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Sharh al-Yaqut al-Nafis

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Posted by on July 29, 2012 in Arabic, Fiqh

 

Wael Hallaq on Tarjih and Tajdid

During the past two decades, the forms of discourse demanding a return to Islamic values and practices have been many, including literature in print; radio and television programs; the propagandist activities of Islamic parties, associations, and clubs; and the literature of medical, financial, and other institutions. Permeating these forms is the distinct call to reapply or reinforce the shari’a. In the majority of cases, the shari’a is conceived as a well-defined, wholesome entity; the only problem is that it has been pushed aside to the backburner, so to speak. The Islamic book market affords the outside observer an abundance of materials embodying the deontic message as to how to apply the shari’a. A fairly representative example of such a beckoning call is a collection of articles by distinguished men of Islamic learning, tellingly titled Wujub Tatbiq al-Shari’ah al-Islamiyya (The Necessity to Apply the Islamic Shari’a).1 One author, for instance, suggests that a means to achieve this goal is for the political sovereign to spread the religious ethic and to “institute a code to be promulgated for the benefit of organizations and institutions, a code that is compiled by an assembly of learned and experienced specialists in law and Islam.”2Another essay by a prominent author merely presents are introductory, even sketchy, discussion of the general principles (qawa’id of the Shari’a for the benefit of secular lawyers who are “entirely ignorant” of lslamic law and who have left behind the religious law in favor of the “importation of western legislation into the Arab countries. They are not the shari’a jurists but rather the ‘other group’ which needs to be addressed with such a simplified manner.”3 The underlying assumption here is the due admission that the hegemonic and professional legal power lies in the hands of this secular group whose knowledge-and, by implication, appreciation-of Islamic law is virtually nonexistent, a fact that justifies simplification of the shari’a subject matter for the purpose of persuading them to adopt it in legal application. In short, in this discourse the shari’a appears as an extramental object that can be applied or pushed aside, appreciated or marginalized, but it is qualitatively and most certainly a known entity the only predicament of which is that it is capable of being subject to these preferences.

It is my contention here that this pervasive and dominating discourse misses the crucial point that the shari’a is no longer a tenable reality, that it has met its demise nearly a century ago, and that this sort of discourse is lodging itself in an irredeemable state of denial. This chapter, therefore, is concerned with showing the features of this demise and of the crises that still persist in the pursuit of an Islamic legal identity.

The demise of the shari’a was ushered in by the material internalization of the concept of nationalism in Muslim countries, mainly by the creation of the nation-state. This transformation in the role of the state is perhaps the most crucial fact about the so-called legal reforms. Whereas the traditional ruler considered himself subject to the law and left the judicial and legislative functions and authority to the ‘ulama, the modern state reversed this principle, thereby assuming the authority that dictated what the law is or is not. The ruler’s traditional role was generally limited to the appointment and dismissal of judges, coupled with the enforcement of the qadi’s decisions. Interference in legislative processes, in the determination of legal doctrine, and in the overall internal dynamics of the law was nearly, if not totally, absent. The modern state, on the other hand, arrogated to itself the status of a legislator, an act that assigned it a place above the law. Legislative interference, often arbitrary, has become a central feature of modern reform and in itself is evidence of the dramatic shift in the balance of legal power.

A direct effect of this shift was the adoption by the new nation-state of the model of codification that altered the nature of the law. Codification is not an inherently neutral form of law, nor is it an innocent tool of legal practice, devoid of political or other goals. It is a deliberate choice in the exercise of political and legal power, a means by which a conscious restriction is placed on the interpretive freedoms of jurists, judges, and lawyers.4 In the Islamic context, the adoption of codification has an added significance since it represents potently efficacious modus operandi through which the law was refashioned in structured ways. Among other things, it precluded the traditional means of the law from ever coming into play. But to this significant transformation, which is primarily epistemic and hermeneutical, we will have to return later.

An essential tool–indeed, constitutive component-of the nation-state is centralization. In addition to codification, which could not have been achieved without this tool, centralizing mechanisms were carefully harnessed to confiscate the realm of law in favor of state control. As early as 1826, the Ottoman sultan Mahmud II and his men created the so- called Ministry of Imperial Pious Endowments, which brought the administration of the empire’s major waqfs under central administration.5 All rich endowments and their revenues and assets, supervised for centuries by the legal profession in the empire’s various regions, came under. Istanbul’s direct supervision:. This ushered a new era during which the jurists gradually lost control over their own source of power and became heavily dependent on state allocations that diminished in a steady and systematic manner.

But this was not all. The chipping away of the powers of the religious elite was bolstered by the creation of alternative elites that began to form during the first half of the nineteenth century. Under Mahmud IIthere was already a proliferation of technical schools independent of the religious colleges, schools that eroded the monopoly the religious institutions had over the legal system. As if this is not enough, both the Ottoman sultans and the local Egyptian rulers created a new group oflegal professionals, among others, who began to displace the traditional legal elite. With the adoption- indeed, coercive enforcement6 of Western-style hierarchical courts – and law schools, these new elites were easily incorporated into the emerging legal structures while at the same time the religious lawyers found themselves unequipped to deal with this new reality. These courts operated on the basis of codes, and the lawyers who staffed them had little, if any, knowledge ofthe workings of religious law, be it doctrinally, judicially, or otherwise. On the other hand, while the foreign elements were incomprehensible to the traditional legal hierarchy, their madrasas, which depended almost exclusively on the dwindling waqf revenues, were systematically pushed aside and later totally displaced by the modern, university law faculties. The traditional legal specialists lost not only their judicial offices as judges, legal administrators, and court officials but also their teaching posts and educational institutions, the backbone of their very existence as a profession. This latter loss constituted the coup de grace, for it was depriving them not merely of their careers but mainly of their procreative faculties: they were no longer al- lowed to reproduce their pedigree. The ruin of the madrasa was the ruin of Islamic law, for its compass of activities epitomized all that made Islamic law what it is was.

Thus, the demise of the shari’a was ensured by the strategy of “demolish and replace”: the weakening and final collapse of educational waqfs, the madras a, positive Islamic law, and the shari’a court was made collateral, diachronically correlational, and causally conjoined with the introduction of state finance (or, to put it more accurately, finance through the controlling agency of the state), Western-style law schools, European codes, and European court system. If law were to represent the entire spectrum of Islamic culture, it would not be an exaggeration to state that by the middle of the twentieth century, nothing in Islam was saved from a distinctly determined and omnipotent European hegemony.

What .has remained of the traditional system in the modern codes is no more than a veneer. Penal law, land law, commercial law, torts, procedural law, bankruptcy, and much else has been totally replaced by their European counterparts and supplemented, in due course, by several other codes and regulations, such as the law of corporation, copyright law, patent law, and maritime law. Traditional rules are still to be found in the law of personal status, but these have been uprooted from their indigenous context, a fact bearing, as we will see, much significance. As is well known, one of the favorite tools of modernists is the method of takhayyur, namely, picking and choosing legal rules from a variety of sources. Thus, the prin- ciples and rules of the marriage contract, for instance, may draw on more than one Sunni legal school, expediency being the rationale for an arbitrary amalgamation of doctrines. The modern legislators in Sunni countries furthermore resorted to Shi’i law in order to supplement their civil codes where Sunni law was deemed lacking in the fulfillment of their expedient methods. But they were extraordinarily daring not only insofar as the sources on which they drew were concerned but also in the manner in which they drew on traditional doctrine: they combined, in what is known as talfiq, several elements pertaining to a single issue from more than one source regardless of the positive legal principles, reasoning, and intellectual integrity that gave rise to the rulings in the first place. This approach is arbitrary in that it does not take into serious account–as should be the case–the subtle and intricate connection between the social fabric and the law as a system of conflict resolution and social control. 

These considerations, on the other hand, were ever-present in the minds of the traditional jurists and the system they produced, a fact that explains the constancy and stability of classical Islamic law over the long course of twelve centuries. This lack of sensitivity to social reality among the modem legislators is manifest on a number of levels and in many areas of the law, but revealing examples of it may be found in the tinkering of the Indian and Jordanian legislators: in the Muslim Marriages Act of 1939, British India adopted numerous doctrines of the Maliki school when the country had had a long history of exclusive Hanafi jurisprudence. As Joseph Schacht aptly remarked in this regard, “The whole Act is typical of modernist legislation in the Near East, but it is hardly in keeping with the development of Anglo-Muhammadan law which has followed an independent course so far, nor even with the tendency underlying the Shariat Act of 1937.”7Similarly, but even more flagrantly, in 1927 a Jordanian Law of Family Rights was enacted on the basis of the 1917 Ottoman Law of Family Rights, but in 1943, in less than a decade and a half, this law was replaced by the traditional shari’a law. Only eight years later, in 1951, the law was again repealed in favor of a codified law of family rights, inspired largely by the Egyptian and Syrian laws of personal status. Here it is difficult to draw any conclusion that Jordanian society had undergone, in the span of only two and a half decades, serious changes-and in different directions to boot. Insensitivity to social structures, arbitrariness, and inconsistency speak for themselves. The point to be made here is that what little that has been preserved of the shari’a in modern codes has been so flagrantly manipulated that lost its organic connection with both traditional law and society. This arbitrariness is simply a manifestation of the effects of infrastructural demolition of the traditional legal system.

As the opening paragraph of this chapter attests, the workings of the traditional system are little understood today, as has been the case since the end of the nineteenth century, if not even earlier. In the Ottoman Majalla, enacted in 1876, the Drafting Committee acknowledged the inability of the judges staffing the new courts to understand the shari’a law. “In fact,” the committee argued,

Islamic jurisprudence resembles an immense ocean on whose bottom one has to search, at the price of very great efforts, for the pearls which are hidden there. A person has to possess great experience as well as great learning in order to find in the sacred law the proper solutions for all the questions which present themselves. This is particularly true of the Hanafi School. In this school there are many commentators whose opinions differ markedly from one another. . . . One can thus under- stand how difficult it is to ascertain in all this diversity of opinions the best one and to apply it in a given case.8

With the increasing adoption of Western legal concepts and institutions, the difficulties mentioned by the Drafting Committee were also doubled and multiplied. The traditional system was steadily rendered irrelevant, useless, and a thing of the exotic past. It is on this account that the implications and consequences of the methods of takhayyur and talfiq were and still are little understood and appreciated by the modem legislators. It is perhaps telling that a Chief Justice of the High Constitutional Court of Egypt, when queried about his professional interest in the positive legal works of the traditional schools, told this writer that they are archaic arid incomprehensible.

II

The rupture, therefore, is certainly one of epistemology and goes deep into the inner structure of legal thinking. The modern Muslim lawyer and judge, by the very fact of their training-which is wholly alien to its traditional counterpart-have lost the epistemological and hermeneutical framework within which their faqih predecessor operated. To begin with, the modern lawyer has no understanding whatsoever of what taqlid, as an authorizing tool, is all about. One of the functions of taqlid was the defense of the school as a methodological and interpretive entity, an entity that was constituted of identifiable theoretical and substantive principles.9 The school was defined by its substantive boundaries, namely, by a certain body of positive doctrine that clearly identified the outer limits of the school, limits beyond which the jurist ventured only at the risk of being considered to have abandoned his madhhab (legal school). An essential part of the school’s authority, therefore, was its consistency in identifying such a body of doctrine that was formed of the totality of the founder’s opinions, substantive principles, and legal methodology, be they genuinely his or merely attributed to him.10 Added to this were the doctrines of later jurists deemed to have formulated legal norms in accordance with the founder’s substantive and theoretical principles. In other words, Islamic law represented the total sum of doctrinal accretions beginning with the founder down to any point of time in the history of the school. 

The multiplicity of doctrinal narrative resulted in the development of a technical terminology whose purpose was to distinguish between types of legal opinion. The evolution of this terminology was symptomatic of the staggering variety of opinion that resulted from a fundamental structural and epistemological feature in Islamic law, a feature that emerged early on and was to determine the later course of legal development. Its root cause was perhaps the absence of a central legislative agency-a role that could have been served by the state or the office of the caliphate but was not. The power to determine what the law was had lain instead, from the very beginning, in the hands of the legal specialists, the proto-fuqaha’, and later the fuqaha’ themselves. It was these men who undertook the task of elaborating on the legal significance of the revealed texts, and it was they who finally established a legal epistemology that depended in its entirety on the premise of an individualistic interpretation of the law. This feature was to win for Islamic law, in modern scholarship, the epithet “jurist’s law.” The ultimate manifestation of this individual hermeneutical activity was the doctrine of kull mujtahid musib, that is, that each and every mujtahid is correct.11The legitimation of this activity and the plurality that it produced had already been articulated as a matter of theory by as early as Shafl’i.12 It was also as a result of this salient feature that juristic disagreement, properly known as khilaf or ikhtilaf, came to be regraded as one of the most important fields of learning and enquiry, a field in which the opinions of a veritable who’s who of jurists were studied and discussed.13

This feature of what we might term ijtihadic pluralism had already become part of the epistemology that was integral to the overall structure and operation of the law. Its permanency is evidenced by the fact that, even after the final evolution of the madhhab, plurality could not be curbed: the old multiplicity of opinion that had emerged before the rise of the madhhabs conflated with the plurality that surfaced later at every juncture of Islamic history.

If legal pluralism was there to stay-a fact that the jurists never questioned-then it had to be somehow controlled in the interest of consistency and judicial process, for doctrinal uncertainty was detrimental. Which of the two, three, or four opinions available should the judge adopt in deciding cases or the jurisconsult opt for in issuing fatwas? The discourse of the jurists, in the hundreds of major works that we have at our disposal, is overwhelmingly preoccupied by this problem: which is the most authoritative opinion? No reader, even a casual one, can miss either the direct or oblique references to this difficult question. Of course, the problem was not couched in terms of plurality and pluralism, for that would have amounted to stating the obvious. Rather, the problem was expressed as one of trying to determine the most sound or most authoritative opinion, although without entirely excluding the possibility that subjectivity–as is admitted in all legal systems–might influence the decision. It is no exaggeration to maintain therefore that one of the central aims of most legal works was precisely to determine which opinion was sound and which less so, if at all. As in all legal systems, consistency and certainty are not only a desideratum but also indispensable. In short, it cannot be overstated that reducing the multiplicity to a single authoritative opinion was seen as absolutely essential for achieving the highest possible degree of both consistency and predictability. However, it must be emphasized here that plurality was not seen as a problem. To the contrary, and as has been concluded elsewhere,14 it was viewed as conducive to both legal flexibility and legal change. 

The same system that produced and maintained legal pluralism also produced the means to deal with the difficulties that this pluralism presented. Legal theory was based on the premise that the activity of discovering the law was both purely hermeneutical and totally individualistic. The allowances that were given to personal ijtihad created, within the theory itself, the realization that, epistemologically and judicially, pluralism had to be subjected to a further hermeneutical process by which plurality was reduced to a minimum. Different opinions on a single matter had to be pitted against each other in a bid to find out which of them was epistemologically the soundest or the weightiest. This elimination by comparison was in theoretical discourse termed tarjih, or preponderance, namely weighing conflicting or incongruent evidence. Here evidence should be understood as the totality of the components making up the opinion itself: the revealed text from which the legal norm was derived) its modes of transmission) the qualifications and integrity of the transmitters) and the quality of linguistic and inferential reasoning employed in formulating the opinion.

The theoretical account of tarjih represents, in general terms, the methodological terrain in which the jurists were trained to deal with all conceivable possibilities of conflict in textual evidence and in the methods of legal reasoning. Their knowledge of all the issues involved in preponderance equipped them for the world of positive law where theory met with legal practice. It is with this arsenal of legal knowledge of the theoretical principles of preponderance that the jurists tackled the problem of legal pluralism and plurality of opinion. These principles provided the epistemic and methodological starting point for the operative terminology used in the determination of substantive law.

Law treatises are replete with statements declaring certain opinions to be correct (sahih)) more correct (asahh)) widespread (mashhur)) and so on.15

These terms are emblematic of a complex juristic activity that involves a proficient handling of the fundamentals of preponderance as expounded in works of legal theory. But as an organic part ofthe environment of substantive law that includes as one of its essential components the school’! authoritative and long-established positive doctrine) the authorization of opinion was bound to take into account both the methodological and the substantive principles of the school. Thus, in realistic terms it acquired, complexity that exceeded that observed in the discourse of legal theory.

Despite (or perhaps because of) the fact that a staggering number of opinions are determined in terms of sahih or mashhur) the authors of lay books seldom bother to demonstrate for the reader the process by which an opinion was subjected to these processes of authorization. This phenomenon, I think, is not difficult to explain. Authorization usually involved a protracted discussion of textual evidence and lines of legal reasoning whose aim was often not only the justification of rules as such but also the defense of the madhhab. Most works, or at least those avail- able to us, do shy away from providing such self-indulgent detail. The Hanafi Ibn Ghanim al-Baghdadi, for instance, explains the problem in his introduction to Majma’ al-Damanat, where he states, “Except for a few cases, I have not included the lines of reasoning employed in the justification of the rules, because this book is not concerned with verification (tahqiq).16 Our duty is rather limited to showing which [opinion] is sahih and which is asahh.”17 The task of “verifying” the opinions was not only too protracted but also intellectually demanding. It is precisely this achievement of “verifying” all available opinions pertaining to one case and declaring one of them to be the strongest that gave Nawawi and Rafi’i such a glorious reputation in the Shafi’i school and Ibn Qudama the same reputation in the Hanbali school.18 This was an achievement of few during the entire history of the four schools.

In his magisterial Majmu’, Nawawi sometimes, but by no means frequently, explains the reasoning involved in tashih. Consider the following examples, the first of which pertains to the types of otherwise impermissible food that a Muslim can eat should he find himself, say, in a desert where lawful food is not to be had:

Our associates held that the impermissible foods which a person finds himself compelled to eat are of two types: intoxicating and non- intoxicating. . . . As for the non-intoxicant type, all foods are permitted for consumption as long as these do not involve the destruction of things protected under the law (itlaj ma’sum). He who finds himself compelled to eat is permitted to consume carrion, blood, swine meat, urine, and other impure substances. There is no juristic disagreement (khilaf) as to whether he is permitted to kill fighters against Islam and apostates and to eat them. There are two waj’h-opinions19 [though] concerning the married fornicator (zani muhsan),20rebels and those who refuse to pray (tarik al-salat). The more correct of the two opinions (asahh) is that he is permitted [to kill and eat them]. Imam al-Haramayn, the-author [Shirazi],21 and the majority of jurists (jumhur) conclusively affirm the rule of permissibility. [In justification of permissibility] Imam al-Haramayn maintained that this is because the prohibition [imposed on individual Muslims] to kill these is due to the power delegated to governing authority (tafwidan ila ai-sultan), so that the exercise of this power is not preempted. When a dire need to eat arises, then this prohibition ceases to hold.22

Juwayni’s reasoning here was used by Nawawi to achieve two purposes: the first to present Juwayni’s own reason for adopting this wajh-opinion and the second to use the same reasoning to show why Nawawi himself thought this opinion to be the more correct of the two. Thus, the absolute legal power of the sultan to execute married fornicators, rebels,and prayer deserters is preempted by the private individual’s need to eat, should he or she face starvation.

Note here that Nawawi gives only the line of reasoning underlying the opinion that he considers to be more correct of the two despite the fact that the other wajh-opinion is admitted as sahih. This was the genera practice of authors, a practice that has an important implication: if another jurist thought the second, sahih opinion to be in effect superior to the on identified by Nawawi as the asahh, then it was the responsibility of the jurist to retrieve from the authoritative sources the line of reasoning sustaining that opinion and to show how it outweighed the arguments of Juwayni and of others. In fact, this was the invariable practice since nowhere does one encounter a reprimand or a complaint that the author failed to present the lines of reasoning in justification of what he thought to be the less authoritative or correct opinion(s).

There was no need to present the evidence of non-sahih opinions because they were by definition negligible–not worth, as it were, the effort.23 These opinions became known as fasid (void), da’if(weak), shadha (irregular), or gharib (unknown), terms that never acquired any fixed meaning and remained largely interchangeable.24 No particular value was attached to any of them, for just as in the study of hadith, a da’if report was dismissed out of hand. A premium, on the other hand, was placed on the category of the sahih and its cognate, the asahh. At first, it might seem self-evident that the asahh is by definition superior to the sahih. But that is not the case. Claiming sahih status for an opinion necessarily implies that the competing opinion or opinions are not sahih but rather da’if, fasid, shadhdh, or gharib.25 But declaring an opinion asahh means that the competing opinions are sahih, no less. Thus, in two cases, one having sahih opinion and the other an asahh opinion, the former would be considered, in terms of authoritative status, superior to the latter since the sahih had been taken a step further in declaring the competing opinion(s) weak or irregular, whereas the asahh had not been. In other words, the sahih ipso facto marginalizes the competing opinions, whereas the asahh does not, this having the effect that the competing opinion(s) in the case of the asahh continue(s) to retain the status of sahih. The practical implication of this epistemic gradation is that it was possible for the opinions that had competed with the asahh to be used as a basis for ifta’, or court decisions, whereas those opinions which had competed with the sahih could fio longer serve any purpose once the sahih had been identified (that is, unless amujtahid or a capable jurist were to reassess one of these weak opinions and vindicate it as being more sound than that which had been declared earlier as sahih; this, in fact, was one means by which legal change took place).26

This epistemic evaluation of tashih was usually helpful in assessing opinions between and among a number of jurists belonging to one school. At times, however, it was necessary to evaluate opinions within the doctrinal corpus of a single jurist, in which case the sahih and the asahh would acquire different values. If a case has only two opinions and the jurist declares one to be sahih and the other asahh, then the latter is obviously the more preponderant one. But if the case has three or more opinions, then the principles of evaluation as applied to the larger school doctrine would apply here too. It is to be noted, however, that these principles of evaluation were generally, but by no means universally, accepted. Disagreements about the comparative epistemic value of tashih ortashhir (the rendering of an opinion as mashhur) persisted and were never resolved, a fact abundantly attested to by the informative account penned by the last great Hanafi jurist Ibn Abidin (d. 1252/1836).27

The more important point to be made here is the basis of which opinions were authorized. In some cases, the basis was purely hermeneutical in the sense that doctrinal considerations of established principles dictated a certain extension of these principles. In other cases, it was based on considerations of customary practices (ada) and of social need and necessity. In fact, the latter consideration is cited as grounds (or abandoning an otherwise sahih opinion in favor of another that would become on these very grounds the sahih. The Hanafi jurist Ibn Abidin argues this much: “Not every sahih [opinion] may be used as a basis for issuing fatwas because another opinion may be adopted out of necessity (darura) or due to its being more agreeable to changing times and similar considerations. This latter opinion, which is designated as fit for ifta’ (fi-hi laf al-fatwa),includes two things, one of which is its suitability for issuing fatwas, the other is its correctness(sihhatihi), because using it as the basis of ifta’ is in itself [an act] by which it is corrected (tashih la-hu).”28 Thesl notions of tashih did not remain a matter of theory or an unaccomplishec ideal. In his al-Fatawa al-Khayriyya, Khayr al-Din al-Ramli offers a substantial collection of questions which were addressed to him and which he answered with opinions that had been corrected (sahhahahu)by the leading Hanafi scholars on the basis of considerations having to do with changing requirements of the age and of society.29

Needless to say, the basis of tashih may also be any of the considerations articulated in the theory of preponderance. Illustrations of such considerations, especially those related to Sunnaic textual evidence, abound.30 Obviously, the purposes of authorization through tashih, tashhir, anc other concepts fundamentally differ from those of defending the madhhab, but the processes involved in both activities are very much the same they are offshoots of tarjih or adaptations thereof.

Preponderance, as we have seen, depends in part on corroboration by other members of a class, which is to say that it is subject to inductive corroboration by an aggregate body of the same type of evidence. Thus, a tradition transmitted by a certain number of channels and transmitters was considered superior to another transmitted by fewer channels and transmitters. Similarly, a ratio legis attested by more than one text was deemed to outweigh another supported by a single text. Consensus itself: epistemologically the most powerful sanctioning authority, depended on universal corroboration. Thus, what we have called inductive corroboration no doubt constituted a fundamental feature of legal thinking, both in the theory of preponderance and elsewhere in the law.31

It is perhaps with this all-important notion in mind that we might appreciate the controversy that found its way into the discourse on the sahih Taj al-Din al-Subki reports that in his magisterial workal-Muharrar Rafi’i was rumoured to have determined opinions to be sahih on the basis of what the majority of leading Shafi’i considered to fall into this category,32 this majority being determined by an inductive survey of the opinions of individual jurists. Ramli reiterated this perception of Rafi’i’ endeavor and added that he did so because maintaining the authority of school doctrine is tantamount to transmitting it, which is to say that authority is a devolving tradition that is continually generated by a collectivity of individual transmissions. He immediately adds, however, that preponderance by number is particularly useful when two (or more) opinions are of the same weight.33

Be that as it may, tashih on the basis of number or majority appears to have become a standard, especially, if not exclusively, when all other considerations seemed equal. Ibn al-Salah maintained that if the jurist cannot determine which opinion is the sahih because the evidence and reasoning in all competing opinions under investigation appear to him to be of equal strength, he must nonetheless decide which is the sahih and preponderant opinion according to three considerations in descending order of importance: superior number or majority, knowledge, and piety.34 Thus, an opinion would be considered sahih if more jurists considered it to be such than they did another. The tashih of a highly learned jurist outweighs that of a less knowledgeable one and that of a pious jurist superior to another of a less pious one. In the same vein, an opinion held to be sahih by a number of jurists would be considered superior to another held as such by a single jurist, however learned he may be. The same preference is given to a learned jurist over a pious one. Thus, tashih operates both within and between these categories.

That number is important should no way be surprising. The entire enterprise and concept of the madhhab is based on group affiliation to a set of doctrines, considered to have an authoritative core. Reducing plurality through number or any other means was certainly a desideratum. It is therefore perfectly reasonable to find the Maliki Hattab declaring, like many others, that the descending order of number, knowledge, and piety is a denominator common to all four schools.35

Tashih and tashhir (the latter having particular importance in the Maliki school) did not alone bear the burden of authorization. The four schools resorted to other means, each of which was labeled with what we have called an operative term. Leaving aside any consideration of their order of importance, these terms were as follows: rajih, zahir, awjah, ashbah, sawab, madhhab, mafti bi-hi, ma’mul bi-hi, and mukhtar. Together with the sahih, the mashhur, and their derivatives, these constituted the backbone of the operative discourse of substantive law. Of these, two are most relevant to my argument here, namely, the madhhab and mafti bi-hi.

The term “madhhab” acquired different meanings throughout Islamic history. Its earliest use was merely to signify the opinion or opinions of a jurist, such as in the pronouncement that the madhhab of so and so in a particular case is such and such.36 Later the term acquired a more technical sense. During and after the formation of the schools, it was used to refer to the totality of thecorpus juris belonging to a leading mujtahid, be he a founder of a school or not. In this formative period, the term also meant the doctrine adopted by a founder and by those of his followers, this doctrine being considered cumulative and accretive. Concomitant with this, if not somewhat earlier, appeared the notion of madhhab as a corporate entity in the sense of an integral school to which individual jurists considered themselves to belong. This was the personal meaning of the madhhab, in contrast to its purely doctrinal meaning, which was expressed as loyalty to a general body ofdoctrine. 

There was at least one other important sense of the term that deserves our attention here, namely, the individual opinion, accepted as the most authoritative in the collective doctrinal corpus of the school. In order to distinguish it from the other meanings of the word “madhhab,” we will assign to it the compound expression “madhhab-opinion.” 

In this doctrinal sense, the term “madhhab” meant the opinion adopted as the most authoritative in the school.. Unlike the sahih and the mashhur, there were no particular or fixed criteria for determining what the madhhab-opinion was since it might be based on general acceptance on the grounds of tashih, tashhir, or some other basis. Yet it was possible that the madhhab-opinion could be different, say, from a sahih-opinion.37 However, the most fundamental feature of the madhhab-opinion remained its general acceptance as the most authoritative in the school, including its widespread practice and application in courts and fatwas. This type of opinion is to be distinguished from the mashhur, in that the latter is deemed widespread among a majority, but not the totality, of jurists belonging to a school. This explains why the madhhab-opinion could not be as a rule, outweighed by another, competing opinion. A distinctive feature of the madhhab-opinion was its status as the normative opinion in legal application and practice. It is precisely here that an organic connection between fatwa and madhhab-opinion was forged-the fatwa being a reflection of litigation and the legal concerns of mundane social life.38 Hattab’s commentary on the matter eloquently speaks of this connection: the term “al-madhhab,” he remarked, was used by the more recent jurists (muta’akhkhirun) of all the schools to refer to the opinion issued in fatwas. He also remarked, conversely, that any fatwa issued on the basis of something other than the madhhab-opinion ought not to be taken into account (la yakun la-ha’i’tibar).39 In these pronouncements of Hattab, two important matters must be noted: first, that the connection between fatwa practice and the term “madhhab (-opinion)” is one that appeared among the muta’akhkhirun, not among themutaqaddimun, that is, the early jurists who flourished between the second/eighth and fourth/tenth centuries, a period in which the schools were formed,40 and second, that the fatwa practice defines the general body of madhhab-opinion in any given school.

But how did the jurist know which opinion constituted the standard basis of fatwas or the madhhab-opinion? This became one of the most urgent questions, constituting a serious challenge to later jurists for whom the determination of the most authoritative school doctrine was essential. Nawawi provides an answer:

You ought to know that law books of the school contain significant disagreements among the associates, so much so that the reader cannot be confident that a certain author’s opinion expresses the madhhab-opinion until he, the reader, deciphers the majority of the school’s well-known law books. . . . This is why (in my book) I do not exclude the mention of any of Shafi’i’s opinions, of the wajh-opinions,41 or other opinions even if they happen to be weak or insignificant. . . . In addition, I also mention that which is preponderant, and show the weakness of that which is weak. . . and stress the error of him who held it, even though he may have been a distinguished jurist (min al-akabir). . . . I also take special care in perusing the law books of the early and more recent associates down to my own time, including the comprehensive works (mabsutat), the abridgements (mukhtasarat), and the recensions of the school founder’s doctrine, Shafi’i. . . . I have also read the fatwas of the associates and their various writings on legal theory, biographies, hadith-annotation, as well as other works. . . . You should not be alarmed when at times I mention many jurists who held an opinion different from that of the majority or from the mashhur, etc., for if I omit the names of those constituting the majority it is because I do not wish to prolong my discussion since they are too many to enumerate.42

Nawawi did not live long enough to conclude his ambitious project, having completed only about a third of it by the time of his death. Yet for him to know what was the madhhab-opinion was in each case, he felt compelled to investigate the great majority of what he, saw as the most important early and later works. Hidden between the lines of this passage is the fundamental assumption that in order to identify the basis of fatwa practice, one must know what the generally accepted doctrine was. Only an intimate knowledge of the contents of the legal works written throughout the centuries could have revealed which opinions remained in circulation— that is, in practice-and which had become obsolete. It is precisely this knowledge that became a desideratum, and this is why the subject of khilaf was so important. The study of khilaf was the means by which the jurist came to know what the madhhab-opinions were. Law students, for  instance, are often reported to have studied law, madhhaban wa-khilafan under a particular teacher. The Maliki Ibn abdal-Barr emphatically states that for one to be called a jurist (faqih), he must be adept at the science of khilaf, for this was par excellence the means by which the jurist could determine which opinions represented the authoritative doctrines of the madhhab.43

Although the determination of the madhhab-opinion was more at inductive survey than a hermeneutical-epistemological engagement, it nonetheless entailed some difficulties, not unlike those the jurists faced iT deciding what the sahih and the mashhur opinions were. In his notable effort, Nawawi himself did rather well on this score, which explains his prestige and authority in the Shafi’i school. Nonetheless, he and Rafi’i are sail to have erred in about fifty cases, claiming them to be madhhab-opinion when they were thought by many not to be so.44 The following case from the Fatawa ofTaqi al-Din al-Subki further illustrates the uncertainty involved:

Two men die, one owing a debt to the other. Each leaves minor children behind. The guardian of the minors, whose father was the lender, establishes against the debtor’s children the outstanding debt in a court of law. Should the execution of the judgement (in favour of the first party) be suspended until the defendants (viz., the debtor’s children) reach majority, or should the guardian take the oath (and have the debt be paid back. . .. The madhhab-opinion is the latter. However, he who investigates the matter might think that the madhhab-opinion is that the judgment should await implementation (till the children reach majority), but this may lead to the loss of their rights. By the time the debtors children attain majority, the money may well have vanished at the hands of the debtor’s heirs.45

Note here the ambiguity as to which of the two is the madhhab-opinion. Subki identifies immediate execution of the judgment as the madhhab-opinion, while at the same time he also admits that anyone who investigates the matter will find that the opposing opinion has the same status. Subki does not even go so far as to claim that the one who espouses the latter is mistaken.

Be that as it may, the term “madhhab,” when referring to an individual opinion, was used to determine what the law on a particular case was. And the criterion for acquiring this status was general acceptance and the fact of its being standard practice in the school. The madhhab-opinions therefore gained authoritative status because they were used predominantly as the basis of issuing fatwas. The Shafi’i Ramli declares that the jurist’s most important task is to determine which opinions in his school are regularly applied (mutadawala) in the practice of ifta’ since this will determine the authoritative madhhab-opinions.46 In his widely known work Multaqa al-Abhur, the Hanafi Halabi also considered his chief task to be the determination of which opinions were the most authoritative. It turns out that next to the sahih and the asahh, the most weighty opinions were those “chosen for fatwas” (al-mukhtar lil-Jatwa).47 In the Maliki school, the authoritative category of the mashhur was in part determined by the common practice of ifta’. Hattab maintains that tashhir is determined, among other things, by the mafti bi-hi, the opinions predominantly adopted by the jurisconsults.48 At the risk of repetition, it is important at this point to recall Ibn ‘Abidin’s statement that reflected the centuries-old practice of his school: “Not every sahih [opinion] may be used as a basis for issuing fatwas because another opinion may be adopted out of necessity(darura) or due to its being more agreeable to changing times and the likes of such considerations. This latter opinion, which is designated as fit for ifta’ (It-hi laft al-Jatwa), includes two things, one of which is its suitability for issuing fatwas, the other its correctness (sihhatihi), because using it as the basis of ifta’ is in itself [an act] by which it is corrected (tashih la-hu).”49

Similarly, the rules that were commonly applied, that is, the ma’mul bi-hi, acquired paramount importance as the authoritative doctrine of the school. Like the mafti bi-hi, the ma’mul bi-hi formed the basis of tashhir in the Maliki school,50 the assumption being that the authoritative opinions of Malik, Ibn al-Qasim, and those of the later mujtahids make up the foundations of dominant judicial practice. In his commentary on Nawawi’s Minhaj, the Shafi’i Ramli purportedly included in his work only those opinions that were in predominant use, and whenever citing weaker opinions, he alerted the reader to this fact by distinguishing between the two types.51 In the Hanafi school, the madhhab-opinion was organically linked both to fatwa and to ‘amal (practice). No fatwa was to be considered valid or at least authoritative unless it was backed by the judicial practice of the community (‘alayhi ‘amal al-umma).52 Ibn Hajar al-Haytami summed up the entire issue when he said that ” ‘alayhi al-‘amaln was a tarjih formula used to determine which opinions are correct and authoritative.53 Conversely, an opinion that is not resorted to in judicial practice will become obsolete, and therefore negligible, if not altogether needless. Speaking of authorial practices, Tufi argues that the author-jurist must not, as a rule, record those opinions that are not relevant to practice, for “they are needless.”54

Since practice varied from one region to another, an opinion thought to have gained wide circulation in one region might not have been regarded as such in another, an added factor in the disagreement over which opinion was deemed authoritative in the school and which not. The Maliki discourse on this matter perhaps best illustrates the difficulties involved. Ibn Farhun states that the commonly used formula “This is the prevailing practice in this matter” (al-ladhi lara al- ‘amal hi-hi fi hadhihi al-mas’ala) cannot be generalized to include all domains in which a particular school prevailed. Rather, such a formula would have been applicable only to that region or locale in which the practice had prevailed. This explains, he maintains, why the jurists attempted to restrict the applicability of the formula by adding to it expressions like “in such and such region” (fi balad kadha). Otherwise, if they did not qualify the formula, then the opinion would be said to be universally applicable. The opinion’s purported universality was in itself an argument in favor of its preponderance as the authoritative opinion of the school no matter where the opinion might be appealed to. Ibn Farhun also asserts that the principle of authorization by dominant practice is accepted by the Shafi’i as well.55 To the Shafi’i, he might as well have added the Hanafi, who, as we have seen and as we will further see in the next chapter, placed great stress on dominant practice as a legitimizing factor. The Hanbali, on the other hand, appear to have laid slightly less stress on it than any of the other schools, if we are to judge by what seems to have been a lower statistical frequency of explicit reference to practice in their works. But this is by no means correct in all cases. In his Muntaha al-Iradat, for instance, Ibn al-Najjar considers practice (alayhi al-amal)to be a preponderating I factor, standing on a par with tashih and tashhir.56

The foregoing discussion has shown that operative terminology evolved as a response to the plurality and thus indeterminacy of legal rules. All operative terms had in common a single purpose, namely, the determination of the authoritative opinion on any given case, a determination that amounted in effect to reducing plurality to a single opinion. Epistemologically, this determination and the varied vocabulary that expressed it stood as the binary opposite of ijtihad. The latter created multiplicity, while the former attempted to suppress or at least minimize it. Ijtihad, then, was causally connected with operative terminology, for it stood as its progenitor, historically, hermeneutically, and epistemologically.

A salient feature of operative terminology that evolved as a response to the indeterminacy of legal rules is its own indeterminacy. Yet juristic disagreement was indeed a blessing, a rahma, as the jurists might have said. The very diversity of opinion that resulted from this failure allowed Islamic law to keep up with change, a theme that I have discussed in de- tail elsewhere.57 (It is worth noting in passing that recent findings58 to the effect that the mechanisms of change were integral to the very structure of Islamic law raise the question of why the so-called legal reforms were so massive, drastic, and destructive of the established legal structures.)

III

Thus, the traditional jurists operated within a self-sufficient system in which practice, hermeneutics, and positive legal doctrine were conjoined to produce the legal culture, which largely defined their world. Practice stood in a dialectical relationship with doctrine, informing it and by which it was informed. Practice also formed an integral part of interpretation and was by no means a mere tail-end of a process, a funnel through which justice was disposed. The legal practitioners and jurists constituted likewise an epistemic community, which was systematically engaged on a hermeneutical level. Their practice was both pragmatic and discursive and was the direct result of a legal tradition that bound them with the authoritative demands of doctrine and continuity. Their present was primarily the last moment pf a historical tradition, integral to and inseparable from it. When a qadi or a mufti adjudicated a case or a question, his engagement epitomized at once horizontal and vertical fields of synchronic and historic legal activity: it brought into play 1) the hermeneutical presuppositions of legal theory and methodology and the exegetical arsenal associated with it throughout centuries of refinement and evolution; 2) the principles of positive law,59 which had been constructed as part of the founders’ authority, which in turn was seen as the founding principle of the school as a doctrinal entity;60 3) the aggregate but diverse body of knowledge generated by the authoritative figures of the school in the interpretation of these principles; and 4) the reception of these interpretations by the community of jurists within the school, a reception determined by the extent of the interpretive applications in the social, mundane order.

The coming into play of these diachronic and synchronic elements was integrated into other parts of juristic and pedagogical experiences: The qadi or the mufti (or any legal professional for that matter) engaged himself, at one and the same time, in a tradition in which 1) he acquired legal education through the method of “closed texts,” which, together with the ijaza (license) system, constituted a fundamentally different sort of training from that which the modern law school offered; 2) he was apprenticed, during and after his graduate study, in shari’a courts where doc- trine met practice and where the imposing intellectualism of the law collided, but was always synthesized, with the reality of society and judicial practice; 3) the religious ethic was the sole dominating force and the final arbiter of legal legitimacy; 4) the entire juristic (doctrinal) and judicial enterprise was thoroughly supported by financially and administratively self-sufficient and independent institutions; and 5) the authority of the jurist was individualistic and exclusively personal (ijtihadic).

