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MUHAMMAD IBN IDRIS AL-SHAFIcI AND nIS ROLE INoTHE DEVELOPMENT OF ISLAMIC LEGAL THEORY

BY

AHMAD HAKIM

A Thesis Submitted to the Faculty of Graduate Studies andResearch of McGill University in partial fulfillment of

the requirements for the degree of Master of Arts

INSTITUTE OF ISLAMIC STUDIESMcGILL UNIVERSITY, MONTREAL

JUNE 1992

.+. National Libraryof Canada

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L'auteur conserve la propriété dudroit d'auteur qui protège sathèse. Ni la thèse ni des extraitssubstantiels de celle-ci nedoivent être imprimés ouautrement reproduits sans sonautorisation.

ISBN 0-315-B02g3-&

Canada

AL-SHAFICÏ AND HIS ROLE IN THE DEVELOPMENT OF ISLAMIC LEGAL

THEORY

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ABSTRACT

Muhammad ibn Idris al-Shafici (d. 204 H.), the subject

of the present thesis, was a Muslim legist who played a

central role in the development of Islamic law. He wrote the

first treatise on jurisprudence in Islam, a work in which he

discusses the nature and sources of Islamic law and develops

a legal methodology designed to interpret those sources. Al-

Shafici' s legal theory is based on two principles : an in-

sistence on following the scripture and traditions and a

restriction on the use of reason. Furthermore, al-Shafici

established the hierarchy of the four sources of law: the

Qur' an, Sunnah, ijmaC and qiyas.

In the centuries that followed, al-Shafici's legal

theory was to have a great influence. The Hanbali and the

Zahiri schools of law arose in an environment that was

considerably influenced by al-Shaficï and his followers. The

founders of these two schools strictly followed revelation

and restricted the use of reason: Dawüd al-Zahirï even re-

fused to consider qiyas as one of the sources of law. Al-

though not aIl aspects of al-Shafici's theory gained accept-

ance among later scholars, these scholars nevertheless owe

much to al-Shafici for his efforts at systematizing the

method of deriving law.

RÉSUMÉ

MUJ:lammad ibn Idris al-Shafici (m. 204 H.), qui est le

sujet de cette thèse, était un savant musulman qui joua un

rôle important dans le développement de la loi islamique. Il

écrivit le premier traité sur la jurisprudence en Islam, une

oeuvre dans laquelle il dissèque la nature et les sources de

la loi islamique et développe une méthodologie admise

destinée à interpréter ces sources. La théorie légale de al-

ShâfiCi est fondée sur deux principes: une insistence

scrupuleuse à suivre l' écri ture et les traditions et une

grande restriction dans l'usage de la raison. De plus al-

ShafiCi a établi la hiérarchie des quatre sources de la loi:

la Qur'an, Sunnah, ijmaC et qiyas.

Dans les siècles qui suivront, la théorie admise, dont

al-ShafiCi était l'auteur, eut une grande influence. Les

écoles du droit de Hanbali et Zâhiri ont connu une grande

renommée grâce à l'influence de al-Shâfici et ses disciples.

Les fondateurs de ces deux écoles ont suivi strictement les

révélations et les restrictions dans l'usage de la raison:

Dâwud al-Zâhiri a même refusé de considérer qiyas comme une

des sources de la loi. Malgré que les théories de al-Shâfici

n'ont pas toutes été admises par les savants qui suivirent,

en dépit de leurs désaccords ces savants doivent beaucoup à

.;;r:';~

al-ShafiCi pour ses efforts à sytématizer la méthode

laquelle la loi découle.

de

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TABLE OF CONTENTS

Abstract iRésumé iiTable of Contents iiiList of Transliteration ivAcknow1e dgmen t s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Introduction 1

Chapter 1. Al-Shafici' s Reformation 22

Chapter II. Al-Shàfici's Influence 73

Conclusion 106

Bibliography 112

t

LIST OF TRANSLITERATION

Arabie English Arabie English

i UtJ d\.-1 Pb t

0 t 17 z.c:. th t- e

è, j [ gh

L- h "-.3 f

7' ..'- kh C3 q

.) d ~ k

.J dh J l

J r î' m

.../ z (, n

~.35 W

•,Ü"'" sh JjJ h

d 5 <oS y~

/ .-9Short vowel: -- a; i' -. u.,

L,,-

Long vowel : a; '-...r : 1; ..:r- : Ü.

'a.Ta' marbütah: : ah; in idafah: at.

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ACKNOWLEDGEMENTS

Many thanks and great appreciation must go to the

McGill Indonesia IAIN Development Project for awarding the

wri ter a fellowship, thereby enabling him to pursue his

research and complete the M.A. program at McGill University.

l would like to express my sincere thanks to Dr. Uner Tur­

gay, the Director of the Insti tute of Islamic Studies, to

Mr. Adam Gacek, the Head of the Library of this Institute,

to his assistant Ms. Salwa Ferahian and to aIl the library's

staff for their great help to me in completing this study. l

would also like to express my sincere gratitude to Mr.

Munawir Sadzali, M.A., the present Minister of the Depart­

ment of Religious Affairs of Indonesia and to Drs. H.A.

Ludjito, the current Rector of the State Institute of Islam­

ic Studies (IAIN) Walisongo Semarang for giving the writer

the opportunity to study in Canada and to leave temporarily

his teaching duties in Indonesia.

l would like to express my sincere thanks and gratitude

to Dr. Wael B. Hallaq, my academic and thesis advisor, whose

advice, criticism, patience and encouragement were of great

value during the preparation of this thesis, and indeed

throughout the period of my studies at McGill. l also wish

to thank Steve Millier for editing the English of this

thesis and Sandra Thibaudeau for translating the abstract

into French.

-

l would also like to extend my sincere thanks and

appreciation to Dr. Charles J. Adams and Dr. Rebecca Aiken,

the Director and the Coordinator, rQspectively, of the

McGill Indonesia IAIN Development Project, for their valu­

able assistance and support during my stay in Montreal.

Special thanks al50 go to Joanna Gacek, Lori Novak and

Sandra Thibaudeau whose valuable help in one way or another

contributed to the successful completion of my program of

study.

Finally this thesis is dedicated to my parents, and to

my beloved wife and son. There are no adequate words to

express my indebtedness and gratitude to those in my family

who encouraged me to go abroad to seek knowledge and who

endured the bitterness of two years of separation from me.

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INTRODUCTION

There can hardly be a subject in Islamic studies that

is more important than Islamic law. It is universally agreed

that the heart of Islamic commi tment lies in a practical

concern to live according to the divinely ordained pattern

made known in the guidance given through the Prophet. Ac-

cording to Joseph Schacht, Islamic law is "the epitome of

Islamic thought, the core and kernel of Islam itself."l To

make a comparison, Islamic law is the same as theology in

Christianity.2

Muhammad ibn IdrIs al-ShaficI (d. 204/819), the subject

of the present thesis, is one of the Muslim scholars who

played an important role in developing Islamic law. He wrote

the first treatise of jurisprudence in Islam in which he

discussed the nature and the sources of Islamic law and

developed a legal methodology for a systematic study of

Islamic law.

It was Ignaz Goldziher who first drew our attention to

the importance of al-ShaficI in the early development of

Islamic jurisprudence. ln his The ~ahirls, after discussing

IJoseph Schacht,Clarendon Press,

An Introduction1986), 1.

to Islamic Law (Oxford:

(2Wilfred Cantwell Smith, Islam in Modern History (Princeton:Princton University Press, 1977), 57.

l

·r·

the tension between the ahl al-ra 'y and the ahl al-1}adïth,

he devoted almost one chapter to explaining the role of

al-ShafiCi in Islamic legal theory. But Goldziher's discus-

sion of al-Shaficr was only an introduction to his main

object of study, namely, the Zahiri school. 3 Another scholar

who studied al-Shafici was Joseph Schacht. In his The Ori-

gins of Muhammadan Jurisprudence, he discusses Islamic legal

theory which had been developed by al-Shafici. 4 In this

book, however, it seems to me that Schacht did not pay

attention to all aspects of al-Shafici' s contribution; he

concentra tes more on the role of tradition in Islamic juris-

prudence. In his An Introduction to Islamic Law, Schacht

briefly explains the place of al-Shafici in the development

of Islamic legal theory.5 In his A History of Islamic Law,

N.J. Coulson briefly discusses the role of al-Shafici in

Islamic legal theory; he says that the contribution or'

al-ShafiCi in Islamic legal theory was his systematization

of the sources of Islamic law and his reconciliation of the

basic conflicts between the two parties, ahl al-ra 'y and ahl

al-hadïth. 6 An important study on al-Shaficï was also under-. .

3Ignaz Goldziher, The Zahirïs, trans. Wolfgang Behn (Leiden:E.J. Brill, 1971), 20-~6.

4Joseph(Oxford:

Schacht, The Origins of MuhammadanClarendon Press, 1959), 1.

Jurisprudence

5Schacht, Introduction, 28-68.

6N. J . Coulson, A History of Islamic Law (Edinburgh: Edin­burgh University Press, 1978), 53-60.

2

(taken by Majid Khadduri. He translated al-Shaficï's al-

Risâlah and prefaced his work with a valuable introduction

in which he discusses the fundamental ideas of al-Risâlah

and the life of al-Shaficï as well. 7

Among Muslim scholars who discussed al-Shaficï were

early biographers such as cAbd al-Ra~man ibn Abï ~atim al­

Razï (d. 327/938), the author of Àdâb al-Shâficï wa Manâqi­

buh,8 Abü Bakr A~mad ibn al-~usayn al-Bayhaqï (d. 458/1065)

who wrote Manâqib al-Shâficï, al-Shacranï, the author of al­

!abaqât al-Kubrâ9 and Taj al-Dïn al-Subkï who wrote !abaqât

al-ShâfiCiyyah al-Kubrâ,10 to mention only a few. These bio-

graphical works are very useful but some of the information

presented in them is legendary and not factual.

The present study aims at presenting a c1ear picture of

the role played by al-Shaficï in the development of Islamic

legal theory. It will elaborate the achievement of

al-ShafiCï in Islamic legal theory, where he, in Goldziher's

words, "disciplines the application of newly introduced

legal sources without curtailing the prerogative of scrip-

7Majid Khadduri, Islamic Jurisprudence, Al-Shâficï's Risâla(Baltimore: The John Hopkins Prees, 1961).

ed.a1-

al-ShâfiCï wa Manâqibuh.(Beirut: Dar al-Kutub

8Ibn Abï Hatim al-Razï, JldâbcAbd al-Gnanï cAbd al-KhaliqCIlmiyyah, n.d.).

9al-Shacranï, al-!abaqât al-Kubrâ (Cairo: Dar al-~ibacah,1289/1869-70).

(10a1-subkï, Tabaqât al-ShâfiCiyyah al-Kubrâ (Cairo: al­Ma~bacah a1-~usayniyyah a1-Mi~riyyah, 1324/1961)

3

..;j~.,.

ture and tradition, and restricts its free arbitrary appli­

cation by means of methodology with respect to its usage."ll

In keeping with this approach, al-Shaficï begins his

al-Risalah by criticizing the ahl al-ra 'y who used istihsan

as a method of legal reasoning, stating that using istihsan

in this way means deciding something wi thout basing the

decision upon paraI leI examples; he also criticizes the ahl

al-hadIth who gave the same status to the Prophet' s tradi-

tions (Sunnah) as they did to the opinions of the Companions

of the Prophet (~a~abah) or the consensus of the people of

Medina (ijma C ahl al-MadInah) , stating that no one's opinion

can replace the Sunnah of the Prophet because the latter was

divinely inspired. The main objective of al-Shaficï's rejec-

tion of his predecessors' positions was to establish his

theory that Islamic law is a Divine law, a theory which is

confirmed in his statement that the Qur'an gives aIl the

guidance needed by human beings in their lives .12 As a

consequence of his theory, al-ShafiCï establjshes the

hierarchy of the four sources of Islamic law: The Qur'an,

Sunnah, ijmaC and qiyas. It is because of al-Shaficï' s

effort that the Sunnah of the Prophet came to receive its

rightful position, for not only is it the second source of

Islamic law but also it is the interpreter of the Qur'an.

IlGoldziher, The ~ahirIs, 20-21.

12al-Shaficï, al-Risalah, ed. Ahmad Shakir (Beirut: Dar al­Fikr, 1309 H.), 20.

4

f According to al-Shiifici the Qur' an must be interpreted by

the Sunnah and not vice versa. Ijma C in al-Shafici' s view,

which is different from those of his predecessors, consists

in the consensus of the community and not the consensus of

the scholars. Al-Shafici also limits the use of reason,

since from al-Shafici's point of view ijtihad is the same as

qiyas.

Influenced by the achievement of al-Shafici wi th re-

spect to the Sunnah, la ter scholars actively developed the

sciences of the ~adïth, collecting and wri ting . down this

vast corpus in order to provide the raw material for Is1amic

law. The schools which were founded after al-Shiifici are

more dependen t on the Qur' an and the Sunnah than on human

reason. This is proven by the emergence of the Hanbali and

the Zahiri schools. Indeed Dawüd a1-Zahiri refused to con-

sider the human reason as one of the sources of law.

Al-ShafiCi's al-Risalah is universally acclaimed as the

first book written on Islamic legal theory. It is true that

there was sorne discussion on the topie of legal theory

before al-Shiifici. Ibn al-Nadim ci tes Abü Yüsuf and al-

Shaybani as having written works on U~ül al-Fiqh. 13 However,

there is an important differenee between al-Shafici's

al-Risalah and the works of his predeeessors. Un1ike those

of his predeeessors, al-Shafici's al-Risalah deals with the

13 Ibn al-Nadim, al-Fihrist (Cairo: al-MatbaCah a1­Ra~maniyyah, n.d.l, 286-287.

5

~.,

-

-

princip les that must be followed in elaborating Islamic law.

Fakhr al-Dïn al-Razï (d. 1209 H.) says that the jurists

before al-Shaficï had already deal t wi th questions of usül

al-fiqh, but did not have universal principles to follow

regarding those questions; it was al-Shaficï who introduced

the principles that must be followed in elaborating Islamic

law, so he is to the science of revealed law what Arestotle

is the science of reason. 14 In the centuries that followed

its appearance, al-Shaficï's work became the dominant model

for works in this field.

Al-ShafiCïs Life

Three stages can be discovered in al-Shaficï' s life.

The first is his the apprenticeship period, which began with

his study of law in Mecca and Medina, where he was given

thorough training in traditions and ended with his deporta-

tion to Iraq. The second stage is the period in which he was

exposed to the legal reasoning of Iraqi jurists, and which

ended with his moving to Egypt. The third stage extends from

his settlement in Egypt, where he actively taught and refor­

mulated his theory, to his death. lS

There are three different reports attributed to al-

ShafiCï himself regarding his place of birth. The first

14Cited from Ahmad Shakir in his introduction to al-Shafi c­i' s al-Risalah, '13.

lSMajid Khadduri, Islamic Jurisprudence, 8.

6

<. report states that he was born at Ghaza, a sma11 provincial

town on the Mediterranean coast of Palestine in 150/707. The

second report states that al-Shafici was born in CAsqalan, a

larger town not far away from Ghaza, while the third report

mentions that he was born in Yemen. 16 To reconcile these

different accounts, Muslim scholars suggest two possibili-

ties. Firstly, they suggest that by CAsqalan he meant the

nearest large city, by Ghaza he meant the town itself in

that region and by Yemen he meant the tribe; thus he men-

tions three different places to express the fact he was born

in Ghaza, which was part of the CAsqaHin region where the

Yamanite tribe lived. Second1y they suggest that al-

( '.'~

ShafiCi was born in Ghaza but that his mother, shortly after

al-Shafici' s father' s death, brought him to CAsqalan and

spent sorne time in Palestine among the Yamanite tribes, to

which her ancestors of the Azd tribe belonged, before she

and her son arrived at Mecca. The authorities state that al-

Shafici was only two years old when he left Ghaza, but he

had reached his tenth year when he arrived at Mecca. 17

The reason why al-Shafici's mother brought him to Mecca

was to unite him with his father's family in order to obtain

their help. The ancestor of al-Shafici's father was of

(

16al-Bayhaqi, Manaqib, 71-75.

17 Ibn Abi Hatim al-Razi, J1dab,71-75; Ibn· Hajar al-CAsqalani,Muhammad ibn Idris (Beirut:19ê6), 50-52.

7

21-23; al-Bayhaqi, Manaqib,Tawali al-Ta' sis li-Macali

Dar al-Kutub a1-CI1miyyah,

Meccan origin. They belonged to the tribe of Quraysh, for

the great grandfather of al-Shiifici' s father was cAbd al-

Mu~~alib, the brother of Hiishim who was the grandfather of

the Prophet MUJ:1ammad. 18 Al-Shiifici' s father went to Ghaza

with the army of conquest in the early days of the expansion

of Islam, and a generation later al-Shiifici was born in that

town. 19

The fact that al-Shiifici belonged to the tribe of

Quraysh and the fact of his grand-father' s kinship to the

Prophet may conceivably have affected his life. In the

history of early Islam, i t is recorded that al-Shiifici' s

ancestor took part on both sides of the struggle between the

Prophet and the Meccans, but that they aIl supported

Muhammad after the first victory at Badr in 2/624. This

history and his belonging to the Prophet's tribe may have

given him the prestige as weIl as the inspiration, as a

member of the holy family of the Prophet to de fend the

tradition of the Prophet.

We have little information on the early life of al-

ShiifiCi. Sorne authorities report that he grew up in poverty.

While it is true that as member of al-Muttallib's clan he

18 In his Tawali al-Ta'sis, (p. 34) Ibn Hajar mentions thatthe full name of al-Shiifici and his ancestor is Muhammad ibnIdris ibn al-cAbbiis ibn CUthman ibn ShafiC ibn al":Sa' ib ibncAbd Yazid ibn Hashim ibn cAbd al-Muttalib ibn cAbd Manaf ibnQu~ayy; cf. al-Bayhaqi, Manaqib, 77~91.

19 Ibn ~ajar, Tawali al-Ta'sis, 53.

8

was entitled to share of one-fifth of the spoils of war, it

nevertheless seems that it was not sufficient to support

him and his family. When he started to study the Qur'an, his

mother did not have enough money to pay the teacher. lt was

fortunate for al-ShaficI that his teacher accepted his

assistance in teaching other children as the payment for his

lessons. ln this way al-ShaficI studied the Qur'an until he

fini shed the entire book, not only reading but also memoriz-

ing it. After studying the Qur'an, al-ShaficI spent most of

his time in the mosque to study ~adIth and to take part in

discussion wi th the scholars. Each night after returning

home, he wrote down what he had learned during the day.

