ه‍.ش. ۱۳۸۹ اردیبهشت ۱, چهارشنبه

اصول فقه شیعی به زبان انگلیسی

The only primary text on Shi'ite usul al-fiqh in English is Muhammad Baqir as-Sadr, Durus fi Ilm al-Usul. This has been translated into English twice: by Roy Mottahedeh as "Lessons in Islamic Jurisprudence" (2005) ISBN-10: 1851683933 ISBN-13: 978-1851683932 and anonymously as "The Principles of Islamic Jurisprudence according to Shi'i Law" (2003) ISBN-10: 1904063128 ISBN-13: 978-1904063124.
هنرور: آنچه در بالا از ویکی پدیا نقل کردم البته برای توجه به اهمیت کتاب کفایت می کند. بله، همان دروس في علم الاصول خودمان است که پرویز متحده آن را ترجمه نموده و اول بار در مجلد 38 مجله ی مطالعات ایرانی در سپتامبر 2005 منتشر کرده است، سپس به صورت کتاب در همان سال با عنوان ذیل منتشر گشته است:
"Lessons in Islamic Jurisprudence"
و البته در سال 2003 هم ترجمه ای از همین کتاب بی نام مترجم و با عنوان دیگری انتشار داده شده بود:
"The Principles of Islamic Jurisprudence according to Shi'i Law"
البته کار متحده فوق العاده ارزشمند است و منهج و شیوه ی آکادمیک روشن و آشکار دارد. یکی از عوامل توفیق او هم تسلط بر حقوق غربی و اشراف به ترمینولوژی آن است، و الا کار هر کسی نیست که به جای اختراع و ابداع کلمات بر اساس ترجمه ی واژه ها و معادل گزیدن برای آنها در زبان مقصد، آن کلماتی را برابر بنهد که در همان زبان در موارد کاربرد و اراده ی معنای مشابه، رایج و مؤدی به مقصود و مرادند.
و زمانی که من بیچاره در روی دربایستی ها قبول کردم که به عده ای دانشجو و پژوهشگر غربی ماده ی درسی "مقدمه ی فقه و حقوق کلاسیک اسلامی مطابق شریعت جعفری" را به زبان انگلیسی تدریس کنم، عمده ی کاری که در یک ماه فرصت مانده به موعد مقرر برای شروع دوره در اختیار داشتم، مصروف تدوین ترمینولوژی مربوطه شد و عمده ی اتکای من بر همین کتاب با ترجمه ی متحده مقالاتی از دکتر مدرسی و مقالات و مدخل های دائرة المعارف ها و ذوق و ابتکار بود.
شاید دوستانی مطلع شده باشند که به تازگی از ترجمه ی کفایة الاصول (جلد یکم) به انگلیسی و آلمانی به منظور انتشار دو زبانه ی متقابل به انضمام متن عربی در پیوست و همراه با پس- گفتار و پی نوشت ها و نمایه و واژه نامه، به لطف خدا فراغت یافته ام، اما خدا داند که چقدر زمان ببرد تا به بازار هم روانه گردد. فعلاً معرفی منابع عمده ی خودم هم بی فایده نخواهد بود.

Lessons in Islamic Jurisprudence: Review of Roy Mottahedeh's most recent book

Originally printed in Iranian Studies, volume 38, number 3, September 2005, Reviews

book coverLessons in Islamic Jurisprudence, Muhammad Baqir as-Sadr, trans. And introd. Roy Parviz Mottahedeh, Oxford: Oneworld, 2003, ISBN 1-85168-324-0, pp. 200, index. (Paperback edition, 2005)

Lessons in Islamic Jurisprudence far outstrips in importance the run-of-the-mill translation in Islamic studies. In a remark that could apply to many published works in the field, Mottahedeh reports that he had produced an initial translation that was in an important way inadequate: “I immediately prepared a translation which I considered accurate but which was almost entirely unintelligible to the intelligent lay reader.” As he explains, this was in large part because of the lack of suitable received terms to express the technical terminology of Islamic jurisprudence in English, a quite complex and vexing problem (pp. viii – ix). Drawing on extensive reading in Western and Islamic jurisprudence, Mottahedeh revised his translation thoroughly, arriving at many new and more satisfying English renditions of Islamic legal and hermeneutic terms. The result is not merely a more readable translation of this particular textbook of Islamic jurisprudence but also a major advance in our understanding of the terminology of Islamic legal theory.

