Murteza Bedir - The Early Development of Hanafi Usul al-Fiqh

THE EARLY DEVELOPMENT HANAF! US17LAL-FIQH

OF

by

MURTEZA BEDIR

A Thesis Submitted to the University of Manchester for the Degree of PhD in the Faculty of Arts

1999

Department of Middle Eastern Studies

2

TABLE OF CONTENS

2 3 4 5 6 7 8 9

Table of Contents Abstract Declaration Copyright Acknowledgement Dedication Abbreviations Relevant sections of five texts studied in this thesis

Chapter One - Introduction and Background PART ONE - KITifl.

10 (AMR) 53

- THE THEORY OF COMMAND

Chapter Two -The Concept of Command 56 Chapter Three - Consequence of Command 76 Chapter Four -Command and Takrgr 103 PART TWO - SUNNA: KHABAR AL- WAND

125

Chapter Five - Khabar W-wffftid and Legal Acts 129 Chapter Six - Internal Critique of Kbaharal-wffftidlO PART THREE- IJMJ'173 Chapter Seven -The Authority of Ijmg'174 PART FOUR- QIYiS210 Chapter Eight - Qiyffs and Istipsffu 211 Conclusion244 Bibliography 247

3

ABSTRACT

The Early Development Of Ijanaff uýCdal-fiqh Murteza Bedir The University of Manchester 1999

This is a study about the early history of uyal al-fiqh as a literary genre. An attempt is belonging five to to the texts made make a comparative analysis of of uscil al-fiqh, all lianaff school. These five texts are: al-Fusfil fi- al-Usiil by Jaýýdý(d. 370/98 1), Taqw-im al-adilla by Ab-a Zayd al-Dabiisli (430/1039), Kitdb al-Usfil by Shams alby Fakhr (483/1090). Kanz ild al-Islam al-Sarakhs-i ma"rifat al-usW a'imma al-wusW is (482/1089) In I Usfil this study, al-Pazdawl and al-Shdsh-i,whose author unknown. first four display to that the texts endeavoured show of uyal a methodological is by juristic is bolstered This by which continuity characterised a outlook. continuity the fact that one can also trace a terminological and structural development of these texts in conjunction with their chronology. In addition, I argued that the so-called Usfil al-Sh5shTcannot be dated prior to the final text above, i. e. Pazdawl's Kanz, as have believed, basis language the the on of my analysis of some and structure of this text in comparison with the former four.

4

DECLARATION

No portion of the work referred to in this thesis has been submitted in support of an for degree application another or qualification at this or any other university or other institute of learning.

5 COPYRIGHT

(1) Copy right in text of this thesis rests with the Author. Copies (by any process) full, instructions in the either in or of extracts, maybe made only accordance with given by the Author and lodged in the John Rylands University Library of Manchester. Details may be obtained from the Librarian. This page must form in Further (by part of any such copies made. copies any process) of copies made accordance of with such instructions may not be made without the permission (in writing) of the Author.

(2) The ownership of any intellectual property rights which may be described in this thesis is vested in the University of Manchester, subject to any prior agreement to the contrary, and may not be made available for use by third parties without the written permission of the University, which will prescribe the terms and conditions of any such agreement.

Further information on the conditions under which disclosures and exploitation may take place is available from the Head of the Department of Middle Eastern Studies.

6

ACKNOWLEDGEMENT

Firstly, I should like to record my inestimable debt to the late Norman Calder, my first supervisor. Without his knowledge, insights and encouragement - even indeed, have been this thesis posthumouslywould never conceived nor, seen fruition. Gratitude must also be rendered to Robert Gleave, who so ably and generously supervised this work to completion. His unique kindness and guiding friendship have helped me to overcome the difficult hurdles created in the wake of Norman's abrupt departure. I thank also Colin Imber who provided invaluable be dire times called academic as well as personal assistanceat of what can only lbrahim for Hakki Inal, be Acknowledgements to straits. made my colleagues must for Vanlioglu Masum this comments on particular aspectsof allowing me study and to use his library, and also to the bodies of Sakarya University for financial in assistance pursuit of this study. I thank my parents for their continuous moral as well as material support. I am beholden to my wife, Hacce, for her love, and for having displayed Spartan flux future this thesis's tumult and in which was patience amidst periods of personal well-nigh uncertain.

7

DEDICATION

To my twins Ahmet and Yusuf

8 ABBREVIATIONS

E12

nd Encyclopedia Islam, 2 : of edition.

Fusiil

fiby Al-FusW UsUl Abil Bakr al-Jaýýdý : al

GAL

Geschichte der by Literatur Carl Brockelmann : arabischen

GAS

by Geschischte des Fuad Sezgin Schrifttums : arabischen

IA

! : slam Ansiklopedisi MEB

Kanz

Kanz al-wusW ild ma'rifat al-usfil by Abii al-Ijasan al-Pazdawl

Shdsh7i

UsW al-Shds-iby al-Shdsh7i

TDV IA

Tiirkiye Diyanet Vakfi ! slam Ansiklopedisi

Taqw1m : TaqwYmal-adilla by Dab-lis-i

Usiil

: Usill al-Sarakhs-1

9 Relevant sections of five texts studied in this thesis: Fusfil: Amr: 11,79-146 Khabar: III, 63-71ý 113-123 Ijmd': 111,257-267 Istibsdn: IV, 221-253

Taqw-im: Amr: ff. 13-18 T" L

ff. 98-1005 109-111 A.nabar: Istibsdn: ff. 227 Ijmd": ff. 8-10

Usal

Amr: 1,11-25, Khabar: 1,364-3705 1) 333-338 Ijma': 1,295-300 Istihsan: 11,1999-208

Kanz: Amr: 1,100-133 Khabar: 111,727-739)747-757 Ijmd': 111,971-982 Istibsdn: IV, 1122-1134

Shfishl: Amr: 116-131 Khabar: 280-281,287 ljmd': 287-288 Istibsdn: ----

10

Chapter One - Introduction

background and

Introduction This is a study about the early history of uýyalal-fiqh. The religious discipline of uyal alfiqh as an independent literary genre began to emerge in the middle of the fourth century A. H.. Although the biographical sources attribute works with the title uýyalal-flqh to figures, before do have this time. the earlier any independent uyal work at present we not The famous al-Risdla by Shdfi'! (d. 204/820), who was generally credited as the founder discipline, from fundamentally differs in its this the uyCll terms of of content and nature works we see from the middle of the fourth century onwards. W. Hallaq argued that the it haduh, this though central concern of work is contains the skeleton of the science of is later fundamental difference between The treatises the al-Risdla and uyfil uýyalal-fiqh. be integral from former, to the which were an absence of certain philosophical questions has been disputed later. date The this recently; even if we genre of al-Risdla part of figure half it historical Shdfi'T, to the there attribute of remains nearly one and a between Hallaq the texts, earliest centuries of gap al-Risdla and uyal which, as argued, cannot be explained awayl. The claim that Shdfi'! 's main aim in al-Risdla was to establish the authority of the Prophet is backed by the works of a contemporary of his, Ab-d Miisa 'Tsd b. Abdn (d. 221/836), a 1janaff scholar and judge, and a disciple of al-Shaybdn-i.The latter's interests Hijra, debate the the the theoretical that, the end of second century of at among indicate Muslim jurists revolved around the Prophetic tradition, whereas other aspects of Islamic 2. legal theory were less studied 'Tsd's works and other works of a similar nature, i. e. by developed themes, were generally replaced more and monographs on individual uyCil formally structured uýal texts. Since the Mediaeval Muslim worldview places the tradition in a central position, in that the later achievements were regarded, not as an innovation, but as an expansion or interpretation of the earlier ideas in the tradition, it developed less less incomplete, that these and consistent monographs would was natural have Even in hand text the to the earliest we studies. uyal mature our more way give today, al-Fusfil fi- al-Usiil by Abii Bakr al-Jaýýdý, reached us in a single manuscript, it The incomplete. interpret is tradition to of made necessary centrality either also which

II

Only in it ignore the the tradition to away earlier works as much as one can. same or those works which had a fully developed structure as well as reflecting the main tenets Orthodoxy legacy Jaýýdý's the In Ijanaff to the tradition, of seemed to managed survive. have lived through the Transoxanian perspective, although it was closer to the beginning of the tradition and reached a stage of development one would expect from a standard early uyfil text. This lack of interest exists despite the fact that his work contains much more material than its subsequentreproductions, say, Taqw-im al-Adilla by Dabasil. It is, therefore, of necessity to begin a study of the history of uyid al-fiqh with proper hence limit Jaýýdý. To the the scope of the study and perhaps u,vW works, with work of importantly to see the development of uýal al-fiqh in the context of a particular more four five Ijanafithis texts, school, of which are not only study will concentrate on uyal the earliest works but also seem to suggest a "tradition" within the tradition. Along with by Zayd Abii flTaqw1m Jassdý, this alal-Adilla al-Fus-Eil al-Usfil of study will analyse Dabiisli, Kitdb al-usiil by Shams al-a'imma al-Sarakhs-iand Kanz al-wusfil ild ma'rifat alfocus is fifth by The Fakhr the sothis work study will on al-Islam al-Pazdawl. 11sal 3.1 from fourth be "Usu-1 to text the an early usal century called al-Slidshl", which is said have belonged fourth latter this that this to the throughout study work cannot will argue its language, based structure and content. on an analysis of century, My interest in lianaff school comes from my Ijanaff background. It is generally argued that one cannot be impartial towards one's own tradition. I admit, irrespective of how far I am still loyal to that tradition, that my background certainly has an impact on my impact be This I tradition. that should not necessarily a negative of one. understanding think that going through these texts, as a Muslim, makes me participate in the audience for do I I Although these texts texts. these as autonomous objects study, chose uyfil of its In isolate believe text that context. our case, one can see that a out of one can not these jurists were conscious of the fact that they were part of a common tradition, in that they did not even bother providing the references for their quotations. For, the knowledge one scholar inherits from his master is not the product of that master but only is, difficult It be therefore, the tradition. to the sure newest version, of a version, perhaps jurist's belonged individual finds in innovation text to that really an one whether an individual. Placing a text in a tradition contributes to better an understanding of it and

12 opens the possible ways of going beyond the text.

The approachof this study is thus to discover more than what an author understandsof his text. It is not only becausethe languageof the text belongs to the tradition after it is but is because knowingly inadvertently the uttered, it also sometimescomes author or under pressure to censure certain points and promote others. In the case of Hanaff did have far legal is theory school, which not a reputation as concerned,the as classical adherentssometimesfelt it necessaryto suppressthe points which engenderoutrage on the part of Orthodoxy. To this effect, one can cite the examplesof khabar al-wabid and the conceptof istibsan which will be dealt with in the secondand fourth chaptersbelow. Another insight that comes out of this approachis to be careful about unconsciousand later later The hands ideas in the the writers. of conscious manipulations of previous doctrines back beliefs to the early authorities and tend to their and project centuries One doctrine in its fully developed form the of view of an earlier authority. claim a as his disciples jurists, for Pazdawi-, Abii Ijan7ifa the most two our example, made and fifth in late the the this term century, senseof celebrated adherentsof orthodoxy, in ýaduh. He Abii HanTfa them the even made retract the considering champions of 4. Qur'an the of position of createdness Two methods of ksfil al-fiqb. Ibn Khaldiin in his Muqaddima notes that uyid works up to his time follow two patterns, the pattern of theologians (tariqat al-mutakallimin) and the pattern of jurists (tariqat al-fuqahd )5, the latter of which in fact refers almost famous jurist him, Ijanaff "Ald'udd7in jurists. Before Ijanaff the to the alexclusively Samarqand7i(d. 539/1145) in the introduction of his uyal work, Wizdn al-usW fi- natd'ij al-"uqiil, mentions the same phenomenon: Know that uyal al-fiqh is a branch of uýal al-dFn; and that the composition of any book must of beliefs. Therefore, by be the as most of the writers on uFI71al-flqh author's influenced necessity belong to the Mu'tazila who differ from us in basic principles, or to Ahl al-bad7ithwho differ from books, books. however, Our detail, their scholars' are of two we cannot rely on us in questions of types. The first type is of books that were written in a very precise fashion, becausetheir authors knew both the fundamentals (al-usao and their application (al-fura'). Examples of thiis type are Kitdb Ma'dkhidh al-shar' and K1t5b al-jadal by Abii Manýiir al Mdtuad7i.The second type of books dealt very carefully with the meanings of words and were well arranged, owing to the concern of their authors with deriving detailed solutions from the explicit meanings of narration. They were

13 not, however, skilful in dealing with the finer points of uýal or questions of pure reason. The result was that the writers of the secondtype produced opinions in some casesagreeing with those with whom we differed. Yet, books of the first type lost currency either becausethey were difficult to 6. because lacked the resolution to undertake such works understandor scholars

George Makdisi has recently 7, in his study on the Ijanbal-i scholar Ibn 'Aqil, argued that uýyfllal-fiqh was originally part and parcel of the science of uyal al-din (or kalam), citing as evidence the examples of al-Mughn7i by Qdd7i 'Abd al-Jabbdr (d. 415/1024), a Mu'tazil7i theologian and UsM al-din by 'Abd al-Qdhir al-Baghdddi (429/1037), an Ash'aCi theologian. Ibn 'Aq7ll (d. 513/1119), according to Makdisi, opposed mixing uYCII however, did favoured fuqahd'. Makdisi, theology the al-fiqh with not and method of mention the origin of the method of thefuqaha', but stressedthat Ibn 'Aq7il was the most important actor in this method. Although he does not explain what he means by the "method of thefuqaha "', he seems to associate it with the traditionalism of the Ijanbal-i influence but far Makdisi Ijanaff Ibn 'Aq7ll, the thought school. as as recognised of on is did in Makdisi two this the science, concerned, u,yal al-fiqh, and particular, methods of despite fact Ijanaff the that the "method of the not make any comment on connection, fuqahd '" is usually associatedwith the Ijanafl- school. Aron Zysow in his study on Ijanaff uýcd al-fiqh de-emphasised the distinction between basis his to the theological and approaches uyal on of research on 8. Samarqand7l'sM7izdnin particular W. Hallaq also does not pay a particular attention to

the juristic

that distinction in his general survey of Sunni uyal al-fiqh. E. Chaumont, in his introduction to the translation of al-Luma' by al-Shlrd2ff, mentions that the phrase 'method of '!fuqahd "' had been used before Ibn Khald-dn by a Shdfi"T jurist Aba , Mu4affar al-Sam'dii-i (d. 489/1096)9. Chaumont further asserts that this difference between these fuqaha and mutakalliman was in fact a reflection of power struggle between these two camps on the question of who would have the final decision in distinction however, Khaldiinian The two of methods of uycll al-fiqh, matters of religion. has been widely accepted by the contemporary Muslim writers on uývalal-fiqhlo. It is the contention of this study that the prevalent lianaff uycil tradition, up to the six

Century of the Hijra, preserveda distinctive character,which can be characterised,on keeping its insistence by hand, the science of uAl al-fiqh as an independent the one on

14 endeavouras regards to kaldm, and on the other hand, by its excessiveobsessionwith the substantivelaw (furci' al-fiqh), in that virtually every principle of uAll has been put to the test of Ijanaff corpusjuris, with a view to reaching a legal system comprised of consistent and coherent uyal (legal theory) and furCt' (practical jurisprudence). This tradition, as far as we know, beganto emergeas a literary genrewith Jaýýdýin Baghdad later brought to Transoxania,the stronghold of the Ijanaff school. There it was and was by likes Abfi into Zayd the remoulded of al-Dabiis-i a new shape, which was then the latter of whom finally left his indubitable print popularisedby Sarakhs-iand Pazdaw-1, it. dominant From I Uanafi- uycll to this the on now on will refer uyal movement as tradition, or simply the juristic approach. The discourse in the above quotation from Samarqand7iseems to be deceptive since it it furCi' (here the title considers uýal al-fiqh under of probably refers to general fura' both in to theology), that jurisprudence as opposed uyal al-fiqh and

al-fiqh are

branches book in fact falls be Samarqand7l's to the considered of uyal al-din. outside this fact had in A. Zysow tradition, the a which explains juristic reason why no problem idea distinctive basis Ijanaff to the the rejecting of a approach uyal al-fiqh on of this book. Samarqand7i'sbook actually reveals a desperate attempt to reconstruct the sokalam, Mdtuf-id7i it between MdtuCid7i to the the as a natural corollary situating called uyctl traditionalism of Ahl al-badlith (probably meaning Asharism) and the rationalism of Mu'tazilism. As regards Makdisi's interpretation of "Abd al-Jabbdr and al-Baghddd7i,it does not seem to be convincing to conclude merely on the basis of such an encyclopaedic book of the former and a religious compendium of the latter that uyfll al-fiqh, as a formal literary independence from kalam (or had fourth the uyal al-din) at end of not gained its genre, Makdisi fifth These beginning two the authors wrote, as centuries. notes, separate of and fact 'Abd The that al-Jabbdr's works of uyfil al-fiqh were said to works on uyctl al-fiqh. be excessively engaged in kaldm debates proves no more than that the earlier an uyal treatise of this theological tradition is, the more full of theological points it is. Jaýýdý's hand, fithese two theologians', the than on earlier was other which al-usill, al-FusW by fourth doubt had the the time the that of middle of uýal al-fiqh century without proves literary independent developed formally of any other genre of the period. structure a

15 Last but not least, Jaýýdý' work proves that uýCilal-fiqh had another important source out it developed, itself. jurisprudence the of which namely science of George Makdisi's version of the two methodologies of uýal al-fiqh, however, deserves in its terms credit of reference to the origin of one approach towards uyal al-fiqh, namely the theological approach. This approach appears to have been harnessed in the field of discussion among the major schools of kalam including the Mu'tazila, Ash'ariyya and MdtuCidiyya. His references to Qdd7l 'Abd al-Jabbdr and 'Abd al-Qdhir al-Baghddd7i evidence the role of the first two schools in this respect. 'Ala'udd7in al-Samarqand7i's reconstruction of the views of Abii Manýiir al-MdtuCid7i,however retrospective and it interest in be, fact the that reconstructive may al-Mdtuffidli's uyal al-fiqh was points out he by drive, the though theological mainly governed same was also a renownedfaqTh of the Ijanaff school".

Since we do not have his related works, we are unable to

differentiate how much of Samarqand7i'sprojection of al-Wtuffidli's views is historical. As we have already pointed out, Samarqand7i'sreconstruction of his views aims to him leader describe his theological than to present as a of a school rather views. The method of the fuqaha', therefore, must refer to the development of uyal al-flqh in the circles of juristic discussion. Jaýýdý's work seems to be the one of earliest and Isd b. in Shdfl'! 's Abdn's works on khabar this tradition. complete ones al-Risdla and development juristic ijtihdd-qiyds to the this tradition. all contributed of al-wahid and We will see below that these jurists close the gates of their dispute to non-jurists. Turning to the point raised by Chaumont, his claim of the tension between jurists and theologians seems to be justified as the works belonging to either camp reveal examples jurist (d. For Ash'aCI-Shdfl'! 478/1085) tension. talked example, an al-Juwayn-i a of such fuqaha' about

12. in a pejorative way Similarly the above quotation from al-Samarqand7i

fura'-oriented politely criticised

jurists. Two Shdfi'l jurists, Al-Sam'dn7i and al-Shlrdzl,

two contemporaries of al-Juwayn7i appeared to avoid the theological perspective. In one instance, Al-Sam'dn7i accused the Ash'affs of innovating an idea which is alien to the 13 fuqaha ,

This by no means suggests that there was no interaction between theology and law, and hence, between their respective methodologies. On the contrary, there

a certain degree

16 of truth in the claim that Shdfi'! 's al-Risdla was a responseto the over-all theory of rationalism, and uýWal-fiqh in this senseis an independentscienceand can be used as a due its for his the Al-Samarqand7l's theology juristic of was own. criticism reason by ignorance somelianaff jurists of the importanceof kaldmi - ideological implications of the ideas they were promoting. It seemsthat he had in his mind Dabiisli and his followers, as we realise, in the course of his study, that it was DaWs-1and his in predecessors 'Iraq - amongthem Jaýýd*occupiesthe prime position - who did not care in doctrinal their whether opinion certain points coincide with the theoretical-theological Hijra, Samarqancri Mu'tazila. As theologian the the position of a of sixth century of his Mu'tazila, then the most unwarranted that the could not accept view coincided with in Samarqand7i Islamic Orthodoxy. Despite theologians of the the situation efforts of forth have followed 1janaff the to the road set uyal al-fiqh seemed sixth century onwards by Jaýýdýand the followers of Dabiis-i,giving only lip service to the emerging ideology best Ijanaff fact in MdtuCidism. This the that the work of most celebrated uml seen of is juristic followed Pazdawl, tradition. the the work of who clearly school was What are the characteristics of juristic method? Ibn Khaldiin describes it along with its following the theological with words: method, counterpart, The writing style of the lianafis is more in tune with fiqh and more apt to the practical jurisprudence, becauseof the multiplicity of examples and citations, and constructing the Issues there (in uyao on the juristic subtleties(al-nukat a1-fiqhiyya). The theologians make the description deduction fromfiqh (uyao tend to and make rational as much as they can, as this abstract of issues discipline (their the treatment the of) and the consequenceof their method. character of prevalent is The lianaft Jurists had upper hand in this (science) due to their mastering of the juristic subtleties 14 far from deriving the casesoffiqh as the principles of this science as possible. and

Three features in the writings of the Ijanafis are noteworthy. First, every principle of in i. law This is two they, the test to the ways, works e. of school. on of practical u.yal put the one hand, test practical law (fura')

law (uyao (test of the theoretical with

hand, they test the theoretical the principles of more interestingly, other on justification); (furcl'). interestin jurisprudence An from drawn the the practical 19 cases u,yal with discussion in is the the test this concerning at play problem of sort second of example known as takrdr (see Ch 4 below).

17 Secondly the juristic methodology keeps the uýW discussion within the confines of law, i. e. considering only the juristic implications of the usal theories and leaving theological-ideological considerations at minimum. To give an example, in the time of Sarakhs-1,when these ideological considerations began to have been taken seriously in Transoxania, SarakhsTgives lip service to the emerging Wtuflidli theology in the issue of takhsis al- "illa, which was regarded as related to the concept of istibsan by Jaýýdýand Dabas-1.Sarakhs-irejects the validity of this concept for theological reasons but does not provide the basis for it, except for re-interpreting the explanations Provided by his but to the opposite effect. predecessors, Thirdly,

the juristic

justificatory method appears more retrospective and

than the

theological methodology, probably due to the former's concern and need to deal with the in front to the of the theologian-jurists already existing corpusjuris, contrary open space is, however, This by "rational" to the only subject matter. owing opportunities provided in is the end, uyal al-fiqh an appearance; mainly a reflection on the theoretical questions do have importance being as well as which not necessarily practical a theoretical justification

for The the tradition. example, of what an abstract of school question,

legal has little far for the the use, as as practical cases are concerned, command means in problem was already resolved the tradition. Finally, the juristic method, as pointed out above, presents a dispute generally as a legal dispute jurists. i. In debate to the the are mostly parties a given one, e. on the below for instance, (see Ch 84), 3 the parties were p. consequence of command from by fact the the that some our authors camp offuqaha' in spite of generally chosen by into long Sarakhs-i theologians. even enters a polemic with views were only proposed by identified (wdqiffiyya), Ash'acis the the who are other sources with parties one of without naming them. The scope of the study. The fact that uyfil al-fiqh covers such a huge number of themes huge demand five issues, the together of comparing with uAl texts, and sub-themes and four from I Therefore, four limit topics, the to each each chose of my study. required me from I In Kitab, topic texts. each selected a of other words, sunna, major parts of uyal ijmd' and qiyds. The reason is that from Jaýýdýonwards the central structural element

18 that governedtheseuyal texts was the conceptof ayl (pl. uyao, which can technically be renderedas a sourceor indication of law. An overview of the texts under consideration shows that they treatedthe themesof ugil al-ftqh in the order of Kitdb, sunna, ijmd' and Corresponding to these sources,the present study comprises of four parts. The qiyds. first part, Kitab, comprising of the three chapters,deals with the concept of command. The secondpart dealswith two particular issuesconcerningkhabar al-wabid, which are the value of legal acts and the criteria for the acceptability of isolated reports. The third part, ijmd', treats the justification of the authority of ijmd' in one chapter; and finally the fourth part, qiyas, again in one chapter,concentrateson the concept of istibsan and its relation to qiyas. It should be noted that the selectionof the topics is purely arbitrary; there could naturally be other topics. For, the purposeof this study is not to provide a kind is impossible in but this to trace complete picture of uýid al-fiqh, which of study, the early history of the Ijanafi- uýyalal-fiqh in the context of certain arbitrarily chosen topics. In each chapter I will start with chronologically the earliest text on uyal al-fiqh, namely al-FusW of Jassds; then will come Taq

is be followed by Dabiisl, to of which

Sarakhsl's Usfil and Pazdawi's Kanz. Finally I will discuss the text of Usfil al-Shdsh-1. The Problem of Usfil al-Shiishl. A well-known uyal compendium, popular especially in the Indian subcontinent madrasas, entitled Usill al-Shdsh7l,has been recently published twice under the names of two different fourth century Ijanaff jurists, one being Abii "Al7i Abmad b. Mubmmad al-Shdsh7i(d. 344/955), a disciple of famous Ab-d al-Hasan alKarkh-i (d. 340/95 1) and the other Abii Ya'qiib Ishdq b. lbrdhim al-Shdsh7i(d. 325/936). The more older publications of this compendium, in the Indian subcontinent, either do its Nizdmudd7in author or sometimes names a certain alnot provide any clue about 15 Shdsh7ior sometimes AW Ya'qiib al-Shdsh7ias the author Brockelmann, under the title . is him in Ya'qiib Abil there to that the manuscript ascribed an usal notes al-Shdsh-i, of libraries of Egypt, Petersburgh and Rampor. Before Brockelmann, Goldziher expressed doubt about the date of death of this Shdsh7l,believing that ascription is correct, on the basis of the fact that the text of Usfil al-Shdsh7icontains a reference to a fifth century Shdfi'I jurist Ibn al-Sabbdgh (d. 477/1084). The work also contains two quotations from (d. 430/1038), whose work of uyal is also part of this study. Abii Zayd al-Dab-Cis-1

19 Brockelmann, however, shifts the doubt from the author to the text, thereby arguing that this text should belong to someoneelse. He proposedtwo alternative names to which this compendium belongs; the first jurist is Badruddlinal-Shdsh7ial-Shirwdn7iwho was active around 752/1351 or 852/1448,in whose name is the text is registered in the PeshawarFihrist. The other name is Ni;ýdmuddlinal-Shdsh7i(a 7th/13th century scholar), 16 is found in Bankipore whose name catalogue . It seems that the confusion was present at the time of 19th century Indian biographer Abd al-Ijayy al-Luknawl (1847-1886), who, by reference to Kashf al-Zunfin of ljajjl Khal-ifa (1067/1659), tried to clarify the situation, stating that the compendium called UsM al-Shdsli7i belonged to certain Ni? dmudd7in al-Shdsh7l,which is also titled al17 Khams-in referring to the age of the author (50) at the time of its completion The . be in his however, is time, to seems not confusion around whether it an early text. The Istanbul edition of Kashf al-Zuniin does not contain anything about UsW al-Shdshy, but the first edition by Fluegel contains this note with more information about the history of 18 this text According to the Fluegel edition of Kashf, the draft of the text was written in . Egypt and it attained its final form in Kastamonu, then in Bursa (Turkey) (taswTduhfi Mi,,vr wa tabyi(luh ba'(IUh fi Qastamfiniyya wa ba'(1uhfi Bursa). The beginning on this text matches the beginning of the text in our hand today. A commentary of this work is by b. Mawld Mubammad there, was written a certain which al-Ijasan alalso noted Khwdrizm7i al-FdrdbT, who completed this commentary in the year 781/137919. The Usiil Abii 'All is found this to al-Shdsh7i al-Shdsh7i earliest record which attributes in the Hadiyyat al-'arifin by Bagdatli Ismail Paýa (d. 1339/1920)20. 21 Dr Mubammad Muzaffar Baqa, after analysing the sources and different Recently , Us-RI that there two this are uyal works work, concluded named alpublications of Shdsh-i;the author of the first one is disputed, but it is most probably Ni?,dmuddlin alShashl, for he is specified both in Hadd'iq al-Hanafiyya and Kashf al-Zun-an as the is Ya"qiib Abil Dr Baqa The to text. this al-Shdsh7l, which one attributed second author of think is different from the famous Usfil al-Shdsh7iimplying that its ascription to Aba Ya'q5b of the early fourth century is authentic. My examination of different versions of Usifl al-Shdsh7iincluding the one ascribed to Abii Ya'qUb shows that all the works known as Usill al-Shdsh7iare the same work. Dr Baqa's confusion, though he does not

20 specify the text he examined, might have stemmed from the fact that the popularity of this work in the Indian subcontinent led to a number of commentaries on, and 22 Besides, if there were an uval work of an earlier date such manipulation of, this work . 325/936 it. 344/955, have failed the traditional to as or mention sources would not Besides, no classical biographers, who had entries for both Abii 'All and AW Ya'qiib, 23 ascribed them an uscil work . As far as I know no ma or usal text of later centuries contain any qoutation from this supposedly fourth century text, or from these two jurists. It seems that this work was seen as an ordinary uyal work of no particular importance, let alone the earliest uyal text. The fact that the name of the Ab-a Ya"qiib Isbdq b. lbrah-im al-Shdsh-i appears in a number of manuscripts of geographically different locations suggests a common source of confusion, at least for some copies of it. Emergence of the name of Abii 'Al-i al-Shdsh7i,however, is totally baseless, as no be his His to manuscript appears carrying name. name appears in the most recent edition following for information Bagdatli Ismail Paýa, the this work, of probably whose source is unknown. Although the editor Usal al-Shdsh7iwas aware of the note in al-Fawd'id of is belonged he Nizdmudd7in that this to al-Shdsh7i, misinterpreted the al-Luknawl work famous by that there two the name of althere, scholars which says were previous note Shdsh7i,Qaffal al-Shdsh7ial-Shdfi'T and Abii 'Alli al-Shdsh7ial-Ijanafi-, thinking that this Ni:ýdmuddin al-Shdsh7iwas Abii WT. Another factor that might have made him think that this work belonged to Abil 'Al-i might be that this Abii 'Al-i was the student of Ab-5 further be backed by fact last like Jassds, the that the which might al-Hasan al-KarkhT, issue treated in Usfil al-Shdsh7iis identical with that in al-FusW of Jassds.Although no biographer, including

'Al-i's Ab-a that al-LuknawT, records

full

includes name

Ni? dmuddin, the editor combined two different people's names as one name and 'All it Abii to this attributed As a conclusion, given the above historical data, it is hard to accept that this work is the be before Hijra fourth Abii half the the can and neither it century of of early product of Zayd's time (early fifth century). It seemsthat we have to rely on the note in the Fluegel biography be it this Kashf, the to which mentioned earliest work. appears as edition of In the following study, the literary style and structure of the UsM al-Shdsh7i,along with

21 other four usal texts that belong to fourth and fifth centuries,will be examined. At the beginning I thought, as many others did, Usal al-Shdsh-iwas a fourth century treatise; only through my comparativeexamination of the content, languageand the structure of these works have I realised that the text of Usfil al-Shdsh7icould not be earlier than Pazdawl's Kanz (late fifth century), as it often clearly follows the terminology and the Pazdaw-i-'s structure of and even supplementsit.

Biographies 1. Jaýý4 25 Abii Bakr Abmad b. "Ari al-Rd2ý11, in better known as al-Jaýý4 born was . , 305/917, in Rayy, one of the chief towns of the province of Jibd1 in Iran, and in Buyid 26 (4th/lOth times century, when Jassds lived), the capital of the Buyid state . In 325/937, he came to Baghdad and studied under the famous Ijanafi- scholar Abii al-Ijasan al-

Life24

KarkhT. He left Baghdad twice, one for AhwdZ27 and one for Nishapur. The sources note 28 latter journey his that the teacher to go and study baduh was upon the advice of With

the famous traditionist al-ljdkim al-MisdbiiCi (321-404/933-1014). This note seems to be if latest date for journey, i. before 339 the this e. odd; since, even we accept possible alKarkh7i died in 340, on the basis of the dates given in the sources, Jaýýdýwas 34 years be for It 18 34 was only years old. would unusual a whereas al-11jdkim years old old 29 jurist who already had the chance to study with important figures of his time to go and . is 18 It Jaýýdý that the of an years old person. most probable study under instruction further his knowledge in his journey Nishapur badi-th, to to on accompanied al-lidkirn 30 instruction. his 0. Spies's Jaýýdý that than note studied uyal alstudying under rather badith under al-ljdkim is, therefore, unacceptable. His assertion seems to have based on the supposition that al-ljdkim was the author of a very famous work on Wam al-badi-th. This fact, when viewed with the note in the biographical sources, must have led to Jaýýdý that studied uyCilal-badith with al-ljdkim. conclude Jaý5dý came back to Baghdad in 344/955, four years after his famous master died, to head Hanafis in Baghdad, highly the the the of as of al-Karkh7i respected post assume both as a teacher and as a mufti. He is said to have been offered twice the office of the it. This did his he but to justice, was generally attributed accept not extreme chief

22 1. pietY3 It is, however, possible that he did not like the idea of being associated with Sh-l'! Buwayhid rulers who had the real power at that time 32 Al-Nad-im (380/990) and . others give an exact date for his death, which is 7 Dhilbijja 370 (14 August 98 1)33 Like . his teacher, he is counted among the Mu"tazila by the authors of Mu'tazil-i sourceS34. The later lianaff scholarship (muta'akhkhirCin) attempted to classify the Ijanaff jurists in their relation to ijtihdd and taqlTd. The most famous of these identified seven categories from independent the ranging status of mujtahid to the status of complete muqallid (imitator)35 This classification places Jaýýdý within the category of the scholars who . derive law directly from the divine sources (a task which only a mujtahid can cannot do), but they can issuefatwds in accordance with the corpusjuris of the school. This is the fourth category, called 'deduction (takhr-,J)*. This categorisation is criticised by many in had less Jaýýdý the those that than grounds who were regarded as people on no calibre the third category, the category of 'ijtihdd

in particulars', such as Sarakhs7i and

36

Pazdaw-1Works. Like most of the Hanaff scholars, Jassds'smain interest was the science offiqh in general. His writings can be classified into original works, commentaries and abridgements. A. Original works: 37 This is actually a tafsIr work, but it belonged to that 1. Ahk5m al-Our'an . in is its Qur'an legal the terms to tafsTr explore whose purpose of genre of i. is known by Ahkdm Jassds's this e. al-Qur'an. name, content, a genre which be to one of the earliest and, at the same time, most work seems field. Jaý*dý in In to this the tafsTr, attempts explore the comprehensive first Law, Hanaff the together to tradition the source of with an of relation interest in disputes among the different traditions and individuals some of later dispute Murji'! the the works such as whom received no attention of 38 (143/760), 'Uthmdn al-Baffi scholar

2. AI-Fusfil fi al-usfil. This is one of the works on which this study will focus . It seemsto be the earliest text on uAl al-fiqh that reachedus, apart from al-

23 Risdla by al-Shdfi'!, who died more than one and a half centuries (d. 204/820) before Jaýýdý.The introduction of Ahkdm al-Qufan suggests that FusW was intended to be a preparatory work for his monumental tafsIr 39. The extant manuscript of this usfil work, however, lack the work introduction and a few chapters from the beginning of the topic of al-'amm (the general). The editor of the book, al-Nasham7l,however, tried to complete the missing chapters with reference to the quotations cited in other uyfil wor

s.

40

B. Commentaries: 3. Sharh al-Jiimi'

by Al-Jdmi' Mubammad b. al-Ijasan alal-kabir. al-Kab-ir

Shaybdn7i(189/805) is one of the important texts of the school upon which 41 famous Ijanaflfrom Jaýýdýonwards every scholar wrote a commentary 4. Sharh Mukhtasar aI-TahjjW-e2 legal the commentary written on manual .A by Abii Ja'far al-Tabdwl (d. 321/933), the earliest commentary written on this

text. 5. Sharh Adab al-q5dj43 Adab al-qdd7iby Abii Bakr al-Khaýýdf (261/874) is a . judgeship. is Jaý§dý's the etiquette of again the earliest work about Hajj! Khal-ifa44 to this work, according commentary on C. Abridgement: or lkhtisdr

lkhtildf

45 ,

It is al-'ulamii' an . jurists) (dispute by Ab-Ci ikhtildf the work among written an abridgement of

6. Mukhtasar

lkhtildf

al-fuciahii

46

Ja'far al-TahdW'1

The sources attribute a number of other works to Ja*ýd5,which are again mainly about fiqh, except one, that is Sharh asma' al-husnd (commentary about the attributes of God). 47 These latter works do not however seemedto have survived .

The works of Jassdsgive us an idea about the nature of his achievement.He produced in Ijanafi before least fields his in the tradition time, which were explored works original

24 such as the genresof uyal al-fiqh and abkdm al-Qur'an. In the field offura' al-fiqh, the school tradition had already produced a heritage, upon which Jaýýdýworked either by writing commentarieson such famous legal manualsas al-Jdmi' al-Kabir and Mukhtasar al-TahdwYor by summarising a more detailed work such Ikhtildf al-Fuqahd'. It would be not an exaggerationto claim that Jaý§dýinitiated a tradition of writing commentaries for on certain schools works, which would continue centuries.The author of Kashf alZuniin remarks, on a number of occasions,that his commentaryon a certain work is the earliest one. JaýýAý and Mu'tazifistn.

We have mentioned above that some Mu'tazil-i

Jassds Mu'tazila. the regarded among

biographers

None of the non-Mu'tazil-i sources appears to have

Some contemporary writers, like Madelung, M. Bernard and 48 Shehaby accepted this information without hesitation and considered him as Mu'tazill

information. this attested

The fact that the Sunni and especially the Ijanaff affiliation

his do alleged not record sources

to the Mu"tazila should not deceive us, because Jaýýdý was a very influential

jurist whose non-Sunni affiliation

hand, On been have the other suppressed. easily could

him Mu'tazila biographers Mu'tazil-i the Reinhart those among who counted noted, as 49 Another important point that should be considered is the fact are equally questionable . boundaries between lived, Jaýýdý Islam, the fourth in the that when century of Added fifth late to that, the onwards. century theological schools were not as clear-cut as the Mutazila

movement

the totally time that outside mainstream religious as at were not regarded

50

51 indicate Hanaff that theological W. Madelung's studies about the scholars stance of by Ijanaff the Ijanafltheological scholars position shared all there was no single uniform for 1janaffs Transoxanian Leaving the beginning aside a the the century. sixth of up until different ideological Egypt, Baghdad in Iran, in finds town or the same even while, one Hanaff Najjdcis5 born Jaýýaý there Rayy In were was town the where of positions. Mu'tazills Baghdad, in the Similarly Traditionalists. generally associated Mu'tazil-is and Ijanaf-i known is fiqh. It in that Ijanafiearly masters well school themselves with the interpretation field in the the (d. 150/767) 1janTfa of of Aba were rationalist such as have been to the the prophet, which seemed Qur'an and their approach to authority of 52 This however, Mu"tazila traditionalism than was, the in more with tune with more -

25 than one and a half centuries earlier; Islamic intellectual culture since Shaff'11'stime became increasingly eclectic and conciliatory. By the time of Jaýýdýa consensuswas reached on the basics of Islamic legal theory. In the fierce battlefield of traditionalism and rationalism, namely badith, the parties agreed on the authority of the Prophet in principle including the authority of khabar al-wdbid (isolatedreport)53. It should be recognised that neither the rationalists nor the traditionalists were a single unified camp. There might have been times when different groups of rationalists joined forces against the strong traditionalist attack, both intellectually and politically, as in the 54. in Qddirli Creed It is case of the mihna, or vice versa, as the case of enforcement of 1janaff that the possible mainstream movement gradually more and more emphasised legal tradition and tried to avoid the conflict in those issues which were regarded for the growing traditionalism. There was always suspicion on the part of sensitive traditionalists (Ahl al-badlith) as far as the Ijanafis were concerned which seemed to have been increased by the mihna. The mature science of usal al-fi qh we find in the indicates hard in Jaýýdý that the this tried to work of scholars of school open a space Orthodoxy for themselves by undertaking the difficult hermeneutical task of reconciling the school tradition with the huge badith material. The fact that neither Jaý0ý nor his teacher al-Karkh7i produced a work of kalam means that it is very difficult to determine whether they belonged to the Mutazila or not. It is true that Jaýýdýshares a lot with the Mu'tazila. An overview of his uml work (which in he indicates be is that to to very prominent assigned position exhaustive) meant no way for He, "reason' be ('aql), to example, makes a mere pretext. which seems not reason khabar judge basis the the the reliability of al-wdýid. of which one can criteria on one of This criterion was to disappear from the subsequent uýW works. Likewise he believes hereafter badith in God, the the this and rejects that one cannot see world nor neither be beatific doctrine to favour in the is the which was one vision, of that of of related disputed points between the Mu'tazila and later Orthodoxy. On the other hand, Jaýýaý's full badi-th his from both is badith in interest of writings, which are evident particular is This for from his long isndds, training unusual mentioned above. a and material with khabar despite Mu'tazilT the the their let of authority 1janaff recognition of alalone a Abii Ya'ld him Baghdad (d. Ijanbaris treated The with respect; al-Farrd' also of wdbid.

26 458/1066) quotes his views frequently in his al-'Udda fi- usill al-fiqb2. Besides, on the foremost Ijanaff theological position concerning 'the commission of a grave sin' Jaýýdý defends Abii Ijan7lfa56,which is anathema to the Mu'tazila. It is therefore more appropriate to situate Jassdsbetweenrationalists and traditionalists, or more accurately between lawyers and traditionalists, as 0. Spiesdid57 In other words he was primarily a . Ijanafi- lawyer who had good relations with the Mu'tazila and most likely was influenced by them first in his hometown, namely Rayy then the stronghold of Mu'tazila, then in Baghdad.At the sametime, he had a particular interest in ýadi-thwhich securedhim the friendship of Ijanbalism. 11. Dabfis! 58 Life Abii Zayd, "Ubayd Allah (or 'Abd Allah) b. 'Umar b. 'Tsdal-Dabiis-1was bom in . 367/978, in Dabasiya (or Dabiisa), a large town between Bukhara and Samarqand59 We . do not have much information about his life, nor whether he ever left Transoxania 60 , though his father seems to have been in Baghdad, as Dabiis-i quotes from him in his 61 limited have, he lived became Taq According to the we and a and al-Asrdr . notes in involved in Samarqand in Bukhara there and also scholarly polemics and was qd(ft with

by biographical is A the story recorded sources outstanding personalities.

he forced his his to which, once opponent through polemics, according concerning laughing, hence Dabiis-i the composed the opponent started strong arguments and following poem: What is up! Whenever I force you to acceptan argumentyou confront me with smile and horselaugh If the smile of a man were the sign of hisfiqh the bear in the desertwould be the bestfaqih"

DabiisT died in 430/1039 (or 432/1041 in some other accounts) and was buried in the 63

Judges Seven cemetery of . Teachers. Dab-as-i'sfirst teacher was presumably his father. His real tutor, however, was had two geographically dif erent Abii Ja"far al-Ustriffian-1. Through AN! Wfar, Dab-Cis-i IIf 64 Iraqi. Abii Wfar had been Transoxanian the links to the Hanaff tradition other and one , in Baghdad and studied under Jaýýdý.This Baghdadi link is important, for we will see

27 throughout this study, Jaýýdý heavily influenced Dabfis7i as far as uFfil al-fiqh is concerned. The Transoxanian link must also have contributed to his intellectual development since he put his own imprint on the subsequentdevelopment of uyal al-fiqh which is quite different from that of Jaýýdý.The importance of these two links lies in the fact that they represent two strands of the development of Ijanaff fiqh. The Baghdadi link includes the famous Abii al-Ijasan al-Karkh7i whose role in the formation of the lianaff

school was recently emphasised by C. Melchert, who, though, seems to 65. link includes the f amous Abii Ijafs al 6. (d overstated the case The Transoxanian ir 1 -Ka 216/832), a student of al-Shaybdn7l,whose legacy appears to be very influential among 66

the Hanaffs of Transoxania Intellectual

carrier.

.

Dabfis-i seems to have excelled in the art of legal dispute and

scholarly polemics in particular. The biographer al-Sam"dn7i (562? /? ) states that he was in seen as a model reflection, deduction of proofs and personal opinion (min man yu(trab bih al-mathal ft 1-na; ar wa istikhrdj al-bijaj wa al-ray) 67 The biographer, Ibn . Khallikdn (681/1282) (and via him some later biographers) goes even further and him associates difference".

with

the foundation

of

'ilm

juristic science of

Given the fact that the discipline of khildf Ouristic disputation) pre-dates

Dabiisli, Ibn Khallikdn's

remarks should be read in a different way if they are not to be a

look into Dabiisl's A mere exaggeration. quick indicates that the juristic traditional

ý 8, "the al-khi14,

disputation

Ta's-is al-nazar, an epistle on khildf,

here is different presented

dispute works. He for example does not follow

in nature from the

the traditional

method of

from different Kitdb, them then with arguments providing opinions giving sunna, ijmd' dispute His indeed, is find the to works. main occupation, of general pattern and qiyds, is different basis logical these the expressed with the term asl opinions, which of out (root or basis), that is, the legal principle according to which one scholar disagrees with 69

another

Dabiisl's works on khildf and uval al-fiqh were very influential not only on the lianaff known in khildf Dabas-i's Andalus but were methodology schools. also on other school

70

In central Islamic lands, his views were known as early as the second half of the fifth his (d. 513/1119), death. 'Aq7il Hanbali Ibn a scholar, century, only a generation after in him his Kitdb Kitdb Ghazdl-i Dabiisli's views with al-Asrdr al-Funfin and respect. uses

28

quotes his views on uyal in al-Mustasfa, and enters into polemics with him. In his overview of the different approaches in uýal, Ghazdl7i(d. 50511111) regards Dabiisi's in in in the method uýyalal-fiqh as one of various approaches uyal his time and criticises it as excessively concerned with the details offura' al-fiqh 71 formerly Ijanafi jurist, .A the Shdfi"T Abii I-Mu; pffar Al-Sam'dn7i seemed to have considered him as one of the important figures most of Hanafism, as he takes Dabiis-i's writings as the prime target in his polemics against the Ijanaff school72. Ibn Khaldiin regards Dabiisli's contribution to the discipline of u'yal al-flqh in refining its his structure and contents and especially contribution to the theme of qiyas, as a new feature in the method offuqaha' Ourists), taking the attraction away from the method of the mutakallimCin (theologians), He says: (Then) came AbU Zayd al-Dabiisl, one of their (Ijanafis') leaders. He wrote on qiyas more The there. than them topics that are art needed extensively any of and, completed its and conditions of uyal al-fiqh becameperfect, its themes are refined and its rules are well-prepared. Then People 73 from Ourist-theologians). the method of mutakalliman turned away

The fact that he had an original approach in uýyCilal-flqh is attested by some later IjanafiDabiisl disagreed the with methodology of writers who

'Ald'udd7in al-Samarqand7i (d.

539/1145) and al-Ldmish7i (d. early half of the six/twelfth century) talk about 'Ab-CiZayd followers', his al-Dabiis-i and

he that was so influential which suggest

that he had

followers among the Transoxanian Ijanaffs. Since these latter two scholars belonged to the group of 'scholars of Samarqand' it is possible that Dab-Cis-i'sfollowers were mainly Bukharans. A kind of rivalry between these two main cities of Transoxania has been 'the Samarqand' has that the Madelung epithet scholars of already pointed out recorded. Mdtufldism, kaldmT the movement of was the precursor of theological

later became the which

Ash"arism Shdfi'lis. Ijanaffs, to the the of as opposed ideology of most of 74 by tendencies

Bukharans, he says, were more influenced

anti-rationalist

despite because be but it the to be true, This might rivalry revised, needs partially deal intellectual there a great between these two more was, more significantly, centres, into look biographies A the between than them interaction quick of one would expect. demonstrates fifth fourth that they Samarqand7i centuries Bukharan and and scholars of

29 were generally engaged in polemics in both cities. Another point is that the situation was more complex than Samarqand-isbeing rationalist, therefore close to Mu'tazila and Bukharans being traditionalist and therefore close to Ashearism or lianbalism. There was the influence of Iraqi Ijanafi-sm which in certain aspects was more rationalist than 'the scholars of Samarqand', who in comparison sometimes appear Ash'affs. Dabfijýi, as we will see in this study, was heavily influenced by Ja5ýdý, who was obviously a 75 Iraqi Ijanaffs. As representative of an example , in the question of takhsTs al-'illa, is described in fourth below the which chapter with regard to the theme of istibsan, DabiisTiclearly endorses Ja*ýdý's position which is also a Mu'tazil-i view. This takhsis al'illa was later to be an indefensible position even for 'the followers of Dab-0ý1',such as 76 Sarakhs7l,due to growing influence of Samarqand7i-Mdtufid7i is It therefore movement . Dabfijýi to appropriate regard as a representative of 'Iraqi Ijanaffs in Transoxania as opposed to Samarqandis with respect to their attitude towards uyal al-ftqh. After all, Dabijýi wrote nothing on kaldm, whereas the Samarqand7iswere primarily involved in this and their interest in uyal al-fiqh was due to the supposed intimate link between two kaldm) (or and usal al-fiqh. uscils, namely usal al-dTn Dabfisi's works. Like Jaý§dý,DabUs-Iwas also primarily a scholar offiqh; his writings include: 77 This is his book on uyal al-fiqh, which is one of the five 1. Tagwim al-adilla . books of this study. 78 Dabiis-i is generally identified in the sources with 2. KitAb al-Asriir fi al-furfi . the title "author of al-Asrdr and/or Taq

(the previous title)'. Al-Asrdr is the

largest of his two works on 'ilm al-khildf, which is mainly concerned with the

juristic dispute betweenthe Ijanaff and Shdfl-'!schools. 3. Ta'sis al-nazar. This is the best known book of Dabiis-Iwhich is about 'ilm al79. khildf again Unlike al-Asrdr, this book, however, is concerned with dispute Ijanaff their the contemporaries, such as as well as early authorities among Sufydn al-Thawrli (d. 161/778), Mdlik (d. 179/795) and others. 4. AI-Amad al-acoji8o. A book on moral and theological aphorisms, wise sayings

30 and friendly guidance. His works, apart from the last one, indicate that Dabiisl was primarily engaged in the art disputation in legal matters. The work on uyal al-fiqh is also closely of related to the science of disputation, as it equips the scholar with necessarytools required in a dispute. It suffices to mention here that the pivotal term in his Taqw1m al-adilla is the word bujja-proof, which derives from the same root as argumentation (mubdjja). Compared to Jassds,Dabiisl seems less concerned with writing commentaries on the school-texts. All the works that came to us or referred to in the tradition are original works. Ijajj! Khal-ifa records that he wrote a commentary on Shaybdn7i'sal-Jdmi' al-kab-ir. Ibn Khaldiin 81 book his khildf, is mentions another F. Sezgin notes titled as-al-Ta'lAa of on which . that there is a book with this title in a library in Istanbul82.It however turned out to be 83 Ta's-is another copy of al-nazar . Since this latter book belongs to the genre of writing 84 called ta'ftqa 1it is possible that it was also known with this title. Here again we are dealing with another scholar of Hanaff tradition who is squarely in legal the tradition and did not bother about the theological implications of his situated 85 We views . can therefore speak of a group of scholars who are known asfuqaha', who frequently by to those theologian-jurists. are and sometimes pejoratively referred 111.Sarakhs! 86 Life Abii Bakr Mubammad b. Abmad b. Ab-a Sahl al-Sarakhs-iis also known in the . 87 by tradition the title Shams al-a'imma. Again little is known about the life and influential Transoxanian jurist. According to this subsequently very upbringing of famous Hanaff jurist, 'Abd he b. Abmad the of auspices al-'Azlz studied under sources, He in Bukhara. (according (or Ijalwd'T) than ten to spent more years al-Ijalwdn-i Hamidullah, 14 years) in prison, where he dictated most of his major works to his but it is in 483/109088. is date death His most probably also controversial, students. Works. SarakhsTiwas a prolific writer, who wrote extensively onfiqh and also a single book on the eschatology. He wrote most of his works in prison, in Uzkent and was said be This it have true, to them to may partially without sources. recourse any yet is written brought have him Sarakhs-i'sfiqh his them. they to that with what students read possible

31 books mostly belong to genre of commentary. His extant works are89: A. Furfi ' W-fi-qh: 1. KitAb al-mabsfit.

This is one of the most celebratedfiqh

in the Uanaff works

tradition, it is a commentary on al-Kdfi- ff al-flqh by al-Ijdkim al-Shah7id alMarwazI (d. 334/945) 90 The latter was said to be the summary of corpus . juris of the Hanaff school, which comprises of the six popular books of alShaybdn7l, collectively

known as ; dhir al-riwdya

(reliable transmission)91.

There are other works known by the name 'al-mabsCtt' 92 but when it is , mentioned without qualification generally Mabsiit al-Sarakhs-i is meant in the 93 Ijanaff legal tradition

2. Sharh Sivar al-kabir. This is a commentary on the work of al-Shaybdn-i laws international law, which has been translated into the about of war and languages including French, English Turkish. many and 3. Nukat ziY5ddt al-Ay5dii Again a commentary on al-Shayban-I'sal-Ziydddt, . law. a work on substantive 4. Sharh al-mukhtasar fi al-figh. This might be the commentary on Tabdw-i's 94

in is al-Mukhtasar which mentioned the sources B. Usfil a]-riqh:

5. KiGib al-Usfil. This is the book of Sarakhs-iwhich this study will dwell on. C. Eschatology: 6. Kit5b ashrfit al-sii'a. It is also known as Sifat ashrdt al-sd'a, dictated by alIjalwdn7i, the teacher of Sarakhs-1. Apart from these works, the author of Kashf al-zuniin attributes seven other works Although Sarakhs7i Shaybdn-i. of works is on commentaries mainly again are which faqTh, in titles the described mujtahid, and munazir of certain sources along with 95 do his It (kalam this title. confirm (disputant) as mutakallim not works scholar))5 must

32 be a projection of later ideal typology, a retrospective identification. Sarakhs-iseemed to have been preoccupied byfiqh, which had been the pattern of many scholars before him. Another interesting point is that he and his teacher al-ljalwdn7i and following them many scholars of Transoxania continued to write commentaries on the works of Shaybdn-i, which had started with Jaýý4. Sarakhs! 's link with tradition. His teacher, 'Abd al-'AZ1-zal-Halwdn7ial-BukhdCl (died 5th/I like him lth Dabiisli, had link the the two that around middle of century), channels to the tradition through a certain Ab-d "All al-IjUsayn b. al-Khadir al-Nasafi (d. 424/1033 96 is 80), b. (d. Mubammad Fadl 381/991) the at age of a student of who also al-KamdCi , Nasaff Dabas7i's (d. This Abii Ja'far 404/1014). teacher teacher, came a of al-Ustrushan7i to Baghdad probably after the death of Jaýýdýand studied there under one of the students diagram: in following be illustrated Jaýýdý. These the complex relations can of Iraqi and Bukhari links Al-Kamari al-Bukhari(3 8 1)

Sarakhsi (483)

Abu'Ali al-Nasafi (424) al-Bukhari al-Iraqi

Abu Ja'far al-Ustrushani al-Bukhari al-Iraqi (404)

(447/8) al-Halwani

Dabusi (430)

Pazdawi 1 (482)

Pazdawl 11(490)

It is clear that the two Transoxanian figures who went to Baghdad and studied in the heritage Iraqi Ijanafiback brought the Jaýýdý, them of with of a student of circle famous Abii Iby the the tradition, efforts of crystallised tradition, especially the uyal Iraq, link This Jaýýd*. together like the his with with Ijasan al-Karkh-i and students, Ijafs Abii likes from inherited legacy the legal al-Kabir, probably of Transoxanian from legal theory that the to of provided these scholars with an alternative approach Samarqand7iapproach. between DabiisTi direct illustrate does diagram and alrelation Although this any not in Dab-ýs-l his Sarakhs! that Sarakhs!, to Dabiis-i between usal owes much Ijalwdn7i or and

he Taqwi-m DaMs-I's described be al-Adilla, although of as a reproduction can work

33 nowhere admits this. It should be noted that this diagram also explains the intimate link between Fakhr al-Isldm al-Pazdaw-i (Pazdawi- I in the diagram), whose biography follows the present one. The cause of imprisonment.

The biographers note that Sarakhs-i was put in jail due to

his courage to speak truth in the presence of the ruler (bi kalimat al-nayiýa).

