REFORMING ISLAM BY DISSOLVING THE MADHAHIB: SHAWKANl AND HIS ZAYDl DETRACTORS IN YEMEN

BERNARD HAYKEL (New York University) Muhammad b. Ali al-Shawkani, the famous eighteenth century Yemeni jurist, had a well-defined reformist vision of social, political and juridical order. At the center of this vision lies the jurist, a mujtahid mutlaq, someone very much like the real-life Shawkani, who does not subscribe or adhere to any of the established legal schools (madhdhib). This study will argue that Shawkani s teachings in the field of usul al-fiqh, as established in his work entitled Irshad al-fuhul (but also in a number of smaller treatises), are intimately articulated within his vision of order. They entailed not only an attack on the four Sunni legal schools, but targeted, more specifically, the ZaydiHadawf madhhab which dominated highland Yemen and into which Shawkani himself was born. A Brief Sketch of the History of Zaydi-Hadawi Madhhab Zaydi-Hadawis are Shi i Muslims who follow the teachings of alHadl ila al-Haqq Yahya b. al-Husayn (d. 911), the first Imam to establish a Zaydi Imamate in Yemen.1 Al-Hadi's legal opinions are set forth in a number of works, the main ones being his Kitab alAhkdm and Kitab al-Muntakhab. In legal matters, al-Hadi adopted many of the views of his grandfather al-Qasim al-Rassi (d. 860), who followed a Medinan legal tradition. Al-Hadi, however, also upheld more robust Shi i teachings (such as the hayya ala khayr al-amal) and in matters pertaining to the Imamate was a Jarudi Shii, rejecting the caliphs Abu Bakr and Umar as infidels.2 As with al-Qasim al-Rassi, the ijma of Ahl al-Bayt was an important principle in al-Hadi s teachings. In his legal argumentation al-Hadi never cites hadith from the
Cf. C. Van Arendonk, Les Debuts de I'Imamat Zaidite au Yemen (Leiden: E. J. Brill, 1960). 2 For a comprehensive history of Zaydi thought from its earliest times and until the sixteenth century see Wilferd Madelung, Der Imam al-Qasim ibn Ibrahim und die Glaubenslehre der Zaiditen (Berlin: Walter De Gruyter, 1965).
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canonical Sunni collections, whose authors he condemned as members of the Hashwiyah (Sunni traditionalists). Whatever hadiths al-Hadi does cite are derived from an chain of transmitters going back through his Alid forefathers. All later Yemeni Zaydis, some of whom followed the theological teachings of the Basran Mu'tazila, remained faithful to al-Hadis legal teachings. These were systematically set-forth in the work of Ahmad b. Yahya al-Murtada (d. 1436), in a work entitled Kitab al-Azhar which remains until today the most authoritative legal reference for the Zaydis of Yemen. By Ibn al-Murtada's time, however, he and his peers were citing liberally from the standard Sunni hadith collections, such as the Sahihayn amongst others.3 Such citation is indicative of an opening to Sunni teachings and source texts amongst the Zaydis of the fourteenth century. In the fourteenth century Muhammad b. Ibrahim al-Wazir (d. 1436) was greatly influenced by the Sunni hadith sciences and propagated these in Yemen. Without formally declaring an affiliation to any of the Sunni schools, Ibn al-Wazir abandoned the Zaydl-Hadawi school, preferring the path of the Sunni Traditionists and declaring the Sunni canonical collections as unconditionally authoritative in religion.4 The appearance of Ibn al-Wazir signals the start of a Sunni Traditionist tendency amongst Zaydi-born scholars, one that would come to dominate the circles of power and learning in Sanaa in the mid-eighteenth century. In the seventeenth century, a Zaydi dynasty rose to power, founded by the charismatic Imam al-Mansur al-Qasim b. Muhammad (d. 1620). As Madelung has pointed out, al-Qasim al-Mansur rejected the Mu'tazill legacy which was so much part of medieval Zaydi Yemeni thought, and maintained a staunchly Hadawl posture in his teachings.5 Al-Qasim al-Mansur was a Jarudi with respect to the question of the Imamate, and though he cited in his work from the Sunni
Al-Mu ayyad Yahya b. Hamza (d. 1347) was greatly influenced by such works as Ghazzali s Ihya' ulum al-din, for example. 4 Cf. Muhammad b. Ibrahim al-Wazir, al- Awasim wa 'l-qawdsim fi al-dhabb an sunnat Abi al-Qasim, 9 vols., ed. Shu ayb al-Arna'ut (Beirut: Mu'assasat al-Risalah, 1992) and his abridgment of this work, al-Rawd al-basim fi al-dhabbi an sunnati abi al-qasim (San a : al-Maktabah al-Yamaniyah li 1-Nashir wa 1-Tawzf, 1985). The openness to Sunnism amongst Zaydi-born scholars in this period is probably related to the increased contacts Zaydis now had with Shafi'i scholars, in particular those living in Rasulid Lower Yemen, but also others in Mecca. 5 Madelung, Der Imam, 220ff.
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hadith collections, his stance was hostile to Sunnism. Shawkanis teachings must be understood in the context of the strict adherence to the Hadawi school of the first Qasimi Imams, i.e., those who ruled in the seventeenth century. Their successors, the eighteenth-century Imams, were different, they progressively distanced themselves from Hadawi teachings and promoted and patronized Sunni Traditionist scholars. Some of the reasons for the shift in madhhab orientation (never formally declared however) are the following: accommodating the sentiments of a large number of Sunni Shafi i subjects in the tax-generating areas of Lower Yemen; legitimizing the dynastic ambitions of the eighteenth-century Qasimi Imams who did not live up to the ideal posited in Zaydi political doctrine; and deligitimizing Zaydism, in particular its political doctrine advocating the rejection of oppressive rule in the form of armed rebellion (khuruj) or migration (hijra).6 Situating Shawkani Intellectually Partly because Shawkani was widely read and educated in both the Zaydi and the various Sunni traditions, it is difficult to situate him entirely within one of the schools of law. Indeed, to do so would be in some sense to contravene the very claim he made to be a mujtahid who was above all schools. However, it can be said that he was a Sunni Traditionist; that is, his scholarly attention was directed at the canonical hadith collections and the hadith sciences, which he considered the most authoritative, and he therefore drew mostly on these in elaborating his opinions.7 As a Traditionists he had rejected the practice of adhering to one school of law and condemned taqlid while advocating ijtihad. He also rejected the rational sciences which were mainly associated with the Mu tazila among the Zaydis in Yemen. The influence of the Shafi i scholars of Egypt, hadith scholars and jurists, such as Ibn Hajar (d. 1448) and al-Suyuti (d. 1505), and
For a detailed history of the political and intellectual history of the Qasimi Imamate see Bernard Haykel, "Order and Righteousness: Muhammad b. Ali alShawkanl and the Nature of the Islamic State in Yemen (D.Phil, thesis, University of Oxford, 1997). 7 In doing so, he was an heir to the tradition in the Zaydi highlands of Yemen which produced such scholars as Muhammad b. Ibrahim al-Wazir (d. 840/1436), al-Hasan b. Ahmad al-Jalal (d. 1084/1673), Salih b. Mahdi al-Maqbali (d. 1108/1696), Muhammad b. Isma il al-Amir (d. 1182 / 1769) and the lesser known Abd alQadir b. Ahmad al-Kawkabani (d. 1207 / 1792), who was Shawkani's most illustrious teacher.
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that of Hanbali scholars like Ibn Taymiyah (d. 1328) and his disciple Ibn Qayyim al-Jawziyah (d. 1350), is also very important for understanding Shawkani. In fact, the argument can be made that Shawkani modeled himself on such scholars as Ibn Taymiyah and al-Suyuti, seeking to emulate the polymathic nature of their works, and perhaps wanted to be considered as having their stature as firstrank scholars and "renovators" (mujaddidun). The parallel between Shawkani's situation, where the opponents of the Sunnah-oriented scholars were the Zaydi-Hadawis, and that of the Sunni mujaddids, like al-Suyuti, who were combating bid'a in the name of orthodoxy, did not escape the attention of Yemeni scholars on both sides of the divide. Shawkani, and Muhammad b. Isma il al-Amir (d. 1769) before him, wished to rid Yemen of the pervasive influence of the Hadawi teachings and all forms of taqlid, of which Hadawism was a manifestation; the Hadawis wished to protect their school, and consequently their identity, from the attacks of the Sunnah-oriented scholars. The attack that "reformist" scholars like Shawkani undertook against what they termed the opponents of the Sunnah entailed an elucidation and re-emphasis of certain sources of lawthe field of usul al-fiqhand a purging of all substantive rulingsthe field of furu from opinions which were not consistent with their usul al-fiqh. Shawkani and Usul al-Fiqh In all of Shawkani s works a constant refrain is sounded: the absolute necessity of applying ijtihad as a means of combating the sectarian and antagonistic tendencies amongst different schools of law, "factionalism" (madhhabiyah), which has resulted from the practice of taqlid, the blind imitation of past rulings and opinions. This, according to Shawkani, has resulted in rulings being based on the mere opinion (ray) of scholars and lack of knowledge of the textual evidence (dalil) for any given opinion. The practice of taqlid was a reprehensible innovation which had been developed by the followers of the various schools of law, many of whom argued that ijtihad was no longer possible for later generations of Muslimsthe door of ijtihad was closed (insidad bab al-ijtihad).8
Cf. Shawkani, al-Qawl al-mufid fi adillat al-ijtihad wa 'l-taqlid, in his al-Rasa'il alsalafyah fi ihya sunnat khayr al-banyah (Beirut: Dar al-Kitab al- Arabi, 1991), 19Iff.
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Because of his reformist message, Shawkani has been slotted in many contemporary writings into the Muslim modernist and even nationalist traditions which equate ijtihad with liberating thought, and attributes to it an instrumental role in Arab and Muslim renaissance.9 In our study of Shawkani s own writings and the historical sources of the period, a more complex picture emerges. His concerns lie with problems he regards as intrinsic to Islamic history and tradition, and which are summed up in the practice of taqlid. This, he says, has divided Muslims into mutually opposing sects and has, more perniciously, led them away from the principal sources. Second, the solution he proposes makes appeal to the pristine past of the time of the Rightly Guided Caliphs, but also offers practical guidelines which can bring about a virtuous order similar to it. The solution lies in allowing jurists like himself to practice ijtihad, to reproduce themselves pedagogically and to administer the interpretation and application of the Shari ah. A Literalist Bent A literalist bent permeates all of Shawkani's writings. He constantly urges a return to the principal sourcesthe Qur an and the Sunnah which must be literally understood; any interpretation that draws one away from the texts is forbidden. The ethos in all his works is the undermining of the sciences which have created conceptual and methodological terminology that has drawn Muslims away from the
It is interesting to note that the controversy over the "closure of the gate of ijtihad" has also been of great interest to Western academics of Islamic law. Wael Hallaq, for example, argues against Joseph Schacht's contention that the practice of ijtihad was discontinued after the fourth/tenth century. See Wael B. Hallaq, "On the Origins of the Controversy about the Existence of Mujtahids and the Gate of Ijtihad", Studia Islamica 63 (1986): 129-141, and "Was the Gate of Ijtihad Closed?" International Journal of Middle Eastern Studies 16.1 (1984): 3-41; also, J. Schacht, An Introduction to Islamic Law (Oxford: The Clarendon Press, 1964), 69-71. It seems to me that the question as posed is misguided (i.e., is the door of ijtihad closed or was it left open?). The debate over the closure was certainly a concern of Muslim jurists from medieval times. The majority saw it as being closed, whereas others, notably Shawkani argued the opposite. To argue the case one way or the other is to fall within the rhetorical terms of the Muslim discursive tradition itself and misses the point. What is of greater interest in this matter are the strategies employed, and the aims of those jurists who debated the matter, not whether it had actually been closed or left open. 9 For example see the works mentioned in the bibliography by Qasim Ahmad, Husayn al-'Amri, Muhammad al-Ghamari, Ibrahim Hilal, Sha'ban Isma'il, Abd al-'Aziz al-Maqalih, Salih Muqbil, Abd Allah Numsuk, Abd al-Ghani al-Sharji, and Ahmad Subhi

