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

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

ABSTRACT

The Early Development Of Ijanaff uCdal-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 Jad(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.

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.

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.

DEDICATION

To my twins Ahmet and Yusuf

8
ABBREVIATIONS

E12

nd
Encyclopedia
Islam,
2
:
of
edition.

Fusiil

fiby
Al-FusW
UsUl
Abil Bakr al-Jad
:
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, 63-71 113-123
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 uyalal-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 uyalal-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
uyalal-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 ual 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-Jad, 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
Jad'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
Jad.
To
the
the scope of the study and perhaps
u,vW works,
with
work of
importantly
to see the development of ual 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
Jassd,
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
aduh.
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 ual 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 Maniir 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 ual 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
uyfllal-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 ucd 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 uvalal-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 Jadin 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 ual 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. Jad'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
ual
al-fiqh
century
without
proves
literary
independent
developed
formally
of any other
genre of the period.
structure
a

15
Last but not least, Jad' work proves that uCilal-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 ual 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 Maniir 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. Jad'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 uWal-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 Jad*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 Jadand 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 uW 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 Jadand
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 Jadonwards 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 uid al-fiqh, which
of study,
the early history of the Ijanafi- uyalal-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;dmuddlinal-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 Paa (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
Paa,
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:dmuddin 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. Ja4
25
Abii Bakr Abmad b. "Ari al-Rd211,
in
better known as al-Ja4
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, Jadwas 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
Jad
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
Jad
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
Jad
that
studied uyCilal-badith with al-ljdkim.
conclude
Ja5d 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 Jad 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
Jad
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.
Ja*d
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 Jad.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
Jadonwards
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-Khadf (261/874) is a
.
judgeship.
is
Jad'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*d5,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 Jadworked 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 Jadinitiated 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.
JaA 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 Jad 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,
Jad
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
Jaa
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 Jada 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
Jad
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 Ja0 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 Jadshares 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-wdid.
of which one can
criteria on
one of
This criterion was to disappear from the subsequent uW 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, Jaa'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' Jad
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 adi-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 Jad.This Baghdadi link is important, for we will see

27
throughout this study, Jad 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 Jad.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

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 ual, Ghazdl7i(d. 50511111) regards Dabiisi's
in
in
in
the
method
uyalal-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 uyCilal-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. Dabfiji, as
we will see in this study, was heavily influenced by Ja5d, 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*d'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-01',such as
76
Sarakhs7l,due to growing influence of Samarqand7i-Mdtufid7i
is
It
therefore
movement .
Dabfiji
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,
Dabiji 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 Jad,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 Ja4.
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 Jadand studied there under one of the students
diagram:
in
following
be
illustrated
Jad.
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
Jad,
them
of
with
of
a
student
of
circle
famous
Abii
Iby
the
the
tradition,
efforts of
crystallised
tradition, especially the uyal
Iraq,
link
This
Jad*.
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-s-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-nayia).

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

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-A2-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 ual 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)
shar
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
uW 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 Jad and was put in the
by
further
developed
by
in
Dabiii
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 (uyWal-fiqh), i. e. Kitdb, sunna, ijmd' and qiyds.
It is made clear more than once that they mean by the 'ual', 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 Jad'suiil 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*d* 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 Ja*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,
dhir, na,y, mujmal, mushtarak,

dealt
laws
"the
bayan,
with.
of previous revelations" are
amr, nahy, naskh and
majdz,
Jaddoes 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
Jad
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 Jagd' 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 (qjja), 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 Jad.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-nucq
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. %nz,

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
khds.
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-nas,
alal-na,
Y,
with
which
meant
is
al-nusCis)',
al-ma'dni
wa
murdd
(Kanz,
1,26-27)
iqti4d'al-nay.
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 (abdba)
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 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

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'.