Lessons in Islamic Jurisprudence is the translation of the opening volume of Durus fi ‘ilm al-usul by Muhammad Baqir al-Sadr (1935 – 1980), a prominent member of the scholarly al-Sadr family. This family, which has roots in Lebanon, has produced dozens of influential scholars over the last two centuries, primarily in Iraq, but in Iran and Lebanon as well. Muhammad Baqir al-Sadr grew up in Kazimiyyah, the large Twelver suburb of Baghdad, and then relocated to Najaf, where he studied and taught for most of his short life. Acclaimed for developing key concepts of Islamic economics in his studies Our Economics and The Interest-Free Bank and equally renowned for his work Our Philosophy, he was a brilliant and prolific author. He authored a number of more traditional texts on Islamic jurisprudence and legal questions, and was thought by many to be on his way to leadership of the institution of learning at Najaf, as marja’ al-taqlid, or top legal authority. He was executed by the regime of Saddam Hussein in 1980, along with his activist sister, Bint al-Huda, for speaking out against Iraqi government policies. The work translated here belongs to an important genre in the Islamic sciences that dates back to the third/ninth century and early on became a standard part of Sunni and Shi‘ite legal curricula: manuals of jurisprudence, or usul al-fiqh. This particular work, a textbook itself, seems intended to provide a clear and accessible introduction to al-Kifayah fi al-usul, by Muhammad Kazim al-Khurasani (d. 1329/1911), which gained recognition as a standard text of jurisprudence in the Twelver curriculum in the course of the twentieth century.

The informative introduction briefly explains the nature and history of Islamic law and jurisprudence and then presents the life of the author. The original work consists of four parts: 1. Characterization of Jurisprudence; 2. Substantiating Arguments; 3. Procedural Principles; 4. The Conflict of Arguments. The translation proper is followed by a compact explanatory summary of the points made in the work as a whole (pp. 145 – 72). The innovative part of al-Sadr’s work, particularly in comparison with well-known medieval works on Islamic jurisprudence, is the clear explanation and delineation of the purport of procedural principles, a topic that has been developed extensively in Twelver jurisprudence in the course of the nineteenth and twentieth centuries. These are rules to which the interpreter resorts when specific proof-texts, to be interpreted according to rules discussed under the rubric of substantiating arguments, cannot be located. They include such things as the principle of “precaution” (ihtiyat), according to which one should take into account what God may possibly have commanded concerning a particular issue in the absence of specific knowledge of His commands concerning it, and therefore avoid legal gray areas. Precaution, however, may be inverted to the secondary principle of “the priority of exemption” (asalat albara’a), which is applied in cases where substantial doubt exists, either about a ruling or the subject of a ruling. In addition, the Lessons includes a thoughtful discussion of ijtihad that clears up confusions that have arisen in Islamic law in general because of the various semantic usages of the term (e.g., the interpretive effort on the part of the jurisprudent as opposed to a particular method of legal interpretation). Al-Sadr also gives a good historical synopsis of the use of the term within the Twelver tradition; he explains how Twelver jurists came to accept ijtihad by the thirteenth century despite its early association with arbitrary personal opinion and illegitimate interpretive method (pp. 46 – 53). An English glossary of technical terms and an index of Arabic terms round out the volume.

