Академический Документы
Профессиональный Документы
Культура Документы
Edited by
Peter Sluglett
LEIDENBOSTON
2014
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CONTENTS
Happy Memories of Bernard Weiss ..........................................................
Peter Sluglett
vii
xv
PART ONE
19
39
55
105
PART TWO
129
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contents
143
177
PART THREE
199
231
257
PART FOUR
285
317
331
Index ...................................................................................................................
361
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PART ONE
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1I would like to thank Gregor Schwarb for his helpful comments on a draft of this
paper. Montesquieu, The Spirit of Laws (De lesprit des lois), 1:1.
2Montesquieu, The Spirit of Laws, 1:2.
3For a succinct overview of the pre-Islamic history of the natural law concept, see
Frank Grifffel, The Harmony of Natural Law and Shara, 3942.
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lived in the early tenth century c.e. (late third and early fourth Hijr century). Kevin Reinhart has shown that a subsection of the Shfi school in
this period had evidently adopted a Mutazil theological outlook, giving
rise to what he calls speculative Shfiism.4 Secondary sources indicate
that these Mutazil-inclined scholars produced some of the earliest works
on legal theory (ul al-fiqh) to be written after al-Shfis (d. 204/820)
Rislah. Of these, no major works seem to have survived. However, by
piecing together evidence from two newly available sources, most importantly a short but complete legal-theoretical text from the first half of the
tenth century, we are able to reconstruct in some detail a coherent legal
theory that reveals the role played by rationalist theology in tenth-century
Shfi law.
An analysis of these sources reveals that at least one prominent strand
of Shfi legal theory in this period was not merely influenced by, but
indeed fundamentally embedded in, rationalist theology. George Makdisi
has claimed that for al-Shfi legal theory represented an alternative to
theology;5 but it seems clear that by the fourth/tenth century, many of
al-Shfis successors considered it part and parcel of a broad theological
system. Within this system, the proposition that the sacred law promotes
human benefit (malaah) occupied a central position: it served to justify both the overall rationality of the law and the practice of analogical reasoning (qiys). However, for tenth-century Shfis the concept of
malaah remained a theoretical construct and was not employed as a
practical tool of legal reasoning. Counterintuitively, the systematic utilization of malaah as a device in analogical rule derivation seems to have
begun among Shfis after the decline of Mutazil ethics and with the rise
of Ashar ethical subjectivism.
II.Legal Theory and Theology among Early Shfis
Al-Shfi was intensely critical of the kalm theology of his day, both form
and content.6 His condemnation did not, however, deter his students
from taking up positions on the heated debates of the third/ninth century. Ab Yaqb al-Buway (d. 231/846), Ab Al al-Karbs (d. 248/862),
Isml b. Yay al-Muzan (d. 264/877), and Ab Abd al-Ramn al-Shfi
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(d. after 230/845) all appear to have voiced opinions regarding the controversial Mutazil thesis of the createdness of the Quran. Al-Buway
unequivocally rejected the thesis,7 while al-Karbs and al-Muzan
endorsed an intermediate position according to which only the utterance
(laf) of the Quran was created.8 Ab Abd al-Ramn, in contrast, not only
afffirmed the createdness doctrine wholeheartedly, but became an open
Mutazil and acted as the right-hand man of the imperial grand judge Ibn
Ab Duwd (in offfice probably 218237/833851 or 852) in enforcing the
Quranic inquisition (minah),9 an occupation that caused much embarrassment among the Shfis both at the time and afterwards.10 But the
opprobrium heaped upon Ab Abd al-Ramn should not be interpreted
as evidence that Mutazil ideas in general were considered anathema by
the Shfis in the period that followed the inquisition. Particularly in the
realm of legal theory, the opposite appears to be the case.