They,

however, did not specify the actual event that led the ruler to jail him for over ten years. Heffening

in suggested a possible cause one of the anecdotes which was often repeated

in different accounts of Sarakhs-i's biography. According to this, Sarakhs-1alone of all 'ulamd' considered the marriage of ruler, a certain Khaqan Hasan, to his umm al-walad 97 (manumitted due to defect in the M. Hamidullah,

slave girl) invalid

a

marriage . however, finds this reason too unimportant to keep a scholar in prison for over ten years. Besides, he says, this particular event took place after Sarakhs-iwas released from jail for joy the and was occasion celebration and rather than rage and anger, and which basis for On Sarakhs-i the the the of an extensive research in secured patronage of ruler. the published and unpublished biographical sources as well as Sarakhs-i's al-Mabsfit, Hamidullah proposes an alternative cause,which is a political one. He found out that the fact but in Qarakhanid Hasan him Khaqan imprisoned the the ruler, was not ruler who Shams al-Muffik Nasr. Hamidullah believes that since Sarakhs-iwas critical of unjust taxes levied by the rulers in his al-Mabsfit (which was an increasing practice at that time due to weakening power of Qarakhanid rule)5 this must be the cause of his detention. Based upon a note in one of the biographies that Sarakhs! was brought to Uzkent, the famous town of Western Qarakhanids, Hamidullah suggests that he must have been brought from Bukhara, where his madrasa was. Whether the cause was Sarakhs-i's criticism of unjust taxes or any other governmental between increasing tension there that political was an policy, one thing was certain in Wamd's help in Qarakhanid seeking state culminating authority and religious class This fifth/eleventh tension at times even the the from an outside power at century. end of

98 Ibrahim Tamghach Qarakhanids, Khaqan The the led to execution of of great scholars Khan (431-460/1040-1068),who both in his time and afterwards gained the respect of having introduced described the taxes Vamd', without consulting new as never the was he Nevertheless foundations (awqdj). the executed fuqahd' and sponsored religious

34 His son Shams al-MuMk was a patron of certain Imam Abii al-Qdsim al-Sanmarqand7199. knowledge and gave a considerable amount of his wealth to students of religion, but he was also involved in many clashes with the Vaind' and executed another scholar called Imam Abii Ismd'il b. Nag al-$affa-r in the year 461/1069 because of the latter's insistence on inviting the ruler to amr bi al-ma'raf and nahy 'an al-munkar (enjoining 100. The last example is the Khaqan Abmad the good and prohibiting the reprehensible) Khidr, who was removed from power by Great Seljuk Sultan Melikshah. after the fulamd' appealed him to help 101

The causeof tension between 'ulamd' and the political authority in the Qarakhanidstate 102 fact R. N. Frye lied in Qarakhanid the that that the was not recorded. suggested reason Turks became Muslim at the hands of Sufis, hence favoured them at the expense of the Vamd', had had Samanid times enjoyed monopoly over religious orthodox who since functions and prestige. They were the ones who invited Samanids to control Bukhara; he Ilek Khan fight Qarakhanid did to the they when against not urge people similarly, However, fact last despite Samanid to them. the the the ruler appealed city, attacked Frye seems to be overstating this tension between the rulers and the 'ulamd', for, as institutions, built the new mosques rulers often sponsored religious mentioned above, 03 between directly finds further Bosworth' the C. the of conflict source and madrasas. between being `ulamd' the to than the conflict connected rather political authority and have latter to the this contributed also partially might and sufis, albeit development of the tension. He argues that Vamd'did not want to lose their traditional Vamd'

deprive them to tried of. rulers what some was share of power, which exactly independent indicate tradition there that All these examples minded scholars of was a Law. Barthold the they that above the were not political authority who tried to remind independent between kind tension has pointed out that there was also a official and of in Transoxania Ijanaff for the be the but community this should not Iulamd', overstated, forced join factors from them to that been have external under pressure seemed to Vamd'to them the the the remind Although of right rulers respected together. generally have this to their must created Law, sometimes approval, secure the sought and of institution headed belonged Sarakhs-i to leading to well-known a clashes. open problems 104 Sarakhs-i), (along the trained with by 'Abdul'aziz al-Iialwdn7i , under whom were

35 famous Pazdawl brothers, whose influence on subsequent scholarship, together with Sarakhs7i,was enormous. It is possible that the influence of this religious community forced the ruler, who had a problem with Sarakhs-i,to throw him in jail, far from the capital, to diminish effects of his criticism, instead of drawing the opposition of 'ulamd' by executing him. This suggestion seems to be supported by the fact that Sarakhs! was allowed to teach and dictate to his students while he was in prison and also by the fact that, towards end of his jail period, he was given a better place to meet his students. IV. Pazdaw-i Life. Aba al-Hasan, 'AITI b. Muhammad b. al-Husayn, Fakhr al-Islam, al-Pazdawlf, was known in the literature as Aba al-'usr, "the father of difficulty",

due to the complexity of

his writing

style. His brother was named as Abii al-yusr, "the father of ease", who from 105 in Like all the other Transoxanians, time to time will appear the course of our study . we have little information about the life of Ab-Ii al-Hasan; he was bom around 400/ 10 10 studied under various teachers including

'Abd al-A2ý-Izal-Ijalwdn7i, was in Samarqand

died in Bukhara 482/1389 buried in Samarqand. He and and and was referred to as an in biographers he had Some his own the tradition. that example memorising school state 106 AT ffanTfa) in 'alj Ibn Khaldiin tradition (yabib

approach

school

al-tariqa

madhhab

. "ilm is 'ilm the two that methods of al-khildf and al-jadal ascribed to alone of notes Pazdaw-i.without stating which Pazdawl it is. I assumethat it is the other PazdawY(Abii in he involved Sam'dn7i that was polemics with a number of notes al-yusr), about whom 107 leading figures in Samarqand and Bukhara . few His books books, Works. Pazdaw-1of which are extant. can also only a wrote many be characterised generally as commentaries on the school tradition, especially on the their recent reproductions as summaries, compendia, etc. on or of al-Shaybdn-i, works Here are the works ascribed to him in the sources, which gives the idea that Pazdawl's 108 interest was broader than the previous jurists, especially the Transoxanians : A. Furfi'al-Fiqb: His commentaries on the works of al-Shaybdn7i,such as Sharh al-Jdmi' alKab-ir and al-Sag

Sharh al-Siyar al-Kab-ir and al-Sag ,

Sharh and al-

36 Ziydddt. Only Sharh al-Jdmi' al-Kab-ir seemsto be extant. 2. Kitib

is It that this a similar work as Sarakhs-i's alal-Mabsfit. is possible

Mabsiit, for it is said to be eleven volumes. Brockelmann records that there is book in libraries in Istanbul, li by the a called al-Mabsu-t al-Fatdw-1 Pazdawl. B. Usfil a]-Fiqh: 3. Sharh TaqwIm al-Adilla. This is a commentary on the uýal work by Dabiisli mentioned above. As said there, this was very popular commentary circulated fiqh. "Abd (d. 730/1330), the the among students of al-'AZ1-z al-Bukhdfi famous commentator of Pazdawl's another uyal work (the next one), his be in it (otherwise this to extensively uses seems non-extant) sharý commentary. 4. Kanz al-wusfil Mi 11m al-usfil. This is the best-known work by Pazdawl development influence had the tremendous of the uYC11 subsequent on a which based is is in It Uanaff the this tradition. on. works study also one of science Leaving its organic relation to the past tradition for the later part of our in later history be better it this the to of uýW work order give research, would to see its influence. According to the author of Kashf al-Zuniin, there are 109on this work, including: many commentaries Al-Kiif-ibyHishdmudd7inal-Saghndcfi(d. a.

710/1310)

b. Kashf al-asrar by 'Ald'uddlin 'Abd al-'AZ1-zal-Bukhdf-i(d. 730/1330), known best this the commentary of circulated widely and which is 10. work' b. liasan Abmad Aba Shdfi-'T A al-Jdpard7i al-Makdrim scholar certain c. (d. 746/1345) also wrote a commentary on it. d. Al-Tacir-ir by Akmaluddlin al-Bdbart-i (d. 786/1384) listed in Kashf, (al-ta'liqa) known the less commentaries and notes There are nine other More interest in there two this are the significantly, usW work. of extent shows which

37 works written by two lianaff jurists which aimed to combine umll traditions of different schools"': a. BadY

al-ni,?iim

al-jdmi'

bayn

al-Pazdaw-i wa

al-14kiim

by

Muzaffaruddlin ibn al-Sd"dt-1(d. 694), which combines Pazdaw-l's Kanz with the uyfil work of the famous Shdfi-'! jurist Sayfuddlin alAmidli (d. 631/1234), called Ihkdm al-ahkdm fi- us-dlal-ahkdm. b. AI-Tanqlh

by $adr al-Shafl'a al-MabbOll (d. 747/1346), which

Kanz the combines with al-Mukhtasar by the Mdlik7i jurist Ibn alIj5jib (d. 646/1249). Al-MabbUd- himself wrote a commentary on it, later which was annotated by the Shdfl-'! scholar Sa"dudd7in alTaftazdn7i(d. 791/1389). It would not be an exaggeration therefore to argue that Pazdawl was the single most influential uscil writer in the Hanaff tradition. The present study will further argue that it himself Pazdawl had huge impact the was not person of who such a on next generations, but it was outcome of the uyal tradition that started with Jaýýdý and was put in the by further developed by in Dabiiýi Sarakhs-i Transoxania the and culminating context of Kanz of Pazdawl. 112

5. Sharh flqh al-akbar. A commentary on the creed ascribed to Aba Ijan7ifa. 6. AI-Muyassar ri al-kahim. D. Tofslr. 7. Kashf al-astfir ff al-taffir. The sources state that this is a huge commentary

in be 110 the Qur'an, the to the volume size of each volumes, said on 13 Qur'an' But this is unfortunately not extant. . tla dith * 8. Sharh sahih al-Bukhfiri. A small commentary on the famous badith book.

38 F. Other works: 9. Sirat al-madhhab ft sifat al-adab 10. Tarlqat al-Fakhr al-Ishim The last one is probably not a real work but refers to the note in the biographies that Pazdawl had his own approach in Ijanafi- madhhab. It is not clear whether this statement his to refers contribution outside uyal al-fiqh. Since we do not have any contemporary work on any aspect of Pazdawi, apart from the present one, this question cannot be fully answered. The present study however places Pazdawl's contribution to uYC11 al-fiqh in the areas of structure and presentation, which in a sense is innovative, as will be seen soon.

Over-all structure A quick look into the contents of these five works reveals that they follow a quite similar form in elaborating the topics of uyal al-fiqh. First, there are two points, which are most in is One the these them that they generally follow the apparent structure of works. of hierarchical order of the sources of law (uýyWal-fiqh), i. e. Kitdb, sunna, ijmd' and qiyds. It is made clear more than once that they mean by the 'uýal', the sources of law, which four items. basically The feature to the other most apparent above are reduced of first is that a substantial portion of part of these works are structuring uycil al-fiqh devoted to explaining the linguistic tools, by means of which the two primary sources of law, namely the Kitab and the sunna, are interpreted to derive law. This is done within the Kitdb part; it is, however, stressedby most of the jurists that these interpretative rules too. to the equally sunna, apply A more careful examination of these works, however, shows that there are actually two different governing principles that determine the structuring the topics of uscil by following I In the section, will give underlying principle of each individual authors. introduction book. his his to the together work, with general author in structuring

39 Over-all Structure of Jassiis's al-Fusfil fiTusfil It is unfortunate that the first part of Jaýýdý'suýiil work, including the introduction and four chapters, is missing in the extant manuscripts of Fusill. It is not therefore possible to know his expressed governing principle of structure. However, the rest of the book he follows that the general pattern mentioned in the introduction above, which is shows to organise the topics of uyfil al-ftqh around the theory of four sources of law. Another fact about the structure of Ja*ýd* work is that apart from the general four-partite he does classification, not organise the topics falling under one of the four parts. In other is intra-structuring is in This there the words, no within general categories. most evident first part, i. e. Kitab, where interpretative topics are randomly discussed. There is sometimes, however, a relationship between a certain topic and its preceding or (shar " For Prophets" "laws topic. the the succeeding example, previous man qabland) of (naskh). for law is brought immediately Islamic the topic of abrogation as a source after It should be noticed that Jaý*d* does not do the following four-part classification, as he is Kitab, first In this. the supposedly called part, which reconstructed nowhere mentions the topics of 'amm, Adg,

baqiqa, takhsTs, mufassar, ýdhir, naý,y, mujmal, mushtarak,

dealt laws "the bayan, with. of previous revelations" are amr, nahy, naskh and majdz, Jaýýdýdoes not attempt to arrange the order of these topics, nor to bring those concepts in functions they treated have title; a quite arbitrary are under a general similar which Prophetic (the In the reports) are mainly supposed second part, akhbar manner. discussed, together with the concepts of sunna and afal (Prophetic actions). before ijmd' and qiyds, After completing the two material sources of revelation, and In before the third 'the the deals Jaýýdý part, along the revelation'. acts question of with (qawl "the the ijmd', topics the companions" alauthority of such as with the matters of discussion is devoted final The the to dalil treated. part taqUd are al-ndfi, and yababT), , borderline Again there which issues, cannot ijtihdd, are and muqa1fid. mujtahid of qiyas, between for four that in sections. be placed one of the reason, are placed sources, and independently be largely book ' Jas. to arranged comprised of To sum up, seems s.ds. in Jassds, four idea discern this the (bab); sources of is vague can one although chapters but introduction, is, in He have this the may stated stated. expressly nowhere

40 unfortunately, not possible to determine. Figure I. Main parts of Jagdý' work:

Usul al-Fiqh

Interpretative topics

Khabar

ljma'

Qiyas

11. Over-all Structure of Dabfisils Taqw-im al-adilla Dabfi.§-l starts his book with a fairly long introduction, where he begins with the faculties contradictory of spirit-reason, temptation-desire (rab wa 'aql wa hawd wa nafs) in the formation of an ideal personality. In their relation to God, people are divided into four categories in three steps. By picking the best of each step, DabUsTireaches the ideal is jurist. is This heir Prophet, the the man, who obviously a perfect man of as the ideal is Mubammad. The to the ended prophethood with way attain personality to pursue the way of salaf, which is best represented by the four sources of law, to be elucidated in this book According to Dabiisli, there are two types of indication (ýqjja), rational ('aqliyya) and "revelatory"

(al-majiba) in has types, turn two conclusive each

(shar'iyya);

and

inconclusive (al-mujawwiza). He considers the revelatory indication superior to the indications bulk first. The dealing the them constitute main of shar'i with rational one, his book: is Here the summary over-all structure of u,yal al-fiqh. The indications (al-bijaj) are: A.

Revelatory (al-shar'iyya)

Conclusive indication (al-bujja al-mCijiba): a.

Kitdb Khabar al-mutawatir

C.

2.

Ijmd'

Inconclusive indication (al- bujja al-mujawwiza): a.

Al-aya al-mu'awwala

b.

Khabar al-wahid

Qiyds

41 B. Rational indication (al- bujja al-'aqliyya) 1. Conclusive ones a.

Intuitive

b.

Acquired

C. Empirical d.

Sensible

Inconclusive ones DabiisTiseems to be the first person among our jurists to undertake the task of arranging interpretative terms under general titles. Those terms which have similar certain functions, are put together, although his terminology appears to be still primitive. He is first the to have a strong imprint on naming the headings and demarcating the also chapters, which are quite different from that of Jaýýdý.This is best attested in the subidea incorporating below. However, the topic the chapters of of command, of all the interpretative topics into a single system is still far off, as we will see later. Figure 11.Structure of TaqwTm Usul al-Fiqh (Authoritative Indication)

Revelatory IIIIII Conclusive Kitab

Inconclusive K. al-Wahid Qiyas -

linguistic interpretation

Rational

Conclusive

Inconclusive

Intuitive Acquired Empirical ESensible

K. al-Mutawatir ljma'

111.Structure of KitAb al-usfil of Sarakhs!

Sarakhs! Dabdsli. his introduction that to 's stressesthe Sarakhs! of uscil work echoes Muslims. following fiqh, the the earlier pious of as way a of science of significance

he faqih be for to he that should combine three Further, a person qualified as a states

42 qualifications;

knowledge of religious prescriptions, strengthening knowledge by

comprehending internal reasoning of revelation (which consists in combining usfil with furci), and finally implementing this knowledge in practice. These three qualifications are present, according to Sarakhs-1,in the personalities of three early Hanaff masters, namely, Abfi Hanifa, Abfi Yiisuf and Muhammad. He then states that, in order to show their place in the field offiqh, he wrote his commentary on the works of Mubammad alShaybdnT,and by the present work, he intends to show the principles he applied in that commentary in order to give guidance for the students offiqh: Upon completing the commentary, I thought it appropriateto explain the fundamentals,on which is built the commentary, so that the students be aware of these governing principles behind (the science of) fura' and guided in the complex matters. Becausethe fundamentals are limited while the cases are ever extendin, there are many works in the field by ancients and modems; I will follow their way. (Usal, 1,10)

Sarakhs7idevotes a considerable amount of his work to exploring linguistic techniques interpret is internal There between to the the sections of used revelation. no organisation this part and no mention of its relationship with other uyfll parts. In this part, Sarakhs-i follows improves it. Dabiis-1 Until the the end of this arrangement of and upon mainly is be has in Sarakhs! the sure what underlying organisational principle part, one cannot interpretative law Sarakhs-i Upon the the part, classifies sources completing of mind. indication (al-bujja, the general concept of authoritative under indications are of two types: I.

Conclusive indications: a.

Kitab

b. Al-khabar al-mutawdtir C. ljmd' 2.

Inconclusive Indications: a.

Khabar al-wdbid

b.

Qiyds.

lit. proof). The

43 Figure 111.Structure of Sarakhs-i'sUsill Usul akFiqh

Interpretative topics

Authoritative Indication (Revelatory)

Conclusive

Inconclusive

FKitab

K. al-Mutawatir

-7 ljma'

K. al-Wahid

Qiyas

IV. Pazdawl's Kanz al-wuPl ilA 'ilm al-uPl With Pazdawl, the structural development takes a twist toward the common idea of four law. His introduction provides a more general account of religious knowledge sources of (al-'ilm). He identifies two general types of knowledge, "knowledge of oneness of God his and attributes" and "knowledge of the laws and the rules" (71m al-tawbid wa'l-fifdt 'ilm wa al-shard'i'wa

His in bringing 'ilm better known al-abkdm. purpose al-tawbid,

'ilm in introduction be this to to the need to express the as al-kalam, usCilal--flqh seems allegiance to the path of Orthodoxy on the part of Hanaff forefathers, i. e. Abii Han-ifa, Ab5 Yiisuf and Mubammad al-Shaybdn7i. The second type of knowledge, which is the science of religious law, is divided into three categories: The second sort of knowledge is the knowledge of branches(fura'), that is, jurisprudence (flqh). This is of three types; one is knowledge of the prescriptions of the shari'a itself ('ilm al-mashra' bi nafsih); the second one is sound understanding of the shari'a knowledge, which consists in bi (ma'rifat the purposes al-nuýcq with its internal ma'dwhd) and revelation understanding bifurCt'ihd); laws (dabt the and the third one is one's practice of al-uyal grasping sourceswith that knowledge in his own life (al-'amal bih), because the knowledge itself cannot be the (Kanz, 1,12) ultimate aim.

Since shari "a knowledge is said to be based on both revelation (Kitdb and sunna) and its (al-madni), by reasoning understanding

Pazdaw-i again places his early masters in a

field in both badith After the thinking. this of and rational pioneering position introduction Pazdaw-i-clarifies the aim of the book, saying 'this book explains the texts internal defines their the the to reasoning and connection of sources with of revelation

44

the laws in a brief and concise way'

114

Coming to the structure of the book, Pazdaw-Iadopts the four-part format based on the four sources of law. He, however, makes a distinction between the first three, i. e. Kitab, in ijmd' the sunna and as sources the proper sense, and qiyas as a secondary-derived law: source of The foundations of the law are three; Kitdb, Sunna and ijma'. The fourth foundation is reasoning through analogy (qiyas bi'l-ma'na), which is derived from the previous three. %ýnz,

1,19-20)

Besides this general structure, each of these four parts has its internal structure whose by individually interrelated further issues the that treated to the alms are are organise all body: if it is heading, as an organic previous jurists under a general A. JaNh. Pazdawl develops a theory that places not only linguistic topics under the part between it but Kitab, these topics, which culminates the the connection also explores of identifies The logical, but two theory aspects structure. not necessarily a sophisticated, in its (al-na; formal being "text". the the m wa alother meaning aspect and one of a in Kitab discussed interpretative the All techniques the part are considered as ma'nd). its The form (signifier) topics text to the of or signification. of a related either interpretation are, therefore, classified into four categories: 1. 'The ways of the signifier in terms of form and etymology (wujah al-na; M yighatan wa lughatan)'. Under which are discussed 'amm, khdss, mushtarak and mu'awwal. The topics of amr khdsý. dealt title the of general with under and nahy are 2. 'The ways of explaining the signifier (wqjah al-bayan bi-dhalik al-na; M)', under which are khaji', the their order, same mushkil, oppositesin included zahir, nass, mufassar and muhkam,with nzujmal and mutashdbih. dealt Adlik (wujcih isti'mal with 3. 'The ways of using the signifier al-na; M)', under which are haqiqa-majaz and sarih-kinaya. 'ald (ma'rifat texts the al-WUqqIf wqjah al4. 'The ways of understanding purpose and meaning of daldlat 'ibdrat isharat al-nasý, alal-naý, Y, with which meant is al-nusCis)', al-ma'dni wa murdd (Kanz, 1,26-27) iqti4d'al-nayý. and na,y,y

bring interpretative to topics under the above Pazdaw-if's the all Nevertheless, attempt

45 four categories seems not to be a complete success. The commentator Abdul'azliz alBukhdrTiconsiders it as a futile effort 115Pazdawl himself had to make several exceptions . to the above classification. He unsuccessfully places certain issues, which are related to none of the above categories, under one or another. For example he incorporates command and prohibition under the specific terms, the burcif (prepositions and other phrases) under baqTqa-mqjdz. There are other issues, such as 'azima and rukhsa,, which he was not able to incorporate into one of the categories, and therefore, placed at the end Kitdb of part as a supplement. B. Suuna. Pazdaw-I divides the sunna sections again into four major categories, under which various issues of transmission of prophetic reports are incorporated. The issues interpretation to the relating of sunna: I.

The way the sunna is transmitted, which is classified according to its credibility into mutawdtir, mashhCirand wdbid. Interruption in the chain of transmitters, under which is included both formal and internal interruption.

3.

Explanation of where one type of prophetic report, that is khabar al-wabid, becomes authoritative.

4.

Finally, the nature of khabar (report) itself, in which a wide range of issues related to the transmission of the reports are included, such as reciting a report from the memory, transmission through writing, handing down the exact text as heard, criticising the

transmitters.(Kanz, 11,679-680)

The attempt of Pazdaw"ito incorporate logically all the topics of sunna under these four be to categories again seems unsuccessful. At the end of the sunna chapter, for example, Pazdaw-i brings forward some issues as a supplement to both Kitdb and sunna sections, between different (ta'drud) topic the of apparent conflict parts of revelation and such as the topic of explanation (al-baydn), within which is included the topic of naskh (abrogation). The topic of aral (the actions of the Prophet), which is definitely part of issues. laws The these supplementary of the previous revelations sunna, comes after (shar " man qabland) and the value of the words and deeds of the Companions (ýabdba) integral discussed the to the after sunna section and connected any of are not are also is It Kitdb but true they to the they the are relevant and structure. sunna are not of part for four in themes the the example, above way, of sunna are related to the related

46 general heading on the sunna. C. Ijmd ý Pazdaw-l again describes at the beginning of the chapter the topics to be discussed under ijmd. These are:

1. The essence(rukn) of ijmd', 2. Eligibility for ijmd', 3. Conditions of ijmd " 4. Epistemological value of ijmd', which also includes the issue of the justification. 5. The material basis(sabab) of ijmd

116 o,

These five headings, with their exact titles exist in Sarakhsi, but the difference lies in Pazdaw-i"sdesire, as usual, to have an organising perspective. D. Qiygs. The main issues to be discussedunder the part of qiyas are as follow: 1. Definition and justification 2. Conditions of qiyds 3. Essence of qiyas 4. Consequence of qiyds 17 5. Objections against the ratio legis' The issues of ijtihad and taqlTd, istibsdn, limitations of ratio (takhsis al-'illa)

are also

included under the qiyds part. To sum up, Pazdawl's work displays a development in the history of Ijanaff uyal al-fiqh in its insistence on organisation. He tried to organise formerly disorganised material. Before him, each topic was generally taken as an independent unit, with a very loose sense of connection.

47 Figure IV. The main parts Pazdawl's book Knowledge ('ilm)

Knowledge of One and His attributes (usul)

Knowledge of laws and rules (furu')

Knowledge of law itself ('ilm al-mashru')

Usul al-fiqh

Practicing the law

1

FKitab

111 Sunna

ljma'

Qiyas

V. Over-all Structure of Usfil al-Shiishi Shdsh7iin the introduction states that the foundations of the law (myal al-fiqh) are four, implying that he is going to arrange the topics of the book according to these four sources: The roots of law are four, Kitab Allah, Sunnat Rasal Allah, the consensusof the Muslim nation (ijmd'al-umma), and qiyds. (Shds

,

1)

Shdsh7l'swork appears generally to follow Pazdawl"s general structure, which is based four-partite division. internal four The these on structure of general parts, however, do logical be based is The in to the on any classification. similarity not seem more visible terminology, which is not only the same as that of Pazdaw-l's but also introduces a few innovations. For example, though the opposition between the set of "; dhir-nag"khari-mushkil-mujmal-mutashdbih" known, it the was set of mufassar-mubkam" and designate find "the Shdsh7i term this to that opposition: counterparts" we a was only in (al-mutaqdbildt). Another term is "relations of the texts" (Muta'alliqdt al-nuycq), which includes four implications of a text, that is'ibdrat al-nag-ishdrat na,y,y-iqtidd'a1-na, y-Y.

al-navy-daldlat al-

48 Figure V. Main parts of Shdsh7i's Usffl:

Usul al-Fiqh IIIII

Kitab

Sunna

Conclusion.

ljma'

Qiyas

There are two principles that seem to govern the structure of uyW texts of

these Ijanafi- jurists. On the one hand, there is the traditional principle that organises the topics in accordance with the idea of the four sources of law. This approach stresses the traditional order of the sources without going into the details of their precise hierarchical relationship.

This, however, became a formal principle of organisation only in Pazdawl

Shdsh7i, it though and was always in the background. On the other hand, there is the other approach which organises the uyal themes around the concept of "proof'.

Dabiiýi seems

to be the originator of this latter approach, which is also adopted by Sarakhs7l.Ddbiisl's is logically structure

be Sarakhs-i's than to which appears more consistent and compact

less in control of themes than the former. Dabiis-1 outlines the structure at the outset,, book Sarakhs-i the without revealing any structural principle whereas starts

later and

turns to organise it under that principle. Both, however, seems to find it difficult to find a for linguistic the place

topics, which apparently resist being included in their structure

first Pazdawito that explicitly system. and remain external

former the adopted principle

his basis four Shdsh7i idea the the of structure. sources, as a of of organising uyal around followed by is determine hard is follows It the to then earliest of all, what structure suit. introduction his fact due Jaýýdý, that the to namely

is missing. From the rest of the text,

by his the traditional that was governed structure one can assume

principle

of four

does for, he i. in to this in loose but way, not refer e. an unexpressed sense, a sources, Kitab he book. It in the explicitly with the started or is not clear whether rest of principle have both Dabas7i because, is important This interpretative topics. seen, as we with the difficulty had Sarakhs7i and

in finding a place for this linguistic element. Neither did they

Kitab be interpretative the the idea tools these that or of sunna part would the express linguistic began his Jaýýdý the that 1, therefore, assume work with sections.

topics

be for it. fact in The logical topics to that these explanation are meant without giving any

49 service of Kitab and sunna was implicitly always there, but they are not explicitly placed under Kitab heading (with subsequent extension to the sunna) until Pazdawl"s work. This again bolsters the claim that the so-called UsM al-Shdsh! could not be earlier than that of Pazdaw-i. Another reason for this is provided by the terminological maturity of this work, compared to the earlier works.

References ' For a detailed investigation of the difference betweenal-Ris5la and later works, seeHallaq, 'Was Shdfi'l master architect' 2 See 'An early responseto Sh5fi'V by the presentauthor 3 E12, "uyCdal-fiqh"; Hallaq, Histo 36 (footnote 1) 4 , Kanz, 1,7-18 5 Ibn KhaldJa-n Mugaddima, 455 6 Samarqand7i, M-lzdn, 1-3 7 G. Makdisi, Ibn'Aqil, 76-85 8 ZYSOW, 'Economy of Certainty', 3 9 Chamount, La Lecture, VNIII, XXV 10Seefor example, Karnali, Principles, 7-9; al-BarCl,UsUl al-figh, 9-11 11He wrote the famousfiqh work Tuhfat al-fuqahd' 12 Al-Juwayn7l,al-Burhdn, 1,220 13 SeeCh 2 below (page 64) 14Ibn Khaldiin, Muqaddima, 455 15Under the name of Abu Ya'qiib this work is published in Delhi (1260-64) and Allah Abad (1289) and Pashawar(1278 and 1293) seeBrockelmann, GAL, Supp. 1,294 16 Ibid., 1,294 17Al-Luknawl, Fawd'id, 244-245 18Kashf, V, 8 1, It is possible that al-Luknawl used the Fluegel edition. As the Istanbul edition though being late doesnot contain this note, despite the fact that it is basedon the author's autograph.The by information have been The by Fluegel, the to copiers. seems edited about this copy used manuscript text given by the Fluegel edition most probably belongs to the copier rather than UajjT Khalifa himself, incorporate did Istanbul the the version not it to the main text, given the fact editors of which explains why that they were aware of the Fluegel edition. 19This is published together with the edition ascribedto Abii 'Ari al-Shash-i. 20Bagdatli, Hadiyyat al-'arifin, 1,62 21Baqa, MuJarn al-UsWiyy9n, 11-15 22See, for example, Tash7ilUsW al-Sh5sh7iby Muabammad b. Anwar al-Badhashan7i, Karachi, Pakistan 1412 23For Ab5 'Ali al-Shash7i,seeal-Qurash-i,Jawdhir, 1,262; al-Luknawl, Fawd'id, 244; Khat-lb,Ta'ni-kh,IV, Jaw5hir, 1,136-137; al-LuknawY, 392; Shlrdzli,Tabaqd 143. For Abii Ya'qOb al-Shdsh7i, see al-Qurash7i, , Fawd'id, 43-44 24There are four English, one Arabic and one Turkish modem studieson the life of al-Jagdý; English by 0. Spies, Saeedullahand Reinhart and M. Bernard; Arabic by the editor of the al-Fusiil fi 1-Usfil by Jaýýdý, 'Ujayl Jdsirn al-Nasham7i;and Turkish in the TDV Encyclopedia of Islam. I will summariseNashanfi's life be taking the the to while into account of al-Ja5ýdý, most extensive one about version, as it appears others. 25Some writers seemedto have been confused about his name; seeal-Qurashi, al-Jawahir, 1,84 26 See Le Strange, Lands, 186 27The journey for Ahw5z was of personal concern rather than academic, see al-$aymarl, Akhbdr, 171-172 28E12, "Dja5ý5ý"

29He studied fiqh with al-Karkh-i, the jurist, Abii Sahl al-Zajjdj a jurist and linguist; languagewith Abu Ghuldm Tha'lab, badTth famous linguists Mubammad two with al'Ali al-Brisli and and grammarians;

50

Tabardril, Da'laj, 'Abd al-Bdqi' b. Qdni' and Abil al-Apin. See,Fusfil, 1,24; also editor's introduction to Dabiisli's Kit5b al-Mandsik, 24 30 E12, "Djaýýdý" 31Nashaim records many anecdotesabout his and his teachers' piety which led them to abstain from official posts. Fusifl, 1,13. 32For Buwayhid rule in Baghdad, seeKabir, Buwayhid Dy1jagy 33Nadim, Fihrist, 293 34Reinhart, Before Revelation, 46 35See,Ibn 'Abid-in, Hdshiy 1,77 36Fusifl, 1,17-21 37It is published Cairo and Istanbul in 38Saeedullah, 135; Eusfil, 1,26 39Ja!5ýdý,Abkkm al-Qur'an, 1,6 40Apart from these few sub-sections,the book seemsto be complete and was published in four volumes 41For its commentariesseeHaft Khallfa, Kashf (Fluegel edition) 11,635; Sezgin, GAS, 1,424-425 42Sezgin, GAS, 1,441 43It is edited by F. Ziadeh and published 44Kashf, 1,220, Sezgin, GAS, 437 45Sezgin, GAS, 44 1. It is edited by Dr 'Abdullah Nadh7irAhmad and published in 1995 in five volumes 46TabdW-Fswork, which must have been a huge work, seemsto have been lost. SeeHaj! Kallfa, KAashf, 459; al-Nadim, Fihrist, 26 1; the editor's introduction for Mukhtasar Ikhtil5f al-'Ulamd'. 1,48 47Haj! Khallfa records besidesabove six works five more. 48Reinhart, Before Revelation, 46 49 Ibid., 46-47 50For example the famous Hanafi qd(YiAba 'Abdullah al-$aymad and others were put to the test of Orthodoxy only at the beginning of the fifth century, seeMakdisi, Ibn 'Agil, 11 51Madelung, 'Spread'; Religious Trends, 26-38 52Watt, Formative Period, 189-204 53Seebelow section on khabar and AW I-Husayn al-Basd, al-Mu'tarnad, section on khabar al-wabid. 54Fot the Qddiff Creed, seeMakdisi, Ibn 'Agil, 3-16 55Editor's introduction to al-'Udda, 1,42 56Fusill, 1,102. This passagewhich is about a theological position, is revealing; Jaýýdýinforms us that "the Han1fa's interpreted Abii the on commission of grave sin" judgement postponementof certain people (ara-7 The for "the f this (suspending terms" the reason al'umCtm). general concerning judgement) as waq be Qur'anic that the there that states sinners will which clearly verses are a number of interpretation is but have literally to that the If these take would conclude we and generalise, passages we punished. interpret did follow Han1fa Hell. Since AW definitely these this to people reasoning, not go sinners will be "the have Han1fa Abfi terms" to that to the this retrospectively general considered mawqaf must effect (suspended).Ja!ýýdýdoes not accept such an inference. The important thing is here that he shows no his belief (supposedly between find him to that own a reconciliation would compel psychological pressure Mu'tazilli) and Abii Hanlfa's, with whom he doesnot even think of disagreeing. 57 E12 "I)Jaýý5ý" 58Four modem researcheson the life of Dabfis-1are to be consultedhere. In French by Makdisi, La Resurgence, 178-180; In Arabic, by Nd'if b. NMI' in the introduction to the edition of some part of AlAsrdr of Dabiisli titled Kitdb al-Mandsik; in Turkish by Masum Vanlioglu, in his introduction to the partial in TDV IA, "Debusi". Turkish Donem; Ilk Dabiisl, TaqwYni titled again, in of edition of 59Le strange, Lands, 468 60Makdisi speculatesthat he must have visited Baghdad on the way toUajj, seeLa Resurgence,179 61Editor's introduction to Kit5b al-Mandsik, 14

62Al-Qurash7l, Al-Jaw5hir, 1,339 63Ibid., 1,339

64SeeIntroduction to Kitdb al-Mandsik of Dabiisli, 24 65Melchert, Ch 6 -Fonnation, 66Frye, Ru-khara,130-131 67Al-Sarn'dnli, Ans5b, V, 273 68'Awwal nian wada'a 'ilm al-khildf wa abrazah ild 1-wqjad- He was the first person who laid down the

51

science of juristic disputation and brought it into existence'. SeeWafaydt al-a'ydn, 111,48 69Seealso, Wheeler, Athorization and Maintenance, 132-150 70Makdisi, Le R6surizence,180 71See Gazall, al-Mustasfa-,1,15 72This al-Sam'dn-i wrote a refutation against DabUsli,titled al-Istildm fi Radd AbY Zaid al-Dabiisl, Uajj-i Kharifa, Kashf, 1,326. His work on uýal, Qawdti' al-Adilla, indicates the extent of his interest in Dabfis-1. 73 Ibn Khaldfin, Muqaddima, 455 74 Madelung, 'Spread', 118 75For this and other examplesof the samesort, seeSamarqand7l, M-lzdn,96-97,630-631,779-780; alLdmish7iKitdb, 124 and 134 76SeeCh 8 below (pages236-238) 77Although there are several partial editions of this work, none of which seemsto have been published yet. Pazdawl wrote a commentary on it which was said to be very popular; but it is probably not extant. 78One chapter of this work is published, with the title Kitdb al-Mandsik. 79 It times is published several 80 It is published 81 Ibn Khald-dn,Muqaddima, 457 82 Sezgin, GAS, 456 83 TDV IA, "Debusi" 134 According to Haji Khalifa al-ta'liqa is the name given by Shdfi'! scholarsfor the genre of writing called he by teacher the the taken to what who speaks of studentssitting around a notes al-amdlT, which refers knows in a particular subject, which later becomesa book. 85This does not necessarily mean that they do not follow a theoretical framework, but 'theological test to the tries to that of an to concept every reduce attitude implications' refers a particular scholastic fi M-izdn by Samarqand7i, best This the natd'ij alal-usifl work of represented is ideological assumption. ýýUi86There are many modem studies about the life of Sarakhs7l. To name a few of them, Heffening in El I, "Sarakhs!"; Hamidullah, IA, "Serakhsi"; Calder, E12,"Sarakhsf' 87His teacher is also known with this title, Shamsal-a'imma al-Halwdn-i 88SeeEll, "Sarakhs'i'; IA "Serahsi" 89For the extant works of Sarakhs-1, 1,638 Sup. GAL, Brockelmann, see, 90For its manuscript copies, seeSezgin, GAS, 1,443 91Ibn 'Abidlin, Hdshiya, 1,69-70 92The term in fact refers to the genre of longfiqh works as opposedto mukhtayar (summary), seeCalder, 'Hanaft Law', not yet published. I would like to thank to Colin Imber for allowing me to accessto this. 93 HaJi Kharifa, Kashf, V, 22 94HaJ1 .i Kharifa, Kash V, 446; al-Luknaw-i, al-Fawd'id, 158-159 . 95Al-Luknaw-i, 158 al-Fawd'id, 96 Editor's introduction Kitdb al-Mandsik, 25 97 Ell "Sarakhs-f' 98E12, "Ilek-khdns or Karakhdnids" 99Barthold, Turkestan, 313 '00Ibid., 316 101Ibid., 316-317 102 Frye, Bukhara, 174-177 103 E12, 'llek-khdns or Karakhdnids' 104 Dhahab-1,Siyar, XVIII, 177-178 105 Al-Luknawl, al-Fawdid, 235 106 Dhaliahl-, Siyar, XVIII, 602-603; al-Qurash-i,al-Jawdhir, 1,372 107 Al-Sam'dn7l,An-s5b,11,188 108For his extant works, see Brockellman, GAL, Sup. 1,637 '09 See Hajj! Khal-ifa, Kash 1,335-338 "o Pazdaw-i's Kanz is published in the margins of this commentary. 11,37; al-Luknaw-i, al-Fawd'id, 124-125 "1 See IjajjT Kharifa, KAa-s-hf, 112The following two kaldni works are ascribed to PazdaW-1I by Brockellman, who, however, does not Pazdaw-1. It books he brothers to the Pazdawl is most our ascribed when enumerates differentiate between

52

likely that those kalam works, such as Sharh fiqh al-akbar and Kitdb al-muyassarfi 1-kaldm,which are listed by him, must be belonged to the other PazdaWli,namely $adr al-Islam, Mubarnmad b. Mubammad, who is well-known for his kaldmi interestsand as a writer of Kitdb usW al-din on kaldm, seeGAL, 1,637 1" Ijaji Kharifa, Kashf, V, 199 114 Kanz, 1,18 115 Al-Bukhdfi, Sharb, 1,26-27 116 Kanz, 111,946 117 Kanz, 111,986

PART ONE - KITAB-. THE THEORY OF COMMAND

(AMJ? )

54

Introduction

Legal

theory

in Islam

is intrisincally

language-oriented

due to its

insistent

assumption that law is based on divine premises, laid out in the Book of God (kitdb) and the example of the prophet (sunna). From the second century onwards, Muslim jurists, or more appropriately the mujtahids, produced a bulk of legal material aimed difficulties the at solving practical

Muslim a encounters in his attempt to live his life

in accordance with the expectations of his belief. At the end of the second century, a felt to find a theoretically consistent and coherent basis that would explain need was this legal mass. One of the attempts that has survived was al-Risdla by Shdfi'l. Shdfi'i, under the heading of bayan (explanation), lays out the principles of how to law from kitab in he first the the extrapolate general'; provides the basic premises of kitdb, the u,yal al-fiqh, namely, sunna, ijmd' and ijtihdd or ikhtildf. linguistic the on

He then focuses

baydn, in this aspects of explaining, a rudimentary manner, 'amin

(the general) and khdv.Y (the particular), two fundamental themes of uyal al-flqh that would pre-occupy

the minds of uýal writers later. Similarly

concepts as mujmal-mubayyan

he deals with such

(ambiguous-clear or specified) and the or niufassar

theory of abrogation (naskh). Apart from these, he allocates no separate space to other linguistic

topics, such as amr-nahy (command-prohibition),

(unqualified-qualified)

mut1aq-muqayyad

finds that themes one normally in a proper and other similar

his is Wznzn-khdýý, Even the text. primary aim not mujmal and naskh, case of in u,yal to identify these concepts as independent themes by providing an adequate treatment by bring identified Hallaq, The in to the their them is as actual aim, own right. of prophetic

into a coherent relationship element

Qur'an the within with

the legal

theory2.

Furthermore, although Shdfi'l knows such terms as obligation, recommendation, Qur'anic interpretation in there to the commands, of relation advice and permission is no theoretical exposition of the question of command in al-Risala. It was only in a Shdfi'-l, by Kitdb the of student a written al-Amr wa al-Nahy, small epistle, called famous Egyptian al-Muzan7i (d. 256/878), which was written in response to a find Shdfi'! Qur'anic that the we a quasiof view on commands, regarding question Brunschvig As the pointed with concept of command. theoretical problem associated 3, al-Muzan-i was the first person who dealt with the theory of command as a out

55 separate issue. Despite being a development from al-Risdla, his account was still far from being close to the exposition of later uyafts. Thus he states: According to Shdfi'!, the unspecified command and prohibition of God and his prophet entail a general and literal meaning as well as strict obligation (jumlat al-amr wa al-nahy min Alldh fazza wajalla wa min rasalih valla Alldh 'alayh wa sallam 'ald al-'u1nam wa al-; dhir wa albatm) (Kitdb

al-Amr

wa al-Nahv)4

Al-Muzan7i further makes it clear that this is so unless a contrary indication diverts the reference of the command from these obvious meanings to a specific, hidden or his is devoted The to the explanation of then rest of short epistle non-obligatory one. the working of this principle in practice by reference to examples taken from the Qur'an and sunna, in a very similar manner to al-Risdla. Thus al-Muzan-l's aim was help badiths find the those to with apparently contradictory a way of reconciling also dealt he he formulated. Among those the theory the with, examples of command of 5 that are related to 'the command issued immediately after expiry of a prohibition' form to that this a gave rise command of particular are noteworthy, as we shall see theoretical question which later legal theory had to deal with. Thus, neither Shdfi'Y nor al-Muzan-1expounded a proper theory of command. The first elaborate exposition of this theory available to us is found in the ugil book of Jaýý4 Since the aim of this study is not to provide a full analysis of the theory of in development the but the context to trace of uyal al-fiqh issues of certain command, first following the three three I the lianaff sections, the school, shall analyse, in of first In the heading the discussed the concept of section, themes of command. under followed, jurists, five the by discussed second in our analysed as is command in finally, the third legal issue by the and command the consequenceof a of section, section, the problem called takrdr is analysed.

56

Chapter Two Concept Command of -The Introduction This introduction deals with two issues, the definition of the concept of command its link with the imperative form. These two issues are, in fact, closely and related, as the exploration of this link will draw the boundaries of the definition of the concept of command 1. Jaýýdý and the concept of command A. Definition. Jaýýdýstarts with a question in the title which reads as 'discussion on command: what is it? (al-qawlfl' al-amr: md huwa). This suggeststhat it is intended definition as a of the concept of command, as the question 'md huwa? ' recalls GrecoIslamic logical inquiry into the essenceand nature of things 6. Jaýýdý,however, does not use such technical terms as hadd, rasm, etc. for the purpose of definition. He begins by answering the question posed in the title. Thus, according to him, the concept of command refers to the linguistic form of the imperative: '(It is) the utterance of (the linguistic fon-n exemplified in) "ifal

(lit. Do! )" by a speaker to

someone who is inferior, with the intention of imposing an obligation (qawl al-qd'il 1i man

dCinahCi ifal idhil ardda bih al-Ijdb). (Fusfil, 11,79)

This definition consists of three components. First of all, the linguistic form of the imperative is regarded as the main component, without which the concept of lack Secondly, someone who is superior in command would its material existence. form. Finally, be intention this there to the the should status addresseeshould use of imposing an obligation. This definition

already assumes that the concept of

linked Jaýýdý is intrinsically As the explains, with concept of obligation. command his definition is based on the classification of discourse (al-kaldm) by linguists into (statement), khabar (interrogation) (request). In istikhbdr (command), talab and amr this scheme, command corresponds to that function of language which imposes obligation.

In other words, Jaýýdý paves the way for the discussion in the next

legal by implying here the that implication of command, command is about chapter linguistically associated with the concept of obligation.

57 B. Amr-il'al

relationship.

It should be remembered that, in Arabic, there are no

separate words for the concept of command and the imperative form, both are expressed by the word amr. Sometimes the latter is distinguished from the former by adding such words as laf-7(expression) oryTgha (linguistic form) to amr, but often is amr used for both, thereby at times posing a certain degree of ambiguity. It is therefore important to expand on the relation of the concept of command with this linguistic form. Jassdsidentifies seven uses of the form of the imperative in Arabic, which are obligation ("aldfihat

Tjdb al-fi'l wa ilzamih), recommendation (al-nadb),

for the surest path (irshad ild al-awthaq wa al-ahwat), permission (alguidance ibaha), challenge in order to scold and restrain (al-taqn'wa

Wz), al-ta warning and

intimidation (al-wa'! d wa al-tahdifd), and finally in an appeal to somebody (al-talab wa al-mas'ala). After providing one or more examples taken from the Qur'an for imperative form, he explains that each of them, with the these the each of uses of last the exception of one, namely 'appeal', can be used by a superior addressing an inferior. In other words, two components of the definition of command can be found in the first six of these uses, one being the imperative form itself, and the other being the condition to be addressedto an inferior. The last use, 'appeal', however, can only be addressed to a superior. Jaýýdý notes that the use of this form in challenge, intimidation and appeal is not definitely considered command, despite the fact that they have the appearance of commands. The scholars are also unanimous in that its in The remaining three uses, namely use obligation certainly constitutes a command. have led however, to controversy recommendation, guidance and permission, be they can considered commands as such. concerning whether C. Dispute. Our jurist, thus, first identifies the agreed position in order to isolate the dispute, which is the ultimate aim in legal discourse, for, without in fiqh'. discussion have a proper cannot

dispute a one

In particular, the dispute here arises from

form of the imperative as the main component of the

admitting

that the linguistic

definition

how it is If can we recognise command among so argued, of command.

linguistic this other uses of positively

imperative The mood?

form used in obligation

intimidation dispute, from the whereas challenge, excluded

is

and appeal are

for do The they case nadb not constitute a command at all. excluded negatively, i. e. (recommending),

irshdd (guiding for the best) and ibdba (permitting)

is not as easy

Leaving technical theoretical this more and elaboration of issue the ones. previous as here Jaýýdý brief linguisti dispute the the gives a account of at ic to the next chapter,

58 level. The issue at stake is this: is the concept of commandrestricted to the concept of obligation or can such conceptsas nadb, irshdd and ibaba be included within the realm of the concept of command, particularly when the imperative form is used without specification, i. e. without specifying which one is meant? According to Jaýýdý,some contend that these latter three uses of the imperative form can all be regarded as being within the concept of command. Others, including Jaýýdý his teacher Abii al-Ijasan al-Karkh7i,however, believe that the proper meaning of and a command covers only the concept of obligation, and that all other applications of this concept must be considered figurative. The fact that the issue at stake is a linguistic one is very clear from the arguments the author used to prove his case. 1. Ja**dý first appeals to the linguistic necessity arising from the alleged fact that function language its discourse has each major of or own term that exclusively denotes it, such as statement, interrogation, generality ('umclm) and other generic terms, each one of which has a designated expression. Likewise, the concept of imposing obligation, namely, command, needs its own exclusive term, a need which linguistic form imperative. fully by the the of satisfied only is 2. The second argument is also based on a linguistic assumption: the use of a word or by following be the using expression can identified as proper or metaphorical, linguistic test. If the meaning of a linguistic expression cannot in any way be other than connected to that expression, this use is certainly a proper one, while if it can be becomes to that that the then expression a meaning relation of used otherwise, he 'Allah For to me pray at noon commanded who says example, one. metaphorical he 'He did is Ramadan' fast the who says not right, whereas month of in and If, liar be the do things' to those religion. and outside of a would command me however, someone who has no obligation (because, for example, he is sick or he to the to did to 'Allah give poor' pray and travelling) says not command me keep he to fact time despite the be that the recommended is all right too, would imperative, form linguistic Turning the be to the it is clear of charitable. and praying form times by this at all in a command are called that all the obligations constituted from by the be concepts of whereas other, each any means that separated cannot way from be the term as seen in command, separated can permission and recommendation the previous example.

59 I

The final

argument is explicitly

linguistic,

Jaýýdý as appeals to the Arabic

language, stating that denial of command (amr) draws the label 'rebellion of ('isydn)'

which

contradicting

can only

be applied

a recommendation

to breaking

or permission.

an obligation,

but not

Thus, in the Qur'an,

which

to is

regarded as the all-time masterpiece of Arab literature, and hence an authority, the opposition

to a command is labelled as rebellion in the story of Moses: 'Do you

oppose my command? ' (Q 20,93).

A similar socio-linguistic

link between amr

(command failing to response a command positively) and'i, vydn and

is found in a

b. Durayd $imma: issued When they to them my command. 'I poem attributed ... 18 opposed me...

To sum up, the primary concern of Jaýýdýin this chapter is to prove a linguistic link between the imperative form and obligation, thereby enabling the exclusive between form. Hence, the conclusion to this chapter this relationship command and is the formulation that the form of the imperative meaning obligation is a real command. Before proceeding to the next jurist, it would be appropriate to say a little about the dispute is first As by Jaýýdý the the pivot of the stated above, chapter. of structuring legal discourse, in which the jurist finds a perfect opportunity to show his skills. It different involves to proving one's own point as opposed one or more other generally dispute first identified Jaýý4 have We that that a seen above views on a matter. involves two points of view and made it explicit that he and his master Abu al-Ijasan it. to three the arguments prove second view, advancing al-Karkh7i preferred 11. The concept of command in Taclwlm al-Adilla by Dabfisl In al-Taqw-im, the treatment of the topic of command, though generally not much different from Fusfil, the first chapter, the introduction, is radically different from the latter. We recall that Dabiis-i's work is organised around the governing principle of down laying After (a1-bqjja)9. the inconclusive conclusive proof conclusive and before khabar the ijmd', Kitab, i. inconclusive and the and al-niutawdtir e. proofs, be issues linguistic the to introduces that the he governing supposed are proofs, kitab law, the interpretation the two textual and sunna. the of sources of of principles begins is he Thus issues this issue, indeed the concept of command. The first of these

60 the whole issue of linguistic interpretation, with a chapter on the functions of kalam (language or discourse). The title of Dabasli's introduction is 'debate on the types of speech in their literal sense and their true interpretation (al-qawlri anwd'al-takallum

wad'an wa tafsiruhd

ýaqqan)'10. The title already suggeststhat the issue of 'the functions of discourse' is linguistic it has legal implications. Mention of the functions of though a one, discourse is also made in the al-Fus-al of Jaýýaý,where they are used to justify the claim that the concept of command is a major function of discourse, like statement, prohibition, question and request. By identifying these functions, Jaýýdý tried to suggest that all of them are expressed by an exclusively designated word, with the being is however he It concept of command no exception. not clear whether saw the list functions above of as exhaustive. In Taq

the functions of the kaldm are the

introduction definition this to main issue in command, in which a of command, as functions, is functions kalam In the well as of other of are provided. other words, considered crucial to an understanding of the concept of command. A. Functions of language. According to Dabas-1,there are only four functions of discourse, these being statement (Mbdr), question (istikhbdr), command (amr) and is, however, by four functions This (nahy). to accepted all, not restriction prohibition for justificatory Thus, forced Dabiisl fact, to argument. search a in which probably a this first chapter, he first tries to prove this restriction by making a linguistic analysis, focusing law by four functions the to these then on their technical-legal and relates definitions. He argues that language (kaldm) must have a worthy purpose (al-fd'ida al-bamida), by by God is it being that a wise person. the reason or originated either created Dabiis-1 is referring to the dominant understanding in Islamic intellectual history language language. According the this, to product of a the is of origin concerning intermediaries". God His or wise originator, whether DabaS-Ils devoid language be that Having established of a worthy purpose, cannot 'to is discover the than this is to convey other nothing purpose, which next step 12 language it' is That the to of information to the one who needs is aim sole say, . (takallum), is The this tool which is of of communication speech communication. future; is first The the the giving information about four types. past, present or

61 secondis asking about this information; the third is commandingan act; and finally, the fourth is prohibiting an act. Thus he describes the four functions in the following terms: Conveying what is with you (al-ikhbdr bi md 'indaka) with a view to letting somebody know about what has happenedor is happening; alternatively, about what must happenif you make it free him discourse (insha'), I I (bi'tu 'abdT)', your prescriptive as in words sell my slave (a'taqtuha)', etc.; asking for information (istikhbdr) with a view to gaining this information (of the previous category); commanding an act in order to clarify that this is a sort of "must-exist declare (of (min that this is a this to and act) in order prohibiting act" md yanbaghTan jfijad); ld (min "must-vanish" "ought-not-to-exist" act yajad wa an and md yanbaghT an sort of (Taqwiyu'dam).

,

ff. 13b-14a)

These are the only four modes of discourse, since there is no other function served by language. Dabds-1finds evidence for his position in etymological facts. By looking at different parts of the verb, he identifies four forms, each of which corresponds to one functions the mentioned above: of Because, you say fa'ala-yafalu

(past-present-future versions of a verb)'; when an

1d 'if You becomes taf al to them and also say al question. a it interrogative particle is added (Taqw1m, fifth There forms (imperative and prohibitive version. is no of verb)'.

f 14a)

Dabiis-i completes his linguistic analysis by acknowledging the fact that each of these four he This these has that discourse four modes of regards suggests sub-divisions. functions as the basic functions of discourse, and that, if any other function is four. these incorporated the be it other of under one or identified, should After discourse. this functions the grammatical analysis, of of four types of these legal-philosophical Dabils-i proceeds to provide a account of focuses He the two in-depth above by of on language analysis. more a undertaking B. Interpretation

imperative indicative and functions, i. e. khabar and amr, as representations of is khabar interpretation The and probably elaborate more of sentences respectively. link linguistic due is the to to analogous, the which an7r mode, original constitutes between indicative and imperative forms. Linguistic inquiry about the nature and essence of statement, (statement). Amibar has language, functions i. the of e. we call which question, and command, prohibition that (statement) that tells khabar something us element of speech an is that concluded lr-ýJL

62 is the case in the past, present or future. The main concern of Dabiis! is the philosophical question whether a statement can exist irrespective of the event to it which refers, i.e. its actualisation.According to him, a statementis 'information about an event without the necessaryoccurrence of the event being attached to information' (ghayr muddff kaynfinatih ild al-khabar)13 Detaching information from . the event it refers to amountsto the fact that a statementin the past tense is either true or false, and in the future either seriousor a joke. The reasonfor this detachment is the fact that a statementis an oral act comprising of the utteranceof a combination of certain letters that rendersthem a meaningful unit. In other words, whether or not a statementcorrespondsto the event it refers to, as speech,it is realisedjust by an is It like "writing', which is by definition an act of the pen, and is realised oral act. irrespectiveof the truth or falsehoodof the written material. Dabils-1 bolsters his theory of khabar by examples taken from the corpus juris implying that this is a theory reflected in the legal corpus of the school. According to if these one of cases, a person vows that he will not say 'a certain person has come', he he be in breach his then these utters words, and would regarded as of vow, even if 14 the information was not true In this legal case, despite the fact that the person who . in fact he that will not speak about the coming of a certain person, the vows means law takes his words at face value, interpreting the vow as something related to the from detaching its thereby the statement of vow actual utterance of certain words, is interpreted different In to refer to an actual event rather the vow case, reference. a than the verbal aspect. For example, if a person vows not to sell anybody and then due fact in breach his be he freeman, to the that selling vow, of would not sells a freeman be items. In in this two the a cannot case, saleable exchange of consists difference being labelled The from this to a sale. act a sale, which prevents subject between this and the previous case is that, in the former, the vow concerns telling it is latter in the only about selling, without using words such case, something, while informing, telling, etc. as

Amr (command). The distinction between the word and its actualisation is also defines Dabiisl this interpretation the concept the of conceptof command. utilised in (infi'do formation imperative form Qf'aO the the 'the of and utteranceof simply as is has function He letters'. to that the a command of already stated this utterance in by he (must be done). Here, tries to this exist justify must that act certain a explain

63 appealing to the distinction just mentioned. He starts by recalling the above linguistic analysis, where the purpose of a command is considered analogous to the purpose of a statement, becauseboth indicative and imperative forms are derivatives of the same root verb (aqsdm taydrif al-ft'l). This comparison then gives him the chance to argue that such an indicative expression as 7ayd has come' refers to the existence of in the imagination, not necessarily entailing that it actually was the case; coming similarly, such a command as 'Do come! ' refers to the necessity to make coming the looking case, without at the consequence of whether the command is fulfilled. For example, it is not a wise idea to say to a blind person 'see!', since, it is inconceivable that he will do so. Thus Dabiis-i says: Once existence is identified as the basic component,it would be right to say that command (or more appropriately the imperative form) is originally assignedto every act whose existence is conceivable in itself (1i kull fi'l yutayawwar wujciduh minh), even though this underlying reason is (sometimes) absent, as in the case of foolishness and mockery (al-safah wa alrabath). (Taq

ýf

14b)

The same reasoning applies to the concept of prohibition, but with an important difference. Though a prohibitive form necessitatesnon-existence as a consequence, there is a difficulty

in reaching the same theoretical conclusion as in command,

becauseof the inconceivability of the actual non-existence of an act prohibition: For, what exists there (in the case of a prohibitive act) is a finite accident ('araa inqaad), does be What not exist as such cannot annihilated. annihilation of which is not conceivable. We, however, annihilate it by abstaining from its activation. (Taq

,f

14b)

Referring to this distinction between a command and a prohibition, Dabiis-i resolves the inconsistency present in his predecessor's work, by appealing to the fact that far As they these are not. as the concepts are comparable and sometimes sometimes consequences are concerned, a command entails existence of an act while a is it. Since that something concrete not annihilation of prohibition entails annihilation for do, like the do call annihilation carrying out a commanded act, or cannot you can This from be for the to point prohibited act. abstention a call necessarily turns out discussions the the consequencesof command and of about course in will arise again the issue of repetition.