Roy MottahedehAs stated above, Mottahedeh’s key contribution is in his rendition of technical terminology. The general practice of Islamicists has been to translate Islamic legal and hermeneutic terms either by providing literal equivalents or by producing tortuous explanatory paraphrases. While such renditions may allow specialists to grasp the original behind translated terms, they usually fail to enhance the transparency or explanatory power of the text as it stands in English, and they often reveal an inadequate understanding of the scope of the technical term’s meaning. They also obscure the possible parallels and contrasts to be drawn between Islamic jurisprudence and Western legal or other hermeneutical systems. Mottahedeh has clearly thought long and hard about how to translate Islamic legal and hermeneutic terms into functional equivalents, and in most cases he has come up with innovative solutions that are more succinct, elegant, and intelligent than what one sees in other translations. The term mukallaf, for example, is often rendered as “legally responsible Muslim believer” or the like; Mottahedeh’s compact “legal agent” is a vast improvement. He translates zahir as “prima facie” rather than the usual, and less precise, “apparent meaning” or “extrinsic meaning.” Similarly, his translation of mujmal, “indeterminate,” is preferable to the common “unspecified” or “ambiguous.” One could cite many more, similar examples. The explanatory glossary and index of Arabic terms bring this accomplishment to the fore and render the translation extremely useful for the investigation of Islamic jurisprudence in general.

Mottahedeh’s translation itself is excellent overall, and very few criticisms can be made. In the glossary, there are a number of typographical errors in the transliteration, particularly in rendering ‘(hamzah) as’ (’ayn), but also ‘aqı for a few others. The term fiqh is rendered “legal understanding” in a number of passages (pp. 36 – 44). This is of course drawing on the original, etymological meaning of the word fiqh, “understanding,” something which Islamic texts emphasize from time to time. In most cases, however, this connection is lost, and fiqh simply means “law.” Mottahedeh is well aware of this meaning, but I would argue that “law” should be used throughout in the translation. These are minor quibbles. We may add this work to Bernard Weiss’ The Search for God’s Law (Utah, 1992), his The Spirit of Islamic Law (Athens, Georgia, 1998), and Wael Hallaq’s A History of Islamic Legal Theories (Cambridge, 1997) as a major step toward making Islamic legal theory accessible to an audience outside a small group of specialists. It is an extremely valuable resource for scholars of Islamic studies and other fields in that it describes Islamic jurisprudence in accessible language that makes the connections between that tradition and Saussurian linguistics, speech-act theory, philosophy, and hermeneutics more transparent. The volume also deserves special recognition as the first translation of a manual of Shi’ite jurisprudence. It nevertheless remains something of an orphan, as the author puts it (p. viii), and needs to be followed by similar translation efforts.

Lessons in Islamic Jurisprudence

Introduction

Muhammad Baqir as-Sadr, one of whose works on Islamic jurisprudence is translated here, is among the leading modern thinkers in this field. This introduction seeks to locate his work for the intelligent lay reader by offering: a discussion of the nature of Islamic law; a discussion of the nature of Islamic jurisprudence; a discussion of the relation of this system of jurisprudence to Roman and canon law; and a very brief sketch of the life of the author.

The Nature of Islamic Law

It is by no means inevitable that law should have become so central to higher learning among most Muslims in the pre-modern period. For over a thousand years the great majority of Muslim jurists agreed that out of over six thousand verses in the Qur’an there were only five hundred verses with legal content. Most of the “legal” verses concern ‘ibadat, approximately “acts of devotion,” such as prayer and the pilgrimage. Out of these five hundred verses, there are approximately one hundred and ninety that deal with non-ritual aspects of the law; only matters of inheritance are laid out in any detail.

As to why legal culture became central to so many Muslims in subsequent centuries, I can give only a partial answer. The Qur’an, according to one very widely accepted reading, by its spirit encourages legal culture since it speaks repeatedly of the hudud, literally, “the limits” or “boundaries.” In the Qur’an this word does not mean “the prescribed punishments,” as it came to mean in later Islamic law, but “the limits” which circumscribe good behavior; and in almost all instances hudud in the Qur’an is best translated as “laws.” For example, in a verse on divorce (and most mentions of “the limits” are in passages on divorce and fasting), the Qur’an reads, “… these are the laws [hudud] of God: do not transgress them. Those who transgress them are unjust (or ‘oppressive’).” (II: 229). Another verse on divorce says, “… these are the laws of God. One who transgresses [literally, “passes beyond them”] has done injustice [or “acts oppressively”] to him or herself …” (LXV: 2). In earlier centuries the study of Islamic law was called “the laws/limits and the knowledge [of them],” al-hudud wa-l-’ilm, or simply the “knowledge” (al-’ilm). And indeed the Qur’an connects laws and knowledge, in a verse which ends, “…and these are the laws [hudud] of God; he makes them clear [yubayyinu-ha] to a people who understand/know [ya’lamuna, from the same root as al-’ilm].” (II: 230).