Dabiii 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
Jad,
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
Jad
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-Jagd; English by
0. Spies, Saeedullahand Reinhart and M. Bernard; Arabic by the editor of the al-Fusiil fi 1-Usfil by Jad,
'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-Ja5d,
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, "Dja55"

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, "Djad"
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!5d,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; Jadinforms 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!ddoes 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)Ja5"
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 ual, 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.
Ui86There 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 ual 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-khd,
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
Ja4 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. Jad and the concept of command
A. Definition. Jadstarts 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. Jad,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
Jad
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, Jad 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. Jad 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
Jad
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 Jad,some contend that these latter three uses of the imperative form
can all be regarded as being within the concept of command. Others, including Jad
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**d 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,

Jad
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 Jadin 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
Jad
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
Ja4
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

aqqan)'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 Jaa,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, Jad 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-JL

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

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 Jasdabove. 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 Jad, 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)'. (VSjl, 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 Jadand Dabiis-i did not use a special vocabulary to
for
heading
'bdb'
from
Jad
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 favl.
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 Jad; 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 Jad 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 (afd; 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
Jad,
bab-fal
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 khd, 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
fa
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
(khucq)
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
adiths
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
fayl-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
(taarruf
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
aqq
(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
khucq
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'afif
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 MdtuCid7iual 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
Jad
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 Jad 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).

Jad 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 Jad 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
Jad,
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 Ja4 was
link,
be
logic.
in
Therefore,
Greek
there
such
if
is
it
must
associatedwere not particularly interested
through indirect channels.Alternatively, since Jadalways 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:5,see Shehaby, 'Stoic
Logic on al-Jagd'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-Mdturdli'
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 Jad*.
1. Jaii and the legal consequence of command
The title of the second chapter of the topic of command in Jad*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:

laf; al-

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

definition provided by Jadat the beginning of the first chapter already contains the
in
to
the
this title. There Jaa expressly stated that the
question posed
answer
inherently
Given
to
the
this, the
of
concept
command
refers
concept of obligation.
here
does
but
Ja
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
Jad,
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 Jadidentifies 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 Jad,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.

Jad'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 Jadhad 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*Ws
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. Jadhas 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
Jad
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
Jad,
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 Jad,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
Jaa,that this form should be taken as obligatory until it is proved to be otherwise.
Ja!55brings 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*dreturns 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
Jad
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*dargues, we have to opt for the full meaning of it in the case of ambiguity. Once
draws
Jad*
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 Jad*,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. Jadintroduces 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
Jaa
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 Jadby 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!5a5'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, Ja4 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 Jadasks 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,
Jad'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. Ja5d5in 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
Ja55d'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
uycil
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 Jad5to 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 Ja55dhas 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 Jadin 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. Jadgenerally 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
ukm
ft
baqq
(al-qawl
al-awamir al-muflaqa
al-ma, mcirin
to a command
differ
from
Jad
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. Jadmade 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 Jaduses 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 Jad'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
Jad
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
ibda
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
Jad,
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 Jad(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 Jad's.
111.Sarakhs! and the consequence of command (m UP h al-amr)
The title of the second chapter in Sarakhs-1is falft bayan majab al-amr alladhT
hadhd
muqaddima
al-fal-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 Jad
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!
Jad,
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 Jadand 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
Jad,
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,
ibda
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
Ja5d5),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 Ja*d, 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-wa') 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
Sarakhs-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 Jad5.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
Jad,
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 Jad,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, Jad'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
Jad.
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 Dabiii in organising arguments
formal
have
his
in
to
four
time
gained a
seemed
opinions, which
around the
Jad
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 Ja4 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*d
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
Jad
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.-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 Jad
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 Jadand 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
Jads'
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*d's
by
the
That
material
Jad.
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 Jad, 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-Barl, 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. JaA 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,
Ja4 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 Jad,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
Jad
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
Jaddoes 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 Jadinterprets 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 Jaa 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 Jad,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, Jad*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, Jad,
first
his
defend
the
the
to
one, using a number of
school,
position of
as usual, turns
arguments.

1. The first and foremost point Jaamakes 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
JaO,
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
Jad,
therefore,
absence
of
imaginary
a
The
concludes
of
opponent
command.
by
however,
this
to
Jaa,
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
(Fuifl,
11,139)
fail
then
to
obligatory,
you would
perform it and go astray.