A preliminary indication of this is provided by the remarkable dearth
of extant works on Shfi legal theory from this period. We know of a
number of works on legal-theoretical topics that were composed before
the mid-tenth century,11 but already al-Zarkash (d. 794/1392) had diffficulty in finding anything beyond single copies of a handful of these texts
for his encyclopedic work on Shfi ul al-fiqh.12 The most likely reason
for the disappearance of these works lies in the theological attitudes that
they displayedattitudes rooted in Mutazil ethics, which came to be
considered unacceptable by later generations of Shfi jurists. This theory
is supported by the fact that the only hitherto found fragments of legaltheoretical writings from the early period have survived as part of works
on positive law. Ibn Surayjs (d. 306/918) al-Wadi li-man al-shari, a
work primarily concerned with the recitation of uncontroversial points of
law, contains a small addendum on legal theory; however, this is silent on
the contentious theological issues that are the subject of this study.13
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My analysis here draws on two primary sources that have thus far
received little or no attention, but which offfer an unparalleled insight into
early Shfi legal theory. These sources are al-Aqsm wa-l-khil by Ab
Bakr Amad b. Umar b. Ysuf al-Khaffff, and the recently edited Masin
al-sharah by al-Qafffl al-Shsh.14 While al-Qafffl is a well-known midtenth-century Shfi jurist (he died in 365/976), very little is known about
al-Khaffff. He is said to have belonged to the generation of Ibn Surayjs
students and to have been a contemporary of Ibn al-addd (d. 345/956
or 957), so he probably lived a few decades earlier than al-Qafffl.15 He
is also widely recognized as the author of a work titled al-Aqsm wa-lkhil.16 This short work exists in the Chester Beatty Library in Dublin as
a single water-damaged manuscript that the catalog mistakenly attributes
to Ibn Surayj.17 Al-Aqsm wa-l-khil is a book of fiqh, but it is prefaced
by a remarkable 3,000-word introduction, Muqaddimah, which contains
a concise but complete exposition on legal theory. The Muqaddimah
represents, to my knowledge, the oldest extant work of this kind after
al-Shfis Rislah and al-Buways abridgement of the Rislah. It discusses explicitly, under the rubric of ul al-fiqh, many of the core topics
of mature legal theory that are missing from the Rislah, such as the dtawtur distinction, types of ijm and qiys, the nature of the imperative
(amr), ambiguous expressions (mujmal), previous divine laws (shari
man kna qablan), legality in the absence of revelation (al-ashy qabla
maj al-shar ), and legal conformism or taqld.
What is most striking about the Muqaddimah is the fact that it places
legal theory squarely within a theological framework. Al-Khaffff begins
the text with the thesis that the permissible and the impermissible are
recognized from two angles, one of them reason, the other revelation
14For another discussion of the value of the Masin, see Kevin Reinharts paper in
this volume.
15This information is contained in a single-sentence entry in al-Shrzs abaqt
al-fuqah, 114. Subsequent biographers all drew on this source; see, for example, al-Isnaw,
abaqt al-shfiiyyah, 1:464465. Ferdinand Wstenfeld seems to have had access to a further manuscript of al-Isnaw that describes al-Khaffff as a contemporary of Ibn al-addd;
see Wstenfeld, Der Imm el-Schfi, 19. jj Khalfah mistakes the anaf jurist al-Khaf
for al-Khaffff, and attributes to the latter al-Khafs death year of 261/874; see jj
Khalfah, Kashf al-unn, 2:1416.
16See, for example, al-Zarkash, al-Bar al-mu, 5:42, and the works mentioned in the
previous note.
17Al-Khaffff s name is recognizable on the first page of the manuscript. Also, classical
Muslim authors cite the work and attribute it to al-Khaffff; see previous note. I am in the
process of editing the Muqaddimah for publication.
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22Josef van Ess has found some evidence that usage of the term illah to denote causality in law predates al-Shfi; see van Ess, The Logical Structure of Islamic Theology. On
al-Shfis use of man, see Lowry, Early Islamic Legal Theory, 150152.
23al-Qafffl al-Shsh, Masin al-sharah, 27.
24al-Qafffl, Masin al-sharah, 25. The term virtuous governance (al-siysah
al-filah) is unusual in legal discussions and indicates that al-Qafffls argument transcends the purely legal realm, an issue that is investigated below.
25al-Rz, al-Mal, 5:175177. See also al-akm al-Tirmidh, Ithbt al-ilal, 69.
26See, for example, al-Ashar, Maqlt al-islmyyn, 575.