None of these elements continues to exist in the modern legal systems of Muslim countries, and what remains of the traditional system, as we have already said, are remnants of mutilated doctrine patched up in a disparate and methodologically deficient manner. Even if we submit that these remnants are faithful to the Islamic ethos as it stands nowadays- which we do not-they are, by virtue of their displacement and organic disconnection from the erstwhile dynamic and vibrant school tradition, incapable of further development and change, at least not so in a systematic and coherent manner; on the one hand, they have lost their methodological, hermeneutical, practice-based, and institutional connection with the Islamic legal tradition. If the name furu’ (branches) is to be taken in any real sense, as it well may be, then their stem, through which they are literally nourished, no longer survives. On the other hand, they have been systematically alienated from the modernist legal system, and their disconnection from it is equally obvious.

To put our argument more plainly, in order to rejuvenate the entire traditional system-in its founding principles, axioms, hermeneutics, and financial, educational, and madhhab institutions-it would be required that Islamic law be more than a dead “branch.” And this, in light of the intractable and well-nigh irreversible modernity and its imperatives, is a manifest impossibility.61 Since traditional shari’a can surely be said to have gone without return, the question that poses itself therefore is, Can a form of Islamic law be created from within or without the ruins of the old system?

Before ,attempting an answer to this intricate question, an explanation must be provided as to the assumption underlying this question, namely, the posited necessity for today’s Muslims to live by a religious law. Since the middle of the nineteenth century, Muslim societies have embarked on a course of identity crisis caused, among other things, by the disappearance from their daily lives of the religious structures that sustained them for over a millennium. One of these structures, and a central one at that, was Islamic law as a religious and pragmatic system. To say that this law was “the core and kernel” of Islamic life is indeed to state the obvious. Thus, for these societies to regain their cultural and religious identities, a form of Islamic law must obtain-and this for two good reasons. First, historically, Islamic societies have lived by a religious law for over twelve centuries, and what made their identities what they have always been was their possession of a particular legal phenomenon. Islam has always been a nomocracy. Indeed, Islamic societies and polities have throughout these centuries exemplified the highest form of what a nomocracy can be. Second, it is at present inconceivable that Muslims can or will want to transform their Weltanschauung into a Western model of rationality and secularism. They view the modernity of the West as incompatible with their vision of morality and ethics, as having miserably failed in: maintaining the social fabric and in creating a coherent worldview or a meaningful cosmology. The truth claims of Western reason and modernity seem diametrically oppositional and extremely antithetical to the Islamic ethos. The “return to Islam” that we have been witnessing since the Iranian Revolution is partly caused by this disenchantment with Western culture and its products. The solution for Muslims seems to lie in an institutional and normative revival of Islam. It would appear that the legality and legal-mindedness that governed Muslim life for so many centuries is again required to surface in order to redress the havoc that the problems of cultural and religious crises have wreaked.

Joseph Schacht once argued that the problems that modern Muslim: face are parallel to those that prevailed during the early formation of Islamic law, namely, the first two Islamic centuries:

[T]he subject matter of Islamic law is to a great extent not originally Islamic, let alone Koranic; it became Islamic law only through having the categories of Islamic jurisprudence imposed on it. Islamic jurisprudence derived its fundamental attitude from the Koran, elaborated and developed it, and thereby created an integrating principle which made of an agglomerate of various elements a unique phenomenonsui generis. During the first two centuries of Islam, Islamic jurisprudence created a central core of ideas and institutions which went far beyond the mere contents and even the implications of the Koran, but which the Muslims considered and have continued to consider specifically Islamic. . . . This assimilating power of the Islamic core over foreign elements anticipated the assimilating power and spiritual ascendancy of Islamic law, as a religious ideal, over the practice, after the two had irremediably separated.62

Schacht’s views represent a major voice in the discourse that was generated-and is still being generated-by the colonizing cultures. In the spirit of this discourse, he persistently upheld the idea that a fundament: gap had always existed between doctrine and practice in Islam63 and that if Muslims could live with this gap for so many centuries, then why should they not be able to do so now. In other words, Schacht believes that modern Muslims can construct a new jurisprudence and law, but they must continue to live with the fact that much of what they “assimilate” will always ways go beyond the dictates of the Qur’an. Just as they initially assimilated Jewish, Roman, and other legal institutions and concepts that had dominated the ancient Near East, they can now do the same with Western norms and institutions.

Be that as it may, Schacht’s position fails to appreciate the detail of the two historical situations that he sees as parallel. First, when the totally Muslims embarked on constructing a legal system and jurisprudence. they-of course unknowingly-were unencumbered by, and in part largely free from, restrictive and constricting historical precedents or a binding tradition. This is not the case at present. Their movement therefore is detained, if not also limited, by the fact that departures from traditional, religious doctrine must be constantly justified (justification here is taken to be no less than the art of persuasion on which hinges the success or failure of a proposed enterprise). The doctrines of Usul al-fiqh constitute a powerful grip over the minds of Muslims today, for they are intimately connected with the holy texts. No refashioning of doctrine or jurisprudence can even take off without due considerations of the imperatives that the usul theory dictates. Second, when the early Muslims embarked on constructing a law and a legal system, they did so from a position of international hegemonic power, a fact that allowed them to speak and act with confidence. Whatever they appropriated from other cultures became theirs, especially in light of the fundamental transformations to which they subjected borrowed concepts and institutions. The present situation is significantly different: modernity is a Western product, a fact poignantly obvious to everyone. On both popular and state levels, today’s Muslims perceive themselves, and rightly so, as colonized and dominated subjects, and whatever they adopt of Western ideas and institutions is not, and will never be, theirs. The balance of power, which determines the legitimacy of cultural and other appropriations, is simply not in their favor. Third, and issuing from our foregoing consideration, the balance of legal power does not lie in the hands of the religious-legal specialists who were exclusively, individually and and collectively, responsible for constructing early Islamic jurisprudence and law. The modern state’s appropriation of legal powers changes the old equation and, as we have seen, totally marginalizes even the potential contributions of the individual shari’a-minded jurists (assuming that these now exist). And as long as the modern Muslim states remain vassal-like entities in relation to the Western hegemonic powers, their dedication to the Islamic imperatives will always remain vacuous, especially in light of the close control that the West, especially the United States, has been exercising over politics and the religious movements in the Muslim world.

IV

If the modern reality of Muslims is unprecedented, then what is the solution? First of all, the traditional theory of usul al-fiqh is no longer sufficient to deal with the exigencies of modern life, even if we assume-against at odds-that a professional legal class, qualified to harness it, can be resurrected. This theory is essentially literalist, paying heed to the lexical and technical meanings of the revealed texts. In some cases, central to society and economy, no amount of interpretation can change the dictates of certain revealed texts. This theory therefore has no chance of any revival (much less success) unless a necessary and sufficient condition is met, : condition some recent Muslim intellectuals are arguing for, namely, that abandonment of all things, material and otherwise, that conflict or contradict with the dictates of this theory. In other words, on their view, much of modernity must be thrown to the wastebasket, for it is not only incongruent with Islam but also harmful in the first place. This writer, however, beg to differ with this assessment. Modernity, as intrinsically reprehensible as it may be, is a reality that cannot be pushed aside or in any manner neutralized from the midst of Muslim life. Modernity is not only technology and science, Hollywood, McDonald’s, and Calvin Klein jeans but also: psychology, an ethic, a set of values, an epistemology, and, in short, a state of mind and a way of life. Modernity is here to stay, at least for a long time to come. The realistic solution, therefore, is to alter what can be altered Iegal theory has in any case been on the back shelf for a century and a half and it is far more realistic and practical to remold it than to sweep modernity-with all its powerful values, institutions, and epistemologies- aside.

If traditional legal theory cannot provide a solution, then what can? Elsewhere, I have discussed in some detail the reformists’ proposals toward fashioning a new theory of law and have concluded that no alternative thus far seems to meet the requirements of the time.64 What I have labeled the “Religious Utilitarianists” fail to produce a cogent legal theory or methodology and thus offer nothing more than shallow juristic devices that at best attempt to justify the existing arbitrariness of state Iegislation. Their refashioned concepts of necessity (darura) and public interest (maslaha, istislah) , which are inspired by traditional methodology are taken so far as to obliterate the very system from which they themselves derive. In addition to the incurable subjectivity into which these proposals fall, they fail to provide any tools that permit a coherent, logical, or consistent development of the law. Their utilitarianist positions are barcly appropriate solutions for the present, and the proposals they otter can by no means function as dynamic methodologies, organically tied to the demands of an evolving legal sociology.

The other group of reformers we have identified are the “Religious Liberalists” who offer a diversity of theories that have at their core promising nonliteralist methodologies.65 The proposals of Fazlur Rahman and Muhammad Shahrur represent two major examples of this group. Their merit lies in the fact that they provide methodologies that maintain a coherent hermeneutical link with the religious texts but, at the same time, manage to escape the traditional literalist approach, which, in light of the drastic changes brought to the fore by modernity, is highly restrictive and leads to tortuous lines of legal reasoning. However, associated with these proposals there remain three main problems. First, none of them has been sufficiently elaborated as to create a comprehensive and structured theory, matching in caliber its traditional usul counterpart. What has been offerred thus far is no more than an outline, so to speak. Second, these proposals remain circumscribed, having little appeal to Muslims at large. Rahman’s ideas, for instance, were and remain a marginal voice, and Shahrur has been the subject of much negative controversy. Personally, I have yet to meet one Muslim intellectual who has adopted a favorable attitude toward him. In fact, the book market is now replete with works and pamphlets refuting or criticizing his intelligent contributions. Third, even if these proposals were received with great favor by the general Muslim public, which is clearly not the case, they have so far had no effect whatsoever on the centers of power-the state officials and political rulers who have turned a deaf ear to them as they did Virtually to all others. And it is unlikely that this situation will soon change.

What we are witnessing therefore is no less than a formidable impasse. The cries of Muslim intellectuals, however promising their ideas mayor may not be, are still and will remain marginalized. At the same time, the interest of the Muslim states, with their authoritarian and autocratic regimes, is little served by the adoption of a full-scale program of Islamization. The relatively very few regimes that claim themselves to be Islamic (with the exception of Saudi Arabia and Iran) take this stance as a political device and strategy. The promulgation of the hudud penal law hardly constitutes a genuine restoration of the shari’a and fails to mask the political expediency underlying the seemingly legal initiative. As long as the Muslim intellectuals are estranged from state apparatus and as long as the present regimes continue to hold a firm grip over power, there can be no hope for a true Islamic revival.

Yet it is only the state that can bring about a revival of Islamic law, but not without the full participation of Muslim intelligentsia and, more important, not while the present regimes remain in power. The Iranian experience affords an eloquent example of the combination of political and legal governing, but then the Shi’ite religious elite differs from its Sunnite counterpart in fundamentally structural ways. The solution for the Sunnite countries, therefore, is for the new Muslim state to incorporate the religious intelligentsia into its ranks. The custody of Islamic law, history has shown, must re- side with a learned hierarchy largely dissociated from political power: the independence of law from the concerns of politics is as much an Islamic phenomenon as it is American or European. In fact, this independence has a much longer history in Islam. The state must re-create the necessary conditions for a modern version of Islamic law to be constructed and to evolve largely on its own. It must financially sustain religious institutions, especially shari’a colleges; it must install the religious hierarchy in the respective social and political hierarchy so as to enable the legal profession to sense and reflect societal concerns on all levels; it must be able to give this legal profession a free range in determining what the law is; and finally it must respect its verdict. But none of this can be attained without a genuinely Islamic polity.

Theory, however, is one thing, reality another. A most central and vexing problem remains, and the solution to it seems thus far untenable. The question that today’s Muslims must answer is to what extent they are willing to subscribe to modernity and to adopt its products. To reject it completely is obviously out of the question: modernity, we have said, is not merely a material phenomenon but primarily one that effected a systematic restructuring of psychology and epistemology, among many other things. Accordingly, if they were to adopt of it what suits them, what is to be adopted? If commercial, corporate, and other business laws are to be adopted, as they have and as they must, can Muslims do so while escaping the snares of usurious interest?66 If they are to join the other nations in signing human rights charters and conventions, as they have, can they, or are they willing to, enact religious laws that grant their religious minorities an equal status? If the education of women has become an essential feature of their society, can the religious law forge for the Muslim woman a commensurate status compatible with her new role in society? If this status were to be accorded, can this law, while maintaining its intellectual and religious integrity, deal with the implications and consequences of this new role? And if all this were to take place, how are the revealed texts to be interpreted?

Notes

  • Salih Ganim Sadlan, Wujub Tatbiq al-Shari’a al-Islamiyya (1404; reprint, Riyadh: Idarat al-Thaqafa wal-Nashr bi-Jami’at Muhammad b. Sa’ud, 1984).
  • See especially the essay by Muhammad Salih ‘Uthman, Wujub Tatbiq ai-Shari ‘a al-Islamiyya, 143-82, especially 176.
  • See Mustafa al-Zarqa, Wujub Tatbiq al-Shari’a al-Islamiyya, 227.
  • Paul Koschaker, Europa und das romische Recht (Munich: C. H. Becksche Verlagsbuchhandlung, 1966), 183.
    1. Madeline C. Zilfi, “The Ilmiye Registers and the Ottoman Medrese System Prior to the Tanzimat,” in Contribution a l’histoire economique et sociale de l’Empire ottoman (Leuvin: Editions Peeters, 1993), 309-27. 
    2. See, for example, NathanJ. Brown, The Rule of Law in the Arab World (Cambridge: Cambridge University Press, 1997),26-29, 33-40. However, the author’s view that “the legal reforms of the late nineteenth and early twentieth centuries can- not be seen as an external imposition” (49) is entirely unwarranted. It is based on fragmented evidence and is inconsistent with the indisputable facts of history; including those rehearsed by the author himself (see, for example, 33-40). It also grossly ignores central facts about Islamic legal history, the nature of colonialist ventures, and the pervasive effects of modernity. Furthermore, even if we go by Brown’s partial and superficial explanation that the adoption of European law was the Arab nationalists’ choice and means of “resisting direct European penetration,” it still is the colonialist enterprise that imposed this option on the nationalists and that, wit- tingly or not, created severe legal ruptures in the Muslim world. The crux of Brown’s explanation is the underlying assumption, adopted by a large number of Western scholars, that modernity and modernization are universal phenomena and that it is natural and expected that everyone in the world should want to adopt them. This eccentric assumption has been seriously challenged by Western social anthropologists, critical theorists, as well as others, but our field, instead of pioneering these re- assessments, still labors with an archaic nineteenth-century mentality.
    3. Joseph Schacht, An Introduction to Islamic Law (Oxford: Clarendon Press, 1964), 104.
  • Cited in H. Liebesny, The Law of the Near and Middle East: Readings, Cases and Materials (Albany: State University of New York Press, 1975), 67-68.
  • Namely, those principles that were elaborated in legal theory (usul al-fiqh) and those that governed the hermeneutical activity of taqlid in substantive law (also known as usul). Being fundamentally different from each other, these two types of principles must not be confused with each other. On the function of taqlid, see W. Hallaq, Authority, Continuity and Change in Islamic Law (Cambridge: Cambridge University Press, 2001), chap. 4.
  • On the construction of the Imam’s authority, see Hallaq, Authority, 24 ff. 
  • Abu Ishaq Ibrahim aI-Shirazi, Sharh al-Luma’, ed. Abd aI-Majid Turki, 2 vols. (Beirut: Dar al-Gharb al-Islami, 1988), 2:1043-45; Ahmad b. Ali Ibn Barhan, al-Wusul ila al-Usul, ed. Abd aI-Hamid Abu Zunayd, 2 vols. (Riyad: Maktabat al-Ma’ari� 1404/1984), 2:341-51.
  • Muhammad b. Idris al-Shafi’i, al-Risala, ed. Ahmad Muhammad Shakir (Cairo: Mustafa Baba al-Halabi, 1969),560-600; Norman Calder, “Ikhtilaf and .ljma in Shafi’i’s Risala,”Studia Islamica 58 (1984): 55-81.
  • Abu ‘Umar Yusuf Ibn Abd aI-Barr, Jami’ Bayan al-‘IIm wa-Fadlihi, 2 vols. (Cairo: Idarat al-Tiba’a al-Muniriyya, n.d.), 2:45 ff.; G. Makdisi, The Rise of Colleges (Edinburgh: Edinburgh University Press, 1981), 107-11.
  • Hallaq, Authority, 166 ff., 236 ff.
  • On the non-sahih-opinions, see note 24.
  • Verification is the activity of the “verifiers” (muhaqqiqun), scholars who establish the solution to problems by means of original proof and reasoning. See Muhammad b. Ali al-Tahanawi, Kashshaflstilahat al-Funun, 2 vols. (Calcutta: W. N. Leeds’ Press, 1862),2:336 (s.v. tahqiq); W. B. Hallaq, Ibn Taymiyya against the Greek Logicians (Oxford: Clarendon Press, 1993), 12 n. 2.
  • Ibn Ghanim Muhammad aI-Baghdadi, Majma’ al-Damanat (Cairo: al-Matba’a al-Khayriyya, 1308/1890), 3.
  • In the Hanafi school, Marghinani, among others, acquired a similar status. In Malikism, it was Ibn Rushd, Mazari, and Ibn Buzayza, although in his Mukhtasar, Khalil was to bring together the fruits of these and other jurists’ efforts.
  • Opinions formulated by ashab al-wujuh or ashab al-takhrij. See; Hallaq, Authority, 43 ff.
  • Since, unlike the unmarried fornicator whose punishment falls short of the death penalty, the married fornicator receives the full extent of this punishment. See Sharaf aI-Din Muhyi aI-Din al-Nawawi, Rawdat al-Talibin, ed. ‘Adil ‘Abd al-Mawjud and ‘Ali Mu’awwad, 8 vols. (Beirut: Dar al-Kutub al-‘Ilmiyya, n.d.), 7:305-6.
  • Since Nawawi’s work is a commentary on Shirazi’s Muhadhdhab, he refers to him as “The Author” (al-musannifi, a common practice among commentators.
  • Sharaf ai-Din al-Nawawi, al-Majmu: Sharh al-Muhadhdhab, 12 vols. (Cairo: Matba’at al-Tadamun, 1344/1925), 9:43-44.
  • For example, in his al-kJajmui 1:5, Nawawi states that he will overlook the lines of reasoning in justincation of ,veak opinions even when these opinions are of the widespread(mashhur) category.
  • Taqi ai-Din al-Subki, Fatawa, 2 vols. (Cairo: Maktabat al-Qudsi, 1937), 2:10 ff.; Jalal al-Din al-Suyuti, al-Ashbah wal-Naza’ir (Beirut: Dar al-Kutub al-‘Ilmiyya, 1979), 104; Sharaf aI-Din al-Nawawi, Tahdhib al-Asma’ wal-Lughat, 3 vols. (Cairo: Idarat al-Tiba’a al-Muniriyya, 1927), 1:94, 113, 164; ‘Ala’ aI-Din al-Ba’li, al-Ikhtiyarat al-Fiqhiyya (Beirut: Dar al-Fikr, 1369/1949), 24; ‘Ali b. Sulayman al-Mirdawi, Tashih al-Furu’, ed. ‘Abd al-Sattar Farraj, 6 vols. (Beirut: ‘Alam al-Kutub, 1985), 1:25,31,32; ‘Isa b. ‘Ali al-‘Alami, Kitab al-Nawazil, 3 vols. (Rabat: Wizarat al-Awqaf wal-Shu’un al-Islamiyya, 1983), 3:6. Abu al-Khattab al-Kilwadhani (d. 510/1116) was said to have held a number of opinions not shared by the members of his school, opinions described as tafarrudat. These opinions, also characterized as ghara’ib(pl. of gharib, lit. unfamiliar, thus irregular), were corrected (sahhaha) later by Hanbali. See ‘Abd aI-Rahman Ibn Rajab, al-Dhayl ala Tabaqat al-Hanabila, 2 vols. (Cairo: Matba’at al-Sunna al-Muhammadiyya, 1952-1953), 1:116, 120, 126-27. It is to be noted that in some cases the opposite of the da’if was the qawi (lit. strong) or the aqwa (stronger), terms that were rarely used and whose technical meaning remained unfixed. See, for instance, the Hanbali ‘Ala’ al-Din al-Ba’li, al-Ikhtiyarat al-Fiqhiyya (Beirut: Dar al-Fikr, 1949), 11. The same may be said of the term sawab or its fuller expression wa-hadha aqrab ila al-sawab(this is more likely to be true or correct), which was used infrequently to designate the status of an opinion. See, for example, ‘Ala al-Din al-Kasana, Bada’i’ al-Sana’i’ 7 vols. (Beirut: Dar al-Kitab al-Arabi, 1982), 1:31. A very rare labeling of weak opinions is the term quwayl,which is the diminutive of qawl (opinion). See the Hanbali Shams al-Din al-Zarkashi, Sharh al-Zarkashi ‘ala Mukhtasar al-Khiraqi, ed. Abd Allah al-Jabrin, 7 vols. (Riyadh: Maktabat al-‘Ubaykan, 1413/1993), 1:63,290.
  • It is quite possible that the last two, and particularly the fourth, of this quartet may have referred to opinions lacking in terms of sufficient circulation, without any consideration of correctness or soundness. However, the connection that was made between authoritative status and level of acceptance meant that widely circulated opinions were correct, whereas those that failed to gain wide acceptance were problematic. See further discussion on this issue later in this chapter.
  • See Hallaq, Authority, 166 ff.
  • See his splendid discussion in Sharh al-Manzuma, printed in his Majmu’ar Rasa’il, 2 vols. (n.p., 1970), 1:10-52, at 38 ff., which marshals a myriad of opinions from the early and late periods.
  • Ibn ‘Abidin, Sharh al-Manzuma, 1:38-39.
  • Khayr ai-Din al-Ramli, al-Fatawa al-Khayriyya, printed on the margins of Ibn ‘Abidin’s al-‘Uqud al-Durriyya fi Tanqih al-Fatawa al-Hamidiyya (Cairo: al-Matba’a al-Maymuna, 1893), 3.
  • See Hallaq, Authority, chap. 4.
  • On this theme, see Wael B. Hallaq, “On Inductive Corroboration, Probability and Certainty in Sunni Legal Thought,” in Islamic Law and Jurisprudence: Studies in Honor of Farhat J. Ziadeh, ed. N. Heer (Seattle: University of Washington Press, 1990), 3-31.
    1. Taj al-Din al-Subki, Tabaqat al-Shafi’iyya al-Kubra, 6 vols. (Cairo: al-Maktaba al-Husayniyya, 1906), 5:124. 
  • Shams ai-Din al-Ramli, Nihayat al-Muhtaj ila Sharh al-Minhaj, 8 vols. (Cairo: Mustafa Babi al-Halabi, 1357/1938), 1:37.
  • Taqi ai-Din Ibn al-Salah,Adab ai-Mufti wal-Mustafti, ed. Muwaffaq b. Abd al-Qadir (Beirut: ‘Alam al-Kutub, 1407/1986), 126.
  • Muhammad al-Hattab, Mawahib al-Jalilli-Sharh Mukhtasar Khalil, 6 vols. (Tarablus, Libya: Maktabat al-Najah, 1969), 6:91. See also Mirdawi, Tashih al-furu’, 1:51; Nawawi, Majmu,1:68.
  • For example, see Muhammad b. Idris al-Shafi’i, al-Umm, ed. Mahmud Matarji, 9 vols. (Beirut: Dar al-Kutub al-‘llmiyya, 1413/1993),2:102,113,136, 163, and passim.
  • Mirdawi, Tashih al-Furu’, 1:50-51.
  • This has been demonstrated in W. Hallaq, “From Fatwas to Furu': Growth and Change in Islamic Substantive Law,” Islamic Law and Society  (1994),17-56, at 31-38.
  • Hattab, Mawahib al-Jalil, 1:24; 6:91. 40. This periodization, which is determined by our independent investigation of the madhhab evolution and the construction of authority, agrees with the traditional distinction between the “early” and “later” jurists.
  • Wajh-opinions are those formulated by ashab al-wujuh or ashab al-takhrij, jurists who flourished mainly during the third/ninth-fourth/tenth centuries. The activity of the ashab,however, continued on a smaller scale  throughout the next three or four centuries. On these, see Hallaq, Authority, 43 ff.
  • Nawawi, Majmu’, 1:4-5.
  • Ibn ‘Abd al-Barr, Jami’ Bayan aI-Ilm, 2:43 ff 
  • Ramli, Nihayat al-Muhtaj’, 1:38. 
  • Subki, Fatawa, 1:324.
  • Ramli, Nihayat al-Muhtaj, 1:36-37.
  • Ibrahim al-Halabi, Mulatqa al-Abhur, ed. Wahbi al-Albani, 2 vols. (Beirut: Mu’assasat al-Risala, 1409/1989), 1:10; 2:194, 202, 207, 210, 211, and passim,
  • Hattab, Mawahib at-Jalil, 1:36.
  • Ibn ‘Abidin, Sharh al-Manzuma, 1:38-39. 
  • Hattab, Mawahib at-lalit, 1:36. 
  • Ramli, Nihayat al-Muhtaj, 1:9.
  • Ala’ aI-Din al-Haskafi, al-Durr al-Mukhtar, 8 vols. (Beirut: Dar al-Fikr, 1979),1:72-73. See also Ibn ‘Abidin, Sharh al-Manzuma, 38.
  • Ibn Hajar al-Haytami, al-Fatawa al-Kubra al-Fiqhiyya, vols. (Cairo: ‘Abd ai-Hamid Ahmad al-Hanafi, 1938), 4:293.
  • Najm al-Din al-Tufi, Sharh Mukhtasar al-Rawda, ed. ‘Abd Allah al-Turki. 3 vols. (Beirut: Mu’assasat al-Risala, 1407/1987), 3:626; “idh ma la amala alayh la hajata ilayh.”
  • Shams al-Din Ibn Farhun, Tabsiratal-Hukkam, 2 vols. (Cairo: al-Matba’a al-‘Amira al-Sharafiyya, 1883), 1:49.
  • Taqi al-Din Ibn aI-Najjar, Muntaha al-Iradat, 2 vols. (Cairo: Maktabat Dar al-‘Uruba, 1961-1962), 1:6.
  • See Hallaq, Authority, chap. 6. 
  • See Hallaq, Authority, chap. 6. 
  • See note 7.
  • On the later construction of the founders’ authority, see Hallaq, Authority, chap. 2.
  • Today, some Muslim intellectuals argue that the loss of the religious ethic is the cause of failure to apply the shari’a. They maintain that the restoration of this ethic and the regaining of the religious Geist will guarantee the creation of a reality in which Muslims will abandon all that is contrary to the legal ethic, thereby abandoning in the process all the evils of modernity. In other words, their argument amounts to the claim that popular conviction can change the facts on the ground, facts here meaning all that is associated with the nation-state, technology; economic modes of production, finance, consumerism, and much else. This writer, however, begs to differ. Even if this popular conviction were to obtain, there remains the problem of how to accommodate the modernist material reality within the parameters of Islamic values.
  • Joseph Schacht, “Problems of Modern Islamic Legislation,” Studia Islamica 12 (1960), 100-101.
  • A major doctrine of Orientalist legal scholarship that was required to vindicate the colonialist enterprise generally and, more specifically, the massive legal restructuring to which the Muslim institutions and concepts were subjected.
  • Wael Hallaq, A History of Islamic Legal Theories (Cambridge: Cambridge University Press, 1997), chap. 6.
  • Hallaq, A History of Islamic Legal Theories, 231 ff.
  • In other words, can modern Islamic banking and finance still operate, as it does, in a global market and still avoid, in a true and genuine manner, engagement in usurious transactions? The experience on the ground thus far has shown this to be untenable.

 

 
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Posted by on July 29, 2012 in Fiqh

 

Wael Hallaq on Ijma’

On the Authoritativeness of Sunni ConsensusWael Hallaq

Courtesy: International Journal of Middle Eastern Studies
18 (1986), pp. 427-454

About the author: He is a professor and expert of Islamic law at McGill University, Canada.

ISunni Islam recognizes four sources from and through which the laws governing its conduct are derived. These are the Qur’an, the Sunna of the Prophet, the consensus (ijma’) of the community and its scholars,1 and qiyas, the juridico-logical method of inference.2 The first two sources provide the jurist with the material from which he is to extract through qiyas and ijtihad (the disciplined exercise of mental faculty) the law which he believes to the best of his knowledge to be that decreed by God. Except for a relatively limited number of cases where the Qur’an and the Sunna offer already-formulated legal judgments, the great majority of furu’ cases, which constitute the body of positive and substantive law, are derived by qiyas. Thus, qiyas may be used to “discover” the judgment of a new case provided that this case has not already been solved in the two primary sources. The process of legal reasoning which qiyas involves is charged with innumerable difficulties not the least of which is finding the circle of common similarity, the ‘illa,between the original case in the texts and the new case which requires a legal judgment. Since finding the ‘illa entails a certain amount of guesswork (zann) on the part of the jurist and since it is highly probable that the ‘illa is extracted from a text which is not entirely reliable or a text capable of more than one interpretation, Sunni jurists deemed the results of qiyas to be probable (zanni). It is only at this point that consensus may enter into play in the legal process. Should Muslims, represented by their jurists, reach an agreement on the validity of a zanni legal judgment, such judgment is automatically transferred from the domain of juristic speculation to that of certainty(qat, yaqin). Consensus then renders this judgment irrevocable, not to be challenged or reinterpreted by later generations. Furthermore, this judgment, being so irrevocable, acquires a validity tantamount to that of the Qur’an and the highly reliable traditions embodied in the Sunna of the Prophet. Thus, such a case with its established judgment becomes a precedent according to which another new legal question may be solved. It is only in this sense that consensus functions as a source of law, a source which is infallible.3

This theory of consensus was the product of a relatively late period, when legal theory, usul al-fiqh,reached maturity. But in first-century Islam, and for that matter in pre-Islamic Arabia, consensus, as we shall see, existed primarily as a 


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social and secular force.4 With the emerging political struggles and the subsequent growth of the religious movement during the second/eighth century, consensus acquired a religious character and became one of the most remarkable doctrinal features which distinguished ahl al-sunna wal-jama’a from other sects and movements. The important role of consensus as a sanctioning instrument and as a source of law of the “middle nation” was bound to generate extensive discussion and criticism from within and without Sunnism.5 The crucial problem which posed itself was the foundation and validity of consensus as a religious doctrine. In other words, classical Muslim jurists, who undertook the task of developing usul al-fiqh, had to prove that consensus rests on the strength of the two primary sources, the Qur’an and/or the Sunna. For, according to the fundamental Islamic tenet, nothing can be regarded as valid or binding if it is not somehow grounded in these sources. The implication of accepting consensus as a sanctioning force and, moreover, as a source of law without basing it on the sources was grave. It meant that those jurists who participated in the formulation of consensus were themselves the legislators, the law-givers of the community. But jurists were not vested with an authority to enact law; rather, they and the rest of the community were only the recipients of divine grace, a grace manifest in the very fact of revelation. Consensus as a legal precept had to be thus grounded in this revelation. How the Muslim jurists proved the authoritativeness through the centuries of consensus and the problems which they encountered while doing so will be our concern here.

II

Before we proceed with our discussion of the problem known in Arabic religious sources ashujjiyyat al-ijma’, i.e., the authoritativeness of consensus, let us briefly examine the contribution of modern Western scholarship to this question. This will be done with a view to sorting out those opinions and conclusions which this essay attempts to reconsider or complement. The most pertinent are three views expressed by C. Snouck Hurgronje, N. J. Coulson, and George Hourani.6  Hurgronje maintained, and rightly so, that at a relatively early period, when the doctrine of the infallibility of the community was formulated, “people still dared to give greater convincing force to obvious truths by putting them into the mouth of the Prophet.” Thus, 

several traditions, in various forms, make him say that “the whole of his community can never be in error”. . . . In the earliest period, people found it sufficient that the Prophet in his last words should have urged the believers most emphatically to “hold fast to the Book.” When they [i.e., Muslims] arrived at the conviction that the Muslim way of life was not based on the text of the revelation alone, it was inevitable that the Prophet in his farewell speech should have mentioned his sunna as the second foundation of religious duties; finally, when the infallibility of the community had become an essential dogma, this too had to be supported by his words.‘7

But Hurgronje also argued that when Muslims faced the difficulty of interpretingthe texts and distinguishing the authentic traditions from the spurious, the infallible authority of the community was called for. “As a result, not only the 


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laws and institutions which came into being after Muhammad’s death, but the whole practice of the Muslim community is based on its own infallibility.”8 Elsewhere, he explicitly argued that

attempts have been made to demonstrate it [i.e., consensus] by the Qur’an and thesunna, 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 establish thc infallibility of the community by the authority ofthe Qur’an and the sunna.9

In sum, Hurgronje’s contention seems to be that in the final analysis consensus was the ultimate authority on interpreting, understanding, and authenticating the Qur’an and the Sunna, and that the “foundation of foundations” of Islam was the self-proclaimed infallibility of the community.10Hurgronje’s conclusion, therefore, was that consensus rested on a petitio principii.11

This view was also expounded, though less unequivocally, by Coulson who argued that “although the validity of the principle is formally expressed in a Tradition from the Prophet which states: ‘My community will never agree upon an error,’ it is the ijma’ itself which guarantees the validity of the Tradition.”12 A similar view was also held by Joseph Schacht.13

George Hourani has studied the question of the authoritativeness of consensus and has reconsidered the statements made by Hurgronje.14. His findings were published in a lengthy article~ in 1964. In that article Hourani showed that consensus does not determine the interpretation of the texts on which consensus rests. He also attempted to show that consensus does not rest on a petitio principii. On the first point Hourani argued persuasively, but on the second, on the issue of circularity, his answer was brief and did not reflect the centrality and the true weight of this issue in medieval discussions. This inquiry attempts to complement Hourani’s contribution. However, it is to be noted that Hourani’s assumption-which dictated his approach to and treatment of the sources-that the true religion of Islam is found only in the Qur’an and that the traditions of the Prophet are not an essential part of Islam led him to underestimate the role which the traditions played in avoiding a petitio principii.15 In fact this assumption seems to have effected a somewhat extreme conclusion. After sketching the views of some jurists on the subject and stating the results of research about hadith undertaken by Ignaz Goldziher and Joseph Schacht, Hourani finally reached two major conclusions.

(a) Any sound basis for the authority of an infallible, cumulative consensus, as a definite. institution of Islam, must be found in a text of Islamic scripture. On this principle the medieval Muslim scholars were right.

(b) No such basis can be found in the Qur’an, or in any Tradition that can be regarded with confidence as authentic. This is what modern scholarship leads us to think.

Hourani then went on to say that “Using these two conclusions as premises, we arrive at a third: There is no sound basis for the traditional doctrine of consensus in Islam.”16

Thus Hourani used the results of modern scholarship to judge whether or not a medieval system of belief had rested on a “sound basis.” The question here is


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not whether we believe the traditions to be authentic, but whether or not Muslims throughout classical and medieval Islam accepted them as such. Insofar as Muslims were concerned, “the entire religion is taken only from God. . . and then from the language of the Prophet.”17 The Sunna was undoubtedly Considered as part of the wahy, God’s revelation.18 Believing what the Prophet said was a requisite for iman.19 The Sunna had the important function of clarifying the ambiguities, and if necessary, abrogating verses, in the Qur’an.20 Its rejection was tantamount to heresy. Many jurists and theologians emphasized the fact that the Qur’an falls short of supplying even a fraction of the rulings of Shari’a, and that most rulings are based on the solitary traditions, the ahadis.21Thus, for us now to reject the Sunna as a basis of belief would take us only half way. It would be just as logical to argue that the Qur’an, like the traditions, is a man-written book. This would necessarily carry us to the objectionable conclusion that Islam as a system of faith is baseless.

Goldziher’s and Schacht’s results about the spuriousness of hadith literature, though quite illuminating and indispensable for a more accurate understanding of the early developments in Islam, have no bearing whatsoever on whether consensus was authoritative or baseless. Muslims considered (and the majority still do) the Sunna to be a pillar of Islam and as such we must address it in the present inquiry. It must be immediately added that the question of the authoritativeness of consensus must be dealt with as a subject of intellectual history. All propositions designated by the great majority of Muslim scholars as premises to their arguments must be treated as true premises.

III

The question of the authoritativeness of consensus arose only when it became necessary for Muslims to decide once and for all whether they themselves were the ultimate source of authority or whether that authority was God. In the Jahiliyya, the answer to this question. was obvious; the sunna and the consensus of the tribe or the community constituted the law. Consensus, al-amr, al-mujtama’ ‘alayh, created and defined the sunna.22 With the advent of Islam, the Qur’an encroached, to the extent dictated by its meagre content of law, on the established secular sunna. Now, with the help of the Qur’an, God had only begun to partake in determining man’s affairs. The spirit and the letter of the Qur’an and the Prophet’s sira had undoubtedly left their mark on that society, but not, strictly speaking, on its law. With the growth of Islam, the ancient notion of sunna came to be associated with a new notion, viz. the Sunna of the Prophet. This is not to say that the Prophetic Sunna existed alongside a non-Prophetic sunna. Rather, the Prophetic Sunna was created by what Schacht termed “the Living tradition,” the sunna as fixed by the consensus of one particular living generation. Thus the community, by associating its living sunna with the Sunna of the Prophet, granted itself the prerogative of determining the Divine Sunna, which was soon to become the most substantive source of law. In effect this meant that whatever the community decided would prevail. Only with this background can one fully appreciate the later doctrine which prescribed that the


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Sunna interprets and, when necessary, abrogates the Qur’an. In fact, this is a \modified version of a second-century dominant view that it is the Sunna which decides upon the Qur’an and not the reverse.23 The Prophetic Sunna, the sacrosanctified expression of the “living tradition,” along with the Qur’an became the ultimate sources of the law. It is only in such an environment that Muhammad b. Hasan al-Shaybani (d. 189/804) could declare on the authority Of the Prophet that “Whatever the Muslims see as good is good in the eyes of God, ( and whatever they see as bad is bad in the eyes of God.”24

The process of creating the Sunna of the Prophet out of the “living tradition” began to be interrupted when the Prophetic Sunna was recorded in the form of hadith. Hadith gave permanence to the Sunna, thereby defining and determining its content once and for all. When the literature of hadith exhausted more or less the content of the Sunna, the full authority to determine the law was transferred from the hands of Muslims to those of God and his Messenger. For it was obvious that the process by which the Sunna was vested with divine authority had already come full circle. The transference of this authority was not sudden but gradual. It seems to have ended sometime in the beginning of the third Islamic century (ca. A.D. 830). However, the intellectual justification of the paramount position of revelation in relation to consensus had just begun!! The first signs of this process of justification had already appeared in Ibn Idris al-Shafi’i (d. 204/820), who, to our knowledge, was the first jurist to systematically lay down the jurisprudential principles of substantive law.