The Qur’an also offers a number of statements specifying that certain things are “permitted” (halal) or “forbidden” (haram). Therefore, given that there were some “laws” specifically laid down and some things actually classified as “permitted” or “forbidden,” and given that Muslims were in touch with three powerful legal systems, the Roman, the Jewish, and the Sassanian Persian, is it surprising that legally minded Muslims felt it necessary to go beyond the brief treatment of the law in the Qur’an to develop a fully fledged legal system?

Yet as this system developed it became clear that it was something grander than law: it aspired to classify and categorize all human acts. Later jurists summarized this ambition in a maxim that said, “In the presence of God there is a ruling or ‘classification’ (hukm) for every instance of human behavior.” The jurists saw it as their responsibility (and, to some extent, that of every human being) to derive, from what they believed to be potential sources of the law, the most likely classification or categorization of any human act in the eyes of God. He is “the Lord of the Day of Reckoning,” as the Qur’an repeatedly says, and it was considered essential to know how He would reckon the deeds of one’s life, even when they were neither “forbidden” nor “obligatory.” After long dispute the jurists came to agree on five “predicates” appropriate for any legal proposition expressing the ruling (hukm) which evaluates a human act in moral terms. An act is either “forbidden”, “discouraged”, “permissible” (meaning free of any moral weight), “recommended”, or “mandatory”. Normally only the “forbidden” and, in some cases, the “mandatory,” could be matters for consideration in an Islamic court, and only these matters would be called “law” according to a widespread Anglo-American tradition. But it should be understood that the so-called manuals of Islamic law would be considerably slighter if they contained only matters enforceable by courts. Islamic law proper is embedded in a moral hermeneutic, or system of interpretation. It can be argued that even in the Anglo-American system we have laws such as tax laws, the object of which is to encourage or discourage certain types of behavior in areas such as personal savings and home ownership, which are of course legally optional. To give another example, “Good Samaritan” laws encourage help to the distressed in cases of emergency by reducing liability to the rescuer.

The jurists understand the middle category, “permissible” or “morally neutral,” to be central to the nature of the law, “The legal presumption concerning things is their permissibility (’ibaha),” as the famous maxim says. This word can be translated “license,” from which point of view the need for “limits” is clear. It can also be understood as “liberty,” and a person’s fundamental liberty to act as she or he wishes in the world has been an important concept to many Muslim reformers. Some moral philosophers in the contemporary West consider such a presumption necessary to any system of ethics.

A kindred concept is “the presupposition of innocence,” which partly overlaps with the Anglo-American presumption of innocence. When born, every person’s legal standing (dhimma) is innocent/free of guilt (bari’). This presupposition is seen as self-evident; for the accused in a law case is innocent until evidence (bayyina) is brought to prove otherwise, and the newborn is not yet responsible for any acts whatsoever.

The Historical Development of Islamic Law

The above account of the way in which Islamic law developed is too stylized to be fully historical; it represents the attempts of later jurists to tidy up the history of a very lively intellectual debate which, like any other such formative episode, was filled with disagreement and took place under the pressure of real concerns. Fortunately, a fair amount of material on these early debates survives. (It is one of the merciful aspects of Islamic law that its extended treatments carry the history of virtually all opinions of previous jurists of any importance into later works, a display of learning that allows the author to show that he has considered discarded opinions, as well as – on rare occasions – to adopt an earlier opinion.)