Although at that time some people utilized paper for writ-

ing, al-ShiHicI had only leather, palm leaves and bone of

camel at his disposaI because he had not enough money to buy

paper. He sometimes used paper when he could ob tain it from

the diwan. 20

ln order to master the Arabie language, al-ShaficI

traveled to the desert to study it from the Hudhayl tribe.

Unlike the Meccans and other peoples who lived in urban

environment and whose language was influenced by foreign

(~

elements through their interaction with other peoples, the

Hudhayl tribe, who continued to live in the desert, were

able to protect the purity of their language. In order to

20 Ibn AbI Hatim al-RazI, ~dab, 24; al-BayhaqI, Manaqib, 92­95.

9

study pure Arabie, many people imitated al-Sh~ficI's deci-

sion, leaving the city for the desert to live wi th the

Hudhayl or other Bedouin tribes. During his stay,

al-Sh~ficI memorized thousands of their poems and learned

their meaning and grammar as weIl. The fact that al-Sh~fici

became a mas ter of the poems of the Hudhayl tribe was proven

by the acknowledgment of al-A~macI, one of the famous mas­

ters of the Arabie language. He had to consul t al-Sh~fi cI

concerning the corpus of poems. 21

After spending sorne time among the Hudhayl tribe,

al-Sh~ficI returned to Mecca to study law under the direc-

tion of Muslim ibn Kh~lid al-ZanjI (d. 180/796), Sufy~n ibn

CUyaynah (d. 198/813) and others. It seems that al-Sh~ficI

was a brilliant student. He was only 20 years old when his

teacher al-Zanj 1 declared him to be qualified to practice

law. 22 However, this did not put an end to his desire to

receive a further training in the law. Since M~lik was the

most famous jurist in Medina, al-Sh~ficI made every effort

to go to Medina to study law under his direction.

There are several reports of how al-Sh~ficI became the

disciple of M~lik. The popular one is that he went to the

Governor of Medina, armed wi th a let ter of introduction

-21al-Bayhaqï, Manaqib, 95; Mustaf~ cAbd al-R~ziq, al-Imamal-Shafici (Cairo: cIs~ al-B~bï ·al-~alabï, n.d.), 21.

22 Ibn Abï H~tim al-R~zï, Adab, 39; al-Bayhaqï, Manaqib, 96­99; Ibn ~ajar, Tawali al-Ta' sis, 55.

10

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from the Governor of Mecca and requested an audience with M-

alik. After sorne reluctance, the Governor of Medina went to

Malik accompanied by al-Shafici. The authorities relates

that al-Shafici had memorized al-Muwatta' before he came to

Malik. Therefore, Malik was impressed with al-Shafici's

intelligence and accepted him as his disciple. 23 Al-Shafici

remained at Medina studying law under the direction of Malik

until the latter dead in the year 796.

After the death of Malik, al-Shafici searched for a job

that could support him. It was fortunate for him that he was

able to attract the attention of the Governor of Yemen when

the later came to Medina. The Governor helped him to enter

the government service. Al though he was acknowledged as a

just administrator, he occupied his position for a very

short time, for he was soon entangled with local interests

and factional jealousy, which caused him to be dismissed

from his post. He was then called into the court of al-

Rashid on the allegation that he was a secret follower of

the Zaydi Imam Ya!}ya ibn cAbd Allah, a pretender to the

Caliphate and an opponent of the ruling dynasty.24

Al-ShafiCi arrived together with nine other alleged

conspira tors at al-Raqqa in 184/800. In court they were aIl

sentenced to death except for al-Shiifici who was pardoned

23 Ibn Abi Hiitim al-Razi, Adab, 27-28; al-Bayhaqi, Manaqib,96-104. .

24al-Bayhaqi, Manaqib, 105-107.

11

when he eloquently defended his loyalty to the Caliph on the

grounds that his great-grandfather was related to the great­

grandfather of the Caliph himself. Another account states

that al-Shaficï was pardoned because the famous Hanafï

jurist, Muhammad ibn al-Hasan al-Shaybanï, who was present

in the court when al-ShiHicï appeared before the Caliph,

defended him and said that he was a well-known student of

law. 25 Al-Shaficï' s eloquence earned for him not only the

Caliph's pardon but his patronage as well. 26 This incident

also brought him into close contact with al-Shaybanï whose

books he had copied, and impelled him to devote the rest of

his life to the study of law and ended his desire to be an

administrator.

The contact with the Hanafï jurist had a great impact

on al-Shaficï's legal reasoning. Until his arrival at Iraq

he had been exposed to the teaching of only one school of

law, namely the Tradi tionalist school. l t is true that he

had known the opinions and arguments of the Iraqi schools

but he had not known them at first hand. During his stay in

Iraq he took an active part in discussion and argumentation.

Since he strongly defended Malik's position and made every

effort to establish the supremacy of tradition he earned the

reputation of being an upholder of tradition. As a defender

25 Ibid ., 111-113.

26Ibid ., 138.

12

(of the tradition al-Shaficï found himself in difficulty, for

the follo"lers of al-Shaybanï strongly opposed him. Al-

ShafiCï himself avoided open controversy "li th al-Shaybanï

for he ackno"lledged him as his teacher and did not feel that

he "las strong enough to challenge him. The sources state

(

that the follo"lers of al-Shaybanï complained to him regard-

ing the position of al-Shaficï as the defender of tradition

and his challenge to the use of ra' y. Finally al-Shaybanï

invited al-Shaficï to participate in an open debate. Sorne of

the issue "lhich they debated "lere the la"l of ghasb, the

"litness and oath and the qasamah. It is reported that al­

Shaybanï "las defeated by al-Shaficï in this debate. 27

During his stay in Iraq, besides studying la"l under the

direction of al-Shaybanï, al-Shaficï also chose to study the

subject under the direction of Wakïc ibn al-Jarrah (d.

190/805-806), I:'ammad ibn Usamah (d. 210/825), and cAbd al­

Wahhab ibn cAbd al·-Majïd al-Ba:;;rï (d. 194/809-810).28

There is no record of ho"l long al-Shaficï stayed in

Baghdad on his first visi t there. Ho"lever, he must have

stayed there long enough to copy the "lorks of al-Shaybanï.

It is very possible that the difficulties "lhich he encoun-

tered as the result of his defense of the tradition and his

criticism of the follo"ler of the ra' y forced him to leave

27 Ibid ., 109-137.

28 Ibn Haj ar alphabetically listed al-Shaficï' s teachers inhis Tawali al-Ta' sis, 62-72.

13

."

Iraq and to settle elsewhere. He went via ~arran and Syria

to Mecca, where he had earlier begun his legal studies. As

the follower of Malik in Mecca he was accepted by the tradi­

tionists and there he began to lecture in Masjid al-~aram.

Many students of tradition came to study under him, among

them Ahmad ibn Hanbal who was studying at Mecca at that

time. Al-Shaficï was familiar with both the Malikï and

Hanafï schools \/hich made him aware of the shortcomings of

both of them (his lectures in fact revealed unexpected

differences with the Malikï school). However his influence

in the ~ijaz was limited, for not only did his departures

from Malik's opinions disappoint the followers of Malik but

also he had not yet achieved a reputation as a master in

Islamic law.

He returned to Baghdad aga~n for a second time in

195/810-811. This time he had been a famous jurist; it might

be that he was the only jurist of high standing in that

place and that time. There were no masters of ls1amic law

still living in Iraq or in ~ijaz. Al-Shaybanï, the master of

Islamic law in Iraq, had died in 189/805 and Malik, the

master of Islamic law in Medina, had passed away long

before al-Shaybanï. Therefore i t was not a surprise that

many scholars came to him to study law. Among them were his

three great followers, Abü Thawr, al-Zacfarani and al­

Karabisï. During this time he also wrote many books, such

as Kitab al-/fujjah in which he exposed his previously held

14

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doctrines. After two years of stay in Baghdad, he went to

Mecca and then returned again to Baghdad for several month

in the year 198/813-814 before leaving for Egypt. He was in

Baghdad at the time when al-Mâ'mün carne to power by defeat­

ing his brother al-Amin. Al-Mâ' mün was in favor of the

MuCtazilah doctrine and upheld the doctrine of the created­

ness of the Qur'ân.

Al-Shâfici left Baghdad for Egypt in 199/814-815. There

are many different accounts of why al-Shâfici moved to Egypt

instead of staying in Baghdad and developing his doctrines

in the center of lslamic civilization. The first account

states that it was the Governor of Egypt who asked al­

Shâfici to move to Egypt. Another report says that the

reason why al-Shâfici left Baghdad and went to Egypt was in

order to develop his own new school. ln Egypt there were two

extreme groups, the fo1lowers of Mâlik and the followers of

Abü J:lanifah, to whom al-Shâfici wanted to introduce his

doctrines in the hope that they would leave their old

schoo1s and follow him. 29 A modern scholar suggests that al­

Shâfici moved to Egypt because Baghdad was no longer a good

place for him; for in al-Ma'mün's period there was resent­

ment on the part of the Persian population against the Arab,

and there was besides the official adoption the MuCtazilah

doctrine. He found himself out of favor wi th both

29al-Bayhaqi, Manâqib, 238.

15

..,,",,'

movements. 30 In his new home al-Shaficï spent his time

writing and teaching and remained in Egypt until his death

in 204/819-820 at the age of 54.

The authori ties differ on the cause of al-ShiHicï' s

death. One group states that he died because a follower of

Malik by the name of Futyan who had been defeated by al-

ShafiCï in argument, beat him and caused injuries which

leaded to his death. Ibn ~ajar is of the opinion that this

account is baseless and prefers to explain that the cause of

al-ShafiCï's death as being his stressful lifestyle, caused

by his busy teaching and writing schedule. 31

The main activities of al-Shaficï during the last four

years of his life included teaching and reformulating his

older doctrines. Among his disciples during this period were

al-Buwaytï (d.231 H.), al-Muzannï (d. 274 H.) and al-Rabïc

(d. 270 H.). These disciples recorded al-Shaficï's teachings

and spread his doctrines.

Although al-Shaficï's life was relative1y short, he

wrote many works on Islamic law. He began to compose his

works when he was in Iraq but he revised them again when he

settled in Egypt. A list of his works fo11ows:

1. Kitab al-~ujjah. This work was written by al-Shaficï

during his stay in Iraq in response to the request of the

30Abü1936) ,

31 Ibn

Zahrah, al-Shaficï (Cairo: Dar27-28.

~ajar, Tawalï al-Ta'sïs, 177, 185.

al-Fikr al-CArabï,

16

followers of the tradition who were being challenged by the

ahl al-ra'y. Therefore this work was mainly aimed at defend­

ing the tradition against the ahl al_ra'y.32 As is the case

wi th other works by al-Shafici wri tten during his stay in

Iraq, this work is not available to us.

2. AI-Risalah. There are two versions of al-Risalah;

the first is the old one which was composed by al-Shafici

during his stay at Iraq at the request of cAbd al-Rahman ibn

al-Mahdi. The sources state that al-Mahdi sent a letter to

al-ShafiCi asking the later to write a treatise on the"

methods of understanding the meaning of the Qur' an, the

requirements for accepting the tradition, the validity of

Qur'an and tradition. Al-Shafici replied to al-Mahdi by

writing his al-Risalah33 whose title is explained by the

fijma C and on the rules of abrogation (al-naskh) of the

('

fact that it was in the form of letter responding to the

request of al-Mahdi. The second al-Risalah was composed

after he had settled in Egypt. It is reported that this new

al-Risalah was a revised edition of the old one. Since the

structure and the substance of the old al-Risalah are un-

known to us, i t is very difficul t to make a comparison

32Ibn Hajar, TawalI al-Ta'sIs, 147; Mustafa cAbd al-Raziq,al-Imam al-ShaficI (Cairo: cl sa al-Halaht, n.d.), 32; CarlBrockelmann, TarIkh al-Adab al-cAraoI, trans. cAbd al-Halimal-Najjar (Cairo: Dar al-Macarif, n.d), 296.

33al-Bayhaqi, Manaqib, 230-231; al-Khatib al-Baghdadi,TarIkh Baghdad, 14 vols. (Cairo: Ma~haCat al-Sacadah,1931), Vol. Il, 64.

17

,"""'~

between the two as to how far they are different and as

to which parts of the old al-Risalah are still preserved in

the new one. Both internaI and external evidence point to

the fact that al-Shaficï had wri tten the second al-Risalah

anew. Ibn ~anbal was reported to have said that al-Shaficï's

works written in Iraq were far from perfect; after settling

in Egypt, they were rewri tten and perfected. 34 AI-Bayhaqï

and other authorities held the opinion that the old al-Ris-

alah was rewritten in Egypt and that the two works, although

bearing the same ti tle are different. 35 The internaI evi-

dence also suggests that not aIl of al-ShafiCi' s earlier

works were in his possession when he settled in Egypt. In

the new al-Risalah, he states that the transmitters of sorne

the traditions which he cited were omitted because not aIl

his earlier works were available to him. 36 Al-Shafici ex-

plained his legal theory in several of his works, but this

new al-Risalah is his only comprehensive treatise dealing

with the subject.

There are four printed editions of the second al-

Risalah, but according to Maj id Khadduri only two of them

are to be considered satisfactory. The first of them is the

Bûlaq edi tion which is published by the Bûlaq Government

34 Ibn Abï ~atim al-Razi, ~dab, 60.

35al-Bayhaqï, Manaqib, 234; Ibn ~ajar, Tawali al-Ta'sis,150.

36al-ShafiCi, al-Risalah, 341.

18

(Press in Cairo in 132/1904. The second edition was undertak-

en by A~mad Shakir and published in Cairo by the HalabI

Press in 1358/1940. 37

2. Ki tlib al-Umm. This work was dictated by al-Shafici

to his disciples when he had moved to Egypt. Al-Bayhaqi

div ides this work into two categories: the one which dis-

cuses legal theory and another which focuses on positive

law. The first contains less than nine treatises while the

latt·~r consists of 128 treatises. The list of the treatises

on legal theory are as follow: (1) "Kitab Jimac al-cllm;"

(2). "Kitab lb~al al-lsti~san;" (3). "Kitab Bayan Fara'id

Allah;" (4). "Kitab Sifat al-Amr wal-Nahy;" (5). "Kitab

al-Clraqiyin;" (7). "Ki tab al-Raddu cala Muhammad(

lkhtillif Malik wal-Shafici;" ( 6 ) • "Kitab lkhtilaf

ibn al-

(

J:lasan;" (8). "Ki tab cAli wa-cAbd Allah;" (9). "Ki tab Fa~a'il

Quraysh". The discussion on positive law in this work covers

almost all aspects of positive law from the ritual life,

aspects of family law such as marriage, divorce and others,

and penal law. 38

There are two editions of this work. The first is the

Bülaq edition which was published in Cairo in 1321 H. and

another edition was published by Maktabat al-Kulliyyat al-

Azhariyyah in Cairo.

37Khadduri, Islamic Jurisprudence, 51.

3Bal-Bayhaqi, Manliqib, 246-247.

19

There is also another edi tion of three chapters of

Kitab al-Umm edi ted by A1}mad Shakir and published as a

separate work under the title Jimac al-cllm, a title taken

from the title of one of the three cnapters in the book, the

other two being "Bayan Fara'i~ Allah" and "~ifat nahy Allah

wa-nahy Rasülih". This work was published in Cairo by Dar

al-Macarif in 1359/1940.

3. Kitab Ikhtilaf al-Hadith. This work was published in

the margins of the volume VII of Kitab al-Umm, which was

published in Cairo by the Bülaq Government Press in 1321

H. This work was also published as separate book by Dar al­

Kutub al-CIlmiyyah in Beirut in 1406/1986. This separate

edition was edited by MU1}ammad Ahmad ibn cAbd al-cAzïz.

4. Ki tab A1}kam al-Qur' an. AI-Bayhaqï included in the

list of al-Shaficï' s works Ki tab A1}kam al-Quran, but this

work remains only by name. The book itself is not available

to us 39 .

There is another work enti tled Ki tab A1}kam al-Qur' an

which is attributed to al-Shaficï. This work is a collection

of al-Shaficï's interpretations of verses in the Qur'an

which are concerned wi th the law. l t was al-Bayhaqï who

edited and organized this collection according to the sub­

jects of fiqh. This collection was published in Cai.ro in

two volumes by al-Sacadah al-Kubra Press in 1371/1952.

39 Ibid ., 246.

20

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5. Ki tlib Musnad al-Shaficï. This is a collection of

tradi tions related by al-ShâficI which were gathered from

all of his works and organized according to the subjects of

fiqh by Mu~ammad c~bid al-SindI. The work was published in

two volumes by al-Sacâdah Press in Cairo in 1951.

6. Bada' iCu al-Minan fi Tartïb al-Musnad wal-Sunan.

This work is another collection of traditions related by al­

ShâficI. As the title indicates, this book is a unified form

of the two works of al-ShâficI, al-Musnad and al-Sunan. The

unification was undertaken by cAbd al-Rahman Ahmad al­

SâCâtI. This book was published in Cairo by Dâr al-Anwar in

two volumes in 1950.

21

......

CHAPTER l

AL-SHAFICI'S REFORMATION

To sorne extent, al-Shlifici' s legal theory was influ-

enced by the achievements of his predecessors, but it was

also his intention to introduce reform into the legal theory

that he had inherited. Before discussing al-Shafici's legal

theory, i t is necessary that we discuss al-Shlifici' s views

concerning the nature of Islamic law on which he based his

theory. It is also necessary for us to understand al-

ShlifiCi's response to, and polemic against his opponents.

A. Islamic Law is Divine Law

It is the basic belief of al-Shafici that Islamic law

is a divine law. He argues for the divinity of Islamic law

by quoting the Qur'lin LXXV, 36: "Does man think that he will

be left roaming at will (an yutraka suda)?"l Al-ShlifFi

interpreted 5uda in this verse to mean a state of lawless-

ness in which an individual is not subject to any rules,

IThe translation of the Qur'anic passages, here and else­where are based on: Marmaduke Pickthall, The Meaning of theGloriou5 Koran (New York: Dorset Press, n.d.), A.J. Arberry,The Qur'an Interpreted (Oxford: Oxford University Press,1982) and Abdullah Yusuf Ali, The Holy Qur'an (Washington:The Islamic Center Washington D.C., n.d.). l have introducedchanges where l fel t i t would improve the sense of thepassages.