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27See Brunshvig, Mutazilisme et optimum (al-ala); Zysow, Two Theories of Obligation, 400.
28Istathara Allh bi-ilmih: al-Qafffl, Masin al-sharah, 26; al-Khaffff, al-Aqsm
wa-l-khil, fol. 4a.
29Zysow, Two Theories of Obligation, 399400.
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35Muammad Zhid al-Kawthar (d. 1952) already argued that the concept of malaah
among the Mutazils served a theological rather than a practical legal purpose in Athar
al-urf wa-l-malaah, 239243.
36al-Qafffl, Masin al-sharah, 261. The edited text reads taqruba/tuqarriba al, but
I have changed the preposition based on a manuscript of the Masin that was not used
by the editor (Yale University, Beinecke Rare Book and Manuscript Library, MS Landberg
614, fol. 72b). I am grateful to Kevin Reinhart for allowing me to consult his copy of this
manuscript.
37al-Qafffl, Masin al-sharah, 27.
38al-Qafffl, Masin al-sharah, 540.
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benefit could be used in the actual determination of legal causes for the
purpose of analogy.
Al-Qafffls theory of benefit bears a strong resemblance to that developed by his contemporary anaf legal theorist Ab Bakr al-Ja
(d. 370/980). Al-Ja distinguished between causes of benefit (ilal
al-mali) and causes of the rule (ilal al-ukm).39 Like al-Qafffl, al-Ja
deduced the beneficiality of the law in general from Gods attribute of
wisdom. The benefits of the details of the law, however, could not be
deciphered through reasoning. It was enough to know that they necessarily had to exist, flowing from the premise of a wise God. Al-Jas
teacher, Ab al-asan al-Karkh (d. 340/952), put forth a similar distinction between what he called the causes of a rule (ilal al-ukm) and the
wisdom of a rule (ikmat al-ukm), emphasizing that the wisdom of a rule
could not be used to establish its cause.40
The distinction between, on the one hand, the specific cause of a legal
ruling and, on the other, the overall purpose served by the ruling reveals
a particular understanding of the nature of legal causes. This sign model
of the cause treats legal causes as arbitrary signs, set by God, that are
not ontologically connected to the underlying reasons of the divine law,
like names lacking an inherent connection to their referents. The function of such causes is to act as markers that enable the jurist to generalize the known ruling in one case to other, similar cases that share the
same salient feature, i.e. the same cause. Knowing that the law in general
serves human welfare, the jurist can also speculate about the nature of the
broader benefit provided to humankind by the ruling. However, this
unlike the determination of the legal causeis mere conjecture. Within
the sign model, considerations of benefit can thus have no practical role
in the identification of legal causes and the practice of analogy.41
The sign model of the cause was by no means universally held by early
Shfis: Ab Al b. Ab Hurayrah (d. 345/956), for example, is reported
to have adhered to the alternative motive model,42 according to which
legal causes correspond in a direct and often intelligible way to the overall
policies served by legal rulings. Nonetheless, we know that the sign model
was adopted by at least some prominent Shfi scholars in this period.
In particular, Ab Bakr al-ayraf, one of the most influential speculative
Shfis of the early tenth century, is reported to have adhered explicitly to
39al-Ja, al-Ful f al-ul, 2:291293.
40al-Karkh, al-Ul, 172.
41Zysow, Economy of Certainty, 374390.
42Zysow, Economy of Certainty, 374390.
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the sign model,43 which indicates that for him, too, the practice of analogy
could not utilize considerations of benefit. Although al-Qafffl was more
willing to speculate on the underlying benefits of the law than al-Ja
and al-Karkh, he stressed the speculative nature of these interpretations
and the polemical project that they served as a justification of the law
against antinomian threats.44 Whether or not al-Qafffl also endorsed the
sign model (the fact that he adhered to al-ayrafs legal theory suggests
that he did),45 this certainly indicates that he did not view the principle of
benefit as representing a useable element in the methodology of analogy.
V.Dialectics as an Alternative Juristic Tool
Al-Khaffffs work, like al-Qafffls, offfers insuffficient information to determine conclusively whether he adhered to the sign model of the cause.