It would seem both from the Qur’an and its commentaries that many of these early debates had to do with the way in which Islamic law should understand itself over and against other law or laws. Verses 42 through 50 of Surah V (al-MShari’aida) are held by most Muslim biographies of the Prophet to relate to an incident (supposed by Muslim commentators to have occurred in the fifth year of the Prophet’s authority in Medina) when some of the Medinese Jews came to the Prophet asking him to arbitrate among them. In verse 44 the Prophet is told, “In truth we have revealed the Torah in which is guidance and light, by which the Prophets who submitted to God judged the Jews; and the rabbis and sages judged by such of God’s Book as they were bidden to observe … .” Verse 48 goes on to explain that God has revealed laws for each community, “To each of you we have given a law and a way. Had God wished it He would have made you a single [legal] community [’umma] … .” (This divinely willed legal plurality was, of course, why Muslims generally tolerated religious communities founded before the coming of Islam. They always had the option of considering these communities as “pagans,” a category of persons that the Qur’an and the Prophet did not tolerate within Arabia. Until very recently religions founded after the coming of Islam were not legally recognized.)1

The expansion of Muslim rule brought legal questions that had to be sorted out immediately, and the Islamic legal tradition would later consider the decisions on these legal questions to be an exercise in ijtihad, the effort to derive rulings from their proper sources. ‘Umar, the second caliph (from 13 A.H./634 A.D. to 23 A.H./644 A.D.) had to choose between precedents. The Prophet had made different arrangements with different Jewish and Christian communities in Arabia. In one instance he arranged for an annual poll tax, another, the Christian community of Najran, agreed to send two thousand robes to Medina each year. How by extension from the precedents could a ruling be established for the taxation of other Christian and Jewish communities? There was also the problem of the status of the land in the large empire suddenly acquired by the Muslims during the reign of ‘Umar. The jurist ‘Abu Yusuf in his book on the land tax tells us that Bilali the famous Ethiopian companion of the Prophet, told ‘Umar, “Divide the lands among those who conquer them, just as the spoils of the army are divided [on the battlefield].” But ‘Umar refused, saying, “God has given a share in these lands to those who shall come after you.” As in the question of taxation there were mixed precedents, and for the next century opposition to ‘Umar’s decision to give the tax revenue and title of the conquered land to the “treasury of the Muslims” remained controversial and a cause for serious revolts.2

While the first four caliphs had an enormous share in making the decisions which would become law, their successors, the dynasty of Umayyad caliphs, continued to promulgate their own rulings as binding legal decisions for matters as various as marriage, the law of sale, and blood-money. The well-known “fiscal rescript” written by ‘Umar II (caliph from 99 A.H./717 A.D. to 101 A.H./720 A.D.), usually counted as the most pious of the Umayyads, shows this caliph ruling on the tax status of converts and kindred matters. Even subordinate Umayyad officials could make rulings which might find subsequent authority in the law. When an Arab general invaded the province of Sind in 93/711, he recognized Hindus as protected people like the Christians and Jews, and the majority of later Muslim jurists of the Hanafi school, the Sunni school predominant in South Asia, recognized this ruling.

Gradually the caliphs lost the power to make legal rulings. Yet they retained until the very end the theoretical authority to appoint judges and to hold their own court, the mazalim, or court to judge “contraventions of justice.” The jurisdiction of this court was very wide. Although in theory there is no appeal from the ruling of a qadi, in practice cases were appealed to the mazalim court. Moreover, it functioned as an important court of appeal from decisions in administrative law and against the misbehavior of administrators, matters with which most qadis were unwilling to deal. Yet the mazalim jurisdiction never reached out to the masses who lived under the caliph’s rule; it did not, for example, develop “delegated” judges, as the qadis did in order to have sitting judges in remote towns. The mazalim remained an active but idiosyncratic expression of the ruler’s desire to be seen personally as the last resort in the search for justice.