22

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(

commands or prohibitions. It is therefore a logical conse-

quence that human actions depend on the rules decreed by God

and that no one is allowed to pass a judgment unless he

bases his judgment on God's revelation; otherwise one would

belong to the category of those who are left aimless. 2

By stating that people should follow revelation, al­

ShaficI established the ethical value that whatever Allah

commands is good and whatever He forbids is evil. Nothing is

good or evil because reason makes it so. Although it is not

clearly stated that by arguing for the divinity of Islamic

law he addressed his criticism toward the MuCtazilah's legal

doctrine, it is not unlikely that he did so. For the

MuCtazilah held that there is an absolute good and absolute

evil and that reason is the instrument for ethical value

judgments. A thing is not to be considered good because God

commands it; rather God commands it because it is good. 3

Another argument for the divine characters of Islamic

law is the fact that God has given aIl the guidance which is

needed by mankind. There is therefore no further role for

human reason but to follow revelation. Al-ShaficI says that

2al-ShafiCI, al-Umm, vol. VII, 313; idem, al-Risalah, 25.

3al-QadI Abü al-Hasan cAbd al-Jabbar, al-Mughni fi Abwab al­Tawhid'wal-cAdl, ·ed. Ahmad FU'ad al-Ahwani, et. al. vol. VI(Cairo: al-Dar al-M:lsriyyah li-al-Tibacah wal-Tarj amah,1965), 102-114; George' Makdisi, The'Rise of Humanism inClassical Islam (Edinburgh: Edinburgh University Press,1990), 23; Ignaz Goldziher, Introduction to Islamic Theologyand Law, trans. Andras and Ruth Hamori (Princeton: PrincetonUniversity Press, 1981), 91.

23

in every event which people encounter there is a guidance in

the Book of God. 4 He supports his argument that the Book of

God has provided the guidance for aIl the problems of human-

kind by quoting the passage in the Qur' an where God says

that He has sent down to the Prophet the Book to bring

people from darkness to light;5 He says as weIl that He has

sent down the Remembrance and ordered the Prophet to make it

clear to mankind;6 al-ShaficI argues that the Book is aimed

at clarifying' everything and at being a guidance; 7 He also

states that before

knew nothing. 8

receiving God' s guidance the Prophet

-.<:.....

The death of the Prophet marked the end of the revela-

tion, and it might weIl be asked how the Book of God could

provide solutions for problems which had not yet appeared

4al-ShafiCI, al-Risalah, 20.

5Al l ah says: "A scripture which we have revealed unto thee(Muhammad) that thereby thou mayest bring forth mankind fromdarKness unto light, by the permission of their Lord, to thepath of the Mighty, the Owner of Praiseworthy" Q. XIV, 1.

6God says: "And We have revealed unto thee the Remembrancethat thou mayest explain to mankind what was revealed forthem, and that haply they may reflect." Q. XVI, 44.

7God says: "And We reveal the Scripture unto thee as exposi­tion of aIl things, and as a guidance and mercy and goodtidings for those who have surrendered (to Allah)." Q. XVI,89.

8God says: "And thus have We inspired in thee (Muhammad) aSpirit of Our commando Thou knewest not what the Scripturewas, nor the Faith; but We have made it a light whereby Weguide whom We will of Our servants. And verily, thou shaltguide unto a right path." Q. XLII, 52 .

24

(during the time in which it was revealed? In response to

such a question al-Shâfici devotes the second chapter of his

al-Risalah to explaining the ways in which God gives guid-

ance to humankind, a chapter which has the ti tle al-Bayan,

literally, the guidance. On the grounds that the Book of God

uses the same language as do the people to whom i t was

revealed, and that therefore it is easily understood by

people who are familiar with that language, he divides God's

guidance into five categories. The first consists of the

statements which are clear from the text itself. There is no

further requirement for explaining their meaning to people

to whom the text is addressed, except that they should know

the language. Al-Shâfici gives three examples for the first

category of al-bayan. The first one is the case of the

obligation of fasting for the person who performs "1}ajj

tamattuc • God says:

When you are secure, then whosoever enjoys the Visita­tion until the Pilgrimage, let his offering be such asmay be feasible; or if he finds none, then a fast ofthree days in the Pilgrimage and of seven when youreturn, that is ten completely; that is ~or him whosefamily are not present at the Holy Mosque.

It is clearly understood by those to whom this verse is ad-

dressed that the three-day fasting during pilgrimage and

seven-day fasting after return from the pilgrimage makes ten

al together. Such a communication is very clear; therefore

the phrase "that is ten completely" is either intended to

9 Q. II, 194.

25

state precisely its meaning or to instruct people that if

three are added to seven the total is ten.

The second example for this first category is God' s

appointment (waCd) for Moses. God says:

And We did appoint for Moses thirty nights (of soli­tude), and added to them ten, and he complet\'b thewho1e time appointed by his Lord of forty nights.

It is c1ear1y understood by those to whom this story was

to1d that thirty and ten nights make fort y , therefore the

passage "and he comp1eted the time appointed by his Lord of

fort y nights" may either be intended to state precise1y the

total number as is the case in the previous verse, or it may

have been proposed to state the meaning more c1ear1y.

The 1ast examp1e is the case of the genera1 obligation

of fasting. God says:

Fasting is prescribed for you even as it was for thosebefore you, that ye may ward off (evi1). (Fast) acertain number of days; and (for) him who is sickamong1iou or on a journey, (the same number) of otherdays.

God further says:

The month of Ramadan in which was revea1ed the Qur'an,a guidance for mankind, and c1ear proofs of the guid­ance, and the Cri terion (of right and wrong). Andwhosoever of you is present, let him fast the month,and whosoever of you is sick or on ~ journey, (let himfast the same number) of other days. 2

In the above verses God 1ays down the duty for people to

10Q. VII, 143.

11Q, II, 183-184.

12Q• II, 185.

26

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fast and specifies that it should be for a month, under the

assumption that it is weIl known that a month is the period

between two successive crescent moons which might amount to

twenty nine or thirty days.

ln the previous example, al-Shafici asserts that for

those to whom the Qur'an is addressed, the explanation of

the problem in question, namely that the total of three and

seven days makes ten altogether and that the total of thirty

and ten nights is fort y , is very clear. Moreover there is

another explanation for each of them: in Q. Il, 196, after

mentioning that one is obligated to fast for three days

during the pilgrimage and for 8even days after returning

from it, God says, "that is ten completely" and in Q. VII,

143, after stating that God appointed for Moses a further

ten nights to the original thirty nights of solitude, He

says, "he completed the whole time appointed by his Lord of

fort y nights." Also, that the duty of fasting should be one

mon th and that this month is Ramadan, is clearly understood.

Such verses are categorized by al-Shafici as God's guidance

which is declared by the text. 13

The second category consists of broad 1ega1 provisions

which the Prophet particularized. Al-Shafici gives two

examples. The first is the duty of ablution. God says:

When you rise for the Prayer, wash your faces, and yourhands up to the elbows, and lightly rub your heads, and

13al-ShafiCi, al-Risalah, 21-28.

27

(wash) your feet up to t~e

unclean, purify yourself. lankles. And if you are

In the preceding verse there are laid down the obligations

of ablution; however, how many times one should wash his

face and his limbs is not yet clear. In this verse the

washing of the face and the limbs might be performed once

only or more than once. The Prophet specified that the

ablution should be performed once but that he himself per-

formed it three times. It follows that the minimum require-

ment of washing the face and limbs in ablution is one wash-

ing. However since the Prophet performed it three times, it

means that the practice of three washings is optional.

The second example of the second category is the case

of the law of inheritance. In the Qur'an, God has completely

explained the regulation of distribution of inheri tance. 15

14Q• V, 6.

15 In the Qur'an God says: "His parents receive, each of them,a sixth of what he has left, if he has children; and if hehas no children and his parents are his (only) heirs, thenhis mother receives a third; if, however, he has brothers,his mother receives a sixth, after any legacy he may be­queath, or any debt (has been paid)." (Q. IV, Il)

And He says: "And for you a half of what your wivesleave, if they have no children; but if they have childrenthen you receive a four th of what they leave, after anybequest they may bequeath, or debt (they may contract, hasbeen paid). And for them a four th of what you leave, if youhave no children; but if you have children, then for them ofwhat you leave an eighth, after any bequest you may bequeathor any debt (you may contract, has been paid). And if a manor woman have a distant heir (having left neither parent norchild), and he (or she) have a brother or sister (only onthe mother's side) then to each of the two {the brother and

28

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Here, God set forth the condition that an estate should not

be distributed until bequests are executed and all debts are

paid. ln this case the Prophet specified that a bequest

should not exceed one-third of the estate. 16

The third category includes the legal provisions which

are stated in a broad way and which the Prophet particular-

ized. On the obligation of prayer, alms tax and pilgrimage,

God says : "Verily the Prayer has become for the believers a

thing prescribed for a stated time;,,17 He says: "Observe the

Prayer and pay the alms tax (ai-zakiiih)"; lB and He says:

"Perform the pilgrimage (1}ajj) and the visi t to Mecca

(Cumrah) for A1Uih" .19 To perform all of these obligations,

however, people needed the Prophet to provide them with real

examples.

The fourth category consists of all rules that the

Prophet has provided in his Sunnah concerning that for which

there is no legal provision in the Book of God. To support

the idea that the Prophet had legislative authority, al-

sister) the sixth, and if they be more than two, then theyshall be sharers in the third, after any legacy that mayhave been bequeathed or debt (contracted) not injuring (theheirs by willing away more than a third of heritage) hasbeen paid. A commandment from Allah. Allah is Knower, Indul­gent. ( Q. IV, 12).

16al-ShafiCi, al-Risiiilah, 30.

17Q. IV, 103.

1BQ. II, 43.

19Q. Il, 196.

29

Shafici quotes the Qur' an where God says: "... He sent down

to you the Book and the 1àsdom (al-qikmah)." 20 In this verse

and elsewhere al-Shafici interprets the meaning of "wisdom"

as the Sunnah of the Prophet. He also supports his argument

by stating that Gad has commanded His creatures ta obey His

Apostle; therefore obedience ta the Apostle is obedience ta

Gad himself. 21

The fifth category consists of rules which are sought

by the exercise of ijtihad by means of qiyas. AI-Shafi"i

argues for the validi ty of ij tihad as one of the ways by

which God gives His guidance, on the grounds that Gad or-

dered His people ta exercise ijtihad when it is necessary.

He quotes the Qur'an in which God says: "Turn then thy face

in the direction (sha~rah) of the Holy Mosque; wherever ye

are, turn your faces in that direction.,,22 In this verse Gad

has laid down the duty that wherever peoples may be they

must turn their faces in the direction of the Sacred Masque

when they are performing the Prayer. The use of the term

sha~rah, according to the Arab understanding, means that if

the object is seen, the direction is determined by sight,

but if the abject is out of sight, the direction is deter-

mined by ijtihad. That one is required ta perform ijtihad is

20Q. II, 231.

21al_Shafici, al-Risalah, 32-33.

22Q. II, 150.

30

(confirmed by God's statement: "It is He who has appointed

for you the stars, that by them you may be guided through

the darkness of land and sea;,,23 He also says: "And landmarks

(too), and by stars they find a way.,,24 Thus God has set

landmarks for people to look for the direction of the 5acred

Mosque in whose direction they are ordered to turn their

faces while they are performing prayer.

One of the requirements to be a wi tness is to have a

just character (CadI). God says: "And call to witness two

just men among you; ,,25 and " such wi tnesses as you

approve.,,26 God has specified that the person of just char-

acter is he who acts in accordance with His commands. Thus,

just character by analogy, for whoever seems to be acting inf

based on this principle, people could specify a persan of

f

accordance with the commands of God is regarded as of just

character while whoever acts contrary to the commands of God

is regarded as lacking in just character.

The validity of ijtihad as being part of God's guidance

is, according to al-5hafici, also approved by the case of

compensation for the killing of game. Gad says:

Do not kill game when you are in pilgrim sancity.Whoever of you kills it intentionally, there shall be

23Q. VI, 98.

24Q. XVI, 16.

25 Q. LXV, 2.

26Q. II, 282.

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compensation equal to what he has killed from (hislflocks, as two persons of jus t character among youshall decide - an offering to be delivered at theKacbah. 27

ln this case, two persons of just character are to decide

the compensation. Their decision is to be based on analogy,

on linguistic understanding and on the opinion of the Com-

panions. Equal compensation for the body of the killed game,

according to its literaI meaning means the nearest in size

to it. The Companions of the Prophet were also reported to

have expressed the opinion that the compensation should take

this form.

ln his introduction to his criticism of isti~san,

al-ShaficI also stresses, although in different terms, the

religious nature of Islamic law by saying that no one is

allowed to deliver a legal opinion unless he bases that

opinion on the khabar lazim, meaning the Qur'an, the Sunnah,

the consensus or qiyas. 28 According to him, a legal opinion

is not binding unless it has a basis in the Qur'an and the

Sunnah of the Prophet.

B. Critique of and Response to His Predecessors.

Since al-Shaficï consistently held the view that Islam-

ic law is Divine law and strictly limited the role of human

reason in legal theory, he departed from the tradi tion of

27 Q. V, 95.

28al-Shaficï, al-Umm, vol. VII, 313 .

32

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his predecessors and took a position against them. He devot­

ed a considerable part of his writings to polemics against

his opponents. He accused them of going too far in using

reason in legal decision and of neglecting or being incon­

sistent in accepting the Prophetie tradition in favor of

personal opinion or logical conclusion. In his polemic, not

only did he argue against his opponents but aI50 tried to

convince them to acknowledge the role of the Sunnah and to

reject personal opinion.

The schools of law to which al-Shafi ci was opposed,

were the ahl al-ra' y, the followers of Abü Hanifah and his

two disciples, Abü Yüsuf and al-Shaybani as weIl as the

followers of Malik in Medina known as ahl al-hadith. The

first school he attacked on the charge of using istihsan

(juristic preference), while he opposed the second on the

grounds that they were not consistent in accepting the

traditions. He also challenged the Mutakallimün who rejected

the Prophetie tradition.

Al-Shafici cri ticized the application of isti1}san in

legal reasoning on the grounds that the application of

juristic preference amounts to ini tiating a decision which

is not based upon a paraI leI example. 29 It means not to

follow the Book or the Sunnah and to abandon analogy in

favor of personal preference. He believed that such proce-

29al-ShafiCi, al-Risalah, 25.

33

dure is forbidden, for it is not allowed for anyone to pass

a judgment or to deliver a juristic opinion unless his opin-

ion or his decision is based on the khabar lazim, i.e. the

Qur'sn the Sunnah, ijmaC or qiyas. 30 According to al-

ShsfiCï, God commands His creatures to obey Him by follow-

ing His Book, to obey His Apostle by practicing his Sunnah

and to practice ijtihad by means of qiyas if it is neces-

sary; however, God does not instruct people to use juristic

preference. 31 Since using juristic preference is not com-

manded, whoever practices it includes himself in the catego-

ry of those "left roaming at will," when God has specifical­

ly stated that His peoples are not left in such a state. 32

On the assumption that juristic preference is an opin-

ion based purely on personal decision (Qala bi-ma sha'a),

al-ShafiCï says that using it is in opposition to the prac-

tice of the Prophet. Al-Shsficï gives several examples

showing how the Prophet was ordered to follow the revelation

and that it was his tradition to wait until he received the

revelation before rendering a legal judgment. In the Qur'sn

God says to the Prophet: "Follow that which is inspired in

thee from thy Lord;,,33 and elsewhere says: "So judge between

30al_ShsfiCï, al-Umm, vol. VII, 313.

31al_Shsficï, al-Risalah, 505.

32 In the Qur'an God says: "Does man think that he will beleft roaming at will" (Q. LXXV, 36).

33Q. VI, 107.

34

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them by that which Allah has revealed, and follow not their

desires. ,,34 When people asked the Prophet to clarify the

~tory of the People of the Cave and he promised to explain

the problem the next day, God warned him not to promise

without any condition, saying: "And say not of anything: Lo!

l shall do that tomorrow, except if Allah wills.,,35

That waiting for a revelation was the tradition of

the Prophet is proven by the case of the wife of Aws ibn al-

Samit who complained to the Prophet regarding her husband,

where the Prophet did not respond until he had received the

revelation. 36 It is also proven by the case of al-ACj lani:

who accused his wife of fornication; in this instance the

Prophet did not pass judgment until he received the revela­

tion which established the law of li can. 37

Another reason which led al-Shafi ci: to cri ticize the

application of isti~san was that if a judge were allowed to

pass a judgment in a given case based on juristic preference

34Q• V, 49.

35 Q • XVIII, 24.

36al-Shafici: did not mention the problem which the wife ofAws ibn al-Samit complained to the Prophet. However sincethe revelation received by the Prophet is concerning zihar,a husband says that his wife is similar to his mother aimingto divorce her, it. might be safe to say that the problem inquestion is about zihar. Regarding this problem Allah re­vealed the first foûr verses of al-Mujadilah.

37 Lican is an accusation by a husband against his wife offornication which has not been witnessed except by himself.The revelation received by the Prophet is three verses 6-9of al-Nür.

35

instead of on the Qur'an, the Sunnah and qiyas, another

judge might render a different judgment from that of his

peers in a similar case. This would lead to a difference of

opinion, for each judge might decide on the same case dif­

ferently from the others according to his own opinion. It is

possible that the judge who uses juristic preference might

force another to follow his judgment in order to limit the

different opinions. The others, nevertheless, would have the

same preference. This would not be able to limit the differ­

ent opinion since no one except God and His Apostle had the

right to force others to follow him. 38

Al-Shaficï also argues against those who say that

istihsan amounts to ignoring clear evidence in favor of

other considerations, on the grounds that to reject clear

evidence in favor of other reasons is not allowed because

everyone is obligated to pass a judgment according to the

apparent (~ahir) meaning of the text if there is a text, or

according to analogy if there is no text supporting the

problem in question. He further argues that there are many

cases which demonstrate that a judgment has been passed in

accordance wi th a clear textual meaning. The Prophet was

ordered to fight against the unbelievers until they convert­

ed to Islam. When they converted to Islam they had to be

given the same treatment as other Muslims, although it might

38al-ShafiCï, al-Umm, vol. VII, 316.

36

(be that their conversion to Islam was only to save their

lives. Toward the hypocrites the Prophet extended the same

treatment as to the sincere Muslims, although it was clear

enough to the Prophet that they were not truly Muslims. 39 It

is very clear that al-Shaficï insisted on strictly following

the revelation, to use consistent methods and to avoid

arbitrary reasoning.