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original texts. On the level of usul he aimed at more certainty than the standard model. With his insistence on the study of and almost exclusive dependence on hadith worksnotably the Sahihayn of Bukhari and Muslimthis would add up to a legal system for which greater certainty could be claimed. In elaborating his legal theory, Shawkani s basic premise is that the Qur'an and the Sunnah are sufficient and comprehensive sources for the elaboration of all legal rulings for all time. The mujtahid can find in these evidence or proof to substantiate his legal decisions without recourse to any other source, be it consensus (ijmd ), most forms of analogical reasoning (qiyas), or independent reasoning (ra'y). In order to bolster this argument he makes claims for the indubitable authenticity of the hadiths in the canonical collections, in particular the Sahlhayn. His main claim here is that the Muslim ummah has accepted universally the Sahlhayn as the soundest works after the Qur'an. This argument is based on a broad consensus (ijma ) and has a long pedigree, with various forms, in Islamic legal thought.10 The locus dassicus for this claim is Ibn al-Salah's Ma'rifat anwa ilm al-hadith, known in English as the Introduction to the Hadith Sciences. From the perspective of the Hadawis, Shawkani's claim is problematic because many of the Traditions contained in these works are ahad Traditions, i.e., Traditions that fall short of the tawatur category because they have been transmitted by fewer reporters. The problem lies in the fact that the Hadawis do not credit some of these Companions with probity ( adalah), because they had opposed Ali or the Ahl al-Bayt in some way and therefore are not considered trustworthy. The argument revolves around which of the Companions had probity. Shawkani takes a maximal position that they all had 'adalah, whereas the Hadawis are more selective on this issue, leading many of the stricter among them to reject the Sahihayn altogether.11 Here is what one traditional Hadawi has to say:
Muhammad al-Shawkani, Irshad al-fuhul ila tahqiq al-haqq min ilm al-usul (Beirut: Dar al-Ma'rifa, n.d.), 44. See also Shawkam, Tuhfat al-dhakrin (Beirut: Dar al-Fikr, n.d.), 4. It is noteworthy that Ibn al-Amir does not concur with this view but still grants the Sahlhayn great authoritative status. See his Irshad al-nuqqad ila tay sir al-ijtihad, ed. Muhammad Subhi Hallaq (Beirut: Mu'assasat al-Rayyan li '1-Tiba'a, 1992), 45-50. 11 Cf. Isma'il al-Nu'mi, Kitab al-Sayf al-batir, ms. in the Gharbiyah Library, San a , Majmu' No. 188, fols. 1-36 and Majmu' No. 91, fols. 55-77; Muhammad b. Salih al-Samawi, al-Ghatamtam al-zakhkhar al-mutahhir li-riyad al-azhar min athar al-sayl al-jarrar, 6 vols., ed. Muhammad 'Izzan (Amman: Matabi' Sharikat al-Mawarid alSina'ryah, 1994), 1:3-157.
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If one of the people of Truth [ahl al-haqq, i.e., a Zaydi] presents to them [i.e. Sunnis] a verse from the Book or a Sunnah which accords with [Zaydi teachings], they cite in opposition a fabricated Tradition [hadith mawdu ], and they say: we are the Ahl al-Sunnah, we use the hadith which we consider sound.' And in completion of their corrupt intentions, they [the Sunnis] have committed themselves to declaring the probity of all the Companions, despite what is manifested in their a had Traditions [i.e., that which contradicts the Qur'an and the teachings of Ahl al-Bayt].12