The authority of the Umayyad caliphs to make law or even in any way to govern had been challenged from the start, in significant part by the “Partisans” or Sh,’a, of ‘Ali ibnAbi Talib3 the first cousin and son-in-law of the Prophet, and some of these Shi’is felt that ‘Ali had been explicitly appointed by the Prophet as his successor. The Kharijites, in contrast, opposed both ‘Ali and the Umayyads because they had all committed “sins” and the Kharijites would accept no sinful ruler. (The ‘ibadis, descended from one branch of the Kharijites, and now to be found principally in Uman and North Africa, have their own school of law.) The pious opposition to the Umayyads not only shrank the caliph’s authority to promulgate legal rulings, it also created a number of circles in which a more intense discussion of religious matters took place, and their members were the forerunners of the ulema, the specialists in religious learning so prominent in the later Islamic Middle East.

‘Abu Hanifa (d. 150/767) was both prominent in and typical of these circles. He is accounted the founder of the Hanafi school of law named after him, although how much ‘Abu Hanifa was a Hanafi is far from clear. One story – very possibly a legend – has an Umayyad governor flog him for refusing appointment as a qadi. It seems without question that he supported the political claims of the family of ‘Ali. He died in prison in Baghdad, the capital of the ‘Abbasids, the dynasty of caliphs that succeeded the Umayyads. The lifestory of this great early jurist and theologian was constructed from reliable historical accounts and legend shows a suspicion of association with government which would persist among the ulema of the Middle East. It also shows a gap between judges and jurists that would last. Some learned men did become judges, but usually the most learned jurists shunned judgeships. Nevertheless, the practical experience of the judges fed legal thinking in that the decisions of judges were sometimes challenged by the jurists and sometimes ably defended by the judges in circles that met to discuss the law. IbnAbi Layla, the judge for Kufa in ‘Abu Hanifa’s time, tried – largely unsuccessfully – to establish the legal basis for his judgments against the opinion of his more able contemporary, ‘Abu Hanifa. But the practical nature of IbnAbi Layla’s opinions is said to have given some of them lasting value as against ‘Abu Hanifa’s more theoretical approach, dictated by the latter’s search for consistency.[3]

The distance between the “pious opposition” and government also accounts for the development of the independent fatwShari’a or opinion, so similar to the responsa which exist in Roman and Jewish law. Conscientious Muslims went to the legally minded among the forerunners of the ulema and got opinions, including opinions on matters not ordinarily dealt with by courts. The Umayyad state, aware of this interest, appointed muftis, givers of responsa, somewhat similar to the jurisconsults in the Roman system. Although later dynasties often appointed muftis, many muftis sought to remain and succeeded in remaining largely independent because people were free to choose their authorities and because a mufti who kept his distance from the government gained prestige among ordinary Muslims. The independence of the mufti was a significant part of the formation and persistence of a semi-independent community of jurists.

In time these communities of legal thinking developed regional differences. Malik ibnAnas (d. 179 A.H./796 A.D.), often called simply “the Imam of Medina,” was the most able member in his generation among the circles that discussed Islamic law in Medina. The Medinese tradition considered itself continuous with the tradition of the Prophet, who spent the last ten years of his life there. It was assumed, reasonably enough, that the Prophet would have disapproved of Medinese customs not consonant with Islam, and therefore what survived in “the practice of Medina” had been expressly or tacitly approved. Hence, in Medina in Malik’s time, while the quantity and quality of something sold usually had to be known for the sale to be valid, the very practical Medinese custom of exchanging an inexactly known quantity of ripe dates on a tree for dried dates was allowed and became part of the tradition of the Maliki school of law (and subsequently of other schools). Maliki by the way, was also very concerned with the classification of rulings and Prophetic sayings and not merely in Medinese traditions. In early books on law Malik’s school is often called “the school of Medina”, and ‘Abu Hanifa’s school “the school of Kufa,” which represents the understanding that these were in fact regional schools although in the homes of all these schools there was a variety of opinion.