Later scholars of the Hanafï school such as Abü al-

Hasan al-Karakhï took a position against al-Shaficï's criti-

cism of the application of isti1}san, stating that istihsan

does not consist in a legal judgment based purely on human

reason, as was purported by al-Shaficï. According to their

definition, istihsan is a principle in which authorities

(

depart from an established precedent in favor of a different

ruling for a reason stronger than the one which underlies in

that precedent. Other scholars say that isti1}san means not

to follow qiyas for another valid reason. 40 The followers of

al-ShafiCï, in their response to these critics, say that if

istihsan is as the ~anafïs had defined it, then they were

in agreement, but the problem is that Abü Hanïfah was re-

39 Ibid ., vol. VII., 309 ff.

40al-Sarakhsï, Usül, 2 vols. (Beirut: Dar al-Macrifah,n.d.), vol. II, 199-208; Muhammad Zahid al-Kawtharï, FiqhAhl al-CIraq wa-Hadithuhum ·(n.p.: Maktab al-MatbaCat al­Islamiyyah, 1970); 26-32.

37

ported to have applied istihsân as arbitrary decision. 41

Furthermore they state that al-Shâfici's criticism was

addressed to istihsân as it was applied by Abü Hanifah and

not as applied by the later scholars. 42

In the polemic against his opponents with a view to

limiting the role of human reason in legal judgments, it is

not clear whether al-Shâfici cri ticized the application of

istislâh. Isti~lâ~, like isti~sân, means to abandon the

obvious qiyâs in favor of another reason, i.e to maintain

the public interest. R. Paret suggests that there are two

reasons why he did not discuss istislâh. Firstly, it may

have been that al-Shâfici considered istislâh as a subdivi-

sion of isti~sân, and therefore i t was not necessary to

argue specifically against it. Secondly, it might be that

istislâh had not yet appeared in his time. 43

In his stance of defending the tradition, al-Shâfici

had to argue against scholars who rejected or inconsistently

accepted the tradition. The scholars who rejected the tradi-

tion as a whole were the Mutakallimün. Their reason not to

accept the traditions was that unlike the Qur'ân, which was

transmi tted by numerous people, the traditions which were

41That Abü Hanifah used istihsân in his legal reasoning isdemonstratea by Schacht in his Origins, 294

42Abü Ishâq Ibrahim al-Shirâzi, Sharh al-Lumac , vol. II(Beirut: bar al-Gharb al-Islâmi, 1988), '969-970.

43 E Van Donzel et. al. eds. The Encyclopaedia DE Islam, Newedition. s.v. "Istihsân and Istislâh" by R. Pareto

38

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transmitted by individuals are not safe from the possibility

of error and therefore we cannot be certain what the real

teachings of the Prophet were. In responding to the problem

of the transmission of the traditions, al-Shafici says that

he also cannot accept a tradition transmitted by a doubtful

transmitter. For a tradition to be accepted, it must meet

the same conditions as are necessary to accept the Qur'an.

However, since it is a religious obligation to follow the

Prophet, whoever finds a tradition which has been proven as

having been transmi tted by a reliable person should accept

it without any question. 44

His argument in support of the necessity to follow the

Prophet's traditions is based on the statement in the Qur'an

that God has sent down to the Prophet the Book and has given

him the wisdom (al-J:ikmah). 45 That the "Book" means the

Qur' an the scholars are in agreement but whether "wisdom"

exclusively means the Sunnah, they are in disagreement. It

might be argued that the "Book" and the "wisdom" are one and

the same. In answering this question al-Shafici says that

while it might be possible that "wisdom" is the same as the

"Book," nevertheless there is much evidence that the two are

different. In the Qur'an, God asked women to remember what

had been recited in their house: the verses of the Qur'an

44al-ShafiCi, al-Umm, vol. VII, 288.

45 0n this case Allah says: "Allah has sent down on thee theBook and the wisdom .... "(Q. IV, 112).

39

and the "wisdom". 4 6 Here, the verses of Qur' an and the

"wisdom" are mentioned separately. This proves that the two

are different. However, it might be argued that they are not

different for the reason that while it is easy to understand

what is meant by someone reciting the verses of the Qur'an,

it is nevertheless difficult to understand what is meant by

someone reciting the "wisdom." "To recite the 'wisdom' is to

talk about the Sunnah as someone talks about the Qur' an,"

al-Shafici answers. Furthermore al-Shafici quoted the pas-

sage in the Qur'an where God orders people to follow the

Prophet. 47 It is a logical consequence that following the

Prophet is to accept his Sunnah. 48

Other scholars to whom al-Shafici addressed his cri ti-

cism were the Traditionists, whom he accused of inconsist-

ently accepting the tradition. He said that every tradition

transmitted by reliable persons going back to the Prophet is

authoritative. It should never be rejected unless there is

another tradition from the Prophet which contradicts it. It

46A1Uih says: "And remember that which is recited in yourhouses of the signs of God and the Wisdom. Allah is All­subtile, All-aware. (Q. XXXIII, 34).

47 The are many verses of the Qur'an cited by al-Shafici inrelation to this problem, two of them are as follows. First­ly, Allah says: "But no, by thy Lord, they will not believetill they make thee judge regarding disagreement betweenthem and then they shall find in themselves no impedimenttouching thy verdict, and shall surrender in full submis­sion." (Q. IV, 65). Secondly, Allah says: "Whosoever obeysthe Messenger, thereby obeys God .... " (Q. IV, 80).

48al-Shafici, al-Umm, vol. VII, 288.

40

should be kept in mind that if there are contradictory

tradi tions , one of two traditions mus t be accepted. The

first is that the contradiction might be an abrogation and

that we should accept the tradition which abrogates and

rej ect the abrogated one. The second is that there is a

contradiction but no evidence as to which tradition is the

abrogating one; in this case the more reliable transmission

should be taken. If they are equally reliable, the one more

in keeping wi th the Qur' an and the remaining undisputed

tradition is to be chosen. If at aIl possible, the Prophetie

traditions should never he considered as contradictory. The

tradi tions of other persons in the face of the Prophetie

tradition are of no account whether they confirm or contra­

dict the latter. 49

In the "Ki tab Ikhtilaf Malik wal-Shafi cï" there are

numerous examples which show how al-Shaficï opposed the

Tradi tionists on the charge of neglecting the traditions

which they transmi tted. Among them are the case of the

person who is praying and only manages one rakacah before

the end of its time, and the case of praying on a very hot

day, to mention only two. In the first case it is mentioned

that Malik related a tradition from the Prophet on the

authority of Abù Hurayrah that he said whoever manages one

rakacah from the morning prayer before the sun rises is to

49 Ibid ., vol. VII, 201.

41

be credited with the morning prayer and that whoever manages

one rakacah from the cAf!r: prayer before the sun sets is to

be credited the cAsr prayer. AI-ShaficI accepted this tradi­

tion in full while the tradi tionists were of the opinion

that the morning prayer of the person who only manages one

rakacah before sun rises is not valid, for it means that he

performs the prayer outside of its specifie time, so it is

not allowed. In another tradition it is mentioned that it is

not allowed to pray after the sun rises until the sun has

risen to a certain degree. AI-ShaficI replies that to pray

after sunrise is forbidden if the prayer is not obligatory,

whereas the prayer under discussion is obligatory and there­

fore is valid. He argues against his opponents who do not

accept this tradition because of its being transmitted alone

by Abü Hurayrah, stating that when a tradition has been

proven as being transmitted from the Prophet it can stand

alone and does not need added support. 50

The second example is the case of praying on an

exceedingly hot day. It is related by Malik on the authority

of Abü Hurayrah that the Prophet said: "If the day is very

hot, wait until it is cool to perform prayer for a very hot

climate is part of Hell." The traditionists did not follow

this tradition on the grounds that none of the four Caliphs

recommended to wait until the day had cooled before perform-

50 Ibid ., vol. VII, 202.

42

(ing the prayer and also beeause there is a tradition whieh

instruets Muslims to perform the prayer as soon as possible

whether or not it is very hot. Aeeording to al-Shaficï, the

tradition whieh reeommends waiting until the day is eooler

is to be followed, for it has been proven that it is trans-

mitted from the Prophet, while the other tradition whieh

orders Muslims to pray early should not be eonstrued to

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eontradiet this tradition. 5l

In view of their name one would assume that the tradi-

tionists were the seholars who eonsistently aeeepted the

Prophetie traditions, but al-Shaficï found that this was not

so. Therefore it is not a surprise that al-Shaficï's eriti-

eism is addressed to the traditionists who elaimed to be the

representative of tradition, rather than to the ahl al-ra'Y,

as Sehaeht has pointed out. 52 The attitude of the Iraqians

to the tradition was the same as that of the Medinese, but

their theory of tradition was more developed than that of

their eounterparts. It is reported by al-ShiHicï that al-

Shaybanï used to say that no opinion on law is valid unless

it is based on the binding information {khabar lazim)53 or

analogy;54 a binding tradition, one from the Companion in

5lIbid .

52Sehaeht, Origins, 27.

53The term khabar lazim eonsists of the Qur' an, the Sunnahand ijmac •

54al-ShafiCï, al-Umm, vol. VII, 327.

43

.."'~.

the case in question, has precedence over analogy; it is

equally inexcusable to contradict the text of tradition or

to make a mistake in applying it. Al-Shayb~nI's theory of

tradition was not as developed as that of al-Sh~ficI; howev­

er he had laid down some of principles on which al-Sh~ficI

built his theory.

C. Al-Shaficï's Legal Theory

Taking into account al-Sh~ficï's basic princip les

concerning Islamic law, his cri ticism of arbi trary reason

and his stance on defending the tradition, it is safe to say

that his legal theory is mainly based on revelation. He

consistently held this view, and therefore restricted the

role of human reason. Its role is only to look for evidence

by means of qiyas. It is for this reason that he set up

hierarchically the four sources of Islamic law. as follows:

the Qur'~n, the Sunnah, ijmaC and qiyas. 55

1. The Qur' an

It is generally agreed among Muslim scholars that the

Qur' an is the basic source of Islamic law. The problem

concerning the Qur' an in al-Sh~ficI' s time was not how to

de fend the authority of the Qur'an as the source of the laI.'

but rather how to explain it. Al-Sh~ficI's explananation of

55 al _ShafiCï, al-Risalah, 39.

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the Qur'an is based on the assumption that the Qur'an was

revealed in Arabie. He supports his argument that the Qur'an

was in Arabie by quoting the Qur'an itself where Allah

states this explieitly.56 Having been revealed in Arabie, it

should be understood exaetly in the same way as the Arabs do

when they eommunieate with eaeh other.

Based on the assumption that the QUl"an is in Arabie

al-ShafiCï divided Qur'anie verses into five categories. The

first eonsists of the general (al-Camm) verses, whieh he

further subdivides into two groups: those that are general

and meant to be general, and those that are general whieh

are meant as general but whieh inelude the partieular

(al-kha??) within them. As an example of the first subdivi­

sion, he cites Q. XXXIX, 62: "Allah is Creator of aIl

things, and He is Guardian over aIl things;" Q. XIV, 32:

"Allah is He who ereated the heavens and the earth ... ;" and

Q. XI, 6: "There is not a living creature in the earth but

God is responsible for the sustenanee." AlI these verses are

general and are meant to be 50. AlI things inelude the

earth, the heavens, things having a living spirit, the trees

56Allah says: "Truly it is the revelation of the Lord of aIlBeing, brought down by the Faithful Spirit upon thy heart,that thou mayest be one of the warners in a elear Arabietongue;" (Q. XXVI, 192-195) also says: "Thus have We re­vealed it, a deeisive utteranee in Arabie." (Q. XIII, 37.);and says: "And thus we have inspired in thee the Qur'an inArabie, that thou mayest warn the mother-town and thosearound it .... " (Q. XLII, 7.) The other verses quoted by al­Shaficï are Q. XLIII, 1-3 and Q. XXXIX, 28.

45

..~.; ..and the like which are created by Allah. God is also respon-

sible for the sustenance of every living creature and He

knows its lodging place and its repository.57 An example of

the second subdivision is Allah's statement: "It is not for

the townsfolk of al-Madïnah and for those around them of the

wandering Arabs to stay behind the messenger of Allah and

prefer their lives to his life.,,58 This is general in the

sense that it is addressed to aIl the people who were able

to take part in the jihad but it is particular because it

only includes them and not aIl the people of that city.59

The second category consists of the general verses in

which the general and particular are included, such as where

Allah says:

o mankind Lo! We have created you male and female, andwe have made you nations and tribes that ye may knowone another. Lo! the noblest 6'cf you, in the sight ofAllah, is the best in conduct.

It is clear in this verse that there are a general and a

particular meaning. The general one is that Allah said that

He had created mankind and that they are male and female and

that he had made them nations and tribes. AlI peoples ad-

dressed in this verse either during, before or after the

time of the Prophet, are created by Him. The particular

57al-ShafiCï, al-Risalah, 54.

58Q• IX, 120.

59al-ShafiCï, al-Risalah, 54.

60Q. XLIX, 13.

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{meaning is found in the sentence "Lo! the noblest of you, in

the sight of All~h, is the best in conduct", because the

obligation to be a person of such conduct is reserved for

those of mature, heal thy reason and thus excludes minors.

For the Prophet said that no obligation is imposed on three

groups: the one asleep until he awakes; the child until he

cornes to the age; and the lunatic until he recovers. 61

The third category consists of the general verses which

are aIl intended to be particular. Among others there is the

following:

Those unto whom men (al-nas) said: Lo! the people(al-nas) have gathered against you, therefore fearthem. (The threat of danger) but increased the faith ofthem and they cried: Allâh is suf[icient for us! MostExcellent is He in Whom we trust!.

According to Arabie grammar al-nas is a general term, but in

this case this term, according to al-Shâficï, is particular.

The explanation is that there were with the Prophet people

other than those who gathered against them (i. e the

("

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Prophet's people), and those who informed them of the threat

were people other than those who had gathered against or

were with the Prophet. Therefore the term al-nas in the pas-

sage representing "people have gathered against you" means

only a certain number of people and not aIl. It is certain

that not aIl people gathered against the people allied with

61al-ShâfiCï, al-Risalah, 57.

62Q. III, 173.

47

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the Prophet nor did all people inform the Prophet's people

nor were they the whole people. Since the term al-nas may

either mean three persons or all people or any number

between three and all, it is correct to say that al-nas in

the passage "those unto whom men said" may refer to only

four peoples; and al-nas in the passage "the people have

gathered against you" are only those who departed from the

battle Uhud. 63 This is a general verse but it is intended to

be particular.

The four th category consists of the verses which are

clarified by their context. As an example, al-Shaficï cites

the Qur'an:

Ask them (0 Muhammad) of the township that was by thesea, how they nid break the sabbath, how their big fishcame unto them visibly upon their sabbath day and on aday when they did not keep sabbath came they not untothem. T~US did We try them for that they were evil­livers. li

Firstly, Allâh mentions the town by the sea but when He

states "they did break the sabbath", He obviously means that

what is meant by "town" is the people of that town, for the

town can neither break nor deviate from the sabbath nor do

otherwise. 65 Such a term is only understood by context.

The fifth category consists of the general verses which

the Prophet has told US are specifie. While explaining the

63al-ShâfiCï, al-Risalah, 59-60.

64 Q. VII, 164.

65al-Shaficï, al-Risalah, 62-63.

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regulation of the inheritance God includes parent (al-wâlid)

and spouse (al-zawj) without exception in the list of per­

sons who receive a legacy.66 The Prophet explains that not

a11 parents or spouses can inherit; there are conditions:

they should be of the same religion and they must not have

murdered the person from whom they inherit. Thus the term

"parent" and "spouse tl are general but in this case they ha"l.re

been specified by the Prophet. The same is also applied in

the case of bequest where God generally only mentions that

the estate should be divided after all shares given away by

will and debts have been paid. 67 The Prophet laid down the

condition that the bequest must be no more than one-third of

the estate and that it can only be executed after the debt

is paid. Supposing there was no tradition explaining the

size of the will and i ts priori ty before the inheri tance,

people would have taken the general meaning of the verse. 68

Although al-Shaficï did not discuss the semantic prob­

lems of the Qur'an as did later scholars, he did lay down in

al-Risâlah the basic principles of that discussion. He men­

tioned that the Qur'an is':'n Arabie and should be understood

in the way that the Arab peoples communicate with each

66 Q • IV, 12.

67 Ibid .

68a1-Shaficï, al-Risâlah, 65-66.

other. This principle paved the way for a discussion con-

cerning not only the general and the specifie terms as has

been explained by al-Shaficï but also the question of what

is the form of command (~ïghat al-amr), the form of prohi­

bition (~ïghat al-nahy) and others.

Al-Shaficï also deals with the problem of abrogation in

the Qur,an. There are three questions explored by al-Shaficï

in his discussion of the problem. The first relates to

principle of abrogation. ln his introduction to the discus-

sion, he says that God created mankind for whatever His

established knowledge desired in creating it and for whatev-

er its destiny should be. There is no revision at all in His

judgment, He being swift of reckoning. And He revealed to

them the Book that explains everything as a mercy and guid-

ance. ln it He laid down some duties which He confirmed and

others which He abrogated. 69 ln this introduction i t seems

that al-Shaficï argues that the abrogation is part of God's

will in His creating mankind.

The second concerns the abrogation of the Qur'an. Ac-

cording to al-Shaficï the Qur'an is only abrogated by the

Qur' an, never by other sources. His reason is that God

declared that His Book may only be abrogated by the Qur'an

and that the Sunnah cannot abrogate the Book but should

agree with what has been laid down in it. The function of

69al-ShafiCï, al-Risalah, 106.

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the Sunnah is merely to explain the meaning of the Book. In

the Qur'an God informed people that He had commanded His

Apostle to obey what was revealed to him, but He did not

give him the authority to alter the Book; for the Prophet

himself states: "It is not for me to alter it of my

accord.,,70

Another evidence to the effect that only the Book can

abrogate itself is the fact that God is the originator of

His command and thus He alone can repeal or confirm whatever

of it He wills and no one of His creatures may do 50. He

said: "God repeals what He will, or confirms; with Him is

the Mother of the Book.,,71

The last problem relates to the question how we know

that a certain verse is abrogated by another. According to

al-ShafiCï, to know that a verse of the Book is abrogated is

not only based on the fact that there is another verse which

contradicts that verse, but also depends on our looking for

further evidence in the Qur'an or the Sunnah. An example is

provided by the verses regarding the obligation of prayer

imposed by God before He laid down the duty of five prayers.

God says:

o thou wrapped in thy robes,keep vigil the night, except a little(a half of it, or diminish a little,

70Q • X, 16.

7lQ • XI II, 39.

