Saharan Commerce and Islamic Law: Problems of Credit and Limited Partnerships in the Fatwa Literature of Mali and Mauritania, 1700–1900

Islamic jurisprudence establishes a set of licit frameworks by which merchants can raise capital in order to engage in long-distance trade. Similar to the commenda system used in medieval Western Europe, Muslim merchants could create partnerships with investors to facilitate trade across the Sahara. In the western part of the Muslim world where the Mālikī legal tradition was predominant, commenda contracts were referred to as qirāḍ (the equivalent of muḍāraba elsewhere in the Muslim world). Ghislaine Lydon’s recent work (2009) demonstrates that Saharan traders also relied on another form of commercial partnership called the mufāwaḍa, in which partners pooled their investments, and one partner was commissioned with the authority to conduct trade with the others’ capital. Yet in practice, these formal mechanisms for raising commercial capital were often legal fictions meant to get around troublesome restrictions. In order to participate in Saharan commerce, merchants found ways of accessing capital by borrowing money at interest or mortgaging properties. Most often, these transactions were represented as combinations of sales transactions. In this paper, I will explore some of the debates that such practices produced in the southern Sahara and West African Sahel over the extent to which these legal fictions were permissible. The paper is based on legal opinions drawn from three of the most important fatwa collections produced in the region during the 18th and 19th centuries (those of Muhammad b. Abī Bakr b. al-Hāshimī al-Ghallāwī [d. 1687], Sīdi ʿAbd Allāh b. al-Ḥājj Ibrāhīm al-ʿAlawī [d. 1818], and Shaykh Bāy al-Kuntī [d.1929]). These fatwas allow us to see some of the intersection between commercial practice in the Southern trade and legal theory. What the paper will argue is that Saharan legal authorities went to considerable lengths to accommodate existing commercial practices within Islamic legal frameworks.