It was also in Medina that two of the Imams of the Twelver Shi’is, Muhammad al-Baqir (d. sometime between 114/732 and 118/736) and his son Ja’far as-Sadiq (d. 148/765), made a significant contribution to Islamic law in general as well as developing a more specifically Shi’i school of law. Muhammad al-Baqir’s disciples included prominent Sunnis such as al-’Awza’I and ‘Abu Hanifa, both founders of law schools. Muhammad al-Baqir’s legal views were written down by his circle and passed into Shi’i law. Ja’far as-Sadiq held an even higher position of respect and prominence in legal discussion among Muslims in general and both he and his father are counted as reliable transmitters of hadith among Sunnis. Ja’far as-Sadiq gave a very large number of legal rulings which served to orient the Shi’i tradition.

Another source for regional difference was the pre-Islamic underlay of regional schools. The influence of this underlay is downplayed in many Muslim accounts of the development of Islamic law, but unnecessarily so. The Prophet during his “farewell” pilgrimage in 10/632 carefully went through the rituals of the pilgrimage, understood to have been established by Abraham, and made clear both in action and description what was authentic and what was unacceptable pagan accretion. This method of developing the law is called “confirmation” (taqrir) by the jurists, and it is supported by the first part of one of the verses already cited. Verse 48 of the fifth Surah of the Qur’an begins, “We have revealed to you the Book in truth [or, “with the truth”], confirming [musaddiqan] that Scripture which already exists … .” In a widely respected letter ascribed to ‘Ali ibnAbi Talib and written as instructions to Malik al-’Ashtar, his appointee as governor of Egypt, we read, “Abolish no proper custom [sunna] which has been enacted by their [the Egyptians’] leaders, through which harmony has been strengthened and because of which the subjects have prospered. Create no new custom which might in any way prejudice the customs of the past, lest reward for them belong to him who originated them, and the burden be upon you to the extent that you have abolished them.”4

Yet the desire to see Islamic law as a separate system over and against earlier systems outweighed the interest in carefully recording when “confirmation” took place after the Prophet’s death. Christians, who at first had little reason to think they should develop a legal system, soon created a whole system of bishops’ courts, then took and triumphantly reshaped Roman law to their own ends. A fair number of the axioms which were central to Roman law are to be found in Islamic law. Even if these maxims are present not because of borrowing but because of the common conclusions of developed law, isn’t their presence a confirmation that other legal systems strove to achieve the same goals as did Islamic law? And yet, unnecessarily, the traditional narrative of Islamic law allowed little place for interest in continuities and parallels.

In any case, it is clear that Islamic law was overwhelmingly jurist-made law; and by the second half of the second/eighth century full-fledged jurists emerged. In the case of Muhammad ibnIdris ash-Shafi’i (d. 204/820), usually called al-’Imam ash-Shafi’i, we have not only a powerful jurist but also, according to later Muslim tradition, the founder of jurisprudence, the discipline of deriving law from its proper and appropriate “roots” or sources (’us ul al-fiqh). It should be noted that Shafi’i, like Malik and Abu Hanifa, was at one time a partisan of the ‘Alid cause.

In his celebrated Epistle he attempted, as an historian of the subject says, “a systematization, a codification, and, up to a point, a rationalization of understanding the Law.”5 It is Shafi’i who clarifies that the subject of the law is the legally capable individual considered as someone who is subject to moral obligation (mukallai legal agent), and that for every act there is a ruling (hukm). He discusses the need to rank in order of priority the “roots” or foundations of the law and the need to systematize analogical reasoning (qiyas). In making the Sunna (which means, among other things, the “practice” of the Prophet) a proper source (‘asl) alongside the Qur’an, he stipulated that the jurist is to accept only a properly established account (hadith, khabar) about what the Prophet said, did, or gave tacit assent to, to the exclusion of mere local tradition, which his teacher Malik had accepted. His insistence on a strict study of analogy was a rejection of the freer forms of legal reasons such as commonweal, to which ‘Abu Hanifa had frequent recourse. In short, he sought to rein in the various schools of Islamic law, partly in a traditionalist direction, in that he set scriptural prooftext so far ahead of other sources of law, and partly in an innovative direction, with his demand that legal arguments be justified and (as in the case of analogy) be well developed.

