and a part of good conduct, to which no suspicion attaches. They are not like the women of your country.”57 These disparate examples point to the constitutive place of custom or culture (‘urf) in formulating Islamic law according to traditional jurists.58 The assumption that whatever does not appear in a restricted set of textual referents is actually “un-Islamic” seems more of a circular argument shared by modern Islamists and orientalists, rather than the position of mainstream Islamic scholarship.
The challenge in narrating the history of Islamic jurisprudence in Africa is to excavate those legal opinions that defined mainstream orthopraxy for centuries. For example, what were the legal opinions upon which the West African scholar mentioned above argued against Ibn Battuta’s assumption of gender norms in Islam? What were the legal methods by which al-Hajj Salim Suwaré, of the seminal Jakhanké clerical lineage, argued against the viability of jihad as a means of conversion to Islam?59 How did African jurists justify the ecumenical incorporation of diverse medicinal and esoteric methods for the treating of Muslim patients, or the use of the Qur’an to heal non-Muslims? What did it mean for scholars like Momar Mbacké or Muhammad Niasse to work “in the court” of Ma Ba Dioukhou during the nineteenth-century Senegambian Jihad? What were the legal grounds on which the children of these scholars (Ahmadu Bamba and ‘Abdallah Niasse) gave up that armed struggle? How did scholars conceive of executive authority in communities where a just imam or amir was absent?60 These questions, and others, are the stories of Islamic law in Africa that have only begun to be told by narrators with the requisite training to appreciate the complexities of Islamic legal discourse in Africa.
Questions of Islamic law were never absent in the foundation of West Africa’s largest Sufi communities. Dan Fodio’s daughter, Nana Asma’u, spread Islamic learning and Sufi practice among Hausa women as a replacement for Bori possession rituals, designated as legally impermissible by her father.61 ‘Umar Tal vehemently disagreed with Timbuktu scholars on the legality of tobacco smoking,62 perhaps meant to signify the ascendant purity of Tal’s community over the polluted, venal clerics of the past. Ahmadu Bamba relied on his training in Islamic law to argue against the Wolof King Lat Dior’s enslavement of fellow Muslims in battle,63 no doubt contributing to his appeal among constituencies marginalized by the perceived corruption of royal authorities. The otherwise friendly Senegalese Tijani scholars Malik Sy and ‘Abdallah Niasse had differing opinions of the legality of zakat collected from peanuts, the key cash crop that began to undergird the new Sufi communities as well as the colonial economy in Senegal.64 The prospect of Sufi realization no doubt attracted followers to these new communities, but the lives of West African Sufis were no less regulated by Islamic law than those of Muslim purist communities elsewhere.
Beyond the elaborate legal curriculum and different opinions surrounding Islamic law in West Africa, scholars evince significant methodological principles that justify further consideration. In Ibrahim Niasse’s argument for folding the arms on the chest in prayer (qabd) within the Maliki school, for example, the shaykh submits a tangential justification that offered a nuanced understanding of the ongoing dialogue between Prophetic custom (Sunna) and culture.65 Even if some African Malikis understood leaving the hands at the side in prayer (sadl), as Sunna they could no doubt perceive that this practice had come to be associated with the sectarian Shi‘a (rafidiya) school in the minds of most Sunni Muslims outside of Africa. Some non-obligatory practices of the Sunna, Niasse argued, could be abandoned if they later became associated with something other than their original intention. For Niasse, a similar example was men growing long hair: a Sunna of the Prophet that had recently become associated with femininity or uncleanliness. The Prophetic Sunna should thus be transmitted in dialogue with local understandings so that an ideological fixation on particular practices did not undermine the ethical assumptions of those practices at their origin.
The unofficial “Mufti of Nigeria,” Ibrahim Salih (b. 1939), also a shaykh of the Tijaniyya in the spiritual lineage of Niasse, similarly tempered