Shafi’i, whose theory represents the almost complete victory of the authority of God over that of man, elevates the Qur’an and the Sunna of the Prophet to a supreme position, and relegates consensus to a subsidiary source of law. He distinguishes between. two types of consensus. The first is the consensus of the community and the second that of the ulama, the legal specialists. The consensus of the community is again divided into two types. The first is that which is based on the Qur’an and on a Sunna transmitted “from the generality to the generality,” and the second is not based on revelation26 and serves as a working consensus (mufid Iil-‘amal, as later jurists would put it) which does not lead to certainty (ihata). The consensus of the ulama stands on an even lower level because it has the force of a solitary tradition, khabar aI-khassa, which cannot lead to certain knowledge.27 Shafi”i does not consider this type of consensus authoritative. Only the first type, the consensus which is reached on the basis of the Qur’an and a Sunna transmitted by the generality of Muslims, can yield certain knowledge of the law decreed by God. Shafi’i asserted that “It is impossible that the community should agree on something contrary to the words of the Prophet”,28 and, a fortiori, contrary to the injunctions of the Qur’an. He went as far as to say that “the generality (of Muslims] cannot agree on . . . an error,”29 thus anticipating the later Prophetic tradition “My community does not agree on an error.” But Shafi’i’s acceptance of the consensus of the community even when it is not in custody of a text of revelation seems to have required justification, as he himself held that the Qur’an and the Sunna are the ultimate sources on matters of law.30 In other words, Shafi’i felt bound, in order to be consistent, to base this type of consensus on the two primary sources. This very


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fact manifests the triumph of revelation in Shafi’i’s jurisprudence, where all things must either be based squarely on revelation or derived therefrom.31

In addition to Qur’an IV: 115 (And whoso makes a breach with the Messenger after the guidance had been manifested unto him, and followed other than the believers’ way, we appoint for him what unto which he himself had turned, and expose him unto hell), Shafi’i quotes two traditions in justification of consensus, the first of which is: “Three things the heart of the Muslim shall not hate: sincerity of action for the sake of God, good advice for [fellow} Muslims and adherence to their community”;32 the second: “he who wishes to reside in Paradise must hold fast to the community, for Satan Comes close to one person but not as close to two.”33 It must be noted that in his discussions of consensus in the Risala, nowhere does Shafi’i adduce the Qur’anic verse IV:115. The traditions, on the other hand, appear in the Risala on more than one occasion when consensus is discussed. We are therefore justified in assuming that he did not think of this verse as an important argument.34

From the two traditions Shafi’i concludes that the Prophet enjoined Muslims to adhere to the community, because the Muslim community cannot agree on an error. In answer to his interlocutor who inquired about the meaning of the traditions, Shafi’i says that adherence to the community enjoined by the said traditions meant not physical adherence but adherence in belief. The Prophet, he maintained against his opponent, could not have meant that Muslims should physically hold to the body of the community since they reside in far-flung provinces and non-Muslims live amongst them. The Prophet could have only meant that the duty is to hold fast to the doctrines and actions as known and practiced by the community.35

Although the meaning of these traditions is sufficiently clear, the argument as a whole gives rise to a serious objection. By the same epistemological standards set forth by Shafi’i himself, it can be maintained that his argument for authoritative consensus is not well knit. Though he does not state that these traditions are solitary (akhbar al-khassa), there is no doubt that he considered them as such. As we have seen, Shafi’i deemed everything that was based on traditions transmitted through channels fewer than those of the “generality to the generality” to lead only to probable knowledge. The consensus of the community on the basis of a text leads, in Shafi’i’s opinion, to ihata, a conclusive and irrevocable knowledge. The weakness of his argument thus stems from the fact that he proves the universal validity of a principle which leads to certain knowledge by evidence which yields mere probability. It cannot be maintained, however, that Shafi’i fell in the trap of circularity because the authenticity of the traditions adduced is not claimed to be guaranteed by the community, and their meaning is determined by the standard rules of the Arabic language. What Shafi’i needed in order to perfect his theory of consensus was either an unambiguous Qur’anic verse guaranteeing the infallibility of the community or an explicit statement from the Prophet transmitted from the generality to the generality to the same effect. Shafi’i would have fallen in the trap of circularity had he held the view that a consensus on a case of law, which is in turn based on a solitary tradition, Leads to certainty. Had this been the case, he would have


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been obliged to justify consensus by the most conclusive and decisive textual evidence, because assigning to consensus the role of transferring rulings from the domain of probability to that of certainty means that consensus is a source of lawTo admit, as it were, that consensus can be conclusive only when based on highly reliable texts, absolved consensus of its responsibility as a legislative source, and absolved Shifi’i of the responsibility of proving that it was one. The certainty of consensus is thus a derivative of the certainty of revelation and not one which is self-constituted. This is in perfect consonance with the status which Shifi’i accorded to consensus as a general legal principle.

After the death of Shafi’i, the issue of grounding consensus in revelation became even more problematic. Unlike the theory of Shafi’i, which recognized as infallible only the consensus of the community when based on a reliable text, the great majority of later jurists held that infallible consensus is the consensus of the mujtahids (the qualified jurists who are authorized to discover the law) on any case of law, including a case solved by means of qiyas which may take its premises from ahadi traditions.36 The authority of consensus to render probable things certain called for serious attempts at proving, on textual grounds, that consensus is a legitimate source oflaw (asl min usul a/-shar’).

IV

Unfortunately, there are no extant works from the third! ninth century which can shed light on. the subject under discussion. The earliest period from which some writings have reached us is around the middle of the fourth/tenth century. From the work of the Hanafi jurist Abu Bakr al-Jassas (d. 370/980)37 and from that of his Shioi adversary al-Qad’i al-Nu’man (fl. mid. fourth/tenth century), we can gain insight into how the issue of the authoritativeness of Sunni consensus was treated during the first half of the fourth/tenth century.

By the middle of that century textual evidence in support of consensus had become abundant. Jassas cites Qur”an II: 143“Thus we have appointed you a middle nation, that you may be witnesses against mankind, and that the messenger may be a witness against you.” By equating “middle nation” with uprightness and rectitude, he concludes that the community should be described as infallible and as such it is appointed to witness the deeds of other people just as the Prophet witnessed his community’s deeds. He also cites IV: 115, already quoted by Shaf’iT, and argues that the Qur’an bids adherence to the call of the Prophet and threatens with punishment those who swerve from the path of Islam. The call for unity behind the Prophet thus gives legitimacy to the agreement of Muslims. lX:16 also supports the same theme: “Or did you suppose you would be left [in peace] when God knows not as yet those of you who strive, choosing for familiar none save God and his messenger and the believers?” From this he infers that opposing the believers is as serious a sin as opposing the Prophet himself. Jassas produces two more verses which art as inconclusive as the previous ones. They are III: 110 “You are the best community that has been raised up for mankind. You enjoin good and forbid evil,” and XXXI: 15  “And follow the path of him who turns to me.” In the first of the two verses Jassas


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interprets the praise for the community in terms which indicate that the community cannot agree on an error. In the second verse the reference is, of course, to the Prophet: to follow the Prophet is to save the. community from going astray.

Realizing that all these verses have no definite meaning which can establish, once and for all, the authoritativeness of consensus, Jassas, resorts to the Sunna to enhance his argument.. In addition to the two traditions which Shafi’i had already introduced, he brings forth five more traditions, all of which are admittedly ahadis.38 In his critique of Sunni legal theory, Qad’i al-Nu’man records the Qur’anic verses and traditions used by the Sunni jurists to justify the authoritativeness of consensus. All but three Qur’anic verses (VIlI:18l, XXII:78, LVlI:19) are mentioned by Jassas. The general meaning of these three is identical to that of the aforementioned II: 143 and III: 110.39It is to be observed here that the number of verses and traditions adduced by Jassas” and obviously by his contemporaries, has increased considerably since the time of Shafi’i. This increase was, as we shall see, of great importance for later legal theorists.

v

One of the earliest writers in whose works we find a comprehensive treatment of this issue is the Mu’tazili jurist and theologian ‘Abd aI-Jabbar al-Asadabadi (d. 415/l024). In his definition, consensus is not only the agreement of the qualified jurists but also of the community as a whole.40It constitutes an authority whose proof must derive from the revealed sources. Reason is of no use in establishing the authoritativeness of consensus, because there exists no rational evidence which can prove that a group of people or a community is not liable to error.41 It is scriptural evidence, he states, which is the only acceptable evidence. ‘Abd al-Jabbar starts by citing Qur’an IV: 115, already quoted by Jassas and allegedly by Shafi’i. Using the same polemical style of exposition used by the latter in the Risala, ‘Abd aI-Jabbar undertakes a lengthy explanation of the meaning of this verse. He argues that God’s warning with regard to dissenting from the lines of the Prophet and the believers necessarily means that following their lead is the right thing to do. The path which the Muslims tread, he reasons, must be, in accordance with the verse, the most righteous and therefore .authoritative. Had such authority not been inherent in them they would not have been endowed with the quality of righteousness.42 Upon the suggestion of the interlocutor that the warning against breaking away from the path of the Prophet and the believers does not necessarily mean that such path should be followed, ‘Abd al-Jabbar retorts that the meaning is clear: If dissenting from something is prohibited then it follows that embracing a different thing is also prohibited. From this it also follows that the only choice is to adhere to the path of the Prophet and the believers.

Having conceded to ‘Abd al-Jabbar this interpretation, the interlocutor then adroitly argues that if the authoritativeness of the community’s consensus is contingent upon the condition of following the path of believers, then belief


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(iman), is the criterion for authoritativeness. This being so, the iman of one person would make him an authority, and therefore, his position on a particular issue becomes authoritative in much the same way that the position of the whole community becomes authoritative. Accordingly, the interlocutor says, the acceptance of consensus on the basis of iman necessitates upholding the decision of an individual Muslim as authoritative. Clearly, the interlocutor is purporting by thisreductio ad absurdum argument to undermine the interpretation given to the verse by ‘Abd al-Jabbar. Since the linchpin of this interpretation is the phrase the “believers’ path” (or “believers’ way”), ‘Abd al-Jabbar remarks that the “believers’ path” is expressed in the deeds, utterances, and creed of Muslims as based on evidence from revelation (or reason!).43 It cannot be contended, he says, that the path becomes defined only after Muslims reach a consensus on what constitutes iman.

The interlocutor then points to the plural form of the word ‘al-mu’minun” (the believers) and argues that the apparent meaning of the verse is that a consensus can be authoritative if three believers reach it-since three is the smallest number in the plural. ‘Abd al-Jabbar refers his opponent to the chapter in his book entitled “On the General” (111-Ciimm) where he explains that when the definite article al- is prefixed to a noun in the plural, as is the case here, the noun will indicate a class of things, which is in this case all the believers. The opponent then goes on to debate the meaning and definition of the term “believers” and, again, ‘Abd al-Jabbar does not fail to assert his position. After some discussion, the latter concludes that the believers of the community constitute the consensus- making body, and since God has not specified in the verse a certain time for the validity of consensus, he also concludes that the consensus of each and every generation of Muslims is an authority.44

‘Abd al-Jabbar dismisses XXXI: 15 “And follow the path of him who turns to me”-adduced earlier by Jassas-on the grounds that the context in which it was revealed makes it evident that the reference is not to any specific group of people, but to mankind in general. Moreover, this injunction, as shown in the lines which open the iiya, refers to the respect man owes his parents.45 Similarly, ‘Abd al-Jabbar dismisses III:lO3, III: I 10, IV:59, VII:181, and XI:LI8, adduced by other scholars in justification of consensus, on grounds that they bear various meanings not necessarily relevant to consensus.46

The second verse produced in justification of consensus is II: 143 (“Thus we have appointed you a middle nation, that you may be witnesses against mankind, and that the messenger may be a witness against you”) which, ‘Abd al-Jabbar notes, had been adduced earlier by Abu ‘Ali al-Jubba’i (d. 303/915). Like Jassas, Jubba’i and ‘Abd al-Jabbar understand “middle nation” as a metaphor indicating the quality of justice and rectitude inherent in the community of believers. This naturally explains why they were appointed as witnesses against other communities. Had their testimony been dubious in the least, such a responsibility would not have been entrusted to them. God’s choice of appointing these witnesses, ‘Abd al-Jabbar insists, leads us to think that God accepts their word as reliable and truthful. Furthermore, in the second part of the verse, the Prophet is also said to be a witness because he is just and his


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utterances are authoritative. From all this it is concluded that the collective decision of the community constitutes an authority.47

Expectedly, the interlocutor attempts to undermine the relevance of the verse to consensus by pointing out that the apparent meaning of the verse does not correspond to reality. While the community as a whole appears to be described as just, it is obvious that amongst the community there are in reality many dissolute and impious persons. Therefore, he says, one must not use this verse in support of consensus. ‘Abd al-Jabbar responds “community” means those who qualify as believers and not necessarily all members of the community. In support of his interpretation he cites other Qur’anic verses in which collective nouns are used in a restrictive sense. Unsatisfied with this, the interlocutor contends that it is the companions of the Prophet who are addressed in the verse rather than the community at large. The phrase “We appointed you” pre-supposes an addressee, who can only be the community of the companions. Accordingly, it is the consensus of the companions which is authoritative, and not that of the entire community of believers. ‘Abd al-Jabbar retorts swiftly and decisively by citing a number of Qur’anic verses which make it abundantly clear that those who are appointed witnesses are the Muslims as a whole. Illustrative of these verses is XXIII:78, “And strive for Allah with the endeavor which is his right. . . . He had named you Muslims of old time and in this [Book], that the messenger may be a witness against you, and that you may be witnesses against mankind.”48

Having discussed the Qur’anic evidence, ‘Abd al-Jabbar goes on to note that Jubba’i based consensus on Prophetic traditions such as “My community shall never agree on an error .” The former remarks that traditions with regard to the authority of consensus are plentiful and well known, although some are better known than others. He lists about 10 of these traditions saying that many of them were reported in different versions.49 The companions of the Prophet knew these traditions and acted upon them. They are so famous, “Abd al-Jabbar says, that we need not trace back the wording of their transmission, just as we find no need to trace down the textual evidence upon which many forms of prayer and rituals are based. They are taken to constitute a proof of the authoritativeness of consensus although the form of their transmission is not amutawatir. The purpose of scrutinizing the authenticity of these traditions is to reach an understanding of their true meaning, but if their meaning is already known on the basis of their multiple non-mutawatir transmission, then such a scrutiny becomes superfluous. ‘Abd al-Jabbar, in answer to his opponent, remarks that it is possible that these ahadi traditions may have existed in the mutawatir fashion at the time of the companions and their successors, but that their transmission has been neglected in Later generations. Here, the opponent asks why these traditions, if they were indeed the basis of an authoritative consensus, had been so neglected. ‘Abd al-Jabbar replies that such a happening was possible because all believers acted upon these traditions and their practice of reaching consensus on points of law was so undisputed that the textual basis authorizing such practice was taken for granted. It has been generally known, he says, that some mutawatir traditions have become ahadi due to the neglect of people to transmit


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them. An excellent case in point is the undisputed zakat which was grounded in traditions from themutawatir category, traditions which have now become ahadis.5O It is on these grounds that theahadi traditions, relative to consensus, are taken to be authoritative.

In all this the interlocutor sees a contradiction (tanaqud). If the companions were in agreement on accepting the traditions concerning consensus, this would mean, the interlocutor insists, that the companions reached a consensus on the traditions which were in turn used to justify consensus itself. Such a contradiction can indeed undermine ‘Abd al-Jabbar’s argument. ‘Abd al-Jabbar, however, explains that the validity of the traditions is not determined by consensus but by custom(al- ‘ada al-jariya). The companions could not have accepted so unanimously these traditions unless they were certain of their authenticity. It was inconceivable that they all would agree. on a tradition which was dubious, as each of them was free to exercise his own independent ijtihad. One knows from the custom in evidence (al-‘ada al-zahira) that when a tradition was not proven authentic, some of the companions would accept it and some would not. Any tradition which is unanimously accepted must, pursuant to the law of custom, be authentic. It is in this order that ‘Abd al.Jabbar wishes to drive his argument: authenticity leads to unanimity-consensus does not authenticate traditions but is the result of their authenticity.51

The authenticity of traditions is thus guaranteed by custom. Custom, a theological concept already known to Ash’ari (d. 330/941), is described as the repeated actions of God which seem to us as a continuous course of events. But in contradistinction with nature, which is always continuous, custom may allow a break in its continuum. From custom we know that the sun will rise tomorrow morning and that there is an inevitable change of seasons throughout the year. Knowledge of many things in this world is derived from custom.52 For instance, if we are able to observe the sun for an extended period of time we know that after every night there is a day and from this we come to a conclusive knowledge that after this night there will be a day, unless, of course, God suddenly decides that He will change his custom of running things in this manner in the world. This change of custom is an irregularity and is known as kharq al-‘ada or, as ‘Abd al-Jabbar calls it, ikhlilaf al-‘ada.The authenticity of a tradition is known by tracing the history of its transmission and finding that there is no ikhtilaf in custom. The occurrence of any irregularity in custom will point to the deficiency of the tradition. The most important factor which determines a sound custom is the repeated transmission of the tradition under normal circumstances (al-takrar ma’ salamat al.ahwal).53 Custom asserts itself every time a transmitter relays the tradition to an audience, and the more the acts of transmission are repeated the more entrenched and certain our knowledge ofthe authenticity of the tradition under question will be. Continuity guarantees the knowledge of the Prophetic past.54 Conversely, knowledge of this tradition ceases once its transmission is halted, a course of action which constitutes kharq al-‘ada.55

‘Abd al-Jabbar does not set forth the epistemological principles upon which his argument for authoritativeness is based. He is well aware that consensus is conclusively authoritative (hujja qat’iyya), but he does not state whether or not


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the evidence he advances for its justification is equally certain. His argument is based on Qur’anic verses and traditions which, although admittedly ahadis, he claims them to have been mutawatir at the time of the companions. Although he goes to great lengths to prove that they are mutawatirthrough the concept of cada, ‘Abd aI-Jabbar does not take the hadith evidence to be as important or as strong as that of the Qur’an. He observes that the strongest among all the pieces of evidence is IV: 115, the first verse discussed by him.56 Thus he finds the Qur’an to be a stronger basis of authority for consensus than the traditions. In light of the principle, which he must have known, that ambiguous Qur’anic verses do not lead to certainty, he seems to have considered IV: 115 as an unambiguous verse which leads to conclusive knowledge. However, by the epistemological standards prevalent at his own times and even afterwards, the Qur’anic verses which he cites are not unambiguous, as is evident from the different interpretations given to them by ‘Abd al-Jabbar and his adversary. The innumerable objections of the opponent to ‘Abd al-Jabbar’s interpretation demonstrate that the verses are each open to more than one interprtation. An unambiguous verse, as defined by Muslim jurists themselves, is a verse the meaning of which is so clear that it would be incapable of another interpretation. Such a verse yields certain knowledge. On the other hand, ‘Abd ai-Jab bar makes recourse to the consensus of the companions to prove that the ahadi traditions which support an authoritative consensus were mutawatir in the first Islamic generation. Believing himself to have succeeded in doing so, he uses the allegedlymutawatir traditions with the Qur’anic verses as the basis of consensus. But if ‘Abd al-Jabbar was totally convinced that he has succeeded in establishing the tawatur of these traditions, why does he insist that IV: 115, a verse commonly regarded as ambiguous, is the strongest piece of evidence which can be adduced in justification of consensus? To this question I can find no answer in ‘Abd ai-Jab bar’s writings.

Nor is it possible to find an answer in Abu Husayn al-Basri’s treatise al-Mu’tamad fi Usul al-fiqh,which is based on ‘Abd al-Jabbar’s usul work al-‘Ahd.57 Basri follows ‘Abd ai-Jabbar in accepting some Qur’anic verses (ll: 143, Ill: 109, IV: 115) while rejecting others (ill: 103, IV:59). He adopts the argument based on ahadi traditions, but without claiming that at the time of the companions they were mutawatir. The fact of their being ahadis is acknowledged, and Basri does not attempt to change their status. He argues, however, that if one is to base consensus on these traditions only, such consensus would not yield absolute certainty, but will merely be authoritative insofar as action(‘amal) is concerned.58 Commenting on what seems to have been a contemporary argument that although the aforementioned traditions are ahadis their meaning has been transmitted in themutawatir fashion (wa in nuqila bil-ahadi fa inna ma’nahu manqulun bil-tawatur), he says that some of these traditions are not genuine, thus their sum total cannot yield absolute certainty.

Rather characteristic of the arguments of ‘Abd al-Jabbar and Basri is the absence of clear-cut epistemological distinctions with regard to the evidence produced in justification of consensus. Such distinctions were always present in the expositions of Basri’s younger contemporaries and their successors. The


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problem that posed itself once these distinctions came to be included in the stated arguments is that consensus was considered conclusively authoritative (hujja qat’iyya), but the textual pieces of evidence relative to its authority were, when taken individually, inconclusive. How, in light of this difficulty, later jurists grappled with the problem of authoritativeness will be shown through analyzing, among other things, the writings of Juwayni (d. 478/1085), Sarakhsi (d. 483/1101), GhazalI (d. 505/1111), Amidi (d. 631/1233), and Shatibi (d. 790/1388).

VI

Juwayni insists that nothing short of conclusive and certain evidence is acceptable in establishing the authoritativeness of consensus, as consensus itself yields the highest degree of certainty. A principle which leads to certainty must be based on equally certain evidence. In the case of consensus, such evidence must be derived from revelation; rational evidence cannot serve in religious matters.59 Juwayni quotes Qur’an IV:115 and argues that one of the meanings of “makes a breach with the messenger” is secession from Islam altogether. He remarks that the verse is ambiguous and is capable of more than one interpretation. Similarly, he discards the major tradition “My community shall never agree on an error” on the grounds that it is an ahadi and, like the aforementioned verse, may be subject to at least two interpretations. The first of these interpretations is the infallibility of consensus, and the other is apostasy, viz. that the community shall never agree. to apostate until the Day of Judgmcnt.60 By the same token, he dismisses all other traditions thus far introduced.61 Against the argument that there is a kind of universal agreement on the acceptability of these ahadi traditions, he cautions, and rightly so, that such an argument would be circular. Consensus, he insists, cannot rest on another consensus. The only admissible evidence is either mutawatir traditions (hadithun maqtu’un bihi naqlan) or unambiguous, decisive Qur’anic verse, and these, he acknowledges, are lacking.62

Since consensus could not be justified by arguments based on rational (non-textual) proof, and since there appeared to he no satisfactory textual evidence, how then could consensus, “the foundation (‘imad) of the Shari’a,” be justified? Juwayni answers that when consensus is reached on a point of law, it takes one of two forms. The consensus of the first form occurs when the qualified scholars in the far-flung Islamic provinces agree on a zanni legal judgment. Such an agreement of opinions could not be reached on the basis of the jurists’ rational (non-textual) reasoning because, although theoretically possible, custom (mustaqarr al-‘ada) has proved the actual occurrence of such an agreement to be impossible. A consensus on a shar’j matter on which reason cannot decide cannot be reached without a common cause (sabab jami’) which leads those who partake in the said consensus to hold the same opinion. Therefore, a total! agreement is possible only when the original decision is based on a conclusive text, a text which cannot be the subject of disagreement. For this reason, Juwayni concludes, when a consensus appears to have been reached on a zanni


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legal judgment, it must be presumed that such consensus is grounded it!; indubitable texts.63

The consensus of the second form, also reached on a zanni judgment, is authoritative, Juwayni says, on the grounds that we have found that past generations and extinct nations (al-umam al-munqarida) agreed on reproaching those who violate the consensus of the ulama, the ulama of time immemorial. They have charged all those who diverged (from the mainstream) with disloyalty, apostasy and disobedience. Deviation was never considered a trivial matter. [These nations] viewed the disagreement with the ulama an outright heresy (dalal). Thus, consensus on this [i.e., reproaching divergence] amounts to certain knowledge based on rational grounds. If such [consensus] were attached to the consensus reached on an uncertain (maznun) legal judgment, then, the legal judgment is rendered irrevocably certain (qat’). Therefore, Iet consensus on reproaching and reprimanding those who diverge be a legal precept which yields certainty (qat’).64

Now, by “past generations and extinct nations” Juwayni was not referring to the ancient Muslims only but to all “nations” which preceded Islam. And by “ulama” he meant all the sages and scholars who decided in the religious affairs of these nations. But having said this, Juwayni seems to have immediately realized that basing the infallibility of consensus Ort another consensus, however ancient and glorified the earlier consensus may be, does not really solve the problem. For as he already stated, consensus must be grounded in conclusive textual evidence. Grounding consensus in a non-textually based consensus leaves his argument assailable on the grounds that it leads to circularity. Juwayni had just criticized those who use traditions which are authenticated by consensus to justify consensus. In order to avoid this impasse he hastily adds that it is probable that the consensus of the first Muslim generations was based on the aforementioned traditions (which he just discarded), but that such consensus was continually used and taken so much for granted that Muslims neglected to transmit the traditions which once constituted its unshakable basis of authority.65

A close look at this argument reveals that for Juwayni consensus is not universally authoritative. In both forms of consensus which he distinguishes there is obviously no evident textual basis except for that according to which the legal case is solved and which is presumed to have been originally conclusive. By the law of custom, the principles of which ‘Abd al-Jabbar had already expounded, Juwayni claims that the consensus on what seems to be a zanni legal judgment must have been reached on the basis of a presumably qat’i text, This alone can explain the existence of an agreement On a shar’i rule. In the second form, there is an implicit assumption that the zannitextual basis of the case was originally qat’i. But since Juwayni has already advanced this thesis when dealing with the first form, he goes on to prove that it is in the custom of nations and communities to condemn divergent views and fissiparous tendencies, and thus such a universal consensus must confirm any agreement on a shar’i rule. Juwayni admits that he has no textual evidence to prove this (customary) universal consensus, although he allows for the possibility that traditions from the Prophet to this effect were once in existence but are now lost. His ultimate proof for the validity of both forms of consensus is the principle of custom.


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Anything else in his argument is merely presumed. Even if one accepts the validity of custom, it follows that in Juwayni’s theory consensus is not authoritative as a universal principle. “The truth,” Juwayni acknowledges, “is that consensus in itself is not an authority. It is inconceivable that those who take part in consensus (mujmi’in) can decide a rule [of a case] independently. It must bepresumed that they discovered something which brought about their consensus”.66

Juwayni’s concept of consensus is limited in scope. His arguments do not reflect the need, apparent in the writings of his predecessors and contemporaries, to establish the infallibility of the community, the universal guarantee for an authoritative consensus. The infallibility of the community as a general principle is not recognized by Juwayni.67 Consensus is valid only when the specific case on which it is reached derives from revelation.

In al-Munkhul min Ta’liqat al-Usul, which he wrote while still under the influence of his teacher Juwayni, Ghazali reiterates in his own way the argument as presented by Juwayni. However, he articulates the first part of the argument to make it somewhat more convincing. He says that if the jurists reach a consensus on what seems to be a zanni legal judgment, this judgment becomes certain because the number of those who participate in consensus is at least equal to the number of transmitters required in the mutawatir transmission. If such consensus is doubted, the reliability of mutawatir traditions, which lead to the highest degree of certitude in law and which are universally accepted, must be doubted as wcll.68 Although with this point Ghazali makes his argument easier to digest, the larger problem of authoritativeness has not yet been solved. What Ghazali succeeds in proving here is that a consensus on a textually based case of law is authoritative only insofar as that particular case is concerned.

In al-Mustasfa, which he wrote during the last few years of his life, Ghazali produced a rather thorough statement concerning consensus. His attitude toward textual evidence now differs drastically from that which he adopted when he was under the influence of Juwayni. While still dismissing the Qur’anic evidence as unsatisfactory,69 he now accepts the traditions which were used by his predecessors to justify consensus. He enumerates 11 traditions, among which is the tradition “My community shall never agree on an error.” The rest of the traditions, which are allahadis, were taken to enjoin Muslims to hold fast to the community, to forewarn fissiparous tendencies, and to restate the infallibility of the community.70

But Ghazali is well aware that ahadi traditions do not lead to the certainty required in consensus. He therefore introduces a principle which, though it was known to his immediate predecessors, he did not use earlier in al-Mankhul. Ghazali maintains that these traditions, though they are not transmitted arithmetically in the mutawatir fashion, lead to ‘ilm daruri (immediate knowledge)71because they are mutawatir in meaning (bil-ma’na). This means that the transmission of these traditions occurs through a multitude of ahadi channels, and all traditions, though different in wording, convey the same meaning. The Prophet, Ghazali says, has declared the infallibility of this community by a multitude of explicit statements and intimations which make it necessary for the


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mind to be certain of such knowledge.72 Certain knowledge of the authoritativencss of consensus immediately occurs in the mind when the mind becomes acquainted with these traditions. Just as the generosity of the reputable Hatim is known without any doubt through the transmission of non-mutawatir reports, so is the authoritativeness of consensus. Ghazali argues that each of these traditions alone can probably be dubious, but the same cannot be said of all of them as an aggregate. The support which each tradition gains from the others makes it improbable that all of them together are doubtful. Thus, like the mutawatir, these traditions as a whole lead to certainty.73

Ghazali then goes on to establish the meaning of the tradition “My community shall never agree on an error.” He lists three objections made by the opponent concerning the interpretation of the tradition and then he refutes them. While it is the contention of the opponent that “error” (dalala, khata’) means disbelief and heresy, thus depleting the tradition by confining the role of consensus to a mere safeguard against heresy, Ghazali interprets “error” in the general sense of a mistake.74He refers to two Qur’anic verses in which the term dalal was used in this latter sense. From the vast bulk of textual evidence, Ghazali insists, one necessarily understands (fuhima daruratan) that because individual Muslims are fallible, God has bestowed on his community as a whole the quality of infallibility (‘ijma), which the Prophet had also enjoyed. Other opponents concede that the meaning of khata‘ and dalal is a mistake, but they argue that the verse is not universal in meaning and does not guarantee infallibility in all spheres of religious life. What is meant here, they say, isthat the community does not err in such matters as testifying on the Day of Judgment and in transmitting the mutawatir traditions. But Ghazali rejects this interpretation on the grounds that no one in the community has held such exegetical views; the limitation of the meaning of “mistake” is unjustifiable.

The third and final objection concerns the meaning of “community.” The opponent claims that by “community” the Prophet meant all the generations of his “nation” from his time until the Day of Judgment. Against this Ghazali retorts that just as insane people and small children are not counted among the (capacitated) members of the religious community, people who died and who are yet unborn cannot be considered as part of the (present) community. By community, therefore, is meant the living generation of Muslims. In short, Ghazali, like any other Sunni jurist, accepted the standard meaning of the tradition as guaranteeing the infallibility of the community. It is significant to note here that no comprehensive interpretation of the traditions concerned was attempted by any Sunni jurist. Most of the usulists who dealt with the problem seem to have assumed that the meaning of these traditions is sufficiently clear so as to require no thoroughgoing interpretation. In establishing the meaning of the tradition “My community shall never agree on an error” Ghazali was chiefly responding to the onslaught of the adversary. It may have been the case that since these traditions differed only slightly in the manner they were expressed it was assumed that the elucidation of the fundamental terms employed in the major tradition commented upon by Ghazali should suffice to establish the general meaning of the others. In any case, the agreement among scholars upon


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the meaning of the traditions must not be taken to imply that such agreement constitutes in effect a consensus on the infallibility of consensus. Usulists make it abundantly clear that thc meaning of legal propositions is determined by the standard rules of the Arabic language, rules which are normally expounded in the opening chapters of works on usul al-fiqh.

In addition to these arguments Ghazali goes about proving the authoritativeness of consensus by means of what he calls rational demonstration (istidlaI). Referring to the traditions which he quoted, he says that they have been famous since the time of the companions and except for Nazzam, whose opinion does not count, no one has cast doubt with regard to using them to prove the authoritativeness of consensus. It is inconceivable that many consecutive generations of Muslims should accept a principle if it has no sound basis, especially that Muslims differed among themselves on many issues, particularly those issues based on ahadi traditions. In other words, what Ghazali is saying here is that if the principle of consensus were based on Iess than satisfactory traditions it would have been swept away by the opposition of Muslims. But the fact that consensus was so important a doctrine and that it was met with overwhelming approval is evidence that it must have been based on solid grounds.75 One knows of the existence of such approval from the lack of contrary evidence; that is, from the absence of opposition. Ghazali maintains that when. Nazzam, the first figure in Islam to question and reject the authoritativeness of consensus, voiced his opposition. the community immediately knew of it, and that if there had been other voices, especially among those who were qualified enough to be taken into account, they would have been heard. Ghazali thinks that if Nazzam, whom the community did not regard with high esteem, was noticed, other important figures would have been certainly noticed had they cast doubt on the authoritativeness of consensus.

Against the accusation that the authority of consensus is based on traditions which are authenticated by consensus, Ghazali retorts that the authenticity of traditions is known by the absence of opposition to them, something which is in turn known through ‘ada, custom. As appliedto this argument, Ghazali’s concept of custom does not differ from that of ‘Abd al-Jabbar. Ghazali insists that through ‘ada one knows, for instance, that the opposition to the Qur’an did not succeed and that the report about the Prophet appointing ‘Ali as caliph is spurious. The course of events would have been different had the opposition to the Qur’an succeeded or had the appointment of ‘Ali been genuine. The acceptability of the traditions in. question became, as Ghazali conceived of it, a “habit” of nature and any break in this “habit” would constitute a break in the ongoing custom(kharq al-‘ada). This is why he viewed the opposition of Nazzam to the textual basis of consensus to be so significant, because had Nazzam’s opinion. been admissible in Sunni Islam, his opposition would have constituted a breach of what Muslims conceived to be a consistent course of events.

Like Juwayni and particularly ‘Abd al-Jabbar, Ghazali utilizes the concept of custom to prove the existence of (presumed) decisive textual evidence in favor of an authoritative consensus in the early period of Islam. He says that when the


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companions agree on a certain issue, their agreement must be presumed to have been based on a conclusive text, for through the law of custom one knows that such unanimity on a dubious text cannot take place. Thus, the disapproval of the companions and their successors on the matter of divergence from the community must have been based on a revelation which was certain.

The change or development of Ghazali’s views as shown in al-Mankhul and al-Mustasfa is quite significant. Though his concept of custom and the use made thereof in the fatter work are somewhat different from that presented in the former, the fundamental idea remains the same. In fact, the discourse on the notion of custom in ‘Abd al-Jabbar, Juwayni, and Ghazali are variations on the same theme. The more significant point in Ghazali is his acceptance of the notion of al-tawatur bil-ma’na, which seems to have become by his time one of the most central arguments advanced in support of an authoritative consensus. The centrality of this notion appears most clearly in the Usul of Sarakhsi.

Sarakhsi’s argument is based on the Qur’an and the Sunna. From the Qur’an he cites II:143, III: 110, and IV:115. Like ‘Abd aI-Jab bar, he does not point out the weight of the verses in the overall proof for establishing the authoritativeness of consensus. After giving the standard interpretation of the verses he moves on to the Sunna, which, he says, contains abundant and well-known traditions (mustaf’ida mashhur). He lists a number of traditions concerning the infallibility of the community and argues that traditions supporting this point are numerous and mutawatir. The claim for tawatur, he says, derives from the fact that each transmitter heard a tradition to this effect and related it without anyone doubting the truthfulness of the tradition. A multiplicity of traditions transmitted under these conditions must be considered to be on par with the mutawatir (fadhalika bimanzilati al-tawatur).76 Although Sarakhsi does not mention the expression “tawatur bil-ma’na,” it is abundantly clear that he meant this type of tawatur rather than al-tawatur al-lafzi. A rather similar argument is also advanced by al-Khatib aI-Baghdadi (d. 463/1070), who explicitly states that al-tawatur min Tariq al-ma’na leads not only to certainty in law in general but also to a conclusively authoritative consensus.

VII

Toward the end of the sixth/twelfth century or the beginning of the seventh/thirteenth, Sayf aI-Din aI-Amidi (d. 631/l233), in a rather exhaustive statement on the problem of authoritativeness, elaborated and recapitulated the arguments as they had been developed by Sunni jurists up to his time. In his exposition we find a well-arranged reformulation of the totality of arguments which were presented in the earlier works in a fragmented manner. Amidi divides his arguments into three types: the first is an argument from the Book, the second from the Sunna, and the third is a rational argument.

In support of the authoritativeness of consensus, Amidi first cites five Qur’anic verses (II:143, IIl:103, III:110, IV: 59, IV:115), all of which have been quoted


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above. He devotes a dozen pages to the interpretation of these verses and to the refutation of the adversary’s claim that the meaning of these verses does not point to the infallibility of the community.78 But after Amidi had undertaken the arduous and prolonged task of showing what he believed to be the true meaning of the verses,79 he remarks that the totality of these verses does not lead to certain knowledge which is required in consensus. But he soon adds that the Sunna is the surest way to prove beyond doubt the conclusive authoritativeness of consensus.80 He introduces 16 traditions,81 and although he admits that they are all ahadis, he argues, like Ghazali, that they lead to certain knowledge because they are mutawatira bil-ma’na.82 With an ahaditradition, certain knowledge occurs when the tradition is supported by qara’in, that is, circumstantial evidence including other traditions handed down through various and unconnected channels of transmission or various types of Qur’anic verses. Amidi gives a non-textual example of qara’in: If a man looks often at a beautiful woman we would think (nazunn) that the man is in love with this woman. But if we also know that he stays in her company we gain more, but still inconclusive knowledge (zada zannuna) about his love for her. If we know other facts, such as the fact that he buys her many gifts, treats her kindly, and that psychological and behavioral changes occur to him, etc., we conclude that he is certainly in love with her.83 By the same token, we gain certain and immediate knowledge (‘ilm daruri), on the basis of a multitude of traditions which are mutually enhanced, that consensus is authoritative.84 This is despite the fact that each tradition can separately be false (yatatarraqu ilayhi al-kadhib). However, Amidi adds, the totality of these traditions yields immediate knowledge in the mind of any man of sound reason.

As to the rest of his argument concerning the hadith basis of consensus, Amidi follows in the footsteps of Ghazali. He argues that had consensus been based on questionable grounds it would not have been so unanimously approved and supported throughout numerous generations, and had there been any opposition to these traditions or to consensus itself, it would have been immediately known, just as the objections of the infamous Nazzam became known. Amidi also follows the same outlines of Ghazali’s argument with regard to custom as the means by which traditions are authenticated, thus avoiding a circular argument.

What Amidi designates as a rational argument is essentially an elaboration of Juwayni’s argument which he based on th notion of custom and which Ghazali subsequently refined. The main point advanced is that when we observe that the scholars of an earlier generation arc unanimously agreed on a legal judgment, that judgment must be presumed to have been based on a conclusive textual evidence. This is so because the number of those who agree in the community is equal to, or larger than, the number of transmitters of a mutawatir tradition. From the law of custom, as previously noted, we know that it is impossible for a vast (mutawatir) number to agree on a falsehood or a forgery. However, Amidi hastens to add that in order lo consider such a consensus authoritative, some scholars require the number of those who participate in consensus to be at least equal to that constituting the mutawatir.


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The question that may be asked here is why Amidi introduces this rational argument and, before that, the indecisive Qur’anic evidence, if he knows that both arguments are inconclusive? An answer to this question requires reference to the logical principle which he, and Ghazali before him, brought into play when discussing the question of al-tawatur bil-ma’na. Though the Qur’anic evidence and the rational argument do not conclusively prove the authoritativeness of consensus, they nonetheless function as qara’in, that is, as circumstantial pieces of evidence which, as an aggregate of testimonies, enhance his argument based on traditions. As we are able to gather from later sources (some of which will be discussed below), Amidi seemingly saw the Qur’anic and rational evidence, notwithstanding its weakness, as a supportive proof, just like the kind of proof a single ahadi tradition would offer.

This principle of cumulative or aggregate evidence, still nebulous in the writings of jurists of the fifth/eleventh and sixth/twelfth centuries,85 was articulated to a large extent by the illustrious Abu Ishaq al-Shatibi (d. 790/1388). In his work al-Muwiifaqat fi usu al-ahkam, he explicitly states that the “roots” of law, including consensus, are decisive, certain (qat’iyya), and infallible (ma’suma),86because they are founded on conclusive premises (muqaddimat qat’iyya). The most important source of knowledge which he reckons to be the font of law is that which is based on tawatur, bothlafzi and ma’nawi, as well as induction from the religious texts, al-isliqra fi mawarid al-shari’a.87Shatibi argues that induction leads to certainty because in the context of the Shari’a one can obtain a complete enumeration of the instances pertaining to a certain issue. In other words, it is possible, Shatibi insists, to have a complete induction (istiqra’ tamm or kulli), because the subject matter of the Qur’an and the Sunna is finite and can thus be exhausted. Because earlier jurists misunderstood this fundamental logical principle, Shatibi argues, some jurists thought that consensus itself was zanni. But this is not true, he says, because the cumulative evidence from the two primary sources render consensus certain.88 Most legal (textual) evidence does not lead to certainty if it is not supported by other pieces of evidence. If the complete aggregation of this evidence is pronounced unacceptable, it would then be impossible to arrive at certainty in law. What Shatibi is saying here is that the nature of the Shari’a requires a reliance on such inductive principles, for it is the only available means to reach a kind of certainty.89

The recognized evidence here [i.e., in law] is that which is reached through induction from a totality of uncertain (zanni) pieces of evidence which in their multitude support one meaning so much that they result in certainty (qat’i); for confluence brings about a strength which distinction lacks. For this reason the tawatur results in certainty, for it is a variety of induction. . . and this (tawatur) resembles al-tawatur al-ma’nawi.90

The authoritativeness of consensus, Shatibi concludes, squarely rests on this principle.