However, it is clear that his discussion on the ascertainment of legal causes
makes no mention of benefit. In contrast, he deals extensively with a very
diffferent technique, namely dialectics ( jadal).46 Aristotelian dialectics
made its first appearance in Islamic thought in the field of theology with
Ibn al-Rwands (d. mid-third/ninth century) Adab al-jadal, and it was
subsequently adopted into law. The topic of jadal takes up about a fifth
of the whole Muqaddimah. The importance of jadal in al-Khaffff s work
correlates with the information that we have about other early Shfis
engagement with the subject: al-Qafffl, Ibn al-Q, and Ibn Ab Hurayrah
all composed independent treatises on jadal in law,47 and may thus have
been the first jurists to adopt this originally theological methodology.
Al-ayraf also wrote on and endorsed the practice.48 It is noteworthy that
the Shfis apparent enthusiasm for jadal in law was not shared by many
scholars outside the school, who viewed the technique with reservation.49
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While juristic jadal provides the framework for disputes on any source
of the law, in actual practice the most discussed topic was the process
of analogy and especially the verification of the legal cause. By the very
nature of the method of jadal, the verification process was formalistic.
The primary way of arguing for a legal cause was to demonstrate its consistency (ard, i.e. whenever the cause is present, the legal qualification
is present) and convertibility (aks, i.e. whenever the cause is absent, the
legal qualification is absent).50 The legal cause used for the tests of consistency and convertibility thus had nothing to do with the presumptive
benefit provided by the rule in question.
It is plausible that the Shfis adoption of the formalistic method of
jadal is connected to the terminological shift, mentioned above, from
underlying reason (man) in al-Shfis Rislah to legal cause (illah) a
century later. As Aron Zysow has already pointed out, the fascination of
early Shfis with consistency and convertibility in the ascertainment
of legal causes springs from the application of the standards of rational
causes to legal ones.51 It seems that the introduction of the term illah
into Shfi legal theory went hand in hand with a new view of the basic
unit of analogical reasoning: if it was a cause, rather than a more nebulous
meaning (man), then it could be verified the way that natural causes
were verified, namely through formalistic means. The method par excellence for such a procedure was jadal.
In contrast to the apparent non-use of the principle of benefit in verifying legal causes, there is therefore extensive evidence that early Shfis
used the formalistic method of jadal as the basis of analogical reasoning.
This adoption of a theological method into law lends further support to
the thesis that tenth-century Shfis integrated law both substantially and
methodologically into a theological system.
VI.Al-Ghazls Theory of Benefit
The advent of Asharism transformed the theory and use of malaah
among the Shfis. The change is evident when comparing the theories
of al-Khaffff and al-Qafffl with that of Ab mid al-Ghazl (d. 505/1111)
about a century and a half later. While for the early Shfis the assumption
of the beneficial nature of the law flowed necessarily from premises
50Zysow, Economy of Certainty, 367369.
51Zysow, Economy of Certainty, 370.
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about divine nature, as an Ashar, al-Ghazl denied any such connection. Al-Ghazl did acknowledge that reason could distinguish between
harm and benefit in this world, and that it directs mankind towards pursuing benefit and avoiding harm. However, in contrast to the Mutazils,
al-Ghazl denied that the prescriptions of reason impose constraints on
Gods actions or commands. He nonetheless afffirmed that the promotion
of human benefit does indeed underpin the sacred law; and he arrived at
this conclusion through induction on the basis of the known rules of the
sharah.52 Al-Ghazls legal methodology thus consisted of a bottom-up
inferential process that used textually established rules to grasp the spirit
of the law and then employed these insights as guiding principles for its
further elaboration. He termed this technique of evaluating presumptive
legal causes against such overall policies of the law the test of appropriateness (munsabah).53
Al-Ghazl was not opposed to the formalism of consistency and
convertibility tests (ard wa-aks), as his Ashar predecessor Ab Bakr
al-Bqilln (d. 402/1013) had been. Rather, he considered consistency and
convertibility to be simply the outward indicators for the jurist of where
to look for the relationship between an individual ruling and human benefit; for example, consistency shows that wherever intoxication is present, impermissibility is present.54 Going beyond this formalism, al-Ghazl
identified the policy, or purpose, behind this ruling as the protection of
the intellect. Once the policies of the law (what later became known as
maqid al-sharah) have been identified, this knowledge can serve to
test presumptive causes: to be assumed valid, a cause has to serve the
overall policies of the law.