64 In this linguistic-philosophical

Dabiis! 's main concern is to find a analysis,

theoretical basis for the claim that a command consists of the imperative form, which is the same conclusion as in Jasýdýabove. He also prepares his for debate the reader in the next chapter about the consequence of command as obligation, recommendation or permission. The idea that command is one of the functions of language is found in Jaýýdý, but DabUs! places this idea on a more solid basis by restricting the linguistic functions of language to four. He also shows how these different types of language function in the same manner, by connecting them theoretically. One important point regarding Taq

is that there appears to be no

technical definition of command, though in fact, DabUs! indirectly tries to suggest that the concept of command is defined as the imperative form when this latter refers to obligation. Although the content of this first chapter on command seems to be largely formulated by DabUs-1,the purpose and the basic argument is the same as in Jassds,namely the equation of command to the imperative form meaning obligation. 111.Sarakhs! and the concept of command (Bib a]-amr) The theory of command in UsUl al-Sarakhs-i is the first theme of the whole book. Although this work has a structure, which appears to be borrowed from Dabus-1, Sarakhs! brings the topics of legal linguistics to the beginning of his work. He for follows: to the topic the explains giving priority of command as reason The most important matter to begin with, in explanation (baydn), is (the matters of) amr and humans-their based (divine by for ibtild' test trial) them, the of is on and only of most nahy, knowing them, is the knowledge of legal rulings (abkdm) completed and the permitted (baldo distinguished from the prohibited (bardin)'. (VýSjl, 1,11)

The importance of law in Islam is thought to be due to the fact that, in Islam, God Undoubtedly, His Himself the through occupies command word. will and reveals his is Lord. It believer this important the will of point searches which a in place, most that seems to motivate Sarakhs! to deal with the topic of command at the outset of this section on legal linguistics. It should be noted that both Jaýýdýand Dabiis-i did not use a special vocabulary to for heading 'bdb' from Jaýýdý the topics all main each other. used separate the main however, Dab5s-i 'qawl'. Sarakhs-i, generally while used sub-chapters, or chapters, former its in between topic that the distinction a main and sub-chapters, is a makes

65 marked by the heading "bab' to indicate the beginning of a new topic, and the latter by ýfaývlý. The introduction dealswith two issues,the definition of the conceptof command and its relation to the linguistic form of the imperative.The latter gives rise to a particular question about prophetic actions. A. Definition. Sarakhs-idoes not explicitly uses such Arabic words as badd rasm, or ta rrTf to refer to his definition, but rather, first, identifies command as a part of (kaldm) together with statement (khabar) and interrogative (istikhbdr) speech (although he identifies three instead of four functions of discourse, as identified by Dabils7i, it seems that he considers command covering both positive and negative (nahy-prohibition) commands.). He then defines a (positive) command, according to the linguists, as: The saying of one person to another (the imperative form exemplified in) If'al (qawl al-mar'li ghayrih 'if'al').

&s-R-1,1,11)

However, the jurists qualify this by stipulating that the form must be addressedto an inferior. it is If equal or an addressedto a superior it can not be called a command, but a request or praying, as in the expression " Oh God! Forgive us". This is because be formed if in is the a command can only addressee a status that makes him subject to the addresser. It is clear that Sarakhs! is not satisfied with a strictly linguistic definition of imperative form. has He to add an extrinsic, non-linguistic item of command as an linguistic hierarchy, defining, but its the thereby phenomenon, social not use in a law The Arabic to that sometimes suggests word amr is related particular context. i. linguistic the phenomenon, plus the social context, and sometimes the command, e. imperative mood (gghat al- amr). By referring to the difference in these linguistic definitions, legal the author aims to avoid a possible misunderstanding that might and he When from the term the uses of uses amr, meaning command, various amr. arise he obviously associates it with the concept of obligation. Thus, only one who is in a impose to an obligation can issue a command. position B. Exclusive relation of command to the imperative. It is now clear that, for

Sarakhsi, the locus of command is the linguistic form of the imperative. In other

66 words, command is the literal meaning of this form, in that it is the only place one find the concept of command. This is actually another and stronger way of can expressing the formula we have seen before that only the imperative form constitutes the true essence of command, (baqiqa al-murad bi al-amr) which is obviously by Sarakhs-Ito be obligation as well. There is no other way to form a assumed command. This latter negative sentence serves as a channel to introduce a dispute about prophetic actions (af'dl

al-rasal), and their relation to the concept of

command. Before this, it is worth noting that the dispute about prophetic actions apparently has do to nothing with the concept of command. However, given the fact that obligation indeed, and command are closely, and exclusively related to each other, the person who claims the obligatory nature of af'dl needs to find a way of accommodating actions into the concept of command by claiming that the true essenceof command be by imperative form. than the can achieved a means other Thus, two views emerge in the dispute about prophetic actions. The majority view, which is also held by Sarakhs-1,rejects the obligatory character of actions, hence its link to the concept of command. A group of Malild- and Shdfi'-i jurists who believe the normative nature of prophetic actions try to find a linguistic link between action (fi'o and command (amr), as both groups presume that only a command can impose obligation. Arguments for the opponents. Sarakhs-i,like his immediate predecessor, Dabilsi, first presents the arguments of his opponents, which are two in number, one based on the linguistic analysis of amr and fi 7 and the other on the interpretation of two baduhs. prophetic 1. Amr and fi-Y. The opponents argue that the word amr can also linguistically mean link have day Qur'an The this many examples of in use and every action or affair. 'the (Q 11,97), for Take the action or affair which reads as verse example meaning. (amr) of Pharaoh is not rightly guided', and also the expression 'his affair (amr) is linguistic link They this that and other cited examples prove a argue not straight'. between anir and action. In order to demonstrate that this link is linguistically but (baqiqi), literal the hence the word of amr, not an extended meaning verifiable, it is different this term, two the each plurals of when used in of out opponents point

67 different meanings, i. e. the imperative form and action. In the first instance, the plural of amr is "awdmir', while, in the latter, it is 'umCir'. 2. ffaditb. They cite two badi-ths in which the prophet calls Muslims to follow his actions to learn how to pray and perform the duty of bajj. These two arguments when interpreted together imply that a linguistic link between amr and action is backed by the instruction of the prophet to follow his actions. Arguments

for

the majority.

Sarakhsl's arguments for the majority

view

correspond to that of the opponents, in that he first tries to reject the supposed link, and then backs this argument by counter-haduhs. 1. It seems that Sarakhs! draws the main point of this argument from Jaýýdý; it is based on the assumption that important functions of language must each have an expression which was originally assigned to denote it (laf; mawau' huwa baq! qa), becausehe says: The expressionscannot fall short of objectives (al-'ibdrdt la taqyuru an al-ma'dni), hence the only way to avoid such shortfall is to give every objective a specific expression (1i kulli (Ilsfil, huwa 'ibdra biha). maq,ycid makhyas

1,12)

It is the importance of the concept of command that necessitatesthe existence of an for it, that is the imperative form. To say that the concept of original expression be in command can also present actions would diminish its importance in language, it as would suggest that it has no specific expression exclusively refeffing to it. Having established that the concept of command is literally (baqiqa) expressed only by the form of the imperative, Sarakhs-iadmits that, like any other noun, amr can also be used in an extended sense(majdz). On the basis of this dichotomy between baqiqa by Sarakhs! the opponents and indeed the and majdz, examples cited interprets away himself is found be he to cites, where amr referring to other than a many others including action, judgement, religion and so on. verbal expression, We have already seen that Jassdsused this dichotomy to explaiin away various uses form. One he dichotomy, imperative the this to the of arguments uses substantiate of is be Sarakhs! that, repeats, while also an extended use of a word can which literal its from Even the the a reference, one cannot. example is same: the separated literally 'father' denote (al-jadd) in "al-ab', means which can grandfather an word

68 extended sense (majazan). It is, therefore, logical to say that al-ab is not grandfather, whereas the word al-ab cannot be separated from its literal reference, the immediate father, i. e. one cannot say al-ab does not denote father. Similarly, the term amr can be separated from action (ft'l), for it is possible for somebody who did many actions in a certain day to say 'I have not commanded'. Sarakhs7ithen goes one step further and concedes that, in order for an extended sense to be viable, there must be some sort of link Qariq al-majaz) to the literal sense. In this case, this link between amr and action is provided by the fact that when amr is is intended is ma'mfir (action commanded), i. e. a verbal to used mean action, what 5 its is in Arabic'

noun meaning 2. ffadiffi.

passive participle, which

a common phenomenon

.

Sarakhs7isupports the above reasoning by referring to two prophetic

in for imitating his his In the which reports, prophet criticises actions. companions incidents, these the companions, during a prayer, took off their shoes after one of they saw the prophet doing it. After completing the prayer, the prophet asked them did demonstrates in Sarakhsl, This, they that why so, a critical manner. argues following

his actions is not obligatory, or otherwise his criticism would be

interpretation badiths by he Then the the the opponents cited, of meaningless. rejects follow his fact them to the that the actions is very of prophet commanding asserting backed by in be for be indication to to the a word order need an action of an obligatory. To sum up, Sarakhs! introduced a new debate, which Jaýýdý or Dabiis-i were not 16 from in Apart discuss the the that, this to central concern is relation context willing . is be form, imperative to to the the exclusive which an one, of concept of command fully explored in the next chapter. IV. Pazdawli and the concept of command The topic of command in Pazdaw-i's Kanz is located under specific terms (aýfd; albe It his in have khdy,y). This will noted, argumentation should particular implications that despite his ambition to organise the themes of uyCil under a single system, heading by differentiate does topics, Pazdaw'ia single general main such as ainr, not for his Jaýýdý, bab-faýl Like (the distinction). Sarakhs-i title in each have seen as we it 'bdb', the begins a new introduces of whether word irrespective with chapter

69 theme or a sub-chapter under a general theme. Generally, he differentiates one general topic from another or relates it to another, by making his intentions clear at the end of a topic, before starting the next one. For example, before starting the topic of command, he notes that the following topic of command is actually part of a more general heading of khdýý, thereby on the one hand placing the topic of command in his system and on the other marking a start on a new topic. Since Pazdawl's work be to appears a summary version of Usill al-Sarakhs-1,I shall try to limit the following analysis to pointing out the improvements introduced by Pazdawl as well as the most striking similarities. Pazdaw-1,unlike his predecessors provides no formal definition for the concept of but it is command, clear that he means by it the linguistic form of the imperative. For, in this introduction, he deals only with the nature of the relationship between the it form, he, this than concept of command and where anyone else, makes more is that there explicit an exclusive correlation between the concept of command and imperative form. In other words, command is the only literal meaning of the form of imperative, or alternatively, the imperative form is the only way of constituting a bi bi 1dzima His ýfa inna exact words are al-murad al-amr yakhtasS sTgha command. 'indand-the essenceof command is confined, in our view, to a form that is inherent 17 PazdawT uses two technical terms to express this correlation, to that essence' . (luzam). Sarakhs-i (khuýcq) expressedthis same idea and inherency namely specificity in lengthier words and also in non-technical language. The first of these terms might have been inspired by the fact that Pazdaw"i considers the imperative form as a specific term. This emphasis on the inherent link between command and the imperative form is, as dispute introducing from Sarakhs-i, know about prophetic actions a a way of we (af'dl al-rasao, i. e. whether they can be included within the concept of command. Pazdaw-I also concentrates on this debate by providing arguments for and against. Both the contents and the structure of his presentation follow that of Sarakhs-i,so that latter. He he the the the text impression that employs of the on is working one gets in dispute. for both ýadiths the the linguistic parties and same arguments same by lengthy Sarakhsl's to however, tries Pazdaw-1, arguments either summarise by the the them, retained made generally point which proves of some omitting For better the them example, a way. in and more organised argument, or expressing

70 examples cited by the opposing group to show that the word amr can be used to mean action, comprise five Qur'anic passages, all of which have the same effect, which seems to make Pazdawl satisfied with only one of them. Similarly, in justifying the dominant thesis both jurists followed the same reasoning that command being a major function of language cannot be short of a linguistic form that would exclusively denote it. Here PazdawT's account seems to be expressed in a clear and directly hits the point at issue. concise manner, which As regards the organisation of the individual issues, Pazdaw-i-first introduces the case for the opponent(s), then his own case, and at the end, he refutes the points raised in the argument(s) of the opponent(s). V. Shiishl and the concept of command (faflfi-al-amr) The topic of command in UsM al-Shdsh7icomes after the topic of khayY. Shdsh7i for ýfayl-division' heading for 'babth-study' the the generally uses word general and its sub-chapters. A. Definition. In this introduction, Shdsh7ifirst defines the concept of command and then focuses on the issue of the specificity of command to a linguistic form. His idea jurists, he be definition than that the to of previous as more advanced of seems legal. linguistic Sarakhs-i definitions this two and also mentioned of concept, provides this distinction, but he did not put it in such explicit terms. So the linguistic definition (ft al-lugha) of command, according to Shashi, is: The saying of a speakerto someoneif al (imperative form). (Shds

,

116)

definition (ri legal Slidshl's by Sarakhs-i. the is that the of al-shar') as same which a follows: concept of command reads as (Shds 'aid (taýarruf ilzam al-fl'l Act of imposing an action on the other al-ghayr).

,

116)

It should be noted that the legal definition of command makes no mention of the imperative form. Sarakhs-i,however, did not provide a formal legal definition but by definition jurists linguistic this the that of a consideration qualify added only definition is due form in legal Shdsh7i's to a to the Absence hierarchy. of reference be in discussing the will which made explicit more next theological consideration, issue.

71

B. Specificity. Like other jurists, Shdsh-1 then concentrateson the problem of the specificity of command to a linguistic form by stating that somejurists contend that what is intended by a command is specific to the imperative form (al-murad bi alamr yakhtag bi hadhih al-.yTgha).This is actually the view of our four earlier jurists, last this since statementcontainsalmost the samewords as used by Pazdawl. That is Shdsh7i why refers to this view as the view of some prominent scholars (baa alDespite it being the view of some prominent Hanaff scholars,he finds in a7mma). this statementcertain theological problems. He, therefore, indirectly disagreeswith this view by explaining it away through three interpretations,only the last of which is him. Firstly, the above statementcannot be held as meaning that the to acceptable (baqTqat is form. idea The to this real essenceof command al-amr) specific of the God is incompatible form this the eternal speechof not with view, as is a imperative created entity, while God's speechincluding His commandsis not. Secondly, the implication that what is intended with a commandby the person who issuesit (alamir) is specific to this form is also not acceptable.The reasonis that what the issuer intends is (here Lawgiver) the the command with it obligation, and an obligation of in is, for in form. God be Belief than this example, an constituted other can (da'wa), Islam the the those messageof who are outside reach of obligation even on lian7ifa Abii to according If these two literal implications of the above statement cannot be doctrinally true, then what did these prominent jurists mean by this statement? Shdsh7isolves this far legal law by that, to the their as and states as statement puzzle restricting ýaqq (Ii' al-'abdft obligation

is but is this true, statement concerned, al-shar'iyydt)

In implication its to the theological sphere. other words, it is a one should not extend legal proposition, not a theological one.

72 Table 1. Views of earlv Hanafis on amr and iral link Author Definition? Definition of amr

Ja"4

Dabfisli Sarakhs7i

Pazdaw-i

Shish!

Amr=if al (imperative form), with the intention (irady) of obligation

Yes No, but it can be reconstructed Yes

No

Yes

Amr=if al Ami-if al, with the condition of superiority The equation amr=if al is the assumption Two definitions Linguistic definition: amr=if al Legal definition: re-interpretation into formula to take of amr=if al formal account internal speechvs. speech

Amr-af'91 (prophetic actions) link No mention of af dl in this context No mention of af dl in this context The issue of link of af dl with amr but without technical terminology The issue of link of ardl with amr in a nearly stable technical terininology The issue of link of af dl with & terminology amr in a stable examination of theological implications

Summary and discussion As the Table 1 shows, there is a gradual development in the treatment of the these jurists corresponding to their chronology, with the exception of Shdsh7i,whose treatment of the subject seems to be radically different from the others, though it between link issue The their amr and af'dl of achievement. certainly assumes (prophetic actions) serves as a means of substantiating the formula of the definition, namely amr=if'al.

Until Sarakhs-i,the issue of af'dl was not part of the subject of

link before. By known have been the to negating amr, though the controversy seems

define Pazdawl the to tried Sarakhs-i then between amr and af"al, concept of and fact form. Despite imperative by that the the command as a verbal entity expressed it in it Pazdawiidea, did jurists a who expressed was these two emphasise the same (specificity luzam khuýcq language, and exclusive correlation). and technical using

Shdsh-i'svocabulary then follows him. have did form) to (imperative posed a not seem The definition of amr as if'al linguistic legal formula, grounds, this Shdsh7i, or on not to questions who problem up be formula to The turns out amr=ifal but for theological-dogmatic reasons. "speech it that to because, theologically a asserting amounts speaking, problematic issue The the through controversy surrounding our mouth. (kaldm)" is what we utter deal Qur'an) theoretical (createdness to of a great of gave rise khalq al-Qur'dn of

73

thinking on God's attribute of speech,as the Qur'an is considered kaldm Allah (God's speech).To define amr as somethinguttered is said to be equal to asserting that God's speech, i. e. Qur'an, is created, which is what the Mu'tazila viewed, becauseof defining "speech" as letters and voice. The earliest referencerecorded in the sourceswhich links this controversy to the definition of amr is attributed to the great theologian Ash'afi, who is said to have denied the formula "amr equals ifal". A fifth century jurist, a non-Ash'afi Shdfi'!, Abfi al-Mu4affar al-Sam'dn7i(d. 489//1096), notes that there was no such controversyamong the "jurists" as whether Ash'afifý innovated idea if'al those this is or amr not, until of "internal speech(kalam al-nafs)". As regards to Shdsh7i,the legal theory, especially the Ijanaff one, was developed through two channels, one being legal practice-oriented, represented by our jurists himself, Shdsh7i legal-theological-oriented than the other and other one represented by the so-called MdtuCid7iuýal tradition. In Shdsh7l'stext we see an attempt to re'Ald' The theologian-jurist these two conciliate strands. uyal work of a sixth century be best (d. 539/1145) the to representatives of the seems one of al-D-in al-Samarqand7i MatuCidl tradition. On the problem of the specificity of amr to ifal,

he disagrees

is form imperative dominant lianaff that the tradition the the of not grounds on with the command itself but its indication (daftl

"alayh), the reason being that the

internal is the the with speaker, entity existing not an of speech command as part define Sunni Samarqand7i he theologians, therefore, and other utters'9. words imperative by (talab, istid'a') the or other constituted command as non-verbal entity forms. The fact that all our four previous jurists identify command with a linguistic form be labelled Mu'tazil-i jurists leads that these to the implication as would obviously

20

. That is why Shdsh7itries to save these jurists by explaining away unwarranted implications and restricting the idea of specificity to the law. He seemsto be justified by the fact that this problem of specificity, as he has pointed out, is asserted only to did Sarakhs-i However, and only not the of prophetic actions. nature obligatory reject did Dabils7i linguistic form but Jaýýdý too, define Pazdaw-1so and as a command fact in did the this which makes prophetic actions context, a not mention though they for There be two interpretation to Shdsh-i's untenable. seem possible explanations bolstering Firstly, the them, this one Implication, other. all of and of their ignorance

74 in particular Jaýýdý and Dabiisl, might have seen no harm in following

the Mu'tazill

approach (if it is really a Mu'tazil-i one, since it may well be one of earlier positions among definition

the scholars).

Jaýýdý even incorporated

of command, namely the condition

Pazdaw-1 then might have simply followed

another Mu'tazil-i

intention of

(irada).

item

in his

Sarakhs! and

the tradition they found in Jaýýdý and

in but Dabiisli, this seems to be less likely, for they do not always follow especially 21 Dab-Cis-1, in After all, the ljanafi school was still far the matter of takhgy al-'illa as . from adopting Mdtufl-d7i theological tradition at the time of these juriStS22.

Secondly, their perception of the science of uyal al-fiqh is excessively furci '-oriented, it legal feature they i. e. see as primarily a activity, a which constantly appears in their elaboration of theoretical principles. This aspect of their understanding of the science 23 identify inspired Khaldiin Ibn to the of uyal al-fiqh most probably and others jurists (fuqaha') Ijanaff the method of with method. References

'Al-Risdla, esp. 21-73 2 Hallaq's article 'Was ShdfiI Master' is devoted to establishingthe above claim. Seealso his Histo1y, 30. 3 'Le Livre', VII, 147 4 Ibid., VII, 153 5Ibid., VII, 155 6 The feminine form of this question, 'ind hiya', was the origin of the very important logical concept logical definitions in is things, 'miihiyya' the that the and is used substanceor essentialattribute of of but direct Jaýýdý, Stoic N. Shehaby there things. the is no evidence on influence suggestsa possible of that would enable us to trace the channel of this influence. Even the Mu'tazila with whom Jaýý4 was link, be logic. in Therefore, Greek there such if is it must associatedwere not particularly interested through indirect channels.Alternatively, since Jaýýdýalways puts his headingsin the form of question, definition, For be the seealconcept of mahiyya and its role in just a matter of convention. it may well Jurjdn-i,al-Ta'Cifat, 87,205-206; for the discussionof Stoic influence on Ja:ýý5ý,see Shehaby, 'Stoic Logic on al-Jagdý's'. 7 The badith 'Dispute within my community is mercy' is generally understoodby the Muslim scholars Zdhiffs, 89-96. discussion, Goldziher, dispute. For to the see, general a juristic as referring 8 Fusfil, 1,83 9 Seeabove Ch I (page 40) 10Taqw1m, f. 13/2 11For the debate about the origin of language,seeGhazari, al-Mustasfa', 1,270-27 1; Seealso Weiss, Spirit, 62-64 12 Taqw-im, f. 13b 13 Ibid., f. 14a 14The Arabic version is 'balifia an 1dyukhbira annafuldnan qadima,fa akhbara kidhban- he vowed f. has falsely', Ibid., 14a tells then he that tell come, person certain a that will not 15This is the sort of majdz, what Arab linguists call majdz al-mursal, see,al-Sdmarrd'!, at-Majdz, 116120 16They however know the debatearound the prophetic actions which they are going to bring it in f. Taq 137b 111,218-220; Fusfil, see part, sunna 17 Kashf, 1,101 18Al-Sam'drili, Qawdti, 1,49 19Samarqancri,M! zdn al-Usiil, 83-84,94-96

75

20 It

fellow jurists ignorant his Iianafi being Samarqand7i here that this as criticises is worth recalling of the theoretical-theological implications of the ideas they were promoting. Seeabove Ch 1 (pages 12-13) 21 SeeCh 8 below 22For the Mdtuadiyya, see,Madelung, 'Spread'; Watt, 'The Problem of al-Mdturýdli' 23For a discussion of this issue seeabove Ch I above (pages 12-18)

76

Chapter Three - Consequence of Command Introduction In the first chapter, the concept of command was linguistically linked to the form of imperative, together with the concept of obligation hanging in the background. The present chapter will bring the concept of obligation to the front in the context of a debate concerning the legal consequence of commands. It is worth recalling again that imperative and command are interchangeably used in the writings of these jurists. We start as usual with Jaý§d*. 1. Jaýýiiý and the legal consequence of command The title of the second chapter of the topic of command in Jaýýd*is again in the form of a question, which reads as 'a word on the imperative form that is uttered to inferior: does it someone entail obligation or recommendation? (al-qawlft 1i idha amr yadara man tabt td'atih:

lafý; al-

'ald a1-wujCtbhuwa am 'ald al-nadb? ). The

definition provided by Jaýýdýat the beginning of the first chapter already contains the in to the this title. There Jaýýaý expressly stated that the question posed answer inherently Given to the this, the of concept command refers concept of obligation. here does but Jaý d the apparently not make sense; as we recall, aim of question there, in fact, was to provide a linguistic link between the concept of command and the imperative form, which in turn is related to the concept of obligation. In other debate for his he theoretical-legal the to tried around the main reader prepare words, lies in by to these the that Problems solution suggesting concept of command, facing itself Here, language these theoretical-legal of one we are now exploring important the the with concept of associated problem most problems, perhaps legal is the This the the the consequence of of nature of question command. form. Although two there title the alternatives, only suggests unqualified imperative are actually more. dispute by Jaýýdý, the topic Views. A. around the introducing a as usual, starts four this time, he involves parties: poses, which, question ('ind imperative form, the that Those al1. in an unqualified situation who assert it (busn the the goodness of act commands al-ma'mfir itlaq), indicates

bih),

77 encouraging its performance. According to this view, the imperative can come to mean permission (ibaba) or obligation (wujctb) only with an additional indication (bi daldlatin). In other words, these last two are not part of the original meaning of the concept of command. The absence of recommendation (nadb) from this list of exceptions implies that Jaýýdýidentifies this view with recommendation. This is the view which would be popularised by certain great Ash'aff jurists including Ghazdl-i and al-Amid-1, and became the standard Ash'afi view'. Other non-Ash'aCi Shdfi'-i jurists, however, do not agree with this view'. The omission of nadb in the formulation of this view by Jaýýdý,however, is significant, since, according to these Ash'arli jurists, the concept of command entails just a demand (talab, iqflad) on the part of the addressee,which they interpret as a 'call for' the performance of what is Whether is ordered'. it obligation or recommendation is determined by reference to indications extraneous to the imperative form. This sounds as if they believe that the imperative form is a homonym for both obligation and recommendation. However, they immediately reject this suggestion, instead calling it waqf, that is abstention from giving judgement until the context determines it 4, although their waqf is different from that of group 3 below.

Jaýýdý's interpretation of the formula 'the

is its does goodness of what ordered encouraging performance' as a recommendation implication in formula. be if this to take the wrong, we not seem nadb as minimum Besides, Ash'af-i's own position is far from obvious, giving rise to several 5. interpretations If the recommendation is the view that Jaýýdýhad in his mind here, the Mu'tazila are generally associated with it6 and the difference between them the Ash'affs and the Mu'tazila on the issue of the juristic implication of imperative form becomes less sharp. 2. Those who think that the imperative form basically entails permission (ibdba), its being proper meaning, and only outside with obligation and recommendation communicated through

external indications.

One could discern a kind

of

imperative here between the that the is proper meaning of assertion inconsistency form in imperative Ja*ýWs the that used previous statement permission and by obligation is accepted everyone as a real command. 3. Those who claim that the imperative form is likely to mean (mubtamiO each one is that to three obligation, permission; namely, recommendation and options, of these is indication (mawqCif its suspended external al-hukm) until an that consequence say

78 specifies its purpose. This view is later called wdqifiyya, due to the fact that it abstains from giving a clear answer to the problem concerned. It seems that the opinion of this group is different from the Ash'af-I one just mentioned above (1), as this latter includes ibaba within the possible meanings of the imperative form along with obligation and recommendation, whereas the Ash'arTi view includes only the latter two. 4. Finally, those who believe that the imperative form is for obligation unless a contrary (external) indication diverts it from this. Jaýýdýhas not ascribed previous figures but last to this views actual or groups, one is identified as the doctrine of his school, and particularly as the view of his master, al-Karkh7i(d. 340/952). B. Arguments.

As in the previous chapter, after laying down the terms of the

dispute, Jassds immediately starts defending the last view, which is, according to him, the view of his school, using a wide range of arguments that can be summed up in seven general points. Although the numbers of individual arguments appealed to I by these than try to the are more seven points, shall summarise points giving the in each of one of them. Before commencing the exploration of these main argument it be in Jaý§dý formula that, the established a points, should recalled previous chapter, linguistic form imperative, the the the concept of command with of which equates is links both There intrinsically in the them to then turn, concept of obligation. and form. between in his discrepancy longer this the concept of command and mind a no With this formula the problem should have been solved, but the polemics of the from being is far A issue indicate that the so easily settled. much present chapter his however, is Jaý§dý, focus to the theoretical still refers reader required. more formula of the first chapter wherever the polemic requires him to do so. Another is he frequently device that the to, claim consensus resorts important argumentative by is held Islam impose the form imperative to all scholars of the an obligation used to constitute a command.

Of the sevenpoints of defencethe last one is devotedto the discussionof the view of for first the fjdb the two (permission) case of ibaba articulation are positive only, (obligation), while the rest involve polemics against all three or any two opposing views.

79 I. The assumption in this group of arguments is based on the idea that the term amr (command), appearing in the citations, is nothing other than the imperative form itself Thus, in many passagesin the Qur'an, we find that the term amr (referring to the command of Allah and His messenger) is followed by various sanctions for the possible offenders, such as the label of rebellion, disbelief, a warning of punishment, worldly or unworldly, scolding etc. For example, verse (Q 43,36) reads as follows: A believing man and woman have no choice in their affairs once Allah and His messenger decree a command; whoever rebels Allah and His messengerhe has certainly gone a clear astray.

According to Jaý§dý,this verse proves his point in two ways. First, it denies any for believer (takhyir) in the the face of a divine command, which is clearly a choice feature of obligation. Denial of any sort of choice is incompatible with nadb or ibaha, as they obviously leave room to choose to do or not to do. Second, the label "ag

(rebel)' is attached to the one who fails to perform the command, which can

be if only meaningful we take the command as obligatory. Since there is no other form, it than the of conveying a command method imperative is obvious, argues Jaýýaý,that this form should be taken as obligatory until it is proved to be otherwise. Ja!5ý5ýbrings forward other examples from the Qur'an, which all advance the same formula, debate his He the then with a question-answer which enriches is argument. discussion. in the points of usual pattern expanding on A few pages later, Ja*ýdýreturns to the point explored in this first argument as if it is War... is... (daftl by 'another proof saying a new argument,

)', where he expands on

however, he This 'rebellion, time, issue labelling the the argues etc. omission as of of that this is a linguistic fact, giving examples from the Qur'an (as the authority in Arabic), poetry (the poem cited in the page 59) and human situations in everyday life. For example, we all are familiar, he says, with the consequence of failing to fulfil the command of an authority in our daily life, i. e. the offender deserves rebuke human between draws he Jaýýdý the situations and aware of parallel is and reproach. divine commands, and justifies this by arguing that the commandments of Allah in the be with common-sense convention among mankind accordance read should fo baynand)7, 'ald Ta'ald Alldh r, (wa awdmir mabmalatun al-ma'qal al-mutadraf (Q 14,4): declares Qur'an as the language of his nation'.

'we did not send every messenger but in the

80 2. This set of arguments appeals to the consensus claim that obligation is one of the original (baqTqa) implications of the imperative form, if not the only one. According to Jassds,once his opponents acknowledge this claim they cannot fail to admit also that in an unqualified situation this form will entail obligation, even though they believe that nadb-recommendation and ibaba-permission, as well as Tjdb-obligation, implications form. The reason is that the concept of obligation this are original of fulfils

the full

imperative the meaning of

form,

whereas permission and

recommendation constitute only a part of it, for the former has an element additional to the latter, in that failing to fulfil an obligation draws a punitive sanction. Even if imperative form that the we admit originally entails each one of these implications, Ja*ýdýargues, we have to opt for the full meaning of it in the case of ambiguity. Once draws Jaýýd* between form 'the this a again, parallel and general terms', arguing that, just as a general term will entail the maximum of its implications despite the fact that it also originally applied to three and more, the imperative form should imply its This argument obviously excludes the possibility of the maximum entailment. imperative form being used metaphorically (majdz) in obligation, as Jaýýd*,referring to the argument made in the previous chapter, states that such an assertion would belief (Tmdn), (baqiqatan) did Allah that to command not originally saying amount in His He 'Believe Allah fear (taqwd), and messenger" and when said nor righteous 'Righteously fear your Lord'. 3. This third group of arguments target the proponents of the first view above, which later It basis dominant Ash'aCi identified the have the sources. can of view on as we Mu'tazil-i that the to the asserted who scholars of ma ority of view also equally apply the imperative form entails recommendation. Jaýýdýintroduces the arguments of the fia (this in didactic time his the qd1a qa'il-if as style usual answers in opponents and The him'). that the is lah'qfla to argue opponents said it somebody asks', is informs basically that form praised, and good ordered what is us imperative is the through Its exposing obtained implication of an obligation nothing more. by is When the an accompanied the not it utters command. who one intention of be knowledge the cannot intention about exposition, our an such indication of it do did, for, if does form because the would it formed, not express obligation, alone Jaýýaý this is it the answers case. which is obviously not uttered, time so every by is form to that this the by accompanied opponents admit when pushing objection in its it be indication to deliberate original obligation, used of is considered such a

81 sense (baqTqa). Once the opponents accept this, they would be in an untenable situation in claiming that the original meaning of a word can only be attainable through extraneous elements to that word. Thus he says: It is said to him: Original meanings of things do not vary with intentions, neither can they, in any way, be separated from what they are originally assigned to in the interpretations of language. Since you admitted that its implication of obligation is original when the commander intends so, is it not the casethen that this form is in fact used for obligation, in that when this form is uttered, obligation is understood and there is no need to look for an indication of the intention of the speaker, unless it is accompanied by an indication that diverts it from its original meaning? Thus, it is that utterance without qualification (muflaqan) becomes the indication by the speakerof the intention of obligation. For, this is the original meaning of this form and it is incumbent to consider it in accordancewith its original assignmentin language, just as other names assignedto their meanings in the original stateof languagedo not need any external indication to expressthis original sensewhen they are uttered without qualification... (Fusfil, 11,93)

The alternative answer that obligation might not be the original meaning of the form, hence becomes (majdz), is imperative which an extended use rejected outright by Jaýýdýby reference to a ubiquitous consensus-claim. The fact that the imperative form is found to be used in different senses can be explained by the baqFqa-majdz dichotomy, that is to say that its implication as obligation is its original meaning its implications, including i. ibaba, extended meanings, e. are whereas other nadb and not original. 4. The polemics of the previous argument lead to another point made by the form basically do if to that the that expresses will even one acknowledges opponents does latter (iradat this not entail the reprehensibility of its omission al-fi'o, an act (kardhatan fi-tarki&), for, the will to perform an act and failing to respond positively (busn). In terms other words, the to it are not necessarily incompatible in of goodness bounds falls form imperative by the the within of still omission of the act requested form leaves that this fact, the a conviction which eventually endorses goodness, a kind of choice, hence leading to its interpretation as recommendation. Ja!5ýa5's between to the this to command and prohibition, contrast argument appeals response both the believes the he that, of act as a prohibition entails reprehensibility that in desire for both to omit it, a command also entails an act and a requested and a will its is The that the this omission. of implication of analogy the reprehensibility

82 imperative form, like its opposite, the prohibitive form, entails nothing less than a mandatory demand.

Later towards the end of the chapter8, Jassdselaboratesthis analogy further by stating that a prohibition is a kind of 'command not to do'. Presuming that the believe in the obligatorinessof a prohibition, i. e. a commandnot to do, it opponents be would ridiculous to suggestthat a term that is specifically assignedto a command less than obligation. The possible objection that the obligatoriness of an entails unqualified command(al-amr al-mutlaq) is always accompaniedby a sanctionin the failure to obey, whereasthe imperative form is devoid of this feature,is again caseof by rejected reference to the consensusclaim. In other words, Jaýý4 forces his opponents to make a choice between two contrasting positions, i. e. either the form imperative meaning obligation constitutes a real (baqiqa) command or not. If the answer is affirmative, then there is no point in raising this objection, for, an by definition, implies a sanction.If it is negative,then the opponentgoes obligation, againstthe consensusof linguists and othersthat an imperative meaningobligation is a real command. Besides, the form of the prohibitive, like the imperative form, but is to containsno reference sanctions still consideredto entail a sanction. 5. One of the imaginary opponents of Jaýýdýasks whether we can make a distinction between the commands of Allah

hand, Prophet the the the on one and commands of

, distinguishing human (the divine the text commands, on other, probably and

in (assuming human in Qur'an) that the uttered commands a and context commands different less to therefore open interpretations). environment are all contextual, Jaýýdý's reply is categorical; whether we are concerned with text or context, the function of the imperative is the same, i. e. imposing obligation. Otherwise, we end determines that the than the that the command actual rather context it is up saying In in 3 is This to the to that above. order argument employed reasoning outcome. formula, I didactic the quote author's style of question-answer give an example of the following passage: If it is said (fa in qTla): It (imperative form entailing obligation) Is only necessary In the Prophet (directed) to those the our slaves and and in our commands among us of commands because, his bound through to the us, obey its necessity strikes one who commanded who are from the the the of intention commander, of a phenomenon which is absent cognisance Allah. of commands

83 It is said to him (qi1a lah): Is this necessaryknowledge of being aware of the intention of the commander createdby the imperative form itself or by an indication that accompaniesit? If he says: By the conimand itself, Then it is said to him: It should be there in other commands too, due to the existence of the condition of this necessaryknowledge. If he says: This occurs by meansof accompanyingsituations. It is said to him: Is everything (every command) that comes from the Prophet or from any other human authority accompaniedby a necessitatingsituation that determines the intention of the commander? If he says: Yes, the invalidity of his word is necdssarilyknown by the fact that the imperative form sometimes comes from the commander to the addresseewithout being accompanied by any situation that fixes it to obligation, such that the latter becomes hesitant whether the intention is obligation or not. Besides, people do not consider these (extra) situations as a ground for rebuking the person who falls to obey a command, which obviously suggeststhat a (Eusffl, 11,97-98) deserved is because he the rebuke only omits command.

The polemic continues almost constantly in the same vein, giving rise to new Points distinction discussion. One these that this text-context can also apply to other of is of is, deny (generality)'. That 'umum the generality of terms those who concepts such as in divine is intention the text that the the of generality not same argument could use denying Prophet, in human that the thereby the of situations such as as clear as indication From them. the terms accompanies unless a specifying generalisation of imperative form however, learn, the that those who consider other sources, we 'suspended-mawqaf in fact also consider these 'general terms' as suspended, which for least irrelevant, them. this of at some argument makes

6. Jaý5d5in this argument first informs his reader that certain scholarscontend that implications in form imperative these three the that an entails each of presuming be (i&iydt) that preferred over obligation requires original sense, precaution he for then this the endorses sake of religiosity; reluctantly recommendation is for is based Ja55dý's The that this argument on reluctance reason reasoning. imperative form implications (istidlal the the of itself min ghayr reasoning outside he for is less However, that taking ). argues a precaution what and opting fihat al-laf; jurisprudence kabir (aY1 the is principles of min uýycil important al-fiqh), of one risky jurists. by into account all taken

84 7. The final argument is directed to those who contend that an imperative form originally denotes permission, nothing more. The non-tenability of this position probably led Jaýýd5to delay its refutation by argumentto the end, as he indicatesthat he does not take it as seriously as the waqf and nadb positions. The only polemic brought against this position is that Ja55d5believesthat it is the proponentsof ibaba that should prove their case, which he sees no chance of them doing. Then he his favourite advances argument,asking them whether they consider the imperative meaning obligation to be a real command or metaphor (baqTqaaw majaz). If it is considered a real command, it is necessaryto conclude that this form originally entails obligation, since Ja55dýhas already established more than once that the obligatoriness identified by this form derives from the form itself not from external The elements. other alternative,majdz, as we have seenbefore, is the most untenable in he labels Ja55d5, it falling the position view of as as outside the consensusof the Muslim nation. Summary. These are the eight main arguments presented by Jaýýdýin defence of the in FusW As this contains more arguments of obligation. said above, chapter position than are summarised here. Jassds, in this chapter, first identified four different imperative form linguistic the the the of entails question of what positions regarding if it is uttered without qualification, i. e. without its meaning being made clear by indications extraneous to the form. The rest of the chapter is devoted to the defence is his imperative the ijab-obligation, that which view and conveys of one position, that of his school. Jaý§dýgenerally did not specify individual arguments, namely his involve instead, targets arguments mostly which opposing position; which one however, be identified Some them, the can as of opposing views. polemics against all is demarcation but, the there whole, no on comments only on one position or another, between the positions in the argumentative part, though the four positions were singled out at the outset of the chapter. 11. Dabfis! and legal consequence of unqualified commands The exact title of the second chapter in Dab-ds-i'sTaqw-i

is 'a discussion on the

lawfully the those part of who are subject consequence of unqualified commands on ft ýukm ft baqq (al-qawl al-awamir al-muflaqa al-ma, mcirin to a command differ from Jaýýdý issue. One this title that the Two "an)'. of of on same aspects shar hence 'al-amr term the inclusion as an al-muflaq attribute of command, of althe is

85 mutlaq'. The other one is the ambiguity in Dabiisl's title as to whether he means by amr the concept of commandor the imperative form. Jaýýdýmade it clear in the title that he meansthe imperative form. This, however, makes no difference in terms of issues, both first actual the as used chapter to establish the formula of equating command with the imperative form. Besides,the contentshere show that the actual concern is with the form. The first difference referred to, however, seems to represent a technical improvement in vocabulary. Although Jaýýdýuses the term in it this muflaq context, seemsthere that it has not yet acquired its technical status. As will be clear soon, the term mutlaq seemsto refer to the abstractstate in which there is no clue about the referenceof the imperative form. The chapter thus deals with the question of what the legal implication (bukm) of the imperative form is in an abstractsituation. A. Views. Dabiisl informs us that there are four different answers to this question: 1. Suspension (al-waql) until a clarification (al-bayan) is provided 2. Permission (al-ibdba), unless an additional contrary indication exists 3. Recommendation (al-nadb), again unless an external indication diverts it 4. Finally, obligation (al-wujab), if there is no contrary evidence One can see that there is a logical order in this list, which works in accordance with the distance or proximity to wujab or waqf Taking, for example, wujab (obligation) furthest from firm the the the view away wqjab, ground, waqf position represents as is for form Ibaba the next one, the there that at all. position is no meaning as it says but it is i. does form has it that the a meaning, not prescriptive, e. not call as accepts for anything, but just says that something is permitted. Then, comes the nadb position,

which

takes one step further,

and prescribes something

as a

recommendation. Comparing this with Jaýýdý's list, one does not fail to realise that, apart from the identical. The first in list Jassds be they the are view of can third view, namely nadb, kind by Ash'aa there, the as nadb or out a of waqf proposed interpreted, as pointed is therefore more consistent and also neater, as he has a single list DaMisl's jurists. be It last that the three for noted should each of categories is category. term each

86 followed by a note saying that this is so, unless there is evidence to the contrary, and the first one by a note saying that it is so, unless a further clarification is present. The opposite of these notes is exactly what the term mutlaq refers to, i. e. absence of clarification and of external indications in the context of utterance of the imperative form. B. Arguments. After describing the dispute and the views involved in it, Dabils! turns to discuss the views one by one, starting with the first and ending up with the last. This polemical section is very different from that of FusW in that DabasT allocates separate space for each of the opposing positions, in which he presents their arguments on their behalf. The genuineness of this procedure is doubtful, for the by the opponents are presented in a way that enables them to be utilised points made in favour of the main idea proposed by the author, even though the points ascribed to the opponents might be authentic. 1. A]-wjqjF7yya (those who abstain from giving an opinion). The thrust of the for is by Jaýýdý the the that argument adduced waqf position phenomenon mentioned the imperative form is found to be used to suggest different meanings. This form in its from the this to ambiguity of original stem phenomenon is construed (mubtamil lit. it (lughatan), probable) term that which makes as an ambiguous sense linguistically could

denotations. its Therefore, these to reference any of apply

it. remains undecided, until extraneous evidence specifies 2. A]-muhThfin

(permitters).

The proponents of ibaba start their argument by

form imperative linguistic the the that the of waqf position and asserting refuting denotes a call for (talab) the fulfilling of a command on the part of those who are for basically form i. basis, On the that this calls an action, e. subject to this command. for They the the that position. they reject the ambiguity waqf ground constitutes the the multiplicity of problem solve

imperative form by denotations the of of

is is dichotomy'. That ibdýa the 'baqiqa-mqjdz to as the considered say, to reference imperative form, to the as referring regarded uses are other while of original meaning if is be form, there this only claimed can senses of which extended or metaphorical (Q 17,64) form in For the the the verse example, use of indication. additional an be but deceive' Satan the them to them, cannot promise nothing promise and ... imperative, form due impossibility God's the to the the of of of meaning original

87 commanding something forbidden, namely deceit; hence, it is a figurative way of putting a rebuke on the people concerned. I

A]-nJMfin

(Recommendors). The proponents of recommendation take up the

issue where the permitters left it, i. e. the basic expectation Erom imperative form any for is a call action. Although the permitters concede that the suspenders invalidate the essence and significance of the form, they are still far Erom recognising its significance properly, as the position of permission, too, represents no inclination to either side of the scale. That is to say, if the form basically calls for action, it requires, at least, that it should make a choice in favour of that call, the minimum requirement of which is recognising the recommended nature of the act expressed by this form. In other words, a call for action presupposesthat the action called for is a (al-basan); good one which can only be recognised by admitting that the act is recommended. Up to now, Dabils-I has tried to present the other side of the story by making each of the opponents speak for their own case in the order he deliberated, namely waqf, ibaba and nadb. Each argument refuted the one preceding it, so that the argument for is both for ibaba ibdba is a refutation of waqf that and waqf and nadb a refutation of After laying down their arguments, the last group, the recommenders, are given the for have they the to the Tjdb will position, since not arguments any refute chance is introduced. One for do the to this of the arguments obligation case after chance is found in is for Jaýýdý, by that the the also example, which obligators, appealed term amr, meaning command of Allah and His Prophet, is used in the Qur'an in a is for (Q 33,36) "there in the no choice a verse sense of categorical obligation, as believing man or woman after Allah and his messenger decided', and in the story of Satan. The proponents of nadb argue that the categorical sense found in this sort of but from (mutlaq from the al-arnr) use of unqualified command passagescomes not it is indicates is God's that in an the context command uttered, which which duties Similarly, the obligatory character of major religious obligatory command. in but by broader by these the the which commands, context was conferred not is That finds why one many additional remarks surrounding commands are uttered. failure fulfil duties, the the to sanctioning of a command, explicit such as these major indicate likes the the all obligatory which nature of of prayer words of obligation, fasting. and

88 4. Main thesis of Dabfisl, !jib.

Dabiis-1introduces the arguments of his camp with

the formula 'wa al-bujja li-`ulamd'ind - the proof for our masters"O.He adduces three main arguments. 4.1. Dabas-I first recalls the truism of linguists, command, that the defining

characteristic

in first the explored chapter of

of the concept of command is that a

commanded act is a sort of must-exist one. Given this, he concludes, "must-exist' is but imposing nothing obligation. Since he devoted the whole of the previous chapter to establishing

this assumption, it is most probable that he considered this the

fact for from The this the Tjdb. strongest argument significance of argument stems that its reasoning is based on exploring the imperative form in its linguistic thereby making it a rational-analytical

sense,

reasoning.

This semantic analysis is further bolstered by reference to the political discourse (governor) difference between in dmir two terms, the and ma'mar or amir reflected (governed); the former is the active participle of amr and the latter its passive (who is Considering the theory, the then also called ruler or sultan political participle. is (ma'mar), his has which obviously of a subjects sanctioning authority over amir) mandatory character. 4.2. Linguistic analogy. In this second argument, Dab-as-itreats as the same two sets have but derivative follow the that same significance in pattern, a close of verbs is One implication. linguistic these their sets amara-i'tamara, the verb terms of of forms of amr and the other is kasara-inkasara. The analogy is based on the fact that the transitive (kasara, first these two whereas verbs are units the verb amara) of Dabiis-i Thus, intransitive. (inkasara, i'tamara) says: are second him J linguistically i'timdr, and commanded said: Besides, the consequenceof amr is as it is broke it it 'I Just fa-Vitamara)'..... (amartuh and is as you say: he undertook the command broken (kasartuh fa-inkasara) ..... Once this (i'timdr) is understood as the consequenceof it (abkdm) just latter, former follow for the is the to as other effects (amr), it necessary later there follow impediment. their is an when or causes, either immediately necessarily (Taqwi-m, f 15b- 16a)

is it by Dabas', in that this clear however, as analogy, recognised a problem There is, That is involves a social-human situation. kasr is a physical phenomenon while amr be breaking is which can a glass a mechanical process of the consequence to say,

89 achieved by using appropriate force, whereas a command is addressed to a subject who has free will to obey or not to obey. Once the conditions for the "breaking' are its met, consequence follows mechanically, but the existence of command does not physically entail existence of its consequence,namely obedience. Dabiis-i overcomes this objection by making a distinction between mechanical and human consequences. The analogy is still valid, but with a fundamental modification for the latter. The mechanical consequence is transformed into the nearest condition available for free acting agents, that is obligation. That is to say that what brings a free agent closest to the natural world, where there is no freedom at all, is making him subject to an obligatory act. Dabiis! finds evidence for his reasoning in the following two Qur'anic passages: Be! And it immediately becomes.(Q 36,82) .. One of His signs is the maintenanceof earth and heavenby His command.(Q 30,25)

The first passage illustrates creation and the second the maintenance of the universe. Dabiisli argues that, since these commands address(though allegorically) the non-free agents who were not given any power in the face of God's command, the is described having into However, consequence as mechanically come existence. humans, God depends the targets the the when same command of outcome on the free will of the subject. What is striking in this and the previous reasoning is that Dabiisli always gives linguistic-analytical In linguistic the to proof over other arguments. case of priority do importance from he that those treats arguments not stem analysis, as of secondary the referential scope of the term concerned, which can be cited only to bolster the just in Qur'anic have the two passages. seen main reasoning, as we 4.3. The third point made by Dabiisli is actually a response to an objection that raises doubt about the claim that amr is always associated with obligation. The opponent by (tatawwu'), the the that, voluntary still acts command of prayer one case in argues does in fact first the DaMisli that Allah. rejects idea a voluntary act a person who of but Allah, by he His that the of rather permission. asserts acts command acts under delivers donor being he like is latter who The what a under promises without former is like is do the the to to whereas so, seller who under obligation obligation for has he a certain sum of money. sold deliver what

90 Dabiisl also appeals to the argument that failing to fulfil is a command labelled in the Qur'an and in Arabic as 'rebellion', a label which can only be used for those fail who to fulfil an obligation. He cites some of the Qur'anic passagesand the same poem by ibn $imma which we have seen in Jaýýdý(above, page 59). The final argument by Dab-as-iin favour of the Tjdb position is provided by an analogy with the prohibitive form, but this does not occupy a central place in his reasoning, as it does in Jaýýdý's. 111.Sarakhs! and the consequence of command (m UP h al-amr) The title of the second chapter in Sarakhs-1is ýfaýlft bayan majab al-amr alladhT hadhd muqaddima al-faýl-chapter on the explanation of the consequence

yudhkarft

is be to of command which mentioned in the preface of this chapter".

In this

Sarakhs! deals issues. first issue dissociate The three tries to chapter, with a particular form of imperative as a command from other uses of this form. The second and principal

issue is the consequence of command, and the third one is about

imperatives uttered to overrule a previous prohibition. A. Preface. SarakhsTihere actually deals with an issue, which is dealt with by Jaýýdý in the first chapter, and that is the problem of the different sensesof the linguistic form of the imperative we found to be used in literature. Since they all defined be imperative, the question of which the obvious concern might command as an less Giving is the the same conclusion examples and same more or imperative meant. detailed discussion, but his Sarakhs! Jaýýdý, with a more predecessor, endorses as identified The the the the are as opponents opponents. of position especially about followers of Shdfl'!, who, according to Sarakhs-i,do not present a unified front in the debate about whether the concept of amr, which, it is admitted, has ijab as it is basic ingredient, also encompasses three of many other senses of the imperative form, Some these three that this irshad ibdba, all includes concept assert and nadb. namely literally, while others contend that it literally includes nadb and irshad, but not ibaha. behind Sarakhs-i briefly the each Thus, in total, three views emerge. reasoning gives disagrees debate his he the with with and completes own what refutes view, arguments.

91 The last group who stands for nadb (and irshad) argues on the basis of an assumption that fulfilling what is recommended deserves a reward (thawab), which only comes as a result of obedience Qd'a); obedience in turn is what we mean by fulfilment of a command (0imar). Sarakhs7icriticises this reasoning by rejecting their assumption that a reward comes only as a result of obeying a command, but rather contends that one also gets a reward for an extra performance (nawdfil) because one gives up desires for the sake of Allah. The second group argues that the minimum content of command must be permission for they are taken for granted in any obligation. The claim of and recommendation, is for untenable majaz a ma dz will operate only between two totally different concepts (mughdyir), not between two concepts, where one is contained in another (1d qdfir),

in the case of permission and recommendation with regard to as

literal Again, Sarakhs7i that the the meaning of obligation. reftites reasoning, arguing in for leaves that choosing one act no space a command entails obligation in a way is however, In ibaba there to obviously a choice. and nadb, preference another. This latter point is also the basis for Sarakhs-i'sown argument, which is stressedboth by Jaýýdýand Dabiis-1on the basis of certain Qur'anic passagesand a poem, which all is labelled Another fact to that the the to as rebellion. command opposition point based from is drawn Jaýýdý, is by Sarakhs-i, that the on again which point made 'baqiqa-mqjdz' dichotomy, the possibility of separating the word amr from what is being for its taken majdz. as evidence recommended is B. The consequence of unqualified command We now come to the principal issue in this chapter, namely the legal consequenceof imperative form in an unqualified situation ('ind al-iflaq), i. e. when the form is not The the its indication by of previous purpose of actual reference. any accompanied form. The imperative the the the purpose of to command with equate chapter was from form, is isolate the this to obligation, of this one sense to second chapter preface imperative that is all are obligation It and now command, clear already others. is Here, this to the connection substantiate each other. aim with intimately connected by the obligation. concentrating on aspect of way, powerful in a more his four lists this Sarakhs7i views on own: matter, starting as usual with B. A. Views.

92 1. The majority of jurists claim that the legal consequence of an unqualified command is ilzam (obligation). 2. Ibn Surayj (d. 305/917), a famous Shdfi'l jurist, contends that Shdfi'-i considers it to be waqf (suspension), but other Shdfi'I scholars, according to Sarakhs-i,reject this ascription. IA

group of Mdlik7i jurists think that it entails ibdha.

4. Some others (Mdlilds) consider it to be nadb. There is ambiguity in the text as to the identity of this last group. The expression 'ba'duhum, some of them' be may referring to some jurists irrespective of their affiliation, or it may refer to some Mdliki-s,, as they are the nearest reference in the context. Unlike Jassds and Dab-Cis-1, Sarakhs! here tries to find 'actual' figures or groups to he whom can ascribe different views that emerge in a controversy. There is a clear tendency in this list to restrict the participants in this debate to jurists. Some other sources state that, generally speaking, waqf is the Ash'af-1 position and nadb is the Mu'tazilT one. Sarakhs-ihowever ascribes the former to Ibn SurayJ and the latter to Mdliki-s, anonymous who are rarely mentioned in his work. It seems that he is at keep legal to this pains a controversy. It should be noted that Sarakhs-ialso endorses the logic of Dabiisl as to the sequence different dominant though the of views with a slight variation, namely putting view instead beginning the at of at the end. Thus, after articulating his position, he starts followed by In however, ibdýa the and ends up with nadb. argumentation, with waqf, this slight variation also disappears, as he starts with waqf and ends up with !jab. B. B. Argumentation.

Before exploring arguments, I should like to mention briefly

is Sarakhsl's this the a way which we can usefully problems, as structuring of about jurists. he As first his those two with seen above, of work previous compare he be dominant his his to the always claims position of position, which articulates follows jurists, if the then this the of majority of and with always not school, devotes he Then to these a space each of opposing views apparently opposing views. 'to defend' themselves, which is followed by a criticism of each view immediately he devotes Finally lion's he himself the to the its share view articulation. after justice Despite the to the apparent in granting a space with. opposing associates

93 views, one always gets the impression, as we have seen manifested more forcefully

that the actual aim of the author is to preparethe mind of the reader for the in Dab-Cisli, main position. 1. Waqf (abstention from giving an opinion). It is now clear that the main point for this group is that the imperative form is ambiguous (mubtamio, so that one for should not opt one of its particular references, unless a clear indication specifies it. Sarakhs-i-brings forward a total of four critiques of this view (most drawn from Jaý5d5),which suggests that it has practical consequencesfor him. By his time, the waqf position was the prevalent view of the Ash"ads, who were then the main rivals 2, Ijanafiin to the tradition the eastern lands of the Caliphate' a fact which seems to explain his extensive criticism, though he does not mention their name. Sarakhs-i borrows all the arguments cited below from his two predecessors,reformulating and in them reorganising a way which makes them much clearer and more to the point. I. I. The first critique, drawn from Jaý*dý, states that suspending the implications of the imperative form was never an issue for the companions, who, as soon as they heard the commands of the Prophet, implemented them without hesitation. The knowledge be their about the reference of additional contextual evidence could not the form, as not only did the companions who were present there do so but the absent them. the too, command reached as as soon ones 1.2. Secondly, Sarakhs-i argues that linguistic convention among the people also hesitation. implemented be that without a command should requires 1.3. Although Ash'aCi sources try to distinguish the concept of waqf from a linguistic (ishfirak) homonym phenomenon called a

13

,

there is a connotation between them, for

do know know do they the linguists though least the as waqf, a category not at focuses in Sarakhs-1 is That homonym. third the linguistic the why category, nearest between distinction He homonym. the the a this makes phenomenon of argument on In (avl language normal al-waý') and accidental circumstances. original state of have (al-'ibdra) he signified a specific should every signifier says, circumstances, in has if the than khag), case of (ma'nd as a word one signified more whereas later, few lines Sarakhsý-i A homonyms, this is an accidental state, not a normal one. linguistic destroying implications the the expressions as of considers suspending

94 reality of things (baqd'iq al-ashyd, ), by which, I presume he means the fundamental principles of language. d. The fourth argument drawn from Dabiisli and based on the contrast between the imperative and prohibitive forms, is that, if it is accepted that the imperative form has no signification, we cannot escape from saying that the prohibitive form, too, has no signification, which is obviously not an acceptable outcome. Despite the fact that Sarakhs-irejects the suggestion concerning the ambiguous nature of this form, he still concedes that there is a ground for doubt, but states that it is so it be that taken as a ground for rejecting its signification. However, minimal cannot he states that this possibility plays a role in preventing this form from being conclusive in its signification. This sounds as if Sarakhs-iis making a distinction between the theological and legal implications of this form, which is the claim of the Matuffd7i scholars14 The absence of such terms as i'tiqdd (belief) and 'amal . (practice), however, suggests that Sarakhs-1,following his usual pattern throughout, avoids this theological debate, of which he could not be unaware. The difference between the waqf position and all the subsequentviews lies in the fact that, while the former claims that this form signifies no specific meaning, the it does. difference Sarakhs-i in that this the subsequent views claim makes explicit is debate, the the where real concern about what this signification is. rest of 2. Ihfffia.

