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Introduction
In the Hadith collection of Abu Dawud Sulayman b. al-Ash‘ath al-Sijistani (d. 888), we read about a madwoman (majnunah) indicted for adultery and brought before the Prophet Muhammad's (peace be on him) second successor, ‘Umar b. al-Khattab (d. 644). After consulting with some of his associates, ‘Umar judged to punish her by stoning. The report of ‘Umar's decision enraged the Prophet's cousin, ‘Ali b. Abi Talib (d. 661), who demanded her immediate release. ‘Ali then addressed ‘Umar, “O leader of the Believers! Do you not know that the actions of three types of people are not recorded: the madman until he recovers his reason, the sleeping person until he awakes, and the child until he reaches puberty?” ‘Umar answered in the affirmative. ‘Ali thereafter posed the obvious question, “Then why is this woman about to be stoned?”
Realizing the error of his judgment, ‘Umar said, “Let her go,” and recited, “God is most great!”2 Documenting an early example of the insanity defense in Islamic history, this story reveals how Muslim sacred law was a contingent force disposed to both violence and justice.
Madmen and madwomen inhabit the discursive margins of Islamic law/ethics (fiqh). In the theoretical and practical discourses of fiqh, we encounter two chief forms of mental disability: mental impairment (‘atah) and madness (junun).3 In canonical texts of legal theory, formal discussions of ‘atah and junun usually take place in chapters on legal capacity (ahliyyah) and interdiction (hajr). The fiqhi configurations of the mentally impaired person (ma‘tuh) and the madman (majnun) are important to study, for they reveal Muslim jurists' critical assumptions about reason and responsibility, disability and dutifulness, legal personhood and ethical subjectivity.4 These peripheral figures are strikingly revelatory of the meanings Muslim jurists associated with concepts such as norm-obligation (wujub) and norm-performance (ada').
Restricting my discussion to the texts of medieval central Asian jurists of the Hanafi School of fiqh, I analyse how legal scholars addressed mental disability, and thereby revealed their assumptions about human nature and the revealed norms.5 The heuristic textual canon I have constructed for my inquiry stretches from the early eleventh century to the mid-fourteenth century, and includes works by al-Dabusi (d. 1039), Fakhr al-Islam al-Bazdawi (d. 1089), al-Sarakhsi (d. 1090), al-Kasani (d. 1191), al-Marghinani (d. 1196),...