51

or add a72

little),distinctly.

and chant the Qur'an very

These verse were abrogated by the last verse of the same

sürah where God says:

Thy Lord knows that thou keepest vigil nearly two­thirds of the night, or a half or third of it, and aparty of those with thee; God de termines the night andthe day. He knows that you will not number it, and Hehas turned towards you. Therefore recite of the Qur'anso much as is feasible. He knows that sorne of you aresick, and others journeying in the land, seeking thebounty of God, and others fighting in way of God. Soreci te of i t so much as is ~easible. And perform theprayer, and pay the alms .... 7

At an earlier time, it was imposed upon the Prophet and his

followers to pray at night for a duration of half the night

or even longer, but later this duty was abrogated by another

duty to recite the Qur,an. The latter duty, however, has two

possible interpretations. It might be that it is a confirmed

duty since it abrogates the previous duty, or it might be

that like the other it is abrogated by another verse. For

God said: "And sorne part of the night awake for it, a lar-

gess for thee. It may be that thy Lord will raise thee to a

praised estate.,,74 ln such a case it is necessary to look

for evidence from the Sunnah to determine which of the two

possibilities is to be taken. The Sunnah of the Prophet

indicates that there is no duty to pray save for the five

72 Q. LXXIII, 1-4.

73 Q. LXXIII, 20.

74 Q. XVII, 79.

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daily prayers. 75 Therefore it can be established that only

the five daily prayers were imposed on people and the earli-

er duty of praying in accordance with this Sunnah is abro-

gated by the verse: "and sorne part of the night awake for

it .... •• 76 In this case it is clear that the function of the

Sunnah is to provide the evidence on which people may deter-

mine which one is the abrogated verse of the two existing

possibilities. 77

2. The Sunnah

Al-Shafici' s main theory on tradition is that every

tradition related by reliable person from another reliable

person as going back to the Prophet is authoritative and

cannot be rejected unless there is an authoritative tradi-

tion which contr=.dicts i t. If there are two contradictory

traditions, the abrogating tradition is to be accepted. If

there is no evidence that one of the two traditions should

abrogate the other, the more reliable of the two traditions

is to be followed; and if both are equally reliable, the one

75 The Sunnah which indicates that only the five daily prayeris the obligatory, is the tradition related by Malik whichmentiones that the Prophet' s answer to the tribesman whoasked him concerning the duties other than the five dailyprayer, is negative, saying: "No, not unless you volunteer."al-Shafici, al-Risalah, 116.

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76Q. XVII, 79.

77 For more discussion on the abrogation seeKitab Ahkam al-Qur'an. vol. 1 (Cairo: Maktab1952), 149 ff.; idem. al-Risalah, 137 ff.

53

al-Shiifici,al-Khiinji,

more in keeping wi th Qur' an and the remaining undisputed

part of the Prophetie Sunnah is to be chosen. Traditions

transmitted from other persons, in the face of the Prophetie

tradition, are of no account whether they confirm or contra­

dict it. 78 As mentioned in the previous discussion this

theory was developed by al-ShaficI on the grounds that it is

a religious dutY to follow the Prophet by accepting his

tradition. By holding this theory he also departed from his

predecessors, whether they rejected the Prophetie tradition

altogether, rejected the khabar al-kha~~ah, or inconsistent­

ly accepted tradition.

Long before al-ShaficI, the fabrication of the tradi-

tions had become common. Therefore it is necessary for every

scholar who urges people to accept the tradition to have a

cri terion for determining a valid tradition. There are two

methods for detecting the authenticity of a tradition,

namely, either by evaluating its transmission (al-sanad) or

by examining the material of its text (al-matn). Al-ShaficI,

however, seems to stress the criticism of the transmission

rather than the material of the text. He maintained that in

most cases the truthfulness of a tradition or lack of it can

be known only through the truthfulness of the transmitter or

lack of it, except in a few special cases: i.e., when the

transmi tter states something which cannot possibly be the

78al-ShafiCI, al-Umm, vol. VII, 201.

54

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case, or is contradicted by better-authenticated informa­

tion. 79 He also maintained that only traditions related by

a reliable transmitter are to be accepted. BO This means that

the most important criterion for the reliability of the

tradition is transmission.

Another important aspect of al-Shafici's theory of

tradition is his method of harmonizing contradictory tradi-

tions, otherwise there would be many traditions rejected on

the grounds that they are contradictory to the Qur'an or to

other traditions. According to al-Shafici there is no con-

tradictory tradition, either to the Qur'an or to other

traditions, because they are the same as revelation. If the

tradition seems to contradict the Qur'an, it is only appar-

ently so, and not so in reality. The punishment of the thief

in the Qur'an is the cutting off of the hand,BI but there is

a tradition in which the Prophet did not cut off the hand of

the thief. It appears that this tradition contradicts the

Qur'an, when in reality it does not, because in this tradi-

tion the Prophet aimed at establishing the condition of this

punishment by explaining that the punishment depends on the

amount of the stolen goods. According to the Qur'an the

79al-ShafiCi, al-Risalah, 399.

BOlbid., 39B.

BIAllah says: "As for the thief, both male and female, cutoff their hands. It is the reward of their own deeds andexemplary punishment from Allah." Q. v, 3B.

55

punishment of a person who commits fornication is a hundred

lashes,82 but the Prophet is reported as not having applied

this punishment to a married person or to a slave who com-

mitted adultery. This does not mean that the Sunnah of the

Prophet contradicts the Qur'an but, as in the previous case,

it only describes the function of the tradition in its

relation to the Qur,an. In this case the tradition is in-

tended neither to abrogate the law of the Qur' an nor to

contradict to it, but only to specify the general rule given

in the Book. 83 Since he believed that there is no contradic-

tion between the Qur'an and the tradition, al-Shafici denied

the authenticity of the tradition where the Prophet is

reported as having said:

Compare whatever is related from me on my authoritywith the Book of God; if it agrees with it, l have saidit, but if does not agree l have not said it.

Al-ShafiCi's reason for rejecting this tradition is that to

his knowledge it is not related by a person whose authority

has been recognized to constitute a proof for what he

.~,.

related. Besides, this tradition is based on an uninterrupt-

ed transmission from an unknown person. This kind of tradi­

tion is unacceptable,84

In its relation to the Qur'an, the tradition neither

82Allah says: "The adulterer and adulteress, scourge ye eachof them (with) a hundred stripes." Q. XXIV, 2.

83al-Shafici, al-Risâlah, 223-224.

84 Ibid ., 224-225 .

56

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abrogates nor is abrogated by the Qur'an. That the tradition

cannot abrogate the Book, as mentioned in the previous dis­

cussion, is because God is the originator of the command;

therefore He alone can confirm or abrogate whatever He

wills, while none of His creatures, including the Prophet,

can do so. The reason that the Qur' an cannot ab roga te the

tradition is that if the Prophet laid down a regulation in

his tradition and God wanted to replace that regulation, he

would have introduced other traditions which would have

repealed the earlier one. Furthermore, al-Shaficï argues

that if it is permissible to hold the opinion that what the

Prophet has laid down in his Sunnah could be abrogated by

the Qur'an and he has transmitted no abrogating Sunnah, it

would be permissible to say that every tradition which

contradicts the Qur' an is abrogated by the latter. 85 This

argument shows the logical reasoning of al-Shaficï that if

God instructed people to follow the Prophet it is impossible

that his Sunnah should be contradictory to the Book of God

but rather that it must follow it.

That one tradition seems to be contradictory to another

is only in the eyes of the beholder. The Prophet was an Arab

and living among the Arab people, and thus he communicated

with them as they did among themselves; he might state

something in general terms but intend it in a specifie or in

85al-ShafiCï, al-Risalah, Ill, 220-221.

57

'<7;-.

an opposite sense. He might answer a question and people who

heard the answer might understand it differently and relate

it differently. He may decide something but later on abro-

gate it. He may have likewise laid down a tradition covering

a particular situation and another covering a different one

but some of those who related what they heard failed to

distinguish between the two differing situations for which

the Prophet had laid down his Sunnah. Where there are twa

apparently contradictory traditions, there are two ways to

decide which abrogates the other. The first is by looking

for external evidence by examining the transmitters, and in

such a case the more reliable transmit ter is ta be taken.

The second is by searching the internaI evidence by examin-

ing the material of the tradition. The one in keeping with

the Qur'an or other undisputed parts of the Prophetie tradi-

tions is to be accepted instead of the other. It seems that

al-ShafiCï was very concerned with harmonizing the seemingly

contradictory traditions. This is proven by the fact that he

included an extensive discussion on this subject in his a1-

Risa1ah,86 as weIl as in his work

Hadith. 87

Kitab Ikhtilaf a1-

Another important contribution of al-Shaficï is his

stance in accepting a1-khabar a1-wal'fid, a tradition trans-

86 Ibid ., 210 ff.

87published in the margin of the vol. VII of al-Shaficï, a1­Umm, 586 ff.

58

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mitted by one person. Unlike his predecessors who rejected

al-khabar al-wahid he accepted it with certain conditions.

This tradition should be transmitted by one person from

another back to the Prophet or to someone next to the

Prophet. He who transmits this tradition must merit confi­

dence in his religion, and be known as reliable in his

transmission and must comprehend what he transmi ts and be

aware of any pronunciation that might change the meaning of

the tradition. He must also be capable of transmitting the

tradition word for word as he heard it, not merely transmit­

ting its meaning in his own words. For if he transmits only

the meaning and is unaware of what might alter its meaning,

it might be that his version is different from that of the

original tradition; but if he transmits word for word there

is no reason to fear a change of the meaning. If he trans­

mits from memory, he must possess a good memory and if he

transmits in written form, his notes are to be well pre­

served. He must not be a mudallis, one who attributes to

someone whom he met what he has not heard from him; he must

not attribute to the Prophet a tradition different from that

which the reliable authorities related. These conditions

must be found in every transmitter up to the Prophet or the

nearest one from him because every one of them is the one

who authenticates the tradition either by relating it or

59

receiving it from another transmitter. 88

Al-ShafiCï's argument for accepting al-khabar al-wahid

is based on numerous traditions which recommended i ts ac-

ceptance. Among the traditions he quoted is the tradition

where the Prophet said: "God will grant prosperity to His

servant (Cabd) who hears my words, remembers them, guards

them, and hands them on." ln this tradition the Prophet

urged the servant of God, who is only one person, to listen

to his words, guard and hand them on to other persons. This

shows the validity of a tradition although it is only relat­

ed by one person. 89 Unlike other scholars who set a condi­

tion for the authenticity of al-khabar al-wahid (that is

that it should be relayed by the scholars), al-Shafici was

of the opinion that a Prophetie tradition is authentic by

itself and does not need to be confirmed by the practice of

anyone el se in the period following the Prophet's

lifetime. 90

Besides the harmonization of seemingly contradictory

tradi tions and the acceptance of al-khabar al-wa1}id, the

most important part of al-Shafici' s reform in the field of

tradition is his effort to change the concept of the Sunnah

to exclusively mean the tradition of the Prophet. ln its old

88al-ShafiCï, al-Risalah, 369-372.

89 lbid ., 401-403.

90 Ibid ., 423-424.

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connotation, the Sunnah meant both the living tradition and

the behavior of the Prophet. The Sunnah, according to Malik,

is not identical with the contents of traditions from the

Prophet. 9l Although the Iraqians had coined the term Sunnah

for the Prophet's tradition long before al-Shaficï, they did

not consistently refer to the Prophet through the concept of

Sunnah. They used the Sunnah as an argument even when they

could show no relevant tradition of the prophet. 92

Al-Shaficï's insistence that the Sunnah exclusively

means the Prophet' s tradition is aimed at decreasing the

number of diferent opinions and to introduce a consistent

reference. He found that Sunnah, which according to the old

concept does not exclusively mean the Prophetie tradition

but also includes the living tradition, cannot give a con­

sistent reference but rather creates widely different opin­

ions. The explanation is that since the living tradition

which originated from the consensus of the scholars of a

certain locality has no authority to force other scholars to

accept it, he found that in every claim of a consensus there

was another scholar who held a different opinion. The only

way to avoid different opinions, according to al-Shaficï, is

to define the Sunnah as the tradition of the Prophet, whose

91Schacht, Origins, 61.

92 Ibid ., 73.

61

authority alone can force other persons to accept his tradi-

tion.

3. IjmiiC

Ijma C, or consensus, has been adopted by Muslim schol-

ars as one of the legal sources long before al-Shafici,

though these scholars had a concept different from that

formulated by al-Shafici. The Iraqian scholars referred to

consensus but they considered i t as secondary to analogy

while the Medinese limited it only to the consensus of the

Medinese scholars or their practice. AI-Shafici departed

from this; he went beyond the local restriction of the

Medinese scholars and raised the role of consensus above

that of analogy.93

According to al-Shafici, ijmaC has authority as a

source of law in the absence of the Qur'an and the Sunnah.

He argued for the authori ty of consensus on two grounds.

First, the Prophet ordered people to follow the Muslim

community.94 There are two meanings of the command "to

93H. A. R Gibb and J.H. Kramers. Shorter Encycoplaedia ofIslam, s. v. "al-Shiifici" by Maj id Khadduri.

94There are two traditions quoted by al-Shafici in order tode fend the position of the consensus. The first is that theProphet said: " ... on three thing Muslim shall never betray:sincerity in their working for God, giving advise for Mus­lims and conformity to the Muslim community, their calIshall protect and guard them the delusion;" and the secondis that the Prophet said: "Respect my Companions, than thosewho succeed them, and after that those who succeed the

62

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follow the community": to physically follow the members

of the Muslim communi ty or to adhere to their consensus.

Since it is impossible to follow the Muslim cornmunity by

following its members, for when they spread in Islamic lands

and mixed with other believers and unbelievers, pious and

unpious, there remained only one possibility, that is, to

hold the opinion upon which the entire community agrees

concerning lawful or unlawful orders. Whoever holds to what

the Muslim community holds is regarded as following the

community and whoever does not is regarded as opposing the

community which he is ordered to follow. It is only the

community as a whole which ensures freedom from error. Error

comes from the separation from the cornmunity, whereas within

it, on the whole there is no error concerning the meaning of

the Qur'ân, the Sunnah and analogy.95 Secondly, it is only

the consensus cf the community at large which has authority

since it is impossible that the community at large would be

ignorant of the law of God or of the Prophet. Ignorance is

Successors; but after them untruthfulness will prevail whenpeople will swear without having been asked to swear andwill testify without having been asked to testify. Onlythose who seek the pleasure of Paradise will follow thecommunity, for the devil can pursue one person, but standsfar away from two. Let no man be alone with a women, for thedevil will be the third among them. He who happy with hisright behavior or unhappy with his wrong behavior is a be­liever."

95al-ShâfiCi, al-Risâlah, 476; idem. al-Umm, vol. VII, 314.

63

only possible with regard to individuals. 96

By arguing for the authority of ijmaC as one of sources

of law in the absence of the Qur' an and the Sunnah, al-

ShafiCi alsc argues that it is permissible to turn to the

communi ty concerning a problem which there is no explici t

texts which give the solution. It follows that according to

him, ijma C of the community at large is an independent

source of law besides the other sources.

Al-ShafiCi's doctrine of consensus as depicted by

Schacht shows a continuous development. 97 In his early

writings, he still followed the old concept; that ijmaC is

the consensus of the scholars. But in his last work he

stated that consensus refers to the agreement of the commu-

nity as a whole and not only to the consensus of the schol-

ars. He maintained the consensus of the communi ty and re-

jected the consensus of the scholars. For he found that in

every claim of consensus on the part of the scholars there

were other scholars who disagreed with them. For this reason

he disapproved of the agreement or the practice of the

Medinese scholars as constituting consensus. 98

Since al-Shafici insisted on the consensus of the

community at large, his doctrine of the consensus is applied

96al-ShafiCi, al-Umm, vol. VII, 314.

97Schacht, Origins, 88.

98al-Shafici, al-Risalah, 534-535; idem, al-Umm, vol. VII,274.

64

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only to the general legal knowledge which every one should

know, such as the obligatoriness of prayer or zakat. For the

specifie legal knowledge which is only understood by the

specialist and which the common people need not know, he

approved the consensus of the scholars insofar they are

truly in agreement. If they are in disagreement, the opinion

which is more in keeping with the Qur'an and the Sunnah is

to be taken. If there is no such indication, the one which

is better in every application is to be chosen. If they are

in disagreement as mentioned above, it is correct to say,

this opinion is related from a number of persons who disa­

gree, and we follow the opinion of three against that of

two, or four against that of three. In this case the claim

of the consensus is not true, because the claim of consensus

in this case is to make a statement about those who have not

expressed an opinion. 99

Al-ShaficI also differed from his predecessors who were

of the opinion that whatever the community agrees upon their

agreement is based on the Sunnah whether or not it is relat­

ed to the Sunnah from the Prophet. If they were in agreement

upon a certain opinion and they stated that their agreement

was based on the tradition they related, their claim was

approved. But if they did not state that it was based on a

tradition, it is not permissible to say that it was. Accord-

99al-ShafiCI, al-Umm, 278-279.

65

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ing to al-ShaficI, it is not permissible to relate something

except on the basis of what someone has heard, nor is it

permissible to relate something merely imagined. lOO This

polemic relates to the problem that the existence of ijmiC

among peoples implies the existence of the tradition which

served as the revealed support but has somehow got lost. Al­

ShaficI argued that ijmiC is a valid and independent source

implying nothing about the existence the lost transmission.

The doctrine of consensus in its old form is the result

of the natural development of the personal into the collec­

tive opinion. It is a body of doctrine associated with a

certain scholar from a certain locality. According to Medi­

nese scholars, ijmiC means the consensus of the scholars of

Medina. Though theoretically the Iraqian concept of consen­

sus is not local but extends to aIl countries, in practice

their consensus shows the same local character as that of

the Medinese. lOl Since in the early period ijmiC meant the

consensus of the scholars of a certain locality, it was not

considered binding except upon those who adopted it and it

is secondary to personal opinion. In contrast to this old

doctrine of consensus, al-Shaficï stated that the consensus

is the agreement of the whole community, 50 it is binding on

aIl people and its position is above personal opinion.

lOOIbid. 471-472.

101Schacht, Origins, 85.

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ln relation to the epistemological problem, it is

important to mention the distinction between two types of

ijmac: ijmaC al-culama' and ijmaC al-cammah; then the latter

is categorized into two: ijmaC on the matter dealt with in

the Book and Tradition and ijmaC on something not dealt with

in revelation. IjmaC al-cammah which is based on revelation

is part of general knowledge (Cilm al-Cammah) which consti­

tutes certainty (iJ.la~ah) where no one is allowed to disa­

gree. IjmaC al-cammah, however, when it is not on a matter

provided for in the texts, and ijmaC al-culama', would be

included in the category of special knowledge (Ci1m a1­

kha??ah) and do not constitute certainty.

The previous discussion shows that ijmaC has been known

by the scholars as a source of law long before al-Shaficï.

However, it was not until al-Shaficï's time that the commu­

nity became an independent source of law in those cases for

which the Qur'an and the Sunnah do not give a judgment. lt

is true that al-Shaficï's predecessors also referred to the

consensus of the communi ty but they did not consider ijmaC

as an independent source of law though they assumed that

when the community agrees upon a matter, there is a tradi­

tion in existence, whether or not they related it. To them

the reference is not the community but to the tradition.