The proponents of ibdba believe that this form originally

signified

is based Their on the assumption that one of the obvious reasoning permission. implications of the form is the goodness (busn) of the act commanded. It is obvious that any legally permitted act carries that feature of goodness, which leaves no need for any extra imposition, such as recommendation or obligation. Sarakhs-i'scritique initial he Despite is the this assumption, acknowledging very concise. of point by being it. is drawn from That to the merely say, while an act, conclusion criticises is by degree described be that the required a as good, of goodness permitted, can degree be is the than that, of evil and can compared with much stronger command form. by the prohibitive generated is for basis The the Nadb. 3. nadb position the assumption that the imperative form in fact generates a request (talab) for action. Promoting that action, through making

95 the commandedact a recommendedact or an obligatory one, can fulfil this. If this can be done by recommendation,arguesthis group, then there is no need for extra imposition. Three points of criticism are advancedby Sarakhs-1 againstthis argument, and theseare again a reformulation of the points made earlier by Jaýýd5.One should remember that Ja55d5does not advancethesepoints in relation to the nadb position but as part of generalargumentationin favour of ijab. The first point is a refusal to be satisfied with less than the full senseof the term. Sarakhs-1 arguesthat the form should be taken in its full sense,as there is no defect in the form nor is there a weakness in the authority of the speaker (wildyat almutakallim), namely God and his Prophet. The second point is the favourite Jaýýdý, argumentof which is basedon the widely acceptedassumptionthat the use of the imperative form in obligation is a literal use. Thus, any suggestionthat the form be literal in its in might other uses,say nadb, would ultimately dilute this underlying is assumption,which an unacceptableresult. Finally, like Jaýýdý,Sarakhs-ithinks that 64pious"precaution (ibtiydt) requires that obligation should be its most basic outcome,rather than recommendation. 4. The articulation

of the arguments for Fjdb. Sarakhs! has already made several

in favour but follows the ijab, points of account which aims to articulate these in forceful scattered arguments a more way, though not necessarily a consistent one. His articulation is in two parts, which seems not to be motivated by any logical but is due different to two consideration, merely relying on sources, Jaýýdý's Fus-111 Dabiisli's Taq and In the first part, Sarakhs-i repeats the idea ubiquitous throughout this study that in labelled Qur'an the to as rebellion, citing the same verses command is opposition it far from in Dabiis-i have Jaýýdý. Although touched this too on point, was we seen being an integral part of his justification.

is Although In the secondpart, DabUs-1's the organisationof influence more obvious. the arguments in three headings,namely the Kitab, sunna and ma'qal seemsto be done by Sarakhs!, each of these arguments is borrowed from DabiisT. Sarakhs-i's it though intervention,

improves the arguments individually, results in a

fragmentation of an otherwise autonomouswhole. That is to say, what Sarakhs-i designatesas argument based on ma'qCil (reason), for example, was in Dabiis! the

96 basis of his analysis of the form. The Qur'anic passagescited by Sarakhs7i under the heading of the Kitab were actually put forward by Dab-ds!to back this analysis. Since these points are more or less the same,I refer to the relevant section above (pp. 8890), and translate the so-called ma'qCil argument to show an example of his improvement of the argumentsof Dabfis-i: For, our word 'amara-to command' is a transitive verb (muta'ad&); its intransitive (lazim) form is Vtamara-to accept the command'. Without the existenceof the intransitive there would be no transitive, which results in the fact that amr (verbal noun of amara) is not possible without i'timdr (the verbal noun of i'tamara), as there would be no kasr-break (transitive) without inkisar-break (intransitive). (In the caseof amr) the true obedience(baqTqatal-Vtimdr) becomesreality through the (mechanical) existenceof what is ordered (wujad al ma'mar bih). However, if the existence is considered to follow a command without the agent having a for be is (saqata This the agent, the choice, responsibility would void unacceptable, al-taklTj). freedom (aarb has degree of in accepting obedience, a certain al-ikhtiydr) that eliminates determinism (jabr) and opens the way for earning reward by choosing obedience.This is not determinism, To directly (of to the attached command. avoid obedience)is possible if existence therefore, it is not the real existence that is establishedby this form, but rather the strongest (USAI, 1,19) request, which is obligation.

Comparing this passage with the quotation made above from Dabiisl, Sarakhs-i's Dabiisli. For is to that of more elaborate and serves as a commentary account instance, this latter jurist did not point out the basis of analogy between kasara and between link Sarakhs-i transitive the and as clarifies amara verb sets, which intransitive forms of a verb. Similarly, Sarakhs-iprovides a more technical account of kalam freedom, human taklif. issue terms and the asjabr using such of To sum up, Sarakhsi, in this part, has followed Dabiiýi in organising arguments formal have his in to four time gained a seemed opinions, which around the Jaýýdý this the however He content within elaborating extensively relied on character. format. B. C. Additional

issue: imperatives overruling a prohibition.

Sarakhs-icompletes

is, is that the issue the to that whether one, previous related this chapter with an it is if form different imperative to the a previous overrule uttered is of consequence followers Shdfl'T difference, but that SarakhsT of some no notes sees prohibition. In just in it this more. entail nothing case, overruling a prohibition, that will, claim becomes The fact the that the is prohibited act permitted. outcome only words, other

97 that their justification is based on examples in the Qur'an, such as hunting being permitted following a period of ban during bajj, rather than a theoretical argument that transcendsthese examples makes it easy for Sarakhs!to reject this claim. He statesthat, theoretically speaking,there is no difference betweena commandcoming after a prohibition and a general command, for the form is not assigned to the overruling of a prohibition but to a call for action. Overruling a prohibition comesas by-product a of a command.As to the difference referred to by the opponentsin the examples above, it stems from the context of these particular Qur'anic passagesor from other evidenceextraneousto the form. IV. Pazdawl and the consequence of command (bffb mfijab of-ami)

The word mCijab in this title is the standard word for the issue of the legal consequenceof command after Sarakhs-i.In Pazdawl-'sKanz, however, it is not the bukm, legal term to to the only used, since al-murdd and al-ma'nd are also used refer consequenceof command. It should be noted that Jaýý4 was not able to draw a satisfying distinction between the first and the second chapters. He appearedto be repeating the same question and in both Sarakhs-i by tried to that the even arguments chapters. solve problem same in first issue discussed by Ja*ýdý his the to the the chapter preface of own moving he had but the same problem with the arguments on two seemingly too second one, different issues within this chapter. Pazdawl, however, makes the distinct character beginning the these two of the second chapter and moves the chapters clear at of first deals him, it. According issue the to to the chapter with the end of problematic issue of whether the essenceof command is specific to a linguistic form. The second linguistic form is however, the the question of whether of concerned with chapter, the imperative is specific to that essenceof command. The combined result of these between is is the concept of there that two chapters an exclusive correlation He form imperative. linguistic this therefore the the starts chapter of command and saying: Once the specific1ty of the form 's established(1n the prevlous chapter), it 's to be literally (of (wa the the that specificity of established essence command) is also acknowledged (Kanz, 1,107) khuscis khuscis thabata idha thabata al-sigha al-murddji' asl al-wad').

98 The most important contribution of Pazdawii in this second chapter, however, seems to be to a process started by Dabiisli and improved by Sarakhs-1.In response to a form imperative the question of what entails in an unqualified situation; the latter two issue legal the organised consequence around a single dispute involving four of views, namely waqf, ibaba, nadb and ijab. Although Sarakhs-iidentified a distinction between the first view and the rest in terms of the issue they address,he did not go as far as to divide the dispute on the question of legal consequence into two separate first fore It Pazdawl that to the to and treats who appears push point questions. was the issue as two separate questions. One is whether the form is assigned to any it is (mawqqf-suspended) suggesting more unassigned specific signified, or whether than one signified in the absenceof clues. The other one is an inquiry about what the is it been it has is, form that this a acknowledged once specified signification of Pazdaw-l-'s illustrates diagram following The contribution and signified expression. legal issue his idea the consequence. of organisation of about also gives an Problem 1: Does this form have a specific signification? 1. Presentationof the problem 2. Arguments The argumentsof wdqiflyya a. b. The argumentsof the majority

PazdawT treats as a sub-issue of For the majority, there arises another problem which the it the than previous of whole though the majority view, even occupies more space follows: is latter This problem as one. forin does form, this specifically or what [Problem 11: What is the specific signification of this entail? A. Presentationof the problem a.

Al-ibdba

b.

Al-nadb

c.

Al-wujcib

B. Arguments

99 a.

The argumentsof the opponents

b.

The majority arguments]

After completing the second problem Pazdawi-, following his organising pattern, turns to the refutation of the opposing view in the first problem, for the second problem is not a new issue but an issue under the second majority view of the first problem. 3. The refutation of wdqiflyya

As regards to the arguments, Pazdawl again improves on Sarakhs-i'spresentation. We have seen that Sarakhs-1put together two justifications in favour of the Tjdb position, by Jaýýdý one and one by Dabils-1,but this does not appear to have been a good combination; they were not compatible. Pazdaw-1too takes the justification of Dabfi.ý-i basis for his justification, as a

but here again he clearly sees things through

Sarakhs-i's eyes. That is to say, the manipulation of Dabiis-i's point by Sarakhs-idoes have just Pazdaw-1. He to not seem affected concentrates on the text of Sarakhs-1and improves on its disorganised manner, by moving the first part coming from Jaýýdý into the argument titled Witab', as it is a point based on certain Qur'anic passages. Reading Pazdawl also at times helps to understand Sarakhs-itext better. For example, despite the fact that Sarakhs-1stated that he would present his justification under three headings, namely, the Kitdb, ijmd' and ma "qal, the line between the last two is not draws distinction in it be Pazdawl's However, text, a clear which can identified clear. between each one. As we pointed out at the beginning of this chapter, Pazdawl here also deals with an issue which concerned Jaý§dýand Sarakhs-1.This is whether the imperative form is literal in ibaha and nadb, if it is used to mean these two. Unlike Jassdsand Sarakhs-1, he seems to be advocating the view that it is literal. Finally, before closing this chapter, Pazdawl too discusses the problem of the 'imperatives overruling a prohibition'. consequence of V. Sh5sh! and the consequence of unqualified form of imperative Shdsh7i is that this text Once again, it of represents a summation of all the clear

this the works, with above a new on matter of contribution of achievements

100

consequenceof command. Firstly, it was Sarakhs!and Pazdawifwho first used two terms in this title, majab and mutlaq, in a technical sense.Shdsh7i then provides an explanation for the latter term, mutlaq, which was not clarified by the former two jurists. According to Shdsh-i,it refers to a situation where the form is stripped of any 15 hint (qarTna) form indicating obligation or accompanying extraneous to the , otherwise. He even gives two examples of this situation, one of which is the following Qur'anic passage(Q 6,204): When the Qur'an is recited, listen to it and be silent, so that you may get mercy.

Shdsh7iemploys two arguments in favour of his position, which is, as expected, that is draws label One the that the of of obligation. point opposing a command 'rebellion', and therefore meets with a sanction, clearly a feature of obligation. He bolsters this point, like his predecessors,by poetic evidence, but the poem he quotes from is different. The second point is drawn from Sarakhs-1and Pazdawl-,which is based on the extension of the above point, to the effect that, if an ordinary command human beings the the command of consequence, sanctioning such a requires among God deserves more than that, as he is the ultimate authority.

101

Table 2- The develonment of the studv of lev-alconseciuenceof il'al Different views Author Number of arguments

Jassis

Dabfis!

Sarakhs!

Pazdawli

Shish!

Structure

Under 8 set of arguments Four views: 1. Nadb (with no headings),more 2. Ibdha than 20 individual 3. Waqf arguments for ijdb 4.1jdb

1. Identifying different views 11. Laying down the argumentsiif favour of the prevalent view, namely !jdb

Each view has its own Four views: for Waqf I. then, arguments; 2. Ibdba ijdb: 3 main arguments(but 3. Nadb 4. Wujab no headings) with two less important ones Each view has its own Four views 1. Rzam (Tjdb) arguments; then for !jdb: 4 general arguments, 2. Waqf 3. lbdba three of which with headings: 4. Nadb 1. Kitab 2. ljmd' 3. Ma 'q a1 1. Is if al signified? Each view has its own (waqj) for No 1. then Tjdb: arguments; 2. Yes 3 general headings: 11.If yes, what is its 1. Kitab 2. ljmd' signification? 1. Ibaba 3. Ma 'q Ci1 2. Nadb 3. Wujab

I. Identifying different views 11. Laying down the i. for arguments each, e. waqf, ibdba, nadb and Tjdb:the last of which is the prevalent one 1. Identifying the four views 11. Laying down the argumentsin the same Dabds! as order

Two individual for ijab arguments

Two views 1. Luzam (obligation) 2. Anti-luzam (nonobligation)

1. Il.

Identifying different views Laying down the argumentsfor eachgroup ending with the prevalent one, namely Tjdb

1.

Identifying the prevalent view 11. Defending it with arguments

Summary and discussion form to imperative the the opportunity legal us gives The issue of consequence of Jaýýds' is First, five that texts. development these clear it of the structural compare but Fusiil is a huge work containing all the material the subsequentjurists would use, finding the His disorganised. all with clearly was it is at the same time concern

have to did time he to concentrate discuss seem not to tools issue; a certain necessary legal issue the four listing of the Thus, concerning views after on the structure. list the Dabu-s-1 for too defend of ijdb. with starts he the to case starts consequence, itself This defend to is he but then opportunity an view each gives the views, less be list in to his the appear above arguments the why of reasons actually one of for Ja*ýdý's by the That material Jaýýdý. using above, as noted is, those of that Dabiisli the chapter in a way which apparently organised the issue, discussion of

102 gives each opponent to defend his case. This is, in fact, a polemical device aiming to 16 support the prevalent view . Sarakhsl and Pazdawi then have adopted this technique. Shashi's text again displays a different character, in that his concern does not seem to be discursive; rather, he tries to articulate the school position, which is, in this case, Tjab. We do not know, for example, what the anti-Tjdb positions propose. Even the argumentative part does not give a clue about the opposing views and their arguments, unlike the account of Jaýýdý, who provided information about the arguments of the opponents, though he did not devote a separatesection to them. Secondly, one can also see structural development in the perception of the issue of legal consequence by these jurists. For Jassdsand Dabiis-i the issue concerns only a single question: what does if'al

in entails an unqualified situation? They thus

identified four possible answers. Sarakhs-1,though formally following them, hinted of the fact that waqf poses a different sort of question. Then Pazdaw-1pushed this implicit idea, found in Sarakhs-1,to the fore regarding issue of legal consequence as comprising of two questions, one being about whether the form of imperative is a being is the this signification, if it is a signified expression, while other about what his be For Shdsh7i's too this complicated, as signified one. purpose, problem must detail. is concern neither with precision nor with References 1Al-Amid7i, Ihkdm, 11,163; al-Shlrdzli, al-Tabsira, 27 2 See, for example, AI-Shlit-521,al-Luma', 47-48, al-Sam'drifi, Qawdti', 1,54-60 3 Weiss, God's Law, 339-340 4 Ghazdll, Al-Mustasfa-, 1,306; Ihk 11,161 5 Al-Juwayri-i, al-Burhdn, 1,212-214 6 AI-Baýrl, al-Mu'tamad, 1,76; al-Slfirdzli, al-Tabsira, 27; Ghazdl-I, al-Mustasfa, 1,306-307; al-Amid7i, lhkdm, 11,163 7 Fusifl, 1,96-97 8 Fus0l, 1,101 9 GhazdlI, al- Mustasfa-, 11,34; al-Amidl, Ihkdm 11,222 10Taqw-im, f 15b

11Usfil, 1,14 12For the rivalry between the lianafis and the Shdf1'Iswho adoptedthe Ash'arl theology, seeBulliet, Patricians, 28-46; Madelung, Religious Trends, 26-38 13At-Ghazdli, al-Mustasfa, 1,306; al-Amid7i,lhkdm, 11,162-163 14Samarqandl,M-izdn,97 15Shdshl, 120; for the term qarTnasee,Hallaq, 'the term Qarina' 16See above, pages 86-87

103

Chapter Four - Command and Takrdr Introduction After two central issues of the topic of command we now deal with a peripheral issue, which concerns the question whether the imperative form entails a repeated it is obligation or whether only a single one. Although the question seems to be an in odd one, since normal circumstances an utterance of command expression will here only a require single obedience, we are concerned with the religious commands imposition is thought to be constant. The jurists, therefore, try to solve this whose tension between ordinary discourse and religious discourse. The word takrdr literally it fulfilment beyond. 'repetition'. Here the to refers second of a command and means 1. JaýýAý and the problem of takrdr The title of the third chapter on the topic of command in the FusW reads as 'a discussion on unqualified command: does it entail repetition? (al-qawlft

al-amr al-

deals It hal the the whether concept of of with question al-takrdr)'. yaqtadT mutlaq: in an unqualified situation, entails a repeated obligation or a single one. command, Jaýý4 first discusses the case for unconditional commands, i. e. those commands He discusses He then conditional ones. which are not conditioned on any stipulation. imperative link between implicit issue the the and an of completes the chapter with the concept of takrar. A. Views on unconditional commands. According to Jaýýdý,there are two opposing in imperative, an unqualified situation, entails a views on the question whether an believe jurists The that a command of majority one. repeated obligation or a single to takrar additional indication an presupposes imposes only a single obligation and legal Jaýýdý that the is be imposed, which states outside the concept of command. doctrine of his school (madhhab aybdbind) leads to the following theory: (mubtamio likely but to form more entail The imperative it is also imposes a single obligation, it is the the The that what imperative of minimum entails solution than that. most appropriate be for for the the realised extra can only extra, form means, until an additional indication calls

5) (Fusifl, 11,13 throughan externalelement.

104 Jaýýdýdoes not clarify whether this formulation is to be regarded as different from the one attributed to the majority; but he is most likely to consider it to be the same view, as later in the argumentative part, he makes no distinction between them. The way Jaýýdýinterprets the imperative form as implying takrar, however, will play a role in his reconstruction of the continuity of the religious obligations of shari'a. There seems to be an ambiguity on the part of the Ijanafi- school regarding the true doctrine of the school on the issue of takrar, as Jaýýaý feels a need to justify his version of the school doctrine with reference to the school parameters. Thus, he cites legal from the lianaff corpusjuris (fura'al-ftqh), a case

he thinks, proves that which,

this is so. The case is from the section on marriage dealing with the utterance of divorce phrases; a man says to his wife 'repudiate yourself (talliqT nafsaki)', an expression which gives rise to the question of how many taldqs are delegated to the by this expression. According to lianaff law, notes Jaýýdý,this gives rise to a wife delegation the single instance of of the right of divorce by the husband. There is also the possibility of three taldqs (the maximum right of divorce possessedby a husband Islamic law), be if husband he to the that according which can realised confirms intended three at the time of utterance of this delegation. In other words, Jaýýd*takes the expression 'repudiate yourself

interprets it as a command and as entailing a

former is from The the command understood minimum and a maximum amount. itself, while the latter needs an extra element to be realised, that is the intention of the husband. The minority view is that command entails takrar, unless a contrary indication proves otherwise. B. Arguments. Having identified the dispute and the parties to that dispute, Jaýýdý, first his defend the the to one, using a number of school, position of as usual, turns arguments.

1. The first and foremost point Jaýýaýmakes in order to prove that a command has is kind that do single performance a claim to consensus of a repetition with nothing be for him is by to the the relieved of ground agent a sufficient of the act commanded demonstrates JaýOý, In by that this the a of view a command. obligation imposed it be would not otherwise more, single obligation, nothing a imposes command be he be from to the for to required the would obligation: released agent possible be does This that third not suggest a secondor performancecannot keep performing.

105 but first that the the merely states called performance of performance command, by the satisfies a command. requirement made 2. The second point is that the concept of takrar, by definition, connotes plurality and imperative form is devoid. Associating the which number of performances, of form be by this the use of external and plurality with can only possible number elements. 3. Like any other idea, the concept of repetition is expressed by certain words kull (each, kullama (every to time), etc., which obviously every), assigned it, such as fact does to the that a command not include these repetition words. calls attention 4. The fact that the concept of command consists of the imperative form, which is a derivative form, makes it possible for the jurists to draw conclusions from it by is just That to say, as a statement, such as comparing commands with statements. 7aid entered the house', expressesa single instance of entrance, its imperative form (enter! ) means nothing but a single command to enter. The common point in the latter three arguments is that the concept of command be construed to mean other than imposing obligation, and in particular, it should not has no reference to the concept of takrar. This plainly assumesthat a command is formula being in its form the imperative ubiquitous original sense entails, what the his In Fusifl. the arguments assume other words, throughout the topic of command in formula. this truth had the of that the opponents already acknowledged fulfilment fact from the that the of a command is not A possible objection might stem In be but times. to immediate, words, whenever be other all extended to may required be the he same as performing considered will the agent performs the command, that Jaýýdý, therefore, absence of imaginary a The concludes of opponent command. by however, this to Jaýýaý, objection replies time limit suggests a constant obligation. has is That the that to inherent opponent say drawing attention to the pitfall in it. he be the would the command, that, performs agent as soon as already acknowledged the it time or the command of utterance from of the at is whether obligation, released later. baduh: following fifth to the argument, resorts 5. Ja55ds,in the

106 Aqra' b. ljdbis once asked the prophet -peace be upon him-: "Is the Pilgrimage every year or once?" The prophet answered: "No, it is a single Pilgrimage, if I said 'yes' it would be (Fuýifl, 11,139) fail then to obligatory, you would perform it and go astray.

According to him, this ýaduh proves his case in three respects. Firstly, if takrdr was from the command to pilgrim, Aqra', as a man of language, should understandable have it. Secondly, the prophet made it explicit that the Qur'anic not asked about command of Pilgrimage refers to a single obligation. Thirdly, his words "if I said cyes' it would have been obligatory" indicate that it was his word that would have made takrar obligatory, rather than the Qur'anic command. A natural objection is interpretation, to this raised namely if Aqra' understood what he should understand, did he why still inquire about it. Ja*ýdý replies to this by saying that Aqra' enquired duty the whether of Pilgrimage is every year, after he took for granted the single obligation. 6. In the previous chapter, Jaý§dý has drawn parallels between command and in his to prohibition order support case there. Here, however, he states that, as far as the issue of takrar is concerned, command is not similar to prohibition, as the latter from in The the that, entails constant abstention prohibited act. reason is such did house', interdicts " Zayd the the not enter a prohibition constantly statements as it be a positive request, which can prohibited act, whereas a command makes fulfilled by a single performance. 7. In the concluding argument Jaýýdýreplies to another polemic which states that a belief but the a in obligatoriness of also only an obligation, command engenders not is belief The that the act commanded. a constant activity, since opponents argue Jaýýaý due be to to their too, again mind. resorts in occurrence so should obligation his usual argument that a single performance will release the person, not only of his he In believe his that but to under obligation. is to obligation also of act, obligation but it be times, belief to is superficially present at all appears other words, this latter ftilfilled, the that, the is as soon as obliged act, so actually associated with belief will also disappear. This distinction between action and belief will resurface in have but Shdsh7i, MdtuffidTi there a more it will scholars, including the writings of positive role.

107 Conditional

commands.

In the anti-takrar camp, there is a controversyabout whether those commandswhose fulfilment is tied to a certain condition (shart), attribute (fifa) or specific time (waqt) are to be regardedas the sameas the unconditional ones in relation to the matter of repetition. The following Qur'anic passages are the examples of conditional commands: Whenyou standup for prayer,washyour faces (Q 4,6) Whenyou leave 'Arafdt, rememberAllah (Q 2,198) ...

According to Jaý§dý,there is no difference between conditional and unconditional in commands the Hanaff school, the reason being that the corpusjuris of this school does not distinguish the former from the latter. For example, the solution of the case in which a man says to his wife 'If you enter the house, you will be repudiated (idhd dakhalti al-darfa-anti

tdliq) I is that, as soon as the wife enters the house, she will be

repudiated. If she enters again, she will not be repudiated a second time. On the other hand, continues Jassds,when the husband says "every time (kullamd) you enter the house, you will be repudiated", the talaq will repeat every time she enters the house. In the latter case, the phrase kullamd means repetition, whereas idhd refers just to the time of occurrence of the talaq as a condition. The fact that Jaýýdýappeals to the 1[janafi-corpusjuris to prove the lack of difference between the two types of commands strongly suggeststhat he was, in fact, primarily fail he does However, intra-school to not provide a controversy. an addressing For instance, be that regarding used against any opponent. could universal argument is first (the he that the example which raised, argues objection verse), an cited above denial of repetition in this wu4ci'(ritual ablution) verse would lead to the suggestion is Jaýýaý's that there that this command requires only a single wu4ct'. answer reveals he determines the in the the asserts repetition, as verse which context of something faces... ' for 'When actually your prayer, wash you stand up that the command impurity. He hidden states: ritual of namely repetition, cause a contains The (command) expression there does not include the second performance, but only a single however, (and through the The is included second performance more), of obligation one. 'when for For, (min the tariq you stand actual intention is: up al-ma'iid). internal reasoning

108 prayer (while you are ritually unclean)'. Since the ruling is tied to the ritual uncleannessrather than standing for prayer, ablution becomes necessary every time someone stands for prayer

11,144) (Fusill, he while is ritually unclean.

Thus, it is the words of takrdr or any other contextual evidence that requires repetition, while the imperative form entails only a single obligation, even if it is here Jaýýdý doesnot formulate an explicit criterion on the basisof which conditioned. distinguish the contextual reference to takrar from the conditioning elements. we Since he accepts that in this passageabout wu4a' there is this presumption of a hidden element that leadsto a repeatedobligation, how can one distinguish it from a conditioning qualification? The answerto this objection, which can be gleanedfrom is above quotation, that a conditioning element becomesthe sign of takrdr when the legal ruling is basedon it. A vague link between the imperative

and ftkrir.

Before closing the chapter,

Jaýýdýbrings forward certain examples in which a kind of repetition is suggested.As beginning, he formulated the the opinion of the school as being that the we recall, at imperative form entails a single obligation, but may also imply (mubtamlý repetition, though the latter implication

into existence through external can only come

indications. In the following Qur'anic passage(Q 17,78), he tells us that repetition is possible: Establish the prayer at the going down of the sun

Similarly, in the legal case where a husband tells his wife 'You are repudiated in "li 1i (anti the three taldqs, taliq phrase al-sunna)' intending accordance with sunna fact is the taldq three to a which to al-sunna, periods of refer al-sunna" is taken be to In by the talaq repeating itself is considered other words, intention. revealed 'you declaration in three the are repudiated in these the periods, as repetition of with for 'Repudiate (Q 65,1) them (ri the thalathat al-athar)), or verse menstrual cycles their "idda (waiting period)".

(d. 221/836) b. Abdn 'Tsd judge jurist famous lianafi on the Jaýýdýquotes the and Vi 'iddatihinna' have 'Tsd the to as phrase latter Qur'anic passage. interpreted is said distinction the to three both taldqs a reference without making and single covering by form, imperative implications implicit as proposed of between the explicit and dulak (at Vi the to the this He going phrase al-shams reasoning Ja**dý. also extended

109 down of the sun)', in the previous passage, i. e. he interpreted it as entailing takrdr. Ja*ýdý however rejects this interpretation stating that although the form is likely to indications, in the takrdr, suggest absence of additional it means only a single for is here fact The Jaýýdý link, the thing that obligation. us important admits a though a vague one, between the imperative form and the concept of takrdr. To sum up, the problem of takrar is dealt with in two sections of the Fusifl, one about former, Jaýýd* In the the and other about conditional commands. general commands tried to establish that the imperative form itself, and hence the concept of command, but form itself implication the takrar, may imply an entails only a single obligation, be In through external elements. the second section on conditional realised which can different from There it is that these concluded are not general commands. commands is, however, an ambiguity in the explanation provided by Jassds of why certain conditional

different commands are

from

the others in

implying

takrdr.

Consequently, he provides no clear theory of how the continuity of religio-legal duties of Islam are established if we do not deduce them from the commands of the

Qur'anor sunna. 11.Dabfis! and takrgr bukmuhri 'al-qawlft Dabiis! The Views. A. al-takrartitle of al-amr madha reads as he On for its is this takrdr". discussion question implication on command: what a

lists four different views: is there takrdr, a contrary 1. Some contend that a command entails unless indication. 2. Others argue that a command is not explicitly related to the concept of form. This the is latter imperative within the possibilities of takrar, but the by be element. however, external an activated only can possibility, form between the this and 3. The third group rejects any sort of connection it if but in it is a accepts situation, takrdr unqualified an concept of

conditional command. (al-ýahib), in his the correct view opinion 4. Finally, Dabfis-ipresentswhat is to the form concept related implicitly the explicitly nor that neither is stating

110

of takrdr, but that it involves two possibilities within its referential scope: the whole of the commanded act and its minimum certain part (yabtamil kull bih wa ba `4ah). Dabas-I then adds that since 'the whole implication' cannot be realised without the help of an external element, the

al-ma'mar

form explicitly covers only the minimum implication. A quick comparison shows that the number of groups varies in DabilsT (four) from that in Jaýýdý (two). The difference arises from Dabiis-i's interest in defining the borders of any view even by pointing to the minute details, with the result that he groups seemingly similar views separately. Although the only two main opinions - namely the positions of about this matter are the opposing views described by Jasýaý, takrar and anti-takrdr, Dabils-1,on the one hand, brings the debate on conditional commands within the main debate on general commands. On the other hand, he treats those who hold the anti-takrar view as falling into two separate categories: those who reject any sort of connection between takrdr and the imperative form, implicit implicit link between those these two. explicit or who admit an and A close comparison, however, reveals that Jaýýdýmentions even this latter distinction between these two groups, though rather vaguely. This vagueness is caused by the fact that JaýOý does not make it clear whether he sees the view of his school as different from the majority view. According to him, the position of the Ijanaff school is that this form in fact includes the possibility of takrdr, a view which is description in his by Dabiis-i the of the school version of categorically rejected introduces however, Dabiisl lnterestingly least the theoretically. same position, at idea of the form having the possibility of takrar in a new formula mentioned above, i. e. the form, though it has nothing to do with the concept of takrar, is likely to its This both the the amount. minimum opens commanded act and whole of suggest the way for claiming a certain degree of repetition for takrdr. B. Argumentation.

We can now move to the exploration of the arguments of these

first the one: groups starting with 1. Proponents of takrdr. This group appeals to four arguments: from for informs the this that DaWs! main argument 1.1. view comes interpreting us in is Jaýýdý (see It b. lidbis 106). Aqra' ýaduh mentioned above interesting p. the of

ill

that both camps use this baduh. The proponents of takrar argue that the very fact of the existence of such a question about bajj (whether it is an annual obligation or once lifetime) it that the in a proves command about is actually ambiguous. Once this is ambiguity accepted, the problem turns out to be one of 'umam and khuyaý (generality and specificity). According to the general theory of Islamic law, a general term should cover all the implications it has, unless a specifying indication qualifies it. Besides, argue this group, the form includes, as accepted by all, both a whole and (al-kull ), a part wa al-ba'd which once again makes it an issue of the generallity, i. e. . the whole has priority over the part. They then conclude that if the form leads to is is this generality, what meant by takrar. 1.2. The proponents of takrar in the second argument cite a legal case from the imperative form is This the where expression an corpusjuris, in at stake. is the same have Jaý54, it for his to seen in case we who used establish version of the Ijanaff position. According to this case, if a man tells his wife 'repudiate yourself-talliqT nafsaki' intending three taldqs, the wife can exercise this right to validate three taldqs. This is becausethe imperative explicitly entails more than one talaq. 1.3. The supporters of takrdr advance a third argument based on the fact that most duty hajj, is the except of which major religious obligations are universally obliged, by lifetime to another piece of evidence provided a single obligation in a restricted by the sunna. This, they argue, can only be explained by the assumption that command entails takrdr. 1.4. Finally, comparing the imperative form with its opposite, namely the prohibitive form suggests that imperative form should be considered as entailing a universal interdiction. leads forin to a continuous undoubtedly obligation, as the prohibitive form This that the takr9r. contains 2. The proponents of possibility of group admit from differ but the their takrjr, majority in to the of concept no explicit reference form likely it. In the to is linguistically form to is words, other the open claim that Jaýýaý have We that if above the seen it. require takrdr circumstances suggest Ijanaff is the the this that of this position even claims view and with actually agrees between this and the view of the previous camp is difference The school. be latter to in this those referred as correctly that can view who support fundamental between direct for the the they theoretically relation reject the anti-takrdr camp,

112 hence rm, command, and the concept of takrar, if there is no external requirement. In fact, apart from the first view, all these views can be placed in the anti-takrar camp since the difference among other three views arises from small imperative

variations. We have already seen hints as to the main argument proposed by this group. That is that the linguistic form of the imperative does not consist only of the form, but also of a presumed noun, which together makes up the command sentence. Thus for example, the command 'ýalfi- pray! ' is in fact the abbreviated version of the sentence c,yalli. yaldtan-perform. a prayer'. This noun, they argue, is presumed out of necessity, in order to correct the command sentencegrammatically. Thus they argue: This noun should be an indefinite one, for it is presumedas an indirect implication of a word (muqtada' al-nayy), not as an explicit meaning of it. The need for a presumption of a noun thus comes out of (grammatical) necessity, which can be redeemed by an indefinite noun. (Taqw-i 17a) ,f

Having established that an indefinite noun can satisfy the need for this presumption this group concludes that an indefinite noun in a positive context has a particular effect rather than a universal one. By this conclusion, on the one hand, they refute the ('umam) in first the suggestion of generality made argument above by the proponents hand, between On they the the the imperative and takrdr. other reject similarity of for latter function in forms, the a negative context, thereby enabling prohibitive generality. Although, as said, this group is within the anti-takrar camp, they differ from the latter by accepting the possibility of takrdr as the implicit implication of the imply ', form. Thus, that the they more than one command yalli' may argue imperative it by '. In the prayers'. saying yalliyalawat-perform specifies speaker prayer as when this case, the second part, ',yaldwdt', is construed to be the exposition (bay'an) of the form. In other words, it is the possibility of the form that allows a noun to be plural. 3. Proponents of takrjr

in conditional commands. This group too admit that, in

has do but the to takrdr, with concept of nothing normal circumstances, a command different, be that regarded as as these are they assert conditional commands should bound to continuous conditions. As soon as a condition is repeated, the obligation be For duties it to repeated. example, certain are tied to a time should also that is tied

113 cycle, such as prayer and fast; while others are tied to having a certain degree of in Similarly, wealth as alms giving. certain punishments follow the commission of certain offences. It seems that this group consider these conditions as the external elements of takrar, which if absent, an imperative form is not likely to suggest. 4. The Ijanafl view: the "true" anti-takrAr

position. It is now clear that the Uanafi-

display to takrdr position on seems a certain degree of ambiguity, as there are two different formulations proposed by Jaýýdý and Dabiisli. They both agree that the Ijanafi- school's position clearly rejects an explicit connection between the concepts of command and takrdr. Then Jaýýdýadmits that the imperative form may suggest a kind of takrar, an assertion, which Dabiisli describes as one of the views opposing the Ijanafi- position (the second view above). We shall see below, however, that the difference between this and Dabiisl's version is not as clear as he tries to project it. Dabfisl's argumentation is in two major parts. In the first part, he categorically rejects link, implicit, between the concepts of command and takrar, explicit or any sort of imperative form has his idea he that two tries to the an substantiate second, while in implications, a whole and a part, by using the concept of genus. Alongside these two Jsd b. In by jurist, Abdn. 1janafi he discusses the a quotation an early main points, by badi-th Aqra' he the proponents of the to tries cited of explain why end, also takrar cannot be used for that cause. by his 4.1. As usual, Dab-Cis-1 analysing these supposedly argumentation starts he Thus takrar. says: connected concepts of command and The concept of takrar linguistically means recurring once and again (al-'awd marratan ba'da Therefore finite for the An second movements. up of made it is action cannot recur, ukhra)'. It first takrdr the called the metaphorically is only one. as same action is certainly not (repetition), becausewhat recurs is only a similar action to the first. Thus this (what is called like (al(al-'addd) together, digits fact that entities physical come or numbers takrdr) is in jaqwim, 'a'ydn) coming together.

Having defined the nature of takrjr

f 17a)

Dab-as-I that no one can remarks as numbers,

form linguistic the between the the concept of and imperative of claim an association house' 'enter to the whose an action, A only refers as such command number. does 'entering'; defined in any number of suggest total not it as are movements enterings.

114 Once again, Dabas-i resorts to the common taldq case to substantiate (as well as to explain) this theoretical analysis in the light of the school's corpusjuris. A husband's command to his wife, 'talfiqT nafsaki-repudiate yourself with the intention of two taldqs is not valid, due to the fact that the concept of taldq is not in any way related to the number 'two'. since it is related to the one or three taldqs, as will be explored below. What cannot possibly be included in the term cannot be attached to it by mere intention, but would need a clear expression. After showing the distinct nature of these two concepts, Dabiis-i answers two issue, to this objections related one about religious obligations and the other about the supposedly exegetical ('ald sabil al-tafsTr) phrase of takrar accompanied by the imperative form. As regards the universal character of major religious obligations, which is held by the proponents of takrdr as evidence for their claim, Dabiis-1propose an alternative solution. He states that this universality comes from the universal nature of their ratio legis ('illa), i. e. a religious duty becomes constantly obligatory by the ever-recurring its by the Lawgiver. In other words, it is not the command cause assigned nature of in the first place that entails continuity, but it is the ratio legis of these religious duties that makes them universally obligatory. Regarding the second point, we recall that the takrdr camp made an assumption that imperative form by the the an expression of accompaniment of what makes possible takrar in an expository manner ("ald sabF1al-tafsir), is the fact that this form carries Dabas-1 it the this takrar. the assumption on ground challenges of possibility within that such an accompaniment is not exegetical but "alternating" ('ald sabil alin in 'twice is times' the three That the to say, example or taghyir). second part, 'repudiate my wife twice or three times' does not expose the implicit meaning of the first part, but rather alters it from a single talaq, which is its normal consequence,to the like It changing normal clause two or more. an exceptional or conditional is outcome of a sentence. fact Despite the the the 4.2. The concept of genus and commanded act. whole of between implicit both flatly amr and connection an explicit and rejects that Dab-Cis! his After find this topic. treatment traces to takrdr it of of in takrdr, is still possible be to the anti-takrdr position. to link, there add anything no need would this rejecting

115 Interestingly however, Dab-Cis-1 introduces a new interpretation of the Hanaff position, includes which a combination of the concept of genus with some points made in this chapter. One of the points is that a commanded action includes a whole and a part, an assumption which is said to be used by other groups, too. Another point is that there is a presumed noun in every command which is indefinite, and therefore particular because of the affirmative context of command. Dabiiýi starts by pointing out that the verbal noun, derived from the same root as the imperative form, is in fact a generic noun. A generic noun, such as water, food, cloth, etc., can refer to two things, one being the minimum (a cup of water, a single piece of food and a single cloth), and the other the maximum (water, food and cloth in Similarly general). a command such as 'enter the house!' gives rise to a generic noun 'entering'. Once this assumption is accepted, i. e. the consequence of a called is be basis to the command judged on of a generic noun born out of it, the question then is this: does a generic noun entail, in an abstract situation, its minimum or maximum consequence? Dabiisli's answer to this question makes a distinction between general terms (alfd.; al-'umam) and generic nouns (asmd'al-ajnds), in that the former in theory denote all of their consequences,unless it is specified otherwise, latter the whereas normally refer to their minimum consequences,with the possibility implication. in 'the Later the types of general to the section on maximum of referring terms', however, he accepts that a generic noun is also a general term, but that this first and foremost denotes its minimum implication, although is also likely to cover the maximum meaning, if an additional indication requires it'. Nevertheless, Dabiis-i does not adequately justify the basis for his excluding the consequenceof a generic in here terms. from the terms, the that on general chapter either or general of noun Dabu-s-iexplains his theory again in the light of the famous taldq case. Here the is three is talaq whose maximum taldq, and a single is whose minimum generic noun is its but by the both this explicit minimum only noun taldqs, i. e. are suggested implication, while the maximum needs an additional indication. That is why, when but becomes his intends this three taldqs in a valid statement, command the husband in lack be it to to the if he intends two would of reference number the invalid, owing term taldq. his Hanaff the the Jassds position, namely version of authenticity of Just as claimed Dab5s-i that this takrdr, the form of also contends case possibility contains that the

116 is likely it It Jaýýdý's his that the proves most was version. claim of authenticity of find Dabiisli formulation basis that to the this authenticity on prompted case a new of which would enable him to reject any connection between amr and takrar and, at the into legal his Furthermore, despite the time, to theory. same cases accommodate such in formulations jurists, Dabfisýfi the these two apparent variation of seems not to see difference between his his that any view and of predecessor, as he makes no attempt to apologise on behalf of Jaýýd5.As we shall see below, he agrees with Ja5ý55in Iianafijurists issue to the rejecting a view ascribed one of on an related to takrar. The formulation

10 b. Ab5n. Like Jaýý4, Dabiis-i comments on a statement by of

jurist, M-asd 'Isd b. (d. Ijanaf-i Abii Abdn 221/836). The statement reads as an early

follows: If a commanded action has defined limits (nihaya ma'lfima) it is possible to take it in its generality, unless a qualifying indication specifies otherwise, due to the parallel situation in the

(Taq than verbs. generaltennsother

,f

18a)

Since this formulation suggests an analogy between a generic noun and a general distinct. it has he Dabiis-1 that these two term, are already made clear rejects it as Besides, he says, this is against tradition, for in the above case, the term taldq, if implication have there limited three, being the of is an though only concept, can a intention that this should be the case. It should be noted that Dabfis-i's presentation of the formulation

is different 'Isd of

from that of Jaý§d*, who appears to have been unaware of the distinction between undefined

'Tsd's Jaýýdý that Instead, defined view as a phrased commands. and

both minimum command covers latter an implicit

the making without and maximum consequences

His by be an additional indication. realised only meaning that can

it Dabiisli. defined "the be is interpretation seems to commands" of compatible with from directly jurists both they any of from quoted whether the of accounts not clear 4 'Tsd that at the time or whether it was only a piece of

the works of

were available

,

We interpretations. therefore are information current in the tradition allowing various is by Dabiis-i distinction determine the a genuine to made in whether a position not by Dabiisli. his isd interpretation is it himself by words of an only or one proposed in in Jaýýaý, the distinction next to this see we shall as who, Absence of any reference

117 is chapter, very keen to account for the views of Isd by directly quoting his books, Jsd's Dabiisli's is that suggests version possibly only an interpretation of words.

Dabfis-i completes the section on takrar by answering an objection made by its proponents on the basis of the badi-th of Aqra'. He states that the reason for this companion's asking the question whether the bajj command entails a single or continuous obligation might be his hesitation on the matter, due to the fact that other commandsincluding prayer and fasting are all universally obligatory. As far as the structure of this chapter is concerned, this objection should have been answered immediately after the case for takrar was presented, as Dabiisli there replied to two other objections. There is no point in making a great issue of this here, it be either a mistake by the copiers or alternatively it suggests that since must Dabiis-1did not find time to edit his book. Summary. Comparing Dabiis-i with Jaýýd*, there is a difference in their formulation far As the takrar. school position of on as the structuring of the chapters and the justify Dabas-i's Taq to these points are concerned, presentation of arguments he be his to seems represents a clear improvement, as more in control of material. Like Jaý§dý,he presents it generally in two parts, one being the description of the being different the argumentation. the other views, and subject, which includes further draws the lines between different groups by giving each group an Dab-Cis-1 for itself He defend technique this to as a manipulative actually uses opportunity introducing certain points in the words of his opponents, which he explores later in language. is in The improvement his Another technical the thesis. own presenting ideas which are present in Jaýýdýin a diffused manner are given an explicit presence in DabiisT, who develops technical terms to express them. 111.Sarakhs! and takrdr JaýýWs. Dabiis-i's line is than SarakhsT's treatment of takrdr A. Views. with more in This is most probably due to the difference between the latter two jurists about the follows Dabiis-i's Sarakhs-1 lianaff this the formulation matter. on position of correct latter follow leads him the the to of presentation in version, which obviously he the takrar, the As of on problem with views presentation starts usual, arguments.

his the as school presented which is always own position, of and an articulation

118

position. The four positions of DaMis! are reiteratedhere with slight differences.The first striking difference is that Sarakhs-i,following his usual pattern, gives the names figures of or groupswho hold thesepositions. 1. Thus, at the beginning, the correct view of the school (al-sahTh min 'ulamd'ind) is expressedin the following terms: madhhab The imperative form does not entail takrar, nor is likely to suggestit (1a tqjib al-takrdr 1d tabtamiluh), but commanding an action entails the least of what its genus wa constitutes (adnd ma yakCinmin jiinsih), with a possibility of entailing the whole ('ald ibtimdl al-kulo. However, this whole can only be assertedby an (extrinsic) indication. &sRI, 1,20)

Sarakhs7iimproves Dab-asl's formulation by bringing to the centre of this the concept of genus, which had previously played a lesser role. We shall see the significance of this for the justification of the dominant view later. 2. A few Hanaff jurists, while agreeing generally with the above view, contend that conditional imperatives entail takrar. 3. Sha-fi'-i is said to be of the opinion that the imperative form does not entail takrar but is likely to suggest it. 4. Finally, the famous student of Shdfi'-i, al-Muzan-i is said to be of the view that the imperative form entails takrar. The authenticity of these ascriptions can be questioned, but the important point here figure in keen find his be Sarakhs-i to to that every opinion a supporting very seems is list. The purpose of this might be polemical, since from the presentation of Sarakhs-i between first fundamental is impression the two there that the contrast a gets one fact, In by Shdfi'-Is. held latter Hanafis by the held two, the the as seen in and views, Jaýýdý,the view ascribed here to Shdfi'-l is also presented as the correct view of the Ijanaff school. If we leave aside the practical aspect of the problem and concentrate, his between difference that the theoretical SarakhsT, the and of position side, on with line being he Later, the Shdfi'l is trivial. more in with even refutes second view as in like Sarakhs-i, lianaff Besides, the previous thinking. than Shdfi'! thinking with debate the to the tries to circle command, the confine of of consequence on chapter (fuqahd'). jurists

119 B. Argumentation.

Like Dabiisli, Sarakhs-1starts with the position furthest from his

be being last to the explicit this takrar the which considers own; view above, consequence of the imperative form. Then comes the view of Shdfi'l that takrar is implicit but In an one. the third place, the views of those not its explicit consequence, different who consider conditional imperatives are stated and subjected to criticism. Finally, as usual, the main thesis of this chapter, the first view above, is justified by a is difference There between Sarakhs-i Dabiisl not much number of arguments. and in terms of the points explored in the arguments. The difference actually lies in the his by Sarakhs-1 explaining advances predecessors' points sometimes presentation. them and sometimes by organising them in a way which would not have been first famous ýaduh by Dabiisli Jaý*dý. The the of or group who cite recognisable even Aqra' as evidence, for example, improves this argument by asserting that the fact in language (min Aqra' which makes was an expert ahl al-lisdn), a companion his question more meaningful. In rejecting the view that the conditional imperatives by Ja*ýdý Qur'anic Sarakhs-i the takrdr, verse cites interpretation of a certain entail (see above), on the basis of which he claims that it was Shdfi'-l who held this view, an implication which is not noted by Jaýýdý. Sarakhs-ialso takes on board a solution by Dabiisli that takrar in the major religious-legal obligations is achieved proposed by reference to the theory of cause (sabab). The famous talaq case is also employed by Sarakhs-ito justify the Ijanafi position and explain different views. Nevertheless, the major contribution of Sarakhs! is his focus on the concept of genus form is idea The the that Hanaff takrjr. the on proposal of part as an integral form verbal noun a and a comprising sentence a of version actually an abridged first He his tries to cut background too. in is to the derived from that verb argument by takrar the concept of the supposed connection between this presumed noun and takrdr the (yighat of is concept whereas the al-fard) that singular noun is noting He (jam). says: obviously associated with plurality form does imply (ýaqTqa) literally does not singularity, a singular Just as a plural form not Zayd, neither implies which the as such true nouns singular as in sense, imply plurality in a 11 24) (ILSkI, plurality nor number.

between link this literally presumednoun fact there whatsoever that no is Despite the kind implication has a allows the which a particular takrdr, noun of the concept and He it designate does Sarakhs-1 takrdr. though again as hence not takrdr, of plurality,

120 refers to the distinction between two denotations of that presumed noun, i. e. the least (al-ba "d) and the whole (al-kulo- Till now, there is nothing new, since all this is drawn from Dabiisli. The difference starts with the exploration of the singular noun (ism al-fard) in the light of the concept of genus. He states: The least denotation of this noun is singular both in form and in meaning (,Yaratan wa ma'nan), whereas the whole denotation is singular only in meaning as being a generic noun. For if you compare it with other generait refers to a single genus.But it (the whole denotation) is plural in form. In the absenceof intention, this form will suggestonly the one that is singular both in forrn and in meaning, but there is the possibility of the whole as it is singular in meaning. Like the noun 'insdn-human being', which is a singular noun having parts and species. The noun talaq is also the same; i. e. singular with species. The intention of three taldqs is therefore valid, but the intention of two is not valid at all, for there is no singularity in (jLskl, 1,24) form in it, neither in nor meaning.

By drawing attention to the distinct character of generic nouns, i. e. singularity in despite being Sarakhs-1 failed Dabiis-1 to achieve, meaning plural, achieved what distinguishing from Since Dabils-i terms general accepted that generic nouns. namely he generic nouns are a sub-category of general expressions, was unable to clarify the in in former that the this the a presumed noun particular case, namely peculiarity of has form a specific effect rather than a general one. imperative Sarakhs-icompletes this chapter by using two quotations. One is the same quotation from 'Isd b. Abdn that is used by both Jaýýdýand Dabiisli. He again combines the two 'Tsd's by these two view, which we noted above are jurists of accounts given different. Sarakhs-1takes Dabiisl's account as a basis and then incorporates Jassds's. from Jaýýd*. We The that of other quotation is without giving any reference at all. have seen that Sarakhs-iin this chapter on takrar generally followed the system of followed in from Jaýýdý the is different Dab5s-il which in the reasoning especially by Jaýýdý developed to He, the justification. in order therefore, quotes argument in habit he but the further, of bolster the anti-takrdr position is not generally since he it his that ideas he possible is the to scheme, into incorporates giving references does not fully endorse Jaýýdý'sreasoning.

IV. Pazdawl and takrdr is `um has Rm that is an additional word, The title of Pazdaw-i -generality), which fact Pazdaw-i Given that the the takrdr. considers word of used as an interpretation

121 the imperative form a specific term, his choice of the word 'umcim serves a polemical four in different listed favour Again the purpose position. views are on anti-takrdr of the problem of takrdr, these being the same as those of DabUs-Iand Sarakhsl. The famous talaq case, which is used by all the jurists to explain these different views in Ijanaff to the takrdr and authenticate position on plays a more explicit role Pazdaw-I'sexposition, in that he uses this legal case primarily for a didactic purpose, to illustrate at least three of these different views. Thus he states: The example of this principle is that when a man says to his wife 'repudiate yourself or to a third person 'repudiate my wife', according to some, it will effect three talaq-s; according to Shdfi'! it implies two or three; and according to us, it will effect only a single one, unless he intends three. (Kanz, 1,122-123)

The rest of this chapter in Pazdawl is more or less the same as in Sarakhs-i.That is, he first presents the arguments of the takrar camp, then the arguments of Shdfi'T, followed by the views of the minority of the Ijanafis who consider conditional imperatives to be entailing takrdr. Regarding the justification of the lianaff position, Pazdawl omits the analysis of the focuses Sarakhs-i, in the both Dabiis-i found entirely on and takrar, and concept of idea of genus as developed by the latter for a specific purpose of differentiating here differences Although from there terms. and the general are slight generic nouns Sarakhs-i, improvements do the have to presentation of of there, which mainly with Pazdawl's account follows the former almost word by word. V. Sh5sh! on 'commanding an action does not entail takrjr

(a]-amr bi a]-Ft 7 Id

yaqtadial-takrir) is The abridged character of Usiil al-Shdsh-ias well as its post-classical nature again have discussion kind failing the we by to of displayed the provide author generally full does he For account a provide not in generally the instance, previous works. seen doctrine the the school of states only dispute and parties, participating with all its of a he In takrdr, the even states it on chapter defends opponents. anonymous against and function this the that All of and this aim strongly suggests this doctrine in the title. it Thus its doctrine the is not a stage. the mature in school of work are to articulate to the formative prior chronologically the belongs to of uýCil al-fiqh, period that work to it. Jaý*dý, contemporary a neither work of

122 Shdsh-ifirst cites three legal cases,which probably aim to establish the authenticity of the above statement within the Hanaff tradition. This is, as we have seen, a common jurists, its lateness. to the concern of all and adds nothing our claim of previous Then, however, he substantiates the above proposition with an argument apparently introduced by Dab-as-1, but uses it in the form developed by Sarakhs-iand Pazdawif. This is the argument developed around the concept of genus. We even find in Shdsh-i that two differently developed ideas are brought together to explain the universal That idea to the that takrdr in religioof major religious obligations. character is say, legal obligations, as we have seen in Dabus-1,Sarakhs-iand Pazdawl, is achieved through the medium of a legal cause (sabab). In their formulation, continuity in these be by but by idea legal to the achieved not command of cause, a obligations appears from Hanaff Shash-i the even or someone which provoked opposition circles'. claim before him solved this problem by bringing the concept of genus into play, in that the takrar achieved by the legal cause is brought under the umbrella of the imperative form by realising the potential of the generic noun that is said to be present in it. In form link between initially takrar the reand an imperative rejected other words, developed independently itself two the thorough explanations. combination of asserts He exemplifies this as follows: The obligation in the time of noon is the noon prayer. The command is directed to the The Then the time the also repeats. this obligation repeats when obligation. performances of the whole genus of this of covering result as a necessary obligation second command covers The fast repetition of the repeatedrituals occurs with this the obligation, whether it is or prayer. (Shds takrdr. that the than entails a command way with way, rather

,

13 1)

123 Table 3. The develonment of the theorv of takrdr Author Continuity of religious duties Different views No clear understandingof how to explain continuous I. Takrdr becomes 2. (a Anti-takrar the sign religious obligations; a condition possibility Jassfis based it. is the takrar, takrdr of when rule is on of accepted) 1. Takrar depends The 'illa (cause) 2. Possibility the takrdr continuity on of of the Dabfa-sl 3. Takrar if command is rule establishedby the imperative form. conditional 4. "True" Anti-takrdr I. "True" Anti-Takrdr Sarakhs! The continuity is achievedby the theory of sabab 2. Takrdr if command is imperative by (cause) the the of rule established conditional form. 3. Possibility of takrdr 4. Takrdr 1. Takrdr Pazdaw-i No mention of this problem, in this context, but he 2. Possibility of takrdr 3. Takrdr if command is acceptsthe samemethod as Sarakhs7i conditional 4. "True" Anti-takrar By a combination of the theory of sabab with the 1. "True" Anti-takrdr ShAsh! Hanaff theory of takrdr

Summary and discussion The fact that all these jurists have felt the necessity to justify the view with which the has there that in to not their opinion, seems Ijanaff school is affiliated, suggest by Jaýýdý, The takrar. proposed view earliest on view agreed unanimously emerged a DaWs-1 list the in the one of as of takrar, the appears of possibility with anti-takrar between lines drawing by jurists, latter The Uanaff one. opposing views to the in (four total), takrdr seems the which on views multiplied views, seemingly similar

been have Dabiis-1 to Pazdaw-i. by SarakhsT not been seems have and to welcomed that takrar, the arguing of Jaýýdý's that possibility concedes opinion with satisfied form takrdr. the between of link the concept linguistic and is imperative there no into this take to objection. "true" account view Instead, he proposes the anti-takror born the his out of noun a generic However, the second part of proposition, namely idea that He the idea. therefore accepts form, this initially rejected returns imperative form this imperative through generic the of there is a possibility of generalisation idea. this Pazdaw-1 then upon Sarakhs-I expanded and noun. the by displayed the of continuity development of explanation line is The same of the the recognised the Jaýýdý, explanation, of duties. point starting as religious During the of one theoretical explanation did explanation. but a provide not problem jurists. by be the idea subsequent that upon seized hints the would he at example,

124 That is the idea that an obligation repeats itself through the repetition of the ratio legis. Shdsh7ithen brings together this and the previous ideas to provide a more consistent explanation for the universality of religious duties.

References

There are three types of recognised taldq procedure in Islamic law; absan, basan and bid'a. The one which concernsus here works like this: The husbandpronouncesthree taldqs at once and the parties are separatedimmediately. This is in fact a reprehensiblemethod of talaq, but still a valid one. The sameas when the husbandfollows the basan (sunna) method, where he pronouncesthe talaq phrase in each of thesethree menstrual periods. Seeal-Margh-indn-i,al-Hid5y 1,226-227; Pearl, Textbook, , 100-102 2 Taqw-im,f. l6b 3 f. 58b Taq 5 4 None of Jsd's works seemto have made the way to our time. For him, seethe presentwriter's 'Early response'. unpublished article, 5 Shashi, 123 6 Abii al-Yusr al-Pazdawl, Hgiau*,38-40

PART TWO - SUNNA: KMBAR

AL- WAtIlD

126

Introduction In the following two chapters, I shall deal with two issues from the section on sunna or as most of our jurists put it, khabar. It should be recalled that the choice of these particular issues is again arbitrary, in as much as it does not aim to offer a coherent description of any particular theory of khabar. Rather, the primary aim is to trace the development of this science of uýal a-fiqh in the light of certain specific issues. However, it is necessary to gain an idea about the general attitude of the jurists towards khabar, and in particular, khabar al-wdbid, as well as their perception of the science of 1-ft h. a1a u.y q Before embarking on the analysis, it might be appropriate to touch on a number of points that will provide a background to the theory of khabar as understood by these jurists. This is so that we can place these two issues in a broader perspective. First of all, our jurists generally prefer the word khabar to sunna or badith, in their works, except Pazdawl and Shdsh7i,chronologically the latest two of our five jurists. These two jurists heading khabar; but the the term the section of use general only as a of sunna as heading: in the rest of the section, the term khabar is used. The terms sunna and ýadith in describe Muslim terms to the the classical employed prophetic material are standard terminology, especially among the badith specialists. The term khabar literally means "information" or "report" and can be used without religious connotation. It is probably this feature which motivated legal theorists to prefer the term khabar, since their prime by justify legal theory through to rational means and explore and concern was always The just to theory concern of the prophetic ones. all reports, not common constructing a basis for find i. the is theoretical here to prophetic report a e. epistemological, jurists (khabar) that renders it as a source of knowledge. This broader vision is attested by the various classifications of khabar. The first and

I. false khabar into divides true, three basic and neutral categories: a classification most is famous the city an example Common knowledge among people such as existenceof a is builder has building information that there that an example no exists a true report; of a determined be falsehood truth false without cannot a whose or report any and report; of a is When translated the this is into religious classification report. neutral a priori reason

127 sphere, yet another classification emerges, which classifies prophetic material in terms of yielding certainty in traceability to the Prophet. Prophetic material falls in two categories: mutawdtir and wdbid (or dbdd). The former corresponds to true reports, whose certainty is beyond any doubt. The latter corresponds to the neutral reports, whose linkage to the prophet is undetermined. Khabar al-wdbid in turn is divided into two further categories, wabid in the strict sense and mashhCIror mustaJIF4(lit. both meaning "famous" or "well known"). Again the basis for this distinction is epistemological. The widely-accepted/circulated character of wabid report among Muslims after the salaf (early generations)2, elevates it, in terms of authority, above the level of the wabid per isolated throughout. Finally, the claim of prophethood by false se, which remains is messiahs seen an example of false reports in the religious sense. As far as the legal theory is concerned, the primary preoccupation of the jurists, especially amongst the Ijanaffs, is with khabar al-wdbid. Khabar al-wabid can loosely be rendered as a report that displays a certain degree of doubt in its traceability to the prophet. The reason is that this category of prophetic reports, in particular, poses a for jurists, Ijanaff becausethey have a strong sense of belonging to the greater concern their tradition; but beyond that, the root of the problem goes back to the old controversy between the ahl al-baduh and the ahl al-ra ýy.Codification of baduh after fiqh should be included I have forcefully As Schacht the also and others among reasons. shown, the 'the law', including the tide traditionalism expense was at of ancient schools of rising of the school of ra ýyin Kdfa, virtually a name for the followers of Abil Ijan-ifa. Given that that emergence of uyal al-fiqh occurred after traditionalism established itself in the Muslim societies, it is obvious that the followers of the old schools of law were in find In by this triumphant traditionalism. the tried to trend this a place and constrained breaking Hanaf-is, the they the of rules of under suspicion always were case of traditionalism,

led to take them an extremely conservative which a phenomenon,

by This they ýadfth their that timeS3 abandoned towards suggests no means at approach . in tradition, that, the the they the school preserved always contrary, on original position; law (furCt') almost always remained intact from external incursions. The science of uyal is in its between legal bridge be traditionalist the theory, the to which main seems al-fiqh foundation laid down law the the the at end of second was whose and orientation,

128 4. Hijra A comparative study of the writings of the Ijanaff jurists on this century of is that there gradual tendency towards conservatism in the theory of science shows khabar. I shall firstly analysein this chapterthe authority of khabar al-wabid in conjunction with the legal acts.The analysiswill move onto an internal critique of khabar al-wahid, in the secondsection.