According to him, this aduh 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*d 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, Jad 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 Jadreplies 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
Jaa
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 Jad,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 Jadappeals 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
Jaa'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
Jad
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,

Jadbrings 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 (mubtaml 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
Jadquotes 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**d.
also extended

109
down of the sun)', in the previous passage, i. e. he interpreted it as entailing takrdr.
Ja*d 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
Jad
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,
Jad*
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-ahib),
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 Jad (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 Jasa,
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 Jadmentions even this latter distinction
between these two groups, though rather vaguely. This vagueness is caused by the
fact that JaO 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
Jad
(see
It
b.
lidbis
106).
Aqra'
aduh
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 khuya
(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
Ja54,
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
Jaa
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 'alfi- 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 Jad and Dabiisli. They both agree that the
Ijanafi- school's position clearly rejects an explicit connection between the concepts
of command and takrdr. Then Jadadmits 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.
Dabiii 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
Jad'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,
Dabfisfi
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 Jad5.As we shall see below, he agrees with Ja555in
Iianafijurists
issue
to
the
rejecting a view ascribed one of
on an
related to takrar.
The formulation

10
b. Ab5n. Like Ja4, 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 Jad*, who appears to have been unaware of the distinction between
undefined

'Tsd's
Jad
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
Jaa,
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 Jad*, 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 Jad,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 Jadin a diffused manner are given an explicit presence
in DabiisT, who develops technical terms to express them.
111.Sarakhs! and takrdr
JaWs.
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,
Jad,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
aduh
by
Dabiisli
Ja*d.
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*d
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 Jad. 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
(aqTqa)
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 Jadand 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
Jad*.
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
Jad
the
is
different
Dab5s-il which
in the
reasoning
especially
by
Jad
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 Jad'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
uCil
al-fiqh,
period
that
work
to
it.
Ja*d,
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
Jad,
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
Jad'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
Jad,
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 ual 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 adith
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 y.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 yin 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
adfth
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
Jad
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
d,
acts.
relation
of
al-wdid
has
implications
khabar
al-wdid, 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
5d.
with
only a sub-issue
post-Dabfis-iperiod
issue,while summarisingthe issueas conceivedby Jad.
1. Ja5 and epistemological value of kbahar a]-wff,.bId
The title of the relevant section in FusW reads as 'al-qaw1ft mfijab akhbar al-ddd wa
discussion
ft
biha
the
explaining
on
fl'
al-abkdm-a
md
ma'ndh wa md yata'allaq
6.
implications'
Ja*d
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:
Jad,
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
Jad
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
Jad
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
Jad
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,
(akdm). 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). Jad 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 qidy 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 qidy. 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!d,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, Jadjustifies 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.
Jad
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
Jad
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
Jad
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
a, seems not

focuses on the relationship between the legal acts and khabar al-wdbid, which
his
the
constituted a part of
scheme of
predecessor.
Dabiji 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
Jad,
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-wdid:
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
(uqaq
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-mavdfi
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,whereasJad5mentionsthe
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
Jad. 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 Jadidentifies 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 Jasp,
.
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 Jad,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-wdid, 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!d;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 adfth. 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. Jadalso 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 (qjr)'. 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 uyalal-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 (uqclq
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 Jadto 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, Jadtried 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
Ja5d5
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.
Jads 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
Jad
them to one of
these
conditions
each of
areas.
the normative sources of Islamic law. Dabiis-i concentrates only on the second problem
in JaW: the issue of the authoritativeness of khabar al-wdbid in different legal acts. His
formulation uses a different and more abstract language than Jad in terms of
became
Jad
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
Jad'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 uCdal-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 ual one.
Jad*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 Jad, 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
Jad
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-wdid; 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 ljijd2fis (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
aduh.
For
a century or so, when ucll 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 adith 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 adFth or Qur'anic passagecontradicts with the
doctrine of the masters, that aduh 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 adTth 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 aduh is used
by the jurists, the soundnessof the aduh, though being important, does not compel the
jurist to accept its content; he takes into account a number of other factors, such as
is
aduh
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
aduh
tradition.
their
that
those
usual,
shall start with
go
against
materials
reject
Ja4 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 Ja55'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.
Jad'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
Jad's comments on
conditions which
introduces
Jad
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). (FuW, 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
Jadin 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
Jaddid 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 Ja5 and justification

in
listing
After
the
of
conditions.
conditions

the words of 'Isd, Jadinterprets 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,
Jad
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. Jad 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
Jad gives several examples
conflict, whose common point
in
lianaff
doctrine
the
the
the
respective
school
of
undermine
actually
rejected reports
doctrinal
Jad
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. Jad
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. Jad*, 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. Jad*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*d
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 Jad 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.
Jad
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.
Jad 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
Jad
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
Jad
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
Jad
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.
Jaa5
(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.
Jad 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)

Jadthen 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 Andr (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.
Jadquotes 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, Jad