In hadith terms, the classic retort that Shawkani, and Yemeni Traditionists generally, made to the Zaydis was that in elaborating judgements and rules the Zaydis either relied on textually unfounded opinions (ra y), or if they relied on Traditions at all, these were of dubious authenticity as many were of the mursal category.13 In other words, Zaydis did not adhere to the strict methods of hadith authentication, with the result that many of their opinions and views were based either on weak or false Traditions or on no textual authority whatsoever and were therefore not correct. And with regard to the ahad Traditions, Shawkani bolsters their authoritative status by reverting to an ijma argument similar to the one mentioned above. Here is what he has to say:
There is no conflict [amongst the jurists] over the fact that if a consensus exist about the usage for legal purposes of an ahad Tradition then that Tradition provides certain knowledge ( ilm) [i.e., not probability] because the consensus regarding it has rendered its truthfulness certain (al-ijma qad sayyarahu min al-ma lum sidqih). And such is the case if the community of Muslims has accepted an dhad Tradition, either by accepting it or by interpreting it away. The Traditions of the Sahihayn of Bukhari and Muslim fall in this category since they have been accepted by the umma. . . .14

Shawkani's Views on Ijma and Qiyas Let us now turn to Shawkani's opinion on ijma and qiyas. Shawkani does not consider ijma (i.e., the consensus of mujtahids after the death of the Prophet in a given age on a given matter) to be a source of law. For one thing, he says, there is no textual proof for it being a
12 13 14

Ghatamtam, 1:13. Hadiths that have interrupted chains of transmission. Irshad al-fahul, 44.

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principle at all. Furthermore, it would be impossible to ascertain the opinion of all Muslims because of the vastness of the Islamic lands and the multitude of scholars who lived throughout the ages. Few among them left written evidence of their opinions and even among those who did it remains an impossible task to adduce their opinions on a given matter. Finally, because of the dominance of the established schools of law, which were controlled by muqallidun., many scholars did not dare express their true opinion for fear of retaliation.15 Here is what he has to say on the matter:
Whoever claims to have the ijma of the Muslim scholars of his age on a given religious issue has made a gross claim (a'zama al-da wa) and asserted its existence with something which does not obtain. The feasibility of this is impossible, even if one assumes that it is possible to have such agreement, without investigation and knowledge of the opinions of each man or group of men. The truth is that this is impossible (mamnu ). This is because the consensus of all the scholars of all the regions on an issue is impossible given the [existence of] different schools, temperaments, differences in understanding, contradictory dispositions and the love of contradiction. This is with regards to a scholar speaking about the consensus of his generation. If he is claiming an ijma about a generation which he did not know after the age of the Companions then the claim, too, is impossible. . . . The one who claims that ijma constitutes proof is not correct, for such [a claim] constitutes mere conjecture (zann) on the part of an individual from the community of Muslims. No believer can worship God on the basis of this. . . . In my works, when I report a consensus from others I do this in order to prove my point to the one who accepts that ijma constitutes proof 16

The significance of Shawkani's rejection of this type of ijma comes out in his critique of Hadawi legal opinions. Hadawis consider the ijma of the Ahl al-Bayt ( itrah), by which they mean their Imams, to constitute an authoritative source (hujjah) for their legal opinions.17 Many of their distinctive and identifying legal teachings are based on this type of consensus. For example, Hadawis insist on making the call to prayer in a twofold form (al-adhan muthanna), i.e., saying "Allahu Akbar" only twice, and saying "Come to the best of works" (hayya ala khayr al- amal). They base these practices, in part, on the
See Ibn Hazm's comparable views on ijma in his al-lhkam fi usul al-ahkam, 2 vols. (Beirut: Dar al-Kutub al-'Ilmiyah, n.d.), l:546ff. 16 Muhammad al-Shawkani, Wabl al-ghamam ala shifa al-uwam, in Kitab Shifa aluwam, 3 vols. (n.p.: Jam iyat 'Ulama al-Yaman, 1996), 1:26-29, fn. 1. 17 Al-Husayn b. al-Qasim, Kitab Hidayat al- uqul, 2 vols. (n.p.: al-Maktaba alIslamiyah, 1401/1981), l:509ff. Also cf. Al-Qasim b. Muhammad, al-Irshad ila sabil al-rashad (San a : Dar al-Hikma al-Yamaniyah, 1996).
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ijma al- itrah argument. In his works Shawkani refutes these claims by saying that the ijma the Hadawis are claiming has no validity and he proffers hadiths to prove that "Allahu Akbar" must be said four times. Furthermore, he says that "hayya ala khayr al- amal" has no basis in the Sunnah, since it cannot be found in the canonical hadith collections that the Prophet ever mentioned this phrase.18 The same argument is made by Ibn al-Amir against the Hadawis, particularly when he argues against the specifically Hadawi teachings in 'ibadat. Ibn al-Amir asserts that because members of Ahl al-Bayt can be found in all the Islamic sects and schools of law, one cannot make a claim for an ijma of the Ahl al-Bayt by basing oneself solely on the consensus of the Zaydi Imams and scholars.19 As for qiyas (analogical reasoning), Shawkani says that most forms of it, too, do not constitute a source for the derivation of legal opinions. Most qiyas is based on ra'y, and it is under this heading that ra'y was mostly applied in Islamic law. For Shawkani, qiyas allowed for arguments and opinions deriving from unconstrained rationality which had no basis in either the Qur'an or the Sunnah.20 Further on in his discussion on qiyas in Irshad al-fuhul, Shawkani appears to allow for some limited forms of qiyas. Here he says:
Know that the qiyas which is considered valid is that in which the text comes with its cause ( illah mansusah), and [also] that in which there is no reasonable cause to distinguish the case in the text from another case (nqfy al-fariq) and that which falls under fahwa al-khitab and lahn al-khitab. . . .21
Muhammad al-Shawkani, al-Sayl al-jarrar al-mutadqffiq ala hada iq al-azhar, 4 vols., ed. Mahmud Zayid (Beirut: Dar al-Kutub al- llmiyah, 1985), 1:202-205; idem, Wabl al-ghamam, 1:256-260; idem, Nayl al-awtar sharh muntaqa al-akhbar, 9 parts in 4 vols. (Beirut: Dar al-Fikr, 1989), vol. 1, pt 2:16-20. 19 Cf. Muhammad b. Isma il al-Amir, Masa il 'ilmiyah (n.p.: n.d.). 20 Muhammad al-Shawkani, Adab al-talab (San a : Markaz al-Dirasat wa 1-Buhuth al-Yamamyah, 1979), 163-165. 21 Irshad al-fuhul, 178. The illa mansusa covers the case where the text comes with its illah more or less explicitly. The nafy al-fariq type is where there is no reasonable cause to distinguish the case in the text from another case. The classic example is treating a slave girl like a male slave in some rules. The fahwa and lahn cases are classified by some as qiyas jali, but others, including it seems Shawkani, would treat them as separate. They are commonly distinguished, fahwa referring to a case that is more appropriately (a fortiori) subject to the rule than the textual case. The classic example is the prohibition of striking one's parents on the basis of the Qur anic prohibition of saying "Fie" (uffa) to them (cf. Qur an XVII: 23). Lahn is a case that falls under the textual rule with equal appropriateness; e.g. the Qur'an prohibits consuming the property of orphans, destroying it by fire is equally appropriate. Here by contrast to the nafy al-fariq some reference to the purpose of the textual rule is involved.
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Here Shawkani is limiting himself to the least controversial (but not unimportant) forms of what some jurists have labeled qiyas. In fact, some would class all the types he mentions as qiyas jali 2 2 In this Shawkani appears to adopt the methodology of the Hanbalis, who similarly object to the use of qiyas unless one is obliged to do so out of necessity (darurah).23 Linking Usul and Furu : the Case of Riba Shawkani's rejection of most forms of qiyas has implications for Hadawi law as well as that of the other schools of law. When looking at his commentary on Hadawi law one gets the impression that he wanted to sweep away systematically all opinions which he felt were based on unsound methodology and had no basis in the textual sources. A good example of this, which also shows his strictness on qiyas, is his criticism of the Zaydi (and Hanafi) position on the cause ( illah) of usury (riba). Usury is deemed a major offence (kabirah) in Islam and its law entails that whenever an exchange takes place in certain substances, the quantities must be equal and the exchange simultaneous. One of the main Traditions relating to this is the one reported by Abu Sa id al-Khudn in which the Prophet says: "Gold for gold, silver for silver, wheat for wheat, barley for barley, dates for dates, and salt for salt. ..." Basing himself on this Tradition, Shawkani says that the law of riba applies only when any of these six items is exchanged for another sample of the same substance. Another variation of this Tradition provides that when the good is not exchanged for a sample of the same substance but for something else, the rule of equality does not apply, but the exchange must still be simultaneous. Zaydis, and Hanafis, applied qiyas to this Tradition and saw the 'illah as the measurement of these goods by weight (wazn) or volume (kayl). Thus, they extended the rule to require simultaneous exchanges whenever the goods involved (assuming they were different) were both measured in the same way (the quantities could be different). By contrast, the Shafi ls and Malikis, with some
Cf. Abd al-Qadir b. Badran, al-Madkhal ila madhhab al-imam ahmad (Beirut: Dar al-Kutub al-'Ilmiyah, 1996), 151. 23 It is to be noted that Shawkani completely rejects the practice of "preference" (istihsan), which can be broadly defined "as the adoption of a rule of law recognized as a departure from analogy". This is because it has not textual basis. Cf. Adab altalab, 165166 and Aron Zysow, "The Economy of Certainty: an Introduction to the Typology of Islamic Legal Theory" (Ph.D. diss., Harvard University, 1984), 399-402.
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differences, both see the illah (apart from the gold and silver cases) as being a foodstuff (tu'm). Shawkani felt that this use of qiyas was objectionable, particularly when the issue involved a definite and major act of disobedience (ma'siyah min al-kaba ir wa min qatiyat alshan'ah}.24 Here is what he says in this regard:
We refuse [to accept] that legal judgements be established through such ways. Indeed, we refuse to consider what they have called 'illah in this matter to be anything of the kind. How much better it is to limit oneself to the texts of the Shariah and not to burden oneself by exceeding them, enlarging the scope of the believers' duties which is only increasing their burden. We are not among those who deny qiyas, but we forbid establishing rules by it, except when the text comes with its cause (illah mansusa) or that which established the 'illah under fahwa al-khitab25