129

Chapter Five - Kbabar W-wifild and Legal Acts Introduction Muslim

jurists recognise two epistemological

categories in classifying

the Prophetic

first The is 'ilm al-yaqin (lit. certain knowledge), or simply one reports. expresses epistemological

'i1m, which

certainty, such as the consequences of mutawdtir reports. The

later be to second category was called zann (presumption), which implies that the report is not conclusive, but still has significance for the law. This significance is expressed 'amal (lit. deed), based legal the term to action or using referring a not on obligation epistemologically

certain knowledge, but on the high possibility

in the report, truth of

legal be though to to which, considered not qualified yield certainty, can constitute a 5. This is the below. khabar jurist to the talk about authority of are obligation al-wabid,

There The title, "khabar al-wahid and legal acts' is derived from the post-Dab-as-i period. in later jurists difference between Jaýýdý this their the of perceptions and is a significant issue. For, the later jurists are, largely concernedwith identifying the authoritative status issue is however, legal For Ja! in khabar the to primarily ýýdý, acts. relation of al-wdýid has implications khabar al-wdýid, which also about the epistemological value of in jurists in issue the treatment In legal the the of main acts. other words, concerning focuses This Ja! in fact this is on substudy 5ýdý. with only a sub-issue post-Dabfis-iperiod issue,while summarisingthe issueas conceivedby Jaýýdý. 1. Jaýý5ý and epistemological value of kbahar a]-wff,.bId The title of the relevant section in FusW reads as 'al-qaw1ft mfijab akhbar al-dýdd wa discussion ft biha the explaining on fl' al-abkdm-a md ma'ndh wa md yata'allaq 6. implications' Jaý*dý legal like, the isolated the related and reports and consequence of khabar that khabar alstates which al-wdbid, of this classification a provides chapter in in He three the be problem presents epistemologically certain. wabid can sometimes stages: Jaýýdý, two types; According to one which are of description. reports isolated Brief A. bestow indications due that ('i1m) to the knowledge certainty surrounding entails certain

130

it, do isolated those types on and reports which not constitute certainty about the of it is From Jaýýdý believes isolated this, that the that clear reliability of reporter. an report its in itself, he is in the talking cannot yield certainty about content certainty about the first type of isolated report stems not from the report itself but from the surrounding inconclusive isolated is into further This type two of report subdivided circumstances. has Since the the other not. non-actionentailing report categories;one entails action, and law Jaýýdý further do However, the to the one entailing with makesno comment. nothing legal here: introduces the the action main problem concerned classification of a action ('amao in terms of its relation to khabar al-wabid. A legal action is divided into three is honest is legal First the the person authoritative actswhere report of an one categories. The for i. the secondone report. authenticationof under certain conditions, e. conditions is the acts where certain number of witnessesand their probity are stipulated. And the kinds. One (al-mu"dmaldt), is two is where third one mutual relations which are of is i. (al-'addla) (al-'adad) are not stipulated, e. a single witness and probity number Hence, for is the there reports of untruthful persons, probity. no requirement enoughand is the or either number where other acceptable; all are or children slaves non-believers, probity are stipulated. detailed Jaýýdý In (legal this gives a B. Elaboration of all categories stage acts). He examples. with several the illustrating above mentioned categories of explanation it he here presents not as an begins by reminding us of the over-all classification; The khabar legal issue but the issue al-wabid. of consequence of an as epistemological issues: different the is two this with concerned chapter title already suggests that its legal khabar (mcijab) implications and al-wdbid of epistemological consequence khabar the is here al-wabid as such, (aýkdm). So the question what the relationship of The legal the to classification new acts. above, the categories mentioned i. e. as in This legal to this the from to report. related the act the report therefore shifts emphasis leads to the following diagram:

131 Isolated report No legal consequence

Legal consequence

Certainty and action Testimonies

Only action Religious reports

Mutual relations

No condition

with one condition

Since the main concern of this study is with the second part of his classification, namely, khabar al-wabid which entails action only, I shall concentrate on the second one. Reports necessitating action only, but not knowledge, have three categories: testimonies (al-shahjdat), religious reports concerning particular issues (al-diyandt ft al-umar alkhilga), and mutual relations (al-mu'dmaldt). 1. Testimonies (al-shahdddt). Jaýýdý identifies three types of shahdda:

doubt Testimony to a. acts where a possibility of relating voids application of the in badd Owing for to the and qiýdy matters. penalty, such as need extra caution in these matters, a minimum of four male witnesses is required in adultery, two in other badd penalties and qiýdy. The testimony of woman is unacceptable there. b.

Testimony relating to matters involving people's rights, where a presence of doubt does not lead to forfeiture of rights, as in the testimony concerning new least, is In these the matters, at one man overcast. sky moon sightings when and two women are required.

birth, be The to testimony which may not private affairs such as relating c. is folk. Here the testimony of one woman sufficient. accessible to men The distinction between penal and non-penal matters is to be noted, as we shall later see its significance assigned. According to Ja!ýýdý,there are two reasons why these reports Firstly, be heading "testimony". these the reports should all of are subsumed under like 'informing' 'reporting' Using the or words is not shahada phrase. couched using

132 acceptable. Secondly, the reporter (witness) should meet criteria such as being major, free, Muslim, honest, sane, not convicted of crime of defamation (qadhj), sound

thinking, etc.; theseare the conditions of qualifying as a witness. 2. Reports about specific matters of religion (al-diyanat) form the subject of a separate I

This is khabar in the proper sense, i. e. isolated Prophetic chapter. actually al-wahid report. 3. Reports concerning mutual relations (al-mu'dmaldt). These are of two kinds; in the first one report of anybody, whether Muslim or non-Muslim, child or adult, honest or dishonest, is acceptable, as long as there is no doubt as to its truth. Reports of an envoy buying a gift, or of an about agent about and selling, are examples of this category. The second type requires one of the two requirements of testimony, i. e. probity or number, is for be The dismissal (al-wakio is to acceptable. a report required of an agent an example is (al-rasfio Here this the the the category, unless reporter of client. of not an envoy depends females, the two two on acceptability of report male reporters, or one male and if is do However, if there they the one upright even not meet condition of probity. it is sufficient. reporter, C. Foundations (ksfil) of these categories. In the third stage, Jaýýdýjustifies the above The testimonies the relations. religious and reports about mutual statements about basis detail. He in dealt in that the the states of more chapter a separate are reports by Qur'an; is for the the testimonies other specifications are provided number-condition fundamentals. Jaýýdý implications by by these ijmd' by the the sunna or of or supplied does not give details of this statement on the grounds that it is not part of this science. The justification of reports about mutual relations is based on both the Qur'an and the sunna. khabar in here deals Jaýýdý the To sum up, al-widbid epistemological value of with khabar here be It that legal its al-waNd clear now should implications. conjunction with by is but that Prophetic to given a number of the any report also report only not refers Jaýýdý In to the aims provide a words, than other of mutawatir. reporters people smaller in broader by isolated Prophetic for the framework a picture placing it report theoretical in isolated general. reports of

133 11.Dabfis! on the authority of kbabar W-w9pid and legal acts The title of DabiisTi reads as 'bab al-qawlji'

baydn aqsdm ma kdna khabar al-wdbidrihd

bujja-a discussion on the explanation of the types of (acts) where khabar al-wdbid is 7. The khabar its authoritative' complete classification of al-wdbid and epistemological 8.9 by Jas be to the concern of Dabiisi here Instead he value, as expounded ýaý, seems not

focuses on the relationship between the legal acts and khabar al-wdbid, which his the constituted a part of scheme of predecessor. Dabijýi also organises this topic in three stages: firstly, he identifies the labels for each of the categories of the legal acts; secondly, he provides a legal proposition for each of these categories, which explains their relation to khabar al-wabid; and finally, he justifies these propositions by explaining the reasoning behind them. These three stages improvement but Jaýýdý, those there to and clarification of of is an obvious correspond the issue in Dabiisl A. Categories. Dabas-i- identifies four categories of legal acts according to their

khabar to al-wdýid: relationship 1. Religio-legal rulings (a]-,apkffm a]-skariyya). Theseare the rulings which are More (al-naskh specifically, wa al-tabdTl). open to abrogation and alteration likely (fura' branches the termfurCt' the the most these are al-din; religion of (ýuqaq God 'the in fall the rights of sphere of refers to science offiqh), which Allah)' imposed on people. 2. The rights of people (Puqfiq al- 7h9d). These are the rights and obligations (al-mavdfiý interest for the al-'djila), where all purpose of worldly undertaken human beings are considered to be equal in reporting. 3. The mutual relations (a]-mu'jlma], 94. These are the permitted transactions of the people, who are free, constituting rights and obligations. is due This (pajr). to the legal Restriction protect 4. restriction capacity of one's right of the third parties. differs. his Jassd deals the account radically s, Although DaWs! same categories as with .. Dabiis-i's both the in terminology the account seems and presentation. The difference is

134 to be more abstract,as he talks not about testimoniesbut the rights of people that involve the imposition of obligation including testimonies. Similarly, Dabfis7i's distinction between the rights of God and the rights of people is significant; he distinguishes betweenthe first and the secondcategories,whereasJaýýd5mentionsthe rights of people in the second type of testimonies without explaining its significance. Finally, only Dabils-ipresentsthe last category as an independentone, while Ja55d5considersit as a sub-categoryof mutual relations. Hencethe following diagram: Legal acts Religio-legal rulings (rights of people)

Rights of people involving obligations

Mutual relations

Legal restriction

B. Propositions. Dabiisli then briefly describes the nature of the relationship between each of the above categories and the authority of khabar al-wdhid. He says: As regards to the right of God, khabar al-wabid is authoritative and acting upon it is obligatory without a further condition of a specific number or a particular phrase.The only requirement is the conditions sought in the transmitters. This will be explained in its proper context. Concerning the rights of people, the report becomesauthoritative in imposing rights and obligations in a dispute, only with a specific number (of reporters) and a specific phrasetogether with certain conditions, in addition to the ones required for the transmitters in the rights of God. These are laid down in the fura' al-fiqh (proper legal texts). Regarding mutual relations, the report of everybody, who has a proper speech function, constitutes a kind of authority on the basis of which the action is be legal Coming to to the considered allowed. restriction, AW Ijan.-ifa-May God be pleased with him- stipulated one of the conditions of testimony, either number or probity, for the report to be him. (explained AbU Yiisuf Mubammad This authoritative. and opposed is in the cases)where an (from is his dismissal being (al-wakio the agent informed of news of agent); where an licensed slave (to trade in the market) is informed of the news of a restriction (on his legal capacity). Or his has last In that this slave committed a crime. case,he (the master) is where a master is informed freeing he from disposition (such the as selling or slave), unless choosesto pay under restriction (Taq his (for slave's crime). compensation

5f

99a)

The legal propositions attached to each of these four categories are again the same as in Jaýýdý. The first category, religious reports, requires a single person with certain his/her The in personal second character. category requires, conditions concerning two to these requirements, a minimum of reporters and a specific personal addition

135 phrase. Since Jaýýdýidentifies this categorywith the testimonies,he has provided a full account of all types of testimonies, together with explanationsof the requirement for eachtype. Dabiisli,however, seesthis category,not as restrictedto the testimonies,but as covering all acts that give rise to a right or an obligation among people. He, therefore, does not go into details of the types of testimonies. The third category requires no fourth And the - requires, according condition. one, a sub-categoryof the third in Jaspý, . to Abii Hanlfa, either probity or number, whereashis two disciples, Muhammad and AbU Yfisuf, regard this as the samewith the former category. C. Explanation and justification.

Having identified the categories of legal acts as well

khabar Dabiis-i in justification their to the third the turns to as relation al-wabid, of stage the propositions he put forward in the second stage: 1. Religio-legal obligations. Dabas-istates that the reason for ignoring the conditions of in is Prophetic transmission that whatever the of reports number and specific phrase falsehood be (ibtimal the the al-kidhb) cannot phrase adopted, possibility of number or is it isolated This long a sophisticated way of report. as remains an ruled out, as if is its khabar to there the the no way ascertain al-wabid; expressing weakness of Besides, Dabiis-i, bother is the to there then conditions. says with no need authenticity there is no evidence in the practice of the Prophet, the companions and the early did the they that that a or a phrase specify number in would suggest generations (ihtiyat). The latter khabar al-wahid, except as a personal precaution verification of individual have in the to companions exception aims explain away certain reports, which been reported to have placed certain criteria on the acceptance of this kind of report, fourth For the example, caliph, which suggests a minimum number or certain condition. Ali, used to make the reporter swear, before he acceptedhis report. Dabiisli adds that Ali, in a certain instance, did not ask the first caliph, AM Bakr, to swear, which suggests that it was only a personal precaution for less-known transmitters. The universal rules cannot be twisted to suit individual cases. 2. Rights of people. Dabiis-1states that the conditions of a certain number of reporters in kitab. The (testimony) the explicitly are stipulated of shahada phrase and a specific

legal function (testimonies) the is these of resolving that behind serve this reports reason

136 conflicts; since both sides of a conflict, claimant and defendant, have equal say in the disputed matter, the resolution of the conflict requires more than just an ordinary report. The report needs to be strengthened by external elements such as swearing an oath or The testimonial using phrases. requirement of a certain number of reporters is due to extra precaution. Dabas! states: This sense(of conflict) is not present in religio-legal rulings. Since, one who is unaware of a Prophetic report does not act upon it, becauseof the absenceof evidence, not becauseof the presence of opposing evidence. The situation has less bearing than the state of conflict that emergesas a result of two (conflicting) legally valid proofs, namely the report of a respondentand (Taqw-im, f 99a) a claimant.

In other words, it is contention in the second category that obliges us to take extra be Prophetic the the verification of reports can assured precautionary measures,whereas by having good faith on the transmitters. For, 'in principle, the Law acceptsthe report of 9. is the rejection only a result of secondaryconsiderations' every saneperson and 3. Mutual

is behind The the third category, where no condition reason relations.

dishonest is trading the person or a with a absence of any objection against required, fraud. is Prophet, there the time the a suspicion of unless of course of non-believer since The criterion of validity in these relations is not the religiosity of the person but the rules of trade. Before proceeding to the last category, Dabiisl tries to reach a general framework, by for different these justify hopes he the to stipulated conditions means of which in first between the third the finds he Thus, categories, and a resemblance categories. the bardm, baldl two both situation of where categories, religious that and are about hears first the the In the does third who report the one categories, and not exist. conflict is There indication. to therefore no need because of the absence of any contrary acts be by Both for established can the phrase. particular or a reporters stipulate any number from differs however, the The third category, the report of a minimum of single person. life. for is former the i. indispensability, the social essential first one in terms of e. be; to Dabiisl, the majority of people are not upright and will continue not Because, says it for be disastrous here trade, the almost making would conditions to require extra

137 impossible. Since hardship in religion is unacceptable, the conditions required for the verification of the Prophetic reports are not stipulated in mutual dealings, in order for trade to flourish. The Prophetic report, on the other hand, is not without alternative; qiyas will fill the gap that occurs as a result of the rejection of a report when the conditions for its authentication are not met. This reasoning also applies, according to Dab'dsT,to the next category. 4. Legal restriction (ftajr). In this category those two disciples of Abii UanTfa oppose their master. The disciples consider the category of restriction of legal capacity as the same as the previous one, mutual relations where the report of a dishonest person is Abii Ijan7ifa however acceptable. considers this category in-between the third and the hence categories, second as a separatecategory. The reason is that, according to Dabiis-i, the report in the case of legal restriction appears to be similar to the report concerning a mutual relation of the third category. Since, both are reports about a person's disposal of his property, in which he has the right to put a restriction or waive his right. However, the category of legal restriction resembles also to the second category where an his the the report, especially when person waives obligation arises as a result of right. For example, in the case, where the agent is informed of the news of his dismissal, he in bind his In transactions that this to enters will client. act as an agent and may continue (al-rascto Ijanifa AMi if too accepts that the the the client, of messenger reporter is case, this falls in the realm of mutual relations, in which a report of one person is accepted in informing is The further that the client is real need of reason requirement. without any his agent that he is no longer entitled to act on his behalf. The denial of a report in this in hardship If, lead the the to therefore, mutual mentioned relations. sort of might case, however, the reporter is a self-instructed person, i. e. when the client has not sent a lead hardship. Since, damage his to denial the any right or of report will not messenger, if the client wants to recover his right he would send a messenger to the agent. The Dabiisli, led third to the this concludes categories, second and category resemblance of Abii Ijan1fa to regard it as a sub-category, where one of the conditions of number or is required. probity

138

To sum up, DabUs!isolatesan issuewithin the issueof epistemological khabar value of al-wdhid as expoundedby Jaýýdý,making it an independentsectionof a separatechapter. He also advancesthe issue by improving the terminology, presentation,but more than that, by placing the categoriesof legal acts in a more theoretical grounding. Having said that, this theoretical outlook gradually decreaseswith the unfolding of Dabiisl's treatment, in that despite all the theoretical improvements,his accountlargely draws on that of Jassds,especially in drawing the lines amongthe different categories. 111.Sarakhs! on the authority of khabar W-wdfiid and legal acts

The title of Sarakhs-i.as usual, reminds us of Dabiisli's title 'chapter on (the acts) where khabar al-wdbid becomesauthoritative (aqsdm md yakCinkhabar al-wdbidrih bujja). Following Dabilsi, he too divides legal acts into four types, some of which fall straightforwardly subject to khabar al-wdýid, while others appear to be more complicated. Again the term khabar al-wdbid here refers to any report, Prophetic or falls that other, short of the criteria sought for mutawdtir and mashhfir. Sarakhs-i's is different from that of Dabiis-1and Ja!ýýdý;he does not treat the issue in presentation three stages,i. e. the identification of the categories,the articulation of the propositions and finally justification of thesepropositions. Instead,he combines all the information in deals about a category one place and with eachone once (A, B and C of abovejurists is difference This together). merged a of presentationonly; the Taq of Dabiis-i largely dominatesthe content. Even SarakhsT'sterminology for the categoriesas well as their examination sometimesfollows DaMs-1verbatim. The following diagram illustrates his categorisationof legal acts:

Legal acts Religio-legal acts II

Not subject to doubt

Obligatory rights of people

Non-obligatory

Ambiguous acts

mutual relations

----i

Subjectto doubt

1. Religious rules. Thus this chapter starts with the first category of legal acts saying (al-ahkam furCi, is the Cone of them al-shar'iyya), which are al-dTn) religio-legal rulings These There is Dabiisli. however the are exact words of change'. open to abrogation and

139 a new idea introduced by Sarakhsl. He considers these rulings as comprising of two subcategories. It should be noted that the innovation again concerns presentation; for it is not new in the sense that Sarakhs-iinvents the idea. Quite the contrary, it was a debate which went back to Jassds,but neither he nor Dabiis-i treated it within the issue of khabar We have al-wabid. already seen a similar innovation concerning the Prophetic actions (af al al-rasCio by Sarakhs-i,before, in the topic of command. These two examples show how these jurists introduce innovation into their works, but without breaching the framework of the legacy inherited from the past. This new idea regards religio-legal rulings as two types in terms of their status vis-a-vis the authority of khabar al-wdbid. In the majority of these acts khabar al-wabid is accepted under the conditions of authentication of ýadfth. Sarakhs! here repeats the same by Dab-as7iin the first category of legal acts above. However, among arguments used these legal rulings, those related to the penal code (badd and qiydy) are considered different by al-Karkh7i and some other Hanaff jurists, in that they claimed that khabar aldoes wabid not constitute an authority there. According to Sarakhs-i,Ab5 Yiisuf one of the three masters of the school, however, denies this distinction on the basis that the case for khabar al-wdbid equally applies to both types of religio-legal acts. Jaýýdýalso holds this view. This group argues that the Prophetic principle of dropping charges in the doubt does presence of not apply to the transmission of the badith concerning the penal law, for even in the case of two or four witnesses (required for establishing badd crimes) the possibility of falsehood in the testimony is not totally removed. In other words, the doubt in itself is not taken into account in the testimonies. It seems that the latter group interprets the above Prophetic principle as concerned with doubt which arises for reasons other than the number of witnesses. The argument of the other group is based on the fact that the presence of a slightest in (shubha) doubt the these the case unproven, rulings makes reports about possibility of hence the punishment dropped. The latter rule, which is one of the characteristics of Islamic law, in fact concerns the proof procedure for badd crimes. According to Sarakhs-i, those who see this as a different category from the other religio-legal rules, debate for the the to the about crime which reports concerning extend the above principle In doubt in they that the badd words, other argue since presence of the penalties apply.

140 the proof procedure is taken into account in dropping the charge, establishing any aspect badd by of penalty such a legal source as khabar al-wabid, whose dubious validity is

obvious, becomesuntenable. An objection raised by the opponents is that an extra number of witnesses in testimony does not indubitably prove the case, but is still accepted by the law. This group appeals to a reasoning which reveals an interesting insight into juristic thinking. In this, the Prophetic principle of dropping the charges in case of doubt is taken as a major legal principle against which the Qur'anic injunctions about the testimonies are evaluated. That is to say, the Prophetic principle is thought to be in line with a logical system of law, and hence elevated to a legal principle, namely dropping any badd penalty in case doubt. The Qur'anic of rule about the witnesses, however, seems to be in conflict with this principle, as it says that two or four witnesses are sufficient to inflict a badd penalty. This idea is a support for the latter group in that they try to show that the Qur'anic rule is legal be beyond the area specified about witnesses not a principle which can extended in the text of Qur'an; rather, it is an exception to a general principle of law. Here an dictum, What Prophetic the obvious question arises: makes not the Qur'anic rule, so legal lie in famous becomes The to that the answer seems special a principle? it distinction between analogous and non-analogous rules in Islamic law, i. e. some rules be for can used qiyas whilst others cannot. Sarakhs! in the rest of the three categories of legal acts again follows Dabas-i both in terminology and in the content. However his treatment is more elaborate presenting the latter's points as if he is commenting on it. Thus he cites more cases from the corpus juris and explains them in detail. The most visible improvement however is his giving a landmark basis the the to the on of which notion of obligation as more prominent role the following three categories are identified. This also suggests that he considers these last three different in nature from the first category, namely religio-legal acts. 2. Claims of people. The second category of legal acts is 'the claims of people (buqaq is (ilzam Here in the there pure obligation rights and mahd). which a1-"ibdd)', human due to relations where men of all religious affiliations share a obligations arise here, Sarakhs-i, becomes if it Khabar interest. says al-wabid authoritative meets common

141 such criteria as a certain number of transmitters, use of a specific expression of testimony (shahada), the reporter having competence (ahliyya) and eligibility to be a guardian (waldya). The last two conditions, ahliyya and walaya, were not found in Dabiisli, but the latter probably refers to them as 'the conditions of a reporter other than the conditions for the authentication of badi-th'. SarakhsTthen appeals to the same idea that the acts in this category involves conflict, which we have seen also used by Dabiis-1 to justify the extra conditions in addition to the requirements for baduh transmitters. Sarakhs7ihere bolsters the case by references to the rules of the li'an (mutual swearing of in free to themselves from the accusations they make each other), married couples order where the parties provide no evidence at all; by merely swearing four times, they become freed from the charges. In the same way, an extra number of witnesses are brings Erom forward Sarakhs! to the to only give stipulated strength one side. more cases in Ijanaff by Dabasi, juris of school, which were not mentioned order to show corpus that the difference between the first and the second categories is consciously drawn in the doctrine of the school. 3. Obligatory

The third category is concerned with mutual relations mutual relations.

(al-mu "amalat), or the relations of the market place. They involve no obligation (luzflm) is here if be khabar Sarakhs-i, According the to reporter acceptable al-wabid can at all. discerning (mumayyiz), without inquiring whether he is honest or not, child or major, believer or non-believer. Here two justifications are proposed, both drawn from Dabiisli; indication, from i. based the time the is istishdb, the of any contrary absence of e. on one Prophet onwards, that restricts the market relations. The other is the necessity (darara), i. e. restricting the market relations with extra conditions would create unnecessary hardship.

Like his predecessor,SarakhsTresorts to the concept of necessity and to the conflictbetween justify the three dichotomy the to above categories. relationship reconciliation That is to say, the difference betweenthe secondand the third is absenceof necessityin due fact is first between to the that the difference the the former; the second the and latter involves conflict (al-mund;a'a) while the former reconciliation (al-musdlama). b. by Mubammad his Kitdb to the DabiisTalready referred al-fjasan, reader al-Istihsan into is dichotomy taken to he this account solve and reconciliation thinks conflict where

142 a number of cases, but he does not give any example. Sarakhs-Ihere provides a few

examplestaken from Mubarnmad'sbook. 4. Ambiguous

mutual relations. The fourth category concerns mutual relations, the

relation of which to obligation is not clear, i. e. it includes obligation from one aspect but from (min not another wajh dana wajh). The examples are declaring the slave who is legally incompetent (al-bajr 'ald al-'abd) and dismissing the agent to trade allowed as ('azl al-wakTI). In Dabils-1there was no abstract name for this category; instead, he it expressed with an example as 'legal restriction (ýqjr)'. Thanks to the concept of Sarakhs-i finds thus obligation, a more abstract name for this category. The very existence of this category, as is known, is controversial. Sarakhs-1here provides more from legal the examples corpus to show that this dispute between Abii 1jan1fa and his two disciples is reflected in many cases. To sum up, Sarakhs-ion the issue of legal acts strictly followed TaqwTm by Dabfis-i, as if he was writing a commentary on it. He also introduced some changes and improvements, furfi' from drawn other sections of uýyalal-fiqh and which are mainly

It would al-fiqh.

by innovations he introduces be that to are governed a wish all an exaggeration claim not for a better presentation of the material. IV. Pazdawl and the legal acts In Pazdaw-i's Kanz, the issue of legal acts constitutes the third section of the part on difference however khabar'. This (mabalo different 'the is here His title of place sunna. has no significance, as he immediately makes it clear that it refers to 'acts where khabar find briefer his to This becomes title a aspiration reflects again authoritative. al-wabid in interest his i. ideas, terminology. e. way of expressing

PazdawT Dabiis-i, to take have text the seems As Sarakhs! seemed to of on worked is latter between than two The basis. the his even greater Sarakhs7i'stext as similarity introduced, least Sarakhs-I have We that former along with two. between the at seen into his improvements, text, elements terminological new some organisational and Pazdawi-'s from the drawn genre of uAil al-fiqh. other parts of though they are improvement the to the totally in of confined this almost is issue contribution

143

presentationof the material as found in Sarakhsi.The most important improvement is in classifying legal acts on the basis of the distinction between 'the claims of God (ýuqclq Allah)' and 'the claims of people (buqaq al-nds)', which, though touched upon by his in predecessors a gradually increasing emphasis,was not given a prominent role in the classification of acts.There was no attempt on the part of Jaýýdýto classify them; Dabiis-i introduced the concept of obligation, but it was not meant to be the criterion for the This classification. notion of obligation then was put forward by Sarakhs! when he last the three of the four acts, leaving the religio-legal acts unaccounted for. classified Pazdawl taking all the previous improvements including the notion of obligation into finds in the above distinction between two types of rights a basis for the consideration legal over-all classification of acts. The following diagram shows his schema: Legal acts Claims of God (Religio-legal acts) II Non-penal acts

___1 Penal acts

Claims of people IiI Obligatory rights of people

Non-obligatory rights of people

Ambiguous rights of people

It should be noted that Pazdawl does not divide acts into two general groups as such, instead he talks about five types of legal acts, among which he makes it clear that the former two are claims of God, whereas the latter three claims of people. The distinction drawn from is both Sarakhs-i. turn the groups in among sub-categories of V. Shiish! and legal acts Shdsh7l'streatment is, as usual, brief and reflects the stage of the development found in the previous treatments, especially PazdawI's. His aim is once again not to discuss a leads him but to employ very the the to school, which position of subject articulate four legal khabar identifies he first language. Thus formal acts where alstraight and These becomes are: authoritative. wabid, one way or another, 1. Pure claim of God other than the punishment (khdliv baqq Allah md laysa bir

uqCiba)

2. Pure claim of person in which there is obligation (khdlis haqq al-'abd md fth

ilzam mabd)

144 Pure claim of person where no obligation is involved (khaliy baqqih! laysa ma

fth ilzam) 4. Pure claim of person where there is only a partial obligation (khdfis haqqih! md

fth ilzdm min wajh). Legal acts Claim Of God (Non-penal pure claim) Obligatory pure claim

Claim of person

Non-obligatory pure claim

Ambiguous pure claim

The striking similarity between Shdshl's text and that of Pazdawy is again obvious in these formulations.

First, unlike

Jassds, who is supposed to be his younger

he talks about abstract categories; for instance the second category is not contemporary, testimonies but pure claim of God.

It should be noted that one of the categories available in Pazdawl and Sarakhs-iis is because is list, This Shdsh7i it, but this not namely penal acts. not awareof missing in it led him ignore it, he first his to the the as qualified one contrary, awarenessof quite for his lies in his in book, The 'other this than omission aim reason with punishment'. discuss issue is he does legal in is That the to to not aim of acts say, which statedabove. terms of the authority of khabar al-wabid, which would include a comprehensivelist of legal acts, irrespective of the authority of khabar. Instead,his aim is to summariseand fall includes those that the the acts only subject to school, which position of articulate the authority of khabar. One could arguethat the two earlier jurists, Jassdsand Dabu-s-1. lateness doubt fact five, the the text to listed four, of of casts which a categories, not also However, since theirs make no referencein the first category to the distinction Shdsh7i. between penal-non-penal rulings, this objection seems not to be valid. Besides, identifying the first category with the claim of God, while the rest with the claim of fellow human beings was voiced for the first time, as stated above, by PazdawT.The difference by Sarakhs! first the of cause as emphasised notion of obligation was again betweenthe last three acts.

145 Shdsh-1 then describesthe status of each of these categoriesvis-a-vis the authority of khabar al-waNd in a single proposition with referring to its example: 1. In the first category, khabar al-wabid constitutes an authority, for the Prophet

acceptedthe word of a Bedouln on the sighting of Ramadanmoon. 2. In the second, there are two conditions for the acceptability of khabar alwdbid, a certain number of witnesses and probity. The example given is that of legal conflicts (al-mundza'dt). 3. In the third one, khabar al-wdhid is acceptable even from a dishonest person or non-believer; the example is mutual relations (al-mu'dmaldt) 4. In the fourth one, Ab5 Ijan7ifa stipulated as a condition either a certain number or probity; the examples are discharge and legal restriction (al-'azl wa al-bajr). Table 4. Development of the classification of legal acts in terms of being subject to Khabar al-wdbid

Jass5s

Dabfis!

Sarakhs!

Pazdaw-i

Shfish!

1. KW* with no legal consequence 11.KW With legal consequence Three types of legal acts: A. KW yielding certainty and 1. Religious issues entailing action: 2. Testimonies a.Word of the Prophet 3. Mutual relations b.A report approved by the Prophet a. No condition backed by A ijmd' c. report b. One condition (Honesty or Number) B. KW yielding certainty but not entailing action: -->-+->-> Four types of legal acts: 1. Religious rules (claims of Allah) 2. Obligatory claims of people 3. Mutual relations 4. Legal restriction Four types of legal acts: Religious rules: 1 a. Doubt effective b. Doubt not effective 2. Obligatory rights of people Non-obligatory mutual relations 3. 4. Ambiguous acts A. Claims of God (Religious rules): 1. Non-penal rules 2. Penal rules A. Claim of God 1. Non-penal pure claim

*Khabar al-wdhid

B. Claims of people: 3. Obligatory claims 4. Non-obligatory claims 5. Ambiguous claims B. Claim of person 2. Obligatory pure claim 3. Non-obligatory pure claim 4. Ambiguous pure claim

146 Summary and discussion The issue of legal acts and the authority of khabar al-wabid as presented by our earliest jurist, Jassds, was initially an epistemological problem, which aimed to provide a comprehensive answer to the question of what epistemological value an isolated report has, i. e. certainty or otherwise. Relating it to the law, Jaýýdýtried first to assessits value in general terms as an extension of the epistemological question. The issue of epistemology of khabar al-wdbid, however, is not the main issue here; the actual is concern to investigate its legal consequence.He, thus, provides a comprehensive list isolated of reports with a comprehensive list of legal consequencesthat correspond to them. As the Table 4 above shows, he has the most complex categorisation among these jurists. Some of his categories are purely imaginative serving as a function of distinguishing what is legal from non-legal, such as the distinction between entailing and legal for The has law. Some the non-entailing consequence. second one no significance be by interest; for Jaý5d5 the to theoretical categories seem example, of motivated purely for isolated by "an the the the report given gives category of report yielding certainty" Prophet as an individual. Jaýýds then turns to those acts which do not yield certainty but entail a legal (referring legal identifies He to the religious three acts; al-diyandt sorts of consequence. (testimonies-isolated in isolated hence Prophetic the reports report), al-shahdddt realm, human isolated (referring the to reports used in relations). court cases) and al-mu'dmaldt In order for an isolated report to constitute authority, different conditions are sought in by linking different justified finally Jaýýdý them to one of these conditions each of areas. the normative sources of Islamic law. Dabiis-i concentrates only on the second problem in JaWý: the issue of the authoritativeness of khabar al-wdbid in different legal acts. His formulation uses a different and more abstract language than Jaýýdý in terms of became Jaýýdý legal Al-diydndt for the al-abkdm al-shar'iyya; alof acts. all accounting including human beings" fellow testimonies, "the only al-mu'dmaldt of claims shahdddt Dabiisli In the the of sub-categores of mutual elevates one addition, same. remained four hajr (legal in categories restriction) making relations to a separate category, namely in Dabiis-i for Jaýýdý's the Although categories general, it was who set agenda total. using by isolating legal issue Thus, Sarakhs-1 these discussions this acts. of more or subsequent

147 less adopted the same categories and the language with a slight difference: that of pushing the concept of obligation to the fore and finding an abstract name for the fourth category, namely "ambiguous acts", instead of using, like Dabiisli, one of the examples of this category as a name for it. Pazdawl then started where Sarakhs! left and contributed to the organisational aspect of the issue by emphasising the distinction between claims of God and those of people. The organisation of legal acts therefore gradually evolved culminating in the structure of Pazdaw-1,which is fully adopted by Shdsh7iwith slightest possible change, adding merely the term 'pure' to each category. What is the purpose of this 'problem of legal acts in conjunction with the authority of khabar al-wabid ' as far as the science of uýCdal-fiqh is concerned? We have noted above that the comprehensive theory of khabar is already dealt with within a different in The Prophetic isolated link to the science of uyal u*-51 works. chapter report, whose is needs no explanation, also treated elsewhere, a fact which always kept the issues it in this chapter. The actual concern was therefore the surrounding at minimum isolated i. is Prophetic What than e. remaining reports, other ones. more, the emphasis was more on the classification of the acts rather than the epistemological value of isolated report, which suggests that this is in fact afura' al-fiqh issue, not an uýal one. Jaýýd*and others sometimes made this clear at certain points when the elaboration of the issue was under way. Despite their reluctance they still preserved this issue within the it interest, for Dabiisli since gained the status of science of uyal al-fiqh, with even more independent issue within the khabar section. It seems that the aim is to provide a just isolated as the tripartite classification, namely reports, comprehensive account of true-false-neutral, provides a comprehensive theory of khabar. In the latter case, it is here based the classification on rational consideration, while clear that the categories are law, be issues by inspired therefore be to the to which is not meant of practical seems logically comprehensive. To sum up, such a theoretical issue infura'

legal the as al-flqh

khabar link to the loose transferred through science of uyfll alwas with al-wabid, a acts, fiqh,

by the lianaff

jurists, especially by Jaýýdý, whose classification is more

history issue. background this the time the the of of gives same sophisticated and at Nevertheless, through testimonies, which play an important role In the above in this to trace the traditions. elsewhere root of problem other classification, it is possible

148 Shdfl'!, in his al-Risdla, worried about the comparison of Prophetic reports with the

testimonieslo,where the formal conditions of acceptanceare stricter than in the former. The real concern of Shdfl'!, however, was not the conditions but the challenge that is inherent in establishing the authority on the basis of analogy with testimonies. This for justification Prophetic him, the the to of meanacknowledging need would, according isolated idea by him (the ones), an which was abhorred relentlessly. specific or reports He arguedthat the Prophetic reports, even the isolated onesconstitute authority on their been long isolated by Jaý§dý Since the the time the report was of authority of own right. between Prophetic issue to testimonies the seemed report and comparison of established, have beentaken merely as a ground for theorising about isolatedreports. References

Fusal, 111,35 The definition of salaffseemsnot to be clear among the exponentsof thesereports. See,for example, Usal, 1,291-294; 'Abd al-'A21z al-Bukhdfi, Kasf al-asrar 11,688 3 Pazdawl, for example, celebratesAW Ijan-ifa and his disciples a the true championsof badith, Kanz, 1, 16-18 4 About the origin of wyal al-fiqh, seeHallaq, History, first chapter; Steward,Islamic legal orthodoxy, 3037 5Kanz, 11,690-691, for a general discussionof certainty and probability, see,Weiss, SpiLit, chapter five. 6 Fusal, 111,63 7 Taqw1nij 98b 8 Dabiisli deals with the issue of epistemological value of khabar in another place. See,Taqw1m,f. 113b114a 9 Taq j 99a 10Shafi'l, al-Risdla, 372-387

149

Chapter Six - Internal Critique of Khabar a]-wj,.bid Introduction As it is well known, khabar al-wahid is unanimously accepted as a legal source in Islamic legal theory, including the law of the Ijanafl- jurists. Modem classical scholarship has shown that the picture before this classical theory established itself had not been as clear as it was projected in the sourcesl i. e. there was a considerable , khabar to opposition al-wihid, or as Shdfi'l and other earlier scholars called it, khabar for Shdfi'l identified two kinds of opposition against khabar alal-kha,y.ya. example On hand, the there was a total rejection associatedwith some rationalist one wahid. theologians (ahl al-kalam). On the other hand, there was an internal debate within the fiqh tradition, which did not completely reject khabar al-wdýid; instead, as Shdfi'l it, it jurists to those portrayed referred who paid less attention to the badith material than to the tradition they were brought up in, thereby accusing them being inconsistent with the hadith. J. Schacht identified these jurists with the 'ancient schools of law', notably Iraqis (later to become Hanafis) and ljijd2ýfis (to become Mdliki-s). He however interpreted this as a struggle between two perceptions of the sunna, in that the ancient Shdfl'! identified their tradition, regional while and the emerging sunna with schools hadlith movement (ahl al-hadith- who will be referred from now on as "traditionalists") but ýaduh. For a century or so, when uýcll al-fiqh emerged considered sunna as nothing discipline, literary these two trends reached a compromise, which was genre and as a largely built upon a traditionalist framework, including in its insistence on identification framework, Despite the badith. this traditionalist ancient conceding of sunna with from launched inherited heritage legal their instead the masters, of putting aside schools, it from traditionalist the to pressure. save a sophisticated campaign far for tradition the Hanaffs, the the In the case of the went so as school sake of apology level, in level, that even the or quasi-sunna to elevate the tradition to the quasi-canonical from As traditionalist tradition that insignificant attacks. are preserved aspects of most but function jurists Ijanaff to their the as nothing B. Wheeler recently showed, saw 2Here Prophet in there the turn of as emulators portrayed were the masters,who emulate

150 is a hidden assumption which sees the tradition as the locus of the sunna as much as traditionalists saw ýadith as an embodiment of the sunna. Only in the light of this famous the expression can one understand, maxim attributed to the renowned lianaff jurist Abii al-Ijasan al-KarkhT that if a ýadFth or Qur'anic passagecontradicts with the doctrine of the masters, that ýaduh or Qur'anic passage is to be regarded either 3. be interpreted abrogated or to away However unusual this statement may be in the light of the classical legal theory, one thing was certain: after the establishment of the schools (madhdhib), fiqh scholarship in practice almost always worked according to this principle. ffadith criticism is generally believed to be confined to isndd analysis, in that once the isnad of a ýadTth is proved to be free of isndd defects, its content is regarded as sound information. This is of course according to the badlith specialists. When a ýaduh is used by the jurists, the soundnessof the ýaduh, though being important, does not compel the jurist to accept its content; he takes into account a number of other factors, such as is ýaduh it there any contradictory or whether contradicts an explicit checking whether text of the Qur'an, etc. In the following pages, I shall try to show that how the Ijanafi jurists developed a kind of criticism, which is characteristic of this school, in order to As I ýaduh tradition. their that those usual, shall start with go against materials reject Jaýý4 and end with Shdsh7l. 1. JaW4 and the conditions for the acceptability of khabar W-wAb.1d It should be noted that unlike other uycdtopics, the topic of khabar in Jaý55ý'sFusW is jurist A lianaff from based and a student of an earlier authority. on quotations mainly Muhammad b. al-]Ejasanal-Shaybdn-i(d. 189/805), 'Isd b. Abdn (d. 221/836) seemedto be aware of most of the central issues discussed in khabar section, as early as the fi'ald Bishr 'Al-Radd is book His al-Maf-isT beginning of the third century. called either 4. Jaýýdý's the ' 'ald 'al-Radd conditions of of presentation al-Shdfi'! or al-Akhbdr' Then from 'Tsd. four list comes isolated reports starts with the conditions quoted of justification include the four and these Jaýýdý's comments on conditions which introduces Jaýýdý followed by 'Tsd's then a reasoning. the own conditions, of elaboration by He his the is chapter making closes making. of own apparently which new condition,

151 a comment putting a significant caveat to the application of these conditions. His treatment of conditions thus comprise of four stages. A. Conditions. Jass5sstarts the chapter reminding the reader of the already established theory that khabar al-wabid is a source of law in principle. Having said that, he makes it clear at the outset that accepting this theory in principle does not mean that in practice one should accept all isolated reports. He appeals to the comparison with institution of testimony, which is in principle a valid institution, but in practice not all the testimonies are acceptable. Just as the practical approach requires that every testimony should be assessedon his own by meansof human evaluation Qjtihad), every isolated report is also to be assessedon individual basis by the jurist. This principle would not raise the eyebrow of any scholar, if the following conditions were not at stake. According to Jassds,'Tsd's method is to reject a report for certain reasons('11al, lit. defects), which are Tsd from in the following passage: quoted verbatim khabar al-wdbid is to be rejected if:

I.

It contradictswith the establishedsunna(al-sunnaal-thdbita), or

2.

The Qur'an touches upon its opposite, in a way which is not open for different interpretations (yata'allaq al-Qur'dn bi khildfihft md ld yahtamil al-ma'dnT), or

3.

It (the content of the badith) is about public affairs (al-=Cir al-'dmma), in which an isolated report comeswhich is not known by the public, or

4.

It is an irregular (shddhdh) report, (meaning) people related it but acted in opposition to it (rawdhu al-ndss wa 'amila bi khildfih). (FuýW, 111,113)

The reason why I believe that these are exact words of 'Isd is basedon two observations; first there is an unusual sequence between the first two conditions. According to the legal theory, it was supposed to be the Qur'an and sunna, not sunna and Qur'an, as Jaýýdýin his comment changed the sequenceand started with the Qur'an. This as I shall discuss below seemsto be reminiscent of earlier times, when the sunna and hadith was in Secondly, the to the the tradition. referred sunna agreed position not yet merged and Jaýýdýdid not bring the fifth condition, introduced by himself, here, instead he delayed it 'Tsd. Besides he introduces 'Tsd's 'wa the words of upon words as qd1a after commenting

152

'Isd-'Isd said' and immediately after the quotation he brings his comment saying 'wa AU Bakr-Aba Bakr said' meaning himself, as it is his usual pattern. qd1a Turning to the conditions, it is clear that the concept of sunna, or as 'Tsdput it al-sunna al-thdbita, means something different than khabar al-wahid, the latter being virtually a

for baduh. The name secondcondition refers to the situation in which there is a kind of between Qur'anic conflict a passageand an isolated report, which leaves no room for The third condition assumesthat the information that has a bearing on the reconciliation. be individually. Finally, the fourth one subjectsan isolated public would not reported ('amao, i. to the test of practice report e. whether it is taken into accountwhen its content is relevant. B. Comment of Jaýý5ý and justification

in listing After the of conditions. conditions

the words of 'Isd, Jaýýdýinterprets each of them by explaining the rationale behind them, together with the examples. From now on, he makes it clear that these are his words, not Isa's, but he will return TIsdagain after completing his own comment and will provide Jsd's own comments on the justification of these conditions. Starting with second condition in above list, that is that khabar al-wdbid not be in distinctions important Islamic Qur'an, Jaýýdý the the of points out one of conflict with legal theory as the reason behind this condition, namely conclusive and inconclusive knowledge. That is to say, the Qur'an being mutawatir constitute certainty about its being khabar an inconclusive report cannot compete with al-wabid authenticity, whereas the former. Jaýýdý construes this condition to be a kind of takhgV or naskh situation, Qur'an. However, the isolated to abrogate or qualify report is not in a position where an the words of 'Tsdseems to suggest something other than naskh or takhYTY,as he does not isolated between (ta "drud) direct an report and conflict present this problem as a state of be he to talking Qur'anic about a much more oblique conflict, seems rather passage, a (isolated Qur'an 'the he touches report's) opposite'. upon its says when is for that all the this Jaýýdý gives several examples conflict, whose common point in lianaff doctrine the the the respective school of undermine actually rejected reports doctrinal Jaýýdý that the to try the Those position show with same side on are who cases. is fact based the authoritative on a more contradicts, in report which the with school, of

153 is kitab, than a single report. For instance, a report from a certain Fdtima bint that source, Qays states that the divorcee has no right of lodging or maintenance. Jaýýdý claims that this report is actually in conflict with the Qur'anic verse (Q 65,6) 'Do accommodate them... '.

Another example concerns a non-legal issue; it is about a theological between the Mutazila and Sunnis concerning the possibility of seeing God controversy by humans as presented by theological manuals. Jaýýd*, in line with the Mu'tazila, maintains that the report that describes the Prophet seeing his Lord contradicts with the 5 (Q 6,103) 'The verse eyes cannot perceive Him'. As to the conflict between khabar al-wabid and 'established sunna', this established is interpreted khabar sunna as a al-mutawdtir, which, like Qur'an, constitutes conclusive evidence, and therefore cannot be overruled by khabar al-wabid. Jaýýd*cites no example for this conflict. Since the classical theory blurred the line between sunna and badith the 'established in is identified by Isd with mutawatir and notion of sunna' practice 6. Although here Ja*ýdý it be mashhar reports mentions only mutawdtir, should noted that he considers the mashhar report a sub-branch of mutawatir, but unlike the certainty of is its ('ilm certainty a posterio mutawdtir, a1-iktisdb)7. Thus the concept of sunna in Ijanaff tradition came to refer only to two types of khabar, mutawatir and mashhfir; khabar al-wabid in the strict sense,i. e. other than mashhfir, does not constitute sunna on its own right. The rationale behind the third condition, which is formulated by Jaý§dý as an isolated

bihT is (ma life taumm the touches that al-balwa), of general public report in a matter that an instruction by the Prophet in such an issue could not be confined to one or two deliver instruction is to the the Prophet to the message religious the under people, as by is issue, its being despite If a single related a public a report, general public. transmitter, one cannot but conclude that either the rule was abrogated or the report is not authentic in origin. Jaýýdý legal basis, logical based cites a In order to show that this principle is on a valid fact despite that the be based the the people of to a idea: same on case which appears in irregular the moon-sight, a clear to of news an moon, new see town alert are certain from day, however, If, be coming somebody a cloudy on acceptable. not sky, will

154

outside the town informs the people in the town that he has seenthe new moon, this is to be accepted.He argues that common sensealso dictates the same logic; for instance when unrest in a certain community or mistake in the communalprayer is reportedonly by individuals, this information would be unreliable,unlessbackedby many reports. Jaýýdý gives several examples for this situation, again all involving a conflicting report doctrine the with of the school. For example, a report which makes the basmala for every wu4a'(minor ritual ablution), a report on the necessity of wuacl' due obligatory to washing a dead body, touching one's penis or touching a woman or eating something loud the cooked, a report on reciting of the basmala when praying, and a report on hands during the raising rukfi'; all these reports are in conflict with the doctrine of the lianaff school in the respective cases. The opponents of this principle seem to question not the logic behind it, but the Jaýýdý his consistency of and school in the application of this principle. Thus, they argue that in a number of cases, lianaff doctrine does not take into account the criterion of despite fact issue large instance, For the that the they publicity, concern size of people. doctrine duration based the the the of school on of menstrual cycle of woman is say, on fact it lives isolated despite Similarly, the that touches the the of all women. an report, doctrines concerning witr prayer and the obligatoriness of washing the mouth and inside the nose in major ritual ablution are all based on individual reports. Regarding the first but Jaýýdý touches then that the people, period most issue of woman's example, concedes do has to the that with the normal pattern of a nothing controversy about it argues is but the minimum and maximum cases concerning extreme about it woman's period, he Ijanaff is here, And the school accepts an isolated says, it period of a menstrual cycle. is Jaýýdý latter the that Regarding three cases, the controversy not about states report. he for Prophet that these the to performed admit all their authentic, is ascription whether i. (bukm) legal them, it is but e. obligation is associatedwith things, category about what or recommendation. Jaýýa5 (shadhdh), be irregular the final makes About the report should not condition that Prophet he For that the the report rejects example, examples. gives only and no comment

155 used to practice qunat (a special form of prayer within the forinal prayer) in evening and other prayers, on the basis that the scholars agreed on its opposite. Jaýýdý completes his justification

Jsd, from with quotations who also made some comments about the conditions he proposed. The quotation starts: Rejection of isolated reports becauseof the defects in them is the practice the of people. This is

the doctrineof the notablesof the companions(almmat al-sababa). (Fus-Cil,111,117)

Jaýýdýthen cites from 'Tsd a number of examples, where the companions and the successorsrejected certain reports, some which have already beenmentionedby Jassds. The examples are accompaniedby 'Isd's interpretation. For example, in one of the in reports, which the Caliph 'Umar rejected the report of Aba Miisd and askedhim to his by finding prove case supportfor what he said, 'Isd says: 'Umar denounced Ab5 Wisd's being the only person acquainted with the knowledge of restricting (request of permission by knocking doors) to three knocks, despite the need for it being general. He intimidated Abii Milsd, who then came to the Anýdr (Madman companions of the Prophet) and mentioned about the event. They told him 'the youngest of us will stand with you' Abu Sa7d al-Khudr7istood and informed him ('Umar) about it (that the matter was as Abi! Misd had proposed). (Fusfil, 111,117)

'Isd interpreted this report under the light of the third condition above. That is to say, he for houses issue is day to that the enter on others' of request permission an every argued individual have 'Umar to seemed outraged an report who was phenomenon, about which being his dealings, tradition the extremely vigilant especially as in generally portrayed in in religious matters. Another example is a report from a famous successor,from lbrdh-im heard Mas'iid Abd Hurayra's 'Abd Allah that ibn report when al-Nakhd'T, who relates hands before inserting in first their to the thing wash morning, which instructs people, in it be Madina' he 'how hands with their possible al-mihrds can said in a water-cup, it impossible for to to which makes wash used ablution, cup a stone-caved referring hands without inserting in it in the first place. Jaýýdýquotes many other examples, whose common point is that they were all rejected latter The ('ilao. term by was grounds on certain successor a or a companion either

156 probably popular in the time of 'Tsd,as his contemporary AbMad b. Hanbal (d. 241/856) wrote a book with this title 'Kitdb al'Ilal wa Marifat al-Riidl (The book of defects and knowledge of transmitters). However as the title of the latter suggests, it was mainly defects in hadi-th isnad its the the about of a not in content, whereas 'Tsd's conditions are all about the content not isndd. C. Additional

condition.

Having explored the conditions proposed by 'Isd, Jaýýdý

fifth condition, though he does not name it as "the fifth condition". In his introduces a isolated opinion, an report should not contradict the results of human reason (mcijabat in be to order aýkdm al-'uqCio accepted. Ja*ýdý however gives no example of how an be human isolated report might in conflict with reason. He explains this condition and the reasoning behind it as: One of the reasons(al-'ilao of rejecting isolated reports is its contradiction with the consequences it (al-'uqao from fact Since, God, of rational rules. which makes reasons are an authority a unacceptable to ascribe deficiency to what they (reasons) indicate and entail. Every report that contradicts the authority of reason is invalid and unacceptable. The authority of reason is does is to of which not conflict open a sort interpretation established and sound, unless a report be last (the In this the will construed to mean that case, it report) rules of reasons. with (interpretation). (ILSAI, 111,121-122)

Given the fact that Jaýýdý first introduced the four conditions and explained them in detail and only after this he mentioned this condition in passing, it is possible that he was however The introducing they conditions, other condition. a new with not comfortable framework for damaging the have general of outraged traditionalists, were not may for if the the fifth This unrestricted way opens qualified, traditionalism. not condition, is One isolated decide human valid or not. could to report an whether reason right of for the ijtihad test right the unrestricted to an gives also of argue that subjecting it has However, by 'Tsd forth the of right mujtahid the indicate. set conditions mujtahid, as legal framework theory, by whereas introducing been the of general restricted already Jaýýaý because it And this beyond possibly of these was to conditions. go reason seems introduced he this for is it. And that ground rational again reason it could not elaborate but the the outcome of natural as condition a novel as not it presents which way in a For by 'Tsd though this Prophetic example, general. in reports of criticism of method

157 he be does condition must controversial one, a very not resort to his usual style of elaborating it through imaginary interlocutor; it is quite an ordinary outcome of the laid in criticism out these pages. D. Scope of the conditions. Jaýýaýcompletes the chapter on the critique of khabar alby a principle which makes the application of these conditions restricted to wdýid, legal That is to say, he states that these strict conditions are to be certain categories. for sought reports that pose a new obligation or prohibition, or that overrule an existing being the that the Prophet is under the obligation to reason obligation or prohibition, deliver the judgement about obligations and prohibitions. For the acts encouraged or for God, the these conditions towards sake of gaining piety and proximity recommended is Prophet the not under obligation to teach recommended acts, are not required, since, hence he can choose one or two people to teach the ways of reaching piety. 11.Dab0s1andcritiqueof

kh abar al- wAftid (M dqjd kh abar a]- wffftla).

Dabiis-i makes it clear at the beginning that his critique has nothing to do with isnad. As far as isndd is concerned, both musnad and mursal baduh, i. e. the badiths with below, in interrupted isndd, the constitute equal quotation mentioned uninterrupted and legal in Ijanaff theory: authority Discussion on the criticism of khabar al-wabid after its establishment from the Prophet as a

(Taq musnador mursal.

,f

109b)

in have four lists the seen points of criticism we A. Means of criticism. Dabiis-1then be khabar He b. Abdn. 'Tsd that al-wabid can says Jaý*dý,who in turn attributed them to four ways: criticised in be Qur'an its in Qur'an, that will seen agreement with 1. Subjecting it to the test of be Kitdb disagreement its the (rawdj), will with for and its soundness as evidence (ziydfa). forgery its the sign of he (al-sunna 'established which al-thdbita) it test sunna' the to 2. Subjecting of backed by report isolated an or it reports, or mashhCIr as mutawatir interprets ..

-I

yma

158 The following two points of criticism seems to be seen by Dab-as-i is similar as it expressed with a general idea, namely 'subjecting to the test of the event (al-biditha) it aims to report':

3. If the event describedis a popular event that touchesthe lives of public while the report about it is isolated, this is also to be taken as the sign of forgery. 4. Similarly, despite the fact that the event described in the report is about a known controversy among early generations, if it is not cited as evidence by either side in that debate, this is also to be considered as the sign of forgery. Given the fact that the common premise of the former two is obvious (i. e. comparing khabar al-wdbid with other parts of revelation), Dabfis-i reduces the four conditions to two general points, which will also be displayed in their elaboration below. Comparing these conditions with that of Isd together with Jaýýdý 's interpretations of them, it is Dabils-i's language is improved. first The that obvious clearer and point is the latter's language, i. comparative e. comparing the criticism of baduh with searching the Dab-Cis-i (popularity) (forgery), of authenticity coinage, uses rawdj and ziydfa probably to differentiate this criticism from isndd criticism developed by badi-th specialists, since issued forgery by the then minting of coins, gold or silver, even or concerns if popularity the government, i. e. legitimate, this criticism is by analogy about the content of the its legitimacy, isndd. than namely questioning about isolated report rather As to the conditions, Dab5sli's understanding of al-sunna al-thabita appears to be different, as it includes mutawdtir, mashhar and the khabar al-wdbid backed by ijmd'. Inclusion of mashhar actually makes no difference, as it is the result of a controversy between Dabiis-1and Jaýýdý concerning the epistemological value of mashhCirreports. The latter considers them identical with mutawdtir reports, while the former makes a distinction between them in terms of epistemological certainty. They therefore both backed by A ijmd' the report concept of sunna. consider mashhCir included within by Jaýýd*, but is however, mentioned not it the is sunna, established of part constituting he from Jaýýdý, the to chapter when previous we recall as idea unfamiliar not an (see Dabas-i by backed ijmd" above). evidence as conclusive reports isolated considers fon-nula 'people it but the last related of the instead of criticism; point also reformulates

159 did not act in accordancewith it', he uses the formula 'despite the fact that the event describedin the report is about a known controversyamongearly generations,if it is not cited as evidence...'. The contents of both formula however seem to be related, as eactingin accordancewith it' is not so different from 'it is not cited as evidence. B. Justification

and examples. Dabiisii, at this stage, starts exploring the points of

in two groups, starting with the test of Kitdb and sunna: criticism 1-2. The justification of the test with the Kitdb is based on two arguments. Firstly, Dabýislicites two Prophetic reports, which are: Every a. condition that is not in the book of Allah is invalid, even if it is a hundred conditions (i. e. repeatedare hundred times). b. When a baduh is related to you from me, test it with the book of Allah; if it agreeswith it accept

(Taqw-im, f 109b) disagrees it, if it with it reject it.