It may be relevant here to note that a century before Shatjbi, Shihab ai-Din al-Qarafi (d. 684/1285) set forth a number of Qur’anic verses and traditions and argued, albeit rather succinctly, that on the basis of the stated textual evi-


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dence and through the application of the method of complete induction. it is known beyond arty doubt that the consensus of the umma is authoritative and infallible.91

After an examination of the theories of Ghazali, Amidi, and Shatibi, there remains little doubt that it was primarily the. concept of custom and the method of complete induction on the basis of ahaditraditions and equivocal Qur’anic verses (and rational arguments thereof) which were responsible for establishing the authoritativeness of consensus and for saving the Sunni jurists from falling into the trap of circularity. While the great majority of later usulists formulated and presented their arguments each in his own way, the major points which were argued remained essentially the same as those presented by Ghazali, Amidi, and Shatibi. Of those jurists who dealt with this subject, we need only mention lsnawi (d. 772/1370),92 lbn al-Humam (d. 861/1456) and his commentator lbn Amir aI-Hajj (d. 879/1474),93 and Ansari (d. 1119/1707) and his commentator Ibn ‘Abd al-Shakur (d. 1225/ l810).94

To illustrate how later jurists dealt with the problem of authoritativeness it must suffice here to discuss briefly the arguments of Ansari and lbn ‘Abd al-Shakur. They first state that consensus is definitely authoritative and leads to certain knowledge (al-ilm al-jazim). The basis of its authority is the mutawatir texts whose authenticity is known through custom.96 The law of custom would have made it impossible for all the companions of the Prophet to agree on any matter including the reprehension of those who diverged from their beliefs and practices, unless they knew about a conclusive and unambiguous text (nass qat’i) prohibiting dissent and enjoining solidarity. The unqualified acceptance of consensus as a conclusively authoritative principle was brought about by the fact that the number of the companions and the successors (aI-tabi’un) who must have adopted consensus on textual grounds was at least equal to the number required in the mutawatircategory.96 Such an acceptance was also brought about by concrete mutawatir texts. But before dealing with these texts Ansari and Ibn ‘Abd al-Shakur cite Qur’an IV: 115 and II:143 and conclude that although these verses can be adduced in justification of consensus, they are indecisive and thus cannot yield certainty, The texts which bring about certainty are the traditions of the Prophet to the effect that the community is infallible (ma’uma). These traditions are mutawatir bil-ma’na; the number and the fashion in which all these traditions were transmitted is identical to that of themutawatir. The difference, however, is in the text of the traditions, The theme of the infallibility of the community was expressed in. each of these traditions in different words, whereas in amutawatir lafzi tradition the language is the same in all channels of transmission. The question as to how one can know that these traditions lead to a certain knowledge of the infallibility of the community is answered by Ibn ‘Abd al-Shakur when he says that the common meaning of their sum total (al-qadr al-mushrarak), known by means of an inductive survey of the historical reports and events (mutala’at al-akhbar wal-waqa’i) concerning the infallibility of the consensus of the community, leads to such certain knowledge. An inductive survey can yield corroborative evidence, such as the


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practice. of the companions (on the basis of a presumed text) of reprehending those who would diverge from the accepted norm, which further proves the authoritativeness of cansensus.97

VIII

While formulating their theories the Sunni jurists were acutely aware of the danger of falling into logical contradictions. Most usulists writing after the fourth/tenth century consciously strove to avoid what they called dawr, that is, petitio principii. As we have seen in the theories of Amidi and Ghazali, and as later emphasized by Ibn al-Humam, Ansari, and others, dawr was avoided by arguing that traditions, the major scriptural basis which had been advanced in justification of consensus, were authenticated by ‘ada rather than by consensus. By the same token, they paid careful attention not to fall into a trap when discussing the doctrine of abrogation (naskh). Insofar as this doctrine pertained to consensus, it was held by all Sunni jurists that consensus cannot be abrogated by the Qur’an and the Sunna nor can it abrogate either of them.98 The reason for this is that consensus was recognized to be an operative doctrine only after the death of the Prophet when revelation had ceased (ba’da inqita’i al-wahy). During the life of the Prophet consensus was of course unnecessary, because the Prophet was the ultimate source of revelation and he was not in need of the approval of his companions. But after his death, consensus, claimed the jurists, became indispensable because it was the only means through which certainty about any matter could be reached. Thus, consensus could not abrogate the Qur’an and the Sunna because it became operative only after the revelation was completed, and any act of abrogation by consensus would have undoubtedly meant that consensus was concluded on a judgment (hukm)contrary to, or to say the least, different from, that which was decreed in the two divine sources. It is partly for this reason and partly because consensus chronologically occurred after revelation that the Qur’an and the Sunna cannot abrogate consensus.99

This doctrine of abrogation not only is in consonance with the arguments adduced to establish the authoritativeness of consensus but is also used by such later scholars as Mulla Khusraw (d. 885/1480) and Izmiri (d. 1166/1752) to further argue, ex post facto, on rational grounds in favor of authoritativeness. They maintain that consensus, which rests on mutawatira bil-ma’na traditions which in turn are authenticated by custom, is infallible and thus irrepealable, whereas even the strongest Qur’anic verses or traditions can be subject to abrogation by each other. This universally acknowledged doctrine proves that consensus can take. precedence over the two sources in the sense that consensus leads to more certainty and is less susceptible to revocation than these two sources. Because of this fact, they reason, the authoritativeness of consensus must be recognized.100 It is to be noted that Mulla Khusraw and Izmiri are aware of the fact that consensus cannot repeal verses from the Qur’an or hadiths from the Sunna. Their conclusion that consensus takes precedence over the texts must be understood only in rclation to the degree of certitude yielded rather than to the competence to abrogate.


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IX

From the foregoing discussion a certain pattern of development in the arguments adduced in justification of consensus can be detected. Shafi’i, viewing consensus as a sanctioning instrument rather than a shar’i source of law, found it sufficient to argue on grounds of a Qur’anic verse and two Prophetic traditions. Later jurists, however, elevated consensus to the status of a source of law, a source which has the authority of clothing legal rules with the mantIe of certainty. This new role of consensus called for a set of arguments which were different from, and perhaps superior to, the arguments adduced by Shafi’i. Obviously, it was impossible for jurists to produce mutawatirtraditions or decisive Qur’anic verses to this effect. The problem that posed itself now was related to the type of evidence that must be produced in justification of a principle which leads to certain knowledge.

Muslim jurists utilized three concepts in their endeavor to establish the conclusive authoritativeness of consensus. These were the concept of al-tawatur bil-ma’na, induction, and the originally theological concept of custom. In the, early period, the use of one concept did not chronologically coincide with or entail the use of the others. It seems that the notion of custom came to the fore sometime before al-tawatur bil-ma’na, as is clear from the writings of ‘Abd al-Jabbar and Abu Husayn al-Basri. The former knew of al-tawatur bil-ma’na as not an altogether well-defined and important concept; one which he considered to be less important than Qur’an IV: 115. That Basri rejected this type of tawatur and instead relied, as his predecessors did, on the Qur’an and custom to prove the authoritativeness of consensus is indicative of the fact that al-tawatur bil-ma’na had not yet been established as a concept of central importance. This fact is also confirmed by the absence of this concept in the theory of Juwayni and the young Ghazali.

Later, however, Ghazali argued for authoritativeness on the basis of mutawatir bil-ma’na traditions which are authenticated by custom. This line of argumentation came to be a standard formulation in the expositions of jurists. Two or three centuries after Ghazali, jurists, such as Shatibi and Qarafi, introduced inductive methods of reasoning, thereby giving the argument for consensus a decisive edge. But in Ghazali’s time the role of induction does not seem to have been fully appreciated. This can be seen in Ghazali’s manner of treating the potential evidence in favor of an authoritative consensus. There is nothing in what he said to indicate that his argument by “rational demonstration” was intended to give inductive support to the argument of al-tawatur bil-ma’na. Nor was the Qur’anic evidence used far such purposes. Amidi, on the other hand, was somewhat aware of the importance of the multiplicity of evidence. This is why he expounded virtually every argument and all the pieces of evidence of which he was aware. In this he may be said to have anticipated the articulate theories of Qarafi and Shatibi. The latter maintained that all pieces of evidence, whether traditions, verses, or other types of argument, must be taken into account because each additional piece of evidence enhances, by means of inductive support, the argument for authoritativeness. He argued that through


450the complete enumeration of such evidence certain knowledge can be reached with regard to consensus as an authoritative doctrine.101

With the theory of Shatibi, the Sunni argumentation for authoritative consensus seems to have come full circle. Jurists after Shatibi seem to have confined themselves to reformulating and rediscussing what their predecessors had said, with, however, one addition. This is an argument (made by Mulla Khusraw and Izmiri, among others) which proves from the point of view of certitude the superiority of consensus to the Qur’an and the Sunna. It cannot be contended, , however, that this argument leads to a petitio principii or that it makes consensus appear absurd for being superior to the sources from which it derives its own authority because this argument is advanced with the knowledge that (I) the authoritativeness of consensus must, as a prerequisite, be established by the texts. and (2) that consensus can by no means abrogate either the Qur’an or the Sunna.

Given that we accept as true premises whatever the mainstream Muslim scholarship designates as propositions-and we have no right to do otherwise- there is nothing in the theories of jurists after Juwayni to indicate that their arguments for proving the authoritativeness of consensus were less than convincing, whether we view them from the standpoint of logic, law, or theology.

MCGlLL UN[VERSITY

NOTES

Author’s note: This is a realized version of a paper presented at the Eighteenth Annual Meeting of the Middle East Studies Association, San Francisco, November 28-December 1, 1984. 

1Writers on legal theory (Usul al-fiqh) disagreed upon life question of who counts in consensus. A commonly held view, however, was that on general issues the community, the umma, can reach a consensus, but on technical and specialized points of law only qualified jurists, the mujtahids,count. See Abu Hamid al-Ghazali:, al-Mustasfa min ‘ilm al-Usul, 2 vols. (Cairo, 1322 H.), vol. I, p. 181 ff.; al-Khatib a!-Baghdadi, al-Faqih wal-mutafaqqih. 2 vols. (Beirut, 1975), vol. I. p. 172.

2The definition of qiyas differs from one jurist to another. Thus one may find that in addition to analogy, qiyas encompasses reductio ad absurdum, a fortioriarguments, deduction. and induction. On the role of deduction in law see Hasan Abdel-Rahman, “La place du syllogisme juridique dans la methode exegetique chez Gazali,” in H. Hubien, ed., Le raisonnement juridique(Brussels, 1971)pp. 185-194. On the use of these arguments see my forthcoming articles, “The Logic of Legal Reasoning irt Religious and Non-Religious Cultures: The Case of Islamic Law and Common Law,” ClevelandState Law Review. and “Non-Analogical Arguments in Sunni Juridical Qiyas.”Also: Abu Hamid a-Ghazali, Mi’yar al-‘ilm fi fann al-mantiq (Beirut, 1964), pp. 32-33, 113- 137, 154, 182 ff.; Abu al-Husayn al-Basri, Kitab a/-qiyas al-shar’i,printed with a/-Mu’tamad fi usul al-fiqh, ed. Muhammad Hamidullah et al., 2 vols. (Damas, 1964-65), vol. II, p. 1031; Muhammad b. ‘All al-Shawkani, Irshad al-fuhul ila tahqiq al-haqq min ‘ilm al-usul (Cairo, 1909), p. 198.

3Abu Ishaq al-Shirazi, al-Luma’ fi usul al-fiqh (Cairo, 1326 H.), pp. 56-58; Abu al-Walid Muhammad Ibn Rushd, Bidayat al-Mujtahid, 2 vols. (Cairo, 1974), vol. I, p. 6. The great majority of jurists upheld the infallibility of the community and, consequently, the conclusive certainty of consensus. See Jamal aI-DIn al-lsnawi, Nihayat a!-sul fi sharh minhaj al-wusul,, a commentary on Baydawi’s Minhaj al-wusul ila ‘ilm al-usul, 3 vols. (Cairo, 1316 H.), vol. II, pp. 166-167; Muhammad b. AIi al-Shawkani, Irshad a/-fuhul. pp. 78-79.

4See, for instance, tbe argument of M. M. Bravmann. The Spiritual Background of Eorly Islam(Leiden, 1912), pp. 194-198. See further below.


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5Most noteworthy of the sectarian critics of consensus are the. Rafida (Imamiya) of the early Shi’a, the Isma’iliyya and the Mu’tazili scholar Ibrahim al-Nazzam (d. between 220/835 and 231/845). See Imam al-Haramayn al-Juwayni, a/-BurhaI fi Usul al-fiqh, ed. ”Abd al-Azim Dib, 2 vols. (Cairo, 1979), vol. I, p. 676; Baghdadi, Faqih, vol. I, p. 154; Sayf aI-Din al-Amidi, al-Ahkam fi usul al-Ahkam, 3 vols. (Cairo, 1968), vol. I, p. 166. For the criticism of the later Fatimi scholar al-Qadi al-Nu’man, see his lkhtilaf usul al-madhahib, ed. S. T. Lokhatndwala (Simla, 1972), pp. 56-115. Cf. Mari3 Hernand, “L’gma’ chez ‘Abd al-Gabbar et I’objection d’an-Nazzam,” Studia lslamica,30 (1969), 34 ff. who questions the later accounts attributing to Nazzam his position against consensus.

6Cf. Camille Mansour, L’autorite dans La pensee musulmane (Paris, 1975), pp. 60 ff.

7C. Snouck Hurgronje, “The ‘Foundations’ of Islamic Law,” in Selected Works, eds. G. H Bousquet and J. Schacht (Leiden, 1915), p. 275.

8Ibid., p. 276.

9Hurgronjc, “Sur la nature du ‘droit’ Musulmane,” in Selecled Worke, ibid., p. 227; trans. cited from G. Hourani, “The Basis of Authority of Sunni Consensus,” Studia Islamica, 21 (1964), 51-52.

10Hurgronje, “The ‘Foundations’,” p. 289.

11Idem, .’Nature du ‘droit’,” p. 226.

12N. J. Coulson, A History of Islamic Law‘ (Edinburgh, 1964), p. 77.

13Joseph Schacht, The Origins of Muhammadan Jurisprudence (Oxford, 1950), pp. 2, 94, 135.

14Hourani. “The Basis of Authority,” pp. 13-60, especially pp. 49-54.

15Ibid., pp. 14-l5: “Thus no assumption is being made at all that consensus is an essential part ofIslam, nor even that Traditions of the Prophet are so, though they will be considered seriously,” (Italics are mine.)

16Ibid., p. 59.

17Ibn Hazm, al-lhkam fi Usul a/-ahkam, 2 vols. (Cairo, 1918), vol. I, p. 12. See also Juwayni,Burhan, vol. II, p 152.

18Ibn Hazm, lhkiim, vol. I, pp. II, 108. On Qur’anic verses and hadith asserting that the Sunna is part of revelation see Baghdadi, Faqih, vol. I, pp. 90 ff., 94; Ibn Idris al-Shafi’i, al-Risala, ed. M. S. Kilani (Cairo, 1969), par. 236-257; Abu ali al-Farisi, Jawahir al-usul fi ‘ilm hadith al-rasul (Madina, 1973), p. 4.

19Ibn Batta, Kitab al-sharh wal-ibana ‘ala usul al-Sunna wal-diana, ed. and trans. H. Laoust (Damascus, 1958), pp. 56 ff. (Arabic text).

20Ibn Hazm, al-Ihkam, vol. I, p. 318.

21The mutawatir traditions are transmitted by countless persons who hear or see the Prophet say or do a certain thing and, at each stage of transmission. the tradition is also transmitted by countless persons. The large number of transmitters makes it inconceivable that the witnesses or the transmitters could have agreed on falsifying the report. Because of the authenticity of such a report and the certitude surrounding its transmission, the mutawatir traditions are said to Iead to certain knowledge of what they contain. Traditions transmitted by fewer peop!e than those who have witnessed and transmitted the mutawatir traditions are considered ahadi, which do not lead to certain knowledge of the information they convey. Later jurists and theologians distinguished a third type of tradition which they termed mustafid. This type stands in the middle between the mutawatirand the ahadi. See Ibn Khalaf al-Baji. Kitab al-hudud fi al-usul, ed. N. Hammad (Beirut, 1973), p. 62; ‘Abd al-Qahir aI-Baghdadi, Usul al-Din (Beirut, 1928), p. 12.

22Goldziher, Muslim Studies, ed. S. M. Stern, trans. C. R. Barber and S. M. Stern (New York, 1971), vol. II, p. 25; Bravmann, Spjritual Background, p. 197; Fazlur Rahman, lslamic Methodology in History (Karachi, 1965), pp. 18, 19.

23Rahman, Islamic Methodology, p. 19

24The Arabic: “Ma ra’uhu al-muminuna hasanan fahuwa ‘inda Allahi hasanun wama ra’uhu al-muslimuna qabihan fahuwa ‘inda Allahi qabih.” This is also in line with the statement attributed to Ibn ‘Abbas: “if you hear from me a saying in the name of the Prophet and you find that it does not agree with the book of God or is not liked by people (falam tajiduhu hasanan ‘inda al-nasi), know that I have reported a lie about the Prophet.” Goldziher, Muslim Studies, p. 133; Schacht, Origins,p. 86.

26For the intellectual formulations of the later period (sixth-seventh/twelfth-thirteenth century) see Bernard Weiss, “The Primacy of Revelation in Classical Islamic Legal Theory as Expounded by Sayf aI-Din al-Amidi,” Studia Islamica, 59 (1984), 79-109.


452

26Normal Calder, “Ikhtilaf and Ijma’ in Shafi’i’s Risa!a,” Studia Islamica, 58 (1984), 16-71. l

27Ibid., pp. 77-78; Shafi’i, Risala, par. 1328-1332, especially 1331.

28Cited in Schacht, Origins, p 92, from Kitab ikhtilaf Malik wal-Shafi’i. 

29Shafi”i, Risala, par. 1312.

30Ibid., par. 252-257, 266,1329, passim. 

31lbid., par. 266

32Ibid. par. 1102. 

33Ibid., par. 1315.

34Shafi’i’s reference to this verse is mentioned in the much later works of Ahmad b. al-Husayn al-Bayhaqi (d. 458/1065), Ahkam a/-Qur’an, 2 vols. (Beirut, 1975), vol. I, p. 39, also p. 32, and the biographical work of Taj aI-Din al-Subki (d. 771/1369), Tabaqat al-Shafi’iyyat al-Kubra, 6 vols. (Cairo, 1906), vol. II, p. 19. See also I. Goldziher, Introduction to Islamic Theology and Law, trans. Andras and Ruth Hamori (Princeton, 1981), p. 51. Schacht, Origins, pp. 90, 91, does not seem to have found the verse in any of Shafi’i’s discussions on the authority of consensus. Further on this point see Abdel-Magid Turki, “L’ijma’ Ummat al-mu’minin entre la doctrine et l’histoire,” Studia Islamica, 59 (1984), 60 (n. 1)-63, 70 (n. 1)-71.

35Shafi’i, Risala, par. 1319-1320. 

36Shawkani, Irshad, p. 71 (line 24); “Consensus is the agreement of the mujtanids of the community of Muhammad. . . 011 a certain matter in a certain age (Ittifaqu mujtahidi ummati muhammadin . . ..fi  asrin min al-ansari ‘ala amrin min al-umur).”

37Unfortunattoly, the parts of Jassas’s Usul al-fiqh which deal with consensus are still in manuscript and are not available to me. Here I draw on the quotations and discussion found in. A. Hasan, The Doctrine of Ijma’ in Islam (Islamabad, 1976), pp. 40 ff. Hasan used Ms. 229-Usul, Dar al-Kutub al-Miisriyya, Cairo. My analysis of Jassas’s theory will go as far as the material quoted by Hasan will allow.

38These traditions are: (I) “My community shall never agree on an error”; (2) “The hand of God is with the community”; (3) “A section of my community will continue to follow the truth”; (4) “Whoever separates himself from the Muslim community even a span, throws away the tie of Islam from his neck”; (5) Hudhayfa is reported to have asked the Prophet: “What can save me from it [schism]?” whereupon he replied: “The community of Muslims and their leader.”

39AI.Qadi al-Nu’man, Ikhtilaf, pp. 56-58, 77 ff.

40‘Abd al-Jabbar, Mughni fi abwab al-tawhid wal-adl, ed. Amin al-Khuli (Cairo, 1963), vol. XVII, p. 212. See also Bernard, “L’ijma’ chez ‘Abd al-Gabbar,” pp. 27 ff.

41‘Abd al-Jabbar, vol. XVII, pp. 199, 206.

42Ibid., p. 160; “li annahum law lam yakunu hujjatan lam yajib dhalika fihim.”

43Ibid., p. 164 (line 2). It is rather difficult to square “rational evidence” in this context, as this runs in diametrical opposition to ‘Abd al-Jabbar’s argument as it has thus far been outlined.

44Ibid., pp. 165-167. 

45Ibid., p. 170.

46Ibid., pp. 196-203.

47Ibid., pp. 171 ff., 178. 

48Ibid., pp. 172-175.

49Ibid., pp. l80-181. Samples of these versions have already been given by Shafi’i and Jassas.

50Ibid.. pp. 182-185. 

51Ibid., pp. 186-188, 190. It must be noted in this context that the meaning of certain passages is difficult to make out. Evidently there are gaps in the texts which have not been pointed out by the editor. Confusion can also be detected in the attribution of the arguments to their proponents; i.e., the roles of the interlocutor and ‘Abd al-Jabbar are sometimes switched. See, e.g., p. 186, lines 13. 18.

52On the concept of ‘ada see. H. Wolfson, The Philosophy of the Kalam (Cambridge, 1976), pp. 544-551. A highly elaborate treatment of ‘ada can be found in volume XV of ‘Abd a!-Jabbar’sMughni (On Prophecies and Miracles), pp. 335-382, especially pp. 337, 346 ff., 368 ff.

53‘Abd al-Jab bar. Mughni, vol. XV, p. 353.

54John Wansbrough, The Sectarian Milieu (Oxford, 1978), pp. 81 ff. 

55‘Abd al-Jabbar, Mughni, vol. XV. pp. 354-355.


453

56Ibid., vol. XVII, p. 203. 

57Basri, Mu’tamad, vol. II, pp 459-478; trans. of the chapter on consensus with critical commentary by M. Bernand, L’accord unanime de la communaute comme fondement des statuts legaux de l’Islam (Paris, 1910), pp. 13-35, 128-l32.

58Baxri, Mu’tamad, vol. II, pp. 411-474. Bernand’s trans. pp. 26-30. 

59Juwayni, Burhan, vol. I, p. 679.

60Juwayni, Ghiyath a/-umam fi iltiyath al-zulam, ed. F. ‘Abd al-Mun’im and M. Hillmi (Iskandariyya, 1979), p. 30; idem, Burhan vol. l, p. 678.

61Juwayni, Ghiyath, pp. 34-35; Burhan, vol. I, p. 679 at II. 3-8. 

62Juwayni, Ghjyath, p. 34; idem, Burhan, vol. I, pp. 671-679, 683. Clearly, Juwayni was well aware of the then developing concept of al-tawatur bil-ma’na, which has already been noted but also rejected by Abu al-Husayn al-Basri (see Juwayni’s al-Kafiya fi al-jadal, ed. F. H. Mahmud [Cairo, 1979], p. 94). According to this concept–to be discussed in full later–the authoritativeness of consensus rests on a multitude or ahadi traditions which have in common one meaning, i.e., that the community is infallible. Those who espouse this view explain that because these ahaditraditions were transmitted by so many transmitters who could not have known each other tbey cannot be spurious. Although some of  Juwayni’s predecessors rejected al-tawatur bil-ma’na (or epistemological and theological reasons, there is good reason to believe that Juwayni discarded this concept on political grounds. In his Ghiyath al-umam, a political treatise which aims ill part at the advocation and Iegitimation of the Sunni political regime against the Shi’i claims, Juwayni discusses what he calls the spurious traditions which contain the words of the Prophet appointing ‘Ali as his successor. He remarks that the Imamiyya cIaims the right to the Caliphate on the basisof these widespread traditions (pp. 19-20; nassun sha’i’un walafzun mustafid). These traditions, Juwayni argues, are merely ahadis, (or they are not known to have: been transmitted on a wide scale (tawatur) in the community (pp. 22-23). Such ahadi traditions, however they are transmitted, cannot lead to certainty, and thus cannot be used in such serious matters of government as designating a caliph. Juwayni immediately goes on to say that caliphs are appointed by ikhtiyar(election), and the authoritative basis of such election is the infallible consensus of the community (p. 34). Obviously, when Juwayni proceeded to establish tbe authoritativeness of consensus he could not use the principle of tawatur bil-ma’na, since he had just discarded it as incapable or inducing certainty.

63Juwayni, Burhan, vol. l, pp. 680-681; idem, Ghiyath, pp. 36, 40-41. 

64JuwaynI, Burhan, vol. I, p. 682.

65lbid. 

66Juwayni, Ghiyath, p. 41 at II. 8-10 In effect, he states the same thing but in a less direct manner in Burhan, vol. I, p. 683 at II 8-9.

67Juwayni, Burhan, vol. I, p. 683 at II.8-12.

68Ghazali, al-Mankhul min ta’liqat al-usul, ed. M. H. Haytu (Damascus, 1970), pp.105-109,especially p. 307. 

69Ghazali, Mustasfa, vol. I, p. l15 at 1.1. 

70In addition to the tradition about Satan quoted by Shiai’i and the traditions nos. 1-4 quoted by Jassas (note 38 above) Ghazali cites the following: (1) “God would not allow my community to agrre on an error”; (2) “l have asked God, exalted may he be, not to allow my community to agree on an error, and He answered my request”; (3) “God does not pay attention to those who diverge”; (4) “They [i.e., the community of Muslims] will not be harmed by the disagreement of those who differ with them”; (5) “If a person leaves the community and dies, be will be considered to have died in the days of Jahiliyya.” See. Ghazali, Mwtasfa, vol. I, p. 175.

71Immediate knowledge is that which is forced on the mind through means of sense perception and divine revelation, without inference and reasoning. Such knowledge cannot be doubted. Mediate or discursive knowledge (”ilm nazar or muktasab), on the other hand, is that which occurs to the mind by reflection and inference. Baji, Hudud, pp. 25-27; Baghdadi, Usul al-din, p. 8.

72Ghazali, Mustasfa, vol. I, p. 177. 

73See also similar arguments in Shirazi, Luma’. p. 47; Ibn Taymiyya, a/-musawwada fi usul al-fiqh(Cairo, 1964), p. 319; Ibn Nizam aI-Din al-Ansari, Fawatih al-rahamut, printed with Ghazali’sMustasfa, 2 vols. (Cairo, 1324 H.), vol. II, pp. 119-120. For the opinions of Shirbini, Fanari and Taj aI-Din al-Subki see Jam’ a/-jawami’. 2 vols. (Bombay, 1910), vol II, p. 130.


454

74Ghazali, Mustasfa, vol. 1, pp. 177-178. 

75Ibid., p. 176.

76Abu Bakr al-Sarakhsi, Usul, ed. Abu al-Wafa al-Afghani, 2 vols.. (Cairo, 1372 H.), vol. I,  pp. 296-299.

76AI-Khatib al-Baghdadl, Faqih, vol. I, pp. 167-168.

78Amidi, Ihkam, vol. I, pp. 150-162.

79For Amidi’s interpretation of the verses see Bernard Weiss, “AI-Amidi on the Basis of Authority of Consensus,” in Donald P. Littte, Essays of Islamic Civilization (Leiden, 1976), pp. 344-351.

80lt is of interest to note here that a number of later usulists claimed that Amidi held the authoritativeness of consensus to be zanni rather than qat’i, i.e., that consensus, when it is reached on a case of law, does not render the said case conclusive and irrevocable. Fakhr ai-Din al-Razi (d. 606/1209) was said to have held the same view. IN al-Ihkam there is nothing to substantiate such claims about Amidi. However, it is possible that Amidi held such views in his other works on legal theory or kalam. See the commentary of Sh. Muhammad Ismail on Tahdhib sharh al-ismawi ‘ala minhaj al-wusul ila ‘ilm al-usu/, 3 vols. (Cairo, 1976), vol. Il, p. 263.

81See Weiss, “Al-Amidi,” pp. 351 ff. Of the sixteen traditions Amidi quotes, two have not so far been listed here. These are: (I) “Stay with the great majority”; and (2) The Prophet said: “My people will be divided into more than seventy sects, all of which will go to the fire [of HeII] except one.” The Prophet was then asked: “Which sect is in” and he replied: “My community.” Amidi, Ihkam, vol. I, p.163.

82AmnidI, Ihkam, vol. I, pp. 163, 234. 

83Ibid., pp. 237-238. 

84lbid., pp. 164, 238.

85Taqi al-Din Ibn Taymiyya (d. 728/1327) also advanced all argument similar to that of Amidi. Seeal-Musawwada, pp. 317-319; on aI-mutawatir bil-ma’na traditions, pp. 235, 243.

86Abu Ishaq al-Shatibi, al.Muwaffaqat fl usul al-ahkam, ed. M. D. ‘Abd al-Hamid. 4 vols. (Cairo, 1969), vol. I, p. 10; vol. II, p. 40.

87Ibid., vol. I, p. 12.

88Ibid., pp. 14, 16-17. 

89Ibid., p. 15. 

90Ibid., p. 13.

91Shihab al-Din al-Qarafi, Sharh tanqih al-fusul, ed. T. Sa’d (Cairo, 1973), pp. 324-325; on the principle of aI-tawatur bil-ma’na, see pp. 356-357.

92Jamal al-Din al-Isnawi, Nihayat al-sul fi sharh minhaj al-wusul, 3 vols. (Cairo, 1317), vol. II, pp.153-167.

93Kamal aI-Din Ibn al-Humam, al-Tahri, with the commentary al-Taqrir, wal-Tahrir by lbn Amir al-Hajj, 3 vols. (Cairo, 1317 H.), vol. lll, pp. 83-86.

94‘Ansari, Fawatih, vol. II, pp. 213-217.

95Ibn ‘Abd al-Shakur, Musallam, vol. lI, pp. 119-120, 213. 

96lbid., p. 214. 

97lbid., p. 216.

98Baghdadi, Faqih, vol. I, p. 123; Pazdawi, Usul, With the commentary Kashf al-asrar by ‘Ala’ al-Din ‘Abd al-‘Aziz. al-Bukhari, 4 vols. (Beirut, 1308 H.), vol. III, p. 116; Ghazali, Mustasfa, vol. I, p. 126; Ibn ‘Ali al-Farisi, Jawahir, p. 41; Izmiri, Hashiya ‘ala sharh mirqat al-wusul, a commentary onMir’at al-wusul by Mulla Khusraw, 2 vols. (lstanbul, 1891), vol. Il, p. 181; QarafI, Sharh, p. 314; Subki, Jam’, vol. ll, p. 76; Ansari, Fawatih, vol. II. p. 81.

99Baghdadi, Faqih, vol. II. p. 181; Qarafi, Sharh, p. 314; Subki, Jam’, vol. III, p. 76.

100See Izmiri, Hashiya, vol. Il, pp. 255-256.

101The great majority of modern Arabic authors on usul al-fiqh reproduce the medieval arguments as thus far outlined. See, e.g., Muhammad al-Khudari, Usul al-fiqh, 4th ed. (Cairo, 1962), pp. 314-316. The emphasis on induction as a means of establishing the authoritativeness of consensus also appears in some of these works. See, e.g., ‘Abd al-Fattah Husayni. al-ljma’ masdar hadith min masadir al-tashri al-Islami (Cairo, 1979), p. 280.

 
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Posted by on July 29, 2012 in Fiqh

 

Wael Hallaq on Hadith

The authenticity of Prophetic Hadith:
A Pseudo-problem

Wael Hallaq

Courtesy: Studia Islamica
99 (1999), pp. 75-90

 


The most central problem associated with Prophetic hadith has undoubtedly been their authenticity. This issue occupied Muslim specialists since the early classical period, and has continued to command the intense attention of western scholars since the middle of the last century. Gustav Well was one of the first, if not the first, to suggest, as early as 1848, that a substantial bulk of thehadith should be regarded as spurious (1). In 1861, Aloys Sprenger in effect argued the same point (2). But it was Ignaz Goldziher who inaugurated the critical study of the hadith’s authenticity. Concerned with the early evolution of Islamic dogma and theology, Goldziher concluded that the great majority of the Prophetic hadith constitute evidence not of the Prophet’s time to which they claim to belong, but rather of much later periods (3). Goldziher’s critical approach to hadith was taken further, and indeed refined, by Joseph Schacht who insisted that insofar as legal hadith are concerned, they must be assumed fictitious until the contrary is proven (4).
An earlier version or this paper was presented at a conference on hadith held at the School of oriental and African Studies, University or London. March 19-21. 1998. I should like to thank the participants who commented on my presentation, notably M. Qasim Zaman, Lawrence Conrad and Harald Motzki.

(1Geschichta der Chalipben, 5 vols. (Mannheim; Friedrtch Bassermann, 1846-62), II, 289 ff.

(2Das Leben und die Lebre des Mohammad, 3 vols. (Berlin; Nicholalsche Verlagsbuchhandlung, 1861-5), III, Ixxvii-civ; idem, “On the Origin of Writing Down Historical records among the Musulmans; Journal of the Asiatic Society of the Bengal, 25 (1856); 303-29, 375-.81.

(3Muslim Studies, ed. S.M. Stern, trans. C.R. Barber and S.M. Stern, 2 vols. (London: George Allen and Irwin, 1971), II, 1989 ff., 126 ff. For a summary of Goldziher’s position, see James Robson, “Muslim Tradition: The Question or Authenticity,” Memoirs and Proceedings, Manchester Literary and Philosophical Society, 93, 7 (1951-2): 84-102, at 94 ff.

(4The Origins of Muhammadan Jurisprudence (Oxford: Clarendon Press, 1950).


76

Since Schacht published his monumental work in 1950, scholarly discourse on this matter has proliferated. Three camps of scholars may be identified: one attempting to reconfirm his conclusions, and at times going beyond them; another endeavouring to refute them; and a third seeking to create a middle, perhaps synthesized, position between the first two. Among others (5), John Wansbrough (6), and Michael Cook (7) belong to the first camp, while Nabia Abbott (8), E Sezgin (9), M. Azami (10), Gregor Schoeler (11) and Johann Fuck (12) belong to the second. HamId Motzki (13), D. Santillana. (14), G.H. Juynboll (15), FazIur Rahman (16) and James Robson (17) take the middle position.

Despite significant differences in the methodologies and assumptions of these scholars, even within one and the same camp, and despite the fact that not all of them dealt with the problem of authenticity for its own sake (18) they all shall one fundamental assumption, namely, that

 

    (5) See: n. 19, below.

    (6Qur’anic Studies: Sources and Methods of Scriptural Interpretation (Oxford: Oxford University Press, 1977).

    (7Early Muslim Dogma: A Source-Critical Study (Cambridge: Cambridge University Press, 1981)

    (8) Studies in Arabic Literary Papyrus, II: Qur’anic Commentary and Tradition (Chicago: The University of Chicago Press, 1967), 7 ff.

    (9Geschichta des arabibischen Schrifitums, Band I: Qur’anwissenschaften, Hadith, Geschichte, Fiqh, Dogmatik, Mystik bis ca. 403 H. (Leiden: E.J. Brill, 1967), 53 ff.

    (10On Schacht’s Origins of Muhammadan Jurisprudence ( Riyadh: King Saud University, 1985); idem, Studies in Hadith Methodology and Literature (Repr., Indianapolis: American Trust Publications, 1992)

    (11) “Die Frage der schriftichen oder mundlichen Uberleifreung der Wissenschaften im fruhen Islam,” Der Islam, 62 (1985): 201-30; idem, “Weiteres zur Frage der schriftlichen oder mundlichen Uberlieferung der Wissenschaften im Islam,”Der Islam, 66 (1989): 38-67; idem, “Munliche Thora und Hadith: Uberlieferung, Scheiberbot, Redaktion,” Der Islam, 66 (1989); idem, “Schreiben und Veroffentlichen: Zu Verwendung und Funktion der Schrift in den ersten islamischen Jahrunderten”, Der Islam, 69 (1992): 1-43.

    (12) “Die Rolle des Traditionalismus im Islam”, Zeitschfit der Deutschen Morgenlandischen Gesellschaft, 93 (1939): 1-32. For a summary of Fuck’s position, see Robson, “Muslim Tradition”, 96-8. 

    (13) Die Anfange der islamischen Jurisprudenz: Ibre Entwickhung in Mekka bis zur Mitte des 2/8, Jabrbunderts (Stuttgart: Franz Steiner, 1991): idem, “Quo vadis Hadith-Forschung, Elne kritische Untersuchong von G.H.A. Juynboll: ‘Nafi’ the mawla of Ibn Umar, and his position in Muslim hadith Literature,” Der Islam, 73 (1996): 40-80; idem, “The Musannaf of ‘Abd al-Razzaq al-an’ani as a Source of Authentic Ahadith of the First Centure A.H.”, Journal of Near Eastern Studies, 50 (1991): 1-21; idem, “Der Fiqh des Zuhri: Die Quellenproblematik”, Der Islam, 68 (1991): 1-44. 

    (14) For Santillana’s position, see Robson, “Muslim Tradition”, 95.

    (15Muslim Tradition: Studies in Chronology, Provenance and Authorship of Early Hadith (Cambridge University Press, 1983).

    (16Islam (Chicago and London: University or Chicago Press, 1979), 43 ff; Idem, Islamic Methodology in History(Karachi: Central Institute of Islamic Research, 1965), 1-24, 27-82.

    (17) “Muslim Tradition”, 84-102; Idem, “Tradition: Investigation and Classification”, Muslim World, 41 (1951): 98-112; idem, “The isnad in Muslim Tradition”, Transactions of the Glasgow University Oriental Society, 15 (1953-4): 15-26.

   (18) Admittedly, a number of historians subjected hadith to the same historiographical apparatus they applied to other types of  historical narrative, thus circumventing the issue of authenticity altogether. Although in practical terms their approach is the desideratum, the problem remains, theoretically and epistemologically, unsolved. 


77

the early and medieval Muslim scholars espoused the view that the Prophetic hadith literature is substantially genuine, and that despite the relatively large scale forgery that took place in the early period, the literature, at least as it came to be constituted in the six so-called canonical collections, has been successfully salvaged and finally proven to be authentic. It is only against this backdrop of traditional religious assumptions that the modem controversy can make any sense. For if the mainstream traditional scholarship was perceived not to have made claims for the authenticity ofhadith there would be little, if anything, to argue against. In fact, if these were not the perceived traditional claims, there would have been no controversy to begin with, since the issue would in no way pose a problem.

One would expect that before any ink had been spilt in commenting on the problem of authenticity (19), it would have been a fundamental requirement first to define the traditional Muslim position with regard to this specific question. If mainstream Muslim scholarship considered the hadithliterature: to be a true representation of the actual words of the Prophet, then by what epistemological yardstick did they measure the veracity of that literature? Furthermore, we should have asked – before Goldziher, Schacht, and their like began to expend so much scholarly energy in treating the matter – how the traditional Muslim criteria for judging the authenticity of the Hadithtally with, or more importantly, epistemologically differ from our modern critical and scholarly criteria. In this short essay, I argue that the scl1olarly output concerned with authenticity since Well raised the issue a century and a half ago is largely, if not totally, pointless.

I have no new evidence to add to the massive repertoire of existing material, and nothing in my methodology here is unconventional. In fact, I shall – insofar as an author can minimize the divide between his sources and his reader – let the traditional position speak for itself. Once that position is clarified and defined, we will be able to conclude that traditional Muslim scholars have already solved the problem for us, and that we have needlessly expended much scholarly effort because we have not listened carefully to what these scholars have for so long been telling us.

 

    (19) The secondary literature dealing with the problem of authenticity is massive, and the contributors to the debate mentioned in nn. 1-17 are only among the most obvious. In the west, there are several others who wrote on the problem; in the Muslim world, the list of contributors to the debate, see James Robson, “Hadith”, Encyclopedia of Islam, New Edition, III (Leiden: E.J. Brill, 1979), 28.


p. 78

The evidence of my argument is derived from a familiar field of Islamic traditional discourse, a field that has escaped the attention of modern hadith scholarship. This is legal methodology, properly known as usul al-fiqh. In this methodology, Prophetic hadith is treated from a number of perspectives, but what concerns us here is the perspective of epistemology which seeks to order the types of hadith on a spectrum that ranges from the dubious to the certain, by way of the central category of the probable. Setting, for obvious reasons, the dubious aside, legal methodology acknowledges two categories, khabar al-wahid (or the ahad) and the mutawatir (20). Because of the modalities through which they are transmitted, the contents of the former are known only with probability, the latter with certainty (21).