It was too late. The substantive law (that is, the law as written down by specific jurists with the intention that it be generally adopted) was already too developed, and the existing schools too conscious of their tradition, to yield to the challenge of the new rules proposed by Shafi’i. For a century Shafi’i’s Epistle remained without progeny. But when jurists turned to writing jurisprudence, the sophistication of Shafi’i’s program was an overwhelming influence and eventually all the law schools wanted to represent themselves as fitting into some form of Shafi’i’s system. We will return to the development of jurisprudential writing below.

Shafi’i demanded that hadith or khabar, narratives as to what the Prophet did and said and tacitly assented to, be properly accredited. In this demand he was at the forefront of a movement for hadith criticism which resulted in the writing of “canonical” hadith books in the third/ninth century among the Sunnis (and in the fourth/tenth and fifth/eleventh centuries among the Twelver Shi’is). Although it took centuries to achieve near-consensus as to which hadith collections were canonical, two achieved instant recognition among Sunnis, those of al-Bukhar, (d. 256/870) and Muslim ibn al-Hajjaj (d. 261/817). Both aimed to present only such hadith as had a reliable chain of transmitters extending back to the Prophet. (Hadith rather confusingly was used for a single narrative or as a collective plural.) To be reliable, a transmitter had to be known to be of good character and likely to have met both the preceding and succeeding links in the chain. Many early scholars had presented hadith with “imperfect” chains of transmission or even without any chains. Non-Muslim scholars (and recently some Muslim scholars) have suggested that a fair body of hadith acquired its Prophetic pedigree in the century and a half before the “canonical” books appeared. In any case, even the collections of Bukhar, and Muslim ibn al-Hajjaj have hadiths with incomplete chains of transmitters. By their arrangement of chapters Bukhar, and Muslim show the growing concern of the jurists for reliable legal material, as both use sub-headings somewhat similar to those of the law books.

Throughout the centuries there has been a dispute about the standing of accounts that did not come down through wide-scale transmission, but from a small number-even a single-line of reliable transmitters. Some of these hadith are constantly invoked in the law books. For example, the hadith that says: “The believers must fulfill the lawful conditions in [their contracts] [al-mu’minuninda shurutihim]” is such a “solitary” or “idiosyncratic” hadith, even though it is continually invoked in the chapters on sale in the law books. Some of the “idiosyncratic” hadiths were too important to the law to be shoved overboard. Ibn as-Salah ash-Shahrazur, (d. 643/1245) in his introduction to the hadith sciences, still considered the most authoritative book on this subject, points out that if wide-scale transmission demands transmission from a large number of the Companions of the Prophet as well as multiple transmitters in later generations, then only one hadith of the many hundreds of thousands in existence would qualify.6

Hadith came to rank with the Qur’an as a source of law. The hadith was treated according to the rules developed by the Qur’an commentators for dealing with the seeming contradictions between Qur’an verses. Some verses in the Qur’an allow the drinking of wine, but one forbids it. The commentators tried to establish when each verse was revealed. From this chronological framework one could determine that prohibition of wine-drinking came later and “abrogated” the verse permitting wine-drinking. Correspondingly, there were abrogated and abrogating hadith.

The virtually equal status of reliable hadith was a boon to the jurists, who had so little law from the Qur’an alone; but it created intellectual problems. Whereas the text of the Qur’an was fixed (except as to minor and clearly established questions such as different pronunciations of certain words), the scholars of hadith accepted as equally sound reliably transmitted hadiths with the same meaning but different wording. (Strangely, other textual criticism of the hadith was limited; it was not a subject for concern in hadith-criticism that the hadith foretell “heretical” movements such as the Murji’ites and Kharijites of the early period but do not foretell later heresies.) The standing of sound hadiths, which collectively describe the Sunna, or practice of the Prophet, was so high that some jurists held that the Sunna could abrogate the Qur’an.


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