The point in the second one is obvious. The point in the first one is that Dabiisli interprets this ýaduh to mean that if a condition explicitly conflicts with a passage of Qur'an, it he literal baduh be Otherwise, the the says, of will meaning would an invalid condition. is is in Qur'an in itself, the that that there the any condition not as no such a rule reject Qur'an is invalid. Secondly, like Jaýýdý,Dab-ds-iappeals to the epistemological categories of conclusiveinconclusive evidence, i. e. an isolated report is intrisincally tentative, while the Qur'an is between is Similar Therefore, them. conceivable no competition conclusively authentic. in its fonns, for two holds the the established sunna, i. e. true established sunna reasoning like Qur'an; by backed though ijmd', the the mashhar, not at is as mutawatir or a report khabar holds than level al-wabid. the same more certainty of authenticity, still

As we noted in Jassds,he did not make it clear what the Kitab in this context refers to, The Qur'an. implicit text the it explicit of or to of meanings or explicit refers i.e. whether for does badith the rejection Qur'an between direct confrontation constitute ground and is debate Dabu-s! the As the Muslim by about general latter clarifies, jurists. the all of Shdfl'-i He Qur'an. that (; dhir) acceptsan isolated states ('=Cim) or obvious meaningof

160 8 report if it conflicts with a "vague" reference of the Qur'an, whereas he and his school make the Qur'an prevalent whenever a conflict occurs with the isolated report, whether implicit9. He concedes that the text of the Qur'an, in the latter case, might be explicit or open to other interpretations, while the isolated report is explicit, but he states that the former the authenticity of as a form of report is so prevalent that tentativeness of the latter in this respect has no weight against it. To put it in his words: Preference of the text of the Qur'an becauseof the certainty of its authenticity is better than the preference of meaning of an isolated report becauseof the strength in its meaning. For, the text is the carrier and basis of the meaning, it is therefore necessaryto take the text as the factor of preference first, and if the both are at the same level of authenticity, then meaning will determine (Taqwito which one prefer.

,f

109b)

The same idea of strength and weakness in terms of certainty, which we have seen in Ja!5ýdý is expressed by Dabils! in a clearer and more subtle way. , Importance of above two criteria. Dabas!, after laying down the rationale behind the he is importance to these criteria. This seems to criteria promoting, assigns a particular be again a polemical device invented to combat the traditionalist incursion. According to him, testing a Prophetic report against the background of the Qur'an and sunna is not for far issue, but it has legal-technical reaching consequences the understanding of only a isolated That to reports without verifying their content say, accepting is religion itself did, lead indeed Islam foundations the two already people to would, and of major with damaging, become basis, inconclusive therefore their even and religion on an ground law. Because isolated damaging this total than a source of as reports of rejection more latter group: did not accept khabar al-wdbid, and had to resort to act in accordancewith qiyds or istiybdb al-bal (continuity of the previous situation), when he could not find the ruling in a particular casein the book of Allah- the Almighty. For this man did not breach a ruling of the Book, but made his because khabar he the based that of possibility of al-wabid rejected in certainty, on religion falsehood and doubt.... Whereas the former (promoter of isolated report unconditionally) made the his basing book Allah thereby foundation the tested religion on with it, of and a report isolated fII Oa) (Taqw-im, knowledge. uncertain

161 Examples. Dabiisl gives three examples, already provided by Jaýýdý where an isolated , is in Kitdb the report a conflict with and sunna, but the former's reasoning differs from the latter's in terms of the interpretation of these examples. Among the three examples, Dabfis-i chooses the report that the validity of judgement based on "one witness and oath (al-yamin maa al-shdhid)", as a convenient example to clarify the tension between an isolated report and the kitab-sunna. First, according to him, this report contradicts with the verse of testimony (shahdda) (Q 2,282), which reads: '(0 you believers! ) do bare two male witnesses, if you do not find two male witnesses then one male and two female According to him, the opening part of this verse, the command for calling ...... (istishhad), is witnesses ambiguous (mujmao, which is to be explained by the second part that provides all possible alternatives for the number and gender, thereby setting the framework for the institution of testimony. There are thus two alternatives: one is "two male witnesses" and the other "one male and two females". By reading the text as referring to exhaustive alternatives, DabUs-ithus puts the content of the badi-th in an indirect conflict with this passage, as it clearly prescribes a new alternative. Besides, says Dabiisli, the final part of the verse makes the minimum requirement for testimony female if two one male and witnesses; we accept the rule of "one witness together with finds Qur'an. Dabfis-i the the this another oath", will replace minimum requirement of "two the the through of rule males or one exploring underlying reason contradiction Dabils-1, is is, females". That to the rule, two two male witnesses, according male and if "one is He females that two witness and an concludes exception. while one male and it did God to then the an exceptional situation? and resort why neglect oath" was rule, Secondly, this report contradicts one of the established principles of sunna, formularised 'the the Prophet the the claimant and onus of oath the on evidence is of onus saying of in falls upon the defendant (al-bayyina 'ald al-mudda'T wa al-yamin "ald man ankara)'. According to Dabiisi, the rule of "one witness and an oath" contradicts this principle of is Firstly, the which originally evidence, as oath two considers it points. sunna on Secondly, by the the different the while sunna requires sunna. category regarded as a for both the the available oath defendant to take an oath, report in question makes parties.

162 3. 'Umfim a]-balwj. The reason behind the third criterion is according to Dabiisythe fact that when an event touchesthe lives of public, the public should know the rule about it, otherwise it (the isolated report) rejected. He statesthat just as the later generations know it, the earlier generations were supposed to have known it, for the early generations were stricter about false reports. He then justifies this principle with legal to the reference corpus citing two cases,one of which is also cited by Ja55a5, that is the caseof sighting the new moon in Ramadan.The reports about this principle are also the same as in Ja554, which instructs that touching one's penis, eating something funeral the and carrying cooked coffin causeritual impurity. 4. Absence of earlier reference. The fourth criterion is based on the idea that a controversial case among the early generations (salaj), about which an isolated report is in normal circumstances prompt the sala(f to cite that report to end any related, would discussion. Absence of any information about such a link between the report and a debate indicate later the contemporary will appeared and is therefore respective report but for last his Dabiisli time this two principle, cites reports as an example spurious. from Jaýýdý. examples are not Upon completing elaboration and justification of all the criteria Dabiis-I turns again the language beginning he the the the of counterfeit chapter, namely with of made at analogy he Thus, says: money. It is therefore established that a report becomes spurious in the first two criteria by comparing it (the report) with something superior to it, just as the currency of a particular town turns out to be fake when it is compared with a superior currency of another town. It becomesspurious in the last deliberate falsehood, because the or inadvertent, just as the either of two criteria possibility of (Taqw-im, f foreign fake by becomes elementswith it. mixing of currency of a particular town II

lb)

between distinction drawing the Dabiisli the a In this quotation, of idea clearly expresses display first The last two a conflict situation first two and the two criteria. criteria based last two the on the criteria are between a superior and an inferior proof, while

logical considerations.

163 111.Sarakhs! and the criticism of the reports The topic of criticism of khabar al-wdhid in UsW. though following again in the footsteps of Dabiis-i in its content, is placed under a general theory of critique. This consists in two main types, formal interruption (inqitd' Aratan) and internal interruption (inqitd' ma "nan). The former refers to the interruption in isnad while the latter has two further types, interruption because of a contradictory indication and interruption in the character and personality of the transmitter. The latter has to do with the science of transmitters ('ilm al-rijdl), which is again related to isndd, whereas the former is what we call internal critique proper, expressed by Dabiis-1with the term intiqdd (critique). This apparent improvement in the structure of Sarakhs-iseems to be caused not only from a desire to find out a coherent theory of criticism but also from an apologetic have As I being consideration. reiterating throughout this study, Ijanafi legal theory, being attached to the traditionalist character of classical legal theory, was under pressure to assure the critics; to prove that it did not breach the general framework of this theory. One of the topics of earlier Ijanafi legal theory, preserved by Jaýýdýin the words of 'Tsd b. Abdn was the attitude towards the isolated reports, namely the four conditions, Isd by following lianaff The Jaýýdý, the to school. importance given characteristic of , these conditions was obvious, in that they were used to justify the legal tradition, isolated Dabiisli the those reports. also especially aspects of it which contradicted with have Sarakhs-i to through the seems encountered this whom adopted same scheme, fact A form the these that to was conditions objection possible of criticism. particular they are applied to any isolated report, whether sound or weak in the scheme of the badfth specialists. into the critical Here SarakhsTtries to incorporate this scheme of Jaýýdý and Dab-Cis-1 based introduces He badith by developed the a new classification, on specialists. scheme badith the concept of interruption. namely the criticism, essential elements of one of Two of the three categories in Sarakhs-i's scheme, formal interruption and the second in baduh What criticism. is type of internal interruption, were already commonplace khabar he the to tries that Sarakhs-i's of al-wabid criticism presents is scheme original in fact, The interruption. the to form refers in by content as a of interruption, concept of in formal the the transmitters, between two and link obvious which is any missing

164 second type of internal interruption mentioned above. Under the former, Sarakhs-ideals with the mursal reports, namely reports without isnad, and under the latter with the conditions required for the transmitter which qualify him to transmit badith. The first type of internal critique however concentrates on the content of the badith, and therefore has nothing to do with isnad, hence with interruption.

It is interestingto seehow the attitude towards mursal has changedfrom the time of Jsd to the end of the fifth century, in that Isd saw no difference betweenmursal and musnad hadith, thereby giving no credit to the conceptof interruption, whereasSarakhs!makes this concept the basis for his critique, which is obviously influenced by traditionalism, though he does not go as far as to reject the mursal. The traditionalist influence, as expected,seemsto make its impact on the level of justification but not on the level of doctrine. the articulation of school Coming to Sarakhs-i's treatment of the criteria for isolated reports, it is largely drawn from Dabiisli's text, together, as usual, bolstered with Jaýýdý.His language as well as however, is improved. After listing the four criteria, he presentation, clearer and elaborates each one by defining its scope, followed with its justification and examples. For example, in the first criterion (for an isolated report to be authoritative, it shall not is he defines kitab, kitab), the same as that of the the the scope of which contradict Dabiisl, but unlike the latter, he does this right at the beginning. Thus, he starts as: As to the first one, which is when a badith contradicts with the Book of Allah, it is not acceptable for there action, whether the verse is general or specific, explicit or in it and is no authority khabar As to of al-wdbid is not allowed we explained, specification obvious, according our view. figurative kind (al-; Likewise, dhir) taking the of as a use is not or it obvious implication at all. have Shdfi'!, khabar basis to the as we already contrast view, in of al-wdbid in our allowed on 1,364) (! LsAl, explained.

former is DaMis-i the that SarakhsT between The similarity after again so obvious and draws latter, like the to first the significance two of attention the criteria, completing heresy. in the and core of religion against innovations these two criteria preserving damaging he to however, the his is more Unlike movement anti-badith sees predecessor, does badi-th-centred test the that reports isolated in than not approach core of religion

165 light of the Kitdb and sunna. For according to him, a total rejection of khabar al-wabid judgement hence leading to disbelief (ilbad), to without proof, might amount making it without a proper scrutiny would only draw the label of whereas acceptanceof innovation (bid'a). He therefore presents these two as extreme attitudes towards the in Hanaff between the the thesetwo extremes. approach middle way reports and places There is a slight difference in Sarakhs-i'sformulation of the last criterion, where absence of reference to the isolated report in the relevant controversies of early generations is fabrication. (salaj), Sarakhs7i Instead the of early generations construed as a sign of but to the the the to companions, criterion earliest generation, namely appears confine it later it is he to this that the generations extends criterion possible reasoning in given too. Sarakhs-icompletes the chapter by positioning his school's view on the criticism of the be throughout Shafl'-l, in the to that opponent main who seems of contrast with reports the chapter. He says: Shdfi'i

rejected criticism

of reports Internally

(ma'nan)

(the with and was preoccupied

Despite the building the reports. the in mursal interruption external ruling on criticism of) he did (ma'a with it, as accordance act in not al-ma'nd), quwwat critique strength of internal literal based the the He on thus rulings of his most ours. well as as pattern general was (al-ma'dnT fiqh base the alreasons to effective on used masters our meaning, whereas

1,370) (ILSW, through reflection. emerge which mu'aththira) IV. Pazdaw! and the criticism

of reports

far As basis the as Sarakhs-i's on it. works and Pazdaw-i, as usual, takes account as a introduced Sarakhs-i he and the is bad7ith classification adopts concerned, critique of Pazdawif terms the that of uses terminology, The in it. improvement is in improves on for internal) hidden the (lit. batin main or (lit. " and inqitd or external) apparent -7ahir inqita' them Sarakhs-i, respectively called who the of classification types of critique in likewise Pazdaw-i's treatment similar makes The of rest manan. and yfiratan , he The in way substance. new anything improvements in vocabulary without adding for also carry criterion the each examples the selection of justifies these criteria and his lies with Pazdaw-i's concern in As contribution major usual Sarakhs-i's imprint.

166

brevity and conciseness.It is clear that he assumesthat his reader already knew the issuesas expoundedin the tradition. For example,the definition of establishedsunna as mutawatir and mashharreports or a report backedby ijmd' has already beenfamiliar in the tradition. In caseof a conflict between this and an isolated report, the latter has no because its epistemological certainty is below the level of established authority sunna. Among the three types of locus of establishedsunna, the mashhar is the least certain, though its certainty is above an isolated report. This is the explanation of Dabiisli and Sarakhs7l, Pazdawl, whereas out of brevity, specifiesonly the mashhar report under the establishedsunna. Since if an isolated report has no authority in the face of conflict with mashhar report, it is a fortiori true that it doesnot hold any authority in face of conflict with mutawdtir or ijmd `-backedreports, as they are epistemologicallymore certain than mashhCir. It is sometimes only through reading Sarakhs-ithat a passage in Pazdaw-fmakes sense. For example, Pazdawi- exemplifies a conflict between an isolated report and a mashhar follows: report as It is like the report of Sa'd b. Waqqdý -may God be pleasedwith him- on exchangeof the dried dates with the fresh ones (bay' al-tamr bi al-rutab), which contradicts with the following report of the Prophet 'date (tamr) is to be (exchanged) with date in an equal weight'; the previous latter famous by freshness (Sa'd's) taking this the consideration report into overrules report which is not part of the weight. Abii Yiisuf and Muhammad, however, accepted this report becausethe term tamr (dried date) does not conventionally include the fresh dates,as in the oath. (Kanz, 111,734)

This Passageis unclear in certain respects. Firstly, it does not give the full account of the first report; secondly, it does not explain the conflict properly; thirdly, it does not is 'the finally dispute; the actual reference of oath' not specified. and elaborate the first in fact first in Sarakhs-1, the that Looking at the same example report is a realises one him Prophet, they the the between dialogue asked about where and companions certain loses in Prophet dates them fresh turn dried the whether asked it and and exchange of Prophet then that Having the dried. concluded answer, received a positive weight when have is Prophet Here taken the to the into account said this sale is not allowed. Sarakhs-i the the loss sees extra usurious. contract considered and weight of subsequent

167 stipulation made by Sa'd's report as a contradiction, which considers subsequentweightloss retrospectively affecting a completed contract. As to the dispute and the oath, the two companions of the Abii Ijanlfa are said to have distinguished an oath concerning dried dates from the one concerning fresh ones on the basis of convention ('urj), as dried dates are called tamr whereas the fresh ones rutab Abii Hanifa, however, is have to said understood the word tamr in the famous badith as a general name for any sort of date, dried or fresh, and restricted above quotation to oath where the convention plays a role. Thus, only by reading Sarakhs-ione is able to reconstruct the text of Pazdaw-1. V. Shfishl and the critique of kbabar W-wApId. Shdsh7istipulates only three conditions for an isolated report to be a source of law; it should not contradict with the Kitab or sunna and should not conflict with the lit. (; last be This dhir, to to phenomena what appears people). one appears a new listed in the previous jurists, but in fact, it refers to the last two criteria, concept not have been Dabiisli, treated together to which we will return at the end of the which since justification for individually, Before Shdsh7i elaborating each provides a general chapter. the validity of these conditions. It comprises of one Prophetic report and a quotation from the fourth caliph All. The report is the one mentioned first in Dabiisli, which wams instructs Prophetic them to compare the the reports and proliferation of people against those reports with the Kitab in order to differentiate the sound from the fake. A more interesting justification

is attributed to Ali,

have is to classified the who said

transmitters, indeed the companions, into three categories: his Prophet believer the A the to of words. understood meaning who a companion a. sincere b. A bedouin who came from distant clan, heard some of his words but did not understand the delivered he heard his Prophet, the to the the meaning of what clan, returned messageof essenceof to his community without realising that he changedthe thrust of the message. from but hear Prophet lie; he did hypocrite, the transmitting Finally a not what an unknown c. disseminated his believer he belief in they him that listened the words to and is a sincere people

280) (Shdsh7i, believers. amongthe communityof

168

Shdsh-1 tries to say that the isolated and less-known reports should be tested in the light kitab, the of sunna and historical events in order to safeguardthe law from unfounded information, for there is the possibility of a report being circulated by someone did who not understandthe essenceof Islam but heard only a few words of the Prophet, or by someonewho was seemingly a believer, but in fact was nothing but a hypocrite. Thus, first is be the to trusted in transmitting knowledgeof religion. only group Having laid down the foundations of the criticism, Shdsh7istarts to explain each condition with examples; he gives two examples to the conflict with the Kitab, one of which is the same as that of DabiisT and his successors including the interpretation it (the report on violating ritual purity by touching the penis). The other to attached is example the report, which invalidates the marriage contract of a woman without the her legal is It permission of guardian. considered to be in conflict with the verse (Q2, 232) 'Do not prevent them (the divorcees) from marrying with their husbands'. Shdsh-i indicates that this that a woman can constitute a marriage contract, as it refers verse adds to them as the agent of the contract. The example of sunna, which is also found in the basis "judgement the the report on on of one witness and oath", which previous works, is famous dictum 'the is be Prophetic the to onus of evidence in contradiction with is said defendant'. the the the oath on is on claimant and Shdsh-i devotes a separate chapter to the explication of the final condition for the (phenomena). is isolated dhir the to the contradict ; not reports, which acceptability of Under this title, he includes the last two criteria we have seen in the previous jurists. He says The sort of a report contradicting the phenomena is that it is not known in the first and second be for being deals fact they despite accused that cannot of the with a public matter, it generations despite fact did When the the the people not spreadamong report negligent in observing the sunna. I (ma'a for shiddat al-0j*a wa uniCinzalit and it is a public matter that there is a strong need

284) (Shds its balwd), this is to be construedasa sign of spuriousness. ,

that for the to the 'despite condition parties The phrase refers probably it' strong need Shash-i in discussion the gives a report. no ignore not would issue relevant involved in a last for this Prophetic criterion. reports examples of

169 In order to establish a juristic basis for his criticism, Shdsh7ilists few from the a cases legal corpus, which he calls 'wise sayings (bikamiyydt)' probably referring simply to common sense of every day life. One of these casesrules that when one informs a man fact the that he is not permitted to marry the woman who is currently his wife, due to of the foster relation developed after marriage, he can rely on this information and marry the sister of this woman; but if he is informed that the contract was null and void owing to the foster relationship that exists from the beginning, the information is unreliable. The underlying reason of these two rules is that a new foster relationship is different from the old one in that it is possible that the former has not yet been well known, foster the whereas old relation could not be outside the knowledge of the people who are during the contract. present As to the dating of UsM al-Shdsh7i,there are certain new elements in Shdsh-iwhich are in the above four jurists, though most are not important, as far as the not available is For instance, his justification of this condition by citing an science of umil concerned. anecdote attributed to All seems to be novel; similarly he introduces another new term, (maybe historical fact) instead last translated the two namely, jahir as phenomena or of is, however, There the a similar phrase in Dabiisli, namely the criteria of previous works. term "al-haditha", which literally refers to the event surrounding the content of the baduh. Shdsb7i'sterm seems to be more suggestive as it aims to give a more theoretical in face be is The the that authentic of a conflict with the a report cannot point condition. historical background. A different treatment is also recognisable in Shdsh7i'sjustifying this last critique on the basis of legal precedents. There are again certain points in his he hint the discussion, character, such as way of its post-Dabiis7i which pattern of from Qur'an For the isolated or sunna. report with a certain passage contrasts an instance, the example of touching one's penis being the cause of ritual impurity is found for it Ja*ýdý the however, five in all of the example publicity as uses while works; for it from Dabas-i the (the example as third condition), onwards is presented condition Shdsh!, is the even isolated who interprets it in case also the which conflict, report-Kitab literature. in it in the same way was interpreted post-DabilsT

170 Table 5. The development of categorisation of conditions for the validity of khabar al-wdbid in early Hanafi usal writings Four conditions of Isi: 1. Test with kitib Addition by Jaýýdý Ja"4 2. Test with sunna 5. Test with human reason 3. Publicity 4. Irregularity Four conditions in two unexpressed headings: WNW (I. Superiority test with: ) 1. Utib 2. Sunna (11.Logical test: ) 3. Publicity 4. Absence of reference

Sarakhs!

Pazdaw-1

Sh5sh!

Interruption in isndd 1. Formal (yCira)interruption 11.Internal (ma'nd) interruption A. Deficiency in rdwi's character B. Conflict: Interruption in isnad 1. External (bdtin) interruption II. Internal (; dhir) interruption A. Deficiency in rdwi's character B. Interruption by conflict: -->

Four conditions with two unexpressed headings: (I. Comparison with: ) 1. jUtib 2. Sunna (2. Strong doubt based on: ) 3. Publicity 4. Absence of reference Four conditions; a report not to contradict: 1. Kft9b 2. Sunna 3. Publicity 4. Absence of reference

Three conditions; a report not to contradict: 1. Kift9b 2. Sunna 3. ,,7,jFbjr (phenomenon or apparent fact) which includes two conditions: a. Absence of reference b. Publicity

Summary and discussion The history of textual criticism of individual reports in Ijanaff tradition can be traced

back 'Tsd b. Abdn, who seems to be the central figure in formulating a theory of his Jaýýaý, first The khabar. this Prophetic preserves ideas school, namely, uval writer in in his seminal work, Fus-Cil.Isd develops, next to isndd criticism, four grounds ('ilao on for be endorsed basis completely to are which authenticity, the judged a report of which human however, by Jaýýdý. The latter, added one more ground of criticism, namely, form has intellect. With Dabiisl the criticism of the reports undergone a radical change in

four "Tsd, the he the criteria in of around criticism reformulated than content; rather is he Dabiis-i developments that One by Ja! the in of leaving aside the one added 5ýdý. being the test falling two four one of a categories, general in these criteria perceives Kitab the the and and sunna, namely validity, textual of superior proof a with report

171

being the test of a report with its historical background. The two successorsof other Dabids-1 (Sarakhs7iand Pazdaw-1)adopted Dabas-i's scheme, including these two main categories, to the extent that they repeated almost every idea in the same manner, without making any fundamental change. Although this appearsto be true for the content, there seemsto be made a bold attempt by Sarakhs-ito incorporatethis "textual criticism" of Hanaff school into the generalframework of traditionalist hadith criticism, which is mainly based on the investigation of isnad. Pazdawl, as usual, adopted Sarakhs-Fschemewith slight modification in vocabulary as well as in being conciseand compactversion of it. This sophisticationof the structureseemsto be ignored by Shdsh-1 who appearsto acceptonly three tests for a report. In fact, he subsumesunder the term last dhir two criteria of the previousjurists, which has alreadybeena familiar idea since ; DaWs-1. Another feature that provides us evidencefor Shdshl's being generally in the post-Dabiis-Itradition is his interpretationsof the exampleswe haverecordedabove. Although there appears to be no substantial change in the writings of these jurists, the human for role of reason as a criterion checking the authenticity of a report seems to display that sort of change. Jaýýdý' association with the Mutazila

seemed to have

him human intellect to among the grounds of criticism of the reports, include influenced independent in badTth-criticism. did Be Dab-5ý-i to that as not give an role reason whereas it may, the latter jurist's opinion of the reason was no lower than Jaýýdý's,as he regards the rationalist idea of outright rejection of the reports (generally ascribed to Mu'tazila) less damaging than the traditionalist approach including that of Shdfi'T, which confines Sarakhs-i Pazdawl, leaving test. isnad, the textual to the and the criticism of aside report less damaging than that the traditionalist the of rationalists, method who considered Shdfi'T. likes harsh the later towards of attitude soften this would

differences fact the that the Iianafiis It clear that the one of jurists were consciousof in traditionalism that between their methodology and was the attitude towards the of Prophetic reports. Since the time of 'Isa b. Abdn they have repeatedlyemphasisedthe from knowledge by 'the law the foundations of generality fact that the are constituted of Despite lianaff tradition. their the by they simply understood which generality', based be law khabar the texts the that theory on textualist must the of endorsementof

172 by in the transmitters, related practice, they undermined the basis of this textualist by finding outlook a way of reconciling it with their prime principle. That is to say, the categoriesof mutawatir and mashhar reports together with the concept of ijmd' were be "knowledge to to the construed referring of generalityto generality". As to khabar alwahid, they madesubstantialreservationsfor the sakeof their own doctrine. A last observation on the treatment of criticism of the reports in post-DabfisT period is that a jurist strictly follows his immediate predecessorand if he resorts to earlier jurists, he does not breach the general framework of what he inherited from the immediate Thus Sarakhs-i for instance from have benefited Jaý*dý to predecessor. appears and read that reading, but it is clear that he is still the student and strict follower of Dabfis-1;his from Jaý*dý be to seems quotations no more than enrichment of the topic with arguments The Similarly, "Dabiislian" "Jaýýdýian". than examples. main pattern is and rather Pazdawl though being in the "Dabas-lan" tradition like Sarakhs-i, seemed to have ignored Sarakhs-i himself Sarakhs7i's Pazdawl to whatever also material. confined ignores, and includes whatever he includes, compared with earlier jurists. References

' Schacht, Origins, esp. Chs. 4-6; Hallaq, Histo Ch I , 2 Wheeler, Applying the Canon in Islam, esp. Chs. 3-4 3 Al-Karkh7i, al-Risala fi al-Usfil, 169 4 For isd b. Ab5n and his contribution to the theory of khabar, see unpublished paper by the present (1998) Conference BRISMES delivered Shdfi'! ', 'An to at early response author, titled 5 This example may be taken as an example of Jaýý5ý's affiliation with the Mu'tazila. However, the late. By Sunnis Mutazila between the happening debate the are relatively and this that as present sources Sunnis the Mdturidiyya the Ash'ariyya of and the sole representative were yet nor time of Jaýý55neither late fifth Mdturidli by Ash'drl described sources of and Mu'tazila were not totally separate community as 24-25) (pages I Ch See above century onward. 6 See unpublished article 'An early response' by the present author 7 The term mashhar is used here in the later sense, as neither 'Isd nor Ja55dýused this term in a technical sense, Fusifl, 111,37-53 8 An 'dnini (general) term means that its scope is not specified to a particular area, which makes it a be taken as a conclusive legal it should whether i. e. the conveys, it to term consequence as contentious (obvious) the Similarly, dhir suggestion of is a reference a tentative ; one. or a indication of its reference, The is ) (naý before non-explici it revealed. born to mind its more explicit purpose text which is initially .ý11 "vague" For led terms. these two has to in it as their name us terms reference of nature of these two terms ) and 163-164 (; dhir). ('dnim 125-126 Usfil, Sarakhs!, concepts, see 9 This description fits the picture provided by Sh5fi'!, see Schacht, Origins, 42.

PART THR-EE- IJMi

e

174

Chapter Seven -The Authority

Ijmgl of

Introduction The question of the authority of ijmd' in Islam has been the point of keen interest of modem scholarship, ever since C. Snouck Hurgronie made the following radical statement: It (consensus)is the fundamental axiom of dogma and law in Islam. Attempts have been made to demonstrateit by the Qur'an and the sunna,but it is impossible to hide the fact that this Is to go round in a vicious circle. Only the infallible community can explain the sunna and Qur'an accurately; it is then completely idle to claim to establishthe infallibility of the community by 1 Qur'an loci Nevertheless has the authority of the ijmd' and the sunna. its probantes.

Similar views were expressed by other Western scholars about the fundamental 2. is in Much ijmd', though terms written to refute significance of sometimes milder this statement, especially the claim of vicious circle in justifying ijmd'. A. Hourani, W. Hallaq and others, convincingly demonstrated that Muslim jurists were always it by falling danger to tried the avoid of in a vicious circle and well aware of 3. by Aron is best The justificatory techniques summarised point advancing certain Zysow as follows: failed had Islamic to the be It would indeed jurists if of incompetence example a pathetic Qur'an To the that the of authenticity observe so obvious a circularity as is suggested. assert (tawdturf is ijmd' to concurrence unaccountably ignore rests on

Qur'an basis is the the text the of of to the which reports conclusive of idea referring Although basis ijmd'. these the turn, refutations of in are, which and part of sunna, idea ijmd' the level, in the of of theoretical use be the practical to convincing appear before the that boundaries comes itself idea suggests the of orthodoxy in entrenching is that the the In noteworthy it is, justification whatever words, other its justification. its for be to proponents. ijmd' indispensable seems concept of the issue the authority of the of I justification of on In this chapter, shall concentrate in five to pattern a common whether see order in jurists, our the writings of ijmd' be it Jaýýdý, to Before mention appropriate would with them. starting emerges among

175 briefly the historical development of the issue of justification summarise the clarifications

of ijmd' and to

by Hourani made concerning the general nature of 5

arguments used by Muslim jurists in it Starting with the latter, Hourani identifies . three types of argument Muslim jurists (including the modem Muslim scholars) used to Justify ijmd':

a) pure textual, b) rational including both (i) those which are pure rational and (ii) those which are based on an implication of the revelation 'without being relatable to a particular text'. c) a text with a reason; the latter being drawn either (i) directly from the former or (ii) requiring an effort of interpretation. Hourani then concludes that only the first type of the last argument (c,I), namely a 6. became historically text giving a clear reason, I hope below to that, prevalent show far as as the Ijanaff tradition is concerned, the prevailing argument seems to come closer to the second of the second argument (b, il). As to the historical development, the first attempt to justify ijmd' that has reached us 7. in form badith' by Shdfl'!, the was made al-Shaybdn-i of a whose position on ijmd' justified it basis badiths. following Hourani, the two of on was not clear, also Schacht identified another argument made by a certain group of anti-Traditionists, idea God basis 'benevolent justified ijmd' the the of of and an umma on who in divine This b, favoured the argument actually above grace'. is with i, specially Mu'tazila following Schacht, by Houram, is to the again which attributed

and

however Hourani the to explain contradiction unable was regarded as obsolete. between the idea of predestination inherent in this argument and the general Mu'taziri position on predestination. The contradiction seemsto disappear, if the idea had theologians those benevolence' to who rationalist is attributed of 'divine 8 (precursors of the Ijanaff school), whose ideas on association with ahl al-ray below, become it For, Mu'tazila. the from differed the clear will as predestination justification the thrust of

idea 'divine Jurists Ijanaflby the ijmd' these of is of

ijmd' to the to Although they particular of concept benevolence'. relate appear details the the thorough Qur'an of arguments of analysis a the sunna, and passages in indicates fact, the the that jurists, concerning conviction categorical by these in used

176 legitimacy of ijmd' is constituted by the idea of 'specially selected umma who are entrusted with a mission'. 1. JaýPý and the authority of #mff' Introduction.

The relevant section of ijmd' in Jaýýdýcontains 16 chapters, most of directly issue but few to ijmd'; the which are related if a of them are placed within this topic due to either their indirect relation to the issue of ijmd' or becausethey do fit four the not any of major parts of uýal al-fiqh. Out of the sixteen chapters, I am going to analyse only the first chapter. This deals with the issue of the authority of ijmd' and its justification within the Islamic thought as a sources of Islamic law. One of the characteristics of legal theory in Islam is that the jurists always feel compelled to justify why a certain institution, in this case y*ma", is regarded as a source of law. In this respect a great deal of effort is spent proving the authoritativeness of khabar al-wdbid, ijmd', qiyds and others. The fact that the Qur'an and the established sunna kind this are not made subject of of justification might be explained by their obvious In the the established authority, already in minds of early uyal writers. other words, in the community of Muslim orthodoxy, among which the uýfil writers no one high Qur'an to the the esteem, seemed question en oyed a authority of and the sunna in his famous law. in Shdfl'!,, the time the of who, as was case al-Risdla, as sources of ) Prophet the the tried to vis-a-vis the authority of the establish authority of mainly Qur'an9. Shdfi'! 's example seems,however, to have not gained ground, for later uycll justifying ", khabar Prophet, ijmd discuss hardly the the whereas authority of writers Once is formal became a subject element of uýal al-fiqha al-wabid, qiyas, etc., it formal into the structure of uýal al-fiqh obtains almost a canonical status, accepted fail hardly it, debate to living it mention works or not, and uyal whether represents a That Shdfl'-I's from to example though the emphasis may change one author another. by followed tradition the Prophetic justifying may confirm usal not was authority in Hallaq's suggestion about al-Risdla. The chapter is entitled 'al-kaldin ft al-ijmd'justifying concentrates exclusively on

discussion on consensus', which

the authority of ijnid' as a source of law.

is, the the that consensus of the issue, Jassds starts chapter with a preliminary later higher the than centuries, of a consensus status a occupies which companions, to ijnid' theory led endorse general in of opponents fact, which even some impact have the It gradation epistemological iiind'. of on an also will companions'

177 different types of consensus.He assertsthat all the jurists and most of the theologians are unanimously agreed on the viability of companions' ijmd' whereas some , theologians seeno difference betweenthe ijmd' of companions and that of others in being unauthoritative. Those who consider the companions' ijmd' as authoritative, however, disagreeover the generaltheory of ijmd', which is the subjectmatter of the second chapter in Fusid. It should be noted that Jaýýaýmentions the names of theologians in such a supposedlyjuristic conceptas ijmd. One of the reasonmight be extra-legal (social and political) implications the of conceptof ijmd' , whose role integrating force in the consolidation of Muslim orthodoxy as was extremely significantio. Another indication of this assertionis that one of the integral questions in the discussionof ijmd' is whether formation of ijmd' has to take into accountnonheretical, orthodox, views. One of the conclusions we can draw from these preliminary remarks of Jaýýdý is that opposition to the theory of ijmd' came from the theological circles rather than from a legal-theoretical point of view. Although he does not name the opponents of ijmd', the later sources identify opponents of ijmd'.

the Mu'tazil-i

thinker al-Na; qdrn and the ShT'a as the

These later references should, however, be taken cautiously,

since non-Sunni sources of earlier period shows that the opposition to ijmd' was more complicated than what these sources present. The position of Shdfi'T was far from being clear".

Certainly,

the ShT'a and, earlier, the Khdrifts,

vehemently

it ijmd', opposed as was extensively exploited in order to exclude these groups from 12 Islamic the

main stream

community

Justification. After this introduction, Jassdsturns to the Justification of ijmd'Y which, in his view, is primarily based on revelation (sam'), rather than on rational grounds, for 'reason does not deny the possibility of any given community's agreement over Christians'. Excluding Jews from happened the and cases of reason error, as it in having a say in the case of ijnid' apparently aims to overcome the possible objections that would come from non-Muslim communities, who would, and indeed did, be indication taken they that also as what agreed as a religion should justifiably argue of truth. Thus the proofs he utilises in order to justify ijmd' are divided into two broad Prophetic he Qur'anic those and as we will see, verses reports; interprets categories, divine favour (umma) Mubanunad, the of on nation signs of as passages and reports

178 of which other nations are devoid. That the idea of chosen nation constitutes the thrust of Jaýýdý'sjustification of ijmd' is most evident from his focus on those Qur'anic verseswhich praise the Muslim community. It is more surprising to note that one of the highly esteemedverses Jaýýdýutilises was regardedby some other jurists as the weakestof all the versespertaining to the authority of ijmd' 13 In what . follows, I am going to describehow Jassds'sinterpretation Qur'anic of versesýand then of Propheticreports, relatesto the notion of ijmd. A. Qur'anic Proot Jaýýdýcites five passagesof the Qur'an which he thinks justify the normativenessof ijmd'; he presentsthem as if they are definite proofs of the point at stake, in which he apparently has no doubt. This conviction emerges from a fundamentalassumption,mentionedabove,that God has chosenMuslim umma for a special mission. This assumptionis best attestedby the first passagehe adducesto. 1. The first and foremost Qur'anic argumentthat establishesthe authority of ijmd, Jaýýdý, is following (Q 2,143): to the according passage Thus we have appointed you a middle nation (ummatan wasatan) so that you may be witnesses for mankind, and the messengermay be a witness for you.

According to Jassds,this passagejustifies the authority of ijind "is. in two way

First,

the expression ummatan wasatan is key; he glosses the word al-wasat with another integrity literally "adl, and trustworthiness, citing a piece of which means word, al(wasat), first it 'they The the trustworthy are with the part of reads poem as evidence. is because, This significant paraphrasing judgement of whom people are content...... has is familiar 'udCto (plural, "adl than the term the more significance and more al14 forward brings literature It in Islamic the psychological religious replaced word . his/her hence It by the reliability. stressing a person's religiosity, authority aspect of is an indispensable prerequisite, for instance, for the transmitters of baduh as well as for the witnesses in court setting. Jaýýdýargues: When God identifies this nation with trustworthiness, this entails surrendering to Its view and

111,258) (Fusifl, the truth of its path.

is discussion bears the secondpart of the in that upon our The other point the verse Muslim from the the makes community and premise above proceeds which passage,

179 witnesses for mankind, as it makes the messengerwitness for his community. Jaýýdý'spoint is that being a witness against humanity becomestenable only if the testament of umma is to be consideredauthoritative. The fact that the community's testimony is accompaniedby the testimony of the messengerapparentlyconstitutes, in JaýýWs view, an analogy, a similarity in nature, which, in turn, constitutes an appealing argument given the already established authority of the Prophet in exposing the law. He says: The sentence 'so that you become witnesseson people and the Prophet becomeswitnesses on you' makes them (Muslims) witnessesfor the people who come after them, just as it makes the Prophet witnesses for them (Muslims). They deserve this feature only if their word is considered to be authoritative and their testimony be acceptable,just as it describesthe Prophet as a witness on them in the passage'.. and the Prophet becomeswitness for you'. This means that his word is authoritative and his testimony is authentic. (Fus-Cil, 111,25 8)

Having made his point, Jaýýdýbegins a more detailed discussion of how to interpret the present passageby his usual pattern of mentioning the possible objections and the formula it 'if (fa is him in the that to answers, with said qd'io, one says qd1a ... that (qfla lah)'. He reckons five possible objections to his interpretation of this ... passage. The first objection opposes the way Jaý*dýreads the word wayat as referring to God's favour towards the Muslim community. It is argued that accepting such a reading would amount to a groundless generalisation that each and every member of this is Jaýýdý is his is word authoritative, which an absurd claim. reliable and community irrelevant: inference as rejects such an It is said to him (the objector) that this is not necessarily so, for God did not identify each he but this honesty the of nation as reliable; community this only called nation with member of their the truth and word is only who speak the that group a this means community includes like It (2, the them verse is with integrity. is characterised authoritative, though not everyone of 55) 'And when you said: 0 Moses! We will not believe in you till we seeAllah plainly', which (alThis usage this.... in everyday pattern well-known is a means some of the community said Kdfans Hashim the 'Sons are jurists; the are wise; 'ada), for instance, such expressionsas of face be ' honour, taken keen at value, instead etc. should not Arabs are hospitable and on their 111,258(Fusal, these 'among there them qualities'. with that people are they is mean what 259)

the this community as a whole that of as be idea stresses passage It should noted

180 opposedto the membersof this community as individuals. In other words, he claims that the Qur'anic passageshould be construedas referring to the Muslim community distinct as entity. This together with other argumentsconstitutesthe essenceof the idea of ijmd'. Secondly, Jaýýdý's appeal to the comparison between the authority of ijmd' and the authority of the Prophet draws another objection which argues that the authority of the Prophet is not based on merely his word, but rather his word was supported by the miracles which happened through his medium. The authority of ijmd' of the community therefore needs to be justified by other separateand sound evidence not by this analogy alone. Jaýýd*answers this objection by rejecting again the very point it makes, i. e. he contends that the justification of the authority of the Prophet is to be from justification due ijmd', the to the more significant and vital role the separated of former plays in the foundation of the religion. That is to say that, as far as the is Prophet discussion is inter-religious level, the the the authority of concerned, at while the question of ijmd', as stated more than once, is an intra-religious (Islamic) debate, therefore its justification is to be based primarily on revelation. That is why the idea of chosen nation present in this analogy is sufficient basis for the authority is Prophet ijmd', the the assertedon other grounds. whereas authority of of The third objection is about the correlation made by Jaýýdýbetween qualifying for testimony in court and truth stemming from this qualification; the imaginary opponent argues that accepting the evidence produced to the court through testimony does not necessarily mean that the evidence represents the actual facts. In the same does God's this testimony the nation over people not of approval of manner, in Jaýýdý' judgement to this their the truth reality. response of necessarily suggest criticism

injunction Qur'anic between distinction the the concerning a makes

between in his does the and certain individuals, view, specify not, witnesses which did by he If God Muslim the specify name, nation specifically. passage about did here 'the Muslim He is about reliable, as continues, that a certain person in be incumbent that trust the to it of judgement us all of upon would community', person. Muslim further that the imaginary The nation's testament Fourthly, asserts opponent hereafter, it is be this to to the world, not as confined might nations over other indication is by in denies Jassds there that this the saying no generally interpreted.

181 verse which restricts its reference to the hereafter. Besides, bringing together two testaments, namely that of the Prophet and the Muslim community suggeststhe for, believer contrary, no sensible would confine the testamentof the Prophet to the next world alone. The final objection assertsthat this verse can read simply as referring to a duty rather than description of the character of the umma, just in the verse (Q 51.56), which 'I reads created the Jinn and humankind only that they might worship Me'. The objection notes that, as this verse does not necessarily mean that the whole humanity God, designating the Muslim community with honesty also does not mean that revere they do not breach the testament. Each time an objection is raised, Jaýýdýreplies by resorting to the analogy with the Prophet mentioned above, in order to gain upper hand in the debate. Here again the opponent is forced either to employ this claim Prophet, the too, or to withdraw the objection from the community. Thus, the against has fallibility to the either opponent accept of the Prophet or endorse infallibility

of

the community: It is said to him (the opponent): If this judgement is true for umma, it should also true for the Prophet - peacebe upon him -. (Fuýiil, 111,26 1)

However, there is another way of overcoming this objection, noting the different in debate is intended While this to give a the these two verses. main verse contexts in by it human history, Muslim the to the praising with community in particular role honesty, to the an ontological verse merely refers other and moderation character of is former Hence the the the to prescriptive and creation. of purpose question, i. e. latter descriptive, a situation, which in Jaýýdý'sview does not allow for comparison. It seems that the idea of a chosen-community which the above verse is said to Jassds, thinks the theory to is the who of most appealing argument emphasise seen as it is his due that by justified to be an intraconviction ijmd' can only revelation designated God follows: the The thus as on goes argument religious problem. has to honest trustworthy, all responsibilities which Muslim nation as the and is, that is the trait, to This another presuppose said character essential mankind. be the truth, the to, of representation must doctrine this nation as a whole adheres flawed. This be to argument would give testament entrusted was the it otherwise (orthodoxy). the the in community of significance stresses practice obviously

182 2. The second Qur'anic evidenceJaýýaýputs forward also emphasisesadherenceto the community (Q 4.115): And whoever opposesthe messengerafter the guidance (of Allah) has been manifested unto him and follows other than the believer's way

This verse commands us to follow the way of the believers thereby justifying the authority of the community, according to Jaýýdý,since it makes it obligatory to join the community. If it were accepted that the community as a whole is exposed to error, runs the argument, then people would be commanded to follow error. Such a is very much against the fundamental assumption of the believer: God result is true and right. Jaýýdý relates only one objection to this commands only what interpretation which conditions the sanction of 'deviating the path of the believers' to 'disobeying the Prophet'; the community does not hold any authority in its own right. However, Ja*ýdý

by citing other passages from the Qur'an, with

similar

juxtapositions, rejects this objection as being linguistically unjustifiable. He states that, if the opposition to the community were not in itself reprehensible, it would have not been juxtaposed with the opposition to the Prophet.

3. The third Qur"anic passageis (Q 9,16): Or you deemedthat you would be left (in peace)when Allah yet know not those of you who believers? His familiar Allah for the messengerand and none save strive, choosing

This passage again juxtaposes the Prophet with the believers, hence bolstering the for the analogy. case

4. The fourth one stressesthe idea of a chosen-nation(Q 3,110): You for been has best enjoin right conduct You are the mankind. raised up community that Allah. believe forbid in you indecency; and and

5. The fifth passageis (Q 31,15): follow Do Me. those him who follow unto the who repent of path and

because the community as a whole, Jaýýaýagain interprets this passageas referring to be he/she but individual the sure of can certainly be the of an piety of sure one cannot include believers to those the who are close certainly fact that the community of follow to the follow the the command to equals pious way of Thus Allah. a command

183

the way of the community. The community representsthe truth on earth. The above passagescontain two important points, which, in the view of Jaý d justify the authority of ijmd'. The first one is the special statusgiven by God to the Muslim nation, which is dealt with in a detailed way. This in practice means adherenceto the view of the community, that is the consensus.By concentratingon the concept of integrity, Jaýýdýbrings forward the idea that it is not only theseformal justifications, but also the practical moral wisdom characterised by honesty, trustworthiness and sincerity that bestow such an authoritative statuson umma. The second point is the juxtaposition of the Prophet and believers in some of the above passages, which in Jassds's opinion, amounts to an analogous evidence, that is comparing the authority of the community of the believers with the authority of the Prophet. It is clear that, though not accepted explicitly by Jaýýdý none of the verses , above constitutes the sufficient basis for establishing the authoritativeness of yma'. The conclusive evidence stems from the idea that is diffused in these verses, which Muslim the praises un7ma.The connection between the concept of ijmd' and the idea of chosen-community is so natural in the mind of Jaýýdýthat his interpretation of these verses excludes any other suggestion. B. Prophetic Reports. The second major justification for ijmd' is provided by the Prophetic reports. It should be noted that the role of hadTth in justifying the authority In is Qur'an. Jaýýdý ijmd' the role of other words, of not as crucial as resorts to it not because of the fact that he considers the Qur'anic passagesas insufficient basis, as 15 but only as a supplement. suggested , Jaýýdý cites a number of Prophetic reports, which in his view constitute a special form of tawatur (a definitive way of reporting the Prophetic knowledge) called alfrom (tawatur various ways): tawdtur minjihdtin obtained These are well known reports, which are transmitted in various channels. It is inconceivable in Despite before lie, false the reports mutawdtir that they are all as we explained and . ....... fact that they are related by many people with different channels, they are concurrent on the idea of adherence to the community. It is similar to one of the mutawdtir types mentioned large That report about an of each other, event independent of people, group a when is above. (Fusfil, knowledge they telling the truth. that are they witnessed, this will constitute a certain 16 111,266-267)

184

It seems that Jaýý4 is worried about the objection that none of the reports cited due definite is That he the to authenticity problem. constitutesa proof why, sticks the idea, which he has already developedin dealing with the mutawatir reports that the force individually-different but is thematically-similar collective of isolated reports 17 force tantamount to the of mutawdtir proper in obtaining certainty . In other words, individually flawed in isnad, the the contents of these reports are reports although imply the same idea, that is the special status of the Muslim community, which individually, Prophetic idea, the this rule, a reliable not reports common makes 18 for but, Jaýýdý, Prophetic Seven they are only examples : are cited, reports sunna. 1. The sermon of the second Caliph, 'Umar, in the presence of the companions,

which readsas: living best The those did like I Prophet The people are among you and said: stood among us After them. those then them, after coming and in my generation, then those coming after but being (evidences) to vow will and asked give witness, that, one will give witness without heart the The to stick being should of paradise to please wants who one vow. asked without far he from individual, two the for Satan away. is to the community, is with

he Prophet from is that it the said: 2. In many spread reports related feels hostile in to follow that truth, to who one A section of my community will continue down. decree divine harm, do the comes them will until no 3. 'My community will not agreeon error (daldo' 4. 'The hand of Allah is with the community'

5. From Wddh

ibn Jabal, he said that the messengersaid:

There to hears are many it. my word, adds nothing My Allah enlightens the one who better. Three those understand who knowledge transmission reaches whose transmitters of for the be of sake Muslim of action heart sincerity stingy; not the will of a things on which for Muslims, their to the for of community good and sticking Allah, urging the authorities behind. from their call encompasses

his from ' Islam tle the throws neck. of 6. 'Whoever separatesfrom the community,evenin a span, baduh, long in that: Hudhayfa, from a 7. It is related

185 I asked the messenger'what will save me from that (a danger foretold by The Prophet)?'. He replied 'the community of the believers and their leader'.

According to Jaýýdýthese reports justify the authority of ijmd' in two aspects.One is the fact that despite the difference of isndds and multiplicity of transmissions, these reports promote the same single idea, that is, adherenceto the way of the community. The other aspect is that they are conveyed in the presence of a large number of people, none among them attempted to reject the idea. These two points are concerned with establishing the authenticity of these reports. With introducing the his Jassds objections and responses also enters the realm of the interpretation of these reports.

The first objection rejectsthe idea of infallibility of the community, which the reports be to are supposed suggesting,owing to the fact that the community comprisesof fallible individuals. Jaýý4 first refutesthe rationalebehindthis objection by resorting to the fact that in some situations,where an individual is not able, the group makes difference, such as carrying a heavy stone, or in mutawdtir reports. However, his based basis; is is ijmd' that not on a rational oncethe authenticity of the main answer for further is is there argumentation. no need reports established To this last point is raised a second objection, which appeals to a Prophetic report The Muslim indicates the the that report nation's agreement on error. possibility of believer The the there the world. towards on shall remain no end of world says that future be fact basis time that there the when no will a in of opponent argues, on the interpreting for be the holding there that as above reports truth, the no claim can one infallibility the to referring

for Jaýýdý two the gives alternative ever. community of

the he to the that majority of points report either this to states objection, answers literally, in time it the to which world end of the whole or refers people rather than discuss be the all. at to obligation of concept there would no need

it be Prophetic Quranic both passages can and Summary. From his treatment of is ijmd' the far theory the Jaýýdý, prime concerned, of to as that, as argued but Qur'an, the from secondary the reports play a whereas justification comes infallibility the by latter, the community as well The of emphasising supportive role. is the which a chosen-nation, of idea endorses the to community, as adherence in Jaýýdý's the There Qur'an. of authority justification room by no is the introduced

186 of ijmd' for reason, for it is rationally plausible that a large group of people may agree on error, though it is less possible than the plausibility of error in the reasoning of an individual. Exclusion of reason is not out of hatred to reason but out of respect for it, as he accepts the role of reason in justifying the mutawdtir report, for example. The case of ijmd' is however exceptional due to the fact that reason cannot be utilised for its justification. Another striking fact is that the treatment of justification of ijmd " by Jaýýdý stresses the communal aspect of ijmd'. He nowhere raises the issue why those general references to the community should be taken as indicative of the theory of ijmd, the primary aim of which is not only to consolidate the periphery of Islamic community in general but also to function as an instrument of validity in a particular point of law. Because we are talking here about a material source of law that will validate particular rules, it is more appropriate to put the question in a way that enables to establish the concept of ijmd r as a source like Kitdb and sunna. It is this last point, I think, led Jassdsto concentrate, besides these general references, on the analogous argument provided by juxtaposition of the Prophet with the community of the believers in some of the verses cited for ijmd'. By the time of Jaýýdý,the legal theory Islam has of already recognised Kitdb and the sunna as the primary sources for law, is by ijmd' the accordingly authority of secured reference to the already assumed is inherited him by Prophet, the community as a whole. the which after authority of To sum up, the authority of ijmd' takes its strength not only from the convergence of Prophet. from inheriting And but the this explains why the authority of also opinions Jaýýdý regarded the above general references to the community as not vague but for ijmd'. the of idea explicit evidence 11. Dabfis! It is quite interesting to note that the topic of ijmd' occupies far less space in Dabus-1 dealt is three It the topic that in Jaýýds. to main chapters in the in than say suffices former, as opposed to sixteen chapters of the latter. Although some of these sixteen headings are compressed to fit into a single chapter, Dabus-i sometimes completely " i former to the md and sometimes ignores certain issues considers as relevant in issues passing. touches certain other

187 The question why DaWs-l'saccountof ijmd' is so brief that even it ignoressomeof the central issuesabout ijmd' remains to be answered.As we have seen,he startshis work first by defining the conclusive proofs, namely Kitab, khabar al-mutawdtir and ijmd', which are all dealt with briefly. Then comes the topic of tools of linguistic interpretation, which is followed by inconclusiveproofs, that is, ambiguousQur'anic passages,khabar al-wdýid and qiyds, the last two of which are dealt with in greater detail. A possible explanationmight be linked to a problem associatedwith the overhis all structure of work, which is basedon this distinction betweenconclusive and inconclusive proofs. This led him to fundamentally changethe organisation of the by for treating, subjects, example, the topic of sunna in two separateplaces, one at the beginning and the other toward the middle of the book. The topic of ijmd' is also displaced from its usual place, that is after the sunna section,to the beginning. The including that of DaMis-i's predecessor,Usul of Ja:ýýdý,has standard uyfil works longer discussions fact ". The Dabus-i ijmd that considerably on mutawdtir reportsand follows the general pattern in the case of inconclusive proofs but not in the in Dabus-i be by this to conclusive onescan explained reference real preoccupationof his dominated by (dispute). Even ikhtildf the name notion of work, which was always "ilm foundation the the sciencecalled al-khildf, namely the of was associatedwith have for jurists19. He disputes to taken the the granted the seems among science of himself Jaýýdý, by his to the confined and predecessor, elaborated agreed positions discussion and elaboration of the disputed matters.His book however is in no way incomplete; it rather covers all the areasfalling within the umbrella of the scienceof little but the agreedpositions, such as mutawatir and with concern with uyal al-fiqh, it, justification but deals he latter, the ijmd'. As regardsthe of omits with extensively the details of ijmd'as expoundedby JaýýdýJustification.

DabusTstarts the topic of ijmd'by the following declaration:

basis knowledge, the is that on of yields certain The consensusof this community an authority 1i bujja hddhih Qjmd' favour mcijiba al-'ilm al-umma on this religion the revelation, as a

(Taqw-i 'ald kardmatan al-dTn). shar'an

,f

8a)

dominate issues the treatment the that of the will central This statement contains it: in Three DaWsl. by made are justification propositions issue of -

hence Muslim imposes an The consensus of community entails certainty,

188 absoluteauthority, The justification of this authority is basedon revelation,not on reason, -

And finally, this is a divine benevolence upon this community.

Jaýýdý has already stated, though in a scattered manner, these three propositions. Dab-dsl's account clearly presupposes that of the former. Although he mentions the shar'-revelation (sam' in Jaýýdý),he, nowhere in this chapter, explains its purpose. Only by going back to Jaýýdý can one realise that it aims to exclude reason from having a say in justifying ijmd'. The third proposition is closely linked to the second in it that one, constitutes the backbone of the justification of ijmd'. Dab-Cis!appeals to two arguments in order to explain why reason cannot be utilised in the case of consensus. The first one is historical-theological; the history of religious communities showed us, argues Dabiisli, that a large number of people can agree on erroneous beliefs, as the Zoroastrians, Christians, Jews and others did. The other based human he the on argument is observation of societies; states that people by imitate hence to the their way of ancestors out of reverence, nature are prone These two points thus to them without any proof. resorting assigning an authority justify in it to the authority of to to turn order exclusively revelation make necessary ijmd'. Like Jaýýdý,he first cites certain Qur'anic passagesand then Prophetic reports to this purpose. A. Qur'anic

like his Dabiisli, to the a central assigns role predecessor, passages.

Qur'an in the justification of ijmd ", quoting, in total, six verses, These are: Q 2,257; Q 33,43; Q 3,110; Q 3,143; Q 4,115; and Q 24,55. Most of the chapter is devoted to the explanation of two of these passages, which are regarded as pivotal; the for Dabiisli's The less reason space. explanation of the other verses occupy relatively focus on these two verses is again related to his perception of the nature of the favour. One divine these two ijmd, passages of the a as of authority of justification The in Jaýýdý's important treatment, above. out as pointed the most as was regarded 'a idea is both in the community' with a chosen of passages the thrust of argument Dabiisli's look Now these interpretation of and passages at can we particular mission. them.

1. Q 3,110 reads:

189 You are the best (khayr) community that has been raised up for mankind. You enjoin right conduct (al-mdrqj) and forbid the reprehensibleone (al-munkar).

Dabiis-i finds two points in this verse that, he thinks, makes a for case ij*ma, one being the attribute 'best community-khayra ummatin', and the being the other mission embeddedin the expressionsof al-ma'rcif and al-munkar. Dabiis-1draws attention to the fact that this word khayr is in the linguistic form of ral (akhyar), a, referring to the superlative form of the adjective. Thus, God praised the Muslim community with the ultimate goodness. Since the ultimate goodness be cannot separated from the ultimate truth in the knowledge of God, this passageis be to understood establishing the special status of the Muslim community in the eyes it God. If of were possible that the Muslim community could agree on error, that directly would go against the assumption made in this verse, namely being absolutely knowledge God. Thus, does hit 'not tune the their with in of only consensus the truth, 20 but also the truth cannot lie outside their disagreement' This last statement, though . inferred directly from indeed Dab-Gs-i's, this the Ijanafis', not passage, reveals understanding of ijmd'.