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
akdm al-'uqCio
accepted. Ja*d 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 Jad 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
Jaa
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. Jaacompletes the chapter on the critique of khabar alby
a principle which makes the application of these conditions restricted to
wdid,
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
Ja*d,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 Jad '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 Jad 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
Jad*,
but
is
however,
mentioned
not
it
the
is
sunna,
established
of
part
constituting
he
from
Jad,
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,
Dabislicites 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 aduh 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 Jad,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!5d 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 Jad
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
Jad.
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 Jadin the words of 'Tsd
b. Abdn was the attitude towards the isolated reports, namely the four conditions,
Isd
by
following
lianaff
The
Jad,
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 Jad 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 Jad.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. Waqqd -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*d
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 Jad
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
Jaa,
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 Jad. 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
5d.
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. Jad' 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-5-i
to
that as
not give an
role reason
whereas
it may, the latter jurist's opinion of the reason was no lower than Jad'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
Ja*d
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
Ja*d
be
to
seems
quotations
no more than enrichment of the topic with arguments
The
Similarly,
"Dabiislian"
"Jadian".
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 Ja5'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 Ja55neither
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 Ja55dused 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
)
(na
before
non-explici it
revealed.
born
to mind
its more explicit purpose
text which is initially
.11 "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

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
Jad,
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. JaP and the authority of #mff'
Introduction.

The relevant section of ijmd' in Jadcontains 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 ual 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 ufil 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 ual al-fiqha
al-wabid, qiyas, etc.,
it
formal
into
the
structure of ual 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 Jaamentions 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 Jad 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 Jad'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 Jadutilises 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
versesand
then of Propheticreports, relatesto the notion of ijmd.
A. Qur'anic Proot Jadcites 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,
Jad,
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. Jadargues:
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.
Jad'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 JaWs 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, Jadbegins 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 Ja*dreads 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
Jad
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, Jad'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. Jad*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 Jadbetween 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
Jad'
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, Jadreplies 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 -. (Fuiil, 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 Jad'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 evidenceJaaputs 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 Jad,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. Jad 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*d

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,
Jaaagain 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 Ja 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, Jadbrings 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 Jad 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 Jadthat 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.
Jad
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 ,
Jad 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 Ja4 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,
Jad,
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 Jadthese 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. Ja4 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
Jad
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
Jad,
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
Jad'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 Jad
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 Jad,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
Jad 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
Jads.
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-wdid 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:d,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
Jad,
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 JadJustification.

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.

Jad 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 Jad),he, nowhere in this chapter, explains its purpose.
Only by going back to Jad 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 Jad,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
Jad'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 Jad5 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

f. 8b-9a)

Dabiisl again goes one step further than Jad 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 Jad'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 Jad.
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 Jad 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 Ja4. 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
Jad,
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
Jad
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
Jad,
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*d
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 (favlft 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
Jadand 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 Jad.
B. Sunna proofs
Five out of the six prophetic reports Sarakhs!
quotes as a justification of ijmd'
already appeared in Jad. These stress the idea of infallible community and the
danger of deviating from the path of the community. Jad
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 Ja4 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
(Uu
1,299)
al,
that year.

C. A kind of rational justification

(sbayun

mlu al-ma'qfij).

Jad 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
Jad
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 Jad 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
(ukm)
'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
Jad
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 adfth. 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 Jadsaid 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-sdba).
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 Ja4 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
J44.
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 Jad
Dabisl.
There
and
remained only the Kitdb and the sunna that would help to justify
ijmd'. To Ja*d, Qur'anic passagesconstituted the primary proof while the sunna
bolstered the idea present in these passages.By focusing on one passage(Q 2,143),
Ja5d 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
Ja5,
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 Jadand
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 Jadand, 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
Jad,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; jLsgl,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
istisdn.
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 ual 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 ual theory is concerned, the major difficulty concerning the concept
by
Ijan-ifa
his
immediate
Abu
disciples,
its
istibsdn
two
and
of
comes out o 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
Jad,
first
lianaff
have
Usfil
The
to
of
uctl 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 Jad's treatment of this matter and then proceed to
developments.
the
subsequent
elaborate
1. Ja5 and the concept of istipsAn
Introduction.