Zahiris, as well as Ibn al-Amir, shared Shawkani s rejection of applying qiyas to the law of riba , whereas all the other major Sunni schools appear to have applied it.26 A important implication of Shawkani's position here is that if on a given matter there are no revealed texts, no ijma of the Companions or of the ummah and no qiyas is applicable then the rule is that of permissibility (ibahah) and not of interdiction (hazr). Other examples can be found in Shawkani's legal writings which underscore his unambiguous commitment to bring to bear his ideas on usul al-fiqh to actual legal judgements. For instance, Shawkani condemns the widely held opinion that specific statements have to be made in the process of the "offer and acceptance" (al-ljab wa 'l-qabul] to render a contract valid. He argues that there is no basis for such an opinion in the Qur'an or the canonical hadith collections and therefore it must be rejected. Instead, Shawkani proposes that any customary practices which are construed to constitute an ijab and qabul render a contract valid.27 In analyzing Shawkani's teachings
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Al-Sayl al-jarrar, 3:63ff.; Muhammad Siddiq Hasan Khan, al-Rawda al-nadiyah sharh al-durar al-bahiyah (Beirut: Dar al-Nada, 1993), 2:228-36; cf. Ibn Miftah, Sharh al-azhar, 4 vols. (Cairo: Matba'at Sharikat al-Tamaddun, 1332/1914), 3:69ff; cf. Ahmad b. Qasim al- Ansi, al-Taj al-mudhhab li-ahkam al-madhhab, 4 vols. (San a : Maktabat al-Yaman al-Kubra, n.d.), 2:376ff. 25 Wabl al-ghamam, 2:427. 26 Ibn Hazm, al-Muhalla bi 'l-athar, 12 vols., ed. 'Abd al-Ghaffar al-Bindari (Beirut: Bar al-Kutub al- llmiyah, 1988), 8:467; Ibn al-Amir, Subul al-salam, 4 vols. (Beirut: Bar al-Kitab al-'Arabi, 1987), 3:73; Ibn al-Armr, al-Qawl al-mujtaba fi tahqiq ma yahrum min al-riba (San a : Maktabat Bar al-Quds, 1992). 27 Al-Sayl al-jarrar, 3:6; idem, al-Darari al-mudlyah sharh al-durar al-bahiyah, (Beirut: Bar al-Jil, 1987), 297.

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the linkage between his usul and furu is either explicitly stated or assumed in each and every legal judgement. He could not envisage a sweeping reform of the substantive law without first revamping the usul. The question of whether usul al-fiqh is pertinent to the furu would have struck Shawkani as absurd, not because many of the furu by his time were not anchored in the usul (a fact he readily admitted and aggressively sought to remedy), but because his plan was to ground firmly the furu with his own chastened version of the usul. Shawkani on Ijtihad The cornerstone of Shawkani's epistemology and legal methodology comes out in his discussions on ijtihad, the means by which a scholar independently derives his judgements in matters obtaining only probable answers. He argued that it provided a solution to the evils of sectarianism and fanaticism as well as a means of reforming misguided social practices. It appears that Shawkani took most of his ideas on ijtihad from his predecessor Ibn al-Amir and aimed to present a systematic method for producing mujtahids.28 Both he and Ibn al-Amir argued against those who claimed that ijtihad was no longer possible and that it was incumbent on Muslims to practice taqlid of earlier mujtahids, namely, the eponyms of the established schools. Shawkani and Ibn al-Amir's arguments are framed in universal Islamic terms but it is their opposition to the Hadawi madhhab which underpins many of their opinions on this matter. As such, their discourse has a strong social and personal element and is not presented in purely theoretical terms. Shawkani s arguments are that ijtihad is a continuous and necessary process and that it is easier for mujtahids to arise in later times. He begins by stating that no age may be devoid of a mujtahid, basing himself on the Prophetic Tradition: "until the day of reckoning a group in my nation will remain manifesting the truth". In His fairness, God could not have been more bounteous to the earlier generations than to the later ones. Moreover, the disappearance of mujtahids would entail a severance between the later generations and

Cf. Muhammad b. Isma il al-Amir, Usul al-fiqh al-musamma ijabat al-sa il sharh bughyat al-dmil (Beirut: Mu'assasat al-Risala, 1986), 383ff.; idem, Irshad al-nuqqad ila taysir al-ijtihad.