Here the concept of ijmd' means more than a mere

it in fact encompassesthe idea of veneration of the consensus of past generations; disagreement their their gain consensus as well as past generations, where hold Later an innovative opinion on a matter which generations cannot significance. in to already gave rise certain opinions the past. The second point in this passagethat bolsters the idea of ijmd', according to Dabilsi, is the special mission entrusted to the Muslim community, which also constitutes the basis of the praise mentioned in the previous point. Dabiisl relates these two concepts to the juristic concepts of ijtihad and ijmd', by saying: Absolute ma'raf (righteousness)or munkar (indecency) is what is right or indecent according to God. The opinion held by individual mujtahid, in the caseof his opinion being false in the knowledge of God, becomesma'raf or munkar in the opinion of that particular mujtahid. It is beginning is This the "ma'r-Of'. they the the of verse, where of explanation not an absolute (Muslim community) is characterisedas being the best community, for this reason, i. e. hitting (Taq absolute truth.

,f

8b)

by Jassds, 2,143 Q as seen 2. The verse was already given a particular attention follows: above, which reads as

190 Thus, we have appointed you as a moderate community (umniatan wasatan) that you may be witnesses on mankind, and the messengermay be a witness unto you.

This verse, too, contains, according to Dabiisl, two points that establish the Idea of ijmd', one being the phrase un7matanwasatan, and the other being the role given to this community as witnesses to mankind. Dabiisl, like Jassds, first focuses on the word wasat, which is obviously a praising adjective of umma.

By citing another Qur'anic passage and a line of a (the poem

same poem cited by Jaýýd5 above), he identifies the linguistic meaning of this word 'the as one whose word is held in respect and content (man yurtaad bi qawlih)'. Here Dabas-i paraphrases the word wasat with a word which is not its literal equivalent but its implication. rather

Although Ja55d5 eventually reached the same conclusion, he

did it through the medium of another word, namely, 'adl meaning "reliability'

which,

he thought, was a synonym for the word wasat. The idea is the same; God's speaking 'satisfaction (irtiad')' of umma with

in its decision: the excludes possibility of error

Absolute satisfaction stemsfrom holding the truth in the eye of God almighty, since originally error is a forbidden thing, but sometimesthe one who errs is forgiven, owing to an excuse,and his for in truth is rewarded in accordancewith search a proper way, albeit the error which he falls in is not in itself approved by God almighty. (Taq

5

f. 8b-9a)

Dabiisl again goes one step further than Jaýýdý and interprets the passage in ijtihdd, juristic ijmd', the terminology, using concepts of and with accordance thereby relating the content of the passage more directly to law. That is to say, ijtihdd individual time the the ijtihdds to same agent error, at of exposed are although is excused for his/her mistake, the collective opinions are also immune against error, truth. being the the absolute of representation as The point in the second part of the Qur'anic passagelies in the concept of shahada (testament), which, according to Dabus-i, refers to knowledge and authority. God's designation of the Muslim nation as witnesses on mankind presupposes that they have a reliable knowledge about people, which, in turn, confers them an authority in being include the Since testimonies possibility of always ordinary their judgement. God's between thereby testimony, distinction those once Dab-Cis! and false, makes a former, The in between this distinction the and relative. to absolute again resorting latter based hence facts, the the whereas is conclusive, the of realities case, expresses

191 on the presumption of the truth, excluding the question of reality, as it may never be

discovered. DabiisTi states that by making the Muslim

community

witnesses for other

communities God informs us that He approves their testimony. Since God does not approve evil, the word of umma should be representing the truth. Besides, the analogy of the testimony of the Muslim community with that of the Prophet in the last part of this passage elevates the status of umma, as a whole, to the level of the Prophet. Four objections are raised against the interpretation of this latter passage, two of which were already appeared in Jaýýdý'streatment, i. e. the restriction of the reference of the passages to the hereafter and considering the function of the passage as I prescriptive. shall, therefore, mention only the other two. Firstly, the opponent restricts the implication of this passage by asserting that the Muslim umma holds the truth in matters found in the Qur'an and the mutawatir is That to say, the testimony of the Muslim community constitutes an reports. in far foundations the transmission the absolute authority so it is concerned with of of he finds in knowledge. denies it Dabus! the suggestion as a restriction of the religious interpretation He that this the testimony claims sort of without any ground. scope of literal be be the the text to meaning of and would considered as an addition be (naskh), therefore, cannot asserted without a which, characterised as abrogation interesting A foundation this against objection argument more of revelation. solid ". between distinction ijmd fundamental the to of and concepts mutawatir a points out To assert itself, hence its authority, a mutawdtir report requires a large group of in little itself be three ijmd' people, which as achieved with as can people, whereas divine there. were not guidance if would not constitute a conclusive authority Secondly, the opponent argues that God's acceptance of the testimony of the umma does not necessarily mean that their word is decisive authority. It might simply mean After inconclusive. it the be all, authority God their or conclusive words, that accepts khabar al-wOid of

by God, though is recognised as a valid source and qiyds,

Qur'anic to is that the It a similar refers nature passage above possible presumptuous. Dabas-i's to this i. ". for critique ijmd answer reveals one. e. inconclusive of authority ) body: his conception of shari'a as a revealed

192 We said: the basis of the authority is the report of the Prophet and his report entails certain knowledge. The doubt occurs in its transmission. It (doubt) is overlooked due to the absenceof the Prophet - peace be upon him. There shall be no debate if neglect is caused by necessity (4arz7ra). As to qiyds, it is not an authority in the senseof introducing a new law, but in the sense of extending an already established ruling by a piece of revelation that is in itself is entailing certainty into an area which not covered by revelation. Our debate is, in fact, over the actual basis of the authority. Thus ijmd' becomes authoritative in an area which is not covered by revelation as a divine grace on this community, as said in the verses 'you are the best community ever raised to mankind' and '... that you becomewitnesses...'. This quality of theirs stemsnot from them (umma) but from Him (God). (Taq

If

9b- I Oa)

Before closing the Qur'anic passages, it is worth mentioning that the passage by Shdfi'I the tradition as the most pertinent to the justification of ijmd' considered in just in Dab-ds-i, receives only a passing remark as Jaýýdý. did not stress the role of baduh in B. Prophetic reports. We said above that Dab-Cis-i the question of the justification of ijmd'. Unlike some jurists who consider that the Prophetic be forcefully ijmd' the reports, ground of assertedon can only authority of DabiiS-1seems to regard the role of reports as dispensable. He thus cites only the following two reports, which, he says, are 'reported through more than one channel': God will not allow my community to agreeon error (aaldla).

And: He who opposes the community with an inch would be regarded as denouncing the tie of Islam.

He then stressesthat others quoted a sufficient amount of these reports in a way that for he the the The of role sunna stressing not gives reason constitutes certainty. his book Given brevity. his the of as size be voluminous technical, to namely appears have Prophetic role in significant fact more much a these that reports the well as be ijmd', there justification must the surely jurists' of treatment of some other he brevity, the Besides, the which for Dabiisli's of reason negligence. reason another large to the he space a considerably is allocated already as satisfying, not gives, Prophetic he the Qur'anic reports. continues it after passagesand interpretation of the foundation for Dabas-1, fact theory in the lies that, the of it to The reason, seems me Qur'an benevolence' the divine provides idea a which about is the of ijma, of Dabiis-i, backing the does the evidence. and of sunna that need not sufficient ground

193 indeed Jaýýdý too, therefore, de-emphasised the role of the sunna, unlike, for instance, Ghazdl-i (d. 50511111) who assigns the Prophetic evidence a very crucial and indispensable role in justifying ijmd

r2l

Conclusion. The treatment of the justification of the authority of ijmd' by Dabiisli is very similar both in content and in structure to the treatment of Jaýý4. The main jurist less latter identical former; divine the those the of are more or ideas with of favour, chosen-nation, exclusion of reason from being a proof, the Qur'anic passages, is in However, Dabiisli's baduh there the etc. a slight variation account of evidence in for he ignores it, for Prophetic ijmd', two establishing mainly except citing reports discussion. lesser Jaýýdý, hand, the though on other assigning a unusually without ijmd', the to on relates most of the usually cited reports with providing a role sunna fair discussion of the issues surrounding their interpretation. There are also some differences between these two works. First of all, Dabiis-I's treatment of the subject is more settled and takes many things for granted. For to the ijmd', the the general as a prelude serving companions' matter of example, be Jaýýdý to topic, the ijmd', marking no theory of appears commenced with which debate ijmd' indicate the This the that DabiisVs of around may mind. special case in does Dabils-1 Jaýýdý, Secondly, Dabiisli. in time the unlike of settled was companions be ", discussion ijmd the the theologians which can of the in of name mention not Besides, Dab-as-i's juristic debate the to desire his the by to confine realm. accounted limits discussion keeps the he the law-oriented; of within discourse is more always justify interpretation to his in the is passagescited of jurisprudence. This very clear interprets Qur'anic he instance, In a retrospectively one the authority of ijmd'. later by developed ijtihdd light theory the (Q 3,110) the of of in passage legal having to interprets recourse the same passage without jurisprudence. Ja*ýdý terminology. badiths, two the finishes he with is the after Dabiisl that chapter, final A note about

Qur'anic interpretations the which makes passages, the of additional remarks about his treatment look less organised.

194 111.Sarakhsl.

Introduction.

As stated earlier, the structure of UsW al-Sarakhsi, more or less,

follows, though undogmatically, that of Taq

by Dabiisl In this scheme, the

discipline 'bujja' this the contentsof are organisedaround conceptof referring to the in legal According law the theory. to this, the evidence valid authoritative sourcesof (u,yCtlal-fiqh) either yield certainty or probability; under the latter are included, for example, khabar al-wabid and qiyas, whereasthe former includes the Kitab, khabar in The hence, " Sarakhs-i, ijmd'. ijmd topic and of al-mutawatir constitutesthe third of the conclusive sourcesand comes after the Kitdb and khabar al-mutawatir, as the third of the 'conclusive proofs'. The title of the first chapter starts with reminding the epistemological status of ijmd': 'Chapter on explaining that the consensus of this community entails (certain) knowledge (faývlft baydn anna ijmd'hadhih

is 11 This title al- umma majib al-71m).

Dab-Cis-1. identical that of with almost Justifying the authority of ijmd'.

The matter of Justifying the authority of ijmd' is

Muslim divine the by Sarakhs! community grace over as purely considered also have He two the to being seen we reasons same than appeals process. a rational rather To the in Dabiis7i, namely the theological necessity and observation of societies. Zoroastrians Jews, Christians, Muslim from point of view, non-Muslims a recall, despite beliefs in for and practices, on certain error all were example and others, human Besides, these matters. that their relatively large populace is unanimous over 'the their imitating habit in ancestors' way of the accepting and of communities are doubt the fact genesis of a unto casts obviously which a without proper reflection, Sarakhs-1 too, to to claim These according two impossible, it points make consensus. be iimd' Hence, the ijmd'. can only of umma for theory the of a rational ground divine be it (shar'an), as a considered should and by to justified reference revelation benevolence on the followers of this religion. by justified be ijmd' rational that cannot the outset Despite this clear warning at for He, to reason. Sarakhs! references some contains treatment of the means, (shay' kind "a he min proof rational of calls which argument, new a adds example, Kitab explore we will the which sunna, and two, namely the to usual al-ma'qClo,

195 soon. Moreover, there is an unqualified reference to reason in presentationof the argumentsof the opponentsof ijmd, identified with a group of Shi'l-Imam7ischolars and with the famous Mu'tazil-i scholar al-Na:q5m. By concentratingon the rational aspect of their argument, Sarakhs-iengageshimself in a rational response. The opponents argue that, since a consensusis comprised of individual views, each of is which in itself inconclusive, it is illogical to suggestthat their combination turns be just to out conclusive, as a combination of blind persons adds nothing to the individual blind personsin terms of sight. the situation of Sarakhs-i would simply state that the infallibility

of ijmd' comes from revelation

alone, as he already stated. He, rather, regards this rational challenge as important and to be dealt with in a proper way. Thus he denies the claim that a combination difference. In all aspects of life, the experience shows that things that makes no be by individuals, be by For cannot achieved can accomplished groups. example, a food is hunger to single spoon of not enough satisfy whereas a combination of spoons makes the difference. Similarly, a mutawdtir report is different from the in last This terms of yielding certainty. example makes an analogy isolated one between ijmd' and mutawdtir, a matter to which we will return later. This objection has already been raised at the end of relevant chapter in Jassds,who though answering it in a rational way, still reminded his opponent that he is not justification the this to ultimate criticism, since subject

of ijmd'

from stems

definitive is As taken the there, not as a proof rational argument suggested revelation. for ijmd' but as a loose rational ground for divine grace. Otherwise, they would be in favour is divine hand, ijmd' this in that the a on umma one claiming, on contradiction Sarakhs-i, hand, ijmd' this on rational premise. grounding alone and, on the other however, is apparently less worried with this contradiction, as he makes no reference is following The beginning. he quotation, which to the reservation put at the different his indication is ijmd', attitude: of to the an also of opponents addressed basis demolishes the ijmd' of He who denounces that is a conclusive authority certainly the the basis safe-heaven the of for and of religion the principles of ultimate religion; be denier The this ijnid'. working towards abolishing religion. would Muslims is their of

(LLsAl,1,296) fundamental Dabiis-i, Jassds found assigns a role or in This passage, which is not

196 to the conceptof ijma' in establishingthe foundationsof Islam. The careful attitude of the former two jurists seems to be not taken into account by the latter, thereby apparently falling into the trap of vicious circle. For, basing ijmd' on revelation, then securing in turn revelation by ijmd', leads to a kind of circular argument the former jurists were trying to avoid. Given the initial reservation that ijmd' is basically justified by revelation, comprised of certain Qur'anic passages and the Prophetic however, it be reports, can assumed that Sarakhsl's aim in the above quotation is probably to emphasise the significant role of ijmd' for the contemporary debate between orthodoxy and heresy. This is clear from the nature and style of the argument in that passage; it is clearly a labelling rather than reasoning. This paragraph, whatever the reason behind it, still

undermines the quality

of

Sarakhs-i. argumentation in Sarakhs! appeals to three sets of arguments based on the Kitab, sunna and reason. Since both the Qur'anic and Prophetic passagesare more or less the same, in what follows, first, I will compare the interpretation of one of the passages, in each development to the examine section, of argumentative technique, then describe the 'semi-rational argument'. so-called

A. Qurlanic proofs. Sarakhs-irelatesfour Qur'anic passages,which are all quoted by Dabiisli (Q 3,110; Q 4,115; Q 24,5 5; and Q 2,143). Before going into the details of be First four to there the of all, are noted. are, observations general passages, one of but Qur'anic to they the only support are appealed cited passages other of course, do for they Sarakhs-i not make an a particular verse; proposes interpretation independent point. Secondly, it seems that Sarakhs-iis satisfied with these four ignores for he his to someother passageswhich we saw cited in case, passages make It seemsthat he takes for granted the idea that these Qur'anic Jaýýdýand DabUs-1. for him for ijmd', thing the remaining only is citations constitute a sufficient ground the most appropriate ones. choose or these to organise verses as well as possible Thirdly, for Sarakhs!too, the last passageconstitutesthe most significant argument, indication the discussion the to of a particular verse as if we take the spaceallocated double last The than the space more degree occupies verse the significance. of of first he deals be It that the three with noted should verses. the to remaining allocated it his last focuses thus the brief, clear what in then making one, real on three verses Sarakhs-1, the that these too, Fourthly, explored idea is. previously endorses intention

197 Qur'anic passagesmake two main points which are important in establishingthe authority of ijmd' as a conclusive evidence.Theseare insistenceon the significance of the community and the analogous status of ijmd'with

the status of the Prophet, an

idea gathered from the juxtaposition of both in most of the passages cited above.

The first passage(Q 3,110) cited by Sarakhs-1 reads: You are the best (khayr) community that has been raised up for mankind. You enjoin right conduct (al-ma'rqj) and forbid indecency (al-munkar).

Sarakhs-1,following Dabfis-i, concentrates on the word 'khayr' in this passage,which describes the Muslims as being in the state of ultimate goodness, a quality which in his view clearly indicates that what they agree upon is the ultimate good. Since this is quality given due to the fact that they enjoin what is good (ma'raj), how can we link the ultimate good with the idea of ijmd'? Sarakhs-imakes a distinction between objective and subjective truth, following his predecessor,i. e. DabiisT: The ultimate good is what is true according to God; as to the conclusions arrived by a particular mujtahid, it cannot be said for certain that they representthe ultimate truth, for a mujtahid might be right or wrong. It is only for himself that his opinion is to be regarded as true, namely binding in terms of practice ('amao, unless, of course, it is discovered to be wrong. This leads us to the conclusion that the ultimate good is what the Muslims agree Qsfil, upon.

1,296)

The obvious objection to this claim, as we have seen several times, is that such interpretation of the passagewould amount to the odd claim that all the members of from Qur'an By have the this the community and everyday giving examples quality. language, SarakhsTargues that the passagehere describes as holding the truth either God For (Q 2, them. the when example, relates the totality of umma or majority of 55) that the companions of Moses said: 'Since, you said: o Moses! We won't believe but his this, it does ', that said community some of each member mean not you... in 'the Hdshim 'the Similarly wise' are and people of sons them. as expressions such of literally; be the they jurists', stress simply Kiffa most understood cannot are of The therefore, that this feature these is, passage of implication groups. of prominent it is Muslim truth, thing ultimate an upon a and agree "if the majority of the wimia be dispute', their truth the disagree outside cannot ultimate something on they when 22 be 'the It disputed that in the lies noted should majority' views. of i. e., the truth one

198 means,in this context, the majority of the whole umma,lay or learned,for, we know that the definition of ijmd'does not allow the view of the maority of the scholarsto be called ijmd The above interpretation of the passage is more or less the same as that of Dabfis-1, but Sarakhs-1embellishes it with additional examples drawn from Jaýýdý. B. Sunna proofs Five out of the six prophetic reports Sarakhs! quotes as a justification of ijmd' already appeared in Jaýýdý. These stress the idea of infallible community and the danger of deviating from the path of the community. Jaýýdý Dabfisl, however, do and not quote the following report: What Muslims consider as good is good according to God and what they seereprehensible is reprehensible according to God.

We know that al-Shaybdii-i used this report to justify ijmd ", but badith specialists it consider as weak, and, at best, consider it as a report coming from a companion.

Like Jaýý4 and Dabiis-i,Sarakhs!admits that, when individually taken, thesereports do not yield a conclusive authority, as they fall in the category of khabar al-wabid. Having said that, the fact that there are so many reports to the sameeffect transfers them to a mutawdtir report. The reasoningis as follows: For, when each of them (transmitters) transmitted a badTthon this matter in the presenceof a group of people, against which nobody raised an objection, this report should be taken as a departure from Mecca, Just somebody sees a caravan, after its as and hears one of niutawdtir. them saying 'we made bajj', this information will generatecertainty that they made a bajj in (Uýu 1,299) al, that year.

C. A kind of rational justification

(sbayun

mlu al-ma'qfij).

Jaýýdý and then

DabiisT have considered the idea of ijmd' as an intra-religious issue, i. e. it cannot be between lacks backing the ground of a common a asserted against non-Muslims, as it Muslim and Non-Muslim, namely reason. Although Sarakhs-i admits this idea in insistence fully be the the he to on satisfied with justification not seems principle, institutional He Kitdb change to the set of based only on makes an and sunna. based form However, he introducing by on reason. of argument a new arguments in it He 'rational' to be to unqualified sense. an as call prefers to reluctant seems

199 name it as 'a kind of rational argument (shay' min al-ma'qao'. It seems that he is pulled in two directions. On the one hand, the classical approach regards the rational link between epistemological certainty and the concept of consensusas untenable.

On the other hand, the idea that consensuscannot be assertedon the basis of reason, the bastion of the discussion,seemsto be increasingly less satisfactory.After all, the traditional arguments appealed are far from being conclusive, hence subject to criticism. Thesetwo considerationsapparentlyled Sarakhs-ito provide a combination of traditional and rational arguments. Close scrutiny of the argument reveals, nevertheless, that this so-called rational in fact, argument, presupposes a premise based on a fundamental assumption of Islam, found expression in a Prophetic report which reads as 'A section of my follow in feels hostile to the to them truth, that community will continue one who do harm'. finality Day Given Islam till the the the of the will no of message of Judgement, Sarakhs-iconsiders the role of this group to be replacing the role of the final Prophet upon his death. In other words, the fate of Islam after the Prophet is infallible, is be fulfil in this task to to to the assumed order community who entrusted in that what they agreed upon will be like what is heard from the Prophet. This same line of reasoning has resonance, according to him, with another legal principle, that is i. it based it is despite ijtihdd, decision finality that the e. mere the only of a qddi, of is not a definitive ruling as far as the legal theory is concerned. As this principle of is judiciary institution the finality the one of pillars of to which of the protect aims the the Sarakhs-1 on whole, requires of religion, protection similarly, argues, religion, the assumption of the infallibility of the community. This last analogy is striking, as it indicates that in Sarakhs-i'sview all the evidence but in is the ijmd' conclusive end not the to of authority justify appealed inconclusive is ijmd' is the according That that to of authority say not presumptuous. from the this stems it authority the that of conclusive nature to him; rather, means idea indispensable the is prerequisite of an fact that the infallibility of the community Islam finality the Otherwise, Islam'. the message of of the "finality of message of of this In conclusive rational a not of reason, be sense strict a untenable. would looks the though based end process is it i. premises, rational on not argument, e. foundations, foundation the ijind' the Sarakhs! of as Once regards again rational. Dabiis-iThey in Jaýýdý have and to were seen we what is the contrary quite which

200 very strict in making this distinction in order not to fall in the trap of circularity, about which Sarakhs7iseems to be less careftil. That is why, this so-called rational argument was actually regarded by Jaýýdý within the prophetic reports, rather than a separate category. IV. Pazdawl and #mj " Introduction.

When we come to Pazdawl-our task is apparently easier, because he

follows the footsteps of SarakhsTboth in content and in technical vocabulary, which is most manifest in the titles both jurists choose to name the chapters. The similarity, however, as usual, disappears when the structure is at stake. PazdawT uses the Sarakhs-1 his The topic of ijmd' in Pazdaw-imaterials of with own structure. comprises of five chapters as opposed to the six in Sarakhs-i,but it is because the former reduced the number of the chapters by treating two in one heading. The first topic with which Sarakhs-ihas started the topic of ijmd', that is the justification of the has been This ijmd' treated there. authority of separately introductory chapter of SarakhsT is not actually omitted by Pazdawl; it is, rather, placed within another last implication is ", in legal (ýukm) 'the ijmd the which chapter chapter, namely of both jurists. While Sarakhs-ithere deals only with different categories of ijmd' in terms of the epistemological value it yields, Pazdaw-ialong with this issue treats the issue that concerns us here, namely the justification of y*ma'. One of the reasons for this change is the close link between the issue of the justification

justification The its the ijmd' nature of epistemological value. and of

be by i. ijmd', to depend the the asserted e. authority supposed nature of on will Although it is the tentative it is one. a only or authority certain an absolutely whether iimd' it to this that did jurists attempt justify as is clear not specified, above ijmd' the they is the companions, as of with only concerned conclusive evidence to the ijmd' the equal a certainty it the yield companions of clear that only make Pazdaw-i later to The ijmd' centuries according Qur'an and khabar al-niutawatir. of tantamount khabar to to which is an kind al-mashhar, equal authority of asserts a (71m) falls between that and presumption certainty absolute category epistemological heart knowledge the that the gives as (71m called which is al-ray), truth ghalib of tranquillity

An iiind' that comes terms (VIM tuma'ninat al-qalb)23 in of certainty.

justifying To khabar the to up, sum most al-wabid. disagreement equals after a

201 certain ijmd " suffices for the lesscertain ones.This brief accountshowsthat the issue of the justification cannot be separated from the issue of epistemological value of

ijmd', which must have led Pazdawlto bring them togetherunder the sameheading. Justification. According to Pazdaw-1,some heretics (ahl al-hawd) did not give absoluteauthority of ijmd, the reasonbeing that a consensusis formed by individual mujtahids, whose word, when taken separately, does not constitute an absolute authority. A view based on the combination of inconclusive individual opinions, therefore, cannot gain a conclusive certainty. Pazdawl, too, countersthis opposition in three headings,namely the Kitdb, sunna and reason(al-ma'qao. Unlike Sarakhsi, however, he seems not to be troubled in calling the latter as 'rational'), namely without any reservation. A. The K(t9h. Pazdawi-cites only three Qur'anic verses(Q 4,115; Q 3,110; and Q 21 143), which all are cited by earlier jurists. The comments on these passages introduce nothing new, all can be found in the previous books. Pazdaw-ihowever important the picks most part of each commentand summarisesit in an almost one For have (2,143), 'Thus to the sentence. example, as regard we passage appointed be (unimatan that you may witnessesagainst you a moderate community wasatan) have been Pazdaw-i ', this two passage,which aspects of mentions mankind... issue He by Jaýýdý the to at stake. says: and othersas pertinent regarded The word al-wasat means al-'adl (integrity), which is the opposite of deviance (al-jawr). The testimony over people presupposesholding the truth, if it is a testimony covering both 24

this world and the hereafter (Mnz, 111,976) .

From this extremely short comment we are unable to reconstruct Pazdaw-i's It is the Only to the turning we understand points. earlier sources can with reasoning. the the Pazdaw-1 and quality content of with that is not concerned very clear he found in front him, the his material summarising with is concern real arguments; Sarakhs-1. that of especially is in badt-ths to, available all the one of which B. The sunna. Three are appealed first from for the third time; the the Pazdaw-1is second introduces previous jurists; badith list). The his in final reads as: second Sarakhs! (the report lead 's 'A'isha Bakr AW him to be prayer. people said The Prophet - peace upon - ordered

202 'he is a sensitive person'. 'Umar attempted to lead the prayer. The Prophet -peace be upon him- said 'God and Muslims would tum away this'.

Although Pazdawl generally attaches each text a brief comment, there is not one in this ýadfth. His point seems to be that the juxtaposition of the position of God with that of the Muslims is significant. The Prophet gives a respected status to the opinion of Muslims by placing it next to the opinion of God.

does not raise the issue of the authenticity of these reports, which are Pazdaw-1be if his Again to taken separately. concernseems generally consideredproblematic, less about a genuine debatethan about a presentation.To him, the debaterepresents law. for in is longer happened the the that studentof a challenge past; it no something The only thing that remains for the student is to presentthe ready data in a concise detail. in way, if not precise C. Rational proof (daN a]-ma 'qfil). What is called a rational proof is, in fact, based God is Prophet Firstly, the the the messengers seal of on three theological premises. End the His till of world; shari'a is valid and operative send to mankind; secondly, Pazdawl two then then. is till his the cites to right path continue on umma and thirdly, infallibility him, follows, It that to final of badi-ths to support the according premise. is What these is more premises. the Muslim umma an indispensable outcome of interesting is that he ends the so-called rational proof with an assumption of obvious theological outlook: the believers the to ceased, for the revelation when err, the community of If it were possible follows it ijmd' So broken. that their be must being the would path right on promise of is This the without to not divine religion. protect order in truth grace as a represent the his basis the decision though of on adjudicates the of qddi, the of qadd' case precedent, as in ijtihdd to the the This protect just be above regarded is rescinded. cannot personal reasoning, (Kanz, (min the asbab al-din). the religion of ratios of institution of judiciary, which is one

111,98) be Pazdawl indicates, to judiciary seems institution the the of As the analogy with far from being ijmd' the to are fact establish the that adduced proofs the of conscious from three the instead premises ijmd' stems of the assertion radical and convincing important the of most therefore as stands The argument rational above. mentioned the the throughout chapter, most made already points it several of all, as comprises Muslim favourable the divinely of status the on emphasis is which of prominent

203 community.

Despite the fact that Pazdaw-iagreeswith the claim that ijmd' is, in the end, a divine grace (kardma) upon the Muslim community, is this unqualified referenceto reason not contradiction? Besides, is it possible to justify ijmd' with rational methods? It seems that two different understandings of reason are at play here. The earlier meaning refers to reason in the strictest sense, or 'purely rational', truly universal. When Jaýýdýsaid that ijmd' cannot be established with reason, he had this meaning in his mind, as he admitted that it cannot be asserted against the non-Muslims. Pazdawl in different contexts agrees with the view that reason is not the basis of ijmd'. He states on the question whether ijmd'requires a unanimous agreement: The Prophet - peace be upon him- made the consensusof this umma authoritative. If a single person who is eligible for ijtihad and reflection remains outside of the agreementno ijmd' can be claimed, since, ijmd' is a grace (kardma) based on the agreement without knowing the (Kanz, 111,965, behind its (min daftl truth. emphasis reason ghayr an yu'qal al-ýsdba). added)

The reason Pazdawl is proposing in his justification of ijmd' is different, since it is in fact based on certain theological assumptions, and, probably becauseof this, Sarakhs-i fact The it through hesitant the that to argument proceeds call purely rational. was it 'reason', label led though the have to these premises are as jurists inferences might beginning distinction, Hourani's the Recalling of the chapter, this theological. at latter can be defined as a rational argument that is based on an implication of the 25. being text' to 'without a particular relatable revelation Pazdaw-I be it jurists, that last agrees with Before proceeding to our noted should ijmd' He topic the ijmd'. to whole of with ends Sarakhs-iin assigning a crucial role justification it ijmd' is for too. the to I of it related the following words, which quote, Sarakhs-1: is a verbatim repetition of basis for the his the destroys and safe-heaven ultimate denies ijmCz' religion, He who certainly 26 (Kanz, 111,985) MUSIIMS. the the of fundamentals consensus of religion is of all the

Pazdaw-i, following that face its value, would suggest This paragraph, taken at fundamentals 'the by of in religion' the grounding circle trapped vicious Sarakhs-I is , Kitab fundamentals, the latter these through such as then justifYing the " ijmd and on

204 and the sunna. The truth, however, is that Pazdawl's concem in this passageis with drawing attention into the importancethe conceptof ijmd' for contemporaryMuslim society as a meansof securingthe legitimate interpretationsof the fundamentals.Its significance therefore lies not in its being a means of establishing the historical event Islam but rather in its role as validating and justifying of interpretation. its V. Shiishl on "9" -IJM

The treatment of ijmd', in the Usid al-Shdsh7i, is so brief that that the issue of the justification of the authority of ijmd' consistsonly in one sentence.Many standard issuesdiscussedunder ijmd' are ignored here. For example, Shdsh7i be to seems not interestedwith such central questionsas the basisof and eligibility to ijmd'. Rather, he concentrateson the interesting details of the application of the theory of ijmd, which one would only find in a well-developed,post formativefurct' work. He seems to be very confident of the weight of the idea of ijmd' and, therefore, takes for granted many things which are regardedcrucial to the explication of the concept of ijmd' in the formative period. His introducing the idea of ijmd', which also includes the sentenceof the justification, constitutesa good example of this mature juristic language: The consensusof this umma, in the practical field of religion, after the messengerof God peace be upon him - passedaway, is an authority that makes actions obligatory on the basis of ba'da (Ijmd'hddhih this nation revelation as a grace upon al-umma ma tuwuffiya rasal Allahli bujjat bihd kardmatan Allah 'alayh sallani-jlfurCi'al-din mCIjiba al-'amal shar'an wa yalld . li hddhih al-umma). (5hdsh7i, 287-288)

This single sentence actually contains many points already discussed. First of all, he from (shar'), its " ijmd the thereby takes that revelation authority clearly states be justified by beginning, ijmd' that the cannot pure rational making it clear, at divine brings he the to As then to this, of grace notion in order a corollary means. justification ijmd'. behind the of the to rationale refer in Pazdawy, have divine constitutes The notion of seen above, especially grace, as we is between 'rational' taken traditional intersection and proofs as the and the point of justification far ijmd' the the concept of of is as as argument persuasive most ijmd' does however, This whether yields clarify certain not sentence, concerned. Ii that 'bujja entails a practical The authority al-'amal-an n7Cijiba knowledge. phrase

205 obligation'

apparently suggests that ijmd'

inconclusive knowledge. yields an

However, a scheme of epistemologically graded four types of ijmd' indicates that Shdsh7l,in this matter, in fact, adopts a similar formulation to his predecessors.The idea of comparing these different types of ijmd " with different types of revelatory proof, namely Kitab and sunna, certainly belongs to the post-Sarakhs-iperiod. Here Shdsh-istates that only the ijmd' of the companions can pose an absolute authority 27 Kitab khabar equal to and al-mutawdtir . Table. 6 Development of the justification of ijmd'

Author Jassfis

Dabfisi

Sarakhs!

Pazdawl

Sh5sh!

Revelation as a divine grace (shar'an kardmatan) Qur'anic passages Hadiths 5 Qur'anic passages 7 haduhs: 2.143 / 4.115/9.16/3. 'Umar / Holding truth 110/31.15 lPaldl /Hand of Allah / Muldh / Tie of lsl5m / Hudhayfa 6 Qur'anic passages 2 badiths: 2.257/33.43/3.110/ Paldla 2.143 / 4.115124.55 Tie of lsl5m 4 Qur'anic passages 6 badiths 3.110/ 4.115124.551 'Umar /Mu'ddh / Hand of 2.143 Allah / PaIdla / View of Muslims 3 Qur'anic passages 3 baduhs: Paldla / Allah and Muslims 4.115/3.110/2.143 View of Muslims No passage Revelation as a divine grace (shar'an kardmatan)

No badith

Reason (ma'qfil) Reasonis no use here, as it acceptsthe possibility of error in consensus.

Reasonis no use

Hints of two types of reasoning: 1. Pure reasonis no use 2. A sort of reasoning may be used Two types of reasons: 1. Pure reasonis no use 2. Dogmatic reasoncan be used No use of reason

Summary and conclusion

badi-th, Qur'an in justification ijmd' the history The and of the passages with of of illustrated table, that there the Ijanaff shows tradition, are above in the early as uyal belonging Jassds's hand, to the treatment, On here. the as one two tendencies at Play justify tools to the history necessary beginnings of the of myal al-fiqh, supplies all This 7 Qur'anic (5 tendency 12 total prophetic). and ijmil comprising of passagesin but Qur'anic the Dabiisli, passage reduced its more one added who in role plays still badiths to 2. As noted above, the reduction of the number of prophetic reports was f,

Qur'anic by the Dabiisl passagesand considered fact that was satisfied due to the Sarakhs-i, In tendency dispensable. this of providing all this respect, sunna, in

but hadiths), 6 the time, Qur'anic (4 at same and passages continues materials still

206 hints of another tendency begin to emerge in his account. Sarakhsi, probably to reverse Dabas-i's minimisation of the role of sunna, cites 6 baduhs (five of them are drawn from Jaýý4 and one is new), but reduces the number of the Qur'anic passages to 6. Sarakhs-1probably thinks that the case for the Qur'anic passageshas been settled in a way which leaves no need to multiply the arguments. This tendency increasingly continues in Pazdawl, who cites only 3 Qur'anic passagesand 2 prophetic reports. The latter tendency is accompanied by the emergence of a new form of argument, a quasi-rational argument. Finally, Shdsh-i in a single sentence stressed the idea of divine grace, which has been constituting the bottom line of the justification since J4ý4. The polemics of Shafl'-i with the prevailing legal schools of his time indicate that the had in ijmd' their theory of law, in that it is made one of the concept of a vital role 28. basis Prophetic criteria on the of which a report is judged Shdfi'l, who throughout his life fought to establish the Prophetic report as an independent authority on its own battled idea by for, in ijmd' the these right, also against of proposed practice, schools, it worked in favour of school tradition. This ijmd' basically comprises of the later by is Islamic the theory the of adopted classical scholars, which consensus of 29 law. As Aron Zysow pointed out the Ijanafl- school's attitude to ijmd' appears to , be simple and uncompromising: the consensus of the scholars yields certain knowledge, which, therefore, constitutes an absolute authority. The justification of this statement by these five jurists therefore attempted to address the issue as such, i. e. to interpret the arguments in a way that would enable the claim of conclusiveness. These jurists, however, were aware of the fact that this conclusiveness cannot be hand, the basis the restricting which resulted in the at arguments of maintained on idea of ijmd' by classifying it into several categories. Among these categories only This have to severely absolute authority. the ijmd' of the companions is considered it, did ijmd'of jurists the the Although these ijmd'. specify not qualifies the theory of being Prophet being their to the from their its and close takes authority companions Muslim the community. those praise which direct passages the addresseeof

ijmd' the be to authority of justify and adduced prove Whatever arguments can been integral has it legal thing part theory, of certain: limits was one the of within by find the theory to it into legal accommodate theorist ways The would that theory. in justification two tradition types employs of usal The of method general all means.

207 argumentation, one traditional based on the relevant texts of the Kitab and/or the sunna as well as ijmd' and the other rational or logical. The justification of ijmd' proceedsmore or less in the samemanner,but it is generally acceptedthat the idea of ijmd' cannot be justified by purely rational means.For, it is argued,reasondoes not find it impossible that the convergenceof many opinions on the samepoint may lead to error. Besidesto recognisethis would give the adherentsof other religions a right to claim the truth for their own belief just by arguing that theirs is also unanimously held. The exclusion of reason Erom having a say in ijmd' is vigorously upheld by Jaýýdý Dabýisl. There and remained only the Kitdb and the sunna that would help to justify ijmd'. To Jaý*dý, Qur'anic passagesconstituted the primary proof while the sunna bolstered the idea present in these passages.By focusing on one passage(Q 2,143), Ja5ýdý first draws attention to the point, which stresses the special relationship between God and His chosen community, then further substantiatesthis relationship in Prophet the the the the taking religious matters. community place of with idea of The sunna further advances this status of the umma by introducing the notion of infallibility

Prophetic Those Qur'anic the the passagesand of community as a whole.

follow believers the the to the community are apparently path of enjoin reports which idea importance the of special status when compared with regarded as of secondary is based the the In this which on rationale, constitutes idea other words, of umma. difference, is that Dabiis-i this ijmd'. stance with a slight adopted authority of jurists keep Both furthermore. to the these tried the the sunna role of reducing justification the question of

dogma, Islamic the ijmd' the confines of within of

in denying thereby reason a role this matter. Prophetic Qur'anic the the passages and Sarakhs7iand Pazdawl continued to cite had been idea the further that which ever than but extracted and they went reports, from finality its the takes i. authority Jaýý5ý, the unima of consensus e. present since be Thus argument Islam. can the rational so-called of essentials of the message of it from did traditional however, DaMisli, separate not who, traced back to Jaýýdýand first Sarakhs-1 It them. to who it was but supplementary a as used arguments it he to heading, though call rational. was reluctant formulated it under a separate traditional the to vis-a-vis reasoning dares to assign an equal role Only Pazdaw-i behind the exclusion the attitude of of have We rationale seen already arguments.

208 reason; that is to avoid the claims of adherentsof other religions for the sameeffect. The position of Pazdaw-iand Sarakhs-i,seemsto be less obvious, becausethey not only breach the convention by appealingto reason,but also they have a lax attitude toward the problem of circularity. With Pazdawl the development seems to have reached climax in that he totally overlooked Sarakhs-i'scaution and saw no logical inconsistency in taking the step of calling on reason to help. Having said that, we should also note that this so called rational argument is actually not a purely rational but argument, as stated above, essentially based on the religious premises. This gradual change is caused by the change of circumstances over the time. That is to say, in the time of Jaýýdýand, to a certain extent, of Dabiis-i the debate concerning the concept of ijmd' reflected a genuine debate around finding out the appropriate arguments recognised by the theory of law that would justify ijmd " and substantiating them with a consistent formulation. Since, the line of demarcation between various Islam sects of was not yet clear and there was real concern among non-Sunni groups in half fifth from hand, being On the the the the other second of excluded majority. of lived Pazdaw-i Sarakhs-i and wrote their treatises, the socio-cultural and century, when lands Caliphate, like Transoxania, intellectual the was so central of situation of and fortify ijmd' the to the that with vigour upon was seized of concept conservative boundaries of Orthodoxy against 'the others'. The emphasis was less on genuine debate than Jargonic discourse, the main characteristic of which was labelling the in for that there to idea ijmd' The taken was no a need granted was of opponents. both Sarakhs-i Pazdawl, is itself. That from legitimacy its it. It and at why, took prove fundamental fundamentals', is 'the declared ijmd" logic, that of the expense of Kitdb basis the and sunna. of meaning References from Houram's following taken The 193-194. article. summary is Quoted in Houram, 'The Basis', Ibid., 196-198 3 Ibid., and also Hallaq, 'On the AuthorItIveness'. 4 ZYSOW, 'Economy of Certainty', 199 5 Houram, 'The Basis', 160-161 6 Ibid., 161 7 Schacht, Origins, 86 he by J.V. 189-204, Period, Formative suininarises an article where 8 For these theologians see,Watt, Ess on Virdr 9 see Hallaq, 'Was Shdfi'l Master Architect' 10see Hasan, Doctrine of iinid', esp. Ch I VII, 225-256. For Shdfie! ' K. Shdfi'T, 81-137; s view of Lkhtildf, al-Umm, 11see al-Qdd-ial-Nu'mdn,

209

ijmd', Scacht, Origins, 88-94; Stewart, Islamic legal orthodoxy, 39-40; Calder, 'ijnid'and ikhtildf " For Shl'a, Legal Orthodgxy, Islamic 37-53 Stewart, esp. in particular, see, 13For example Shafil tradition the Qur'anic is the the secondverse in the list of of strongest proof in Jaýýdý,see al-Amidl, lhkdm, 1,258 14For the Ziadeh, 'Integrity (Addlah) Farhad 'addla, concept of see ,-5Hallaq, 'On the Authoritativeness', 434 16Fus5l, 111,266-267 17Ibid., 111,35-53 18Ibid., 111,264-265 19See Ch I above (page 4 1) 20Taqw1m, f. 8b 2'

Ghazdri, Al-Mustasfa-,1,206 22 USill, 1,296 23Taqw1m, f. I l7b; jLsýgl,1,294 24Kanz, 11,976 25Hourani, 'The Basis', 160-161 26Ibid., 11,985 27

Ibid., 291 28Shdfi'!, K. al-Umm, VII, 225-256 29 ZYSOW, 'Economy of Certainty', 199

PART FOUR- QIYAS

211

Chapter Eight Qiyds and Istihsdn a Introduction The last topic we shall explore concerns the theory of qiyds (analogical reasoning), where the contribution of niujtahid to the development of law is defined and elaborated. Analogical reasoning is the only form of legal reasoning that is by the Sunnis for the expansion of the law beyond revelation. unanimously accepted Other forms of legal reasoning are either reduced to being types of qiyas or disputed. The notion of istibsdn poses a considerable amount of controversy both among the medieval jurists and the modem students of Islam. There seems to be two approaches towards this concept in the modem scholarship. One approach sees in the concept of istibsdn a dimension of law which appeals to the principle of equity taking into account

the practical

convenience, definitions

social

considerations

such as necessity,

interest, need,

have based itself This to ease and so on. on certain view seems

legal istibsan the cases supposedly exposition of specific of as well as

definition between The istibsan by istiýsdn. this the of and parallel method of solved the idea of equity is very obvious. The idea of equity comes to ease the rigidity law; similarly, common

of

istibsan is generally defined as exception from the general

idea fact The the by that based of equity stems a superior consideration. on qiyas rule from the natural law and justice seems to have led S. Chehatal to redefine istibson as a method of identifying

Howver, John Islamic kind law, the the spirit of equity. of a

in his seminal article suggested a totally different interpretation of istibsan 2. He texts the based on the close examination of argued that of uýal al-fiqh relevant

Makdisi

istihsdn to Hanaff the the of refer concept Muslim used jurists, the jurists, especially istihsan its In law. meaning is most controversial to one of the recognised sources of later became further this the that Makdisi view 'hidden showed qiyas'. regarded as a Jurists, Muslim thereby the istibsdn for the among of concept explanation standard disappeared. totally the faded though not is objection away, the controversy gradually it legal by istibsdn definition with comparing a of He then reformulated this classical distinction 'the law of precedent', American in reasoned as known procedure Two another. over recent precedent one choosing of meaning a method or procedure in law the the expanding strict istibsdn of means a as the of role stressed studies 3

the equity of idea thereby reviving sense,

212 As far as Ijanaff uýal theory is concerned, the major difficulty concerning the concept by Ijan-ifa his immediate Abu disciples, its istibsdn two and of comes out oý wide use The latter, Aba Yfisuf the writings of especially, those, namely and al-Shaybdn-i. frequent juris the the of which are, regarded as quasi-canonical corpus school, made literally This this use of concept, suggesting personal reasoning of the concept. 4, from likes Shdfi'! draw harsh the of whose main purpose was to criticism mujtahid, circumscribe personal/arbitrary reasoning through restricting ijtihad to the analogical half Shdfi'T, debate For istibsdn the centuries one and a after around must reasoning. have continued, until a compromise was reached by the emergence of the classical Jaýýdý, first lianaff have Usfil The to of uýctl work of school reached us, u,yfil al-fiqh. law is the the only way of extending regarded as represents a stage where qiyas beyond the texts, and at the same time, istibsdn is interpreted as a form of qiyds in its most controversial meaning. I shall start again by examining Jaýýdý's treatment of this matter and then proceed to developments. the subsequent elaborate 1. Jaýý5ý and the concept of istipsAn Introduction.

The topic of istiýsdn in Jaýýdýis located within the last major part of

theory the This of of exposition an includes also chapter qiyds. uýal al-fiqh, namely, ijtihdd to the and mujtahid. the of concept related issues as well as qiyas proper Jaý*aý because is This significant Istibsdn comes between these two major topics. Jaýýdý the thus treats theory the to of qiyds. istibsan as connected considers most of topic of istiýsdn in two parts. fact by that the he to out pointing solve Is going First, JaýOý introduces the problem been has the in lianafi severe rebuttal of subject istibsdn sources used the concept of is it istibsan, that clear identifies of he opponents of Although group a and criticism.

he term the Shdfi'!, exact quotes as he has in his mind primarily the writings of (ibtil ). istiýsdn 'rebuttal al-istiýsdn), of i8tilisdn, in namely, Shdfi'l used criticising That istibsan. to the Shafi'-i say, is for rejected which Jaýýdý also cites the reasons desire the the citing is of man, than and wish istilisdn more no that thought opponent is This ' left be he that uncontrolled? think 'Does will 75,36) (Q man Qur'dnic verse He that to mean all it interpreted Shdfi'l istibsdn. rejected the verse with which 5 has to therefore, give no right man divine and, to evaluation hurnan acts are subject

213 judgement on the basis of his personal preference (bi ma yastabsin), implying negatively that istibsan refers to the reason or desire of man in evaluating acts, 6. having without resort to revelation In other words, according to Shdfi'l, a legal judgement based on personal opinion would amount to a judgement without precedent (/a 'ald mithal ma'nan sabaq). Jaýýdý's particular attention to these arguments shows that at his time Shafi'-I's arguments against istibsan were still popular. The thrust of the counter-argument of Jaýýaýis that those who rejected istibsdn do know not what the Iianafis mean by the term. Before exploring the meaning of istihsdn as understood by his school, however, Jassds tells a polemical story. A certain lbrdh-im b. Jdbir is said to have made the following remark, in response to questions about why he rejected qiyds as a valid form of legal reasoning: I read "lbtdl al-Istibsdn " by Shdfi'i and found everything he said about istibsdn compelling. What he said, however, is also true for qiyds. (Eusid, IV, 226)

According to Jaý5dý, the decisions delivered by means of istibsan by the Ijanaff masters were always based on evidence and proof (bi dald'ilih wa hujajih), not mere personal or arbitrary opinion. He refers the reader to his commentaries on the works of the madhhab in order to understand the details of each istibsdn case. Before starting a theoretical discussion about the concept of istibsan, Jaýýdý first justifies the use of the term of istibsan. This is actually a device developed for the justification of istibsdn. Accordingly, the problem about this concept is dealt with in two levels, technical and essential. The most feared outcome for the 1janaff jurists fact, be istilisan that the a new source, meaning a rational one is, in accusation would independent of revelation. In order to evade that charge, they attempted to present the debate as a technical one. Thus, Jaýýdýargues that the term of istibsdn is a term it Although is Kitdb the to the good connotations. with possible sunna and used in law in being for the their the the sense of of term sources the good, all a name as use 1janaff masters restricted its use to certain sources, which are to be explored below. i. it issue problem, Jaýýdý considers this e. is a scholarly merely as a naming linguistics hal, terms in tamyiz, known using as as such ; arf sciences, all convention the to When a novel idea with there words, express scholarly a need is on. so and debate be for find there this that term no around can choosing to it; or a convention is

214 word if what is meant by the term is quite obvious. After all, Shdfi'l and others occasionally used the term of istibson in some of his judgements. The whole aim of these introductory remarks of Jaýý4 is to prove that there can be no objection against the use of the derivatives of the term istihsan, as long as its meaning does not breach the general framework of the legal theory. With this, we enter the heart of the debate: the justification of the method of istibstin in the light of the legal theory recognised by the Sunni schools of law. The rest is, therefore, devoted to the debate concerning what is meant by this concept of istibsdn. Meaning wujabib).

and types of istipsjIn In order for the following

(al-qawl

ff mAbiyyat

a]-istffisffn

bayffn wa

discussion about the meaning and types of

istihsan to make sense, one should be aware of certain background assumptions. First, the problem of istihsan arose from the fact that the writings of al-Shaybdn-i, frequent be to thought to the the contain references which are manuals of madhhab, this concept. His writings are in need of explanation and interpretation in order for them to be legitimate under the Islamic legal-cultural milieu of the fourth century of Hijra.

Secondly, the exact wording of al-Shaybdn-i contains traces of what istibsan

his he is there and colleagues mean no clear explanation of what might mean, though by Utibsdn.

It is the task of the legal theorists like Jaý*dý, thus, to provide a

for Thirdly, there are certain problematic passages in alit. substantive content Shaybdn7l'sreferences to istiýsdii, which apparently do not fit the interpretation of further by Jaýýdý therefore explanation. require istibsdn proposed and others, which Jaý*dý task Before the Types of isti, ýbsffb. of interpretation required, undertaking leading istiýsdn, the thereby to of meanings various makes certain clarifications as first, has, him, istibsdn two According to meanings: disputed to meaning. its way legal Certain QjtIbJd). rates, amounts and Personal opinion and assessment For to determine circumstances. changing left to according to people measures are divorced be the the to women to or paid instance, the amount of compensation left law but fixed the to be open in to not are to wives paid amount of maintenance Jaýýdý is According to there different no environments. in with accordance variation 'discretionary to the This istihsdn. refers indeed this of sense disagreement about the Judge'. of power

215 Abandonment

for is The istibsdn that causes of problem meaning some of qiyffs.

this: 'It is the abandonment of qiyds for the sake of better evidence (huwa tark alqiyds ild ma huwa aw1d minh)'. The meaning of qiyds gains importance In this sense of istibsdn, which will be elaborated below. According to Jaýýdý,this type of istibsan is further divided into two more groups. Jaýýdýreduces the controversy surrounding the concept of istibsdn to two forms, one being the process of preference and the other non-effectiveness of ratio legis (takhsis first The al-'illa). one should not be subject of any dispute if one accepts qiyds as a deriving law. The means of other is controversial not only among the Ijanaff jurists but also among the non-Ijanaff jurists. By reducing istibsan to these two forms, Jaýýdý tries to break the isolation of the Ijanaff school, as far as his school is In he concerned. other words, attempts to show that what he and his school from legal legitimate this understand concept represents an already point of follows, between In istiýsdn two what as a process of preference controversy. versions of qiyds will

be analysed first, then will come istibsan as the non-

legis. effectiveness of ratio A. Conflict

between two analogies. When two analogies suggest two competing

be them for that the same problem, it is obvious can valid: only one of solutions "It is the casewhere a new case(far') is claimed by two original cases(ayldn), bearing be for It to the them. case joined new is obviously necessary resemblanceto each one of The has they for, this why reason them, ground. stronger one to preferred one of only by be by the this isOsdn that would so case it claimed not this were it if is as called (Fusffl, IV, 234) latter too. to this due to its resemblance other case

between two istibsdn groups the a conflict involve Jaýýdýtells us that some of cases however, One be the of to versions qiyas, of solved. is case new a of qiyas, whereby is but look, first the only revealed through is subtle, as it has a point, which escapes This definition ijtihdd). the sophistication of deep reflection (note the similarity with Here task difficult the undertakes a mujtahid the one. istibsan most this of sort makes implication The the by mind. use of exhaustive another of preferring one qiyds over be there another, can no over qiyds one the preferring if istibsan of process is is that dispute concerning its meaning.

involve told, two a process where are Most we as Explanation. casesof istilisaii,

216 precedents compete for a new case, which is ultimately to be joined to only one of them. Jassdsfirst takes, as an example, a quotation from the works of al-Shaybdn-1in order to explain this process. The quotation represents a typical case of istibsdn, including most of its problematic aspects: "The example of two original casesclaiming a new casethat Is Joined to only one of them, Is what our companions said: A man says his wife "if you menstruateyou are repudiated (idhd hi4tifa anti tdliq)"; the wife replies "I have menstruated".According to qiyds she should not be trusted until the menstruation is verified by other means, or until the husband confirms her. We, however, make istijisdn (inna nastabsinu) and decide that the taldq shall take effect. Mubammad (al-Shayb5n7i)said: 'Here istibsdn involves some qiyds (wa qad yadkhulu fl' hadha al-istibstin ba'(1 al-qiyds). ' (Fusfil, IV, 234-235)

This is the original piece of text belonging to the madhhab that poses a particular for problem interpreters such as Jaýýdý. Firstly, there is a need to interpret both versions of analogy that compete for this particular case in accordance with the classical conception of qiyds. Secondly, it is clear that al-Shaybdn7i makes a dichotomy between qiyjs and istijisdn by making one the counterpart of the other. Finally,

related to the second point, al-Shaybdn-i makes the problem more

by involves istibsan that this complicated adding a kind of qiyds (ba'd al- qiyas). Jaýý4 tackles the first and the third points in the context of the above quoted passage, in in discussed the context of another quotation, as will the turn while second one is be seen soon. (i) What are these two analogies? Since, according to Jaýýdý,this piece of text find first for he that two two original cases compete should cases of qiyas, contains the case in point, i. e. the case in which a man makes the taldq of his wife depend on law The her the whether should is validate question the time of menstruation. next declaration the by her advent of menstruation or whether any other of talaq mere law Islamic based The on a obvious well-known principle of evidence is necessary. in i Jassds the in testimony that facts, the certain similar cases is of view certain set of ..., to the effect taken giving conditional when account the into not is woman of husband her in taldq the conditional For makes upon divorces. example, caseswhere her has that to house self-claim person, she certain a speaking or certain a entering husband if to this. the is not willing accept entered or spoken, is not accepted his his then he that other wife is wife menstruates, if Similarly, when stipulates declaration her free, the the becomes of women his mere of again divorced or slave

217 menstrual cycle is not accepted. The principle behind these established casesdictates that the word of the wife in our main case should also not be accepted. This is the first of al-Shaybdn7l'sanalogies. If there were no other precedent in the law, the legal ruling of our case would be the I i. be However, Ja55a5argues that there is another trusted. same, e. she should not principle which emerges from a way of understanding a certain Qur'dnic verse (Q 2, 228), which reads: It is not allowed for women to concealwhat God has createdin their wombs.

This particular verse is interpreted by the early generations (salaj) as referring to menstruation and pregnancy. For example, the companion Ubayy b. al-Ka'b is said to have made the following remark concerning this verse: It is a sign of integrity to trust women in their private matters. (Fus-dl, IV, 235)

According to Ja55dý,this Qur'dnic injunction for woman not to hide what is in her womb together with the interpretationof the companionsand later generations,gave legal declaration to the that the of woman concerning her private rise principle is however, This an exceptionto a more generalprinciple that matters acceptable. is, the mere declaration of a plaintiff is insufficient to prove the claim made, if it is denied by the defendant.This principle is not only a theoreticalone deducedfrom the divine text but certain other precedentsalso attest it. For example, the word of is is the her that resumption of sexual in permitting acceptable over period woman is her behind that The this woman only a can access principle rationale intercourse. have knowledge personal condition and no one else would in normal circumstances her declaration that discussion, the thus, In it. woman menstrual of the under case of is divorce its that tied to be the to has effect give accepted shall started cycle for the samereason. commencement, the tying to taldq the however, wife's of cases above This rationale, is not presentin because these cases one to in can check house person, certain a speaking or entering a Those legal third through cases where a her parties. information and verify to tied third a private matter of a woman, such as the is parties implication affecting first fall in latter the the to wife, also of menstruation the wife second tying taldq of by for it be it fact external means, affects that verified despite cannot the category,

218

the rights of the third parties.According to Jaýýdý,this last casehas two legal effects; one related to the woman herself and the other to the third parties. That is to say, as far as her own talaq and the end/startof her menstrualcycle are concerned,the law acceptsher word as evidence.As regard to the talaq of the other wife or freeing the slave, supposingboth are tied to the first wife's menstruation,however, her word is not sufficient in its own right. To sum up, Jaýýdýimplies that, in the case of taldq cited above, al-Shaybdri-iused the in is the that sense qiyas a new case supposed to be joined to a set of obvious and well-known

legal cases, whereas istiýsdn meant that deep and further thinking

discovered another legal principle, which prevented this new case from being joined to the former cases.This newly discovered principle, which is also attested in certain does in Jaýýdý Although therefore, the taldq. not prevailed case of other precedents it is implied for that the elaborate reason making one qiyas preferable over another, the second qiyas is more pertinent to the new case, hence preferred to the first one. He already made it clear above that the second qiyas, called istibsan, requires more deep thinking, whereas the one called mere qiyas is obvious. reflection and (h) The other problematic aspect in the passage quoted from the works of alShaybdn-i is his last remark there that this istibsan involves 'some sort of analogy (ba'(1 al- qiyds)'. How can one reconcile this statement with the fact that istibsdn is basically a form of qiyds? Jaýýdý answers this question stating that al-Shaybdni's instead is joined the in to of case of the precedent that another case question meant in In istibsan. Jaýýdý, is, Qiyds this house. in sense other named says entering a oath here is for to the that Ja! this refers al-Shaybdn7i the only reason 5ýdýcan provide words does however the the This question posed at answer not two analogies. possibility of if istibsan the did majority of beginning, i. e. why al-Shaybdn7imake such a comment, process? analogical an include essentially cases (M) After clarifYing the concept of istibsan with two more similar examples, namely Jassds brings between two competing qiyds, describing it as a process of preference is defined istibsdn: that as a when it process of is, of aspect third the problematic both his to mention qiyds used and writings, Al-Shaybdni in sometimes, qiyas. this statement: with istibsdn together and conclude bi (Wa istibsdn al-qiyds na'khudh wa natruk alIn this case we adopt qiyds and abandon

219 istibsdn).(Fusfil, IV, 240)

Jassdscites one of these casesfrom the works of al-Shaybdni.The case is about a special type of contract, salanij where the customerpays the money in advanceand the seller undertakesto supply the goods in future. The example involves ordering a garment with certain specifications, which later becomes the point of dispute between the customer and the seller, in that the latter claims that the garment has been stipulated to be ten inches (zird), whereasthe former arguesthat it has been fifteen inches. The rule basedon qiyas, says al-Shaybdn7i, is that both take an oath and return the things they received.In other words, after taking the oath, the contract becomes of salam rescinded.According to istiýsdn, however, the word of the buyer is preponderantover the word of the seller. The rule they adopt, saysal-Shaybdn-i,is the one basedon qiyas, not istibsan, that is, istibsdn is overruled. Jaý§aýthinks that the precedent on which al-Shayban7ibased the qiyas is the situation that if the customer and the seller in similar salam casesdisagree on the type of the Marw town the of and the garment specified, one claiming, say, a garment made in in if disagree in Hira, the time of contract the they quality specified or on other one the that the whereas other quality garment was on a poor contract as one argues such legal it high that the these two that ruling requires cases quality one, in was on argues both take an oath and return the things. The reason behind these two cases lies in the nature of the contract of salam, for description the based the the e. customer i. specifications, of on contract a is salam is but for his time the there he the contract of at order, wishes specifies the conditions dispute The it for over specifications the existing. to not is goods, view no way dispute length Our the the about of case of contract. therefore affects the essenceof becomes dispute the qualities and specific over the garment is also considered a becomes have the taken contract place that oaths after the to rule same subject rescinded. in by Jaýýdý is a case of normal sale, The istibsdn al-Shaybdn-italks about worked out later buyer bi 'aynih), the the (thawban and and buys garment specific a man a where here the that the the word states of length the rule garment, dispute the of about seller latter, Our it this case resembles as valid. the is becomes contract and prevalent seller The Here istibsdn type length is also a of qiyds. the garment. dispute a of about a is

220 first qiyds (salam), however, takes precedence over the second one (normal sale) due to the fact that relevancy of our case in point to the contract of salam is considered more appropriate than its comparison with the sale of a specific garment. Because, the specifications of a commodity such as the length of a garment, in normal sales, where the specifications are secondary compared to the commodity itself, do not affect the essence of the contract, whereas in the contract of salam, where the is commodity not present and only its qualities are known, it will effect the essence of the contract. In other words, in normal sales, dispute about the specifications is not dispute a about the essenceof the contract, while in salam it is a fundamental dispute that affects the contract in its essence.The dispute about the specification in the case be of salam might analogous to the dispute about the essence of the contract in in both that normal sales, sides are required to take oath and the contract becomes rescinded. According to Jaýýdý,the aims of the founders of the Ijanafl- school in the cases,where istibsan is abandoned in favour of qiyas, is to indicate that the new case bears a interpretation This it is joined them. to to two only one of cases and resemblance blurs the line of demarcation between the terms of qiyas and istibsan in the terminology of al-Shayban-i. This is enhanced when Jaýýdýtells us that al-Shaybdh-i is first in the ist0san to usually called original case, which some cases mean uses qiyds. To sum up, whether al-Shaybdn7iuses the term istiýsdn or qiyds, Jaýýdýis certain that he refers to qiyas in both instances, and the only thing that can be said about their The is is preponderant qiyas association is that one qiyas preponderant over another. for he the this the istibsdn case reason using in above, stated as and, generally called between his to is tahid the that make a choice reasoning employs mu word istihsan is however, the to In preferred solution said cases, other types two certain of qiyds. latter This istibsan. situation poses be based on qiyds and the abandoned solution on for his definition but Jaýýdý, by description for necessarily not of the a problem between two istibsdn defined he of preference any for a procedure as istibsdn, description it, however, his he Throughout law. of conflicting sources of legal "this i istibsdn expressions as such source, as I is as a inconsistently refers to "according " to this... to istibsdn qiyas, and according or that based on qiyas and on in fact fits in the terminology This indicate. with " phrasing of of way istibsan that...