Another important reform of al-Shaficï is rejecting the

concept of ijmaC as the consensus of scholars from certain

locality and instead extending it to a universal consensus

67

.........

which involved the communi ty a t large. Al-Shafici refused

the authority of the consensus of scholars and even denied

its existence. For in every claim of the consensus of the

scholars, he found other scholars who held different opin-

ions.

4. Qiyas

For al-Shafici's predecessors, ijtihad was not re­

stricted only to analogy, 102 while for al-Shafici ij tihad

was equal to qiyas. He argued that in every problem faced by

a Muslim there is either a binding decision or an indication

as to the right answer. If there is a decision, Muslims are

obligated to follow it; if there is no clear decision, it

should be sought through ijtihad which is equal to qiyas. l03

He also said that it is not permissible for scholars to make

a decision unless their decisions were based on legal knowl-

edge. Legal knowledge in his view is the knowledge of khabar

lazim or that which is derived from it by analogy.l04

In relation to the epistemological problem of qiyas,

there is a question raised by al-Shafici: if a person ap-

plies a qiyas correctly, can he reach the truth according to

102In his study on Iraqian legal reasonig Schacht mentionedthat Abü Hanifah used not only qiyas but also istihsan inhis excerc1ce of ijtihad. Origins, 111-112.

103al_Shâfici, al-Risalah, 477.

104Ibid ., 807-808.

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God? According to al-Shafici the knowledge which resul ts

from analogy is relative; it is only right for the person

who draws analogy and not binding on the other scholars, and

yet on the other hand i t is only right in the external

sense. AI-Shafici divided legal knowledge into two catego­

ries: knowledge of the decision, which is right both in the

external (~ahir) and in real (ba~in) sense; and knowledge of

the decision, which is only right in the external sense. The

knowledge of a decision which is right both in the external

and real sense is that based on the Qur'an and the mutawatir

Sunnah of the Prophet. This kind of knowledge is known by

every Muslim, and thus it is certain. The second category

consists of the special knowledge derived ei ther from the

khabar al-kha??ah, the utterance which is only known by the

scholars and only in the possession of aIl or some of them

based on a reliable transmitter going back to the Prophet;

or the consensus; or, still, the exercise of ij tihad by

means of analogy. Thus the result of analogy is relative and

only true according to the person who makes it. I05

Applying analogy means to look for a solution to a new

problem which is based on the evidence of similarity between

the problem in question and the principles found in the

Qur'an and the Sunnah. There are two kinds of analogy; the

I05 Ibid ., 478.

69

first is when there is a decision concerning a certain

problem for a certain reason mentioned either in the Qur'an

or in the Sunnah, and there is a problem before one which

includes that reason, 50 that this problem should be given

the same decision. The Prophet said that God has forbidden

the shedding of the blood of believers and taking their

property and thinking evil. If it is forbidden to think of

believers in a way other than good, then telling an untruth

about them would be even more unlawful. The second kind is

when the problem in question does not include the meaning of

the princip le , but between the problem and the principle

there exists a similarity which allows for the new problem

to be given the same judgment. In the case where there are

many principles to which the new problem might be analo­

gized, and there is no clue as to which should be applied,

the mujtahid has to look for the nearest similarity between

the principles and the problem before he decides a judgment

by analogy. When a person on pilgrimage intentionally kills

game, he has to pay compensation; the equal compensation is

to be decided by the judge and might be based on the price

or the size of the game. The linguistic evidence supports

that the nearest principle of analogy is the size, for the

priee might change because of the different place and

time. lOG

10Glbid ., 40, 479, 512 ff.

70

In order for it to be valid there are several require­

ments for an analogy. Firstly, the person who makes an

analogy should be competent to do 50 by possessing the

knowledge of the Book of God, the Sunnah of the Prophet, the

opinions of his predecessors, the agreements and disagree­

ments of the people and the Arabie language; he should be of

sound mind and able to distinguish between closely paraI leI

precedents; he should not be hurried in expressing an opin­

ion unless he is certain of its correctness, nor refuse to

listen to those who may disagree with him, for he might be

warned against forgetfulness and be confirmed in his right

judgment; he must exercise aIl of his powers and not be

misled by his personal bias; he must understand on what

grounds he has given an opinion and on what grounds he has

rejected it; he should be balanced in accepting and reject­

ing opinions, 50 that he understands the worth of what he

accepts as compared with that which he rejects. Secondly,

the decision of the principle (1}ukm al-a!?l) must be the

original and not the dispensation. For example, in the

Qur'an when the Muslim is commanded to perform ablution, he

is told to wash his feet,107 whereas for certain reasons the

Prophet allowed people to wash only the shoes; in this case

it is not permissible to wash the hat instead of the hair on

l07Q. IV. 6.

71

the basis of an analogy with this judgment. lOS

Qiyas as a method for deriving law was known to al­

Shâficï's predecessors. However it was not until al­

Shâficï's time that qiyas had become identified with

ijtihad. While exercising ijtihad al-Shâficï' s predecessors

did not consistently use qiyas, but used other methods as

weIl, such as istihsan. According to al-Shâficï, to set

aside qiyâs and use another method in deriving law is not

permissible, for it means abandoning a clear proof in favor

of another less clear. By restricting ijtihâd to the use of

qiyâs al-Shâficï also aimed at introducing a consistent

method in the place of an arbitrary one.

The above discussion shows that al-Shâficï's legal

theory was not only influenced by the achievements of his

predecessors but was also aimed at reforming their legal

theory. As al-Shâficï believed that Islamic law is Divine

law he consistently followed revelation and limited the use

of reason. And since Islamic law is divine law, he also

argued against scholars who based their legal judgments on

arbitrary reason or who denied the authority of the Prophet­

ie traditions or inconsistently followed i t. Furthermore,

al-Shâficï established the hierarchy of the four sources of

law: the Qur'ân, the Sunnah, ijmaC and qiyas. In the period

which followed, there were many scholars who were influenced

10SIbid., 509-511, 545.

72

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by the achievements of al-Shafici in his reform of Islamic

legal theory.

73

~.

.....

CHAPTER II

THE INFLUENCE OF AL-SHAFlcr

We have seen that al-Shafi ci' s legal theory repre­

sents, on the one hand, a reconciliation of the two contro­

versial and geographically diverse law schools which had

existed before him, and on the other, it marks the victory

of the traditionalists over the rationalists. His insistence

on following revelation becomes the foundation of doctrines

developed by the later schools, especially the Hanbalïs and

the Zahirïs. These two schools base their doctrines on the

na~~ (the texts of the Qur'an and the Sunnah) and consider

the personal opinion to be of no account in the face of the

Qur'an and the Sunnah. The Zahirï school goes further, as it

follows the literaI (~ahir) meaning of the nass. In addi­

tion, Al-Shaficï' s al-Risalah apparently becomes the model

for the later usül al-fiqh works.

A. The Hanbalï School.

Ahmad ibn Muhammad ibn J:lanbal, the founder of the

J:lanbalï school, was born in Baghdad in 164/780, and received

his early education in his home town, before making several

journeys to pursue further knowledge and acquire tZ'adi­

tions. Among the teachers whose lectures he attended were

sorne famous traditionists, among them Sulayman ibn J:larb, Abü

74

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al-Nucman cArim, Abü cUmar al-~au~, Ibn al-Mubarak, cAli ibn

Hashim, Sufyan ibn CUyaynah and Ismacil ibn CUlayyah. He

went ta Yemen and met with cAbd al-Razzaq, to Rayy where he

learned traditions from Jarir ibn cAbd al-Hamid and to the

~ijaz to attend the lectures of Sufyan ibn CUyaynah. Among

his teachers was al-Shafici, whose lectures he attended when

he was in Mecca and when he visited Baghdad. Ahmad ibn

Hanbal died in Baghdad in 241/855. 1

Ahmad ibn Hanbal is best known as a scholar who based

his legal theory more on the Qur' an and the tradition and

who avoided personal opinion. He made a collection of numer-

ous traditions which he organized according to the names of

the authorities, in contrast to other weIl known collections

which are arranged according to the subjects of fiqh. Since

he strictly followed traditions and restricted the role of

personal opinion in his legal doctrine, many scholars do not

consider him as a faqIh but include his name among the

tradi tionists. cAbd al-Muhsin al-Turki has discovered many

Muslim scholars who acknowledged Ibn ~anbal as a tradition­

ist rather than as a faqIh. For instance, in his work Kitab

Ikhti1af a1-Fuqaha' al-~abari did not consider Ibn ~anbal's

opinion as authori tative. Nor did Ibn cAbd al-Barr include

his opinion for comparison among those of other fuqaha'. Ibn

lCAbd Allah ibn cAbd al-Muhsin al-Turki, Usïi1 Madhhab a1­Imam A~mad (Riyadh: Maktabat al-Riya~, n.d.); 32-36.

75

...--,.

al-Nad'im listed his name among the t.radi t.ionists and not

among the scholars of law, and in his Aqsan al-Taqasïm a1­

Maqdis'i mentioned Dawud al-Zahir'i among the fuqaha' but

included Ibn ~anbal among the tradi tionists. Ibn cAbd a1­

Barr in his al-Intiqa' only mentions the three Islamic law

scholars: Abü ~an'ifah, Malik and al-Shafic'i but not Ibn

~anbal, while in his cUmdat al-cJlrifin he mentions Sufyan

al-Thaur'i and not Ibn Hanbal as the fourth founder of an

Islamic law school. 2 However, the majority of Muslim schol­

ars regard Ibn Hanbal as one of the founders of the law

schools and associate his name with the school he estab­

lished.

Very little is known of Ibn ~anbal's works on legal

theory. The ~anbal'i legal theory was mostly developed by his

successors. Among them are Abü Bakr ibn Han'i', Abü al-Qasim

al-Kharq'i (d. 334 H.), cAbd al-cAz'iz ibn Jacfar (d. 363 H.),

Abü Yacla who wrote al-cUddah; Muwaffaq al-D'in ibn Qudamah

(d. 620 H.) who wrote al-Mughnï and al-cUmdah; Shams al-D'in

ibn Qudamah (d. 682 H.) who wrote al-Sharh al-Kabïr cala

Matn al-MuqniC; Taqy al-D'in Ahmad ibn Taymiyyah (661­

728 H.), the author of many books, among them al-Fatawa,

Minhaj al-Sunnah, al-Qiyas fi al-Sharc al-Islami and a

collection of short treatises entitled MajmüC al-Rasa' il;

Ibn Qayyim al-Jawziyyah (d. 751. H), the author of IClam al-

2Ibid ., 58.

76

(Muwaqq.iCïn can Rabb al-cAlamïn and others. 3

The main characteristic of the Hanbali school's legal

doctrine is its restriction to the na!?!?, the text of the

Qur' an and the Sunnah. Ibn Qayyim told us that among the

five legal sources of Ibn Hanbal's legal doctrine, the na!?!?

stands in the highest rank. The four other legal sources are

hierarchically as follows: the opinions (fa tawa) of the

Companions, those controversial opinions of the Companions

which are more in keeping wi th the na!?!?, an interrupted

(

(mursal) or weak (eJacïf) tradition and qiyas. 4

When Ibn ~anbal founrl a na!?!? dealing with the problem

in question, it is reported that he would give his opinion

on the basis of that na!?!? and never take into consideration

other opinions which either confirmed or contradicted it. 5

The reason why Ibn Hanbal depended so exclusively on the

nass is, according to Ibn Taymiyyah, because he believed

that for every problem faced by a Muslim there is a given

decision in the Qur'an or the Sunnah. Whoever disagrees with

the view that the na!?!? has provided a judgment for every

problem, he in fact does not know that the nass is the

statement of God and His Prophet which aimed at covering aIl

3 Subhi Mahmasani, Falsafat al-Tashrïc fi al-Islam (Beirut:Dar af-Kasnshaf, 1952), 46.

4Ibn Qayyim, IC lam al-MuwaqqiCin, 4 vols. (Cairo: MatbaCatal-Sacadah, 1955), vol. l, 29-32.

5Ibid .

77

problems encountered by human beings. 6

There are many cases which show that Ibn Hanbal was

very rigid in following the nat?f? Goldziher, quoting al-

Shacranï, relates the anecdote that Ibn Hanbal never ate

watermelon for he could not find a tradition which mentions

that the Prophet used to eat it. 7 Once Ibn Hanbal found a

nass he would not take into consideration other people' s

opinion. This is shown in his disagreement with cUmar in the

case of the right of maintenance for the thrice-divorced

wife. In contrast with cUmar's view, he was of the opinion

that the thrice-divorced wife has no right for maintenance

for there is a valid tradition which does not give such a

right to the thrice-divorced wife. He also disagreed with

Mucadh and MuCawiyah on the case of whether or not a Muslim

can inheri t from an unbeliever. Unlike Mucadh and MuCawiyah

who held the opinion that Muslim can inherit from unbeliver,

Ibn !;!anbal was of the opinion that a Muslim does not have

the right to inherit from an unbeliever because he found a

tradition which forbids Muslims to inherit from

unbelievers. 8

Ibn Hanbal placed the status of the Sunnah on the same

level as that of the Qur'an. He does not consider either one

6Ibn Taymiyyah, MajmfiC al-Fatawa, 37 vols. (Rabat: Maktabatal-Macarif, 1981), vol. XIX, 280.

7Goldziher, ~ahirïs, 77.

8 Ibn Qayyim, IClam al-MuwaqqiCïn, vol. l, 29.

78

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as superior to the other, but deems them as equally valid

sources of revelation. Accordingly, to Ibn Hanbal the tradi­

tions can never contradict the Qur'an. To support his opin­

ion that the Sunnah of the Prophet is of equal value to the

Qur'an, he quo tes Qur'an LIlI, 3-4: "Nor speaks he out of

caprice. This is naught but a reve la tion revealed." Ibn

~anbal was also in disagreement with the scholars who based

their argumentation only on the Qur'an and rejected the

Sunnah. Ibn Qayyim mentions that Ibn Hanbal composed a

treatise refuting those scholars who rejected the traditions

and argued against them, basing himself on the obligation to

follow the prophet. 9

It has been mentioned that Ibn ~anbal particularly and

his followers in general strictly followed the nass. The

problem that remains is how they explained the na~~. Accord­

ing to the followers of the Hanbalï school, as expressed by

Ibn Taymiyyah, the Qur'an is to be interpreted by the

Qur'an. This means that if in a certain passage the Qur'an

refers to a problem in a general way, in another place there

would be a detailed explanation of that problem. If there is

no such detailed explanation for a general problem men­

tioned in the Qur'an, the explanation is to be found in the

Sunnah of the Prophet. And if it is not discovered in the

Sunnah i t is permissible to refer to the opinion of the

9 Ibid ., vol. l, 291.

79

~.

Suceessors . Except for linguistic explana tions i t is not

allowed to interpret the Qur'an on the basis of reason

alone. IO

That the Sunnah serves to interpret the Qur'an has been

generally agreed upon by Muslim scholars. However, they are

in disagreement on the role of al-khabar al-ahad as to

specify the general statements of the Qur'an. Ibn ~anbal, as

did al-Shaficï, accepted the traditions related by a limited

number of transmitters and applied them in interpretation of

the Qur'an. l1

If the person who is looking for an explanation of the

Qur'an fails to find it in the Sunnah, he is allowed to

refer to the opinions of the Companions. Abu Yacla quotes

Ibn ~anbal as having said that the Companions' interpreta-

tion of the Qur'an is to be followed. The reason is that

they lived at a time when the Prophet received the revela-

tion and that they were present before the Prophet when he

explained the meaning of the Qur' an; therefore, they were

more knowledgeable about the Qur'an and their opinions can

serve as evidence. There are many examples of the Compan-

ions' interpretations which were taken as arguments by the

followers of the Hanbalï school, such as their interpreta-

10Ibn Taymiyyah, MajmüC al-Fatawa, vol. XIII, 363.

IlAbü Yacla, al-cUddah, 3 vols. (Beirut: al-Mu'assah al­Risalah, 1980), vol. II, 550-551.

80

(tion of the term "kalalah" mentioned in the Qur'anl2 as

meaning a person who neither has an ascendant nor a descend-

ant; that the last day of the three-day fast which a person

performing the ~ajj is obligated to do,13 should be the day

of cArafah; the decision that the penalty to be imposed upon

a person who kills a gazelle while on pilgrimage14 is to pay

a fine equal to a sheep, to pay with a camel (badanah) for

killing an ostrich and to pay with a male sheep for killing

a hyena. 15

ln its relation to the Qur'an, there are two roles of

the Sunnah according to the Hanbalï school. Firstly, the

Sunnah plays a role as the interpreter of the Qur'an.

Secondly, the Sunnah makes judgments about which the Qur'an

keeps silent. ln this regard the authority of the Sunnah in

establishing a legal decision is the same as that of the

Qur'an, for God has obligated people to obey the Prophet,

f

saying that to follow the Prcphet is to obey God. 16 God's

order to follow His Prophet means that Muslims should accept

12Q• IV, 12, 175.

13 Q• Ill, 196.

14 In the Qur'an (V, 95) it is mentioned that "Whosoever ofyou slays wild game wilfully, there shall be recompense,the like of what he has slain, in flocks as be judge by twomen of equity among you"

15Abü Yacla, al-c Uddah, vol. Ill, 721-723.

16Allah says: "Whoever obeys the Prophet, he obeys Allah."The Qur'an IV, 79.