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the original sourcesthe Qur'an and Sunnahbecause of the muqallid's need for what amounts to an intermediary between himself and the texts. Hence, Shawkani advocates a return to the sources, which, he argues, are comprehensive and sufficient for all situations.29 His argument about the relative facility for later scholars to become mujtahids underscores his epistemological approach: authoritative knowledge is textual, and can only be derived textually. Given that generations of scholars from the time of the Prophet down to his had collected, classified and codified this textual legacy (i.e., the hadith collections and affiliated works, dictionaries, grammars etc.), and that these references were now literally at his fingertips in books, his ability to arrive at authoritative legal decisions was greater than that of the earliest of generations.30 His assertion that the later generations were better able to access the sources of revelation was a means of empowering himself, and by the same token refuting the notion of irrevocable decline which underpinned the claim that the last mujtahids were the eponyms of the established schools. Later Hadawis admitted in theory the practice of ytihad in their usul works but in practice they expected adherence to al-Hadi s teachings as set forth in Ibn al-Murtada's Kitab al-Azhar.31 As was stated earlier, Hadawis consider the opinions of the early Imams (primarily those of al-Hadi) and their consensus to be the main sources of authority in matters of law. Any opinion which contradicts their Imams is invalid because they hold that the Ahl al-Bayt are the only group of Muslims who follow the righteous path and who will be saved in the hereafter.32 In the sources they refer to themselves as "the group which manifests the truth" (al-firqah al-zahirah 'ala al-haqq) and "the group that will attain salvation" (al-firqah al-ndjiyah}. In short, for the Hadawis taqlid was permissible, indeed mandated. Al-Qasim al-Mansur, for example, states that mujtahids had to take account of the opinions of the Imams of Ahl al-Bayt, and it is only when differences between the latter exist that they should look to the

Cf. Irshad al-fuhul, 228. The same argument is made by Ibn al-Amir in his Irshad al-nuqqad, 3637. 31 Cf. al-Husayn b. al-Qasim, Ghayat al-sul fi ilm al-usul, in Majmu al-mutun alhammah (San a : Maktabat al-Yaman al-Kubra, 1990), 296; idem, Kitab Hiddyat al'uqul ila ghayat al-sul (n.p.: al-Maktaba al-Islanuyah, 1401/1981), 2:685-687; Muhammad b. Yahya b. Bahran, Matn al-kdfil, in Majmu' al-mutun al-hammah, 326328. 32 Al-Qasim b. Muhammad, al-Irshad ila sabil al-rashad (San a : Dar al-Hikmah al-Yamanlyah, 1996), 108.
30

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Qur an and Sunnah for answers. Moreover, he states that if Ali b. Abi Talib held an opinion in a matter upon which there was a conflict of views then his opinion was to be followed, because he is "the interpreter of the Book of God and the Sunnah of His messenger".33 Implicit in al-Qasim al-Mansur's recommendations is that ijtihad is not easily attainable, a matter which is further corroborated by the fact that he did not describe a systematic method by which mujtahids could be readily formed. Ijtihad was after all one of the conditions of the Imamate and often in Zaydi history candidates were not found because there were no mujtahids. A Clash over Doctrine: Kull Mujtahid Muslb versus al-Haqq Wahid Another element in the Hadawi doctrine of ijtihad is their belief in the infallibility of mujtahids, as expressed in the statement "every mujtahid is correct" (kull mujtahid musib) in normative legal matters which obtain probable answers (masa'il zanniyah amaliyah). One of its effects was to insert a degree of tolerance for a multiplicity of opinions among mujtahids., and this may explain, in part, the relative tolerance shown by Zaydi scholars to the Yemeni Traditionists.34 The latter's legal opinions, even if considered valid, did not undermine Hadawi ones as these were correct too. It was only when Shawkani, with the backing of the state, insisted on imposing his views that Hadawis seriously reacted, accusing him of wanting to establish his own madhhab.35 In opposition to Hadawi views, Shawkani rejected the doctrine of the infallibility of mujtahids, arguing that there was only one correct answer to a given issue. He bases this on the hadlth in which the Prophet says: "If the judge judges by ijtihad and is correct, he receives two recompenses; if he judges by ijtihad and commits an error, he receives one recompense". The test of a correct opinion according

Al-lrshad ila sabil al-rashad, 73-81. Another broader effect which was pointed out by Aron Zysow was to diminish the importance of law while giving other sciences such as theology greater importance. See "Economy of Certainty", 459-483. It must be pointed out that al-Qasim alMansur rejected the doctrine of the infallibility of mujtahids, ascribing it to the Basran Mu'tazila and insisting that only one answer is correct. His attempt to resolve the differences that arose between Zaydi Imams can be found in his al-Irshad ila sabil al-rashad. Briefly, al-Qasim al-Mansur calls for privileging the opinion of Ali b. Abi Talib and for placing greater emphasis on the consensus of the Ahl al-Bayt in disputed matters. 35 Cf. Ghatamtam, 1:18-20.
34

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to Shawkani lies in whether the mujtahid bases his opinion on textual proof and authority from the Qur an and Sunnah. Shawkani, however, offers no means for the ordinary Muslim of judging the soundness of one mujtahid's opinion over that of another. It is assumed that an absolute mujtahid, such as himself, would in some manner supervise the workings of the legal system and remain the ultimate arbiter of the correctness of a given opinion. Unfortunately, Shawkani does not delve into the detailed workings of this system. An clear assumption, however, about the mujtahids who would maintain this system was that they would share Shawkanis educational training, mainly in the hadlth sciences, and his teachings. In other words, Zaydis who chose to ignore the standard Sunni collections of hadith were not considered mujtahids. As one might expect, Hadawis objected to this scheme in part because they upheld the doctrine of the infallibility of mujtahids. Moreover, they suspected Shawkani of claiming infallibility for his own opinions partly because he upheld the doctrine of fallibility. Muhammad al-Samawi (d. 1241/1825), otherwise known as Ibn Hariwah, observes in this regard:
The sum total of your claim is [your own] infallibility (ismah), and because of this you have to assert that you have either joined the rank of the prophets,.... or admit that your ytihad may contain error as in the case of other mujtahids given that the area here is one of probability. Then, there remains no argument favoring the acceptance of your opinions to the exclusion of others: your opinions are like those of other mujtahids, and the one practicing taqlid is free to choose from whichever he prefers. If this is so, what proof do you have that the one who accepts the opinion of someone other than yourself has gone astray while the one who accepts your opinion has become rightly guided?36

Ibn Hariwah's question raises the important question of the role taqlid plays, and consequently the position the lay person ( ammi) is to adopt in the legal system envisaged by Shawkani's usul. Shawkani on Taqlid Shawkani is emphatic that the practice of taqlld, which he defines as following someone else's opinion (ra'y) without knowing the textual proof (hujjah) underpinning it, is absolutely prohibited.37 He claims
36 37

Ghatamtam, 1:65. Irshdd al-fuhul, 237ff.