The topic of istisdn in Jadis located within the last major part of

theory
the
This
of
of
exposition
an
includes
also
chapter
qiyds.
ual al-fiqh, namely,
ijtihdd
to
the
and
mujtahid.
the
of
concept
related
issues
as
well
as
qiyas proper
Ja*a
because
is
This
significant
Istibsdn comes between these two major topics.
Jad
the
thus
treats
theory
the
to
of
qiyds.
istibsan
as connected
considers most of
topic of istisdn in two parts.
fact
by
that
the
he
to
out
pointing
solve
Is going
First, JaO 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
).
istisdn
'rebuttal
al-istisdn),
of
i8tilisdn,
in
namely,
Shdfi'l used
criticising
That
istibsan.
to
the
Shafi'-i
say,
is
for
rejected
which
Jad 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). Jad'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 Jaais 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 Ja5d, 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, Jad 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, Jadargues 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,
Jad 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 Ja4 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 Ja*d, thus, to provide a

for
Thirdly,
there
are certain problematic passages in alit.
substantive content
Shaybdn7l'sreferences to istisdii, which apparently do not fit the interpretation of
further
by
Jad
therefore
explanation.
require
istibsdn proposed
and others, which
Ja*d
task
Before
the
Types of isti, bsffb.
of interpretation required,
undertaking
leading
istisdn,
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
Jad
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 Jad,this type of istibsan is further divided into two more groups.
Jadreduces 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,
Jad 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
istisdn
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
Jadtells 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 Jad. 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).
Ja4 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 Jad,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 Ja55d,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 Jad,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, Jadimplies 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 istisdn 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
Jad
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? Jad 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.
Jad,
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 5dcan 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 istisdn, 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.
Jaathinks 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
Jad
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 Jad,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 Jadtells 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 istisdn or qiyds, Jadis 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
Jad,
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 Jad,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 Jadseemsto 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
Jaa,
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 istisdn is related to it.
This type of controversial istisdn occurs, according to Jad,when the effect of the
due
is
hindered
the
legis
that
to
the
evidence
prevents
stronger
of
existence
ratio
(takhq
from
that
taking
al-ukm ma'a wujfid al-711a).
particular case
effect in
qiyas
Jaddoes 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
Jad,
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 Jad,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. Jadexplains 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
Jad,
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
Jad
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. Jad 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 Among the several examples given by Ja5d5,
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. Jadmakes 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 istisdn 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 istisdn. 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 Jaddid, 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 Jad, 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, madar, 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 Jad is that the
latter's is ambivalent towards the exact nature of istisdn, 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
)
preference
wa
al-tarj!
deal
and
the
contradiction
that
with
ual 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 Jaddoes.
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
Jad.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
istisdn
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 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
istind'
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
lstbsffn
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

Jadcalled the most difficult aspect of istisdn. 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 Jad,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 Jad,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 istisdn 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
Jad
istOsdnby
Jaa
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
Jaa
the
the
third
treatment
of
matter,
As
the
conclusion
types.
we noted in
by
does
istibsdn
Jad,
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,
Jaa.
the
first
employs
the
ignored
main category of

230
above distinction of Jadto reach a more significant distinction. Isfisdn 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 Jad and
Dabiisl It reads as 'On explanation of qiyas and istisdn (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
Jad
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 Jad, 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)
(Usjl,
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
istisdn,
types
the
us
of
Ambiguity of istffisjR. Before explaining
istisdn
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 Jad,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 Jad,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
Dabiii. 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
Jad
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,
dhirjaliyy)
atharuh wa

b.

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

isthSJU. 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
istisdn,
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 Jad,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
Jad'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
Ja5d,
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-alab) 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 takhg al-711aby Jadand 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 takhTyal-'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.(Uiu
-

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-istisdn).
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
istisdn
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
istisdn
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 takhTal-'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. Takhg 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 na-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. Jadtries 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
istisdn
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 istisdn 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
Jad,
is
identified
legal
istisdn
the
time
would
of
with a
involves
that
either two conflicting qiyass, or takhyTal-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 Ja555,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,
ual
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 Jad,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
ufd 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 takhTy al-'illa,

denounce
latter
idea.
they
this
where

This so-called Us-al al-Shdsh7i also denounces this concept, which as seen in Ja4
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
istisdn
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
Jad'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.
Ja*d'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
ual
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 uvfilal-fiqh found in
the work of JaO 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 ual al-fiqh, in the light of this study,
level
Jad's
is
It
be
the
that
sophistication
of
in
work
clear
revised.
needs to
down
by
likes
Ja!
before
the
tradition
of 5a.
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,
ucd
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 ual
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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