81

the Prophet's judgment regarding problems for which the

Qur'an does not give a solution; otherwise, there is no

sense in there being a special order to obey the Prophet

besides obeying God. The Prophet's judgment on a problem for

which there is no explicit judgment in the Qur'an must be

accpeted, for if only those Prophetic decisions which are in

agreement with the Qur'an were to be accepted, there would

be many traditions rejected and many established practices

rendered baseless. 17

The ~anbalï school, as did al-Shaficï, recognizes qiyas

as the correct method for establishing a legal judgment. Abü

Yacla has stated that Ibn ~anbal approved qiyas for use in

legal arguments. It is true that on the authority of al­

Maymünï, Ibn Hanbal was reported to have said that scholars

should avoid two principles: al-mujmal (undefined language)

and qiyas; however, this statement does not mean that Ibn

~anbal refuted aIl kinds of qiyas. It is very possible that

Ibn ~anbal avoided qiyas only when it was contradictory to

the na??, for on the authority of Abü al-~arith, Ibn Hanbal

is reported as having said: "Why do you use reason and

analogy while it is enough for you to use the tradition?" He

is also reported to have asked al-Shaficï's opinion concern­

ing qiyas and when the latter answered that he used qiyas

only in the case of necessity (al-qarürah), Ibn Hanbal

17 Ibn Qayyim, IClam al-MuwaqqiCln, vol. II, 289.

82

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expressed his admiration over al-Shâfici's answer. 18

In his al-Qiyas fï al-Sharc al-Islamï Ibn Taymiyyah

acknowledged qiyas as one of the sources of the law. He

divided qiyas into two categories: valid qiyas and invalid

qiyas. The vaUd analogy which is applied in Islamic law

consists of giving the same judgment for two siffiilar prob-

lems or not giving the same judgment for two different

problems; the first is called qiyas al-~ard while the second

is called as qiyas al-caks. Furthermore, in Ibn Taymiyyah's

view there is no valid qiyas which is contradictory to the

Sharicah. If a qiyas which is contrary to a nass is ever

found, it must be an invalid qiyas. 19

A further explanation of qiyas was given by Ibn Qayyim

by referring to the letter of cUmar written to Abü Müsâ, in

which cUmar is reported to have instructed Abü Müsâ to

render a judgment based on qiyas if he could not find a

judgment given in the Qur'ân or in the Sunnah. Ibn Qayyim

states that this let ter was known to the Companions and none

of them denied its existence. Indeed, they were in agreement

on accepting qiyas as one of the principles of the law.

Besides his referring to the agreement of the Companion as

the basic argument for the application of qiyas, he also

18Majd al-Din Abü al-Barakât, et. al. al-Musawwadah (Cairo:Ma~baCat al-Madani, n.d.), 328.

19 Ibn Taymiyyah, al-Qiyas fï al-Sharc al-Islami (Cairo: al­MatbaCah al-Salafiyyah, 1375 H.), 6-7; Majd al-Din Abü al­Barakât, et. al. al-Musawwadah, 331.

83

based this argument on the fact the Qur'an suggests the use

of analogy. He finds passages which recommend qiyas, such

as: ·Such similitudes We coin for mankind that hapily they

may reflect.· 20

There are three kinds of qiyas: qiyas a1- c i11ah, qiyas

a1-da1a1ah and qiyas a1-shabah. Qiyas a1-c illah is a qiyas

in which a new problem is given the same judgment as the one

in the princip le case, on the basis of the same meaning. God

says in the Qur'an that He sent a messenger to the community

of Muhammad as He did to Pharaoh, but that Pharaoh rebelled

against the messenger; thus God seized him with no gentle

grip.21 In this verse God informs the community of Muhammad

that if they were to do the same thing as did Pharaoh, He

would punish them as He had done to Pharaoh. Qiyas a1-

da1a1ah is where the same judgment is given in the new case

as was given in the principle case on the basis of similari-

ties as indicated by the cause. An example is the similarity

between the growth of a plant after a rainfall and life

after death in the hereafter. God says:

And of His signs is that thou seest the earth humble;then, when We send down water upon it, it quivers andswells. Surely He who quickens it is He who q~~ckens

the dead; surely He is powerful over everything.

Qiyas a1-shabah is where the judgment in the new case and in

20Q. LIX, 2l.

21 Q. LXXIII, 15.

22 Q. XLI, 39.

84

(the principle is the same but only on the basis of similari-

ty between the two. This qiyas is referred to in the Qur'an

as being practiced by unbelievers. The latter for instance

did not acknowledge the prophecy of Noah, arguing that

physically Noah was the same as they were: "We see thee but

a mortal like us.,,23

Though Ibn Qayyim does not include ijmaC as one of the

five legal sources of Ibn ~anbal's legal doctrine, it does

not mean that the Hanbalïs deny ijmaC as a source of Islamic

law. Theoretically Ibn ~anbal accepted ijmaC, though he only

cautiously approved its existence. Abü Yacla said that

ijmaC is a certain proof and should be taken as a reference

from which i t is not permissible to differ. 24 1 t is true

that, according to one account which is related by CAbd

<:

Allah and Abü ~arith, Ibn ~anbal rejected ijmac • Regarding

this account Abu Yacla said that Ibn Hanbal's refutation of

ijmaC was merely an expression of his cautious attitude; for

there is evidence which shows that he based some of his

opinions on ijmac • When he performed takbïr from early in

the morning of the day of cArafah to the end of the days of

Tashrïk, he based his action on the ijmaC of the Companions.

He was very careful, for to him it was better to say "we do

not know someone who is in disagreement" than to say

23 Q. Xl, 27. Ibn Qayyim, [Clam al-MuwaqqiCïn, vol. l, 130­150.

24Majd al-Dïn Abü al-Barakat, et. al. al-Musawwadah, 283.

85

"there has been an agreement." The reason is that it might

be that there is someone who is in disagreement but of whose

opinion we are unaware. 25

Ibn Taymiyyah said that Ibn ~anbal did not reject aIl

types of ijma C, but only rejected the consensus of the

scholars after the Successors or after the third generation

(the Prophet, the Companions and the Successors). There is

hardly any evidence that Ibn Hanbal approved the consensus

of the scholars after the generation of the Successors. 26

From the previous discussion it should be clear that~

the Hanbalïs approve of ijmaC as one of the source of law.

The question remains however as to whose opinion cou.'.ted in

the ijmac • The authorities differ whether or not Ibn Hanbal

approved the consensus of the Muslim community in every

period as ijmli". In one account related by Ibn CAqïl, Ibn

Hanbal was reported as having said that the consensus of the

Successors and the scholars after them cannot be considered

as ijma C; but according to al-Marwadhï, Ibn Hanbal stated

that the consensus of scholars in every period is a valid

ijmac • AI-Marwadhï reported Ibn Hanbal to have said that to

obtain religious knowledge one must take from the Prophet,

from the consensus of the Companions and the consensus of

25 Ibid .

26 Ibid ., 284.

86

the Successors. 27 The J:lanbali scholars, such as Abü Yacli:i,

Abü al-Barakat and Ibn Taymiyyah are in agreement that the

consensus of all Muslims in every period is an authoritative

ijmac • 28

The preceding discussion has shown that the sources of

law according to the J:lanbali school consist in the follow-

ing: the na~~, ijmaC and qiyas. It has also been shown that

Ibn Hanbal was very strict in following nass and restricted

himself in the use of reason. Indeed, he was well known as a

scholar of tradition. The fact that Ibn Hanbal was very

strict in following na~~ and that his legal sources consist

in the same as those which are adhered to by al-Shafi ci

support the idea that al-Shafi ci has had a grea t influence

on the Hanbali school. The reason is that it was al-Shafici,

who first introduced into legal theory the principle of

following the scripture and tradition and who first re-

stricted the use of reason. Moreover, Ibn Hanbal was the

disciple of al-Shafici and admired his legal theory.29

B. The Zahir! Scheol.

The founder of this school was Dawüd ibn cAli ibn

Khalaf al-I~bahani, better known as Dawüd al-Zahiri. Very

27 Ibid ., 285.

28 Ibn Taymiyyah, Majmü C al-Fatawa, vol. XIX, 176-202; Abüal-Barakat, et. al. al-Musawwadah, 285.

29 Ibn Abi Hatim al-Razï, Adab, 80-81.

87

1"

r'..

little is known about his early life. Though the biographers

are in agreement that Dawüd al-Zahirï was born in Kufah,

nevertheless they are in disagreement regarding the date of

his birth. Sorne authorities mention that he was born in 200

A.H. while others state that he was born in 202 A.H. 30 He

grew up in Kufah, which was one of Iraq's three main cities.

He studied under the direction of the leading scholars of

the time: Sulayman ibn J:larb, cAmr ibn Marzüq, al-Qacnabï,

Muhammad ibn Kathïr and Musaddad ibn Musarhad. He traveled

to Nïsapür to study tradi tions from ISJ:aq ibn Rahawayh. 31

Sorne biographers include al-Shaficï' 5 name in the list of

Dawüd al-Zahirï's masters. This, however, is a chronological

impossibility which should be rejected. Dawüd al-Zahirï was

four years old at the most when al-Shaficï died in 204 A.H.

The reason for this assumption was probably the circumstance

that Dawüd al-Zahirï was the first writer to compose a work

on the biography of al-Shaficï and that not only was he the

scholar who continued al-Shafi cïs effort in reviving the

traditions but he was also a follower of al-Shaficï's school

before developing his own. 32

After returning from Nïsapür, he settled in Baghdad to

30al-Baghdadï, Tarïkh Baghdad, vol. VIII, 375; al-Subkï,Tabaqat al-5hafi Ciyyah al-Kubra, vol. II (Cairo: al-MatbaCahal-J:lusayniyyah, n.d.l, 42.

31al-Baghdadï, Tarïkh Baghdad, vol. VIII, 369-375.

32Goldziher, ~ahirïs, 27-28.

ss

1

teach and write. His biographers illustrate the remarkable

number of his pupils by asserting that at his place of resi­

dence there were 400 ink pots. Among the scholars who a t­

tended Dawüd al-Zahirï's lecture were Ibrahïm ibn Muhammad

(244-323 A.H.), Zakariya ibn Ya~ya al-Sajï (d. 307 A.H.),

CAbd Allah ibn al-Muflis (d. 324 A.H.) and Muhammad ibn

Dawüd (d. 297. A.H.), to mention only a few. Dawüd al-Zahirï

died in Baghdad in 270 A.H.

Although none of his works is available to us and in

spite of the fa ct that we know them only through quotations

made by other scholars, Dawüd al-~ahirï is reported by his

biographers to have composed many works. Ibn al-Nadïm in his

al-Fihrist states that Dawüd al-Zahirï was a prolific

author, listing sorne of the titles of his books as follows:

Kitab al-Icjah, Kitab al-If~ah, Kitab al-Da"wa wal-Bayyinat,

Kitab al-U~ül and Kitab al_ijaycj.33 Al-Subkï speaks of Dawüd

al-Zahirï as the first scholar to write on the biography of

al-Shaficï. 34

Though Dawüd al-Zahirï strictly followed the revelation

as a source of law, he was not highly regarded as a tradi-

tionist. This might be because of his special position. He,

unlike Ahmad ibn J:lanbal, did not have a corpus of tradi­

tions, and even though his works contain many traditions, it

33I bn al-Nadïm, al-Fihrist, vol. VI, 271.

34Al-Subkï, Tabaqat al-5hafi Ciyyah, vol. Il, 42-43.

89

(is very rare that a tradition is related on his authority.

Al-Subkï says that the only tradition which is related on

the authority of Dawüd al-Zahirï is a tradition in which the

Prophet was reported to have said that whoever dies of a

oroken heart is to be considered a martyr. 35 Sorne scholars

have tried to belittle him in other fields too. Abu al-

CAbbas Thaclab thought that Dawüd al-Zahirï possessed more

brains than solid scholarship.36

Soon after the death of its founder, th Zahirï school

spread out, especially in the eastern part of the Muslim

world. In the third and fourth Islamic centuries, it was the

fourth largest school after the schools of Abü J:!anïfah,

(

("

Malik and al_Shafi cï. 37 After its enjoyment of almost two

centuries of populari ty, in the fifth century this school

faced a challenge from the rising influence of the Hanbalï

school, headed by Abü Yacla. From that time onwards the

followers of the Zahirï school decreased in number, until

finally the school became extinct.

There is no satisfactory explanation for the ultimate

disappearance of this school. Sorne scholars suggest that its

extinction came about because of the fact that Dawüd al-

~ahirï, the founder, was accused of holding the opinion of

35 Ibid.,45.

36 Ibid .

37Abü CAbd Allah al-Maqdisï, Ahsa~ al-Taqasim (Leiden: E.J.Brill, 1909), 37.

90

the createdness of the Qur' an, which was in contrast wi th

the orthodox doctrine after the victory of A~mad ibn ~anba1

over the MuCtazilah. 38 Other scholars suggest that the cause

lies in the fa ct that Dawüd al-Zahir! denied the use of

analogy in jurisprudence and strictly followed the reve1a-

tion and the consensus of the Companions. The refusa1 to

admit the use of analogy, despite the fact that it was a

deviation from the earlier schoo1s, rendered i t di fficu1 t

for this school to give solutions for those new prob1ems

which are not mentioned in the Qur'an or in the Sunnah and

had not yet been discussed by the Companions. This fact

accordingly contributed to the unpopularity of this school,

and it final1y died out. But as it declined in the east, the

Zahir! school was gradual1y adopted by scholars in the

west. It was Ibn Hazm (384-456 A.H.) who revived this

school. 39

The main characteristic of the 1ega1 theory of the

Zahir! school is to follow li terally the Qur' an and the

tradi tions and to avoid using ana1ogy. According to Dawüd

al-~ahirI, the general rules given in the Qur'an and the

Sunnah are sufficient for al1 legal problems and whatever is

not mentioned both in the Qur'an and the Sunnah, it is not

regulated and it is left to the individual to make a

38cArif KhalIl Muhammad Abü cId, al-Imam Dawüd al-Zalliri(n.p.: Dar al-Arqam, 1984), 130.

39 Ibid .,131.

91

choice. 40

Not only did Di'iwi;d al-Zi'ihirï refuse qiyas but he also

denied taC 1ïl. Ibn Khaldün describes the doctrine of the

Zahirï school as follows:

They (Di'iwüd al-Zahirï's followers) reduced the sourcesof the law exclusively to explicitly defined points inthe Qur'an and the traditions, and to the consensus asrepresenting aIl that which the laws were supposed tocontain. They also traced back to the Book the apparentqiyas and the causality of the law, even in cases inwhich the causality as such is explicitly stated in thescripture. This means that Dawüd al-Zi'ihirï's followersdid not allow the application of anafogy and causalitybeyond the incident mentioned in the scripture, for, sothe y said, the written, stated causality, wherever itoccu~~, is nothing but the determination of a concretelaw.

Besides qiyas and ta Clï1, Dawüd al-~ahirï also rejected

taqlïd, the unconditional following of the teaching of a

certain imam or of a certain school with regard to problems

which were not explained in the valid legal sources. When

someone asked Dawüd al-~ahirï which legal school he should

follow, Dawüd al-Zahirï replied: "Take the laws from where

they themselves derive them; follow neither myself nor

Malik, Auzacï, al-Nakhacï, nor anyone else slavishly. "42

Dawüd al-Zi'ihirï was also reported to have written a work on

40Muhammad al-Khudarï, Tarïkh a1-Tashrïc al-Islamï (Beirut:Dar àl-Fikr, 1979), 227; cArif Khalïl Muhammad Abü cId, a1­Imam Dawüd al-~ahirï, 132.

41 Ibn Khaldün, al-Muqaddimah (Beirut: Dar al-Jayl, n.d.),494. The translation is quoted from Goldziher, ~ahirïs, 30.

42Goldziher, ~ahirïs, 31

92

refutation of taq1id, with the title: Kitab a1-Dhibb "an

Kitab Ib~a1 a1-Taq1id. 43

A further explanation as to why the Zahirïs follow the

texts in a literaI sense is given by Ibn l;Iazm in his a1­

Ihkam fi U~Ü1 a1-A~kam. Unlike his predecessors, who were of

the opinion that the meaning of a statement which is aimed

either at commanding (amr) or informing (khabar) depends on

other proofs in order to show its real meaning, Ibn Hazm

insisted that a statement of the nature of amr or khabar

should be understood as it is indicated by the text itself

and it must not depend on other proofs to determine the

message. He argued against scholars who do not interpret the

texts in accordance with their literaI meaning on the

grounds that the language aims at a clarification; language

is no more than words which are organized on the basis of a

certain meaning and which are intended to express a message.

To support his idea that language is aimed at expressing

meaning as such, he refers to Qur'an XIV, 4: "And We never

sent a messenger save with the language of his folk, that he

might make (the message) clear for them." He furthermore

argued that if the language could not express a certain

message, how could someone understand with any certainty the

commands of God and the Prophet or even communicate one with

another? If this were so, it would be possible for someone

43 Ibid .

93

(to state something while meaning something entirely the

opposite or confirm what he actually negates. 44

He also supported his argument on the necessi ty of

following the literaI meaning of the texts by quoting sever-

al verses of the Qur'in where God says: "Follow that which

is inspired in thee from thy Lord.,,45 This verse, according

to Ibn J:fazm, means that the Prophet was ordered to follow

the revelation literally as he received it. ln another verse

God says: "Is it not enough for them that we have sent down

un to thee the Scripture which is read unto them?;" 46 this

implies that it is obligatory to follow only what was

recited by the Prophet and that it is not permissible to go

( beyond that by exercising

tion).47

ta'wIl, (allegorical interpreta-

(

Ibn J:fazm also argues against those scholars who applied

analogy in deriving the law. He says that the basic mission

preached by the i'rophet is submission to God and that the

Prophet was only the messenger and had no right to establish

the law. Accordingly, Muslims are only to obey what God

commanded and to avoid what He forbids. The law is what Gad

has decreed in the scripture and there is no need for analo-

44 Ibn Hazm, al-Ihkam fi Usül al-Ahkam, 8 vols. (Beirut: Daral-Jïl: 1987), vôl. Ill, 301-302.'

45 Q. VI, 106.

46 Q. XXIX, 51.

47 Ibn J:fazm, al-I~kam, vol. Ill, 303.

94

.

·r·;

gy. As regards the opinion that analogy is only ta be used

to give a judgment in a case where there is no certain

decision in the Qur'an and the Sunnah, he states that there

is no neEd for analogy, as there is no religious çuestion or

legal problem which the texts do not cover. He supports his

idea by quoting Qur' an IV, 3: "This day have l perfected

your religion for you and completed My favour unto you;"

similarly: "We have neglected nothing in the Book (of Our

decrees) ; ,,48 and: "And We have sent down to thee the Remem­

brance that thou mayest explain to mankind what was sent

down to them.,,49 It is reported that the Prophet on his last

Pilgrimage shortly before his death, declared that had given

to the community aIl the messages. sO Ibn Hazm also disagrees

with those scholars who, in applying analogy, divided the

cases before them into the principle and the new conditions,

for according to him in legal questions there is no case

other than principle and aIl of these are mentioned in the

texts. s1

Although Ibn Hazm was of the opinion that there is a

cause (sabab) for a certain law, he was in disagreement with

scholars who held the opinion that behind every law there is

48 Q. VI, 38.

49 Q. XVI, 44.

sOIbn ~azm, al-I~kam, vol. VIII, 487-488.

sl Ibid ., 488.