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that the founders of the schools of law had prohibited taqlid as well, and that it was only their followers who made it mandatory through an unprecedented and reprehensible innovation (bid ah muhdathah).38 Shawkani explains that the Companions and the two following generations had not practiced taqlid and did not even know of it. If one of the Companions was unable to formulate an opinion for himself he would ask someone who could provide the legal proof (al-hujjah al-shar iyah) on the given issue. In underpinning this assertion Shawkani cites Qur'an IV: 59 "If you should quarrel on anything, refer it to God and the Messenger", as well as the famous Tradition of Mu adh to prove that Muslims were exhorted to refer to the Book and the Sunnah. In other words, use of textual proof is obligatory as is the requirement to refer to a living scholar who is able to present the supplicant with such proof (dalil) which does not consist of a mere opinion, but is based on a textual transmission (riwayah}. Hence, in the event of an issue arising the lay person or the one who falls short (muqassir) must ask the jurists of his time who are knowledgeable in the Book and the Sunnah. Shawkani says:
It is incumbent on him to ask about that which is determined by the Shari a and the one who is asked must be from among those who are not ignorant of this. Then [the mufti] issues afatwa which is Qur'anic or Prophetic and discards the question about the schools of the people and contents himself with the school of their first Imam who is the Prophet of God.39

According to Shawkani these mujtahids of the Book and the Sunnah can be found in every town of the Islamic world so that the commoner need not search far for them. His is a purist position that will not accommodate the widely accepted notion of decline in juristic and learning ability and upon which is built the argument for the paucity and extinction of the mujtahids in later times. This matter, however, raises an important and practical question which Shawkani leaves unanswered: How is a commoner to make sense of the textual proof the mujtahid gives him? By definition a commoner is ignorant of the Shari a, and he therefore would not understand the import of the texts or be able to make comparative judgements with other plausible proofs. Because of this lack of comprehension

38 39

Al-Qawl al-mufid, 209ff. Irshad al-fuhul, 239.

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the commoner effectively would still be practicing taqlid, albeit under a new guise. Hadawis were quick to point this out to Shawkani and again accused him of wanting to make himself the ultimate authority so that every one would practice taqlid of his decisions. Ibn Hariwah argues against Shawkani's assertion that taqlid is prohibited by saying:
Your [i.e. Shawkam's] obstinate claim that providing the commoner with a text from the Book or hadith, which he must then follow, does not constitute taqlid is foolish. If the text which is provided to him is one over which there is no conflict, then the matter is not relevant here. [However], if [conflicting positions] (ikhtilaf) exist [with regards to the cited text] then the muqallid must choose between the various positions, and it is assumed that he cannot do this, so he must adhere to one of them which is pure taqlid. ... In sum, you expect them [commoners] to adhere to your opinions and ytihad in issues where differences of opinion exist (masa'il al-khilaf] and you obligate them to practice taqlid of yourself.40

The vision that Shawkani posits where all Muslims would have access to the process and fruits of ytihad, either by being mujtahids themselves or consulting one and making sure that the opinion obtained is one based on textual evidence, raises further interesting issues about the pervasiveness of mujtahids, how they are to be formed, and the difficulty or facility of the pedagogical process. Reproducing Mujtahids in Serial Fashion: Shawkani's Pedagogy Following on from his claim that mujtahids continued to exist in later times, Shawkani provided a curriculum which, if followed systematically, would produce such scholars. He outlines this process in great detail in an unusual pedagogical work entitied Adab al-talab wa muntaha al-arab (The Discipline of the Quest and the Ultimate Goal). Here he enumerates the curriculum which a mujtahid mutlaq (an absolute mujtahid} must follow to attain that rank, as well as the curricula for lesser scholars. The subjects that each category of scholar must study are listed and the degree of their mastery is mentioned, as are the books which ought to be studied in each of the sciences. Shawkani lists four categories of students or seekers of knowledge:41

40 41

Ghatamtam, 1:42-43. Adah al-talab, 97-98.

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1. The one desiring to become "an Imam who is referred to" (marja'} and who teaches, produces fatwas and writes books. 2. The one who desires to know independently what God has demanded of him (i.e., duties and obligations). A scholar of this category is considered to have attained the rank of mujtahid in as much as he can independently form opinions for himself. However, he is not an authority to which others can refer. 3. The one seeking to improve his Arabic in order to better understand whatever he seeks in the Sharia. Shawkani makes clear that this category of student cannot act independently, but must rely on the questioning of ulama in cases where contradictions arise or in those which necessitate the giving of greater weight to one argument over another, a practice called tarjlh. 4. The one who seeks to learn a science or discipline for worldly ends, e.g. a poet or an accountant. The mujtahid of the first category, that is, someone whose intention was to become like Shawkani himself, had to study the following subjects or disciplines:42 1. Grammar (nahw). 2. Logic (mantiq). 3. Morphology ( ilm al-sarf). 4. Rhetoric ( ilm al-ma'ani wa l-bayan). 5. Semiology and argumentation (fann al-wad wa '1-munazarah). 6. The science of figures of speech ( ilm al-badi). 7. Dictionaries (nui'allafat al-lughah). 8. The principles of jurisprudence (usul al-fiqh}. 9. Dogmatic theology ( ilm al-kalam). 10. Exegesis of the Qur'an (tafsir). 11. The science of the Sunnah ( ilm al-sunnah). 12. The science of isnad criticism ( ilm al-jarh wa 'l-ta dil} and the technical terminology of the scholars of hadith. 13. Historical works. 14. Law ( ilm al-fiqh). 15. Poetry. 16. The study of math, physics, geometry, natural science and medicine.
Adah al-talab, 113-124. Shawkani provides here a detailed list of book titles in each subject and explains the extent to which these must be memorized or read in order to gain a sufficient degree of proficiency.
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The list is impressive and is intended as a guide which if followed will lead to the formation of a mujtahid like Shawkani himself; references to Shawkani's own education pepper the work and are intended to make the process tangible. More than a manual of how one becomes a mujtahid, Adab al-talab is a personal manifesto which presents the illnesses afflicting the Muslim communityviz. madhhabiyah which is a result of taqlidand the remedy which would provide the cure: ijtihad in the guise of a return to the principal sources, the Qur'an and Sunnah, and the formation of mujtahids. The aim of becoming a mujtahid for Shawkani, therefore, is to be able to deduce (istikhraj] judgements whenever one wishes and not have to look at who gave a certain judgement, but rather to look at the content of what was said and be able to judge it critically in the light of one's knowledge of the Book and Sunnah. A mujtahid according to Shawkani
is one who extracts the legal proofs from their sources and imagines himself present at the time of the Prophecy (fi zaman al-nubuwwah) and the coming of revelation, even though he is in fact living at the end of time. [He must imagine that] no scholar has preceded him or any mujtahid taken precedence over him. The legal provisions (al-khitdbat alshar'iyaK) relate to him as they did to the Companions, without any difference.43

That Shawkani considered himself to be a mujtahid is beyond doubt. In most of his works he presents himself as an ultimate arbiter who illuminates the truth, provides the proofs and sweeps away all that is textually unfounded.44 But more than a mujtahid., Shawkani probably wanted to be considered a mujaddid (a "renewer" of Islam), or at the very least a scholar of the highest caliber with a pan-Islamic reputation. He does not claim for himself the tide of "centennial renewer" (mujaddid al-qarri), but alludes to it in discussion of the Prophetic tradition which states that "God sends to this community at the head of every century one who will renew its religion".45 This title has since been conferred upon Shawkani by his students and

Adab al-talab, 122. Cf. Wabl al-ghamam, 1:20-21; Irshad al-Juhul, 2-3. 43 In Arabic: ". . . inna Allah subhanahu yab'ath li-hadhihi al-umma ala ra's kull mi'at sana manyujaddid laha arm diniha". Abu Da'ud, Sunan, Kitab al-Malahim 1. Cf. Shawkani, Qatru al-wali ala hadith al-wali, ed. Ibrahim Hilal (Beirut: Dar Ihya al-Turath al'Arabl, n.d.), 353.
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high ranking officials in the present Yemeni government often refer to him as the "renewer of the thirteenth (hijri) century".46 The break here with Zaydi intellectual tradition deserves noting. "Renewers", in the Sunni sense, are not a feature of Zaydi thought.47 The imams are the focus both of intellectual truth and of the effort to have the world conform with this; and though there may be periods when no imam is evident, Zaydism had usually been content to extend the search for the righteous leader rather than accept faute de mieux a temporal lord. Imams who lacked the full range of conditions, restricted imams (al-a immah al-muhtasibun), were recognized in later Zaydi thought, but the character of the imamate was not compromised intellectually.48 Shawkani's interest in the role of the mujaddid or "renewer", by contrast, fits with the theoretical acceptance of a de facto