In practice, this principle thus allows the jurist to analyze legal rules in
order to isolate their legal causes. The jurist might, for example, query the
benefit underlying the imposition of the death penalty for murder and
guided by the Quranic verse 2:179conclude that the policy of the law
that is served by this punishment is deterrence. This conclusion would
have practical implications for specific cases of murder: to achieve the
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maximum deterrent efffect, murder carried out with any type of weapon
would be subject to the death penalty, with deference to the anaf position according to which only murder committed with a lethal weapon
merits this punishment.55
The Mutazil understanding of benefit in law was rationalist in the
sense that it was derived from higher principles postulated to be directly
dictated by reason. Al-Ghazls theory, on the other hand, was quasiempiricist: its basis in Ashar voluntarism necessarily precluded the
assumption of a priori structure or aims within the law, but it left open
the possibility of discovering such a structure through observation of the
law itself.
It is tempting to link this empiricist turn in al-Ghazls thought to his
engagement with the work of Galen of Pergamum (d. around 216 c.e.),
particularly the latters De usu partium (On the usefulness of the parts
of the body, in Arabic Manfi al-a), which enumerates the benefits
of each part of the human body and the harmony in which they interact.56 This work was translated into Arabic already by the late ninth
century,57 and it enjoyed enormous popularity in al-Ghazls time. Abd
al-Ramn b. Ab diq al-Naysbr (alive in 459/1067) wrote a commentary on Galens book,58 and Ab ayyn al-Tawd (d. 414/1023) praised
its genius which he attributed to divine inspiration.59 Al-Ghazl, in alMunqidh min al-all, refers directly to Galens work: in a discussion on
the ancient natural philosophers, he explains that the benefit of the study
of anatomy lies precisely in the discovery of this usefulness of the body
parts (manfi al-a), which in turn illuminates to the scholar Gods
wisdom (ikmah) and the purposes (maqid) of His actions.60
The overlap between al-Ghazls terminology and that of legal theory
is evident and becomes clearer still in al-Ghazls al-ikmah f makhlqt
Allh,61 which is dedicated to elucidating the divine wisdom behind the
creation of the planets, the elements, animals and plants, as well as the
human body. Already the introduction indicates an empiricist approach,
as al-Ghazl justifies his work in terms of the Quranic injunction to
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van Ess, Josef. Ibn Kullb und die Mina. Oriens 18 (19651966): 92142.
. The Logical Structure of Islamic Theology. In Logic in Classical Islamic Culture, edited by Gustav von Grunebaum. Wiesbaden: Otto Harrassowitz, 1970.
. Theologie und Gesellschaft im 2. und 3. Jahrhundert Hidschra: Eine Geschichte
des religisen Denkens im frhen Islam. 6 volumes. Berlin and New York: Walter
de Gruyter, 19911997.
Wstenfeld, Ferdinand. Der Imm el-Schfi: Seine Schler und Anhnger bis zum
J. 300 d. H. Gttingen: Dieterich, 18901891.
al-Zarkash, Badr al-Dn. al-Bar al-mu. Edited by Abd al-Qdir Abd Allh
al-n, Umar Sulaymn al-Ashqar, et al. 6 vols. Kuwait: Wizrat al-Awqf wa-lShun al-Islmiyyah, 1992.
Zysow, Aron. The Economy of Certainty: An Introduction to the Typology of
Islamic Legal Theory. Ph.D. dissertation, Harvard University, 1984.
. Two Theories of the Obligation to Obey Gods Commands. In The Law
Applied: Contextualizing the Islamic Sharia; A Volume in Honor of Frank E.
Vogel, edited by Peri Bearman, Wolfhart P. Heinrichs, and Bernard G. Weiss.
London and New York: I. B. Tauris, 2008.
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