221 al-Shayban7i.What is problematic is that the definition of Jaýýdý,which seemsto have originated from his master, al-Karkh-1,identifies istibsdn with a procedure rather than 7, legal literal the with a meaning of istibsan suggests.This is source namely reason as probably, on the one hand, because of avoiding the accusation of introducing a fifth source, and on the other hand, becauseof giving consistency to the caseswhere qiyas overrules istibsan. By defining it as a legal procedure Jaýýdýseemsto imply that this involves legal procedure preference of one source over another. In his definition, thus, istibsan is preference and not one of the sides of conflict (i. e. one of the two conflicting sources of law). In his description of the details of the subject, however, istibsan is one of the sources of law, which can overrule and be overruled. I will return this problem when dealing with other jurists. B. Non-effectiveness of ratio-legis. The second type of controversial istibsdn is 'the restriction of legal ruling despite the presenceof its ratio legis (takhsis al-bukm ma'a wqjCid al-'illa)'.

The restriction of a legal ruling, or as the later literature puts it the

is, dispute Jaýýaý, the to restriction of ratio, according a point of among the jurists, i. e. whether it is acceptable. This concept in itself is not part of the problematic of istibsdn, but one form of istiýsdn is related to it. This type of controversial istiýsdn occurs, according to Jaýýdý,when the effect of the due is hindered the legis that to the evidence prevents stronger of existence ratio (takhqý from that taking al-ýukm ma'a wujfid al-711a). particular case effect in qiyas Jaýýdýdoes not regard the previous type of istibsan (where one new case is claimed by two original precedents) as a case of non-effectiveness of ratio legis. There, one the that than new case. governs another of precedent rather here, is legis it suffices to mention Although the concept of ratio not our concern legis is by the Jaýýdý, the accepted of ratio to non-effectiveness that, according it8. The Shdfi'l b. Ghiyds Bishr rejected problem and Hanafis and Mdlik7is while basis the fact on works of a ratio the mainly from that of qiyas the method arises found be for legis to suitable is a legis. It is accepted that whenever a justified ratio legal based In the the words ruling on immediately take other it effect. must new case have thought to the the to which are cases new in apply legis must case old an ratio legal is does the legis that ruling not produce When legis. the ratio same ratio be the the to of non-effectiveness of case ratio this considered is normally expected, Jassds break that the of causality. argues chain only there in In a is legis. other words,

222 the causality of the things at a rational level is consideredto be necessary,whereas legal causality (representedby qiyds) is fictitious. That is to say that the legislator, by his will, establishesthe relation between a cause and its effect. Many rules, for example, were not in place before the legislator linked them to their causes,though thesecauseswere there before.Non-effectivenessof ratio legis is thereforea bearable concept in Islamic legal theory. After this introduction, we can now turn to Jassds's elaboration of istihsan as noneffectiveness of ratio legis. According to Jaýýdý,when counter evidence emerges, the legal ruling should not be implemented in certain cases,despite the fact that the ratio legis, on the basis of which this rule is asserted, is present. This process of leaving legal in the aside ruling spite of ratio legis is thus called istibsdn. The evidence that legal from being implemented can be a text of revelation, ijmd' or the prevents ruling qiyds. Jaýýdýexplains these three situations by legal casestaken again from the legal manuals of the madhhab: a. Abandonment of qJyJ-sin favour of a text of revelation (Bass). In a case where a minor husband dies leaving behind his pregnant wife, al-Shaybdn-i states that, her (idda) be four days, to ten waiting period must months and according qiyds, because it is certain that the child does not belong to him. Al-Shaybdni, however, sets her (istahsana) finds it that waiting period shall end with appropriate aside qiyas and the delivery of the baby. The reason for istibsan is the Qur'dnic verse (Q 65,4) which reads: "The waiting period of those who are pregnant is (the time of) delivery of their baby."

The case of qiyds mentioned here is based on another verse which rules that a woman days before four for ten died husband and months gaining a right should wait whose Jaýýdý, According to al-Shaybdn-i calls the process where the general to re-marry. in latter the the former verse, case of a the over minor and prevails verse of meaning by Jaýýdý interpretation be The to istibsdn. his pregnant wife, as provided seems not former the the because, context of verse reveal free of objections, one might argue, in divorced. the divorced woman is not our case women, while that it is about the is the that general although context about Jassds's answer to this objection is is text quoted above a self-contained text, which divorced women, the piece of the both includes divorced that independent and non-divorced meaning has a general and

223 women. Jaýýdý provides three more similar examples. The first one Is eating inadvertently while fasting, which is tolerated by the badith. The second one is laughing loudly within the prayer, which Is considered to be breaking one's wudCi'. And the third one is about juice (or wine) of dates (nabTdh al-tamr) which is seen suitable for use in wuda'. All these are cases of istibsdn that involve a restriction of qiyds -based rule by a piece of revelation (nag). b. Restriction of the rule by jjmff ý Among the several examples given by Jaý5d5, two of them are noteworthy. The first is about trades like the public bath business, where the customers make a contract with the owner on the condition that the former facilities bath, to the the the exact amount of pays a certain amount of money use of it is is fixed in be how is the to unfixable, e. g. which not contract much water used. According to one of the basic principles of Islamic law of contract, both the price and the object of contract must be specified at time of the contract. If this principle is it be illegal. However, the practice of the to this would sort of contract, applied The legality is this the other of sort of contracts. regarded as evidence of people both ", is the the isthynd the the of sale are and object price where of contract example determined, but the price is not paid and the object of the contract is ordered with its law be This described. to the being valid according contract would not specifications (bay' is it is because existing a contract made on an object, which not yet of contract, ignore latter jurists led this to the Again the practice of people principle, al-ma'dam). is here "amal The ijmd'= noteworthy. thus, making it valid. al-nds equation by is This the by Restriction the case where a exemplified process qiyffs. rule of c. free him. he According Abii to that buys the will stipulation a certain slave with man buyer Qiyas frees buyer if that the is invalid the the rules Ijan-ifa this contract slave. is invalid because his the to sale an is under the obligation contract. proper value, pay he bought in invalid frees buyer the an contract, slave It is a general rule that, when a is, however, There the another slave. he should pay the seller the proper value of "Free in your slave on my account known precedent, which a man says another man frees him, If the dirham the the to owner of slave you". thousand I and will pay one be former to the who shall under man obligation freed be the of account on will slave first The takes the has he into account invalidity qiyds of stipulated. pay the money is included hence the the case in point due within the made, to stipulation contract, is buyer to the the under an obligation pay where category of invalid contracts,

224 value of the slave, if he becomes non-returnable. The second qiyas, however, ignores the aspect of invalidity of this case and compares it with the case of freeing a slave for a certain value, which is considered a valid act. It seems that the example in this last situation is not so different from the examples of istibsdn as a means of preferring one qiyds over another in the previous category of istibsdn. Jaýýdýmakes no further clarification as to the distinction between these two The processes. vocabulary is even the same, in that he describes this last case as a situation where two precedents compete for a new case. If this last situation is to be taken as a case of non-effectiveness of ratio legis, we are bound to consider also the first category of istibsan as such. That is to say, a ratio legis is prevented from having its effect in certain cases due to evidence based on another qiyds, and in its place legis becomes another ratio operative. 11.Dabfis! on istlPsgn Introduction.

Dabas-1,likewise, places the topic of istiýsdn within the topic of qiyas,

before The ijtihad. topic the the elaboration of qiyds proper and of chapter on after istibsdn starts with a linguistic definition of the concept of istiýsdn. According to him, istibsdn in its dictionary meaning refers to finding something good (wqjad alkadhd' J 'istabsantu basanan). For the means think it is expression example, shay' Dabils-i 'istaqba&uh' this the that the opposite. states means expression good'; also linguistic meaning of the word led somejurists to assumethat judging on the basis of istihsdn amounts to rejecting qiyds or other legitimate proofs without a valid (shar'T) lianaff As belief the false they that It this scholars. seen, attacked is with ground. Dabds7iintroduces the topic of istibsdn by claiming, as Jaýýdýdid, that those who hinting it that the the know thereby do aim of present istibsdn means, what not reject framework in the the define istibsdn is established of with to accordance chapter legal theory of Islam. Dabfisli, istilisin the those According to opinions means, in of AOS911. Definition of law, this: its legitimised in use who dalil) (aarb (al-qiyds the that legal against goes apparent kind qiyds for proof It is a name of a ( F istihsan than becomes a contrad* in ictory way ald sabil alother this that qiyds al-jalT), in ta'drW

.

I f 226a) (Taq3ylm, ).

225 Dab5s-1explains that the purpose of the Hanaff masters in using this term, istibsan, was to indicate that they found abandonment or postponement of qiyds in a particular case preferable, due to the existence of a stronger counter proof. This counter proof excels over the apparent qiyds in its ratio being more effective 07 al-ma'nd almu'aththir).

Like Jaýýdý, Dabiis-i explains that the istibsdn situation involves a

contradiction between a qiyds and another legal source of law. He then qualifies this 'al-jali-apparent', fact the to the that it is the solution qiyds with adjective, referring reached by the mujtahid in the first place, because of the clarity of the process of analogy involved, while the stronger proof is concealed from the eyes of the due to the complexity of its process. However, opacity or clarity is not in mujohid, itself a ground for preference of one proof over another; the real proof comes from the strength or relevance of any proof to the new casethat is waiting for the solution. Thus, Dab5s-1,too, reduces the debate around the concept of istibsdn to a technical problem, i. e. the problem of form, rather than that of substance. He argues that the legal is distinguish legal indicated by from the the the to original aim ruling qiyds it The deviates from basis the that ground. ruling that remains in on of a valid ruling deviates from is this the that the thus while one called qiyds, with original accordance is istibsdn. called original

It is like the conventions of the linguists in naming

different situations of syntax, such as tafsTr, ; arf, maýdar, ta'ajjub and maffil for the factors differentiate in the to of accusative. same accusative state order A significant difference in the definition of Dab-ds! from that of Jaýýdý is that the latter's is ambivalent towards the exact nature of istiýsdn, i. e. whether it is the name legal (dafto. tarjih of a source and nasAch,or of the process of preference, such as legal happens it to the that however, source which a Dabfis7i, of name is makes it clear be in a particular relation to 'an apparent qiyds': 'in istihsdn this that; we judge it b. and in qiyds instances: Muhammad al-Hasan said, in many in istihsdn. these however, in accordance with instances, They, of most judged, with the qiyds'. legal the istih. two (qiyds of conflicting are names sdn) and it is understood that these two

f. (TaqwT 226a) Kitdb and sunna. dalilayn ii such (isman muta'dridayn), , proofs be to the those appears subject of the contradiction When put in this way, problem of (al-ta fdrud ý) preference wa al-tarj! deal and the contradiction that with uýal themes law, between forms sources of other namely of qiyds or between two conflicting

this there the Thus, the is apparent qiyds; and on side, ijmd'. one on Ki0b, sunna and

226 other side, there is this hidden legal source (istibsdn) (which can be Kitab, sunna, iYmd' or another qiyas, as will be seensoon). Dabiisi, however, doesnot explain why he and his colleaguesfeel the need to call it istibsan, if it is only a matter of two conflicting sourcesof the law. The implied answeris that this istibsan casesinvolve a particular form of ta'drua.) namely the contradiction of a legal source with 'the apparentqiyds'. Since the proof that preventsa casefrom joining this apparentqiyds is always a legitimate source of law, not the arbitrary preferenceof the mujtahid, Dab-ds-idoes not consider istilisan amongthe false methodsof deriving law as taqlid (blind imitation), Adin (inspiration without a reasonableevidence),istiybdb al-bal (presumption of continuity) or tard (co-existence,a method of identifying ratio legis). By referring to the chapters of conflict and preferenceDaNis! relates the conceptof istibsan much closer to the qij)ds and other legal sourcesthan Jaýýdýdoes. Nevertheless, there is still a problematic aspect of Dabiisli's definition of istibsdn, though his version fits in with the terminology of al-Shaybdn-i better than that of Jaýýdý.As the former jurist pointed out (see the previous quotation), the passagesin the works of al-Shaybdn-1suggest that istibsdn is a legal source, rather than only a in Dabils'l, fact Given istibsdn to the that the scheme of refers, process of preference. in (obviously legal a valid source recognised the shari'a), some source a preferred instances of istibsdn found in al-Shaybdn-l'sworks do not fit this scheme. In certain based the the the the abandoned one on while qiyas, on is solution valid situations, istibsdn. four In DabUsY, istibsan. types the There to istiftsffu. Types of of according are, following section, the types of istijisdn will be explored by examples drawn from the by legal be these It that legal corpus. should al-Shaybdn7i caseswere recorded recalled behind is them the the the istibsdn, of reasoning explanation although as cases of jurists. The 1janaff istiýsdn types the of are as of scholarship subsequent of product follows: As we have seen, the concept of istibsan

by Istiftsffn means of revelation a. here Qiyds to the is qiyds. refers a apparent with legal that conflict involves a in proof familiar. Once the law, and extens, apparent ion is which of rule 9reneral and standard law develops the analogy, universal is and through law similarity accepted of the law. For different the the areas of example, legal rules that are applicable all over by the fasting, of pieces of revelation, constitutes number a institution of established

227 basis for certain rules, including the rule of what breaks f.asting abruptly. Thus eating or drinking during fasting spoils the ritual of fast. Although the rule is very clear in deliberate eating or drinking, it does not specify whether it includes also inadvertent act of eating. The apparent solution dictated by qiyas is that they are to be treated the same, i. e. inadvertent eating also spoils fasting. However, a badith of the Prophet if inadvertently that rules somebody eats while fasting, he is still to be considered fasting. Abii Ijanlfa is said to have made the following remark about this 'if case: the words of people did not exist, I would judge that he should renew his fasting'. Dabiisli interprets this statement to mean that the obvious qIyas requires the person breaks fasting inadvertently to renew it. AbU Han-ifa, however, found it who appropriate to abandon this qiyas because of 'the words of people', which is interpreted by DaMis-i as badith. b. Istiftsin

by means of ijmff ý This rule is exemplified in the contract of istiynd%

which according to the general principles of law should not be legal, for it is a contract concluded with the conditions that violate the principle that non-existent for be be Since, the to objects cannot a contract valid, the subject of any contract. sale be debt be established as a of the object of sale should either personally present or buyer. The contract of istiynd' does not meet either of these criteria, hence should have not been valid. The fact that this type of contract has been practiced among the Muslim community, since the time of the Prophet, without countering any objection led the jurists to leave aside the general rule of the contracts in Islam and to approve be beyond however, This the extended cannot this type of contract. permission, This latter is by ijmd'. it point another put contract of ist4nd', unless is supported for istiýnd' to fact due the that exception a general an the rule is to rule place into (ma'dfilun bih 'an al-qiyds). This is also the case in the previous and the next types later. be istibsdn, explored which will of (4arara) is The (bi-al-qfarfira). of concept necessity by lstýbsffn way of necessity c. but has limited in law the the legal sense, a role proper in sources of not one of the law, which mainly emerges in the extraordinary cases,where a pressing need requires if taken the that account, were not into people it the abandonment of a normal rule, in ) 4arara is legal It this harmed. sense regarded as a restricted be in is extremely would between the a general rule and illustrates situation of the DaMs-1 conflict proof by bucket. According to wells contaminated the cleaning of example with necessity

228 the rule based on qiyds, when the bucket is in contact with the contaminated water, there is no way to clean the water, becauseeach time the bucket would be in contact with the water and re-contaminate it. On the other hand, the need for water is so pressing that we have to assume that, in one way or another the water, will be cleaned. Since necessity is accepted by the shari'a as a means of alleviating the hardship encountered in daily life of people, this assumption is justified and this is reasoning called istibsan, as there is an exception to a general rule, here. d. Istiftsin

by means of 'hidden qIyjs (a]-qiyffs a]-,khaft)'.

This is actually what

Jaýýdýcalled the most difficult aspect of istiýsdn. Two types of qiyds contradict each The other. one that strikes the mind of the mujtahid first is named qiyds, whereas the is that other one subtle and sophisticated, which therefore can only be understood after deep reflection, is called istibsdn. DabiisTillustrates this with the case where the parties to a sale-contract dispute about the price agreed before the commodity is handed to the buyer. According to the general rule based on the apparent qiyds, the word of the buyer with oath should prevail, becausethe parties agree over the right of the buyer, namely the commodity, but disagree over the right of the seller, i. e. the buyer denies it. The higher The the the general rule seller claims price while price. based on the sunna states that the onus of proof lies with the plaintiff and the defendant is obliged only to take an oath to prove his case. The subtle qiyas, however, entails that both the parties should take oaths, at the end of which the it is both further that The is that, realised reflection, with reason is contract rescinded. buyer and the seller can be taken both as defendant and plaintiff The buyer, too, hand him is the to to the the commodity obligation seller under actually claims that denies that he the as such and obligation sticks seller the whereas claims, price with be to last Thus effort this worked reasoning requires more mental to his own claim. latter. hence the over prevails the than qiyds, coined one out his initial be to it, to problematic if we stick Dabils-i's example, as he presents seems is Since, involved. the forms second reasoning here two are qiyds that of assertion first He does for for the the qiyds. not the reasoning than of revision nothing more What happens for the reasoning. is second to qlyds original another example refer for the the first ground second constitute also the qiyds original that the parameters of hidden is indicates is not necessarily This qiyds a that a called what reasoning. be the of original qiyas but, revision a this just example, it might different qiyds, as in

229 through more sophisticated thinking. When the types of istibsan by Dabu-s-iare compared with those by Jaýýdý,two things strike the mind of the reader. Firstly, the issue of limitation of ratio legis (takhVTval711a)does not come up in the istibsdn discussion of Dabds-1,although we know that he, like Jaýýdý,accepts the validity of this concept in the context of the means of the identification of ratio legis. There he argues that the principle of causality (ta, N) would not fall apart, if we assert that in certain situations the cause has no effect because of an impediment. The corruption of the causality (with which the proponents of non-effectiveness of ratio are accused) arises only if one accepts the method of co-existence (ittirdd) as the determining factor of ratio legis. In the Dabiisl, however, the ratio legis becomes sound by the attribute that is opinion of effective (al-ma'nd al-mu'aththir)9. There may, however, be a situation where the attribute is present but it is not effective. In these situations, the causality does not get corrupted; rather, the general effect of the cause is regarded as being restricted into In in the caseswhere the cause ceasesto have its effect it certain areas. other words, , is suggested that the restriction ab initio exist. It is like restricting the general term ('jmm), where the restricted parts are regarded, from the beginning, as being outside the scope of the general terms, rather than being taken, at first, to be included within the scope of the general and, then, excluded from it. Nevertheless, the definition and illustrations of istiýsdn by Dabiisl indicate that istibsdn is actually a matter of restriction of ratio legis, as he describes istibsdn as "deviance from the general rule of the qiyds (ma'dal bih 'an al-qiyds)', which legis. the to effect of a ratio obviously amounts restricting from Jassds he differs does that Dabusi The second point at which is not apparently have As Jaýýdý istOsdnby Jaýýaý types the we seen, follow the classification of of between forms two conflict a divides first istibsan into two main groups; i.stibsdn as latter, The legis. then, three consists of istibsdn ratio of as a restriction of qiyds and four lmows hand, comprised of only one classification types. Dabiisl, on the other 's for Jaýýaý the the third treatment of matter, As the conclusion types. we noted in by does istibsdn Jaýýdý, way of qiyds, namely the of category main second type of is Dabiisli It that first from different be possible the also category. main to not seem istibsdn therefore totally between types difference two these and find of did not any in fact, Dabiisl, However, Jaýýaý. the first employs the ignored main category of

230 above distinction of Jaýýdýto reach a more significant distinction. Isfiýsdn by means ** 7' aInd darcira, says DabfisT,restricts the effect of istihsdn to the relevant of nass tima .., case, due to the fact that istihsdn by these processes occur as an exception to a general rule of qiyds. On the other hand, the effect of istihsdn by a hidden qiyds can be extended beyond the scope of the case in question, as it is also another form of thus says in the context of the above sale-contract: qiyds. Dab-Cis-I in that Aba Ijanifa-may God be pleased with him- solved every contract whose price is ..... disputed before the commodity is delivered, in the samemanner If istihsan constituted an ...... exception to a qiyds on the basis of a piece of revelation, he would not have made that analogy.

(Taq

,f

227a)

111.Sarakhs! on istffisffb Introduction.

The title of Saralchs! indicates how, for Sarakhs-1,the concept of

istibsan is related to the concept of qiyds more closely than it is for Jaýýdý and Dabiisl It reads as 'On explanation of qiyas and istiýsdn (ri baydn al-qiyas wa'listibsdn). This is all the more apparent when he regards this chapter as the deals (bulan) 711a. the the that with consequence of continuation of previous one Thus, from the beginning, the reader is reminded that istibsdn is a concept closely linked to qiyds and it involves a process of preference. Sarakhs7i,too, starts by referring to objections to the concept of istibsan. He then by the this the these opponents about of understanding correcting objections rejects Sarakhs-1, istibsan, to term The the this according of use of opponents see in concept. laws licentious the that that tendency claim all would undermine an unrestrained and law, it justified is If to based of would method reject a qiyas on revelation. are Ijanaff Moreover, (shari) they the legal accuse early evidence. amount to rejecting a instances, in inconsistent being they, prefer other qiyds over certain when masters of istibsdn. Thus there are two objections raised against this concept, one concerning inconsistent its use. allegedly the legitimacy this concept itself, and the other istibsdii, which consists of a combination the of to Sarakhs7istarts elaborate meaning he linguistic latter that the Following the Dab-Cis-i. says Jaýýdý and the of accounts of he Jass5s, Like then the is: 'finding justifies term good'. this something of meaning found in that term the that expression istilisa7i, a is term, it this arguing namely of use from its literal The the 18). emerging (39: to initial objection aim is overcome Qur'an

231 meaning, i. e. one's personal consideration. Like Jaýýdý, he refers to two technical uses of this term, one being apparently controversial in legal discourse and the other not. The uncontroversial one is, as seen above, the judge's discretion in fixing the amounts and rates which vary according to different circumstances. The other istibsdn is defined as 'a kind of legal proof (dafto which contradicts with the apparent qiyas which strikes the mind of mujtahid before deep reflection on the matter'. Only after a complete investigation of the matter does the mujtahid realise that this new evidence is stronger than the apparent qiyds. As be istibsan this such, use of should not controversial, as it is based on a legitimate in fact, The In the this term. proof. problem, comes out as a result of use of other words, Sarakhs7i,too, regards it as a technical issue, rather than a substantial one. Although the use of this term in itself could be justified, one still needs to understand the purpose of developing such a technical term. Sarakhs! provides this by expanding definition istibsdn: the on They called this istibsdn to differentiate this kind of legal proof from the apparent qiyds to in judgement (tasbaq deep before ilayh that the giving al-aAdm), reflection which minds rush in accordancewith this apparent qiyds is abandoned,as it (the former proof) is considered to 11,200) (Uýsjl, basis. because be good, of the strength of its

by its istibsdn to technical literal term the Sarakhs-i relates the use meaning of be is legal to good considered the what that is proof preferred acknowledging it is law but istibsdn Sarakhs! Thus too, considers not an (mustabsan). as a source of law four it the fifth which goes against of sources of one is rather, source, additional by due the istijisdn to It a process of preference the apparent qiyds. takes the name of mujtahid. informs Sarakhs-i istiýsdn, types the us of Ambiguity of istffisjR. Before explaining istiýsdn that and are where qiyds his assumed wrongly that some of contemporaries but based legitimate, the solution both as regarded are solutions mentioned together, felt that the these embarrassed It that jurists seems istibsan preferable. is on legitimate denigrate the of one istihsan actually the of that proponents accusation The is by that writings of alabandoned. It law, saying qiyas, namely, of sources " we abandoned as qiyas expressions than such include once, Shaybdril, as seen more different to difficult how reconcile was This it istibsdn'. favour indicates of in

232 expressions of al-Shaybdn7iunder the legal theory developed later. Sarakhsi, however, rejects this view by citing a few cases from the original text of al-Shaybdn-i,which make it explicit that, where a contradiction arises, the preferred solution overrules the other categorically. For example, in the case of talaq seen above in Jaýýdý,in which the declaration of the wife alone is considered to entail the !aldq that is tied to the menstruation of the wife to take effect, the preferred qiyas has a stronger ground than the apparent qiyds, hence rendering the latter completely abandoned. Another reason Sarakhs-i gives to reject the ambiguity suggested by some of his fellow Ijanaff jurists, is provided by the distinction between two types of istibsan, first proposed by Jaýýdý,then improved by Dabiisli. Sarakhs! argues that one type of istihsdn, i. e. istihsan by way of nasy, imd' daru-ra, in y and involves a situation, which (Kitdb, a stronger proof sunna, etc.) overrules the apparent qiyas. Although Sarakhsi's main concern here is not with the types of istibsdn, he still provides examples of these three types of istibsan, which are the same examples cited by Dabiiýi. His neglect of istibsdn by way of hidden qiyds is not important because his Ijanafis this to the that point, is were ambiguous as main aim, at reject view certain Besides, istibsan istibsdn. to the the chapter concentrates on as a rest of regards hidden qiyds. For Sarakhs-1,thus, the types of istibsdn are four as in Dabiisli; the basis idea by Jaýýdý istibsan the the types two of on of general into classification of for Sarakhs-1, for he be legis too, to unacceptable seems non-effectiveness of ratio later. idea the of non-effectiveness of ratio, which we will return vehemently rejects Types of istffisdn. It is apparent that for Sarakhs! the types of istibsdn developed by his predecessors are, on the one hand, taken for granted but, on the other hand, they in istihsan his he develops For, important. of relation own classification are not really inconsistencies in for his the the be apparent solution to qiyas, which will also has kinds: him, istibsan two According to each Al-Shaybdn-1. and qiyds, writings of a.

(md ja'ufa fact despite that the and apparent is clear it The qiyds whose effect is weak, huwa, ýdhirjaliyy) atharuh wa

b.

its the of soundnessand of its effect aspect The qiyas that is corrupt in appearancewhile atharih). wa (md, hidden wqjhfiýbatih istatara wa ýaharafiisddith is

hidden (md fact despite that the it is qawiya atharuh The istibsan strong is effect whose C. khaflYYan) kdna in wa

233 d.

The istihsdn whose effect is apparent while the aspect of corruptness in its effect is hidden (md jahara atharuh wa khafiya wajh al-fasddfih). (jisfil,

11,203)

Given the fact that whenever a case of istibsan emerges there involves a deviation from qiyas, the above categories represent a binary opposition. In other words, the first category of qiyds corresponds to the first category of istibsdn and constitutes a tension, in that the istibsan -based solution will overrule the qiyds based solution. Similarly, the second category of qiyds will overrule the second category istibsdn. of The criterion that is used to prefer one type over another is the degree of the effectiveness (ta'thir) of the ratio, irrespective of its being the ratio of qiyds or istibsdn: The preference only operatesthrough the strength of the effect (quwwat al-athar), not through clarity (al-; uhar) (a feature of qiyds) or opacity (khafd') (a feature of istibsdn). Since, we explained that the ratio that validly imposes a duty is the one that is effective; the weak effect &sjl, be in face hidden. the will invalid of strong effect, whether is apparentor

11,203)

In order to understand this, one should recall the significance of "effectiveness 0 (ta'thir) V)as a meansof determining the 'illa in Ijanaff legal theory' According to . this theory, an attribute can only fully qualify as 'illa if it is effective (al-mu'aththir). The suitability (al-muld'ama aw al-mundsaba),the co-existenceand co-absence(altard wa al-'aks) are not sufficient ground that would renderan attribute the 'illa. The dichotomies the such as concepts of clarity and effectivenessare comparedwith hereafter-this world, spirit-soul and reason-eye.In all these three dichotomies the former denotes,correspondingin our caseto "the effectiveness(athar)", the hidden latter to the the the refers while apparent concept, respective and subtler aspect of is It hidden (; "the that the to obvious clarity uhar)". aspect of it, corresponding first Thus, the insight the than conflict aspect. occurs apparent more aspect carries between one type of qiyds, the weak qiyas, and one type of istibsan, the stronger istibsdn: is by This forms invalid two exemplified istiPsaib qiygs. d: overruling valid a vs. birds; these the for one of predatory qiydss concerning case new a of qiyds competing just the (al-qiyas other and qiyds. al-mustabsan) the qiyds preferred is called birds be Sarakhsi, the predatory should remains of According to the qiyds, says have fact due the animals (najis) that the predatory already to of remains unclean in being terms their The two these of species similarity of been considered unclean.

234 flesh-eating creatures is obvious. After all, the flesh-eating attribute (being the source of the saliva produced) is already regarded to be the ratio legis of the uncleanness of predatory animals. A further review of this analogy, however, reveals that the similarity is not so valid for predatory birds, because birds' saliva does not into come contact with the water they are drinking, as they drink with their beak made up of diy bone, which is not considered to be unclean even for the dead let alone the living animal. This review is which called istibsan, therefore, requires that the remains of predatory birds should be joined not with that of other predators, as the ratio legis here is not properly established. Rather, it should be regarded as a case of touching water with bone. A second piece of evidence for the latter decision can be drawn from the fact that the common pets such as cats are considered to be clean by the Prophet, because the constant company of humans creates a case of necessity, which otherwise would lead to hardship. Besides, in desert conditions, it is obvious that there is no way to protect the utensils from the predatory birds. b vs. c: valid qiyffs overruling

istýhSJU. We have seen more than once that the

decisions of al-Shaybdn7i where istibsan is overruled by qiyds provoked more itself instances One istibsan than the the complications of concept of of this is a case for to the a serves as a substitution involving prayer; according qiyds, MkCi' in prayer from Qur'an, known the the verses of of sajda one of arisen reading obligation sajda from is According i. to istibsdn, reciting. obliged as sajdat al-tildwa, e. sajda which however, it is not sufficient. Here qiyds is preferred over istibsdn. The explanation of istibsdn rests in the fact that rukCt' is distinct in nature from sujc1d;for example, a despite fact for the the be that they the prayer, of are sajda substitute a rukCt' cannot further A the analysis of these two same prayer. two similar acts of worship in hidden but is istihsdn the whereas that stronger is effect of qiyds procedures reveals different in from The that purpose sajda sajdat al-tildwa is reason is corrupted. is Indeed, the to of sajdat purpose al-tildwa real prayer. proper, namely sajda of in front God. to those prostrate refuse of humility who against opposition and show from i. is lacking the SaralchsT, outside ruka' prayer, e. This meaning of sajda, says Sarakhs-1 has that states worship. qiyds as the count the not ruka'does prayer, outside After two this istijisdn citing more cases, than where case. in effect profound a more is in law; type he this that istibsan quite of reasoning rare concludes qiyds overrules

235 in the overwhelming majority of istibsdn cases, istibsdn always overrules the qiyds. The fact that Sarakhs! feels compelled to state this last point bolsters the suggestion that he is laboriously in reconciling the words of al-Shaybdn7iwith the legal theory of his own age.

The whole aim of this categorisation,therefore, as said above, is most probably to provide a consistentexplanation for the much-debatedremarks of al-Shaybdn-iabout qiyas and istibsan. The main difficulty seemsto be the one which is alreadyraised in investigation our of Jassds'saccountof istihsdn. There, Jassdsmade an unsuccessful inconsistency to the attempt resolve which arises from the initial definition of istibsan as a preferred proof. He argued, at the expenseof logic, that since, in the is form legal istibsdn it is end, a of evidence, obvious that it is sometimesoverruled by qiyds. It was Dabiisli who first introduced the conceptof the 'effectiveness' that be the ultimate criterion for the preferencebetweentwo conflicting qiydss. It would however was still not clear what was the proper relation of istibsan and qiyasSarakhs-ifurther expandsupon the effectivenessby defining istibsan and qiyds in a him distinguish from bad istibsan to the particular way, which allows good or qiyds his In schemeqiyds refers only to clarity while istibsdn suggestsa proof that ones. requires much more effort to grasp,nothing more. The inconsistency however seemsto be valid for Sarakhs!too, when he initially defined istibsdn by referenceto its etymology, i. e. as a meansof preferring one legal he Although the the the us with criterion provides on qiyds. apparent source over basis of which we distinguish a stronger proof from the weaker one (the stronger he does be istibsdn), be the not raise question sometimes and qiyas sometimesmight He istibsdn. is istibsan, the qiyds overrules the where preferred qiyds not called why definition by istibsan to the this of referring objection would perhaps answer both istibsan is That take its to from types. weaker two stronger and say, emerging involves discovering istibsan because the always a method of the name of istibsan (though, the as seen in the second deep reflection as opposed to clarity of qiyds In identified inconsistently this Sarakhs! with subtlety). qiyds category above, that does would value put one any over suggest not opacity or clarity respect, hidden istiýsdn, this does This evidence whose call we why explain not still another. 'preference'. Sarakhs! 's is definition, initial in with the associated inherently nature, fact, in two istibsan, alternative and incompatible therefore, suggests treatment of

236 definitions, one neutral and one evaluative. The evaluative meaning stems from its etymology as well as from subtlety of its nature, which makes istibsan obviously prevalent over qiyas. This must be the original meaning of istibsdn, which gives istibsdn priority to qiyds in most cases. The alternative neutral meaning of istibsdn seems to be formulated due to the need to give consistency into the words of AlShaybdril, who in a minority of cases made qiyas prevail over istihsdn. Instead of concentrating on two aspects of the previous definition of istibsdn, namely, preference and subtlety, Sarakhs-ihere pushes forward only the aspect of opacity, which bears no value in itself, and then brings forward the concept of the effectiveness, which can be a feature for either istibsdn or qiyas. Therefore being istibsdn or qiyds is not in itself a prerequisite for preference in this second definition. Importance of distinction between two types of lstffisffn. The last issue dealt with by Sarakhs-ias a conclusion to the topic of istibsdn is the distinction between the two traditional types of istibsdn. According to Jaýýdý,as we have seen above, istibsan has two main types, istibsdn as a conflict between two types of qiyas and istibsan by from based latter being deviation ijmd' the the general rule way of nag, and qiyds, a between distinction like Jaýýdý's Dabfis-1, Sarakhs-i, two general employs on qiyds. types of istibsdn for a different reason. For Sarakhs-1,too, one sort of istibsdn kinds including from deviation the three the of general rule of qiyas involves a istihsdn, which are istihsdn by means of nag, yma ' and necessity. The rule based on is That (ghayr to first istibsdn say, al-tnuta'addiya). this intransitive is not group of the rule cannot be extended to any other case,unless a similar piece of nag, ijMd, or intransitivity lies in The for this the is the of reason situation. new case necessity also fact that in this type of istibsdn, the rule is assumedto be deviant from the generality istibsdn, In type the 'an (ma'dal al-qiyds al-khaji' of alother al-qiyas). of qiyds for the this to based istibsdn transitive however, new cases, the is on rule mustabsan, for differently form but a specific reason. latter istibsdn is nothing of ql*yasnamed a does this the Although the legis. study not cover of scope Non-effectiveness of ratio term the this with concept of of the association known close takkiy al-'illa, topic as briefly, this touch it to on matter as istibsan, at least for some, makes necessary debates the to takhyTy istibsdn his around altreatment of Sarakhs7l,refers throughout issue treatment Besides, this of a separate filla and completes the chapter with it. in Jaý5dý, have As the seen concept follows we treatment the of istijisdn. immediately

237 it5 forms he integral takhsis of puts an part of some al-'illa, or takhsis al-hukni as istihsdn situations. Although Dabfis-i does not bring forward th'is concept in the context of istibsan, for these two jurists, the concept seemed to have posed neither theological nor juristic

With Sarakhs!, has the problems. picture undergone a

profound change; the concept of non-effectiveness of ratio legis is no longer a tolerable notion. More than that, the acceptanceof this concept now attracts the label inclining fundamental the towards tenets of the Mu'tazila, such as plurality of of truth, the infallibility

of the ijtihad and believing that God is under obligation to do I. best (al-aýlab) and so on' The interesting point for us here is that he does not the in debate theological to ref-Litethis concept. He, rather, tries to demonstrate engage a that those caseswhich are considered to involve takhgý al-711aby Jaýýdýand Dab-as-i be interpreted differently. can Thus, he argues that when a general rule based on qiyds is obstructed by some is be it in it happens istihsan that to assumed situations, some stronger evidence, as in legis by is the the the the non-applicability of ratio non-existence of caused rule full, in this particular situation. For example, in the caseof predatory birds above, the in birds their terms between these of remainder of animals and predatory analogy food and beverage is invalid because the ratio legis for the non-purity is not only Also leads their (which being to it meat and saliva). non-purity of their predators food the the includes the addition that what makes ultimately of predators remains of last This food their they eat/drink with wet saliva. impure is their touching the drink their birds, they from with the eat or is since predatory element clearly absent legis, involve restriction of ratio beak. To sum up, those cases which apparently be it Sarakhs-1, that seen some will argues scrutiny, close when examined with but for is the There therefore ratio restriction no legis are missing. elements of ratio in these cases. of it part some absence of being legal terms effects, pro that, practical of in Sarakhs-i's senses From account one interpret how is it to difference; of a matter only no makes takhgy al-'illa against or instance DaMisT by takhgy of alan as is That interpreted why, a case is the cases. The fact that be this notion. to involving 711a, while Sarakhs! considers it not in his insistence be on seen can ideological distaste this is concept Sarakhs7i's of his school: of from the authorities past dissociating this notion likes Dabiisli Iraq Ijanafis the the and of of -MB) Some of our colleagues(probably referring to

238 deemed that takhýTyal-'illa in legal causes(al-'ilal al-shar'iyya) is permissible and it is not against the way of the salaf (early generations), nor the way of the ahl al-sunna. This is a grave error on the part of those who claims it. The doctrine of those early masters of us who are well respected (probably the Transoxanian Hanafis, the Mdtufidiyya in particular) is that takh,yTyal-'illa is not permissible in legal causes.Whoever allows it will go against the ahl alLI, 11,203) sunna, leaning towards the words of Mu'tazila in their fundamentals.(Uýiu -

IV. Pazdawl on istifts9b.

The tendencyto assimilatethe conceptof istihsan into the conceptof qiyds continues in the Kanz of Pazdawl. Like Sarakhs!,he considersistibsdn not as an independent chapter on its own but a sub-chapterof 'illa, which is in turn the most important element of qiyds, as his title indicates: 'Chapter of qiyas and istibsdn (Bdb al-qiyds importantly, More he starts the chapter straight with the types of wa al-istiýsdn). in istibsdn terms of their relation to eachother, which are exactly the same qiyds and he definition Sarakhs-i; introduction the those of this concept of provides no about as later. beginning, This the shows, as the commentator which will come up only at 12 is PazdawT to provide an adequateexplanation that the actual aim of pointed out , for the accusationsagainst the use of istibsdn. More specifically, as I suggested formulate is developed theory to this typology consistent a more particularly above, between the istibsan that the explain apparent would and qiyds of relationship istiýsdn inconsistenciesin the works al-Shaybdn7i, especially when which comesout defined as a type of qiyds. is Pazdaw7lthus defines istibsdn as: that the to type However, it is preferred indicate such as is named it two the analogies. one of

(Kan IV, 1123-1124) the permissible. is analogy to of accordance in act and , in a conduct

istihsdn does the definition all cases, not encompass Pazdaw-i- admits that this aarara. His for based excuse and yind' g, nas on types are those which especially is here istiýsdn his how to with related concern types those also indicates neglecting legis: the through ratio qiyas (al-'ilal) terms their legal of consequences. in causes types the of here to Our aim classify is the we becomes with effect named one whose its only cause a Since the cause,in our opinion, istibsdn, the as e. preferred i. strong qiyds is effect the whose one and effect is weak as qiyds (qiydsan niustabsanan).

(Kanz,

IV,

1126)

239 This definition of istibsan as a preferred qiyds, though aimed to resolve the difficulties surrounding it in the terminology of al-ShaybdnT,seems to be flawed by the fact that Pazdaw-i's treatment gives rise to two alternative and incompatible definitions, as stated above. This inconsistency can be seen better in Pazdawl, who clearly characterises istibsdn, in the above two quotations, as a preferred qiyds, and at the same time, admits that istibsdn can sometimes be overruled by a qiyds. There is apparently a material difference between Pazdawl and Sarakhs-iin the issue of the nature of the relationship of istihsdn to qiyds. That is to say, Pazdawl seemsto suggest that where there is a conflict between istibsdn and qiyds, there would be an option to choose either of them, though istibsdn is preferable. It is like the position of tard

(co-existence) in relation to athar (effectiveness), where although the

is effectiveness preferable, the co-existence still remains a valid option.

This is

by Sarakhs-i.However, Pazdawl later makes it explicit the exactly position rejected that wherever istihsdn rules, the qiyds that goes against it becomes invalid. Taken at face inconsistency. it However, this value its suggests an obvious is possible that Pazdaw-l-'saim was to draw attention to the fact that qiyds, as considered separately from the istihsan, is a valid procedure, like the 'co-existence'. When it conflicts with istibsdn, the latter takes precedenceover the former. Thus there is almost nothing new in the treatment of Pazdawl from that of his he by the that, points already concluded summarises as usual, predecessor, except Sarakhs-i,refines the language and offers a better structure, which puts less emphasis Pazdaw-ifinal is A the treatment discussion that than about of note presentation. on he also criticises the notion of takhýTýal-'illa and tries to dissociate it of from the he istibsdn as much as can. concept of

240 Table 7. Treatment of istihsdn in the writings of eariv Hanalt' usal literature. Author Deflnition Types of Istiliska Ja"4 Ambiguity concerning the A. Istibsdn as discretion definition, i. e. whether it is the B. Abandonment of qiyds 1. Conflict of two types of qiyds name of the process,such as 2. Takhgý al-'illa ta'dru4 and tarjib or the name of a. By Kitdb one of the sourcesof law b. By sunna C. By Ijmd' d. By qiyas Dabfis! The name of one of the valid a. By nag b. By ijmd' sourcesof law when it is in conflict By darfira C. with a qiyds d. By qiyas (Istibsdn by naý-S,ijmd' and darCiraare assumed) Sarakhs! Types of apparentqiyds: Valid apparentqiyds Emphasison the idea of istibsdn as a. b. Invalid apparentqiyds hidden a qiyds (al-qiyds al-khaji') Hidden qiyds (Istibsdn) Valid hidden qiyds C. d. Invalid hidden qiyds (Istihsdn by nass, ijmd' and darara are assumed) PazdaWi Types of apparentqiyds: Emphasison the idea of istibsdn as a. Valid apparentqiyas (al-qiyds hidden b. Invalid apparentqiyds a qiyas al-khaji') Hidden qiyas (Istibsdn) hidden Valid c. qiyds d. Invalid hidden q1yas No mention of istihsdn Shish!

Summary and discussion The pattern of the development can be seen in the above table. Jaýýdýtries to clarify first The different between lines drawing this term. by istibsan uses of the concept of judge, discretionary the which power of a technical meaning of this term concerns best reflects the literal meaning of this term, personal preference. A more two involves of comprises general which of qiyas, abandonment complicated use Kitdb, favour ijmd' in being and qiyas, of sunna, types, one abandonment of qiyds

is between legis. The the involve conflict other to of ratio restriction which is said by the the Dabils-i, of account of shortcomings considering two types of analogies. by four istihsan in istihsan categories, namely, nasy, Jassds,reformulated the types of in Pazdawl their treatment the Sarakhs-l of stressed, 4arara and and qiyds. yma leaving three types, the istiýsdn other aside namely the issue, the analogical nature of do latter types for a particular pose problem not aarCira, in these ' na,y,y, yma and (followed by Pazdawi) Sarakhs-1 istibsan The proposes justification. types of terms of The his assimilation predecessors. of of to shortcomings overcome therefore aims does his in Shdsh7i is that summary not pay attention into successful so istihsan qiyds to this problem.

241 The objection to the use of istiýsdn as a form of legal reasoning,on the samelevel as Hanaff have to directed is the mastersseems compelledthe qiyas, which against early jurists to find a justified explanationfor its use in the corpusjuris. From the earliest theoretical elaborationof this conceptby Jassdsit is clear that the solution must have been restricted into the conventional sources of law, otherwise the accusation of introducing a fifth source, or giving a judgement without a justified foundation have been inevitable. By Jaýýdý, is identified legal istiýsdn the time would of with a involves that either two conflicting qiyass, or takhyTýal-bukm, where a process based by Having ijmd' taken rule on general qiyds is restricted nag, or anotherqiyas. for granted this explanation, his successorDabfis-iidentifies four candidatesfor the J -' istihsdn found to be used in the corpus juris; istihsdn by means of nag, yma however, Dabils-1, necessity or qiyas al-khafi, which all conflict with qiyds al-jaft. draws an important conclusion from the two different types of istibsan first proposed by Jaý555,i. e. istibsdn by al-qiyas al-khari and istibsdn by other means.Whereasthe beyond be this by latter the istibsan the of specificity extended cannot rule attained for basis based hidden the generalisation. qiyds constitutesa on one particular rule, Overruling a qiyas-based rule by nag, ijmd' and necessity (darctra) is so obvious that law in the for Muslim these of parcel and part considered are it, oppose can jurist no do three these Those istibstin of any not involve the proper sense. cases which The hence legitimate grounds were more controversial, needed another explanation. the to turn therefore, relationship exclusively writers, uýal of subsequent efforts by the To the hidden actual caused problem between apparent and solve qiyds. displayed is legal theory, particularly which the classical and wording of al-Shaybdn-i had jurists to to the the between istilisin resort qiyds, and by binary opposition the (athar), of concept of a property exclusively is which concept of effectiveness istibscin the jurists of concept assimilating in has ahead the This step taken one qiyas. details this Pazdawl the to Saralchs-i of elaborate to It and up was into qiyds. (apparent) (hidden both istibsdn and qiyds qiyds) have They classified assimilation. from bad By istihsdn the discern ones. or qiyds good a that into two types, so one can binary that to of problem particular solve they distinctions, managed making such by istibsan of qiyds overruling istilisaii especially and between and qiyas opposition has istibsdn through gone of However, the meaning original in certain circumstances. For, being the sub-category of a qiyds. only it as up ended and change a profound is the with concept associated of closely which ratio, of concept of non-effectiveness

242 istihsdn in the treatment of Jassds, has gained no attention from Dabiisli in this particular context. On the other hand Sarakhs-1and Pazdaw-i tried to dissociate istibsan from this concept for theological-ideological reasons. For example, the aspect of preference, which is an essential element of the concept of istibsdn, has totally disappeared from the later definition of istibsdn. Similarly, the challenge that, in the writings of al-Shaybdn7l,istibsdn is situated in opposition to qiyds, rather than being its sub-category, has not been addressedby thesejurists. The concept of non-effectiveness of ratio, which is closely associated with the in istibsan the treatment of Jaýýdý,has gained no attention ErornDabiisli in concept of this particular context. On the other hand Sarakhs-1and Pazdawl tried to dissociate istibsan from this concept for theological-ideological reasons. It is interesting that the topic of istibsdn is completely ignored by the so-called Usill fact into its al-Slidshl, a which again calls question authenticity as a fourth century text. As we have seen, the concept of istibsan received the largest attention in the in field independent the topic till it earliest works of usal, starting as a separate and being assimilated into the topic of qiyds at the end of the fifth century of Hijra. More (formerly known MdtuflidTi the as the school of so-called uýfd movement interestingly, Samarqand) seems to have ignored the topic of istibsdn completely difficulty be the possible explanation must

tOO13 The . in fully this concept a of explaining away

developed legal theory of the fifth and sixth centuries. It is interesting to note that istibsdn the touched this on concept only of uyal movement earliest representatives of in the context of the notion of takhýTy al-'illa,

denounce latter idea. they this where

This so-called Us-al al-Shdsh7i also denounces this concept, which as seen in Jaýý4 but later Ijanaff the Dabiisli, school, abandoned, as seen was an earlier position of and in Sarakhsi, Pazdawl and indeed in almost all later wyCllwriters. It is my contention, from istiýsdn the themes basis this the uyal that so-called excluding therefore, of on fusion between jurists the belong to a methods Shdsh7i's uAtl must when of a period 14 Hijra it displays the have the of as century sixth after theologians occurred and , Wtuffidli juristic tradition the the both and namely movements, of characteristics 15

tradition studied in the present research References 1Chehata, T' tquit6'

243

2 Makdisi, 'Legal Logic' 3 Gerber, Islamic Law Johansen, ContingencY, 92-97; Culture, 30,166-167 and 4 Shdfi'l, VII, 274 K. 503-508; al-Umm, al-Risdla, 5 For Shdfl'! 's divine law Calder, 'Ijmd' and ikhtilcif emanation, as a see view of ,55,69 6 Istibsdn in this Abii Ijanifa late to ascribed generally is sense as as fifth century, see,for example, al-Shlrd2li, al-Luma, 177 7 It should be noted that legal sourceis taken here in the loose sense,as understoodby the Muslim jurists, when they call the qiyds a legal source.In the strict sense,even qiyds's being legal source is disputed. Ghazdl-lfor example, places the topic of qiyds, not under the heading of legal sources,but under "the deduction of rules from expressionsthrough reasoning.Al-Mustasfa, 1,14,11,105-106 8Fusfil IV, 255 9 For the investigation of ratio legis and in particular the concept of tard and ta'thir, seeTag 174b-175b; Usfil., 11,174-192. Seealso Aron, 'Economy of Certainty', 335-372 10Ibid. 11Usifl, 11,208-213; Aron, 'Economy of Certainty', 335-372 12Al-BukhdCi, Kashf al-asrdr, 111,1122 13The earliest representativeof this movement whose worked reachedus, the brother Pazdawl, AW al-Yusr al-Pazdawl, and 'Ald'uddln al-Samarqand7i, whose uyCdwork is the richest sourcefor this j 7 1; alHija See, Pazdaw!, istibsdn. to the concept of art. movement pays only cursory attention , M-1zdn,630-635 Samarqand7l, 14Ibn Khaldiin, Muqaddima, 456 15The conclusion of the chaptersof command above bolstersthis contention. Seeesp. Ch 2 above pages 72-74

244

Conclusion A comparative analysis of these five texts enables us to draw a few conclusions concerning the history and the nature of the science of uyal al-fiqh. Firstly, one can trace step by step historical development of this science in this particular tradition FusW Jaýýdý's starting with and ending, for the purpose of this study, with UsW alShdsh7i.Being the earliest work in the field, Fusfil seems not to have the luxury of leaving out anything that is needed for the establishment of the school tradition. Jaý*dý's concern is less with the structuring of the themes and arguments in an justifiedlaunching full-scale formulate than to with a a campaign organised manner UsM legal On the theory. the al-Shdsh-i,whose road stands other side of universal brevity as well as conciseness makes it closer to a style of writing, which, again as far as this study is concerned, started with PazdawT.This style presupposesa mature development already elaborated in the tradition in a way that satisfied immediate different to the The subject the approach a very required age new school. of needs in tradition this and compendia manuals, presenting namely matter of uyal al-fiqh, from is feature the total material of control textbooks, prominent whose even perhaps longer They no beginning to the end, resulting in conciseness and organisation. but jurist discussions questions, "views" on usal certain of a the and represent Islamic (traditional Emergence of madrasas the position. school of articulations Pazdawl's in this style. writing leaming) for to change with coincide seems centres its in Ijanafitradition, explains which beginning this uýal style the of text marks Medieval times. in throughout this school being the most popular compendium belongs the to development post-Pazdaw'iin most probably Usfil al-Shdsh7i this fourth being its for backing historical work, century a lacking from Apart a period. in fact this terminology work of as well indicated that as has structure this study it terms in even surpassing sometimes displays the features of the above mature style, describe to the intended work aiming been have introductory an as It brevity. must of illustrates the main points raised following table The al-fiqhuyal on positions school Usiil al-Shdsh7l: of the authenticity regarding

245

A M R

K H A

B A R I J M Ae I S T

linguistic legal definitions; definition: to the and -A mature approach implications; theological of -Consideration dispute the to the of parties a ignorance or their views on the consequenceof secondchapter, -In command, -Being satisfied with the statementof acceptedopinion. found Sarakhs! Pazdaw-1. the terms and which majab is only of mutlaq in and -Using built developed the theory the by Sarakhs7i talcrdr the of sabab upon issue, one -In and Pazdaw-i; legal khabar to of acts in relation al-wdhid are exactly the sameas those identified by Pazdaw-1 -Types khabar of acceptability of al-wdbid and interpretation of the examplesresembleto the post-Conditions Dabiisli literature

Shdsh7iin a single introductory sentenceon ijmd' articulate the school position in way which clearly presupposesan already establishedtradition. More specifically he usesepistemologicalhierarchy between different types of ijmd' used by Sarakhs-iand especially by Pazdaw-i.

As a result of the efforts of his predecessorsin assimilating istibsdn into qiyas by reducing it either to a form of ta'drua (conflict between two proofs) and trajib (preferring one proof over another)or to a form of qiyds, Shdsti7itotally ignores this issue in this introductory work. Related to istibsdn, takhyiy al-'illa is rejected on theological grounds; again a feature of post-Sarakhs-iperiod.

S A

N Secondly, the mature and sophisticated state of the science of uývfilal-fiqh found in the work of JaýOý indicate that the lianaft school's part in the development of this by The less the than other schools. prevalent opinion in part played science was no jurist Ibn Surayj (d. Shdf! 305/918) the to the modem scholarship which points and his students as the founders of the science of uýal al-fiqh, in the light of this study, level Jaýýdý's is It be the that sophistication of in work clear revised. needs to down by likes Ja! before the tradition of 5ýaý. it was written at work presupposes a rich important the to on one of very Thirdly, this comparative study allows us speculate function. fact The that the science of functions of usal al-fiqh, namely its justificatory fura' after only existence into came uAl

law) (substantive had long been al-fiqh

law. the task the left reconstruction of of retrospective the with mycifts established law' 'the the creation of were said to The founding jurists who were credited with despite fact in the down that they these laid works, uýcd have used the principles The theoretical the half principles and earlier. rules least centuries lived at a and one in by the of law science uAl al-fiqh, a way which "practical" interwoven were of for the sake of practice, or sometimes vice bending theory the sometimes required

246 versa. The latter, bending the practice for the sake of theory, however, was less the case, as the authority of school tradition generally surpassed the authority of the theoretical principles. This brings us to a third point in this conclusion: the function of the science of uýal al-fiqh as a tool of school exercise. That is, the jurists, as Sarakhs-ipointed out in his introduction, saw uyal as a place where again the interaction between the theory and practice occurs, but this time the science of usal functions not retrospectively but prospectively. Although this appears to contradict the previous conclusion, in fact, it does not. Since, the expansion of the law, after the schools were established, occurs, directly law, through the the two not explorations of main sources of namely Kitdb but in fact has its through tradition, the and sunna, medium of school which own internal reasoning. In other words, the question was no longer what a certain passage but from Abii Ijanlfa this passageand why. what means, understood Finally, related to the last two points is that the Mediaeval Muslim scholars found in the science of uyW al-fiqh an opportunity to satisfy their intellectual desires, by focusing on purely theoretical and speculative issues, which are in no way related to the practical needs of law.

247

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