95

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(

a ratio legis ('ïllah). He says that God decrees a law

without any reason. He found that none of the Companions,

the Successors or the Successors of the Successors held the

opinion that behind the law there is a reason. The latter

opinion was only developed by the later scholars who promot­

ed analogy as the method of deriving the law. 52

Ibn Hazm also did not allow taqlïd, saying that it is

not permissible to follow a person save the Prophet; indeed

taqlïd is a wrongdoing because it means to follow a person

whom God has not ordered us to do 50. Furthermore, he argues

that there is no difference between someone who follows a

certain scholar and another person who follows another

scholar. If they are the same and have no ability to deter­

mine which one of the scholars is more knowledgeble, it is

not true the claim that a certain scholar whom someone

follows has a better understanding of the law than another

scholar which is followed by another person. If it is per­

missible to follow every scholar, there will be great confu­

sion over religious issues, for someone might obtain a

judgment from one scholar which is exactly opposite that

given by another scholar. Ibn ~azm also supports his idea of

not allowing taqlïd by quoting several verses of the Qur'an

which, he believed, shed light on this problem. Among these

is a verse wherein God forbids us to have a pstron other

52 Ibid ., vol. VIII, 561-562.

96

than Himself, saying:

The likeness of those who choose othe>r patrons thanAllah is as the likeness of spider that takes to itselfa house, and lo! the frailest of aIl houses is thespider's house. 53

According to Ibn ~azm, whoever takes another as his leader

and then compares the latter' s opinions wi th those of God

and the Prophet, accepting those which agree with the

opinions of God and the Prophet and rejecting those which do

not, even while still acknowledging that these opinion are

decreed by God, this still means that he has taken a patron

other than God, which is not allowed.

In the Qur'ân, a proof is considered as very important.

God says: "Then produce your writ, if ye are truthful;,,54 and

says: "Say: 'Bring your proof (of what ye state) if y<= are

truthful' ... 55 Ibn ~azm says that whoever does not take the

Book of God as his reference and as a proof of his opinion,

he is not truthful but a liar and a liar to God. Whoever

follows another mas ter and does not follow the Book and the

Prophetie tradition, he goes astray.56

Dâwüd al-Zâhirï' s legal theory, following as i t does

al-ShâfiCï's teaching, contains many elements which are

53Q• XXIX, 41.

54Q. XXXVII, 157.

55Q• II, 111.

56 Ibn ~azm, al-I~kam, vol. VI, 273-275.

97

similar to those in al-Shaficï' s legal theory. Dawüd al-

Zahirï unquestionably followed, as did al-Shaficï, the

Qur'an and the Sunnah and aeeepted ijmac • However Dawüd al-

Zahirï earried his arguments to an extent mueh further than

al-ShafiCï himself or his followers ever would have wanted

to go. Dawüd al-Zahirï understood the texts literally,

rejeeted taC 1ï1 and analogy as a method for deriving the law

and refused taq1ïd.

It is true that al-Shaficï urged people to follow the

~ahir meaning of the texts and that he is reported to have

written a work entitled: Kitab al-Hukm bi al-Zahir. 57 Howev-. .er the term zahir, aeeording to al-Shaficï, only means an

interpretation of a given passage whieh, for internaI and

external reasons, is the most probable of aIl by reason of

the arguments supporting i t. 1 t is eonsequently something

whieh should be ealled rajii} and not ~ahir, aeeording to

Dawüd al-Zahirï's interpretation of the word. Al-Shaficï was

also reported to have forbidden taq1ïd, but for people who

were not qualified to exereise ij tihad by themselves, he

eounseled them to folIo'" the seholar who is qualified to

perform ijtihad. 58

The faet that the Zahirïs strietly followed the naEfEf

and refused the use of reason shows thélt this school was

57 Ibn al-Nadïm, al-Fihrist, vol. VI, 264.

58al-Shaficï, al· '?isa1ah, 511.

98

influenced by al-Shaficï. The reason is that it was al­

Shaficï, who for the first time, insisted on strictly fol­

lowing the Qur'an and traditions and on restricting the use

of reason. Al though al-Shaficï did not rej ect the use of

reâson as did the ~ahirïs, to sorne extent he influenced

them. For it was he, who for the first time, restricted the

use of reason and rejected arbitrary reasoning. In this case

he had paved the way for the ~ahirïs to totally reject the

use of reason. The idea that the Zahirïs was influenced by

al-Shafici is also supported by the fact that Dawüd

al-Zahiri was a follower of al-Shafici' s school before he

developed his own.

C.U~ül al-Fiqh After al-Shaficï

In short, the legal theory developed by al-Shaficï is

based on two principles: an insistence on following the

scripture and traditions and a restriction on the use of

reason. What is more, al-Shafici established the hierarchy

of the four sources of law: the Qur' an, the Sunnah, ijmaC

and qiyas. In the period which followed, al-Shafici's legal

theory influenced the later development of usül al-fiqh.

However, this does not mean that after al-Shaficr, there

were no significant developments in this field.

As regards discussion of language, such as the general

(C amm ) and particular (kha~~) meaning of the word, later

scholars are in agreement with al-Shafici. Almost aIl schol-

99

ars who wrote works on u!ful al-fiqh discuss this matter on

the terms which al-ShiHicï set. On the subj ect of abroga-

tion, however, not aIl scholars are in agreement with al-

ShafiCî's theory. According to al-Shaficï, the Qur'an is

only abrogated by the Qur'an, just as the Sunnah is only

abrogated by the Sunnah. Al-Shïrazï holds the same opinion

as that of al-ShiHi cï, 59 whereas Ibn J;lazm60 , al-Sarakhsï61

and al-Ghazalï 62 state that the Qur'an might be abrogated

either by the Qur'an or by the Sunnah, just as the Sunnah

might also be abrogated either by the Sunnah or by the

Qur,an. Their explanation is that the Qur'an and the Sunnah

are both revelation, and therefore they can abrogate one

another.

The contributions of al-Shaficï in the field of tradi-

tian are as follows: the introduction of the concept of the

Sunnah as exclusively meaning the Sunnah of the Prophet, the

insistence on accepting al-khabar al-wâqid and the harmoni­

zation of seemingly contradictory traditions. As regards the

concept of the Sunnah, the later scholars differ. Some

scholars are in agreement wi th al-Shaficï. Ibn Hazm63 and

59al-Shïrazï, Sharq al-Luma c , vol. 1, 501.

60 Ibn J;lazm, al-Iqkâm, vol. IV, 505.

61al-Sarakhsï, U!ful, vol. Il, 67.

62al-Ghazalï, al-Musta!ffâ, vol. 1, 124.

63Ib~ ~azm, al-Iqkâm, vol. I, 93.

100

al-Ghazalï64 are among the scholars who state that the

Sunnah exclusively means the Prophet's traditions. Al­

Sarakhsï, on the other hand, held an opinion which was

similar to the old doctrine. He said that it is not neces-

sary that the Sunnah should exclusively mean the Prophet's

tradition, but that it includes the tradition of the Compan­

ions as weIl. He supports his opinion by quoting a tradition

where the Prophet includes any tradition under the term

"Sunnah," saying: "Whoever introduces a good tradition, he

will receive a reward for his good deed and for his setting

a good example, and whoever introduces an evil tradition he

will receive a punishment for his evil conduct and for his

bad example." The Prophet was also reported as having

.....J:.

instructed people to follow his traditions and the tradi­

tions of the Companions. 65

As has been mentioned in the previous discussion,

al-Shafici argued for the acceptance of a1-khabar a1-wahid

as a valid proof. On this matter, later scholars engaged in

an intense debate. Although they were in agreement that a1­

khabar a1-wahid should be considered as a valid proof and

that the judgment based on it should be accepted, neverthe­

less they were in disagreement over whether or not a1-khabar

64al-Ghazali, a1-Musta~fa, vol. l, 129.

65al-Sarakhsï, U~U1, vol. l, 113 .

101

al-wahid leads to certain knowledge. Ibn Hazm66 was of the

opinion that al-khabar al-wahid leads to certain knowledge

and therefore must be used in any judgment, whereas al­

SarakhsI,67 al-GhazalI 68 and Abü Yacla69 were of the opinion

that although al-khabar al-wa~id should be used, it does not

lead to certain knowledge.

Al-ShafiCI's idea to harmonize the seemingly contradic-

tory traditions attracted the attention of many later schol-

ars. Ibn Qutaybah wrote a work entitled Kitab Ta'wil Mukhta­

laf al-~adïth,70 and in almost every u~ül al-fiqh work there

is a chapter which discusses this matter. This shows that

al-ShafiCI's effort to revive the traditions was supported

by later scholars. These scholars, like al-ShaficI, did not

reject traditions on the grounds that they contradict

:.t"

either the Qur'an or other traditions, but rather tried to

harmonize them.

According to the old doctrine, ijmaC means the consen-

sus of the scholars. The Medinese scholars restricted ijmaC

to mean the consensus of t~e scholars of Medina. Although in

theory the lraqi scholars insisted on universal consensus,

66 lbn ~azm, al-I~kam, vol. l, 112.

67al-SarakhsI, U~ül, vol. l, 112.

68al-GhazalI, al-Musta~fa, vol. l, 145.

69Abü Vacla, al-cUddah, vol. Ill, 898.

70Published in Cairo 1909.

102

.,':.--

in reali ty they restricted ijmaC to mean the consensus of

the scholars of their own 10cality.71 Al-Shiificï rejected

the concept of ijma C as the consensus of the scholars and

even denied its existence. According to al-Shiificï, ijmaC is

the consensus of the community at large.

Soon after his death, al-Shiificï' s doctrine that ijmaC

is the consensus of the community at large quickly fell out

of favor. Later scholars held the same opinion on ijmaC as

had the earlier scholars, saying that ijmaC is the consensus

of the scholars as representatives of the community. The

Ziihirïs even acknowledged only the consensus of the Compan­

ions 72 and A~mad ibn ~anbal, according to one account, ap­

proved only the consensus of the Companions and the Succes­

sors. 73

Insisting on strictly following the revelation, al-

ShiifiCi restricted the using of reason for deriving law. He

approved only qiyas as the method in exercising ijtihad and

he rejected isti~san. Concerning qiyas, later scholars are

in disagreement. Many say that qiyas is a valid method for

71Schacht, Origins, 82-85.

72 Ibn ~azm, al-I~kam, vol. IV, 539.

73Majd al-Din Abü al-Barakiit, et. al. al-Musawwadah, 285 .

103

deriving law. Al-Shïrazï,74 al-Sarakhsï,75 Ibn Taymiyyah 76

and al-Ghazalï 77 are among the scholars who accept qiyas as

such. The ~ahirïs, however, rej ected qiyas and restricted

the sources of law to the Qur'an, the

ijmac • 78

tradi tions and

Later scholars are also in disagreement over the issue

of istihsan. Ibn ~azm,79 Ahmad ibn Hanba1 80 and al-

Ghazalï8l rej ect, as did al-Shaficï, istiJ;san, whereas al-

Sharakhsï, Ibn Taymiyyah and al-Sha~ibï approve of istihsan

as a valid method for deriving law. However, it is important

to note that istihsan as understood by the later scholars is

different from istihsall as al-Shaficï understood i t. The

istihsan which was rejected by al-Shaficï was that which set

aside qiyas in favor of personal preference; while according

to the later scholars, istihsan is not an arbitrary exer­

cise in personal preference but rather a branch of qiyas. 82

74al-Shïrazï, SharJ; al-Lumac , vol. II, 760.

75al-Sarakhsï, U~ül, vol. II, 65.

76 Ibn Taymiyyah~ al-Qiyas, 6-7.

77al-Ghazalï, al-Musta~fa, vol. II, 234.

78 Ibn ~azm, al-IJ;kam, vol. VIII, 487-488.

79 Ibid ., vol. VI, 192-193.

80 Abü al-Barakat, et. al. al-Musawwadah, 403.

8lal-Ghazalï, al-Musta~fa, vol. l, 137.

82Mohammad Hashim Kamali, Principle of Islamic Jurisprudence(Cambridge: Islamic Texs Society, 1991), 252.

104

.0,.;.

Al-Sarakhsï states that istihsan consists in a judgment

where an established analogy may be abandoned in favor of a

superior proof, namely, the Qur' an, the Sunnah, necessi ty

(darûrah) or a stronger qiyas. According to Ibn Taymiyyah,

istihsan does not mean to give a judgment without basing

oneself on the revelation, for istihsan, in his view, is

nothing but the abandonment of one legal norm (q.ukm) for

another which is considered stronger on the basis of the

Qur'an, the Sunnah or consensus. Al-Sha~ibï holds the opin-

ion that istihsan does not mean the pursuit of one's desire,

as it is alleged by al-Shaficï; on the contrary, a jurist

who understands istiq.san has a profound understanding of the

intention of the Lawgiver. When the jurist discovers that a

strict application of analogy to a new problem leads to a

1055 of maslahah and to a possibility of hardship, he must

set aside qiyas and resort to istihsan. 83

The previous discussion has shown that the legal theory

developed by al-Shaficï had a great influence on the law

schools that emerged after him. Al-Shaficï's insistence on

strictly following the revelation and the limitations he

placed on reason were adopted by the founders of the later

law schools. AJ;mad ibn J:lanbal, the founder of the Hanbalï

school developed his legal thought on the princip le of

rigidly following the nass and restricting the use of rea-

83al-Shatibï, al-Muwafaqat, vol. IV (Cairo: al-Maktabah al­Tijariyyah al-Kubra, n.d.), 206 .

105

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son. Indeed, he was weIl known as a tradi tionist. Diiwüd

al-~iihiri, the founder of the Ziihiri school also based his

legal theory on the principle of strictly following the

scripture and traditions. He even refused to consider qiyas

as a method for deriving the law and literally understood

the nass. Al-Shiifici's effort to define the relation of

reason to revelation is also widely accepted by the later

scholars. According to al-Shiifici, the only valid method by

means of which the jurist can exercise his reason is qiyas.

The fact that in later times istihsan is not considered as

an independent method, as it was before, but rather as a

branch of qiyas, shows the success of al-Shiifici's thesis.

106

.~

CONCLUSION

By the second century of the Islamic era, the develop-

ment of Islamic law began to proceed along geographical

lines. The most important geographical law schools were the

Iraqi and the Medinese schools. These schools started their

development from a review of the local practice in the light

of the principles of conduct enshrined in the Qur'an. From

this review of the existing practice, a body of lslamic

legal doctrine gradually took shape. lt was at first based

on personal reasoning, the ra'yof individual scholars, but

as time passed the authority of this personal opinion was

based on firmer foundations. With the graduaI growth of

agreement among the scholars of a particular locality, the

doctrine was expressed as the consensus of opinion existing

in the school. Then, as the consensus became firmly estab-

lished over the course of years, the concept of the sunnah

of the school appeared.

As regards the development of the jurisprudential

method there were two trends. First, in the interest of

consistency and coherence of doctrine, legal reasoning

became systematic, while arbitrary reasoning, ra'y, gradual-

ly gave way to qiyas. Practical consideration, however,

often necessitated a departure from strict qiyas. Where the

scholars made equitable concession or preferred sorne other

consideration to qiyas, i t was called istihsan. This term

107

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represented a return ta freedom of ra'Y; in fact these twa

terms were at first used synonymously. Isti1}siin, however,

represents a more advanced development of legal thought,

since it presupposes as normal the method of reasoning by

analogy.

The second trend was a growing emphasize on the notion

of the Sunnah. ln order ta consolidate the idea of tradi-

tion, the doctrine was represented as having roots stretch-

ing back into the past, and the authority of the previous

generation was claimed for its current expression. Although

such authority was at first anonymous, increasing formalism

soon attached specifie names to the doctrine. lt was pro-

jected backwards through intermediate links to the early

generations of Muslim. Eventually and inevitably the process

ended in claiming the authority of the Prophet for the doc-

trine. This second trend was weIl represented by the Medi-

nese schaol while the previous trend was represented by the

lraqi schaol. These two schools were often in conflict

because of their different trends. l

Al-ShafiCI's legal theory is a continuation of the

achievements of his predecessors. Al-ShaficI, however, de-

veloped his legal theory more consistently. He based it on

two principles: an insistence on following the scripture and

lCoulson, History of Islamic Law, 36-53; Schacht, Origins,1-34.

IDS

.._-'

tradition and a restriction on the use of reason. According

to al-Shaficï, there are hierarchically four sources of law:

the Qur'an, Sunnah, ijmaC and qiyas.

Since there was already a general agreement concerning

the Qur'an as a source of the law, it was not necessary for

al-Shaficï to argue with a view of establishing its authori­

ty. He rather needed to introduce methods for its elabora­

tion, such as the rule of abrogation, or the meaning of the

general and particular language. As concerns the Sunnah.

however, al-Shaficï had to defend the authority of the

Prophet as another source of the law. It is true that before

al-Shaficï there was an increasing growth in the number of

Prophetie traditions but i t was not until al-Shaficï tha t

the concept of the Sunnah as the ProphetJ c tradi tion re­

ceived its flrm foundation and won out against the concept

of the Sunnah as a natural development from ra'y to ijmaC to

sunnah. Ijma C, for its part, according to al-Shaficï, is the

consensus of the community at large and not the consensus of

the scholars. Here, al-Shaficï again departs from his prede­

cessors who held the opinion that ijmaC means the consensus

of the scholars of a certain locali ty. Finally, al-Shafi cï

limited the method of deriving the law only to qiyas and

rejected isti~san.

By insisting on the authority of revelation (the Qur'an

and the Sunnah of the Prophet) as the exclusive source of

the law, and by arguing that qiyâs is the only valid method

109

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for deriving the law and maintaining that ijmaC is the

consensus of the community, al-Shaficï wanted to achieve two

goals. Firstly, he wanted to reconcile the basic conflict of

the two schools which until then had followed different

trends. He took the concept of tradition from the Medinese

school and incorporated it into his legal theory, while at

the same time adopting qiyas from the lraqi school. Second­

ly, he wanted to unify lslamic law and limit the differ­

ences. He insisted on qiyas as a consistent method, rejected

is tihsan as a form of arbi trary reasoning and limi ted the

differences by emphasizing ijmaC as the consensus of the

community.

lt seems that al-Shaficï's insistence on following

revelation and on restricting the use of reason had a great

influence on the subsequent development of lslamic law. The

founders of law schools, especially the J:lanbalï and the

~ahirï, adopted the princip les which were developed by

al-Shaficï. Ahmad ibn Hanbal based his legal theory on the

same principles as those of al-Shaficï. He strictly followed

the Qur' an and Sunnah and restricted the use of reason.

Since he was very rigid in following the na~~. he was weIl

known as a traditionist. Dawud al-Zahirï also developed his

school on the principle of following the scripture and

tradi tions. He was reported to have followed the literaI

meaning of the Qur'an and the Sunnah and to have refused to

consider human reasoning as a source of law. Al though not

110

all aspects of al-Shiifici' s theory gained acceptance among

the later scholar, they were nev"!rtheless the follower of

al-Shiifici in the efforts at defining the relation of the

revelation to reason.

111

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