In the following paragraphs, we shall define the two categories in terms of epistemology. It is a curiosity of legal methodology -a curiosity whose explanation is irrelevant here – that the ahad is defined in terms of the mutawatir; that is, the ahad can be identified and known only in terms of what the mutawatir is not (22). If this is the case, then what is the mutawatir? The common, and indeed indisputable, definition of this type of hadith is that it is any report that reaches us through textually identical (23) channels of transmission which are sufficiently numerous as to preclude any possibility of collaboration on a forgery. The persons who witnessed the Prophet saying or doing a particular thing, or merely approving an act or event tacitly, had to have been sure of what they observed, and their knowledge of what they witnessed must have been based on sensory perception (mahsus) (24). For the

(20) One jurist, for instance, stated the matter in unequivocal terms: “Reports are either tawatur or ahad. There is no third (category)” (al-akhbar imma tawatur aw ahad, la thalitha lahuma). See Ahmad b. Qasim al-Abbadi, al-Sharh al-Kabir ‘ala al-Waraqat, ed. Sayyid ‘Abd al-‘Aziz and ‘Abd Allah Rabi, 2 vols. (Madina (?): Mu’assasat Qurtuba, 1995), II, 403. Another jurist noted that there is no middle category between the two. See Muhammad Amin Amir Badishah, Taysir al-Tahrir: Sharh ‘ala Kitab al-Tahrir, 3 vols. (Mecca: Dal al-Baz, 1983), III, 37.

(21) ‘Ali b. Amr Ibn al-Qassar, al-Muqaddima fi al-Usul, ed. Muhammad Sulaymani (Beirut: Dar al-Gharb al-Islami, 1996), 65-6, 69.

(22) Muhammad b. Al ial-Tahanawi, Kashshaf Istilahat al-Funun, 2 vols. (Calcutta: W. N. Leeds’ Press, 1862), II, 1463.

(23) Meaning that all instances of transmission must be identical in their language (lafz). Hence the name al-tawatur al-lafzi which is given to this type of hadith in order to distinguish it from al-tawatur al-ma’nawi (to be discussed below).

(24) Shihab al-Din al-Qarafi, Sharh Tanqih al-Fusul fi Ikhtisar al-Mahsul fi al-Usul, ed. Taha ‘Abd al-Ra’uf Sa’d (Cairo: Maktabat al-Kulliyyat al-Azhariyya, 1973), 349; Muhammad b. al-Husayn al-Farra al-Baghdadi, al-Udda fi Usul al-Fiqh, ed. Ahmad al-Mubaraki, 3 vols. (Beirut: Mu’sassasat al-Risala, 1400/1980), III, 848; W.B. Hallaq, “On Inductive Corroboration, Probability and Certainty in Sunni Legal Though”, in Nicholas Heer, ed., Islamic Law and Jurisprudence: Studies in Honor of Farhat J. Ziadeh (Seattle and London: University of Washington Press, 1990): 10 ff.; Bernard Weiss, “Knowledge of the Past: The Theory of Tawatur According to Ghazali”, 61 (1985): 88 ff.


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hadith to attain the level of certainty, these conditions must obtain at all stages of transmission, from the first tier to the last (25).

A great majority of Muslim legal theoreticians (usuuliyyun) espoused the view that themutawatir yields necessary or immediate knowledge (daruri), whereas a minority thought that the information contained in such reports can be known through mediate or acquired knowledge(muktasab or nazari (26). In contradistinction to mediate knowledge, where by definition inference is the means of its acquisition, necessary knowledge is neither inferred nor does it allow for any mental or intellectual reflection. It is directly imposed upon the intellect without any awareness of the process through which knowledge obtained in the mind (27)When a person hears a hadith narrated by one transmitter, he is presumed to have gained only probable knowledge of its contents, and thus of its authenticity. To reach conclusive knowledge, the hadithmust be heard by this person a sufficient number of times, and each time it must be narrated by a different transmitter. Four or fewer instances of hearing such a hadith were deemed insufficient to constitute a tawatur transmission, since, the jurists argued, the qadi in a court of law must deliberate on the testimony of four witnesses (as well as investigate their moral rectitude) before he renders his verdict. This process of deliberation and reflection precludes the possibility of immediate knowledge obtaining, be it in the case of court-room witnesses or of hadithtransmission (28).

Some scholars fixed the minimum number of transmissions yielding tawatur at five, while others set them variably at 12, 20, 40, 70 or 313, each number being justified by a Qur’anic verse or some religious account (29). The inability to determine, on rational grounds, the minimum number of transmissions required, led Muslim jurists back to the  

(25) Qarafi, Sharh, 349-50; Muhammad lzmiri, Mir’at al-Usul fi sharh Mirqat al-Wusul, vols. (lstanbul: n.p., 1884), II, 199. Weiss, “Knowledge of the Past”, 88-9.

{26) ‘Abbadi. al-Sharh al-Kabir, II, 392-3. Abu Bakr Ahmad Ibn Sahl al-Sarakhsi, al-Muharrar fi Usul al-Fiqh. ed. Salah b. ‘Uwayda, 2 vols. (Beirut: Dar al-Kutub al-Ilmiyya, 1996), I, 213, 218 f.  

(27) W,B. Hallaq. A History of Islamic Legal Theories (Cambridge: Cambridge University Press, 1997), 37 ff. The Immediate knowledge which the tawatur engenders In the inteIlect eliminates any possibility of inference because themahsus. the original Prophetic cvent (deeds. words, tacit approval, etc.) perceived by the senses, are directly connected with the comprehension and sense-perception of the hearer. Thus, when one hears a mutawatir number or identical hadiths transmitted, the knowledge that accumulates therefrom is said to carry with it the actual original cxperience, as if it were the direct experience of the hearer himself. See Abu Ishaq al-Shirazi, al-absira fi Usul al-Fiqh, ed. M. Hasan Haytu (Damascus: Dar al-Fikr, 1980), 291, 293.

(28) Abu Bakr al-Baqillani, Tamhid, ed. R.J. McCarthy (Beirut: Librarie Orientale, 1957), 384; Qari, Sharh, 352; Farra’,Udda, III, 856; Sayf al-Din al-Amidi, al-Ihkam fi Usul al-Ahkam, 3 vols. (Ciro Matba’at Ali Subay, 1968), I, 230. 

(29) Amidi, Ihkam, I, 229; Imam al-Haramayn al-Juwayni, al-Burhan, ed. ‘Abd al-Azim Dib, 2 vols (Cairo: Dar al-Ansar, 1400/1979), I, 569-70; Farra, Udda, III, 856-7.


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intellect of the hearer as the point of reference for measuring the number of hadiths leading to conclusive, immediate knowledge. It turns out that it is the moment at which a person realizes that he is completely certain of the contents of a reported hadith which determines the number of transmissions required for that particular instance of transmission, not the other way round; the number may be decided only when immediate and conclusive knowledge has been reached (30).

Now, the khabar al-ahad is simply defined as any hadith which falls short of meeting the requirements of the mutawatir (31). It may be solitary throughout all tiers of its transmission, but it may begin as an ahad and later acquire added channels of transmission. If the total number of channels becomes at any tier three, four or even five, and continues to be transmitted through any particular number of channels, then it becomes known as mustafid (32). If, on the other hand, the channels multiply further so as to reach a tawatur number, then it becomes known as mashhur(33). A number of scholars espoused the view that the mashhur and the mustafid are identical, in the sense that they are two interchangeable names for any hadith that begins as an ahad and later acquires added channels of transmission (34). Some Hanafites argued that the mashhuryields acquired knowledge, but the general view seems to have been that since all these types originated as ahads , they engender only probable knowledge (35). In any event, no hadith of theahad category can, by itself, reach the level of tawatur; however many channels of transmission it may later acquire.

Probably sometime during the fourth/tenth century, but certainly not before the middle of the third/ninth, a new category of hadith was introduced. This category acquired the name al-tawatur al-ma’nawi, and we have every reason to believe that it was created in order to solve what was considered to be a formidable problem regarding the issue of  

(30) Farra’, ‘Udda, III, 855; Qarafi, Sharh, 352: Muwaffaq al-Din Ibn Qudama. Rawdat al-Nazir wa-Junnat ai-Munazir; ed,Say al-Din al-Katib (Beirut: Dar al-Katib al-‘Arabi. 1372/1952), 89; Fakhr al-Din al-Razi, Lubab of Isharatt (Cairo: Matba’at al-Sa’ada, 1355/1936), 27.

It !s to be noted that the determination of the rnutawatir was not in reality as subjective a matter as legal theory makes to be. The community jurists and traditionists did agree. In the great majority of cases, on which hadiths were mutawatir and which were not.

(31) Tahanawi, Kashshaf, II, 1463.

(32) Abbadi, al-Sharh al-Kabir; II, 404.

(33) The jurists differed on the details or such classifications. See Amir Badishah, Taysir; III, 37. It is to be noted that some hadiths of the mashhur type are considered spurious by the traditionists. Ibn Salah observes that there are hadiths of this type that “are attributed to the Messenger of God and circulate in the the marketplace, but which are fictitious”  (wa hunaka ahadith mashhura taduru ‘an Rasul Allah fi al-aswaq laysa laba asl). See his Muqaddimat Ibn al-Salah wa Mahasin al-Istilah, ed. ‘Aisha ‘Abd al-Rahman (Cairo: Dal al-Ma’arif, 1989), 451.  .

(34) Abbadi, al-Sharh al-Kabir, II, 404

(35) Amir Badishah. Taysir; III, 37.


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the authoritativeness of consensus (hujjiyyat al-ijma’) (36).Despite the limited use of this type oftawatur; it became nonetheless a widely recognized category, standing on equal footing with the regular mutawatir (technically known as tawatur lafzi) and the ahad. This latter type engenders, in terms of the Probability Theory in mathematics, a degree of probability in excess of 0.5 (certainty being 1.0). Now, when two ahadi hadiths relayed by different transmitters support a particular point or theme (ma’na), their probability together increases. If we assume that two ahadi hadithspossess in common a given theme, and the probability of each hadith being true is, say, 0.51, then the aggregate probability of their being true is increased to a degree higher than 0.51 but still significantly lower than 1.0. Then a greater number of such hadith, all being textually different and all having independent channels of transmission, possess in common the same theme, the knowledge of tl1is theme increases until it finally leads to a degree where it becomes both immediate and conclusive (37).

Now, before discussing the epistemic value of the three types outlined here, we shall do well to assess our own epistemic criteria for accepting historical narrative, since, after all, the issue at stake is whether or not we can take the hadith literature to be a true representation of what the Prophet had actually said or done. We have already said that if what Weil, Goldziher, Schacht and their ilk have argued against the hadith’s authenticity is to make any sense, it must be taken for granted that what they have assumed Muslim scholars to say is that the hadith is authentic, namely, that as a whole it represents what the Prophet said or did with certainty. It is inconceivable that these Orientalists would have made such drastic assertions had they understood traditional Muslim scholars to assert the veracity of the hadith merely in probabilistic terms. I for one do not believe that Goldziher, for instance, would have raised such a fuss over the reliability of the hadithas a historical source had he understood the traditional scholars to acknowledge that the hadith’sveracity cannot be known apodictically and that its authenticity can be asserted only in probabilistic terms.

In most instances involving the study of individual hadiths (the total numbering in the tens of thousands) it is frequently difficult to establish that a particular hadith represents a later fabrication. But if we are able to cast serious, or even some, doubt about a hadith’s authenticity, then, as careful historians – which I hope we are – we should either dismiss it entirely or, if it is only mildly problematic, use it in a circumscribed  

(36) On this, see Wael B. Hallaq, “The Authorit3tlveness of Sunni Coosensus”, International Journal of Middle East Studies, 18 (1986), 427-54.

(37) Amidi!, Ihkam. I, 232-3; Abu al-Walid b. Khalaf al-Baji, al-Minhaj fi Tartib al-Hijaj, ed. ‘Abd al-Majid Turki (Paris: Paul Geuthner, 1976), 76; Hallaq. “Inductive Corroboration”, 17 ff.


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manner with the full knowledge and awareness that it cannot constitute a reliable source. In either case, it is not to be trusted. We trust only a historical narrative that we believe with assurance to have originated with the event itself, and even then we must guard against “ideological” biases as well as a variety of other potential problems.

In terms of the Probability Theory, any narrative that we think to be equal to 0.51 or less is to be immediately dismissed. Compare this, for instance, with the case of a human birth, where the probability of the infant being a girl is 0.5, since the remaining 0.5 is assigned to the probability of its being a boy. If the probability of a hadith being true (=authentic) is only marginally higher (by 0.01 or even moderately more) than the probability of a certain new born being a girl (or for that matter a boy), then surely we have little reason, if any, to trust such a hadith as a credible historical datum. 

In this context, both the ahad and the tawatur al-ma’nawi fail to survive beyond the test of probability. The ahad is admittedly zanni, meaning that it engenders in the intellect a probability in the order of 0.51 or higher, but never, even in the most optimistic of circumstances, certainty. It is with this in mind that the Muslim jurists and traditionists readily acknowledged that the ahad is subject to mendacity and error, for probability itself is, by definition, liable to falsification (38). If the ahad is not to be trusted as a historical source, then al-tawatur al-ma’nawi is to be treated precisely in the same manner, for this type of tawatur is nothing more than a collection ofhadiths of the ahad type. In fact, it is precisely on these grounds that a number of scholars denied the mutawatir Iafzi the status of certainty, although this tawatur was universally acknowledged as being epistemically superior to the ma’nawi type (39). For our purposes then – and not those of medieval Muslim scholars who associated this concept of tawatur with metaphysical and theological postulates – if the particulars are dubious, then the whole is equally so. In due course, we shall see that. in any event, no ahadith of the ma’nawi type, except for one (40), can

    (38) Najm al-Din Sulayman al-Tufi, Sharh Mukhtasar al-Rawda, ed. ‘Abd Allah al-Turki, 3 vols. (Beirut: Mu’assasat al-Risala, 1407/1987), II, 112, 115 (khabar al-wahid yahtamil al-kadhib); Abu ‘Amr Ibn al-Salah, Siyanat Sahih Muslim min al-Ikhlal wal-Ghalaj, ed. Muwaffaq ‘Abd al-Qadir (Beirut: Dar al-Gharb al-Islami, 1404/1984), 85 (al-zann qad yukhti); Ibn al-Qassar, muqaddima, 110 (khabar al-wahid … jaza ‘alayhi al-naskh wal-ghalaj wal-sahw wal-kadhib)’ Abu Ali al-Sarakhsi, Usul (Beirut: Dar al0Kitab al-Arabi, 1982), 269; [al-ahad] fi-hi ihtimal wa-shubha“. 

 

    (39) Sarakhsi, muharrar, I, 213 ff.

    (40) Which has the common theme “my community shall never agree upon an error”. See Hallaq, “On the Authoritativeness of Sunni Consensus”. 441 ff. I should note that this hadith was not admitted by all jurists as capable of engendering certainty. Fakh al-Din al-Razi and Tufi, for instance, rejected it as less than an apodictic source, and thus incapable of justifying consensus. See his al-Mahsul fi ‘Ilm al-Usul, 2 vols. (Beirut: Dar al-Kutub al-Ilmiyya, 1988), II 8-47. See alo W.B. Hallaq, Law and Legal Theory in Classical and Medieval Islam (Ladershot: Variorum, 1994), addendum to VIII.


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be said to have survived, assuming that there was more than one in existence (41).

Ill

What remains then is the mutawatir of the lafzi kind, which is productive of immediate and thus certain knowledge. However, before we address this category, we ought to look at another sphere of traditional Muslim discourse generated not by the jurists and legal theoreticians, but by the traditionists (muhaddithan) themselves, the hadith experts par excellence.

While the linguistic and epistemological study of hadith was one of numerous subjects that preoccupied the legal theoreticians, the traditionists’ main business was, by definition, exclusively that of the hadith. This, in other words, was their specialty. But this shared interest in the hadithwas virtually the only common denominator between the two groups (42). The legal theoreticians were, in the final analysis, interested in the hadith as part of their epistemological enterprise, which was usul al-Fiqh. What concerned them in the end was the evaluation of this source, among many other theoretical elements, in terms of the degree to which law as conceived by man is identical or different from that lodged in the mind of God. The higher the probability that a particularhadith (on which a ruling is based) was authentic, the closer the jurist came to the Higher Truth of the Law as it pertained to that particular ruling. It was precisely in this epistemic evaluation that the interest of the legal theoretician lay. (And it is precisely here that the interest of the theoreticians coincides with that of modern scholars. Both groups are interested in the authenticity and veracity of hadith from an epistemological perspective, despite the differing approaches they adopt in their assessments.)

The interest of the traditionists, on the other hand, lay elsewhere. True, they were interested in the veracity of the hadith but from an entirely different vantage point. They studied hadith insofar as it leads to what they called ‘amal (43), that which is based on probability but  

(41) With the exception of the hadith pertaining to the authoritativeness of consensus, I know of no other. See previous note.

(42) Works on hadith constantly make reference to the distinctly different categories and terms used by the jurists and legal theoreticians. Less often, but frequently enough, the theoreticians make the same reference to the traditionists.

    (43) See’ Abd al-Rahman Ibn Khaldun, Muqaddima (Beirut: Dar lhya al-Turath al-‘Arabi, n.d.), 442, who argues that thehadith constituting the bulk of the six canonical collections is that which fulfills the requirement of ‘amal. Undeniably, the consideration of ‘amal was also important from the legal perspective, but the traditionists laie more stress on it than did the legal theoreticians. who were interested more in the epistemological side of the hadith. See’ Abbadi, al-Sharh a/-Kabir; n, 405; Tufi, Sharh, II,112,114.


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which is also necessary to constitute the foundations of pious religious practice (44). In other words, unlike the legal theoreticians, they were by no means interested in the probable/certain dichotomy, but rather in any Prophetic material that appeared to them to meet the minimal requirements of “soundness.” This is why their first and foremost category of hadith, the “sahih” (sound), consisted of various types, not the least of which are those hadiths which engender mere probability (45).Probably for the same reason, they did not, in their classification of hadith,distinguish any category equivalent to the usuli type of the mutawatir. Ibn al-Salah (d. 643/1245), one of the most distinguished traditionists of the muta’akhkhirun (46), explicitly states that in the traditionists’ discourse the taxonomy of the mutawatir is nowhere to be found; and this, he says, is due to the fact that such hadiths do not constitute part of their riwaya (47).

It bears some reiteration here that a major criterion of the traditionists (and to some extent of the legal theoreticians) (48) was the desideratum of ‘amal (49) that is, religious praxis in all spheres of human life, praxis that is founded upon a reasonable knowledge of the divinely ordained sources. Certainty concerning the details of human behaviour was considered unattainable, and if conducting and organizing such behaviour were to depend significantly. or even partly, on such an epistemic category, the regulation of human life would become well-nigh impossible (50). For, as one jurist put it, certainty is a rarity in matters of law (51) and law regulates an spheres  human conduct.  

If the mutawatir was not part of the traditionists’ repertoire of hadith, then what they handled were hadiths of the ahad type, or those even of a weaker sort. The sources, as is well-known. make it quite clear that the traditionists set forth a classical taxonomy which distinguishes between three main types: the sahih (sound), the hasan (good), and the da’if (weak) (52). The last two categories may be further distinguished,  

(44) Ibn al-Qassar, Muqaddima. 67-8.

(45) Ibn al-Salah, Muqaddima. 169-70; Nawawi, Taqrib, 23-4.

(46) Ibn Khaldun remarks that Ibn al-Salah’s writings on hadith are the most authoritative among the later Muslim authors (muta’akhkahirun). See his muqaddima, 443. 

(47) Ibn al-Salah, Muqaddima. 453-4.

(48) Who are to be distinguished here from muftis, qadis, and other members of the legal profession that had to deal with, and directly confront the realla of judicial practice. True, the ultimate destination of usul al-fiqh was law in a social context, but in order to be elaborated as a theory of law, the usul lent itself fundamentally and structurally to epistemological distinctions which seemingly obscured, to some extent, it own genuine interest in the social reality of the law.

(49) See n. 43, above.

(50) ‘Abbadi, al-Sharh al-Kabir; II, 405; Tufu, Sharh, 112I 14

(51) Tufi, Sharh, l!, 112.

(52)The da’if is less frequently known as saqim. See Ibn al-Salah, Muqaddima, 151 ff; James Robson, “Varieties of the Hasan Tradition”, Journal of Semitic Studies, 6 (1961): 47-61, at 49. 


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or other types may be added; e.g., hasan-sahih, hasan-gharib (53). Be that as it may, the da’if gharib and other more inferior types do not concern us, for they are admitted by the traditionists themselves to be highly problematic at best and spurious at worst (54).

The sahih is defined as having been transmitted in an uninterrupted manner by persons all of whom, from the first tier to the last, are known for their just character (‘udul) and excellent memory(dabt) (55). We have already said that not all hadfths of this type are of the same quality or strength. At least half a dozen sub-types were distinguished, depending on how they were classified and treated by Bukhari and Muslim, the authors of the two Sihah (56). The hasan, on the other hand, is a hadith transmitted by persons whose character is known to be neither just nor nefarious (57). This type, despite its potential shortcomings, may be acted upon (yasluh lil amal bi-hi), but cannot be said to represent anything more than mere probability (58).

It appears that after the fifth/eleventh century, the epistemic value of the sahih became a mildly controversial matter among the traditionists – their interest being essentially non-epistemological. Nawawi (d. 676/1277) and Ibn al-Salah seem to have spearheaded the two opposing campaigns. Nawawi unequivocally states that the sahih means just that, sahih, and does not mean that it is certain.” (59). He vehemently argued that the majority of Muslim scholars and leading authorities(al-muhaqqiqun wal-akthartun) held that unless the sahih is of the mutawatir category, it shall remain probable and can never attain the level of certainty (60). On the other hand, Bulqini (d. 805/1402) also enlists the authority of a number of scholars on his side and, basing himself on Ibn al-Salah, argues that those hadiths of the sahih type on which Bukhari and Muslim agreed lead to acquired, certain knowledge (yaqini nazari) (61). This knowledge, Ibn al-Salah, maintains, is due to the fact that the community of Muslims has agreed to accept Bukhari’s and Muslim’s Sihah as authoritative, and this agreement amounted in his view to  

(53) Muhyi al-Din Sharaf al-Din al.Nawawi. al-Taqrlb wal Taysir li-Ma’rifat Sunan al-Bashir wal-Nadhir, ed. ‘Abd Allah al-Barudi (Beirut: Dar al-Jinan, 1986), 26; Robson, “Varieties”, 48 ff; Ibn Khaldun, Muqaddima, 444.

(54) Nawawi. Taqrib. 24; Muslim. Sahih. I, 30; Tufi, Sharh, II, 148.

(55) Taqi al-Din Ibn Daqiq al-‘Id. al-Iqtirah fi Bayan al-Istilah, Qahtan al-Duri (Baghdad: Matba’at al-Irshad, 1402/1982), 152; Ibn al-Salah, Muqaddima, 151, 152; Tufi, Sharh, 148.

(56) Ibn al-Salah. Muqaddima. 169-70; Nawawi. Taqrib. 234.

(57) Ibn Daqiq al-‘ld. Iqtirah 162-3; Tufi. Sharh, II, 148.

(58Ibn Daqiq al-‘ld. Iqtirah 168; Ibn al-Salah, Muqaddima, 175.

(59) Nawawi. Taqrib. 21; “wa-idha qila sahih, fa-hadha ma’nahu – la anna-hu maqtu’un bi-hi“.

  (60) Nawawi. Taqrib, 24; Siraj al-Din al-Bulqini. Mahasin al-Istilah, printed with Ibn al-Salah’s Muqaddima, ed., ‘Aisha ‘Abd al-Rahman (Cairo: Dar al-Ma’arif, 1989), 171-2. In fact, Amir Badishah, Taysir al-Tahrir, 37, without making distinctions, generally remarks that probability is the function of the sahih and the hasan“.


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consensus (ijma‘ ) which generates certainty (62). It is important to observe here that certainty for Ibn al-Salah does not stem from the modalities by which the sahih is transmitted, but is deduced from the extraneous fact that a consensus was concluded on the authoritative choices of Muslim and Bukhari. The implications of ignoring lines of transmission and the character of transmitters as the established criteria of proof in favour of an extraneous method of evaluation are grave. For Ibn al-Salah’s position amounts in effect to arguing that the Muslim community, in and by itself, is empowered to legislate, by elevating, for instance, the status of a source of law from a level of probability to certainty. More importantly, his argument, once taken to its logical conclusion, destroys the very foundations of consensus as a source of law, since, as I have shown elsewhere, it traps it In the insoluble quandary of a petitio principii (63). It was precisely to avoid this very trap that generation after generation of jurists consecrated their intellectual energies. It must have been in this spirit that the influential scholar Ibn  Abd al-Salam (d. 661/1262) reproached Ibn al-Salah, calling his view defective (radi) (64). Perhaps the most evincive argument against the fictitious authority bestowed by consensus is Goldziher’s insightful statement that” [d]espite this general recognition of the Sahihan in Islam, the veneration never went so far as to cause free criticism of the sayings and remarks incorporated in the collections to be considered impermissible or unseemly (65).

The remaining sub-types of the sahih (on which Bukhari and Muslim could not agree), as well as those of the hasan, are unquestionably considered to be probable, and thus belong to the legal theoreticians’ category of the ahad. And if we take exception to Ibn al-Salah’s claims concerning the sahih on which Bukhari and Muslim agreed, then any non-mutawatir sahih of this category is also considered, by definition, an ahad, falling short of engendering certainty. In favour of this position we can list not only the traditionists who opposed Ibn al-Salah’s view, but also all the legal theoreticians and jurists for whom, after all, the entire hadith literature was collected, organized and scrutinized. In fact, Shawkani explicitly states that legal rulings may well be constructed on the basis of the sahih and the hasan because these two categories engender probability, which suffices in legal matters (66).  

     (62) Ibn al-Salah, Siyanat Sahih Muslim, 85-7.

    (63) Hallaq, “On the authoritativeness of Sunni Consensus”, 427.54.

    (64) Dulqini, Mahasin al-Istilah, 171-2

    (65Muslim Studies, II, 236 and the following pages where he substantiates his assertion..

    (66Irshad al-Fuhul ila Tahqiq al-Haqq min ‘Ilm al-Usul (Surabaya: Sharikat Maktabat Ahmad b. Nabhan, n.ed.), 48.



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Finally, we turn to the problem of the mutawatir which engenders certainty. We recall that Ibn ai-Salah himself acknowledged that the traditionists’ repertoire of hadith does not include this category. But Ibn al-Salah said more. He argued in categorical terms that the mutawatir is a rarity (67). “He who is asked to produce an example of a hadith that is transmitted in a mutawatir[fashion] will be exhausted by his search” (68). In his own search for such hadiths, he could cite only one, presumably narrated by more than a hundred Companions: “He who intentionally lies concerning something I [viz., the Prophet] have said will gain a seat in Hellfire” (69). The otherhadith which he could find that seemingly met the standards of the mutawatir was: “Acts are Judged by intentions”. However, he acknowledges that although this hadith was reportedly narrated by a mutawatir number of transmitters, its apodictic manner of transmission occurred in the middle tiers of transmission, not from the outset (70).

The later legal theoreticians Ansari (1119/1707) and Ibn ‘ Abd al-Shakur (1225/1810) accepted the general tenor of Ibn al-Salah”s argument about the scarcity of tawatur, but seem to think that there are more hadiths of this type in existence. Having enumerated, with what seems to be great difficulty, four such hadiths, they call upon Ibn ai-Jawzi (d. 598/1201) who is quoted as saying: “I have tracked down the mutawatir hadiths and found a number of them.” He enumerates six, at least one of which, and probably two, had already been listed by Ansari and Ibn ‘ Abd al-Shakur (71). Thus, a thorough search by a number of the most eminent traditionists and jurists of Islam could yield no more than eight or nine hadiths of the mutawatir type.

This number may be left to stand only if we admit that all were truly of the mutawatir type. However, in his commentary on a passage in Ansari’s work, Ibn ‘Abd al-Shakur informs his readers that they will encounter yet other such hadiths in the later sections of his commentary, including one which speaks of the infallibility of the Muslim com-  

(67) This should not be taken to contradict his earlier assertions about the apodictic status of the sahih. The knowledge engendered by the mutawatir, all agreed. was of the immediate type, On the other hand, he held that the sahih on which both Bukhari and Muslim agreed was capable of yielding mediate, acquired knowledge.

(68Muqaddima, 454; “wa-man su’ila ‘an ibrazi mithalin li-dhalika fi-ma yurwa min al-hadith a ‘yuha tatallubuhu.

(69Ibid. Muhammad b, Nizam al-Din al-Ansari. Fawatih al-Rahmut, printed with Ghazali’s Mustasfa, 2 vols. (Cairo: al-Matba’a al-Amiriyya, 1324/1906),II, 120; “man kadhiba -alayya muta’ammidan fal-yatabawwa’ maq’adahu min al-nar”.

(70Muqaddima, 454; “inna-ma al-a’malu bil-niyyat”..

(71Fawatih al-Rahamut, II, 120.


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munity (72). This suggests that when at least Ibn ‘ Abd al-Shakur was speaking of tawatur; he may not have always meant the tawatur lafzi since the hadith speaking of the infallibility of the Muslim community is of the tawatur ma’nawi’ type (73). Therefore, it is possible that the total number ofmutawatir hadiths he cited may even be less than four, with the possible result that the number of such hadiths in toto may fall short of even eight or nine.

IV

To sum up, western scholarship has concentrated its attention upon an area of traditional Muslim discourse that is not particularly instructive. The traditionist discourse is stated in terms that are largely incongruent with the epistemic evaluation of the hadith, an evaluation that is directly relevant and indeed central to the Islamicist paradigm of historical research. If minimal traces of this epistemic interest are to be found in the traditionist discourse, it is because legal theory commanded a measure of attention from the traditionists. The epistemic evaluation of thehadith was finely articulated and elaborated by the legal theoreticians and jurists, and it is in this area of traditional discourse that western scholars should have begun their enquiry – if such an enquiry need at all be embarked upon.

The legal theoreticians’ classification of the hadith into mutawatir and ahad leaves us with a colossal number of the latter, merely probable type, and less than a dozen of the former, reportedly apodictic, variety. The ahad, including the hasan, were universally acknowledged to have constituted the bulk of hadfth with which the traditionists dealt, and on the basis of which the Jurists derived the law (74). The apodictic type was simply inconsiderable. Even if we assume, for the sake of argument, that the mutawatir hadiths are more than a dozen, say a score, or even many more (75), the problem of authenticity nevertheless turns out to be

    (72Musallam al-Thubut: Sharh Fawatich al-Rahamut, printed with Ghazali’s Mustasfa, 2 vols. (Cairo: al-Matba’a al-Amiriyya, 1324/1906), II, 120-1; See also n. 36, above.

   (73) In fact, one of the hadiths enumerated by Ansari and Ibn ‘Abd al-Shakur is that of al-mash’ala al-khuffayn, (wiping one’s footgear with wet hands), said to be of the mutawatir ma’nawi type: ‘Abd al-Wahhab Ibn Nasr al-Baghdadi. See hisijma‘, printed with Ibn al-Qassar, Muqaddima fi al- …, ed. Muhammad Sulaymani (Beirut: Dar al-Gharb al-Islami, 1996), 276

   (74) Nawawi, Taqrib, 24-5; Ibn Daqiq al-‘Id, Iqtirah, 168; ‘Abbadi, al-Sharh al-Kabir; II, 416; Jamal Din Yusuf al-Mizzi,Tahdhib al-Kamal fi Asma al-Rijal, ed. Bashshar Ma’ruf, 35 vols. (Beirut: Mu’assasat al-Risala, 1985), I, 171. See also Ibn Abi Shama’s critique of the practices of his fellow Shafi’ites whom he charges of employing weak hadiths in the construction of law, Mukhtasar Kitab al-Mu’ammal fi al-Radd ila al-Amr al-Awwal, printed in Majmu’ al-Rasail (Cairo: Matba’at Kurdistan, /13281910), 20-1, 36. 

   (75) In his Qatf al-Azhar al-Mutanathira fi al-Akhbar al-Mutawatira, which is an abridgment of …wawa’id al-Mutakuthira,Suyuti collected 88 hadiths claimed to have been narrated through ten or


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a minor one, involving a minuscule body of Prophetic material that can easily lend itself to our critical apparatus.

Ibn al-Salah’s claim that the sahih type – on which Bukhari and Muslim agreed – engenders certainty cannot be taken seriously by modern scholars, and this for two reasons: First, the claim was highly controversial among traditional Muslim scholars themselves, having been rejected, for logical and epistemological reasons, by a significant majority. If consensus, which is alleged to elevate the sahih to an apodictic level, sanctions the authority of hadith, then hadith cannot sanction the authority of consensus; for this would entail a circularity of which Muslim scholars were acutely aware. But hadith does in reality sanction consensus, especially in light of the widely acknowledged fact that it is the only authoritative text which can. Thus, consensus cannot sanctionhadith, also a widely accepted conclusion among traditional Muslim intellectuals (76). Second, and more importantly, the claim is theological in nature, fundamentally departing from the criteria ofhadith evaluation established by the Muslim traditionists themselves. The certainty which the sahihyields is not established by means of the modalities of transmission or the quality of rectitude attributed to the transmitters. For instance, it never was the case that the authenticity of an individual hadith of the sahih category was declared ab initio and a priori certain just because it belonged to that group of traditions agreed upon by Bukhari and Muslim. A positive affirmation of authenticity always required an investigation of individual hadiths insofar as their particular mode of transmission was concerned. When these formal methods of enquiry were applied, Ibn al-salah himself found that the mutawtatir is virtually non-existent. Rather, what was said to guarantee Ibn al-Salah’s apodictic sahih was the divine grace metaphysically bestowed upon the Muslim community as a collectivity, not any “scientific” enquiry into the concrete historical and socio-moral context (‘ilm al-rijal) in which these hadiths were transmitted.

It is quite possible that some hadiths of the sahih type were considered to belong to themutawatir category. What matters, in the final  

more channels of transmission. Except for the title itself, nowhere in the manuscript does he qualify these hadiths asmutawatir. It is noteworthy thta Suyuti includes here a number of hadiths that were clearly dismissed by more distinguished traditionists as falling to meet the standards of tawatur. For instance, “Deeds are judged by intentions” was deemed by Ibn al-Salah as falling short of maintaining a tawatur transmission throughout all stages. Similarly, Suyuti includes therein the two hadiths relating to the infallibility of the Muslim community and to the wiping of the footgear, which were considered astawatur ma’nawi not lafzi. On these see nn. 40, 70, and 73, above. It is also noteworthy that more than 50 of these hadithslisted have to do with rituals and matters of belief. See Qatf al-Azhar, ms. 2889. Yahuda Section, Garrett Collection, Princeton University. I am grateful to Ms. Annalee Pauls of Princeton University Libraries for her extraordinarily prompt help in making this manuscript available to me.

(76) See n. 36, above.  


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analysis, is the fact that this last category is quantitatively insignificant, however it may be measured or calculated. It can be easily controlled and investigated. And surely, the modern western debate about authenticity would be considered absurd if its object were to be confined to a handful of such hadiths. That the debate was not so confined, and that it dealt in fact with the vast majority of the hadith is quite obvious and need not be demonstrated. If both the traditionists and the jurists -the two most important groups in the Study of hadiths - have acknowledged the precarious epistemological status of the literature, then we need not squander our energies in arguing about the matter of authenticity. We have been told that except for a score of hadiths, the rest engenders probability, and probability, as we know – and as we have also been unambiguously told by our sources – allows for mendacityand error. What more do we want?

 
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Posted by on July 29, 2012 in Fiqh, Hadith/Sunnah

 

Disagreements in Al-Hidaya

Al-Marginani. Hedaya, Trans. by Charles Hamilton [Karachi, Pakistan: Darul Ishaat, 1989]


  • The Author, Shaykh al-Islam Burhan al-Din al-Marghindni (d. 593 AH/ 1197 CE) was considered to be the leading jurist of the Muslim world in his times.

  • The Issues/Topics basically represent either the Hanafi position (where other differing Madhabs are shown) or Imam Abu Hanifah’s position (where the other two Hanafi disciples’ positions are indicated)

  • This is not an exhaustive compilation of disagreements in Hedaya.

  • In some cases, the disagreement means having a contrary opinion; in other cases, the disagreement may be in terms of additional stipulations (or a lack thereof).

  • Such disagreements are not necessarily a weakness or negative point. Rather, it shows the diversity and flexibility in terms of opinions, based on the preferred reasoning and the pertinent textual source, if applicable, of each scholar.

  • The purpose of this presentation is not to take any position whether any of the agreements or disagreements on any of these issues by these Imams are valid or not. It is merely to illustrate the fact that, let alone any ijma (by any definition), agreements even among three elders of just one school is by far not that common.