Cf. Muhammad al-Shijni, Hayat al-imam al-shawkani al-musamma Kitab al-tiqsar, ed. Muhammad b. Ali al-Akwa (San a : Maktabat al-Jil al-Jadid, 1990), 33-35, where Muhammad al-Akwa asserts that Shawkani is the renewer of the thirteenth century; also see al-Husayn b. Badr al-Din, Kitab Shifa al-uwdm fi ahadith al-ahkam, 3 vols. (n.p.: Jam iyat 'Ulama' al-Yaman, 1996), 1:16, where Muhammad al-Hajji, the vice-president of Yemen's supreme court (majlis al-qada al-a'la), a post comparable to that of chief judge, makes the same assertion. 47 It is noteworthy that Ella Landau-Tasseron has tried to detail the use of the mujaddid tradition in Zaydlsm and discovered that the Sunni model does not apply, cf. Ella Landau-Tasseron, "Zaydi Imams as Restorers of Religion: Ihya and Tajdid in Zaydi Literature", Journal of Near Eastern Studies 49 (1989): 247263. In this regard, it must be pointed that the work Ithaf al-muhtadin, which led Landau-Tasseron to the topic of tajdid among the Zaydis, was written by Muhammad b. Muhammad Zabara, a man who was highly influenced by Shawkani s ideas on ijtihad and tajdid. As such, he does not reflect earlier Zaydi-Hadawi opinion on the matter. 48 In the commentary on the margins of Sharh al-azhar it is stated that some later Shi is allowed for a muqallid to become imamalthough he had to be a mujtahid in politics (mujtahid fi abwab al-siyasa)because ijtihad according to them had become impossible in later times. Imam al-Mutahhar was apparently one who claimed the imamate despite not having attained the rank of ijtihad. This Imam al-Mutahhar was probably al-Wathiq bi-Allah al-Mutahhar b. Muhammad, who died in 802 AH. See Shawkani's al-Badr al-talf, 2 vols., ed. Muhammad Zabarah (Beirut: Dar alMa'rifa, 1348/1929), 2:311. This commentary goes on to say that if a valid candidate for the imamate is not to be found then a muhtasib (a restricted imam) can rule until a valid imam can assume the post. The muhtasib need not be a mujtahid or a descendant of al-Hasan or al-Husayn, or a member of Quraysh. His requirements are that he has enough reasoning ability, courage and perspicacity. The muhtasib performs all the duties of the valid imam except the following: the four legal punishments (al-hudud al-arba'a), the Friday prayers (jumu'at), conquest (ghazw) and collection of alms (sadaqat), cf. Ibn Miftah, Sharh al-azhar, 4:520-521; also alMansur al-Qasim, Kitab al-Asas (Sa'da: Maktabat al-Turath al-Islami, 1994), 173-174; al-Sharafi, Kitab 'Uddat al-akyas, 2 vols. (San a : Dar al-Hikmah al-Yamaniyah, 1995), 2:223-226; R. Strothmann, Das Staatsrecht der Zaiditen (Strassburg: Verlag Von Karl J. Trubner, 1912), 94ff.; Madelung, "Imamah", in EI2.

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separation between truth and power. The imamate under Shawkani's influence becomes not simply the province of the muhtasibun but a source of temporal order identical with mulk or kingship;49 righteousness, meanwhile, is the concern of a separate or distinct group of ulama, whose opinions must defer to the most learned among them. As a mujtahid and mujaddid, independent intellect and renewer of collective truth, Shawkanl would be the source to which scholars and rulers alike properly should resort. Shawkani s insistence on ijtihad over blind imitation (taqlid) implies in fact, if paradoxically, that Muslims should follow his rulings and opinions, an important claim for a man who for most of his life was the "judge of judges" (qadi al-qudah). For all his insistence on transcending the differences among the schools, Shawkani s position on political and constitutional matters at least fits into a tradition that is purely Sunni. This is most evident in his criticism of the Zaydf-Hadawi doctrine of the imamate. He disputes the Hadawi claim that the path to becoming an imam is through "making a call" (da'wah). Rather, he says that whenever a group of Muslims, which he specifies as the people "who loose and bind" (ahl al-hall wa 'l-'aqd, i.e. the notables), agree to give their allegiance (bqy'ah) to a pious man of the community (min sdlihl hadhihi al-wnmah)., then it becomes obligatory for them to obey him in "the good he ordains and the evil he forbids". Another way to become imam is by means of an incumbent delegating the imamate to a successor, as Abu Bakr did with Umar. As for the strict Hadawi conditions, such as the imam being male, of mature age (baligh), rational ( aqil), free (huri) etc., Shawkani agrees with some and disputes others. For example, he agrees that the imam must be rational but disputes that he must be a Fatimi-'Alawi, arguing that no proof exists for such specification because of the Tradition which states that "Imams are from Quraysh". Furthermore, obedience to a sultan is mandatory even if he were a slave because of the Traditions which state, "Obey and be obedient even if he is an Ethiopian slave whose head is like a raisin", and "obedience is incumbent upon you even if he is an Ethiopian slave, because the believer is like a camel, if he is fettered, he is led".50

Cf. Majd al-Din al-Mu'ayyidi, al-Tuhaf sharh al-zalaf (n.p., n.d.), 161. Versions of these hadlths, can be found in Bukhari, Sahih: al-Adhan and Ahkam, 4, 5, 156; Ibn Majah, Sunan: Jihad, 29; Ahmad, Musnad, 3:114, 171.
50

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The clearest elaboration of Shawkani's vision of the separation between truth and order is when he discusses the Hadawi condition that the imam must be a mujtahid. In disputing this, he says instead that the ignorant sultan
must employ a religious scholar who is a mujtahid and who will undertake to run the affairs of the pure Shariah, after determining that the latter is knowledgeable, just and well informed in matters of religion. . . . For me [Shawkani], the most important conditions and foundations which the imam or sultan must fulfill are: that he be able to safeguard the roads, bring justice to the oppressed, defend the Muslims in the event of a surprise attack by an infidel army or a rebel. ... It does not harm an imam if he should fall short of a condition or more of those mentioned by the [Zaydi] author, so long as he fulfills what we have mentioned. Muslims do not need an imam who sits in his prayer chamber (fi musallah), holding his prayer beads, devoting himself to reading religious books, teaching these to the students of his age, and commenting on the problems therein while ignoring the shedding of blood and property, Muslims plundering each other, and the strong oppressing the weak. In this case none of the [stipulations] of the imamate or the sultanate are being enforced because the more important matters, which I have already mentioned, are not being fulfilled [i.e., safely, justice and defense].51

The image Shawkani portrays of a learned but inactive imam is hardly the model posited in Hadawi manuals of law or depicted in their historical sources. The early Qasimi imams had embodied the ideal of men of both the sword and the pen, and they were not beyond recent historical memory. Was this other model not sustainable or even relevant by Shawkani s time? It is clear that the frame of reference had shifted away from the political doctrines and moral order envisioned in Hadawi teachings. This is further confirmed when Shawkani asserts that Muslims are forbidden to rise (khuruj) against an unjust Imam (zalim) so long as he prays and commits no public act of unbelief (lam yazhar minhu al-kufr al-bawwah).52 Shawkani's vision of a political order described the state of affairs in his day to a remarkable extent. The imams who ruled were not scholars or mujtahids. They were variously accused of imposing noncanonical taxes and their personal behavior left them far from the ideal. Furthermore, Shawkani was the mujtahid to whom the Imams

51 52

Wabl al-ghamam, 3:500-501. Al-Sayl al-jarrar, 4:505-515.