. Issue Imam
Abu
Hanifah
Imam
Abu
Yusuf
Imam Muhammad  Other
disagreeing Madhabs
. . . . . .
h Zakat not incumbent upon infants/minors or insanes [p. 3] . . . Shafi’i
h Zakat not incumbent upon against whom there are debts equal to, or exceeding, the amount of his whole property [p. 4] . . . Shafi’i
h If a man gives to the poor a portion of his Nisab property, without intention of Zakat, his obligation to Zakat drops with respect to such portion [p.9] . Disagrees . .
h Whoever is possessed of a Nisab property, and obtains an addition of the same sort or species within the year, must add it to the Nisab, and pay Zakat upon the whole. [p. 19] . . . Shafi’i
h Zakat is due upon the Nisab only, and not upon the exempt portion. [p.20] . . Disagrees .
h A partial destruction of Nisab includes a proportionable exemption [pp. 23-24] . . . Malik 
h When the quality of gold exceeds 20 Miskals, … Zakat due is a fortieth of the whole … [p. 27] . Disagrees Disagrees .
h Zakat is due upon gold and silver bullion, whether the use thereof be allowable or otherwise [p. 28] . . . Shafi’i
h Gold and silver may be united in respect to their value [p. 30] . Disagrees Disagrees .
h Declarations respecting property, when made upon oath, to be credited (for the first three parts only) [p. 32] . . . Shafi’i
h The assertion of the proprietor is to be credited, whether he ought to produce his writing of discharge [p. 33] . . Disagrees .
h If a Zimmee … pass the station of a collector with wine and pork, the collector is to levy a tithe upon the former article, but no upon the latter [p. 36] . . . Shafi’i
h Treasure is the property of him upon whom the Imam had bestowed the lands, originally, at the period of subjugation [p. 43] . Disagrees . .
h Upon pearls and amber there is no fifth due. . Disagrees . .
h A tithe due upon the product of lands watered by natural means, except a few items [p. 44] . Disagrees Disagrees .
h Land watered by means of buckets, or machinery, or watering camels, are subject to half tithe (unconditionally) . Disagrees Disagrees .
h Tithe is due upon honey where it is collected in tithe-lands. [p. 47] . . . Shafi’i
h Allowance to the collector of Zakat in proportion to his labor [p. 54] . . . Shafi’i
h Meaning/Definition of Fi Sabil …[p. 54] . . Disagrees .
h Zakat is not for the Dhimmis, but other alms can be bestowed upon them [p. 55] . . . Shafi’i
h Zakat amount spent on the purchase of a slave, for the purpose of granting him his freedom, is not discharge of Zakat. [p. 56] . . . Malik
h Not lawful to bestow any part of Zakat upon the rich, no exceptions. [p. 56] . . . Shafi’i
h Not lawful for a proprietor to pay the Zakat upon his property to his wife [p. 57] . Disagrees Disagrees .
h Zakat is discharged by the erroneous application of it to an improper person [p. 59] . Disagrees . .
h If the children be possessed of property, their sadka-fitr is to be discharged out of that. [p. 63] . . Disagrees .
h Not incumbent upon men to pay Sadaqa al-fitr on behalf of their male and female designed for sale as merchandise.  [p. 64] . . . Shafi’i
h No sadaqa al-Fitr is incumbent upon any of the proprietors, on account of two or more partnership slaves [p. 65] . Disagrees Disagrees .
h It is incumbent upon Muslims to pay Sadaqa al-Fitr for their non-Muslim slaves [p. 65] . . . Shafi’i
h The measure of a Sadaqa al-Fitr in wheat, or flour, or bran, or in dried fruits, is an half Sa’a [p. 67] . . . Shafi’i
h In the above case, half sa’a is to be ascertained by weight [p. 68] . Disagrees Disagrees .
h The sa’a consists of eight ratls.  . Disagrees . .
h The obligation to the performance of Sadaqa al-Fitr commences with the dawn of the morning of the festival of Fitr [p. 69] . . . Shafi’i
h On the eve of the festibal of Fitr, the sadaqa al-Fitr would be due on account of the convert or the child [p. 69] . . . Shafi’i
h If a man’s child, or male or female slave, were to die on the last night of Ramadan, Sadaqa al-Fitr is not incumbent upon him on their account.  . . . Shafi’i
h In case of witness for marriage, evidence against an allegedly unacceptable witness is required [p. 74] . . . Malik 
h Integrity of the witness is an essential condition [p. 74[ . . . Shafi’i
h If a Muslim marries a female non-Muslim subject in the presence of two male non-Muslim subjects, it is lawful [p. 75] . . Disagrees .
h If a man commits adultery with a woman, her mother and daughter are prohibited to him [p. 81] . . . Shafi’i
h If a woman touches a man in lust, the mother and daughter of that woman are thereby prohibited to him [p. 82] . . . Shafi’i
h If a man repudiate his wife, either by a complete or a reversible divorce, it is not lawful for him to marry her sister until the expiration of her iddat [p. 83] . . . Shafi’i
h Sabeans are part of Ahl al-Kitab and marriage with their women is permissible [p. 85] . Disagrees Disagrees .
h It is lawful for a man or a woman to marry during the Ihram of pilgrimage [p. 85] . . . Shafi’i
h It is unlawful for a man already married to a free woman to marry a slave [p. 86] . . . Shafi’i
h If a man marry a slave during the iddat of complete divorce of another wife who is free, it is null [p. 87] . Disagrees Disagrees .
h Four wives can be taken, in any combination of free woman or slaves [p. 88] . . . Shafi’i
h A slave cannot take more two women as wives [p. 88] . . . Malik
h If a man, having four wives, repudiate one of them, it is unlawful for him to marry any other woman during the term of that wife’s iddat … [pp. 88-89] . . . Shafi’i
h A man may marry a woman pregnant by adultery [p. 89] . Disagrees Disagrees .
h In case of marriage of the female slave, it is lawful for her husband to have carnal relationship with her immediately (before her purification from her first period) [pp. 90-91] . . Disagrees .
h If a man marry two women by one contract, one of whom is lawful to him, the whole of the dower goes to the lawful bride [p. 92] . Disagrees Disagrees .
h The authority of judicial decree extending both to appearance and reality [p. 93]  . Disagrees Disagrees Shafi’i
h An adult female may engage in the contract without her guardian’s consent  . Disagrees Disagrees Shafi’i;
Malik
h It is not lawful for a guardian to force into marriage an adult virgin against her consent [p. 96] . . . Shafi’i
h If the signs of virginity be effaced even by fornication, yet she here also stands as a virgin [p. 99] . Disagrees Disagrees Shafi’i
h If the husband should produce evidence in support of his silence, the marriage becomes established; if however, he has now evidence, then an oath must not be imposed upon the wife [p. 100] . Disagrees Disagrees .
h The marriage of a minor, by the authority of their (any) paternal kindred, is lawful [p. 100] . . . Shafi’i; Malik
h Minors given to marriage by (any) paternal kindred has an option of repudiation after puberty [p. 103] . Disagrees . .
h If the female, given into marriage as a minor, remains silent when marriage is first mentioned to her, silence would be considered a consent [p. 104] . . Disagrees .
h In defect of paternal relations, authority to contract marriage appertains to the maternal kindred [p. 107] . Disagrees Disagrees .
h If a lunatic woman have two guardians, one her son and the other her father, the authority of disposing of her in marriage rests with the former [p. 110] . . Disagrees .
h A family is not established by a retrospect short of the grandfather [p. 112] . Disagrees . .
h Kafa’ or equality in piety and virtue must be considered in marriage [p. 112] . . Disagrees .
h Equality in respect to property is a condition of marriage [p. 113] . Disagrees . .
h Equality in trade or profession is a condition  . Disagrees Disagrees .
h Parents can reject a marriage, if a woman contracts herself in marriage, consenting to less than a proper dower [p. 114] . Disagrees Disagrees .
h If a woman give authority to a man to contract her in marriage with himself, and the marriage is executed in the presence of two witnesses, it is lawful [p. 116] . . . Shafi’i
h In case of a marriage contract entered into by an unauthorized person, it is conditionally valid [p. 118] . . . Shafi’i
h One person is not competent to act as an unauthorized person, either on behalf of both parties or as unauthorized for one party and a principal for the other is lawful [p. 119] . Disagrees . .
h Case of the matrimonial agent exceeding or acting contrary to his commission is valid [pp. 120-121] . Disagrees Disagrees .
h Marriage without any specified dower is valid [p. 122] . . . Malik
h There is a minimum dower (ten dirhams) [p. 122] . . . Shafi’i
h Where no dower is specified in the contract, and the husband dies, the wife receives her proper dower [p. 125] . . . Shafi’i
h If a woman, married without any specification of dowry), is divorced before consummation, a present from the husband is incumbent [p. 125] . . . Malik
h If dower is specified after the marriage, and he divorces her before consummation, she receives only a present [p. 126] . Disagrees . .
h If additional dower is offered after marriage, and divorce before consummation occurs, the whole dower is obligatory [p. 127] . Disagrees . .
h If a consummation is indicated by the fact that a man retired with his wife, the whole dower is due. [p. 127] . . . Shafi’i
h If a majboob eunich retire with his wife, and afterwards divorce  her, she is entitled to her whole dower [p. 128] . Disagrees Disagrees .
h It is laudable to bestow a present upon every woman divorced by her husband, except … . . . Shafi’i
h If a person contract his daughter or his sister in marriage to another, on the condition of reciprocity, such conracts are lawful [p. 130] . . . Shafi’i
h If a free man marry a woman, on the condition, in return, of serving her for a stated time, proper dower is still incumbent [p. 131] . . Disagrees .
h If a man marry a woman on a dower of one thousand dirhams and the woman forgives or forsakes the whole thousand, and the husband afterwards divorces her before consummation, neither party would have any further claim on each other [p. 134] . Disagrees Disagrees .
h If a man marry a woman, stipulating the dower at one thousand Dirhams, provided he should not carry her out of her native city, but stay  and reside there with her,  (or at two thousand otherwise), then dower is due as per the stipulation [p. 138] . Disagrees Disagrees .
h If a man marry’s a woman, agreeing to give her, as a dower, either of two slaves unspecified, even then proper dower in value is due [p. 139] . . Disagrees .
h If a man marry a woman, assigning her, as a doewr, an animal undescribed, it is approved (with or without respect to proper dower)  . . . Shafi’i
h If a man marry a woman, assigning her, as a dower, a cask of vinegar, which turns out to contain wine, she has  her proper dower [p. 143] . Disagrees Disagrees .
h If the man were name, as a dower, a certain specified slave (but the slave turns out to be a free man), proper dower is due [p. 143] . Disagrees . .
h Where a man marries a woman on a dower consisting of a specified slave and the slave dies before delivery, the value is not obligatory as dower [pp. 143-144] . Disagrees . .
h If a man marry a woman, agreeing to give her, as a dower, two slaves specified, one of which turns out to be a free person, the woman gets only the single slave [p. 145] . Disagrees . .
h In case of a child born of unlawful marriage, the time of descent is from the date of marriage [p. 148] . . Disagrees .
h If the wife has deferred the whole dower, she is not at liberty to refuse carnal relationship with her husband [p.150] . Disagrees . .
h Even if the wife already had carnal relationship, but the due dower has not been taken care, the wife may repeat the refusal [p. 151] . Disagrees Disagrees .
h Even where the woman refuses to admit the husband to a repetition of the carnal act, she is entitled to her subsistence [p. 151] . Disagrees Disagrees .
h In case of dispute about dower, if before consummation partly the declaration of the wife and partly that of the husband is to be credited. [p. 152] . Disagrees . .
h Woman’s proper dower is not at all regarded after the decease of both parties [p. 155]  . Disagrees Disagrees .
h When both spouses have died, woman’s heir are entitled from the husband’s estate, only if the arrangement  has been specified [p. 155] . Disagrees Disagrees .
h Where husband and wife both die before the lapse of any length of time, her heirs are entitled to proper dower [p. 156] . Disagrees Disagrees .
h In case of a Christian man marrying a Christian woman without stipulating any dower, and subsequently the husband dies or divorces, the woman is not entitled to the proper dower. [p. 157] . Disagrees Disagrees .
h If a Dhimmi marries a Dhimmi woman with a dower of wine or pork, and then one or both embraces the faith, the woman still would received what is specified [p. 159]  . Disagrees Disagrees .
h Slaves cannot marry without the consent of their proprietor [p. 161] . . . Malik 
h If a person desire his slave to marry such a female slave and he accordingly wed her by an invalid marriage and have carnal relationship with her, the slave shall be sold for the discharge of her dower [p. 163] . Disagrees Disagrees .
h A slave can be given marriage by the master without any respect to slave’s consent [p. 165] . . . Shafi’i
h If a man marry his female slave to another person, and afterwards put her to death, before her husband has had carnal relationship with her, no dower is due from the husband [p. 166] . Disagrees Disagrees .
h If a female slave marry with her owner’s consent, and afterwards become free, she has an option to continue the marriage or break it off (regardless of whether her husband is free or slave) [p. 168] . . . Shafi’i
h If a father enjoy the female slave of his son and she produces a child and the father claims it, the slave becomes his umm walid, dower is not obligatory [pp. 170-171] . . . Shafi’i
h If a man marry his female slave to his father, and she produces a child, she does not become Umm Walid to the father, but such a marriage ispermissible [p. 171] . . . Shafi’i
h If a free woman, being the wife of a slave, should say to the proprietor of such slave: emancipate him with some consideration, the marriage is annulled [pp. 171-172] . Disagrees . .
h If only one of the (non-Muslim) parties be converted to the faith, a separation follows; but if one only appeals, separation does not take place [p. 176] . Disagrees Disagrees .
h If a husband converts to Islam, and upon magistrates’ invitation, the wife refuses, a separation takes place (but this is not a divorce) [p. 177] . Disagrees . .
h If a spouse converts to Islam, the magistrate should invite the other spouse to embrace [p. 177] . . . Shafi’i
h Where the woman becomes a convert and her husband is an alien, she is not subject to any observance of Iddat [p. 180] . Disagrees Disagrees .
h If either husband or wife becomes a convert to the faith in a foreign country, and afterwards remove thence into the Muslim land, a separation take place between them [p. 180] . . . Shafi’i
h If a woman comes out of a foreign country into the Muslim land, and there becomes either a dhimmi or a convert to the faith, it is lawful for her to marry, and she is not obligated to observe an Iddat [p. 181] . Disagrees Disagrees .
h If either husband or wife apostatize from the faith, a separation takes place, without divorce [p. 182] . . Disagrees .
h Women have no right to partition while their husband is upon a journey; husband may choose to take any of them at his pleasure; however, drawing lot is preferable [p. 185] . . . Shafi’i
h Prohibition is attached to fosterage, in whatever degree, if it is found within the usual period of infants subsisting at the breast [p. 187] . . . Shafi’i
h The period of fosterage is thirty months [p. 189] . Disagrees Disagrees .
h Prohibition is attached to the milk of the man [pp. 192-193]  . . . Shafi’i
h If the milk is drawn from the nurse’s breast, and mixed with water, prohibition does not apply if water exceeds milk in quantity [p. 194] . . . Shafi’i
h If the milk be mixed with other food, prohibition is not attached to it, even if the former exceed the latter in quantity [p. 194] . Disagrees Disagrees .
h If the milk of one woman be mixed with that of another, the one with greater quantity would be considered prohibited [p. 195] . . Disagrees .
h If milk be drawn from the breasts of a deceased woman, prohibition is attached to it [p. 196] . . . Shafi’i
h The evidence of women alone is not sufficient to establish fosterage; nor can it be established but on the testimony of two men, or of one man and two women [p. 199] . . . Malik
h Talak Husn (laudable divorce) is by three sentences (tuhr) of divorce [p. 202]  . . . Malik
h If the first divorce be given in the beginning of the month, the three months from that period are to be counted by the lunar calendar, and if in the middle of it, by the number of days, with respect both to the completion of divorce and of the iddat [p. 205]  . Disagrees Disagrees .
h If a man be desirous of repudiating his pregnant wife by three divorces in the regular way (counting estimated time for period) [pp. 206-207] . . Disagrees .
h The divorce of one acting upon compulsion, from threats, is effective [p. 210] . . . Shafi’i
h The utmost number of divorces, with respect to a female slave, is two, whether her husband be slave or free [p. 212[ . . . Shafi’i
h Through certain expressions, no more than a single divorce can be effected, although the intention be more [p. 214] . . . Shafi’i
h If the husband say to his wife “your hand” or “your foot” is divorced, divorce does not take place [p. 215] . . . Shafi’i
h If a husband say to this wife “I am divorced from you,” by this nothing is established, although divorce be the intention [p. 223] . . . Shafi’i
h If a man says to his wife, “you are divorced once or not,” divorce does not take place [p. 224] . . Disagrees .
h If the person … were to say to the female slave, his wife, “when tomorrow arrives you are under two divorces,” it is not lawful for the husband to marry her again, until … [p. 226]   . . Disagrees .
h Divorce pronounced with an expression of vehemence is irreversible in its effect [p. 229] . . . Shafi’i
h If a man says to his wife “you are under a divorce like a mountain,” a divorce irreversible takes place [p. 230] . Disagrees . .
h Divorce, when pronounced with a similar, is always irreversible [p. 231] . Disagrees . .
h If a man says to his unenjoyed wife, “if you enter the house you are divorced once and again, and she afterwards enter the house, a singledivorce only takes place upon her [p. 234] . Disagrees Disagrees .
h A number of certain types of expressions cause irreversible divorce [p. 240] . . . Shafi’i
h If a man says to his wife “divorce yourself once,” and she gives herself three divorces, nothing whatever takes place [p. 258] . Disagrees Disagrees .
h If a man says to his wife “divorce yourself what you please, out of three,” she is empowered to give herself one or two divorces, but not three [p. 264] . Disagrees Disagrees .
h Where a man refers or annexes divorce to marriage, by saying to any strange woman, “if I marry you, you are divorced,” divorce takes place on the event of such marriage [p. 265] . . . Shafi’i
h If a man says to his wife, “if you enter this house you are under three divorces,” and he afterwards repudiates her by two express divorces and her iddat is fulfilled, and she be afterwards married to another man in a consummated relationship and again divorced, and she be then married to her first husband, and after that she enter the said house, three divorces take place upon her [pp. 273-274] . . Disagrees .
h A wife divorced by a dying husband inherits if he dies before the expiration of her iddat [p. 279] . . . Shafi’i
h In case of any possible collusion between the parties, by the husband, after a declared divorce, acknowledging himself indebted to her, or bequeathing her a legacy, she receives whatever maybe of least value, for inheritance, debt or legacy [p. 281] . Disagrees Disagrees .
h If a man, being in health, slander his wife (accuse her of adultery), and afterwards make asseveration respecting the same on his deathbed, she inherits of him [p. 287] . . Disagrees .
h It is laudable  that the husband have two witnesses to bear evidence to his Rija’at [p. 291] . . . Malik
h If a man, having repudiated his wife by a reversible divorce, afterwards say to her “I take you back,” and she replies “my iddat is past, the Rija’at is not valid [p. 292] . Disagrees Disagrees .
h The power of Rija’at terminates where the woman performs the tayammum and repeats the usual prayers [pp. 294-295] . . Disagrees .
h Carnal connection with a wife is not rendered illegal by a reversible divorce [p. 300]  . . . Shafi’i
h The first husband, recovering his wife, by an intervenient marriage, recovers his full power of divorce over her [pp. 304-305]  . . Disagrees .
h An equivocal expression of divorce, takes effect according to the husband’s interpretation of his intention [p. 313]  . . Disagrees .
h If a woman says to her husband “divorce me thrice, upon my paying you one thousand dirhams,” and the husband gives her one divorce, nothingis incumbent upon the woman [p. 319] . Disagrees Disagrees .
h A proposal of Khula’ made to the wife, with a reserve of option to the husband, in some cases invalid [p. 321] . Disagrees Disagrees .
h A mutual discharge leaves each party without any claim upon the other [p. 323] . Disagrees Disagrees .
h A Zihar is established independent of intention [p. 329] . . Disagrees .
h If a man purchases his father or his son, intending expiation thereby, it suffices [p. 335] . . . Shafi’i
h If a man emancipates half his slave, as an expiation of Zihar, and then have carnal connection with the wife upon whom he had pronounced the Zihar, and afterwards emancipates the other half, it is not valid as an expiation [p. 337] . Disagrees Disagrees .
h If the expiator, either willfully or through forgetfulness, in the night, or from the latter cause, in the day time, should during the term of expiation have carnal connection with the wife upon whom he had pronounced the Zihar, he must again begin the fast anew [p. 338] . Disagrees . .
h If a man expiates for two Zihars, distribute to each of sixty paupers a double proportion of victuals, yet this does not suffice for more than one Zihar [p. 341]  . . Disagrees .
h If, after imprecation, the husband should acknowledge that his accusation was false, by saying “I falsely laid adultery to her charge,” he becomes privileged with respect to her, it is lawful for him to marry her as well as any other person [pp. 348-349] . Disagrees . .
h If a husband deny the descent of the child upon the near approach of birth, or at the time where it is usual to receive congratulations, and to purchase clothes and make preparations for it, his denial holds good … yet the descent of the child remains established in him [p. 352] . Disagrees Disagrees .
h If the defect (impotence) be on the part of the woman, the husband has no right to annul the marriage [p. 357]  . . . Shafi’i
h If the husband be lunatic, reprous …, yet his wife has no option, as in cases where he is an eunuch or impotent [p. 358]  . . Disagrees .
h If a man divorce his wife upon his deathbed, so as that she still inherits him, her iddat is four months and ten days [p. 360] . Disagrees . .
h If an infant die, leaving a wife pregnant, her iddat is accomplished by her delivery [p. 363] . Disagrees . .
h When a man, having repudiated his wife by an irreversible divorce, marries her again during her iddat, and afterwards divorces her before consummation, a complete dower is in thi scase incumbent upon him, and upon the woman an iddat de novo. [p. 367] . . Disagrees .
h If a woman accompany her husband upon a journey, or on a pilgrimage to Mecca and he gives her three divorces upon the way, or die, leaving her in an uninhabited place, she must return to her own city … whether she has mahram relationship accompanying or not [p. 375] . Disagrees Disagrees .
h If a man repudiates, by an irreversible divorce, a wife who is under the age of puberty, … and she brings forth a child after the expiration of nine months from the time of divorce, the parentage of the child is not established in him [p. 378] . Disagrees . .
h If, upon the birth of a child, a dispute were to arise between the husband and wife, the wife’s assertion does not require an oath [p. 382] . Disagrees Disagrees .
h If the husband acknowledges the pregnancy, divorce takes place upon the woman independent of the evidence of others [p. 383] . Disagrees Disagrees .
h A boy or girl, having passed the period of Hizanit, have no option to be with one parent in preference to the other, but must necessarily remain in charge of the father [p. 389] . . . Shafi’i
h If a man’s wife be so young as to be incapable of generation, her maintenance is not incumbent upon him, because although she should be within his custody, yet as an obstacle exists in her to the carnal embrace, this is not the custody which entitles to maintenance [p. 395] . . . Shafi’i
h A poor husband is not required to find maintenance for his wife’s servants [p. 397] . Disagrees . .
h If a husband becomes poor, unable to provide maintenance for his wife, still they are not to be separated [p. 397] . . . Shafi’i
h If a man gives his wife one year’s maintenance in advance, and then die before the expiration of the year, no claim lies against the woman for restitution of any part of it [p. 399] . . Disagrees .
h Where a man divorces his wife, her subsistence and lodging areincumbent upon him during the term of her iddat, whether the divorce is reversible or irreversible [p. 406] . . . Shafi’i
h Definition of the term “rich” [p. 415] . . Disagrees .
h If a man apply emancipation to any specific part of the body which is not explained to imply the whole person, it has no effect [p. 423] . . . Shafi’i
h A slave partially emancipated must work out the remainder of his freedom [p. 437] . Disagrees Disagrees .
h Manumission by one partner of a share in a partnership slave induces his complete emancipation, upon his performing emancipatory labour in the other partner [p. 440]  . Disagrees Disagrees .
h The father must indemnify his partner for half the value of the slave, if he be rich, or, if not, that the slave does not need to perform labor in such proportion to his father’s partner [p. 448] . Disagrees Disagrees .
h The Willa of the slave would be divided among the three partners, according to the proportions which they retained in the slave at the time of his final emancipation [p. 452] . Disagrees Disagrees .
h If a female slave be held in partnership by wo masters, and one of these should declare the said slave to be an Um-Walid to his partner, and the partner deny this, she doesn’t owe emancipatory labor to the denying partner [pp. 452-453] . Disagrees Disagrees .
h If a man, addressing himself to his two female slaves, should say “one of your is free,” and afterwards have carnal connection with one of them, yet the other is not emancipated [p. 460] . Disagrees Disagrees .
h Evidence to the emancipation of a male slave to be inadmissible, without a claim being entered by the slave himself [p. 462] . Disagrees Disagrees .
h If a man says, “every slave of mine, when I die, is free”, even any slave coming to his possession after the death would be free [p. 467] . Disagrees . .
h If a man liberates his slave for a service of four years, by saying “you are free if you perform service to me for the space of four years,” and the slave agrees and the master thereupon dies, the slave owes the remainder of the period of agreement [p. 472] . . Disagrees .
h If a master should sell his slave into the hands of that slave, in lieu of a female slave, and the said female slave happens, on the instant, to die, the master has a claim upon the male slave for the value of the person [pp. 472-473] . . Disagrees .
h It is unlawful to dispose of, or to transfer, a Modabbir, either by sale or gift [p. 475] . . . Shafi’i
h The parentage of a child born of a female slave is not established until the master shall have acknowledged and claimed it. [p. 479] . . . Shafi’i
h Swearing by the truth of God is an oath [p. 497] . Disagrees . .
h A vow may be expiated by the emancipation of a slave, the distribution of food or alms, not by fasting as an option [p. 500] . . . Shafi’i
h If a person performs the expiation before the violation of his vow, it does not suffice [p. 501] . . . Shafi’i
h If a man makes certain articles unlawful to him, which are lawful, such articles do not become unlawful to the person, but an expiation is incumbent [p. 503] . . . Shafi’i
h If a person makes a vow that “he will not eat Ritbs or Boosrs” and he should afterwards eat  Mozennibs, he is forsworn [p. 517] . Disagrees Disagrees .
h If a person vows that “he will not eat any head”, by this is understood the heads of cows, bullocks, and goats [p. 521] . Disagrees Disagrees .
h If a person vows that “he will not eat Idam,” (something usually eaten in bread), Kabob is not included [p. 522] . . Disagrees .
h If a man makes a vow, saying “If I do not drink, this day, of the water which is in this vessel, my wife is divorced, and it should so happen that there is no water in it, he is not forsworn [p. 524] . Disagrees . .
h The thing prohibited by the tenor of the oath is conversation with someone, and this by his death, being rendered impossible, the vow drops. [p. 531] . Disagrees . .
h The moving cause of the vow, in the case of the slave, the house, or the animal, is some property which is to be found in the person to whom they have references [p. 532] . . Disagrees .
h If a man says to his female slave, “whenever you bring forth a child, that child is free,” and she be afterwards delivered, first of one child dead, and again of another child living, in this case, the living child alone is free [[p. 536] . Disagrees Disagrees .
h If a man purchases, as a slave, his own father, with a view to the expiation of a vow, it suffices [p. 539] . . . Shafi’i
h The freedom of the slave is not suspended upon the act of purchase, and the condition of option on behalf of the purchaser does not with them prevent the establishment of the purchaser’s possession [pp. 546-547] . Disagrees Disagrees .
h Nazr (devoting vow) is valid without respect to actual property [p. 551] . Disagrees Disagrees .
 
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Posted by on July 29, 2012 in Fiqh

 

Easy Usul al-Fiqh

الحمدلله رب العالمين ، والصلاة والسلام على نبينا محمد ، وعلى آله وصحبه أجمعين،وبعد؛
فهذا مختصر في أصول المذهب الشافعي ، اعتمدت فيه على “متن الورقات” لإمام الحرمين عبد الملك بن عبد الله بن يوسف الجُويني ، مع زيادات وتفريعات وتقسيمات ، وتصرف في العبارات ، وتوضيح لبعض المشكلات ، وتهذيب وشرح لبعض المسائل المستغربات .
والله تعالى أسأل العون والتسديد، والقبول والتأييد .

معنى أصول الفقه :
أصول الفقه : مؤلف من جزأين مفردين : أصول ، وفقه
فالأصلُ :ما بُنيَ عليه غيره ، والفرعُ ما يُبنى على غيره .
والفقه : معرفةُ الأحكام الشرعية التي طريقها الاجتهاد .
أو، الفقه : علم بحكم شرعي عملي مكتسب من دليل تفصيلي . لب الأصول للشيخ زكريا الأنصاري 
على هذا فإن أصول الفقه : الأصول التي يُبْنَى عليها معرفة الأحكام الشرعية التي طريقها الاجتهاد.
ويمكن أن نقول إنّ أصول الفقه: المسائل التي بُنِيَ عليها معرفة الأحكام الشرعية التي طريقها الاجتهاد.
ويمكن أن يُقال : معرفة أدلة الفقه الاجمالية ، وطرق استفادة جزئيّتها ، وحال مستفيديها . لُبّ الأصول .

أنواع الأحكام الشرعية :
الحكم الشرعي : هو خطاب الله المتعلق بأفعال المكلفين بالاقتضاء أو التخيير أو الوضع .

وتنقسم الأحكام الشرعية ، وهي التي تكون مَنُوطة بالتكليف – أي قد كُلِّفَ العباد بها – إلى قسمين :
أ- الأحكام التكليفية . ب – الأحكام الوضعية .
والأحكام التكليفية خمسة ، وهي : الواجب ، والمندوب ، والمباح ، والمحظور ، والمكروه .
أما الأحكام الوضعية فخمسة أيضا ، وهي : السبب ، والشرط ، والمانع ، والصحيح ، والفاسد . لُبّ الأصول 

أ-الأحكام التكليفية :
1- الواجب : 
معناه لغة :اللازم ، الساقط .
معناه اصطلاحا : ما أمر الشارع به على وجه الإلزام .
حكمه : ما يُثاب على فعله امتثالا ، ويستحق العقوبة على تركه .
ويسمى : الواجب ، الفرض ، المكتوب ، المحتوم .
مثاله : الصلوات الخمس .

2- المندوب :
معناه لغة : المدعو اليه .
معناه في المصطلح : ما أمر به الشارع لا على وجه الإلزام
أو : ما يُمدح فاعله ، ولا يذم تاركه . شرح المحلي على جمع الجوامع 1/80
حكمه : ما يُثاب على فعله امتثالا، ولا يُعاقب على تركه .
ويُسمى سنة ، ونافلة ، ومستحبا ، وتطوعا ، ومرغوبا فيه .تيسير الأصول شرح منهاج الوصول 1/340

3- المباح :
معناه لغة : الموسع فيه ، والمأذون فيه .
ومعناه اصطلاحا : ما لا يتعلق به أمر ، ولا نهي .
أو : ما لا يتعلق بفعله أو تركه مدح ولا ذم .
حكمه :ما لا يُثاب على فعله ، ولا يُعاقب على تركه .
والأصل في الأشياء الاباحة .

4- المحظور ( المحرم ) : 
معناه في اللغة : الممنوع .
معناه في المصطلح : ما نهى الشارع عنه على وجه الإلزام .
وأيضا : ما يُذمّ شرعا فاعله .
حكمه :ما يُثاب على تركه امتثالا ، ويستحق العقاب على فعله .
ويُسمى الحرام : معصية ، وذنبا ، وقبيحا ، ومزجورا عنه ، ومتوعدا عليه . تيسير الوصول 1/344 .

5- المكروه : 
معناه لغة : ضد المحبوب .
معناه اصطلاحا : ما نهى عنه الشارع من غير إلزام .
حكمه :ما يُثاب على تركه ، ولا يُعاقب على فعله .

 

 

 

 
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Posted by on July 23, 2012 in Fiqh

 

How to Study the Shafi’i Madhab

One question students of knowledge often ask is what is the proper method of acquiring the fiqh of a particular madhab. The following is a detailed guide to the study of the Shafi’i madhab in order to gain mastery. Whilst this is an indication, one should nevertheless follow what one’s teacher recommends.

Madkhal Literature

These works allow one to have a general overview of the historical development of the madhab, its nomenclature, its scholars, and its major written works. One normally begins reading madkhal works once one is intermediate. They should be often and reviewed in order to have a strong overview of the structure of the madhab.

  • Al-Nawawi (d.676) – al-Muqadimah of al-Majmu’
  • Al-Nawawi – al-Muqadimah of al-Tanqih
  • Shams al-Ramli (d.1004/1596) – Sharh Muqadimat Minhaj al-Talibin (Nihayat al-Muhtaj)
  • Muhammad b. Sulayman al-Kurdi (d.1194/1780) – al-Fawa’id al-Madaniyah
  • Alawi b. Ahmad b. al-Saqqaf (d.1335/1916) – al-Fawa’id al-Makkiyah (and its Mukhtasar)
  • Ahmad b. Mayqari b. al-Ahdal (d.1390/1970) – Sullam al-Muta’allim ila Ma’rifat al-Rumuz al-Minhaj
  • Ahmad b. Abi Bakr b. Sumayt al-‘Alawi al-Hadrami (1343/1924) – al-Idah fi Bayan Istilah al-Minhaj
  • Muhammad Hasan Hitu – al-Ijtihad wa Tabaqat Mujtahidi al-Shafi’iyah
  • Ali Jumu’ah – Imam al-Shafi’i wa Madrasatuh al-Fiqhiyah
  • Akram al-Qawasimi – al-Madkhal ila Madhab al-Shafi’i

Curriculum Texts

These works are studied from cover to cover with a qualified teacher. One might not study all, but the sequence here is in the typical order of study. They form the basis of one’s training in the furu’ after having studied the basic primary texts (al-Risalah al-Jam’iah, Safinat al-Naja, Mukhtasar al-Latif, etc.) The core texts are studied in class whereas the commentaries are usually referred to on occasion by the teacher and studied at home by the student. The purpose of studying these texts is to acquire familiarity with the masa’il and their locations within traditional texts so that, when needed, one can research an issue independently in the mu’tamad works.

Elementary Level

al-Masa’il al-Ta’lim (i.e. al-Muqadimat al-Hadramiyah) with its primary commentaries al-Minhaj al-Qawim (elementary) and/or Bushra al-Karim (intermediate) – This text is the basic work in ibadah and is particularly popular in Yemen, Syria, and South East Asia. One should be deeply intimate with this text and perhaps even memorise its abridgment, Mukhtasar al-Latif. The work is based chiefly upon Imam al-Nawawi’s works and has a number of important commentaries and marginal glosses. The most extensive gloss is the seven volume Hashiyat al-Tarmasi upon Ibn Hajar’s commentary, Minhaj al-Qawim. The best editions of the text and its commentaries are all by Dar al-Minhaj. Mustafa al-Bagha’s version has the evidences for the masa’il.

al-Ghayat wa al-Taqrib (i.e. Matn Abi Shuja) with commentary – This basic text has attained a popularity second only to Minhaj al-Talibin among the mutun. Almost every Shafi’i student will study it or its commentaries at some point. What makes it unique is that it is the only pre-tarjih al-Shaykhayn text in the curriculum, and seems to have replaced al-Shirazi’s al-Tanbih as the first text studied that covers the entire fiqh spectrum. The more prominent commentaries include the elementary Fath al-Qarib by Ibn Qasim (with its advanced hashiyah by al-Bajuri or Nawawi al-Jawi); the intermediate Kifayat al-Akhyar by al-Hisni; the upper-intermediate al-Iqna’ by al-Khatib (with its hashiyah by al-Bujayrimi); the intermediate Tuhfat al-Labib by Ibn Daqiq al-Id, and the elemtary al-Nihayah by Wali al-Din al-Basir. Usually, only Fath al-Qarib and al-Iqna are ever fully studied. Mustafa al-Bagha has an edition of the text which mentions the evidences but the best edition is that by Dar Ibn Hazm.

Intermediate Level

Safwat al-Zubad – This is a blessed alfiyah (thousand-line poem) by Ibn Raslan which has attracted a number of valuable commentaries, chief of which perhaps is Fath al-Rahman by Shihab al-Ramli. Shams al-Ramli based his sharh, Ghayat al-Bayan, on that of his father. The other commentaries of note are Mawahib al-Samad by al-Fashni and Ifadah al-Sadah al-Umad by al-Ahdal. Safwat al-Zubad is studied in order to be memorised, usually after one has an intermediate familiarity with the madhab, before commencing with the larger, more advanced works. The best edition is the pocket-sized version by Dar al-Minhaj.

Umdat al-Salik with its commentaries – This is usually the first intermediate level text one studies that addresses the whole spectrum of fiqh. It contains a lot of issues and much is implied, thus expecting a degree of fiqh in the student. Scholars have said that a sign of tawfiq from Allah is one’s studying this text and that the doors of fiqh are opened upon its completion and mastery. It is based mainly upon the works of al-Nawawi, al-Rafi’i, al-Shirazi, and al-Subki. An indication of the views of al-Rafi’i is given with the expression ‘wa qeela’ (and it is said…) One should continue to read and review this text throughout one’s life as it really does abridge much from the larger reference works. The best sharh is that of Alawi b. Saqaf b. Muhammad al-Jifri (d.1273/1856), which is full of hadith evidence and explains where Ibn Naqib went against the mu’tamad positions (eighty or so instances). Other commentaries are Fayd al-Ilah by al-Barakati and Anwar al-Masalik by al-Ghamrawi, which is very nice and clear. The best editions are those of Dar Ibn Hazm and Dar al-Minhaj. The best edition of Anwar al-Masalik is the Turkish edition.

Tuhfat al-Tullab bi Sharh Tahrir Tanqih al-Lubab by Shaykh al-Islam Zakariya al-Ansari – This is a precious work with an excellent layout and manner of presentation. In Maydan in Damascus they give particular importance to this work, which is one of the main intermediate level texts studied there. Tuhfat al-Tullab is one of the most popular texts ever in the madhab, attested by the vast amounts of manuscripts available throughout the Muslim world. The famous hashiya of Abdullah al-Sharqawi, who was the shaykh al-Azhar who led the ulama’s opposition to Napoleon’s invasion of Egypt, is replete with beneficial points and is highly regarded by specialists. The best edition of Tuhfat al-Tullab is the one published by al-Basha’ir al-Islamiya which combines Tuhfat al-Tullab with al-‘Imriti’s versification and footnotes extracted from Hashiyat al-Sharqawi.

Fath al-Mu’inThis work is extremely popular in South East Asia and is also studied in Syria and Yemen. Its continued popularity is down to its being an abridgment of the works of Ibn Hajar al-Haytami and the muta’akhirin in addition to having a valuable commentary, I’anat al-Talibin, which draws much from the later hawashi literature. There are many points mentioned in this text which are not found except in much larger works. The best edition is by Dar Ibn Hazm with valuable indices.

Advanced Level

Minhaj al-Talibin with commentary – The final work studied is a magisterial summary of the views of al-Shafi’i and the Ashab al-Wujuh. The text is usually studied alone or with one of two commentaries based upon it: Fath al-Wahab by Shaykh al-Islam Zakariyah al-Ansari, which is a commentary of his own abridgement (Manhaj al-Tullab), or Mughni al-Muhtaj by al-Khatib al-Shirbini. Al-Shirbini’s commentary is popular due to its being a summary of previous commentaries as well as the clarity of his language. The famous commentaries, Tuhfat al-Muhtaj by Ibn Hajar and Nihayat al-Muhtaj by al-Ramli are mainly used for reference (see the section on finding the mu’tamad below). They haven’t been studied for over a century due to their length and/or difficulty. Tuhfat al-Muhtaj is especially difficult in its composition and has thus attracted a dozen hawashi upon it to explain its difficult passages. In South East Asia they prefer Fath al-Wahab (with the hashiyah of al-Jamal or al-Bujayrimi) and in the Middle East preference is given to Mughni al-Muhtaj. The best edition of Minhaj al-Talibin is by Dar al-Basha’ir al-Islamiyah in 3 volumes (with evidences) followed by Dar al-Minhaj in a single volume. The best edition of Mughni al-Muhtaj is by Dar al-Hadith in 6 volumes, though the binding quality is poor. Fath al-Wahab has no edition which can be recommended. The DKI edition is a type-up of the old Mustafa al-Babi al-Halabi edition. The 6 volume edition of Nihayat al-Muhtaj (without hawashi) recently published by DKI is actually quite decent. Our teachers in Madinah say there is nothing wrong with it. They also add that there is no decent edition of Tuhfat al-Muhtaj presently available.

Contemporary Works

These works are clearly written and presented in contemporary Arabic, whilst being based on some of the classical texts.

  • Al-Taqrirat al-Sadidah (masterful summary based on Habib Zayn b. Sumayt’s classes)
  • Sharh al-Yaqut al-Nafis (particularly excellent in the mu’amalat sections)
  • Al-Fiqh al-Manhaji (an abridged version of Mughni al-Muhtaj with hadith evidence)
  • Al-Fiqh al-Shafi’i al-Muyasir (based on many authoritative hawashi works with evidences)
  • Al-Mu’tamad fi Fiqh al-Shafi’i (a modern masterpiece in the madhab)

Fatawa Works

All of the muta’akhirin are reliable sources of fatwa but the following are the most referenced due to their containing many modern issues not found elsewhere, making their utility particularly relevant.

Bughyat al-Mustarshidin

This collection of relatively modern fatawa was collected by Habib Abd al-Rahman b. Muhammad al-Mashur (1250-1320/1902) of Tarim, consisting of fatawa from some of the most reputable fuqaha of the last couple of centuries:

  • Abdullah b. Husayn Ba Faqih (1198-1296)
  • Abdullah b. Umar b. Abi Bakr (1209-1265)
  • Alawi b. Saqqaf b. Muhammad al-Jifri (d.1273)
  • Muhammad b. Abi Bakr al-Ashkhar (945-991)
  • Muhammad b. Sulayman al-Kurdi al-Madani (1127-1194)

Umdat al-Mufti wa al-Mustafti

This is a collection by Muhammad b. Abd al-Rahman al-Ahdal (1277-1352) of the famous Ahdal family. It is arranged according to fiqh chapters and contains many useful discussions and some modern issues rarely found elsewhere.

In addition to the above late works, the following Mamluk-era works are noteworthy:

  • Fatawa al-Nawawi
  • Fatawa Sultan al-Ulama al-‘Izz b. ‘Abd al-Salam
  • Fatawa al-Subki
  • Al-Hawi li’l-Fatawa li’l-Suyuti
  • Al-Fatawa al-Fiqhiyah al-Kubra li Ibn Hajar
  • Fatawa al-Bulqini

Biographies

Studying the biographies of the major scholars of the school allows one to see the historical development of Islamic law as well as discovering valuable issues not found elsewhere, such as a particular scholars unique views on certain issues:

  • Taj al-Subki – Tabaqat al-Shafi’iyah al-Kubra
  • Al-Shirazi – Tabaqat al-Shafi’iyah
  • Al-Isnawi – Tabaqat al-Shafi’iyah
  • Qadi Shuhbah – Tabaqat al-Shafi’iyah
  • Qadi Abi ‘Asim al-‘Abadi – Tabaqat al-Fuqaha al-Shafi’iyah
  • Muhammad Hasan Hitu – Al-Ijtihad wa Tabaqat Mujtahidi al-Shafi’iyah

Reference Texts

These works are typically not studied cover to cover but rather referred to in order to find a solution to a particular problem.