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referred. The shift from Zaydf-Hadawi forms of rule and authority to Sunni Traditionist ones under Shawkani s aegis was challenged by more traditional Zaydf-Hadawi scholars; the intensity of the reaction of the latter to Shawkani exposes the extent to which the changes engendered by Shawkani and his Qasimi patrons in the period of the late eighteenth and early nineteenth century were successful. Zaydi-Hadawi Opposition The most serious attempt to take Shawkani to task for his Traditionist views came from the aforementioned Hadawi scholar Muhammad b. Salih al-Samawi (d. 1825), who was nicknamed Ibn Hariwah. Ibn Hariwah regarded Shawkani's ideas on ytihad, when combined with the power he wielded as chief judge, as a threat to the Hadawi school and a means of empowering himself as the supreme legal authority in Yemen. The scholarly clash came with Shawkani's writing in 1235/1820 of al-Sayl al-jarrar (The Raging Torrent). In it he provides a line by line critique and refutation of the principal legal manual used by the Zaydis in Yemen, the Kitab al-Azhar (The Book of Flowers). In writing the SayI, Shawkani was building on an existing Yemeni tradition of commentaries on Kitab al-Azhar. Before him, the Traditionists al-Hasan al-Jalal and Ibn al-Amir wrote similar works, and Shawkani drew on these, especially al-Jalal's Daw al-nahar.53 It would seem, however, that Shawkani's criticism was more vehement and thorough than that of his predecessors. Ibn Hariwah responded to the Sayl al-jarrdr in a work entitled alGhatamtam al-zakhkhdr al-mutahhir min rijs al-sayl al-jarrar (The Vast Ocean which Purifies the Filth of the Raging Torrent). In it he accuses Shawkani of plagiarizing in all his writings from others, such as from al-Jalal and, more specifically, from Ibn Hajar's Talkhis alhabir and al-Fath al-bdri.54 Ibn Hariwah further claims that Shawkani is a deviant from the teachings of the Ahl al-Bayt who hates the Prophet's family (al- itrah) and suffers from compounded ignorance (jahl murakkab}.55 Moreover, in a view shared by some contemporary
Cf. Shawkani's al-Badr al-tali , 2:223. Al-Hasan al-Jalal's Daw al-nahar and Ibn al-Amir's Minhat al-ghaffar have been edited and published in 4 volumes by the Higher Judiciary Council of Yemen; see the bibliography. 54 Ghatamtam, Introduction, 1:65-74, 132-133. 55 Ghatamtam, Introduction, 1:53.
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Hadawis, Ibn Hariwah holds that Shawkani was out to undermine the Hadawf school by supplanting the Kitab al-Azhar with his own fiqh work, al-Durar al-bahiyah., on which he also penned a commentary called al-Darari al-mudiyah (= al-mudl a).56 Ibn Hanwah ends by claiming that Shawkani properly belongs to the school of Muhammad b. Abd al-Wahhab. Here is what he says in this regard: And after you have claimed absolute ijtihad (al-ijtihad al-mutlaq] and to be competent in all its areas, what is your objective from all the opinions and preferences which you have substantiated in your works? If it is that the people should refer to these for the knowledge which you have and which they do not, then this is the taqlid which you forbade! The muqallid is free to choose; if he prefers your opinion then he must accept it, and if he prefers the opinion of Ahl al-Bayt then he must abide by theirs. So what does your ijtihad amount toassuming it is correctexcept the ijtihad of one among the mujtahids? We have not known a single mujtahid from this community who claimed that it is incumbent [on others to] accept his opinion or his ijtihad, and that it is forbidden to accept the ijtihad of anyone else, except those whose school you have joined, by whom I mean the Najdi [Muhammad b. Abd al-Wahhab] and Hasan b. Khalid . . . . Among the things that the Najdi has said is that he is right in matters of dispute (masa il alkhilqf) and that the others are in error. With this he made licit the shedding of the blood of Muslims and the taking of their wealth. You belong to this school in claiming that you are right in disputed matters and that others are in error. Because of this you wish to defile the opinions of Ahl al-Bayt by attributing these to error and you take it upon yourself to circulate your works and opinions and claim that these are the truth.57 Ibn Hariwah is clearly trying to slot Shawkani in a tradition that is both alien and antagonistic to Zaydism, and in so doing is discrediting him in the eyes of fellow Zaydis. As with many of Shawkani's adversaries, the most important of Ibn Hariwah's claims for the superiority of his school was to re-emphasize the special role played by the Ahl al-Bayt in the Muslim communitylegal details, though

Ghatamtam, Introduction, 1:50. Ghatamtam, 1:128-129. Al-Hasan b. Khalid (d. 1234/1819) was a Traditionist sayyid from Hijrat Damad in Asir. He appears to have shared Traditionist views, comparable to those of the Wahhabiyah, and was the main advisor to and judge under Sharif Hamud, who ruled much of the Tihamah until Muhammad Ali s troops finally defeated him. Cf. Muhammad Zabarah, Nayl al-watar min tardjim rijal al-Yamanfi al-qarn al-thalith 'ashar (San a : Markaz al-Dirasat wa '1-Abhath al-Yamanfyah, n.d.), 1:323-327.
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important, were ultimately secondary to the political and eschatological dimensions of Zaydlsm. Ibn Harfwah did not live long enough to complete al-Ghatamtam. He was executed on the orders of the Qasimi Imam al-Mahdl Abd Allah (r. 1816-1835) for his excessive criticism of the regime in power. In his final testament Shawkani warns those who would accuse him of having had a hand in Ibn Hariwah's death; nonetheless, contemporary Zaydis consider Ibn Hariwah a martyr and have no doubt that Shawkani played a role in his demise.58 Conclusion Shawkani vision of order clearly involved a rejection of the ZaydiHadawf madhhab, and this entailed a multi-faceted attack aimed at undermining the integrity of the school. One of the most important aspects of this assault was the necessity to revamp and redefine certain principles in usul al-fiqh. Among a number of elements in this process was Shawkani's attempt to confine the Sunnah exclusively to the standard Sunni hadlth sources, to reject ijmd and taqlid (upon which the authority of all the schools of law rests), all the while stressing his own conception of ijtihdd. This process is related clearly to the formation of new authority structures in the Yemeni highlands in the eighteenth century. Shawkanis vision was implemented only when the Qasimi state decided to adopt it as its own and to place Shawkani in a position of authority as chief judge. The effects of this alliance, which involved shifts in religious identity, away from Zaydl-Hadawism, as well as ones in judicial and political structures of authority, have ultimately been part of the dynamic which has led to the decline of Zaydfsm, a phenomenon which is in clear evidence in contemporary Yemen.59 It is no accident that the present chief judge of Yemen, Qadf Muhammad al-Hajjr, describes himself as belonging to "Shawkani s madhhab".

Cf. Zabarah, Nayl al-watar, 2:274279; Husayn al- Amri, al-Imam al-shawkam ra'id 'asrih (Damascus: Dar al-Fikr, 1990), 269-272; Ahmad al-Shami, Nafahdt wa lafahat min al-yaman (Beirut: Dar al-Nadwah al-Jadrdah, 1988), 401-405. 59 Cf. Bernard Haykel, "Rebellion, Migration or Consultative Democracy? The Zaydis and their detractors in Yemen", in Le Yemen contemporain (Paris: Karthala, 1999).

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