For finding the mu’tamad (reliable view) in the madhab:

  • Al-Majmu’ by al-Nawawi
  • Rawdat al-Talibin by al-Nawawi
  • Nihayat al-Muhtaj by Shams al-Ramli
  • Mughni al-Muhtaj by Khatib al-Shirbini
  • Tuhfat al-Muhtaj by Ibn Hajar
  • Fath al-Wahab by Zakariyah al-Ansari
  • Al-Ghurar al-Bahiyah by Zakariyah al-Ansari
  • Asna al-Mutalib by Zakariyah al-Ansari

For finding evidences and differences with other madhahib:

  • Al-Majmu’ Sharh al-Muhadhab
  • Ma’rifat al-Sunan li’l-Bayhaqi
  • Nihayat al-Matlab
  • Al-Hawi al-Kabir
  • Ibn Hajar – Bulugh al-Maram
  • Ibn Hajar – Talkhis al-Habir
  • Ibn al-Mulaqqin – Badr al-Munir
  • Ibn al-Mulaqqin – Tuhfat al-Muhtaj

Al-Majmu’ is perhaps the best book in the Shafi’i madhab. It retains the spirit and letter of the law and all other works fail to match its appeal. It’s only fault is that it is incomplete as al-Nawawi died after finishing the first quarter and starting the second.

For finding different opinions within the Shafi’i madhab:

  • Rawdat al-Talibin
  • Asna al-Mutalib with Shihab al-Ramli’s Hashiyah
  • Nihayat al-Matlab
  • Al-Tahdhib lil-Baghawi
  • Al-Bayan Sharh al-Muhadhab
  • Bahr al-Madhab lil-Ruyani
  • Fath al-Aziz lil-Rafi’i

For learning the views of Imam al-Shafi’i himself:

  • Kitab al-Umm
  • Mukhtasar al-Muzani
  • Ma’rifat al-Sunan

Usul al-Fiqh

The following is a suggestion based on advice and experience.

First Stage (overview and general perception after acquiring an intermediate level in nahw, sarf, and balagha)

  • Al-Waraqat by al-Juwayni with Sharh al-Mahalli or Ibn al-Firkah (advanced)
  • Al-Khulasah by Muhammad Hasan Hitu
  • Al-Wajiz by Muhammad Hasan Hitu
  • Usul al-Fiqh al-Islami by Wahba al-Zuhayli (introduces other schools’ sources)

Second Stage (developing foundations of reasoning, inference, and deduction using the mutaqaddim way)

  • Al-Risalah by al-Shafi’i alongside the rasa’il in al-Umm (Jima’ al-‘Ilm, Ikhtilaf Malik, Ibtal al-Istihsan, etc.)
  • Lubb al-Usul by Zakariyah al-Ansari (abridged from Jam’ al-Jawami’) with his sharh Ghayat al-Uusl
  • Al-Lum’a by al-Shirazi with its Sharh by the author or al-Tabsirah
  • Al-Faqih wa al-Mutafaqqih by Khatib al-Baghdadi
  • Qawati’ al-Adillah by al-Sam’ani

Third Stage (takhrij al-furu ‘ala al-usul, i.e. practical derivation of furu’ from usul)

  • Al-Zanjani – Al-Takhrij
  • Al-Isnawi – Al-Tamhid

Fourth Stage (mastery of the mutakallim way)

  • Raf’ al-Hajib by Taj al-Din al-Subki
  • Jam’ al-Jawami’ by Taj al-Din al-Subki with Sharh al-Mahalli (with Hashiyat al-Attar) or al-Zarkashi’s brilliant sharh Tashnif al-Musami’ or al-Suyuti’s Nazm al-Kawkab al-Sati’ (with al-Itiyubi’s notes)
  • Nihayat al-Sul by al-Isnawi (the best sharh on Minhaj al-Wasul by al-Baydawi)
  • Al-Mustasfa by al-Ghazali
  • Al-Burhan by al-Juwayni
  • Al-Mahsul by al-Razi
  • Al-Ihkam by al-Amidi
  • Al-Bahr al-Muhit by al-Zarkashi (a brillaint encyclopaedia encompassing much of what preceded)

Al-Qawa’id al-Fiqhiyah

Legal maxims are crucial for developing one’s taffaquh:

  • Abdullah b. Sa’id al-Lhji – Iydah al-Qawa’id al-Fiqhiyah
  • al-Ahdal – al-Fara’id al-Bahiyah
  • Ibn Abd al-Salam – Al-Qawa’id al-Ahkam li Islah al-Anam (a.k.a. al-Qawa’id al-Kubra)
  • Al-Suyuti – al-Ashbah wa al-Naza’ir

Al-Maqasid al-Shari’ah

Understanding the general objectives of Islam is essential:

  • Al-Ghazali – Jawahir al-Qur’an
  • Al-Qawa`id al-Kubra by al-`Izz b. `Abd al-Salam

Consulting Scholars

Establishing and maintaining professional ties with scholars is essential. They can be consulted on a wide range of topics and often clarify misunderstood concepts. In our age we can also benefit from listening to recordings of classes by great scholars. The following is just a choice selection of contemporary Shafi’i scholars (some recently deceased, may Allah have mercy on them).

Sham

  • Muhammad Hasan Hitu
  • Mustafa al-Bagha
  • Mustafa al-Khinn
  • Muhammad Sa’id Ramadan al-Buti
  • Muhammad Tawfiq Ramadan
  • Rushdi al-Qalam
  • Wahba al-Zuhayli
  • Muhammad al-Zuhayli
  • Akram al-Qawasimi
  • Nuh Ali Salman al-Qudah
  • Abdullah al-Harari

Egypt

  • Abd al-Azim Muhammad al-Dib
  • Ali Jumu’ah
  • Muhammad al-Sadiq Qamhawi
  • Abd al-Hamid al-Sayyid abd al-Hamid
  • Amr al-Wardani
  • Salim b. Khatib
  • Ahmad al-Hajjayn
  • Hisham al-Kamil
  • Muhammad Husayn Isa
  • Dr Atiyah Abd al-Mawjud

Hijaz

  • Habib Zayn b. Ibrahim al-Sumayt
  • Habib Umar al-Jilani
  • Hasan b. Ahmad al-Kaf
  • Muhammad b. Ahmad al-Kaf
  • Muhammad b. Umar al-Kaf
  • Muhammad Isma’il al-Zayn
  • Hamid b. Alawi al-Kaf

Yemen

  • Muhammad Ali al-Khatib
  • Habib Salim b. Abdullah b. ‘Umar al-Shatiri
  • Habib Ali al-Mashur b. Muhammad b. Salim b. Hafiz
  • Habib ‘Umar al-Khatib

Iran/Iraq

  • Abdullah b. Hasan al-Kuhaji
  • Ahmad al-Kubaysi (currently residing in the Emirates)

The West

  • Taha Karan
  • Muhammad al-Afifi al-Akiti
  • Tahir Jabir al-Alwani

 

 
5 Comments

Posted by on July 15, 2012 in Fiqh

 

Tahqiq in Hashiyat al-Tarmasi

http://mhabibsyakur.blogspot.co.uk/2009/06/blog-post.html

تحقيق كتاب حاشية تكملة المنهج القويم

مقدّمة المحقّق
بسم الله الرحمن الرحيم
الحمد لله نحمده ونستعينه ونستغفره ونتوب إليه، ونعوذ به من شرور أنفسنا ومن سيئات أعمالنا. من يهده الله فلا مضلّ له ومن يضلله فلا هادي له. أشهد أن لا إله إلا الله وحده لا شريك له، وأشهد أن محمدا عبده ورسوله وحبيبه وصفيه. صلوات الله وسلامه عليه وعلى آله وأصحابه وكل مجاهد في سبيل إعلاء كلمات ربه، ومن اقتدى به واستنّ بسنّته إلى يوم لقائه. أمّا بعد:
فهذا تحقيق لكتاب “المنهل العميم بحاشية المنهج القويم” أو المسمى بـ”حاشية تكملة المنهج القويم من البيع إلى الفرائض”، فهي الجزء الخامس من كتاب “موهبة ذي الفضل بحاشية شرح مختصر بافضل”. هذا الكتاب ألّفه الشيخ محمّد محفوظ بن عبد الله بن عبد المنّان الترمسيّ، منحه الله جزيل فضله الوافي. وكان من فضل الله تعالى أن وفّق المحقّق لاختياره، حيث يعدّ نشر الكتاب بما يحويه من معالجة قيّمة لمعرفة الفروع الفقهيّة في المعاملات اليوميّة.
قدّم المحقّق نتيجة هذا التحقيق في نظام نفتتحه بالمقدّمة الّتي يدور فيها الكلام عن ترجمة المؤلّف، وهو الشيخ محمد محفوظ الترمسي، ثم لمحة عن كتاب “المنهل العميم بحاشية المنهج القويم”، ومنهج التحقيق، ووصف المخطوط والنماذج منه. وقدّم بعد ذلك تحقيق كتاب “المنهل العميم بحاشية المنهج القويم” للشيخ محمد محفوظ الترمسي، واختتمه بمصادر التحقيق والفهارس.

1) ترجمة المؤلّف
هو محمد محفوظ بن عبد الله بن عبد المنان الترمسي الجاوي الإندونيسي، فقيه شافعي، من القرّاء، له اشتغال في الحديث، من أصل ترمس، فاتشيتان، جاوة الشرقية، إندونيسيا. لقّب بالتَّرْمَسي، وهو المشهور، لأنه ولد في قرية ترمس، ولقب أيضا بالجاوي وبالإندونيسي لأنه من أبناء جاوة وإندونيسيا، وبالمكي لأنه تلقى شتى العلوم والفنون ونشرها فيها وتوفي بها. وهو مشهور أيضا بالمقرئ المكيّ والمحدث النوسنتاروي والمسند الفقيه الأصولي الشافعي.
ولد محمد محفوظ الترمسي في 12 جمادى الأولى 1285 هـ/31 أغسطس 1868 م، ولكن قال الشيخ دحلان بن عبد الله الترمسي -شقيق المؤلف- إن ولادته يوم الإثنين 6 صفر 6 1280 هـ. وكان أبوه في مكة، وتربّى في حجر والدته وأخواله.
نشأ محمد محفوظ الصغير فى أسرة من أعرق أسر هذا البلد، وكان أبوه الشيخ عبد الله بن عبد المنان الترمسي عالم من العلماء المشهورين، وله باسنترين ما زال في شهرته حتى اليوم، وهو باسنترين ترمس. وهذه البيئة هي التي تدفعه إلى أن يتبحّر في شتّى العلوم والفنون الإسلامية.
تلقّى مبادئ الفقه في حداثة سنّه عن شيوخه في ترمس وحفظ القرآن، ثم استقدمه أبوه، العلامة الفقيه الكياهي الحاج عبد الله الترمسي إلى مكة المكرّمة، ورحل إليها سنة 1291 هـ فاستوطن معه فيها وقرأ عليه جملة من الكتب، ثم رجع إلى جاوة صحبة أبيه، وانتقل إلى سمارانج جاوا الوسطى ولازم بها العلامة الكياهي الحاج صالح بن عمر السماراني، المشهور بالكياهي صالح دارات، ومكث عنده في الرباط وقرأ عليه جملة من الكتب، منها: المنهج القويم والفتح المعين.
ثم رحل ثانيا منها مسافرا إلى مكّة، فأقام بها وتلقّى العلوم والفنون عن كبار علمائها. تفقّه على العلاّمة السيّد أبي بكر بن محمد شطا المكي، وسمع كثيرا من كتب الحديث ومصطلحه على العلامة المحدّث السيّد حسين بن محمد الحبشي المكي، وقرأ كثيرا من كتب الحديث وعلومه على العلامة الشيخ محمد سعيد بابصيل، وأخذ القراءات الأربع عشرة عن العلامة الشيخ محمد الشربيني الدمياطي.
اجتهد محمد محفوظ في التحصيل وسهر الليالي حتى برز في الحديث وعلومه، وبرع واشتهر في الفقه وأصوله والقراءات وشارك في فنون كثيرة، وأجازه مشايخه بالتدريس. وتصدّى للإفادة بالمسجد الحرام عند باب الصفا وبمنـزله وانتفع به الطلبة، وأقبل الناس لاجتناء ثماره اليانعة من جلّ حدب.
وتخرّج على يده خلق كثيرون، منهم: أخواه الكياهي الحاج رادين دحلان السماراني الفلكي والكياهي الحاج محمد دمياطي الترمسي، والكياهي الحاج خليل اللاسمي كاتبه الخاص، والكياهي دلهار المقلاني، والكياهي الحاج هاشم أشعري الجومباني، والكياهي محمد فقيه بن عبد الجبار المسكومامباني، والأخوان الكياهي بيضاوي والكياهي عبد المهيمن ابنا عبد العزيز اللاسمي، والكياهي نووي الفاسرواني، والكياهي عباس بونتت الشربوني، والكياهي عبد المحيط بن يعقوب السيدارجاوي السرباوي ثم المكّي.
وروى عنه جماعة من المشايخ، منهم: المحدّث الشيخ حبيب الله الشنقيطي، ومحدّث الحرمين الشريفين الشيخ عمر بن حمدان المحرسي، والمقرئ الشيخ أحمد المخللاني الشامي ثم المكي، والعلامة المتفنّن الشيخ باقر بن نور الجوكجاوي، والمعمر الكياهي معصوم بن أحمد اللاسمي، والكياهي صديق بن عبد الله اللاسمي ثم الجمبري، والكياهي عبد الوهاب بن حسب الله الجومباني، والمعمر الشيخ عمر بن أبي بكر باجنيد المكي، والشيخ علي بن عبد الله بنجر المكي، والشيخ محمد عبد الباقي الأيوبي اللكنوي ثم المدني، والشيخ عبد القادر بن صابر المندهيلي ثم المكي.
وأما مؤلفات الشيخ محمد محفوظ الترمسي –كما كتبه المؤلّف في آخر نسخة “فتح الخبير بشرح مفتاح التفسير” المحرّر في الثالث من المحرم سنة 1338- فبلغت ثماني عشرة، وهي:
1- السقاية المرضيّة في أسماء كتب أصحابنا الشافعيّة، في ثلاث كراريس؛
2- المنحة الخيرية في أربعين حديثا من أحاديث خير البرية، في كراستين، مطبوع محقّق؛
3- الخلعة الفكرية بشرح المنحة الخيرية، في ثلاث عشرة كراسة، مطبوع محقق؛
4- كفاية المستفيد فيما علا من الأسانيد، في كراسة واحدة، مطبوع محقق؛
5- الفوائد الترمسية في أسانيد القراءات العشرية، في كراسة واحدة؛
6- البدر المنير في قراءة الإمام ابن كثير، في ست كراسات؛
7- تنوير الصدر في قراءة الإمام أبي عمرو، في ثماني كراسات؛
8- انشراح الفؤاد في قراءة الإمام حمزة روايتي خلف وخلاد، في ثلاث عشرة كراسة؛
9- تعميم المنافع في قراءة الإمام نافع، في ست عشرة كراسة؛
10- إسعاف المطالع بشرح البدر اللامع نظم جمع الجوامع، في مجلدين؛
11- غنية الطلبة بشرح نظم الطيبة في العشرية، في مجلد واحد؛
12- منهج ذوي النظر بشرح منظومة علم الأثر، في مجلد واحد، مطبوع محقق؛
13- نيل المأمول بحاشية غاية الوصول على لبّ الأصول، في ثلاثة مجلدات؛
14- عناية المفتقر فيما يتعلق بسيدنا الخضر، في كراستين، مطبوع محقق؛
15- بغية الأذكياء في البحث عن كرامة الأولياء، في ثلاث كراسات، مطبوع محقق؛
16- فتح الخبير بشرح مفتاح التفسير، في خمس عشرة كراسة؛
17- موهبة ذي الفضل حاشية شرح مختصر بافضل، في أربع مجلدات، مطبوع غير محقق؛
18- حاشية تكملة المنهج القويم إلى الفرائض، في مجلد واحد؛ وهي التي بين أيدينا، ابتداء بكتاب البيع ومختتمة بكتاب الفرائض، وسمّاها المؤلّف أيضا بـ”المنهل العميم بحاشية المنهج القويم”، وهو الذي اختاره المحقق لعنوان غلاف هذا الكتاب.
ووجد المحقّق نسخة أخرى كتبها المؤلف ما عدا النسخ المذكورة، وهي ثلاثيات البخاري في ثماني صفحات التي في يد حفيد المؤلف الكياهي الحاج حرير بن محمد بن محمد محفوظ. وهناك كتاب “تهيئة الفكر بشرح ألفية السير” لم يجده المحقق -مطبوعا ونسخة- ولكنه مكتوب في آخر صفحة كتاب “المنحة الخيرية” الذي طبع عام 1415 هـ.

2) لمحة عن الكتاب
حمل هذا الكتاب له ثلاثة أسماء، وهي: (1) حاشية تكملة المنهج القويم من البيع إلى الفرائض؛ (2) الجزء الخامس من موهبة ذي الفضل بحاشية شرح مختصر بافضل؛ (3) المنهل العميم بحاشية المنهج القويم. وهذه الأسماء كلها مكتوب في غلاف النسخة، إلا أن الأخير أدركه المؤلف في هامش غلاف النسخة بوضع العلامة التي تشير إلى موهبة ذي الفضل بحاشية شرح مختصر بافضل. وقال المؤلف فيه: “فإني سميتها بهذا الاسم أيضا”.
قام المؤلف، الشيخ محمد محفوظ الترمسي، بوضع الحاشية على الشرح الذي كتبه ابن حجر الهيتمي المسمى بـ”المنهج القويم بشرح مسائل التعليم”، فبهذا سمّى حاشيته بـ”المنهل العميم بحاشية المنهج القويم”. وكتاب “مسائل التعليم” صنّفه الإمام عبد الله بن عبد الرحمن بافضل الحضرمي (850-918 هـ)، وهو كتاب في الفقه الشافعي الذي عرف أيضا بـ”المقدمة الحضرمية” و”المختصر الكبير”، وبهذا الاسم الأخير سمى حاشيته بـ”موهبة ذي الفضل حاشية شرح مختصر بافضل”.
كانت نسخة كتاب “المنهج القويم بشرح مسائل التعليم” أو “شرح مختصر بافضل” قد وصل البحث فيها إلى باب الأضحية، فقام بوضع الحاشية لها الشيخ محمد محفوظ وأسماها: “موهبة ذي الفضل بحاشية شرح مختصر بافضل”، وبعد الانتهاء بسنة وجد الشيخ محفوظ تكملته من كتاب البيع إلى كتاب الفرائض، وكان كاتب النسخة نسب المتن والشرح كليهما للشيخ ابن حجر الهيتمي رضي الله عنه، ولكنّ ما نسبه له لم يكن في حرز الحقيقة، لأنه إذا أُمعِنَ النظرُ إلى المتن والشرح فالمتن الذي كتبه الشيخ بافضل الحضرمي رضي الله عنه من كتاب البيع إلى باب الهبة، ففيما بعده نسب الشارح، أي الهيتمي، إلى نفسه بضمير التكلم، ولم يكن ينسب إلى نفسه في شرح كتاب البيع إلى باب الهبة. فلذلك لم يكن ينتهي الإمام بافضل من تصنيف المتن واستمر بتصنيف المتن والشرح الإمام ابن حجر الهيتمي. وذلك مثل ما قال الحبيب عبد القادر العيدروس: وأراد -يعني ابن حجر- أن يكمّله، أي ذلك المختصر، إلى آخر أبواب الفقه، فبلغ فيه مع الشرح باب الفرائض وأدركته الوفاة. ويؤيّده ما ذكره الشارح في خاتمة النسخ المشهورة، أنّه رأى في بعض نسخ المتن، أنّ مؤلّفه وصل فيه إلى قريب نصف الكتاب، وأنّه –أي الهيتمي– سأل الله التيسير لإتمام ذلك متنا، تكميلا لما وجد، وشرحا للجميع. وأمّا الشرح فقد سبرته سبرا، نشأ منه الظنّ الغالب أنّ الأمر –كما ذكره كاتب نسخة التكملة– إذا حال الشارح في مواضع منه على ما في شروحه لـ«الإرشاد» و«العباب». فباب الفرائض لم يبحث فيه، وإنما كتب فيه “باب الفرائض”، فكتبه المحشي، أي الشيخ محمد محفوظ، في حاشيته هكذا مثل ما كتب في نسخة الشرح. وبهذا الأخير سمى الترمسي كتابه بـ”حاشية تكملة المنهج القويم من البيع إلى الفرائض”.
علم مما سبق أن “المنهل العميم بحاشية المنهج القويم” هذا يمثّل الجزء الخامس من “موهبة ذي الفضل حاشية شرح مختصر بافضل”، أو بعبارة أخرى أنّ “المنهل العميم” هو الاسم الذي اختاره المؤلف لكتابه هذا، من الجزء الأول من “موهبة ذي الفضل” إلى الجزء الخامس. والمنهل العميم هو الاسم الذي رجع إليه الشيخ محمد محفوظ في كتابه “غنية الطلبة بشرح الطيبة” حينما بحث في مسألة الأذان في شرحه هذا. فـ”المنهل العميم بحاشية المنهج القويم” هو الاسم الذي اتخذه المحقّق عنوانا في هذه المقدمة وفي كل ما رجع إليه في غير هذه المقدمة.
هذه الحاشية -مثل الحواشي الأخرى- تبين الألفاظ والعبارات الواردة في المتن والشرح من حيث قواعد اللغة والمعاني المقصودة منهما توضيحا من الغموض، إلا أن الشيخ محفوظ بيّن كل الألفاظ والعبارات إلا القليل منها. أكثر الشيخ الترمسي في بيانه من الرجوع إلى الكتب المصنفة قبلها، وأكثر ما رجع إليه المحشي كتب الشارح، أي شهاب الدين أحمد ابن حجر الهيتمي الشافعي، والكتب الأخرى من كتب الشافعية. فأكثرها رجوعا إليها هي: “تحفة المحتاج بشرح المنهاج” لابن حجر الهيتمي، وحواشيه للشرواني وابن قاسم العبادي، و”فتح الجواد” وحاشيته للهيتمي، و”نهاية المحتاج إلى شرح المنهاج” لشمس الدين الرملي، حاشية الشبراملسي عليه، و”مغني المحتاج إلى معرفة ألفاظ المنهاج” للخطيب الشربيني، و”أسنى المطالب إلى روض الطالب” لشيخ الإسلام زكريا الأنصاري و”حاشية الروض” لابن قاسم العبادي، و”البهجة الوردية” لعمر بن مظفر ابن الوردي، وشرحه المسمى بـ”الغرر البهية بشرح البهجة الوردية” لزكريا الأنصاري، و”حاشية الجمل على المنهج لزكريا الأنصاري” التي ألّفها الشيخ سليمان الجمل، و”إعانة الطالبين حاشية الفتح المعين” لشيخ المحشي بكري شطا، و”حاشيتا قليوبي وعميرة”، والكتب الأخرى التي رجع إليها قليلا.
وعندما نقل المحشي العبارة عن الكتب أحيانا وضع في آخر العبارة اسم الكتاب أو اسم القائل أو اسم مصنف الكتاب الذي نقل عنه، وأحيانا وضعه في وسط العبارة أو قبل أن ساق العبارة بلفظ “قال في التحفة” مثلا، وفي حين آخر ذكر قائله قبل أن ساق العبارة أو في وسط العبارة. استعمل المحشي في ذكر أسماء الأعلام والكتب بذكر أسمائها المشهورة، بل قد يذكر المحشي الأعلام بالأحرف التي تشير إليهم، فمنها: “ع ش” مختصر لعلي الشبراملسي، و”م ر” للرملي الصغير، و”سم” لابن قاسم العبادي.
3) منهج التحقيق
كانت نسخة كتاب “المنهل العميم بحاشية المنهج القويم” الجزء الخامس نسخة فريدة، لأن المحقق لم يعثر على نسخة سواها ولم توجد أية مطبعة طبعت هذه النسخة. وسار تحقيق هذا الكتاب في ثلاث مراحل، وهي:
1- تحقيق صحة الكتاب وصحة كتابته
2- تحقيق اسم الكتاب
3- تحقيق نسبة الكتاب إلى مؤلفه
ورد اسم الكتاب واسم مؤلفه مكتوبا في الصفحة الأولى من النسخة واضحا. وذلك معلوم من نماذج النسخة المخطوطة فيما بعد. وبقي للمحقق أن يقوم بتحقيق صحة الكتاب وصحة كتابته.
ولما كانت النسخة هي النسخة الفريدة، فتثبت كتابتها كما هي، ولكن جرى الإثبات والتحقيق كما يلي:
1- تحقيق الرسم
بدأ المحقق بإثبات النصّ كما رسمه المؤلّف، غير أن الخطّ العربي قد تطوّر على مرّ العصور، فلا بد من أن يجعل النصّ يرسم بالرسم المعروف. فهذه النسخة -كما سيبيّنه المحقّق في وصف المخطوط والنماذج منه- بكتابة أحد تلاميذ المؤلف، وبعد تمام الكتابة صحح المؤلف الرسم ووضع علامة تمام التصحيح في آخر كل كراسة. ووضع المؤلف التصحيح في هامش النسخة بوضع علامة “صح” في آخر التصحيح. فبهذا اعتمد المحقق على النص المرسوم ورسمه كما هو بزيادات ما يلي:
‌أ) الأحرف
1) وضع الهمزة على همزة القطع
2) إثبات النقطتين تحت الياء عندما رسم بالألف اللينة (ى)
3) وضع التشديد في الحرف المشدّد
4) إثبات أسماء الأعلام المحذوفة ألفها، مثل: سليمن يرسم بـ”سليمان”
‌ب) الشكل
1) المحافظة على الأصل المشكول
2) وضع شكل الآيات القرآنية والأحاديث النبوية
3) وضع شكل الأشعار والنظم
4) وضع شكل الألفاظ التي يلتبس معناها إذا أهمل شكلها
5) وضع شكل الأعلام الأعجمية المعربة أو الصعبة
‌ج) العناوين
إثبات عنوانات الأبواب والفصول بحرف أكبر من حرف النص
‌د) تقسيم النص وترقيمه
1) المحافظة على تقسيم المؤلف وترتيبه
2) تقسيم النصوص التي يمكن تقسيمها إلى فصول لإيضاح النص
‌ه) الأحاديث
جعل حرف متن الأحاديث أكبر من نصوص الحاشية
‌و) النقط والفواصل والإشارات
1) وضع نقط عند انتهاء المعاني في الجمل
2) وضع الفاصلة في موضعها
3) استعمال إشارة الاستفهام وإشارة التعجب في أماكن استعمالها
4) استعمال النقطتين بعد عبارة “قوله” في الحاشية التي أشارت إلى قول الشرح أو المتن، وبعد قال وعبارة في أول الكلام. وإذا ورد قولان تستعملان بعد قال الثانية. وتستعملان أيضا في التقسيم.
‌ز) الأقواس والخطوط والرموز
1) القوسان المزهران ﮋ ﮊ يحصران الآيات القرآنية
2) الأقواس المحصورة « » تحصر أسماء الكتب إذا وردت في النص
3) الخطان القصيران يحصران الجمل المعترضة
4) المعكوفان [ ] يحصران كل زيادة تضاف من نصوص وكل تبديلات من التصحيف وكل أسماء السور وأرقام الآيات في النص
5) القوسان ( ) يحصران متن الأحاديث النبوية، والمتن في الشرح، والشرح في الحاشية بعد “قوله”. وأما المتن في الحاشية فيرسم مع القوسين اللذين في الشرح بزيادة قوسين آخرين. فإذا كان المتن وحده مكتوب في الحاشية بعد “قوله” الذي يدل على قول المتن أو الشرح فيكتب ((متن))، وإذا كان المتن مع الشرح في الحاشية فيكتب (شرح (متن) شرح)، أو ((متن) شرح (متن))، أو ((متن) شرح)، أو (شرح (متن)) وهكذا
6) الفاصلات المزدوجة ” ” تحصر المثال من القول، وما رُجع إليه من النصوص سوى القول والعبارات المباشرة من النصوص الأخرى
‌ح) المتن والشرح والحاشية والهوامش
1) وضع المتن والشرح في أعلى كل صفحة بحرف أكبر من حرف الحاشية
2) فصل الحاشية من المتن والشرح بوضع الخطّين الطويلين فوق الحاشية
3) وضع الشكل في نص المتن والشرح
4) المتن والشرح في الحاشية مشكولان وبحرف أكبر من حروف الحاشية
5) بدء عبارة “قوله” التي تشير إلى المتن والشرح في الحاشية من أول السطر وعدّها فقرة جديدة
6) وضع الهوامش في أسفل الصفحة مثل ما عرف في البحوث العلمية
7) نسخ الكتب التي رُجع إليها أحيانا باسمها الكامل وأحيانا باسمها المشهور، وكذلك أحيانا بوضع مؤلفها بعد حرف الجر “اللام” وأحيانا بدون ذكر المؤلف، خصوصا ما سوى الهامش الأول من الكتب، وبعد اسم الكتاب أو اسم المؤلف توضع نقطتان ثم الجزء والصفحة أو الصفحة فقط
8) الهوامش من الأحاديث النبوية تحاول أن تكتب اسم المؤلف واسم الديوان والكتاب والباب ورقم الحديث في الديوان

2- تحقيق النص
‌أ) المصادر
1) تحقيق المصادر التي ذكرها المؤلف وليس هناك تعارض تذكر في الهامش اسم المصدر
2) في حالة التعارض بين المصادر يشار إليها في الهامش بإيجاز، من زيادة أو نقصان
3) المصادر التي لم يذكرها المؤلف، منها ما ذكره المحقق ومنها ما لم يذكره المحقق
‌ب) سبق القلم
تصويب النص والإشارة إلى الخطأ في الحاشية في حالة وضوح خطأ العبارة، وإلاّ فتثبت كما هو المكتوب والتصويب في الحاشية

4) وصف المخطوط ونماذج منه
وقفنا لهذا الكتاب على نسخة خطية فريدة كُتِبت بالخط الجميل، وهو الخط النسخي المزدوج بخط الرقعة، بِيد أحد تلاميذ المؤلّف، رحمه الله. ولم يعثر المحقّق على اسم الناسخ، إلاّ أنّه ثبت في آخر كل كراسة، وهي عشرون صفحة، كتابة المؤلف في الزاوية التحتية بالجانب اليمين من الصفحة التي عبارتها: “قد صحّح المحشي عفا الله عنه آمين” في ثلاث سطرات، سوى ما في الصفحة الأخيرة، فالعبارة ثابتة في الصفحة الأخيرة قبل صفحة الفهرست.
تضمّ هذه النسخة ست مئة وثمان وخمسين صفحة، كل صفحة تتكون من نسخة الشرح –وهي المنهج القويم- التي فيها نسخة المتن المنسوخة بحبر أحمر، وهذا المتن هو “المختصر الكبير” أو المعروف بـ”مسائل التعليم” أو “المقدمة الحضرمية”، ونسخة الحاشية، وهي الجزء الخامس من “موهبة ذي الفضل بحاشية شرح مقدمة بافضل” أو المسمى أيضا بـ”المنهل العميم بحاشية المنهج القويم”. فنسخة الحاشية مكتوبة في لب الصفحة ونسخة الشرح والمتن في هامش الصفحة. أما نسخة الحاشية فتشتمل على خمسة وعشرين سطراً، وكل سطر منها يتكون من حوالي خمس عشرة كلمة، وأما نسخة الشرح والمتن فتكتب على حسب ما بحثت فيه الحاشية في كل صفحة.
تمت كتابة هذا المخطوط –كما قاله الناسخ في آخر الكتاب- قبيل أذان الظهر يوم السبت الرابع من ربيع الثاني سنة ألف وثلاث مئة وسبع وعشرين هجرية. وهذه النسخة موجودة بحفيد المؤلّف -وهو الكياهي حرير بن محمد بن محمد محفوظ- خادم باسنترين بستان عشاق القرآن بيتينجان دماء بجاوا الوسطى. ها هي نماذج المخطوطة:

صفحة العنوان:

حاشية تكملة المنهج القويم
من البيع إلى الفرائض
(فهي الجزء الخامس من موهبة ذي الفضل بحاشية شرح مختصر بافضل)
أو
المنهل العميم بحاشية المنهج القويم
للعبد الراجي توفيق مولاه الغنيّ
محمّد محفوظ بن عبد الله الترمسيّ
وفّقه الله تعالى للإتمام ونفع بها الأنام
آمين اللهم آمين

[مقدّمة المؤلّف]
بسم الله الرحمن الرحيم
الحمد لله ربّ العالمين، وصلّى الله وسلّم على سيّدنا محمّد، وعلى آله وصحبه أجمعين، والتابعين لهم بإحسان إلى يوم الدين.
أمّا بعد، فيقول العبد الراجي توفيق مولاه، محمّد محفوظ بن عبد الله، كان الله له وتولاّه: لمّا ختمتُ بسَنَة من حاشيتي على المنهج القويم، ذاك الشرح النافع في الحديث والقديم، حسبما اشتهر من نسخه الّتي بأيدي الطلبة والعلماء الأخيار، في غالب البلدان والأمصار، وجدتُ عند بعضهم، بمكّة المكرّمة، نسخة بالخطّ الجميل قديمة، إذ تأريخها سنة 1107. فإذن فيها تكملة أبواب المعاملات، من كتاب البيع إلى الفرائض، رأيت فيها ما تقرّ به أعين الرغبات. لا جرم أنّ كاتبها نسب المتن والشرح كليهما للشيخ ابن حجر، رضي الله تعالى عنه وأرضاه، وجعل الجنّة متقلّبه ومثواه. وكتب في ورقتين منفصلتين عنها مناقبه، ومناقب الشيخ بافضل، وفيها ما وافقه، لكن في مواضع، من شـرح هذه التكملة، ما يفتضي أو يصرح بأنّ المتن ليس للشارح نفسه.
نعم، في الهبة ما يفيد ذلك. فالظاهر بعد إمعان النظر، والتأمّل الشديد، وإجالة الفكر، أنّ المتن من البيع إلى الهبة للشيخ بافضل الحضرميّ، ومنها إلى الفرائض لهذا الشارح المحقّق الهيتميّ. ويؤيّده ما ذكره الشارح في خاتمة النسخ المشهورة، أنّه رأى في بعض نسخ المتن، أنّ مؤلّفه وصل فيه إلى قريب نصف الكتاب، وأنّه –أعني الشارح– سأل الله التيسير لإتمام ذلك متنا، تكميلا لما وجد، وشرحا للجميع، وأمّا الشرح فقد سبرته سبرا، نشأ منه الظنّ الغالب أنّ الأمر –كما ذكره ذلك الكاتب– إذا حال الشارح في مواضع منه على ما في شروحه لـ«الإرشاد» و«العباب» . والله سبحانه وتعالى أعلم بالصواب.
هذا، وقد خطر ببالي القاصر الهمّة، وسنح بذهني الفاتر العزمة، أن أكتب حاشية وجيزة، على هذه التكملة العزيزة، رغبة عموم نفعها، واستمداد البركة مؤلّفها، فأقول، مستعينا بحول الله تعالى وقوّته، ومتوسّلا بجاه خير خليقته، صلّى الله تعالى عليه وسلّم وشرّف وكرّم:



(كِتَابُ الْبَيْعِ)

[(أ) التعريف]
قوله: ((كِتَابُ الْبَيْعِ)) كذا عبّر جماعة بإفراد البيع، وعبّر آخرون بجمعه. فالأوّلون نظروا إلى أنّه مصدر، والأصل فيه الإفراد، والآخرون نظروا إلى تنوّعه وتقسيم أحكامه. فلكلٍّ وجهة. واختار المصنّف الأوّل، تأسّيا بقول الله تعالى: ﮋﭧ ﭨ ﭩﮊ [البقرة: ٢٧٥]. وهذه الآية أحد أدلّة ما في الباب قبل الإجماع. وأظهر قولي الشافعيّ أنّها عامّة في كلّ بيع، إلاّ ما خصّ بالسنّة، فإنّه صلّى الله تعالى

هُوَ هُنَا الْعَقْدُ الْمُرَكَّبُ مِنَ الإِيْجَابِ وَالْقَبُوْلِ.
عليه وسلّم نَهَى عَنْ بُيُوْعِ الآجَالِ. والثاني أنّها مجملة، والسنّة مبيّنة لها. وتظهر فائدة الخلاف في الاستدلال بها في مسائل الخلاف، فعلى الأوّل يستدلّ بها، وعلى الثاني لا يستدلّ. ثمّ المراد بالحلّ في الآية –كما قاله بعضهم– صحّة العقد، أو عدم حرمته، أو عدم حرمة ما يترتّب عليها. والمعنى جعل ما يترتّب عليه حلالا بعد أن كان حراما.قال: وهذا هو المناسب، لقوله: ﮋ ﭪ ﭫﮊ [البقرة: ٢٧٥]، إذ المراد حرّم أكله. وفيه أنّ العقد كذلك. فليتأمّل!
قوله: (هُوَ هُنَا) أي البيع المراد في الترجمة. وقيّده به، لأنّ له إطلاقات ثلاثة، بل ستّة، يطلق على قسيم الشراء. وهو تمليك بثمن على وجه مخصوص، وعلى العقد الذي ذكره، وعلى مطلق مقابلة شيء بشيء، وعلى الشراء، كما في: ﮋﮧ ﮨ ﮩﮊ [يوسف: ٢٠]، وعلى الانعقاد، وعلى الملك الناشئ، كلّ منهما عن العقد، كما في “فسختُ البيع”، إذ العقد الواقع لا يمكن فسخه، وإنّما المراد فسخ ما يترتّب عليه. فليتأمّل!
قوله: (الْعَقْدُ الْمُرَكَّبُ مِنَ الإِيْجَابِ وَالْقَبُوْلِ) أي ممّـا يدلّ على التمليك والتملّك.
قوله: (وَهُوَ) أي لفظ البيع من حيث هو.
قوله: (لُغَةً) الأظهر أنّه تمييز للنسبة، أو ظرف مجـازا لها، فحقّه التأخير عن
وَهُوَ لُغَةً مُقَابَلَةُ شَيْءٍ بِشَيْءٍ،
الخبر. قاله شيخنا رحمه الله تعالى.
قوله: (مُقَابَلَةُ شَيْءٍ بِشَيْءٍ) أي [على] وجه العوضيّة، ليخرج ابتداء السلام وردّه، فإنّه لا يسمّى بيعا، إذ المقصود حصول الأمان، كذا كما قاله جمع. لكن قال بعضهم: “الأولى إبقاء المعنى اللغويّ على إطلاقه، لأنّ الفقهاء لا دخل لهم في تقييد كلام اللغويّين.” وهو ظاهر إطلاق الشارح.
ومن البيع بمعناه اللغويّ قول الشاعر :
مَا بِعْتُكُمْ مُهْجَتِي إلاَّ بِوَصْلِكُمْ
وَلاَ أُسَلِّمُهَا إلاَّ يَدًا بِيَدِ

فَإِنْ وَفَيْتُمْ بِمَا قُلْتُمْ وَفَيْتُ أَنَا
وَإِنْ أَبَيْتُمْ فَإِنَّ الرَّهْنَ تَحْتَ يَدِي

وَشَرْعًا عَقْدٌ يَتَضَمَّنُ ذٰلِكَ، عَلَى وَجْهٍ مَخْصُوْصٍ يُعْلَمُ مِمَّا يَأْتِيْ.
فقوله “مَا بِعْتُكُمْ مُهْجَتِي”، أي بيعا لغويّا، كناية عن تصرّفهم فيه بالخدمة ونحوها. والمهجة هي المبيع، والوصل هو الثمن، لأنّه ما دخلت عليه الباء إذا لم يكن أحدهما نقدا. وقوله “وَلاَ أُسَلِّمُهَا”، أي تسليما تامّا، وإلاّ ففي البيع نوع تسليم. وقوله “وَإِنْ أَبَيْتُمْ”، أي امتنعتم من الوفاء. والمراد بـ”الرَّهْنَ” المبيع الذي هو المهجة المذكورة. لا يقال “إذا حصل تنازع في التسليم يرفع الأمر للقاضي ليفصله”، لأنّا نقول “يمكن أن يترافعا هنا لقاضي الهوى”. تأمّل!
قوله: (وَشَرْعًا عَقْدٌ يَتَضَمَّنُ ذٰلِكَ) أي مقابلة الشيء بالشيء، يعني يقتضي انتقال الملك، في المبيع للمشتري، وفي الثمن للبائع.
قوله: (عَلَى وَجْهٍ مَخْصُوْصٍ يُعْلَمُ مِمَّا يَأْتِيْ) أي وهو شروطه الآتية. زاد في غيره: “لاستفادة ملك عين أو منفعة مؤبّدة”، كبيع حقّ الممرّ. وبيّن بذلك أنّ المعنى إنّما يصير مقابلة الشيء بالشيء بيعا شرعيّا موجودا في الخارج يفيد ترتّب أحكامه عليه، إن وجدت فيه تلك الأركان والشروط الآتية. وحدّ البيع الشرعيّ أيضا بأنّه “عقد معاوضة ماليّة يفيد ملك عين أو منفعة على التأبيد”. واستحسن هذا لسلامته ممّا أورد على الحدّ الأوّل، كما هو مبسوط مع جوابه في المطوّلات.

(وَلَهُ ثَلاَثَةُ أَرْكَانٍ):
[(ب) أركان البيع]
قوله: ((وَلَهُ)) أي البيع.
قوله: ((ثَلاَثَةُ أَرْكَانٍ)) أي إجمالا، وإلاّ فهي ستّة. ثمّ تعبيره بالأركان تبع فيه الغزاليّ والنوويّ في بعض كتبه، واختار الرافعيّ أنّها شروط. قال في «المغني»: والتعبير بالركن أولى. نعم، قد يراد بالشرط ما لا بدّ منه، فيساوي التعبير بالركن.

صِيْغَةٌ [أَيْ] إِيْجَابٌ وَقَبُوْلٌ، وَعَاقِدٌ [أَيْ] بَائِعٌ وَمُشْتَرٍ، وَمَعْقُوْدٌ عَلَيْهِ [أَيْ] مَبِيْعٌ وَثَمَنٌ.
(الرُّكْنُ الأَوَّلُ الصِّيْغَةُ) وَلَوْ فِيْ بَيْعِ الأَبِ أَوِ الْجَدِّ مَالَ مَحْجُوْرِهِ لِنَفْسِهِ أَوْ عَكْسِهِ.
قوله: (صِيْغَةٌ وَعَاقِدٌ وَمَعْقُوْدٌ عَلَيْهِ) تسمية العاقد ركنا أمر اصطلاحيّ، وإلاّ فليس جزءا من ماهية البيع التي توجد في الخارج التي هي العقد. وإنّما إجزاؤه الصيغة واللفظ الدالّ على المعقود عليه. فبهذا الاعتبار، كان المعقود عليه ركنا حقيقيّا، أي جزءا من الماهية الخارجيّة التي هي العقد، فكان ركنا باعتبار أنّه يذكر في العقد. تأمّل! كذا في «الجمل».
[1- الصيغة]
قوله: ((الرُّكْنُ الأَوَّلُ الصِّيْغَةُ)) كأنّ الأَوْلى للمصنّف أن يقدّم الكلام على العاقد ثمّ المعقود عليه ثمّ الصيغة، لكنّه بدأ بها. قيل: لأنّها أهمّ، للخلاف فيها. وأولى منه، لأنّه ليس المقصود تقديم ذات العاقد، إلاّ بعد اتّصافه بكونه عاقدا، وهو إنّما يكون كذلك بعد إتيانه بالصيغة. تأمّل!
قوله: (وَلَوْ فِيْ بَيْعِ الأَبِ إِلَى آخِرِهِ) أشار بـ”لو” إلى خـلاف فيه. فقد
لِقَوْلِهِ صَلَّى اللهُ تَعَالَى عَلَيْهِ وَسَلَّمَ: (إِنَّمَا الْبَيْعُ عَنْ تَرَاضٍ)
قيل: يكفي أحد اللفظين، وقيل: تكفي النيّة. قال الأسنويّ : وهو قويّ، لأنّ اللفظ إنّما اعتبر ليدلّ على الرضا. لكنّ المذهب الأوّل، لأنّ معنى التحصيل غير معنى الإزالة، فيقول “بعت هذا لطفلي” و”قبلت له البيع”، ولو قال “بعتك”، بطل. وعلم من هذا، أنّه لو وكّل في الإيجاب والقبول فأتى بهما لم يصحّ البيع، فلا بدّ أن يوكّل فيهما اثنين ليأتي أحدهما بالإيجاب والآخر بالقبول.
قوله: (لِقَوْلِهِ صَلَّى اللهُ تَعَالَى عَلَيْهِ وَسَلَّمَ) دليل لركنيّة الصيغة. والحديث رواه ابن حبّان وصحّحه.
قوله: (إِنَّمَا الْبَيْعُ عَنْ تَرَاضٍ) أي إنّما صحّة البيع عنه. نظير ما فسّروا به حديث النيّة.
قوله: (وَالرِّضَا خَفِيٌّ) أي لأنّه ميل النفس. وهذا بيان لوجه دلالة الحديث على ذلك. وحاصله أنّ الحديث حصر صحّة البيع في الرضا، وهو خفيّ لا اطّلاع لنا
وَالرِّضَا خَفِيٌّ فَنِيْطَ بِظَاهِرٍ هُوَ هِيَ. فَلاَ يَنْعَقِدُ الْبَيْعُ وَغَيْرُهُ كَالْقَرْضِ وَالرَّهْنِ وَالإِجَارَةِ وَالْهِبَةِ بِالْمُعَاطَاةِ،
عليه، فاشترط لفظ يدلّ عليه، وهو الصيغة.
قوله: (فَنِيْطَ بِظَاهِرٍ) أي علّق به، يقال: ناطه – نوطا: علّقه.
قوله: (هُوَ هِيَ) أي ذلك الظاهر الذي علّق به الرضا، هي الصيغة. قال السيّد عمر البصريّ : يظهر أنّ أولى ما يوجّه به اعتبار الصيغة أنّ دلالة الألفاظ منضبطة، لأنّ لها قوانين مدوّنة، بخلاف دلالة غيرها.
قوله: (فَلاَ يَنْعَقِدُ الْبَيْعُ) تفريع على المتن.
قوله: (وَغَيْرُهُ كَالْقَرْضِ إِلَى آخِرِهِ) أي فإنّ خلاف المعاطاة يجري في ذلك كلّه، كما قاله النوويّ .
قوله: (بِالْمُعَاطَاةِ) متعلّق بـ”لا ينعقد”. وذلك لأنّ الفعل دلالته على الرضا غير ظاهرة، هذا هو المذهب. وقد اختار النوويّ وجماعة، منهم المتوليّ والبغويّ ،
بِأَنْ يُعْطِيَهُ الثَّمَنَ وَيَأْخُذَ الْمُثَمَّنَ
الانعقاد بها في كلّ ما يعدّه الناس بيعا، لأنّه لم يثبت اشتراط لفظ، فيرجع للعرف كسائر الألفاظ المطلقة. وبعضهم، كابن سريج والرويانيّ ، خصّص جواز المعاطاة بالمحقّرات، وهي ما جرت العادة فيها بالمعاطاة، كرطل خبز وحزمة بقل. وقال بعضهم: كلّ من وسم بالبيع اكتفى منه بالمعاطاة، كالعامّيّ والتاجر. وكلّ من يعرف بذلك لا يصحّ منه إلاّ باللفظ.
قوله: (بِأَنْ يُعْطِيَهُ الثَّمَنَ وَيَأْخُذَ الْمُثَمَّنَ) أي باتّفاقهما عليه، كما نقلوه عن «الذخائر» . قال في «الفتح» : ويظهر أنّ ما ثمنه قطعيّ الاستقرار، كالرغيف بدرهم بمحلّ لا يختلف أهله في ذلك، لا يحتاج فيه الاتّفاق، بل يكفي الأخذ [والعطاء] مع سكوتهما.
وَهُمَا سَاكِتَانِ، أَوْ مَعَ لَفْظٍ مِنْ أَحَدِهِمَا. فَيَجِبُ عَلَى كُلٍّ رَدُّ مَا أَخَذَهُ لِصَاحِبِهِ، وَيَضْمَنُهُ بِأَقْصَى قِيْمَتِهِ، كَضَمَانِ الْغَصْبِ،
قوله: (وَهُمَا سَاكِتَانِ) أي عن الإيجاب والقبول المعتبرين.
قوله: (أَوْ مَعَ لَفْظٍ مِنْ أَحَدِهِمَا) أي وسكوت الآخر، قال عليّ الشبراملسيّ : ولا تتقيّد المعاطاة بالسكوت، بل تشمّله تشمُّل غيره من الألفاظ الغير المذكورة في كلامهم، للصريح والكناية.
قوله: (فَيَجِبُ عَلَى كُلٍّ إِلَى آخِرِهِ) تفريع على عدم الانعقاد بالمعاطاة.
قوله: (رَدُّ مَا أَخَذَهُ لِصَاحِبِهِ) أي إن بقي، لأنّ المقبوض بها كالمقبوض ببيـع فاسد.
قوله: (وَيَضْمَنُهُ) أي المأخوذ بالمعاطاة إن تلف.
قوله: (بِأَقْصَى قِيْمَتِهِ) أي إن كان متقوّما، فإن كان مثليّا فبالمثل.
قوله: (كَضَمَانِ الْغَصْبِ) تنظير لكون الضمان بأقصى القيم. وظاهر كلامه وجوب ردّ البدل وإن لم يطلبه المالك، ووجهٌ بأنّه من جملة التوبة الواجبة للخروج من معصية هذا العقد الفاسد. نعم، إن علم أو ظنّ رضاه بتأخير ردّ البدل، فالمتّجه عدم وجوب الردّ إلاّ بعد المطالبة، وأن لا تتوقّف التوبة عليه حينئذ. فليتأمّل!
لٰكِنْ لاَ عِقَابَ عَلَيْهِمَا فِيْ الآخِرَةِ، لِوُقُوْعِ الرِّضَا بِالْمَأْخُوْذِ بِهَا مِنَ الْجَانِبَيْنِ. نَعَمْ، الْعَالِمُ مِنْهُمَا بِالتَّحْرِيْمِ يَأْثَمُ مِنْ جِهَةِ تَعَاطِيْهِ عَقْدًا فَاسِدًا. وَهٰذَا يُعَاقَبُ عَلَيْهِ فِيْ الآخِرَةِ،
قوله: (لٰكِنْ لاَ عِقَابَ عَلَيْهِمَا فِيْ الآخِرَةِ) أي بسبب ما يأخذه كلّ منهما بالمعاطاة، فما تقرّر إنّما هو في أحكام الدنيا.
قوله: (لِوُقُوْعِ الرِّضَا بِالْمَأْخُوْذِ بِهَا مِنَ الْجَانِبَيْنِ) تعليل لعدم العقاب. زاد غيره: وللخلاف فيها.
قوله: (نَعَمْ، الْعَالِمُ مِنْهُمَا بِالتَّحْرِيْمِ) أي بخلاف الجاهل منهما به.
قوله: (يَأْثَمُ مِنْ جِهَةِ تَعَاطِيْهِ عَقْدًا فَاسِدًا) أي حيث لم يقلّد القائل بالجواز. قال البيجوري : وينبغي تقليد القائل به، للخروج من الإثم، فإنّه ممّا ابتلي به كثير، أو لا حول ولا قوّة إلاّ بالله، حتّى إذا أراد من وفّقه الله تعالى إيقاع صيغة اتّخذه الناس سخريّة. انتهى.
قوله: (وَهٰذَا) أي تعـاطي العقد الفاسـد. قال عليّ الشـبراملسيّ: أي في المعاطاة.
قوله: (يُعَاقَبُ عَلَيْهِ فِيْ الآخِرَةِ) أي لحرمة تعاطيها على القول بفسادها،
كَسَائِرِ الصَّغَائِرِ، مَا لَمْ يُحْصَلْ لَهُ مُكَفِّرٌ.
كبقيّة العقود الفاسدة. نعم، بحث الشارح استثناء الفاسد الذي يترتّب عليه ما يترتّب على الصحيح، كالكتابة الفاسدة، فإنّها كالصحيحة في العتق وتوابعه.
قوله: (كَسَائِرِ الصَّغَائِرِ) هذا كالصريح في أنّ المعاطاة من الصغائر، وهو المعتمد، كما قاله بعضهم، خلافا لما نقل عن «الزواجر» من أنّها من الكبائر.
قوله: (مَا لَمْ يُحْصَلْ لَهُ مُكَفِّرٌ) أي من الأعمال المكفّرة للصغائر، وإلاّ فلا عقاب عليه.
بقي الكلام في الاستجرار، وهو أن يأخذ الحوائج من البيّاع ثمّ يحاسبه بعد مدّة، ثمّ يعطيه ثمنها. قال النوويّ: إنّه باطل بلا خلاف، لأنّه ليس ببيع لفظيّ ولا معاطاة. فليعلم ذلك وليحذر منه ولا يغترّ بكثرة من يفعله. هذا كلامه، لكنّ الغزاليّ سامح في ذلك بناءً على جواز المعاطاة، لا سيّما إذا قدّر الثمن في كلّ مرّة. وانتصر له الأذرعيّ بأنّ ما قاله النوويّ مأخوذ من إفتاء البغويّ وتفقّه ابن الصلاح ، وبأنّ ما علّله فيه نظر، بل يعدّه الناس بيعا. والغالب أن يكون قدر ثمن الحاجة معلوما لهما عند
وَقَدْ لاَ تَجِبُ صِيْغَةٌ، كَمَا فِيْ الْبَيْعِ الضِّمْنِيِّ، وَهُوَ مَا تَضَمَّنَهُ الْتِمَاسُ الْعِتْقِ وَجَوَابُهُ، كَـ”أَعْتِقْ عَبْدَكَ عَنِّيْ عَلَى أَلْفٍ”، فَيَقُوْلُ “أَعْتَقْتُهُ” فَيَعْتِقُ،
الأخذ والعطاء، وإن لم يتعرّضوا له لفظا، والعرف جارٍ به. وهو عمدة الغزاليّ في إباحته. والله أعلم.
قوله: (وَقَدْ لاَ تَجِبُ صِيْغَةٌ) أي لفظا، وإلاّ فهي مقدّرة، كما سيأتي.
قوله: (كَمَا فِيْ الْبَيْعِ الضِّمْنِيِّ) لعلّ الكاف استقصائيّة.
قوله: (وَهُوَ) أي البيع الضمنيّ.
قوله: (مَا تَضَمَّنَهُ الْتِمَاسُ الْعِتْقِ وَجَوَابُهُ) لعلّ الأصوب حذف ضمير “تضمّنه”. ثمّ رأيت في «الفتح» كذلك. فليتأمّل!
قوله: (كَـ”أَعْتِقْ عَبْدَكَ عَنِّيْ عَلَى أَلْفٍ”) أي أو بألف.
قوله: (فَيَقُوْلُ) أي المخاطب.
[قوله: ("أَعْتَقْتُهُ") أي] “أعتقت عبدي عنك بذلك”. قال ابن قاسم العبادي : في الإتيان بالفاء إشارة إلى أنّه يضرّ الفصل، ومثله الكلام الأجنبيّ.
قوله: (فَيَعْتِقُ) أي العبد عن الملتمس.
وَيَلْزَمُ الْمُلْتَمِسَ الْعِوَضُ وَالْوَلاَءُ لَهُ لأَنَّهُ الْمُعْتِقُ. وَلَمْ تَجِبْ الصِّيْغَةُ، أَيْ لَفْظًا، وَإِلاَّ فَهِيَ مُقَدَّرَةٌ، اكْتِفَاءً عَنْهَا
قوله: (وَيَلْزَمُ الْمُلْتَمِسَ الْعِوَضُ) أي وهو الألف في المثال المذكور. ويشترط في الملتمس الاختيار وعدم الحجر، وإن أوهم كلامه هنا خلافه، اتّكالا على ما يعلم في باب الحجر والطـلاق. ولا يشترط في الملتمس عتقَه القـدرةُ عليه، كذا في «الفتح».
قوله: (وَالْوَلاَءُ لَهُ) أي للملتمس لا للمجيب.
قوله: (لأَنَّهُ الْمُعْتِقُ) أي في الحقيقة. تعليل لكون الولاء للملتمس.
قوله: (وَلَمْ تَجِبْ الصِّيْغَةُ) أي في هذا البيع الضمنيّ. وهو توجيه لقوله “وقد لا تجب إِلَى آخِرِهِ”.
قوله: (أَيْ لَفْظًا) أي فقط، بل لو صرّح بها كأن قال “بعنيه وأعتقه” فقال “أعتقته عنك” لم يصحّ، كما استقربه عليّ الشبراملسيّ، لعدم مطابقة القبول للإيجاب، ولم يعتق العبد عن المالك، كما استقربه أيضا. فليراجع!
قوله: (وَإِلاَّ فَهِيَ مُقَدَّرَةٌ) أي وإن لم نقل بأنّ عدم وجوب الصيغة في ذلك لفظا فقط، فلا يصحّ القول به، لأنّ الصيغة مقدّرة. ولذا قالوا: إنّ اعتبار الصيغة جار حتّى في البيع الضمنيّ، لكن تقديرا. تأمّل!
قوله: (اكْتِفَاءً عَنْهَا) أي الصيغة اللفظيّة. تعليل لقوله “ولم تجب إِلَى آخِرِهِ”.
بِالاِلْتِمَاسِ وَالْجَوَابِ. وَلاَ يَلْتَحِقُ بِالْعِتْقِ فِيْ ذٰلِكَ غَيْرُهُ مِنَ الْقُرَبِ، لأَنَّ تَشَوُّفَ الشَّارِعِ إِلَى نُفُوْذِهِ أَكْثَرُ.
(وَهِيَ الإِيْجَابُ مِنَ الْبَائِعِ
قوله: (بِالاِلْتِمَاسِ وَالْجَوَابِ) أي لأنّهما بمنـزلة “بعنيه وأعتقه عنّي”، فأجابه بـ”بعتك وأعتقته عنك”.
قوله: (وَلاَ يَلْتَحِقُ بِالْعِتْقِ فِيْ ذٰلِكَ) أي البيع الضمنيّ.
قوله: (غَيْرُهُ مِنَ الْقُرَبِ) أي كالصدقة، بأن قال “تصدّق بدارك عنّي على ألف”، فلا يصحّ. وبه يعلم أنّ الكاف في قوله السابق “كأعتق إِلَى آخِرِهِ”، لإدخال غير “أعتق” من كلّ ما يفيد العتق دون غيره. قيل: التدبير ملحق به، ورُدّ بأنّه تعليق عتق بالموت. والتوكيل في التعليق لا يصحّ، لأنّه ملحق باليمين. فليتأمّل!
قوله: (لأَنَّ تَشَوُّفَ الشَّارِعِ إِلَى نُفُوْذِهِ أَكْثَرُ) أي من تشوُّفه إلى غيره فلا يقاس به.
قوله: ((وَهِيَ)) أي الصيغة.
قوله: ((الإِيْجَابُ مِنَ الْبَائِعِ)) هو مِن “أوجب” بمعنى أوقع وأثبت، يقال: وجب الشيء وجبة: سقط، ووجب الشيء وجوبا بمعنى ثبت. وهو هنا ما يدلّ على التمليك السابق دلالةً ظاهرةً، ولو بواسطة ذكر العوض في الكناية. غاية الأمر أنّ دلالة الصريح أقوى.

وَالْقَبُوْلُ مِنَ الْمُشْتَرِيْ) وَلَوْ هَزْلاً، كَالنِّكَاحِ وَغَيْرِهِ.
فَالإِيْجَابُ صَرِيْحٌ،
قوله: ((وَالْقَبُوْلُ مِنَ الْمُشْتَرِيْ)) هو ما دلّ على التملك دلالة ظاهرة، ولو بواسطة ذكر العوض في الكناية. نظير ما في الإيجاب.
قوله: (وَلَوْ هَزْلاً ) راجع للإيجاب والقبول معا، فينعقد البيع بالهزل ظاهرا وباطنا، كما اقتضاه إطلاقهم. واستشكل بالحديث السابق:
(إِنَّمَا الْبَيْعُ عَنْ تَرَاضٍ)
والهازل، إذا علم هزله غير راض. وأجيب بأنّ الشارع ناط الرضا بالمظنّة من حيث هو، لا بالنظر لخصوص الأفراد، كما هو شأن كلّ منوط بها، كالمشقّة في السفر. وإيضاحه أنّ الرضا هو السبب في اشتراط اللفظ، لأنّه دالّ عليه من حيث المظنّة، فربطت الصحّة باللفظ لتلك الحيثيّة، ثمّ بعد ربطها به كذلك. أعرض الشارع عن النظر للرضا، وجعل وجود اللفظ اختيارا هو الموجب للصحّة من غير نظر إلى ما وراءه من وجود الرضا في القلب أو عدمه. أفاده الشارح.
قوله: (كَالنِّكَاحِ وَغَيْرِهِ) أي كالطلاق، فإنّهما يصحّان مع الهزل.
قوله: (فَالإِيْجَابُ صَرِيْحٌ) قال الإمام : لا حصر لصرائحه، والرجوع فيه
وَهُوَ مَا لاَ يَحْتَمِلُ غَيْرَ الْبَيْعِ، وَكِنَايَةٌ، وَهِيَ مَا تَحْتَمِلُهُ وَغَيْرَهُ.
فَالصَّرِيْحُ (كَـ”بِعْتُكَ) ذَا بِكَذَا”،
إلى العرف. «حواشي الروض».
قوله: (وَهُوَ) أي صريح الإيجاب هنا.
قوله: (مَا لاَ يَحْتَمِلُ غَيْرَ الْبَيْعِ) أي ما دلّ على التمليك دلالة قويّة ممّا اشتهر وتكرّر على السنّة حملة الشرع. كذا في «التحفة». ولم يذكر العوض، لأنّ ذكره إنّما هو للاعتداد بالصيغة لا لصراحتها. وقوله “بعتك” دالّ على التمليك دلالة ظاهرة. تأمّل!
قوله: (وَكِنَايَةٌ) عطف على “صريح”.
قوله: (وَهِيَ مَا تَحْتَمِلُهُ وَغَيْرَهُ) أي غير البيع. ولذا احتاجت للنيّة.
قوله: (فَالصَّرِيْحُ (كَـ”بِعْتُكَ)) أشار بكاف التمثيل إلى عدم الحصر فيما ذكره، وبكاف الخطاب إلى أنّه لا بدّ من إسناد البيع إلى المخاطب، ولو كان نائبا عن غيره، وإنّه لا بدّ من إسناده إلى جملته. وسيأتي التصريح بالجميع.
قوله: (ذَا بِكَذَا”) فيه إشارة إلى أنّ المبتدئ يشترط أن يذكر الثمن والمثمّن
(أَوْ “مَلَّكْتُكَ”) أَوْ “هٰذَا مَبِيْعٌ مِنْكَ”، أَوْ “أَنَا بَائِعُهُ لَكَ”، أَوْ “هُوَ لَكَ بِكَذَا”،
معا، سـواء كان المبتـدئ بائعا أو مشـتريا، وإن لم يذكر المتأخّـر. وسـيأتي التصريح به أيضا.
قوله: ((أَوْ “مَلَّكْتُكَ”)) أي “ذا بكذا”، أو “وهبتك ذا بكذا”. وكونهما صريحين في الهبة إنّما هو عند عدم ذكر ثمن. وفارق “أدخلته في ملكك”، فإنّه كناية باحتمال الإدخال في دكّان مملوك له. تأمّل!
قوله: (أَوْ “هٰذَا مَبِيْعٌ مِنْكَ”، أَوْ “أَنَا بَائِعُهُ لَكَ”) أي أو نحوهما، كما قال الأسنويّ وغيره، بحثا، قياسا على الطلاق، خلافا لابن عبد السلام. «شرح البهجة».
قوله: (أَوْ “هُوَ لَكَ بِكَذَا”) هذا نقله في «المغني» عن نصّ «الأمّ»، لكن جعله في «التحفة» أحد احتمالين. قال: ثانيهما -وهو المعتمد- أنّه كناية. وعلى الأوّل يفرّق بينه وبين “جعلته لك” الآتي، بأنّ الجعل ثَمّ محتمل، وهنا لا احتمال. قال ابن قاسم: إن أراد أنّ عدم الاحتمال بسبب قوله “بكذا” فليكن “جعلته لك بكذا” كذلك. وإن أراد أنّه بدونه، أبطله قولهم في الوصيّة، أنّه لو اقتصر على ما هو له فإقرار، إلاّ أن يقول “من مالي” فيكون وصيّة.
أَوْ “عَوَّضْتُكَ”، أَوْ “صَارَفْتُكَ” فِيْ الصَّرْفِ،أَوْ “شَرَيْتُكَ” بِمَعْنَى بِعْتُكَ، أَوْ “اشْتَرِ مِنِّيْ هٰذَا بِكَذَا”،
قوله: (أَوْ “عَاوَضْتُكَ”) من المعاوضة أو عوّضت من التعويض.
قوله: (أَوْ “صَارَفْتُكَ” فِيْ الصَّرْفِ) أي في بيع النقد بالنقد.
قوله: (أَوْ “شَرَيْتُكَ” بِمَعْنَى بِعْتُكَ) أي لأنّ الشراء يطلق إطلاقا لغويّا واصطلاحيّا على كلّ من التمليك والتملّك. قال في «المصباح»: شريت المتاع أشريه، إذا أخذته بثمن، أو أعطيته بثمن. فهو من الأضداد ، لأنّ المتبايعين تبايعا الثمن والمثمّن، فكلّ من العوضين مبيع من جانب ومشترًى من جانب. قال في «الفتح»: أو “ثامنتك”، على ما بحثه الزركشيّ، والذي يتّجه أنّه كناية.
قوله: (أَوْ “اشْتَرِ مِنِّيْ”) أي لأنّه استدعاء جازم، فقام مقام الإيجاب، لدلالته على الرضا ، ولم يبال بعده من ألفاظ الإيجاب، وهو في الحقيقة استقبال، كما عدّ في ألفاظ القبول: “بعني”، وهو استيجاب، نظرا إلى صدق حدّ الإيجاب والقبول عليهما،

بِخِلاَفِ “تَشْتَرِيْ” لأَنَّهُ الْتِمَاسٌ لاَ جَزْمَ فِيْهِ.
(وَالْقَبُوْلُ مِنَ الْمُشْتَرِيْ) صَرِيْحٌ وَكِنَايَةٌ أَيْضًا. فَالصَّرِيْحُ (كَـ”اشْتَرَيْتُ”) أَوْ “شَرَيْتُ” بِمَعْنَى ابْتَعْتُ، أَوْ (“تَمَلَّكْتُ”) أَوْ (“قَبِلْتُ”) أَوْ “ابْتَعْتُ” أَوْ “رَضِيْتُ”
لأنّ “اشتر” دلّ على التمليك و”بعني” دلّ على التملّك. تأمّل!
قوله: (بِخِلاَفِ “تَشْتَرِيْ”) أي تشتري منّي، فإنّه لا يصحّ.
قوله: (لأَنَّهُ الْتِمَاسٌ لاَ جَزْمَ فِيْهِ) أي ولأنّه مجرّد استبانة لرغبة المشتري. فإذا أجاب “اشتريت” فلا بدّ أن يقول “بعتك” مثلا، فإنّ جوابه قبول يفتقر إلى الإيجاب، فلا يكفي بدونه.
قوله: ((وَالْقَبُوْلُ مِنَ الْمُشْتَرِيْ)) الأخصر حذفُ “من المشتري”.
قوله: (صَرِيْحٌ) أي وهو ما لا يحتمل غير الشراء.
قوله: (وَكِنَايَةٌ) أي وهي ما تحتمله وغيرَه.
وقوله: (أَيْضًا) أي كما أنّ الإيجاب صريح وكناية.
قوله: ((كَـ”اشْتَرَيْتُ”)) أي وما اشتقّ منه. قاله في «التحفة».
قوله: (أَوْ “شَرَيْتُ” بِمَعْنَى ابْتَعْتُ) أي لا بمعنى بعت، لما مرّ.
قوله: (أَوْ (“تَمَلَّكْتُ”) أَوْ (“قَبِلْتُ”) إِلَى آخِرِهِ) قضيّته الاكتفاء بما ذكر، وإن لم يذكر الثمن، تنـزيلا على ما قاله البائع. وقضيّة «الفتح» خــلافه، حيث
أَوْ “فَعَلْتُ” أَوْ “بِعْنِيْ”، بِخِلاَفِ “تَبِيْعُنِيْ”. (وَ) مِنْ ثَمَّ، لَوْ (قَالَ “بِعْنِيْ) هٰذَا بِكَذَا” (فَقَالَ “بِعْتُكَ”) أَوْ “اشْتَرِ مِنِّيْ”
قال: كـ”قبلت هذا بكذا”، وإن تقدّمتُ.
قوله: (أَوْ “فَعَلْتُ”) أي جوابا لقول البائع “بعتك”، كما هو ظاهر من جعلهم بمعنى “نعم”.
قوله: (أَوْ “بِعْنِيْ”) بصيغة الأمر. قال الأسنويّ: والمتّجه أن يلحق بصيغة الأمر ما دلّ عليه، كاسم الفعل والمضارع المقرون بلام الأمر.
قوله: (بِخِلاَفِ “تَبِيْعُنِيْ”) أي بلفظ المضارع، أو “بِعْتَني” بلفظ الماضي، فلا يكون صريحا.
قوله: ((وَ) مِنْ ثَمَّ) أي من أجل مخالفة “تبيعني” لـ”بعني”.
قوله: (لَوْ (قَالَ)) أي شخص لآخر.
قوله: ((“بِعْنِيْ) هٰذَا بِكَذَا”) أي بصيغة الأمر، أو “لتبعني ذا بكذا”، كما مرّ عن الأسنويّ.
قوله: ((فَقَالَ)) أي الآخر.
قوله: ((“بِعْتُكَ”)) أي أو “قد فعلت” أو نحوها.
قوله: (أَوْ “اشْتَرِ مِنِّيْ”) أي أو قال شخص لآخر: “اشتر منّي هذا بكذا”، فهو عطف على “بعني إِلَى آخِرِهِ”.

فَقَالَ “اشْتَرَيْتُ”، (صَحَّ) لِلْجَزْمِ، بِخِلاَفِ “أَبِيْعُكَ”. وَيُغْتَفَرُ فِيْ الْعَامِّيِّ
قوله: (فَقَالَ) أي الآخر.
قوله: (“اِشْتَرَيْتُ”) أي أو “قد فعلت” مثلا.
قوله: ((صَحَّ)) أي انعقد البيع في الصورتين، والأولى تسمّى استيجابا وإيجابا، والثانية استقبالا وقبولا. وظاهر تمثيله بـ”بعني” أو “اشتر منّي” يدلّ على تصوير المسألة بالاستدعاء بالصريح، لكن استوجه في «النّهاية» جريانه بالكناية، كأن يقول المشتري “اجعل لي هذا بكذا” ناويا الشراء، فيقول البائع “جعلته لك به” ناويا البيع.
قوله: (لِلْجَزْمِ) أي ولدلالة ذلك على الرضا، فلا يحتاج بعده لنحو “اشتريت” أو “ابتعت” أو “بعتك”، وأمّا احتماله لاستبانة الرغبة فبعيد.
قوله: (بِخِلاَفِ “أَبِيْعُكَ”) أي فإنّه لا يصحّ، لأنّه وعد. نعم، هو كناية . ففي «النّهاية» : هذا إن أتى به بلفظ الماضي، كما أشعر به التصوير. فلو قال “أقبل” و”أشتري” و”أبتاع”، فالأوجه أنّه كناية. ومثله في ذلك الإيجاب.
قوله: (وَيُغْتَفَرُ فِيْ الْعَامِّيِّ) أي وهو مقابل العالِم، سواء البائع أو المشتري. قال ابن قاسم: قد يقال القياس اغتفار ذلك ممّن لسانه كذلك، ولو غير عامّيّ.
فَتْحُ تَاءِ الْمُتَكَلِّمِ وَضَمِّ تَاءِ الْمُخَاطَبِ وَنَحْوُ ذٰلِكَ. وَ”نَعَمْ” تَكُوْنُ صَرِيْحَةَ إِيْجَابٍ، إِنْ سَبَقَهَا قَوْلُ الْمُشْتَرِيْ أَوْ الْمُتَوَسِّطِ “بِعْتَ”، وَقَبُوْلٍ
قوله: (فَتْحُ تَاءِ الْمُتَكَلِّمِ وَضَمِّ تَاءِ الْمُخَاطَبِ) أي لأنّ العامّـيّ لا يفـرّق بينهما.
قوله: (وَنَحْوُ ذٰلِكَ) أي كإبدال الكاف همزة. وظاهره: ولو مع القدرة على الكاف من العامّيّ.
قوله: (وَ”نَعَمْ”) أي وما في معنـاها، كـ”جير” و”أجل” و”فـعلت”. قاله في «الفتح».
قوله: (تَكُوْنُ صَرِيْحَةَ إِيْجَابٍ) أي فتقوم مقام الإيجاب الصريح.
قوله: (إِنْ سَبَقَهَا قَوْلُ الْمُشْتَرِيْ أَوْ الْمُتَوَسِّطِ) أي الدلاّل أو المصلح. قال في «النّهاية»: وظاهر أنّه لا يشترط فيه أهليّة البيع، لأنّ العقد لا يتعلّق به.
قوله: (“بِعْتَ”) هو بتاء الخطاب.
قوله: (وَقَبُوْلٍ) أي وتكون صريحة قبول، فهو عطف على صريحة إيجاب.

إِنْ سَبَقَهَا قَوْلُ الْبَائِعِ أَوْ الْمُتَوَسِّطِ “اشْتَرَيْتَ”، وَإِلاَّ فَكِنَايَةٌ.
قوله: (إِنْ سَبَقَهَا قَوْلُ الْبَائِعِ أَوْ الْمُتَوَسِّطِ “اشْتَرَيْتَ”) بتاء الخطاب. قالفي «الفتح»: فتكون، أي نعـم ونحوها، تارة قبولا، وتارة إيجابا. فلو قال المتوسّط للبـائع “بعت” فقال “نعم” وقال للمشــتري “اشـتريت” فقال “نعم” صحّ. قال في «البهجة» :
بِعْنِيْ وَهَكَذَا نَعَمْ إِنْ جَاوَبَا * شَخْصًا بِبِعْتَ وَاشْتَرَيْتَ خَاطَبَا
قوله: (وَإِلاَّ فَكِنَايَةٌ) أي فتحتاج لنيّة. وعبارة «الغرر»: أمّا لو قال “اشتريت منك”، فقال البائع: “نعم”، أو قال “بعتك”، فقال المشتري “نعم”، فلا ينعقد، إذ لا التماس، فلا جواب. انتهى. ومثله في «الفتح» و«التحفة». وظاهره عدم الانعقاد، لا صريحا ولا كـناية. وخالف الرمليّ والخطيب ، فقالا بصحّة ذلك،
(وَيَصِحُّ) الْبَيْعُ (بِالْكِنَايَةِ مَعَ النِّيَّةِ) الْمُقْتَرِنَةِ (بِلَفْظِهِ) كَاقْتِرَانِهَا بِكِنَايَةِ الطَّلاَقِ،
ونقلاها عن «الروضة» في النكاح، استطرادا. فما في هذا الكتاب رأي ثالث، ويحسن أن يقال: إنّه جمع بين الرأيين. فليتأمّل!
قوله: ((وَيَصِحُّ) الْبَيْعُ (بِالْكِنَايَةِ)) أي في غير بيع الوكيل المشروط عليه الإشهاد، فلا ينعقد بها، لأنّ الشهود لا يطّلعون على النيّة. نعم، إن توفّرت القرائن عليها -فقال الغزاليّ- بانعقاده، واعتمدوه. وصورة الشرط أن يقول “بع هذا على أن تُشهِد” لا “بع وأشهد”، فإنّ الإشهاد ليس شرطا. كما صرّح به الْمَرْعَشِيُّ.
قوله: ((مَعَ النِّيَّةِ) الْمُقْتَرِنَةِ (بِلَفْظِهِ)) أي بلفظ البيع الكنائيّ، ولا يغني عن النيّة القرائن وإن توفّرت.
قوله: (كَاقْتِرَانِهَا بِكِنَايَةِ الطَّلاَقِ) أي فيكفي اقترانها بجزء من الصيغة، كما هو الراجح ثمّ، وهذا ما اعتمده الشارح، وخالفه بعضهم، فاعتمد هنا اشتراط اقترانها بكلّ اللفظ. وفرّق بأنّ ما هنا أحوط، لكونه معاوضةً محضةً، وسببٌ لحصول الملك

لِحُصُوْلِ الْمَقْصُوْدِ بِهَا مَعَهَا، وَهِيَ مِنَ الْبَائِعِ (كَـ”جَعَلْتُهُ لَكَ بِكَذَا”)
المقتضى للتصرّف، وما هناك حَلّ لقيّد النكاح، فيتوسّع فيه. وعورض هذا بتعليلهم ثمّ عدم الوقوع فيما لو شكّ أنّ العصمة محقّقة فلا تزول إلاّ بيقين. فليتأمّل!
قوله: (لِحُصُوْلِ الْمَقْصُوْدِ بِهَا مَعَهَا) أي بالكناية مع النيّة. هذا تعليل لصحّة البيع بها. وما قيل من عدم انعقاده بها، لأنّ المخاطب لا يدري، أخوطب ببيع أو غيره، مردودٌ بأنّ ذكر العوض أو نيّته بتقدير الاطّلاع عليه من العاقد يغلب على الظنّ إرادة البيع، فلا يكون المتأخّر من العاقدين قابلا ما لا يدريه. وإنّما لم ينعقد النكاح بالكناية، لأنّه يحتاط فيه أكثر، ولأنّ الشهود لا يطّلعون على النيّة.
قوله: (وَهِيَ) أي الكناية (مِنَ الْبَائِعِ).
قوله: ((كَـ”جَعَلْتُهُ لَكَ)) أي أو “خذه”، ما لم يقل بمثله، وإلاّ كان صريح قرض، كما يأتي.
قوله: ((بِكَذَا”)) قال في «التحفة»: لا يشترط ذكره، بل تكفي نيّته، على ما فيه ممّا بيّنتُه في «شرح الإرشاد». واعتمد الرمليّ وغيره اشتراطه، لأنّ الثمن ركن أو شرط، كما مرّ.
أَوْ “أَدْخَلْتُهُ فِيْ مِلْكِكَ”، لاِحْتِمَالِ إِدْخَالِهِ فِيْ مِلْكِهِ الْحِسِّيِّ، أَوْ “تَسَلَّمْهُ” وَإِنْ لَمْ يَقُلْ “مِنِّيْ”، أَوْ “بَارَكَ اللهُ لَكَ فِيْهِ”
قوله: (أَوْ “أَدْخَلْتُهُ فِيْ مِلْكِكَ”) أي بكذا، أو “ردّه الله عليك” في الإقالة، أو “سلّطتك عليه بكذا”.
قوله: (لاِحْتِمَالِ إِدْخَالِهِ) أي المبيع. تعليل لكون “أدخلته في ملكك” كناية.
قوله: (فِيْ مِلْكِهِ الْحِسِّيِّ) أي كالدار والصندوق.
قوله: (أَوْ “تَسَلَّمْهُ”) أي المبيع.
قوله: (وَإِنْ لَمْ يَقُلْ “مِنِّيْ”) أي على الأوجه، كما في «الفتح». وليس من الكناية “أبَحْتُكه”، ولو مع ذكر الثمن، كما اقتضاه إطلاقهم، وإن نظر فيه، لأنّه صريح في الإباحة مجّانا لا غير، فذكر الثمن مناقض له. وبه يفرّق بينه وبين صراحة “وهبتُك” هنا، لأنّ الهبة قد تكون بثواب وقد تكون مجّانا، فلم ينافِها ذكر الثمن، بخلاف الإباحة. وإنّما كان لفظ الرقبى والعمرى كناية، بل صريحا عند بعضهم، أي ابن كجّ، لأنّه يرادف الهبة، لكنّه ينحطّ عنها بإيهامه المحذور المشعر به لفظه، بخلاف الإباحة. انتهى. «تحفة»
قوله: (أَوْ “بَارَكَ اللهُ لَكَ فِيْهِ”) أي أو “هنّأك الله به”.

 
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Posted by on June 10, 2012 in Fiqh

 

Al-Shatibi on Bid’ah

 
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Posted by on May 14, 2012 in Fiqh

 

Ibn Ashur on al-Maqasid

 
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Posted by on May 14, 2012 in Fiqh

 
 
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